Wednesday, December 19, 2007

Supreme Court to hear toxic mold case

After a judge took away a $760,000 jury verdict from a family allegedly injured by toxic mold, plaintiffs’ attorney David S. Bailey remained optimistic.

“It just means I’ve got to wait another year” for the Supreme Court of Virginia to overrule the judge and reinstate the verdict, he said in February after the decision by Richmond Circuit Judge Melvin R. Hughes Jr. Bailey is a little behind schedule but at least the Supreme Court has agreed to hear the appeal in an order entered Dec. 18.

Defense attorney Raymond J. Sinnott III won the case by first getting the testimony of Bailey’s expert on toxic mold excluded because his theories on mold exposure and treatment were not accepted by the medical community. Sinnott then argued, and Hughes agreed, that Bailey needed expert medical testimony to prove the connection between mold and the plaintiffs’ injuries.

Bailey contended in his petition for appeal that his expert should have been allowed to testify and that the testimony of the plaintiffs and a toxicologist supported the verdict even in the absence of such testimony.

He contended that his clients suffered coughing, headache, runny nose and fatigue from the effects of the mold for almost three years after they were exposed to it in a Norfolk apartment.

Tuesday, December 18, 2007

SCC seat becomes hot topic on hill

Suddenly a seat on the State Corporation Commission is a hot item of discussion on Capitol Hill. Two potential candidates have backed out and names of four others are being floated, according to the Richmond Times-Dispatch.

Gov. Tim Kaine announced last week he won’t fill the opening to be created by the Dec. 31 retirement of Judge Theodore V. Morrison. Both Sen. William C. Wampler Jr., R-Bristol, and lawyer/lobbyist Bernard L. McNamee II had been mentioned as possible judges; they both since have withdrawn from consideration.

Four other names now are on the table: Former Del. Ralph L. “Bill” Axselle Jr. and David W. Clarke, both lawyer/lobbyists; Chief Deputy Attorney General William C. Mims, who recently was on some lists for a seat on the Supreme Court of Virginia; and former Del. Jean W. Cunningham, D-Richmond, now chair of the State Board of Elections.

Beware of EDGAR

Junior Johnson ran a software company called PurchasePro that was based in Las Vegas.

In 2001, PurchasePro, a publicly traded company, filed a Form 10-Q with the Securities & Exchange Commission, reporting its financial results for the first quarter of that year. The feds thought that the documents were false and misleading and contained inflated revenue figures, so they sought to indict Johnson for securities fraud.

Where did they seek venue? The Eastern District of Virginia, where the servers for the SEC’s Electronic Data Gathering, Analysis and Retrieval system are located.

Johnson wanted out of the Eastern District, conceding that venue might be proper in, say, the District of Columbia, where the SEC is located. But he wanted no part of the Eastern District, where they have the “rocket docket,” among other things.

A district judge bought the venue argument, but the 4th Circuit says that use of EDGAR makes venue permissible.

Although Johnson predicted direly that any defendant anywhere in the U.S. using EDGAR could be hauled to court in Alexandria, the 4th Circuit essentially said “Piff” to that argument: Venue might be permissible in the E.D., but not every prosecution will proceed there. And there are change-of-venue rules in the FRCrP that could help, too.

Despite those assurances, every SEC filer using EDGAR might want to be aware of U.S. v. Johnson.

Monday, December 17, 2007

Supreme Court to hear challenges to transportation plan

The Supreme Court of Virginia has granted expedited review and will hear arguments Jan. 8 on the constitutionality of regional transportation the General Assembly adopted for Northern Virginia.

That means the court will hear two related cases, Marshall v. Northern Virginia Transportation Authority, Record No. 071959 and Board of Supervisors of Loudoun County v. Northern Virginia Transportation Authority, Record No. 01979, barely four months after Arlington County Circuit Judge Benjamin N.A. Kendrick rejected the challenges.

The opponents contend, among other things, that the Virginia Constitution bars an unelected body such as the authority from imposing the taxes proposed to finance the revenue bonds specified for transportation improvements.

The Supreme Court session beginning Jan. 7 has several other cases of note, including the death penalty of a man convicted of killing a Norfolk policeman in October 2005, whether foundations at the state’s teaching hospitals have charitable immunity, and whether submission of scientific reports from the Virginia Department of Forensic Science without testimony from a technician violates the Confrontation Clause of the U.S. Constitution.

Friday, December 14, 2007

Kaine proposes mental health improvements

Gov. Timothy M. Kaine proposed today to spend almost $42 million to improve the state’s mental health system.

Kaine made it clear that the proposals are a direct response to the massacre at Virginia Tech in April and to the recommendations of a review panel he appointed to study the incident.

“The tragedy at Virginia Tech in April of this year has drawn attention to our mental health care system in an unprecedented way,” he said at a press conference while flanked by legislators from both parties. “Now is the time for us to work together to make the changes and to provide the funding and the accountability our mental health system needs.”

A press release from the governor’s office has the details of the proposal.

New Albemarle prosecutor fires deputy

Denise Lunsford was elected Albemarle County commonwealth’s attorney last month, beating four-term incumbent Jim Camblos. As she prepares to take office, she has fired the county deputy commonwealth’s attorney, Richard Moore.

The Daily Progress reports that Moore, who held the job for four years after serving in similar post in Charlottesville for more than eight years, has been given his walking papers. Moore had supported his old boss for reelection.

Lunsford said she will promote one of the other three assistant commonwealth’s attorneys in the office to deputy and hire a replacement for that position.

Thursday, December 13, 2007

Deeds announces run for governor

Creigh Deeds, the Democratic senator from Bath County who lost a tight race for Attorney General in 2005, announced this afternoon that he will run for governor in 2009, reports the Roanoke Times.

Del. Brian Moran of Alexandria also has voiced interest in heading the Democratic ticket.

Deeds potentially could have a rematch with Attorney General Bob McDonnell, who won that 2005 race by a margin of 360 votes. McDonnell has announced he will seek the GOP nod. Former Gov. and Sen. George Allen's name is in the mix on the Republican side, as is that of Lt. Gov. Bill Bolling.

Kaine won’t make SCC appointment...for now

Gov. Tim Kaine says he won't appoint a new judge to the State Corporation Commission, leaving the choice to the 2008 General Assembly, reports the Richmond Times-Dispatch.

Judge Theodore V. Morrison is retiring at the end of this month, giving Kaine an opportunity to fill the seat, since the Assembly won’t convene until Jan. 9.

Speculation had been that the governor would name Sen. William Wampler Jr., R-Bristol, to the position. But Wampler’s hope of being the first non-lawyer to sit on the SCC will have to wait. Kaine said he did not want to aggravate legislators by naming a judge just days before the legislature met.

But if the divided Assembly can’t agree on anyone, he stands ready to make the appointment, he said.

Wednesday, December 12, 2007

Executive’s defamation claim tossed

A former executive who said she was defamed by her job performance review has come up empty-handed, after winning one of the largest verdicts in 2005.

Cynthia Hyland had been with defense contractor Raytheon Corporation for 21 years and served as a senior vice president prior to being fired in 2003 after the business unit she led lost money. In 2005, a Fairfax County jury awarded Hyland $3.5 million in a suit alleging the company president made defamatory remarks in Hyland’s performance evaluation.

Fairfax Circuit Court Judge Arthur Vieregg reduced the $2 million punitive damage award to the statutory cap of $350,000, and the case went up on appeal.

In March 2007, the Supreme Court of Virginia reversed Hyland’s $1.85 million award, saying that only two of the five allegedly defamatory statements cited by Hyland could support the jury verdict. The justices sent the case back for another look at the factual accuracy of statements relating to Hyland’s role in the bidding process for two government contacts and her team’s being “off plan” on their financial targets.

Last month, Vieregg granted summary judgment for Raytheon and its president in Hyland v. Raytheon Technical Services, saying Hyland admitted that she oversaw or was the project manager for the two government contracts at issue and was responsible for identified financial losses.

Neither statement identified by the Supreme Court was defamatory, the circuit court said.

Tuesday, December 11, 2007

Commission allows sentence reduction for crack

The U.S. Sentencing Commission decided this afternoon to make its reduction in the sentencing guidelines for crack cocaine retroactive.

That typically would mean a reduction of about five years for a 20-year sentence and about two years for a 10-year term, according to Rob Wagner, an assistant federal public defender in Richmond.

It also would have a greater impact on prisoners sentenced in the Eastern District of Virginia than anywhere else, he said. “We’ve consistently had the most crack cocaine cases of any district in the country.”

That is largely because many cases that typically would have been prosecuted in state court were handled in federal court under a program called Project Exile because of the harsher punishment available under federal law.

Under the old sentencing guidelines, a drug trafficker dealing crack cocaine was subject to the same sentence as one dealing in 100 times more powder cocaine. The commission lowered that disparity under regulations that took effect Nov. 1 by reducing the base offense level associated with each quantity of crack by two levels.

Congress could have intervened to maintain the disparity but did not do so.

Each of 19,500 defendants convicted of a crack cocaine offense would have to appear before a federal judge for a possible sentence reduction. The burden of so many hearings was one reason the U.S. Justice Department opposed retroactivity.

Opponents of the disparity between crack and powder cocaine long have pointed to its harsher effect on black defendants. Eighty-six percent of crack defendants are black, compared with just over a quarter of defendants convicted of powder cocaine.

The commission’s decision came a day after the U.S. Supreme Court ruled that a federal judge properly considered the disparity in sentencing a crack defendant to a term below the guidelines.

Supreme Court: Sentencing guidelines on crack advisory

The U.S. Supreme Court yesterday ruled that federal judges are note required to follow sentencing guidelines that permit harsher penalties for crack cocaine crimes than powder cocaine. In a case from Norfolk, the court, 7-2, reinforced the view that the federal sentencing guidelines are merely advisory rather than mandatory. Lawyers USA has the story.

Monday, December 10, 2007

Vick gets 23 months

Michael Vick could play professional football in 2009, but he would have to shake off two years of rust and miss much of the pre-season training for whatever team is willing to accept bad publicity and uncertain performance.

U.S. District Judge Henry E. Hudson sentenced Vick today to 23 months in prison on a federal dogfighting conspiracy charge. Because Vick began serving his sentence early on Nov. 19 and federal prisoners serve 85 percent of their nominal sentence, he probably will be released in mid-July 2009.

Vick appeared in black-and-white-striped prison garb and apologized to the judge, his family and his children. Hudson responded, “I think you should have apologized also to the millions of young people who look up to you.”

The sentence was above the 12- to 18-month term that defense attorneys and prosecutors mentioned when Vick pleaded guilty, but Hudson said Vick’s initial lack of candor in acknowledging that he participated in the hanging of two dogs and in the circumstances that he smoked marijuana while awaiting trial were factors in the higher term.

Court documents suggested that Vick bought property in Surry County and built a house and outbuildings on it largely for dogfighting. Those documents said that Vick paid for the “Bad Newz Kennels” operation and divided all his winnings from gambling on the fights among his colleagues without keeping any of the money himself.

One of three people arrested with Vick was sentenced to 18 months, another to 21 and the third will be sentenced Friday.

The Washington Post has the details of the court proceedings.

Friday, December 7, 2007

A thing without feathers

Hope, Emily Dickinson famously once wrote, is a thing with feathers.

The new logo for the College of William and Mary is a thing without feathers. The NCAA decided the two feathers on the school's previous logo were "hostile and abusive" to Native Americans.

But the new logo is pretty hopeless. It's dull. W&M is a school rich in tradition and history, and this is the best they can do? The school was founded in 1693, for crying out loud. When I was at W&M back during the Bicentennial, we were known as "The Alma Mater of a Nation." Thomas Jefferson went here. So did James Monroe. It's in Williamsburg, home of pineapples and scrolly colonial writing and tricorner hats and little horsedrawn carriages.

Pictured above, it's the letters "W" and "M" as mirror images of each other. Take a look. Tell me when you wake up.

The Daily Press has a report on the new logo, and three new "secondary" logos.

The paper says that the school paid $7,000 to a New York design firm for the privilege.

The NCAA may be happy that the feathers are toast. But the early reviews of the new look aren't complimentary. An online poll about the new logo conducted by The Daily Press is running 81% hate it, 7% love it. Some 12 percent could care less.

Anita Poston, a Norfolk lawyer, former VBA president and W&M board member, may have put it best. She asked if the new logos would infringe upon the logo of Waste Management Inc., which has a side-by-side green W and gold M.

Great question. When your school logo could be confused with something on a garbage truck, it's time to punt and start all over again.

So you're 18...

There are 18, count 'em, 18 candidates seeking two soon-to-be-available circuit judgeships in Chesapeake.

One seat is open now, following the appointment of Judge S. Bernard Goodwyn to the Supreme Court of Virginia last month. Judge Frederick Creekmore will be retiring.

State lawmakers representing Chesapeake recently interviewed all 18 candidates, reports The Virginian-Pilot. The list includes local lawyers and lower-court judges. The Pilot did not name the 18 names.

With both Republicans and Democrats representing parts of the city, and with the House in GOP hands and the Senate now controlled by the Dems, local lawmakers said they expect some give and take in deciding just who gets the two jobs.

Chief justice’s son sentenced to 16 months

Leroy R. Hassell Jr. not only failed to complete the 200 hours of community service imposed as part of convictions for embezzlement, unlawful entry and trespassing, he forged documents saying that he had.

As a result, Henrico Circuit Judge L.A. Harris jr. sentenced him yesterday to 16 months in jail, part of it for forging community service time sheets and the rest for violating the terms of probation on the petit larceny and unlawful entry counts.

Those charges were reduced from burglary and grand larceny in an incident at a Henrico home that involved two other young men. He was charged later with embezzling from a Target store where he worked during the 2005 Christmas season.

He was assigned to perform community service work at the Henrico landfill but worked only five hours there before he forged documents reporting that he had put in substantially more time.

He turned himself on Sept. 14 after he was indicted on the forgery charges and chose to remain in jail to begin serving the expected jail time rather than post bond.

The Richmond Times-Dispatch has more details.

Tuesday, December 4, 2007

Disciplinary charges against prosecutor dismissed

A Virginia State Bar disciplinary subcommittee has dismissed a complaint by Virginia Beach circuit judges that Commonwealth’s Attorney Harvey L. Bryant III violated legal ethics.

Bryant announced the dismissal Saturday at the same event that led to the complaint—a Republican prayer breakfast.

Ethical proceedings typically remain confidential unless and until the VSB’s disciplinary apparatus finds misconduct serious enough to at least warrant a public reprimand.

Bryant and his attorney, Rodney G. Leffler of Fairfax, said the investigation ended well short of that point. An attorney in the VSB’s disciplinary office summarized the case for a subcommittee composed of two lawyers and a layman, who decided that it did not warrant further attention, Leffler said.

Leffler said the investigator interviewed 26 people, only one of whom recalled that Bryant had used the phrase “illegal conduct” at the February breakfast to describe the practice of taking cases under advisement without explicit legislative authority to do so.

The case was somewhat unusual in that The Virginian-Pilot obtained a copy of the complaint signed by all nine circuit judges and Bryant made public his written response to it.

Bryant said he responded to a question about drunken driving cases by noting that he believed that judges at times exceeded their authority by deferring judgment and dismissing or reducing the charge if a defendant had no further legal difficulty over the next few months of a year. He added that he kept a record of such instances in case members of the city legislative delegation might be interested in them when judges come up for reappointment.

“It is not against the rules to say something true about a judge,” Leffler said.

Monday, December 3, 2007

Supreme Court tightens up on documents

Enough of that squished-together Times New Roman typeface already.

That’s one possible reading of the thinking of the Supreme Court of Virginia in amending its rules on “Forms of Briefs and Other Papers.”

Or it may be that they just want to read less.

The practical effect of the amendments, which will take effect Feb. 1, is that lawyers will be able to write only five-sixths as much in most instances—and substantially less than that if they had been writing their briefs in Times New Roman.

Rule 5:6 requires the submission of briefs in 14-point type, rather than 12-point type, and limits the fonts lawyers can use to Courier, Arial and Verdana. The page limits remain the same. The amount of space available for petitions for rehearing, now 7,500 words, is reduced to 3,000 words.

The attorneys have to file fewer copies of briefs, 12 rather than 20, but they also must file an electronic copy on a disc or by e-mail. Documents in Word format are preferred, but those in Word Perfect or PDF format are acceptable.

The court also wants to know more about the attorneys. The amendments require them to include name, Virginia State Bar number, telephone number, facsimile number and e-mail address on the front covers of their briefs

Thursday, November 29, 2007

Three-judge panel balks at VSB agreement, for now

The Virginia State Bar and Suffolk lawyer Johnnie Mizelle were preparing for a disciplinary hearing before a three-judge panel next Monday when they reached a deal: Mizelle would consent to a five-year suspension of his law license to settle charges that he groped and solicited a number of female clients.

But the judges in the case did not accept the agreement immediately.

Only two of the seven women involved knew about the agreement with Mizelle, who is the former mayor of Suffolk. After a teleconference yesterday, the panel gave the bar additional time to contact the others. A different panel rejected a deal in February which would have suspended Mizelle's license for three years.

The Virginian-Pilot has details.

Author ponders book ban in her native SW Virginia

Grundy native Lee Smith, the award-winning author who has chronicled life in Southwest Virginia in a number of novels, was back in her home region this week. She had a speaking engagement at the University of Virginia’s College at Wise.

She was asked about an effort to ban her novel, “Fair and Tender Ladies,” by the Washington County School Board. The novel details the life of a young woman in Appalachia and includes a short passage about her first sexual experience. Some of the words used are “crude,” prompting the school board to appoint a committee to review the book and determine if high school honor students should read it.

Smith told the Bristol Herald Courier that she was sorry to hear about the book-banning effort. The novel is “a love story to Southwest Virginia,” she said. “Fair and Tender Ladies” is an homage to the older Appalachian women she knew growing up, she added.

Wednesday, November 28, 2007

Explain this one to your insurance agent

We’ve reported stories in the past about road hazards caused by stuff spilled on the highway. Concrete. Fruit. A load of eggs on the Beltway in Northern Virginia.

Here’s a new one: Chicken fat. If that sounds pretty gross, it was.

A tanker was carting chicken fat, a processing byproduct, from a Perdue poultry plant in Accomack County yesterday morning, reports the Richmond Times-Dispatch, when about 3,000 gallons of the goop spilled on Highway 13. Apparently the driver failed to secure a hatch and the stuff sloshed on the road. He realized the mistake 20 miles later when he stopped at a weigh-station.

Chicken fat is brown and oily and smells like rotten chicken that you left in the fridge and forgot to cook by its sell-by date. For a couple of weeks. Imagine 20 miles of that smell. At 6 in the morning, a roadway covered with same looks like it’s drenched with rain, but it is as slick as wintertime black ice.

At least four wrecks were caused by the fat on the road, including one four-car crash that sent several people to the hospital with minor injuries. The highway department moved quickly to get sand down on the fat.

The tanker’s driver was cited for failure to maintain his load.

Naming the new Richmond courthouse, round two

The idea of naming the new federal courthouse in downtown Richmond after Judges Spottswood W. Robinson III and Robert R. Merhige Jr. has been circulating for about two years, with a push from local bar groups.

Last October, Sens. John Warner and George Allen introduced legislation to secure the name, but it went nowhere.

Allen lost his seat to now-Sen. Jim Webb.

Warner's office has issued a press release with much ballyhoo that he will introduce a bill next week to name the courthouse for Robinson, who served on the D.C. Circuit, and Merhige, a longtime U.S. District judge in Richmond.

The release doesn't mention Allen or the failed prior effort. But it does tout that Webb has signed on. Warner and Webb have worked together on judicial nominees for the Old Dominion, with mixed success and cooperation from the White House. Stay tuned to see if they can jog their colleagues into passing the name bill.

Monday, November 26, 2007

Prince William judge appointed to court of appeals

Gov. Tim Kaine appointed Prince William Circuit Judge LeRoy F. Millette Jr. today to fill the Virginia Court of Appeals vacancy created by the retirement of Judge James W. Benton Jr.

Millette, who has a background as a law firm associate and partner, a sole practitioner and a state prosecutor, was named a general district judge in 1990 and elevated to the circuit court in 1993.

He is a graduate of the College of William and Mary and its law school.

Millette, 58, probably is best known for presiding over the capital murder trial of sniper John Muhammad.

“To me as a trial lawyer, temperament is the key, and Lee has always had that,” said John D. Whittington, a Prince William lawyer who tried cases against Millette when Millette was in private practice and has appeared before him after he was appointed to the bench. “He’s got the whole package.”

Monday, November 19, 2007

Damages for Chesapeake Airport neighbors

Property owners who lived near Chesapeake Airport have won the right to damages for noise and vibration that they say has ruined the once quiet, rural setting of their West Landing Estates neighborhood.

In operation since 1977, the airport completed its last runway extension in 1999. George and Margaret Osipovs bought their home in March 2001 for $246,600. The airport and its neighbors apparently co-existed peacefully until early 2003, when the airport began using instrument landing systems. The landowners complained about the increased frequency of landings and departures, and about the types of aircraft coming and going. The Osipovs said the ILS brought low-flying aircraft directly in over their rooftop.

After talks between the airport and surrounding property owners failed to produce the kind of mitigation the neighbors wanted, the Osipovs sued.

On Nov. 16, Chesapeake Circuit Judge Randall D. Smith rejected the owners' claim of a taking under the Virginia Constitution, saying the Osipovs had managed to sell their home in 2006 for more than twice the 2001 purchase price.

But Smith said in Osipovs v. Chesapeake Airport Authority that the Osipovs are entitled to damages for a partial diminution in value from the significant increase in volume, frequency and vibrations from noise due to aircraft flying directly overhead.

The property owners’ claim for just compensation can be determined in a proceeding under Virginia Code § 8.01-187, Smith ruled.

The Osipovs’ case is the first of 12 companion inverse condemnation cases alleging taking and damage resulting from the airport’s expansion, according to Norfolk lawyer Joe Waldo, who represents the Osipovs.

Friday, November 16, 2007

Bush taps Novak, Davis for federal judgeships

President Bush has nominated David J. Novak and Mark S. Davis for federal judgeships in Richmond and Alexandria, respectively.

Novak is an assistant U.S. attorney who worked on the trial of Zacarias Moussaoui, the convicted Sept. 11 conspirator. Davis is a circuit judge in Portsmouth.

Both men were on the list of candidates submitted by Sens. John Warner and Jim Webb to the White House. The Richmond Times-Dispatch has more details.

Clemens gains bars’ backing for Roanoke judgeship

Salem lawyer Chris Clemens has garnered endorsements from three Roanoke-area bar groups for a general district judgeship that will open next year after the retirement of Judge Julian Raney, reports the Roanoke Times.

The Roanoke Bar Association and the Salem/Roanoke County Bar Association have endorsed Clemens. The Roanoke Valley Chapter of the Virginia Women Attorneys Association found both Clemens and Roanoke Commonwealth’s Attorney Donald Caldwell to be “highly recommended.”

Nine candidates have expressed interest in the seat.

Thursday, November 15, 2007

Smyth County OKs $24M courthouse renovation

After literally years of debate and discussion, the Smyth County Board of Supervisors has approved a $24 million plan to renovate the county’s historic courthouse in Marion (right), reports the Bristol Herald Courier.

The action came on a 4-3 vote, with the the board choosing the most expensive of several options. But one member noted that the plan is a 20-year fix.

Judges and other court officials have been saying for years that they need better security and more space.

Board members were aware that the Supreme Court was looking at them. The board chairman said that if something hadn't finally happened, officials at the court wouldn't be shy about forcing the issue, as they had in other jurisdictions.

Embracery charges against lawyer dismissed

A circuit judge yesterday dismissed embracery charges against a Charlottesville lawyer, reports The Daily Progress.

Deborah C. Wyatt has been accused of improperly attempting to influence a grand jury. In December 2004, she contacted members of a grand jury investigating whether to charge one of her clients, offering herself as a witness. Prosecutors charged her with embracery, a common-law offense.

But Judge William H. Ledbetter Jr. said it would be a “grave injustice” for the case to go to trial. He noted that her actions were out of the ordinary, but not illegal.

Wednesday, November 14, 2007

House passes attorney-client privilege measure

The House of Representatives has passed the Attorney-Client Protection Act of 2007, sponsored by Rep. Bobby Scott, D-Va., to protect conversations between attorneys and clients under investigation, reports The Daily Press.

Scott said the bill was needed to prevent strong-arm tactics by prosecutors toward those under investigation. Memos from the Justice Department counseled prosecutors to bring charges against "uncooperative" companies. But "uncooperative" included those companies that refused to waive privilege and turn over confidential information, according to Scott.

H.R. 3013 now goes to the Senate. Sen. Arlen Specter, R-Pa., has sponsored identical legislation in the upper house.

Episcopal Church trial begins in Fairfax

Yesterday in Fairfax, a trial expected to last two weeks got under way that could determine control of the property of 11 churches that voted to leave the Episcopal Diocese. Millions of dollars are at stake.

At issue is an 1867 law, Virginia Code § 57-9, that governs when a congregation can realign its allegiance and keep its property. The breakaway churches say the law favors their position. The diocese counters that the ancient statute only applies when a church governing body recognizes an internal division, which did not happen here.

The Associated Press has details.

Bond of $10M needed to stop Randolph art sale

Opponents of the art sale proposed by officials at Randolph College need to post a $10 million bond by 4:30 p.m. tomorrow to finalize the injunction stopping the auction, reports The News & Advance.

If they fail to post the bond, the school can proceed with the sale, which will be conducted by Christie’s in New York.

Friday, November 9, 2007

2007 'Leaders in the Law' honored

Last night in Richmond, Virginia Lawyers Weekly paid tribute to the 2007 class of "Leaders in the Law." This year's honorees are:

• Richard J. Bonnie, the University of Virginia law professor who has served as chairman of the Supreme Court's commission on mental health reform.

• Richard Cullen, who became chairman of the Richmond-based legal giant McGuireWoods LLP.

• Kyung (Kathryn) N. Dickerson, who completed a four-year tenure as president of the Asian Pacific American Bar Association of Virginia.

• Wyatt B. Durrette Jr., who started a "virtual" intellectual property law firm, The XDL Group.

• Thomas A. Edmonds, who will retire next month as executive director of the Virginia State Bar and who completed his service to the National Association of Bar Executives this year.

• Betsy Wells Edwards, director of the Virginia Fair Trial Project, who helped to persuade the General Assembly to limit the waiver of the cap on court-appointed attorney's fees.

• L. Steven Emmert, an appellate lawyer and chair of the Virginia State Bar's appellate practice subcommittee of the litigation section.

• Robert L. Harris Sr., a retired Richmond Circuit judge who now mediates for The McCammon Group and who is approaching the $1 billion mark in the total value of settlements he has handled.

• Robert R. Hatten, a Newport News attorney who won a significant case in the Supreme Court of Virginia, advancing the development of law in Virginia to obtain remedies for asbestos victims.

• Corinne J. Magee, a leader in the constitutional challenge to the civil remedial fees approved by the General Assembly this year.

• Stephen A. Northup, the first pro bono partner for Troutman Sanders LLP.

• William R. Rakes, who completed his service as chair of the American Bar Association's Section of Legal Education and Admissions to the Bar.

• Diane M. Strickland, a retired Roanoke circuit judge who served as a member of the special commission that investigated the April 16 Virginia Tech shootings.

• William R. Van Buren III, the immediate past president of the Virginia Bar Association, who helped lead the VBA's work on the fee cap waiver and other improvements in indigent criminal defense.

• William T. Wilson, who concluded his service for the Virginia State Bar's Senior Lawyers Conference.

Congratulations to you all! And for a fuller biography and discussion of each 2007 Leader, please see the special Leaders in the Law magazine that has been posted at our Web site.

Thursday, November 8, 2007

Roanoke judge allows challenge to fees to proceed

A civil challenge to Virginia’s abusive driving fees remains alive in Roanoke County Circuit Court.

Judge James R. Swanson ruled Wednesday that the doctrine of sovereign immunity does not bar a request for a declaratory judgment on the constitutionality of Virginia Code § 46.2-206.1, which established the fees as part of a $3 billion package to finance state roads.

In September, Swanson rejected a request by attorneys John P. Fishwick Jr. and Devon J. Munro for an injunction that would have prevented enforcement of the law statewide. Swanson said then that he did not believe that he had the authority to impose such a statewide ban and added that he doubts that the plaintiffs are likely to win their case on the merits.

The judge took under advisement an assertion by Assistant Attorney General Mikie F. Melis that sovereign immunity bars the civil challenge to the law. “In our system there is nothing more fundamental than the right of a citizen to challenge a law on the basis of its unconstitutionality,” Swanson wrote in Wednesday’s opinion. “By their present action, the plaintiffs herein seek nothing more. In such limited context the doctrine of sovereignty immunity is not applicable to bar the plaintiffs’ declaratory judgment action.”
The fees drew little attention during the General Assembly session during the debate over the transportation package.
However, publicity when they were about to take effect on July 1 drew a firestorm of opposition aimed at their high cost, application to relatively trivial offenses and exclusion of out-of-state drivers.
The fees range from $750 to $3,000 payable in three installments over 26 months. Proponents projected that they would eventually raise $65 million annually for state road needs.
Some general district judges have declared the fees unconstitutional, but the first three circuit judges to rule on them have upheld the authority of the legislature to impose them.

Wednesday, November 7, 2007

Daft laws from across the pond

Memo to all the members of the House of Commons and the House of Lords: Don't die on the job. You'll be breaking the law.

That's right. It is illegal to die within the Houses of Parliament.

And that statute was voted the "most ludicrous" piece of legislation on the books in the United Kingdom in a poll conducted by UKTV Gold, a television channel. Nearly 4,000 people were surveyed, according to BBC News. A short list of choices was provided for voting.

The most daft laws, in order, as voted in the poll (drumroll, please):

1. It is illegal to die in the Houses of Parliament.

2. It is an act of treason to place a postage stamp bearing the British king or queen's image upside-down.

3. It is illegal for a woman to be topless in Liverpool except as a clerk in a tropical fish store.

4. Eating mince pies on Christmas Day is banned. (This one apparently dates back to the days of Oliver Cromwell).

5. If someone knocks on your door in Scotland and requires the use of your toilet, you are required to let them enter.

6. In the UK a pregnant woman can legally relieve herself anywhere she wants, including in a policeman's helmet.

7. The head of any dead whale found on the British coast automatically becomes the property of the King, and the tail of the Queen.

8. It is illegal not to tell the tax man anything you do not want him to know, but legal not to tell him information you do not mind him knowing.

9. It is illegal to enter the Houses of Parliament wearing a suit of armour.

10. It is legal to murder a Scotsman within the ancient city walls of York, but only if he is carrying a bow and arrow.

The UKTV Gold poll also asked those surveyed to identify what they thought was the silliest law on an international scale.

The state of Ohio won. There, it is illegal to get a fish drunk. Of course it is.

Still no mixed drinks on Hatteras

Like to spend time at the Outer Banks? You may already know you can’t buy a mixed drink on Hatteras Island.

And that isn’t going to change.

In yesterday’s elections in North Carolina, Hatteras residents went to the polls to vote on a measure that would have allowed the sale of mixed beverages on the island. The Virginian-Pilot reports that the proposal failed by an unofficial vote of 855-657.

Moral: Have a pop at the hotel or the beach house, which is probably a better idea anyway.

Two longtime prosecutors defeated

From yesterday's election results...

Two longtime commonwealth's attorneys, one in Caroline County and the other in Albemarle, were defeated by opponents calling for change.

In Caroline, Harvey Latney Jr. has been the top prosecutor for 30 years. But newcomer Tony Spencer got 60 percent of the vote, according to The Free Lance-Star.

And The Daily Progress reports that challenger Denise Lunsford beat four-term incumbent Jim Camblos in the race for Albemarle County commonwealth’s attorney.

Tuesday, November 6, 2007

Attorney indicted on jury-tampering charges

Embracery? No, it doesn’t mean what you think. The word comes not from the Old French word for arm but from the Middle English word to set on fire or incite—as one might do when trying to influence a juror improperly.

The Daily Progress reports that Charlottesville attorney Deborah C. Wyatt is accused of doing just that in a case that dates back to December 2004. Wyatt is accused of embracery for contacting several members of a grand jury and offering to be a witness when it considered indicting a client on hit-and-run charges.

She wanted to say that the client had a history of seizures, but she was not called, and the client was indicted only to be acquitted later.

Wyatt was actually indicted on five misdemeanor counts of the common-law offense in June 2005, but the charges were sealed while the Virginia State Bar considered whether Wyatt violated legal ethics. The agency finally decided to defer any action until the criminal case was resolved.

Wyatt insists she did nothing wrong.

Friday, November 2, 2007

A good day for criminal defendants

The Supreme Court of Virginia reversed six decisions of the Virginia Court of Appeals today on issues ranging from restitution to the use of a penile plethysmograph test in a sentencing.

A penile plethysmograph attempts to measure the degree of a arousal to various sexual stimuli by measuring changes in the flow of blood to the penis. An attorney for a Tazewell youth convicted of forcible sodomy contended that use of the test in a risk assessment prior to sentencing was improper because it was comparable to a polygraph test and similarly unreliable under the law, and because the prosecution had presented no threshold finding of reliability. A divided panel of the court of appeals disagreed, but the Supreme Court reversed unanimously in Billips v. Commonwealth.

The court ruled in Howell v. Commonwealth that a trial judge had improperly made payment for installation of a security system part of the restitution for the burglary of a business. “Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment,” the court said.

In the other cases, the Supreme Court:

● Ruled in Jackson v. Commonwealth that the phrase “under the influence of any narcotic drug or any other self-administered intoxicant” must be construed as a whole so that a defendant was improperly convicted of driving under the influence of the narcotic pain reliever Dilaudid after it had been given to him by an emergency room physician.

● Held in Meeks v. Commonwealth that the venue for credit card theft is “where the card or number is taken from its rightful owner or is received with knowledge that it has been taken with intent to use it, sell it, or transfer it.” The case explicitly overruled the possible interpretation of an earlier case that venue was proper in every jurisdiction where the thief had a card with intent to misuse it.

● Decided in Scott v. Commonwealth that the circumstances of nine robberies in Virginia Beach were not so similar that they constituted a common scheme or plan that permitted them to be presented in the same trial.

● Ruled in McGowan v. Commonwealth that “[t]he commonwealth cannot be allowed to essentially smuggle into evidence during its cross-examination of a defendant proof of another crime not admissible in its case in chief, which is not only highly inflammatory and misleading to a jury, but lacking in serious probative value as well.” Defendant, who was arrested with cocaine two months after the offense for which she was being tried, had testified that she wouldn’t know the drug if she saw it.

The Supreme Court did not hand down Jaynes v. Commonwealth, the most eagerly anticipated criminal case from its September argument session. Jaynes was the first defendant to be sentenced to prison for illegal spamming.

SW Virginia judge removed from bench

The Supreme Court of Virginia has removed J&DR Judge James Michael Shull of the 30th District from office. He is only the second judge to lose his job this way since the Judicial Inquiry and Review Commission was started in 1971.

The Judicial Inquiry and Review Commission had asked that Shull be censured or removed from the bench for several violations of the Canons of Judicial Conduct: he decided visitation cases by flipping a coin, he had asked a woman to drop her pants in court so he could observe a stab wound and he had made an ex parte call to a hospital in that case.

Justice Barbara Milano Keenan, writing for the unanimous court in Judicial Inquiry and Review Comm'n v. Shull, noted that Shull admitted many of the facts that JIRC alleged and he acknowledged that he had broken the Canons.

She said he “failed to uphold the integrity and independence of the judiciary” and that his violations were “grave and substantial.”

Shull argued that the only other judge to be removed has misappropriated confiscated alcohol and firearms, therefore any offense he committed did not warrant removal. But the high court was concerned that Shull demeaned and negatively affected litigants in his court. He was counseled by JIRC on this very point in 2004, but failed to heed their advice, Keenan concluded.

Thursday, November 1, 2007

Former legal secretary admits stealing $92,930

A two-person law office can create a false sense of security, especially if the second person is a long-term employee with a reputation for competence and integrity.

Harvey Latney Jr., the part-time commonwealth’s attorney in Caroline County who maintains a practice in Richmond, has found that out the hard way.

Shelia Mae Boone, Latney’s secretary for 27 years, pleaded guilty Wednesday to a federal bank fraud count related to the theft of at least $92,930 from an estate administered by Latney.

Boone’s attorney says that’s all his client took, but an attorney for Latney insists Boone stole about three times that amount from estates administered by Latney and from law firm accounts.

An estate is suing Latney for more than $200,000, and he is contending that he can tap a legal malpractice insurance policy with limits of $100,000 per occurrence and $300,000 in total coverage. The insurer, ALPS, has responded that a conversion exclusion bars the claim.

Wednesday, October 31, 2007

Civilian’s military detention reargued in 4th Circuit

This morning, the en banc 4th Circuit heard reargument in al-Marri v. Pucciarelli, the much-watched case that could set limits on presidential power to seize and hold civilians in the name of prosecuting the war on terrorism.

On June 11, a 4th Circuit panel granted a writ of habeas corpus to Ali al-Marri, a citizen of Qatar and legal resident of the U.S. who was seized in 2001 in Illinois by civilian authorities. The military took custody of al-Marri, who was initially detained for credit card fraud, after learning about his al-Qaida ties, which included training in a military camp in Afghanistan. Al-Marri filed his habeas petition from a Navy brig in South Carolina.

In the vacated panel decision, Judge Diana Motz and Judge Roger Gregory voted to issue the writ, while U.S. District Judge Henry Hudson dissented. Hudson was on the panel as a visiting district judge, and has no vote in the en banc case. The court’s remaining active judges, except Judge Dennis Shedd, joined Motz and Gregory today to rehear the case.

At regular intervals, the 4th Circuit judges described “what if” scenarios that went straight back to 9/11, questioning the lawyers about the legal framework now in place to stop another attack.

“If 25 or 30 terrorists sneak into this country,” couldn’t they be picked up under this authority, asked Judge Paul Niemeyer.

Jonathan Hafetz, al-Marri’s lawyer, said the president has the authority to repel sudden attacks, but that authority does not allow the indefinite detention of a legal resident alien such as al-Marri. Hafetz maintained that presidential police powers and authority as commander in chief support detention to halt an imminent attack, and that legislation passed since 9/11 – the Authorization for Use of Military Force and the Patriot Act – do not implicitly authorize indefinite detention.

Judge J. Harvie Wilkinson III acknowledged widespread concern that the AUMF “may have authorized some sweeping detention problem. …But people are not being swept off the streets of Omaha.”

“No, it was Peoria,” Motz noted.

Wilkinson continued. “The AUMF has been in force six years, and we’re talking about two individuals, Padilla and al-Marri. Both seem to have indisputable ties to al-Qaida. ... We’re not talking about a dragnet, a sweep, or an indiscriminate round-up. … Why does that kind of carefully targeted response by the government generate all this hoopla?”

Comparing detention of two people to the actions taken against German-Americans after World War I and against Japanese-Americans after World War II, Wilkinson asked if “we’ve lost our sense of perspective.”

“The calculus for determining constitutionality is not whether we have a good king or a bad king,” Gregory observed. “It’s not whether he stays his hand in generosity.”

Arguing for the government, Gregory Garre outlined the “extremely careful” procedures used in al-Marri to determine he was an enemy combatant. Garre said the government agencies on whose intelligence the president drew – the CIA, FBI and DOD – collected classified information and made both individual and collective assessments of the detainee’s status.

Garre also reinforced Wilkinson’s comment that al-Marri had available “channels to challenge a baseless seizure,” and that there were “no roadblocks put in his way to challenge” his transfer to military custody.

Al-Marri “squandered his opportunity to challenge” his custody, Garre said.

Richmond lawyer Margaret Sanner, who attended the argument, said debate among the judges and lawyers was “thoughtful and energetic” because “these judges had all done very serious homework” about the language of the relevant statutes and the precedents.

Sanger serves as counsel to a group of law professors from several Virginia and Ivy League schools that filed an amicus brief on behalf of al-Marri. She pointed particularly to questions by Judge William Traxler toward the close of argument that probed the “indefinite” nature of al-Marri’s detention.

“How does a person who’s held incommunicado challenge” his detention, Traxler asked.

Counterclaim, e-discovery rules proposed

The Supreme Court of Virginia’s advisory committee on rules is looking for comment on a proposal to make counterclaims compulsory and on changes to rules to make e-discovery consistent with changes in federal rules on e-discovery.

Virginia Lawyers Weekly has an article in this week’s issue that is available along with links to detailed reports from the committee on the counterclaim and e-discovery proposals.

Conviction for pit-bull attack affirmed

The conviction of Deanna Hilda Large for involuntary manslaughter because she recklessly allowed dangerous dogs to run at large might have been a first, but the Virginia Court of Appeals saw it as little more than a routine sufficiency-of-the-evidence case.

Large contended that the prosecution failed to prove that she knew that the dogs were dangerous or that she owned two of the three pit bulls that attacked and killed 86-year-old Dorothy Sullivan and her pet Shih Tzu, Buttons, in Spotsylvania County in March 2005.

In the unpublished opinion, Large v. Commonwealth, issued Tuesday, Judge Jean Harrison Clements detailed the testimony of several witnesses who connected the dogs to Large at the time of Sullivan’s death and in earlier attacks on animals and aggressiveness toward people. “[F]from this evidence, the jury could properly conclude that appellant knew or should have known her dogs were dangerous,” Clements wrote.

Appeals court to convene in Fredericksburg

The Virginia Court of Appeals usually hears writs in four different cities across the commonwealth. but it doesn't get to Frederickburg very often.

According to The Free Lance-Star, the intermediate court was last there about 10 years ago.

But the court will be in Fredericksburg tomorrow as part of the reopening of the newly renovated circuit courtroom. About 20 writ panels are scheduled.

Lawyer’s ex-secretary to plead guilty

A lawyer's former secretary, charged with stealing from a dead woman’s estate, is scheduled to plead guilty today under an agreement with federal prosecutors.

Shelia Mae Boone, who worked for Richmond lawyer Harvey Latney Jr., is charged with forging checks totaling more than $272,000, reports the Richmond Times-Dispatch.

Judge who brought pants suit loses job

Roy L. Pearson Jr., who lost his $54 million lawsuit against a D.C. dry cleaning shop over a lost pair of pants, is out of a job. He had been an administrative law judge with the Office of Administrative Hearings, but a panel has voted against reappointing him, reports the Washington Post.

According to the Post, the lawsuit wasn't really a factor in the panel's decision. Members had concerns over Pearson's judgment and temperament.

As a post script to the pants story, the Korean immigrant couple who operated Custom Cleaners in Northeast DC may have won the lawsuit, but they closed that shop last month, citing the stress and strain of dealing with the lawsuit.

Tuesday, October 30, 2007

Santoro named bankruptcy judge


Frank J. Santoro has been named a bankruptcy judge for the Eastern District of Virginia in Norfolk, to replace David H. Adams who will retire Jan. 2, 2008, upon the completion of his term of appointment.

Santoro (right) is expected to take the bench in March 2008, according to a press release from the Bankruptcy Court. Santoro currently is the managing partner of Marcus, Santoro & Kozak P.C., a Chesapeake law firm. Santoro has served as Standing Chapter 13 Trustee since October 1987 for the Norfolk and Newport News Divisions. He also has served as a Chapter 7 Trustee.

Santoro graduated in 1976 from Allegheny College, and received his law degree in 1979 from the Marshall Wythe School of Law at William & Mary. Bankruptcy judges are appointed by the 4th Circuit U.S. Court of Appeals to serve for a 14-year term.

Woman, girl sue Beach hotel over bedbugs

A woman and her daughter, visiting Virginia Beach from the Midwest, claim they were attacked by bedbugs at the Rodeway Inn, a hotel on Atlantic Avenue.

The Virginian-Pilot reports that the pair have filed a lawsuit, seeking more than $400,000 for bites and other injuries and for damage to their property.

Lone Henry County trafficking trial to begin

Of the 20 people indicted last year in the Henry County drug-trafficking scandal, only one, a former sergeant in the sheriff’s office, sought a jury trial.

That case is scheduled to begin today in Roanoke federal court.

The Roanoke Times reports that nearly four dozen witnesses may testify.

McDonnell takes issue with ABA

Yesterday, the American Bar Association renewed its call for a nationwide moratorium on use of the death penalty; the group issued a report based on several states’ experience, calling the system “deeply flawed.” Virginia was not one of the states studied.

Through a spokesman, Attorney General Bob McDonnell says he disagrees with the ABA study, adding that the death penalty is constitutional and that the system works.

As a practical matter, there has been a general freeze in executions across the country since Sept. 25, when the U.S. Supreme Court agreed to hear the case of a Kentucky man challenging lethal injections as cruel and unusual punishment.

The Richmond Times-Dispatch has the story.

Monday, October 29, 2007

It’s Halloween: Yo mama, mwah ha ha ha!

Just in time for Halloween, a contract and copyright dispute over the rights to a documentary that may be coming soon to a venue near you: Your Mommy Kills Animals.

Plaintiffs Richard Berman and Maura Flynn and Flynn’s business, Speakeasy Video, say they had a deal with defendant Curt Johnson, of Indie Genius Productions, for joint production of the documentary YMKA that was supposed to focus on People for the Ethical Treatment of Animals and the animal rights movement.

Berman, the money man, operated a D.C. public affairs company that opposed PETA and advocated for consumer choice. Flynn had worked with Johnson as a producer on “Michael Moore Hates America.” The “Your Mommy” title purportedly comes from a comic book produced by PETA.

With cameos from stars like Jessica Biel, James Cromwell, and Katherine Heigl, the documentary YMKA displeased the plaintiffs because they said it devoted little screen time to PETA and a lot of screen time to another animal rights group presented as champions of free speech. The plaintiffs won contract damages and copyright protection in Berman v. Johnson.

Flynn conducted interviews and provided contacts for the movie, according to Senior U.S. Judge T.S. Ellis III’s Oct. 19 decision in Berman. Ellis recognized Flynn as a joint author under federal copyright law. Ellis applied a test for joint authorship test used by the 2nd and 7th Circuits, rejecting a test from the 9th Circuit.

A jury awarded Berman of $360,000 in contract damages and $10,000 in compensatory damages. Ellis denied Berman’s post-trial claim to an exclusive right to promote the film, saying he was not entitled to both contract damages and specific performance.

Thursday, October 25, 2007

Oliver Hill’s Legacy: The next 100 years

When civil rights giant Oliver W. Hill died Aug. 5 at age 100, the Richmond chapter of the Old Dominion Bar Association already was looking forward to the “Next Hundred Years.”

For several years, the Richmond chapter’s flagship program has been providing scholarships to first-year law students in order to nurture the next generation of civil rights advocates.

The chapter joined with the Richmond Bar Foundation Oct. 24 for its seventh annual Hill-Tucker Scholarship dinner to congratulate the six law students honored with the 2007 scholarship awards.

The top award this year went to Howard University School of Law student Yasmine Gabriel, who was saluted for her work with Hurricane Katrina survivors. William and Mary law students Chanel Gray, Adrienne Sakyi and Chantel Mills also received scholarships, as did Jessica Childress of the University of Virginia and Andria George of Liberty University School of Law.

Richmond lawyer Courtney Malveaux, president of the Richmond chapter, recalled the days when Oliver Hill “walked among us,” observing that Mr. Hill “did not dwell on what he endured in the past, but on our future.” He balanced his somber recollection with a lighter note, saying prior to the dinner that a year ago this time, he was just collecting a bourbon on the rocks for Mr. Hill.

Henry Marsh told the audience of lawyers, judges and community and business leaders that he was “the luckiest person in this room, perhaps in this whole state, having had the good fortune” of practicing law with both Mr. Hill and Samuel W. Tucker at the Richmond firm of Hill, Tucker and Marsh.

Marsh said he witnessed thousands of lawyers give Mr. Hill a prolonged standing ovation in response to rousing remarks Mr. Hill delivered when he accepted an award fro m the American Bar Association. Marsh heard nearby comments that hailed Mr. Hill: “Look at that, he’s 95 years old, blind, and he’s still fighting.”

Keynote speaker Viola O. Baskerville, Secretary of Administration for the Commonwealth of Virginia, told the scholarship recipients that it’s “their legacy to pick up this fight,” and build on the heritage of students who staged sit-ins and rode freedom buses. “The activism has not changed, only the medium has changed,” she said.

Malveaux said that with the support of its numerous sponsors, the group plans to start an endowment to fund future scholarships.

“The mission is not nearly complete, but that is something he left in our hands,” Malveaux said.

Wednesday, October 24, 2007

4th Circuit not up for ‘reading tea leaves’

Maybe a defendant convicted of drug conspiracy deserves a break because most of his crack distribution occurred during the three-year period before he turned 19.

But what if the defendant, “K-Smooth,” was one of the few members of the 30-odd defendants from Petersburg’s “Third Ward Gang” to go to trial in Richmond federal district court? Criminal defendants usually get a break for taking a plea. Maybe Batts’s decision to go to trial should offset his youth as a basis for mercy.

Because the 4th U.S. Circuit Court of Appeals couldn’t get a clear picture of why Kevin Batts was sentenced to only 120 months in prison – a 54-percent deviation from the advisory federal sentencing guidelines range – it vacated Batts’s sentence for RICO and drug conspiracy offenses and sent the case by to Chief U.S. District Judge James R. Spencer.

In U.S. v. Batts, released yesterday, the appellate court said it had “never upheld such a significant variance,” and would only do so if presented with a sufficient explanation.

When he imposed the 120-month mandatory minimum sentence, Spencer said the sentence was “in line with” the defendant’s argument that the court should focus on Batts’s post-majority criminal conduct.

The district judge said he had “thought about this at great length before” and “considered all of the facts and circumstances.”

The 4th Circuit said the sentence was unreasonable.

It wasn’t clear whether the district court considered the need to avoid unwanted sentence disparities, the appellate panel said, especially in light of the fact that Batts’s sentence was lower than the sentences imposed on most of the gang members who pleaded guilty.

The district court also failed to give complete consideration to the defendant’s history, specifically, his age during the conspiracies.

“To the extent that much of Batts’s drug activity occurred while he was a minor, a variance of some sort might be considered,” the appellate court wrotein its unpublished opinion. “On the other hand, the fact that Batts continued the same illegal activity after he had reached the age of majority and spent time in juvenile detention may indicate that he should not be afforded such a significant break, since it is not clear that his coming of age has changed his unlawful conduct."

“The task of reviewing a sentence’s reasonableness should not be akin to reading tea leaves,” the court said. Given the “significant deviation” in Batts, the need for an adequate explanation “is particularly important.”

You can sit down now, counsel

The Virginia Court of Appeals did some line-drawing yesterday, and let criminal defense lawyers know there is at least one case that should not have drawn a Rule 5A:18 argument.

Defense lawyers know the power of the contemporaneous objection rule, and how carefully the appellate court scrutinizes the record to make sure trial counsel hit all the right marks to give the trial judge the chance to cure any alleged errors down below.

During trial, lawyers sometimes feel like they’re walking a tightrope, trying to object enough to preserve an issue for appeal, but not object so much they irritate the trial judge.

The lawyer in Byrd v. Commonwealth got it just right.

Bobby Byrd wanted a Portsmouth Circuit judge to suppress heroin found in his pocket when Byrd was picked up on an informant’s tip. The judge admitted the heroin and found Byrd guilty.

On appeal, the commonwealth argued Byrd’s claim was barred because he “failed to object with the requisite level of specificity,” wrote Judge Robert J. Humphreys for the appeals court.

Humphreys, a former prosecutor, took a look at how much objecting was enough. Humphreys said Byrd’s only argument on appeal was that the confidential informant’s tip did not establish probable cause to arrest him.

“Byrd went to great lengths to bring this argument to the attention of the trial court,” through a pretrial motion to suppress, argument at the suppression hearing and through a continuing objection at trial, Humphreys wrote.

In fact, the trial court said enough already.

The trial judge acknowledged Byrd’s “continuing objection,” saying he would “consider your objection made. You’re not waiving it when you don’t make it again.”

“[I]t could hardly be any clearer that Byrd properly preserved this issue for appeal,” Humphreys said.

Maybe the commonwealth fought so hard on the waiver because they suspected the search was shaky. The unanimous panel said there was no probable cause and reversed Byrd’s heroin conviction.

Benchmarks for the board room: corporate counsel metrics

“How’m I doing?” was former New York City Mayor Ed Koch’s trademark greeting to his constituents.

Lawyers may ask themselves the same question.

Lawyers who labor in a law firm often use the almighty billable hour as their primary measure of productivity.

But an attorney who works for a corporation may come at that billable-hour standard from the opposite direction. For the in-house counsel who hires and manages an outside law firm, the less time that law firm bills, the more readily the in-house lawyer can demonstrate her productivity.

A group of corporate lawyers is attempting to develop their own metrics, or performance standards, for corporate legal departments. Two of these lawyers described their “Open Legal Standards Initiative” yesterday to the Virginia Bar Association’s Corporate Counsel Fall Forum in Richmond.

Steve Lauer said he and Nena Wong co-founded OLSI “to help the in-house profession improve its business practices” and to develop methodology that lets corporate lawyers document performance in order to make comparisons within the legal field and within a particular industry.

In-house lawyers may know “they’re winning cases and handling transactions,” but their corporate bosses want to know “how much it costs and how long does it take?” Lauer said.

OLSI is a voluntary organization dedicated to developing uniform approaches to measure how law departments function, with the ultimate goal of using the data to improve performance.

Gathering good data can help lawyers learn “what can you do to reduce the number of lawsuits against your company, what can you do to reduce the cycle time for drafting contracts,” Wong said. And maybe, as a byproduct, you can “decrease the number of lawyer jokes” you have to hear from the non-legal types in the company.

The OLSI Web site identifies the top 25 “key performance indicators” that help measure cost effectiveness, staff productivity, process efficiency and cycle time. Tracking in-house time shouldn’t be the record-keeping burden that drove many lawyers from firm practice into corporate legal departments. Once law departments establish the right record-keeping habits, all they have to do is “rinse and repeat,” Wong said.

In Memoriam: Neill H. Alford Jr.

Professor Neill H. Alford Jr., who taught law at the University of Virginia law school for 41 years, has died at the age of 88.

The Richmond Times-Dispatch has an appreciation.

Tuesday, October 23, 2007

Norfolk paper: Judge has been barred from court

The Virginian-Pilot is reporting that Norfolk Circuit Judge Alfred M. Tripp has been barred from court.

The paper’s source did not state the reasons for the action. The judge’s docket was transferred to another judge Friday and a substitute judge was scheduled to sit today.

The source spoke anonymously due to the secret nature of proceedings of the Judicial Inquiry & Review Commission, the paper said.

Friday, October 19, 2007

Protecting the public

The Virginia State Bar Council took decidedly different positions Friday on two issues described as public protection measures.

One was a proposal to require insurance companies to notify claimants when they mail settlement checks to the claimants’ attorneys. That measure stemmed from the theft of the proceeds of such checks by a small percentage of attorneys. A study of lawyer disciplinary cases showed that lawyers had taken $247,000 in that manner over a four-year period.

The list of objections to the proposal, recited by Virginia Trial Lawyers Association President Chuck Zauzig and plaintiff’s attorneys on the council, was long: interference with the attorney-client privilege, the possibility of improper conduct by insurance companies, fear of the claimant that family members or neighbors would learn about the money, and a bad message about the integrity of the plaintiff’s bar. The proposal “creates a presumption that plaintiff’s lawyers are crooks,” said executive committee member Irv Blank.

Arguments that the notice would alert the client to possible dishonesty by the lawyer or prevent serial thefts by the lawyer were not nearly enough to carry the day. The measure failed by a 54-7 vote.

The second issue was whether the VSB should continue to explore requiring all lawyers in private practice who routinely represent public clients to carry malpractice insurance. Almost 90 percent of such lawyers do so now. Darrell Tillar Mason, chair of the Special Committee on Lawyer Malpractice, said support from the proposal turns on whether one views the issue from a “data driven” or “principle driven” perspective. Evidence of a serious problem for lawyers or the clients is slim, she acknowledged, but some lawyers believe that insurance against their negligence is part of their fiduciary duty to their clients.

Council voted 38-21 to have the committee develop a proposal or proposals for a mandatory malpractice program.

July bar exam results are in

The results for the July 2007 Virginia Bar Examination are in.

Click on the words above and you'll head to a list of the 1,081 applicants who were successful in Roanoke last summer. A total of 1,502 people sat for the exam. Do the math and that makes a pass rate of 71.9 percent.

Congratulations and cheers!

E-discovery one year later, the view from Richmond

Read the 2006 federal rules on e-discovery, but don’t ignore the old case law, a Richmond federal district judge told lawyers yesterday at a Richmond-area bench-bar conference.

The changes to Federal Rules 26, 33, 34 and 37 didn’t develop in a vacuum, and the case law framework for resolving discovery disputes is still relevant, regardless of changes in how information is stored and retrieved.

Senior U.S. District Judge Robert E. Payne said when lawyers come to his court for a “meet and confer” under Fed. R. Civ. P. 26(f), they fall into two categories: those who already have solved their discovery problems, including retrieval of ESI, or electronically stored information, and “those who don’t have any earthly idea what you’re talking about.”

Asked how he deals with the latter group, Payne joked, “I’ve got a taser gun.”

The e-discovery rules have had a salutary effect, according to Frank Telegadas, in-house counsel for Circuit City, because the “publicity around the rules got corporate America to understand this is here to stay … and resources need to be freed up to deal with” e-discovery issues.

Richmond lawyer John Craddock said it’s often easier to hash out discovery issues when it’s one corporate client against another. The parties’ common aim to survive, as in the old cold war doctrine of “mutually assured destruction,” encourages cooperation.

Or maybe it’s more like the Willie Nelson song: “You show me yours and I’ll show you mine.”

But pit a little-guy plaintiff against a big, bad corporation and the discovery contest may feel pretty one-sided. A company can’t always stave off a plaintiff determined to find a smoking gun.

Payne said the new rules “are part of the body of rules that’s been around since 1934, and individual plaintiffs and corporations have always said it’s going to cost a lot of money” to produce requested documents.

Before Payne went on the bench, he helped McGuire Woods handle uranium cases for Westinghouse, who had to retrieve old documents from storage in salt mines.

“Judges have been hearing this for years,” Payne said. “They don’t pay any more attention now than earlier. Pleas about the fact that it costs a lot of money fall fairly much on deaf ears because they sound exactly like the arguments I used to make years ago to try and save my clients money.”

“A corporation that chose to save money by putting their data in electronic form is not going to be heard to argue it costs too much to retrieve,” if the information is pertinent, Payne said.

Taser news: Evolution of a brand name?

Speaking of tasers, more people are speaking of tasers these days.

Virginia Lawyers Weekly reports three taser-related cases in next week’s issue, which doubles the number of “taser” cases reported in prior years since 1993.

A Richmond federal district judge said in Keller v. Town of Colonial Beach (VLW 007-3-410)that a man who alleged injury from a police officer’s use of a Taser X26 to subdue the apparently deranged man after he emerged from the Potomac River could sue the officer, but not the police chief or the town.

And in Crihfield v. City of Danville Police Dep’t, a Danville federal court refused to dismiss an excessive force case filed by two men against two city police officers who allegedly hit them multiple times with a taser gun after arresting them at a convenience store for possible intoxication.

In another case from Danville Circuit Court, the Virginia Court of Appeals upheld a cocaine conviction in a case in which the defendant said the officer had illegally seized the defendant by brandishing a taser gun as the defendant walked away from a “known drug house” after spotting the cop.

Increased use of tasers by police actually has been credited with leading to lower rates of injury and death among suspects, but their use is controversial.

Maybe the increased use of “taser” is the result of an inevitable evolution in branding, a switch from the generic “stun gun” to “taser” as a lower-case verb form, like “xerox.”

After Andrew Meyer yelled, “Don’t tase me, bro” before he was “escorted” from a University of Florida lecture hall for haranguing Senator John Kerry, Wired reported that the phrase “hovered between 9th and 11th place as the most searched for term on Google two days later.”

On another note in taser-related news, a study released Oct. 8 by the Wake Forest University School of Medicine, which included data from Inova Fairfax Hospital, concluded that in nearly 1,000 cases of taser use, 99.7 per cent of the subjects had either no injuries or mild injuries such as scrapes and bruises.

Reed Smith to merge with Chinese firm

Reed Smith LLP will establish a presence in China when it merges with a Hong Kong firm on Jan. 1.

The partners of Richards Butler Hong Kong will become partners in Reed Smith, an international law firm originally founded in Pennsylvania. The firm has 77 lawyers in three Virginia offices, located in Falls Church, Richmond and Leesburg.

The Richards firm has more than 110 lawyers in Hong Kong and has an office in Beijing. There are plans to establish a practice in Shanghai.

Goodwyn takes oath as a justice

Supreme Court Justice S. Bernard Goodwyn was sworn in yesterday at an investiture ceremony in downtown Richmond, reports The Associated Press.

Law profs: Death penalty debate not resolved soon

Three death-penalty law experts met yesterday at the University of Richmond law school. Even with the U.S. Supreme Court poised to rule soon on whether lethal injection is cruel and unusual punishment, they agreed the debate over the death penalty won’t be over any time in the near future. The Richmond Times-Dispatch has the story.

Tuesday, October 16, 2007

Valpo law prof to decide fate of Vick’s dogs

A Valparaiso University law professor who is an expert in animal control law has been selected to decide what to do with the 48 pit bulls seized at Michael Vick’s Surry County property. The Daily Press has the story.

Group files suit to stop Interstate 73


An environmental activist group has filed a federal lawsuit, seeking to stop construction of Interstate 73, a proposed highway from the Roanoke Valley to the North Carolina state line. But the Roanoke Times reports that a group called Virginians for Appropriate Roads filed suit in Richmond, hoping to halt funding for the $4 billion project.

Monday, October 15, 2007

Judges usually approve negotiated plea deals

When a Newport News circuit judge recently approved a plea deal that suspended all 45 years of a pedophile’s prison term, The Daily Press saw its online message board light up with angry comments.

But the paper talked to Peninsula prosecutors and defense lawyers and found that judges usually trust the lawyers to get it right and generally will approve plea deals when presented.

‘Abusive driver’ fees could be campaign issue yet

The furor over Virginia’s new scheme of civil remedial fees aimed at “abusive drivers” was loud during the summer, and some politicians, mostly Republicans concerned about keeping their majority, worried the fees would be a campaign issue this fall.

The hubbub has died down, but some in the GOP worry about a last-minute push in tight races. The Richmond Times-Dispatch has the story.

Thursday, October 11, 2007

Court dismisses fraud suit based on SOX Certifications

An Alexandria federal district court has dismissed a securities fraud suit against two former executives who allegedly published false financial information despite knowing about their company’s “lax internal controls” and “dysfunctional accounting systems.”

A class of disappointed investors sued BearingPoint Inc., formerly KPMG Consulting LLC, its former president and CEO Randolph Blazer and former vice president and CFO Robert Falcone.

The plaintiffs claimed the former executives’ Sarbanes-Oxley Certifications showed they either knew or should have known about widespread accounting errors.

U.S. District Judge Liam O’Grady said in In re BearingPoint Inc. Securities Litigation (VLW 007-3-392), that no court in the 4th Circuit has yet addressed whether SOX Certifications can show scienter for a § 10(b) or Rule 10b-5 violation.

But district courts elsewhere have followed an 11th Circuit decision and given little weight to SOX Certifications absent “glaring accounting irregularities” or other “red flags” supporting an inference of severe recklessness or intent, O’Grady said.

BearingPoint apparently got into trouble after it gobbled up more than 30 consulting companies in Europe, Asia and South America, starting in late 2001. It developed a new financial accounting system, “OneGlobe,” to bring all North American operations under the same system.

BearingPoint encountered problems and made errors when it attempted to integrate the accounting systems of its foreign acquisitions into its overall operations.

The investors said that BearingPoint defrauded the market with misrepresentations and omissions about the timing and size of a $397 million goodwill impairment charge precipitated largely by a reduction in the value of recently acquired companies.

But the plaintiffs’ complaint foundered on what the defendant executives knew, and when they knew it.

O’Grady wrote that the “fact that a corporate officer certified financial statements later proved to be erroneous does not, in and of itself, give rise to an inference of scienter. Rather, there must be other alleged facts establishing that the signor recklessly ignored ‘red flags’ that the attested-to financial statements contained material falsities.”

Wipes suit wiped out

U.S. Magistrate Judge Michael F. Urbanski yesterday dismissed a $2 million lawsuit filed by a Lynchburg woman claiming that the company that makes pre-moistened Pledge and Windex wipes stole her idea.

The News & Advance has the follow-up story.

Goodwyn is newest justice

Chesapeake Circuit Judge S. Bernard Goodwyn was picking up his 12-year-old daughter from dance class last week when Gov. Tim Kaine called his house. His wife quickly relayed a message, and the governor told Goodwyn that he was going to be appointed to the Supreme Court.

He is the first justice from Hampton Roads in 49 years. The Virginian-Pilot has the story of yesterday's press conference and appointment.

Defense attorney raises money for prosecutor

Richmond criminal defense lawyer Craig Cooley is raising funds to help Caroline County Commonwealth’s Attorney Harvey Latney Jr. repay $300,000 that allegedly was stolen from a client by Latney’s former secretary. The Richmond Times-Dispatch has details.

Wednesday, October 10, 2007

Cleaning-wipes suit could be resolved today

A Lynchburg woman says that she came up with the idea for pre-moistened cleaning wipes eight years ago and tried to sell the idea to S.C. Johnson & Son Inc., makers of Windex and Pledge.

The lawyer for the company calls her claim “garbage” and “frivolous.”

A U.S. magistrate judge will hold a hearing on a motion to dismiss this afternoon, reports The News & Advance.

Kaine to tap Goodwyn for high court

Gov. Tim Kaine will appoint Chesapeake Circuit Judge S. Bernard Goodwyn to the Supreme Court of Virginia, according to the Associated Press.

The governor will hold a news conference this morning to introduce his choice.

Goodwyn, 46, will succeed Justice Elizabeth B. Lacy, who retired in August. Goodwyn will be the second African-American justice on the current court, joining Chief Justice Leroy Rountree Hassell Sr.

Monday, October 8, 2007

Legal Aid of Eastern Virginia celebrates 40

The Legal Aid Society of Eastern Virginia will be marking its 40th anniversary this week, reports The Virginian-Pilot. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals will be the speaker at Friday’s banquet.

Wednesday, October 3, 2007

Congress has questions about Gen Re, ROA

The House Judiciary Committee has asked Paul J. McNulty what he knows about why the criminal investigation of General Reinsurance and an officer at Reciprocal of America were dropped earlier this year.

McNulty was the U.S. attorney for the Eastern District of Virginia during much of the investigation and had been elevated to deputy attorney general in the U.S. before the investigation was dropped. He is now a partner in the Washington office of Baker & McKenzie.

Corporate Crime Reporter has a long article about the investigation with a link to the letter the subcommittee sent McNulty in July. McNulty has asked for an extension of time to reply to the letter, which also includes questions about what Democrats allege to be political reasons for replacing some U.S. attorneys.

The CCR article credits Virginia Lawyers Weekly with publishing the first article about the apparent demise of the investigation.

Monday, October 1, 2007

Virginia AG gets national pub

Attorney General Bob McDonnell has recived national exposure for his program to keep children safe from Internet predators.

The spot broadcast on the CBS Evening News and on the CBS Morning Show features Assistant Attorney General Rusty McGuire talking to a eighth-grade class about the danger of too much information on such social networking sites as myspace.com.

You can watch the spot, athough you'll have to endure a 20- or 30-second commercial that proceeds it.

Friday, September 28, 2007

Definition of residence key to avoiding fees

Narrow legal analysis may be a more effective way to attack Virginia’s civil remedial fees than broad constitutional and public policy arguments.

That could be a lesson from the case of Rajesh Cherkukuri, an Indian national who was convicted earlier this month of drunken driving in Prince William County.

Cherukuri has a Virginia driver’s license and has lived in the state for about a year. Prosecutors insisted that those circumstance made him a Virginia resident and subject for payment of $2,250 in civil fees over 26 months. The exclusion of nonresidents from liability for the fees has been the major argument opponents of the law have raised in saying that it violates the equal protection clauses of the state and federal constitutions.

Not so fast, Cherukuri’s attorney, Lou Brooks of Manassas, countered. The definition of resident in Code § 46.1-206.1 is ambiguous enough that interpretation of the term requires a look at the use of the word in other sections of Title 46.2, Brooks insisted.

General District Judge Craig D. Johnston agreed. A key concept of residence is domicile, which generally requires “the intention to remain [in a place] for an indefinite period of time.” Cherukuri doesn’t fit that definition because he is in this country on a temporary student visa and intends to return to India, Johnston wrote on Sept. 25 in Commonwealth v. Cherukuri (VLW 007-12-03).

“I conclude that the statutory exemption of nonresident students from those persons who are deemed residents for purposes of Title 46.2, including impositions of the civil remedial fee, was a deliberate exemption,” Johnston said in refusing to impose the fees on Cherukuri.

Thursday, September 27, 2007

Arlington judge rules ‘fees’ unconstitutional

Arlington General District Judge Dorothy Clarke ruled Tuesday that the state’s new fees for “abusive drivers” are unconstitutional.

Clarke bought the defendant’s equal protection argument. The scheme applies only to state residents.

The Washington Post has the story.

Wednesday, September 26, 2007

Roanoke judge won’t stop collection of driver fees

A Roanoke County circuit judge has rebuffed a request to stop statewide collection of “civil remedial fees” from “abusive drivers.” The Roanoke Times reports that Judge Jim Swanson denied an injunction to a team of lawyers representing several drivers who face assessment of the new hefty fees.

The judge expressed some skepticism about their lawsuit challenging the constitutionality of the new scheme, but he delayed ruling for another day.

Tuesday, September 25, 2007

Chesterfield judge upholds 'fees'

Yet another general district judge has upheld Virginia's new scheme of "civil remedial fees" for "abusive drivers." This time, the venue is Chesterfield County.

The Richmond Times-Dispatch reports that Chesterfield General District Judge Philip V. Daffron has ruled that the statute establishing the fees is constitutional. Turning back a challenge by five drivers, Daffron found that the General Assembly had a rational basis for passing the law.

The lawyer for one of the defendants said he may appeal the ruling.

The latest on Michael Vick

Before suspended Atlanta Falcons quarterback Michael Vick pleaded guilty in Richmond federal court to a dogfighting charge a few weeks ago, it seemed like the news in central Virginia was all Vick, all the time. Since then his name mostly has been showing up low in the stories about yet another Falcons loss.

But today's papers have two new items about him.

This one is no surprise: Surry County Commonwealth’s Attorney Gerald G. Poindexter says that he will ask a grand jury for state indictments of Vick on dogfighting-related charges today. The Associated Press has the story.

And The Daily Press has an item about a bank that is suing Vick for $2.3 million, claiming default on a loan. Claiming his indefinite suspension by NFL Commissioner Roger Goodell may be a change in employment jeopardizing his ability to repay, the Royal Bank of Canada says that Vick is in default and it wants its money back. The bank filed papers in Newport News federal court last week.

Monday, September 24, 2007

Gould to be executive director of VSB

Karen A. Gould, the immediate past president of the Virginia State Bar, will succeed Thomas A. Edmonds as executive director of the agency.

The appointment is not yet official because the VSB Council must act on it at its October meeting, and the Supreme Court of Virginia must approve the council’s recommendation.

However, Gould was recommended Friday by a committee that searched for almost a year for Edmonds’ replacement. The chairman of the committee, former VSB President Phillip V. Anderson of Roanoke, said in a letter to past presidents of the agency, “The Supreme Court has been kept advised of the process along the way and has given its support to the process and has agreed to accept the Council’s recommendation.”

The committee was prepared to recommend a replacement in March, but the leading candidate withdrew at the last minute to accept another offer in the private sector.

The committee decided to start over and, in addition to readvertising for the post, decided that committee members should approach candidates they knew personally and believed could perform the job. Gould, who had been an ex officio member of the search committee, was one of those approached. She then immediately withdrew from further participation in the committee other than as a candidate.

After two rounds of interviews, Gould was the unanimous choice of the committee on the first ballot, Anderson said.

“I look at this as an opportunity to do a job that I feel very passionate about,” Gould said.

Edmonds, 69, is retiring at the end of the year after 18 years as the chief administrative officer for VSB.

Friday, September 21, 2007

Morva trial to be moved from Montgomery County

A circuit judge has ruled that the capital murder trial of William Morva, charged with killing two law enforcement officials, should be moved from Montgomery County, reports the Roanoke Times. A manhunt for Morva around Blacksburg briefly closed the Virginia Tech campus on the first day of classes of the 2006 school year.

The judge found that too many people in the jury pool had ties to the case, which touches a number of localities in the New River Valley and Tech.

It is the first case to be moved out of the county in nearly 30 years.

Thursday, September 20, 2007

Supreme Court takes R-MWC cases

The Supreme Court of Virginia will review the decision of Randolph-Macon Woman’s College to admit men after all.

Students and graduates opposed to the decision filed two suits challenging the action in Lynchburg Circuit Court, one alleging breach of contract because the college had promoted its status as an all-woman institution in recruiting students and in soliciting contributions, and the second contending that the college had changed its charitable purpose without first getting court approval.

Both suits were dismissed on demurrer, and a three-judge panel of the Supreme Court rejected a request to review the contract claim. However, the plaintiffs filed a request for a rehearing, and the court agreed this week to hear the claim at the same time it decided to review the charitable immunity claim in the first instance.

26 life terms

When the 11-year-old girl’s mother confronted her daughter about her suspicion that the girl’s stepfather had been abusing her, the girl at first denied it.

The mother took her for a medical examination anyway in July 2006. Not only was the stepfather’s DNA found inside the girl’s vagina, she was pregnant by him.

A Washington County jury took a very dim view of those facts at the end of a three-day trial on Wednesday. It recommended that Sixto Lopez Laines, 31, serve life in prison on each of 26 sexual assault counts—12 for sodomy and seven each for rape and object sexual penetration.

Heather Howard, the assistant commonwealth’s attorney who prosecuted the case, said Laines is an illegal immigrant who first entered the country from Mexico when he was 17. He and the girl’s mother had lived together in the county since 2001.

The assaults began in January 2004 and lasted for more than two years, Howard said. Most of them occurred while the mother was out of the home on errands, she said.

Virginia Beach judge upholds abusive driver fees

In what appears to be the first ruling in Hampton Roads on civil remedial fees, Virginia Beach General District Judge Calvin Depew Jr. has found them to be constitutional.

The Virginian-Pilot reports that Depew heard arguments Friday in a misdemeanor aggressive driving case and issued an opinion late Tuesday.

General district judges in Hanover and Henrico counties and the city of Richmond have ruled that the fees are unconstitutional because they apply only to Virginians but not to out-of-state residents.

However, circuit judges in Hanover and Henrico reversed the lower court judges, and Richmond Circuit Judge Walter W. Stout III heard arguments last week in an appeal of the city case.

Depew's opinion is at the VLW Web site along with other articles and opinions on civil remedial fees.