"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, April 29, 2005

Our Fearless Leader

Virginia Governor Mark Warner is showing his stripes, racking up a record as the most felon-friendly Governor in Virginia history, restoring more felons' voting rights than any other governor. For those not familiar with Warner, he has made a career out of attempting to appear "moderate" enough to win election in this conservative state. Of course, every so often, the real Warner comes through. Stories like this will certainly dim his prospects for a national run of some type.

Not only is he a social liberal, but he is, predictably, an economic one also: "Charles W. Jarvis, chairman and chief executive of Virginia's United Seniors Association, today announced an aggressive "Mark Warner Lied" campaign to expose Governor Mark Warner's flip-flop on taxes.
'In October 2001, candidate Mark Warner said, "I will not raise taxes." In December 2003, Governor Warner proposed the biggest tax increase in Virginia's history. There's no way to deny it: Mark Warner Lied," Charlie Jarvis said.

The only consolation is that being a friend of felons and imposing the largest tax increase in state history will spare us from seeing him advance to higher office.

Wednesday, April 27, 2005

I missed a chance to have an interesting trial the other day when the defendant plead guilty to carjacking, abduction, and several firearms charges instead of going to trial. This 25-year old had been hanging out at a convenience store talking with the clerk, a motherly type in her late 50's. At closing he asked her for a ride home, she said no, he pulled a gun and said yes, and made her drive him all around the area, until he finally had her pull over, fired the gun into the ground and told her he was going to consummate their budding relationship. She cleverly told him that would be fine if he wanted to contract AIDS, because she had it. He then declined, and took the car, leaving her on the side of the road after throwing her cane out with her.

It would have been interesting because he had a psychiatrist ready to say he suffered from multiple personality disorder, or as they say nowadays, dissociative personality disorder. I had a psychiatrist lined up to opine that the defendant was perfectly sane (at least legally speaking) and that the other head shrink was too gullible in crediting the defendant's MPD symptoms. What I never understood about the defense was that the defense shrink was going to say that the defendant was not insane, just that he had MPD. Each "personality" was apparently legally sane. Would have been interesting to see what the court would have done with that.

This was one of those where I definitely was heading to a jury if he hadn't decided to plead guilty. Sympathetic victim, full confession, and a bad prior record (arson)... I'm salivating just writing this!

Friday, April 22, 2005

Habemus Papam

Benedict XVI. Although as a young priest and bishop, he was instrumental in helping along the "self-demolition" (Paul VI's term) of the Church, he has in recent years been the public face of a more conservative, if not traditional, brand of Catholicism, much to the consternation of the National Catholic Reporter and other liberals. Yet they need not worry so, for Card. Ratzinger never repudiated the novelties pushed in the name of the Council. In fact, it appears that we may be in for more of the same in that regard.

Apparently, the harshest indictment the radicals can draw up against him is this (from the linked article above):


Theologians disciplined, such as Fr. Charles Curran, an American moral
theologian who advocates a right to public dissent from official church
teaching; Fr. Matthew Fox, an American known for his work on creation
spirituality; Sr. Ivone Gebara, a Brazilian whose thinking blends liberation
theology with environmental concerns; and Fr. Tissa Balasuriya, a Sri Lankan
interested in how Christianity can be expressed through Eastern concepts;
Movements blocked, such as liberation theology and, more recently, religious
pluralism (the drive to affirm other religions on their own terms);
Progressive bishops hobbled, including Archbishop Raymond Hunthausen of
Seattle, reproached by Rome for his tolerance of ministry to homosexuals and his
involvement in progressive political causes, and Bishop Dom Pedro Casaldáliga of
Sao Félix, Brazil, criticized for his political engagement beyond the borders of
his own diocese;
Episcopal conferences brought to heel on issues such as inclusive language and their own teaching authority;
The borders of infallibility expanded, to include such disparate points as the ban on women’s ordination and the invalidity of ordinations in the Anglican church.

Not exactly the stuff of another Pius X. But it will be interesting to see if he continues to be as agressive as Pope as he was as a Cardinal. Here's a neat, accurate mini-bio.

May God grant him courage to fulfill his primary mission as Pope: "tradidi quod et accepi" (What I have received, I have in turn passed down.) In fact, that is why the papacy is the most "conservative" institution in the world. The Pope's job is simply to pass on the received body of doctrine intact, by defending it, by propagating it, by conserving it in every way undiluted.

Thursday, April 21, 2005

Thoughts from Gettysburg

Having just returned from an outing with my boy scout troop to Gettysburg, my thoughts turned to the causes that impelled those brave Confederates to the separation. One cannot walk the very path of Pickett's charge without wondering why men would willingly undertake such an effort... and of course, living in Richmond, where the war of Northern Aggression is never really over, one is always reminded of that great and bloody struggle. Growing up in the North we received the orthodox (i.e., victor's) teaching on the Civil War and its cause, slavery, according to this view. Making slavery the issue, as Lincoln realized and then exploited, gives a moral patina to a venture which fundamentally altered our form of government from a limited, federal republic, to a democratic union. This represented a revolutionary overthrowing of the original understanding of our country's founders.

Here, for example, is a portion of Virginia's declaration ratifying the federal constitution:

"We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will...."

As is plainly evidenced by the emphasized text, Virginia expressly reserved the right to withdraw from the Union as a condition of her entry into it. Virginia was not alone in this view, and indeed it was not a Southern issue only.

The New York ratification stated:

"That the powers of government may be reassumed by the people whenever it should become necessary to their happiness, that every power, jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution."

Rhode Island also adopted this language in her ratification, stating that "the powers of government may be reassumed by the people, whenever it shall become necessary to their happiness."

It was a fundamental understanding of our founders that we were to be a federal, not a national union. Yet Lincoln by force of arms destroyed the system of government agreed upon by our founding fathers, and by military force alone imposed a national government on the people.

None of which is to support or defend slavery, which was an abomination... my own belief, in fact, is that the South was laid low and the Constitutional order changed for the worse in part as a punishment for the sin of slavery.

In that sense, the South must bear the moral blame for the consequences of the War, if not for its causation.

Tuesday, April 12, 2005

The cult of personality

The overheated hype about the Pope's funeral continues, as Michael Novak gushes about JPII that "he may be the one man most like Christ in the whole history of the papacy." What nonsense. John Paul II himself would scorn such rhetoric. That he was personable, humanistic, and warm does not mean, as Novak urges, that he should be acclaimed John Paul "the Great," as if he were another Gregory the Great or Leo the Great. Those heroes were not "Great" because of their media and PR skills. They were not "Great" because they refashioned the Church in order to make it, as Novak claims, "humanism's church."

Leo, just as an example, was not concerned with "dialoging" with the enemies of the Church, as this excerpt from the Catholic Encyclopedia illustrates:

Leo's chief aim was to sustain the unity of the Church. Not long after his elevation to the Chair of Peter, he saw himself compelled to combat energetically the heresies which seriously threatened church unity even in the West. Leo had ascertained through Bishop Septimus of Altinum, that in Aquileia priests, deacons, and clerics, who had been adherents of Pelagius, were admitted to communion without an explicit abjuration of their heresy. The pope sharply censured this procedure, and directed that a provincial synod should be assembled in Aquileia, at which such persons were to be required to abjure Pelagianism publicly and to subscribe to an unequivocal confession of Faith (epp. i and ii). This zealous pastor waged war even more strenuously against Manichæism, inasmuch as its adherents, who had been driven from Africa by the Vandals, had settled in Rome, and had succeeded in establishing a secret Manichæan community there. The pope ordered the faithful to point out these heretics to the priests, and in 443, together with the senators and presbyters, conducted in person an investigation, in the course of which the leaders of the community were examined. In several sermons he emphatically warned the Christians of Rome to be on their guard against this reprehensible heresy, and repeatedly charged them to give information about its followers, their dwellings, acquaintances, and rendezvous (Sermo ix, 4, xvi, 4; xxiv, 4; xxxiv, 4 sq.; xlii, 4 sq.; lxxvi, 6). A number of Manichæans in Rome were converted and admitted to confession; others, who remained obdurate, were in obedience to imperial decrees banished from Rome by the civil magistrates. On 30 January, 444, the pope sent a letter to all the bishops of Italy, to which he appended the documents containing his proceedings against the Manichæans in Rome, and warned them to be on their guard and to take action against the followers of the sect (ep. vii).

[end quote]

Does this remotely resemble the defense of the Faith given by JPII? It is surely a good thing to be personable and warm and friendly. But is it our highest aspiration for the leader of the Catholic Church? I would prefer to have a cold, aloof, unfriendly pope who would set to reforming the many ills of the Church and firmly state for the world the saving doctrines of our Church, rather than a glad-hander who did not want to offend, or felt that the only way to present our message is by admixing it with secularity.

Monday, April 11, 2005

More on Juries

There is a persistent unstated (and sometimes stated) sentiment among many defense attorneys that prosecutors fear juries. I find it odd, since just as with defendants (I would imagine), it depends on the strength of my case. Defendants often want juries when I have a weaker case. Thus, when I recently tried a robbery with a two-time convicted felon defendant and two-time convicted felon victim, where the only witnesses to the robbery itself were the two men, I lost in a jury trial. The defendant knew that although a jury would have hammered him if he had lost, he had a much better shot at sowing some reasonable doubt with a jury than with a judge (who would have been more comfortable resolving credibility against the defendant after looking at other evidence like flight and lack of a prompt and contemporaneous assertion of self defense by the defendant). In that case, I turned down a defense offer of 3 years to pull on a lesser charge.

On the other hand, my defendant from last week was already convicted in another jurisdiction and awaiting sentencing. My case here was fairly strong, but the defendant apparently reasoned he had little to lose by making a jury hear the case. A judge would surely convict him, and since he was already facing some 25-35 years in the other case, why not roll the dice and hope for an acquittal or at least for a hung jury?

And if it makes my colleague feel any better about jury sentencing imposing a burden on the right to trial by jury, the juror who contacted me about my case last week mentioned that he regretted that such a high sentence had to be imposed (as Ken has pointed out, juries have to impose at least minimums in certain felony classes). When I told him about all the other crimes the defendant had committed (but which the jury did not hear about), his mind did not change. When I told him what the defendant had done in his prior felony conviction (the one the jury was able to consider at sentencing[he purse-snatched an old woman, pushed her down, and broke her arm in three places, leaving her permanentely impaired]), this juror still told me he thought the minimums were excessive in this case. Remember: this was an armed robber who forced two employees at gunpoint into a back room and robbed the safe, putting the gun to the head of one of the victims, who said he was sure the defendant was going to shoot him.

So Ken can take some comfort that his point about juries wanting to modify and even nullify enjoys some anecdotal support from jurors themselves.

As for me, I wonder if we over-charge sometimes in serious cases. The juror I spoke to, when I asked him bluntly if he thought we had overcharged, said he (and the other jurors) thought we had-- they were especially baffled by having two robbery counts (one for each victim) and the related use of a firearm charges even though it was only one robbery "event." We also had charged two abductions (the victims were forced from one point in the store into the back room). The jury actually acquitted on those (they did not understand how it constituted an abduction to force someone to move just a short distance, a point I did not spend any time on in my closing argument).

So despite my pleasure at the conviction and the sentence, I will be taking a hard look at whether I need to charge every conceivable felony just because it may be legally and factually proper. The temptation sometimes with a serious crime is to do so at least in part to demonstrate to the victims and to the community that we will prosecute the case as vigorously as possible. It may well be that our credibility with the jury could be enhanced by winnowing out the less obvious charges. On the other hand, the jury will never know that we COULD have charged more than we did, but held back because we're such darn fair guys.

But every jury is different. The last robbery/abduction jury I had (48-year sentence), the jury afterwards regretted dismissing the abductions (they acquitted because they were confused by the instruction). The facts in that case and the one last week were virtually identical, i.e., the abduction was pretty closely related to the force used in the robbery.

A Sign of Contradiction?

At the risk of being merely contrarian (who, me?), I'd offer an alternative view on the recent death of Pope John Paul II. First, I must state clearly that as a traditional Catholic, I acknowledge the papacy as the seat of the Vicar of Christ, the man to whom Our Lord entrusted the power of loosing and binding sins; I profess total belief in the infallibility of the Pope when speaking ex cathedra (that is, in the most solemn and formal manner) on matters of Divine Faith and morals. In short, I believe all that the Church teaches about the office of Peter.

Moreover I am profoundly grateful for his allowance of the traditional Latin Mass, and at my parish, we live the Catholic faith as it was lived prior to the revolution of Vatican II, only because of the generosity of John Paul II in allowing liturgical tradition to exist legally.

It is this strong belief, in fact, which leads me to wonder at the adulation and instant sanctification associated with the funeral of the Pope. If the Jews reverence him, if the Muslims praise him, if the Protestants acclaim him, if the secularists celebrate him, has he witnessed as he might have? I realize he was the most travelled Pope, and was seen by more people than anyone in the history of the world, perhaps. But was this his role? Was this his function as Pope?

Now a man is often best judged by the enemies he accumulates. In this light, the Pope indeed earned much criticism for upholding things he had no choice BUT to uphold. No Pope would ever approve of contraception, or abortion, or divorce and remarriage. The Holy Ghost would not permit it. This is what Catholics believe. So for the Pope to uphold these very basic moral tenets was not particularly noteworthy. It was a baseline for his office as Vicar of Christ. So yes, he did incur the enmity of many who wanted him to modify these teachings.

Yet look at the adulation given him in death. How is it explained? Simply put, the Pope was a modern man, a liberal man, a man who wanted to open the Church to everything modern without actually surrendering core doctrines which he could not, by reason of Divine protection, abandon.

Thus, the Pope, who was in the progressive camp as a Council father at Vatican II, continued the internal revolution in the Church, expanding/solidifying the liturgical role of women; expanding/soldifying a variety of liturgical abuses; doing nothing beyond exhortation to stem the tide of marriage annulments or of clerical homosexuality (particularly by reforming the seminaries); engaging in a scandalous form of ecumenical activitiy which is in no way directed at converting men to the Faith, but appeared to be just an exercize in humanism and public relations; his attachment to particular secular liberal policy issues, giving them the veneer of religiosity, such as his support of liberal immigration and his visceral hatred of capital punishment; apologizing for past "sins" of the Church, some of which, like the Crusades and the Inquisition, were at least partly good and necessary.

The list could go on, indeed, no one I've read denies that this Pope was solidly a man of the Council; as such he was a man of revolution, for that is what the Council became (whether intended by the Council itself or not is a separate question).

One must wonder what the world's reaction would have been if the Pope had been a true sign of contradiction, boldly proclaiming undiluted orthodox Catholicism, rejecting syncretist-leaning ecumenism, reforming the seminaries, cracking down (i.e., suspending) dissident Bishops and priests; ending the annulment scandal; in short, behaving like a Pope of old. Would there have been the universal adulation? Would Kofi Annan, Robert Mugabe, Bill Clinton, and the Iranians have shown up at St. Peter's for the funeral of a Pius IX or Pius XII?

I worry when the world embraces him who should be the exemplary sign of contradiction. Requiescat in pace, and may the Holy Ghost send us a strong, reforming Pope (another Pius, perhaps?).

Friday, April 08, 2005

Client control, part two.

Well I for one am a strong believer in trial by a jury of one's peers. I tried a defendant this week for robbery and firearms charges. He insisted on a jury, much to the dismay of his court-appointed attorney. He had been on a spree, robbing the same auto parts franchise in my jurisdiction and three other nearby jurisdictions, all within 13 days. Each time he would go into the store near closing time, go to a remote aisle, then don a bandana, pull out a pistol and force the employees to the back room where he would force them to open the safe. He'd then take the money and flee.

He undoubtedly thought he had a chance at acquittal since he had been acquitted in a neighboring jurisdiction by a jury even after they heard about all the other robberies ("signature crimes" evidence, gotta love it!). In my jurisdiction, the judge would not allow me to put on the signature crime stuff. My 2 victims on separate days and out of each other's presence, had picked the defendant out of the third photo lineup they had seen. In other words, they had seen 18 pictures in three separate spreads, and only in the last spread did they both immediately ID the defendant.

Jury verdict: 43 years. The offer on the table at one point: 11 years.

I know my erstwhile colleague and sometime opponent Ken Lammers thinks that the right to a jury is compromised by the jury's power to recommend a sentence in Virginia. But what he fails to consider is that the traditional function of the jury at common law was not only to decide guilt, but also to reflect the community view of the appropriate punishment. As Judge Morris Hoffman argues in this fascinating study of the issue, jury sentencing enjoys an excellent pedigree in our customs and traditions:

Most states continued the mixed colonial tradition of jury sentencing. In
fact, from 1800 to 1900, juries imposed sentences in noncapital cases in about
half of all the states. A handful of other states permitted juries in noncapital cases
to make sentencing recommendations. Thus, for the entire nineteenth century, sentencing schemes with no input from the jury were the American exception, not the rule.

[end quote]

At any rate, surely if you request a jury to decide guilt or innocence, it is only fair to the Commonwealth that the same jury of your peers recommend a sentence. Note: recommend. For that is all the jury does in Virginia. The trial court has the full authority to take my hard-won 43 year sentence and reduce it to time served. Will the court? Not likely, but it does happen, and has happened to me in the past, much to my chagrin.

Of course, every trial lawyer is acutely aware that a jury is often a crap-shoot situation; unreliable, unpredictable. I just got a call from one of the jurors on my case and will post some observations soon on what a trial looked like from his perspective.

Monday, April 04, 2005

Good lawyer/bureaucracy story:

A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted if he could prove satisfactory title to a parcel of property being offered as collateral. The title to the property dated back to 1803, which took the Lawyer three months to track down. After sending the information to the FHA, he received the following
reply:
(from actual letter)
"Upon review of your letter adjoining your client's loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin."
Annoyed, the lawyer responded as follows (actual letter):
"Your letter regarding title in Case No. 189156 has been received. I note that you wish to have title extended further than the 194 years covered by the present application. I was unaware that any educated person in this country, particularly those working in matters of real property, would not know that Louisiana was purchased by the U.S. from France in 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France, which had acquired it by Right of Conquest from Spain.
The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Isabella.
The good queen, Isabella, being a pious woman and almost as careful about titles as the FHA, took the precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus' expedition. Now the Pope, as I'm sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana.
God, therefore, would be the owner of origin and His origins date back, to before the beginning of time, the world as we know it, AND before the
FHA.
I hope you find God's original claim to be satisfactory. Now, may we have our loan?"
The loan was approved.

Friday, April 01, 2005

By way of Dappled Things comes this story about the latest trick for dope heads: a fake penis with a bag attached for dispensing fake urine to defeat drug testing. For those who don't know, judges often order random drug testing of criminal defendants and convicts. The bad guys often have creative ways to avoid "dirty urines," as a positive test for illegal drugs is called.

You have to wonder about the pothead who emerged from the cloud of smoke and his dope-induced stupor long enough to think of this and market it. A real job, staying off the weed, a shower and haircut and you'd have a productive, decent citizen.