Saturday, February 04, 2006

From Honaker to Charlottesville to Pittsburgh to the Super Bowl

The Roanoke paper's Doug Doughty has this report from Honaker where they're looking forward to seeing Heath Miller in the Super Bowl.

One long-time resident is quoted as saying of the Heath Miller story: "It shows the kids that dreams can come true."

UPDATE: The other big Honaker story this week involved a mountain of Pop-Tarts on Route 80.

100+ pop culture dogs

Via Professor Althouse, I see this list of 100 greatest pop culture dogs.

Continuing this blog's long-running good old dog theme, I'm glad that Farley made the list. And Bandit from Jonny Quest. And Fleegle from the Banana Splits.

Some favorites I would add to the list - Verdell from As Good as It Gets, Satchel Pooch, Joe, Fred from Smokey and the Bandit, Duke from the Beverly Hillbillies, Murray from Mad About You, and the lads from Magnum, P.I (and if wolves count, "Two Socks" from Dances with Wolves).

UPDATE - Also, I would add Grimmy and Earl.

Virginians with a driveway read this

On rehearing en banc, the Virginia Court of Appeals affirmed the convictions in Robinson v. Com., the case where the police officer noted a line of parked cars on and about the property as he drove up the defendants' driveway, and from there saw some teenagers drop their beer bottles and run away, which led him to discover that the defendants were giving alcoholic drinks to underaged persons.

Earlier, a three-judge panel had affirmed the convictions, in a split decision, with Senior Judge Annunziata dissenting. Judge Humphreys wrote the majority opinion for the en banc court, as he did for the panel. Judge Baumgardner, joined by Judge McClanahan, concurred in the result but indicated his view that the majority opinion is overbroad. Judge Elder concurred in part and dissented in part. Judge Benton wrote a separate dissent, and stated his agreement with Judge Elder's opinion and the earlier dissent by Senior Judge Annunziata.

The majority held that the officer did not violate the Fourth Amendment by driving up the driveway, and that once the officer saw the teenagers drop their beers and make a run for it, "his further intrusion onto the property was permissible pursuant to the exigent circumstances exception to the warrant requirement."

On the first issue, Judge Humphreys began with the general statement: "It is generally recognized that, absent any affirmative attempts to discourage trespassers, owners or possessors of private property impliedly consent to have members of the general public intrude upon certain, limited areas of their property." As a result, "areas of the curtilage that a visitor could reasonably be expected to cross when approaching the front door—for example, the driveway, front sidewalk, and front porch — are generally exempted from Fourth Amendment protection" and "if the property owner has impliedly consented to have members of the public use a particular 'path' when attempting to access his home, he has waived any reasonable expectation of privacy in areas of the curtilage associated with that 'path.'" This consent, in turn, extends to police officers, and "is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises." Finding no such evidence, the Court noted that Mrs. Robinson "did not erect any physical barriers barring entry onto her property," nor "did she post any signs indicating that the public in general — or police officers in particular—were not welcome to enter the property and approach the front door." Regarding whether the officer had exceeded the implied consent to approach the front door, the Court concluded, "[h]e did not stray from the “path” leading directly from the road to the front door (i.e., the driveway and the front sidewalk), nor did he attempt to conduct a general search of the premises through use of an overly intrusive means of investigation."

The Court also concluded, in the manner of U.S. v. Whren, that the officer's intentions as he drove up the driveway were irrelevant.

As for the exigent circumstances, the Court observed that the officer did not intrude beyond the path to the front door until after he had seen the underaged drinkers.

Friday, February 03, 2006

More from the Roanoke paper on counsel fees for indigent defendants

The Roanoke paper has this editorial once again supporting more money for the lawyers who supply the constitutional right to counsel for indigent criminal defendants.

It says in part:

"The General Assembly either will agree this term to pay a fair wage to lawyers who represent indigent defendants, or Virginia will be forced to defend in federal court allegations that it stands in contempt of the U.S. Constitution."

The Virginia effects of the West Virginia stand-down

The Roanoke paper reports here that "Virginia's coal-related businesses, including the Norfolk Southern Railway, hardly seemed to notice Thursday that West Virginia was talking about intensifying the safety measures in its coal mines."

The article also quotes someone as saying: "About half of the coal that comes out of West Virginia passes through Roanoke on its way to utilities and export markets."

What is the mark on the Steelers' helmets

This interesting post explains how it came to be that the "emblem called the Steelmark with three hypocycloids representing the coal, iron, and scrap steel materials used in steelmaking" came to be on one side of the football helmets of the Pittsburgh Steelers.

Thursday, February 02, 2006

Moving towards more money for court-appointed counsel

The Richmond paper has this article, which says that some legislators favor increased fees for court-appointed counsel for the poor, and also says that a D.C. law firm may be prepared to file suit challenging the effect of the fee caps on the right to counsel in criminal cases.

The D.C. law firm of Covington & Burling had this press release about Virginia's fee caps.

Nominations to the Fourth Circuit during the Clinton administration

Looking up Covington & Burling lawyer Sarah Wilson, I found a link to this very interesting article she wrote about the process of selecting federal judges during the second term of the Clinton administration, which includes a section on nominations to the Fourth Circuit.

Sarah Wilson is the lawyer cited in the Richmond paper as being ready to sue the Commonwealth over the inadequacy of fees for court-appointed counsel. More on that later.

Thanks for nothing, Old Zach - four things

In reply to this, here's mine:

Four jobs I’ve had:

1. Trashcan painter
2. Dishwasher
3. Golf caddy
4. Term paper ghost writer

Four movies I can watch over and over:

1. Casablanca
2. Forest Gump
3. The Blue Brothers Movie
4. Field of Dreams

Four places I've lived:

1. Flatwoods, KY
2. Blacksburg, VA
3. Woodstock, VA
4. Leola, PA

Four TV shows:

1. Sportscenter
2. Golfcentral
3. M*A*S*H
4. Inspector Morse

Four places I’ve vacationed:

1. Maui
2. Bermuda
3. Hilton Head
4. Dominica

Four of my favorite dishes:

1. Grilled filet with mushroom madeira sauce
2. Crab soup
3. Philly cheesesteak
4. Gyros

Four sites I visit daily (other than this one)

1. How Appealing
2. Blawg Republic
3. Blogsnow
4. RealClear

Four places I'd rather be:
1. a warm place, playing golf
2. a warm place, swimming in the ocean
3. a warm place, watching the sun go down
4. a warm place, having a nap

Four (law) bloggers I'm tagging:
1. Ken
2. Mark
3. Tom
4. Shane

Wednesday, February 01, 2006

Take that, you dough-bear snobs

From Blog 702:

Up until now, we had been forced to base our views on how to pronounce "Daubert" on information available from reliable secondary literature.

But now, a definitive answer can be given. We are honored to have heard from Jason Daubert himself, who says: "I have always found it easiest to suggest folks try pronouncing 'Dogbert' without the g."

Sunday, January 29, 2006

Can Spring be far behind?

We had a glorious sunny (but windy) day, and for the forty-somethingth time, enjoyed Sunday dinner watching Tiger Woods win. (OK, I enjoyed the golf on TV, but we both enjoyed Emeril's pot roast - sans turnips and parsnips.)

Will the warm days continue, or perhaps next month there will be a blizzard? We'll get the word later this week from Punxsutawney Phil. Yesterday, the Saltville woolly mammoth from the Museum of the Middle Appalachians predicted more winter.

Still more on the need to pay more for lawyers to represent the poor in criminal cases

With this editorial, the Staunton paper joins the chorus of commentators urging the General Assembly to find the funds to fix the fact that Virginia is dead last in what it pays lawyers to fill the Commonwealth's constitutional obligation to provide counsel for the poor in criminal cases.

Pink gorillas, French maids, and hula girls

Erinn Hutkin wrote this delightful story about the history of a singing telegram company in Roanoke.

The article says in part:

"There were pink gorillas, French maids and hula girls. There were babies, Santa's elves and the Easter Bunny. They dressed as everything, delivering an average of 45 telegrams a week.

There were messengers thrown in swimming pools. The messenger who walked through downtown Roanoke delivering a cake the wind smacked in his face.

There were the messengers who got snowed in at Catawba and had to spend the night dressed as Tarzan and Jane.

Based in Towers Shopping Center, Minnix usually had nine messengers. She went to high school drama classes to find employees. She went to singing groups, such as the New Virginians at Virginia Tech. Beauty pageant girls were good, too -- accustomed to being in the public eye.

But since that time, the guys and gals of Giggle Grammms grew up. Times changed, too.

In a post-9/11 world, Minnix would not feel safe sending a Playboy bunny to a bachelor party anymore."

The lessons of the Roberts and Alito nominations

Via How Appealing, Terry Eastland writes this editorial in the Weekly Standard, which says in part:

"In the end, a big lesson from the search for O'Connor's successor--a lesson of both the Roberts and Alito nominations--is that quality matters. Democrats were unable to convince anyone but themselves that the nation must maintain the Court's 'balance' by having someone like O'Connor succeed O'Connor (assuming, that is, such a person could ever be found, her method of judging being entirely unpredictable). In Roberts and then in Alito, the country saw smart, experienced lawyers who could handle anything thrown at them--without losing their cool.

Another lesson is that quality nominees can make a winning case for judicial conservatism. In making clear the fundamental distinction between law and politics that lies at the heart of their judicial philosophy, both Roberts and Alito articulated a theme that Senate Democrats proved unable to counter effectively. And meanwhile, their cries of wolf, subjected to the immediate, withering scrutiny of informed commentators, didn't resonate. Polls taken after the hearings found that public support for Alito had actually increased. . . .

What's unknown, of course, is whether Bush's last years in office will offer
him another opportunity to pick a justice. If so, it's not too early to say that he should select another in the mold of Roberts and Alito."

More on the Carpitcher case and how the courts deal with recanted testimony

Laurence Hammack has this very interesting article in the Roanoke paper, with a broader view of the issue from the Carpitcher case, and concludes that other states are more liberal than Virginia in their willingness to overturn a criminal conviction where witnesses change their stories.

The article says in part: "Courts across the country have been wary of recanted testimony. Some witnesses might take back their testimony out of guilt for incarcerating a family member, the argument goes, and others might be pressured by people loyal to the defendant.

The problem, critics say, is when the skepticism goes too far -- as some say it did in Carpitcher's case."

The article also notes:

"Since Virginia loosened the state's 21-day rule, no one who claimed to be innocent has found a way through the narrow opening created by the General Assembly. . . . Although there is no longer a time limit on newly discovered evidence, the law places a number of other criteria on innocence claims. Among them is that when considering the new evidence, 'no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'"

The article cites Tucker Martin, the spokesman for Attorney General McDonnell, as saying that the bar for overturning convictions based on new evidence must be high, and the difficulty convicted defendants have experienced in obtaining writs of innocence shows that the law is working as it should.

When are releases of ERISA plan benefits effective?

Here is an SSRN abstract for a law review article on the validity of releases of ERISA benefit claims.

At one point, the author says: "In District 29, United Mine Workers of America v. New River Co., [842 F.2d 734, 736 (4th Cir 1988)] the Fourth Circuit held that an individual settling a wrongful termination grievance against a company (the “Initial Employer”) may have thereby unknowingly given up his entitlement to lifetime medical benefits. This holding illustrates why the Proposed Fiduciary Release Rules are required by ERISA to apply fiduciary principles rather than contract principles to assure that participants receive their earned employee benefits." The author's discussion of this case makes me think that perhaps current Fourth Circuit law is not in accord with the author's view of what ERISA requires. The author also cites Davis v. Bowman Apple Products, 2002 U.S. Dist. LEXIS 6204 (W.D. Va. Mar. 29, 2002), in which one of the judges of the W.D. Va. "relied on the totality-of-circumstances analysis . . . to invalidate a release of a participant’s breach of fiduciary claim for pension benefits."

Having scanned the article, I'm not sure that I understand or agree with all of it, but it is very interesting.

Law and order in Wytheville

In this interesting post, Jerry has juxtaposed accounts from Wytheville of a teacher case, a crack house that went up in smoke, and the Town's efforts to crack down on public urination.