The Livesay & Myers Blog
Any person taken to court has certain rights that must be respected. The Fifth and Fourteenth Amendments of the U.S. Constitution require that neither the federal government nor individual states deprive anyone of life, liberty or property without “due process of law.” At its most fundamental level, due process requires the defendant be served with notice that a case has been filed against them, and given the opportunity to appear before the court to defend themselves.
The increasing mobility of individuals in our society has added complexity to the issues of due process. Pioneers took six months to travel across the country on the Oregon Trail in the mid-1800s, risking disease and death along the way. Today, someone can load up their belongings in a U-Haul truck and relocate across the entire country in about a week. This extreme freedom and ease … Read More »
As I detailed in Chaidez Case Limits The Reach Of Padilla and Post-Conviction Relief And Immigration Consequences, the area of post-conviction relief is a hot topic for non-citizens living in the U.S. Generally speaking, post-conviction relief is the means by which one convicted of a criminal offense seeks help in the form of a conviction modification or even the vacating of the conviction itself. The result in my Virginia Supreme Court case, Commonwealth v. Morris, unfortunately reduced the time in which one may try to collaterally attack a conviction in a Virginia court.
What about the issue of elected officials modifying a conviction in some manner? Is this a plausible means of relief in Virginia and beyond? In Sharma v. Taylor et. al., we will see exactly how a federal court views post-conviction relief in the naturalization context. My client in this case … Read More »
As the calendar turns to September and football season begins anew, children all over the country have returned to school. For them, the carefree days of summer give way to the structured rigors of academic pursuits. But their parents may enjoy the respite that school hours provide.
With the start of a new school year upon us, perhaps it’s a good time to revisit some of the most contentious issues that separated or divorced parents grapple with when their children are in school.
Information Sharing. A classic area of animosity involves the use of children as a conduit for information between parents, which should generally be a no-no. This places your child squarely between you and your ex-spouse, and will lead to unintended negative consequences. There should be no need for Jimmy to tell mom about the parent-teacher conference next week, because … Read More »
The words “aggravated felony” can be overwhelming to see if you are in removal (deportation) proceedings. Aggravated felony is an immigration term used to reference a particular type of state or federal crime. Although the word “felony” is included in the term, the underlying criminal conviction could be classified as a misdemeanor and still qualify as an “aggravated felony.”
The following are some of the criminal convictions which can be qualified as aggravated felonies in immigration court:
Murder, rape, or sexual abuse of a minor;
Drug or firearm trafficking;
Any theft or violent crime for which the defendant received a sentence of at least one year (including any suspended sentences);
Any crime involving fraud or deceit where the loss to the victim was over $10,000; and
Any conviction for attempt or conspiracy to commit an aggravated felony.
As discussed in our discussion on Deportation or Removal, there are various avenues available … Read More »
The relationship between mental health and the commission of crime has garnered major headlines in the last several years. High profile horrors such as the shootings at Virginia Tech and Sandy Hook revealed that the perpetrators of these offenses possibly suffered from very serious mental health issues. Virginians also witnessed the tragic incident involving State Senator Creigh Deeds and his son, who suffered from mental health issues.
Those were each very serious incidents involving the tragic loss of life. But what about the petit larceny or disorderly conduct committed by someone who suffers from a mental illness—the cases that don’t make the headlines?
Prince William County, Virginia is one jurisdiction that is seeking to change the way the justice system operates for people suffering from mental illness. Prince William has established a special docket, known as DIVERT, in its general district court. … Read More »
Parents sometimes unintentionally sabotage their own custody cases. Sometimes the sabotage happens before the parent retains counsel, and other times it happens after an attorney is involved. Here are four pitfalls to avoid if you want to win your custody case:
1. Failure to cooperate with all attorneys involved. If you are represented by an attorney, it is extremely unlikely that you will speak to opposing counsel, except at trial. However, you will need to interact with your own counsel and possibly one other attorney—a Guardian ad Litem (GAL). It is imperative that you are cooperative and honest with both these attorneys.
Hopefully, you hired your attorney because he or she is competent, knows the law, and impressed you. It is important to listen to your attorney’s advice. If you believe you are not receiving good advice then seek a second opinion before you disregard your attorney’s advice … Read More »
One of the key issues for defense attorneys at trial is limiting the focus of the prosecution’s evidence to evidence of the offense charged, and preventing the admission of any evidence of other prior charges, convictions, or bad acts of the defendant. This task is made somewhat easier in Virginia by our longstanding rule against evidence being admitted solely to prove the general criminal propensity of the defendant.
Rule 2:404 of the Virginia Rules of Evidence states that “evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” We have that rule to protect defendants from the inference that results from the entry of evidence of prior bad acts: that the defendant has a propensity to commit criminal acts.
Virginia Rule 2:404 protects defendants by generally prohibiting that … Read More »
Summertime! It is the time of year where many of our military families are going through their permanent change of station (PCS) moves, and many of our civilian families are moving before the new school year begins.
What does relocation mean for separated or divorced parents who are co-parenting a child in Virginia? The juvenile and domestic relations district courts of Virginia will examine the best interests of the child in each case by applying the statutory factors of Virginia Code Section 20-124.3; but a relocating parent has a significant burden beyond those factors.
Where there is a current court order in place, an impending relocation is always considered a material change in circumstances which allows the court to re-examine the facts of the case.
Unfortunately for the parent hoping to relocate, the current trend of the Virginia Court of Appeals in the … Read More »
When a couple decides to separate and pursue a divorce, there are countless questions and issues that can arise. However, there are also some difficult questions that await the teenage child or children of divorcing parents. Perhaps the most difficult question to answer is: “Who do I want live with after Mom and Dad are divorced?” The answer to this question can go a long way towards determining the final custody and visitation arrangement for that child.
In making a custody or visitation determination, a Virginia court will consider what is in the best interests of the child, according to the factors laid out in Virginia Code Section 20-124.3. One of the most important factors listed in that code section is: “The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience … Read More »
In the moments after being arrested and charged with a criminal offense, many defendants are singularly focused on one question: when will they get out of jail?A lot of confusion exists among defendants and their families over the bond/bail process and what can and cannot be done by the defendant, their attorney, and the court. A basic understanding of how bond works in Virginia can alleviate a lot of that confusion, and place defendants and their loved ones in the best position going forward.
To begin, while they are often used interchangeably, the terms “bail” and “bond” do have different meanings in Virginia:
Bail is the pretrial release of a person upon certain terms or conditions set by a judicial officer.
Bond is the actual posting or promise to pay a specific sum as ordered by a judicial officer to assure a defendant’s compliance with the … Read More »