Saturday, April 08, 2006

On the defendants' bond in the Stacy McCray case

In U.S. v. Parris, Chief Judge Jones, on review of the defendant's bond set by Magistrate Judge Sargent, ruled that the defendant would be detained without bond until trial.

Stacy McCray disappeared from Abingdon and her body was later found in the Jefferson National Forest. The defendant is charged with conspiracy and obstruction of justice, not murder. The indictment alleges that the defendant hid Ms. McCray in the forest to hide his illegal drug activities.

W.D. Va. personal injury case dismissed with prejudice for fraud on the court

In Sprester v. Jones Motor Company, Judge Wilson of the W.D. Va. dismissed the plaintiff's claim with prejudice for fraud on the court, related to her apparent lies about her pre-existing back injuries, and ordered her to pay the defendant's attorneys' fees and costs.

Failure to object to presentencing report does not create admissions

In U.S. v. Milam, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Gregory with Judge Shedd concurring in part and dissenting in part, applied the Supreme Court's Booker decision in overturning the defendants' sentences to more than the statutory minimum based on facts contained in the presentence report, to which the defendants failed to object. The case involved the distribution of Ecstacy in the area of Beckley, West Virginia.

Dismissal of claim under Fair Debt Collection Practices Act against foreclosure lawyers reversed

In Wilson v. Draper & Goldberg, PLLC, the Fourth Circuit in an opinion by Judge Traxler, joined by Judge Wilkinson with Judge Widener dissenting, reversed the dismissal of a claim brought against some lawyers under the Fair Debt Collection Practices Act for initiating foreclosure proceedings against the plaintiff, concluding that the lawyers even though acting as substitute trustees were "debt collectors" within the meaning of the Act.

How retired Justice O'Connor got to be William & Mary Chancellor

According to this story in the Williamsburg paper, the head of the student government thinks that Justice O'Connor looks good in a robe, whether it is black or green and gold.

Prosecutor as litigant gets no joy in pier building case

In Palmer v. Commonwealth of Virginia Marine Resources Commission, the Virginia Court of Appeals in an opinion by Judge Frank joined by Chief Judge Felton and Judge Clements rejected the appeal brought by King William County Commonwealth's attorney Stephen Palmer over the building on the pier on his property in Mathews County. The Newport News paper has this story about the case.

Chief Judge Felton? The opinion notes that Judge Felton became Chief Judge on April 1, succeeding Judge Fitzpatrick.

Questions addressed to traffic stop detainee don't violate Miranda

In Com. v. Briggs, the Virginia Court of Appeals in an unpublished opinion by Judge Humphreys joined by Judge Frank and Kelsey overruled the trial court's suppression of evidence of drug paraphernalia obtained in a traffic stop.

The Newport News paper had this report on the case.

On representational standing in Virginia

In Chesapeake Bay Foundation, Inc. v. Com., the Virginia Court of Appeals in an opinion by Judge Elder joined by Judge Humphreys and Senior Judge Coleman overruled the dismissal for lack of standing of a challenge brought by the CBF against a permit issued by the State Water Control Board. The AP had this story on the case.

One of the arguments, strangely enough, was that the panel should have ignored the Court's earlier panel decision in Chesapeake Bay Foundation and Citizens of Stumpy Lake v. Commonwealth, 46 Va. App. 104, 616 S.E.2d 39 (2005). On this point, Judge Elder wrote:

"Appellees recognize that stare decisis may bind us to follow the decision in Stumpy Lake. Nevertheless, quoting Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990), they argue we are not so bound if we find that the decision in Stumpy Lake was based on 'flagrant error or mistake.' Appellees misconstrue the holding in Burns, which permits this Court to correct '"flagrant error or mistake"' in a panel decision . . . through the en banc hearing process.' Burns, 240 Va. at 174, 395 S.E.2d at 457. Contrary to appellees’ assertions, Burns affirms the principle that the decision of one panel is binding on all other panels unless and until reversed by the Court sitting en banc or by a higher court on appeal."

It sounds like this is not an issue that will soon die out for lack of interest, if the Commonwealth's lawyers think the Virginia Court of Appeals has got it wrong.

SW Virginia lawyer named to U.Va. board

The Charlottesville paper reported here that Norton lawyer Don Pippin would be named to the Board of Visitors for the University of Virginia.

Thursday, April 06, 2006

Another blogger in the Wise County courthouse

I was in Wise yesterday and went down to have a short word with the clerk of court, Mr. Kennedy, who told me among other things that he has a blog about space law.

I first met Jack Kennedy in the summer of 1985, when I interviewed him for a paper about the '84 Rick Boucher campaign. He is as much a cyberdog as any circuit court clerk in the Commonwealth.

Tuesday, April 04, 2006

On PC recycling

Here at Bacon's they've got a link to computer recycling events across Virginia this month.

Unfortunately, none are in Abingdon or Bristol. Maybe I should take my old monitors up to Clintwood before April 8, set them on the porch of this building, ring the doorbell and make a run for it.

Stuff I missed last week

This hand-written divorce petition, described as the most remarkable document of its kind, and the nearly as remarkable rest of the story, were only part of what the law bloggers were talking about last week.

On reforming the jury system

One of the topics of recent interest has been the ABA principles related to juries and jury trials.

VTLA listserv and appellate law guru Steve Emmert filed a report today on his experience on the venire of a federal case, and reached this conclusion:

"But I was struck by how put-upon the venire felt when they were summoned to 'hurry up and wait.' This was a part of the trial over which the lawyers had almost no control, so it's unfair to pin the blame for this on the bar. But you should know that this ill will necessarily spills over to the attorneys, as a part of the entire boring process for jurors. I really do not envy the government's lawyers, who will be putting on a document-intensive case that will last perhaps two or three days, with THIS for a warm-up.

The lesson I perceive here is that we should go out of our way to respect the jurors' time, during that part of the case we CAN control. It means more motions in limine, to avoid bench conferences (which are perceived as demeaning to and by veniremen) and to avoid endless matters taken up while the jury is sent into its little room. It means streamlining things whenever possible; we have all seen advice that a shorter, more concise presentation will work better on jurors, and here's a good reason why. The delays I saw today were primarily due to the court system, not to the lawyers, so addressing those will probably require a conversation with the court at some point. This assumes the suggestion will not be rebuked with a 'That's the way we've always done it,' but I plan to try anyway, once this trial is over."

One for the Blackberry and Treo crowd

Via Dennis Kennedy and Martin Geddes, this story tells of the increasing choice among some to be buried with their cellphones.

Monday, April 03, 2006

Another reason to like Sharon Randall

She wrote here that her son took to the Final Four, where she was pulling on Saturday for George Mason.

Old Zach and SST sign off

Old Zach and the SST gang are calling it quits.

Hey, Old Zach, you know where we are, come see us again.

Bristol's own Jack Trayer

BRISTOL, Va. – Herbert Malcolm "Jack" Trayer, age 97, passed away on Saturday, April 1, 2006, at his home.
He was born in Daves, W.Va., in 1909, to the late Charles H. and Georgia Toney Trayer, and was raised in Pounding Mill.
He moved to Bristol in 1927 to begin a successful career of entrepreneurship in the restaurant-hospitality and food service industries. Jack's name was on many of Bristol's best known restaurants including Trayer's and Trayer's Too, but Jack will be best remembered for his support and service to the Bristol community and the Commonwealth of Virginia.
Red, White and Blue Bar-B-Que was Trayer's first restaurant in Bristol and opened in 1927 on Moore Street. Jack continued his long business career after valiant service in the U.S. Navy. He partnered with Homer Jones and Morris Ross to build the first Holiday Inn in Bristol in 1958. Later, he partnered with Carl Moore and Homer Jones to develop other hotels in Bristol, Johnson City, Kingsport, Greeneville and Marion. Jack also developed a chain of grocery stores called Trayer's Food Shop.
Jack was a former president of the Virginia Restaurant Association and in that role led the 1960s fight for racial integration on a state level. Jack served Govs. Robb, Baliles and Wilder as a member of the Governor's Council on Tourism.
In this role, Jack often represented Bristol and Southwest Virginia internationally.
Jack was a generous supporter of a multitude of community organizations, including the March of Dimes, the YMCA, Bristol Ballet, Girls, Incorporated and Barter Theatre. Jack conceived the idea of the Community Christmas Dinner held at Emmanuel Episcopal Church, now in its 25th year.
Jack was a strong supporter of the region's colleges. In the late '40s, he made a pledge to then Sullins College, followed by an endowment at King College and led restoration of the Virginia Intermont College performing arts theatre.
He was long-time member and supporter of the Rotary Club of Bristol, was a Rotary International Paul Harris Fellow and sponsored the Annual Rotary Christmas Luncheon for many years.
In 1992, Trayer was inducted by the Bristol Regional Medical Center Foundation into the Citizen Hall of Fame, recognizing his being a "great champion of our community."

Back in the saddle

After much driving, I'm back from the Virginia Bar Association board of governors' meeting in Norfolk.

I got there on Friday in time to see the Doo Dah Parade. Later on Friday, we met a whole army of Norfolk Southern lawyers at their building, and still later we ate at 456 Fish. On Saturday, we went to Norfolk Southern's Lamberts Point Pier 6 coal-loading facility, as well as the Norfolk International Terminals, and later we went to see the French Impressionist exhibit and eat dinner at the Chrysler Museum. On Sunday morning, we were the guests of Bill Van Buren and his wife Katie.

And, there were some business meetings.