Category Archives: Courts and law

Courts Authorizing “Reverse Location” Warrants in Virginia

FBI “reverse location” warrant in Henrico County…. Photo credit: Forbes

Big brother Google is watching you. Back in October, 2018,  Forbes reported that a Virginia court had authorized the FBI to use a “reverse location” warrant to try to solve a series of crimes in Henrico County, Va. This warrant, also known as a geofence warrant, allows police to compel Google to provide all cellphone activity for all people in a general area over a specified period of time. The resulting handover of data includes locations and other information on potentially hundreds, if not thousands, of people. While Google has complied with the warrants in the past, it is unclear whether the company complied in the Henrico case. Continue reading

How Government Creates Poverty: Fines and Fees

Government is much better at creating poverty than at curing it.

Yesterday the General Assembly voted to end the practice of suspending driving licenses for non-payment of fines or restitution or both and ordered Department of Motor Vehicles to restore driving privileges for hundreds of thousands of Virginians. If you need to do business at a DMV office in July, get there early. Restoring 600,000 licenses may take a while.   Continue reading

Virginia’s “Secret” Medical Marijuana Program

The doctor who should be governor. State Sen. Siobhan Dunnavant is a Republican from Henrico County. She is also a practicing physician. In this year’s General Assembly session she put forth SB1557 which expanded last year’s so-called “Let Doctor’s Decide” legislation (HB1251).

What’s new? The 2018 legislation (HB1251) authorized licensed medical providers to prescribe CBD and THC-A oil “to alleviate the symptoms of any diagnosed condition or disease determined by the practitioner to benefit from such use.” CBD, or cannabidiol, is a naturally occurring compound found in the resinous flower of marijuana plants. It is used to treat a variety of maladies. It is non-intoxicating. THCA, or tetrahydrocannabinolic acid, is the non-psychoactive acid form of THC found in marijuana plants when raw. It is also non-intoxicating unless it is heated. Once heated, THCA releases THC which is intoxicating.  The 2018 legislation restricted THCA oil to contain no more than 5 mg of THC (the psychoactive component of marijuana). Continue reading

Yes, Let’s Restore Drivers Licenses. But…

The General Assembly spiked bills in the 2019 session that would have ended the practice of suspending the drivers licenses of Virginians who fail to pay court fines and other obligations unrelated to driving. Without some kind of repercussion, foes of the bills argued, those obligations often would go unpaid.

Now Governor Ralph Northam is proposing to use the budget as an end run around the failed legislation. He is adding an amendment to the budget bill to end the licenses-suspension practice and reinstate driving privileges for more than 600,000 Virginians.

“Having a driver’s license is essential to a person’s ability to maintain a job and provide for their families,” Northam said at a press conference yesterday. “It is especially pertinent to those that live in rural Virginia because we don’t have public transportation that is adequate to get to employment.” Continue reading

When Hate Crime Equals Thought Crime

Today the Washington Post tells us that James A. Fields, Jr., the neo-Nazi who plowed a car into a group of counterprotesters at the infamous white-supremacist rally in Charlottesville in 2017, is scheduled to appear in federal court for a hearing on “hate-crime” charges. Interestingly, the article neglects to tell us specifically which “hate crimes” were involved.

Fields has been found guilty already of first-degree murder in the death of Heather Heyer, one of the people struck by Fields’ car. He has been sentenced to life in prison for the murder charge, 70 years for each of five counts of aggravated malicious wounding, 20 years for each of three counts of malicious wounding, and nine years for leaving the scene of a fatal crash.

The man deserves to spend the rest of his life in prison. He should be darn grateful he didn’t get the death penalty. Personally, I think he should get the electric chair (or whatever we use for capital punishment in Virginia these days). But I’m at a loss about the hate crime charges. Continue reading

Bad Analysis, Legislative Gamesmanship, Misplaced Priorities

In 2016, Keith Harward was released from Virginia’s prisons after serving 33 years for a crime he did not commit.

Harward was convicted of a 1982 rape and murder largely on the basis of the testimony of forensic dentists that bite marks on the victim matched his teeth. Many years later, following improvements in DNA testing methods, analysis of evidence left at the crime scene excluded Harward as the perpetrator.

The use of bite marks and other traditional evidence such as hair analysis has been largely discredited as being unreliable and having little scientific basis by both the National Academy of Sciences (here) and by the President’s Council of Advisors on Science and Technology (here).  In addition, the current guidelines of the professional governing body for forensic dentists recommends the use of bite mark evidence only for exculpatory purposes (here).

Virginia rules for the introduction of new evidence after a person has been found guilty of a crime are among the strictest in the nation. Generally, a convicted person has only 21 days following the entry of a final order by the court to bring forward new evidence supporting his or her innocence. There are two exceptions. If there is new evidence that was unknown or unavailable at the trial, the convicted person may petition the Court of Appeals to consider that evidence and set aside the finding of guilty. However, the bar is high for anyone to use this avenue. The other exception relates to previously unknown or untested “human biological evidence”, i.e. DNA testing. Upon learning the results of such testing, the convicted person may petition the Virginia Supreme Court for a writ of actual innocence. Again, the conditions under which such a writ can be granted are strict. Failing to succeed with, or qualify for, these methods, the convicted person may petition the Governor for a pardon. Continue reading

Unraveling the Ralph Northam Infanticide Controversy

Background. The past several weeks have been full of controversy for three of Virginia’s leading Democratic politicians – Ralph Northam, Justin Fairfax and Mark Herring. The local, state and national media have been focused on allegations of racism against Northam and Herring and sexual assault against Fairfax. However, prior to the media onslaught regarding racism and rape Governor Ralph Northam was embroiled in another controversy regarding comments he made during a radio show. During that radio interview Gov. Northam said some things that some people felt condoned, or even supported, infanticide. What did Ralph Northam say (in context) and did he really condone or support infanticide?

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Sorry, Mr. Bloomberg, You Can’t Pay for Virginia Justice

Earlier this year I described how Attorney General Mark Herring had applied for funding from the Michael Bloomberg-funded New York University School of Law to hire a special assistant attorney to pursue climate-change and clean-energy initiatives. (See “Following the Dark Money.”) NYU had agreed to provide the funding but, for reasons as yet unclear, Herring’s office never made the hire.

Chris Horner, a Virginia resident and senior fellow at the Competitive Enterprise Institute, raised the alarm — entirely ignored by Virginia’s mainstream media — about the potential danger of allowing private interests, in effect, to commandeer the police powers of the state.

Herring’s bid to use private funds to hire an attorney also raised a separation-of-powers issue. While the OAG is arguably free to accept outside money, it has no authority to spend it unless it is appropriated by the General Assembly. Clearly, someone in the General Assembly was paying attention to the matter. Language in the budget conference report directly addresses the ability of the AG’s office to hire mercenary attorneys: Continue reading

Fairfax Dons Mantle of Victimhood. It Does Not Fit.

Justin Fairfax and the media

About a month ago Lieutenant Governor Justin Fairfax came under a barrage of criticism after being accused of sexual assault by two seemingly credible women. Elected Democratic officials across Virginia called for his immediate resignation. He said, wait just a minute, let’s not rush to judgment. Give me a “full, fair, independent, impartial, and non-political investigation by law enforcement.”

Because the alleged crimes took place outside Virginia, they don’t fall under the jurisdiction of Virginia law enforcement authorities. Thus, an investigation by Virginia law-enforcement authorities, which Fairfax called for, isn’t in the cards. Because Fairfax has been charged with no crime, the only practical venue for him to clear his name in the court of public opinion is to allow the accusers to tell their story and for him to offer a defense in a public hearing organized by the General Assembly.

Now Fairfax is equating the GOP’s proposal for legislative hearings with Jim Crow-era lynchings. Speaking on the Senate floor yesterday, according to the Virginia Mercury, he said: Continue reading

Fifteen Months Later and Still No Answers on the Bijan Ghaisar Killing

463 days. November 17, 2017 was the date that U.S. Park Police gunned down / assassinated Bijan Ghaisar on a street in Fairfax County. That was 463 days ago.  n all that time there has been no comment from the U.S. Park Police or the FBI (assigned to investigate the case) regarding this killing.

477 days. That was the total amount of time that elapsed between the discovery of the bodies of Nicole Brown Simpson / Ronald Goldman and the verdict in the OJ Simpson case. Continue reading

Being a Self-Righteous Pain is Not a Crime

Michelle Renay Sutherland, a New Yorker who traveled to Richmond to demonstrate in support of Virginia’s passage of the Equal Rights Amendment, is an annoying individual. Frankly, I find her sanctimonious posturing to be a pain in the ass. Maybe she violated the law for baring her breast when posing as the goddess Virtue in a reenactment of the Virginia state seal, maybe not. But her actions are hardly grounds for holding her in jail without bail for a month.

A magistrate set a bail of $700 for Sutherland, a Brooklyn artist with no criminal record. But General District Court Judge Lawrence B. Cann III ordered her held without bond until her trial, scheduled for March 21.

An article in the Richmond Times-Dispatch does not quote Cann as providing any justification for refusing to release Sutherland. Continue reading

What? You Want Us to Be Consistent?

The rule maker, Senate Majority Leader Tommy Norment, gets to decide the exceptions to the rule.

by Richard Hall-Sizemore

In 2014, Sen. Philip Puckett, a Democrat from far Southwest Virginia, was in a quandary. His daughter was vying for a juvenile and domestic relations court judgeship, to which she had already been appointed as a substitute judge. However, Republicans in the Senate, led by Sen. Tommy Norment, R-James City, were holding up her election, not based on any objection to her qualifications, but because of a tradition of not supporting family members of sitting Senators for judgeships.

Fast forward to 2019. Until yesterday there was a vacancy pending on the Virginia Supreme Court. A Republican senator from far Southwest Virginia is, according to newspaper reports, lobbied his fellow senators to elect his sister, currently a member of the Virginia Court of Appeals, to the higher post.  Norment said that situation was different because the senator’s sister had already been elected to a judgeship before her brother had been elected to the Senate. Continue reading

Mob Justice for Justin Fairfax

Wow, that was fast. One day Justin Fairfax was measuring the drapes for the Governor’s Mansion, now the grandees of the Virginia Democratic Party say he should step down as Lieutenant Governor. The sexual-assault charges against him are serious and his accusers deserve to be heard. But can we give it just a little bit of time before assuming his guilt and tossing him into the trash heap of history?

Fairfax, according to the Washington Post, is asking for an “appropriate and impartial” investigation into the accusations against him by Meredith Watson and Vanessa Tyson. “I am asking,” he said, “that no one rush to judgment and I am asking for there to be space in this moment for due process.”

Is that really too much to ask? It astonishes me that so many people believe that there mere existence of accusations is sufficient to remove Fairfax from office. Continue reading

Finally, The SCC Is Full Strength

The Honorable (Again) Patricia L. West (Click for larger view .)

Former Chief Deputy Attorney General and Circuit Court Judge Patricia West is heading to the State Corporation Commission and the only question it raises is, why did the Republicans feel compelled to ram her election through with such speed?

Was the coalition that fragile?

West apparently has not practiced law in front of the Commission on behalf of clients, and certainly has not lobbied the General Assembly on behalf of regulated clients.  Her campaign contributions are modest.  She has a long resume of leadership posts around state government, and if she has expressed strong opinions on any of the various regulatory controversies of the day, no one is aware.  But people forget most of what the SCC does is not controversial.

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State Database Missing 55,000 Felons

Missing

The Virginia State Crime Commission is asking why 750,000 conviction records — including those for 300 murder and 1,300 rape convictions — are missing from the state database used to run background checks for gun purchases, court sentencing and employment, reports the Washington Post. It turns out that conviction records are entered into the database only when they are accompanied by fingerprints. But the Virginia law-enforcement and judicial systems have a spotty record of taking and preserving fingerprints, especially for misdemeanors and other minor crimes. Continue reading