What people are looking for when they come to CrimLaw

Click on the picture in order to be better able to read it. These search queries are a little different than I normally see. Usually the three things which get the biggest hits are methadone (because of pill pics I once uploaded), malicious wounding, and the Bluegrass Conspiracy.

Misprision of a Felony:Failing to Report a Felony

I was prepping up cases yesterday and Mark started tweeting about a case, bringing up misprision (yes, that's the correct spelling). He'd been dealing with it in federal court, where it's a 3 year felony per 18 USC 4).

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Admittedly, I did not know there is a federal crime of misprision of a felony. In fact, I don't think I'd heard of misprision since law school. So, I got curious and went looking to see if misprision of a felony is still good law in Virginia.

To begin with misprision of a felony is a common law crime in Virginia. Of course, this is no problem in the Commonwealth.

§ 1-200. The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.

No statute has been passed altering the common law in any way. In fact, the only statute mentioning misprision is referring to misprision of treason - an entirely different crime. As well, the case law is littered with cases concerning misprision of a clerk, which isn't helpful at all. Nevertheless, there are some mentions of misprision of a felony.

However, none of the mentions define misprision itself. The majority of the cases are older and hold up misprision as something everyone knows in order to define accessories against it. Even the case which is most important in confirming that misprision of a felony is still good law in Virginia, Juniper v. Commonwealth, 2006, No. 051423, only mentions the law as a reason a witness was given immunity by the prosecution; it never offers a definition.

When questioned about the events on the day of the murders, Murray answered, "Your Honor, I plead the Fifth." The trial court called a recess and outside of the presence of the jury, the Commonwealth stated its intention to offer Murray immunity. ¹⁰
. . .
¹⁰ The Commonwealth determined Murray could incriminate himself as an accessory after the fact or give information that could lead to a charge of misprision of a felony offense.

Thus we see that in 2006 misprision of a felony is still a part of Virginia law, but we still don't have a definition.

So, where do we find a definition? Well, we go where every good American legal theoretician goes - Blackstone.

XI. Analogous to the preceding offence is misprision of felony ie the concealment of a felony which a man knows of but never assented to for if he assented to it this makes him either principal or accessory. The punishment of this misprision in a public officer by the statute Westrn 1 3 Edw 1 c 9 is imprisonment for a year and a day in a common person imprisonment for a less discretionary time and in both fine and ransom at the pleasure of the crown which pleasure must be observed once for all not to signify any extrajudicial will of the sovereign but such as is declared by his representatives the judges in his courts of justice voluntas régis in curiâ non in camera.

Concealment in this case, does not mean actively hiding something. Instead, as is made clearer in the section on misprision of treason, this type of concealment is merely a failure to report as soon as possible.

This concealment becomes criminal if the party apprised of the [act] does not as soon as conveniently may be reveal it to some judge of assize or justice of the peace.

Basically, the criminal act in misprision of felony is seeing a felony and not telling a law enforcement official as soon as possible.

Although Blackstone sets out that misprision of felony tops out at 12 months for regular citizens (a misdemeanor), there is no set punishment for misprision of felony under Virginia statutes so the punishment defaults to a class 1 misdemeanor (max 12 months &/or $2,500).

§ 18.2-12. A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.

Just remember folks, the next time you see a felony in Virginia and don't report it, it could be you spending time in jail.

Great Stress Reliever: Wii Fit

Its nearing finals time and there's nothing like a little stress reliever to break up all that study time. I hightly recommend Wii Fit. I really enjoy doing the yoga and hula hoop. But there's also boxing and tennis for you more athletic types. Or you can just take a walk or a jog to take a break from studying. My advise is to just take a break every 2-3 hours just to give your mind and body a break.

Southland:MTV Meets Hill Street Blues

TV goes thru cycles. Of late, all the "real", meant to win awards TV shows seem to have been Doctor/hospital shows. That doesn't mean they've stopped trying to make police dramas (CSI's, Law&Orders, etc.), just that none of them have really reached the pinnacle. However, the doctor drama seems to have run its course and now the field is clear for the next Hill Street Blues.

However, I don't think Southland is going to be the one. Now, I've only seen the first episode on Hulu. Still, I'm not sure that the flaws I see can be overcome.

There are three stories crammed into a single hour format. 1st is the rich boy, rookie officer who is having a terrible day as he tries to earn his final approval to get off probation from a hard-nosed veteran of the force, who isn't giving an inch (and seems to turn out to be gay in the end). 2d is the story of a couple detectives trying to solve the shooting of a kid by some bangers (which eventually merges into the first). 3d is the story of a detective trying to figure out what has happened to a little girl who has disappeared. It was one story too many; the third should have been let go to give the other two some room to develop.

The filming is in what I'd refer to as MTV style (who knows if MTV still does this - I ain't watched in several years). The picture is done via unsteady cam in an obvious attempt to be "real." The positioning and zoom of the camera also seem to be an attempt to say "See, we're filming this like a video camera would." I'd hoped that this fad was fading, because it is just annoying; however, for now it still lives. Only one scene really works with this style and it's over in about 30 seconds.

As with most pilots, too much was crammed into too short a time period. We can hope that as the season progresses the story will spread out, slow down, rely less on gimmicky filming. However, in my bones I just don't feel it coming. I've got a bad feeling this is going to stay a show shot for people with 10 second attention spans.

1 give this show a provisional rating of average (3 out of 5).

Man Freed After DNA Exoneration

Wisdom in 140 Characters or Less#LawsOfCriminalDefense

People on Twitter are tweeting about the truths of practicing criminal defense. I've harvested some of the best. Go to Twitter and look at #LawsOfCriminalDefense (and follow the people who make the best comments).

Prosecutor:

No, the prosecutor has nothing better to do, now let's move on.

Dear Client, Yes, the prosecution has been out to get you from the start. No, that is not a good appellate issue.

Prosecutor: If I'm being nice to you, I'm playing you.


Client:

Including your client and you, there is one person in the courtroom trying to keep your client out of prison.

"The b!tch aint showing up?" You mean her, in the third row?

Asking me what happens if the witness doesn't show up worries me.

That you "can't go to jail" doesn't affect whether you will.

Going to trial because you can't go to jail is like jumping off a cliff because you can't be pushed.

No, it doesn't matter that they didn't Mirandize you.

If you want a new client to lie to you, ask him about his criminal record.

Never look a gift horse in the mouth. That's your client's job.

Your friends cousin knows a cop on the force? Your boss knows the judges wife? Awesome! Now we win.

Yes, if the case gets dismissed I get to keep the fee.

A criminal defense lawyer who guarantees a result is lying or bribing someone.

Dear Client, Just because you are bi-polar does not mean that you have free reign to commit a criminal offense.

The clients I've taken for free or below cost are the most demanding and unreasonable.

No, we're not suing the cops.

Let's win the criminal case first. Then I'll refer you to a civil rights plaintiff's lawyer.

Representing celebrities is a great honor, just ask them.

Just because I represent doesn't mean I have to believe you.

Dear client: If a 12 year old on the Web wants to have sex with you, it's an FBI agent. I promise.

Telling me what your friend thinks is like talking about your ex girlfriends on a date.

Dear Client, I'm not your life coach. I'm the cold shower of reality that rains on your egocentric parade.

If you just want to talk to me over the phone, you're shopping, not hiring.

No, it doesn't matter that the handcuffs hurt your wrists.

It is your client that is on trial, not you.

Dear Client, It is not a good thing that you & the Judge are on a first name basis.

A jury of your peers does not mean that your friends are on the panel.

You're not unhappy with the PD, you're unhappy with the plea offer he got.

Telling me you're going to hire a private lawyer is not threat but usually a relief.

Never represent someone you're having sex with.

And where did the police officer take you after he gave you all this advice? Exactly.


Tactics:

If you're going to "win it in closing," plead guilty.

There is nothing more difficult than cross-examining the victim of a sex crime.

An acquittal is not the only way to get a "win" in this line of business. A nolle prosequi is just as good.

Just because you think the victim is a lying piece of sh!t does not mean the jury has to.

Nobody ever went to prison for not talking to the cops

A continuance is as good as an acquittal, for as long as it lasts.

No trial is a sure thing for either side.


God:

When you roll out, "God is on my side," you're probably forgetting about the victim.

I appreciate that you put your faith in God, but he's going to need some expert help on this particular case.

Dear Client, Most of Jesus' disciples met their end in prison. So, you think he is going to save your @ss?

Virginian Judicial Selection

There is no truly good way to select judges. There are direct elections, which everyone is concerned about because they cause the judge to worry about votes more than the law. There are political selections with life tenure, which lead to a sudden lack of memory and inability to discuss legal theory on the potential judge's part until after the nomination process is complete and thereafter leave the judge/justice entirely without any without any check when he turns out to be an incompetent or worse. There's judicial selection by committee, which just screams "behind closed doors, good ole boy" (the "Missouri Plan": the worst of all selection plans lumped into one).

In Virginia, we have political selection without life tenure. Every judge is selected by the General Assembly and periodically reappointed by that same august body. As someone who has observed this process in action, I see three possible flaws:

(1) The potential for nominees to be not based upon "not what you know, but who you know."

This comes and goes. Sometimes the General Assembly is willing to take the advice of the local Bar and sometimes it's not. Knowing an Assembly member can never hurt someone's chances of becoming a judge. On the other hand, no member is going to purposefully appoint an incompetent or lunatic judge if he can help it. You see, the Assembly member has to run for re-election himself and doesn't have any desire to place an anchor around his own neck.

(2) The potential for judges to have to enforce laws in a manner out of sync with the locality because the General Assembly is strongly influenced by other parts of the Commonwealth or by influential lobbying groups.

If the 10 most populous counties in Virginia are strongly anti-firearm, but the locality the judge is in is pro-firearm, where will the judge come down? After all, he has to face down all those Delegates and Senators (perhaps a majority) from anti-firearm counties. On the other hand, if the pro-firearm lobby is extremely strong in the General Assembly (out of proportion to the population) what does a judge in one of the 10 counties do, knowing that he will face Delegates and Senators influenced by this group?

(3) The potential for judges to be appointed by the General Assembly who are not appropriate to the jurisdiction.

Assume one party gets a large majority in the General Assembly, but the locality strongly favors the other party. There's a strong possibility that the General Assembly is going to appoint someone more in tune with its sensibilities than those of the locality.

---------

I've watched the Virginia system in action for a while now and, warts and all, think it's a fairly good system. It's certainly better than the Missouri Plan or the Life Tenure plan and has merits which favor it in debates against a direct election system. In point of fact, members such as Delegate Albo have made efforts to improve the system further thru the (now defunct) judicial review system. Could it use improvement? Sure it could. Every system could use improvement.

Still, I've watched the system work in regards to poor judges. In the 8+ years I've been practicing, I've seen a lawyer rebellion lead to a judge not being re-appointed. I've seen a judge removed for cause from his seat. This year, I've seen citizen pressure lead to a judge being re-appointed only after he sent a letter to the Chief Justice stating he was retiring a year after his re-appointment. In this same year, I saw the General Assembly refuse to remove a judge after a clearly partisan attack against him (as opposed to real questions as to his judicial abilities). So, it appears that the system is working.