A Case Study of the Federal Judiciary\u27s Role in Court-Ordered Busing: The Professional and Personal Experiences of U.S. District Judge Robert R. Merhige, Jr.

Judge Robert R. Merhige, Jr. assumed the office of federal district judge for the Eastern District of Virginia in August of 1967. Upon discovering that federal judges had lifetime tenure, Merhige\u27s father advised: Take the job. You\u27ll live forever. Neither the elder Merhige nor any observer could have foreseen the turbulence that would engulf Judge Merhige\u27s life on the bench. Two weeks after his appointment, Merhige was faced with government efforts to silence militant black leader H. Rap Brown. Soon thereafter Merhige confronted numerous civil rights and anti-war issues, gaining some immediate notoriety as the first federal judge to declare that the Vietnam conflict was a war within the meaning of the Constitution. Throughout his twenty-year career, Judge Merhige has attracted national attention with a docket full of landmark cases. A small sampling includes the Kepone pollution case, in which Merhige imposed the largest recorded criminal fine under federal anti-pollution laws; the Westinghouse Uranium case, in which Merhige became the first federal judge to hold court outside the United States; and the still pending bankruptcy proceedings centering around the Robins Pharmaceutical Company, manufacturer of the Dalkon Shield. A forthcoming authorized biography recounts the highlights of Judge Merhige\u27s controversial career. Excerpted in this article are two chapters dealing with the most notorious and turbulent period of Merhige\u27s tenure. Merhige\u27s candid reflections upon school integration and court-ordered busing reveal a major participant\u27s perspective of a dramatic stage in this country\u27s history

The Road to Exclusion is Paved With Bad Intentions: A Bad Faith Corollary to the Good Faith Exception

This Article will demonstrate that a search pursuant to a properly issued warrant may trigger application of the exclusionary rule if: (1) there is police bad faith in delaying execution of the warrant, and (2) such bad faith results in additional intrusions upon individual privacy. Although this Article is limited to a consideration of bad faith in delaying the execution of search warrants, the discussion points the way to application of the concept of bad faith to all aspects of fourth amendment jurisprudence

Admissibility of Evidence in Virginia: A Manual for Virginia Trial Lawyers, 2nd Edition

This book compiles statutory and case law dealing with the admissibility of evidence. An alphabetical format keyed into subject headings is utilized in order to facilitate quick, accurate access to cases and statutes which answer most basic evidentiary questions. We have also tried, where feasible, to use the language of the court or statute rather than our own interpretation. We believe this approach most usefully serves the purposes of providing a quick, authoritative answer. The format does not allow for extended theoretical discussion, nor does it purport to be an exhaustive survey of all relevant cases. The reader is encouraged to consult the primary sources himself. We have facilitated use of the primary sources by providing complete citations, including the specific page upon which a quotation appears. The book focuses upon issues concerning the admissibility of evidence as opposed to issues concerning underlying substantive elements of a particular cause of action. On occasion, however, we have felt it necessary to include material, such as the elements of particular crimes or tort causes of actions which, while not technically matters of evidence, deal directly with the admissibility of evidence

Watching the Watchers

This article focuses on the threat that increasingly sophisticated technology can pose to individual privacy. However, the author would like to provide the “yin to the yang” and point out the obvious: technology itself is not the culprit, because it is a double-edged sword, a tool that can be used to protect as well as invade privacy. We need not endorse the single-minded approach of WikiLeaks to recognize the benefits that occur when technology discloses government cover-ups or simply provides accurate information where none previously existed

Judicial reflections upon the 1973 uprising at Wounded Knee

This essay presents a view of Wounded Knee from the perspective of federal district judge Robert R. Merhige, Jr., who was part of a judicial task force sent to South Dakota in 1973. Viewing Wounded Knee from the perspective of a trial judge discloses the social forces underlying Wounded Knee and also provides insights into the role of a trial judge in politically sensitive cases

In Memoriam: Robert R. Merhige, Jr.

It is difficult to write about Judge Merhige in an academic journal. His greatness lay not in formulating abstract legal doctrine, but in applying the law to real life situations. When I began researching his biography in 1986, the most pleasant part of the process was personal interviews with the Judge spanning two and a half years and filling some fifty audio tapes. Unfortunately, I was never able to capture his humanity in print and may have done him a disservice by writing his biography the way a law professor does-focusing on the intellectual aspects of his famous cases, rather than on the man himself. I will not repeat that mistake here. Although I have provided the context and background for the Judge\u27s comments, this time I will let his words speak for themselves

Annual Survey of Virginia Law: Virginia Criminal Procedure

Reversing a recent trend, the past year was relatively quiet with respect to search and seizure cases. The United States Supreme Court decided two cases dealing with open fields and the curtilage of a dwelling. Dow Chemical Co. v. United States held that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the curtilage of a dwelling for purposes of aerial surveillance; such an industrial complex is more comparable to an open field and as such is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras. In California v. Ciraolo, the Court explained that even areas within the curtilage are not protected from all police observation. While erecting ten foot fences around the defendant\u27s backyard may have shielded the yard from ground surveillance, the fences did not protect the yard from aerial observation

Post-Whalen Double Jeopardy in Virginia

The constitutional prohibition against double jeopardy serves three distinct purposes: (1) prohibition of a second prosecution after acquittal; (2) prohibition of a second prosecution after conviction; and (3) prohibition of multiple punishments for the same offense. This article addresses the problem of defining the same offense, and specifically focuses on the application of the Blockburger test in light of Whalen v. United States

Implied Hearsay: Defusing the Battle Line between Pragmatism and Theory

A return to the emotionally neutral fundamentals of the hearsay rule presents the clash between pragmatists and academicians in a setting which is free of the value laden considerations surrounding child abuse cases. This clash arises at the most fundamental level, that of defining hearsay. Many academicians favor a definition of hearsay as evidence whose reliability depends upon the veracity of someone not subject to cross-examination. Pragmatists (particularly trial lawyers) often find this formulation awkward and prefer a concise definition of hearsay as an out-of-court statement offered for the truth of the contents. The choice of definitions can make a profound difference with respect to: 1) assertions -implied within conduct; and 2) assertions implied within oral or written statements

A Case for Jury Determination of Search and Seizure Law

In a criminal case the option to return a general verdict of acquittal invests the jury with the raw power to nullify many legal determinations, including the trial judge\u27s ruling that a search is constitutional. While courts grudingly acknowledge the existence of an extra-legal jury nullification power, courts do not recognize any jury prerogative to determine the lawfulness of a search. The United States Supreme Court\u27s discussion of the jury\u27s role in interpreting and applying the fourth amendment consists of one terse statement that the legality of a search is a question of fact and law for the court and not for the jury. In challenging that statement, this article draws a sharp line between de facto jury nullification power and the jury\u27s legitimate prerogative to determine law