Virginia State Bar

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Criminal Law

A Section of the Virginia State Bar.

December 2005 Criminal Law News

Volume 35 December, 2005 Number 3

  • Bobby Lee Cook to Speak Again at 2006 Williamsburg Seminar Luncheon

    The luncheon speaker for the Williamsburg session of the 36th Annual Criminal Law Seminar to be held in the colonial capital on Friday, February 10, 2006, at the Marriott-Kingsmill will be legendary Georgia lawyer Bobby Lee Cook.

    Bobby Lee Cook is a graduate of the University of Alabama and an honors graduate of the Vanderbilt Law School. He is a partner in the Summerville, Georgia, firm of Cook & Connelly, and he has served one term in the Georgia House of Representatives, one term in the Georgia Senate, and spent four years as a trial judge. He is a founding member of the Roscoe Pound Foundation and of the Trial Lawyers for Public Justice, and he is a past Chair of the Board of Regents of the National College of Criminal Defense Lawyers. Cook is a Fellow of the American College of Trial Lawyers and the American Board of Criminal Lawyers and is a member of the International Society of Barristers.

    Bobby Lee Cook has been honored by the American Academy of Achievement, was the first recipient of the Georgia Bar Tradition of Excellence Award, received the California Attorneys for Criminal Justice Annual Award, and in 1994 was selected as Trial Lawyer of the Year at the Georgia Bar Annual Meeting. The ABA Journal has noted that the Matlock television series was based on him and his career as a criminal defense lawyer. He has tried hundreds of murder cases with an estimated 90 percent acquittal rate.

    Cook has spoken at Seminar luncheons three times previously, initially twenty years ago in 1986, and again in 1992 and 1999, to much acclaim on each occasion.

    The Seminar will be held in Charlottesville on February 3, 2006, at the Doubletree Hotel on Route 29 north of the city, and the following Friday, February 10th, at the Williamsburg Marriott-Kingsmill on Route 60 east of the city. The registration brochures will be mailed later this month, and the registration form should be returned promptly to ensure a place at the program, especially in Williamsburg. Another outstanding luncheon speaker will be announced for the Williamsburg session in December, and a varied program for a diverse audience will be released at that time as well. However, annual favorites, such as Professor Ron Bacigal capsuling recent developments and Judge Dennis Dohnal and Rod Leffler on ethics are back in 2006. Section members receive a discount on registration for the Seminar that covers the cost of membership for the year, and an advance registration form is included in this Newsletter.

  • Chairman's Letter

    "That 150 lawyers should do business together ought not to be expected."
    Jefferson's autobiography, 1821, reflecting on Congress

    While not expected by some, we know as Jefferson surely did, that lawyers can and do accomplish things by working together.

    We practice criminal law in an "adversary" system, representing, and presiding over parties who have competing expectations. Yet, well over 1.1 million criminal and delinquency cases alone were handled in the state courts of Virginia in 2004. That couldn't be accomplished without prosecutors, defense attorneys, and judges making an effort to work together.

    It should continue to be our goal to see that the criminal justice system, state and federal, is not damaged by the volume of business we do there together, but instead improved through our cooperative efforts. As our population continues to increase, the number of cases increases. The crime rate may be down, but the volume is up. We are obligated to use our best efforts to help Virginia courts administer justice efficiently and fairly. One basis for our progress in that regard is the number of our members who have both prosecuted and defended. Former Section Chair Michael Herring is a recent example that comes to mind. Congratulations to him on his election as Commonwealth's Attorney for the City of Richmond. His experience on "both sides of the fence," like so many others, will add to the appreciation and understanding of the various facets of practicing criminal law.

    Sadly, we recently lost a colleague who added much to the appreciation, understanding, and the improvement of practicing criminal law. Professor Roger Groot of the Washington & Lee University Law School passed away in November. He was widely known and respected for his intellect, his love of the law, and his passionate outspokenness regarding both capital defense and indigent defense systems. He will be greatly missed. We will try to recognize his contributions in some fashion when we get together as our annual Seminar.

    Harvey L. Bryant

  • Virginia Court of Appeals Criminal Law and Procedure Decisions

    Case decided November 15, 2005

    DiMaio v. Commonwealth, Record No. 2851-04-2 (Circuit Court of Lunenburg County) (Chief Judge Fitzpatrick). Defendant was convicted in a bench trial of computer fraud, computer trespass, embezzlement, attempted extortion. and he appealed, challenging the sufficiency of the evidence. The Court held that the evidence was sufficient to prove the value of the computer records and of the non-compete agreement, and that he attempted to commit extortion and possessed the necessary criminal intent.

    Cases decided November 22, 2005

    Moore v. Commonwealth, Record No. 2648-03-1 (Circuit Court of the City of Portsmouth) (Judge Humphreys) (Rehearing en banc). Moore was convicted of possessing cocaine with the intent to distribute. He appealed the denial of a suppression motion based on the legality of his arrest for driving on a suspended license. A divided panel of the Court of Appeals reversed and dismissed the case. (45 Va.App. 146, 609 S.E.2d 74 (2005)) The Commonwealth petitioned for rehearing en banc, and the petition was granted. The en banc Court held that defendant's arrest for driving on a suspended license violated the statute which generally requires police officers to issue summons for misdemeanors, that his Fourth Amendment right to be free from unreasonable searches and seizures was not violated when he was arrested for driving with a suspended license, that where the police officer had probable cause to arrest him for driving with a suspended license and effected a full-custody arrest, search of his person as incident to the arrest did not violate his defendant's Fourth Amendment rights; and that even thearrest for driving with a suspended license violated the statute which generally requires police officers to issue summons for misdemeanors, the exclusionary rule was not applicable. Judge Elder concurred in part, dissented in part, and filed a separate opinion in which Chief Judge Fitzpatrick and Judges Benton and Frank joined, urging that the statutory violation triggered the operation of the exclusionary rule.

    Morris v. Commonwealth, Record No. 1216-04-2 (Circuit Court of Albemarle County) (Judge Frank) (Rehearing en banc). Morris was convicted after a bench trial of two counts of felony child neglect, and she appealed. The majority of a panel of the Court agreed that the evidence was insufficient to prove that her actions constituted willful actions that showed a reckless disregard for the lives of her children and the Commonwealth petitioned for rehearing en banc. The Court held that the evidence was sufficient to support convictions where it showed her young children were left unsupervised late at night in a disheveled condition. Judge Elder dissented in an opinion in which Judges Benton and Humphreys joined.

    Cases decided November 29, 2005

    Barnes v. Commonwealth, Record No. 0069-95-1 (Circuit Court of the City of Portsmouth) (Judge Kelsey). Barnes was convicted of two counts of child endangerment for leaving her small children alone in her apartment during the day while she went grocery shopping. The Court held that the evidence was sufficient to support the convictions.

    Walker v. Commonwealth, Record No. 1056-04-1 (Circuit Court of the City of Virginia Beach) (Judge Kelsey). Defendant was convicted of abduction and the use of a firearm during the commission of a felony. The Court held that the evidence that defendant deprived the victim of his liberty was sufficient to support the abduction conviction, and the abduction conviction was not required to be reversed on the basis that it was incidental to the robbery charge of which defendant was acquitted.

  • Selected Opinions of the United States Court of Appeals for the 4th Circuit

    United States v. Morris, Case No. 04-7889 (Nov. 7, 2005). Judge Shedd. After Morris was convicted and sentenced for conspiring to distribute oxycodone and methadone, being a felon in possession of ammunition, and retaliating against an informant and her convictions were affirmed on appeal, she moved for relief from her conviction and sentence. The district court denied the motion under 28 U.S.C. § 2255, and defendant appealed. The Court of Appeals held that the rule announced in United States v. Booker, 125 S.Ct. 738 (2005) was a new rule for purposes of Teague retroactivity analysis, and the rule announced in Booker was not a watershed rule warranting retroactive application, following the decisions of nine other circuits. The district court was affirmed.

    United States v. Forrest, Case No. 04-4665 (Nov. 14, 2005). Judge Motz. Defendant was convicted after a jury trial, of production and possession of child pornography, and he appealed his conviction and sentence. The Court ruled that the district court did not commit error, much less plain error, in applying the subject statutes to defendant's wholly intrastate production and possession of child pornography, the district court did not abuse its discretion in admitting into evidence several pornographic and non-pornographic photographs of adult males found in the defendant's photo album and on his home and office computers, any error in admitting expert testimony concerning the behavior patterns of serial child abusers was harmless, and the defendant failed to establish, on plain error review, that any Booker/Rast error committed by the district court in sentencing him to a prison term affected his substantial rights.


Updated: Monday, October 1, 2007 4:45 PM