Oops, silly me! Thinking Federal Express was just as good as, maybe even better than, registered or certified mail.
Rena Lindevaldsen represents the biological mother in the celebrated custody case of Miller-Jenkins v. Miller-Jenkins. The Virginia Court of Appeals had ruled that Vermont courts have jurisdiction over the custody of the child the mother delivered when she was in a civil union with another woman.
Lindevaldsen knew that she had 30 days from the denial of her petition for a rehearing in the Court of Appeals to file her petition for appeal with the Supreme Court of Virginia. And since the 30th day was a Sunday and the next day was President’s Day, she called the clerk’s office to make sure that mailing the petition on Tuesday would be all right.
But she didn’t think to ask, nor was she told, about any requirement for the method of delivery. Rule 5:5 specifies certified or registered mail, but she sent the petition by Federal Express the evening of the deadline day. When it arrived the next morning, the clerk’s office called to tell her that it was late because it was not sent by registered or certified mail.
Lindevaldsen’s motion asking the court to consider the petition timely filed is pending.
The relief an advisory committee on appellate rules has in mind may be a little late. Last year, the committee recommended proposals adding Federal Express, UPS and other commercial carriers to the list of acceptable forms of delivery. However, approval of the proposals by the Supreme Court probably is many months away.
Friday, March 30, 2007
Unpublished cases track 4CA sentence review
Since federal sentencing guidelines became “advisory,” defense lawyers may be trying to track even unpublished 4th Circuit cases, just to see how a particular federal judge applies the guidelines to a given defendant.
The defendant in U.S. v. Trent will get another shot at sentencing. A Newport News cop pulled Hakim Trent’s purple Ford Escort because Trent was wanted in Portsmouth for attempted capital murder of a police officer. After his state court trial for attempted murder ended in a hung jury, Trent pleaded guilty to a federal charge of being a felon in possession of the .38 caliber revolver found in the Escort.
Eastern District Judge Walter D. Kelley Jr. said Trent’s guideline range of 30 to 37 months in prison was not enough time. Among other factors, Kelley pointed to Trent’s “guns.” But he wasn’t talking about built-up biceps earned with extra gym time. Trent had “pictures of guns tattooed on each forearm.” The judge sentenced Trent to 108 months in prison.
The 4th Circuit vacated Trent's sentence on March 28, saying a lot had happened since the sentencing and the district court should take another look, in light of more recent law on the advisory guidelines.
Jamal Crump is stuck with his sentence. On March 27, the 4th Circuit upheld Western District Judge Samuel G. Wilson’s 320-month sentence for Crump, who pleaded guilty to distributing five or more grams of cocaine base. The guidelines range was 292-360 months, and the 26-year-old Crump, who said he had been dealing since age 17, cited his plea, his kids and his cooperation, in mitigation. The appellate court said in U.S. v. Crump that the sentence, which registered in the bottom half of the guidelines range, was reasonable.
The defendant in U.S. v. Trent will get another shot at sentencing. A Newport News cop pulled Hakim Trent’s purple Ford Escort because Trent was wanted in Portsmouth for attempted capital murder of a police officer. After his state court trial for attempted murder ended in a hung jury, Trent pleaded guilty to a federal charge of being a felon in possession of the .38 caliber revolver found in the Escort.
Eastern District Judge Walter D. Kelley Jr. said Trent’s guideline range of 30 to 37 months in prison was not enough time. Among other factors, Kelley pointed to Trent’s “guns.” But he wasn’t talking about built-up biceps earned with extra gym time. Trent had “pictures of guns tattooed on each forearm.” The judge sentenced Trent to 108 months in prison.
The 4th Circuit vacated Trent's sentence on March 28, saying a lot had happened since the sentencing and the district court should take another look, in light of more recent law on the advisory guidelines.
Jamal Crump is stuck with his sentence. On March 27, the 4th Circuit upheld Western District Judge Samuel G. Wilson’s 320-month sentence for Crump, who pleaded guilty to distributing five or more grams of cocaine base. The guidelines range was 292-360 months, and the 26-year-old Crump, who said he had been dealing since age 17, cited his plea, his kids and his cooperation, in mitigation. The appellate court said in U.S. v. Crump that the sentence, which registered in the bottom half of the guidelines range, was reasonable.
Calling witnesses liars results in contempt citation
Defense attorney Jonathan K. Katz testified that he didn’t mean to ignore a trial judge’s admonition against calling witnesses “liars.” He was just so tired and stressed at the end of a 3 1/2-hour closing argument after eight days of testimony in a federal drug trial that he simply forgot the judge’s reprimand.
U.S. District Judge James P. Jones didn’t buy it.
Jones noted that his Western District colleague, Norman K. Moon, had told during the trial Katz not to use the term again to disparage witnesses after Katz had done so at least 30 times.
Katz refrained until the end of his argument, when he compared himself to Toto in The Wizard of Oz. He had exposed the falsehoods of the government’s witnesses just as the dog had pulled aside the curtain to show the true nature of the wizard, he said. He then yelled loudly and dramatically, “No good liars.”
Moon directed Katz, who is licensed in Virginia and practices out of Silver Spring, Md., to show why he shouldn’t be found in contempt. Jones presided over the show cause hearing after Moon recused himself.
The use of the closing phrase followed a careful and thoughtful analogy to the movie in a normal tone of voice and—notwithstanding Katz’s protestations to the contrary—was “a calculated theatrical stunt on his part,” Jones concluded in In re: Jonathan L. Katz. He ordered Katz to pay a $2,500 fine.
U.S. District Judge James P. Jones didn’t buy it.
Jones noted that his Western District colleague, Norman K. Moon, had told during the trial Katz not to use the term again to disparage witnesses after Katz had done so at least 30 times.
Katz refrained until the end of his argument, when he compared himself to Toto in The Wizard of Oz. He had exposed the falsehoods of the government’s witnesses just as the dog had pulled aside the curtain to show the true nature of the wizard, he said. He then yelled loudly and dramatically, “No good liars.”
Moon directed Katz, who is licensed in Virginia and practices out of Silver Spring, Md., to show why he shouldn’t be found in contempt. Jones presided over the show cause hearing after Moon recused himself.
The use of the closing phrase followed a careful and thoughtful analogy to the movie in a normal tone of voice and—notwithstanding Katz’s protestations to the contrary—was “a calculated theatrical stunt on his part,” Jones concluded in In re: Jonathan L. Katz. He ordered Katz to pay a $2,500 fine.
Thursday, March 29, 2007
The latest on therapist testimony in domestic cases
Whether therapist testimony can come into a domestic relations court case – an issue that has pitted lawyers against therapists – appears to be settled enough to allow the Virginia Court of Appeals to shuttle decisions on the subject into its “Unpublished Opinion” file.
Just last December, the appellate court said in a 2-1 decision in Rice v. Rice that no testimony from a therapist can come in without the consent of a parent if the testimony would be adverse to the parent’s legal position. More recently, the family law bar tried to get the Virginia General Assembly to repeal Va. Code § 20-124.3:1, the 2002 statute that generally bars therapist testimony in custody disputes. That effort died in committee.
Earlier this week, a court of appeals panel released an unpublished opinion in Shoemaker v. Karau, affirming a Fairfax Circuit Court decision that excluded testimony from three therapists called by husband to rebut testimony from the wife: the mother’s therapist, the child’s therapist, and a communications therapist for the couple.
In a footnote, the appellate panel referred to legislative inaction on the statute, and treated the Rice decision as settled law.
Just last December, the appellate court said in a 2-1 decision in Rice v. Rice that no testimony from a therapist can come in without the consent of a parent if the testimony would be adverse to the parent’s legal position. More recently, the family law bar tried to get the Virginia General Assembly to repeal Va. Code § 20-124.3:1, the 2002 statute that generally bars therapist testimony in custody disputes. That effort died in committee.
Earlier this week, a court of appeals panel released an unpublished opinion in Shoemaker v. Karau, affirming a Fairfax Circuit Court decision that excluded testimony from three therapists called by husband to rebut testimony from the wife: the mother’s therapist, the child’s therapist, and a communications therapist for the couple.
In a footnote, the appellate panel referred to legislative inaction on the statute, and treated the Rice decision as settled law.
Wednesday, March 28, 2007
“Ask forgiveness” strategy nixed, building must go
A Norfolk bar owner tried to justify his sans-permit construction of a second-story bar on the Ocean View Fishing Pier by calling it his “office.”
After the pier was destroyed by Hurricane Isabel in 2003, the owner promptly began reconstruction. Along the way, he apparently decided better meant bigger, and added to his commercial pier, the site of the former Harrison’s Fishing Pier, a new bait shop, restrooms, snack bar and recreational room, and a gazebo.
Owner Ronald W. Boone ultimately built a full-service restaurant and bar, with facilities for nightly live bands and other entertainment. When the Virginia Marine Resources Commission asked for more detail on the proposed project, Boone dragged his feet even though construction was underway on the $2.5 million project.
On the theory that it’s better to ask for forgiveness after the fact than to seek permission beforehand, Boone went before the VMRC in January 2006 to seek after-the-fact approval for the second-story bar he built.
Boone told commissioners, “The bar is where I do my paperwork,” and he would “put something in there where I can get up and out of the way of all the fishermen that come in.”
The commissioners approved the structure, but Norfolk Circuit Judge Norman A. Thomas said the second-story bar has to come down.
On March 22, Thomas said in Harrison v. VMRC that the commissioners didn’t even bother to consider the 100 pages of documents submitted by a neighbor who challenged the structure, or the CD she had recorded of the over-the-water noise.
After the pier was destroyed by Hurricane Isabel in 2003, the owner promptly began reconstruction. Along the way, he apparently decided better meant bigger, and added to his commercial pier, the site of the former Harrison’s Fishing Pier, a new bait shop, restrooms, snack bar and recreational room, and a gazebo.
Owner Ronald W. Boone ultimately built a full-service restaurant and bar, with facilities for nightly live bands and other entertainment. When the Virginia Marine Resources Commission asked for more detail on the proposed project, Boone dragged his feet even though construction was underway on the $2.5 million project.
On the theory that it’s better to ask for forgiveness after the fact than to seek permission beforehand, Boone went before the VMRC in January 2006 to seek after-the-fact approval for the second-story bar he built.
Boone told commissioners, “The bar is where I do my paperwork,” and he would “put something in there where I can get up and out of the way of all the fishermen that come in.”
The commissioners approved the structure, but Norfolk Circuit Judge Norman A. Thomas said the second-story bar has to come down.
On March 22, Thomas said in Harrison v. VMRC that the commissioners didn’t even bother to consider the 100 pages of documents submitted by a neighbor who challenged the structure, or the CD she had recorded of the over-the-water noise.
Military service not a reason to go below guidelines
Maybe the 4th Circuit panel thought the appellate court already had given enough guidance on how district judges should sentence criminal defendants in light of U.S. v. Booker.
Or maybe it decided that it’s not a good time to be disparaging military veterans.
In any event, the panel took the “Unpublished” route last week to order a new sentencing hearing for Jose Medina Jr.
U.S. District Judge William D. Quarles Jr. in Baltimore decided that the now-advisory federal sentencing guidelines gave him enough leeway for a nine-level downward departure for Medina’s sentence for possession of child pornography. The guidelines called for a minimum term of 41 months, but Quarles reduced it by 70 percent to 12 months and a day.
The reason: “I start with the understanding that vets should get a break,” Quarles told Medina from the bench. “Your service to your country, your being a fine father … indicates that you are a person who certainly has more good than bad.”
The 4th Circuit panel—Judges J. Harvie Wilkinson III, Paul V. Niemeyer and Karen J. Williams—concluded in their per curiam opinion that Quarles had ignored the court’s earlier decisions that substantial departures from the guidelines must be justified under the factors in U.S.C. § 3553(a).
Quarles failed to follow earlier decisions interpreting Booker that said he should not give “excessive weight” to a single factor, especially one that the guidelines explicitly discourage, the panel said.
Moreover, his conclusion that lowering the sentence would “promote respect for the law” by recognizing good words stands the guidelines on their head. “Instead of sufficiently punishing criminal behavior, and thereby promoting respect for the law, Medina’s sentence demotes the law criminalizing the possession of child pornography in favor of rewarding and encouraging military service,” the panel said.
Or maybe it decided that it’s not a good time to be disparaging military veterans.
In any event, the panel took the “Unpublished” route last week to order a new sentencing hearing for Jose Medina Jr.
U.S. District Judge William D. Quarles Jr. in Baltimore decided that the now-advisory federal sentencing guidelines gave him enough leeway for a nine-level downward departure for Medina’s sentence for possession of child pornography. The guidelines called for a minimum term of 41 months, but Quarles reduced it by 70 percent to 12 months and a day.
The reason: “I start with the understanding that vets should get a break,” Quarles told Medina from the bench. “Your service to your country, your being a fine father … indicates that you are a person who certainly has more good than bad.”
The 4th Circuit panel—Judges J. Harvie Wilkinson III, Paul V. Niemeyer and Karen J. Williams—concluded in their per curiam opinion that Quarles had ignored the court’s earlier decisions that substantial departures from the guidelines must be justified under the factors in U.S.C. § 3553(a).
Quarles failed to follow earlier decisions interpreting Booker that said he should not give “excessive weight” to a single factor, especially one that the guidelines explicitly discourage, the panel said.
Moreover, his conclusion that lowering the sentence would “promote respect for the law” by recognizing good words stands the guidelines on their head. “Instead of sufficiently punishing criminal behavior, and thereby promoting respect for the law, Medina’s sentence demotes the law criminalizing the possession of child pornography in favor of rewarding and encouraging military service,” the panel said.
Kaine: Allow further waivers on court-appointed fees
Gov. Tim Kaine wants the bill allowing judges to waive the fee caps on court-appointed pay to apply in all of Virginia’s trial-level courts.
Compensation for court-appointed lawyers in Virginia ranks dead last in the nation. House Bill 2361, passed by the 2007 General Assembly, could alleviate that problem, at least partially. The bill would permit a judge to waive the cap on a court-appointed attorney’s fees in an adult felony case in circuit court.
But Kaine has proposed an amendment to HB 2361, adding a fee-cap waiver in juvenile court cases and for misdemeanor cases in general district court. The Assembly will consider the amendment when it returns to Richmond for the April 4 veto session.
Compensation for court-appointed lawyers in Virginia ranks dead last in the nation. House Bill 2361, passed by the 2007 General Assembly, could alleviate that problem, at least partially. The bill would permit a judge to waive the cap on a court-appointed attorney’s fees in an adult felony case in circuit court.
But Kaine has proposed an amendment to HB 2361, adding a fee-cap waiver in juvenile court cases and for misdemeanor cases in general district court. The Assembly will consider the amendment when it returns to Richmond for the April 4 veto session.
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