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.
Saturday, May 07, 2005
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.
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.
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."
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.
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.
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.
Friday, May 06, 2005
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.
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.
Thursday, May 05, 2005
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."
"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.
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).
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.
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.'"
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.
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.
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.
I talked to Mark a little bit about the case. It was interesting to read the transcript.
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