Saturday, June 05, 2004

Virginia official defends DNA test results in Earl Washington case

The Richmond paper has this article ("Official backs disputed DNA test," 6/5/04) about the defense and criticism of DNA testing performed by the Virginia Division of Forensic Science in connection with the Earl Washington case. The Virginia test results conflict with tests performed by Dr. Edward Blake in California (see earlier post below).

McGuireWoods band smoking breaks

The Richmond paper reports here ("Smoking policy stinks, some say," 6/5/04) that the McGuireWoods firm has outlawed smoke breaks for its lawyers and staff.

DNA guru Blake to Virginia - Coleman samples not leaving my lab

The Roanoke paper reports here that DNA expert Edward Blake has declared that he will not release the DNA samples from Roger Keith Coleman stored in Blake's California laboratory. Blake questions whether the Commonwealth could or would do an adequate job of testing the sample.

Years ago, Blake's own evidence was cited by Judge Williams in support of the Court's conclusion to deny post-conviction relief to Coleman, who was later executed by the Commonwealth. Coleman v. Thompson, 798 F. Supp. 1209 (W.D. Va. 1992).

Regarding Blake's role in the Coleman case, the Roanoke paper notes: "Blake has had the sample in cold storage since 1990, when he was selected by Coleman's attorneys to perform DNA testing. At the time, Coleman was challenging his conviction, and his attorneys hoped technology not available at the time of his 1982 trial would clear him. It did not. Blake found that Coleman was within 2 percent of a population that could have produced the sperm sample."

Gilmore throws the book at Warner

The AP has this report on Saturday's remarks by former Governor Gilmore lashing out at Governor Warner.

Federal appeals court nominee went three years without a law license?

Via this post from Marcia Oddi, the Washington Post has this article ("Appeals Court Nominee Let His Bar Dues Lapse, 6/4/04) that says the new nominee to the U.S. Court of Appeals for the D.C. Circuit practiced in D.C. for three years in private and public positions while his license was suspended for not paying bar dues.

An unrelated story ("Phony Ex-Judge Receives 2 Years," 6/4/04) in the Washington Post begins: "A local businessman who has been sanctioned again and again over the past two decades for misrepresenting his legal credentials was sentenced yesterday to a two-year prison term for failing to heed earlier court orders.

It was the maximum the judge could impose and the stiffest penalty yet in the long saga of Simon Banks, 65, who kept advertising himself as a former administrative law judge, even though he had never even passed the bar."

Correction about strange wiretapping ruling

The criminal case described in this AP article is in Greene County, not Spotsylvania County. The article says:

"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."

I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.

Under Va. Code 19.2-61,

"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and

"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."

. . .

More on the Republican Party's party

The Charlottesville paper has this article ("Va. GOP gathers for convention," 6/5/04) about the Republican convention, including some discussion that only Republicans should be allowed to cast ballots in Republican primaries. The article goes on to talk about how a potential Republican candidate in 2009 impressed one commentator by the way he attracted a lot of Democratic voters. So, do Republicans want the votes of Democrats, or not?

City says response to FOIA request will cost $16,000

The Daily Press has this story ("Information request tops $16,000," 6/5/04) about a fellow in Suffolk who was told his FOIA request would cost him $16,000.

Ah, that sounds completely bogus. It is like the problem sometimes with written discovery, where one side apparently can't write out adequately what it wants and the other side apparently can't read adequately to produce what was requested. I suspect that quite a few of the 10,000 documents said to be within the scope of the FOIA request are not really within the scope of the FOIA request, or if so, the FOIA request could be easily be rewritten to get at whatever is the nub of the matter.

Nobody knows the actual cost of a FOIA response. I sometimes think the General Assembly should fix a fee schedule for FOIA responses and leave it at that, take the cost issue out of the hands of government officials who even with the best intentions can only make some wild guess. The other thing of course is that public documents ought to be available online anyway, to the maximum extent possible consistent with the constraints of cost, privacy, and security.

Docket control in general district court

The Norfolk paper has this article ("Traffic courts limit number of cases heard per session," 6/5/04) about new efforts to control the traffic offense docket in general district court in Norfolk.

The article says: "At the urging of Leroy Rountree Hassell Sr., chief justice of the Supreme Court of Virginia, district courts are trying to reduce the wait for cases to be called."

Chief Justice Hassell is always working on something.

S.C. doctor proposes at AMA convention to deny medical treatment to trial lawyers

The Richmond paper has this article ("Doctor's malpractice cure doesn't care for attorneys," 6/5/04) about a proposal at the American Medical Association convention that no doctor should treat trial lawyers.

The doctor's proposal did not mention whether coverage would be provided to the officers, directors, and shareholders of malpractice insurance companies, or whether there would be an exception for trial lawyers representing injured doctors, their spouses, children, friends, and relatives. He did leave out the children of trial lawyers.

Somebody's fooling us about the Va. Economic Development Partnership

As made plain by this article ("Wampler sees VEDP board disconnect," 6/5/04) in the Bristol paper, this article ("Wampler blames commerce secretary for bill's veto," 6/5/04) and this article ("Kilgore sides with Wampler in dispute over VEDP appointments," 6/5/04) in the Kingsport paper, either the Republican legislators or the Warner administration is making stuff up about the effect of legislation related to the membership of the board of the Virginia Economic Development Partnership and the rationale for Governor Warner's veto.

Friday, June 04, 2004

Suppression of evidence by Judge Smith of E.D. Va. reversed

In U.S. v. Foreman, the Fourth Circuit in an opinion by Senior Judge Hamilton, joined by Judge Luttig, with Judge Gregory concurring in part and dissenting in part, reversed Judge Smith's ruling on a suppression motion related to the drugs found in the defendant's vehicle.

I've got the vague impression from reading opinions over the years that Judge Smith is pretty sound.

Judge Gregory, in his separate opinion, says, among other things, "Before this case, I was not familiar with the notion that compliance with the letter of textbook driver’s education instructions would trigger police suspicion, i.e., both hands on the wheel, no rubbernecking." Judge Gregory also suspects that part of the problem on appeal was bad briefing: "the Appellee’s briefing may be partly to blame for the majority’s willingness to accept the government’s narrative."

Reading through this opinion, I wondered about the race of the defendant, and I didn't see it mentioned until I got to Judge Gregory's opinion.

More on the statute of limitations for post-contractual section 1981 claims

Following the Supreme Court's decision in May in the case of Jones v. R.R. Donnelley & Sons, Co., the Fourth Circuit in James v. Circuit City Stores, Inc. held in an opinion by Judge Williams, joined by Judge Widener and Judge Motz, that claims under section 1981 "alleging discrimination after the formation of the employment relationship (post-formation conduct claims)" are subject to the four-year statute of limitations under 28 U.S.C. 1658.

This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.

In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.

Virginia parties set to party

Hugh Lessig of the Daily Press has this piece ("In Richmond and Roanoke, it's schmooze time," 6/4/04) on the upcoming state party conventions in Virginia.

Fiber-optic connections in Scott County

The Kingsport paper reports here ("High-speed Internet coming to rural Scott County homes," 6/4/04) that the Scott County telephone co-op is receiving a federal grant to bring fiber optic connections to some homes in Scott County.

Thursday, June 03, 2004

Man who ran after trooper with skillet ruled insane

The Winchester paper has this report ("Judge Finds Skillet-Wielding Attacker Insane," 6/3/04) on the successful insanity defense in a Frederick County case for a man who tried to clobber a state trooper with a skillet.

Losers in court, anti-loggers turn to civil disobedience training

The AP reports here that opponents of logging in the Jefferson National Forest in Southwest Virginia are learning civil disobedience techniques to fight logging.

One step over the line

This Washington Times editorial calling for the impeachment of the federal judge who ruled against the federal Partial-Birth Abortion Act goes off in the wrong direction. It is difficult to expect that many trial court judges, negotiating the grisly appellate precedents and expert testimony on this subject, would have ruled differently.

More and more candidates for 2005

This Washington Post article ("Lines Forming for '05 Va. Candidates," 6/3/04) studies the list of likely and unlikely statewide candidates for 2005.

Accused mouse planters protest their innocence

The Norfolk paper reports here ("Mother, son deny placing mouse in soup," 6/3/04) that the mother and son accused of planting a mouse in their soup at the Cracker Barrel say they didn't do it.

Evidence overheard on telephone by eavesdropping dad ruled inadmissible

The AP has this report on a court rulingin Spotsylvania County that defense lawyers convinced the trial court judge in a molestation case to rule out evidence of what the victim's dad overheard on the telephone, based on the Virginia wiretapping laws.

Wednesday, June 02, 2004

Pedophilia and acceptance of responsibility for purposes of federal sentencing

In U.S> v. Kise, the Fourth Circuit in an opinion by Judge Gregory, joined by Senior Judge Hamilton and with Judge Luttig separately concurring, takes on the question of how a pedophile can make an acceptance of responsibility for purposes of the federal sentencing guidelines.

This might be the creepiest opinion Fourth Circuit opinion I've read.

Bacon's Rebellion

Apparently, this blog is on a short list of Virginia blogs and websites posted on Bacon's Rebellion, which has among other things posted occasional commentary (such as this one and part of this one) by my old boss, Jack White.

No vote for Goodlatte from UNC law professor on use of international law

This post from IsThatLegal? is downright ungentlemanly in its opposition to the Congressional resolution sponsored by Rep. Goodlatte of SW Va. and others in opposition to the Supreme Court's citation to international law in construing the U.S. Constitution. Geez, I'm in favor of the resolution, not that anyone asks.

If you can't cite unpublished U.S. appeals court opinions, why, all that stuff from Europe ought to be way out of bounds.

Gate City mayor wants do-over

The Kingsport paper reports here ("Gate City mayor calls for new election," 6/2/04) that it would be cheaper to have another election than to fight the challenge filed by the opponent who lost to him by two votes.

Coeburn town council candidate indicted for giving false address

The Coalfield Progress reportshere ("Kennedy indicted for giving false address," 6/1/04) on a Wise County man indicted for a giving a false address on election papers related to his candidacy for town council in Coeburn.

Judge Ledbetter to retire in May

Via VLW, the Fredericksburg paper reports here ("Judge Ledbetter to resign in 2005," 6/2/2004) on the retirement plans of Judge William H. Ledbetter, Jr., of the 15th Circuit.

Tuesday, June 01, 2004

Southwest Virginia man charged with stealing a reel of The Passion of the Christ

This wild story ("Man charged with theft of 'Passion' reel," 6/1/04) from the Roanoke paper chronicles the fellow who stole a reel of the film and tried to sell it on e-Bay. A woman named Rhonda spotted the goods online and turned in the bandit to the authorities.

Are they for or against obesity?

As reported here, Williamsburg is hosting a summit this week on obesity. Williamsburg may be a good town for it, whatever I know about obesity I learned while living and eating there for three years.

New federal courthouse planned for Newport News

The Daily Press reports here ("New federal courthouse planned for Newport News," 6/1/04) on the plans for a new federal courthouse on the peninsula side.

Commentary on Southern Baptists and public schools

The Norfolk paper in this editorial laments the idea that the Southern Baptist children are being told to get out of the public schools, because such an exodus would deprive them of "the opportunity to weigh their values and ideas against those of others, and vice versa."

How odd. Elementary school is not a forum for moral debate. Much of what a teen or pre-teen might learn through from his or her peers is just plain bad. The NY Times had this story today about a family court judge in Las Vegas who blames the Vegas environment for the problems with his daughter. He would have shielded her from the bad influences, if he could have.

I heard it on ESPN Radio this afternoon - the teams you like at age 9 are the ones you will root for at age 49. The kind of kid you are at age 9 might have a lot to do with what kind of person you are at age 39. I would have guessed that keeping kids away from others with unacceptable ideas until they are old enough is precisely the point (or one of them) in favor of home school or private school, to raise kids "right" without someone else telling them another way to go.

Summary judgment by Judge Wilson affirmed in ERISA and COBRA case

In Estate of Perry Weeks v. Stores Co., Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Williams, and Gregory affirmed the entry of summary judgment for the employer in a W.D. Va. case brought under ERISA and COBRA with the claim the decedent wasn't notified that he could have continued his insurance coverage.

Report of age of concluded civil cases in Virginia

According to this report, I must have two or three of the oldest cases in Southwest Virginia, or does it just seem that way? The report shows the Age of Concluded Cases for all the Virginia Circuit Courts, during 1996-2003.

Conviction for attempted robbery reversed even though sufficiency of evidence not raised at trial

In Lewis v. Com., the defendant got one of the counts on which he was convicted reversed, where he was convicted of attempted robbery with respect to a guy who was outside the building where the crimes occurred and got shot as soon as he came in the door.

The ABA report on Virginia court-appointed lawyers and public defenders

Here is the news release, here is the executive summary, and here is the full report commissioned by the American Bar Association on the defense of indigent criminal defendants in Virginia.

Monday, May 31, 2004

24 patents for Virginia Tech researchers in 2003

This press release describes the 24 patents obtained by Virginia Tech researchers in 2003, including a gel that fights sexually-transmitted diseases.

Some Virginia legislators do not approve of some kinds of contraception, but I've not heard whether they have anything to say about this new invention from Va. Tech.

Well, there's gratitude

After the hundreds of times I've linked to the Roanoke Times, they've come out editorially against blogging, as stated in this post from Spacecraft.

Actually, although I enjoy the Roanoke paper very much, I often write to complaint about some niggling detail or another, which is what they get for putting the e-mail addresses of the reporters right by their stories.

One delegate's views on improving indigent defense in Virginia

The Daily Press has this commentary by a Republican member of the House of Delegates on improving the defense of the poor in criminal cases in Virginia.

Two determined women athletes

The Richmond paper has this story of a U.Va. athlete who contracted encephalitis and lost her memory but came back to the track and just earned her Master's degree.

The Baltimore paper retells here and here the story of Rayna Dubose from Virginia Tech. I've posted articles about her before. I hope she lives a long and happy life.

Governor Warner declares in favor of increased tax on car sales?

This column from the Richmond paper says that Governor Warner views raising the cost of getting title to a new car as a likely source of revenue for transportation costs.

Governor Warner as future Senator?

This column from the Daily Progress suggests that Governor Warner will be elected U.S. Senator as his just reward for being a good governor.

That seems like hype built on hype to me. Governor Warner might get credit (or blame) for his intentions, but since the Republicans controlled the legislature, they get the bulk of the credit and the blame for whatever comes of this past year's legislative session.

Still yakking about the car tax

The Washington Times has this report ("Car-tax foes vow reversal next year," 5/31/04) that says car tax foes have taken up the cry of Cubs and Red Sox fans: wait 'til next year.

The only car tax foes (other than former Governor Gilmore) quoted in the article were from Northern Virginia, and understandably so, since the abolition of the car tax involved a massive redistribution of money from the Commonwealth to localities in Northern Virginia.

Experiment with 400 Tablet PCs at U.Va.

The Richmond paper has this report ("Electronic notebooks are on tap at U.Va.," 5/31/04), the Norfolk paper has this report ("Microsoft partnership will put tablet PCs in U.Va. classrooms," 5/31/04), and BusinessWeek has this report ("The Tablet: Big Machine on Campus?," 6/1/04) about 400 Tablet PCs that will be given to students as part of an experiment at the University of Virginia.

More Overlawyered on Virginia anti-same sex partnership contracts statutes

Overlawyered has this post on the new Virginia statute, including among other things some discussion of one author's defense of the statute in the National Review Online.

Sunday, May 30, 2004

Recalls as function of slack majority manipulated by energized minority

Via Election Law, this article discusses voter recalls, from a setting in Michigan.

I read quite a lot about the recall effort in Bristol, TN, including this letter from a recall worker, which might be viewed as evidence in support of the thesis that an energized few are what makes a recall effort go.

Ripples from tax votes affect fundraisers, assignments

Lessig & Payne have this column on some aspects of the fall-out among legislators from their votes for or against the tax increases - including support for some in fundraising efforts, removal of others from assignments on commissions.

Profile of retiring Circuit Court judge from Prince William County

The Washington Post has this interesting profile ("County Judge Nears End of Oft-Storied Career," 5/30/04) of Judge Herman A. Whisenant, Jr., retiring from the bench in Prince William County. The article says:

"Since the early 1990s, Whisenant has overseen trials involving grisly, often jolting crimes, including the notorious case of Lorena Bobbitt, the woman who sliced off her husband's penis and was found not guilty by reason of insanity, as well as the capital murder trial of Justin Michael Wolfe, a 21-year-old drug kingpin whom Whisenant sentenced to death in 2002 for hiring a friend to assassinate his marijuana supplier."

How did Moody's become the arbiter of political wisdom in Virginia

This editorial from the Norfolk paper says the decision on Virginia's bond rating bodes ill for the political fortunes of Senator Allen and AG Kilgore, as it "vindicates Gov. Mark Warner and the courageous lawmakers who voted for tax increases and tax reform in the 2004 General Assembly."

Jim Gilmore as the Doug Wilder of Republicans?

Jeff Schapiro has this column comparing Jim Gilmore to Doug Wilder as the party member that party regulars just wish would go away - without taking his supporters with him.

Best book I know by a WWII veteran from Abingdon

This Memorial Day one veteran's story I recollect is that of H.C. Kiser, Jr., who was one of my Sunday School teachers, and who was shot down over Italy in World War II. He has written Called to Be His Servant, H.C. Kiser, Jr.: A Biography, which includes some aspects of his POW stories and other interesting details about his life.

One part of the story that sticks in my mind is that when he was about to bail out, he saw that his parachute had come unraveled and was strewn through the plane, so he wadded it up against his chest and jumped.

Abuse in getting criminal warrants

The Roanoke paper has this article ("Warrant system can be abused," 5/30/04) about how the system of getting criminal warrants is abused by people to suit their personal motives. Of course, as many stories like this that I've heard, I've heard as many about magistrates who would not issue warrants, for one strange reason or another.

Certainly, the magistrate system has been improved in my time, but there is still some room to make the system more objective and uniform.