Virginia Democrats blog the convention

Documenting Democracy is the "official blog" of the Virginia Democrats attending the national convention in Boston this week.

Here is a list of the Virginia delegates, who include lawyers Gerald Gray, Mary Lynn Tate, and Gary Hancock from Southwest Virginia.

More on Blakely in the Fourth Circuit

The AP has this article which begins: "Confusion over a U.S. Supreme Court decision striking down Washington state's sentencing guidelines prompted the Richmond-based federal appeals court to schedule a rare August hearing on the ruling's impact in the five states it covers." The oral argument in the Fourth Circuit is set for August 2.

The article notes that Judge Hudson of the E.D. Va. has declared himself unbound by the Guidelines following Blakely.

The costs of a DUI conviction in Virginia

The Post has this lengthy article ("For DUI, Personal Costs Are High," 7/25/04) on the material and emotional costs of drunk driving convictions in Virginia.

The Post reports on free medical care for Southwest Virginians

The Washington Post has this report ("Free Medical Care Draws Thousands," 7/25/04) on the crown that turned out for free medical treatment at the Wise County Fairgrounds.

The article notes, among other things, that "Some volunteers who have participated in medical missions in developing nations compared the area's health profile with what they have seen in the world's poorest countries."

Virginia property owners sue airport, claim takings

The Norfolk paper has this article ("9 lawsuits filed against Chesapeake Airport Authority," 7/21/04) on lawsuits filed against a local airport authority claiming that the low flights of airplanes has resulted in a taking of their property.

Virginia lawyer suspended for CRESPA violations, among other things

The Norfolk paper reported here ("State bar fines Beach lawyer, suspends him for 45 days," 7/24/04) on the suspension of a Virginia beach lawyer for 45 days, for violations including that he conducted residential real estate settlements without being registered under the Virginia Consumer Real Estate Settlement Protection Act.

50 years of Virginia politics in one article

The Richmond paper has this overview ("'A sea change' in Virginia," 7/25/04) of changes in Virginia politics in recent decades.

No Ahmad Bradshaw this year

The AP reports here that the Virginia Cavaliers will be without Ahmad Bradshaw from Bluefield this season. The article notes that: "The announcement comes less than a week after Bradshaw, a two-sport star at Graham High School [in Bluefield] who is taking classes at Virginia this summer, was arrested and charged with underage possession of alcohol and obstruction of justice, both misdemeanors."

What I did on my summer vacation

There were no newspapers, no news programs, no computers, and only a bit of long-distance lawyer this past week. Instead, there were seafood, golf, sun (until Friday), and water. Coming from SW Virginia, I still see the ocean as a great spectacle, and so was the Sound, at the end of the pier behind our rented house in Corolla.

Vacating

Back in a week.

The HooK takes on what's new in Virginia law - marriage, sodomy, no nude teen camps, and the budget

From an edition of The HooK focusing on Virginia law:

Comin' at ya: The new laws and U

Not gay: Marriage affirmation sparks protests

Nude teen camp: Not on Virginia's watch

State of sodomy

Survivors 2004: Legislators tell all

Coarse debate: 'Defense' of marriage wrecks contracts

View of the Commonwealth from Venezuela

From Venezuela, this commentary on Virginia includes these remarks:

"Virginia, second only to Texas in the frequency of executions and in the virulence of its anti-social attacks on the poor is ruled by one of the most conservative state governments in our country. These penny-ante politicians loudly, at every opportunity trumpet their Christian and family values, winning thereby the allegiance of those willing to be guided by faith rather than reason. But every so often they let their greed, their real loyalty -- to money and business, to Mammon, not to God -- shine forth in all its glory. And show us their deep and irremediable stupidity in the process. . . .

Working to bar the possibility of marriage between gay or lesbian persons, the brilliant lawmakers of Virginia have passed special legislation forbidding this sort of civil or religious union. The only problem is that their new law may make ALL forms of contract between persons of the same sex illegal in this state. Be warned: If you propose to come to the USA to do business, you may have to make contracts only with a person of the opposite sex!"

More on Blakely and the Fourth Circuit

Via this post from How Appeal, the Charleston Post and Courier has this article ("Sentencing guidelines decision affects several S.C. cases," 7/16/04), which says, among other things:

"A U.S. Supreme Court decision last month has raised questions because it indirectly suggests that federal sentencing guidelines deny defendants their rights to a jury trial.

Meanwhile, while an appellate court in Richmond, Va., considers next month how courts in the South should apply sentencing rules, a federal judge in Charleston has delayed sentencing hearings in two criminal cases. . . .

U.S. District Judge David Norton in Charleston postponed two cases until the U.S. 4th Circuit Court of Appeals in Richmond makes a decision in a Charlotte case involving a man sentenced to 155 years in prison for smuggling cigarettes. Attorneys for Mohamad Hammoud Contar contend that a federal judge imposed an excessive sentence."

Interesting commercial case from the Fourth Circuit

In Andrews v. Primus Telecommunications Group, Inc., the Fourth Circuit in a per curiam decision for the panel of Judges Niemeyer, Shedd, and Duncan, affirmed summary judgment for one of the defendants in a case applying Virginia law on issues of vicarious liability, that the defendant Primus was had no respondeat superior liability for the acts of other defendants and that there was no joint venture between and among the various defendants.

Judge R. Williams denies preliminary injunction sought against teen nudist camp law

The Richmond paper reports here ("Judge refuses to block law on nudist camp," 7/16/04) and the AP reports here on the denial by Judge Williams in Richmond of the ACLU's request for injunctive relief against the new law limiting teen nudist camps in Virginia.

SW Virginia law blog makes HughHewitt.com

Yesterday's somewhat ambiguous reference to the new Hugh Hewitt book got noticed here on HughHewitt.com.

I guess what made the title of the book catch my attention was not the partisan aspect, but we have that election case going on down in Scott County, where the outcome was decided by two votes.

Jeff Julian

From the Golf Channel, some time ago, I learned the story of Jeff Julian, who died today from ALS. Some stories about him can be found here on the Clemson website, here in Rich Lerner's column on the Golf Channel's website, and here on PGATour.com.

He was a brave man with a lot of friends.

Open carry is the law in Virginia

Reading this article ("Guns Worn In Open Legal, But Alarm Va.," 7/15/04) about people carrying their guns around in Virginia for some reason made me think of the deposition I attended not too long ago, where the witness proudly took out his gun permit and showed it to the lawyer who was asking the questions.

"Why are you showing me this?" asked the lawyer.

"Because it shows I'm not a felon," said the witness.

"Do you carry a gun?" asked the lawyer.

"All the time," said the witness.

"Do you have it in here with you now?" said the lawyer.

"No, but it's close by," said the witness.

Staunton paper says rewrite Virginia's sodomy law

The Staunton paper has this editorial calling for the revision of Virginia'a sodomy law in the wake of Lawrence v. Texas.

A liberal's view of Bush's judicial nominees

This editorial restates the liberal word on Haynes, Pickering, Pryor, Owen, etc.

About Haynes, it says:

" Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President's Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This "federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts," Warren Richey wrote in the Christian Science Monitor two years ago. "Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants' rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court," according to Richey. It's no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Virginia district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes' apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush's nominees, consider Haynes' nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes."

2003 statistics for the Virginia Supreme Court

According to this report, in 2,233 petitions for appeal were filed with the Virginia Supreme Court in 2003, and 208 were granted.

$65,000 in attorney fees awarded to ex-husband in connection with custody litigation not dischargeable

In Rutledge v. Rutledge, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Traxler, and Shedd affirmed a ruling by Judge Morgan of the E.D. Va. that attorneys' fees awarded by a Virginia state court to an ex-husband against the ex-wife in the amount of $65,000 were not dischargeable in bankruptcy.

En Banc Fourth Circuit to take on Blakely

Via CrimLaw, the Blakely Blog has this post, which says "the en banc 4th Circuit will soon hear Blakely arguments in US v. Mohamad Y. Hammoud, 03-4253. Argument is set for Monday, Aug. 2nd."

The book on close elections

SoCal blog has this post with a link to If It's Not Close, They Can't Cheat: Crushing the Democrats in Every Election and Why Your Life Depends on It.

Oddly enough, I've seen the first part of the title online a few times, but didn't know until now which if any party in particular was the target of the book, which is a sad commentary. Particularly since 2000, there's always somebody saying the other guy cheated.

More on Melungeons

The Coalfield Progress has this report on the latest book exploring the connection between the Melungeons of Appalachia and the people of Turkey. The book is called From Anatolia to Appalachia: A Turkish-American Dialogue.

No punishment for juror who slept

The AP reports here that the Stafford County Circuit Court will not punish a juror whose snoozing during the prosecution's case led to a mistrial.

Virginians know money makes a difference in quality of representation

The Richmond paper published these survey results ("Survey finds indigent defense support," 7/14/04) that show, among other things, that 82 percent said the amount of money spent for legal defense makes a "great deal" or "some" difference in the quality of representation.

Gentlemen, start your marriages

The Kingsport paper has this article ("Brides, grooms lining up to say 'I do' at Bristol Motor Speedway," 7/15/04) on weddings at Bristol Motor Speedway on the occasion of the night race, coming up soon in August.

Blakely in the E.D. Va. (and elsewhere)

The Norfolk paper has this description ("Supreme Court decision shakes up sentencing process on local scene," 7/14/04) of the scurrying about that is going on in criminal cases in the E.D. Va., following the Supreme Court's Blakely decision, which is resulting in some new decision from somewhere almost every day regarding the constitutionality of the federal Sentencing Guidelines.

I don't read all that's out there about Blakely, but I expect to eventually run across an article explaining Blakely as the point where the federal judiciary snapped back against mandatory sentencing. The language of the Sixth Amendment has not changed since the passage of the Sentence Reform Act, but attitudes toward mandatory sentencing have gotten worse.

A good laugh

Words can't describe this, which has nothing whatsoever to do with Southwest Virginia and not much to do with the law, but came to my attention via this post from L,L,L, which describes laughing out loud.

Unlike the fellow at L,L,L, everyone heard me laughing like a lunatic earlier this week when I was speaking with a lawyer named Welsh who said she told people she was related to Coach George Welsh until people started answering back that they could see the family resemblance.

Fourth Circuit reversed summary judgment on hostile racial environment claims

In White v. BFI Waste Services, LLC, the Fourth Circuit in a decision by Judge Luttig, joined by Judge King and Judge Beezer sitting by designation, affirmed in part and reversed in part the summary judgments entered by the district court on the plaintiffs' race discrimination and hostile environment claims brought under Title VII and section 1981.

In particular, the Court held that the trial court erred in its decision regarding the timeliness of the hostile environment claim, and its decision about whether the acts shown by the plaintiffs' evidence were bad enough to make out an actionable hostile environment claim.

Fourth go-round on qualified immunity ends in favor of deputy in shooting case

In Martin v. Bushong, the Fourth Circuit in a per curiam decision for the panel of Chief Judge Wilkins, Judge Motz, and Judge Beam sitting by designation, held that a deputy sheriff was entitled to qualified immunity in a section 1983 case related to a fatal shooting. The case had been argued twice in the District Court on motions for summary judgment and this was the second appeal to the Fourth Circuit on qualified immunity, all before trial on the merits.

Illegal alien suit against Virginia schools dismissed for lack of standing

The AP reports here that Judge Ellis of the E.D. Va. has dismissed for lack of standing the lawsuit filed against Virginia's public colleges and universities challenging denial of admissions to illegal immigrants.

Why not work on weekends

Brian Peterson has this post with a link to this article about a WV lawyer who was stuck in an elevator for 18 hours on a recent Sunday.

Something similar happened, I'm told, to Judge Flannagan, during his days as a practicing lawyer, a few feet from where I am sitting, when this space was occupied by the offices of Woodward Miles and Flannagan, and the judge was locked in what was then the foyer and could not get out to the street or back into the offices.

New faculty at the Appalachian School of Law

The Appalachian School of Law has the press release regarding new faculty members coming to teach at the school in Grundy.

The Blue Law special session

The Washington Post has this report ("Lawmakers Put to Rest Blue Law," 7/14/04), the Roanoke paper has this report ("General Assembly puts in single day of work to fix 'day of rest' gaffe," 7/14/04), the Richmond paper has this report ("Now, the assembly can take a rest," 7/14/04), and the Norfolk paper has this report ("Assembly fixes flub that gave day of rest," 7/14/04), on the mini-session of the General Assembly to fix the Sunday-off law.

Pickering et al. say USSG pass muster under Blakely

In U.S. v. Piniero, a panel of the Fifth Circuit including Judge Charles Pickering from Mississippi upheld a constitutional challenge to the federal sentencing guidelines based on Blakely.

Mysteriously, in U.S. v. Penaranda, the Second Circuit "certified the question" to the U.S. Supreme Court, which sounds like a good idea but who knew (not Volokh and not Instapundit, nor Stuart Buck) it could be done.

W&L Law School's Legal Clinic wins an appeal before the 4th Circuit

The law school at W&L has this press release about the successful representation by a third-year student of an appellee in a black lung case before the U.S. Court of Appeals for the Fourth Circuit.

Some years ago, on a day when I was before the Fourth Circuit, Judge Murnaghan chaired the panel, and a student from U.Va. or Georgetown argued a case, and before argument began, the judge held forth at some length on how great the program was, and its sponsor, and its law school. Then, after that tremendous greeting, in the argument, Judge Murnaghan was all over the guy, so I guess he got the full experience.

Chief Judge Jones gives death row litigant 60 days to file

In Lenz v. True, Chief Judge Jones fixed a 60-day deadline in which a Virginia death row inmate, whose execution was stayed by the W.D. Va., can file his federal habeas corpus petition.

More on legal challenges to Virginia's sodomy law

The AP has this report on constitutional challenges to Virginia's sodomy law, based on the Supreme Court's decision in Lawrence v. Texas. None of the cases, apparently, involve private acts, as in Lawrence, which was based in part on the Fourth Amendment.

In this week's VLW - article on law blogs

In the second section of this week's Virginia Lawyers Weekly is an article by Jeff Brown of Wright Robinson et al. on weblogs, which says among other things that "Steven Minor's SW Virginia law blog . . . is the leading attorney blog in Virginia, with its regular case law updates and quality links."

If it says so in Lawyers Weekly, it must be so.

Profile of a female lawyer in a rural Virginia county

The Winchester paper has this memorial for a lawyer and judge who died last week, and was the first woman lawyer and first woman judge in Clarke County.

Is the University as bad as the rest?

This column from the Norfolk paper about college athlete scandals says, among other things, that "While touting itself as an academic village of rare repute, Mr. Jefferson’s University is willing to bring in football players ill-equipped to attend the average commuter college."

Who's to blame for the infamous blue-law bill

In this editorial ("You Vet!," 7/12/04), the Richmond paper blames everybody for the infamous blue-law bill, including:

"A State Senator, who is a lawyer, proposed the bill, which was drafted by the General Assembly's division of legislative services. The appropriate committees studied the bill and sent it to the floor. The ladies and gentlemen of the oldest and most distinguished legislative body in the New World overewhelingly endorsed the measure. The bill sailed through the House with scant recorded opposition. No one in the Senate voted nay.

An Attorney General's office that misses few opportunities to score clever partisan points missed the bill's fatal flaws. Gubernatorial advisers - including Cabinet officials and aides who have won awards for their professionalism - recommended that His Nibs sign the legislation. A chief executive applauded by the corporate community for applying business-like discipline to government confidently provided his John Hancock."

In this column ("Day-of-rest fracas is a tempest in a teapot," 7/11/04) from the Virginian-Pilot, the head of the Division of Legislative Services says he is responsible.

Virginian-Pilot jumps on bandwagon for more money for lawyers for the poor

In this editorial ("Discount justice is inadequate justice," 7/12/04), the Norfolk paper joins the Washington Post in calling for more money for the lawyers who represent indigent criminal defendants in Virginia, so that the quality of representation will be improved.

Edwards went to Clemson, NC State, and UNC

It says here that Vice-Presidential Candidate John Edwards tried to walk on to the football team at Clemson (as a 156-pound defensive back), before transferring to N.C. State, then going to the University of North Carolina for law school.

Geez, I've rooted against all three of those schools every chance I got, at least since David Thompson turned pro.

McSweeney - exaggerated fears about civil union law prompted by activist agenda

In this column, former Republican Chairman Patrick McSweeney dismisses criticism of the new anti-same-sex partnership law in Virginia.

The perfect storm

The Daily Press has this article ("Day of rest bill slipped through," 7/11/04) and the AP has this article on how the Sunday-work bill slipped through the cracks.

On the merits of Drug Court

This column from the Daily Press describes the merits of the Drug Court program in Newport News.

New Virginia law causes Hispanics to be suspicious of police

The Washington Post reports here ("Law Raises Immigrants' Suspicions," 7/11/04) that the authority conferred on local law enforcement under a new Virginia law to detain illegal immigrants has made more difficulty the relations between Hispanic immigrants and police.

Employee not bound to arbitration policy announced by company e-mail he didn't read

In Campbell v. General Dynamics Government Systems Corp., the U.S. District Court for the District of Massachusetts held that the employee plaintiff was not bound to arbitrate his employment discrimination claims where his only notice of the company's dispute resolution procedure was by way of an e-mail he claimed to have never read.

The impact of Senators Thurmond and Helms on the Fourth Circuit

The Richmond paper has this very interesting article measuring the effects of the efforts of Senators Strom Thurmond of South Carolina and Jesse Helms of North Carolina on the makeup and ideology of the U.S. Court of Appeals for the Fourth Circuit.

The article notes that when President Reagan took office in 1981, six of the Fourth Circuit judges were Democratic appointees, while four were Republican appointees. None but Judge Widener are still on the Court. Senators Thurmond and Helms both had some control over who joined the Court in the 1980s and 1990s.

The article describes the connections between Thurmond and the current judges oon the Court from South Carolina, including Chief Judge Wilkins and Judges Traxler, Williams, Shedd, and Senior Judge Hamilton. It also describes the current confirmation difficulties of nominees Judge Boyle, Claude Allen, and William Haynes.

Gate City mayor and town council seek summary judgment in election case

The Kingsport paper reports here ("Gate City Town Council asks court to nullify May 4 election," 7/11/04) that the Mayor and Town Council for Gate City have filed a motion for summary judgment in the election contest case, "asking the court to rule that the election is invalid, declare the mayoral election void, and order the resulting vacancy to be filled by special appointment under provisions of the Code of Virginia." The plaintiff's lawyer, in opposition, wants the Court to declare his client the outright winner, instead of allowing for a special appointment.

Posner v. Easterbrook on Blakely

On Friday, the Seventh Circuit issued this opinion in U.S. v. Booker, with conflicting opinions by Judges Posner and Easterbrook regarding the effect of Blakely on the federal sentencing guidelines.

Unrelated to this, How Appealing reports here that Judge Easterbrook will be the answerer of 20 Questions for August.

More on FOIA, the General Assembly, and laws with unintended consequences

A reader of SW Virginia law blog has this article in the Augusta Free Press, breaking down the new law passed this past session dealing with the applicability of the Freedom of Information Act to the meetings of the General Assembly.

A Jewish writer's perspective on the blue law snafu

In this column from the Daily Press, the author concludes the blue-law snafu was "a holy mess."

Fiber loop progresses in Lee County

The Kingsport paper has this update ("Lee County fiber-optic project getting national attention," 7/9/04) on the progress of the fiber-optic network in Lee County.

On bedbug litigation in Virginia

The Richmond paper has this update ("Don't let the bedbugs bite - seriously," 7/10/04) on bedbug litigation in Virginia.

List of statewide wannabes for 2005 approaching 14

The Charlottesville paper has this roundup of the declared and undeclared candidates for statewide office in 2005, including John W. Marshall, the son of the late Supreme Court Justice Thurgood Marshall.

Judiciary committee postpones vote on 4th circuit nominee Claude Allen

The Washington Post reports here ("Senators Delay Vote On Va. Bench Nominee," 7/10/04) that the Judiciary Committee of the U.S. Senate has postponed a vote, probably for the rest of 2004, on the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit. The senators from Maryland, both Democrats, continue to oppose the nomination of Allen, who is from Virginia, to fill what they view as a "Maryland seat," made vacant by the death of Judge Murnaghan.

The article notes that there are 15 seats on the Fourth Circuit. Right now, there are 13 full-status judges, with the nominations of Allen and Judge Boyle in limbo, as is the nomination of William Haynes to replace Judge Widener, who will eventually take senior status. Of the 13, 8 were appointed by Republican presidents, 4 were appointed by President Clinton, and Judge Gregory was appointed at different times by both President Clinton and President Bush. Other than Judge Widener, none of the current judges were born before 1940.

Virginia Beach figures out how to keep coaches without violating FLSA

The Norfolk paper reports here ("60 coaches will keep jobs in Beach schools," 7/10/04) on the resolution of the Virginia Beach school system's consideration of what to do about keeping its non-teacher coaches while complying with the overtime provisions of the Fair Labor Standards Act.

Virginia lawyer pleads guilty to embezzlement

The Charlottesville paper reports here ("Ex-lawyer admits to charges," 7/10/04) on the guilty plea of a Virginia lawyer to charges that she embezzled client funds.

More ideas for the special session

In this editorial about the special session to fix the Sunday-off law, the Daily Press wonders that no more laws than this one get fouled up each session, and goes on to suggest the General Assembly should also do the following:

"Pass legislation giving localities the right to use cameras to catch motorists running red lights.

Give police the right to stop and ticket motorists solely for not wearing seat belts.

Provide some serious money for highway construction.

Repeal the poorly named "Affirmation of Marriage Act," which is really nothing more than an act of discrimination against homosexuals."

Are overtime suits against a school board barred by the Eleventh Amendment?

In Smith v. School District of Greenville County, from April of 2004, a federal judge in South Carolina held dismissed FLSA claims against a local school district on the theory that the claims were barred by the Eleventh Amendment, which prohibits the federal courts from entering money judgments against the States.

Back when I was in college and then law school, we studied the Supreme Court's decision which finally held, after some waxing and waning, that the Tenth Amendment did not bar the application of the FLSA to local governments and the states.

More on the toughened DUI laws in Virginia

The Washington Post reports here ("DUI Laws May Jail Thousands in Va.," 7/9/04) that "Virginia's new, tougher drunken driving laws are likely to put thousands more drivers behind bars each year and require them to install expensive breathalyzer equipment in their cars."

The Blakely files

This page is chock full of resources and cases related to how federal courts are handling the Blakely decision.

Governor Warner calls special session

From Governor Warner's website, here is his call for a special legislative session on July 13 to fix the blue law problem.

The Daily Press has this report ("Gov. reconvenes Assembly to fix law," 7/8/04), and the AP has this report.

Chief Judge Jones rules for insureds in liability coverage dispute over flood damage

In State Auto Property and Casualty Ins. Co. v. Gorsuch, a declaratory judgment action brought by an insurer, Judge Jones granted the defendants' motions for summary judgment, on coverage issues related to whether the insurer was responsible for claims against the insureds for causing flood damage.

Special session to make sure Virginians work on Sundays

The Roanoke paper has this article ("Warner may call session on rest law," 7/8/04) on the upcoming special session of the General Assembly to fix the messed-up blue laws.

People For the American Way gives thumbs down to Fourth Circuit nominee Boyle

In response to the press efforts from the White House, the group People for the American Way had this press release, which says among other things that if Judge Boyle was confirmed to the Fourth Circuit, "he could wreak havoc on civil rights enforcement and push the Fourth Circuit even further to the right."

C. Boyden Gray on Claude Allen

In this NRO commentary, the former White House counsel writes in favor of the nomination of Claude Allen to the Fourth Circuit.

White House on federal judgeships

Via How Appealing, the White House has issued this factsheet on its judicial nominees from Michigan and from North Carolina, including the nomination of District Judge Terence Boyle to the Fourth Circuit.

How the Blue Law error slipped through the cracks

This Post article ("Sundays-Off Law Got By Many Officials," 7/7/04) explains how the blue law amendment error got past everyone involved, in the offices of the legislature, the legislative services office, the Governor, and the Attorney General, without anyone catching, but it was detected by an associate at McGuire Woods.

The Post's solutions to the lawyers for the poor problem in Virginia

In today's segment ("Fixing Virginia's System," 7/7/04) from the Washington Post, the editors offer their ideas about what needs to be done to fix the Virginia system for legal representation of the poor in criminal cases.

More on the First Circuit's e-mail decision

Yesterday's NY Times has this article on the First Circuit's decision in U.S. v. Councilman, the stored e-mail case.

Congressman Boucher takes on state regulation of VOIP

This CNET article describes a new bill to be introduced by Congressman Boucher of SW Virginia which would ban the state regulation of voice-over-Internet-protocol.

More from the Washington Post on bad lawyers in Virginia criminal cases

The Washington Post has this editorial ("Inexcusable delay," 7/5/04) and this editorial ("Attention: Virginia Bar," 7/6/04), continuing its series on the inadequate representation of indigent criminal defendants in Virginia.

The latter includes the following:

"For equanimity in the face of failing a client, though, no one can match Andrea C. Long. Last November, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, dismissed the habeas corpus appeal of Kenneth B. Lewis, a state inmate serving more than 30 years for murder; Mr. Lewis's lawyer, Ms. Long, the court ruled, had filed the notice of his appeal four days too late. Ms. Long insisted in an April letter to Mr. Lewis and in a recent interview that the error was not her own; the court's clerk had stamped the wrong date, she maintains -- an explanation that five prominent appellate experts we consulted described as highly implausible and which Ms. Long admits that she cannot prove. "While I do not know whether you are a religious man, I am a religious woman," she concluded in her letter. "I can't help but believe" that the error "had to be the work of God, since it was no fault of yours or mine. That means that there is some purpose that God has for you to remain in prison." She signed off, wishing Mr. Lewis luck as "you find and fulfill that purpose." The presence of lawyers in Virginia's defense bar who could write such a letter or throw case after case away is not an act of God. And it should not be tolerated any longer."

The $1,000 per hour barrier

Adam Smith blog has this post, referencing among other things a prediction that some law firms will soon be "approaching and backing off from resistance at the magic $1,000/hour billing rate."

Holy catbirds.

Something else to look for in the Virginia Code

Over at Begging the Question, one of them confesses here to reading SW Virginia law blog, and in particular the story of the blue law snafu, which of course reminds him of a Simpsons episode:

"This also reminds me of a funny "Simpsons" episode written by Conan O'Brien. It's the one with the monorail, and when the monorail goes out of control, Mayor Quimby and Chief Wiggum scour the town charter to determine who has final authority in a crisis. They get off track (pun intended) when Wiggum discovers that, "as Chief Constable, I'm supposed to get a pig each month, and 'two comely lasses of virtue true'!" Quimby: "How many broads do I get?" Well, despite the fun stuff one can find in old laws, I hope the outdated stuff is culled more carefully than Virginia has done. Or perhaps this is all happening because the governor and attorney general can't agree on who gets how many comely lasses."

Stopping distance instruction was error but not reversible error

In Jones v. Griffey, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Shedd, and Duncan held that the trial court erred by giving a jury instruction based on Instruction No. 10.105 of the Virginia Model Jury Instructions, referring to Va. Code 46.2-880, the statutory stopping distance table.

The opinion goes on to conclude, however, that the error was harmless, and affirmed the defense verdict.

More on Blakely

In a footnote in U.S. v. Burrell, Chief Judge Jones notes in connection of whether the defendant's prior conviction for something or other was a "crime of violence" under the federal sentencing guidelines: "Because this determination is a matter of law and not of fact, my decision does not implicate the principles of Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (U.S. June 24, 2004). Moreover, the fact of prior conviction is not the type of fact requiring jury determination. See Apprendi v. New Jersey, 530 U.S. 466, 488 (2000)."

In this post, Ken Lammers said the following waiver language is being tried with mixed success by some federal prosecutors following Blakely:

I am also waiving any right I may have for a jury determination of any and all facts relevant to the application of any Sentencing Guideline factors by the United States District Judge. I agree the District Judge should make the Sentencing Guideline determination using the preponderance of the evidence standard. I understand that by signing this plea agreement I waive any right to a jury determination of sentencing factors that may exist under Blakely and Apprendi, and any case interpreting these two Supreme Court decisions.

Via How Appealing, here is an interesting profile of the 33 year-old lawyer from Washington State who won the Blakely case.

Vick suspended, faces more criminal charges

Here are some of the latest Michael Vick stories:

from the Washington Post: Latest Arrest Puts Vick In Limbo, 7/7/04

from the Richmond Times-Dispatch: Va. Tech suspends Marcus Vick, 7/6/04

from the Daily Press: Tech suspends Vick indefinitely, 7/6/04

from the AP: Tech QB Marcus Vick suspended after traffic charges on I-64, 7/6/04

from the Lynchburg News-Advance: Virginia Tech's Vick suspended, 7/6/04

from the Roanoke Times: Marcus Vick charged with marijuana possession, 7/6/04

opinion from the Roanoke Times: Aaron McFarling: Vick must go, 7/6/04

Real estate closing costs go up September 1

As the Richmond paper reports here ("Closing costs in Virginia to rise," 7/7/04), one tax increase passed by the General Assembly will cause an increase in recording fees for real estate transactions, effective September 1.

Governing Buchanan County after Operation Big Coon Dog

The Bluefield paper has this report ("Fallout from alleged money scheme grows," 7/5/04) on the effect of Operation Big Coon Dog, the federal bribery case, on the ongoing process of governing Buchanan County, including some quotes from one of the county attorneys, Frank Kilgore.

Lee County group seeks non-methadone rehab clinic

The Richmond paper reports here ("Lee group wants rehab without methadone," 7/5/04) on efforts to establish in Lee County a drug rehab center that will not use methadone.

The page about Southwest Virginians in the Bill Clinton book

MyWiseCounty.com has this account about how the Bill Clinton biography includes a page about his chance meeting with the late Charlie Daniels and attorney Carl McAfee in Moscow in 1970.

160 DNA samples collected during Charlottesville-area rapist search destroyed

The AP reports here on the destruction of DNA samples from dozens of black men by police in the Charlottesville area who were searching for a serial rapist.

More than one in ten state court criminal appeals in Virginia botched by lawyers?

In this editorial ("Court of No Appeal," 7/4/04), the Washington Post claims the following:

"An investigation by this page reveals that in 2003 more than one in 10 of the 2,660 criminal cases before the Virginia Court of Appeals -- the state's mid-level appellate court -- were dismissed not because the cases had no merit but because fees or documents were not filed with the court on time. These dismissals were overwhelmingly the result, as in Mr. Watts's case, of attorney error, not defendants mishandling cases in which they represented themselves: Nearly 9 percent of appeals in the court were thrown out because of errors by lawyers -- errors so fundamental that they don't even involve legal skills. Public defenders and court-appointed lawyers for poor defendants were responsible for more than 70 percent of the cases in which lawyers threw away their clients' rights. Moreover, we identified more than 40 attorneys who, over 15 months, appear to have blown more than one case and at least 12 who appear to have filed appeals in three or more cases that were dismissed. Every time one of these defaults takes place, someone's appeal -- however much merit it may have, however innocent the defendant may be -- does not get heard."

The editorial goes on to conclude there are two conditions which make this outcome likely: (1) the harshness of Virginia procedural rules, and (2) lack of compensation means inadequate counsel.

Polling places in Southwest Virginia and elsewhere in state to be scrutinized for disabled access

The Richmond paper reports here that the polling places in Southwest Virginia and the rest of the state will be scrutinized this summer for handicapped access.

The article notes that "[l]ocalities with the highest rates are all in Virginia's coal fields: Buchanan (35.9 percent), Dickenson County (34.9), city of Norton (34.5), Lee County (32.7) and Russell County (31.5)."

School teacher to run as independent against Boucher, Triplett

The Roanoke Times reports here ("Alleghany County teacher enters 9th District race," 7/3/04) on the home-grown candidacy of a school teacher who has entered the Ninth District congressional race as an independent.

State bar suspends license of lawyer convicted of beating his brother with a baseball bat

The Charlottesville paper reports here ("Bar suspends lawyer after assault," 7/2/04) that the Virginia State Bar has suspended the professional license of a Charlottesville lawyer on account of his 2002 conviction for beating his brother with an aluminum baseball bat.

Blaming Gilmore

This column from the Daily Press says that former Governor Gilmore is to blame for VDOT's funding woes.

It also says, strangely enough, that "[t]here are credible reports out of Richmond - although neither man is likely to confirm it on the record - that Gilmore asked Attorney General Jerry Kilgore to step aside so he, Gilmore, could run in 2005. Given the obvious negative answer, Gilmore is said to be planning a campaign in 2009."

This commentary from the Charlottesville paper accuses candidate Kilgore of advocating the same budget tactics as Gilmore.

Former candidate files suit in Virginia Beach against website for defamation

The Norfolk paper reports here ("Waters sues operators of Web site in Chesapeake," 7/3/04) that a former mayoral candidate has sued operators of a local website for posting defamatory information about him 4 days before the election.

The website issued a retraction after the election.

More on the injunction against the change in the blue laws

Yesterday, the Norfolk paper had this article ("Accidental 'day of rest' law won't be enforced yet," 7/3/04) and the Washington Post had this story ("Va. Judge Suspends Blue Law," 7/3/04) with more on the story of the blue law snafu, including the reluctance of Governor Warner to recall the General Assembly for a special session, and the attitudes of some union officials.

Earlier in the week, before the injunction was issued, the NY Times had this article ("New Law Gives Virginia's Workers a Break, by Accident," 7/2/04) on the problem.

Judge Markow was really put on the spot, he might easily have said he wasn't granting the injunction for any length of time, and let the plaintiffs appeal and the legislators rush about. I was local counsel in a case years ago where an injunction was sought by a bunch of big companies, claiming that absent relief, they would have to pay out a chunk of money that they shouldn't be charged and couldn't get back if it was later determined by the Court that they shouldn't be charged. The Court's answer, basically, was this: you are big companies, you can afford it, losing this amount of money is not irreparable harm, and if you want to litigate this issue we can set an early date for a final hearing on the merits.

How W&L got out of big-time football

The Richmond paper has this article ("Fielder's choice," 7/4/04) and this article ("Academics did in W&L team," 7/4/04) with recollections of the events leading up to the decision fifty years ago at Washington & Lee University in Lexington to award no more athletic scholarships, including an academic cheating scandal.

Bill Brill says - no ACC titles for Tech in his lifetime

According this column by Doug Doughty, former Roanoke Times sports editor and diehard Duke fan Bill Brill is predicting that Virginia Tech will not win any ACC titles in his lifetime.

Doughty notes that "the man is 73 and he did smoke cigars for 30 years and, having observed him for decades on the road, he could keel over at any minute."

In addition, the prospect that Coach K will turn pro might add to the stress levels down in Durham.

Roanoke paper - stealing trust worse than stealing money

Last week, the Roanoke paper had this editorial ("In Buchanan County, a case of public trust," 6/28/04) commenting on the indictments in Operation Big Coon Dog, the federal bribery case out of Buchanan County, and concluding that "even in economically distressed places, theft of trust can be worse than theft of money."

Roanoke paper says more money needed for lawyers who represent the poor

In this editorial ("Where's the justice?," 7/3/04) the Roanoke paper says the new Virginia Indigent Defense Commission mostly needs to get more money from the state for the lawyers who represent the poor in criminal cases.

Cashiers cannot be made to pay for stolen gas

The Roanoke paper reports here ("Va. law prohibits making cashiers pay for stolen gas," 7/3/04) that some convenience store owners are illegally making their cashiers pay for the gas stolen by people who drive off without paying.

Former Fourth Circuit judge dies in WV

As the AP reports here, James Marshall Sprouse died on Saturday at age 80. In 1979, President Carter appointed him to serve on the U.S. Court of Appeals for the Fourth Circuit. He took senior status in 1992, and retired in 1995.