If a Virginia legal defense fund were established, how should it be administered

45acpForMe said:

This seems to be the biggest problem to me.
1) There are those who "try" to be law abiding but run afoul of the system.
2) There are those that "are" law abiding and a foul-system runs them over.
3) Then there are simple criminals.

I would think that the first two would deserve consideration and even the ones that break "bad" laws to try to change the law.

Being in Southern VA how would a NoVA office and staff handle the entire state? Hopefully case-load would be low but it seems like there are waves of incidents where 2-3 are running at the same time in different geographies.

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Good analysis. I don't see this helping people who are actually guilty of crimes (category three), regardless of the rectitude of the law under which their offense may be defined - that's a legislative function. Not interested in funding plea bargains. Category one is sort of suspect, as well; it really doesn't matter whether one is trying to be a good person (or a bad person, for that matter): for most criminal offenses, it's the intentional commission of some act that makes the person guilty, not the intent to commit a crime. There's a difference between the intention to do X and the intention to violate the statute that makes doing X a crime. This doesn't apply to all criminal laws; there are some for which "specific intent" rather than "general intent" is required - those statutes say "willfully", "knowingly", or even "recklessly" or "intentionally". But most crimes just say things like the definition of assault: "acting in a manner that creates in the mind an ordinary person of reasonable sensibilities the apprehension of an immediate battery, without cause, justification, or excuse." You don't have to "intend" to assault someone. You have to intend to move your hand in such a way that the person reasonably thinks you mean to hit them.

I like category two, and I think there's so much of that (sit around in your local general district court for a few days and watch the criminal trials), that any resources we can scrape up will run out before we can deal with even a small part of it. The system depends on the great disparity of power between the state and "the criminally indigent". This is not good for the United States to be operating a system like that; it makes us weaker and will have disastrous consequences in the end. (Read the OT book of Amos and see what happened to Israel, for example.)

As to the last point: Well, first, I don't see this as a problem limited to Virginia. Secondly, I've got cases right now in Surry Co. and Alleghany Co., and while I'd prefer not to have to go to Dickenson or Wise Counties or the City of Danville, I'd do it if the case called for it. Plus, we've got these new-fangled telephone things that make it a lot easier to do stuff far away.

insurance style?

What about a paid subscription / membership / insurance style of thing? Members pay an annual membership / subscription fee for potential legal representation? I'd be willing to pay for something like, assuming the cost was reasonable.

The NRA offers a liability policy that allegedly *reimburses* for legal expenses *if* you are acquitted of all criminal charges. I've never purchased that insurance because I don't like the wording. I've noticed that in a lot of court cases, that even if the victim was found not guilty of the actual shooting (murder, manslaughter, etc.), they are typically found guilty of other gun-related charges (such as discharging a firearm in city limits). I questioned the underwriter on how they view such things, and they refused to answer. I suspect they use that caveat as a justification to refuse pay-out.

As far as administering the "fund"... perhaps a review board would examine the case and choose to accept it based on the merits of the case. That would hopefully eliminate taking up an out-right criminal case.

45acpForMe said:

This seems to be the biggest problem to me.
1) There are those who "try" to be law abiding but run afoul of the system.
2) There are those that "are" law abiding and a foul-system runs them over.
3) Then there are simple criminals.

I would think that the first two would deserve consideration and even the ones that break "bad" laws to try to change the law.

Being in Southern VA how would a NoVA office and staff handle the entire state? Hopefully case-load would be low but it seems like there are waves of incidents where 2-3 are running at the same time in different geographies.

Click to expand...

user said:

Good analysis. I don't see this helping people who are actually guilty of crimes (category three), regardless of the rectitude of the law under which their offense may be defined - that's a legislative function. Not interested in funding plea bargains. Category one is sort of suspect, as well; it really doesn't matter whether one is trying to be a good person (or a bad person, for that matter): for most criminal offenses, it's the intentional commission of some act that makes the person guilty, not the intent to commit a crime. There's a difference between the intention to do X and the intention to violate the statute that makes doing X a crime. This doesn't apply to all criminal laws; there are some for which "specific intent" rather than "general intent" is required - those statutes say "willfully", "knowingly", or even "recklessly" or "intentionally". But most crimes just say things like the definition of assault: "acting in a manner that creates in the mind an ordinary person of reasonable sensibilities the apprehension of an immediate battery, without cause, justification, or excuse." You don't have to "intend" to assault someone. You have to intend to move your hand in such a way that the person reasonably thinks you mean to hit them.

I like category two, and I think there's so much of that (sit around in your local general district court for a few days and watch the criminal trials), that any resources we can scrape up will run out before we can deal with even a small part of it. The system depends on the great disparity of power between the state and "the criminally indigent". This is not good for the United States to be operating a system like that; it makes us weaker and will have disastrous consequences in the end. (Read the OT book of Amos and see what happened to Israel, for example.)

As to the last point: Well, first, I don't see this as a problem limited to Virginia. Secondly, I've got cases right now in Surry Co. and Alleghany Co., and while I'd prefer not to have to go to Dickenson or Wise Counties or the City of Danville, I'd do it if the case called for it. Plus, we've got these new-fangled telephone things that make it a lot easier to do stuff far away.

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I fully understand that people in category #2 deserve full support. For category #1 and the bad law example sometimes legislative options are the BEST longterm path for changing the system but that doesn't help the poor sap that fell into the trap before the trap was defanged! One example would be the Federal Gun Free School Zones. I don't know of anyone that has been charged with it but using it as an example a good 2A lawyer could push for jury nullification or dismissal if the judge was agreeable. For bad law I think jury nullification needs to be broadcast as a valid will of the people tool!!! So yes I agree the legislative process needs attention, but the judicial process has a more pointed specific role to assist the individuals until that legilative process plays out.

Based on the funding and availability of human resources there will always be a limited number of cases accepted but I think there will be meaningful exceptions to any hard fast rule.

I'm glad you brought up the issue of the Federal GFSZA as that had me wondering how this fund would address such an issue. The stance on supporting someone found in violation of this statute with no further criminal action would be a game changer with regard to my interest in such a fund.

45acpForMe said:

I fully understand that people in category #2 deserve full support. For category #1 and the bad law example sometimes legislative options are the BEST longterm path for changing the system but that doesn't help the poor sap that fell into the trap before the trap was defanged! One example would be the Federal Gun Free School Zones. I don't know of anyone that has been charged with it but using it as an example a good 2A lawyer could push for jury nullification or dismissal if the judge was agreeable. For bad law I think jury nullification needs to be broadcast as a valid will of the people tool!!! So yes I agree the legislative process needs attention, but the judicial process has a more pointed specific role to assist the individuals until that legilative process plays out.

Based on the funding and availability of human resources there will always be a limited number of cases accepted but I think there will be meaningful exceptions to any hard fast rule.

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I have no cites, but I have read in various places that judges hate the idea of jury nullification. So much that you would almost certainly be thrown off the jury if you even mention it during the selection process, and maybe even worse than that. I suspect a defense attorney might very well be brought up on some sort of charges or sanctions if they openly asked a jury to do that. User would have to chime in on any real-world situations he may have seen or heard about.

Those who have the power are not at all happy about letting anyone else share. They want to insist that you play their game by their rules only.

If you get called and you think you might be in a position to use it, your best bet is to keep your mouth shut until after those doors are locked and you are in deliberation... and even then, you probably shouldn't talk about it openly, but more in terms of "I can't in good conscience convict a person of breaking this law, how can you?" etc.

IANAL, just my thoughts.

TFred

TFred said:

I have no cites, but I have read in various places that judges hate the idea of jury nullification. So much that you would almost certainly be thrown off the jury if you even mention it during the selection process, and maybe even worse than that. I suspect a defense attorney might very well be brought up on some sort of charges or sanctions if they openly asked a jury to do that. User would have to chime in on any real-world situations he may have seen or heard about. ...TFred

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True, and you'll never get a jury instruction that says they can do it. It is done, however, and there are ways to get the notion across to a jury. That may get someone off on that particular charge, but it won't result in a change in the law, though. They have to lose at trial and then get an appellate court to review the case and be persuaded that the law that the trial court applied was wrong.

Armed said:

What about a paid subscription / membership / insurance style of thing? Members pay an annual membership / subscription fee for potential legal representation? I'd be willing to pay for something like, assuming the cost was reasonable.

The NRA offers a liability policy that allegedly *reimburses* for legal expenses *if* you are acquitted of all criminal charges. I've never purchased that insurance because I don't like the wording. I've noticed that in a lot of court cases, that even if the victim was found not guilty of the actual shooting (murder, manslaughter, etc.), they are typically found guilty of other gun-related charges (such as discharging a firearm in city limits). I questioned the underwriter on how they view such things, and they refused to answer. I suspect they use that caveat as a justification to refuse pay-out.

As far as administering the "fund"... perhaps a review board would examine the case and choose to accept it based on the merits of the case. That would hopefully eliminate taking up an out-right criminal case.

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There is such a thing, the "Armed Citizen Defense League" or some such thing - there's a link on my website. I'm a participating attorney in Virginia. It's not insurance, but a membership organization with an associated trust fund that pays like $5000 up front to your participating attorney if you're charged with a crime as the result of a defensive shooting, subject to approval by the elders. Sort of like joining triple-A and getting free tire changes on the side of the road.

jmelvin said:

I'm glad you brought up the issue of the Federal GFSZA as that had me wondering how this fund would address such an issue. The stance on supporting someone found in violation of this statute with no further criminal action would be a game changer with regard to my interest in such a fund.

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Good point. That creates yet another classification, in my thinking: there are laws we don't like, and there are statutes that are not properly speaking, laws. The GFSZA is such a statute, in my opinion. That would be worth chiseling away at. I think that one's bogus for a couple of different reasons.

I like thebigsd's idea for a name! I'm not sure if I'll ever get stationed in VA again but I plan on making it my official home of record. I'd love to be a part of something like this. It sounds like an excellent idea! I wish i spoke more legalese so I could offer some ideas on how the actual administration should work but I don't think I can top any of the ideas that have already been thrown out haha. I'll be eagerly watching this develop though so I can throw money at it when it comes together! Would it be set up like a yearly dues thing or would it have coverage plans almost like an insurance policy?

First, I'm thinking of a membership organization; there are too many regulatory hoops to jump through to do the "insurance" thing, and I would prefer that services NOT be tied to membership. Sort of like PBS - anyone can watch, people who feel like supporting the effort, do so. There will be some po'folks out there who'll get buzzed by the local System dudes unjustly, and will need help, and I want to be able to provide it, regardless of the defendants' ability to pay.

With respect to the selection process: it occurs to me that the best first-level filter would be referrals. If the organization gets referrals from the NRA, VCDL, or local attorneys, etc., that would suggest that at least one person has heard a description of the problem and decided that it's something we ought to consider. I don't know whether that ought to be a strictly-enforced policy (i.e., no services to people who contact us first thing directly).

Sounds like you may have most of the hurdles out of the way Dan.
It might be time to start putting it together.

Sounds good to me! Wheres the donate button? haha

Made some progress today. Got administrative stuff to do, but it tends to take backseat to ongoing cases.

user said:

First, I'm thinking of a membership organization; there are too many regulatory hoops to jump through to do the "insurance" thing, and I would prefer that services NOT be tied to membership. Sort of like PBS - anyone can watch, people who feel like supporting the effort, do so. There will be some po'folks out there who'll get buzzed by the local System dudes unjustly, and will need help, and I want to be able to provide it, regardless of the defendants' ability to pay.

With respect to the selection process: it occurs to me that the best first-level filter would be referrals. If the organization gets referrals from the NRA, VCDL, or local attorneys, etc., that would suggest that at least one person has heard a description of the problem and decided that it's something we ought to consider. I don't know whether that ought to be a strictly-enforced policy (i.e., no services to people who contact us first thing directly).

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From your suggestion about outside reference it would almost seem as though those who might otherwise first call you to represent them will have no hope that they might be eligible for assistance (even if they are contributors) unless some outside source suggests that they be considered. Thus it would make sense to hire another lawyer instead of you. Is this the thought you were trying to bring across?

jmelvin said:

From your suggestion about outside reference it would almost seem as though those who might otherwise first call you to represent them will have no hope that they might be eligible for assistance (even if they are contributors) unless some outside source suggests that they be considered. Thus it would make sense to hire another lawyer instead of you. Is this the thought you were trying to bring across?

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Not sure how that comes across... I didn't see it that way. However, the problem for any organization providing free or discounted legal services to a particular group of people is that there are always way too many applicants for the resources available, and a good many of those applicants will be looking for free stuff irrespective of the organization's mission. I'm thinking that having some external "filters" would reduce the load of stuff that has to be considered, thought about, and investigated. I don't want to be making decisions on a particular case without a good factual basis that we've actually looked into and thought about. That's a lot of work, even for one case.

As to the specific question, I'm thinking that, if a prospective client has the money to hire someone else, can find someone in whom he has confidence, and who is willing to take him on as a client, that person should do what he thinks is in his own best interest. You're right that I am assuming that the provision of services and the provision of money should be completely de-coupled. There is that organization in Washington I mentioned before, "Armed Citizens Legal Defense" or whatnot, which is a membership organization that provides as a benefit to its members, the opportunity for an immediate transfer of funds to an attorney in the event the member were charged with a crime as the result of a defensive shooting. I'm not trying to replicate or compete with that organization.

I see this as a way of fighting the injustice I see in the system.

There's nothing I can do about getting the law enforcement folks to work harder or more diligently to find the "real bad guys" (or in O.J.'s case, the "real killer"); they do a pretty good job overall, but many of them are humans and don't want to have to work or think any harder than most other humans do. They tend to look where the light is best, and find whatever happens to be easiest to find. If your spouse is found dead under suspicious circumstances, you're probably going to be hounded until you either confess or do your own investigation to find the real killer. Once they've decided you're probably the bad guy, they're not going to look in any other direction. That's just human nature.

What I think I can do something about is the multitude of people who are not actually guilty of crimes but who are convicted anyway because of the way the system takes advantage of people who either attempt to represent themselves or who have uninspired, pedestrian attorneys. Also a bunch of humans who don't want to have to work any harder than is strictly necessary. I think lawyers, as a group, are more willing to think, and more intellectually honest, and more objective, than the population as a whole, but that ain't sayin' much.

So the mission is to identify people who are getting screwed by the system in some way, and make the system work the way it's supposed to for those people. And, in particular, to identify socially responsible, law abiding, and self-disciplined individuals who are getting screwed over because of something related to their desire to exercise their God-given right to defend themselves, their homes, and their familes.

I agree with everything you just said Dan, but it really goes a tad deeper.

Many, many, potential problems could be avoided in the first place with proper handling on the spot. How many people actually talk to the police to try and explain a situation, and create a case for the cop.

I have a dashcam video of the Roanoke fiasco, where the cop tells the fellow he doesn't have the right to remain silent unless he's committed a crime.

You've been more than generous with your business cards and accepting clients without payment until it's needed. A Membership card with instructions would very likely avoid the need for anything more than a followup consultation.