UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Prosecutors commonly obtain National Crime Information Center ("NCIC") reports of defendants' criminal records.

A colleague recently pointed out the unfairness of judges rejecting attacks on NCIC reports, because he asserts that the FBI, which runs the NCIC, disclaims responsibility for accuracy in NCIC reports. Certainly, since the NCIC states that it relies on information provided by state and federal criminal databases nationwide, NCIC reports cannot be any more accurate than the people inputting the data that gets picked up by the NCIC system.

For Virginia cases, another lawyer -- Lloyd Snook of Charlottesville's Snook & Haughey -- suggests reading the unpublished case of Argenbright v. Commonwealth, which he says affirmed a sentence that relied on an NCIC report to enhance a sentence for a third theft offense under Va. Code § 18.2-104, and also discussed Va. Code § 19.2-295.1. He suggested objecting to NCIC reports on the grounds of hearsay, due process, the Eighth Amendment, and statutory grounds;  to seek a continuance to check out each entry in the NCIC report; and to renew the NCIC report objection at trial, and in response to any preliminary sentencing report. Lloyd also talks of the need to redact from the jury's view any charges that were entered nolle prosequi, and cites Byrd v. Commonwealth, 30 Va.App. 371, 517 SE 2d (1999). He argues for redaction of probation violations -- citing Jaccard v. Commonwealth, 268 Va. 56, 597 S.E.2d 30 (2004) -- and for redacting prison release dates. 

Too bad Paul Warner Powell's lawyers did not object to the jury's seeing his NCIC report at the sentencing phase of his capital trial. On the one hand, his admitted murder was beyond heinous. On the other hand, the integrity of the capital punishment system -- which, of course, has no integrity -- is all the more suspect when the defendant's lawyers are asleep at the wheel, particularly here where the NCIC report for Powell incorrectly indicated a prior capital murder conviction. Sadly, the Virginia Supreme Court, in a 4-3 opinion, denied his ineffective assistance of counsel claim nonetheless. Powell v. Virginia, __ Va. _ (2010). He is scheduled for state-sponsored murder-execution on March 18, 2010.

Praised be Virginia Supreme Court Justice Keenan, who wrote in part in his dissent:

I would hold that the jury’s receipt of incorrect information of such magnitude negates any reasonable. In my opinion, such a serious mistake in a capital murder case may well cause the public to question whether our courts adequately ensure the fair application of our death penalty statutes. When a jury has determined that a defendant should die for the commission of a heinous murder, the public should be able to have confidence that this determination was made without fundamental errors having occurred in the sentencing process. A central premise in support of the death penalty is that society exacts this penalty only in rare instances, and only after the penalty has been determined with full and fair adherence to constitutional, statutory, and evidentiary safeguards. Because those safeguards failed in this case when a very able prosecutor made an unintentional error, I would grant a writ of habeas corpus limited to the award of a new sentencing proceeding.

Powell v. Virginia, __ Va. _ (Keenan, J., dissenting).

Image from public domain.

In Virginia, so long as one-half ounce or less is involved, distribution and possession with intent to distribute marijuana is only punishable as a misdemeanor rather than as a felony. Va. Code § 18.2-248.1.

What happens, then, if the police catch a suspect allegedly with 0.52 ounces of marijuana and the defendant sings that s/he intended to distribute it? Such was the conundrum of Milton Brown. The chemist report claimed the marijuana found on him weighed 0.52 ounces, which is just .02 ounces over the misdemeanor-felony threshhold. Virginia's Court of Appeals kept the conviction as a felony, saying:

In the present case, Brown does not contest that the plant material is marijuana and that at least some portion of plant material was part of a plant of the genus Cannabis. Moreover, Brown implicitly concedes that the evidence is sufficient to find him guilty of simple possession of marijuana. Brown’s argument relies on Hill and its analysis of the version of Code § 54.1-3401 in effect at that time; that is, before critical and significant changes were made to this code section by the General Assembly. Under its current structure, Code § 54.1-3401 provides that any stalks, fiber, oil or cake that were also present with the plant material are necessarily “combined with other parts of plants of the genus Cannabis” to meet the definition of marijuana for purposes of statutory construction. Therefore, any stalks that may have been present in the plant material at issue in this case are considered marijuana under the statute and it was proper to include them in determining the total weight.

Brown v. Virginia, __ Va. App. _ (March 16, 2010).

If a misdemeanor prosecution seems to have started too long after the alleged crime, perhaps that is true.

In Maryland, generally and with some exceptions, no misdemeanor prosecution may commence over one year beyond the date of the alleged crime. Md. Code, Crim. Law art. § 3-308(b). This statute of limitations applies where the applicable misdemeanor statute does not make punishment available in the penitentiary rather than in the local jail. In re Anthony R., 362 Md. 51, 763 A.2d 136 (2000). The statute must specifically state that penitentiary sentencing is available in order for the one-year statute of limitations not to apply.

As I said last month, the Trial Lawyers College is not the only game in town for trial lawyers to get great training and to recharge their batteries.

Enter the Three Sisters Trial Boot Camp, presented by Joane Garcia-Colson, Mary Peckham, and Fredilyn Sison, together with two mental health professionals. I have known Fredi for several years, and she would be a particularly strong draw for me to attend this program, which is only open to women, so that settles that about my abilty to attend.

The Three Sisters' website provides the following basic rundown of the program: "TRIAL BOOT CAMP, May 13-16, 2010, Palm Springs, CA. Join other talented and dedicated women trial lawyers for a long weekend of self-discovery, development and growth to enable you to reach your full potential as an effective and daring advocate in the courtroom. Together we will explore: - Issues confronting women lawyers; · Celebrating your uniqueness as a female lawyer; · Embracing who you are as a woman in your practice; · Communicating in the courtroom with an emphasis on Voir Dire; · 3 D Presentation; and, · Recognizing and working with clients with mental health issues."

Seemingly antithetical to a free and democratic society, lawyers' ethics rules require lawyers to hold their tongues to a point about judges in ways that do not apply to lawyers' comments about non-judge politicians. Then again, the Constitution guarantees a republic rather than a democracy, even though the United States has some significant democratic elements; the appellate courts have never granted people unfettered liberty; and the obligations for lawyers to measure their criticisms of judges seem to be part of an unwritten quid pro quo for the anticompetitive protection of lawyers' incomes that comes from bans on the unlicensed practice of the law. Some might say, also, that as officers of the court, lawyers cannot be permitted to verbally pillory judges as much as non-lawyers are permitted to do.

Clearly, a black robe does not automatically convert a person who is unqualified for a judgeship into a qualified judge. Yet, lawyers are still required by governing ethics rules to treat judges with decorum both inside and outside the courtroom. This did not prohibit a legion of lawyers, for instance, pushing hard and spiritedly against Ronald Reagan's nomination of Robert Bork to the Supreme Court, but might have prohibited lawyers from calling him a jack*ss.

How does a lawyer reconcile strong views that a judge is incompetent, bigoted, or heartless, with the requirement that lawyers treat the court and judges with decorum and respect? One great suggestion came recently from an experienced criminal defense lawyer/ listserv member, who said, in advising the importance for new lawyers (if not all lawyers) to develop credibility with judges and the courthouse staff: "Respect the robe even if you do not respect the person in the robe."

This reminds me of a comment about a late Supreme Court justice who deeply respected the office of the presidency, whether or not s/he respected the individual occupying the office. The respect for the governmental office -- rather than respect for the person holding the office -- might help explain why some people serve presidents and other officials whom they find abominable in their jobs, if the respect for the office is strong.

In any event, lawyers give a judge respect less grudgingly when the judge treats lawyers with respect, as well.