Monday, June 29, 2009
Another Scream Sentence
The New York Times: "A man who admitted his role in the theft of the Edvard Munch painting 'The Scream' was sentenced Monday to two and a half years in prison by a court in Oslo .... The man, Bjoern Hoen, 41, had been found guilty by a Norwegian appeals court of providing the getaway vehicle that was used in the daytime heist. ... Last year, Norway’s Supreme Court sentenced one thief, Stian Skjold, to six years in jail and the getaway driver, Petter Tharaldsen, to 10 years and 6 months."
Free Sample of Coffee
Hey all you recent grads now studying for the bar exam. You probably need something to help get you through those long hours of studying! Check out this free sample of coffee from Dunkin Donuts.
Sunday, June 28, 2009
Melendez-Diaz, Magruder, & Virginia
Having watched the continuing angst over Melendez-Diaz, I started asking around as to why everyone is so worried in light of Virginia's Magruder decision. The answer I got back from several people was "because Magruder is before the Supreme Court too." Of course, nobody seemed to know anything else, so I went looking.
After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).
Here's the timeline for the case to date:
Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.
The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.
I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.
As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).
After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).
Here's the timeline for the case to date:
May 29 2008 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2008)This case has not been granted certiorari by the US Supreme Court (otherwise it would have a "Petition GRANTED" entry). It's still up in the air and at this moment the controlling case in Virginia remains Magruder.
Jun 10 2008 Order extending time to file response to petition to and including August 4, 2008.
Aug 1 2008 Brief of respondent Virginia in opposition filed.
Aug 14 2008 DISTRIBUTED for Conference of September 29, 2008.
Aug 14 2008 Reply of petitioners Mark A. Briscoe, and Sheldon Cypress filed. (Distributed)
Jun 25 2009 DISTRIBUTED for Conference of June 29, 2009.
Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.
The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.
I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.
As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).
Friday, June 26, 2009
Charitable Deductions Update
The New York Times had a story today on the possibilities for paying for President Obama's health care proposal. It includes the following:
"Limit income-tax deductions for high earners. This is Mr. Obama’s main idea for raising revenue, but Congress is not likely to pass it except in a greatly scaled-down form.
"Limit income-tax deductions for high earners. This is Mr. Obama’s main idea for raising revenue, but Congress is not likely to pass it except in a greatly scaled-down form.
"He proposed ... making taxpayers in the top income tax brackets ... deduct their mortgage interest, state and local taxes and charitable donations at the 28 percent income tax rate. Democratic leaders immediately objected that that would hurt charities, universities and other entities dependent on tax-deductible donations ....
"Mr. Obama has not given up. He counters that a 28 percent itemized deduction rate for top earners would be the same as under President Ronald Reagan. Just 1.4 percent of households would be affected, the nonpartisan Tax Policy Center reported. The Center on Philanthropy at Indiana University says charitable giving would decrease 2 percent.
"Any compromises would raise less revenue than Mr. Obama proposed. One alternative would exempt charitable contributions from the 28 percent limit. That, however, would provoke governors from high-tax states or Realtors and bankers protective of the mortgage tax break to press for exempting the other categories as well.
"Another idea would maintain the [current] rates for itemized deductions after the Bush tax cuts for the rich expire in 2011 .... That would leave the current break for deductions unchanged, but prevent it from becoming relatively more generous when income taxes rise for affluent taxpayers.
"Even that fallback hit a wall in the Senate Finance Committee. The opposition of Senator Charles E. Grassley, the panel’s senior Republican, carries weight with Senator Max Baucus, the Democratic chairman from Montana, who is determined to produce a bipartisan bill. Both men say any tax increases or cost savings should come from the health sector."Does the Virginia Notice - Demand Scheme Impermissibly Shift the Burden of Proof?
The whole crimlaw world seems to be going mad in Virginia as people have read Melendez-Diaz and reacted with either glee or panic. No one seems to realize that the entire question has already been settled and the Virginia appellate courts have already found the Virginia notice-demand scheme to satisfy the confrontation clause. Calm down. There's nothing new here. For goodness sake, go read Magruder.
The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:
The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:
The defendants do, however, claim that the statutory procedure, by its terms, shifts the burden of producing evidence and requires a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness. This argument is not cognizable under the Confrontation Clause. Instead, it raises due process concerns that are not properly before us in these appeals. Because the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial, they were never in the position of being forced, over their objection, to call a forensic analyst as a witness. In other words, no defendant said to the respective circuit court, "the forensic analyst is here to testify but the Commonwealth must first call the witness." Like the situation in Brooks, "the trial court never had occasion to address the proper order of proof."In other words, the statute might unconstitutionally burden shift, but only if the prosecutor screws up can a defendant preserve the issue for appeal. In order to give the defendant grounds for an objection, the prosecutor would have to get the demand, bring the witness in, and then refuse to call the witness, thus forcing the defendant to call the witness. I've never seen a prosecutor do that. If the defense has demanded that the expert witness be there, why wouldn't the prosecutor use her as a weapon against the defense? So, while the particular set of circumstances needed for the the objection to even be made could happen, it seems rather unlikely. No objection = no error preserved = no appeal of whether the statute unconstitutionally shifts the burden of proof to the defendant.
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