Tuesday, February 02, 2016

Judge Conrad's ruling on Dean Eramo's request for discovery from "Jackie"

In Eramo v. Rolling Stone LLC, Judge Conrad of the W.D. Va. granted in part and denied in part the plaintiff's request for discovery from the anonymous "Jackie," who was the subject of the withdrawn Rolling Stone article about a sexual assault that never occurred that was alleged to have been committed by people who don't exist.

Initially, Judge Conrad overruled "Jackie's" claim that Rule 412 affects what is discoverable in a case where the subject matter pertains to alleged sexual misconduct.

Monday, January 04, 2016

New sheriff does not rehire senior deputies

The Roanoke Times reports here that the new sheriff for Roanoke County chose not to rehire some of the senior deputy sheriffs who served under his predecessor. Historically, the federal courts have zigged and zagged a bit in trying to define the limits of the constitutional protections for deputies of constitutional officers against patronage dismissals. The decisions in Jones v. Dodson, Jenkins v. Medford, and Knight v. Vernon did not proceed in a straight line. Probably the higher-ranking officials in any government office have the lower level of First Amendment protection.

Wednesday, December 23, 2015

Criminal liability of teachers as affected by school board policies

In Lambert v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Huff joined by Judge Humphreys and Senior Judge Bumgardner held that the Scott County Circuit Court erred in its holding that the statutory exception for physical contact incidental to the work of teachers in Va. Code 18.2-57(G) did not apply where School Board policy prohibited physical contact.

The Code section provides:


G. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

The best evidence rule in Virginia

In Jennings v. Com., the Virginia Court of Appeals in a written opinion by Judge AtLee, joined by Chief Judge Huff and Judge Decker, reversed the convictions of a man accused of shoplifting, where the only testimony regarding the value of the property was a witness who testified about what she remembered seeing on the price tags of the property, and not the tags themselves.

Tuesday, December 01, 2015

That is chutzpah

Quoted today by the Virginia Court of Appeals: “The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.” Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. 463, 467 (1993), in King William County v. Jones, Record No. 0576-15-2, by Judge Russell

Thursday, November 26, 2015

Two opinions from Judge Chafin, wherein the Commonwealth lost

Trial court erred in finding evidence was sufficient to prove appellant was aware of the drugs found under the seat of the vehicle and no considerable evidence beyond appellant’s mere proximity to the drugs and his occupancy of the vehicle linked him to the contraband

Evidence was insufficient to support convictions of grand larceny and larceny with intent to sell where evidence proved appellant was a co-owner of the personal property taken from the house

Wednesday, November 04, 2015

The new venue statute

In 2015, the General Assembly amended Va. Code 19.2-244, to add a new paragraph B, which provides:

B. If an offense has been committed within the Commonwealth and it cannot readily be determined within which county or city the offense was committed, venue for the prosecution of the offense may be had in the county or city (i) in which the defendant resides; (ii) if the defendant is not a resident of the Commonwealth, in which the defendant is apprehended; or (iii) if the defendant is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.

The primary sponsor of the legislation, Acts 2015, c. 632, was Rob Bell. This is a pretty big change in Virginia law, that eliminates a problem that sometimes occurs in a case where there is no way to know where the alleged crime was committed. The language evidently was taken from similar statutes in other statutes, such as O.R.S. 131.325 in Oregon and Tex Code Crim. Proc. article 13.19. One might expect that cases from those states will be cited in connection with the application of the new Virginia law. It is a bit of a paradox for the Commonwealth to be required to prove that something "cannot readily be determined," but there are evidently many such cases, where the Commonwealth or the victim has reason to know that the crime took place in Virginia but not where it happened in relation to the boundaries of the cities and counties.

In some of the other states, the constitutionality of these statutes has been challenged. There is a "vicinage" requirement in the Virginia Constitution, Art. I, section 8, but surely a prosecution where the defendant resides satisfies that requirement.

New Commonwealth's attorneys and others in Southwest Virginia

Evidently, we will have new Commonwealth's Attorneys in Lee County, Wise County, Dickenson County, and Washington County, and a somewhat less new one elected to an open seat in Tazewell County. Incumbents were re-elected in Scott County, Buchanan County, Carroll County, Grayson County, Wythe County, and Smyth County - and in Russell County, where former blogger Brian Patton was unopposed. My fellow Legal Aid board member Herb Clay came in third in his run for Town Council, Rob Hines got in for School Board in Lee County.