Criminal Defense
The necessity of communicating confidentially about a criminal defendant’s case
Over four years ago, I blogged about the truism that the courthouse walls and halls have ears. The courthouse hallways are swarming with police in plain clothes, prosecutors and judges dressed similarly to defense lawyers, news media reporters, and other criminal defendants and their supporters...
Prosecutors’ Foregone Conclusion Argument Against Fifth Amendment Opposition to Decrypting Computers
Seizing and searching computers is big business for law enforcement, for such investigations as child pornography, terrorism, and online copyright infringement. At the same time, computer encryption technology continues advancing, to the point that law enforcement cannot always crack such encryption, leading law enforcement to...
Virginia cocaine and handgun defense – Mere presence of contraband in glovebox does not make driver liable
Some unpublished cases need to be published, including this month's Virginia Court of Appeals opinion concluding that the evidence was insufficient to convict a man driving a rental car without authorization, where the glove compartment contained a handgun and twenty grams of cocaine. Roy v....
SCOTUS – Unlawfully detained people may sue under Fourth Amendment
For decades, the United States Court of Appeals for the Seventh Circuit bucked the path of eight circuits now, by generally barring a Fourth Amendment lawsuit claim in federal court over unlawful pretrial detentions. Today the United States Supreme Court corrected that erroneous Seventh Circuit...
Criminal Law and Immigration – Importance of Asserting the Fifth Amendment by Undocumented People
With the Trump administration likely will come a continued increase in immigration raids. Hopefully the subjects of those raids will know their Fifth Amendment right to refuse to state their immigration status. This all reminds me of my immigration law professor's emphasis on the importance...
The Hobson’s choice of agreeing to unsavory probation conditions or risking a more severe sentence
In 2008 in Grayson County, Virginia, Circuit Court, Lara was convicted of aggravated sexual battery of a mentally incapacitated victim. He was sentenced to twenty years suspending seventeen of those years, conditioned on probation obligations including participating in psychological counseling. U.S. v. Lara, ___ F.3d....
Virginia criminal jury trials- Judge may keep jurors who think the defendant is more likely guilty than not
In Virginia Circuit Court, a criminal trial will be by jury unless both sides agree to waive a jury. The jury selection process is critical, not only to weed out the least fair potential jurors, but to identify such potential jurors in the first place,...
SCOTUS bars Due Process vagueness challenges to voluntary sentencing guidelines
On March 5, 2017, I blogged about the importance of challenging criminal laws for vagueness and overbreadth. The very next day, the United States Supreme Court confirmed the overbreadth doctrine as it applies to statutes, but said that Due Process vagueness challenges do not apply...
Beware harsh probation conditions for those convicted of sex crimes
Soon after breathing a sigh of relief from being released from prison. criminal defendants then realize that their probation period will be no picnic. Rarely is probation any less of a picnic than for those convicted of sex felonies. Consider Charles D. Douglas's situation. For...
Virginia criminal defense- Preserving double jeopardy protection
Any time a criminal defendant is charged with multiple offenses, it is time for the defendant's lawyer to check for double jeopardy issues. Double jeopardy protection not only applies against being tried twice on different occasions for the same offense -- U.S. Const. Amend. V...