Wednesday, October 06, 2004

Court appearance no grounds for public policy discharge claim

In Sewell v. Macado's, Inc., Judge Conrad of the W.D. Va. denied the defendant employer's motion to dismiss as to all but the plaintiff's wrongful discharge claim, but concluded there is no public policy wrongful discharge claim based on Va. Code 18.2-465.1. The plaintiff claimed she was fired for attending a hearing in a domestic relations matter in California.

Federal jury finds accused killers guilty

In the federal prosecution in Charlottesville of two men accused of robbing and killing drug dealers, the Charlottesville paper reports here ("Men found guilty in capital trial," 10/6/04) that the defendants were found guilty, and now the case will move to the sentencing phase.

Mistrial with jury deadlocked in the Burrow case

The Roanoke paper reports here ("Judge declares mistrial in Burrow case," 10/6/04) and the Lynchburg paper reports here ("Jury declares mistrial in Burrow case," 10/6/04) that Judge Turk of the W.D. Va. has this afternoon declared a mistrial in the second trial of D-Day memorial fundraiser Richard Burrow after the jury was unable to reach a verdict.

Interview with a Commonwealth's Attorney

The Fredericksburg paper has this interview with the head prosecutor in fast-growing Stafford County.

October 6, 1964

Yes, sports fans, I was born at 9:18 am forty years ago on October 6, 1964.

On that day, the No. 1 song was Dancing in the Street by Martha & the Vandellas. Towards the World Brain, by Dr. Eugene Garfield, was first published October 6, 1964. Also on that day, the Beatles recorded "Eight days a week."

Stuff on TV that night included new episodes of The Fugitive, Man from U.N.C.L.E, Petticoat Junction.

The Roanoke paper reported on October 6, 1964, that Virginia Tech might increase the number of women in its student body beyond 300.

Other lawyers besides me born that day: Michael Chase of South Carolina, Caroline Fiore of Massachusetts, Holly Grubs of California, Joseph Jevic of Louisiana, Daniel Konicek of Illinois, Jennifer Palmer of Colorado, Mark Powell of Pennsylvania, and Katherine Staton of Texas.

It appears that at 9:18 am on October 6, 2004, I will be driving to a meeting in Lee County.

Tuesday, October 05, 2004

Multipliciousness argument does not preserve issue for appeal

In Campos v. Com., the Virginia Court of Appeals in an opinion by Judge Frank joined by Judge Clements and Senior Judge Willis held that the defendant's attempt to argue the "single larceny rule" would not be heard because it was not raised in the trial court, even though the Commonwealth's attorney in his argument against the motion to strike denied that the claims were "multiplicious."

Years ago, we were involved in some litigation in Virginia. Some other litigation was pending in D.C. Opposing counsel referred to our claims as "duplicitous." At the time, I thought they meant to say "duplicative," but maybe they didn't. Maybe they meant "duplicious."

How to prove an escape

In McBrayer v. Com., the Virginia Court of Appeals in an opinion by Judge Bumgardner, joined by Chief Judge Fitzpatrick and Judge Elder, rejected the appellant's claim that there was no evidence he had committed the crime of escape, where the record showed the following facts: "the defendant was arrested for a felony, was taken to the precinct station in handcuffs, and left in the interview room. When the officers returned, the defendant was gone and could not be found in the building."

PTSD as occupational disease

In Petersburg (City of) Fire and Rescue v. Wells, the Virginia Court of Appeals in an opinion by Judge Elder, joined by Chief Judge Fitzpatrick and Judge Bumgardner, upheld the Workers' Compensation Commissions award to petitioner based on his claim of post-traumatic stress disorder as an occupational disease.

Court of appeals still working on writs of actual innocence

In In re Neal and In re Bui, the Virginia Court of Appeals denied writs of actual innocence, because the petitioners were relying on legal rather than evidentiary arguments or because the evidence was available prior to their conviction.

Hoping that other lawyers and petitioners will get the hint, the opinions conclude: "Because the issues addressed herein are of first impression and potential litigants and members of the bar may benefit from the directives herein, we direct the Clerk to publish this order."

Modifications to statute barring spousal support after cohabitation not retroactive

In Baldwin v. Baldwin, the Virginia Court of Appeals in an opinion by Judge Kelsey, joined by Judge Annunziata and Senior Judge Overton, held among other things that legislative amendment to Va. Code 20-109(A) regarding spousal support could not be retroactive, invoking the constitutional bar against impairment of contracts.

Art. I, section 10 of the U.S. Constitution provides: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."

Somebody in an unruly mood

UPI reports that shots were fired at the Bush headquarters in Tennessee.

The cost of living keeps rising

Via Inter Alia, it says here the cost of documents downloaded from PACER is going up from 7 cents to 8 cents. That's raw.

From the field to the truck to the stockyard . . . to the arteries

Waldo has this post in which he explains why it is that he no longer eats junk food. My uncle Tim and I had a somewhat analogous discussion about my cousin Mara, who has gone off to medical school in Richmond, and will not, he says, eat barbecue. (We had this discussion over lunch under the pink pigs at Sharon's in Kingsport.)

I would say that I'll never give up on junk food, but lately I've been doing a lot of reading about the whole food process for this new case under the Packers and Stockyards Act. . . which reminds me, there are websites where you can make a map of what states you have been in. (Just last week, my parents checked North Dakota, South Dakota, and Nebraska off their list of states to see and yes, they went to Bear Country, but I digress.) There ought to be something similar, where you can check off the titles of the U.S. Code under which you have had a case. Titles 9, 11, 18, 26, 28, 29, and 42 are the easy ones, everybody goes there. I've now been to Title 7 - probably the first time anyone has opened that particular volume of the Code in this office.

No-no websites for Virginia state employees

The Washington Post has this update ("For Many State Workers, an Unknown Restriction," 10/5/04) on how state law limits the access of employees of the Commonwealth to certain taboo websites.

Defense counsel in W.D. Va. death penalty case argue - no federal case here

The Charlottesville paper reports here ("Jury gets death penalty case," 10/5/04) that defense lawyers in the federal murder case in Charlottesville argued that there were no federal crimes committed, only state law crimes were committed that should have been prosecuted in state court (or something like that).

I've wondered, what is the basis for federal jurisdiction in that case (and I still don't know).

More on the issue of whether a detainer is an arrest, as in the Muhammad case

The Washington Post has this article ("Sniper Case Unsettles Usual Police Procedure," 10/5/04) with more discussion of the impact of the legal ruling in the Muhammad case, that a detainer is the equivalent of an arrest for purposes of the defendant's speedy trial rights under Virginia law.

Drug cases slowed by Virginia state forensic lab backlog

The Norfolk paper reports here ("Crime lab backlog delays drug cases," 10/5/04) on the effects of a backlog in the state forensic lab on the speed at which the courts can dispose of drug cases.

Arguments against using class rank in Virginia high schools

The Richmond paper has this article ("Is tide turning on class rank?" 10/5/04) with arguments for and against Virginia high schools recognizing class rank.

Monday, October 04, 2004

Tough world for rhinos

In today's news, dead rhinos have turned up in Northeast Tennessee (from the Johnson City Press, registration required) and southeastern Virginia (from the Norfolk paper).

The Tennessee rhino was fossilized. The Norfolk rhino had some kind of run-in with a zebra.

Leftover Kerry staffers in Virginia will endeavor to persevere

Man, it must be raw if you are a worker on a presidential campaign in a particular state, and headquarters decides that your state is not winnable, and so they cull the worthwhile staffers and send them off to some place where they might do some good, but leave you stuck behind in some place like Virginia, where, as it says here, "John Kerry is not giving up."

When is it too late to try to take a voluntary dismissal on your federal law claim in a removed case?

In Miller v. Terramite Corp., the Fourth Circuit in an opinion by Senior Judge Hansen of the Eighth Circuit, joined by Chief Judge Wilkins and Judge Williams, held that by waiting until after the completion of discovery and the filing of defendant's summary judgment to seek dismissal or amendment to drop its federal law claims, the plaintiff had waited too long, and the trial court was within its discretion in denying plaintiff's request to drop the federal question and seek a remand to state court.

Burrow jury hears closing argument

The Roanoke paper reports here ("Closing arguments under way in Burrow case; expected to go to jury this afternoon," 10/4/04) on the conclusion this afternoon of the presentations in the Richard Burrow D-Day fundraiser case.

Sunday, October 03, 2004

Oral argument before the Fourth Circuit in the cell phone case

This report describes oral argument in the cell phone preemption case before a Fourth Circuit panel of Judge Luttig, Judge Michael, and Senior District Judge Kiser of the W.D. Va.

The article makes it sounds like Judge Luttig gave the defendants' lawyer, Ken Starr, a hard time, but who knows what that means.

Bob Woodward on the Grounds

Alternet has this well-written account of Bob Woodward's recent appearance at the University of Virginia.

Judge Keith's opinion in the Muhammad case

Via Findlaw, here is the text of the order and the opinion by Fairfax County Circuit Court Judge Keith in dismissing the indictment against the sniper John Muhammand based on the Speedy Trial Act.

Sign wars in Roanoke

Beth Macy has this article about the competing campaign signs in Roanoke.

It reminded me of some years ago when I went to see my friend Roger Massengale, while Johnson County, Ky., was about to vote on whether to allow liquor sales, and in his frontyard, one sign said "yes" and one said "no."

Soldiers from U.Va-Wise

The Richmond paper had this article on two friends back from Iraq, one who is playing football and one who lost a leg, and who are among the many Highland Cavaliers who have served or are serving over there.

The article notes that "the College at Wise has the distinction of having a student population with one of the highest levels of need for financial assistance in Virginia more than 80 percent while also having the lowest amount of debt after graduation of any liberal arts college in the country," and many students earn money as reservists.

Activist at Tech declaims against mountain top mining

The Virginia Tech paper reports here ("Speaker denounces mountain top removal," 10/1/04) on a speech given by an opponent of mountain top mining, who said it can happen in Southwest Virginia, and who denounced President Bush as a "coal whore."

I'm sure the Tech graduates who are engaged in the coal business are thrilled that their alma mater provides a forum for this kind of thoughtful debate.

If coffee is a sin, what about a chili dog?

Will Baude speculates here on the morality of coffee. This slashdot series contemplates whether as coffee drinkers, we are really responsible for our actions.

I myself am about to feast on hot dogs with chili from Bunker Hill, a Southwest Virginia institution since, well, since I before I started eating. (My wife, not being from this area, never watched the Arthur Smith show - sponsored by Bunker Hill - and is somehow immune to the appeal of Bunker Hill chili.)

When I was an undergraduate, the University had a free hot dog promotion, to set a women's basketball attendance record at U. Hall, and it worked, more than 11,000 people showed up in a building that seats 8,500. In the hot dog line, I spotted one of my philosophy professors, whereupon the following exchange took place:

Me: "Professor Simmons, you eat hot dogs?"
He: "Yes, it's very disillusioning, isn't it?"

Regarding "Hot Dog Night," this page explains, of the AD who thunk it up: "In 1986, one of West’s inspirations ran afoul of the fire marshals when the athletic department made a school-wide drive to break an all-time women’s college basketball attendance record offering free hot dogs as an incentive. The record was broken, but not before overselling University Hall and crowding the aisles and fire exits. “And they were still lined up down to Emmet Street,” he chuckles."

On registering to vote

John comments on voter registration in this post.

When I turned 18, I too rushed to register. In those days, I lived in Pennsylvania, where party affiliation was listed with your registration. I registered as a Democrat, then promptly went out and voted in 1982 for the re-election of Dick Thornburgh and Robert Walker (best known to Virginia fans as the older brother of Wally Walker).

On the Ninth District race

In this post from Commonwealth Conservative, John predicts regarding the Ninth District race that it will "be the closest race in the 9th District since Boucher beat incumbent and political giant William Wampler two decades ago."

Here are some numbers from past Boucher races, via this site:

Boucher 76,227
William Wampler 75,009

Boucher 102,446
C. Jefferson Stafford 94,510

Boucher 59,864
Write-in 602

Boucher 113,309
John Brown 65,410

Boucher 67,215
Write-in 2,015

Boucher 133,284
Gary Weddle 77,985

Boucher 102,876
Steve Fast 72,133

Boucher 122,908
Patrick Muldoon 58,055
Tom Roberts 8,080

Boucher 87,163
Joe Barta 55,918

Boucher 137,488
Michael Osbourne 59,335

Boucher 100,075
Katzen 52,076