"Before there were many lawyers with blawgs, there were lawprofs. They had the blawgosphere largely to themselves, with their networks and back and forth banter in the fascinating jargon of the academy."
Ah, the confidence of having a blogging memory of only a year and a half. However, some of us have been around for a little longer and remember things just a wee bit differently.
In the beginning . . .
The Stone Age
Well, okay CrimLaw wasn't around during the stone age of blogging. Not many blogs were around when fire was being discovered and tomahawks were being chipped out of stone. Perhaps the strongest blog of this era was InstaPundit. Sure, Glenn was a professor, but in these early days few people noticed blogging and nobody cared; he wasn't exactly blogging about professorial topics anyway.
The Copper Age
At this point, mainly through the power of Blogger, a number of blogs blossomed onto the scene. Some were written by professors, such as Balkinization and The Volokh Conspiracy. However, the majority were not. My impression of this era is that there were a lot of law clerks (Southern Appeal), law students (Sua Sponte), and lawyers (How Appealing, SW Virginia Law Blog, Ernie the Attorney, Bag and Baggage, Freespace, Lex Communis) putting up blogs.
During this era there was a lot of cross pollination. Niche blogging (the long tail) just had not developed to the point that one could have enough to read if he stayed in one subject area. Things somewhat coalesced around How Appealing and - to a greater extent - InstaPundit. Glenn Reynolds published a list of blogs he "fathered" (hence the nickname "Blog Father") and a group even formed to oppose his hegemony (the Alliance of Free Blogs). At this time blogging just wasn't on academia's radar. It was something engaged in by a few geeks who happened to be lawprofs and really was not considered an asset to lawprof's careers.
As far as crimblawging went, CrimLaw was the third crimblawg and none of the first three were by lawprofs. TalkLeft had migrated from being a webpage into a blog (then, as now, more about politics than actual law) and Gideon's Promise came into existence 6 months prior to and ended 6 months after CrimLaw was founded.
The Bronze Age
This is when blogs start to solidify in different zones: legal, political, religious, &cetera. Blawgs begin to do the same thing. Two of the bigger zones which develop are TechBlawgs and CrimBlawgs. Cross pollination between blogs of different kinds starts to fade as areas gain enough critical mass that people can spend all their reading time in one area. The MSM dithers back and forth, trying to figure out exactly how blogs fit. At first it is curious but mostly dismissive. However, this develops into a healthy respect/fear as blogs of the Left develop significant political power and blogs of the Right destroy a TV news anchor. As for the legal academia, there was some grudging respect for Glenn Reynolds at InstaPundit and lots of people read Volokh, but in general it seemed that the attitude was still that these blawg things were more a distraction than something that a serious professor wanted to engage in.
As for crimblawgs, more and more popped up (Crime & Federalism, Arbitrary and Capricious, Blonde Justice). Interestingly, the large majority seemed to originate from those doing indigent defense. In fact, the number of PD/indigent defense sites which pop up, live a short - but interesting - life, and fade away are impossible for me to keep up with; this task has fallen to Gideon and Skelly. A very few prosecutors braved the water (Mr. District Attorney).
The Age of Steel
This is the point at which lawprofs turned to blawging as a legitimate, career building endeavor, rather than a mental exercise or hobby. In crimblawgs I trace this to one particular blawg: Sentencing Law and Policy. If ever a blawg benefited from divine providence it was SL&P. It started its life as a fairly simple blawg in which Professor Berman was posting once or twice a week. Then Blakely was decided, people went nuts in the blawgosphere and Professor Berman rode the crest of the wave into prominence and respectability as a blawger. I don't think he slept during that time; if it was on a blog somewhere, or in a news article, or even on a an AUSA's desk Prof. Berman knew about it and published or pointed to it. It made his blawg a necessity and thus made him, it, and profblawgs legitimate.
There were some unfortunate side effects to this. Now seen as a way to boost visibility and credibility, blawgs became something which lawprofs and, even worse, law schools started to engage in for professional reasons. A lot of profblawgs are bland and the ones which a law school has "encouraged" lawprofs to start for school rep purposes can be just plain bad. They can be insulated. They tend to link to professors, if they link at all (which is basically bad netiquette). You can usually tell a blawg which existed prior to this age and is written by professors - instead of being an academic position enhancement blawg - because it links to things outside the lawprofs's sphere.
The rest of us pulgged along as normal during this time. More indigent defense blawgs came up and went down; a new prosecutor blawg popped up (Seeking Justice) and I switched over to prosecution and kept blawging.
The Modern Era
The biggest trend in the modern era has been the emergence of blawgs by private lawyers. A lot of this seems to be driven as a Google page rank, marketing device meant to bring business to the office. Much - if not most - of this is sheer, unmitigated dreck which the lawyer posts once a week because some ad guy has told him to. Nevertheless, this wave has also brought a number of good blawgs with it (Simple Justice, Defending People, Matlock) wherein the blawgers actually write substantive posts on a regular basis.
There has also been an uptick in prosecutor blawgs (Ubjeckshin, Western Justice, LHCC). It will be interesting to see how many of these blogs appear in the future and continue to publish considering the more difficult circumstances of blawging as a prosecutor.
Monday, June 30, 2008
Thursday, June 26, 2008
Hey, I Went to Law School With That Guy
I've got no idea what exactly a Justice of the Peace is in Nevada; I'm just impressed that somebody from my class is already trying to become a judge.
addendum:
Well, this certainly was helpful:
NRS 4.170 Duties of justices of the peace. The justices shall be conservators of the peace in their respective townships, and shall discharge such duties as may be prescribed by law.Heck, if we had townships in Virginia that could describe my job.
addendum 2:
Ahah! Via Esmereralda County, here's a good definition:
Justice of the Peace/Justice Court The Justice of the Peace is required to preside over a variety of hearings, including preliminary examinations in felony and gross misdemeanor cases, trials for misdemeanor criminal matters, as well as, traffic violations, formal civil suits, small claims actions, temporary restraining order hearings, and landlord/tenant hearings. In addition, the judge performs marriage ceremonies, and is subject to call out at all hours of the day and night to issue search and arrest warrants.In other words it's what we in Virginia call a General District Court Judge.
Shaquille, Deputy No More
Once upon a time a sheriff made Shaq a deputy. Now, the sheriff wants his badges back. Why?
Because of this (nsfw).
Because of this (nsfw).
Tuesday, June 24, 2008
Monday, June 23, 2008
Thursday, June 19, 2008
Yes, Virginia, Judges Do Have the Inherent Ability to take a Case Under Advisement
There's a practice in Virginia courts wherein a case is taken under "advisement" for a period of time - usually 6 or 12 months. There is no disposition prior to the end of that time and the charge is dismissed (or lowered) if the defendant has complied with certain conditions. It's a common practice in courts all over the Commonwealth.
However, there has been a rather small, but very vocal, minority of lawyers and judges out there who have argued for years that this just can't be done. They claim that because the General Assembly has written statutes specifically authorizing advisement in certain cases it is not allowed in other cases (e.g. statutory advisement for domestic assault).
The problem with their argument is that the rule they wish to apply cannot be sustained in a common law plus statutory modification jurisdiction such as Virginia. One simply cannot claim that the common law is abrogated because the General Assembly has passed a statute which specifically encompasses certain activities. If this were true the fact that, per 18.2-195.2:
Keeping this in mind, as well as the general statutory interpretation rule that as best possible statutes are to be read as being in harmony with the common law and only abrogating those parts they specifically change, there is a better way to interpret the statutes which the General Assembly has written about advisement in certain offenses. The General Assembly has not abrogated advisement in general, it has merely laid out the limits of what can and shall be done in relation to certain specific offenses.
And it seems the Supreme Court of Virginia is at least in partial agreement with me. Earlier this month it ruled that taking a case under advisement is an inherent power of the judiciary (Moreau v. Fuller). However, the Court blinked when it came to deciding certain parts of the case. It ignored parts of the trial court's record by designating only the order entered as the true record because "courts speak through their orders." So the parts wherein the trial judge noted the conditions and that the case would be dismissed after a period of time and completion of the conditions were not addressed by the Supreme Court because they were not part of a signed order, even though they were in the file.
The consequence of this decision is that the issue of whether advisement with conditions is valid should never reach the appellate courts. There is no signed order in cases taken under advisement because the case will not be completed until the period of time has elapsed and the judge evaluates the case to see if the defendant has done what he was ordered to do. So, technically advisement remains somewhat in limbo, but in reality the Supreme Court has endorsed the practice.
However, there has been a rather small, but very vocal, minority of lawyers and judges out there who have argued for years that this just can't be done. They claim that because the General Assembly has written statutes specifically authorizing advisement in certain cases it is not allowed in other cases (e.g. statutory advisement for domestic assault).
The problem with their argument is that the rule they wish to apply cannot be sustained in a common law plus statutory modification jurisdiction such as Virginia. One simply cannot claim that the common law is abrogated because the General Assembly has passed a statute which specifically encompasses certain activities. If this were true the fact that, per 18.2-195.2:
B. A person who knows that a false statement has been made in writing concerning the financial condition or ability to pay of himself or of any person for whom he is acting or any firm or corporation in which he is interested or for which he is acting and who with intent to defraud, procures a credit card, upon the faith of such false statement, for his own benefit, or for the benefit of the person, firm or corporation in which he is interested or for which he is acting, and obtains by use of the credit card, money, property, services or any thing of value, is guilty of grand larceny if the value of whatever is obtained is $200 or more or petit larceny if the value is less than $200.(and similar statutes) would exclude all other putative common law larcenies because the General Assembly has passed a law specifying that this is a larceny. There is no specific authorization by the General Assembly for the judicially developed elements which Virginia applies to other larceny cases. Of course, the same argument can probably be applied to all sorts of common law definitions used in Virginia law which have not been codified by the General Assembly, but larceny is the one which springs to mind most readily because the General Assembly has passed a number of statutes "deeming" acts to be larceny or simply stating an act is a larceny like 18.2-195.2.
Keeping this in mind, as well as the general statutory interpretation rule that as best possible statutes are to be read as being in harmony with the common law and only abrogating those parts they specifically change, there is a better way to interpret the statutes which the General Assembly has written about advisement in certain offenses. The General Assembly has not abrogated advisement in general, it has merely laid out the limits of what can and shall be done in relation to certain specific offenses.
And it seems the Supreme Court of Virginia is at least in partial agreement with me. Earlier this month it ruled that taking a case under advisement is an inherent power of the judiciary (Moreau v. Fuller). However, the Court blinked when it came to deciding certain parts of the case. It ignored parts of the trial court's record by designating only the order entered as the true record because "courts speak through their orders." So the parts wherein the trial judge noted the conditions and that the case would be dismissed after a period of time and completion of the conditions were not addressed by the Supreme Court because they were not part of a signed order, even though they were in the file.
The consequence of this decision is that the issue of whether advisement with conditions is valid should never reach the appellate courts. There is no signed order in cases taken under advisement because the case will not be completed until the period of time has elapsed and the judge evaluates the case to see if the defendant has done what he was ordered to do. So, technically advisement remains somewhat in limbo, but in reality the Supreme Court has endorsed the practice.
Tuesday, June 17, 2008
Why Won't the Prosecutor Believe You and Drop the Prosecution of Your Client?
Ipse's frustrated. She told the prosecutor that his case isn't worth a hill of beans, but he just didn't seem too impressed.
Why? Why won't the evil prosecutor just do the right thing and drop the charge? Why?
Well, I can't speak for the prosecutor in this case, but let me offer a possibility.
Let's assume the prosecutor speaks with different defense attorneys about 20 cases a week. 10 defendants are so obviously guilty that even Gerry Spence couldn't win their trial. 10 fall somewhere in the gray zone. Of these 10, experience tells the prosecutor that 7 of the defense attorneys are doing the best with some minor facts in their favor; there are some interesting circumstances, but if pushed to a jury there's not much doubt how the trial will turn out. 1 defense attorney is working with facts and law which which will make the case closer, but still present a 75% chance of conviction at trial. 1 defense attorney has a case which is 50-50. 1 defense attorney has a case which the defense has an 80% probability of winning. And let's say that in this typical week 5 of the lawyers in the gray zone are pushing the prosecutor to drop their particular client's charge, either as a good faith assertion of non-guilt or as an opening negotiation ploy.
So, how's the prosecutor going to react when a defense attorney walks up to him in the courtroom and starts telling him how bad his case is? Well, he's not going to say, "Hmmmm, yes, I see your point. I'll drop the case as soon as I can get the paperwork done." He's probably going to say something along the lines of, "Gee, an offender who has an excuse. Never seen that before." Hopefully this will be joking banter. Never fear, you've put him on notice and he should give the officers/witnesses involved a call to see what the situation is. If you've got the 50-50 defendant or the 80% defendant sometime before the trial he's going to come to you with either a sweetheart of a deal or tell you he's going to drop the case. If he thinks you are one of the others you'll go to trial. Then it becomes a matter of who sized up the case better and if you're right you'll win walking away. Having done so, the next time you talk to that particular prosecutor he'll tend to listen a little more attentively because you've proven you were able to accurately assess a case and - perhaps more importantly - that you weren't just running a bluff.
Why? Why won't the evil prosecutor just do the right thing and drop the charge? Why?
Well, I can't speak for the prosecutor in this case, but let me offer a possibility.
Let's assume the prosecutor speaks with different defense attorneys about 20 cases a week. 10 defendants are so obviously guilty that even Gerry Spence couldn't win their trial. 10 fall somewhere in the gray zone. Of these 10, experience tells the prosecutor that 7 of the defense attorneys are doing the best with some minor facts in their favor; there are some interesting circumstances, but if pushed to a jury there's not much doubt how the trial will turn out. 1 defense attorney is working with facts and law which which will make the case closer, but still present a 75% chance of conviction at trial. 1 defense attorney has a case which is 50-50. 1 defense attorney has a case which the defense has an 80% probability of winning. And let's say that in this typical week 5 of the lawyers in the gray zone are pushing the prosecutor to drop their particular client's charge, either as a good faith assertion of non-guilt or as an opening negotiation ploy.
So, how's the prosecutor going to react when a defense attorney walks up to him in the courtroom and starts telling him how bad his case is? Well, he's not going to say, "Hmmmm, yes, I see your point. I'll drop the case as soon as I can get the paperwork done." He's probably going to say something along the lines of, "Gee, an offender who has an excuse. Never seen that before." Hopefully this will be joking banter. Never fear, you've put him on notice and he should give the officers/witnesses involved a call to see what the situation is. If you've got the 50-50 defendant or the 80% defendant sometime before the trial he's going to come to you with either a sweetheart of a deal or tell you he's going to drop the case. If he thinks you are one of the others you'll go to trial. Then it becomes a matter of who sized up the case better and if you're right you'll win walking away. Having done so, the next time you talk to that particular prosecutor he'll tend to listen a little more attentively because you've proven you were able to accurately assess a case and - perhaps more importantly - that you weren't just running a bluff.
Monday, June 16, 2008
Drug Schedules: Should We Base Our Punishments Upon Them?
Back in the early 70's the federal government developed a set of "schedules" for drugs. A number of States adopted these schedules as well and governments began using them as a way to determine how possession/distribution of different drugs should be punished.
The schedules are generally broken down by three factors: medical use, potential abuse, and addictive qualities. Schedule I is where the drugs with no medical use, high abuse potential, and highly addictive qualities are categorized. Schedule II is where drugs of medical use, high abuse potential, and highly addictive qualities are categorized. Schedule III is where drugs of medical use, lower abuse potential, and moderate physical / strong psychological dependence. And the schedules continue downward. Examples of the top three would be LSD (I), cocaine(II), and ketamine (III).
It is an imperfect system, but one that always seemed - at least to me - to work. You could argue whether something belonged in I or II, but generally you knew something belonged in one of the two and, at least under Virginia law, the punishment is the same for possessing/dealing I or II. Then, I moved out to the mountains.
Everyone assumes the problem out here is methamphetamine. As far as I can tell, the only effect methamphetamine has had out here is that sudafed doesn't work anymore. There may be places, in the Appalachian Mountains where it is a major problem, just not immediately around here. The problem here is pills.
And this is where I wonder if the schedules and their application couldn't use a little tuning. Between schedules I/II and schedules III there is a dropoff in punishment under Virginian law. Dealing a schedule I/II drug carries up to 40 years (1st offense), up to life (2d offense), or 5 years to life (3d+ offense). Dealing a schedule III drug carries up to 10 years.
The problem is that - with pills - dealing, abuse, and death from OD's seem to happen with schedule III's as often as schedule I/II. Users/dealers seem to use, and sometimes mix, pills from across the schedules. It seems that people are abusing dihydrocodeinone (III) - or lately buprenorphine (III) - as often as oxycodone or methadone. We even see people using alprazolam (sched. IV) recreationally.
So, what's the solution? I'm not sure. And before anyone says "legalization", thanks but no thanks. We don't need the market flooded with more drugs for more people to OD on. Possibly, the General Assembly could be availed upon to pass a specific "pill abuse" statute. Something with punishment along the lines of up to 10 years, first distribution offense; 2 - 20 years, second distribution offense; and 5 - 40 years third distribution offense. It's nowhere near a perfect solution, but I'm not in the business of perfect solutions. I'm in the business of trying to protect the citizenry - both the night clerk at the Quikie-Mart who's getting robbed by people hopped up on dihydrocodeinone and the addict who is going to ruin his liver by snorting all that acetaminophen (if he lives that long) - and I've only got certain tools. Hopefully, the knowledge of attached punishment will nudge society away from this particular abuse. Hopefully, other steps would be taken to make this kind of abuse societally unacceptable. I know it's a long shot, but we've already failed if we choose not to try.
The schedules are generally broken down by three factors: medical use, potential abuse, and addictive qualities. Schedule I is where the drugs with no medical use, high abuse potential, and highly addictive qualities are categorized. Schedule II is where drugs of medical use, high abuse potential, and highly addictive qualities are categorized. Schedule III is where drugs of medical use, lower abuse potential, and moderate physical / strong psychological dependence. And the schedules continue downward. Examples of the top three would be LSD (I), cocaine(II), and ketamine (III).
It is an imperfect system, but one that always seemed - at least to me - to work. You could argue whether something belonged in I or II, but generally you knew something belonged in one of the two and, at least under Virginia law, the punishment is the same for possessing/dealing I or II. Then, I moved out to the mountains.
Everyone assumes the problem out here is methamphetamine. As far as I can tell, the only effect methamphetamine has had out here is that sudafed doesn't work anymore. There may be places, in the Appalachian Mountains where it is a major problem, just not immediately around here. The problem here is pills.
And this is where I wonder if the schedules and their application couldn't use a little tuning. Between schedules I/II and schedules III there is a dropoff in punishment under Virginian law. Dealing a schedule I/II drug carries up to 40 years (1st offense), up to life (2d offense), or 5 years to life (3d+ offense). Dealing a schedule III drug carries up to 10 years.
The problem is that - with pills - dealing, abuse, and death from OD's seem to happen with schedule III's as often as schedule I/II. Users/dealers seem to use, and sometimes mix, pills from across the schedules. It seems that people are abusing dihydrocodeinone (III) - or lately buprenorphine (III) - as often as oxycodone or methadone. We even see people using alprazolam (sched. IV) recreationally.
So, what's the solution? I'm not sure. And before anyone says "legalization", thanks but no thanks. We don't need the market flooded with more drugs for more people to OD on. Possibly, the General Assembly could be availed upon to pass a specific "pill abuse" statute. Something with punishment along the lines of up to 10 years, first distribution offense; 2 - 20 years, second distribution offense; and 5 - 40 years third distribution offense. It's nowhere near a perfect solution, but I'm not in the business of perfect solutions. I'm in the business of trying to protect the citizenry - both the night clerk at the Quikie-Mart who's getting robbed by people hopped up on dihydrocodeinone and the addict who is going to ruin his liver by snorting all that acetaminophen (if he lives that long) - and I've only got certain tools. Hopefully, the knowledge of attached punishment will nudge society away from this particular abuse. Hopefully, other steps would be taken to make this kind of abuse societally unacceptable. I know it's a long shot, but we've already failed if we choose not to try.
Sunday, June 15, 2008
Thursday, June 12, 2008
There Are Still Yippies in the World?
And apparently they travel with a lot of money (that smells like pot).
Wednesday, June 11, 2008
Ref Outs the NBA
Tim Donaghy, a former NBA ref who has pled guilty and is facing federal sentencing, had the NBA file a million dollar restitution claim against him. Facing this somewhat doubtful, but possibly very damaging claim, how did Donaghy react? His lawyer filed a letter to the judge "explaining" how Donaghy is cooperating and pointing out manipulations which the NBA and its refs have engaged in to make the "right" teams win (or, at least have a better chance to win).
The only question left is who has greater credibility, the WWE or the NBA? At least the WWE doesn't pretend to be a real sport.
The only question left is who has greater credibility, the WWE or the NBA? At least the WWE doesn't pretend to be a real sport.
Tuesday, June 10, 2008
Virginia Governor Commutes3 Death Sentence ConvictPercy Lavar Walton
Kaine, who opposes capital punishment, has let five executions proceed. This was the first time he commuted a death sentence.
I'm sure Tom will have something to say about this.
I'm sure Tom will have something to say about this.
CLTV 29: Explaining Twitter, Trillain, & MySpace to Lawyer Types
A bit of tech for a change. Hopefully some of it will sink in on some of ya'll out there who keep insisting on using these things called "books" and actually talking to people face to face (how very 5 minutes ago ).
Here's the link to CLTV itself.
Here's the link to CLTV itself.
Thursday, June 5, 2008
Long time no see
I haven't written in awhile and I promise to update soon. I have an article I wanted to post. I've been busy with work, but will be updating this site soon. Stay tuned!
NO! Totally Inappropriate
At about 5:22 a.m., someone tried to solicit the purchase of illegal methadone on this site. At about 6 a.m. (when I woke up), I deleted the solicitation.
Not cool. Not appropriate. Not here.
Keep that garbage off my site.
Not cool. Not appropriate. Not here.
Keep that garbage off my site.
Wednesday, June 4, 2008
Theft in Its Various Forms
1. A year at Yale.2. A gawdawful ugly statue (seen right). The appropriate punishment? Make the thief keep it.
3. Medical records.
4. ID theft (1, 2, 3, 4)
5. Human organs.
6. Metal (1, 2, 3)
7. Money from McDonalds (when you don't turn in the money earned for several days someone will become suspicious).
8. Gas cans.
9. Actual gasoline.
10. Vintage racing bikes.
11. Televisions.
12. Cigarettes and cigars.
13. Farm equipment.
14. A bull: "A Westmoreland taxi operator was arrested after a cow's carcass was found in his taxi Tuesday morning."
Tuesday, June 3, 2008
If You're Going to Insult Important People in Singapore
Don't post your location and dare the authorities to come get you.
Harvard Law Review Plagiarism
Could be. It could also be that the same guy wrote the brief in the moot court competition and the note.
Monday, June 2, 2008
CLTV 28: Indigents, Guidelines, WVa, & Hancock
Interesting. My camera shoots much better in B&W. Stick around to the end for the Hancock trailer.
Here's the link at CLTV.
Here's the link at CLTV.
Sunday, June 1, 2008
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