Imagine you or someone you love has been charged with a criminal offense (easier for some of you than others) . Also imagine that you've never before been exposed to the criminal justice system. You are scared or angry or both, and you want information. You talk to a lawyer who starts to explain how things work. You ask what the police have on you or your loved one. You inevitably ask to see the police report. Your lawyer tells you he can't get the police report. You call another lawyer…
It’s been years since I’ve written about the sad state of Virginia criminal discovery or since we’ve posted anything on the blog at all. Luckily, I don’t have to work too hard to update what I wrote here and here, because NOTHING has changed in the discovery rules since then. The Virginia Supreme Court’s big fancy commission came to the conclusion last year that discovery reform was necessary and made various recommendations that were then cast aside with little explanation from the Court.
So when I encounter someone who is unfamiliar with Virginia "justice", be it client, family member, client family member, friend, or random person I just met, I still have to frequently explain to that incredulous person that I indeed cannot force the government to give me a copy of the police report that was prepared by an officer documenting information about accusations against someone I represent in that matter. In fairness, in some jurisdictions, and sometimes depending on which prosecutor is handling the case, I am able to get copies or at least view (in one county without being able to copy or photograph) the reports made by police when investigating whatever my client is accused of. But Virginia law does not require it be divulged at any stage of a criminal case.
The Supreme Court of Virginia having declined to address the problem, the remaining solution must be the legislature, but those familiar with Virginia politics and criminal law know that most criminal reform bills die swift yet painful deaths somewhere at the committee level . This year, reformers with support from groups like the Koch Institute, the NACDL, and the VACDL, have managed to get a basic discovery reform bill out of the Virginia Senate. SB1563 is not perfect, which is one reason it survived this far, but it would certainly improve the current scheme. Importantly, it would entitle us to the damn police reports, allowing us to more thoroughly investigate cases and making it marginally more difficult for prosecutors to engage in trial by ambush. It would make Virginia’s “justice” system marginally more just.
SB1563 still faces almost certain doom in the House of Delegates, but it is not too late to voice support for this step toward basic fairness. The House Courts committee and Criminal Law subcommittee are in the driver's seat now. If you live in Virginia and especially if you live in one of those delegates’ jurisdictions, and if you think that fairness should be a component of justice, call a delegate to let them know.
I'm taking a moment off from bitching about the police to poke fun at something a little less important. I shit you not, this is the actual language of a current Virginia criminal statute.
Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female's character for virtue and chastity, or imputing to such female acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.
The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.
Don't lie about a nice girl's naughtiness. Also, don't tell lies about someone that would make them want to kick your ass. Finally, don't use dirty language around girls who people think are good girls. Any of these could incur a $500 fine. You could get a lower fine if they started it.
I would love to litigate the meanings of most of the descriptive words in this statute. How does one prove her "chaste" character in court? What is the difference between "chaste character" and "good character and reputation"? Too much fun.
Consent is a big deal in our system of "justice", especially when it comes to what the police are allowed to do to a person under various circumstances. OBVIOUSLY, the police are not violating a person's rights if an encounter is wholly consensual. Unfortunately, the consensual police-citizen encounter, as it exists in the eyes of appellate judges around this great land, does not exist in real life.
The question of consent to a police encounter revolves around whether a REASONABLE person would feel free to end an interaction with an officer and walk / drive / horseback ride / segway / scuba / etc. along their way. The classic case is of the officer who approaches a person on the street and just wants to "ask some questions." Every judge of every court ever would say that this is a "consensual" encounter, but when did the person consent? More relevant to the legal question posed, what REASONABLE person would feel that they could just walk away from an armed officer under ANY circumstances?
In a recent concurring opinion about roving gangs of D.C. police who engage in "consensual" encounters with "random" groups of citizens by shoving them against walls and patting them down for guns, D.C. Circuit Court of Appeals Judge Janice Rogers spoke some too-rarely-heard truth:
"Our jurisprudence perpetuates a fiction of voluntary consent where none exists."
Judge Rogers was referring to one specific type of faux-consensual encounter, but her statement applies equally to all types of interactions where police claim the right to some action during a "consensual" encounter. Unfortunately, under these circumstances, the average person does not feel that they are free to do anything other than what the officer requests. Watchers of the news are aware of the potentially deadly consequences of anything other than utter submission.
Thankfully, Judge Rogers also proposes a solution or at least a way to clarify the issue: Just ask if you are free to go. Any time you are engaged for any reason with a police officer, express your desire not to be so engaged and ask politely if you are free to leave. If you are not, ask why. The officer needs legal justification for imposing on your freedom, but only if you first destroy the myth of consent.
Today, I post the first installment of my new blog sub-series – SAVE THE POLICE, in which I will offer up my suggestions as to how to make policing safer. And since Officer Safety is quite frequently the reasoning behind the bad stuff police do, I believe my suggestions would also make life safer for all of the rest of us.
Today's idea came to me a few weeks back when I was pulled over by a law enforcement officer for allegedly driving my car too fast. I make no admissions here as to my speed, but for rhetorical purposes, let's assume that this officer was legally justified in making the stop. (For this post is not about reasonable suspicion but about the all-important Officer Safety.) Here's the setup. Three lane highway in the direction I was heading, and I was travelling in the middle lane without another vehicle in sight. Conditions were perfect on this beautiful day.
Then SUDDENLY, there is a man in the street waving his arms and yelling at me to pull over. It takes a minute to realize that this is a police officer almost jumping in front of my vehicle in the lane of traffic, but it is clear from the beginning he really really wants me to stop. And for some reason, he is red-faced angry. I follow his pointing over to the right side of the road, but he has stepped back over to the left shoulder where his SUV is parked. So then he waves me over to the left and directs me to back up about a block to where he's standing, which I do. Most of the rest of the details of the confrontation are not important to my point, so here are the highlights: He proceeds to scowl and growl and treat me like a horrible criminal for allegedly going 70 mph in a 50 mph zone ("I got a readout at 71, but it locked in at 70, so I'm cutting you a break here.") I honestly did not realize the speed limit was so low, and if asked, I would have guessed it was 60 given the wide open spaces. Still, I would have been allegedly speeding, but no one was ever in any danger at all. . .
That is, UNTIL the police officer jumped out into the street to affect a traffic stop so that his county can have some money. He placed us both in danger at that point, because I was pretty startled by his sudden appearance just out of my path of travel, and I did swerve a little away from him. But mostly it was his life he placed at risk. Over a speeding violation.
Yesterday, driving down I-66, I saw two different police stops in progress, and as if just so I would remember to write this, I saw two different officers at different locations standing to the left of their fairly-safely-parked and lighted police car directly IN A LANE OF TRAFFIC. ON. A. HIGHWAY.
All this for assortedTRAFFIC VIOLATIONS (or straight up profiling, which I'm not going to get into here).
People who love the police more than I, let's call them sympathizers, say things like, "There is no such thing as a routine traffic stop" to describe one of the main dangers that officers face. But the chief danger they face during a traffic stop is getting hurt in an accident that could be avoided if there wasn't an officer there on the side of the road (or directly in it) in the first place.
There is, of course, also the less common but more scary risk of violent encounters with police that start as simple traffic stops. In my case, the officer yelled at me and treated me poorly, even though I was perfectly polite despite being diverted from my ski trip for doing absolutely nothing morally wrong or remotely dangerous. That encounter could proceed much differently with a person who, say, has a mental illness or violent tendencies.
But why put these officers in harm's way? Well, in our system, the answer is basically always money and/or fear:
MONEY: The majority of traffic enforcement is more geared toward revenue generation than to public safety, as if that is a reasonable way to collect taxes. FEAR: Even if we didn't want to collect taxes through this highly dangerous method, what, you ask, would prevent our roads from descending into anarchy? Even I will concede that some sort of traffic regulation and enforcement is necessary, but my guess is that in our modern age of technological wonders, there is some way that does not involve guys with guns jumping out into traffic to dish out fat tickets and try to find evidence of some other probably harmless violation of law like the awful evil plant, marijuana, off of which the government makes even mo money. Has anyone even asked Google for a solution? No? Hm.
Anyhow, the point is this: Traffic stops present far more danger to officers and citizens than can be justified by the monetary and safety benefits they provide, so there should be fewer traffic stops.
Next time on SAVE THE POLICE: Not sure. Probably something about the drug war.
A while back, I wrote about the shock I often encounter when a client or any non-Virginia-criminal-lawyer person finds out that the government is not required to give us copies of the police reports created in our cases. It should be shocking. Like pretty much all of Virginia criminal law and procedure, the current discovery rules fall far short of what might be considered fair play in a system with so much power to destroy human lives.
BUT, there may be some bit of light at the edge of the darkness . . .
The Supreme Court of Virginia appointed a Special Committee on Criminal Discovery Rules that met throughout last year and recently submitted a proposal for reforms to the Court, which is now taking public comments. The group was made of attorneys and policy people from both sides of the issue, and somehow they came up with this proposal that everyone but the State Police supported. An attorney from the committee said that strong arguments were had from all sides, but that even the prosecutors agreed that some reform is absolutely necessary to make the system more just. Here are the two main points I take from the proposal in case you don't want to read the full 400 pages:
1. WE WOULD GET POLICE REPORTS! This is huge and by itself reason enough for me to support the reforms suggested by the committee.
2. Both sides would have to provide lists of expected witnesses. This would be a new requirement of the defense, but a small concession to make considering point Number 1 above.
There is obviously a lot more to it, but that's the most important stuff to me. And my support should certainly not be confused with an assertion that their proposal is perfect. Prosecutors argued exceptions into the provision for discovery of police reports that allow them to redact information to protect their witnesses, subject to judicial oversight, and additional disclosure requirements are proposed for the defense. In a system that so favored the other side for so long, it is difficult, especially for the defenders who have been doing this way longer than I, to stomach making concessions to the tyrant. However, I believe opposition to this proposal for those reasons is making the perfect the enemy of the slightly-better-than-how-horrible-it-was-before.
Thus, I hereby plead with all Virginia criminal attorneys (justice-minded prosecutors included) to lend your support, via comment to the Supreme Court of Virginia, to the rule changes proposed by the discovery committee.
Comments may be submitted by mail or via email with the subject line, "Comment on Criminal Discovery Rules" to:
Haven't posted anything here for a while, so I thought I would use that as an excuse to post this story again.
This DEA clown overlooks the fact that he's talking about the terrifying environmental effects of ILLEGAL pot farming. He also overlooks the fact that the average American likely finds the idea of stoned bunnies to be funny and adorable.
Another in the "common questions to defense attorneys" file . . . Why does the Commonwealth/court/lawyer/society/anyone want to suspend my license for [insert something that has nothing to do with driving]?
First off, I don't.* I'm not sure why my clients phrase things as stuff I am doing to them. Defense attorneys are pretty much the only ones in this system who are concerned about what's best for the accused citizen and their lives and families.
What's not best for those people, and something I have never understood, is taking away one's driving privilege for the purpose of "social engineering", as it was phrased in a recent Washington Post article. I can understand taking away a drivers' license for egregious drunk driving or or other repeated and flagrant traffic violations (not the tax-collection piddly bullshit kind — stuff that's actually dangerous to something other than your wallet). But in many states, including this here Commonwealth, the government will jack your license for what some might consider less coherent reasons.
For example, any drug conviction in Virginia comes with a statutory mandatory 6 month license suspension on top of whatever other penalties one may receive. Even if you are caught with a flake of marijuana and receive only a fine, you will also lose your privilege to drive to work for six months. Some might respond, "but you can get a restricted license . . ." Yes, this is true. If you get the government all paid off and jump through the court and DMV hoops, you can get a very limited privilege to drive to work, school, medical appointments, and other such necessities. Necessities that are excluded are the grocery store and transporting kids to activities other than school and anything that doesn't fall into one of the well-defined categories on a government form. But hey, you got caught with pot. Tough luck.
Anyhow, my next little rant relates to the subject just broached of payment unto Caesar. Something that has always seemed grossly counterintuitive to me is the license suspension for failure to pay something. Be it for child support or fines or court costs for any kind of offense whatsoever, no one's ability to pay is improved by the limitation of their transportation options. It's just dumb, in my not so humble opinion. And in the case of child support, it probably hurts the children more often than not by further limiting the offending parent's ability to earn. In the case of payment owed to the government, it serves to increase the relative load borne by those with lower incomes in a criminal "justice" system that already favors those with more resources (one of the reasons I always put "justice" in quotes).
So rather than close with something snarky that I consider clever like I tend to do here, I am just going to lay out in explicit detail my complicated idea for a fix for this problem:
Abolish all license suspensions that are not directly correlated to driving behavior.
*To their credit, most decent prosecutors have no real interest in the suspensions about which I bitch either. Although it can be used as a prosecutorial weapon, this is more of a political problem.
The other day, the Washington Post ran a Part 4 to the 3-part story they did on asset forfeiture abuse by the police. (You may recall I was kind of excited to get my name in print in Part 3 for my little contribution).
Part 4 goes the logical direction of reviewing where all that ill-gotten money from Parts 1 through 3 went, and it is both disturbing and sickly entertaining at the same time.
Disturbing is the fact that police are spending most of the money buying more shit to fight our idiotic drug war and to fight it as if it were an actual war. Vehicles (some with armor, others with a Mercedes symbol), weapons, and surveillance equipment top the lists of expenditures.
Disturbing but also somewhat funny (if you don't laugh at the government, you'll probably end up a terrorist) are some of the other purchases. One that hits home is a $600+ coffee maker purchased by my hometown Randall County Sheriff's department in Amarillo, Texas. Probably makes some good ass Folger's.
But by far the most interesting use of the funds was for one department to rent a clown named Sparkles to help improve community relations. This doesn't seem the worst use of police funds, and I much prefer the deployment of clowns over the the more prevalent methods of police-community interaction (force, threats, intimidation). However, if the police just stopped robbing people and shooting them and stuff, maybe they wouldn't need the damn clown.
So everyone knows by now that the Post ran a series of articles this week that in its culmination featured the story of my client Mandrel Stuart and how he was robbed by the cops and the shit we had to go through to get it back. I started to write a more detailed and more biased account of his story, but someone already wrote a long story about it, so I'll just throw in a little color commentary from my perspective:
What the Post neglected to say is what I said there in the first paragraph already: Mandrel was robbed. Guys with guns took his money by force with no intention of giving it back. That's called robbery, at least in Virginia.
Another word for it is bullshit. Cops pull a guy over and search him and his truck because he's black and has tattoos and a record and and SUV with tinted windows. They find some cash that a dog sniffs at (bullshit, as Woolley pointed out the other day), and they just take it. They then pass it off to the feds in hopes that the feds can use the asset forfeiture system to make this robbery all legal-like, at which point the local cops would get 85% of the bounty. Fucked up, but it's a pretty good deal for local cops just trying to keep a little gas in their tanks.
(Couldn't resist, even though that's Arlington's tank and not Fairfax's.) Anyhow, then the robbery victim is left to fight it out in federal district court, and since there is no home at stake in the forfeiture, the court will not even appoint an attorney.
So in our case, Mandrel got lucky and found one of our Craigslist or somesuch ads , and he ended up with me as his lawyer because I was the most recently licensed of my partners and had more time to do it (this was still early on, before we had any idea it would be federal). I eventually got barred in federal court just to do his case and learned everything I know about asset forfeiture from reading various books, manuals, rules, laws, and cases.
I was also very lucky with this case. It was the most educational and rewarding experience of my short career. Mandrel trusted me to handle it and he eventually turned down half of his money to trust me to put his case before a jury. (Me, who had never even had a case reach a jury versus an AUSA whose only job is to litigate these police robberies.) After a day long trial, that jury took 35 minutes to give him his money back, and by statute the U.S. government had to pay me almost $12,000 in fees for my efforts. It was glorious. And now the Post wrote about it, and that's even better.
But despite my personal satisfaction over the entire thing, Mandrel was still not made whole. He still had to shut down his restaurant after they robbed him, and it remains closed (but we're starting him a kickstarter after some readers of the articles expressed interest in helping).
And the same cops who did it to him are still out there on the streets of Fairfax County, and cops who have the same training and mindset are out there all over the country. Just waiting for the opportunity to steal more money regardless of the cost to the victim and society. Just casing their next victims.
My dog loves to smell things. It’s usually pretty cute, sometimes pretty gross. But there aren’t any smells she doesn’t like. She also has a sense of smell hundreds of times more acute and accurate than mine, and she’s not even two years old.
Police dogs also love to smell things. They are older than my dog and they go through training to teach them how to smell particular things and how to “alert” that they’ve smelled something they’re looking for. What people don’t realize about these alerts is that they pretty much resemble the same things my dog does when she smells something she likes, or wants me to give her something, or when she wants to go outside.
I’ve been involved in several cases where a police dog alerted to an area in which drugs were not found. I’ve had several cases where marijuana was found based on probable cause from a dog alert, but the pot was not found where the dog alerted to it. The Washington Post published an article today (the third of a series of three) featuring Mandrel Stuart, a client of Shawn Stout’s. In Mandrel’s case a dog alerted to a wheel well where no contraband was found, but that same alert provided probable cause for the police to search and find a little speck of pot in an old backpack. In many people’s case, a dog alerts to cash money, and the inference the state seeks to draw is that smelling like drugs to a dog means money was used to purchase drugs, or that it will be used to purchase drugs.
We know dogs have an extremely acute sense of smell, and also they don’t know how to speak. They can’t say whether a whole stack of bills was in a bag full of heroin, or whether one bill in a stack was used to snort a line by the guy who traded it in at Wal-Mart for a package of bacon three days before (although the dog probably does know about the bacon). All the dog can communicate is that he smells what he thinks they’d like him to smell and he is a good dog and he deserves a treat.
I don’t really know about the probable cause here, but I do know I like dogs. And dogs love smells.