"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

Friday, June 30, 2006

Americans Still Want It

According to Crime and Consequences the latest polling shows continued strong support for capital punishment in America:
On the generic question Gallup has been asking since 1936, support is at 65%, a little above the 70-year mean of 63.7%. The historical data for this question are copied on CJLF's site here. The "anti" side likes to trumpet that support is down 15% from its all-time high in 1994. Sure, and it's also up 23% from its all-time low in 1966. Most numbers are down from their peaks and up from their troughs.
This again despite a constant, relentless, prolonged PR campaign by the social, religious, and political left to erode popular support for the ultimate punishment.

Thursday, June 29, 2006

Court Goes to Bat for Al-Qaeda

Here it is, and what's noteworthy is how the majority seems to bend over backwards to nullify the military commissions established to try the Gitmo prisoners and to hamstring any process against Hamdan. Thus, the Court rules that the military commissions are not authorized by Congress and therefore are invalid. Case over, right?

No, JP and the majority go on to make specific holdings about what charges the government can and cannot lodge against these prisoners (invalidating Hamdan's conspiracy charge), what evidentiary procedures can and cannot be used (even though, as Justice Kennedy points out, such a determination is premature), and worst of all, the uneccessary-to-deciding-the-case-at-hand assertion that the Gitmo people are subject to Geneva convention protections!

The dissent, by our chameleon-like Scalia, puts the issue succinctly:
On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.
(Hmmm... maybe the majority was just taking a page out of Nino's playbook).
I recommend especially Justice Thomas' well-reasoned, common sense dissent, wherein he eviscerates the majority's contention that "conspiracy to massacre innocent civilians does not violate the laws of war."

Perhaps the solution is suggested by the majority itself when it admits:
that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm.

Of course, we're only one ACLU suit and five justices away from such a "challenge" to his indefinite detention and subsequent ruling ordering his release. If the judiciary does not stop its unprecedented intereference in the conduct of this war, endangering the security of the country, the temptation will be great to start conducting summary hearings in the field (which would minimally comply with due process) and executing our enemies, particularly since Al Qaeda is not a signatory to the Geneva Convention and its members are unlawful combatants.

As the saying goes, the Constitution is not a suicide pact.

John Paul Stevens to Al Qaeda: We've Got You Covered

Stand by... U.S. Supremes apparently rule that terrorists held in Gitmo have Geneva Convention protections, and tell the President how to manage the War Against Islamic Terror.

Would that Bush had the courage to resist this intrusion on his executive powers, and tell the SCOTUS to pound sand, like his predecessors Andrew Jackson and the Great Emancipator.

More to follow when the opinion becomes available.

Wednesday, June 28, 2006

Nino: "I've Got Your Original Intent Right Here"

OK, so the SCOTUS was doing all right there for a while, with an emerging common sense majority on crimlaw cases, with our newest guys Alito and Roberts on board the plain meaning, originalist bandwagon... but then ol' Nino of all people has to go and screw things up. To his reasoning in U.S. v. Gonzalez-Lopez I give him this salute:












The case in a nutshell holds that even though all the Sixth Amendment actually says about having a lawyer in a crim case is:
"[i]n all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence,"
what that really means as interpreted and twisted by Scalia and the usual "Living Constitution" crowd, is:
"in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel of his choosing for his defence."

It's as simple as that. Scalia simply makes up a provision that was not in the text of the Amendment and reasons that since he and the other lawyers on the Court think it would be good if the founders had added the language they like, then surely that is what the Amendment actually means.

Scalia disingenously says as much when he writes that the Sixth Amendment requires "not that a trial be fair, but that a particualr guarantee of fairness be provided--to wit, that the accused be defended by the counsel he believes to be best." This last, italicized part is what Scalia wishes the Amendment says but which it does not, by its terms, say. So, like a good Living Constitutionalist, he simply asserts it and viola! Ipse dixit, the Sixth Amendment means not that you have a right to have assistance of counsel, but that you have a right to pick your lawyer! And if the trial judge mistakenly refuses to let you have the one you want but the one you actually get does a competent job in a fair trial, that's unconstitutional and you get a new trial.

Scalia can not, and does not, point to any fair, plain reading of the text itself to justify this addition; and although he cites precedent, he does not explain (nor could he, I would suggest) how his novel holding comports with any original understanding of the Sixth Amendment, which, if you check out my links below, was far different than what many people assume. Alito, teaching Scalia a thing or two about originalism, points out that Scalia's holding has no support historically.

Moreover, if this new found right is really part and parcel of your Sixth Amendment right, then how can we prevent the indigent from having counsel of their choosing? Many times I have seen an indigent defendant tell the court, "I want so-and-so as my lawyer" and the court replies, "Sorry, you don't have the right to choose your court-appointed lawyer." Scalia merely string-cites two cases to dismiss this problem with his holding.

I blogged about this case when the Eighth Circuit reversed the conviction and have before commented that, when it comes to the Sixth Amendment, to paraphrase Inigo Montoya, "I do not think that Amendment means what you think it means."

Tuesday, June 27, 2006

National People's Radio

I'd like to post something about the interesting batch of SCOTUS crimlaw cases, but need some more time to read and digest them. In the meantime, while driving home yesterday, listening to the enemy, NPR, I heard a very lengthy segment on filthy-rich Warren Buffet and his decision to give a ton of money ($31 billion) to another filthy rich guy, Bill Gates, specifically to Bill and Melinda Gates' charitable foundation. Then this morning, another lengthy segment on the same topic! You might think, listening to NPR, that these darlings of the left (apparently the only rich people NPR likes are leftist rich people) are the only ones around doing any charitable work.

NPR to my knowledge and belief has never run a story on the charitable activities of average folks coming together, such as my own Knights of Columbus or the myriad of local, state, national, and international charitable activities of religious organizations of many denominations.

Two reasons come to mind for this inordinate, orgasmic coverage: 1) the Gates foundation writes checks to NPR which must be salivating at the prospect of more coming their way; and more importantly, 2) Buffet is a rabid pro-abortionist, as made clear in this morning's NPR segment, which focused at length on his militant love of abortion, including funding training for doctors in how to perform abortion (this is needed because few med students really aspire to a career as an abortionist so med schools do not go out of their way to train abortionists) and funding advocacy groups like Planned Parenthood, NARAL, and the ridiculously named Catholics for a Free Choice.

UPDATE: It also seems NPR is either incompetent or lying, since they state in their piece that the Gates foundation does not support abortion rights activities. In fact, "the foundation also has given nearly $21 million to International Planned Parenthood over the last seven years, where funds have been used to promote abortions in third-world nations and to set up pro-abortion family planning centers in South America, Africa and Eastern Europe."

So why do tax dollars fund such an open advocacy operation as NPR?

Friday, June 23, 2006

SCOTUS right on two...

Davis v. Washington -- no one will be surprised if I think this is a common-sense opinion. Scalia rules that
statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentiallly relevant to later criminal prosecution.

So a 911 call is admissible when it's relating an ongoing situation, as in Davis, where the battered wife was relating what her assailant was doing; while in Hammon, the second case considered in the joint opinion, the hearsay was about criminal conduct that had already ended.

The case is not really remarkable (except for defining more clearly the scope of Crawford), since it essentially reaffirms the common law understanding of excited utterance or present sense impression exceptions to the hearsay rule (cf., Doe v. Thomas, 227 Va. 466, 318 S.E.2d 382 (1984)) as being reliable stand-ins for trustworthiness in lieu of cross-examination. Ken's fear that this hearsay exception will trump the 6th Amendment is misplaced. As Scalia noted, it's relatively easy for a trial court to figure out when the "exigent" or excited utterence part of the hearsay is over and the "investigatory" part begins. The Court figured it out pretty well in the Davis case, and other than an ideological belief that judges will simply find against defendants, there's no reason to assume courts won't do their jobs.

To the extent such excited utterances can be self-serving or designed to get the defendant in trouble, as Ken insinuates, they can be attacked in argument to the fact finder as such... that is, they should, as Scalia holds, be admissible as a threshold matter, but what weight to give them is an entirely different and eminently arguable question. Good lawyers like Ken will effectively point out when and why such a statement, while admissible, might not be worth much credence.

Dixon v. U.S.: Where the defendant claims duress as an affirmative defense, the Supreme Court holds that the common law practice does not offend against due process by placing the burden of proof to show duress on the defendant. The government need only prove the elements of the offense, and its burden of production is discharged. If the defendant wants to claim duress, she bears the burden to prove it.

This case, again, only makes common sense. The opposite conclusion, urged by the defendant, would have the government prove a negative: that there was no duress beyond a reasonable doubt! Especially with a modern, statutory offense such as lying on a firearms form, the scienter element is strictly limited: "Did the defendant knowingly sign the form?" These are in some degree "strict liability" type offenses, and duress does not negate the element of "knowingly" engaging in the conduct. Duress typically negates mens rea or bad intent, not scienter: if I'm truly forced to commit a crime that requires malicious intent, then I should be found not guilty because I acted not from malice but from duress. The Court not surprisingly concluded that in crimes without such an intent element the common law burden-shifting to prove duress does not interfere with due process of law.

Thursday, June 22, 2006

The Man for All Seasons


I should be nice today, since it's the feastday of St. Thomas More, the first lay chancellor of England, who was killed by Henry VIII for his opposition to Henry's break from Rome, refusing to swear an oath recognizing the King as supreme head of the Church in England, and for opposing the King's illegitimate marriage to Anne Boleyn. He is the patron saint of lawyers, statesmen, and large families, among other things. As chancellor, he was in effect a prosecutor, and before that had served as an under-sheriff for London. For his principled opposition to tyranny, and his service as a law-enforcement official and prosecutor, he is the inspiration for this blog.

“My lord, for one bishop of your opinion I have a hundred saints of mine; and for one parliament of yours, and God knows of what kind, I have all the General Councils for 1,000 years, and for one kingdom I have France and all the kingdoms of Christendom.” ........Thomas More (at his trial on July 1, 1535)

Jay Anderson has collected a cornucopia of More information at this posting.

"This is some nasty"

So said convicted drug dealer and triple murderer Lamont Reese as he got a taste of some drugs he hadn't had or dealt before... the kind used by the state of Texas to execute him for his crimes.
According to news accounts,
Evidence at Reese's trial showed Reese became angry when men outside the convenience store were flirting with his 18-year-old girlfriend, Kareema Kimbrough.
The couple returned with three others, including a pair of juveniles, and armed with handguns and assault rifles. Police investigating another shooting were told of people bragging about the convenience store gunfire. That led to the arrests of Reese, Kimbrough and their companions. Detectives found ammunition in Reese's car that matched bullets found at the shooting scene.

You can say goodbye to Lamont over at his nice personal page where he wrote poetry about his "neo-lynching"(if his victims were black, is it a "lynching" to vindicate their lives with his death?).

Pro-law and order Blawg

Finally, a scholarly pro-law enforcement perspective in the blawgosphere. Crime and Consequences has a bunch of law school types writing for it, such as Ed Meese and most impressively, James Q. Wilson.

So if you like a much more mannerly take on crimlaw issues than you find here, check out the profs.

Monday, June 19, 2006

Giving the Devil His Due

OK... if I had lots of time to waste, like I did this past week teaching trial ad to prosecutors, here's the review I would write of Feige's book:

It is a very natural human practice to universalize our experiences; to conclude that what happens to me must be indicative of what all humanity experiences, that my “world” of problems, observations, and interactions must be what many or even most people experience. It’s another and related common human foible to take the failings of one or two representatives of a group and make a general rule about that group.

David Feige, a former public defender, has written a fascinating story of the nuts-and-bolts of everyday criminal court practice in the Bronx, New York City. He walks us through what he assures us is a representative day in the life of a lawyer tasked with representing criminal defendants who cannot afford a private lawyer. It is a world filled with desperately poor and often hopeless defendants, brutal police officers, bullying, corrupt, and capricious judges, uncaring and harsh prosecutors, and over-worked and berated public defenders.

Throw in a depressing setting in nearly always overcrowded, dilapidated courthouses and jail cells reeking with the literal and figurative smells of fear, poverty, and despair, and you have the making of the inferno of the book’s title.

Mr. Feige paints an undoubtedly accurate picture of the frustrations and challenges of shepherding cases through a vastly overburdened system. The two years he describes for a typical serious felony case to reach resolution is thankfully unheard of in Virginia courts where about one-half of all criminal cases (felonies and misdemeanors) are concluded within four months of arrest, and felonies within about eight months. With such a snail’s pace court system it is not surprising that Feige finds himself counseling clients that he thinks are actually innocent to plead guilty rather than wait in jail for a trial. Nor is it surprising that the judges he encounters lean heavily on defendants to accept quick plea agreements that will remove their cases from the docket.

Mr. Feige spares little criticism for the people he sees as responsible for his clients’ predicaments: the police and the prosecutors, followed closely by the judges. It is this part of his book where his own perceptions seem to become universalized into a critique of the “justice system” instead of what might be a good critique of some of the people involved with the court system in the Bronx borough in New York City. A recurring theme in the book is that the police in the Bronx write large numbers of tickets for relatively minor offenses like trespassing, open container, and disorderly conduct, and Feige wonders that upscale communities in places like Manhattan are not subjected to this practice of what he calls “overpolicing.” He does not even address, much less answer the obvious response that this “overpolicing” is in fact the very “broken windows” concept of police work that has borne fruit in many underprivileged communities, where small offenses like public drunkenness and grafitti are aggressively dealt with in order to signal that the community is not simply being surrendered to lawlessness. In Denver most recently, to cite only one example, city-wide crime decreased 7.4% in the wake of an aggressive broken windows strategy, and 21.5% in one particularly blighted neighborhood. It should not come as a shock to Mr. Feige that these methods of policing are not necessary in wealthier communities where these offenses are not harbingers of neighborhood decline and the increased crime that accompanies it.

Feige catalogues well the ills of the justice system; however he offers his reader no hints about the origin or possible cure for these ills. His complaints about the judges he encounters are telling, and suggest that revisiting New York’s system of direct local election of judges would be in order. That the system is overburdened and under-funded is apparent. But here, one recalls that New York City is a capital of liberal politics, with three of the last five mayors being Democrats, and the last two, Guiliani and Bloomberg, liberal Republicans, in one of the more reliably liberal states in the country. If, as Feige portrays, the criminal justice system there is indefensibly broken, some larger conclusions about the success of liberal urban governance might be profitably drawn.

“Indefensible” is nonetheless an interesting recounting of a defense lawyer’s struggles in difficult circumstances. As a critique of the “system,” however, the book misses the mark at which it aims. The fact that New York City has allowed the Bronx courts to deteriorate to the extent witnessed by Feige, can hardly be said to constitute proof that the system of justice anywhere else is dysfunctional, or at least as dysfunctional.

Perhaps, then, the subtitle should refer not to the inferno of “American” justice but to the inferno of “New York” justice.

'Course, I might substitute: the inferno of "Yankee" justice.

Friday, June 09, 2006

He Blinks

Gov. Tim Kaine has granted a stay to the execution of Percy Walton because the gov feels not enough testing has been done on Walton's current mental capacity to understand that he's being executed. "Due to the history of judicial concern about his mental status, the claims in Walton's clemency petition are entitled to serious consideration," said Kaine. In other words, we're gonna keep testing and litigating until the courts give us the answer we want, which is that he can't be executed because the poor dear doesn't understand what it all means.

OK, Percy, start acting as crazy as you can!

Tuesday, June 06, 2006

There they go again...

Are they lying or just distorting the facts to fit their agenda? The anti-death penalty crowd, I mean.

In Virginia, we're getting ready to mete out final justice Thursday night to a man named Percy Walton. It is always important to remember what these thugs have done to land them on death row, so here's a summary of Walton's crime: Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore were Walton's victims. The victims were robbed and shot in the head; Mr Kendrick face down in the carpet listened to his wife beg on her knees for her life before being shot in the head with the gun muzzle pressed against her skull; then he himself was shot in the back of the head the same way as he lay crying. Moore was shot in a separate murder and stuffed in a closet.

Walton plead guilty to capital murder and was sentenced to death. Now his lawyers, aided by the usual crowd of activists and even, bizzarely, by the Christian "conservative" Rutherford Institute (which has bought into the liberal religious activist anti death penalty mentality), are pointing to an array of bizzare conduct by Walton and some professionals' opinions that he's nuts, and arguing that his late-found lunacy should spare him from his fate.

Yet fifteen different judges have reviewed this case and agreed that Walton was competent to plead guilty and understands what his punishment is.

In May of 2004 the Federal District Court summarized the facts supporting Walton's competency and sanity both for purposes of pleading guilty and for understanding the nature of his punishment:

When Walton was seventeen, he received the Wechsler Adult Intelligence Scale - Revised (“WAIS-R”) IQ test and achieved a full-scale score of 90, placing him in the “average” range of intelligence. When Walton was eighteen, he completed the WAIS-R IQ test again and achieved a full-scale IQ of 77, placing him in the “low average” range, but not in the mental retardation range. When Walton was twenty, he was again given the WAIS-R IQ test and scored a full-scale IQ of 69. Finally, when Walton was twenty-four, he received the “GAMA” test and scored a 66, a result considered “well below average.” In a footnote, the court observed that the GAMA test heavily relied upon by Walton was generally used as a screening device and was not one of the standardized tests of intellectual function recognized by the Virginia Department of Mental Health.

The court also considered the opinions of Dr. Stanton Samenow and Dr. Patricia General, both of whom opined that Walton was not mentally retarded.This court has already found that Walton understands why he is being punished and that he will be punished by execution. Furthermore, the court also finds that Walton has consistently selected electrocution as a method of execution and that he understands that electrocution will result in his death. Before pleading guilty, Walton stated “the chair is for killers”and that he wanted to plead guilty, get “the chair” and “go out like a man.” Dr. Samenow testified that Walton “understood that a capital murder charge can result in the death penalty ‘by electric chair or needle.’” More recently, Dr. Mills, the psychiatrist appointed by this court, testified that Walton expressed a preference to die by electrocution. Particularly revealing is the testimony of Allen Glasgow, a rehabilitation counselor who was with Walton on May 23, 2003–just a few days after Walton selected his method of execution. Glasgow testified that Walton communicated well, completed a visitor’s form without assistance, and stated that he wanted his mother to receive his remains upon his death.

Moreover, the Court noted that the defendant had been through a plea colloquy with the trial judge before his guilty pleas were accepted, a colloquy which satisfied the court that Walton understood very specifically what was happening to him.

So isn't it interesting how these professional anti-death penalty advocacy groups tell their audiences only about the supposedly crazy conduct Walton engages in, without mentioning the inconvenient facts that have led the courts to conclude that, in effect, he's nothing but a snivelling malingerer? (We'll leave to another day discussion of the curious concept that a vicious killer should escape death if he's mentally ill).

This case will give Governor Tim Kaine, who is personally opposed to capital punishment, another chance to grant clemency to a death row inmate and commute his sentence to life imprisonment.

Will he, or won't he?

Thursday, June 01, 2006

2 Strikes and You're Dead

Child molesters will need to think twice about practicing their perversion in South Carolina, the legislature of which has just passed a law which would "allow for the execution of anyone convicted more than once of raping a child younger than 11."

That friend of freaks, fruitcakes, and child molesters, the ACLU, will no doubt be heard from shortly arguing against the constitutionality of the law.