The abomination that is "smart search"

In the old days, if you wanted to search for a word in the Virginia Code online, you put in the word and what you got was limited to that word only. Put in "transfer" and you got no "transferring" or "transferee." In the name of progress, this is no more, at least not by default. The same progressive impulse that requires me to insert "adv:" before any WestlawNext search, so that each one of the search results will include the terms that I am searching. It considered an "advanced" search when you are researching a section of the Code to expect that the Code section will be cited in each case.

Learning about the Stored Communications Act

Recently, I was studying on search warrants under the Stored Communications Act, 18 U.S.C. 2701, et seq. It is an interesting area of the law for many reasons.

The Act, adopted in 1986,  includes some ideas that seem pretty strange now.

In section 2703(a), there is a distinction made between emails that contents of electronic communications that have been stored more than or less than 180 days, as if that makes any sense. I get a lot of email. I keep them longer than 180 days because I can't remember what is in them. Some of them I might keep as long as I have anything, because they are as important to me as my books or photographs. Evidently Congress assumed back then that if any got an important email, they would print it out and delete it after a while to make space for other email. I don't know the theoretical limits on how much email my inboxes could hold, a lot more data than my physical mailbox down by the street that gets clogged with the books and cosmetics and clothes that keeping showing up at the house.

The Act may or may not distinguish between opened and unopened email. I have a lot of unopened emails. They are not very interesting, the ones that go unopened for any length of time. The opened ones are the only ones worth reading, the unopened ones are mostly ads selling clothes or political ideas or travel or sporting goods or whatever else I have ever bought into at least once in my life. I don't read all of my email, and a great deal of it is deleted unread.

The Act provides for subscriber notice in some circumstances and not others. The Government can get an order under section 2705(b) prohibiting the service provider for giving notice to the subscriber. Some providers like Google say they will notify the subscriber if they can. It allows the Government to access content of electronic communications sometimes with a search warrant and sometimes without. The Government never gives notice of its search warrant applications. Remarkably, there is a growing body of case law in which the magistrate judges across the county have taken it upon themselves to deny or modify search warrant applications for the content of emails stored by Google, Microsoft, and other like service providers. The Washington Post published this article about opinions written by a Magistrate Judge in the District of Columbia. There is a law review with the pretty fun title, Let the Magistrates Revolt. There is this remarkable opinion from a magistrate judge in Kansas, and at the other end of the spectrum, this remarkable opinion from a magistrate judge in New York.

There is legislation that seems to have wide support and might get passed to address some of the areas of strangeness. The House of Representatives passed the Email Privacy Act, H.R. 699, in April of this year. The EFF thinks that this act is a historic step in the right direction.

Another judicial conference

We went to the Judicial Conference. It was great fun in a fabulous setting. We enjoyed the company of many people that I've known for years, and met some people I should have known before now, and heard the Chief Justice, and watched some judges dance up a storm. We also missed our absent friends, including the woman in this photograph I stole from elsewhere.

Judge Conrad's ruling on Dean Eramo's request for discovery from "Jackie"

In Eramo v. Rolling Stone LLC, Judge Conrad of the W.D. Va. granted in part and denied in part the plaintiff's request for discovery from the anonymous "Jackie," who was the subject of the withdrawn Rolling Stone article about a sexual assault that never occurred that was alleged to have been committed by people who don't exist.

Initially, Judge Conrad overruled "Jackie's" claim that Rule 412 affects what is discoverable in a case where the subject matter pertains to alleged sexual misconduct.

New sheriff does not rehire senior deputies

The Roanoke Times reports here that the new sheriff for Roanoke County chose not to rehire some of the senior deputy sheriffs who served under his predecessor. Historically, the federal courts have zigged and zagged a bit in trying to define the limits of the constitutional protections for deputies of constitutional officers against patronage dismissals. The decisions in Jones v. Dodson, Jenkins v. Medford, and Knight v. Vernon did not proceed in a straight line. Probably the higher-ranking officials in any government office have the lower level of First Amendment protection.

On the Supreme Court challenge to the Google copying project

JURIST's Paper Chase has this post with links to the petition to the United States Supreme Court challenging the Second Circuit's decision regarding the legality of Google's book-copying project.

Criminal liability of teachers as affected by school board policies

In Lambert v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Huff joined by Judge Humphreys and Senior Judge Bumgardner held that the Scott County Circuit Court erred in its holding that the statutory exception for physical contact incidental to the work of teachers in Va. Code 18.2-57(G) did not apply where School Board policy prohibited physical contact.

The Code section provides:

G. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

The best evidence rule in Virginia

In Jennings v. Com., the Virginia Court of Appeals in a written opinion by Judge AtLee, joined by Chief Judge Huff and Judge Decker, reversed the convictions of a man accused of shoplifting, where the only testimony regarding the value of the property was a witness who testified about what she remembered seeing on the price tags of the property, and not the tags themselves.

That is chutzpah

Quoted today by the Virginia Court of Appeals: “The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.” Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. 463, 467 (1993), in King William County v. Jones, Record No. 0576-15-2, by Judge Russell

Two opinions from Judge Chafin, wherein the Commonwealth lost

2107141 Joseph Andre Moore v. Commonwealth of Virginia 11/24/2015 

Trial court erred in finding evidence was sufficient to prove appellant was aware of the drugs found under the seat of the vehicle and no considerable evidence beyond appellant’s mere proximity to the drugs and his occupancy of the vehicle linked him to the contraband

2165141 Henry H. Russell, Jr. v. Commonwealth of Virginia 11/24/2015 

Evidence was insufficient to support convictions of grand larceny and larceny with intent to sell where evidence proved appellant was a co-owner of the personal property taken from the house

The new venue statute

In 2015, the General Assembly amended Va. Code 19.2-244, to add a new paragraph B, which provides:

B. If an offense has been committed within the Commonwealth and it cannot readily be determined within which county or city the offense was committed, venue for the prosecution of the offense may be had in the county or city (i) in which the defendant resides; (ii) if the defendant is not a resident of the Commonwealth, in which the defendant is apprehended; or (iii) if the defendant is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.

The primary sponsor of the legislation, Acts 2015, c. 632, was Rob Bell. This is a pretty big change in Virginia law, that eliminates a problem that sometimes occurs in a case where there is no way to know where the alleged crime was committed. The language evidently was taken from similar statutes in other statutes, such as O.R.S. 131.325 in Oregon and Tex Code Crim. Proc. article 13.19. One might expect that cases from those states will be cited in connection with the application of the new Virginia law. It is a bit of a paradox for the Commonwealth to be required to prove that something "cannot readily be determined," but there are evidently many such cases, where the Commonwealth or the victim has reason to know that the crime took place in Virginia but not where it happened in relation to the boundaries of the cities and counties.

In some of the other states, the constitutionality of these statutes has been challenged. There is a "vicinage" requirement in the Virginia Constitution, Art. I, section 8, but surely a prosecution where the defendant resides satisfies that requirement.

New Commonwealth's attorneys and others in Southwest Virginia

Evidently, we will have new Commonwealth's Attorneys in Lee County, Wise County, Dickenson County, and Washington County, and a somewhat less new one elected to an open seat in Tazewell County. Incumbents were re-elected in Scott County, Buchanan County, Carroll County, Grayson County, Wythe County, and Smyth County - and in Russell County, where former blogger Brian Patton was unopposed. My fellow Legal Aid board member Herb Clay came in third in his run for Town Council, Rob Hines got in for School Board in Lee County.

On Bristol's Judge Flannagan

Yesterday was the portrait hanging in the Bristol Circuit Court for Judge Charles B. Flannagan. The speakers included Judges Smith, Lowe, and Kirksey, among others, and every word they said was true, or close enough.

When it came time for him to speak, Judge Flannagan took the opportunity to point out the other six portraits in the courtroom. Three of those judges have articles on Wikipedia: William Rhea, Joseph Kelly, and Floyd Roberts. Each of the three went on to "higher" office - Rhea was a controversial selection to the State Corporation Commission, Kelly was twice named to the Virginia Supreme Court, and Roberts was briefly a judge of the United States District Court for the Western District of Virginia, a recess appointee denied confirmation by the Senate. The other three are Judges Cantwell, Davis, and Bell, who were before my time but well-known to Judge Flannagan. Judge Bell was a college classmate of Judge Flannagan and was in the courtroom yesterday.

On the way out, I caught up with Judge Kirksey and we told each other a story, standing in the street. My story was about how I asked the judge for a letter in support of my application to join the bar in Tennessee, and told him that I realized in making this request that he might tell the Tennessee authorities all that he knew about me. Sometime later, he sent me a copy of what he wrote to Tennessee, with a cover letter to me that he hoped I did not find his reference letter to be "too honest." Judge Kirksey told me that when he put in for the judgeship, Judge Flannagan had disclosed that he had once been cited for fishing without a license (on a church trip), and the committee picked up on this, as in he must be a pretty good guy if that's the only thing he ever did wrong. Judge Flannagan is that good and you can't be too honest telling stories about him.

On the federal judiciary

Back in the spring, I did a presentation to a high school class, and while I was there I noticed that someone had misspelled the names of three of the nine Justices of the United States Supreme Court. This was irritating to me, and so I pointed it out to the teacher, who was irritated by my pointing it out. That same day I tried to explain to a Republican blogger and activist about President Bush 43 and how I thought he had done poorly in getting vacancies filled on the Fourth Circuit, and what difference this would make for the next 25 years, and she had no idea what I was talking about. Somebody will be picking more federal judges after 2016, but I guess fewer people pay attention to such things than I would have realized, if civics teachers and party regulars can't figure it out.

The end of the Friday morning opinions

I read today that the Virginia Supreme Court has issued this statement:

"Effective immediately, the Supreme Court of Virginia will no longer hold opinions for release during a session of Court following oral argument. Instead, opinions will be released when deemed ready by the Justices and will typically be issued and posted on the Court's website on a Thursday."

My reaction was that it seemed like an especially civilized practice to have opinions issue predictably on Friday mornings of the argument weeks, but to look at opinions mostly on Thursdays I suppose is no different than looking for Court of Appeals opinions on Tuesdays.

Social media protection for Virginia employees

The General Assembly passed and Governor McAuliffe signed legislation with these provisions:

"An employer shall not require a current or prospective employee to:
1. Disclose the username and password to the current or prospective employee's social media account; or
2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee's social media account. . . .

If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee's social media account. . . .

 An employer shall not:
1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or
2. Fail or refuse to hire a prospective employee for exercising his rights under this section."

The statute defines "social media account" as "a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations." A "social media account" does not include "an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer's email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks."

The term "employer" is defined to include "(i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer."

More on Daubert

In Padula-Wilson v. Wilson, the Court of Appeals in an unpublished opinion by Judge Decker decided the appeal of a custody case between two lawyers.

Among other things, the Court held that the trial court erred by its reliance on the opinions of a non-testifying expert that were cited by a testifying expert, and by its explicit reliance on Daubert as the standard for the admissibility of expert testimony. Related to Daubert, the opinion cites Justice Kelsey's article, Virginia’s Answer to Daubert’s Question Behind the Question, 90 Judicature 68 (2006).

I don't recall another case that has made the point any more explicitly, that not only is Daubert not the law of Virginia, but also its use may be reversible error in Virginia state court, and was reversible error in that case.

On the BVU ex-employee

I read online that a fellow who used to work for Bristol Virginia Utilities has entered a guilty plea to federal charges involving money. That guy was a good friend of mine back when I was helping out as their junior varsity counsel and the fiber optic network was still in the works. I went with his group to meetings related to municipal broadband in Georgia, Maryland, and Charlottesville. He might have been with us when we went up to hear the argument in the Missouri preemption case before the United States Supreme Court. I sat next to him at most of the board meetings that I attended. As with a few others I have known who broke bad but were good to me, he was wrong to get into such a mess and it is upsetting that he must have caused a terrible hardship to my other friends who worked there, yet if we ever meet again he should not be surprised if I shake his hand and ask him if he has time to sit down and tell a few stories.

At my Grandma Minor's funeral, the story was told about how she would go into the jail and pray with the ladies there and one day she came across a young woman who had been in her group of Baptist girls at the church. 

"It could have been," the minister said, "an awkward moment. But Ms. Minor didn't hesitate. She lifted her up! She told her it was good to see her, and they had a fine time together."

On a good day, I follow her example.

Fourth Circuit requires writ of habeas corpus in Richmond murder case

In Lee v. Clarke, the Fourth Circuit in an opinion by Judge Gregory, joined by Judges Motz and Wynn, reversed the denial of the petitioner's claim for a writ of habeas corpus, concluding that that he was denied effective assistance of counsel by his lawyer's failure to request a "heat of passion" jury instruction in his murder case, which was tried in the Circuit Court for the City of Richmond in 2008.

Yelp wins in the Fourth Circuit

In Westlake Legal Group v. Yelp, Inc., the Fourth Circuit in an unpublished per curiam opinion for the panel of Judges Shedd, Floyd, and Thacker held that claims under Virginia law against the popular consumer review website Yelp were barred by section 230 of the Communications Decency Act.