"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

Tuesday, August 30, 2005

that's EVERYBODY'S store

I hope the left in this country is happy that after many years of telling people how oppressed they are by "the system," some folks are acting to alleviate their oppression. How? By looting stores in the aftermath of Hurricane Katrina:
One man, who had about 10 pairs of jeans draped over his left arm, was asked if he was salvaging things from his store."No," the man shouted, "that's EVERYBODY'S store."Looters filled industrial-sized garbage cans with clothing and jewelry and floated them down the street on bits of plywood and insulation as National Guard lumbered by. Mike Franklin stood on the trolley tracks and watched the spectacle unfold." To be honest with you, people who are oppressed all their lives, man, it's an opportunity to get back at society," he said.
Oh yes, that store owner who has been oppressing this bum, and the customers who will pay higher prices to make up for his theft... he's gotten back at them alright.

Hopefully the rumors I've heard are true and martial law will be imposed to protect the lives and property of the victims of this tragic storm until civil order can be fully restored. As for the jackals who are using this opportunity to ransack their city, I hope the National Guard receives orders allowing them to shoot looters, like they were authorized to do after the 1906 San Francisco earthquake.

UPDATE: According to this story, "Mississippi Governor Haley Barbour said looting will not be tolerated in his state. 'I have instructed the highway patrol and the National Guard to treat looters ruthlessly,' Barbour said. 'Looting will not be not be tolerated and rules of engagement will be as aggressive as the law allows.'" According to WDSU in New Orleans, martial law has in fact been declared in part to control looting.

Friday, August 26, 2005

It's so unfair, dude!


Seems that some folk are upset that the 8th U.S. Circuit affirmed a sentence for a convicted marijuana dealer to 100 months in prison. "Talk Left" and commentators to his post assert that the defendant in the case, Robert Chauncey, was victimized by "reefer madness" on the part of the court, and Doug Berman insinuates that the Court was high when they railroaded this poor miscreant. Mr. Berman, Talk Left and Injustice Anywhere claim that all poor ole Robert was doing was scoring some dope for his friend who has MS. And the big bad meanies in the DOJ put him away for 8 years just for a couple of ounces of weed!

As is usually the case with the hysterical fringe, the facts get in the way so they don't mention them. Seems ole Chauncey drove his girl friend (the one with MS) to a house where she scored $240 worth of dope, with the intent that she would keep some, he would keep some, and he would sell the remaining ounce later that day to some third person. The two dopers were driving down the highway (no doubt listening to the Grateful Dead on the radio) when they're stopped by a South Dakota Highway Patrol officer for expired tags. Bummer!

In the car, the trooper finds inicia of drug distribution: a set of scales and plastic baggies. In an interview, Chauncey admitted that he and his girl friend had previously sold marijuana bought with proceeds of her welfare check.

At trial, a jury which had the option of convicting of lesser included offenses of aiding and abetting distribution or even simple possession, convicted him of distribution of marijuana. At sentencing, Chauncey's record was found to consist of prior convictions for distribution of marijuana and involuntary manslaughter. He also had "three prior convictions for driving while under the influence, a conviction for failure to appear, a revocation of probation in 2002 '[d]ue to a plethora of noncompliance,' and commission of the instant offense within two years following his most recent release from custody."

The court denied Chauncey’s motion for downward departure and sentenced him to a term of 100 months’ imprisonment, the low end of the guidelines for this career criminal.

Eight years for a multiple-convicted drug dealer with a conviction for a crime of violence on his record? Sounds to me like the Court's critics are the ones who have been firing up their bongs: since the judge had to consider the guidelines, and sentenced at the low end, it's hard to see how the sentence can be characterized as unreasonable, much less "cruel and unusual" (since it was below the ten year statutory maximum).

Now you know the "rest of the story." The case is here if you want to see for yourself.

POST SCRIPT: Check out the comments to Berman's post for an interesting give and take on the propriety of the sentence in this case.

Justice


Many thanks to Jay Anderson at Pro Ecclesia*Pro Familia* Pro Civitate for the Scriptural reference now added to the masthead... it gives a better idea of the type of Justice I'm concerned with-- not the mechanistic view of justice which I'm pretty sure is the ABA's-- that justice means following certain rules of procedure and if that's done, then even if the guilty go free, justice has been accomplished. No, I am more interested in Justice as defined by Aristotle as "a virtue which assigns to each man his due in conformity with the law.”

This larger view of Justice as rendering to each his due means that when the drug dealer goes free because evidence is suppressed, for instance, we of course recognize that the law has been followed, but Justice has not occurred since the wrongdoer has avoided receiving "his due." Those who want to be lenient to criminals or who think the "establishment" is largely corrupt want to push the idea of justice as following technical rules of procedure or evidence and hailing whatever comes out at the other end as justice. We acknowledge that such rules and procedures are important, but we also refuse to limit the concept of Justice to a mere legalistic ritual.

Thursday, August 25, 2005

New Study Undercuts Claim of "DWB"

From the DOJ's Bureau of Justice Statistics comes a new study on traffic stops by police which concludes:

"The likelihood of being stopped by police in 2002 did not differ significantly between white (8.7%), black (9.1%), and Hispanic (8.6%) drivers."

Also of note: "In 2002 the vast majority of the 45.3 million persons who had a contact with police felt the officer(s) acted properly(90.1%)."

Those are the seminal finding of the study. What caught some media coverage was the study's finding that "Black (10.2%) and Hispanic (11.4%) motorists stopped by police were more likely than whites (3.5%) to be physically searched or have their vehicle searched."

But the survey's authors concede that:
while the survey data can reveal these racial disparities, they cannot answer the question of whether the driver's race, rather than the driver's conduct or other specific circumstances surrounding the stop, was the reason for the search. The survey asked few questions about circumstances or driver conduct. For example, having drugs in plain view of police is a circumstance that would normally warrant a legal search of the vehicle. But since the survey did not ask drivers whether any drugs within plain view were in the vehicle, the analysis is necessarily limited.
Thus it seems that race is not really a factor in whether a vehicle gets pulled over by police. This is further supported by the very high percentage of people reporting that the police acted properly in stopping the vehicle.

I'm sure this will be disappointing news for some who constantly suggest that racial bias is pervasive in American policing.

Sentencing for Sex Offenders, cont'.

Apparently even after reviewing this information Prof. Berman at Sentencing Law and Policy believes we are treating sex offenders too harshly:
[H]igh-profile cases ... don't tell the whole story of sex offenders in America. They don't reflect the surprisingly good news: Sex crimes against children have dropped dramatically in the last decade. An online national sex-offender registry was launched in July. And recent research shows doctors can better predict which offenders may strike again....
Dramatic drop in cases.
Government figures show the rate of sexual assaults against adolescents ages 12
to 17 plunged 79% from 1993 through 2003, and the number of substantiated sex-abuse cases involving kids of all ages fell 39% in the same time period. [One expert], who has analyzed the data, sees multiple reasons for the decline: Greater incarceration of offenders, more therapy and use of psychiatric drugs, economic improvement in the 1990s and heightened public concern....
Treatment helps. Group therapy dropped the recidivism rate from 17% to 10%, according to a 2002 study that [anther expert] co-wrote. He studied 9,454 sex offenders in 43 states.
What these numbers indicate is that 1) tough incarceration policies work; 2) despite years of often intensive rehabilitation, there remain a hardened core of recidivists. It is entirely reasonable, in my view, for the legislature to take sterner measures to protect communities from these offenders. A ten percent recidivist rate for this type of offense presents an entirely unacceptable risk to the public. It is true that other crimes have higher recidivism rates. But it is one thing to sentence lightly for a property crime with a high recidivist rate, it is entirely a different matter to risk release of a sex-offender. If you are convicted of a serious sex offense (defined in the last paragraph here), you assume the risk that you will be sentenced as though you are one of the (at least) 10% who will re-offend, whether you are or not-- we cannot afford to assume otherwise.

Name Change


I've taken stock of how this blog has developed and decided to change its name. Originally I had thought that I would be commenting more on religious and social issues than law stuff, hence the religiously-influenced name "Confutatis Maledictis." As things have turned out, I find most of my interest in posting here centered on criminal justice issues.

So I am re-launching with the new moniker "Seeking Justice," which directly refers to the prosecutor's obligation not merely to convict people, but to "seek justice." In our system of justice, the prosecutor alone has the ethical duty to seek justice: the defense attorney's primary duty is zealously to represent his client; the judge's duty is impartially to guide the proceedings according to the law.

Seeking justice in my view is a two-fold concept for prosecutors. First, it means that we may never allow desire for a conviction to interfere with actual justice, which means that if we develop a well-founded belief in the defendant's innocence, we must abort the prosecution immediately.

Second, seeking justice means that if we are convinced by the evidence of the guilt of a defendant, we must zealously pursue every legal means of obtaining a conviction, and must endeavor to bring all the facts of a criminal offense to the light of day, notwithstanding the efforts of the defense to prevent the airing of those facts in a court of law.

I appreciate the links to this blog by fellow bloggers and "blawgers" and hope y'all will update your links to this site.

Monday, August 22, 2005

Charleston Loses a Great One

Ruben Greenberg, the chief of police in Charleston, S.C., has resigned. Check out this interesting summary over at Cerberus of this most unusual police official's career. Needless to say, you won't see too many chiefs of police advocating that businesses arm themselves. He was a great, innovative cop who showed that you don't have to be a politically correct, lowest-common denominator careerist to be a great leader.

Scout Trip

I took a long weekend last weekend to take my boy scout troop down to Charleston to visit Patriots Point, a park owned by the state of South Carolina, where there are four decommissioned ships berthed, including most impressively, the U.S.S. Yorktown:


A very cool trip: we slept on board and ate in the mess, toured a submarine, a destroyer, and coast guard cutter, a Vietnam base camp mock-up, and learned alot about the heroes who sailed the ships and flew the planes and kept everything running. We also took an excursion out to Fort Sumter, a moving experience. I highly recommend the trip, especially if you have children. If you don't, instead of staying on the hot ship (it reached almost 100 on Saturday) you can stay at any of the nice hotels on the Charleston waterfront area.

My scouts held up well, not surprisingly... they're the ones who took it to the ACLU last December (audio commentary available here at Concerned Women for America).

A Good Start


From the Republican candidate for Virginia Attorney General, Bob McDonnell:
Republican attorney general candidate Bob McDonnell proposed a mandatory
minimum 25-year prison sentence, followed by satellite tracking for up to life, for anyone convicted of a sex offense against a child. McDonnell said Thursday that he modeled his proposal on a new Florida law, which he said is the toughest in the nation. According to the Virginia Criminal Sentencing Commission, the median prison term for people convicted of sex crimes against children is 12 years. McDonnell said that is not long enough, noting that one-third of such criminals offend again within five years of their release.

Amen to that... the Democrat candidate, Creigh Deeds, according to the same article, "has proposed using satellite technology to track sex offenders, who would be arrested if they come within 100 yards of a school or day care center." But he joins with many lawyers in agreeing that we are already harsh enough with molesters: "His plan does not include longer sentences."

Via Ken at CrimLaw, who also throws out the idea of imposing life sentences with all but up to 25-years suspended, coupled with mandatory time for probation violations. He hopes that this would enable judges to sift out the less dangerous sex offenses from the worst ones. Of course the problem is that a judge might decide to give a more serious offender the typical average 12-year sentence. What McDonnell proposes, and I support, is giving mandatory 25-year sentences for offenders against children. I would go further and mandate life sentences for second offense child molesters. Judges simply cannot be trusted to protect society adequately in all such cases.

I would however, reserve these mandatory penalties for the more serious adult-child crimes: 18.2-67.1(1) (forcible sodomy of victim under age 13); 18.2-67.2(1) (object sexual penetration of victim under 13); 18.2-67.3(1) (aggravated sexual battery of victim under 13); 18.2-370 (indecent liberties with children under 14); 18.2-370.1 (custodial/supervisory abuse of child 14 or under); 18.2-361(B) (crimes against nature with family members), not for violations of 18.2-63 (the "statutory rape" statute, which adequately punishes for consensual sex with an underage female).

Thursday, August 18, 2005

In the Line of Duty

Some responses to my post about arming DAs in Alabama indicate that perhaps some folks don't understand that we get threats every so often from our "customers." This monument at the National Advocacy Center in Columbia, SC memorializes some of the prosecutors killed in the line of duty:



You can view the bio's of the fallen here (.pdf file). If I can get it to scan right, I'll post some of the interesting love letters I've received from those who are dissatisfied with my work against them on behalf of the Commonwealth. Now, 'bout that Sig...

Wednesday, August 17, 2005

Let My People Go?

Lawyers are not like the rest of humanity, thank God. Law professors are often even more detached from the people than "ordinary" lawyers. This one, a Mr. Berman over at Sentencing Law and Policy, bemoans what he sees as "criminal justice policy being unduly driven by headline-making anecdotes of horrible individual cases (even in other states) rather than by refined data-driven policy analysis. " The topic? Toughened sex offender laws being proposed in various states.

Apparently the fact it has been empirically demonstrated that these offenders are the least amenable to rehabilitation and the most likely to re-offend, is not enough "policy analysis" to convince the good perfesser. Certainly cases like this and this of sex offenders re-offending after going through the revolving door of the justice system might constitute part of the "policy analysis" that would lead state legislators to conclude that these monsters need to be dealt with more forcefully. Berman's complaint is that some states actually want to toughen sentences and keep a closer watch on released offenders. Horrors.

Why is it that certain lawyers and "academicians" want to prevent the people from protecting themselves and their children? Why are they more sympathetic to convicted sex offenders than to the hard working people who just want to ensure their kids' safety?

I'm sure Mr. Berman is a nice man (even if he does seem oddly biased in favor of convicted criminals-- he wants them to have voting rights even if the people disagree), but a foray out of the ivory tower might be in order.



Coming soon to a neighborhood near you?
(child molester Schwartzmiller and his coded-diary of child targets)




ADDENDUM: Kudos to Prof. Berman, who kindly responded to my criticism on his blog, Sentencing Law and Policy. The gist is that he believes research is tending to show mixed results for recidivism, with a small core of hard offenders re-offending, while many offenders potentially respond to rehabilitation. Assuming for the sake of argument that some of these offenders can be rehabilitated, it does not change the thrust of my argument, which is that public safety concerns are paramount since the crimes these offenders commit are particularly destructive. Therefore, unless and until we can identify with beyond-a-reasonablee-doubt certainty that someone will not re-offend, the risks of failing to hobble these men is too high. Moreover, rehabilitation is only one aspect of sentencing. Another is punishment, and certainly it is reasonable to advocate for more severe punishments for these offenders regardless of their amenability to rehabilitation.

As I've said before, I do not support castration, but I do support life imprisonment for second offense abusers (I also hope that some day the SCOTUS will reconsider opening the death penalty up again to non-homicide crimes); I do support mandatory minimum sentences for certain categories of sex offenses; I do support intensive probation supervision, including GPS monitoring, routine random polygraphs, and certainly whatever counselling may be indicated, though I remain profoundly skeptical of such rehabilitation efforts, having seen them fail far more often than they succeed. I know that is a purely "anecdotal" observation, but when it comes to these dangerous felons, I have more faith in what actually happens on the street than in what the theorists or statisticians posit, especially when their findings are based on localized studies or deal with only certain categories of offenders. I can't agree that it is mere political pandering when politicians try to respond to legitimate citizen concerns about the number of these offenders who are released and not adequately monitored.

Tuesday, August 16, 2005

Alabama DAs Packing Heat


Via The Birmingham News and Southern Appeal:
Don't mess with the man (or the woman) in Jefferson County, Alabama:

"The Jefferson County Commission voted recently to spend $40,000 on weapons for the county district attorney offices in Birmingham and Bessemer. Each office got $20,000."

Now since we prosecutors in Virginia have just been designated as conservators of the peace, can we convince our jurisdictions to buy us handguns?

I'll take the Sigarms .40 cal. P229 SAS , please.

Monday, August 15, 2005

Nullification, Part III

At the risk of justifying the scorn of the non-lawyers out there, let me return to the nullification argument again. After listening to Ken Lammers on Lex Radio (really Ken, get outside for some fresh air), it is plain that this is a highly misunderstood area of the law.

Ken and this guy at Crime and Federalism (who wants to "prosecute Randy Lee"-- a prosecutor)both comment that every player in the system nullifies, judges, the attorneys, and the juries. Let's look at the interesting claim that 1) judges and 2) prosecutors "nullify" charges.

As to judges, the claim is made that often we see judges sua sponte reducing or even amending charges to conform with a lesser offense, in response to overzealous prosecution of a case. Ken tacitly acknowledges that this is an unethical practice for a judge when he concedes that judges ethically have no duty to "do justice" but only to follow the law and apply it to the facts. The more disturbing aspect of this practice is that it violates the separation of powers. Prosecutors belong to the executive branch of government, judges to the judicial branch. When judges tamper with charges or reduce charges with no legal justification (as I've seen done in felony cases), they are effectually taking on a prosecutorial role. I'm not talking about plea agreements or even about tacit approval for a reduction. I'm talking about a judge reducing a charge when there is no factual predicate for him to do so. Example: a local judge who will avoid having to impose mandatory jail for assault on a police officer cases by finding the defendant guilty of regular assault-- even where there is no issue that the victim was an officer engaged in his duties, and sometimes even where the defense has not so much as argued the point! Such a judge who feels he cannot apply the law to the facts needs to consider resigning or recusing himself from those cases. But it is impermissible that he should take over the prosecution and change the charge.

Prosecutors decide which charges to press based on the facts and law. When they elect to prosecute, the role of the judiciary is to decide whether the facts presented have met the state's burden in proving the charge alleged. Period, end of story. When judges either reduce on their own or dismiss because they disagree with the application of the law to a particular defendant, they are supplanting the role of the prosecutor and exceeding the proper limit of their office.

The above comments also serve to show why prosecutors do not "nullify" charges. When the prosecutor makes a decision whether and what to charge, he is not engaging in "nullification," he is exercizing his executive authority as an elected official to decide which cases have enough evidence to support their prosecution beyond a reasonable doubt.

Calling the proper use of this prosecutorial discretion "nullification" as if it were akin to jurors or a judge disregarding the law and acquitting a factually and legally guilty accused, is a perversion of language. You can call a cat a cow, but that doesn't make it so. I suspect this phrase is used to try to imply that since prosecutors do this, it really can't be bad when a jury does it.

The Court of Appeals of Virginia has put it this way:
A jury has the "‘"physical power to disregard the law"’" but does not "‘"have the moral right to decide the law according to their own notions or pleasure."’" Sims v. Commonwealth, 134 Va. 736, 763, 115 S.E. 382, 391 (1922) (quoting Brown v. Commonwealth, 86 Va. 466, 472, 10 S.E. 745, 747 (1890) (quoting United States
v. Battiste
, 2 Sumn. 240, 24 F. Cas. 1042, 1043 (C.C.D. Mass. 1835) (No. 14545))). Accordingly, a jury has the power of nullification but defense counsel is not entitled to urge the jury to exercise this power. United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969). A jury has this power to refuse to apply the law to the proven facts because criminal trials are decided by general verdict and the Commonwealth cannot appeal such decisions.

Kirby v. Commonwealth, 02 Vap UNP 1788013 (2002).

"Nullification," properly understood, then, refers to a judge or jury simply disregarding the law and deciding to reduce or dismiss charges based on some extra-legal impulse, whether that be a feeling that tax evaders should not be prosecuted, or that defendants who assault police officers should not be punished the way the legislature has mandated, or that white guys who lynch blacks shouldn't be convicted. Each impulse is strongly held by some group or other, whether it be the Cato Instute, the judge who thinks the legislature is too harsh, or the Klan sympathizers.

But the whole reason we have a rule of law is for the channeling of such impulses into lawful conduits, namely the legislatures, where the laws are written. When, instead of stepping out of the case if we object to the law, we take an oath to well and truly try the case and then substitute our own view for the requirements of the law, we have subverted the rule of law.

When prosecutors make charging decisions, they are acting in accord with the rule of law and are ultimately accountable to the people who elected them. When juries nullify, there is no redress for the victim or the state because the jury is not accountable, as Ken noted in his remarks, citing Penn's Case. Nor is a violating judge, at least in an appellate forum, according to In re Commonwealth Attorney for Roanoke.

In short, we are a society of laws, not men. When prosecutors decide what charges to place, they are acting in accord with law. When judges and juries decide cases already initiated on grounds other than the facts and law, they are violating this fundamental maxim of our Western legal and social traditions and making of themselves temporary dictators.

Nullification Horror Story?

Mike over at Crime and Federalism thinks that a Texas DA and jury engaged in nullification in slapping four white defendants on the wrist for this crime:
They picked up Billy Ray Johnson outside a convenience store in this East Texas bayou town, a place where Confederate flags fly in some front yards and a mural of barefoot slaves picking cotton greets patrons inside the local post office.On a cool September night in 2003, they drove the 42-year-old mentally retarded black man to a cow pasture where a crowd of white youths was having a party. They got Johnson drunk, they made him dance, they jeered at him with racial epithets.Then, according to court testimony, one of Johnson's assailants punched him in the face, knocking him out cold. They tossed his unconscious body into the back of a pickup and dumped him by the side of a dirt road, on top of a mound of stinging fire ants. Johnson, who family members say functioned at the level of a 12-year-old before the attack, was in a coma for a week. He suffered a brain hemorrhage that slurred his speech, weakened his legs and deprived him of his ability to take care of himself. His body was covered with hundreds of painful ant bites.
(Story from the Chicago Tribune). One defendant received 60 days, the others 30 days, and the jury acquitted the two who took jury trials of the serious felony charges they faced, convicting them of misdemeanors only and recommending no time.

Now, I don't agree that this was truly nullification as Crime and Federalism seems to think (for some reason, he thinks the DA is the bad guy of the story). Of course, the Chicago Tribune is deeply offended by this Texas community's display of the confederate flag, and that's good enough for them to conclude that every bad occurence there is because of racism. But the facts are that the prosecutor was black, charged the defendants with felonies based on a single blow, there were three blacks on the jury, the FBI investigated and concluded race was not a factor, and the U.S. Attorney reviewed the case and agreed with the FBI findings. So race was not shown to be the motivation for the crime, and cannot be shown to be the motivation for the light treatment given to these defendants. Perhaps since it is a small town, the jury was just cutting them a break because of who they (or their families) are.

What this case does illustrate is that nullification, which probably did not, but could easily have occured in this case, is not something desirable. For every tax evader or DUI defendant that the Cato Institute wants to save from the overbearing Leviathan, there would be a simple case like this one, of right and wrong, where nullification would be just plain wrong.

The Fourth Reich?

Despite being found clutching an x-box and hiding under the bed in his friend's house when they unexpectedly returned, Jimmy Carter's grandson's parents insisted he was innocent. Not only that, the momma, Annette Carter, accused those nefarious Peachtree City, Ga. police officers of being the "Nazi Gestapo."

Our friendly neighborhood Cerberus opines:
There is one thing I am curious about. If Annette Carter was home alone one evening and heard someone trying to break into her house, I wonder who she would call for help. The Democratic Party? The ACLU? Certainly, the last people she would call would be the oppressive Peachtree City Nazi Gestapo.

Testify, brother. By the way, the younger Carter pled guilty.

Friday, August 12, 2005

Fairfax judge out in left field

Judge Ian O'Flaherty, a Fairfax County, Virginia General District Court judge (whom I've appeared before as a witness and have seen in action and respect personally and professionally) has recently been ruling that Virginia's presumptive .08 bac DUI statute is unconstitutional:
Fairfax County Commonwealth's Attorney Robert Horan confirmed that the judge is ruling against prosecutors, making it harder to get drunken drivers off the road. The judge is challenging one of the powers police and prosecutors rely on for arrests and convictions: the results of breath tests given to suspected drunken drivers. Virginia law says that anyone with a blood alcohol content level of 0.08 percent or more is presumed to be driving under the influence of alcohol. It is then up to the driver to rebut the presumption or prove he or she wasn't drunk.
O'Flaherty began dismissing DUI charges two weeks ago, ruling that the law is unconstitutional because the burden of proof in all cases rests with the prosecutor and this law puts the burden on the defense.
(see the whole story here) In Circuit court, if a judge makes such a ruling, the Commonwealth may appeal to the Court of Appeals solely on the constitutional question. Judge O'Flaherty is short-circuiting that ability since the Commonwealth cannot appeal his constitutional rulings-- this is one reason GDC judges usually refrain from making novel constitutional rulings. The Commonwealth can begin indicting DUIs directly to the Circuit court, but that would be cumbersome.

More troubling is that Judge O'Flaherty is just wrong on the law. Virginia's statutory scheme creates only a rebuttable presumption that intoxication legally is present when the Commonwealth proves the defendant's bac to have been .08 or greater. "If the blood or breathalyzer test reveals a blood alcohol concentration of .08% or more, the Commonwealth is entitled to a rebuttable presumption that the person was intoxicated." Smith v. Commonwealth, 32 Va. App. 228, 233, 527 S.E.2d 456, ___ (2000).

The Court of Appeals, which is binding authority on a General District Court, considered and rejected a constitutional challenge to the presumptive statute, finding "no merit in the constitutional" argument. Essex v. Commonwealth, 228 Va. 273, 285, 322 S.E.2d 216, ___ (1984). Unfortunately, the court did not explain its ruling, but the fact they rejected the challenge out of hand should be enough for a General District Court to defer to their holding of constitutionality.

Moreover, the US Supreme Court has expressly ruled that permissible inference statutes are constitutional, and only mandatory presumption statutes are unconstitutional. Francis v. Franklin, 471 U.S. 307 (1985). Permissible inferences or presumptions have been routinely upheld in Virginia: permissible inference of theft from possession of recently stolen goods (Kelly v. Commonwealth, 8 Va. App. 359, 382 S.E.2d 270 (1989)); inference of malice from deliberate commission of cruel act or from use of a firearm (Jennings v. Grizzard, 793 F. Supp. 681 (W.D. Va. 1991).

So it is here: The Commonwealth has the absolute burden to establish that the defendant was .08 bac or higher in order to avail itself of the permissible inference that the defendant was legally intoxicated. Even when the Commonwealth gets over that hurdle, the defendant can offer evidence or simply argue from the Commonwealth's evidence (e.g.: performance on field sobriety tests, how the vehicle was being driven) that in fact, despite the inference, the defendant was not legally intoxicated.

Defendants do this every day in DUI cases, and every day across the Commonwealth, judges find that the evidence has rebutted the permissible inference and dismiss the charge.

Why won't Judge O'Flaherty follow the law and do the same?

ADDENDUM: As the comments raise the objection that although permissible inferences are constitutionally firm, Virginia's statute is styled a "presumption," it should be clarified that in Virginia such rebuttable presumptions are treated as permissible inferences:

We distinguished Mullaney in Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d 692, 697 (1976), where we analyzed an instruction that "every unlawful homicide is presumed to be murder in the second degree," and"the burden is upon the defendant" to reduce it to manslaughter or excusable homicide. We held that either the Commonwealth's own evidence or some evidence introduced by the accused tending to show manslaughter was sufficient to entitle him to a manslaughter instruction and to discharge his burden of producing evidence. We held that the presumption was no more than a permissible inference. Id. at 343, 228 S.E.2d at 696. We further held that from the instructions "as a whole, it is inconceivable that the jury could have misunderstood where the ultimate burden of proof rested." Id. at 347, 228 S.E.2d at 698.
It thus appears that our general rule is to give rebuttable presumptions permissive or burden-of-production-shifting effect only.
Wilson v. Commonwealth, 225 Va. 33, 41, 301 S.E.2d 1, ___ (1983) (emphases added).
Thus, the law of the Commonwealth is that a presumption such as that in the DUI statute is legally speaking only a permissible inference, and as such, is constitutionally acceptable, since the Commonwealth still bears the burden of showing ultimate guilt beyond a reasonable doubt.

Tuesday, August 09, 2005

Justice Stevens and the Virginia Jury

Justice Stevens recently made certain public statements indicating he may be biased against the people in criminal cases and particularly in capital cases. "Stevens said DNA evidence has shown 'that a substantial number of death sentences have been imposed erroneously. It indicates that there must be serious flaws in our administration of criminal justice." (see here for the whole story)

In Virginia at least, and in most jurisdictions, the Judicial Canons state:

"A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," and:

"A judge shall conduct all of the judge's extra judicial activities so that they do not:...
cast reasonable doubt on the judge's capacity to act impartially as a judge...."

Can a judge who believes there are "serious flaws" in the criminal justice system and that a "substantial number" of death sentences have been erroneously imposed, lay aside such prejudices to fairly decide particular cases? It calls to mind Brennan's kooky self-glorifying pronouncement about not "tinkering with the machinery of death." How can such people claim to be impartial?

I understand that justices are allowed to have policy views, but at the very least it seems to undermine confidence in the impartiality of the Court to have a Justice publicly casting aspersions on the entire criminal justice system.

Apparently Stevens is upset that despite his best efforts to keep Virginia from executing the convicted murderer Darryl Atkins, a Yorktown, Virginia jury has found him to be not mentally retarded and sentenced him to death. Atkins shot an airman 8 times after abducting and robbing him. This is the second jury to sentence him to death.

The Left Finds a Hero

Who advises these idiots? First the "Screw Abstinence" party that disgusted even their own membership, and now Planned Parenthood has released a new video showing a superhero assaulting and disposing of a green-faced, mustachioed evil pro-lifer, and showing the same superhero zapping prolife protestors with a condom-bubble device to shut them up.

The left is showing its true colors: its enemies ought to be attacked and should be silenced so PP can go about its grizzly business with no opposition.

Via WorldNetDaily.





Evil Prolifer confronted by PP's clientele




Condom-bubbles to silence the religious nuts

Monday, August 08, 2005

Kaine v. Kaine

Back from Virginia Beach and the rigors of a prosecutors conference on the oceanfront. One item of interest was seeing Tim Kaine, our Democrat candidate for governor of Virginia give his pitch. I missed Independent candidate Russell Potts' performance, which apparently included calling Republican candidate Jerry Kilgore a "coward" for not showing up at the conference (which was curious, because Kilgore did show, just not that morning).

I found Kaine's speech unremarkable with one small exception and one large one. The small one was his use of the euphemism "revenue reform" for what was in fact the largest tax increase in Virginia history given to us by Kaine's colleague, gov. Mark Warner with Kaine's enthusiastic support.

The other issue was Kaine's attempt to do the Kerry shuffle about his profession of Catholicism and how he can square it with his and his party's professed devotion to abortion rights. He also had to explain to a room full of skeptical prosecutors how he would not let his anti-death penalty position be reflected in his use of the power of commutation as governor.

As to the death penalty, it was shocking to see Kaine try to hide his abolitionist views behind a facade of religious devotion to Catholicism, since the Church does not hold that the death penalty cannot be used, only that it be resorted to "rarely" when other means of incapacitation are not adequate. Even then, the Church does not propose this newer view of capital punishment as a requirement all Catholics must accept to remain in good standing. Nonetheless, Kaine assured us he would sign death warrants except in circumstances analogous to the historical circumstances in which governors have used the power of commutation.

His profession of Catholic faith also rang somewhat hollow when he told us he is opposed to abortion. That was a real howler, since he has been for years associated with the party that is devoted to the unfettered right of a woman to abortion. He has described himself in the past as "pro-choice" and has opposed parental notification legislation. He has said he thinks abortion should remain legal.

So the man opposes capital punishment but would do nothing about it even when has absolute discretion to commute every death warrant that comes across his desk. And he is opposed to abortion, but again, would do nothing about it, and in fact says he wants to keep it legal.

Which is it: is Kaine lying about his personal beliefs to appear conservative or is he someone who would simply ignore his deeply held beliefs as governor? Neither view speaks well of his character.

I am no huge fan of Kilgore, but at least he is straightfoward: he believes in the death penalty and will act accordingly, and he is anti-abortion and will act accordingly (i.e., urging any legistlation that could restrict it, and signing that legislation).

Jury Nullification?

In this interesting article over at the Cato Institute the author argues that "jury nullification" should be available to juries to correct what they view as unjust laws or unjust application of laws. The author acknowledges that judges routinely disallow such appeals for nullification by defense lawyers but believes jurors should have the option of nullification anyway.

Assume a black man is killed by a white man because the white man thinks the black man raped a white woman. The white man is tried by a jury, but the jury acquits because in its view, the killing was justified or at least the defendant should not suffer a murder conviction for it. Or consider a jury which thinks drugs should be legalized and therefore acquits a defendant charged with simple possession of cocaine. The factually guilty murderer and drug possessor are found not guilty even though they violated the law.

In each case, the juries have presumed to take the law into their own hands. The people of the state, through their elected representatives, have made both offenses punishable by criminal conviction. The appellate courts have upheld the constitutional propriety of these laws. Yet the juries (or really only one juror-- who can hold out for acquittal and force at least a mistrial) have substituted their judgment for the democratically determined will of the people of the state.

Judges rightly refuse to allow this usurpation of the law and the democratic process and instruct jurors to do their job: apply the law to the facts of this case and decide whether the defendant has violated the law or not. Whether the law itself is wise or foolish is not for these twelve (or fewer) to decide, but for the people acting in concert through their representatives.

Nullification is thus anti-democratic and promotes disdain and contempt for the rule of law and as such should be resisted.

Fr. Jim Tucker over at Dappled Things picked up on the Cato article and wondered if any blawgers would have an opinion of it.

Tuesday, August 02, 2005

Does the State have a moral duty to execute?

A new and compelling argument in favor of the death penalty comes from professors Cass Sunstein and Adrian Vermeule in this fascinating paper on capital punishment, which asks whether governments might not have a moral obligation to inflict the death penalty in order to save lives:
States that choose life imprisonment, when they might choose capital punishment, are ensuring the death of a large number of innocent people. On moral grounds, a choice that effectively condemns large numbers of people to death seems objectionable to say the least. For those who are inclined to be skeptical of capital punishment for moral reasons...the task is to consider the possibility that the failure to impose capital punishment is, prima facie and all things considered, a serious moral wrong."

Why? Because of strong evidence indicating that "on average, each execution results in 18 fewer murders." That is, the deterrent effect of capital punishment is such that many murders are effectively prevented by its use. The authors assert that this deterrent effect is sufficient to place a moral obligation on the state to have recourse to capital punishment in order effectively to protect their citizens. They argue that not imposing capital punishment is not merely omitting a particular punishment, it is the government allocating risks between citizens and choosing to allow a certain number of murders to occur.

They answer the objection that the DP sometimes might result in a factually innocent person being executed and is therefore unacceptable as a punishment by pointing out that by not executing and losing the deterrent effect, more factually innocent victims are killed by murder than wrongfully convicted defendants are by capital punishment. And the state has more ability to prevent wrongful conviction than to prevent murder.

There is much more detail at the linked article. A very interesting analysis, using law and economics theory, which was the philosophical approach favored at my law alma mater, George Mason.

Awwww, how sweet

Minutes after pleading guilty to a gang-related stabbing death, Joshua Martin Miracle got married in the same courtroom.

Miracle, 26, who faces death or life in prison without parole for killing Elias Raymond Silva, 30, on Oct. 3, exchanged wedding vows with longtime girlfriend Christina Beltran, 21, during a brief ceremony performed by retired Superior Court Judge William Gordon.

The groom, handcuffed and wearing an orange jail jumpsuit, managed to steal a kiss before bailiffs took him back to County Jail.

The whole story here.

Monday, August 01, 2005

Head of Virginia PDs sacked

Seems the boss of Virginia's Indigent Defense Commission has been asked to resign because too much money was being wasted on bureaucracy and too little was being funneled to the local PDs offices. This no doubt underpaid PD was making 132k. If you want us to pick up the tab, at least get the money to the PDs offices!

"You're hung like a Berkeley commie!"

That at any rate is the insult Cerberus intends to use after seeing these 60's rejects letting it all hang out on the left coast. Caution: viewer discretion advised. You should not have eaten recently before viewing these pictures.