Thursday, November 26, 2015

Two opinions from Judge Chafin, wherein the Commonwealth lost

Trial court erred in finding evidence was sufficient to prove appellant was aware of the drugs found under the seat of the vehicle and no considerable evidence beyond appellant’s mere proximity to the drugs and his occupancy of the vehicle linked him to the contraband

Evidence was insufficient to support convictions of grand larceny and larceny with intent to sell where evidence proved appellant was a co-owner of the personal property taken from the house

Wednesday, November 04, 2015

The new venue statute

In 2015, the General Assembly amended Va. Code 19.2-244, to add a new paragraph B, which provides:

B. If an offense has been committed within the Commonwealth and it cannot readily be determined within which county or city the offense was committed, venue for the prosecution of the offense may be had in the county or city (i) in which the defendant resides; (ii) if the defendant is not a resident of the Commonwealth, in which the defendant is apprehended; or (iii) if the defendant is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.

The primary sponsor of the legislation, Acts 2015, c. 632, was Rob Bell. This is a pretty big change in Virginia law, that eliminates a problem that sometimes occurs in a case where there is no way to know where the alleged crime was committed. The language evidently was taken from similar statutes in other statutes, such as O.R.S. 131.325 in Oregon and Tex Code Crim. Proc. article 13.19. One might expect that cases from those states will be cited in connection with the application of the new Virginia law. It is a bit of a paradox for the Commonwealth to be required to prove that something "cannot readily be determined," but there are evidently many such cases, where the Commonwealth or the victim has reason to know that the crime took place in Virginia but not where it happened in relation to the boundaries of the cities and counties.

In some of the other states, the constitutionality of these statutes has been challenged. There is a "vicinage" requirement in the Virginia Constitution, Art. I, section 8, but surely a prosecution where the defendant resides satisfies that requirement.

New Commonwealth's attorneys and others in Southwest Virginia

Evidently, we will have new Commonwealth's Attorneys in Lee County, Wise County, Dickenson County, and Washington County, and a somewhat less new one elected to an open seat in Tazewell County. Incumbents were re-elected in Scott County, Buchanan County, Carroll County, Grayson County, Wythe County, and Smyth County - and in Russell County, where former blogger Brian Patton was unopposed. My fellow Legal Aid board member Herb Clay came in third in his run for Town Council, Rob Hines got in for School Board in Lee County.

Tuesday, September 29, 2015

On Bristol's Judge Flannagan

Yesterday was the portrait hanging in the Bristol Circuit Court for Judge Charles B. Flannagan. The speakers included Judges Smith, Lowe, and Kirksey, among others, and every word they said was true, or close enough.

When it came time for him to speak, Judge Flannagan took the opportunity to point out the other six portraits in the courtroom. Three of those judges have articles on Wikipedia: William Rhea, Joseph Kelly, and Floyd Roberts. Each of the three went on to "higher" office - Rhea was a controversial selection to the State Corporation Commission, Kelly was twice named to the Virginia Supreme Court, and Roberts was briefly a judge of the United States District Court for the Western District of Virginia, a recess appointee denied confirmation by the Senate. The other three are Judges Cantwell, Davis, and Bell, who were before my time but well-known to Judge Flannagan. Judge Bell was a college classmate of Judge Flannagan and was in the courtroom yesterday.

On the way out, I caught up with Judge Kirksey and we told each other a story, standing in the street. My story was about how I asked the judge for a letter in support of my application to join the bar in Tennessee, and told him that I realized in making this request that he might tell the Tennessee authorities all that he knew about me. Sometime later, he sent me a copy of what he wrote to Tennessee, with a cover letter to me that he hoped I did not find his reference letter to be "too honest." Judge Kirksey told me that when he put in for the judgeship, Judge Flannagan had disclosed that he had once been cited for fishing without a license (on a church trip), and the committee picked up on this, as in he must be a pretty good guy if that's the only thing he ever did wrong. Judge Flannagan is that good and you can't be too honest telling stories about him.

Monday, September 14, 2015

On the federal judiciary

Back in the spring, I did a presentation to a high school class, and while I was there I noticed that someone had misspelled the names of three of the nine Justices of the United States Supreme Court. This was irritating to me, and so I pointed it out to the teacher, who was irritated by my pointing it out. That same day I tried to explain to a Republican blogger and activist about President Bush 43 and how I thought he had done poorly in getting vacancies filled on the Fourth Circuit, and what difference this would make for the next 25 years, and she had no idea what I was talking about. Somebody will be picking more federal judges after 2016, but I guess fewer people pay attention to such things than I would have realized, if civics teachers and party regulars can't figure it out.

The end of the Friday morning opinions

I read today that the Virginia Supreme Court has issued this statement:

"Effective immediately, the Supreme Court of Virginia will no longer hold opinions for release during a session of Court following oral argument. Instead, opinions will be released when deemed ready by the Justices and will typically be issued and posted on the Court's website on a Thursday."

My reaction was that it seemed like an especially civilized practice to have opinions issue predictably on Friday mornings of the argument weeks, but to look at opinions mostly on Thursdays I suppose is no different than looking for Court of Appeals opinions on Tuesdays.

Thursday, April 30, 2015

Social media protection for Virginia employees

The General Assembly passed and Governor McAuliffe signed legislation with these provisions:

"An employer shall not require a current or prospective employee to:
1. Disclose the username and password to the current or prospective employee's social media account; or
2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee's social media account. . . .

If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee's social media account. . . .

 An employer shall not:
1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or
2. Fail or refuse to hire a prospective employee for exercising his rights under this section."

The statute defines "social media account" as "a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations." A "social media account" does not include "an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer's email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks."

The term "employer" is defined to include "(i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer."

Tuesday, April 14, 2015

More on Daubert

In Padula-Wilson v. Wilson, the Court of Appeals in an unpublished opinion by Judge Decker decided the appeal of a custody case between two lawyers.

Among other things, the Court held that the trial court erred by its reliance on the opinions of a non-testifying expert that were cited by a testifying expert, and by its explicit reliance on Daubert as the standard for the admissibility of expert testimony. Related to Daubert, the opinion cites Justice Kelsey's article, Virginia’s Answer to Daubert’s Question Behind the Question, 90 Judicature 68 (2006).

I don't recall another case that has made the point any more explicitly, that not only is Daubert not the law of Virginia, but also its use may be reversible error in Virginia state court, and was reversible error in that case.

Friday, March 27, 2015

On the BVU ex-employee

I read online that a fellow who used to work for Bristol Virginia Utilities has entered a guilty plea to federal charges involving money. That guy was a good friend of mine back when I was helping out as their junior varsity counsel and the fiber optic network was still in the works. I went with his group to meetings related to municipal broadband in Georgia, Maryland, and Charlottesville. He might have been with us when we went up to hear the argument in the Missouri preemption case before the United States Supreme Court. I sat next to him at most of the board meetings that I attended. As with a few others I have known who broke bad but were good to me, he was wrong to get into such a mess and it is upsetting that he must have caused a terrible hardship to my other friends who worked there, yet if we ever meet again he should not be surprised if I shake his hand and ask him if he has time to sit down and tell a few stories.

At my Grandma Minor's funeral, the story was told about how she would go into the jail and pray with the ladies there and one day she came across a young woman who had been in her group of Baptist girls at the church. 

"It could have been," the minister said, "an awkward moment. But Ms. Minor didn't hesitate. She lifted her up! She told her it was good to see her, and they had a fine time together."

On a good day, I follow her example.