Saturday, April 12, 2003

AG candidates pass the first post

Two and a half years before the election in 2005, Delegate Robert McDonnell from Virginia Beach is trying to set the record straight "after what critics say are some recent missteps," according to this horse-race article in the Richmond paper. One of the particulars is McDonnell's role as leader of a tax-reform committee, which in "its two years of study, the committee punted on most major tax-restructuring issues, prompting accusations that it lacked the political fortitude to make tough recommendations," according to the newspaper, which notes that McDonnell "[w]hen first elected to the House of Delegates in 1991 . . . was known principally as an anti-abortion social conservative with strong ties to television broadcaster Pat Robertson." The article notes that Steve Baril of the Williams Mullen firm in Richmond has raised more money than McDonnell. According to, of the two Republican candidates for AG in 2005, Baril has raised $75,175, while McDonnell has raised $69,865. By comparison, the successful Kilgore campaign in 2001 ultimately raised over $2 million, according to the same source.

I don't know what the issues are for the AG race in 2005, but this sounds like a horserace article to me, of the kind lamented here and here, where it is said that the difference is this: "Broadly speaking, there are two kinds of campaign stories. "Substance" stories cover policy proposals and major campaign decisions such as the selection of a running mate. "Horserace" stories cover the ebb and flow of a campaign's political fortunes, focusing on strategic concerns." Horserace stories 2.5 years before the voting are maybe not very important, unless you have a weekly office pool on which candidate will raise the most money.

Potential candidates wondering what's the point

This article in the Roanoke paper suggests that former delegate Richard Cranwell and others are pondering campaigns this fall, but "several potential Democratic candidates for the Virginia Senate who aren't likely to run unless Warner and the state Democratic party are willing to mount the kind of campaign that's likely to take the Senate back from the GOP."

Former delegate Day says Republicans think people are evil, Democrats think people are good

Barnie Day explains his own idiosyncratic view of the differences between Democrats and Republicans in this piece on

I had thought that the general difference these days was that Republicans think government is bad (except for spending projects in their home districts) while Democrats think government is good (except for spending projects in Republican districts).

Delegate Bryant on tax reform

Delegate Preston Bryant says here in the Roanoke Times that "it's up to the few, the brave, the rational to step forward and strip the varnish off our tax code and show Virginians, again, what it really is - an anachronism. It's an agrarian-based measure of wealth from early last century that's ill-fittingly applied to an information age economy. While our more than $30 billion agricultural industry is nothing to sneeze at, we must tune our system to more fully recognize - and value for tax purposes - an economy where technology R&D, financial services, and high-end manufacturing are its bigger drivers."

First amendment claim of Tennessee deputy dismissed in E.D. Tenn.

The Kingsport Times reports here on the dismissal of the First Amendment lawsuit of a Tennessee deputy sheriff who claimed he was discharged for speaking in favor of the candidacy of the incumbent sheriff's opponent.

On the Virginia side, particularly before Judge Williams of the W.D. Va. (who has ruled on the issue at least twice), and even more particularly since the Fourth Circuit's ruling in the Jenkins v. Medford, deputies with law-enforcement responsibilities are apparently fair game for political terminations. Arguably, the same outcome obtains, regardless of whether the deputy proceeds on a "freedom of speech" theory or a "freedom of association" theory.

Broadband comes to Dickenson County

At this site can be found details on the Dickenson County, Virginia Wireless Integrated Network, the fruit of Delegate Bud Phillips' labors in this past session of the legislature to pass a bill authorizing counties to operate wireless telecommunications networks by way of a new kind of service authority.

Dickenson County has a population of about 16,000 (down 7% in 2000 from 1990), including 5,300 "persons with a disability", and 753 people over the age of 25 with a college degree, according to statistics shown here. Its population is 99% white, 14.5% 65 or older, and 21.6% are persons "below poverty."

A short, unofficial history of the county appears here, and includes the fact that one proposed name that was rejected was "Stonewall County," in honor of the Confederate general from Virginia.

Double-dipping upheld for state retiree now working for town

An hearing officer for the Virginia Retirement System has ruled that a town manager can continue to receive his state pension while working for the town, as reported here.

$2 million lead paint verdict in Virginia

As described here, a Virginia jury (in Portsmouth) awarded $2 million against a landlord and in favor a young girl who was poisoned by lead paint on the rented property. The article notes that "Federal law requires that landlords disclose the presence of lead-based paint to tenants. State building codes require that the paint, outlawed in 1978, be covered up. People who remove the paint or renovate buildings where it is present are required to have special licenses from the state."

O.L. Gilbert of Norfolk and others represented the plaintiff, Joseph M. Young represented the defendants.

I guess this means Scalia is out as Iraqi war crimes tribunal supremo

Chief Justice Rehnquist gave a speech in Charlottesville on the "extra-judicial" activities of Supreme Court justices in the past, as described here, noting "it's questionable whether they could undertake similar outside tasks today."

The perils of golf as a means of "community development"

A golf course that was too difficult, litigation over public financing, and tough times in general complicate the story of a planned golf community in Orange County, as described here.

Stuck in the briar patch - food vendor struggles through zoning laws of Virginia county

This story from the Virginia Gazette describes a food vendor's efforts to get zoning approval to bring his successful business into James City County.

Eastern coal vs. western coal - eastern loses the round

This article describes unsuccessful efforts by Congressman Rahal from West Virginia to strike a blow for eastern coal.

Fourth Circuit opines on the use of summary charts in closing argument

A panel of the Fourth Circuit including Judge Jones of the W.D. Va. affirmed the conviction of defendants in this opinion, despite arguments including error in allowing the prosecutors use of a chart describing the evidence during closing argument.

The opinion says this:

"The use of charts, placards, diagrams, and other visual aids in argument to the jury is generally permissible within the discretion of the court. See United States v. Crockett, 49 F.3d 1357, 1360-61 (8th Cir. 1995). They should not ordinarily be used without prior notice to opposing counsel, so that any objections can be determined before the visual aid is displayed to the jury. See Bower v. O’Hara, 759 F.2d 1117, 1127 (3d Cir. 1985). In the present case, the prosecutor should have advised defense counsel that she intended to use the chart in her closing. Nevertheless, the display of the chart did not constitute plain error, if error at all. The trial judge instructed the jury generally that it was their recollection of the evidence, and not that of the attorneys, that controlled (J.A. 798) and further specifically advised the jury, when it raised a question about the chart, that it was not evidence. There is no indication that the defendants were unfairly prejudiced by the use of the chart in the prosecutor’s argument and we do not find in its use a ground for reversal."

Former Governor Holton on Republicans and taxes

From a speech delivered in the Dome Room of the Rotunda at the University of Virginia in 1999, transcribed here:

"It is my considered judgment too, based on the progress I have seen in Virginia since World War II, that the leadership of my Party today is, at both federal and state levels, overly obsessed to cut taxes. Virginia is not a high tax state. The benefits which tax increases have brought to Virginia since 1965 are enormous! Our citizens have recognized and appreciate these benefits. Mills Godwin isn't remembered for passing the sales tax; he is remembered - almost revered - for creating the community college system and enhancing creation of our world class system of higher education, neither of which could have been done without that tax. Jerry Baliles isn't remembered (by anyone except the editors of Richmond newspapers) for increasing taxes, but rather for meeting some of the transportation needs which have helped create the jobs which have resulted from our vibrant high tech economy. And I'll bet not 3 of 10 people in this room could tell you what tax I increased, but they all appreciate the swimable rivers throughout Virginia which my 1% increase in the state income tax paid for. Our citizens want the best and when they understand the opportunity, they're willing to pay for it! Taxes are the price we pay for civilization, and Virginia's modern tax increases have created a civilization that all Virginians are properly proud of."

Friday, April 11, 2003

When Harry Truman campaigned in SW Virginia

From the Harry Truman presidential library, on this page, an excerpt from an interview with a Truman associate on his appearance to politic in the Ninth District:

MORISON: Dave Stowe got in touch with me and said, "I need you and the President has asked that you come and join us. We will finish up down in North Carolina for Luther Hodges and then, at your request, we have agreed to speak for Pat Jennings (who was running for Congress and heavy Republican opposition for re-election from the ninth district of Virginia), and will you set things up?"

And I told him that I would. I had the inn there at Abingdon, Virginia, which used to be a "female academy" -- a girl's school, which now is a fine old hotel serving good food. I got the best suite of rooms there and I had had my kinfolk and friends all around the area of east Tennessee, southwest Virginia, and western North Carolina and even parts of Kentucky, to get the word out to be on hand when his plane came in at the Tri-City Airport near Bristol. And I prepared an address for him when he was greeted at the airport. I knew these people would want something and he would want to say something to them. And I reminded him of the great political romance o£ past years in politics in Tennessee which was called the "war of the roses."

A very famous and brilliant theologian by the name o£ Taylor, a graduate of Princeton, came to east Tennessee as a minister and helped to found a college near Johnson City. His farm was called Happy Valley and it was on a river, a branch of the Watauga River and he had two sons. The oldest one was named Alfred Taylor, the younger one was named Robert Love Taylor.

Alfred, following his father, was a brilliant student, he was sent to Princeton. Bob was jocular, full of fun, everything else, but also had a penchant for oratory but was not a scholar. So, in Tennessee for the first time, they had an open invitation for all candidates of either party to address a great rally of both parties. You see, it wasn't long after the War Between the States. And after that there would be the proper conventions of both political parties.

Well, Alf was a favorite son of his father, and being a very erudite man, he wrote a speech for Alf to be delivered as the Republican nominee.

So, Alf asked his brother, Bob, to go out on the river, under a sycamore and having memorized the speech to recite it back and forth to his brother and let him correct him on this speech. Well, they spent several days doing that. Bob had never even made any indication that he had any interest in Nashville convention, but on the day and the occasion of the event in Nashville, Bob showed up as one of the candidates for the Democratic nomination and spoke before his brother Alf, and gave Alf's speech!

Well, this...

HESS: And stole his speech.

MORISON: Yes. And it followed that thereafter they turned out to be the nominees of the two parties, and they traveled together in a buggy; they slept together in the same hotel and oftentimes the same bed, and Bob won! And this was called the "war of the roses." It was a great romance.

And so I put that in the speech. I have it somewhere. So President Truman said in his talk -- remembering those early days in east Tennessee, and remembering that this affected not only Tennessee but other adjacent states who knew of it, "I'm glad to be back on the ground where the famous war of the roses of the famous Taylor brothers occurred."

Well, that just set them afire, that he would remember that, you see, and my God, the speech went over big;

We then drove to Abingdon to spend the night, and the next morning at "milking time," two old nieces of Bob and Alf Taylor way up in years, had got their best Sunday dresses, had gotten somebody to drive them to Abingdon, Virginia to be there at the Inn and they had to see the President to thank him.

And I said, "Mr. President," I said, "these are the relatives of the Taylor boys," and I said, "They've come all the way up here, they are up in years, I think you ought to see them."

He said, "Of course I will." So he brought them right into his suite and sat with them. I had boned him up on every detail and he recalled, from memory, the story of how Bob Taylor pardoned from the Brush Mountain Penitentiary this Negro farm worker for a crime, because he'd stolen a hog. And ended up by saying, "And I will let you off for Christmas, and I know you're going to have good ham hocks for Christmas dinner."

Well, he recounted that, and these old ladies were just in seventh heaven. And it was in every editorial page of every newspaper in the area, that here, Truman, the great historian who forgot nothing, had remembered something that the younger generation didn't know -- about the "war of the roses," and then they began to republish this. So he was a great hit.

And then from there I took him the next day -- Pat Jennings the Congressman . . . was there, Sidney Kellum, the national committeeman from Virginia came down from Norfolk, and the usual presidential press corps from Washington. He went to bed early that night, he took a couple of drinks and went to bed, but we then drove the next morning up to what had been Washington County's poorhouse in the 1700s, and Pat Jennings had had it refurbished to make it into a place for the AAA you know, meetings -- the young people's agricultural thing, what is it?

HESS: 4-H.

MORISON: 4-H Club, and there in the field he made a rip-roaring speech that I had written for him about the fighting ninth district, the heavy hand of [Campbell] Bascom Slemp, who had ruled by corruption the party in the ninth district of good Scotch-Irish people, and who was a handmaiden of Calvin Coolidge and that the mountain district had been emancipated by able and bold men including George Perry, who became Governor of the state, by John Flannigan the fiery orator who had won it, again from the Republicans, and by this young man who came out of World War II with decorations who was the sheriff of Smyth County, Virginia, whose record in Congress was already being noted. And Hell's bells, they just elected Pat Jennings hand over fist, it turned the tide, and it was a great speech. The President concluded by stating that the old poorhouse was a product of Republican rule but under Democratic Congressmen it was now a flourishing AAA center for young farmers.

and if you don't like this lot, I've got a bridge in Brooklyn . . .

Atmos Energy, the natural gas supplier in Johnson City, offered "potentially contaminated" land to the city in lieu of paying $800,000+ in unpaid franchise fees, according to this report.

Virginia court of appeals knows what's more manifestly unjust than adultery

In this opinion, the court of appeals concluded that a wife's claim for spousal support fell under the "manifest injustice" exception to the usual rule that adultery bars support. The opinion notes the following facts about the husband and the marriage:

"Viewed in the light most favorable to Lynn, however, the evidence also portrayed John as a profane and verbally abusive man. John frequented "strip joints and topless bars" and told Lynn about, among other things, the "oil wrestlers" that performed at these places. He would indiscriminately engage in these conversations in the presence of his children and Lynn's family, at times even "boasting or bragging about those places." "It was not an infrequent topic of conversation." John went to these places, he explained to one witness, "because they have the best p----." John "frequently talked crudely about sexual type things." He carried on with this practice "[p]retty much the same the whole 20 years."

John also directed his profanity toward his children. In one instance, John's son Michael had accidentally kicked his father's head while both were lying on a bed watching television. Though realizing it was simply an accident, John "started yelling . . . God damn you, Michael. Why in the f--- did you kick me in the face. . . . Why did you f---ing have to kick me in the face?" In response, Michael ran out of the house. On another occasion, John was having a "food fight" with his twelve-year-old daughter when John accidentally got hit in the eye. He "started screaming . . . God damn you. God damn, you hit me in the eye." His daughter "just sat there and started crying," not at all understanding her father's outburst. Other times John would come home from work angry and declare, in ear-shot of his children, that "one of the girls at the office" was a "bitch or a c---." His use of vulgarity, in the presence of his family and others, "was quite frequent."

Several witnesses who knew John and Lynn over the years testified that they had never once seen John show any affection or any kindness toward Lynn. Over the course of the marriage, John chronically complained (both to Lynn and others) about Lynn's weight, appearance, housekeeping, and spending habits. John referred to Lynn as "Witch." He was a "heavy drinker," sometimes starting as early as "10:00 in the morning." Because John maintained strict control over the financial accounts, Lynn was not "privy to the family finances at any time during the marriage." John particularly disliked Lynn's family and threatened on one occasion to move her out of town if she did not "stop speaking with her parents."

Despite these problems, John and Lynn enjoyed considerable financial security. John has a college degree, a stable and long-term career in a family trucking business, an annual salary exceeding $250,000, and additional income from corporate dividends and family related gifts. John's interests in stocks, real estate, and tangible assets exceeded $6 million. In contrast, Lynn has not held a full time job since the early years of her marriage, choosing instead to stay at home to raise their three children. She has no college degree, giving her a future earning capacity far below her husband's. At the time of trial, Lynn was earning $10.00 an hour as a receptionist."

Counselor, advocate, whistleblower

This article about the ABA president's opposition to a proposed SEC role that could require lawyers to blow the whistle on their clients note that Virginia is one of only four states that already requires lawyers to be whistleblowers, in some circumstances.

MEDex labs file for bankruptcy

The local pathologist firm MEDex have filed for bankruptcy protection, after three years of aggressive expansion have resulted in increasing financial losses. According to this report, "the reorganized company will focus on clients in the Tri-Cities and southwest Virginia." The article notes that the debtor is continuing operations as the result of emergency loans from Wellmont:

"The company, which runs a chain of pathology labs used by physicians and hospitals, has been granted an emergency infusion of $1.5 million in financing by U.S. Bankruptcy Court in Knoxville after asking for $2.5 million in loans to stay open until a reorganization plan is in place. The loans are through Wellmont Health Management LLC, a subsidiary of Wellmont Health Systems, one of MEDex's largest clients and its third largest creditor. Wellmont Health Systems is a Tri-Cities hospital company."

I wonder what kind of records (and other irreplaceable evidence) a pathology lab keeps.

Congressmen riled over chaos caused by Tractor Man

This Washington Times story describes the outcry of Congressmen over the greater than usual gridlock in the District of Columbia resulting from "Tractor Man's" occupation of the D.C. mall on a tractor. One congressman said "if a fender bender ... or a guy riding a tractor having a bad day can bring us to a stop, imagine what a terrorist can do."

Still unknown to me is the route Tractor Man took to get into the City - I can't imagine a tractor getting far on any of the main roads without being apprehended before it reached the Mall. (I never saw a tractor on the Roosevelt Bridge during my time in the City.) Also, around here, seeing a tobacco farmer on a tractor is not the worst thing, although they are becoming increasingly rare as tobacco subsidies wane.

Thursday, April 10, 2003

New immunity in Virginia for use of defibrillators

According to this report, Virginia has joined the states conferring immunity in certain circumstances to encourage the use of defibrillators to save lives.

New Virginia laws on doctor discipline analyzed

AMNews has this analysis of the new Virginia statutes dealing with professional discipline of physicians in Virginia. Doctor groups accepted a broader range of disciplinary actions, in return for a provision in the legislation that "calls for a 'confidential consent agreement' between the board and doctor instead of public discipline in cases involving minor misconduct with little or no injury to a patient or the public."

I'm not sure how this confidential consent agreement concept fits with the website reporting system now in place.

Justice Kennedy tells the truth on Congress and the Supreme Court in speech at Charlottesville

As reported here, Supreme Court Justice Kennedy gave a speech at the University of Virginia and said that the politicians were too political and that the Supreme Court itself is not too friendly to counsel in oral argument: "[We] interrupt and sometimes behave rather badly," Kennedy said. "We're what's called a hot bench in the trade."

Regarding the judicial confirmation process, "What's going on now, there's a lot of fingerpointing, 'Oh, the Democrats are holding this up,"' Kennedy said. "Both parties have been guilty of this, there's some payback going on here, but I think it's time for them to come together."

Will no one rid me of this troublesome appraisal? The power of e-mail of Richmond's property assessor

A Richmond commentator has some fun here with the tactics of the City of Richmond's property assessor in having his own property assessment dropped. The opinion piece notes that "City Assessor James R. Vinson, while maintaining he's done nothing any homeowner could not do, was indicted this week on charges of malfeasance and misfeasance and assorted other misdemeanors."

This article describes Mr. Vinson's court appearance earlier this week, to begin the process of answering to 4 misdemeanor charges related to the reassessment of his home by more than $40,000.

If it was good enough for Bronco Nagurski, why should Tennesseans have more?

The Tennessee legislature is thinking about repealing its helmet law for motorcycle riders in the Volunteer state, as reported here (registration may be required).

As some of the legislators more or less stated, freedom from wearing a helmet could be OK so long as the state is likewise free of any obligation to pay when motorcyclists suffer irreversible injuries requiring long-term care for which they are unable to pay. (What was actually said was this: "If they calculate any possible risk with people getting injured who may wind up on TennCare, then it will be a tough bill to pass.")

On the TN side, Greeneville attorney Ronnie Greer nominated for Judge Hull's spot on E.D. Tenn.

As reported here and here and here, Greene County Republican chairman Ronnie Greer, a former state senator, has been nominated by President Bush to fill the federal judge vacancy created by the senior status of Judge Thomas Hull.

Extremism in the defense of liberty no vice in Virginia

The Daily Progress speculates here that the upcoming elections will move the Senate farther "to the right," as Republican moderates are retiring and their successors are likely to be more "true blue."

Dismissal of criminal charges against school administrators for failure to report suspected abuse in Dickenson County

According to this report, criminal charges brought almost a year ago by parents in Dickenson County have been dismissed as to the county's school superintendent and an elementary school principal, who are still among the defendants in a recently filed civil action in federal court.

High Knob committee stymied by Scott County's opposition to federal recreation designation

Congressman Boucher's committee to evaluate whether the High Knob area in Wise and Scott counties voted itself out of existence, concluding that Scott County's opposition to the project made any further proceedings pointless, as reported here. One of the committee members was Clintwood attorney Gerald Gray.

Mr. Gray (and his wife, I believe) are involved with one of the best-acronymed organizations ever, Wild Animals Rivers and Trees, a/k/a WARTs.

Released inmate violates terms of release by corresponding about Nintendo with old cellmates

As described here, a Bluefield man faces detention for writing to his old friends in the penitentiary about how to beat the video game that had them confounded.

S.C. firefighters lose on-call hours as overtime claim, S.C. employee of securities firm loses effort to overturn arbitration award

In this unpublished opinion, the Fourth Circuit earlier this week upheld summary judgment for the city in an overtime case brought by firefighters claiming that their "on-call" time counted as hours worked.

In this unpublished opinion, the Fourth Circuit upheld the arbitration award in the case of a former officer of an investment company, who was subject to a judgment imposed against him by a panel of arbitrators acting on the company's counterclaim under his employment agreement.

One second chance is the limit on Connecticut couple's failures to effect service in Virginia "supermax" prison death case

In this opinion, Judge Jones dismissed with prejudice the refiled suit of the representatives of the estate of a Connecticut inmate who died after he was transferred to the Wallens Ridge penitentiary in Virginia.

The Court notes the troubled history of the Connecticut inmates in Southwest Virginia:

"[The decedent] was one of about 500 Connecticut prisoners transferred to Wallens Ridge, a newly-built “supermax” prison facility, under a contract between the Virginia and Connecticut state governments in order to relieve prison crowding in Connecticut. The transfer was controversial in Connecticut, particularly after the death of David and another Connecticut inmate at Wallens Ridge. See Young v. New Haven Advocate, 315 F.3d 256, 259 (4th Cir. 2002) (regarding Virginia prison warden’s libel suit against Connecticut newspapers). David Tracy’s estate filed suit in federal court in Connecticut against Connecticut prison officials over David’s death at Wallens Ridge and the action was settled for $750,000 about the time the present suit was filed. See Gulash v. Armstrong, No. 3:01CV362(PCD) (D. Conn. May 6, 2002); Laurence Hammack, Connecticut Settles Lawsuits in Supermax Deaths, Roanoke Times & World News, Mar. 15, 2002, at A1."

Svennson strikes out on summary judgment effort in W.D. Va.

Judge Michael has issued this opinion denying summary judgment in a subrogation case dealing with a fire at a floral business.

I'm assuming that Ernie the Attorney (a/k/a Ernest Svenson) is no relation to the defendant, Ludwig Svennson, Inc.

From the TN side: Sixth Circuit affirms dismissal of claim that Blue Cross subscribers paid more because of tobacco

Earlier week, the Sixth Circuit affirmed in this opinion the dismissal by Judge Jarvis of the E.D. Tenn. of a lawsuit brought on behalf of Blue Cross/Blue Shield subscribers claiming that tobacco companies were liable to them for increased health insurance premiums caused by the health problems of tobacco users in the insurance pool.

Gordon Ball of Knoxville argued for the plaintiffs. Murray Garnick of Arnold and Porter argued for the defendant tobacco companies, with a host of the usual (high-powered) suspects on brief, including lawyers from Baker Donelson, Miller & Martin, Hodges Doughty & Carson, King & Spalding, and Hunton & Williams (among others).

Ford plant in Virginia "embroiled in a nasty, racially charged labor dispute"

As described here, labor relations are volatile at a Ford plant in Norfolk, where the UAW local president was fired for threatening physical injury to a plant supervisor, and the local's internal elections have been the subject of DOL proceedings.

Suspended Virginia lawyer on the run from theft charges

The Washington Post has this account of a Virginia lawyer who lost his license and was last seen in Las Vegas, and is now facing charges of stealing from his trust account. The article quotes Barbara Williams, the state bar's counsel, who "said lawyers have disappeared previously with large sums of money" and that '[t]hey usually get caught.'"

Town attorney's representation of drug offenders arrested by town draws criticism

On the Eastern Shore, the town attorney for Chincoteague has decided to stop representing criminal defendants arrested by the town, in response to local criticism, as reported here.

From the materials on the Local Government Attorneys of Virginia website, here is some analysis of the ethical requirements for lawyers who are sometimes prosecutors and sometimes not.

Roanoke man gets reversal of fortune on impeachment evidence, including application to Victim's Compensation fund

The Virginia Court of Appeals has reversed the conviction of a Roanoke man for malicious wounding, because the trial court erroneously excluded evidence of the victim's statements about the incident, including information he supplied on a written application for money from the Commonwealth's fund to compensate crime victims. The defendant faces re-trial, as reported here.

Get your discovery here - Roanoke lawyers call prosecution witnesses at preliminary hearing

In what was described here as an "unusual" tactic, defense lawyers in a Roanoke murder case called as their own witnesses at a preliminary hearing in General District Court individuals who gave incriminating testimony against their client. Certainly, it is not unusual to try to wring from the preliminary hearing every bit of information possible, which was the motivation of counsel in this case, who said "I don't want any surprises at trial." Harvey Lutins and others represent the defendant.

South Carolina seeks to catch up in number of law schools (and lawyers)

This article describes a proposal for a new law school in Charleston, and notes that while "Florida has 307 lawyers per 100,000 population; Georgia, 270; Virginia, 267; Alabama, 254; North Carolina, 193;" South Carolina has only 185 lawyers per 100,000 people. The article indicates that William Wilkins, chief judge of the U.S. Court of Appeals for the Fourth Circuit, favors the proposal.

OxyContin suits in W.D. Va. stayed pending resolution of MDL process

According to this report, the two OxyContin cases pending before Judge Jones have been stayed while the Judicial Panel on Multi-District Litigation considers whether to consolidate in one place OxyContin cases now pending in federal courts around the country.

Earlier this week, Virginia received a federal grant for a prescription drug database to monitor OxyContin and other Schedule II drugs, as reported here.

FERC approves Greenbrier pipeline

"The federal government on Wednesday approved a natural gas pipeline that will affect more than 520 acres in the New River Valley," according to this report. The Roanoke Times article says a pipeline opponent claimed "that Dominion never demonstrated that the public benefit of the project outweighs the permanent damage it will do to the environment" and that "FERC gave short shrift to a proposal that Dominion tap into Duke's Patriot line to avoid two utility scars across the landscape."

Southwest Virginia at one end of cigarette smuggling ring now under indictment

Virginia's low taxes on cigarettes created the incentive for a group now facing federal charges to smuggle millions of cigarettes to California, according to this report.

Baptists alleged to have applied un-Christian tactics in Middleburg church dispute

A dispute between factions of a Baptist church in Northern Virginia has resulted in litigation, according to this report, which describes the tactics of the defendants to prevent the installation of a new minister, including changing all the locks and padlocking the church doors on the day he was to be installed.

Wednesday, April 09, 2003

Execution of Western Virginia man for murder of family in Vinton

Tonight Earl Bramblett was executed for multiple murders, as reported here. Bramblett's choice of execution over lethal injection has drawn attention to the Virginia law allowing this choice. The AP account notes that "Bramblett was only the third Virginia inmate to die in the electric chair since condemned prisoners were given the option of electrocution or lethal injection in 1995." Earlier, as reported here, Virginia's governor and the U.S. Supreme Court rejected last minute efforts to avoid Bramblett's death.

Virginia SCC to other states - leave our cheap power alone

This Associated Press article elaborates on the rationale for Virginia's determination to prevent its power generators from joining a regional power grid. An SCC spokeman "said the Virginia commission wants to make sure participation doesn't allow other states to get electricity from Virginia power plants while Virginia customers run short, and that the organization's pricing practices don't raise rates. 'Virginia is traditionally a state with rates at or below the national average,' he added. 'Do we end up with a blended rate, rather than the rest of the market moving to the Virginia rate?'" A spokesman for one of the Virginia companies affected, AEP, denies that joining the regional system would harm Virginia consumers.

The other Virginia generator, Dominion Power, made news this week by appointing Susan Allen, the wife of Senator George Allen, to its board of directors, as reported here.

Reforming "taxes" on telecommunications in Virginia

At the VATOA conference in Williamsburg, one of the speakers was Delegate Preston Bryant, who addressed on-going efforts to develop plans for "reforming taxes" on telecommunications in the Commonwealth. Industry speakers on the same topic were Richard Cornwell of Verizon and attorney Trey Adams of Troutman Sanders in Richmond.

The topic was a new one to me, reconciling the administrative costs for companies offering services in multiple jurisdictions without changing the revenue stream to localities. Evidently, efforts at such reform have been attempted in other states, including Florida, but no one at the conference claimed that Florida provided a model that Virginia could or should follow.

Delegate Bryant's committee is an off-shoot of the legislative tax reform committee which has been working on the subject for some years. This resolution authorized continuation of the study, which is the "Joint Subcommittee to Study the State and Local Taxation of the Entire Telecommunications Industry and Its Customers within the Commonwealth."

Supreme Court upholds Virginia cross-burning statute, with conditions

The United States Supreme Court upheld Virginia's criminalization of cross-burning, in a complex decision which involves six different opinions.

The statute, Va. Code § 18.2-423, provides as follows:

"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Class 6 felonies in Virginia are punishable by "a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both."

The Court's decision reverses the Virginia Supreme Court, which in this 4-3 decision held the statute unconstitutional. The Supreme Court's decision somewhat vindicates the dissenters on the Virginia Supreme Court, who were the new Chief Justice Hassell, the old Chief Justice Carrico, and Justice Koontz. The majority opinion was written by Justice Lemons. Earlier, the Virginia Court of Appeals had affirmed the defendants' convictions.

The U.S. Supreme Court's decision did not leave the statute untouched, as the "prima facie" language, holding that it was an issue of proof whether the defendant intended by burning the cross to intimidate anyone. In doing so, the plurality relied in part on language in the Virginia Model Jury Instructions. Justice Scalia dissented on this point, noting that the VMJI do not have the force of law. Justice Thomas dissented on this point, writing that he would uphold the statute in its entirety.

The VMJI certainly do not have the force of law, and are constantly evolving. I had a civil case years ago involving an obscure point under the wrongful death statute, and found what I believed was an error in comments to the model jury instructions. The powers-that-be agreed and the commentary was removed. (At the hearing I explained all this to the circuit court judge, who reluctantly ruled in my favor, while criticizing the law.)

This article, titled "Soon to Be a Major New York Times Correction: A New York Times editorial gets a Supreme Court decision exactly wrong," appearing in the Weekly Standard, says the New York Times (and I?) are wrong about whether the statute was upheld. Reading it over, I don't think the Weekly Standard got it more than one-third right, either - appellees Elliott and O'Mara, winners before the Virginia Supreme Court, lost in the U.S. Supreme Court, and only as to appellee Black (whose trial was tainted by the "prima facie" language) did the U.S. Supreme Court agree that his conviction must be overturned.

A newspaper's website in India declares of the case that "‘Burning Crosses’ Splits US Jury."

On the holding regarding intent to intimidate, a feminist group concludes that "Cross Burning Decision Could 'Doom' Anti-Abortion Extremists' Case," as reported here.

Virginia Tech reverses course on race and sexual orientation, waits Supreme Court decision

On Sunday, the Virginia Tech Board of Visitors voted to reverse its recent policy changes, bringing back race as admissions factor and restoring protections against discrimination based on sexual orientation, by a 8-5 vote as reported here. According to the Collegiate Times, The board members who voted to rescind the earlier action were: Bruce Smith of Virginia Beach, Thomas Robertson of Roanoke, John Lawson of Newport News, Ben Davenport of Chatham, Philip Thompson of Richfield, Conn., T. Rodman Layman of Pulaski, Jacob Lutz of Richmond, and Beverly Sgro of Asheville, N.C., while those who voted against rescinding the March 10 action were: Rector John Rocovich of Roanoke, Vice Rector William Latham of Manassas, Donald Johnson of Salem, Ronald Petera of Toano, and Mitchell Carr of Waynesboro.

The reversals were the result of the first non-unanimous vote in recent memory, according to this report in the Roanoke Times, which notes that some on the Board favored no action if a unanimity could not be obtained.

Affirmative action will remain an issue at Tech, according to this report in the Washington Post, which says BOV chairman and Roanoke attorney John Rocovich has vowed race-neutral policies in areas other than admissions.

One basis for the Attorney General Jerry Kilgore's position that Tech could not consider race in admissions was a 2001 agreement between the Commonwealth and the Office of Civil Rights of the U.S. Department of Education, which declared that Virginia colleges and universities were integrated, as reported in this Roanoke Times article. "In the settlement, the department acknowledged that a three-year review of Virginia's system found 'no lingering vestiges of historical discrimination,'" according to an AP story published here.


I'm sure there are literally "persons" (as in more than one) out there waiting for this blog to be updated, now possible that I am back from Williamsburg. I'll get to it shortly.