Adding remedies for criminal defendants whose lawyers miss the appeal deadline

Del. Albo has proposed a new statute in HB 2628 that would add a potential post-judgment remedy for criminal defendants whose lawyers miss the appeals deadline.

The proposal is the subject of this editorial in the Washington Post, which has been critical of the gotcha criminal procedure rules in Virginia. In the text, Del. Albo says he hasn't filed an appeal in 10 years because they are too perilous. The Post comments: "It's a bad state of affairs when procedural hurdles are so onerous as to scare away competent counsel."

Brian Patton has this post.

What would Ben Domenech say about this?

This piece from the Daily Progress says that William & Mary President Tim Sullivan gave $1,000 to the Democratic opponent of a Republican delegate, which may have the effect of riling some Republicans into opposing the much-coveted charter status for W&M, U.Va., and Virginia Tech.

House of Delegates says no to obesity suits

The AP reports that the Virginia House of Delegates passed a bill prohibiting suits over obesity.

Commonwealth appeals to U.S. Supreme Court discovery order in Earl Washington case

This story says the Commonwealth has appealed the Fourth Circuit ruling on the discovery to be produced by the Virginia State Police in the Earl Washington civil case.

Virginia admits traffic cameras increase accidents?

This post from TechDirt links to a report from the Virginia Transportation Research Council that concludes that with traffic cameras there are more accidents and more injuries.

Why would I wear a blue bracelet

The CCFA sells blue bracelets with the words Got Guts.

Tasteless Halloween costumes at VMI?

Backcountry Conservative has this post with various links about an investigation at Virginia Military Institute into bad Halloween costumes, including cadets dressed as Nazis, that showed up in pictures on the internet, with this link to VMI's response.

Still no news on 30th circuit judgeship

The General Assembly reappointed a circuit court judge yesterday, but did not take action this week on the 30th Circuit position, and the Coalfield Progress reports here there may be no decision before February 17.

Daubert amendment goes down in committee

I am informed that "the Daubert House Bill failed to pass the Courts subcommittee."

More on the Martin case

Here is an article from ABAnet and here is an article from Findlaw on the Virginia Supreme Court's decision in the Martin case.

This Martin case still gives me a heart attack. There are many things that bother me about it, and one of them is that I never liked Zysk in the first place. I mean, with regard to the defense of illegality, it's one thing to say you can't sue for your share of the loot from a bank robbery, but shouldn't there be some kind of informed consent issue with respect to having sex with somebody who has herpes? Don't people get criminally prosecuted for spreading their diseases to unwitting sex partners? The whole point of the Martin case, I thought, is that the plaintiff would not have had sex with the guy if she had known. There ought to be a way to explain the causation in terms that would avoid the illegality, and leave the constitutional case for a criminal prosecution - when the Commonwealth would be a party and could defend itself.

I read that Ms. Jagdmann was asked in her confirmation hearings whether she would appeal Martin, but is there a thing the Commonwealth can do about it, at this late date? Ask to intervene and file for rehearing? Can anyone do that, even the Commonwealth?

Also, what really bugs me is that I thought the nub of Lawrence was that morality was not a good enough reason for criminalization of private, consensual sex acts. The words "disease" or "health" are nowhere to be found in the opinion, even though the amicus briefs were all over the "public health" issue. The idea that the public health rationale was found wanting in Lawrence strikes me as at best an inference and more accurately a mistake. The Virginia Supreme Court looked at Lawrence and read more into than I think is there, particularly since they concluded somehow that Lawrence vetoes rationalizations for sex laws that were not discussed in the opinion.

Felony cat killing case gets certified to grand jury in Loudoun County

The Washington Post reports here on the case of a guy in Leesburg who stomped his girlfriend's cat to death because the cat tried to eat his sandwich and then bit him.

NY Sun looks at Judges Wilkinson and Luttig as potential Supreme Court nominees

As seen in various places, the NY Sun had this article about Judges Wilkinson and Luttig as potential Supreme Court nominees. One area discussed is how they might be haunted somewhat by the most deferential stance on the War that the Fourth Circuit has taken, even beyond what the Supreme Court was willing to swallow. Besides which, Judge Wilkinson has written a fair amount, which doesn't seem to help anybody.

Jagdmann confirmed this afternoon

The AP is reporting that the House vote was 94-0 and the Senate vote was 38-0 approving Judy Jagdmann as Attorney General.

So, she's starting out with a 100% approval rating.

I suspect, if the Lord is willing and so on, I will see the new Attorney General in June, if not before, and tell her I am delighted at her new (if temporary) position.

No constitutional violations for motorist who got cited for refusing to say anything about insurance

In Burrell v. Commonwealth of Virginia, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Motz and Duncan, held that the police who charged the plaintiff for refusing to give insurance information at an accident scene did not violate his Fourth or Fifth Amendment rights.

On the Fifth Amendment issue, where the plaintiff was claiming he had a Fifth Amendment right to refuse to give information about insurance to the police at an accident scene, the Court relied on the analysis in Chavez v. Martinez, 538 U.S. 760 (2003). In that case, the plurality concluded that "a violation of the constitutional right against self incrimination occurs only if one has been compelled to be a witness against himself in a criminal case," and the plaintiff was not claiming that anything that happened at trial implicated his Fifth Amendment rights, so there was no claim.

On the Fourth Amendment claim, the Court bypassed the interesting question of whether there was a seizure when the plaintiff was given his citations, and went on to conclude that the citations were supported by probable cause.

My own 6 tips for appeals

Inspired by and with apologies to others, I offer these tips from my own experience and stuff I've seen or heard. I would make it a Top 10 list, but then I've only argued 8 appeals.

1. Duct tape beats no tape. Years ago, Kurt Pomrenke had a case where the Fourth Circuit clerk's office sent back the opposing party's briefs because the staples were uncovered, so opposing counsel covered them with duct tape and sent them back, and that evidently worked. Check the Rules before trying this yourself.

2. Don't leave after the first question. In one case I know about, counsel for the appellee said in response to the first question, that's all I have, and I don't feel well, and then he turned around and left. There was no rebuttal.

3. Avoid fire alarms. In one of my cases, the fire alarm went off during the other side's argument. The presiding judge said, I think we have to treat this as real. So, all the lawyers trudged out to Bank Street or whatever is behind the courthouse. My client was there. I never asked him if he pulled the switch. Anyhow, after we all got back inside, opposing counsel got some extra time, but neither he nor the judges seemed to have much interest.

4. Be careful with the words and names. In one argument I watched on C-SPAN, the lawyer was dismayed to realize that he had just made some bold declaration about the "Ninth Circus." All those present who were members of the Circus laughed aloud, but I think that guy lost the case. Coincidence? On the other hand, everyone recalls that guy in the Bush v. Gore case who mangled all the justices' names, adding in the names of former justices, before Justice Scalia helped him out with an introduction, "I'm Scalia." That guy got some laughs but I think he was on the winning side.

5. "Mr. Minor, what you're saying can't possibly be true." If Justice Compton says something like that to you, probably it is not going well, or at least that's been my experience. Indeed, according to the (unpublished!) opinion I got back in that case, what I was saying was not true at all, which seemed to me a shame, after I'd gone to the trouble of convincing the circuit court that it was true.

6. The best way to find out about an opinion is when you are at the beach. One time I called into the office while I was on vacation and found out that the Fourth Circuit had ruled in my favor and the Kingsport paper wanted to talk to me about it. So, I kept on driving, with no shoes and no shirt, calling everybody on my car phone and laughing and waving at strangers and nobody seemed to mind. This almost never happens when I am at the office. I'm not sure if this rule works as well for somebody like Steve Emmert, who is at the Beach every single day.

Fourth Circuit splits with Judge Boyle and two other circuits on post-dismissal rulings over forfeited historic document

In In re Matthews, the government seized a copy of the proposed amendments to the U.S. Constitution that was believed to have been sent to the state of North Carolina in the 1780s by George Washington. The document was seized from the lawyer for the appellant. The forfeiture action was eventually dismissed voluntarily, after some other group conveyed their interest in the property to North Carolina. Notwithstanding the dismissal, District Judge Boyle declared that he had in rem jurisdiction over the document, and determined that it belonged to North Carolina. On appeal, the Fourth Circuit in an opinion by Chief Judge Wilkins held that the trial judge had no authority to make rulings about the property after the case was voluntarily dismissed by the government.

Chief Judge Jones denies discovery from MSHA on Hyde Amendment matter

In Brandon Enterprises, LLC v. U.S., the Court rejected a discovery request from the defendants who won their trial in an MSHA case and are now seeking attorneys' fees under the Hyde Amendment.

Three finalists for Wise County judgeship with decision expected this week

The Coalfield reports here that this week the General Assembly will decide between Tammy McElyea, Greg Stewart, and Tim McAfee as the successor to Judge Robert Stump of the Wise County Circuit Court.

Will the next Virginia governor be sworn in in Williamsburg?

The Newport News paper has this article ("Next Va. inauguration may move to Wbg," 1/25/05) which says that support is gaining for a proposal to move the next governor's inauguration to Williamsburg, Virginia's second capital from 1699 to 1780, in part because the State Capitol in Richmond is still being reconstructed.

Well, why not, I like Williamsburg.

Or, if that doesn't work out, here is a whole list and here is another of Virginia's other capitals, including the Clam Capital of the World, the World's Capital of Old Time Mountain Music, the Fried Chicken Capital of the World, the Trout Capital of the Eastern United States, the Shipbuilding Capital of the World, the Turkey Capital of the World, the Ham Capital of the World, the Softshell Crab Capital of the World, the Flounder Capital of the World, the Apple Capital of the World, and the Christmas Capital of Virginia. I would add to those lists the Salt Capital of the Confederacy and the Peanut Capital of the World.

Proposals to increase fees for court-appointed counsel in Virginia

The Washington Post has this article ("Court-Appointed Va. Attorneys May Get Raise," 1/25/05) describing the state of proposals to increase for court-appointed lawyers in criminal cases in Virginia.

Chief Judge Jones grants stay without bond for appeal in insurance proceeds case

In Connecticut General Life Ins. Co. v. Riner, Chief Judge Jones granted a stay without bond of his ruling regarding the disposition of life insurance proceeds on a policy where the insured was found to have been murdered.

Two of my favorite things in Roanoke I've never actually observed firsthand

They would be Ruby the Tiger and the Texas Tavern (which is mentioned at least in the headline of this Ben Beagle column).

Fourth Circuit speaks on Booker

In U.S. v. Hughes, Chief Judge Wilkins wrote an opinion for a panel including Judges Traxler and Gregory, applying Booker, reversing the judge-made sentence enhancement in the case, and remanding for resentencing in accordance with Justice Breyer's opinion.

The Court said:

"Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so. In light of the excision of § 3742(e) by the Supreme Court, we will affirm the sentence imposed as long as it is within the statutorily prescribed range, see Apprendi, 530 U.S. at 490, and is reasonable, see Booker, Opinion of Justice Breyer for the Court at 18."

Uh-oh

This post from My Own Backyard lists the SW Virginia law blog among the "local Leftie blogs" for Virginia.

I knew I would get kicked out of the Old Dominion Bloggers Alliance, unless it is possible to be both leftie and rightie.

In this regard, I am inspired by Peyton Manning's post-game remarks, quoted here, in which he offered by way of explanation, of a pass he threw left-handed, the admonition of his old high school football coach, who said Peyton must learn to be "amphibious."

Man bites dog

In what must be a first, the Norfolk paper in this editorial criticized the FOIA request of a Republican delegate because of his political motives.

Ah, can it be true? I thought newspapers loved FOIA and hated the idea that anyone's motive for requesting government papers was ever a matter of legitimate concern to the government.

The next time one of their brethren or sistern among the media gets shot down on a FOIA request, will the Norfolk paper inquire into the reporters' motives before deciding whether or not the FOIA request was a good thing? Not likely.

Bat fight

Waldo has this fine post about opposition to Delegate Stump's proposal to make the big-eared bat the official bat of the Commonwealth.

No word yet from the manufacturers of the Louisville Slugger or the Bruce Wayne Foundation.

Nothing cruel or unusual here

Regarding a memo written by former Defense Department chief counsel William J. Haynes II, the Balkin blog says: "The DoD General Counsel (who's recently been renominated for a seat on the U.S. Court of Appeals for the Fourth Circuit) concluded that threats of killing a detainee's family members, and waterboarding, and forced nudity, and the use of dogs to induce stress, etc., not only did not violate the UCMJ, but are 'humane!"

Can't define heinous, atrocious, and cruel, but know it when I see it

In Bell v. Cone, the Supreme Court reversed the Sixth Circuit for interfering with a Tennessee death penalty case on the grounds that the terms "especially heinous, atrocious, or cruel" were unconstitutional vague in a case where the defendant killed two elderly people by beating them with multiple, crushing blows to their skulls.

Supreme Court rules on taxability of lawyer fees to client in contingent-fee cases

In Commissioner v. Banks, the Supreme Court issued an 8-0 opinion which considered the question of "whether the portion of a money judgment or settlement paid to a plaintiff’s attorney under a contingent-fee agreement is income to the plaintiff under the Internal Revenue Code." The answer is yes: "We hold that, as a general rule, when a litigant’s recovery constitutes income, the litigant’s income includes theportion of the recovery paid to the attorney as a contingent fee."

One of the two cases involved employment discrimination claims that were settled. The Court refused to give retroactive application to the tax provisions of the American Jobs Creation Act of 2004, but observed that its the future application of the statute will limit the effect of its ruling in connection with future claims of unlawful discrimination.

Judge Boyle more likely to make to Fourth Circuit now?

This article republished on law.com runs the list of President Bush's court of appeals nominees-in-waiting, and concludes among other things that the prospects for confirmation of District Judge Boyle to the Fourth Circuit are increased now that John Edwards has been replaced by a Republican in North Carolina.

Bankruptcy delays recovery on $1 million harassment verdict

The Richmond paper reports here ("TimesDispatch.com | Sexual-harassment win is now justice delayed," 1/23/05) on three plaintiffs who won a whopper judgment against a Burger King franchisee that then filed for bankruptcy.

Why wait to November?

In this editorial, the Washington Times more or less endorses Jerry Kilgore over Tim Kaine to be the next governor of Virginia.

On Bible breaks at Virginia schools

The Washington Post tries to throw some dirt on "Bible breaks" at Virginia schools in this article ("Bible Breaks at Public Schools Face Challenges in Rural Virginia," 1/23/05).

Bovender says NASCAR could be like hot donuts

In this column, Kingsport lawyer Bill Bovender worries whether NASCAR will go the way Krispy Kreme.

Kingsport law firm merger

The Kingsport paper reports here ("Kingsport law firms plan merger, move to ECU complex," 1/23/05) on the merge of the Wilson Worley and Moore Stout Waddell & Ledford firms in Kingsport, which gives the new firm 18 lawyers.

Steve Baril at Abingdon airport Monday afternoon

It says here that Republican Attorney General candidate Steve Baril will be at the Virginia Highlands Airport at 5:00 pm.

I wonder how many people will be there.