Saturday, August 14, 2004

Accused robber pleads guilty, committed crime while dressed as Osama bin Laden with t-shirt as turban

The Lynchburg paper reports here ("Osama lookalike enters guilty plea," 8/14/04) on the guilty plea in the case of a man accused of dressing up like Osama bin Laden then robing a hotel.

The article says in part:

"Although significantly shorter, Cooke has a long, black beard and a complexion comparable to bin Laden’s. When he was arrested in Pennsylvania, Cooke told the trooper that he put a white T-shirt on his head before robbing the Lynchburg hotel.

Bennett said Cooke thought the T-shirt would appear to be a white turban, and the clerks would think he looked like the wanted terrorist and be scared into giving him money.

Bennett’s account drew several chuckles from people in the court’s gallery.

Cooke got $140 from the cash register and $265 from the safe, Bennett said.

Although he didn’t have a gun, Cooke held his finger against a clerk’s back and pretended it was a weapon."

Roanoke lawyer dies of ALS

The Roanoke paper has this article on the life and time of a lawyer I never met but should have, Mike Aheron of the firm that was Osterhoudt, Ferguson, Natt, Aheron & Agee.

In particular, I liked this sentence: "Mike was at home and most comfortable on his tractor at his farm, at a Virginia Tech football game, at a hockey game, in a courtroom, but most importantly with his family and friends."

Virginia circuit court judge upholds Virginia's anti-spam law

The AP reports here that the Virginia attorney general's office has announced a ruling by the Circuit Court in Loudoun County, affirming the constitutionality of Virginia's anti-spam statute. Loudoun County is one of the places where AOL is located in Virginia. Earlier, as reported here, the same judge ruled that the fact that AOL has contributed to the campaigns of Attorney General Kilgore does not create a conflict that would bar his office from prosecuting spam cases involving the use of AOL.

W. used to ruck and maul

This post from has a fun photo of George W. Bush playing rugby at Yale. In the photo, he appears to be grabbing an opposing ball carrier by the head and punching him in the face.

The Yale photo fits better with my understanding of rugby than does this photo of President Bush playing tennis with his dog in the woods fit with my understanding of tennis.

(Tennis with a dog in the woods seems more like Calvinball without the masks.)

Federal judge to lawyers - shape up

Via this post from the Legal Reader, has this article about a Texas federal judge blasting the lawyers for going over the top with their motions. The article cites the following as the text of the Court's order:


Be it remembered on the 21st day of July 2004 and the Court took time to make its daily review of the above-captioned case, and thereafter, enters the following:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.

On July 20, 2004, the Court's schedule was interrupted by an emergency motion so the parties' deposition, which began on July 20, would and could proceed until 6:30 in the evening. No intelligent discussion of the issue was accomplished prior to the filing and service of the motion, even though the lawyers were in the same room. Over a telephone conference, the lawyers, of course, had inconsistent statements as to the support of their positions. On July 20, 2004, the Court entered an order allowing the plaintiffs/counter-defendants until July 23, 2004 two days from today to answer a counterclaim. Yet, on July 21, 2004,, Inc.'s lawyers filed a motion for reconsideration of that Court order arguing the pleadings should have been filed by July 19, 2004.

The Court simply wants to scream to these lawyers, "Get a life" or "Do you have any other cases?" or "When is the last time you registered for anger management classes?" Neither the world's problems nor this case will be determined by an answer to a counterclaim, which is four days late, even with the approval of the presiding judge.

If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.

In the event it is not clear from the above discussion, the Motion for Reconsideration is denied.

Signed this the 21st day of July 2004.

Sam Sparks

United States District Judge

S.D.W.Va.'s Judge Goodwin on alternative sentencing

This Doug Berman post links to what he calls a "fantastic opinion" by West Virginia's Judge Goodwin, declining the suggestion from the Fourth Circuit for "alternative sentencing," in the case of U.S. v. Johnson.

I don't know much about Judge Goodwin, but he wrote the good dissenting opinion from the Fourth Circuit's panel decision in the rebel flag lunch box case, which was more or less followed by the en banc court. I have been privileged to meet some other fine lawyers named Goodwin of the West Virginia law firm founded in 1970 by "Joe Bob" Goodwin (as he was then known, before he went on the bench) and his brother Tom.

Friday, August 13, 2004

Operation Big Coon Dog defendant got big quick on coon dog circuit

The Roanoke paper has this article ("Crackdown reverberates across coon hunting circuit," 8/13/04) about how one of the defendants in the Operation Big Coon Dog case "popped up on the coon hunting circuit."

More on the Virginia child custody battle between same-sex couple united in Vermont

The AP has this report with more on the potentially groundbreaking custody case between two woman who were parties to a civil union in Vermont, and are now litigating child custody in Virginia. The article says this "could be the first legal test for a new Virginia law that threatens to nullify certain contracts between same-sex couples."

No joy for human-powered helicopter, now how will I get to work when I-81 construction begins?

Slashdot has this string related to the failure of a human-powered helicopter to get off the ground.

On conduct in closing argument

In U.S. v. Ollivierre, the Fourth Circuit in an opinion by Judge King overruled the various interesting arguments raised by the defendant that the prosecutor's closing arguments were improper.

The arguments at issue included these:

"I would submit to you, ladies and gentlemen, [Ollivierre] is trying to run today. With the help of his lawyer, he is still trying to hide from you." (the "Running Remark").

"I think sometimes when I am listening to the defense in their case, I am sure this is not their intent but it comes across sometimes as maybe to get you off track, to confuse you." (the "Off Track Comment").

"One of the things [Mr. Ollivierre’s counsel] made mention of was that there was no testimony about the distance between Ms. Caldwell and actually being able to see this leaning. Again, I remember her saying 12 feet, approximately 12 feet but again you recall. I remember her also saying there was nothing obstructing her view. Nothing. He doesn’t remember that. Of course, he has
selective amnesia because he is representing his client."
(the "Amnesia Comment").

"Mr. Ollivierre wants to now through his lawyer distance himself from the bag [of drugs] as he tried to distance himself from the scene." (the "Distance Comment").

"Again, the defendant is working with his lawyer in the trial of this cases [sic] and he certainly is innocent until proven guilty."

"There is an old saying that goes if the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither is on your side, just argue." (the "Argue Comment").

"He quotes so many times in his argument. He quotes the law repeatedly but then he tries to weave in distorted facts to try to make his argument." (the "Distorted Facts Comment").

"You may hear that the government met with the witnesses and got them to say what they wanted them to say. We planned and orchestrated their testimony and that kind of thing. You may not hear that argument but you may. We submit to you, ladies and gentlemen, if we wanted to do that, we could have done a better job. We could have simply asked Ms. Caldwell to say ‘absolutely
no question, I saw Mr. Ollivierre with the package in his hands and gave it to [Snoop] and [Snoop] came and got in my car’; and for good measure, we could have said Detective Washington I want you to say the very same thing; that you saw Mr. Ollivierre give the package to [Snoop] and [Snoop] came and got in the car." (the "Suborn Perjury Comment").

"One of the things that I have come to, really had to get used to is sitting and listening to defense attorneys make arguments that are what I consider to be so incredible in light of the facts or the evidence presented in the case. This case is no exception. Another thing that I had to get used to is looking at defense attorneys and seeing how they can make arguments with a straight face in spite of the tremendous amount of evidence and to make statements like they do, like the government didn’t come
close to proving their case."

"I don’t want to insult your intelligence by again recapping absolutely everything, but he says that the government has no proof other than the flight information. Once again, that is just incredible that he can say that with a straight face, incredible." (along with the preceding comment, the "Straight Face Comments").

How to figure whether a rich man gets fees under the Equal Access to Justice Act

In Broaddus v. Army Corps of Engineers, the Fourth Circuit in an opinion by Judge Gregory, joined by Judge Beam with Judge Widener concurring, held that the District Court in its method of figuring up the net worth of the plaintiff, for purposes of determining whether he was eligible for an award of attorneys' fees under the Equal Access to Justice Act, which prohibits such awards to individuals with a net worth in excess of $2 million.

Best show on television going off the air

The AP reports here that Brian Lamb is going to give up doing Booknotes, after 15+ years.

Virginia solicitor general is hometown hero

In this article, it is reported that the old hometown Kentucky high school of Virginia's solicitor general William Thro has declared him a distinguished alumnus.

Wahoo flag waver for USA

This great column tells the story of Dawn Staley, the University of Virginia graduate who will carry the flag for the United States at the opening ceremonies of the Olympics.

Thursday, August 12, 2004

Instruction manual for writing to newspapers from Virginia prisons

The Daily Press has this list of dos and don'ts for Virginia inmates seeking to correspond with Virginia newspapers.

What would happen if local government officials in Virginia went around declaring state laws unconstitutional?

I suspect what would happen is that the Virginia Supreme Court would rule about the same way as did the California Supreme Court in the same-sex marriage case, for which the opinion (via Findlaw) can be seen here

Wednesday, August 11, 2004

No joy in Court of Appeals on attempt to appeal personnel grievance under city policy

In Styles v. City of Colonial Heights, the Virginia Court of Appeals held that it had no jurisdiction under Va. Code 17.1-405 for an appeal of a city grievance case, even though the statute authorizes appeals from state grievance proceedings pursuant to Va. Code 2.2-3000, et seq., and the city grievance procedure under Va. Code 15.2-1507 is supposed to be in accord with the state procedures under Title 2.2.

This sort of reminds of that rebel flag lunch box case, where the en banc court held something like just because the S.C. law tries to incorporate by reference some aspect of the federal law does not make it a federal question, similarly the connection between the local grievance procedure and the state grievance procedure does not make a local grievance into a state grievance. (Hmm, not a very fun analogy.)

No indecent exposure when the exposer remained clothed

In Moses v. Com., the Virginia Court of Appeals in an opinion by Judge Benton, joined by Judge Elder with Judge Kelsey dissenting, overturned the convictions of a man for indecent exposure, where he was accused of touching himself through his clothes in front of children.

What does two years in prison suspended on condition of serving 12 months in jail mean?

In Widdifield v. Com., the trial court reinstated its suspended sentence of two years' prison, without credit for the 12 months in jail, but the defendant's lawyer apparently failed to adequately raise an objection, and so the appeal was dismissed for failure to raise the issue in the trial court.

More on the Falwell case

Here from Slashdot is a string of comments on the "Jerry Falwell" trademark beats case.

More on Boucher as blogger

Waldo has this post with more on Congressman Boucher's guest-blogging efforts.

Kerry closing the gap in Virginia?

This post says Kerry "is closing the gap" in Virginia, with poll results changing from 48-45 all the way to 49-46. I'm not sure that the gap looks any different.

What has the Norfolk paper got against successful Christian businessmen

The Norfolk paper, in this editorial, continues to ask questions about the campaign contributions of John Gregory to the Jerry Kilgore campaign, as if being a successful Christian businessman who supports political candidates is a bad thing.

Those fishy square objects coming out of the sky are . . .

. . . baits with rabies vaccine for raccoons, being air-dropped in parts of Southwest Virginia, as reported here in the Coalfield Progress.

Tuesday, August 10, 2004

Is ABA going to bar judges from being scoutmasters?

Via How Appealing, this post considers the implications of the American Bar Association's proposed ban on judges being members of organizations that practice discrimination based on sexual orientation.

Governor Warner making sure he's hexed the Republicans who helped him

The Washington Times reports here ("Warner lauds GOP rebels," 8/10/04) that Governor Warner continues to heap praise on the Republican legislators who helped him raise taxes, which probably does them no good with some segments of the voting public.

Website of gay rights activist held to infringe on the IP of Jerry Falwell

The AP reports here that Judge Hilton of the E.D. Va. has ruled that the domain name "" was too close to the registered trademark "Jerry Falwell" and was likely to confuse web surfers.

Website of gay rights activist held to infringe on the IP of Jerry Falwell

The AP reports here that Judge Hilton of the E.D. Va. has ruled that the domain name "" was too close to the registered trademark "Jerry Falwell" and was likely to confuse web surfers.

Non-union, non-pasteurized, soon to be made in Virginia

The AP reports here that Coors is going to build a new brewery at Elkton in Western Virginia, to start pumping out Coors Light.

Coors already has a facility at Elkton where they take "beer concentrate" and dilute it and package the beer and ship it to Eastern U.S., as explained at this site, which says: "If you ever saw the movie Smokey and the Bandit, you remember that the thin plot line was based on a race to deliver Coors from the western states. That's now an outdated scenario. Coors can sell its beer nationwide now, in part because it sends tank cars with "beer concentrate" (a specially-brewed, high-alcohol version of its standard beer) from Golden, Colorado to Rockingham County. Adding water and packaging in Virginia reduces the shipping costs substantially to the Northest and Middle Atlantic markets."

I've never quite figured out the "beer concentrate" aspect. In fact, I'm not even sure that the words "beer" and "concentrate" go together.

Judge Williams of E.D. Va. lays bare the defects of nudists' claims against Virginia statute

The Norfolk paper reports here ("Federal judge throws out lawsuit challenging teen nudist law," 8/10/04) that Judge Richard Williams of the E.D. Va. has dismissed the legal challenge to the new Virginia law barring summer camps for teen nudists unaccompanied by their parents or guardians, ruling that there is no live dispute since the camp was moved to another state this summer.

This other state, wherever it is, apparently has failed to address, with the same diligence as the Virginia General Assembly, the social problems associated with this kind of recreation.

More on the lawyer/farmer who shot his neighbor

The Fredericksburg paper has this story with more freaky details of the dispute between the farmer and the Virginia lawyer who shot him.

Monday, August 09, 2004

Congressman Boucher blogging on Lessig

Here is a link to the discussion so far with Congressman Boucher on the Lawrence Lessig blog, where he is guest-blogging this week and debating IP law.

I did not read all the way through the posts to find out whether Republican congressional candidate Kevin Triplett has been on there challenging him to stop blogging and come out and debate him.

More on Blakely in the W.D. Va.

Via VLW, Sunday's Roanoke Times has this article ("U.S. high court decision hits home in S.W. Va.," 8/8/04) on the effect on sentencing in the W.D. Va. of the Supreme Court's decision in the Blakely case - including comments from Chief Judge Jones, head prosecutor John Brownlee, and others.

New Virginia PAC forming to support moderates

On Sunday, the Washington Post reported here ("Va. Business Leaders Putting Their Money Where the Middle Is," 8/8/04) on a new group of businessmen who want middle-of-the-roaders in the Virginia General Assembly.

The New York Times' country music drive starts at Bristol

In this fun article, the New York Times outlines a trip from Bristol up to Van Lear, KY, a country music history road trip.

I had a case in Johnson County, KY, some years back, and the opposing the former mayor of Van Lear, KY, about the time that the citizens of the town voted to no longer be a town. Van Lear is near the place where Loretta Lynn is from. Bristol, as we all know, is the Birthplace of Country Music. The road trip goes up through Wise County over to Whitesburg then Prestonsburg. (I'm not sure that's a straight line, but who said it was.)

Coal and the Bush administration

The New York Times has this article ("Friends in the White House Come to Coal's Aid," 8/9/04) on the efforts made by the executive branch under President Bush to make life easier for coal operators.

Sunday, August 08, 2004

Bristol TN recall - boon or bust

The Bristol paper has this interesting article ("Recall brings moderate change according to analysts," 8/8/04) quoting such experts as Professor Sabato and Bristol 2020 leader Pete Holler on the question of whether the recall in Bristol accomplished much of anything.

Pete Holler said:

"We feel the recall effort was verified by the voting public, with the high turnout and the fact that more than half of voters voted for someone other than the three recalled candidates."

By that standard, Bob Dole in 1996 was "verified," as more than half voted for someone other than Bill Clinton, with a split vote.

Professor Sabato said:

"It’s not uncommon for incumbents to be defeated in every local election these days," he said. "The fact that all but one incumbent was returned to office – and the fact that he lost by a small number of votes – suggests the desire for change was not that widespread."

Also, the new man who got in denies any connection between his campaign and Bristol 2020. Earlier in the week, he was quoted as saying, "There was a lot of speculation that Bristol 2020 backed my campaign, but that is absolutely false. They did not."

the [non]billable hour's Five by Five on technology for lawyers

One of the best blogs going is the [non]billable hour, and one of its best features is Five by Five - sort of a mini-roundtable of experts on some useful topic, and one of the best Five by Fives is this one on technologies for lawyers.

I used some of this stuff mentioned - CaseMap (not yet v.5), ActiveWords (not quite up to snuff with it though) - and I've played with OneNote (didn't like it).

My five, if anyone was interested, would be this:

1. Technology to go digital - with transcripts, with imaging of other documents, with e-filing of court papers. I guess this is old hat for many, and inconceivable to others.

2. Search/document management/knowledge management tools - nothing worse that rooting around for stuff on your computer/server, especially e-mails. Fortunately, the relatively small size of what we have stored on disk and the breadth of my memory allow me to get by without too much wailing and gnashing of teeth, but the former is increasing and the latter, regrettably, seems to be shrinking.

3. Display tools - I've got half a dozen trials scheduled within the next 12 months in federal courtrooms with electronic display equipment.

4. Website/blog - well, we have a website, and I have this blog, and they both could use some work as marketing instruments (but they aren't they kind of fun, just the way they are?).

5. Wireless/remote access - One of these days, I'll get a laptop and a wireless router for here at the house, so I can sit out on the back deck and watch the cows while blogging. Whether this will improve productivity, I couldn't say.