"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

Wednesday, April 26, 2006

Rape, Race, the Right, and the Radicals

It's entertaining to watch the Duke stripper/rape case unfold. It's turning some advocates around 180 degrees from their usual positions.

On the one hand we have the pundits claiming that without DNA tying the players to the victim, rape cannot be proven. The supporters of the college kids, who are wealthy whites, would usually be expected to give the state some leeway, and exercize some patience in allowing the DA to make his case in court. But no, when their own kids or their alma mater's sports heroes are accused, "if the glove don't fit, we must acquit" and no DNA means no case. As a BBC commentator put it: "Lacrosse team members and their parents, athletes past and present and various right-wing commentators in the US media hint darkly that the woman was either lying or had been assaulted before she came to the party." (here, by the way, is a good summary of some problems with the case, and some problems with some defense evidence).

Never mind that one can still conspire to abduct and rape, and one can be present, aiding and abetting those crimes, without leaving a drop of genetic evidence behind. So the lack of a DNA match, while significant, is hardly dispositive. The rape exam apparently showed forcible intercourse, after all. And while it is true that the accuser and especially her co-stripper and witness seem to have some credibility hurdles to leap, the DA presumably has more evidence before him than the commentariat. So we wait and see what develops at trial.

On the other hand, so-called "civil rights activists, African studies professors, feminists, black community leaders and a lot of the stalwarts of the left that you find on any American campus have all lined up behind the victim and her claims," notes the BBC commentator. One has to wonder if Bishop John Bennet, who said in a protest march, "why would any community that has any kind of sense allow persons accused of rape, freelance and walk the streets as if nothing has happened," would take the same view if the accuser were a credibility-challenged white victim and the suspects were black men.

Meanwhile, the liberal blogosphere has wasted no time convicting the accused before the trial even starts: "A group of young wealthy White men felt that it was ok to assault this woman, raping her and yelling racial slurs at her. This should be blowing up in the blogosphere folks. This is also one of those 'if this had happen to a White woman would we have already heard about it' stories." (never mind that Google gives over 2 million hits for "duke+rape+race").

It's sad we've come to this. Conservatives should know better than to trash a purported victim before the facts are all in; and it should not matter that these are privileged white kids. If they did it, they deserve prison. Period. Even if they did not rape the woman, they should be punished for excessive, underage drinking and having a stripper perform. Not the kind of activity real conservatives think deserving of defense.

Liberals for their part should know better than to "rush to judgment," right? Whatever happened to the sacred presumption of innocence they piously invoke whenever one of their favorite victim-class members is charged with a crime? It's truly scary to think that many of these same liberals want to criminalize "hate speech"... this attitude of guilty until proven innocent makes them look more like Robespierre than Thurgood Marshall or Earl Warren.

Finally, some silence

The child sex advocates over at a group called Gay Lesbian Straight Education Network (or GLSEN, pronounced "glisten"-- I'm not making it up!-- which claims to "strive to assure that each member of every school community is valued and respected regardless of sexual orientation or gender identity/expression," and whose Executive Director states on their web site that "It's all about the bottom line"-- again, I'm not making it up!) is hoping that your children in school will recognize the horrible persecution that homosexuals are undergoing right now in this country by joining in their "Day of Silence" protest, where participants remain silent during the school day, and hand out cards explaining that the silence is to highlight the "problem" of "gay" students being silenced by harassment, intimidation, and down-right meaness.

Well, some hopelessly prudish old folks might view the "problem" with our schools not being silence but rather that children are being encouraged to "explore" their "sexuality" in school in the first place, whether it be it normal or homosexual conduct, and that adult homosexual advocacy groups like GLSEN take such a keen interest in promoting open homosexuality in the schools. After all, Virginia is not the only state that criminalizes fornication and "Carnal knowledge of a child between thirteen and fifteen years of age" (sometimes inaccurately called "statutory rape"). How can these groups encourage activity that is against the law and public policy of the Commonwealth?

And what planet are the homosexual activists living on anyway? It was certainly true that this vice used to be the "love that dare not speak its name;" but I'm not the first to note that lately its the perversion that just won't shut up.

Monday, April 24, 2006

News Flash: Death is Often Painful

Human Rights Watch, which openly "opposes capital punishment in all circumstances and calls for its abolition," is all teary-eyed about the possibility "that states put condemned prisoners at needless risk of excruciating pain during lethal injection executions." As far as I can tell from their report, there is no hard, conclusive proof that any execution was carried out with inadequate anethesia leading to an inmate's excruciating pain, and of course, we should all urge the penitentiary officials in charge of the protocols for these executions to ensure that that the inmate is sufficiently out of it before he's executed... but come now, aren't we getting a little sanitized about this? Just a few years ago, Virginia was electrocuting people, which I assure you, causes major discomfort to the condemned prisoner. As a matter of fact, we still offer you the option, if you prefer going out like a man instead of being put down like a rabid dog.

But this is part of the abolitionist agenda: shift the focus from what the condemned did to the remote possibility that he might actually feel some pain while dying. And of course, if the condemned feels pain, that must violate the Eighth Amendment, right? So it goes.

Wednesday, April 19, 2006

Legal Reasoning Lesson, vol I

OK... another lesson in legal reasoning for any "lay" people perusing this blog. This is my continuing effort to educate you non-lawyers about the delicate and intellectually rigorous method of applying legal reasoning to the text of the Constitution. I hope that this public service will help you understand and appreciate our judges, and not complain when they come up with rulings that seem incomprehensible to your untrained minds.

Today's lesson involves the Sixth Amendment to the federal Constitution, which in relevant part states:
"In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence."
First, I have to apologize for invoking the actual language of the Constitution. Lawyers really should never stoop to this level, since layer upon layer of case law tell us all we need to know about the Constitution, and the text itself is a quaint relic of a bygone age.

Nevertheless, there it is. It says that in criminal prosecutions, you have the right to have a lawyer assist you. So assume you are a drug dealer facing trial. You want to hire lawyer 'x' but the judge tells you that you can't have lawyer 'x' represent you at trial, but must accept lawyer 'y' because lawyer 'x' is not admitted to practice in the court your case is in. Lawyer 'y' represents you, he is a competent attorney who gives you effective representation. Question: have you received your right to "Assistance of Counsel for [your] defence" as the Sixth Amendment requires?

If you can read plain English and have not received legal training, your answer is probably "yes." A competent lawyer represented you at trial.

But friend, that answer is far off the mark. If you knew how to interpret the Constitution, you would clearly understand that what "Assistance of Counsel" means is not that you have a competent lawyer assisting you. It means you have a right to choose whichever lawyer you want, whether or not he is admitted to practice before the court your case in. And it means that if the court gets it wrong and really should have allowed you to have lawyer 'x' instead of lawyer 'y,' the appellate courts will not even consider whether you had a fair trial and competent counsel, but will instead summarily reverse your conviction for you!

This is after all, justice American-style: a fair trial with competent counsel is not enough; your right to choose your own lawyer is "rooted in respect for the dignity and autonomy of the accused," and whether that accused is a convicted drug dealer whose guilt was established in a fair trial with competent counsel is beside the point: your dignity and autonomy outweigh any minor concerns about public safety, finality of judgments, or the rights of the people to enjoy their right to a community unmolested by drug dealers.

After all, justice is not about rendering people what is due to them, a fussy old idea perpetuated by dead white males, but is simply about following procedures. If the procedure was violated, even though it did not result in an unfair trial, then "justice" was not done.

Now that you know how the lawyers have re-invented the Sixth Amendment, and have gotten rid of your naive, non-legal, text-bound understanding of the Constitution, class is adjourned.

HT: Crim Prof Blog.

Tuesday, April 18, 2006

Rumble in the (Legal) Jungle

Personally, there are a few members of the defense bar I would gladly agree to take on if they, like these moronic attorneys in Montana, filed a "Motion For Fist Fight" between the defense attorneys and the prosecutors. Apparently this motion was filed in a homicide case where the defendant is asserting self-defense, and the state is arguing that excessive force was used. This motion, which appears to have been actually filed, is the defense's sarcastic response to the state's position. The meat of the motion is this passage which appears here, except for the brackets, as written by the defense attorneys:
the defense moves that before the hearing April 17, 2006 that the state be given a chance on what they cherish in resolution of a dispute and that there be a fist fight with one side being Mr. Coroner and Mr. Donovan [the prosecutors] and the other side being Kirk Krutilla and Bill Buzzell [the defense attorneys]. For further insurances, that Coroner and Donovan don't get beat up to bad, an group of defense attorney's drunk and stoned friends will be there to assure Conner's and Donovan's safety.

etc. Wow. Needless to say, it should scare the defendant that his attorneys are either 1) themselves "drunk and stoned;" or 2) can't write in the English language.

In any event, the state actually responded to the challenge by asserting that "counsel for the State could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest, ancient methods of trial by fire, water, and the like no longer have any place in our system of justice." They go on to cite the Ethics rules they believe the defense attorneys breached by filing their motion.

April 17 was yesterday... I wonder if the judge granted the motion?

(HT: Feddie)

Monday, April 17, 2006

Poor Tim

And so the Eyebrow must make a call... do I follow what I consider to be the moral requirements of my Faith and commute a death sentence to life imprisonment, or do I ignore my deeply held moral and religious beliefs and allow what I consider to be an unjust act of killing to take place? In the afterglow of Easter, maybe Tim Kaine is conscious of another civil leader who faced the same dilemma: allow an unjust killing to occur or bow to political expediency and ignore the calls of conscience.

His religious advisers in the leftist diocese of Richmond's "Office of Peace and Justice" will surely tell him that his duty as a Catholic is to not let the death penalty occur, since "[a]s followers of the non-violent Jesus, our faith teaches us to respect all life as sacred, even the lives of those who fail to show a respect for others." (Guess they missed the part where Christ violently threw the money-changers out of the Temple).

Alas for poor Dexter Vinson, the brutal sex killer who will assuredly be executed by the Commonwealth of Virginia. Instead of a governor (like Mark Warner, or even Doug Wilder) who supports the death penalty and doesn't have to worry about the political fallout if he were to grant clemency in a suitable case, he draws Kaine, who has to allow Vinson to die to maintain his political viability.

Don't get me wrong. Vinson should be executed; it's the right thing to do. But how sad to see a pol like Tim Kaine twist his conscience up in a knot. If he really believes the death penalty to be wrong, then he should commute Vinson's sentence and damn the consequences. If he allows Vinson to die, he will sacrifice his character for political expediency.

Poor Tim.

Thursday, April 06, 2006

ACLU: "Scouts, No; Islam, Yes"

It's oral argument day in the 7th Circuit case of Winkler v. Rumsfeld, wherein the ACLU is trying to boot the Boy Scouts out of Camp AP Hill, just up the road from here in Fredericksburg, Va. That's the site of the Boy Scout Jamboree.

The ACLU kick and scream and pout whenever they hear of any support, however tangential, given by the government to the Scouts. Why? The Scouts require members to profess belief in "God." Note-- not Christianity, not Judaism, not Islam, not Buddhism. No, just a generic belief in "God." Somehow these ACLU lawyers see this requirment as running afoul of the First Amendment. That provision says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercize thereof...." Now if you're not a lawyer with the special skills and training necessary to understand this complicated phrase, it currently is construed by the ACLU to mean that the government can never, ever, permit any activity on public property that acknowledges the existence or importance of a (traditional Western) religion, or even allow a group that professes such views to have access to public land if the government has to expend any resources to accomodate that presence.

Now, it's true that the ACLU is Communist in its origins and orientation and that is certainly the explanation for much of their agenda.

But please don't get the impression that the dandies at the ACLU hate all religion or anything. Because they are partial to some religions. There is one religion in particular that they support, one religion that they don't mind getting a helping hand from the government, despite their vigilance against the corrupting influence of traditional Western religion creeping into the public life of this country.

Yes, the ACLU thinks some religions are more equal than others, which is why they are stonily silent when Moslems get preferential state treatment, as when Boston sold public land worth $2 million to a mosque for $175,000. The ACLU won't touch this case.

They also refuse to intervene in the case an Army Corps of Engineers lease of public land in Iowa to a Moslem group for the construction of a specifically Moslem youth camp, including a dome-covered prayer tower. The local ACLU sages stated:
There is no establishment clause violation in government permitting the building of a structure that resembles a mosque or church…we are unaware of any cases involving governmental religious displays based on the theory that certain public architecture is an endorsement of one religion over another…this is not the case in which to try that argument out….
So even though the ACLU hates the Scouts because they harbor religious believers and don't allow homosexuals to have access to the boys, remember: they are not so bad after all, because Islam needs a helping hand from the government just now, and the ACLU won't get in the way.

Shocking News-- Lawyers Making Big Bucks!

It does not surprise me to learn that court-appointed criminal defense attorneys are racking up huge salaries. I know in my jurisdiction, where we do not have a public defender's office, there are attorneys who do nothing but court appointed criminal work, and none of them are suffering in terms of lifestyle. In fact, more than one earn six figures.

So please, enough of the hand-wringing about indigent defense being underfunded. PD lawyers don't make alot, but then, neither do prosecutors. But I suspect in most cases neither group are in the business solely to make a ton of money. Those who want to make the big bucks go out and do court-appointed work or (ugh) go over to the dark side of civil law.

HT: Arbitrary and Capricious

Tuesday, April 04, 2006

The Two Americas

I become increasingly convinced there are in fact "two Americas," as John Edwards infamously claimed befored losing the last presidential election. But not the "haves" and "have-nots" that the left constantly attempts to pit against each other in a zero sum game of trying to increase the size of the welfare state.

No, I'm thinking of the other two Americas, in which one group sees social order, traditional morality, and values like following the law and respecting authority as vital to the health and viability of our nation; and another America that sees chaos as desirable, that rejects traditional morality as oppression, and that preaches (and lives) contempt for authority, particularly for the police, the most manifest public symbol of social order.

Item: Pittsburg criminal Rayco Saunders "has had a hard life. He says he never knew his father; his mother died of a drug overdose when he was 11. He was stabbed in the back at 15, shot in the chest at 21. He says he shot at people himself and dealt drugs. He was arrested six times from 1994 to 1997 and served four years in prison after a shootout with a police officer. He says he was framed."

This piece of human wastage offers this advice to his fellow citizens:

• Don't snitch on others just to save yourself. "Stop snitching is for those guys out there ... selling more drugs than Noriega, and their only out is to tell on somebody. ... If a (criminal) wants to be a Good Samaritan, OK. But send (him) to jail. Don't give him immunity to do what he wants on the street."
• witnesses have no obligation to help police. "Do your job — you're the police. ... I've been wronged by the system. Do you think I would help the system? ... Do cops snitch on other cops?"
• The authorities can't protect witnesses. "What's happening to the innocent witness? They get dead or ... terrorized for life."
• Sometimes you must right wrongs yourself. "I'm a man, and I can handle my own situations like a man. ... I've done dirt. I'll admit that. So I can't run to the police."

And so, better the guilty go free (as long as they're my homies-- if they're my enemies, I'll exact street justice) than the evil cops get an arrest.

Item: U.S. Congress"person" Cynthia McKinney bypasses a security checkppoint at the Capital, is not wearing her identifying pin, and when she is stopped by an officer saying "ma'am, ma'am" proceeds to assault the officer. Her take? In a press conference, McKinney told reporters, "Let me be clear. This whole incident was instigated by the inappropriate touching and stopping of me, a female black congresswoman." Her support group consisted of "Lethal Weapon" Danny Glover and Harry Belafonte. Her lawyer opined that she was "just a victim of being in Congress while black. Congresswoman Cynthia McKinney, like thousands of average Americans across this country, is, too, a victim of the excessive use of force by law enforcement officials because of how she looks and the color of her skin," This is not the first time she has pulled the ole race card out against Capitol police doing their jobs to protect the Capitol by making sure only authorized individuals are allowed through checkpoints.

[UPDATE: to her credit, Ms. McKinney has apologized for the incident, even while a grand jury considers whether to indict her for the assault]

Item: Some lawyers with an agenda and a hatred for the police try to perpetuate the myth that if one officer is bad, "this is how these guys think." Or "to really understand what it's actually like to deal with cops, watch" one officer deal rudely with a media plant playing "gotcha" with the police department. Of course, this same defense lawyer swoons over seeing and meeting Bill Clinton while hobnobbing with the New York social set, so perhaps he does belong to another America than most of us. But the penchant for broad-brush smears doesn't stop with the police: he also thinks that if one prosecutor does something bad, then "prosecutors do it all the time." Never mind that if one were to say "look at that [member of ethnic group A] dealing crack. [Members of that ethic group] do it all the time. To understand [ethnic group A], just watch this crack dealer," this person would have a fainting spell and need his smelling salts.

One might excuse a defense lawyer, since lawyers don't often view reality like most people do. After all, if 99% of your clients are guilty and you have yourself wrapped up personally in their cases, of course you want to blame society, or the police, or the prosecutors, or the Republicans, or whomever. It makes you feel so much better about representing the 99 guilty if you can make yourself (and try to make everyone else) focus on the 1 case in a hundred where a mistake is made in getting the right person arrested.

It's not surprising, however lamentable it may be. Logic, after all, is one of those constructs of dead white males and shouldn't shackle the passionate paragons of self-professed enlightenment personified by these examples.