Criminal Law

Remember people and their labors every day.

Posted on September 07, 2009
Labor Day parade (from Library of Congress's website).  NOTE: This blog entry is updated from my Labor Day 2008 blog entry.  Before the current recession/depression, on Labor Days, sales (handled by labor), vacations (serviced by labor), and the end of summer eclipsed sufficiently deep thinking and feelings about labor...

The drug wars are more harmful than drugs.

Posted on September 06, 2009
Having finished high school before the D.A.R.E. program, how did I stay away from using illegal drugs other than ultimately smoking marijuana literally a handful of times? It did not hurt that I always found tobacco-cigarette smoking gross, and joint-smoking even uglier, since joints looked uglier than tobacco cigarettes, especially when smoked...

In D.C., attempted escape requires specific intent to do so. Judge may not use jury instructions to broaden the indictment.

Posted on September 04, 2009
Photo from website of U.S. District Court (W.D. Mi.). Praised be the D.C. Court of Appeals yesterday for reversing a conviction for attempted jail escape, due to the trial judge's refusal of the defendant's requested jury instruction that specific intent to escape is an essential element of the crime of attempted escape from jail...

Abolish the death penatly.

Posted on September 03, 2009
Thanks to Barry Scheck for posting about the injustice of the death penalty, which continues to ensnare innocent people, and for referencing a recent in-depth New Yorker article presenting the case that Cameron Todd was innocent of arson, but still executed in 2004 for the fire deaths of his two children...

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Do defendants waive confrontation rights by not filing demands for opposing witnesses' presence?

Posted on September 02, 2009
Virginia and Maryland have statutory provisions requiring defendants, pretrial, to demand the presence at trial of drug chemists and breath technicians, or to waive that right otherwise.  Yesterday, Virginia's Court of Appeals made clear that such a requirement is met when the defense files a demand, and does not require the defense to have the witness subpoenaed...

In Virginia, risky for probationers to refuse to admit their "crimes".

Posted on September 02, 2009
Sentencing judges often are fond of "treatment", without sufficiently considering how beneficial the treatment will be.  Too many treatment providers are overly paternalistic, bureaucratic, and barely hesitant to tell on probationers to judges...

Fail to engage at your own risk.

Posted on September 02, 2009
A few weeks ago, I blogged about the need to engage one's opponent, the judge and the jury. Here are a few more thoughts on the topic:  - How can we persuade without engaging our audience? How do we engage without listening to what is said and not said, and caring? - How many of us flock to those who engage us, and flee those who do the opposite? How does a jury respond when it wants to flee, but cannot? - We can engage juries and judges without kissing their behinds...

Tuning fork documents as inadmissible testimonial hearsay.

Posted on September 01, 2009
When the prosecution tries to use documents to prove speeding in its case in chief -- for instance in a jailable Virginia reckless driving case -- consider responding with the following pre-Melendez cases that limit hearsay evidence to establish such proof: Royals v...

Blogroll

Posted on August 31, 2009
Recently, I scaled back my blogroll, mainly removing blogs that are inactive, infrequently active, or less of a good fit than they previously seemed.  I list blogs that seem to fit in well with mine, that might interest readers, and that interest me. I do not list blogs to try to get them to list me, and do not list blogs merely because they list me...

The eyeball's role in battle.

Posted on August 31, 2009
Two days ago, I learned the following at the weekly t'ai chi practice east of the Captiol: Allow no more pressure on your body than you would allow on your eyeball. To avoid such pressure, yield powerfully, and push substantially with the ch'i, using no more than 4 ounces...

Hearsay at sentencing hearings.

Posted on August 27, 2009
Here are some ideas some colleagues recently suggested for responding in Virginia and beyond to prosecutorial objections about a defendant's hearsay submissions at sentencing:  - Argue that if the presentence report is considered at sentencing, as well as any other hearsay from the prosecution, then what is good for the goose is good for the gander...

Virginia: Forms for objecting to affidavits and certificates of analysis without live testiomony.

Posted on August 27, 2009
Following up on this past Monday's blogpost entitled "Virginia responds to Melendez-Diaz, with a Constitutionally questionable vengeance," thanks to a listserv member for providing this link to the forms here and here that are available for objecing to a Virginia Commonwealth's Attorney's office's notice of its intent to introduce into evidence affidavits and certificates of analysis without live testimony...

Virginia: Forms for objecting to affidavits and certificates of analysis without live testimony.

Posted on August 27, 2009
Following up on this past Monday's blogpost entitled "Virginia responds to Melendez-Diaz, with a Constitutionally questionable vengeance," thanks to a listserv member for providing this link to the forms here and here that are available for objecting to a Virginia Commonwealth's Attorney's office's notice of its intent to introduce into evidence affidavits and certificates of analysis without live testimony...

Why do any judges wonder whether they have authority to rule a statute unconstitutional?

Posted on August 26, 2009
Over a year ago, I argued to a Virginia District Court judge that a statutory sentencing provision was unconstitutional. He thought about it, and then said that he had concluded that my Constitutional argument had to be argued in the Circuit Court through a de novo appeal...

Two of three fired Maryland public defender lawyers have been unfired.

Posted on August 25, 2009
Some days life seems no clearer than a Zen koan.   Last Friday, I blogged about the abrupt termination of Maryland?s Public Defender Nancy Forster by a 2-1 board vote. However, the same abruptly-fired chief Public Defender apparently abruptly fired two public defender lawyers just hours before the public announcement of Ms...

Virginia responds to Melendez-Diaz, with a Constitutionally questionable vengeance.

Posted on August 24, 2009
   Bill of Rights (From public domain.) With a vengeance, Virginia's legislature and governor have pushed through their Constitutionally questionable response to Melendez-Diaz.  The bill, HB 5007, was signed into law last Friday, and provides that it takes immediate effect...

Sending good karma to Thich Nhat Hanh.

Posted on August 23, 2009
  When I was struggling much more than at present over my own mortality, I came across the following passage by Thich Nhat Hanh:  Contemplation on No-Coming and No-GoingBy Thich Nhat HanhThis body is not meI am not limited by this body.I am life without boundariesI have never been born,And I have never died...

Receiving mercy does not prepare one for battle.

Posted on August 23, 2009
  Each Sunday morning t'ai chi/sensing hands practice reinvigorates me for another week of fighting for justice for my clients, and doing so without anger, with continued zest for the battles and wars, with powerful calmness, and with no fear.  As I sometimes say to my particularly skilled push hands/sensing hands partners: "I want no mercy from you, just as I usually do not get it from prosecutors or opposing witnesses, and sometimes not from judges, either...

2-1 vote terminates Maryland's chief Public Defender.

Posted on August 21, 2009
Last night, a 2-1 vote of the Board of Trustees of the Maryland Public Defender System terminated Nancy Forster, the state's chief Public Defender since 2001. I was a Maryland public defender lawyer for five years, until 1996. Nancy joined the office as a law clerk in 1984, later became chief of the appellate division, and then moved to the helm of the statewide agency...

Prosecutors: It is better to overdisclose than to underdisclose exculpatory evidence.

Posted on August 20, 2009
 Bill of Rights. (From the public domain.) The newest addition to my blogroll -- under the Beyond Blogs category -- is Brady v. Maryland, 373 U.S. 83 (1963). I urge all judges, prosecutors, criminal defense lawyers, and police to read Brady at least once a year, particularly its key holding: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution...

Back to blogging

Posted on August 19, 2009
After a few days away from blogging, some new entries are on their way.  I was away from blogging this past long weekend while in Manhattan, where I lived for a year before law school. As with many cities, Manhattan's gritty underbelly is my favorite...

Once criminal appellate relief is exhausted, new benefiical Supreme Court cases usually are of no help.

Posted on August 14, 2009
 Bill of Rights. (From the public domain.) Appellate courts are ever-wary about opening litigation floodgates. In that context, the United States Supreme Court has -- with narrow exceptions -- made the benefits of its new rulings unavailable to criminal defendants who have already exhausted appellate relief...

Why would a judge let air out of someone's tire?

Posted on August 13, 2009
In a democratic society, no judge nor any other public official should escape scrutiny for their actions. In that light, this week, Charles County, Maryland, Circuit Court Administrative Judge Robert Nalley admitted both to the press and to the regional chief administrative judge that he let air out of the tires of another car for being parked where he said it should not have been parked in the courthouse parking lot...

Why are there lying cops? Because there are lying members of the general population.

Posted on August 13, 2009
Too many judges, jurors, and members of the general public accept cops' words hook, line and sinker, merely because they are cops. Becoming a cop does not cloak a person with superhuman powers not to lie, cheat and steal. Police are drawn from the general population, and lying, cheating, and stealing are rampant in the general population; nothing makes police less susceptible to doing so...

Congress moves further on 100:1 cocaine powder:crack sentenciong disparity.

Posted on August 11, 2009
On May 1, 2009, I blogged about the Justice Department?s efforts on eliminating the statutory disparities between crack and powder cocaine sentencing.   Thanks to Congressman Robert "Bobby" C. Scott (D-Va.) for his introduction of the "Fairness in Cocaine Sentencing Act of 2009...

More on the risks of viewing child pornography online without trying to save the images.

Posted on August 11, 2009
On November 16, 2006, I blogged about a Pennsylvania Superior Court opinion that the crime of possessing child pornography from an online source (as opposed to a statute prohibiting the mere viewing of child pornography) requires that the defendant know that the image is actually being saved to the computer...

Congress moves ahead on eliminating the statutory crack:powder cocaine sentencing disparity.

Posted on August 11, 2009
On May 1, 2009, I blogged about the Justice Department?s efforts on eliminating the statutory disparities between crack and powder cocaine sentencing.   Thanks to Congressman Robert "Bobby" C. Scott (D-Va.) for his introduction of the "Fairness in Cocaine Sentencing Act of 2009...

Merging DUI and DWI per se.

Posted on August 10, 2009
NOTE: This blogposting is being re-uploaded, after some WYSYWIG problems kept delivering faulty formatting.  The jurisdictions where I practice criminalize both drunk driving (DUI) and driving with a blood alcohol content over 0.08 (DWI). If a defendant is convicted of both, the defense lawyer should be ready to ask the judge to merge the two convictions, or, in the alternative, the two sentences...

Hail, hail, the gang's all here. Now I see their colors, on some of their brothers...

Posted on August 07, 2009
 Bill of Rights. (From the public domain.) Florida law outlaws even the display of gang symbols on the Internet. Would such a ban apply today to Our Gang, which some might have seen as including some ne'er do wells; Kool and the Gang; or the Gang of Four, which in a show trial was convicted as a group of criminals in a Chinese show trial?   Thanks to Carlos Miller for posting on an ongoing Florida prosecution of two men -- Elvis Rodriguez and Richard Figueroa-Santiago -- over their posting of gang symbols on MySpace...

The U.S. government atom-bombed Hiroshima sixty-four years ago today.

Posted on August 06, 2009
The U.S. government atomic-bombed Hiroshima fifty four years ago.  Here are some thoughts:  - My 1999 visit to Hiroshima was very sad. Here I am adding to the collection of peace cranes at Hiroshima's memorial: http://bit.ly/st2yn.  - Hiroshima's horrors are highlighted by the ash mound of tens of thousands of victims whose remains were not claimed: http://bit...

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