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Punishment for Conviction of a Felony in Virginia

Miranda Rights in Virginia

When is a Person "In Custody" in Virginia?

Malicious Wounding in Virginia Takes Three Forms

Unlawful Wounding: A Lesser Offense to Malicious Wounding in Virginia

Former Henrico Policeman Faces Federal Ponzi Scheme Charges

81 Year Old Virginia Man Jailed in Internet Sex Sting

Malicious Wounding Charge in Prince George Virginia Results in Not Guilty Verdict

Search Warrants in Virginia

Milwaukee Man to Face Single Trial in Seven Murders Spanning Several Years

Compensating Those Wrongly Imprisoned -- The Texas Approach is Better Than Virginia's

Deer Hunter Under Investigation in Shooting Death in King George, Virginia

When Drug Dealers Call the Cops

As a criminal defense lawyer in Richmond, Virginia, I have been involved in hundreds of prosecutions in state and federal courts. All of them have been unique in some way, but one was a real doosie.

In a recent case I tried in Henrico County (Virginia) Circuit Court, a jury found my client not guilty of seven felony charges, including two counts of using a firearm in the commission of a felony, two counts of firing into an occupied vehicle, and two counts of attempted malicious wounding. While I would like to take all the credit for the outcome, upon reflection, I have determined the most likely reason is that people -- and specifically the people on this jury -- are just fed up with drug dealers, and  are frustrated at the inability of law enforcement at all levels to win a "war on drugs" that has been on-going since Richard Nixon was elected president in 1968. You see, my client's actions that prompted the charges against him was taking the law -- and a gun -- into his own hands to stop a pair of drug dealers from selling his (tragically addicted) boss heroin. As the case unfolded, a couple of things became clear to me.

One, some drug dealers do not fear the police, or even long periods of incarceration (one of the drug dealers in the case had served prison terms of 8 and 2 years on previous convictions, and was on probation for the last one; the other was on probation for a distribution conviction just 6 months earlier for which he had received a 5 year suspended sentence). Like most law-breakers, they correctly assume that law enforcement officers are not going to shoot at them unless they attempt to shoot first. Moreover, they view themselves as businessmen who see jail as a potential -- though not certain -- risk that is worthwhile given the profit margin in drug sales.

Two, drug dealers do not like to be on the business end of a loaded gun wielded by anyone, but especially someone willing to risk his own life in a high-speed chase to stop them. My client would not have been charged except for the fact that these idiot dealers called the police themselves because they felt they should not have been exposed to such violence in carrying out their "business." Despite their confessions to the police that they were in the process of making a drug sale that my guy stopped, they were not charged with any crime (except for the driver, who was cited for driving while his license was suspended for his recent drug conviction) related to their attempt to sell a Schedule I controlled substance. On cross-examination, the chief investigator could only say there was "insufficient evidence" to bring any charges against them -- even though it was clear there was sufficient evidence to convict for an attempted drug sale.

At trial, the Deputy Commonwealth's Attorney had the distasteful task of letting the bad guys go free, to prosecute the "white hat." Perhaps the reasoning behind that decision was to set an example that private citizens must let the police handle drug cases and not take matters into their own hands. Law enforcement is better suited to solve crimes than "Joe Public," but in this case, twelve people disagreed.

Malicious Woundings on Rise in Henrico?

Lagarrette Blount: New Symbol of Bad Sportsmanship?

Would You Use a Gun to Prevent Crimes

How Virginia Drug Arrests May Be Challenged

http://www.youtube.com/watch?v=Fgzj1oICymA

Richmond, Virginia federal and state criminal defense attorney Tony Stelly, explains how it is possible to successfully challenge an arrest for drug possession, including marijauna.

Experienced defense attorneys know that the first step in a client's defense of a criminal charge will be to ascertain the validity of arrest, as well as the validity of the search of the client, or his car or truck or home. Many convictions are avoided where the defense lawyer has "done his homework" before trial and has successfully challenged because there was no probable cause to justify the law enforcement officer's actions. 

In particular, where an arrest or search is based on information obtained from a police informant, there are circumstances where the arrest or warrant is subject to attack because insufficent information was available to establish the probable cause that is ALWAYS required before the arrest is made or the search warrant issued.  

Confessions Hurt: Exercise Your Miranda Rights When Questioned by Police

I've lost count of the cases I've personally handled or been told about from other Richmond and Virginia criminal defense attorneys that could have been won if the clients had not confessed to the police. Many times the police had no case at all but for the client's admissions or confession. It doesn't really matter what kind of criminal case is involved --- DUIs, DWIs, burglaries, sexual assaults, drug cases --- the client's confession can and usually will end his chances of an acquittal.

Theft of Personal Data Triggers FBI Probe

State and federal authorities are investigating a possible extortion demand that seeks $10 million for the safe return of more than 8 million patient records and 35 million prescription records that allegedly were hacked last week from the Virginia Department of Health Professions computers.

An extortion note posted on WikiLeaks, a Web site that publishes anonymous submissions and leaks of sensitive government and corporate information, reads:

"ATTENTION VIRGINIA I have your [stuff]! In *my* possession, right now, are 8,257,378 patient records and a total of 35,548,087 prescriptions. Also, I made an encrypted backup and deleted the original. Unfortunately for Virginia, their backups seem to have gone missing, too. Uhoh"

The note demands $10 million within seven days, but it does not say from what date the count began. Hackers apparently infiltrated the health professions' computers last Thursday.

M.A. Myers, a spokesman for the FBI's Richmond office, confirmed late yesterday that an investigation has begun. He said the FBI received a referral from the Virginia Information Technologies Agency.

The ransom-note writer said if the money isn't paid in seven days, "I'll go ahead and put this baby out on the market and accept the highest bid."

If the prescription data can't be sold, the writer says, then "at the very least I can find a buyer for the personal data" -- which the note says includes names, ages and Social Security numbers.

Should Teens Be Prosecuted for "Sexting?"

Washington Teacher-Student Sex Law Ruled Unconstitutional

By Mike Carter

Seattle Times staff reporter

State law does not ban teachers from having sex with 18-year-old students, according to a unanimous ruling by a panel of appellate judges.

The state Court of Appeals ruling came in a case involving Matthew Hirschfelder, a former choir teacher at Hoquiam High School who was charged with first-degree sexual misconduct with a minor in 2006 after an 18-year-old member of the choir told police she had been involved in a months-long sexual relationship with him.

Hirschfelder, who was 33 at the time, denies any relationship occurred.

Hirschfelder asked a judge in Grays Harbor County Superior Court to dismiss the case, arguing that the girl was not a minor because she was 18. The judge refused to dismiss the charge but urged the state Court of Appeals to address the issue because the state's sexual-misconduct statute seemed contradictory.

In an opinion issued Tuesday, a three-member panel of the appeals court agreed that the statute was unconstitutionally vague, and sent the case back to the Superior Court to be dismissed.

Hirschfelder argued that, even if the facts as alleged in his case were all true, no crime was committed. He argued that the statute on sexual abuse of a minor does not define the term "minor," and that both common law and other Washington statutes define that term as a person under the age of 18.

The appeals judges agreed, pointing out that the law was grouped with other statutes prohibiting the sexual exploitation of children, where the term "minor" is defined as someone under 18.

At issue was one section of the sexual-misconduct law that prohibits school employees from having sex with a student who is "at least 16 years of age," not married to the teacher and at least five years younger. The other two sections of the law, which deal with foster parents and others, apply only to sex with people "under the age of 18."

The confusion sent the appeals judges to the legislative history of the current statute, which has undergone numerous amendments and changes — and one gubernatorial veto — since it was first proposed in 2001.

They concluded that the Legislature's intent was to protect children under the age of 18 from predatory teachers, coaches or mentors.

"Thus, we conclude that the legislative history of [the statute] clarifies that the legislature intended ... to criminalize only sexual misconduct between school employees and 16- and 17-year-old students," wrote Judge Marywave Van Deren in an opinion signed by colleagues Christine Quinn-Brintnall and J. Robin Hunt.

The panel said Hirschfelder can seek to have the costs of the lawsuit paid by the county.

 Hirschfeld's attorney, Robert Martin Morgan Hill of Olympia, said Hirschfeld still faces possible discipline by the state Superintendent of Public Instruction. State policies prohibit any sexual contact between students and teachers.

Hirschfelder was placed on administrative leave in 2006 pending an investigation by the Hoquiam School Board. Hill said Hirschfeld would like to retain his teaching certificate but had no plans to return to Hoquiam High.

A telephone call to the Grays Harbor Prosecutor's Office was not returned Tuesday. Prosecutor Stew Menefee told The Daily World in Aberdeen that he is considering an appeal.

Hirschfeld was joined in his legal fight by the Washington Education Association (WEA), the state's largest teachers union, and by the Washington Association of Criminal Defense Lawyers.

Rich Wood, a spokesman for the WEA, said the union involved itself "because we were seeking clarity for an ambiguous law. This ruling gives us that."

Facebook images catch New Zealand burglar

By RAY LILLEY

Associated Press Writer

WELLINGTON, New Zealand — Police in New Zealand nabbed a burglar after posting security camera footage of him trying to crack a bar's safe on the Internet networking site Facebook.

Police said it was New Zealand's first such Facebook arrest and said they would use the site again to fight crime, as law enforcement officials and lawyers increasingly turn to online networks for purposes other than their original ones to provide social interaction.

"Facebook was very, very handy, and it's a good little tool," Senior Sgt. John Fookes of Queenstown police told The Associated Press on Thursday.

The burglar, wearing a face-covering balaclava and carrying a bag of tools, broke into a tiny storage room inside the Franklin Tavern in the tourist town of Queenstown early Monday and tried to cut into a safe containing $12,000 (NZ20,000) in takings from gambling machines.

After nearly an hour in the cramped space, the burglar removed his balaclava and gloves and looked around — red-faced from fruitless toil. As he left, the video shows the man suddenly spotting the lens of the security camera that was recording his every move.

"He looks around and sees it and there's just a shocked look of 'gutted,' said tavern assistant manager Mel Kelly. "His face definitely drops."

Officers posted the footage on the Queenstown police Facebook page and identification was "very, very quick; overnight, we had a number of responses" from the public, Fookes said. "If we've got something that the public can help us with then we'll certainly be putting it on Facebook."

The man was charged with two counts of burglary and was due to appear in court on Jan. 26.

A court in Australia last month approved a mortgage lender's application to use Facebook to serve legal documents on a couple who had defaulted on their payments. The previous month, a restaurateur in the Australian city of Melbourne reportedly used Facebook to track down a group who racked up a large bill then fled without paying.

Was Your Breathalyzer Test Properly Administered?

Eleven Ohio policemen were fired for lying, and as a result of their actions, authorities expect to have to reverse convictions obtained in many of the cases the officers handled. An internal investigation by an Ohio city's police department disclosed that the policemen had not met the qualifications to administer breathalyzer tests in DUI/DWI cases because they had cheated on the examinations. The lack of proper certification taints the test results as reliable evidence. Although all the DUI cases they handled will have to be reviewed (and likely, dismissed), no exact number of affected cases was available.

Officer’s Threat to Have Drug-Sniffing Dog Called to Scene of Traffic Stop Voids Drug Possession Conviction

On August 5th, the Virginia Court of Appeals rejected the claims of the Commonwealth that police officers had not “seized” the defendant when they told him they were going to get a drug-sniffing dog to “go over his car” unless he gave permission for them to search it. In Middlebrook v. Commonwealth, the issue before the court was whether that statement to Middlebrook, which prompted his admission he had marijuana in the car, arose from a consensual encounter or not. The trial court found that the encounter was consensual, and that the admission was voluntary.

The Court of Appeals disagreed and threw out Middlebrook’s conviction because the officers lacked any legal basis to detain him, other than their unformulated suspicion’s that he might be selling drugs. And, the court held, after the officer told him that he was going to call the dog to the scene, “no reasonable person would have felt free to leave.”

"Presumed Innocent" -- Not a Unique American Concept

Ecce Homo!

The New Testament of the Bible tells us these are words Pilate spoke to those wanting Jesus crucified while He stood beaten and bloody in Pilate's presence, and before those seeking his death. It translates, "behold the man," and was perhaps a not so subtle message ("Isn't this punishment enough?") to those demanding more than just a severe beating, but seeking capital punishment. But was this magninimity on Pilate's part, or a request impelled by a guilty conscience? As ruthless as the Roman Legions were in battle, and diabolical and cruel in political fights between themselves, there was an undercurrent of justice in the Roman esse.

In an 1895 United States Supreme Court opinion, Coffin v. United States, our highest court chronicled the origins of the concepts of "presumption of innnocence" and "proof of guilt beyond a reasonable doubt." In part the Court said, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." The Coffin decision did not leave the matter there, but expounded upon the roots of the principle.

In an historical context, it was said there that the concept of the presumption of innocence could be traced to its earliest mention in the Old Testament, predating by several hundred years the life of Pilate. Even before the Romans, writings of the Spartans and Athenians evidence its adoption by the Hellenic peoples. But it is the Romans who have left us the greater evidence of its application in their society. As Mr. Justice White noted in Coffin:

"Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis [a Roman province on the border between Italy and France], was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him.

His adversary, Delphidius, ‘a passionate man,’ seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, ‘Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?’ to which Julian replied, ‘If it suffices to accuse, what will become of the innocent?’ Rerum Gestarum, lib. 18, c. 1."

Thereafter, the Romans spread the concept among the territories it occupied, including England. There are many references in the Common Law treatises going back to the early 19th century, but the most well-known appears in Blackstone's Commentaries on the common law: "Tthe law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Comm. c. 27, marg. p. 358, ad finem.

Our English forebears did not abandon the principle, but clung to it in the administration of the law in Virginia and in other colonies, and in our state and federal systems thereafter. But how does it work?

The example cited above, relating to Numerius and Delphidius, is a good one because it encompasses all the elements. The accused, Numerius, had only to deny the charge against him, and the burden fell to his accuser, Delphidius, to produce evidence (i.e., facts) to prove Numerius guilty of the charge.