Weapons of Mass Destruction

“The notion that some things go without saying applies to legislation just as it does to everyday life.” --SCOTUS

The written decisions of courts in the state and federal system are called “opinions.”  At the start of any opinion, there are usually numbered summary legal points, called “headnotes”.  On Monday, June 2, 2014, the Supreme Court of the United States decided the case of Bond v. United States, 2014 LEXIS 3988 (US 2014).  Headnote #4 to that opinion reads:  “The notion that some things go without saying applies to legislation just as it does to everyday life.”

Really?  The law lives and dies by semantic and technical absurdities.  You mean there’s a limit?

The issue in Bond was the applicability of an international chemical weapons treaty to a woman scorned.  No, really.  That was the issue.

You see, the woman, who lived in Lansdale, Pennsylvania, population 16,269 (http://en.wikipedia.org/wiki/Lansdale,_Pennsylvania), home of the Tuba Christmas Concert (http://www.lansdale.org/402/TubaChristmas-Concert), got mad at her husband, because he was cheating on her, and had impregnated her best friend.  So she mixed up a little chemical cocktail of arsenic and a photo-printing solution, and applied it to surfaces the Other Woman might come into contact with, like her car door, mailbox, etc.  In the hopes of killing her?  No.  In the hopes that she would develop “an uncomfortable rash”. 

The O.W. did, in fact, eventually manage to touch some of the chemical, despite the fact that it was bright orange.  The result?  A minor chemical burn on her thumb.  The medical treatment?  She had to rinse it with water. 

For this, the Feds pressed charges against the jilted wife for possession and use of a chemical weapon in violation of the Chemical Weapons Convention Implementation Act of 1998, (18 USC 229), which was the U.S. implementation legislation for an the international Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. 

My personal favorite line from the case:  “…the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.”

The opinion is fun to read until you think – THIS made it all the way up to the U.S. Supreme Court?  This stuff happened in 2006-2007.  It’s 2014.  So for 7 or 8 years, lives have hung in the balance while the legal juggernauts duked this one out.  Even better -- this case reverses the lower court’s opinion, upholding the CONVICTION. 

Would you like a little Prosecutorial Discretion with that?


Andre Hakes
Criminal Defense Attorney
Tucker Griffin Barnes
Charlottesville, VA
434-973-7474
www.TGBLaw.com

What is Pain and Suffering worth in a Va Personal Injury Case?

What is my pain and suffering worth?

What is my pain and suffering worth? Because you do not get a bill for pain and suffering as you do for medical treatment and lost wages, pain and suffering is determined by several factors. The length of treatment that is reasonable and necessary is an important component of the worth of the pain and suffering.

The total of your medical bills that are reasonable and necessary factors in the value of pain and suffering. Right or wrong, insurance companies often think that if you did not go to the doctor or another health care provider for treatment, you were not hurt.

Please contact us if you need further legal advice.

Tucker Griffin Barnes P.C.
Attorneys at Law
Charlottesville, VA
www.TGBLaw.com
434-973-7474

Va law requires your landlord to provide you with a move-in/move out sheet when you take possession of a new apartment

Did you know: Va law requires your landlord to provide you with a move-in/move out sheet when you take possession of a new apartment.

This is a document in which you can note existing damages to the apartment. Make sure you ask for thi...s when you move into a new place, and make sure you do a walk-through of the apartment and fill the sheet out. This will make it more difficult for your landlord to make deductions from your security deposit for damage that you did not cause. Good luck.

Tucker Griffin Barnes
Charlottesville, VA
http://www.TGBLaw.com/
434-973-7474

 

Social Security Disability Common Misconception

A person is ineligible to file once they return to work -- NOT TRUE. 

A common misconception is that once a person returns to work the opportunity to make a Social Security Disability claim has passed.  A person has twelve months from the date the disability ended to file a social security disability claim.  It would be a closed period of disability for the time they were unable to work.  Many people find themselves in this situation after fully recovering from a surgery or other successful treatment. 

 

Mary Ann Barnes

Social Security Disability Attorney

Tucker Griffin Barnes

Charlottesville, VA

434-973-7474

www.TGBLaw.com

Inquire@TGBLaw.com

 

 

Charlottesville Criminal Defense - Felonies are Forever

Felonies are Forever

So are misdemeanors, as it turns out. EXPUNGEMENT is the process of having the record of a criminal proceeding destroyed. However, it only applies to charges which did not result in conviction. Va. Code §19.2-392.2 ...allows a person to petition to expunge a charge on which that person “is acquitted … or a nolle prosequi is taken or the charge is otherwise dismissed…” You can never expunge a conviction from your record in Virginia.

Many people do not understand that, and call attorneys 10 or 20 years down the road, wanting to expunge convictions from their records so they can get a job, or get into school. They can’t believe that all these years later, when they have been good, productive, tax-paying citizens of the Commonwealth they can’t wipe the slate clean of some youthful indiscretion.

Think about that next time you go to the polls to vote in one of those “tough on crime” campaigns for the General Assembly. It’s not just Charles Manson they’re talking about …

Andre Hakes
Criminal Defense Attorney
Tucker Griffin Barnes
434-973-7474
Andre's Bio: http://www.tgblaw.com/attorneys/#hakes

 

Criminal Defense Attorney - The "Finger" vs. the "Constitution"

Charlottesville Criminal Defense Attorney
In 2006, Mr. John Swartz of New York flipped off an officer who was running radar. The officer stopped him, and arrested him for “disorderly conduct”. The charge was dropped, and Mr. Swartz filed a civil right...s suit against the officer.

It’s 2013, and they’re still in court. According to the New York Times, the cop at deposition “suggested that he saw the finger as a potential call for help and followed the car because he thought Mr. Swartz ‘was trying to get my attention for some reason’ and because he ‘wanted to assure the safety of the passengers.’

Wow – now that’s service! I’ll just bet Mr. Swartz felt bigtime safe after that…

So – do you have the right to flip officer friendly the bird?

Maybe. Virginia has this crime called “curse and abuse”. In Virginia, if you curse at someone in a “under circumstances reasonably calculated to provoke a breach of the peace”, you can be convicted of a crime. There is an actual statute – Code of Virginia 18.2-416.

But wait there’s more! There is even actual case law on this. If you tell your neighbor “go f*** yourself” when you are “face to face”, it’s a crime. But at a distance of 55-60 feet, separated by a chain link fence, it’s not. Hershfield v. Commonwealth, 14 Va. App. 381 (1992). I swear -- you can’t make this stuff up.

At 50 feet, or 40, or 30, or with just a picket fence, or ditch, or driving by, or just the gesture with no words – who knows? Whatever facts you’re thinking of, the case probably hasn’t been decided yet. This is what lawyers call a “chilling effect”. The law should be clear – but it almost never is.

No one wants to test it because there’s a big risk ($ for legal fees, and potential criminal conviction) and not much reward if you win (a grudging “not guilty” accompanied by a lecture from the judge on civility). There’s supposed to be a requirement of clarity in order for the law to be enforceable – to avoid that chilling effect --but in practice, that argument almost never works.

The best advice is to be polite if you can. And why not? There’s no real downside there. However, if you do find yourself having pushed that particular envelope, a good criminal defense attorney will have your back. It’s who we are. It’s what we do.


Andre Hakes
Criminal Defense & Traffic Partner
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)
www.TGBLaw.com
Inquire@TGBLaw.com

Crozet Hit and Run

Yvonne Griffin

Thankfully no one was hurt when a Crozet man allegedly led police officers on a chase. According to NBC29.com, he hit two other vehicles during the chase. Hit and Run is a violation of criminal laws that can lead to misdemeanor charges or felony charges, depending on the circumstances.

If someone had been hurt during the hit and run, in addition to the criminal case, he or she would have a civil case against the hit and run driver for personal injuries (PI). Punitive damages might also be available in the civil case.

If you’re hurt in an accident, check with an attorney who concentrates in personal injury law. He/she can tell you your rights and other information that is important to your case. Most all personal injury attorneys do this first consultation for free.

Source: NBC29, “Crozet Man Charged with Eluding Police, Hit-and-Run After Chase,” April 17, 2013.

Tucker Griffin Barnes
Attorney at Law
Charlottesville, VA
www.TGBLaw.com
434-973-7474
Inquire@TGBlaw.com

Your "RIGHT" to a jury trial in Virginia

Andre Hakes

If you are charged with a crime in Virginia, you have a constitutional right to a jury trial.  However, Virginia’s justice system is carefully structured to discourage you from exercising that right.  Here’s how it works.

You are accused of possessing 1 gram of cocaine with the intent to sell it, in violation of Code of Virginia §18.2-248.  You have a clean record, and no other charges.  Your attorney calculates your sentencing guidelines at 12 points.  She looks it up in a chart and tells you that means if you waive your right to a jury trial, and you plead guilty or are convicted by a judge without a jury, your guidelines sentence comes out to one year.   But -- your “Nonviolent Risk Assessment” (also part of the sentencing guidelines) recommends an “Alternative Punishment,  so in reality, you’ll probably get PROBATION. 

However, your attorney is not allowed to even tell a jury that sentencing guidelines exist.   The statutory range of punishment for the crime is FIVE TO FORTY YEARS.  So – if a jury finds you guilty, that’s what you’ll get.

Wow!  Some right, huh?  You have this right – it’s absolutely 100% guaranteed by the Constitution.  Of course, if you use it we will hit you with this Great Big Stick.  No, wait — we’ll MAKE the jury hit you with it!

The right to be tried by a jury of your peers is something we were taught in grade school.  What we are not taught until law school is how it really works.  Years of “tough on crime” lawmakers and their political appointment of judges has resulted in the severe erosion of the rights of ordinary Americans.  Hopefully, most of us will never be targeted by the system, but if you ever are – a good lawyer is your best defense.   

Andre Hakes

Criminal Defense Attorney

Tucker Griffin Barnes

Charlottesville, VA (434-973-7474)

www.TGBLaw.com

Inquire@TGBLaw.com

 

 

 



Officer Not So Friendly: A Choose-Your-Own-Misadventure Story

The Hope Diamond is missing, and Officer Friendly thinks you stole it.  He types your name into a computer, and instantly knows where you work, where you live, what you drive, and whether or not you’ve been in trouble before. He calls you on the telephone, and tells you he needs to speak with you. He’s very vague about why.  He does not say “I think you stole the Hope Diamond”. Instead, he says something like “There’s been a complaint. I just need you to come talk to me so I can clear a few things up.” He gets you to agree to come to the police station to speak with him, at a specific time.

 

Choose Your Own Misadventure:

A.    You call a lawyer.

B.    You go to the meeting.

A.     You call a lawyer.

·       The lawyer says STOP!  Don’t go to that meeting!  Come to my office, and let me explain what is about to happen to you.  You go see the lawyer, and write a check (as lawyers tend to require – this one is pretty small, though, since you’re not charged with anything yet, and if you’re lucky you won’t be).  The lawyer writes a letter to Officer Friendly saying essentially:  “I represent this person.  Don’t talk to him.  Call me if you get a warrant for him.”  Your lawyer has just exercised your Constitutional rights for you.  Officer Friendly can’t question you now on this matter.  He either has the evidence to charge you or he doesn’t.  If he does, he will, and your lawyer will have a better chance to fight for your innocence, or work out a good plea deal because you didn’t talk.  If he doesn’t, the file sits in your lawyer’s cabinet for months and is eventually closed without you ever being arrested at all.   

B.     You go to the meeting.

·        You arrive at the front desk of the police department.  The woman behind the bullet proof glass window tells you to have a seat – Officer Friendly will be with you in a moment.   Officer Friendly comes and leads you to a room buried fairly deep inside the police station requiring you to make several turns and perhaps pass through sets of doors.  This is the “interview room”.  (Ask yourself – why isn’t this room near the front door?)

 

·        It is a smallish room, sparsely furnished, with no windows.  The door may have a big latch mechanism visible from the inside, which looks like a deadbolt style lock.  There is a small plastic table and 2 or 3 folding chairs.  Officer Friendly opens the door so that you enter first (wasn’t that nice?).  He asks you to take a seat, indicating the one deepest into the room, and places himself between you and the door.  The room is wired for audio and video, and you are being recorded the whole time you’re there.  You are having a “Voluntary Police Citizen Encounter”.   

·        Officer Friendly smiles, and acts like this is No Big Deal.  He’s just Going Through The Motions.  He tells you he really appreciates your coming to talk to him, but before you get started he has to read you your rights.  He asks you if you understand your rights, and having those rights in mind, if you will sign this little piece of paper saying you want to talk to him now.   Well, you’re already there, and you are afraid that if you don’t sign the paper, it will make you look guilty, so you sign and guess what?  You just waived your Constitutional rights!  That was Easy!

·       Officer Friendly starts off with general questions that don’t seem real threatening.  Then gradually, he starts to ask you things that make you uncomfortable.  Maybe you stole the Hope Diamond, and maybe you didn’t, but either way, this is not a fun conversation.  The longer you talk, the more you would like to leave, the more you think it will look bad if you do, so you stay and talk more… and every word, every gesture, is recorded without your knowledge.  Eventually, Officer Friendly starts accusing you, directly.  He says “I know you did it.”  He interrupts you and cuts you off when you try to tell him no.  He won’t let you get the words out of your mouth.  You start to get scared and confused.   

·      You are not allowed to lie to a police officer – that’s a crime.   However, the police are allowed to lie to you.  In fact, Officer Friendly has been trained to lie to you.  He tells you that he knows you stole the Hope Diamond, because your fingerprints or DNA were found on the glass case from which it was taken.  You rack your brains to think of how that could possibly be true.  You think out loud, trying in vain to come up with possible explanations, but they just sound false and far-fetched to both you and the cop.  You start to wonder if that really is a lock on the door.   

·        Eventually, maybe you get charged with a crime, and maybe you don’t.  Best case scenario, you just suffered through the humiliating and frightening experience of a police interrogation.  (Ah, but it was Voluntary!  Remember that – now don’t you feel better?)  Worst case scenario, you just gave Officer Friendly the evidence he needed to charge you with a crime, and you’re going to need that lawyer after all.
 

So is the moral of the story how to commit crimes and get away with it?  Of course not.  Don’t steal the Hope Diamond, or anything else.  Don’t drink and drive.  Don’t do drugs.  If you don’t commit crimes, you can save a fortune in attorney’s fees!  Seriously, though -- the police are doing their jobs and good for them.  We absolutely need good cops.  I honor and value their service.  We also need good lawyers and an educated public. 

The moral of this story is that you should know and value your own constitutional rights.  Whether the First Amendment is your favorite, or the Second -- don’t EVER waive your rights just because you don’t know any better.  A whole lot of people fought and died to give them to you, and they are worth more than a whole box of rocks.

*DISCLAIMER:  The above is for informational and entertainment purposes only and not for the purpose of providing legal advice.  You should contact your attorney to obtain advice with respect to any particular issue or problem.  Use of and access to this information does not create an attorney-client relationship with André A. Hakes or the law firm of Tucker Griffin Barnes, P.C.

Andre Hakes

Criminal Defense Attorney

Tucker Griffin Barnes

Charlottesville, VA (434-973-7474)

www.TGBLaw.com

Inquire@TGBLaw.com

Common Misconception No.1 -- Social Security Disability Must Be Permanent

Mary Ann Barnes

Most people are under the impression that social security disability is ONLY for those with one foot in the grave and the other on a banana peel. This is a common misconception. In order to file for Social Security Disability benefits, a person must be unable to work (“do any substantial gainful activity”) by reason of any physical or mental impairment which lasts for 12 months or more. The substantial gainful activity is your previous work or any other existing in the national economy. Your residual functional capacity, your age, education and work experience are taken into consideration.

Again, a person does not have to have one foot on a banana peel to be eligible! Most people do not consider themselves to be “disabled” if they think they will be returning to work. A person’s disability must be a disability that lasts for twelve months or more. Disability can be permanent or short term.

Please contact me if you have questions about Social Security Disability.

Mary Ann Barnes
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)
www.TGBLaw.com
Inquire@TGBLaw.com