Friday, July 30, 2004

Muhammad brief published

The Virginia Supreme Court website has the appellate brief of John Muhammad, which is about 140 pages.

I wonder how he got that many pages. I thought one of the ways that Virginia law oppresses capital defendants is by limiting the length of their briefs.

Proposed rule changes for e-filing of petitions for rehearing in Virginia state court appeals

Via VLW, the Virginia Supreme Court is now soliciting comments on proposed rule changes that would generally require that petitions for rehearing in appeals to the Virginia Supreme Court and the Virginia Court of Appeals would be filed electronically by e-mailing them to some address on or before 11:59 pm of the day they fall due.

The comment indicates that this is intended as something of a pilot program. I suppose they have singled out petitions for rehearing on the theory that those petitions are all worthless anyhow, so we can use them as guinea pigs without any real harm to anybody, sort of like lab experiments on earthworms. I wonder how many petitions for rehearing that would be affected by these rule changes are typically filed in a year. It says here that there were 421 "rehearings filed" in the Virginia Supreme Court in 2003.

Thursday, July 29, 2004

Virginia AG says people can't just be offended by everything

In this interview with the Coalfield Progress, Attorney General Kilgore said, among other things, with respect to Establishment clause litigation: "People can't just be offended by everything."

Fourth Circuit reverses Judge Kiser's exclusion of evidence in trucking case

In U.S. v. Sanders, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Shedd and Senior Judge Hansen from the Eighth Circuit, sitting by designation, reversed a ruling by Senior Judge Kiser of the W.D. Va. excluding evidence in a criminal case against a trucking company for attempting to conceal violations of the federal highway safety regulations that limit the hours of service by commercial truckers.

Parents and not school system have burden of proof on sufficiency of IEP

In Weast v. Schaffer, the Fourth Circuit in an opinion by Judge Michael joined by Judge Wilkinson with Judge Luttig dissenting held that in administrative proceedings under the IDEA to determine the sufficiency of the student's IEP, the burden of proof is on the parents, and not on the school system. The Court noted that there is a split in the circuits on this issue. Judge Luttig in his dissent expressed his fears that the policies of the Act would be defeated, particularly where unsophisticated parents were required to master the complexities of the IDEA to meet the burden placed upon them by the majority's opinion.

No freedom of expression in NCAA football this fall

The Roanoke paper has this article ("New NCAA unsportsmanlike guidelines go the extra yard," 7/29/04) on new rules prohibiting from this year's college football games various forms of unsportmanlike display, including "imitating a slash of the throat, performing a military-style salute, resembling the firing of a weapon, bowing at the waist, punching one's own chest, giving the first-down signal, placing one's hand by the ear."

More on Chief Judge Wilkins and the USSG

CrimLaw wonders here whether Chief Judge Wilkins will recuse himself when the Fourth Circuit considers the application of Blakely to the U.S. Sentencing Guidelines, because of his former position with the U.S. Sentencing Commission.

The five-day bench trial in the dog-fraud case

The Daily Press has this report ("This trial was pretty doggone long," 7/20/04) on the lengthy proceedings in the bench trial of the woman accused of scamming would-be buyers of purebred dogs.

Judge Friedman of E.D. Va. rejects expert testimony as unreliable, grants summary judgment in police shooting case

The Norfolk paper reports here ("Judge dismisses lawsuit over police shooting of teen," 7/29/04) on the ruling by Judge Friedman of the E.D. Va. in favor of the defendant in a case involving a fatal shooting, where the Court concluded there was no constitutional violation since the decedent had aimed his car at the police officer who then shot him. The article notes that "Friedman found that the conclusions reached by the Schatzhuber family’s forensics firearms expert, William Conrad, were not reliable," which suggests some kind of Daubert ruling.

More on the Roanoke city manager's defamation case

The Roanoke paper has this update ("Burcham suit to get outside judge," 7/29/04) which says among other things that defamation suits by local public figures are rare in the Roanoke area.

I'm no expert, but I'd say Ms. Burcham is a public figure for purposes of defamation law, which makes me think her chances of recovery are quite limited, but then again, right now the defendant doesn't have a lawyer, so maybe he won't figure out how to litigate the NY Times v. Sullivan malice issues.

AG Kilgore comments on Gate City mayor's election

In this story ("Kilgore urges Gate City to 'move on'," 7/29/04) from the Kingsport paper, Virginia Attorney General Kilgore says the Gate City election made the Richmond paper because his mom is the registrar, but otherwise the story is no big news, the town needs to get a mayor and move on.

Wednesday, July 28, 2004

Motions to recuse judges

I was sitting around a courthouse today, watching the other cases go by, and in one matter the lawyer argued a motion to recuse the judge, which was denied. The lawyer argued, in essence, that after a three-day trial, in his 12-page opinion, the judge got some of the facts wrong. The case was appealed, and the trial court's findings on the merits had been affirmed. The judge said, lookit, this was a complex and hardfought case, and I put into a lot of work into it, and the appeals court affirmed what I did, and there's just no way to infer bias from these alleged mistakes.

I'm not sure I would have filed that motion. The only recusal motions that I've ever known to work are those based on some kind of relationship between the judge (or the prosecutor) and the victim or one of the litigants in a civil case.

What's a former West Virginia convict to do to possess a gun legally in Virginia?

In Farnsworth v. Com., the Virginia Court of Appeals in an opinion by Judge Clements dismissed the arguments of the defendant who claimed that the restoration of his civil rights in West Virginia precluded the use of his West Virginia conviction as a predicate for subsequent conviction in Virginia for being a felon in possession of a firearm under Va. Code 18.2-308.2.

Reading the opinion, it seems like there may be some kind of constitutional issue out there somewhere, but Farnsworth didn't articulate it, and that is, the statute apparently excepts the convictions of those whose civil rights are restored by the Governor of Virginia, but not those whose civil rights are restored by some other governor. Could Farnsworth have gotten his civil rights restored in Virginia in connection with his West Virginia crime? I'm not sure that he could. This suggests to me that somehow the statute discriminates against out-of-staters, which might violate Due Process or the Interstate Commerce clause or one of those good things.

PDF tips and tricks via the D. Minn. website

Via this post from PDF for lawyers, the U.S. District Court for the District of Minnesota has offers tips and tricks for PDF Troubleshooting.

More on Blakely and the Fourth Circuit

Southern Appeal says here that the Fourth Circuit's upcoming en banc ruling on the application of Blakely to the USSG will carry particular weight because Chief Judge Wilkins was "the principal author of the Guidelines."

On bad adjectives in motions and briefs

This post from the Uncivil Litigator is about a reply that includes the sentence: "X's motion is patently frivolous, obstructionist, and a self-centered waste of legal resources."

Ah, when I have time, I go back through a paper and whack all the mean words, like these. For that matter, I try to whack all the stupid adjectives I can. Adjectives, in written papers, don't win cases, to my observation.

Appeals court in one of those other Commonwealths says low pay for court-appointed counsel unconstitutional

According to this post from the Paper Chase, the Supreme Judicial Court of the Commonwealth of Massachusets has declared that the low rate of pay for court-appointed lawyers is violating the constitutional rights of some indigent defendants.

More on the Virginia Creeper Trail

This article from includes a segment on Abingdon and the Virginia Creeper Trail.

We drove through Damascus coming back from the beach. The amount of trail-related stuff there is incredible.

Tuesday, July 27, 2004

Commentary on Bush and terrorism talks about Haynes

This commentary suggests that if President Bush is re-elected, then Fourth Circuit nominee William J. Haynes might be appointed to the Supreme Court of the United States.

D. Md. says Blakely applies to guidelines

In this story ("U.S. judge criticizes sentence guidelines," 7/27/04) the Baltimore Sun reports on another federal judge in the Fourth Circuit who thinks the constitutionality of the USSG is suspect. The article notes that "the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, is scheduled to hear arguments about the issue next week.

Democrats want to depose Judge McClahan, others from AG's office

Stealing a page from the Kenneth Starr playbook, the Democrats in the eavesdropping case are wanting to depose everybody who had any responsibility in Attorney General Kilgore's office, and hope that something nasty shakes out, or so this article ("Dem suit targets Kilgore," 7/27/04) from the Fredericksburg paper suggests.

Monday, July 26, 2004

Virginia No.3 in E-Government

It says here that Virginia is No. 3 among the states in e-government.

More on the Kilgores and the Gate City election that went bad

The Richmond paper had this article ("Updated: Kilgore's family cries foul," 7/20/04) with news of how Scott County voted to cut off funding for one of the employees of the office of the registrar of voters for Scott County, Ms. Kilgore.

If not Kilgore, maybe Wampler?

Muckraking commentator Jeff Schapiro tries to make a column out of the question Kilgore aside, who could be GOP nominee?, and the best name he can come up with is William Wampler from Bristol:

"He's Southwest Virginia-born, the yuppie son of a legendary congressman, a nephew of a famous U.S. senator, an outdoorsman who can simultaneously read a newspaper and bag a spring gobbler, a Reserve officer in the Army, an expert on health care, somewhat right on abortion and a Senate Labor and Commerce Committee chairman who has helped convert Bristol to an e-enclave.

One more thing: He sounds like Kilgore, only an octave lower - political and actual."

Sunday, July 25, 2004

$8.3 million negligence verdict against Wintergreen

The Charlottesville paper has this report ("Lawsuit not Wintergreen's first," 7/25/04) on an $8.3 million jury verdict earlier this month against the Wintergreen ski resort for injuries to a young skiier who collided with a snow groomer.

Update on reform of 21-day rule - not many innocence petitions have been filed

The Roanoke paper has this report ("Only a trickle of innocence writs filed," 7/25/04) on the limited number of post-judgment petitions that have been filed since the change in the law effective July 1 which modified the 21-day rule in criminal cases in Virginia.

Beavis and Butthead meth labs in Southwest Virginia

The Roanoke paper has this article ("An old drug's newfound popularity has Southwest Virginia on edge," 7/25/04) on the increasing problem of methamphetamine production in Southwest Virginia.

Summary of work-product doctrine and attorney-client privilege in Virginia

From the Virginia judicial website, here is an outline from a presentation by privilege guru Tom Spahn summarizing the law of work-product and attorney-client privilege in Virginia.

One mark at a time rule passes muster with Fourth Circuit in trademark case

In Humanoids Group v. Rogan, the Fourth Circuit upheld the challenge brought by an unsuccessful trademark application of the interpretation by the U.S. Patent and Trademark Office that it can deny an application for registration of a mark that includes not one but two marks.

Rehearing denied by vote of 5-8 in plea bargain case, over Judge King's dissent

On the petition for rehearing in U.S. v. Holbrook, the Fourth Circuit voted 5-8 against rehearing en banc, the five being Judges Widener, Niemeyer, Michael, Motz, and King, not the likeliest of combinations. Judge King, who dissented from the panel decision, also dissented from the denial of rehearing en banc.

Fourth Circuit rules against prayers at town council meetings in S.C.

In Wynne v. Town of Great Falls, the Fourth Circuit in an opinion by Judge Motz, joined by Judge King and Senior Judge Hansen (sitting by designation), affirmed the judgment entered by the district court, which concluded that the "practice of members of Town Council invoking name(s) specifically associated with the Christian faith at Town Council meetings violate[d] the Establishment Clause of the First Amendment to the United States Constitution."

Chief Judge Jones finds warden, others liable to inmate in Wallens Ridge case

In Sadler v. Young, Chief Judge Jones, acting on the plaintiff's post-trial motions, overruled a defense verdict for the defendants and concluded that the plaintiff was entitled to judgment as a matter of law on liability and ordered a new trial on damages only. The case involved the use of five-point restraints on the plaintiff, an inmate, who was restrained in this manner for nearly two whole days. The defendants included Warden Stan Young, as to whom the Court found the plaintiff had presented sufficient evidence for supervisory liability under 42 U.S.C. 1983. The other defendants were three corrections officers. The plaintiff was one of the inmates brought to Wallens Ridge from Connecticut.

CSM writes up Ninth District race, cites outsourcing by Travelocity

In this article ("Outsourcing resonates in Virginia race," 7/21/04), the Christian Science Monitor notes the outsourcing issue that is part of the campaign debate in Southwest Virginia, describing in particular the relocation of call center jobs by Travelocity from Clintwood to India.

The charge against former Governor Gilmore you never heard about

According to this court filing, apparently in the Circuit Court in Alexandria, former Governor Gilmore while in office was guilty of inaction with respect to the "grave issue of the ongoing, worldwide, clandestine UFO/E.T. invasion of and violation of human rights."

Just say no to incorporating by reference

Abstract Appeal has this post with a link to an Eleventh Circuit opinion that says you can't just incorporate by reference in appellate brief the briefs you filed in the district court.

Geez, I've got a case in the Sixth Circuit right now where the pro se appellant did just that. In fact, he didn't restate any of his district court arguments, just wrote about the facts and his new arguments, then listed his earlier briefs. Hmm . . . .

On self-exploitation by Roanoke teens

The Clerk has this post disagreeing with the comments by the Roanoke judge in the case of the teen girls who e-mailed revealing photos of themselves and were charged with child pornography. He notes further that the girls might have to register as sex offenders under Virginia law.

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.