The Times-Dispatch has an article on its Web site about the much-delayed plan for getting the two criminal general district courtrooms out of the deteriorating Public Safety Building.
The plan now is to move them to a renovated Manchester Courthouse, with construction to begin in June and be completed in early 2010.
The Supreme Court of Virginia handed down opinions in a slew of criminal cases listed in a VLW blog Friday, but it didn’t issue a decision in the cases prosecutors and criminal defense attorneys were watching the closest.
Those would be Gibson v. Commonwealth, the Virginia Court of Appeals decision in August that held judges have the authority to defer judgment only when the General Assembly has granted it to them explicitly, and Moreau v. Fuller, Record No. 062688.
That’s the appeal of a writ of mandamus from Danville Circuit Judge Joseph W. Milam Jr. directing a juvenile and domestic relations district judge to enter a finding of guilt after she had concluded that a 21-year-old man had contributed to the delinquency of a minor by having sex with a 15-year-old girl. Judge Stacey W. Moreau had continued the case with the apparent intention of dismissing the charge six months after the trial.
The court was expected to issue a decision in Moreau on Jan. 11, and when it didn’t most court observers concluded that it had not done so because it wanted to decide the case and Gibson at the same time. But the court heard arguments in Gibson in February and again was off schedule Friday in not issuing an opinion in either case.
The issue may turn out to be a matter for the legislature in any event. House Majority Leader H. Morgan Griffith of Salem introduced HB 553, which would give judges the authority to defer judgment in most cases, but moved to carry the legislation over to next year to give the Supreme Court an opportunity to rule on the matter.
The issue long has been a source of contention between judges and prosecutors. Some judges argue that they have the inherent authority to defer a finding of guilt for several months or a year and then dismiss the charge if a defendant has no further legal difficulty.
Prosecutors counter that any such authority must come from the legislature and point to the grant of it in some cases, most notably first-time drug offenses, as support for their position that judges lack the power to do it on their own hook.
A narrow majority of the Supreme Court of Virginia failed today to find a “meaningful distinction” in recently decided cases involving a folded dollar bill and hand-rolled cigarettes.
Those cases were among seven in which defendants prevailed.
The bills in Snell v. Commonwealth, decided by published order today, and Grandison v. Commonwealth, decided last June, both contained drugs.
Snell’s bill, in the description of dissenting Justice Donald W. Lemons, was “tightly folded into a square measuring 1 inch by 3/4 inch.” Grandison’s bill was in an “apothecary fold,” folded three times lengthwise with the ends folded toward the middle.
The majority in both cases said police have no authority to seize “legal material with a legitimate purpose.” The same justices – Lemons, A. Steven Agee and Cynthia D. Kinser – dissented in both cases and contended in Grandison that “the intentional manipulation of an otherwise legitimate object” could provide probable cause for seizing an item.
In Buhrman v. Commonwealth, the majority relied on Brown v. Commonwealth, the 2005 case that ruled that a partially burned, hand-rolled cigarette in the hand of a man asleep in a car was not enough to justify seizure of the cigarette and arrest of the man.
Police tried to distinguish Brown from the circumstances in Buhrman in which a woman staggered and almost fell asleep at a drink machine in a convenience store. Fearing that she was intoxicated, a policeman followed her to her car and saw hand-rolled cigarettes in the door of the vehicle when she opened it to retrieve her identification.
The policeman said she noticed a “faint odor” and the “coloration” of the cigarettes but did not further describe the odor or the color. No different from Brown, a unanimous decision, Justice Lawrence L. Koontz Jr. wrote for the majority. The dissenters, Lemons, Kinser and Justice S. Bernard Goodwyn, said they would have found that “behavior reasonably associated with intoxication, the absence of alcohol and the presence of hand-rolled cigarettes with peculiar color and odor” ample probable cause for arresting the defendant.
In the other criminal cases, the court:
- Held that mere possession of a controlled drug does not “give[] rise to an inference that the defendant was aware of its character.” Young v. Commonwealth involved a prescription pill bottle found in a woman’s purse. The bottle was in the name of another woman and did not contain prescription medicine of the type listed on the bottle.
The owner of the bottle said the defendant had retrieved it for her after she left it in the car and produced prescriptions for the drugs found in the bottle.
- Ruled, with three justices dissenting, in McCain v. Commonwealth that a policeman lacked the authority to pat down the passenger in a vehicle that was stopped for a traffic violation in an drug-trafficking area of Danville at 3 a.m. The dissenters said those facts, plus a brief stop by the car at the home where the policeman knew a drug transaction had occurred months earlier were enough for a pat-down to ensure the officer’s protection.
- Affirmed in Robertson v. Commonwealth the Virginia Court of Appeals holding that neither exigent circumstances nor facts justifying a protective sweep excused the warrantless, forcible entry into a home after the only occupant of the residence had been arrested outside.
- Ruled in Jay v. Commonwealth that the court of appeals has been too strict in using Rule 5A:20(e) to dismiss petitions for appeal by finding that defendants have not been specific enough in providing authority to support their legal arguments.
The Supreme Court of Virginia says that disgruntled neighbors can’t use the courts to blow the whistle on land use violations. The case comes from Roanoke, and the Times has details.
Defense lawyers are accustomed to the aggravation of a nonsuit. They know what it’s like when plaintiffs apply the brakes on the eve of a scheduled trial.
The shoe was on the other foot in a case handed down today by the Supreme Court of Virginia. In McNally v. Rey, defense attorney John McNally’s corporate client filed a bankruptcy petition the day before the client was set to be in Norfolk Circuit Court to defend a contract action. Homeowners had sued the business on a contract to remove lead-based paint from their home.
When lawyers for both sides appeared before Norfolk Circuit Court Judge Chuck Griffith, who recently lost his bid for another eight-year term, the defense lawyer informed the court about the bankruptcy petition. The plaintiffs’ lawyer got mad. He promptly asked Griffith for attorney’s fees and costs, dismissal of the defendant’s counterclaim with prejudice and, for good measure, a bench warrant against the client for unspecified criminal charges.
A month later, without holding a hearing, Griffith ordered sanctions totaling just over $14,000 against McNally.
A unanimous Supreme Court said that was an abuse of discretion. Writing for the court, Chief Justice Leroy Hassell said McNally had no obligation to inform the plaintiffs’ lawyer about a possible bankruptcy filing, and that McNally’s filing of a witness and exhibit list, required by the trial court’s own pretrial order, did not violate Va. Code § 8.01.271.1.
The Roanoke Times takes a look today at lawyer-turned-author David Baldacci and his life on Virginia’s Smith Mountain Lake. Best quote: “Lawyers are paid to tell persuasive stories. So are novelists. Sometimes I think some of the best fiction I ever wrote was when I was a lawyer.”
The much-litigated custody of 6-year-old Isabella Miller-Jenkins was in court again today, this time before the Supreme Court of Virginia
Mathew Staver, the head of Liberty Counsel and dean of the Liberty University law school, told the court that the Virginia Constitution and the federal Defense of Marriage Act prevent the court from considering anything about a same-sex civil union. He represents Lisa Miller-Jenkins, the biological mother of Isabella, who is trying to cut off the visitation rights of her former partner, Janet Miller-Jenkins.
Joseph R. Price, the Washington attorney who represents Janet, responded that the federal Parental Kidnapping Prevention Act and the full faith and credit clause of the U.S. Constitution require Virginia courts to honor the visitation order entered by Vermont courts.
Lisa Miller-Jenkins and Janet Miller-Jenkins were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination in Virginia in 2001 while the couple was together and a child, Isabella, was born the following April. They moved full-time to Vermont in August 2002.
In the fall of 2003, the women separated and Lisa Miller-Jenkins moved back to Virginia. She filed in Vermont for dissolution of their civil union, which is akin to a divorce, and sought custody of Isabella.
In June 2004, a Vermont family court granted Janet Miller-Jenkins visitation rights; that October, a Frederick County court issued a contradicting decision.
In August 2006, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction in the visitation dispute. The Virginia Court of Appeals agreed two months later in Miller-Jenkins v. Miller-Jenkins.
In April 2007, the U.S. Supreme Court also refused to hear Lisa Miller-Jenkins’ appeal of the Vermont court ruling.
The litigation has become something of a procedural mess since then. Suffice it to say that a major hurdle for Staver is convincing the justices that all the legal points in the case weren’t at issue when the Supreme Court dismissed an earlier appeal because of a procedural default.
John Brownlee, the U.S. Attorney for the Western District of Virginia, will step down in a month after seven years as the region’s top federal prosecutor. He confirmed today that he is considering a bid for the Republican nomination for Virginia Attorney General, but has not made any final determination.
Julie Dudley, now First Assistant U.S. Attorney, will serve as U.S. Attorney when Brownlee steps down on May 16.
Fairfax State Senator Ken Cuccinelli is the only announced candidate for the GOP Attorney General nomination. Brownlee joins a field of potential candidates that includes Mechanicsville State Senator Ryan McDougle and former Delegate Paul C. Harris.
As reported on SCOTUSblog: In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution.
The Washington Post notes that Governor Kaine acted quickly to reinstate the death penalty in Virginia.
To say that Jimmy Roger Lane was caught with the goods would be an understatement.
In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.
Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.
That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.
The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.
He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”
The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.
