"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

Thursday, March 30, 2006

Tuesday, March 28, 2006

Science v. Spicoli

The Ninth Circuit (of course) is considering yet again the situation of Angela Raich, whose doctor claims she needs to smoke marijuana or she will die. Please. The whacky Ninth might buy it, but in reading over the summary, I wonder why the Feds did not put on some evidence, easily available, that "medical marijuana" is a fraud being foisted on the public by the dope head pot advocacy groups. The only reason to smoke marijuana would be for the THC. But the THC can be isolated and delivered more safely and without the side effects (like the four times the amount of tar in a joint compared to a cigarette) of toking. A pill like Marinol delivers the benefits of THC in a precise, known dose. Smoking a joint, on the other hand, is an inexact and risky way to deliver a dose of THC.

But of course a pill takes all the fun out of it.

Raich, you might recall, has been before the SCOTUS before, which ruled that the Feds can enforce the Controlled Substances Act even in states which, like California, have attempted to legalize marijuana for purported medical use. A wrongheaded decision on federalism grounds, even the usually sensible Scalia bought into the non-originalist, non-textualist reasoning of Wickard v. Filburn that purely intra-state economic activity can be federally regulated because it might have an indirect effect, however tenuous, on Congresses' attempt to regulate an inter-state activity.

HT: Crim Prof Blog.

Scalia not following the rules

Oh my... it seems that Justice Antonin Scalia, just after attending the Red Mass at Boston's cathedral this week, was accosted by a reporter who asked him "if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs." Scalia, you see, has the gall to be an orthodox, old-school Roman Catholic. The Justice responded by engaging in another old-school practice, the Sicilian kiss-off gesture, cupping the hand under the chin and flicking his fingers out. If you grew up around Italians, you know the gesture. “It’s none of their business,” continued Scalia, “This is my spiritual life. I shall lead it the way I like.”

That's not the way the left thinks a conservative Catholic should act. They're supposed to apologize for adhering to a sexist, homophobic religion, and profess undying devotion to tolerance, multiculturism, and the equal validity of all religions, including Wicca, Zoroastrianism, and Azteci.

What's really ironic is that the left, which has made an industry out of mocking Christianity and profaning its symbols, customs, and beliefs, become all soft and dewy-eyed about our religion when a believer acts in a way they guess is contrary to Christianity. Thus, they snidely opine about how Scalia's gesture was out of place given the fact that he had just attended Mass. See, he's supposed to bend over and take whatever they give him. Christians are supposed to meekly walk into the jaws of the lions.

Fighting back is against the rules.

UPDATE: Check out our hero's written response to the Boston Herald wherein Nino clarifies that the gesture he made is not "obscene." HT to Ken.

Wednesday, March 22, 2006

Another perk of being pretty?

If you're a babe, do you get a free ride? Two cases might indicate just that. Meet Julia Diaco:

Sweet little 20-year old Diaco (she dressed as depicted in the picture for her sentencing) apparently was in the nasty habit of selling marijuana, LSD, cocaine, and mushrooms, including one controlled buy of $650 worth of coccaine. She would sell out of her NYU apartment and on and around campus. Eight separate times, she sold to undercover police officers. Did she need the money? Nope. Daddy's a wealthy builder.

Her sentence? Probation.

"News of the deal frustrated Anthony Papa, 51, who, like Diaco, was once a first-time, non-violent offender. Instead of probation, he was sentenced to 15 years to life in prison for delivering four ounces of cocaine for a police informant to an undercover cop for a $500 fee," according the NY Post article. Papa, however, draws the exactly 180-degree wrong conclusion: "I get angry with a case like this because the laws are not applied equally. Because she had money and the right lawyers, she didn't go to jail. Others should have that same opportunity," he said. "All people should be treated like this woman - with compassion." (Note the dig to court-appointed lawyers. Diaco obviously had "real" lawyers).

How 'bout instead we treat like cases alike and put the drug-dealing pretty rich girl in jail for 15 years?

Case #2: Meet Debra Lafave:
This is the clean picture (note the cross on the necklace)... if you want to see her pre-conversion to Christianity in a bikini astride a motorcycle, have at it.
Ms. Lafave, who is 25, and was a middle school teacher in Florida, was prepared to plead guilty to having sex with a 14 year-old student. She was pleading guilty because the prosecutor was offering probation, with no active jail time. Now, because a judge had enought guts to reject such a lenient plea agreement, the prosecution has elected to drop the charges against Lafave rather than go to trial, supposedly to save the victim the trauma of testifying in open court.

Now reverse the sex of the offender and victim: a male teacher with no criminal record having "consensual" sex with a 14 year-old student. Probation? Hardly. How about 8-9 years in prison? That's what teacher Richard Lalime got in Worcester, Mass., for having sex with a student who tearfully restated her love and support for Lalime.

Heck, even older, less "hot" looking Mary Letourneau had to pull 80 days in jail for having sex with her student (although she ended up in prison for much longer after violating a no contact with her victim provision of her suspended sentence).

Do we treat them differently because they are 1) women abusing boys; and/or 2) attractive people with no record? If so, shame on us.

(Of course, sadly, these teacher sex predator cases are not a fluke: according to a study commissioned by the DOE, one in ten kids will suffer some type of abuse at the hands of school personnel. Reason 12, 452 to consider home-schooling.)

HT: Glenn Beck for the NY Post story.

Friday, March 17, 2006

Thinking Without Facts

Well, from the sublime subject of Saint Patrick to the utterly prosaic job of righting the wrongs of the world. For instance, here and in an article in that respected journal, Slate, professional anti-police commentator David Feige opines that the TSA lawyer who violated a judge's rule not to talk to witnesses during terrorist Zacarias Moussaoui's trial was not doing anything unusual. For prosecutors, that is. "There is also no question that what Martin did happens all the time" he claims; "prosecutors do it all the time."

Now in the Slate piece he makes the unremarkable observation that all lawyers, prosecution and defense, "prepare" witnesses for their testimony. Courts have no problem with this practice, since it usually means a witness will be more focused and less nervous than if the rule was that lawyers could never tell them what to expect at trial. He doesn't really seem to have a complaint about that. But once a trial is underway, the rule is usually that the lawyers cannot talk to the witnesses about what has transpired during the trial or what other witnesses have said. This is to ensure that the witness does not alter his testimony to "fit" with other evidence in the case.

The exception to this rule is the defendant himself. He is allowed to remain present during the whole trial, listening to all the witnesses testify. His lawyer is able to speak to him, advise him about the import and effect of the trial testimony, and then he is allowed to testify, having been "prepped" by his lawyer and having ample opportunity to tailor his testimony to whatever evidence has already been presented.

But Feige's complaint is not with this, of course. No, his problem is with the "fact" that prosecutors coach witnesses during trial "all the time." Now, not only is such behavior contempt of court, it is also unethical and potentially illegal. So having accused only prosecutors of engaging in this behavior "all the time," (note: no word from Feige about whether defense attorneys might ever do this) does Feige bother with something as inconvenient as facts to back up his broad brush smear? Of course not. He feels it must be so because the government is so corrupt and trying to incarcerate all these victims of police wrongdoing. He does not need facts, he has his ideology, which is that of a true believer.

Got it? Prosecutors=evil. Obviously Feige is no fan of John Dewey, who said: "We can have facts without thinking but we cannot have thinking without facts."

St. Patrick Needed Once Again

On St. Patrick's Day it is perhaps fitting for those of us who trace our roots to the Old Sod to reflect on what has become of Ireland. As Irish writer Jack Cashill laments, poor old Ireland, which would not bend to the Protestant revolutionaries of England who tried for 400 years to enslave her and make her a mere shire of England, has offered itself up on the table of modern liberal "culture" and surrendered itself at long last without a shot, without a whimper.

The "Celtic Tiger" has reversed the flow of people from Ireland and packed that island with new cars; but in the process the tiger is eating the entrails of Irish society. Once the most Catholic country of Europe, it now is wallowing in hatred of the very culture and traditions which made it the island of saints and scholars, and which saved Western civilization during the dark ages. The Irish have themselves done what the cursed Cromwell could not permanently accomplish.

Where once Catholic order ruled, now there is 50% illegitimacy, AIDS, open homosexuality, divorce, abortion, and contraception. In short, Ireland has finally become nothing but a quaint outlying shire of the broader decadent, dying Europe. Of course, the first target for the revolutionaries, as always, is the Church. Americans know more about the Catholic "horror stories"of disgruntled Irish authors than they know about how the Church elevated Ireland from the bondage of paganism, or how the Irish of old fought and died for their faith and their country rather than submit to the spirit of the age.

Of course, most Americans know St. Patrick only as the vague person responsible somehow for "St. Paddy's Day." Maybe they've heard some story about chasing the snakes from Ireland. But the reality is that this great saint endured incredible hardship to bring the Catholic faith to Ireland, where he had lived as a slave as a youth, having been captured by pagan Irish bandits.

If a saint could weep in the bliss of heaven, St. Patrick is surely weeping over what has become of his patrimony.

Would that a new St. Patrick chase away the snakes from modern Ireland, and restore her to her former glory. So as we Americans enjoy our green beer, let us not forget the real St. Patrick, apostle of Ireland:
I bind unto myself today the strong name of the trinity,
by invocation of the same, the Three in One, the One in Three.
I bind this day to me forever by power of faith Christ's incarnation,
His baptism in the Jordan river, his death on the cross for my salvation;
His bursting from the spiced tomb, his riding up the heavenly way,
His coming at the day of doom I bind unto myself today.
I bind unto myself today the power of God to hold and lead,
His eye to watch, his might to stay, his ear to harken to my need,
The wisdom of my God to teach, his hand to guide, his shield to ward,
The Word of God to give me speech, his heavenly host to be my guard.

Christ be with me, Christ within me,
Christ behind me, Christ before me,
Christ beside me, Christ to win me;
Christ to comfort and restore me;
Christ beneath me, Christ above me,
Christ in quiet, Christ in danger,
Christ in hearts of all that love me,
Christ in mouth of friend and stranger.

I bind unto myself the name, the strong name of the Trinity,
By invocation of the same, the Three in One, and One in Three,
Of whom all nature hath creation, eternal Father, Spirit, Word;
Praise to the God of my salvation, salvation is of Christ the Lord!
"The Shield of St. Patrick"

Thursday, March 16, 2006

Portrait of a Public Servant

David Hicks is the former elected Commonwealth's Attorney of Richmond. Some of the highlights of his tenure in that office include the flight of a large number of highly experienced prosecutors, most to neighboring jurisdictions; undercutting the former chief of police by advocating that his predecessor be re-hired (despite that predecessor having been forced to resign as Detroit's new chief after being charged with trying to carry a firearm onto an airplane); and perhaps most bizzarely, personally prosecuting two police officers for separate police shootings (he was 0 for 2, the first case resulted in two mistrials followed by an acquittal after Hicks pursued a reduced charge; the second resulted in a deadlocked-jury mistrial, results all the more surprising because Richmond juries are not commonly viewed as overly police-friendly).

So why are we not shocked to learn that he also sent his deputy to intervene in a felony assault of a police officer case and dismiss it after taking it from the assigned prosecutor? The defendant in the case? The daughter of Hicks' office receptionist. Perhaps continuing his tradition of disdain for the police, he did not even notify the victim police officer, much less consult with him about the case. In a response that elicits chuckles, Hicks claims he would have done the same for anyone else because there was no probable cause for the charge. Right. The elected C.A. would personally intervene in any John Q. Public's case to drop charges without even speaking to the arresting officer.

Not surprisingly, in one of his first cases out in private practice, he is representing the family of a man who fled from police, struggled with an officer, and was shot and killed by the officer.

Tuesday, March 14, 2006

Human Rights Watch: Hiding an Agenda Behind "Children"

An October 2005 publication of Human Rights Watch takes the criminal justice system to task for imposing life without parole (LWOP) sentences on "children." Who are these "children?" They tell us that "[i]n keeping with international human rights standards, throughout this report we use the terms 'child' and 'children' to refer to persons under the age of eighteen."

The very case that abolished the death penalty for "children," Roper v. Simmons, illustrates the insanity of giving the "children" a wholesale pass on the death penalty; it certainly shows why some of these monsters deserve LWOP. As Justice O'Connor described it in her dissent:
Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, "hog-tied" her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as ageneral matter, Simmons’ actions unquestionably reflect " ‘a consciousness materially more "depraved" than that of’ . . . the average murderer."
But Simmons was 17-- a mere child! So we can't execute him. Now this report has as its ultimate aim the abolition of LWOP for folks like Simmons: "Child offenders should be given the possibility of freedom one day, when they have matured and demonstrated their remorse and capacity for rehabilitation." Note: no exceptions, not even in the most heinous cases; no "child" offenders should ever be imprisoned for life.

Now, the SCOTUS, as I mentioned, abolished the juvenile death penalty in Roper. So, no more death penalty for those under 18 when they committed their crime. The most serious penalty left for the worst of these offenders? LWOP. But according to the sensitive souls over at Human Rights Watch, not only can we not execute these offenders, we should not even incarcerate them for life, because they can be rehabilitated, they were abused/poor/addicted to drugs/alcohol, etc., etc. We all know the litany of woe.

Remember this argument, because it is the same argument that will be used when the adult death penalty is abolished. Indeed, some of the more courageous liberals are already salivating at the prospect. Doug Berman, for instance, over at Sentencing Law and Policy, has already begun testing the waters:
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?

So next time you see one of those polls the left uses to demonstrate that support for the death penalty diminishes when people are given the alternative of LWOP, just remember: if the abolitionists get their way, there will be no life without parole.

HT to Crim Prof Blog for the Human Rights Watch story.

Monday, March 13, 2006

Judge Asked to Violate Separation of Powers

Maybe it's something in the water in Northern Virginia. Recall, if you will, how a state judge in Fairfax attempted to preclude the prosecution from seeking the death penalty in a case because the government had violated the defendant's rights under the Vienna Convention. That attempt was slapped down by the Supreme Court of Virginia as exceeding the judge's authority and violating the separation of powers (the way it works is: prosecutors [the executive branch] get to decide what to charge and what punishment to seek; judges get to interpret laws and make evidentiary rulings, not decide what punishments the prosecutors can seek).

Apparently tearing a page from the defense's playbook in that case, attorneys for Islamic terrorist Zacarias Moussaoui have convinced the judge at his death penalty sentencing trial to consider barring the government from seeking the death penalty. Why? It seems that a Transportation Security Administration lawyer, not one of the prosecution team, coached FAA witnesses about what had been happening in court, in violation of a common trial practice called a "rule on witnesses" or some similar phrase, which simply means that witnesses cannot be told what other witnesses have said in court, in order to ensure that their testimony is not tailored to fit what has already been said in court.

Now the defense thinks the remedy should be barring death as a potential sentence. Never mind that no precedent exists for such an exclusion. If the offense is really that prejudicial to the defendant, then there should be a mistrial. After all, if, as the defense attorney claims, "this is not going to be a fair trial," then imposing life imprisonment in lieu of death is not the appropriate remedy. The correct remedy is not for the judge to decide which punishment from among all the lawful punishments may be imposed. If there really is some fundamental unfairness, then her duty is to declare a mistrial and start over again, perhaps sanctioning any party who may have violated the rule on witnesses.

UPDATE: Find the defense motion to dismiss here. Interestingly, the remedies sought by the motion do not include preclusion of the death penalty, and the motion implicitly acknowledges that preclusion is not a recognized option. The defense is seeking to have the witness testimony excluded, and makes what seems like a fairly muted push for a mistrial. I had not particularly followed the facts of this case before, but it seems the government has a steep uphill climb in any event, since their case rests on asking the jury to sentence this guy to death for failing to cooperate with the authorities in identifying the methods used by the 9/11 hijackers. It's probably a good tactical move by the defense to seek the witness preclusion, further weakening an already weak government case, instead of strongly pushing for a mistrial, which would give the government another crack at putting together a better case.

UPDATE II: Here's the government's response to the defense motion. They shift all the blame for the witness coaching to the TSA lawyer, calling her actions "egregious" and a "flagrant violation" of the sequestration order. Their brief also notes there is no precedent for precluding the death penalty, and that the court can basically 1) sanction the witness for violating the rule; 2) instruct the jury that the violation can be considered in assessing the witnesses' credibility; 3) exclusion of the witnesses' testimony. #3 is the most extreme sanction, and is only imposed when there is both connivance by the party and actual prejudice to the other side. The gov't obviously is taking the position that the TSA lawyer is not part of the prosecution team, so there is no connivance, and any prejudice to Moussaoui can be cured by vigorous cross examination of the witnesses. My prediction: The judge will exclude the witnesses who actually were tainted; apparently one of the witnesses did not read the stuff the TSA lawyer sent, and in fact, sent it to the prosecution with a statement that she had not read the material. That witness should be allowed to testify.

Friday, March 10, 2006

California Supremes Rule for Child Molesters

Out on the left coast, the California Supreme Court has decided that the people of that state, speaking through their legislature, cannot make adults convicted of having oral sex with children register as sex offenders. Why? Well, the constitution forbids it! How? Well, the constitution guarantees "equal protection of the law" to citizens. You might recall that after the War Between the States, the problem existed of black citizens not being afforded the legal rights allowed to white citizens. The answer was the 14th Amendment, which made the states provide due process of law to all citizens and equal protection of the laws to all citizens.

What does that have to do with the people of California requiring child molesters to register as sex offenders? It seems that in California, molesters who "go all the way" with their victims and have intercourse do not have automatically to register as sex offenders. But those who have only oral sex with their victims do have to register automatically. This distinction in treating the two classes of offenders struck the California Supremes as somehow being a violation of equal protection of the law. For those who wonder how some modern jurists "reason," I'll explain: molesters who have intercourse don't have to register automatically, while molesters who have oral sex with their victims do have to register automatically. The People treat the two types of molesters differently. Different means unequal. Therefore oral molesters' equal protection rights are being violated!

Never mind that the People make such distinctions throughout the criminal code about how to treat different types of offenders. Here, the Supremes transparently thought the People shouldn't make the distinction, so they ruled that the People couldn't make the distinction, and came up with the flimsy legal window-dressing of the 14th Amendment (long the refuge of anti-democratic activist judges) to justify their action.

And lawyers wonder why they are held in contempt by normal people.

Tuesday, March 07, 2006

The SCOTUS yesterday decided 8-0 that the First Amendment is not violated by the Solomon Amendment's requirement of equal access for military recruiters to law school campuses which receive federal money. Amici for the anti-military position: Yale, Harvard, Columbia, New York University, Cornell and U Penn. The only law school amicus arguing for the military recruiters? My alma mater, George Mason, whose Dean had this to say about the Supremes unanimous slap down of the Ivy Leaguers:
This is really a stinging rebuke, not only to FAIR but to an entire industry that has become complacent and self-indulgent. Many law professors really do believe, with the late Justice Brennan, that their own strongly-held policy preferences are all encoded somehow in the Constitution. This is a timely reminder that it just isn’t so.
HT: Todd Zywicki at Volokh.

Wednesday, March 01, 2006

The General Assembly is considering two bills that would enhance use of the death penalty as a deterrent to crime and as a fitting punishment for certain murders. HB 782 would eliminate the "triggerman rule," which provides that only the actual perpetrator of a capital murder is eligible for the death penalty, and that accessories and principals in the second degree can only be punished with first degree murder. This removes the absurd restriction that only the person actually committing the act of killing can be executed... an equally culpable defendant can escape the ultimate punishment.

HB 1311 would make the willful, deliberate and premeditated killing of any person because he is assisting or previously assisted in a criminal investigation or prosecution a death-eligible offense. Again, a needed hammer to prevent witness tampering, especially given the rising prevalance of gang activity in places like Northern Virginia and Tidewater.

Sadly, it looks as if Ken Stolle, an ex-police officer and sometimes thought to be a conservative law and order type, who is the chairman of the Senate Courts of Justice Committee, plans to kill these worthy bills. Here is contact info for him should you want to register your views about these bills.