"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

Monday, October 31, 2005

Libby Indictment: not Perjury

With regard to the whole Libby indictment brouhaha, I find it of little interest; but I did wonder if the fed statutes under which he was indicted require materiality of the false statement. Under Virginia law, perjury is a crime only if the statement is "material" to an issue in the case. So I wondered how, if there were no underlying offense found by the grand jury (that is, they apparently found no violation of the law with respect to the revelation of Plame's name), there could have been a "material" falsehood about that (non-existent) offense.

The folks over at White Collar Crime Prof Blog have clarified that the statute used was not perjury but a narrower offense of "false declarations." It seems that this statute, which apparently requires only a showing of two inconsistent statements, but does not require a showing of the falsity of either statement, is a much lower bar for the prosecutor to get over than perjury.

It seems a stretch to charge this conduct when it is clear there was no underlying violation of the law. If I charged everyone who made inconsistent statements under oath during a case, I would be doing pretty much just those cases for a long time. But then, I don't have the "vast resources" of the federal government behind me.
I had my 10,000th visitor to Seeking Justice (which began in late March) over the weekend. Thanks to all my visitors, yes, even to the obnoxious ones.

Thursday, October 27, 2005

Tuesday, October 25, 2005

More on Kaine

Some comments to my posting on Tim Kaine's misleading religious claims (positing a religious scruple for his anti-death penalty stance by pretending that the Catholic Church's teaching opposes all capital punishment) indicate that perhaps the point I was trying to make is not well enough understood.

"The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity."

That is how the Archbishop of Denver summarized the Church's position on the death penalty. Of course, he also states the latest position of the Vatican, which is:
“The Catechism of the Catholic Church” explains it in these words: If “non-lethal means are sufficient to defend and protect people’s safety from the aggressor [i.e., the convicted murderer], authority [should] limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person” (2267).

But nowhere does he suggest, nor can Tim Kaine or his apologists show, that the DP is intrinisically immoral, or that it can never be legitimately used.

Thus, Kaine is simply not being truthful when he states that his Catholic religion prevents him from supporting the death penalty. If he were a true Catholic and held such an absolutist view, he would be a heretic. He should stop advertising himself as a Catholic therefore, and consider converting to the Amish or Mennonite faiths, perhaps. Those religions (as I understand it) consider the death penalty inherently immoral. But Catholicism? No.

Monday, October 24, 2005

Fairfax DUI impasse revisited

An anonymous poster responding to this old posting has tried to set me straight on how to look at a Fairfax County General District Judge's ruling that Virginia's so-called "per se" DUI statute is unconstitutional because it improperly shifts the burden of proof to the defendant. Mr. Anon writes:

What are the essential elements of the statute at issue in the State of Virginia? The essential elements are gleaned from the statute itself:§ 18.2-266.

"Driving motor vehicle, engine, etc., while intoxicated, etc. It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more . . . as indicated by a chemical test administered as provided in this article, (ii) . . . (iii) . . . (iv) . . . , or (v) . . . A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v). A conviction under § 18.2-266 can be supported under any clause (i) through (v)."

The legislature has broad discretion in defining crimes. The heading of the statute plays no part in determining the elements. Therefore, the fact that the statute is headed, "Driving motor vehicle . . . while intoxicated," means nothing when one interprets the statute. Under clause (i), the only element that the state must prove to obtain a conviction for unlawful conduct is that the driver had a BAC of .08 or more as indicated by a chemical test.The defendant may challenge the accuracy of the chemical test in order to create a reasonable doubt, but it was certainly within the power of the legislature to make it unlawful to drive with a BAC of .08 or more as indicated by a chemical test. The violation of the law does not require actual intoxication.The judge made an error in his interpretation of the statute because "intoxication" is not an essential element of the crime charged. Driving with a BAC of .08 or more as indicated by a chemical test is the only ELEMENT of unlawful driving under clause (i) of the statute that the state is required to prove.

Sounds convincing to me. I think everyone is following the judge down the rabbit trail of permissive inferences and burden-shifting, when the answer is a simple as the legislature created a simple offense of operation of vehicle + .08 BAC. Intoxication is not part of the elements of that offense and therefore so long as the Commonwealth proceeds under only clause (i), they should prevail against a challenge such as the one sustained by the Fairfax judge.

Now, off to traffic court!

Thursday, October 20, 2005

For Shame

The Richmond Times-Dispatch is publishing an insert produced by the state's child support enforcement agency, complete with pictures of delinquent child support obligors. Apparently just the threat of appearing in the paper caused several deadbeat parents to cough up the money, with the result that their picture was removed from the ad.

This tactic has raised the ire of at least one commentator, who protests that "the driving force behind child support arrearages is not bad parents, but instead rigid child support systems which are mulishly impervious to the economic realities noncustodial parents face, such as layoffs, wage cuts, and work-related injuries. "

Prosecutor's Worst Nightmare

Imagine you're a prosecutor, maybe prosecuting a sex offense. How would you like this guy to show up on day one for jury duty?

Tuesday, October 18, 2005

False Advertising


I don't often post about specific political issues or topics, but given that the death penalty in Catholic teaching is of great interest to me (as a prosecutor and a Catholic), I've taken note of our Virginia gubernatorial race, where the Democrat, Tim Kaine, is running in a very pro-death penalty state on a position of religion-based opposition to the death penalty, stating: “God grants life, God should take it away.” Kaine takes great public pains to emphasize his Catholic religious beliefs.

Kaine is a death penalty abolitionist. For instance, he has also stated, "Murder is wrong in the gulag, in Afghanistan, in Soweto, in the mountains of Guatemala, in Fairfax County . . . and even the Spring Street Penitentiary.” (Washington Post, 7-7-87)--referring to the former site of Virginia's death row. He claims that as governor he will not grant clemency to death row inmates at any greater rate than past governors.

I really don’t mind Kaine being a principled opponent of the DP… it's part of being a modern Democrat. But what bothers me is how he dishonestly uses the cloak of Catholicism to dress up this opposition. Little noted in all the back and forth about this issue is the fact that the Catholic Church DOES NOT categorically oppose use of the DP, as Kaine's statements imply. Specifically, the teaching is that because of advances in the justice system and the ability to render criminals harmless short of executing them, that the DP should be used “rarely.” Now since only .01% to at most 1% of homicides in this country are punished by imposition of death, we do in fact only use that ultimate punishment “rarely.” In fact, the number of executions continues to decline.

Kaine is a smart man and an involved Catholic at some level, having been to the mission fields. He surely must be aware that the Church is not opposed to the death penalty per se. Thus, Kaine is simply a liar for suggesting his religion requires him to be categorically opposed to the DP in principle. If anything, his religion indicates that he should be fully in favor of the reasonable, rare, use of the DP we have in Virginia.

Also playing out against this supposed religious objection to the death penalty is the fact that Kaine freely ignores the Church on other social issues, like abortion and preferential treatment for homosexuals to wit: Kaine has said he
opposes abortion on moral grounds, adding, "I want to reduce abortions, and there are proven ways to do it -- better education, better access to health care and contraception; enforce the restrictions we have. But I will veto legislation that criminalizes women or doctors for their health care decisions"
He also said in a recent debate that if the abortion landscape changed, the practice should not be criminalized. Now this is contrary to Catholic teaching, which (in very brief summary) is that 1) a politician cannot materially cooperate in procurement of abortions, which a Catholic governor certainly would be doing by not signing a ban on abortion; and 2) likewise one may never materially cooperate in the use of artificial contraception, especially since most of the non-barrier methods are potentially abortifacient. Summary of bishops' statements here.

On homosexual rights, Kaine has said he supports civil protections akin to marriage, but apparently not so called "civil unions." He does support adoption rights for homosexual couples. See a summary of his often contradictory statements on these issues here.

Kaine apparently is trying to suggest that his personal beliefs on the death penalty and abortion will in no way influence his governance. But if you have the ability to shape policy according to your beliefs, why would you not do it? He certainly does want to enact his personal, ethical beliefs that the tax structure should favor the poor, and that education should receive larger quantities of tax funds. Why not apply his personal beliefs to abortion and the death penalty? No, the real answer here is that Kaine does not really follow the Church on abortion any more than he does on the death penalty. In both cases, he is trying to assume a veneer of Catholicism to cloak his thoroughly secular ideology of pro-choice and anti-death penalty activism.

Again, I have no issue with someone honestly holding these positions, wrong as they are. What makes Kaine a scoundrel is this attempt to hijack the moniker of "Catholic" as a shield to hide behind.

Friday, October 07, 2005

Todd Gilbert in the 15th House District

I was sad to see that my friend, Todd Gilbert, a prosecutor in rural Shenandoah County, has decided to resign from the Commonwealth's Attorney's office in order to run full time for the Virginia House of Delegates. It would have been a true first to have an active prosecutor serving in the General Assembly. Nevertheless, he will still clean his liberal opponent's clock, and will be a rock-ribbed conservative lion in the House of Delegates.

Todd's the one on the right

Tuesday, October 04, 2005




I hope the fears expressed in various quarters are wrong... but of course we shouldn't have to rely on hope nor trust anyone with respect to this selection. Richmond's own Michael Luttig would have been my preference. A crime victim on the SCOTUS... now that would be some diversity.

Slippery Slope

It seems that the storied "slippery slope" is not always just a rhetorical device used to gin up opposition to a change in the law. Take for instance Roper v. Simmons. In this infamous case which invalidated a death sentence for a defendant who threw his victim off a bridge, Justice Kennedy decided that notwithstanding the continued use of the death penalty for defendants who were juveniles at the time of their crimes in several states, that "in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Thus, the so-called "evolving standards of decency" are no longer discerned by what is happening in society or in the states, but is entirely a matter of what 5 Justices personally believe. So even though fewer than 50% of death penalty states could be viewed as opposing executing juveniles, Kennedy sees an evolution against the practice sufficient to thwart the majority of death penalty states who approve of the practice.

Kennedy also predicates his opposition to the death penalty in this case on the perceived "immaturity" and "vulnerability" of such offenders. Never mind that the Court hypocritically believes in its abortion jurisprudence that the same minors are deemed so mature that parental notification laws are an unconstitutional burden on their highly developed moral lives.

At any rate, the silly, feel-good, extra-legal "reasoning" of this case is now being invoked to make the point that if these minors-at-the-time-of-the-crime should not be executed, then why should they be sentenced to terms of life imprisonment? As Doug Berman frames it over at Sentencing Law and Policy,
if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?

If Berman's reasoning is adopted by some such majority of five, then vicious murderers, whom the state can no longer execute, will not even be removed from society for life. And why stop there? If you can't punish the little darlings by death, nor by life imprisonment, then why should the state be allowed to incarcerate them for even twenty or even ten years?

Certainly, once the sloppy reasoning of Roper is applied to its logical conclusion, the SCOTUS must ultimately tell us what so called "standards of decency" "in [their] own judgment" is constitutionally permissible for these "children." And by the way, this "reasoning" does not apply only to otherwise death penalty-eligible cases, but to any criminal offense, since the Eighth Amendment applies to all punishment in every criminal case.

If Berman's right, the SCOTUS will be a busy bunch, telling us what the maximum allowable sentence is for every crime committed by a juvenile.