"I never met a dog that didn't beg at the table. If there is a dog that doesn't, it has had all the dog scared out of it. But a dog is not a sneak thief like a cat. It doesn't snatch and run, except if presented with an irresistible opportunity. It is a dinner companion. It is delighted that you are eating, thinks it's a jolly good idea, and wants to be sure your food is as delicious as you deserve. You are under a psychological compulsion to give it a taste, particularly when it goes into convulsions of gratitude. Dogs remember every favor you ever do for them and store those events in a memory bank titled Why My Human Is a God."
In U.S. v. Foster, the Fourth Circuit denied a petition for rehearing by a 7-7 vote on an issue involving the Armed Career Criminal Act, with Judges Motz, King, Gregory, Davis, Keenan, Wynn, and Floyd in favor of rehearing, and Chief Judge Traxler and Judges Wilkinson, Niemeyer, Shedd, Duncan, Agee, and Diaz, and which is the subject of this Howard Bashman post.
It is interesting that Judge Diaz joined with Judge Wilkinson, et al, but Judge Floyd did not.
posted by Steve at 11:01 AM
Wednesday, March 07, 2012
On picking judges for the 27th
The Roanoke Times has this article that says Senators Puckett and Edwards want to be the deciders for one of the judicial vacancies in the 27th District, if Judge Long is elevated to the Circuit Court.
In the 27th District, there has been a vacancy on the juvenile court since Judge Blankenship left the bench. I met him for the first time not too long ago, and shook his hand.
Separately, The Virginia Bar Association released this statement, urging the General Assembly to fill the 48 vacant judgeships plus the 13 additional vacancies expected next year from retirements. Two local judges whom I understand will retire next year are Judge Tate and Judge Freeman.
posted by Steve at 10:50 AM
Monday, March 05, 2012
Perhaps, the new judges for the 28th District
This schedule of interviews for judicial candidates shows Blake McKinney and Deanis Simmons as the only persons being interviewed for the General District and Juvenile and Domestic Relations District Court positions in the 28th District.
It also shows that a fellow I met on the VBA Board, Glenn Pulley, is a candidate for the 22nd Circuit - a Virginia gentleman if ever there was one and the only practicing lawyer in Danville who is a member of the American College of Trial Lawyers.
posted by Steve at 3:44 PM
On prosecutorial misconduct and the prosecutor and other lawyers
In Hash v. Johnson, Judge Turk of the W.D. Va. held that Virginia inmate Michael Hash should be released from prison and that the Virginia Supreme Court erred in its 2009 opinion rejecting his post-conviction claims for relief on account of prosecutorial misconduct - based in part on a stack of letters that a prison snitch had written to another judge of the W.D. Va., hoping to get out of his federal time for testifying against Mr. Hash.
The Commonwealth's Attorney for Culpeper was and is Gary Close, who seems to be an interesting fellow, and who graduated from U.Va.-Wise, the University of Tennessee, and the law school at William & Mary. Mr. Close was re-elected without opposition in 2011.
One of the lawyers for Hash in his original trial was named Michael Hemenway. I don't know whether it is the same guy, but there is a lawyer blogger in Charlottesville named Mike Hemenway, also an interesting fellow who gets to court on his motorcycle.
The lawyer who filed the summary judgment motion for Mr. Hash in the case before Judge Turk was Matthew Bosher of Hunton & Williams (not to be confused with the Matt Bosher who kicked a field goal and seven extra points against Virginia in 2009). The challenge of overturning a murder conviction twice affirmed by the Virginia Supreme Court can only be overcome by outstanding legal work.
The Richmond paper had this article about Judge Turk's decision.
posted by Steve at 2:09 PM
Monday, February 27, 2012
On the Second Amendment rights of persons convicted of domestic violence
In United States v. Chester, the Fourth Circuit in an opinion by Chief Judge Traxler remanded the case of a West Virginia man convicted under the federal statute, 18 U.S.C. 922(g)(9), which makes it a federal crime to possess a firearm after having been convicted of a misdemeanor offense of domestic violence, for consideration under the Supreme Court's Second Amendment decision in D.C. v. Heller.
On remand, Judge Copenhaver of the S.D. W.Va. in an opinion dated February 16 applying the intermediate level of scrutiny required by Heller that the Second Amendment did not prohibit Chester's conviction. The opinion addresses a considerable volume of empirical evidence on the question of whether the gun statute bears a reasonable nexus to the important government interest in reducing the use of firearms as a weapon in domestic violence.
posted by Steve at 4:29 PM
Wednesday, February 15, 2012
On whether a motion to remand is dispositive
In Deskins v. Consol Energy, Inc., Judge Jones sustained the Defendant's objections to the recommendations of the Magistrate Judge on whether to grant the Plaintiffs' motion to remand the case to state court. It happens sometimes, but rarely - that the District Judge and the Magistrate Judge disagree on the application of the law.
Interestingly, some district courts (but no appeals courts) have held that a remand motion is not a dispositive motion, in the sense that a Magistrate Judge has the power to decide it directly, instead of merely making a report and recommendations. See Peter J. Gallagher, IN SEARCH OF A DISPOSITIVE ANSWER ON WHETHER REMAND IS DISPOSITIVE, Seton Hall Circuit Review, Volume 5, Number 2, Spring 2009, 303. As Mr. Gallagher wrote, "Nearly every district court has treated remand as nondispositive and thus within the scope of this authority, but all four circuit courts that have confronted the issue have deemed remand dispositive and thus beyond the scope of a magistrate's authority. Although seemingly trivial, the difference is significant because district courts review magistrate judges' findings on dispositive motions under a de novo standard, while nondispositive motions receive the less stringent review only for clear error of law."
posted by Steve at 4:46 PM
In a footnote, the Court considered whether it was improper for defense counsel having won the case in the trial court to propose that the defendant would not seek its costs if the plaintiff agreed not to appeal, and concluded in the circumstances that there was nothing wrong with such an offer, even though the Court declined to award costs. I was glad to read this, having done the same thing myself a time or two.
posted by Steve at 1:43 PM
