Category Archives: Courts and law

The Loudoun Way — School Rapes by a Member of a Progressive Protected Class

Loudoun County Commonwealth’s Attorney Buta Biberaj

by James C. Sherlock

Any time you think there is only one system of justice in America, consider these two stories I offer below, one a progressive dream and the other true.

The true story will show some progressives care more about their dogma than kids.

And any time you think only big city progressives don’t give a damn about child victims of crime, like in Chicago or New York, read the true one below.

It is underway in Loudoun County. Continue reading

Who Will Guard the Guards?

by Michael Fruitman and Jim McCarthy

Emily P. Newman is a member of the Virginia State Bar (VSB), admitted, i.e., licensed to practice, in 2012.

Publicly available information reveals that Ms. Newman was a staffer in Congress and in the administration of Donald Trump up to the time of the election of Joe Biden. It is unclear precisely when Newman separated from federal employment. However, on November 25, 2021, she signed onto a federal lawsuit in Michigan, listing her participation as “of counsel” along with eight other attorneys and identifying the Texas office address of Sidney Powell (of Kraken fame) as hers. The Michigan proceeding was one of four federal actions in which Newman participated. The complaint sought to invalidate Michigan’s vote for presidential electors committed to Biden. It was later amended to request emergency injunctive relief and signed by the identical group of attorneys.

The group of nine attorneys in the Michigan legal action were members of the bar in eight state jurisdictions (DC, GA, MD, MI, NJ, NV, NY, and VA). Federal Judge Linda Parker’s decision opened with a clear statement of attorney responsibility. Read the full decision, entered August 25, 2021, here.

Continue reading

Convicted, But Innocent–Emerson Stevens

Emerson Stevens with his attorneys, Jennifer Givens and Deidre Enright.   Photo credit: Alec Sieber/ UVa School of Law

by Dick Hall-Sizemore

In August, Governor Northam granted a full pardon to Emerson Stevens. Stevens had been convicted of killing a young mother of two in 1985 in a small fishing village on the Northern Neck. The pardon was based on evidence that “reflects Mr. Stevens’ innocence.”

Stevens maintained from the beginning that he was innocent. His first trial ended in a hung jury. The second jury found him guilty and sentenced him to 164 years in prison.

He was paroled in 2017 after being held in jail and prison for more than 30 years for a crime he did not commit. Although free on parole, he continued to fight to clear his name. Continue reading

Former Norfolk Sheriff Convicted of Fraud and Bribery

Former Norfolk Sheriff Bob McCabe

by Dick Hall-Sizemore

Here is another name to add to the list of corrupt public officials — former Norfolk Sheriff Bob McCabe.

Earlier this week, a federal jury convicted him of all 11 counts of fraud, conspiracy and money laundering. The charges covered actions committed over a 22-year period. They included accepting gift cards to expensive restaurants, Redskins tickets, free catering for his annual golf tournament, an all-expenses paid trip to Nashville, “loans” that were never repaid, and thousands of dollars in cash to spend during casino trips. He was also charged with providing inside information to select companies seeking contracts with the sheriff’s office.

Testifying in his defense at his trial, McCabe admitted to violating campaign finance laws, but claimed it was not intentional. “I just didn’t pay attention to them like I should have.” He also admitted getting loans and gifts from businessmen who had multi-million dollar contracts with the city’s jail, but insisted, “I’ve never taken a bribe in my life.” The “loans” and gifts were because they were friends, he insisted. Continue reading

Supreme Court Refuses to Block Vaccination Mandate; Judicial Review Generally

Justice Amy Coney Barrett
Photo credit: Politico

by Dick Hall-Sizemore

The U.S. Supreme Court has flatly turned down a request for an injunction against the enforcement by Indiana University that all students and staff be vaccinated against COVID-19. This request was an appeal of a unanimous decision of the Court of Appeals for the Seventh Circuit denying the request.

The order was issued by Justice Amy Coney Barrett, who is assigned to review petitions from the circuit in which the university is located. She did not give any reasons in her order. According to Adam Liptak, a long-time New York Times reporter covering the Supreme Court, “She acted on her own, without referring the application to the full court, and she did not ask the university for a response, Both of those moves were indications that the application was not on solid legal footing.” So much for the issue of the constitutionality of vaccination mandates.

Regarding the recent discussion on this blog about the “waiver” of constitutional rights, that notion is nonsensical. It presumes that constitutional rights are clearly spelled out and are absolute and therefore cannot be waived. First of all, the Supreme Court has never ruled that any right is absolute. Even freedom of speech has some limitations. Second, many provisions of the Constitution are less than crystal clear. The prime example would be the guarantee of “due process of law.” Continue reading

Return to Autocracy in Virginia

Why is this man smiling?

by James C. Sherlock.
Updated Aug 13, 12:15 PM

It was so easy to predict that I can claim no special prescience. I wrote a week ago:

“The Governor’s 15-month emergency powers expired June 30, and, God, does he miss them…. (H)ow long (will the) governor put up with the lack of emergency powers?”

If you guessed a week, you win.

Today’s headline: Virginia Gov. Orders Mask Mandate for State’s K-12 Schools

Virginia Gov. Ralph Northam on Thursday announced a public health emergency order to require masks in all indoor settings for the state’s K-12 schools.

The Governor has a legal basis for the order, § 32.1-13 of the Code of Virginia. The State Health Commissioner, acting for the Board of Health when it is not in session (§ 32.1-20 of the Code of Virginia),

may make separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other dangers to the public life and health.

If you are wondering, the Board of Health meets four times a year for a couple of days each meeting. And there is no mention of a role for the General Assembly.

This is not the same law that Northam used for 15 months. New ball game. Continue reading

Oyez, Oyez. The Virginia Court of Appeals is Changing.

The newly elected judges to the Virginia Court of Appeals.Top row: Dominique Callans, Doris Henderson Causey, Vernida Chaney, Frank Friedman
Bottom row: Judge Junius Fulton, Lisa Lorish, Judge Daniel Ortiz, Stuart Raphael
Photo credit: Virginia Mercury

by Dick Hall-Sizemore

One of the General Assembly’s most cherished prerogatives is the election of judges. When one party controls both houses of the legislature, that power is particularly relished. The Democrats had the opportunity in this special session to exercise its prerogative in a big way by electing eight judges to the Virginia Court of Appeals.

The recent expansion of the jurisdiction and size of the Court of Appeals accounted for most of the unusually large number of available judgeships. The 2021 General Assembly provided for an appeal of right to the Court of Appeals in every civil case. Because that policy decision will result in an increase in the workload of the Court of Appeals, the legislation also increased the number of judges on that court from 11 to 17. Two vacancies on the existing court accounted for the other available judgeships. Continue reading

SCOTUS: Give Rochelle Walensky Something to Cry About

by Kerry Dougherty

It won’t be long before the U.S. Supreme Court smacks down CDC Director Rochelle Walensky’s order that revived until October 3rd a glaringly unconstitutional eviction moratorium.

I can’t wait.

They’ll give the woman who was blubbering about her feelings of “impending doom” last winter something to cry about.

In fact, the judiciary is already flexing its muscles. After landlord groups submitted an emergency filing to block the moratorium in D.C. federal court, a judge demanded that the government respond by tonight at 9 p.m.

Putting aside the audacity of a U.S. president urging unelected bureaucrats to issue clearly unconstitutional orders, this entire impulse — to side with renters over landlords — is a leap toward Marxism. Continue reading

Delta – 8 THC and the Government’s Marijuana Plans Go “Up in Smoke”

Photo credit: CBDOracle.com

Is cannabis legal in Virginia? Most followers of this blog are aware of the recent legislative efforts in Virginia to decriminalize and then legalize the possession of intoxicating marijuana by adults. Most followers of this blog believe that Virginia is presently in a twilight world where recreational possession of intoxicating marijuana is legal while the sale of such marijuana is illegal. Most followers of this blog are wrong.

The 2018 Farm Bill legalized the production and sale of hemp based products so long as those products contained almost no delta-9-tetrahydrocannabinol. Delta-9-tetrahydrocannabinol is the compound in THC that (usually) gets people high.  Unfortunately for the federal legislation there is no prohibition on delta-8-tetrahydrocannabinol. Delta-8 as it’s called has a mild intoxicating effect. The apparent assumption in the 2018 Farm Bill was that Delta-8 was not a problem in the quantities found in non-intoxicating hemp products. Then along came the free market. Legal hemp products are being used to extract Delta-8 in quantities and potencies easily sufficient to intoxicate a person consuming the substance. Intoxicating marijuana products based on Delta-8 are publicly and legally on sale across the country including in Virginia. So, the sale of intoxicating marijuana products is currently legal in Virginia. Continue reading

Time for Amputation: NoVa Merging with “New D.C.”

D.C. Statehood. There has been a long running chorus of cries for D.C. residents to have full representation in Congress. From “Taxation Without Representation” slogans on D.C. license plates to the Biden Administration’s calls for DC to become the 51st state … this debate has gone on for a while. Most discussion devolves into pure politics. D.C. would bring two more liberal U.S. senators and a liberal U.S. Representative who can vote. People either love or hate that idea. Back in May I wrote a column on this blog about Northern Virginia joining D.C. in the 51st state.  In this column I’d like to put aside the politics and focus on the ethical considerations for making D.C. a state.

Because they’re Americans. The nearly 700,000 residents of Washington,  D.C., pay their full share of federal taxes. Residents of D.C. were subject to be drafted in times of war, fought and died in our country’s battles and are required to obey all laws passed by Congress. In other words, D.C. residents have all the responsibilities of American citizenship. However, they are not represented in the U.S. Congress. They have no senators and their one representative can’t vote. The biggest ethical reason to make D.C. a state is so its citizens have all the rights of being American, including the right to representation in Congress. Continue reading

Recidivism: The Rest of the Story, Part 3–Who Comes Back to Prison?

by Dick Hall-Sizemore

Prior posts (here and here) discussed the increase in the Commonwealth’s recidivism rate and the possible explanations for that increase. This post, the last in the series, will examine the characteristics of recidivists, or which offenders are most likely to commit new crimes upon their release from prison.

Despite what is depicted in movies and on television, and claimed by some on this blog, offenders who have previously committed violent crimes are not likely to go on violent rampages once they get out of prison. The recidivism rate for violent offenders is lower than that of nonviolent offenders.

Predictors of Recidivism. DOC analyses of its data have shown “a consistent link between certain factors and recidivism.”  The most common predictors are:

  1. Gender—males are more likely than females to recidivate (24.8% vs. 18.0%.)
  2. Age — younger inmates are more likely to recidivate.
  3. Previous state-responsible (SR) incarceration — inmates with a greater number of previous SR incarcerations are more likely to recidivate.
  4. Crime type of most serious offense—as noted above, inmates who have committed nonviolent crimes are more likely to recidivate.

Continue reading

Three More Proposals to Reduce Gun Violence in Virginia

by James C. Sherlock

There was extensive commentary on my post yesterday that recommended expanded use of stop and frisk in an attempt to reduce gun violence. Given the demonstrated interest in the subject, I offer three suggestions that go further.

Increase federal prosecutions. Federal laws, penalties, detention hearings and prosecutions are a far more formidable deterrent to street use of guns than their state and local counterparts.

Virginia should increase its referrals of firearms violations to federal authorities in the same manner and using the same joint task forces as it does with drug violations.

Criminals do not have to be rocket scientists to understand the differences in consequences between prosecutions under state or local laws vs. federal firearms laws. Their lawyers will explain it to them.

Let Virginia Attorneys General prosecute gun crimes directly without local concurrence. The far left is conflicted between their hatred of guns and their desire to reduce prison populations. When they speak of gun control, they generally do not mean no bail and heavy sentences for gun crimes.

I will go out on a limb and suggest that perhaps a woke Commonwealth’s Attorney plea bargaining a felony gun crime down to a misdemeanor is not the way to reduce gun violence. Continue reading

Understaffed Police Departments, Skyrocketing Gun Violence and “Stop and Frisk”

by James C. Sherlock

The print edition of The Virginian-Pilot today ran the story we commented on yesterday on the surge in gun violence killing children in Norfolk. The headline in the online version:

Nearly a dozen children were shot in July in Norfolk. Communities are hurting, and activists want change.

None of the nearly 2,200 words of the article mentioned stop and frisk. The referenced “activists” oppose stop and frisk as unavoidably linked to racial profiling. Courts disagree.

But I suspect that The Virginian-Pilot considers it off limits to even bring up.

It is one of the most fundamental policing techniques for reducing gun violence. In 2011, the NYPD arrested 82,286 persons as a result of stop and frisk encounters. Mike Bloomberg was mayor. The use of stop and frisk has plummeted since then under Mayor DeBlasio.

Those concerned with urban violence have a right to be concerned.  The past few years of political turmoil over policing has resulted in increasing shortages of officers and reductions in street policing. The direct results: more guns on the street, more killings of the innocent. Continue reading

“Model Polices” on Transgender Students vs. Laws Guaranteeing Parental Rights

by James C. Sherlock

Emilio Jaksetic wrote an excellent article this morning.

Mr. Jaksetic, a lawyer, commented on the decision by Judge J. Frederick Watson of the 24th Judicial Circuit of Virginia, to dismiss a lawsuit challenging the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools for lack of standing.  The judge did not rule on the substantive merits of lawsuit.

So, Christian Action Network did not have standing. I also believe that it sued under the wrong theory of law and in the wrong court. I told them so at the time.

One basic flaw in Model Policies is that it specifically permits portions of educational records to be withheld from parents by school personnel. That was not challenged by the Christian Action Network suit.

Yet it appears to be illegal under both federal and state laws.

School boards should take actions on Model Policies only with qualified legal advice. Continue reading

Dueling Claims of Victory in Transgender Lawsuit

by Emilio Jaksetic

On July 27, 2021, Judge J. Frederick Watson, with the 24th Judicial Circuit of Virginia, issued a decision on a lawsuit challenging the adoption of the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, reports The Virginia Star. Because Judge Watson dismissed the lawsuit for lack of standing, he properly did not rule on the substantive merits of lawsuit.

A copy of Judge Watson’s decision is available here. A copy of the Virginia Board of Education Model Policies is available here.

Despite dismissal of the lawsuit on procedural grounds, both sides claimed victory.

The Christian Action Network claimed victory on the grounds that Judge Watson’s decision included a ruling that the Model Policies is a guidance document and that school boards have the option to decide whether or not to follow it. Furthermore, the Christian Action network claimed “the judge is granting school boards the right to decline to act on Virginia’s ‘Model Policies,’ which is exactly what our lawsuit intended.”

The ACLU of Virginia claimed victory on the grounds that dismissal of the lawsuit was warranted, and asserted “[a]ll school boards in the state are legally required by law to pass policies aligning with the model policies for the 2021-22 school year.” Continue reading