The Legal Food Frenzy

It says here that some law firms in Southeastern Virginia have been engaging in a "Legal Food Frenzy."

I was amused to see that one sentence says this: "Along with firms like Williams Mullen and Huff, Poole & Mahoney are public legal offices like the Portsmouth city attorney’s office and the Norfolk public defender’s office."

Williams Mullen is the firm of Mr. Baril, and Huff Poole etc. I think is the firm of Bob McDonnell (and also of Tim Richardson, among whose classmates I was one in college and law school).

Two more summaries on the candidates for the Republican nomination for AG

This article by Christina Nuckols for the Norfolk paper about Steve Baril and Bob McDonnell is sort of a fair summary of the main points that have come across in the media during the campaign.

It does not mention some other things, like tort reform or where their money comes from, that might be of interest to some voters. This article by Tammie Smith in today's Richmond paper fills in some of that gap.

In this post, Barnie Day says that "Main Street Republicans" like Baril because, well, he is a Main Street lawyer, which I always thought was the main part of his appeal, although his campaign has not made it a point of emphasis in any way that I have noticed, preferring more populist themes. Strangely, Day points out that McDonnell is tied to Pat Robertson, without mentioning that Jerry Falwell was an early supporter of Baril.

Virginia lawyer profile

Here is an interesting profile of lawyer Karen Raschke, now CEO of the Virginia League of Planned Parenthood, formerly staff attorney in the chief staff attorney's office at the Virginia Court of Appeals.

Who is this blogger?

After reading this post, among the others from this blog, I wonder again whether the author is an appeals court judge in Virginia - or, I should say, it makes me wonder which of Virginia's appellate judges would be most likely to have a blog. I have some ideas about this, but for once I'll keep them to myself.

Pick one of us

It says here that the position of the lawyers of Floyd County should be named the interim prosecutor while the elected Commonwealth's Attorney serves in Iraq.

More on Judges Wilkinson and Luttig as candidates for the U.S. Supreme Court

The AP reports here on the prospects to replace Chief Justice Rehnquist, which prompted the RIchmond paper to reprint this report on Judge Wilkinson and this report on Judge Luttig, both of the Fourth Circuit and both from Virginia.

On the better brain

This article called "11 steps to a better brain" makes me think I should go have a yogurt with berries then go take a nap.

Help me, Obi-Wan Kenobi, you're my only hope

In this Roanoke Times article, erstwhile Republican turned independent gubernatorial candidate Sen. Russell Potts declared: "A Kilgore-Bolling-McDonnell ticket would be the most extreme, right-wing ticket in Virginia history." Potts cast his absentee ballot in the Republican primary for Fitch-Connaughton-Baril.

SST calls this "some sort of Jedi reverse psychology mindtrick." Phil at Bacon's says this endorsement erodes the efforts of Connaughton and Baril "to run as conservatives."

At least they've both got careers

Via SST, I read this Fredericksburg.com story that says Steve Baril is calling Bob McDonnell "a career politician" while Bob McDonnell is calling Steve Baril "a career trial lawyer."

My own view is that these are both silly, self-destructive comments, since they are both politicians and trial lawyers, running for an office that requires some skill as a politician and as a lawyer.

Don't write like my brother

Via this Salt Lick post, I read this E&P article that says the Norfolk paper, otherwise opposed to censorship and limitations on free speech, have canned the newspaper column of the Car Talk guys.

Judge Humphreys on judicial selection in Virginia

Earlier this month, Judge Humphreys of the Virginia Court of Appeals wrote for the Richmond paper this commentary, in which he said, among other things:

"Selecting judges who are consciously biased for or against a particular agenda in a process that ignores the truth, the law, and judicial ethics cannot be healthy for any judicial system. Judges who are well qualified by temperament and experience and who will faithfully follow the law rather than their supporters' agenda should logically be preferred in any court system. Yet in states where judges are popularly elected, the only question the selection process answers is which agenda will accompany the judge to court.

Virginia is one healthy step removed from the states that choose judges this way. Here, judges are neither elected directly by the voters nor appointed by the Governor but rather are chosen by the people's representatives in both houses of the legislature. This is not to say that Virginia's system is without warts or blemishes, but our judiciary has indisputably avoided the chronic corruption and perceived bias problems that have plagued the court systems of states where the judges are popularly elected.

Legislators can and should vote their conscience on whether a judge should be appointed or reappointed based upon professional credentials and independent performance evaluations. They do no service to the law or the public when their vote is based upon the outcome of an individual case. Fortunately, most legislators realize that if equality under the law is to mean anything, judges must faithfully and consistently apply laws and constitutional protections even when the result is unpopular."

Will there be web piracy cases brought in SW Virginia?

The Kingsport paper reports here that a local assistant U.S. attorney "could not 'confirm or deny' a report by the Associated Press that, among the 10 cities nationwide where federal search warrants were executed involving the alleged high-tech piracy of copyright materials, two of them were Wise and Clintwood."

International rural conference coming to Abingdon

Here is the website for the upcoming conference of the International Rural Network and the Rural Policy Policy Institute, to be held in Abingdon, June 19-24.

Steve Igo of the Kingsport paper had this report, in which he says: "The goal of the conference is to bring together rural practitioners, policymakers and researchers from around the globe to address place-based innovations in health, education, competitiveness, entrepreneurship and cultural sustainability."

Sort of like a blog on what your Congressman has got cooking

The Plogress Report for Rick Boucher shows the progress of bills Congressman Boucher has sponsored or co-sponsored.

On the NLRB nominees

This post says the Senate should promptly confirm Ron Meisburg and Dennis Walsh to the National Labor Relations Board.

Mr. Meisburg is one of the ablest and most amusing lawyers I ever met, and besides which he went to Carson-Newman and Louisville.

That one headed toward the podium is my niece

When she was a month old, she came to my college graduation, and last night I was pleased to attend her high school graduation (notwithstanding my inability to take good photos from afar). 

Reporter's privilege in Virginia

This outline purports to describe the state of the law in Virginia regarding whether reporters can claim a privilege against being compelled to testify about information they learned from confidential sources.

This news article from Utah describes efforts to get the U.S. Supreme Court to rule on whether a similar "privilege" obtains in federal criminal cases.

Reverberations from the '84 Stafford campaign

This Sic Semper Tyrannis post details how a bunch of the young people who worked on the unsuccessful campaign of the late Jeff Stafford against Rick Boucher in 1984 became Virginia Republican VIPs.

Somewhere in the archives in the basement is the college paper I wrote about that race - they lost despite being on the ballot with Reagan and Warner, and with Boucher only a one-term incumbent, and even though there were something like a dozen debates. Reading of the pep of Stafford's staffers causes me to marvel once again at the outcome of that campaign.

In what circuit was that Moses case?

According to this report on oral argument in an intellectual property/First Amendment case involving the use of Jerry Falwell's name, Falwell's lawyer is quoted as saying, "It's been wrong to steal since Moses came down from the mountain."

The rest of the state shouldn't even bother to vote

In this Chris Graham Accentgate story, one pundit says: "Southwest Virginia may be where this election is decided."

The WV Grinch mask case

Here prosecutors explain their decision to prosecutor a man for wearing a mask of The Grinch on the streets of Wheeling, WV.

I suppose if it turns out he was not actually wearing a mask, but just looked like The Grinch, that would be a defense.

Court of appeals in Bristol on June 2

Here is the docket for cases to be heard by a panel of the Virginia Court of Appeals in Bristol on June 2.

New defense strategy - hope plaintiff's counsel shows up late

According to the LA Times, Tardy Attorney Costs Students Lawsuit "U.S. District Judge John C. Coughenour last week threw out a $40-million civil rights lawsuit against a local school district after . . . an attorney for the plaintiffs, was late to a pretrial hearing. [The attorney] said he was five minutes tardy; others said it was more like 20 minutes."

Another lawyer in the case was quoted as saying: "You can be late to your own wedding, but don't be late to federal court."

Bristol paper sues Bristol VA for 911 tape with call from murder suspect

Without dislocating any shoulders, the Bristol paper reports on itself here as having filed a fantastically important FOIA case against the City of Bristol for the 911 tape of the call from the woman who is accused of murdering her son.

I was intrigued by the part at the end, where the City Attorney said no one called him about the FOIA response - which makes me think the City Manager decided to render a legal opinion for the City without the aid of counsel, and might or might not have whiffed it.

On perfection by the Kingsport paper

In this article, the Kingsport paper reports on the resignation of a member of the Lee County School Board.

So far as I am aware, the newspaper never once correctly spelled the outgoing member's last name.

The Barils in SW Virginia

It says here the Baril campaign will be in Blacksburg tomorrow, Bristol on Thursday morning, and Norton on Thursday night.

I'm tied up or I would go check him out.

I asked somebody the other day, who I should pull for, Baril or McDonnell. And, so-and-so said such-and-such lawyers we know in SW Virginia are against McDonnell because he supports tort reform, implying that Baril does not. I would not have guessed that there was any difference between the candidates on this issue.

Another great victory

Here one of my entries was declared the Supreme Champion in Commonwealth Conservative's latest caption contest.

If JB was a judge I appeared before, no doubt he would dismiss my briefs as further exercises in creative writing.

SW Virginia prison officials take note

Here is told the tale of how prison officials in Tasmania secured the release of a guard held hostage by the inmates - in exchange for 15 pizzas.

Fourth Circuit approves local jail fee of $1 per day for pretrial detainees

In Slade v. Hampton Roads Regional Jail, the Fourth Circuit in an opinion by Judge Williams, joined by Judge Wilkinson and District Judge Floyd, approved the practice allowed by Virginia statute of the regional jail charging a fee to the inmates as applied to pretrial detainees, because the fee is not a criminal punishment.

What of the Fourth Circuit in all this?

Wondering what will become of the nominations of Haynes and Boyle, I see here in the NY Times where it says: "Democratic officials said an unwritten aspect of the pact was that two nominees not named in the deal - Brett M. Kavanaugh and William J. Haynes - would not be confirmed and would be turned aside either at the committee level or on the floor."

This statement, if true, would seem to indicate that the run of Mr. Haynes to succeed Judge Widener will soon be at an end.

I was under the impression that Judge Boyle also was among the seven in the current group, apparently that is not so.

NY Times checks out college dropout in Chilhowie

This article reprinted from the NY Times profiles the struggle of a young man from Smyth County to decide what to do about college.

The oddest part was this: "He talked about how he could become an elementary school teacher. The job would take up 180 days, not 280. Teachers do not usually get laid off or lose their pensions."

Former AG and Governor Gilmore endorses McDonnell

The Richmond paper reports here that former Governor Gilmore has endorsed Del. Bob McDonnell to be the Republican nominee for Attorney General.

One thing about Gilmore - I never heard anyone say that he is soft on crime or public safety issues.

Chief Judge Jones denies motion to dismiss in section 1983 of prison guard who filed for workers comp

In Reed v. Sword, Chief Judge Jones ruled that the plaintiff should be given a chance to prove his claims that the termination of his employment as a corrections officer was in violation of his rights under the First and Fourteenth Amendments, where he claimed that after he filed a workers' compensaiton claim, he was denied re-employment without procedural due process and in violation of the First Amendment and the Equal Protection Clause.

When is Princeton cheaper than U.Va.

This Newsday article is about a student from Richmond who found Princeton to be more affordable than the University of Virginia.

My secret plan to go to Memphis

JQ writes here that the Liberty Bowl (in Memphis) might get an ACC tie-in.

It's better than Boise, and I want to check out this place.

Lights out, nobody's home

When I read this article, I thought it should be retitled, what does a fourth-year Virginia Governor do. The answer is, lots of road trips. Evidently, Governor Warner had to stay home a lot for several years, and so he is under his quota.

How do Coaches Beamer and Groh compare as rated by their own ex-players

Here is an interesting comparison, from probably an inadequate survey sample, of the thoughts of some ex-players about Coach Groh at Virginia and Coach Beamer at Virginia Tech.

From these numbers, the Tech coach seems to be more popular with the troops, if that's the right phrase.

The best picture I took in New York

Looking up Broadway or Fifth Avenue or wherever I was, with the setting sun reflecting on the Empire State. Click on it and look at the bigger image. 

The Appalachian lawyer story in today's New York Times

Here is the story of a young woman who grew up poor in Pike County, KY, then was taken in by a relatively well-to-do cousin, went off to Berea College, then UK law, then had a successful practice in a Lexington law firm, then moved back to Pike County.

It is very interesting and provocative, from several perspectives.

One point is certainly true: you don't see rich and poor side-by-side in such startling contrast in many places as can be seen in Pikeville. Years ago, I drove through there with my wife, and she was watching the scenery, and it occurred to her that there were alternating mansions and double-wides along the main road.

Don't tell us we've got accents like yours

The Kilgore campaign runs ads that say Tim Kaine is making fun of Southwest Virginians, then promptly loses his +22 lead in Southwest Virginia, according to the latest Virginia poll discussed here and here and elsewhere.

Ditto on Judge Janice Rogers Brown

I agree with this SST post that the Republicans should make Judge Janice Rogers Brown a No. 1 test case in the Senate, and here's why - first, she got a better percentage of the vote in California than did Bill Clinton, and second, I enjoyed this one speech of hers that was on my graduation speech list, including the following, which strikes me as hilarious:

We once welcomed law students by inviting them into the brotherhood. Now, with so many women in the profession that no longer seems right. But, we can certainly understand why our brethren would not wish to be part of a sisterhood. A friend of mine, Justice Vance Raye, came up with the perfect solution. He said, from now on we should just call it the “hood.” So, let me be the first to welcome you … to the “hood.”

How to market your law practice to those rural atheists

In Lambeth v. Board of Commissioners of Davidson County, the Fourth Circuit in an opinion by Judge King, joined by Judge Widener and District Judge Floyd from South Carolina, affirmed the dismissal by Judge Osteen for failure to state a claim of the case brought by two NC lawyers against their home county for authorizing the inscription of the words "In God We Trust" on the facade of the county government center.

But, the outcome is not what matters, the important thing is that these lawyers have an important tool for marketing their services to the atheist community of Davidson County.

Couldn't they get Judge Wapner?

It says here that the graduation speaker this year at the William & Mary law school was John Kerry's running mate, the former U.S. Senator from North Carolina, John Edwards.

Speaking of speaking of poverty, Mr. Edwards is selling his house in D.C., asking $6.2 M, having paid $3.8 M for it in 2002, according to this Post article.

Heck, if all they wanted was a happy, goofy guy running for President, why not invite our own Senator Allen? That would have cut down on travel expenses.

Should the Bristol mom who killed her son get the death penalty?

This article in the Roanoke paper considers whether the death penalty should be sought against the Bristol, Virginia, woman who killed her young son a few weeks ago.

The article concludes:

"Virginia hasn't executed a woman since 1912, though a Pittsylvania County woman, Teresa Lewis, received a death sentence in 2003 for hiring two men to kill her husband and stepson so she could collect insurance money. She is the first woman on death row in Virginia since the state reinstated capital punishment in 1976."

On the serial litterer banned from a Virginia county

In this piece, the Post gets arount to the story of the WV man who has been banned from coming into to a Virginia county to dump his trash, after several convictions.

There was no particular discussion of the Constitutional issues, if any, at stake in prohibiting an American from traveling within the county of his choice.

The article quotes the county prosecutor as saying: "Boy, if it's enforceable, I've got some other people I want banished."

Maybe Chad Dotson needs to be studying this case, for when he must deal with those litterers sneaking over from Jenkins.

Bringing home the bacon to SW Virginia

This commentary in the NY Times starts out by picking on the inclusion in the forthcoming highway bill of an appropriation for new horse trails in Southwest Virginia, at the request of Congressman Boucher.

The author notes: "When I expressed doubts to Mr. Boucher that these new horse trails would ease traffic on the roads, he replied, 'That's fair to say.' He didn't expect any commuters to use them. But he insisted this really wasn't an unusual use of money from the highway trust fund, and he had a point."

What Is A Drug Court?

This account tries to explain what is a drug court, at least as it exists in Loudoun County.

Of the burden on the participants, it quotes one official as saying:

"They are held accountable daily. . . . They have daily requirements that they must fulfill. They see their probation officers twice a week, they attend substance abuse sessions three times a week, they come to court once a week and they are expected to work everyday. It's not easy. To be honest, I don't think it would be easy for anyone."

Have you got a bathroom in here?

Here is the story of an Illinois legislator who "introduced a bill requiring stores to allow patients with certain intestinal disorders to use employee bathrooms that are not otherwise open to the public," after hearing the tale of woe of a young woman with Crohn's disease.

Let the settler beware

From this tale from the Norfolk paper, it appears that a contractor is claiming it had its contract dispute with the City settled, but then Council voted not to approve it, and now the contractor has sued to enforce the settlement.

It sounds lame to me; if there was not a public vote, probably it doesn't matter what the contractor was told about the authority of the negotiators. The government can't be liable if its agents act outside their authority, and a council decision made without a public vote is probably of no effect under FOIA.

You can't handle the truth

The excerpts of the testimony in this account of a Culpeper FOIA case before retired Judge Whisenant make the county board sound awfully silly to me, but then those are just the parts the newspaper chose to print.

Last of the gang against public participation gets the boot from Bristol voters

Here is a link to Lewis Loflin's copy of the Bristol paper's article from September 2002, when a fraction of the Bristol Tennessee city council declared that they would seek $2.87 million in damages from the citizens who dared take an appeal in the Walmart zoning case. The article says: "The city's response to the appeal, filed Thursday by City Attorney Jack Hyder, asks the state Court of Appeals to find the appeal frivolous and to order a judgment equal to the sales and property taxes the development would generate this year."

In subsequent elections, the sub-group of councilpersons involved have been defeated at the polls, with the last two voted out yesterday. Last night, one of the losers declared here: "the voters always get what they deserve." And, so did he.

More on the political correctness of The Tribe

Wm. & Mary won't do? Then who? is the headline for this column, to which I have linked to mainly on account of the Steely Dan reference.

(My wife the Northern Virginian gets more of a kick out of the lines about Annandale than the one that says "William and Mary won't do.")

On the adequacy of attorney discipline in Virginia

This letter to the editor of the Washington Post says the lawyer discipline system in Virginia is no good, concluding that "Virginia lawyers treat discipline and client protection as poor stepchildren."

The letter was in response to this editorial from May 11, another in the Post's continuing series of criticisms of the handling particularly of the representation of poor criminal defendants in Virginia state courts.

Colossal Colon comes to the Tidewater

This article describes the opportunity for Virginians to walk through a 40-foot replica of the human colon at a mall in the Tidewater.

Worst lawyer ending of which I've read lately

In one of the several books I've read lately that has some discussion of the repression of speech during the Civil War is told the story of the untimely end of Clement Vallandigham, who was an Ohio Democrat who opposed the war.

After the war, he became a successful trial lawyer, before he died of a gunshot wound. He was in a hotel during a murder trial, in which he claimed the shooting was an accident, and while he was trying to figure out how the accident happened, the gun went off and killed him.

Tales of the Big Apple

This morning, I was trying to tell one of my clients about the bizarre stuff I saw in New York last week. I told her that right in the middle of Times Square, there was a fellow in his underwear and a cowboy hat singing with his guitar, and on the seat of his shorts it said he is called the Naked Cowboy (see here and here).

The young woman from Buchanan County was unimpressed. She replied that you wouldn't have to look around Hurley too long to come across some old boy drunk and out on his front porch singing country songs in his underwear just about every Friday night.

On the Edith Maxwell case

From an earlier post ("Before O.J., there was Edith"), here is one account of the Edith Maxwell case, and the 2003 book Murder, Honor, and Law:
Four Virginia Homicides from Reconstruction through the Great Depression is partly about the sensational Maxwell case from Wise County.

Now, via Kilo, I see that the Coalfield Progress reports here on a new book about the Maxwell case, Never Seen the Moon, The Trials of Edith Maxwell.

Maybe Roy Jessee will buy himself one and lend it to me after he reads it.

On the road

I'm off tomorrow to the DRI Drug & Medical Device seminar and related meetings.

What Virginia voters want

The Washington Post has got it all figured out, in this lengthy report.

The answer is - roughly the same stuff for which U.S. was founded, domestic tranquility, promotion of the general welfare, enjoyment of the blessings of liberty. It's all there in the Preamble to the Constitution.

Joe Tennis' list of top 10 things to see close to Bristol

From the Bristol paper's Joe Tennis, here is his Top-10 list of the region's must-sees.

You'd think that Joe and the rest of the lot at the Bristol paper would go on strike until Media General gives them a better website, the worst, most impenetrable newspaper website in the U.S., out the hundreds I've seen - including all of the other Media General papers in Virginia.

How lawyers dress in Virginia courtrooms

This CrimLaw post sets forth the straight scoop on what Virginia lawyers wear to court.

The graduation speech list, year III

Here are most all of the old links from two years ago plus some new ones.

Albert Einstein, Swarthmore, 1938

Ronald Reagan, Eureka College, 1957

Barbara Bush, Wellesley College, 1990

William Kunstler, University of Buffalo, 1995

Guy Kawasaki, Palo Alto High School, 1995

Kermit the Frog, LIU, 1996

Justice Stephen Breyer, Stanford, 1997

Bob Newhart, Catholic University, 1997

Patrick Buchanan, The Citadel, 1999

Tom and Ray Magliozzi, MIT, 1999

Conan O'Brien, Harvard, 2000

Ray Bradbury, Cal Tech, 2000

George W. Bush, Yale, 2001

Scott Turow, Northwestern, 2001

Wynton Marsalis, Connecticut College, 2001

Al Franken, Harvard, 2002

Christopher Reeve, Washington University School of Medicine, 2002

Fred Rogers, Dartmouth, 2002

Judge Janice Rogers Brown, Catholic University, 2003

Mortimer Caplin, U.Va., 2003

'80s MTV meets '00s CMT

No kidding, I just saw Pat Benatar singing with Martina McBride on CMT - first "Independence Day" then "Hit Me With Your Best Shot."

Next, they'll have Loverboy singing with Riders in the Sky. The possibilities are endless.

The target audience would be people who liked to sing along to MTV in about 1983-1988, but got old and can't figure out the words to any of the songs on the radio now except for the ones played on country stations.

What would they do for some Doritos

L. Hammack has this article ("Questionable vote," 5/8/05) about allegations of vote-buying in the latest municipal election in the Wise County town of Appalachia. Appalachia has been in the news quite a bit in recent years.

The woman interviewed said she was offered pork rinds and cigarettes in return for her vote. Another fellow said he was offered a fifth of whiskey.

Anticipation

To the new law graduates at Regent, it is reported here Senator Allen said, that if they are appointed to the federal bench, "I hope you don't have to wait four years for Senate confirmation."

SW Virginia native in pairing with Tiger Woods on Sunday

I don't know that Vaughn Taylor has that much of a Southwest Virginia connection, but his bio says he was born in Roanoke.

Anyhow, it says here that he is in the 12:04 game with Tiger Woods tomorrow in Charlotte.

I'm not entirely sure of the usage of the word "game" in the foregoing sentence, but I would cite the usage of Governor Bredesen, in his proclamation earlier this week, when he said: "I encourage anyone who enjoys outdoor activities to get out and play a game of golf in Tennessee in May." Probably I would be more literate or literary when writing about golf if I read more of the golf columns of the lawyer who gets through life not only with Sneaking Suspicions but also Hole by Hole.

74 year-old man gets 10 years for selling OxyContin from his store in Tazewell County

The Bluefield paper has this story of a 74 year-old man in Tazewell County who was sentenced to seventy years in prison, with all but ten suspended, for selling OxyContin from his store.

Floyd County prosecutor gets called up to Iraq, judge replaces him

In this wild story ("Lawyer's battles: Judge, insurgents," 5/7/05), the Roanoke paper reports that the Commonwealth's Attorney for Floyd County is in Iraq, and plans to run his office from there, by e-mail, with a hired lawyer to handle the courtroom work. Back in Virginia, however, Circuit Court Judge Ray Grubbs has taken a different view, and appointed someone else to replace the elected official while he is gone. The article says a brand new AG opinion concludes "that a commonwealth's attorney is not required to relinquish his office when involuntarily called to active military duty," which makes the soldier/prosecutor think he will not lose his office. The matter will have to be resolved by the Virginia Supreme Court.

A murder in Virginia, 1895

I've been reading A Murder in Virginia: Southern Justice on Trial (2003) by Suzanne Lebsock. The book is about an 1895 murder case in Lunenberg County, Virginia, for which three black women and a black man were accused of committing the crime. It is, among other things, an excellent book about lawyering and the courts, remarkable in its account of the yin and the yang, the ebb and flo, the thrill of victory and the agony of defeat, or what I sometimes call the hockey game aspect of litigation, as the cases proceeded through trial and retrial, verdict and appeal. It is also a history book, a snapshot of race relations in the Southside 30 years after the end of the Civil War. The book is full of surprises and interesting characters.

There were no NHL play-offs this year, and might never be again for all I know, but it can be exciting, overtime in a play-off game, with the play moving back and forth, up and down the ice, and the game can end at any moment.

Bob Gibson's take on the Virginia political blogs

Here Bob Gibson of the Daily Progress describes the "blog delight" that has sprung up right here in the Commonwealth, citing, among others, Waldo and Bacon's Rebellion and Commonwealth Conservative and SST and One Man's Trash and Rick Sincere.

It sounds like Bob reads the same stuff I do.

Post-It notes get slash-dotted

Here is a Slashdot post on the 25 year history of Post-It notes, "an exemplary product of their time," foreshadowing the methods of working developed since.

On the Virginia state crime lab

This TalkLeft post reports on an independent audit blasting the state lab that analyzes evidence in criminal cases in Virginia, and links to this NY Times article, which begins: "A sharply critical independent audit found Friday that Virginia's nationally recognized central crime laboratory had botched DNA tests in a leading capital murder case. The findings prompted Gov. Mark Warner to order a review of the lab's handling of testing in 150 other cases as well." The NYT article says the report implies that office of Governor Gilmore pressured the lab in connection with the prosecution of Earl Washington.

The Richmond paper has this article on the audit report. This story reports one of Washington's lawyers as saying: "There's every reason to believe that in every capital case, there is enormous political pressure to break the rules, if necessary, to keep the defendant convicted."

The Norfolk paper has this article, which explains that the audit was only about the one case, the Washington case. It cites DNA lawyer Peter Neufeld, who also represented Washington:

"Washington’s attorney, Peter Neufeld, said the audit demonstrates that Washington should have been exonerated in 1993.

'He unnecessarily and unconscionably spent an additional seven years in prison,' said Neufeld, co-director of the Innocence Project.

Neufeld said Warner should amend the pardon to state that Washington is in fact innocent of the crime, a conclusion Gilmore did not reach."

Tuesday's opinions from the Court of Appeals

In Department of Labor and Industry v. Summit Contractors, the Court of Appeals in an opinion by Judge Kelsey, joined by Chief Judge Fitzpatrick and Judge Elder, affirmed summary judgment in favor of a contractor in a civil penalty enforcement action brought by the Virginia Occupational Safety and Health Program. The appellee was general contractor for construction of an apartment complex. The subcontractor for the siding work was cited for job safety violations. VOSH went after the general contractor as well, even though it had only 2 employees onsite and it had not committed any violations as to its employees. The issue on appeal was whether a general contractor could be liable for the subcontractor's safety violations with respect to the sub's employees, and the answer is no, under Virginia law (but perhaps not federal law).

In Crutchfield v. State Water Control Board, the Court of Appeals in an opinion by Senior Judge Willis, joined by Chief Judge Fitzpatrick and Judge Humphreys, affirmed the issuance of a permit to discharge treated wastewater into the Pamunkey River in Hanover County. The decision was affirmed based on the Court's conclusion that the agency's decision was supported by substantial evidence. (I wonder what this panel would have done with the birth certificate case). As I understand it, the landowners were initially denied permission to get into this case. The Court of Appeals reversed the ruling on standing, and the Virginia Supreme Court agreed the landowners have standing. State Water Control Bd. v. Crutchfield, 265 Va. 416, 578 S.E.2d 762 (2003).

In Conkling v. Com., the Court of Appeals, in an opinion by Chief Judge Fitzpatrick joined by Judges Felton and Kelsey, that a juvenile adjudication for petit larceny could not be used as the basis for an enhanced penalty under Va. Code 18.2-104, which makes the third or successive offense of petit larceny punishable as a Class 6 felony. The defendant was convicted of stealing a Sony Playstation from one of his relatives. He had a record of 5 petit larceny adjudications as a juvenile. The Court concluded that juvenile offenses don't count unless the legislature specifically says so.

In Kyer v. Com., the Court of Appeals, sitting en banc, concluded in an opinion by Judge Kelsey, with Judge Humphreys concurring only in the result, and with Chief Judge Fizpatrick concurring in part and dissenting in part and Judges Elder and Benton joining her opinion, that the search of the apartment where the defendant lived with his mother was not illegal because the law enforcement officers had the consent of the mother. Judge Humphreys wrote that in his view, the initial entry into the property was legal under the common caretaker exception to the warrant requirement. The police showed up at the property at 4 am and the place was dark but the front door was wide open while it was raining. Chief Judge Fitzpatrick agreed with the majority that the common caretaker exception did not apply, but disagreed as to whether there was adequate proof of the mother's consent.

In Bristol v. Com., the Court of Appeals in an opinion by Judge Benton, joined by Judge Frank and Senior Judge Overton, kicked out the blood test in a drunk driving case because the defendant had not been arrested at the time when the blood was drawn. The defendant caused an accident, for which he was taken to the hospital. While he was there, the officer told him he was under arrest and later a technician drew some blood and gave it to the officer. The defendant was treated and released from the hospital and went home. A few days later the officer called the defendant to come down to the police station to answer some more questions, which he did. Later, after he was indicted, he was served and arrested and taken into custody. The implied consent statute requires that the defendant must be "arrested" within three hours of the alleged offense. Va. Code 18.2-268.2. The Court concluded that telling the defendant at the hospital he was arrested was not enough of an exercise of control over him to meet the requirements of the statute, and the defendant's express consent to the blood test did not eliminate the requirement of an arrest.

Whacking away at the judiciary

This interesting piece in the NY Times by historian Ron Chernow on the handling of the judiciary in the early years of the U.S. opines that "we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president."

It recites that the lame-duck Federalists, on their way out in 1801, created new federal circuit court judgeships, just as they named a bunch of federal judges and magistrates (including Chief Justice Marshall and the unlucky William Marbury), after they lost the 1800 election to Thomas Jefferson.

Jefferson's party responded by repealing the Federalists' Judiciary Act in 1802, eliminating the circuit court positions, which made it necessary for the Supreme Court justices to ride circuit once again. They also cancelled two sessions of the Supreme Court. As Chief Justice Rehnquist explained in his book, "Congress at the same time passed a law abolishing the June and December terms of the Supreme Court, which had been created by act of 1801, and restoring the old Rebruary term but not the old August term. By dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months - from December 1801 to February 1803." The Supreme Court (2001) at 28.

Thus, the case of Marbury, whose commission for a judicial position was not delivered before time ran out, was not decided by the Supreme Court until 1803, when Marshall wrote his famous opinion, the "twistifications" of which Jefferson denounced. The Marbury case is full of irony. Marshall himself was a midnight judge like Marbury would have been. Rather than issuing a writ of mandamus, which the Jefferson administration would have ignored, the Court enhanced its power by declaring the statute for authorizing issuance of the writ was unconstitutional.

The Jeffersonians went on to impeach two federal judges, convicting one.

This analysis provides a new answer to the question, what do Pat Robertson and Thomas Jefferson have in common besides Virginia residence? Previously, I would have thought the answer was: nothing.

The end of the Scott Stadium grass as we know it

It says here that the Rolling Stones might play in Charlottesville this summer.

When I was a first year, the new Stones' album was Undercover, which rates as one of their worst, according to this list.

Kingsport lawyer on the filibuster debate

In this column from the Kingsport paper, a local lawyer says that the Democratic opposition to judges is not based on antipathy toward religion, that the filibuster is not based on anything in the Constitution, that the filibuster help protect the minority from the majority, that the Democrats are not really treating Bush's nominees worse than the Republican treated Clinton's nominees, and concludes that the Senate ought to debate the nominees and vote on them.

When science and blogging meet

Here on the QandO blog is offered the thesis that cleaner air has led to increased surface temperature, which kicked off an interesting exchange of comments about who are the worse ignoramuses, scientists or non-scientists.

A nice round number

Just now I was reading the transcript of a hearing, where the judge explained why he picked 12 lawyers for a particular committee:

"The number works for juries, it was used to define the 12 tribes, it was used to define the number of apostles, it's a sacred number, and I think that number is very workable."

Women in Virginia politics

Here Shaula has figured that there were not too many women in Virginia elected to statewide office or as Congresspersons before quite recently.

The first woman running for anything that I recall was Edythe Harrison, who got a shade less than 30% of the vote against Sen. Warner in 1984, which made me think at the time that the Virginia Democrats must be crazy. In fact, I still don't understand it, I've never read and no one has ever explained to me why there was no better candidate to be found that year. It is one of those strange things that you remember but just don't make any sense, sort of like the fact that the Florida Marlins have ever won the World Series.

More on the Wiccan would-be Chesterfield County invocationist

Here is a report from the ABA Journal's ereport on the Fourth Circuit's decision in the case of the Wiccan who sued Chesterfield County to get on the list of persons allowed to perform the invocation at meetings of the County Board of Supervisors.

I saw a hilarious cartoon about this case, where the judges who ruled against the plaintiff were tuned into toads, or something like that (it was funny without reference to whomever actually was on the panel).

On evaluating judges

This law.com article that the American Bar Association has now out new guidelines for evaluating state court judges, which guidelines "aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact."

The article also describes the new Virginia program for evaluating judges up for reappointment.

Hip to have a hillbilly twang

Via this Fragments from Floyd post, I see from the National Geographic, Appalachians Are Finding Pride in Mountain Twang. They need to throw that in the pot stewing over the candidates' accents in the gubernatorial race in Virginia.

The article says, among other things:

"What we're finding is that people are taking a new pride in their mountain culture," said linguistics professor Walt Wolfram of North Carolina State University. "That includes their language. People are making the comment, 'We're hillbillies, but we're proud of it. That's who we are.'"

On the significance of Kaine's UMWA endorsement

Kilo writes here that an endorsement from the UMWA is not what it once was.

Indeed, in 1990, there were Pittston, Westmoreland, and Island Creek, among others, operating union mines in Southwest Virginia, and UMWA District 28 covered Virginia. Now, there are no Pittston, no Westmoreland, no Island Creek (as such), and no District 28.

A funnier transcript

Here is the transcript from Johnson v. California, which includes these exchanges:

5 MR. SCHALIT: Well, Your Honor, I believe the
6 phrasing was that it's explained the operation of prima
7 facie burden of proof rules, and that's the footnote on
8 page 94, sort of the operation of the burden of proof
9 rules that is at issue here. And the burden of proof and
10 burden of production rules --
11 JUSTICE SCALIA: A lot of people don't read
12 footnotes.

...............

4 MR. SCHALIT: Well, the challenge does cease
5 being peremptory because the Equal Protection Clause has
6 overturned the State statute that provides that challenges
7 -- peremptory challenges are challenges for which no
8 reason need be given.
9 JUSTICE SCALIA: But Batson overruled that. I
10 mean, those days are gone. Tell California to stop
11 worrying about that.

....................

7 JUSTICE STEVENS: Of course, in avoiding that
8 chill, you're in effect saying the prosecutor is entitled
9 to one or two free discriminatory challenges.
10 MR. SCHALIT: Well, certainly there -- there is
11 a somewhat different consequence in -- in the standard as
12 articulated by petitioner in that the striking party does
13 get perhaps a freebie. And California doesn't accept
14 that. We've recognized that in State supreme court cases
15 there are no substantial free challenges.
16 JUSTICE SOUTER: The dog is entitled to one
17 bite.
18 MR. SCHALIT: I'm sorry, Your Honor?
19 JUSTICE SOUTER: I say, the dog is entitled to
20 one bite.
21 MR. SCHALIT: Oh.
22 (Laughter.)
23 MR. SCHALIT: Hopefully not --
24 JUSTICE SCALIA: It's a New Hampshire rule.

Oral argument in Mark Hurt's case

Here is the transcript for the oral argument in the case argued by Abingdon lawyer Mark Hurt before the U.S. Supreme Court, which had to do with the statute of limitations for retaliation claims under the False Claims Act.

I talked to Mark a little bit about the case. It was interesting to read the transcript.

The sort of crime that John Behan would prosecute to the fullest extent of the law

Here is a report on the rise of golf club theft.

I had a case years ago where my client was charged with stealing a car and stealing a set of golf clubs out of the car, on his birthday, as he and his buddy came upon the car parked outside of George and Sid's with the motor running. The victim was an investment counselor. The defense was that instead of being out stealing cars, my guy was celebrating his 20th birthday by drinking beer under the Hobo Bridge with his mother. ("What do you do on your birthday, ladies and gentlemen, do you go out looking for trouble - no, you spend time with your family. Some people eat German chocolate cake with their parents, some people drink beer with them.")

What I recall of the trial was that one fellow on the jury was glaring at us the whole time. The guy just hated us. I looked back at the list and studied his address. He lived about a block from George and Sid's. Uh-oh. We didn't have enough strikes to boot everyone we didn't like.

The other thing I recall about the trial was that I had co-counsel, who was a bit more flamboyant. He ranted, he raved, he paced, he waved his arms, and that was just when I went to see him in his office (and every time I've ever seen him since, and I'm always glad to see him). Afterwards, the judge commented on the contrasting styles. "It was interesting to watch," he said. "You were so much quieter, but you made some good points."

Stuck in reality

My wife is watching American Idol. It is ridiculous how people get wrapped up in these shows.

The TV contest that had me enthralled lately was the Big Break III on the Golf Channel, won by the villainous Danielle. I was rooting for Jan, the Canadienne, who had the swing but not the nerves. Pam lost 2 and 1 to Danielle in the finale. Afterwards, I wanted her to throw Danielle in the James River, but, if it happened, they didn't show that part on TV.

It will be a good weekend for golf, Tiger Woods in Charlotte and Annika Sorenstam in Williamsburg.

Last night's debate on the radio

The Charlottesville paper has this article about the debate between the two candidates for the Republican nomination for Attorney General, broadcast on public radio and on the internet.

I heard most of it, here at the friendly confines, including the bit where a woman called up and asked if the candidates had ever been divorced, and then a second woman called up and asked Mr. Baril to answer the question posed by the earlier caller. Another caller asked whether Mr. McDonnell agreed with recent statements by Pat Robertson about activist judges being as bad as al Qaeda.

I don't know who was the winner, but it sounded to me like Mr. McDonnell had more fun with it. The questions (but for the ones described above) were mostly good, and the moderator did well with his follow-up questions. The answers were very detailed and mostly response, with occasional use of canned bits.

Virginia's attorney general

Here is a profile of Virginia Attorney General Jagdmann.

Solomon amendment plaintiffs' own version of don't ask, don't tell

If I knew, I had forgotten, the fact stated here regarding the plaintiffs in the Solomon Amendment case, about military recruiters on campusRedState.org ||: "Interestingly, most of the schools involved the lawsuit have refused identification. Several schools have admitted participation and many off the record interviews have cited possible alumni backlash, among other reasons, for wanting to keep quiet about participation in the suit."

In other words, the whoevers behind the lawsuit(s) would be fired.

AG Jagdmann to deliver commencement address at ASL

This press release says that Attorney General Judith Williams Jagdmann will be the graduation speaker on May 14 at the Appalachian School of Law. It will be ASL's sixth graduating class, which seems incredible.

The dean of the zoning lawyers in Virginia

The Washington Post has this profile on zoning guru John Foote, a lawyer in Northern Virginia.

I've heard John Foote speak at seminars. He wrote the zoning law chapter in the Local Government Attorneys handbook. When our firm had a zoning case go before the Virginia Supreme Court a few years back, we touched base with him before the argument, and he had some good insights. Besides which, listening to him on any topic is never dull.

Those Republican presidents all look alike

The Norfolk paper says here: "Of the nine members on the U.S. Supreme Court, seven were nominated by Presidents Ronald Reagan or George H.W. Bush. Only two had Democrat Bill Clinton as their benefactor."

I get the point, even though it is inaccurate, since Justice Stevens was appointed by President Ford.

Curious armed guard story

In Jordan v. Western Distributing Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Michael and Duncan and District Judge Stamp held, among other things, that the defendant employer was not liable for the conduct of its two employees.

The facts were these:

"Ronnie G. Sasser, Jr. (“Sasser”) and Stephen Philip Meininger (“Meininger”), while transporting currency in an armored vehicle pursuant to their duties as drivers and security guards for Western Distributing Company (“Western”) and its subsidiary, United States Armored Company, allegedly attempted to “cut off and to force
[Lloyd Jordan’s] vehicle off the road on numerous occasions.” Compl. ¶ 11. During the incident, Meininger also allegedly leaned out of the passenger window and repeatedly aimed a sawed-off shotgun at Jordan and threatened to “blow off” Jordan’s head. Id.

The Maryland State Police subsequently stopped and arrested Sasser and Meininger. Sasser was charged with possession of marijuana and carrying a concealed weapon without a proper permit. Meininger was charged with first degree assault of Jordan, second degree assault of Jordan, concealment of a deadly weapon, possession of a controlled, dangerous substance, and possession of paraphernalia. Sasser pleaded guilty to the marijuana charge and the State dismissed the weapon charge against him. A jury convicted Meininger of first degree assault against Jordan and possession of a controlled, dangerous substance."

So, now we know, armored vehicle drivers threatening people on the interstate with sawed-off shotguns are not acting outside the scope of their employment, at least in Maryland.

City hall v. city hall

The AFP reports here that in Staunton, the city treasurer is about to sue the city council.

Sunset over the neighborhood

We've not seen many of these lately. 

U.Va. man on PGA tour makes playoff at New Orleans

James Driscoll, who played college golf for U.Va., is a tour rookie who made it to extra holes but came in second this afternoon in New Orleans at the Zurich Classic. Before this week, Driscoll had missed six cuts and made five, with his best finish in 16th place at Doral. The bummer is that he missed a five-footer on the 72nd hole that would have won in regulation. The winner's share of $990,000 goes instead to Tim Petrovic. Driscoll will have to settle for some $500,000+, which will move him up from 146 to No. 39 on the money list.

ACSBlog has Stone on filibusters

This ACS post quotes Geoffrey Stone on the filibuster.

I agree with almost all of it, except for the implication that the Republicans should be expected to do anything other than what they are doing, or that the Democrats in the same circumstances would not do the same thing. How could partisans do otherwise, but to press for confirmation of judges they believe are best for America?

From what little I know, and it is little, the several court of appeals appointees could have been confirmed, and nothing much would have changed. The ideological balance of the circuits will not be changed with then more appointees. The minority party, too, is exercising raw power for partisan purposes. The selection of the filibuster targets does not make much sense otherwise. There ought to be a way to root out real clunkers, but it is not clear to me that any of these are.

Stone writes: "The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power." I agree with that, too, but has that happened before? Sooner or later, the voters throw the bums out, and the academicians talk of "realignment." The more recurring scenario is "what comes around, goes around."

By the way, in my current stash of library books, among them is Stone's Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism.

The Washington Post takes on the New River

In The this article on whitewater rafting, the Washington Post says: "The New is a 320-mile Southern Appalachian treasure with headwaters in North Carolina's High Country. It's an old river and one of the few that flow south to north, meandering through a calm valley in southwestern Virginia and making its way into the Mountain State. Here, in the old coal country of south-central West Virginia, the river shows its wild side. For 53 miles it ruts through massive rock cliffs, creating the New River Gorge National River, designated a national park in 1978. Within its steep confines, the free-flowing New bustles with pounding rapids of tumultuous whitewater. This is Mother Nature's roller coaster."

Clemson Tiger hoopster turned Wahoo law grad becomes NC federal judge

This press release relates the interesting background of Bob Conrad, who was recently confirmed by the U.S. Senate as a United States district court judge for the Western District of North Carolina.

More on judge/novelist Martin Clark

The Winston-Salem paper has this lively profile of Judge Clark, who is more famous as a novelist than as a judge, at least outside of Patrick County and the rest of the 21st Circuit.

State officials slow to act against bad doctors?

The Daily Press has this report about the State Board of Medicine, which says: "Complaints against doctors have increased and the board received more money to hire investigators to gather evidence in recent years, but the number of doctors punished for breaking medical rules has stayed about the same since 2000."

The Judicial Conference on the 28th Circuit

In the 2004 report of the Judicial Conference of Virginia, the following was written about the proposal for a third judge for the 28th Circuit:

Caseload data for 2003 show that 5,107 cases were commenced in the Twenty-eighth Circuit during the year, an increase of 24.3% or 998 cases from 2002 levels. This growth was due to a rise of 0.4% in civil cases and an increase of 37.8% in criminal cases. The total number of cases concluded rose 16.7% during the year, from 3,636 in 2002 to 4,245 in 2003. The number of juries impaneled fell 42.9% from 35 in 2002 to 20 last year. The circuit judges averaged 11 jury trial days each during the year while the number of criminal defendants increased by 48 (or 6.2%) from 778 to 826. The two judges in the Twenty-eighth Circuit averaged 2,554 commenced cases each in 2003, ranking 3rd among the 31 circuits. The Twenty-eighth averaged 2,123 concluded cases per judge, 8th highest in the state in 2003. The number of commenced cases per judge was 723 above the state average of 1,831 and 560 above the rural average of 1,994. The number of concluded cases per judge (2,123) was 361 above the state average (1,761) and 205 above the rural average (1,918).

At the end of 2003, pending cases in the Twenty-eighth totaled 4,510, an increase of 29.0% over 2002 levels. The number of pending cases per judge stood at 2,255, 4th in the state among the circuits.

. . .

Of the 1,352 civil cases concluded in 2003, 28.4% were concluded prior to trial by settlement or voluntary dismissal. Bench trials accounted for 23.4% of concluded civil cases while 0.7% were concluded by a jury trial. Statewide, 30.0% of civil cases settled prior to trial in 2003, 20.1% were concluded by bench trial and 0.9% ended by a trial by jury.

Approximately 66.4% of civil cases concluded reached termination with 12 months of filing. Statewide, 71.3% of civil cases ended within that time frame. About 77.2% reached conclusion within two years while 9.3% actually took five years or longer. The Judicial Council's voluntary case processing time guidelines establish a goal of concluding 90% of civil cases within one year and 100% within two years.

The two judges in the Twenty-eighth Circuit averaged 746 civil cases each in 2003, ranking 8th among the 31 circuits. The state average for the year totaled 696 civil cases per judge, and the average for judges in rural circuits was 658 civil cases per judge.

...

The judges of the Twenty-eighth Circuit averaged 1,808 criminal cases each in 2003, 4th among the 31 circuits. This was 673 above the average for judges statewide (1,135) and 471 above the average for judges in rural
circuits (1,337 criminal cases each).

...

Based on historical data, the number of cases commenced in the Twenty-eighth Circuit is forecast to increase 4.9%, from 5,107 cases in 2003 to 5,356 in 2004. The number of cases concluded is expected to rise 4.2%, from 4,245 to 4,424. At the forecast caseload levels for 2004, the two judges in the Twenty-eighth Circuit would each average 2,678 commenced cases and 2,212 concluded cases. This number of commenced cases per judge would be 871 cases above the projected state average for 2004 of 1,807 cases per judge. The number of concluded cases per judge would be 478 cases above the projected state average of 1,734 cases per judge. If the additional judgeship is granted, the number of commenced cases per judge for the three judges would fall to 1,785, 22 cases below the projected state average of 1,807 cases per judge and 209 less than the 2003 average for rural circuits of 1,994. The number of concluded cases per judge would total 1,475, 259 less than the forecast average for judges statewide (1,734) and 443 fewer than the 2003 average for rural circuits (1,918 cases per judge).

Theme for the day - premature nastiness of governor's race

The Lynchburg paper writes here ("Gubernatorial race heats up," 5/1/05) and the Fredericksburg paper writes here ("Gubernatorial candidates get early start on bickering," 5/1/05) on silliness from the gubernatorial campaigns.