Best Quote of the Week

November 30, 2010 by Ken Lammers  
Filed under Criminal Court

Note left for me by a defense attorney:

"I ain't ready to go to trial tomorrow unless you aren't ready to go to trial."

Legalized Drugs?

November 29, 2010 by Ken Lammers  
Filed under Criminal Court

One of the arguments constantly put forth for the legalization of drugs is that once they are legalized the government will be able to regulate them and, much like cigarettes, drive use to a low level. Once, that argument carried a significant weight with me. Then I moved to the mountains where the primary drugs of abuse weren't cocaine or heroin. No, the drugs used here are mostly pills; the most abused is probably hydrocodone (Lortab, Vicodin), but there are plenty of people abusing Xanax, OxyContin, Suboxone, etc.

When I left Richmond to come out to the mountains, I was amazed at the number of defendants that seemed to be dropping dead from overdoses before they could make it to trial. It seemed incredibly out of proportion to anything I'd seen before, but I didn't have any evidence to back up my observations.

Recently, while researching a paper I came across statistics showing the per capita deaths from drugs from the Virginia Medical Examiner and the results are fairly determinative.

YearWorstSecondThirdFourthFifth
2003CraigHome CityRussell-1Lee-1Home County
2004Lee-1Bland-3Russell-1Dickenson-1Tazewell-2
2005Pulaski-4Buchanan-2Russell-1Dickenson-1Lee-1
2006Home CountyDickenson-1Tazewell-2Russell-1Highland
2007Dickenson-1Home CountyPulaski-4EmporiaRussell-1
2008Dickenson-1Home CityKing & QueenBuchanan-2Highland

Home County & City are the two jurisdictions I work in (Home County surrounds Home City). The red counties are those in Far South West Virginia (you know, the 4 hours of Virginia west of Roanoke) and the number next to the red counties is how far they are from Home County & City. Blue counties are east of West Virginia, but are mountain counties on the West Virginian border.

Now, if a mountain county appears once or twice it is probably a statistical anomaly. After all, the populations of these counties are much smaller than a NoVa county like Fairfax. What is disturbing about the chart is that the counties are consistently in the top 5 per capita. Two Far Southwestern counties are in 5 of the 6 years. Two others are on the chart for 3 of the 6 years. Furthermore, 25 of 30 are clustered in Far Southwestern Virginia counties. At this point it starts to look like we aren't looking at a statistical anomaly at all. Instead, we are looking at the level of fatalities when the primary abused drugs are "legal" pills.

The Ugly Side of Jury Nullification: Emmett Till

November 29, 2010 by Ken Lammers  
Filed under Criminal Court

There are a lot of people out there who think that jury nullification is a panacea. The problem is that jury nullification is an application of the jurors' prejudices. No one thinks about how nullification can allow the dark sides of people to come to the fore and allow evil to triumph. Ladies and Gentlemen, I give you the Emmett Till trial.

In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and threw it into a river.

When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.

The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:
Maybe the Emmett Till case will convince "smart alecky" Negroes to stay in the North where such things as the attempted assault of Mrs. Bryant are condoned. We do not want them in the South and will not have them even if it means drastic measures.

Mrs. Sarah White, Memphis, Tennessee
And, lest any of you might think there's a chance the defendants didn't do it - they confessed to a reporter after they were found not guilty.

Plans for the Week

November 29, 2010 by Ken Lammers  
Filed under Criminal Court

I spent the last three days prepping up two separate jury trials which I have scheduled for this week. Wanna bet whether they'll actually take place?

One of the most frustrating things about being a prosecutor is the number of times you set up for trial and it doesn't happen. Quite often, there isn't any real question as to whether the defendant is guilty. The defendant is just hoping that a witness won't show or that I'll be too inconvenienced by the threat of trial and drop the charge.  Whatever the cause, most of the time I've prepped for a jury trial the defendant, informed by his attorney that "yes, he really is going to try you", the defendant folds his tent the day before or the day of the trial.

BTW, defense attorneys, when the defendant does this to us (you had to prep too), I know you have to ask, but the answer is "No, the offer of two weeks in jail is not still on the table now that there's a jury and witnesses here." Sorry. The reason the deal was offered was because I didn't want to spend my Thanksgiving break prepping a jury trial and to force witnesses and jurors to miss work. That's all water under the bridge now. Catch me the day before so I can call off the witnesses and jurors. Then I'll probably be in a slightly less steadfast mood.

Name That Pic – 25 November 2010

November 25, 2010 by Ken Lammers  
Filed under Criminal Court

Last Week’s Name That Pic

November 25, 2010 by Ken Lammers  
Filed under Criminal Court

Joe was hoping for the big score, after all that solid copper crow bar was expensive.

Appellate Court Opinions & Multi-Part Tests

November 23, 2010 by Ken Lammers  
Filed under Criminal Court

We're about to be graced with the latest round of opinions from the Supremes. Of course, this will be accompanied also by the latest round of critiques against the Supremes. Some will criticize them for reaching the wrong decision (been there, done that). Some will criticize them for making decisions which so broad as to provide little actual guidance so that unity could be achieved. Some will criticize them for being fractious and deciding opinions by a razor thin majority. Personally, my greatest dislike at the moment is multi-part tests.

To be fair, every conviction involves some sort of multi-part tests. For instance, a grand larceny requires the prosecution to prove that an (1) item (2) was taken (3) from its owner (4) with the intent to permanently deprive the owner thereof. Of course, each of these elements is part of a multi-part test. The problems arise when there is some sort of ambiguity as to one part of the elements of a crime or an unsettled constitutional issue.

In more modern times multi-part tests have become more common. One reason I have seen given for this is the ghost writing of decisions by inexperienced clerks for their Justice. I'm not so sure of this. I think it may be a sign of Justices writing about things in which they have no personal experiences. In either event, I think the multi-part test is generally an indication that the writer is feeling his way around in the dark.

Multi-part tests come in a variety of flavors. Among the most prominent are the actual multi-part, the overbroad multi-part, and the false multi-part. The actual multi-part is what it says it is: each part of the test must be fulfilled. I think this is probably most often reached in explaining an element of a law. If you are trying to understand the "taking" element of a grand larceny it could be a two part test:
(1) Caption: Did the defendant take possession of the item?
(2) Asportation: Did the defendant carry the item away?
This is fairly straight forward. Unfortunately, it also seems to be the least common.

The overbroad multi-part happens in a lot of cases where the courts are trying describe judicial discretion. These are the ones in which the court cites 27 different tests which don't narrow anything down. Usually, all the multi-part does is set the particular set of circumstances for the case at bar inside or outside the acceptable circumstances in an entirety of the circumstances test.

The false multi-part is actually one test masked as a multi-part. Sometimes this is the same question repeated in three different forms. At other times it is several meaningless tests surrounding the one actual question.

Multi-parts seldom solve anything. They don't draw bright lines and usually leave so much wiggle room that they basically are just telling the judge to make his best guess.

Name That Pic – 18 November 2010

November 18, 2010 by Ken Lammers  
Filed under Criminal Court

Winner: Last Week’s Name That Pic

November 17, 2010 by Ken Lammers  
Filed under Criminal Court

A poor showing at Wesminster was the beginning of Butch's long downward spiral.

Winner: Last Week’s Name That Pic

November 17, 2010 by Ken Lammers  
Filed under Criminal Court

A poor showing at Wesminster was the beginning of Butch's long downward spiral.

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