Merry Christmas

December 24, 2010 by Ken Lammers  
Filed under Criminal Court

Moments for a Prosecutor to Drool Over

December 21, 2010 by Ken Lammers  
Filed under Criminal Court

The last statement made by the defendant on direct examination:
. . . but I'm not guilty this time!"

Writing an Article for a Law Review

December 21, 2010 by Ken Lammers  
Filed under Criminal Court

Last week I turned in the law review article I've been working on. It's now in the hands of 2L's and 3L's whom I pity because they have to correct my bluebooking. I went through my approximately 170 endnotes and tried to get them in the correct format, but I am terribly out of practice in doing anything other than just doing a cite which lets the reader know where to find the information. Putting things in the right order and differentiating between those cites which should be italicized and those which should have small caps just isn't something I'm used to anymore. Also, my Bluebook was old enough that it didn't really address internet sources and the sources I used were all from the internet.

For those of you out there who are practitioners and interested in writing papers, I encourage you to jump in with both feet. It isn't like the old days when you just couldn't do it unless you took time out your life to drive to the nearest law school library. Nowadays, with online services such as Lexis, WestLaw, or Fastcase you can do most of the actual legal research fairly easily. You'll also find that a lot of journals are online and free now and that's not limited to only legal journals. As well, the government puts a lot of information out that can be very useful.

My worst difficulty was finding sources to back things every practitioner around here knows to be true. It was frustrating because there were some important issues that I wanted to address, but didn't feel I could because I couldn't prove them. However, I don't think this was because I was using the internet to find sources. Instead, I think it was more because the issue I was writing about is one that is most serious out here in the hinterlands, away from the major news agencies. I think this was also a reality of the type of research I was doing. This paper is more of a sociology paper and less a legal interpretation paper. The last article I wrote was about the 4th Amendment and the US Supreme Court's ruling on dog sniffs. Because it was much more law oriented I didn't have problems getting sources for it.

Admirable Brevity in an Opinion

December 20, 2010 by Ken Lammers  
Filed under Criminal Court

Here is the entire decision for State v. T.L.C., 186 NJ 600 (2006):

You Say Lower Crime Rate Like It’s a Bad Thing

December 20, 2010 by Ken Lammers  
Filed under Criminal Court

Via Simple Justice, I tripped over a new website, Right on Crime. I went over to check it out and it seemed like most sites of this type. It's well put together, but the content isn't really for anyone looking to actually think about the issues. Basically, it seems to be about punishing the guilty, supporting victims, and saving money. All of these goals are laudable, but the third seems not to fit too well with the first and second.

I was curious about one thing. The site has a section on the right where there is a map showing various highlighted states where "initiatives" for reform have been put forward. I was curious as to what reforms are being touted by a site which is self consciously from the right. We've already had victim rights written into the law and done away with parole. So, I went to the Virginia page.

The good news is that "Virginia ranked 41st in index crimes, 42nd in violent crimes and 40th in property crimes per 100,000 resident population." How did Virginia get such a low crime rate? It could have something to do with the fact that Virginia has a 9% higher incarceration rate than other states. BTW, I know there is someone out there who can cite statistics "proving" that the high incarceration rate isn't the cause of the low crime rate. Of course, there are approximately 40 states out there with lower incarceration rates and higher crime rates, so I'm going to have to pull out the lies, d@mn lies, & statistics quote. At the very least, Virginia's in an "if it ain't broke, don't fix it" situation.

When you read the page it becomes evident that the Big Bad here is that criminals are actually being made to go to prison. This is a strange position for a right of center site to take and even stranger is the reliance of this Virginia section of the Right on Crime site on a solidly left of center site which is dedicated to reducing prisoners' sentences.

As far as it goes, the site feeds us the at least partially erroneous line that the increase in incarceration is due to the abolition of parole in Virginia. What's never discussed when people raise this point is that when the General Assembly abolished parole it set in place sentencing guideline which generally reduced sentences to about what they would have been if the defendant had gotten parole. There are exceptions, such as when a judge sentences above the guidelines or those on pre-1995 sentences which would have resulted in parole sentences (but which the parole boards are very stingy to give out anymore), and these would tend to raise the amount of time someone spends in prison. However, it is doubtful that these are enough to account for most people incarcerated.

We are also told that "Virginia has only 1 in 94 adults is under community supervision compared with the national average of 1 in 45.[x] Combining these two statistics – a high incarceration rate and a low community supervision rate—shows that 52 percent of Virginia’s adult correctional population is behind bars.[xi] Accordingly, this is the fourth highest rate in the country. Compared to other states, Virginia is using more incarceration and less community supervision."

The terrible evil in this? Keeping criminals off the street costs money. The solution? Put more offenders out on the street and throw them in jail immediately every time they violate for 30 days.

I've heard this called "shock violation" before and I'm not actually opposed to the theory of it for people who are on probation (although I do not believe it should be relied upon as an excuse to put someone on probation rather than giving him the sentence he should receive). I'm a big believer in telling someone where the line is and the punishment he will get if he crosses it. Personally, I think that every single probationer should be informed as part of his initial plea agreement what the punishment for any violations of probation would be. I believe that a potential offender who knows that he will be punished is more likely to toe the line than one who thinks he might be punished. While I favor heavier sentences, a 30 day sentence could do the job if it was administered quickly and with no nonsense for each violation.

The problem is the immediacy requirement. The three violations I think are most prevalent are new convictions, failing drug tests, and absconding. None of these lend themselves to immediate punishment. New convictions really shouldn't be limited to 30 days as a probation violation (except, perhaps misdemeanor traffic offenses or citations). Even if they were so limited the immediacy could only be achieved if the 30 days were imposed as soon as the arrest took place and I doubt anyone is going to really push for that without a conviction. Failing a drug test is the violation most likely to achieve the immediacy requirement. Most people seem to fail and admit usage to their probation officer. However, this may not be the outcome everyone really wants. Currently, when a probationer fails a test or two the probation officer usually tries to put him in a program to help him deal with the problem. In a working shock violation system that goes out the window and the officer should arrest as soon as a single test is failed. Another issue is the testing itself. The dipstick method is not absolutely determinative. Therefore, when a probationer denies use despite failing the initial test, a sample is sent to a lab for more reliable tests. This means that the system can be gamed. A probationer who does not want to go to jail immediately can deny. Then the officer and judge are faced with the choice of immediacy or accuracy. Finally, there is absconding and the reason that someone who has absconded can't be immediately punished is obvious.

I don't see anything offered on this site working well.

Nevertheless, if you want a solution that will save Virginia money I've got one. Exile. Every non-violent felon in Virginia should get a pass on his first offense. He gets probation without incarceration - pretty much like it is now. The second non-violent offense he is exiled from Virginia. After conviction he is held at a jail. Within three weeks an unmarked, nondescript van arrives at the jail on a random day at a random time. The offender, and all others of his ilk, is dressed in his civilian clothes and put in a cage in the back of the van. The driver has a computer in the front that chooses a random town at least three states away and 2 hours from an interstate. The driver drives to that spot, hits a button which opens the back of the van, and Virginia no longer has to deal with the offender. Of course, some will be tempted to try to return, but the punishment for returning would be something rather horrific, like being dropped off randomly in the middle of a random northern blight city or, for the worst offenders, being shipped to Texas. I think this would save Virginia a lot of money, lower our incarceration rate, and probably result in an even greater reduction in Virginia's crime rate.

October’s Case Are Up at Virginia Criminal Cases & Law

December 17, 2010 by Ken Lammers  
Filed under Criminal Court

click on graphic to go to Virginia Criminal Law & Cases

Did the Police Officer Act Incorrectly?

December 14, 2010 by Ken Lammers  
Filed under Criminal Court

Over the last week or so there has been much written on the blawgs about the arrest of Joel Rosenberg. I'm not going to write about the propriety of Mr. Rosenberg's behavior after the incident or the officer's decision to charge him. However, there is a video which raises the question, "Did the officer act inappropriately?"

Just watch until the firearm is given back and taken out of the building

I've looked into the statute which Mr. Rosenberg quotes and, as best I can tell, it looks as though he is right in stating that the judge could not ban firearms from the public building. Minnesota Code 642.714 subd. 17 allows firearms to be banned from "private establishments", but they are obviously not in a private establishment. And then there's subd. 23 of the same code section:
This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.
A judge is clearly a person acting under color of law or governmental authority. This appears to absolutely bar a judge from banning firearms from any place at any time.

Of course, that's insane. And before anyone starts telling me that's just the prosecutor in me speaking, I'm pretty sure anyone who has been in a courthouse when emotions are running high, on both the victim's side of the aisle and the defendant's, has been glad that no weapons were allowed. Just imagine a trial in which the victim was a 3d Street Samurai Crip and the defendant is a 7th Street Banzai Latin King. Do you think the judge should be absolutely banned from keeping members of the two sets from bringing firearms to the courthouse?

Nevertheless, I couldn't find an exception to the law. That doesn't mean there isn't one somewhere, just that I couldn't find it in the statute or the case law addressing the statute. So, as far as I can tell the judge was wrong to banish firearms from the building.

On the other hand, consider the officer's situation. He has an order from a judge banning firearms. The judge is higher on the food chain than the officer. The officer is going to obey the command of the judge. So, it's no surprise that he acted to enforce the judge's order.

What's the solution here? In Virginia the technically correct solution is go over the judge's head and get an order of mandamus requiring the judge to withdraw his order or an order of prohibition to keep the judge from enforcing the order. However, this is time consuming and not practical for someone who is not going into the building often. In this case you could run up and punch the bear in the nose, trusting that he won't figure out how to get free of the chains and maul you.

Nebraska DUI Leads to Suspension from Huskers Football Team

December 13, 2010 by Fred  
Filed under DUI

The University of Nebraska football team has suspended starting defensive tackle Baker Steinkuhler following an arrest for DUI in Lincoln. Police say the 21-year old was stopped around 1:45 Tuesday morning for driving without his headlights and for making a turn without signaling. Steinkuhler had a blood alcohol content of 0.115 percent. He is of legal drinking age but the threshold for intoxication while driving in Nebraska is 0.08%. Steinkuhler was booked for suspicion of drunk driving in Nebraska and is set to appear in Lancaster County court on January 4.

Coach Bo Pelini said that Steinkuhler will not join the football team for the Holiday Bowl in San Diego on December 30. The 6'6", 290-pound Steinkuhler has played a key defensive role for the Huskers this season, starting all 13 games and collecting 46 tackles and 3-1/2 sacks.

Have you been arrested for a NE DUI and are looking for legal help from a qualified Nebraska DUI attorney?

The Santa Case

December 13, 2010 by Ken Lammers  
Filed under Criminal Court

Name That Pic – 09 December 2010

December 9, 2010 by Ken Lammers  
Filed under Criminal Court

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