Monday, January 30, 2006
It's one thing to be nervous and make rookie mistakes. We all did that learning how to try cases. It's another thing to admit you want to strike women from the jury (a clear Batson and J.E.B. v. Alabama violation), hamming it up about the fact that the statute for which your client is being prosecuted also outlaws adultery, and pointing out to the jury that "You have received your Big Mac. You have received your supersize Coke. But where's the supersize fries?" Hmmmm.
"He can't really deny his client exposed himself, so he casts the act as one of road rage, done not for sexual kicks but in retaliation for being flipped off. He invites jurors to consider whether dogs mount each other for sex or for dominance."
The jury is out for six minutes.
Worse is his bosses' approval of Charley's methods: "He has no fear," she says. "I truly believe he's going to be one of the great ones." OK then.
He begins his voir dire of the jury in his second trial, an assault case, by this line of questiong of an overweight woman: "I imagine you like to bake?" But he manages to secure a conviction for a lesser offense, which he takes as a victory. He is soon thereafter promoted to handling felonies, but can't shake the feeling that he'd rather be a prosecutor.
I'm glad to report that few Public Defenders I've known are this shallow and idiotic.
Friday, January 27, 2006
Happy 250th birthday to the greatest classical composer, Johannes Chrysostomus Wolfgangus Theophilus Mozart.
I recommend you check out what I regard as his greatest work, the Requiem, which was composed in Mozart's dying days, as depicted in the scene at left. You can find links to selections from that last, greatest work here. Every year on the date of his death, the Requiem is performed in its intended setting, during a Requiem Mass in his honor in Salzburg, Austria.
This also explains why I always seem to be tongue-tied in front of juries.
Hat tip: Volokh.
UPDATE: News flash: for all you serious folks like the comm box anon, I guess I have to state the obvious: this posting is tongue-in-cheek (no pun intended), so lighten up.
Thursday, January 26, 2006
To start, only 14 Americans who were once on death row have been exonerated by DNA evidence alone. The hordes of Americans wrongfully convicted exist primarily on Planet Hollywood. In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.
So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent or, to put it another way, a success rate of 99.973 percent.
What I find remarkable is that even if the actual error rate were much greater than .027%, it would still be an astonishingingly bright performance for our system, because after all, we find guilt based on a reasonable doubt standard, not a "beyond any doubt" standard. Despite the fact that we do not require absolute, scientific assurance of guilt, the police, the prosecutors, the defense bar, and the fact-finders all combine successfully to winnow out most cases of factual innocence. I think this is a testament to the functional greatness of our system of justice, and it gives the lie to those (much of the defense bar and the leftist media and academy) who have a vested interest in insinuating that a wrongful conviction lies under every rock.
Wednesday, January 25, 2006
For instance, the piece's author claims that Charley (I'm too lazy to try to get his last name down right) has an inferiority complex of some kind, because prosecutors are the "pretty people" who were much more successful in law school, and are much wealthier than the ugly, stupid, poverty-striken public defenders.
Hmmmm.... let's test the theory out. Here is a prominent prosecutor, Ray Larson of Lexington, Kentucky:
Is this guy "prettier" and smarter than the sensitive, over-acheiving, published poet and public defender Seth Abramson (I mean, just look at his thoughtful, Byronic pose)?
I think not. Mr. Larson is a wonderful person, I'm sure, but clearly he is not in the same league as the versifying and heroic-looking Seth. Not convinced? Let's try another.
Here is Bob Horan, the Commonwealth's Attorney in Fairfax, County, Virginia, (who, by the way, just won an important pretrial victory in our state Supreme Court in a death penalty case):
Now here again, Bob Horan is a wonderful man and probably the best prosecutor in the Commonwealth of Virginia. But really now, can he compare with the lovely and vivacious lady we know as Blonde Justice? Truly, there is no
Therefore, in the "pretty" category, can't we all agree that PDs are much more beautiful than prosecutors? And as for wealth, let me just point out that this is the kind of car I drive, after 10 years in the lucrative trade of prosecution:
(Not my actual '97 Lumina)
While here is a Saab, the kind of car driven by that unsung hero of public service, Ken Lammers (OK, he is not strictly speaking a PD, but he does exclusively court-appointed criminal defense, so close enough):
(Again, not his actual car, year and model may slightly vary)
Heck, even the guy in the picture below, David Feige of the appropriately named blog, Indefensible, certainly not one of the pretty people (to put it mildly), has a book coming out on his PD exploits and is apparently trading up for an undoubtedly lucrative civil practice.
So there you have it. These supposedly down and out, unattractive PDs are really more beautiful and successful than us hard-scrabble prosecutors.
When do we get a sympathetic write-up?
Tuesday, January 24, 2006
At 27, two years out of law school and a year out of steady work... no one's eager to hire an inexperienced attorney who finished near the bottom of his class and failed the Florida Bar exam three times..."Why do you want to be a public defender?" he is asked. "The State Attorney's Office wasn't hiring," he answers.But the PD is, since turnover is traditionally high in these offices. Skelly is intrigued that the reporter discloses the hidden thoughts of the public defender's heart, such as:
From the defense side, it's easy to despise what seems an air of privilege and hauteur around the opposing table. The young prosecutors believe God is on their side...Of course, what's ironic is that so often in PD offices lawyers can be afford to be much more slash and burn (since they're not paid by the case like retained or court-appointed attorneys). The perception among prosecutors is that PD offices contain a high volume of "true believer" types who instinctively mistrust the police, the prosecutors, and the whole system. Instead of trying to get the best outcome for their client (which in the vast majority of cases means a charge reduction or mitigation of punishment) these holy warriors want go down in flames, or at least let their clients go down in flames, in order to score some points against "the Man."
What's even more pitiful is that for some PDs, courtroom conflict is not about high-falutin ideals like the pursuit of justice or the vindication of the wrongly accused... it's about revenge for high-school trauma inflicted by the pretty people who become prosecutors (I must be the exception to the rule!):
It doesn't help that whereas PDs look like ordinary people, by and large, their state attorney counterparts are uncommonly good-looking, the kind that used to make classmates feel weird or fat or gangly. Beating the state becomes sweet on so many levels.Nevertheless, the article is a fascinating read, and believe it or not, novice prosecutors have much the same kind of angst that the young PD in this article suffers from. Even if we are much better looking and drive nicer cars.
Friday, January 20, 2006
The Supreme Court ruled late yesterday that Alden had exceeded her authority because she made a sentencing decision based on a motion filed before the trial.
Alden's decision came six days before the scheduled start of Pham's capital murder trial.
"No statute . . . authorizes Judge Alden to exercise such sentencing discretion in a pre-trial context,'' the court said. "In other words, the action taken by Judge Alden was not within her discretion."In directing Fairfax Commonwealth's Attorney Robert F. Horan Jr. not to seek the death penalty if Pham is convicted, "Judge Alden performed an executive function and exercised discretion that resides solely in the Commonwealth's Attorney," the court added. The court directed Alden to let Horan seek the death penalty.
Although I have not yet been able to read the opinion, it apparently agrees with what I said here about this case: "This is separation of powers 101 stuff here." That is, the judge was essentially usurping the job of the prosecutor, which is to decide whether to pursue the death penalty. The judge cannot interfere with that discretion, but only rule after the evidence has been presented that death is not an appropriate penalty to impose. The circuit court ultimately has "veto" power over imposition of the death penalty, but only at the sentencing hearing, not as a pretrial matter. ("After consideration of the [pre-sentence] report, and upon good cause shown, the court may set aside the sentence of death and impose a sentence of imprisonment for life." Code of Virginia Section 19.2-264.5).
The Virginia Supremes got it right, but it's not hard to predict what the judge will do at sentencing should the jury in this case recommend death.
Hat tip: Capital Defense Weekly.
UPDATE: For the full opinion, go here. For additional comments, check out my posting over at CrimLaw.
Wednesday, January 18, 2006
|You scored as Chalcedon compliant. You are Chalcedon compliant. Congratulations, you're not a heretic. You believe that Jesus is truly God and truly man and like us in every respect, apart from sin. Officially approved in 451.|
Are you a heretic?
created with QuizFarm.com
Hat tips: Ken at CrimLaw and CrimProf Blog.
Tuesday, January 17, 2006
Another thing of note is that Allen is a poster-boy for the justice of the death penalty. Here's a guy who was ordering people murdered from prison. As with the potential for prison breaks, such as occured on Virginia's death row, the possibility of paroles or pardons from liberal governors, or the reality of inmates like Allen, who either kill in prison or are likely to commit new crimes from prison or attempt to escape, there are too many chances for a convicted murderer to threaten the public, other inmates, or prison staff for society to "take a chance" that these convicts will turn out to be peaceful and law-abiding. In fact, they have already proven they cannot be so by commiting the most serious crime, a murder, in the first place.
From the viewpoint of Catholic principles, then, we can conclude that there are really no conditions of the modern penal system that render such criminals incapable of further crimes, and the state has as its foundational duty the responsibility to protect us from them. So even prescinding from the question of proportional justice for the crime, and considering only the narrow question of public safety, Allen's case perfectly demonstrates that we cannot rely on long prison sentences to provide the absolute protection the public is entitled to.
Thursday, January 12, 2006
Thus spake Roger Keith Coleman, who viciously raped, sodomized, and strangled Wanda McCoy, and who justly was executed for that crime in 1992. Now we know that not only was he a low-life rapist and murderer of a woman, but he went to his death uttering a bunch of damned lies.
As mentioned here, new DNA testing on his case was ordered by outgoing Virginia governor Mark Warner in an effort to find that elusive innocent person actually executed that the anti-DP crowd has been pinning its hopes on.
Not this one, guys. Not Roger Coleman, because the retesting definitively shows that the prosecutor, the jury, the trial judge, and the appellate courts got it right: his DNA was in the victim. I guess the corollary of Coleman's quotation above is that since he was stone-cold guilty, we should all recognize the justice of the death penalty and the Europeans should implement it.
Nice try, though, gov. Warner and the rest of the anti-DP crowd: the error rate for carried-out executions remains zero.
Wednesday, January 11, 2006
We wouldn't have gone as late into the evening as we did if we had started on time. But when the defendant was transported to the courthouse from the jail, the jailers forgot to pack his street clothing. It is reversible error to try a felony jury case when the defendant is garbed in prison attire, so we were flummoxed as to how to proceed since the jail (a regional jail some miles away) said it would take two hours to get the clothing delivered.
Solution? The judge approves purchase of clothing as a cost of the trial, and defense counsel runs out to WalMart and gets a nice shirt, tie, pants, and shoes for the defendant. Delay? an hour and 15 minutes instead of two-plus hours, and a defendant looking nicer than he would have in the street clothes he intended to wear.
Will they still fit in 53 years?
Monday, January 09, 2006
Having already substantially added to the Democrat voting rolls by restoring the rights of 3,000+ convicted felons, the pressure is apparently on to ignore the intent of the Virginia Constitution and, hell, just let em all vote! Rapists? Robbers? Murderers? Thieves? No problem! The 3,000 is already more than the four past governors combined. One of those govs was Doug Wilder, our first black governor, also a Democrat who flirted with the national stage. But he to his credit no doubt saw what a crass move it would be to curry favor with the pro-criminal left by insulting the majority of Virginians who like the notion of punishing criminals by, among other things, depriving them of the franchise. After all, if they cannot respect the rules of society, why should they partake of its benefits?
But Warner and the folks he represents and hopes to woo clearly see it otherwise. He should be careful, however, about blowing his cover as a moderate by venturing too deeply into the fever swamp of anti-death penalty activism and indiscriminate dispensing of goodies to felons.
I predict he is too clever (and ambitious) a politician to risk it.
Friday, January 06, 2006
Prior tests with less sophisticated methods than exist now showed that Coleman was within only two percent of the population who could have produced the evidence. Hair matching his hair was found on Wanda's body. A cellmate said Coleman admitted the crime to him. He was previously convicted of attempted rape. There was evidence of very little struggle and no forcible entry into the house; Coleman was a frequent visitor to the McCoy household. Coleman failed a polygraph just before his execution. In short, the evidence was substantial, the jury convicted him, he was executed. What point is served by this retesting other than the serving the anti-DP crowd's efforts to try to find the first innocent person executed in order to bolster their abolitionist agenda? Why should the desire of the victims for peace and closure be trumped by an ambitious politico carrying out the wishes of an extremist anti-death penalty chorus which has been frustrated for 30 years in their efforts to find that holy grail, a case where an innocent person has been executed? It bothers these criminal advocates no end that the error rate for executions stands exactly at zero. They will spare no one in their quest for that one case they hope will change it all, and Warner is their boy. Wanda's family? Expendable to these crusaders in pursuing their holy war against capital punishment.
Nevertheless, the prosecutor who put Coleman on death row is confident the testing will yet again confirm Coleman's guilt. I wonder, when it does, if the extremists will be mollified, or if they will apologize to Wanda's family for dragging this case out and publicly admit and proclaim that the Commonwealth executed the right man. Why do I doubt that will happen?
UPDATE: "Like Blonde Justice, I'm not sure which way I want the tests to come out in Coleman's case. On one hand, I would feel better if it turns out that an innocent man was not executed. On the other hand, as someone who now opposes the death penalty on both moral and systemic grounds, it could be the most significant development in years in the long fight for abolition." This seems to be a common opinion amongst the PD set such as Injustice Anywhere (the source of this quotation) and Indefensible (who lives up to his moniker by hoping an innocent man was executed in order to teach Justice O'Connor a thing or two). It is truly sad to watch people rooting for the death of an innocent man to vindicate their anti-capital punishment policy views.
And from Srata-sphere, comes this concern: "If we did execute the wrong man, watch for [Virginia governor-elect Tim] Kaine to suspend the death penalty indefinitely. And watch for the Beltway snipers to be at the head of the line demanding their death sentences be rescinded."
Thursday, January 05, 2006
The defendant, Dinh Pham, a Vietnamese national, is accused of strangling a woman and her 22-month old daughter during a robbery. The police upon arresting Pham faxed the consulate to notify them of the arrest 10 days afterwards. The Vienna Convention requires notice to the accused of his right to consult with the consulate. The defendant moved specifically for exclusion of the death penalty as a punishment for the violation, and Judge Leslie Alden agreed.
While neither Alden nor the defendant could point to specific prejudice attributable to the delay, the judge ruled that since there could have been prejudice, the court would apply a remedy.
What is truly remarkable however, is Judge Alden's rationale for excluding the DP as a judicial remedy for the violation. The judge can point to no precedent, not one, supporting such a view. Instead, the judge refers to the Jens Soering case where UK authorities refused to extradite the defendant unless the Commonwealth waived the DP. Clearly that is much different than a court imposing preclusion on an objecting Commonwealth. The judge makes further reference to the U.N. and the European Court of Human Rights and their view that member states may refuse to extradite when the accused is under the threat of the DP in the U.S. Remarkably, the judge refers to a clemency grant recently made by the Virginia governor as though that supports the judge's exclusion in this case. Clearly, what prosecutors do in response to foreign refusal to extradite and what a governor does in granting clemency are radically different than what a judge does in refusing to allow a sentencing option otherwise available to the commonwealth. This is separation of powers 101 stuff here.
In other words, with no precedent, relying on inapposite foreign rulings based on rejection of any use of the DP at all, Judge Alden finds an exclusionary remedy in a state court in a DP state, for a violation of a Convention which the Court of Appeals of Virginia has held is not even a fundamental right. In fact, the Court of Appeals in Bell v. Commonwealth had this to say:
even if Article 36 creates legally enforceable individual rights, it does not provide — explicitly or otherwise — that a violation of those rights should be remedied by suppression of evidence. [citations omitted]. Such a remedy is generally not available when a fundamental right is not implicated. Id. The language of Article 36 does not create a fundamental right comparable to the privilege against self-incrimination. Id.(emphasis added). That Court also held that without a showing of prejudice attributable to the delay in notification, there should be no remedy (in that case, suppression of a confession):
[the harmless error] analysis should apply when a defendant seeks to suppress a statement because of an alleged violation of rights conferred pursuant to Article 36 of the Vienna Convention. Thus, in the present case, even if Bell's rights under Article 36 were violated because the police questioned him prior to advising him of his rights to consular notice and access, we conclude that any such error was harmless... Furthermore, Bell has not alleged, much less demonstrated, any prejudice resulting from the fact that approximately 36 hours elapsed before his consulate was notified of his arrest, nor has he asserted that he would not have answered the police officers' questions if he had first been advised of his right to communicate with his consulate.Judge Alden does not adequately explain how this precedent, much more to the point than the European sources the judge relies on, can be simply waved off. The attempt is made by claiming that since Bell dealt with a post-trial motion and Pham's motion is pretrial, the Bell case does not apply. Why the holdings and the rationale of Bell would be any less applicable to Pham's case is not, however, answered by the judge. There is no reason why raising the issue pretrial (as Pham did) makes a showing of prejudice, required by Bell, unnecessary, simply because in Bell the issue was raised post-trial. The judge's effort to distinguish Bell thus falls utterly flat.
In short, one senses that Judge Alden does not like the DP and simply used judicial power to take it off the table in this case, invoking off-point foreign precedent while seriously misapprehending applicable precedent from a superior court in Virginia.
Bob Horan, the CA in Fairfax, is exploring appellate options, but is not likely to get a hearing, since Commonwealth appeals are permitted only in cases where evidence is suppressed on the grounds of an alleged constitutional violation.
Hat tip to Prof Berman at Sentencing_Law_and_Policy.
Wednesday, January 04, 2006
If the inhuman beast who killed this family, one by one, slicing their throats and watching them die, does not deserve death, who does? Is any other punishment for this scum appropriate, given that he murdered these people in front of their loved ones, the observers surely knowing they would be next? Did the parents have to watch their daughters die this way, or did he make the little girls watch as he slit their mommy and daddy's throats? What kind of human could put a knife to the throat of a four year old girl and sink it into her flesh? Did she cry? Did she beg her attacker not to do it?
Would life imprisonment adequately punish this murderer? Doesn't the person who did this need to be punished in the harshest manner possible? What is our ultimate sanction, and is not this the case for it?
Query: is there any motive for this crime that would excuse the killer from execution? Do we really care what the killer's background, upbringing, mental condition, or any other conceivable mitigation factors are?
Sometimes an extreme case like this clarifies why we need a death penalty and why it is ordinarily of little importance what motives existed for the crime or what mitigation evidence there is. Some crimes can only be adequately punished by the death of the offender; it is the only way to approximate a "congruent satisfaction" for the offense. It makes no difference what the character or condition of the perpetrator is; the severity of the punishment must fit the severity of the offense if we are to believe that we have come as close to justice as humanly possible.
May these poor souls rest in peace and "let justice descend, O heavens, like dew from above, like gentle rain let the skies drop it down."
The Harvey family