"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, September 29, 2006

Marriage: before the bench and on the ballot

This just in: A gay couple from Rhode Island has the right to marry in Massachusetts because laws in their home state do not expressly prhibit same-sex marriage, a judge ruled Friday.

As our state's Catholic bishops succinctly put it:

On November 7th, Virginia voters will have an opportunity to decide whether to adopt a state constitutional amendment that would affirm marriage as “a union betweenone man and one woman” and draw a clear distinction between the public institution of marriage and other voluntary relationships. This ballot question has profound significance for the future of the family, the most fundamental social structure of our society...
the marital bond is very different than any other voluntary relationship because of its stability, the environment it provides for the development of families, and the protection it accords spouses and children. Through marriage, two equal but sexually
different persons give themselves and their complementarity to each other for a lifetime, for the benefit of each other and their family; by their pledge of lifelong fidelity, theyprovide the most stable conditions for bringing children into the world and raising them; by their sexual difference, they provide their children the full range of human nurturing that comes by being raised by a mother and a father.

If Virginians want marriage to be re-written by unelected, effectively unaccountable judges, vote "no" to this amendment. If they want to decide to affirm the nature of marriage and place it beyond the reach of social engineers, especially those wearing black robes, vote "yes."

It's as simple as that.

First Jewish African American Senator?

With all the hubaloo over George Allen regarding his choice of vocabulary and his religious heritage, does it strike anyone else as odd that the dems are accusing him of being racist and anti-semitic when:

1) Allen is in fact an African American, since his mother is a native of Tunisia; and last time I looked, Tunisia is situated in Africa.

2) Allen is ethnically Jewish, since his mother is or was Jewish, and as we all know, Jewish-ness traditionally is held to descend matrilineally.

I don't get it. Either Allen is a basket case of self-loathing psychoses, or the dems are just full of bull.

Thursday, September 28, 2006

Pounding the Table

I have followed with some interest the debate going on between Mark Shea of Catholic and Enjoying It and his foes at Coalition for Fog, about whether we are torturing detainees, what is torture, what should our policy be from a moral point of view. Mark Shea is a professional blogger and popular Catholic author who holds out on all things Catholic from his blog. It is unclear what his qualifications are for doing this, but he has a large following from all appearances.

Shea not only opposes whatever it is he thinks is torture, he also opposes the war in Iraq and any move to take out Iran. (In fact, I have been banned by Shea from even commenting on his blog, for suggesting that his attempts to "support" and praise the troops is inconsistent with his position that the Iraq war is unjust-- that if he really believed that, he cannot and should not support the troops in perpetrating injustice, but should rather advise them not to participate in the war at all rather than jeopardize their souls by formal cooperation in a moral evil.)

[What may explain Shea's fervent anti-what-he-thinks-is-torture/anti-war histrionics?

IMHO, He's the kind of guy often seen among fervent converts, who will back up whatever current policy position is coming out of Rome. If the Pope is against capital punishment, by golly, I am too! If the Pope is against the war in Iraq, by golly I am too! If the Pope thinks dialoguing with Moslems is a great idea, by golly I do too! You get the sense that if the next Pope favored more use of capital punishment, was OK with our war against Islamic jihadists, and was, like all popes prior to the late 1960's, a plain-spoken foe of Islam, that Shea would do a 180. Why? He apparently has his faith mixed up with the notion that a Catholic has to be with the Pope, not just on matters of Faith and Morals, but with his every prudential policy position, even about world politics!

It's sad because it plays into the hands of the fundamentalists who claim that Catholics believe the Pope is inerrant.]

Nevertheless, regarding torture, my own view is similar to this sound framing of the issue:

Torture is illegal under both international and U.S. law. Bush says he did not and will not authorize it. The question is how to handle what Bush recently called an "alternative set of procedures": rough or humiliating interrogation practices that exceed what is allowed under strict interpretations of the Geneva Conventions but that stop short of torture as conventionally defined. News reports, not officially confirmed, say that the CIA has subjected detainees to so-called stress positions (such as standing for long periods), cold and hot conditions, slapping, bombardment with light and sound, sleep deprivation and manipulation, and "water-boarding" (simulated drowning, which the CIA has reportedly discontinued).

Very simply put, Shea thinks these latter examples are torture under the Church's view. He is, however, officially agnostic about what the legal definition of torture is:

I declined to play this game on the basis of my ignorance of standard law enforcement procedures. People desperate to know what was and was not permitted were routinely referred by me to people who do the work of interrogation and write the Army regs, much as I refer people who want to know about plumbing to plumbers. This is what Victor calls "evasiveness". But the only real evaders were those who were and are making essentially the same argument that Victor continues to make to this day, that because Mark Shea doesn't know enough about the regulations governing prisoner treatment in the Army regs for the past 50 years, it is therefore impossible for anybody to say what torture is, much less condemn it.
Memo to Mark: what happened at Abu Ghraib and what the Bush administration wants to be able to do with jihadi interrogations that you denounce as torture (the dog-leash stuff, the guy with the blanket on him) is NOT TORTURE under accepted definitions of that term; while you may think that they are torture as defined by the Church, they are clearly not as understood by international or domestic law. Figuring out what torture is is not difficult. Torture is usually defined in international law as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(This particular representative definition, by the way, is from the U.N. Convention Against Torture, not from the evil Bushies). Do the Abu Ghraib pics that so bother Shea depict "severe pain or suffering" as opposed to short-term humiliation? Reasonable people can disagree but I don't see it as involving any "severe" gradation of either "pain" or "suffering." Is it imprudent? Is it cruel? Yes to both, since there was no reason to it beyond the sadistic whims of the individual soldiers involved. Was it sanctioned by the military? No-- that's why Lyndie England was given three years in prison.

But are these types of activities (assuming they are used in the future for interrogation purposes and not as sadistic entertainment by rogue soldiers like Lyndie England) "torture" even as defined by the Church? For this one has to look at the very few places the Church has mentioned the topic. The "best" it gets for the Mark Sheas of the world are the most contemporary sources. They will find no support for their absolutely-no-physical-discomfort position in anything the Church taught prior to 1967.

These are, as best as I can determine, to two most authoritative statements on this issue supporting the absolutist position:

1) Vatican II's Gaudium et Spes rejected "all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures and all offences against human dignity" (Gaudium et spes, n. 27).

2) Catholic Catechism #2297: "Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity."

The problem with Gaudium et spes as a source of what is or is not permissible, is that it is self-referential: that is, it rejects all physical and mental "torture" without defining what torture is! As for the second part of the sentence, it rejects "undue" pressures again without defining what this means. It should come as no surprise that this document, like so many others promulgated by Vatican II, is less than Thomistic in its language.

As for the Catechism, by its plain language, it is directed at the motivation of the conduct, not the content of the conduct. Hence it rejects torture intended to produce confessions, punish the guilty, etc. But the methods we use against our enemies (which again, are not "torture" under civil law) are not engaged in to induce confessions. We use these methods to secure actionable intelligence about our enemies. What Lyndie England did might arguably fall under this definition, since she was motivated by hatred or some other illegitimate motive. What a trained interrogator might uncover through controlled, judicious use of such methods is clearly not encompassed by this definition.

So to sum: the methods Shea rejects as "torture" are not understood to be torture by recognized legal standards. Moreover, it is entirely unclear that the scant guidance given us by formal ecclesiastical documents demonstrate that these methods are "torture" from the viewpoint of moral theology.

Sadly, I fear that reason and logic notwithstanding, Shea's response to all this will simply be to dismiss me as a "torture excuser." Shea has no patience, when dealing with this issue, with making distinctions in moral theology, an endeavor that fills seminary texts and learned treatises. Rather, like a modern Cromwell, he knows righteousness or unrighteousness when he sees it, and needs no other reference to guide him. So he accuses Catholics like me of deliberate obfuscation about what torture actually means both in civil law and in moral theology, while absenting himself from the realm of first principles, the first of which is defining your terms.

It's the old lawyer's adage: when you have the facts, pound the facts, when you have the law, pound the law, when you have neither the facts nor the law, pound the table.

Jury Lessons

Part 2 and Part 3 of Windypundit's jury duty story are up. He was a juror in an assault on a police officer case, which in Illinois, as in Virginia, is ramped up to a felony because of the nature of the victim, a police officer in the course of his duties.

In Windy's case, a hispanic man was stopped by a police officer and the officer claims the man got out of the car, accused him of picking on him because he was Mexican, and head-butted the officer. The officer had to have stiches in his head. The defendant claimed that the officer provoked the incident and hurt himself by headbutting the defendant, who also claimed that he had a bloody nose from the incident.

Problem was that the arrest pics show no blood on the defendant or his clothing. He claims he changed his shirt, the police say not.

Not the case of the century, but Windy's recitation of the way the evidence came out, the demeanor of the lawyers and the defendant, and especially the deliberations of the jury, make for interesting reading, especially for trial dogs who often wonder how we're perceived by juries.

The good news is, if Windy's jury is representative of juries in general, they actually pay attention to the evidence and deliberate on it pretty thoroughly. The bad news is, as I have found out, sometimes they can get hung up on really trivial details. For example, in Windy's case, the tickets the officer wrote the defendant were introduced into evidence for some reason. This lead the jury to wonder if the officer was telling the truth about the incident, since he testified he was attacked before he could write the tickets.

Now what surely happened was that the tickets were written ultimately after the defendant was subdued. This would seem so apparent that the prosecutor never bothered to actually ask the officer about it. Fortunately, Windy and his fellow jurors figured that the tickets were probably written after the incident was over. But that they spent time on such a matter underscores an important lesson for a prosecutor (or any litigator, for that matter): you may know what happened to the last detail, but the jury doesn't; you may understand what the typical process would be in a certain situation, but the jury may not: therefore assume nothing and establish everything down to the last detail! You never know what seemingly trivial fact the jury will seize upon and perhaps decide the case upon.

What was also telling was Windy's admission that it really affected him to see the defendant's family in the gallery, and the police officer/victim. It apparently made him much more careful about his decision. Word to the wise: keep your people around during argument. I like to be able to point to my witnesses in the gallery during close while I mention their testimony to bring home to the jury (without expressly saying it) that the witness cared enough to stick around and is watching what they're doing.

Windy and his fellow jurors ultimately convicted the defendant, and you can feel the ambivalence in his words as he relates the experience, not so much because of doubts about the evidence, perhaps, but because it is never easy to look at someone and say "guilty."

Excellent observations from Windy, and tommorrow hopefully he'll give us his final "refelections."

Tuesday, September 26, 2006

Speaking of Defamation

OK. Look, I'm no particular fan of George Allen. I think he is somewhat less than genuine about his very scripted "southerness" (the boots, the hat, the rebel flag) since he is a Californian by birth; moreover, I think while he gives lip service to social issues of importance to conservatives, I always had the feeling he would back down if politically expedient.

But really. When Salon does a hit piece so transparent in its partisanship, even tepid Allen fans have to wonder. The hit piece uses two anonymous sources and one identified source who has suddenly recalled that Allen supposedly dropped the "N" word bomb in college. The problem? Salon forgot to mention that the named guy is an environmental and anti-tobacco activist and democratic party supporter, and hence, might have a wee chip on his shoulder. Also, never mind that the other 16 former classmates contacted by Salon don't remember the rampant racism the 2 anons and one named source allege.

Did they check with someone like this guy:

Statement from Rev. Gary Ham, defensive corner on the University of Virginia football team 1969 thru 1973. Rev. Ham was one of the African-American players on the UVA football team at the time:
“Let me say honestly, that I was not a close acquaintance with Senator Allen during our football days at UVA but I do not recall any language or behavior that was racist in nature. “I have better recollections of Senator Allen when he was the Governor of VA. Although I disagreed with the position which he took on Martin Luther King Day, I believed him to be a man who was open to dialogue with African-Americans and other minority groups. He did much to promote outreach to poor neighborhoods and communities through faith-based initiatives.”
Or did they talk to State Senator Ben Lambert, a black legislator supporting Allen because when the rubber met the road, Allen scored better funding for historically black colleges as he had promised to do?

Or did they report on the two Jewish Congressmen who took Webb to task for injecting Allen's religious background into the campaign and the related fact that Webb himself called his Jewish primary opponent the "anti-Christ of outsourcing" and distributed a flier that featured "a cartoon likeness of Jewish opponent, Harris Miller, with a large nose and cash spilling from his pockets?"

Is it any secret that Salon has specialized in these sleazy mud-slinging hatchet jobs before for its democratic buddies? Obviously Jim Webb cannot or will not engage Allen on issues, so he is taking the short route to the gutter of innuendo, smear, and yes, defamation.

UPDATE: OK, now that Jim Webb has effectively admitted to uttering the dreaded "N" word, can we all get back to considering what these guys actually stand for as opposed to what incorrect words they might have uttered in the past? Sheesh, for some, like this idiot poet, I'm sure this is all just confirmation that everyone in "Virginny" is a racist. Never mind that Allen is from California and Webb, from Missouri, and then "grew up on the move, attending more than a dozen different schools accross the U.S. and in England."

Which accords with my own experience, that I heard the "N" word much more in New York, where I grew up, than in Virginia, where I have lived for 25 years.

Law Firm to Quit, Join Marines?

Believing themselves to be in "Voltaire's shoes" for defending the Westboro Baptist Church ("God Hates Fags" and protesting at military funerals) against a defamation suit brought by the family of a slain Marine, a law firm pompously proclaims:

Two decades before the First Amendment ever was adopted, Voltaire sensibly proclaimed that even if “I detest what you write, [] I would give my life to make it possible for you to continue to write.” A defense victory in this lawsuit will continue the First Amendment’s role in protecting everybody’s free expression rights, whether or not that expression be as extreme and despicable as many of the views and statements ascribed to the defendants.
Because of the financial ruin that can face them from libel, defamation, and slander lawsuits -- all are phrases covering the same type of lawsuit -- too many individuals, newspapers, and other organizations self-censor to the point that the critical truth too often is suppressed. [...]
Libel suits should be stricken from the books as incompatible with the First Amendment and fundamental individual liberty.

Hmmm. Under this view, any vile and false claim against anyone would enjoy constitutional immunity. Detraction and calumny have both been traditionally understood in the West to be serious personal faults. On the broader view that a person has a right to enjoyment of his good name and reputation, the law of libel has punished reckless attempts to rob a victim of this enjoyment.

We have counter-balanced this concern about the right to enjoyment of one's good reputation with the recognition that truth should usually be favored and protected; hence, truth is an absolute defense to a libel action. Heck, if you pick on a so-called "public figure" it's really fair game and you can pretty much say anything reckless you care to say-- the victim in order to defend his or her good name has to hurdle over the very high bar of proving that the defamer had "actual malice--" i.e., that he wasn't just mistaken or careless about his statements.

I noticed, in reading the motion to dismiss the complaint, that the Church is not claiming truth as a defense, but rather, relying on jurisdictional, venue, and First Amendment defenses. Of course, these idiots could hardly plead the truth as their defense, since the gist of the complaint is that on their website and at the funeral service for the slain Marine, the defendants claimed that the deceased was killed as a punishment for serving a government that permits homosexuality.

Whether that position is an actionable libel or a "mere" opinion remains to be seen. For instance, Feige's opinion that a prosecutor he mentions in his book is "dowdy" shows that he is a mean, hypocritical, small person, but it is just an opinion for which she will not get a libel judgment against him. However, his false and defamatory assertions that she is "sleazy" and unethical are more than opinion, they are assertions of fact which touch on her professional conduct and if not proven to be true, are actionable.

In any case, getting back to the pompous law firm defending the First Church of God Hating Fags, why do I doubt seriously that they would really die for the church's alleged right to voice their views? Why do I doubt they would even defend them if the church stopped paying?

Who was the one person in this story actually willing to die for the preservation of the rights of others?

The Marine, of course.

Monday, September 25, 2006

Seth the Sensitive

Heh. I thought I'd drop by and see what the moronic byronic, heroic-looking Seth Abramson was up to lately.

Ol' Seth, proudly announcing his Jewishness, does not hesitate to slam George Allen for hidden Jew-hating, Confederate flag devotion, and belief in the death penalty:
I have to say, I'm not particularly religious, and not particularly easily offended. [sic!] But as a Jew, it terrifies me to see a U.S. Senator express such obvious revulsion [video] at the mere suggestion--a suggestion, as you'll see in the video at the preceding link, which was both innocent and friendly--that he has a Jewish ancestor.What a shameful, hateful proposition, right George?Jesus H. Christ, you must be terribly interested in the anti-Semite vote in Virginny, huh?This man is a fucking freakshow. I hope to God he's gone from the Senate come November. As if it wasn't enough to have recently hurled a racist, xenophobic slur at a minority staffer of his opponent; as if it wasn't enough to have once kept a noose next to his desk in the Virginia Governor's mansion (A noose! In a southern state! Jesus Christ! What the fuck?); as if it wasn't enough to have established Confederate History Month in Virginia without making any reference to the evils of slavery; as if it wasn't enough to have a thirty-year history of obsession with that most despicable and disgusting image, the Confederate flag, which to 99% of Americans is unambiguously the flag of slavemasters and bigots and accursed anti-American revolutionaries.
Fuck George Allen.

It's true, I suppose, that Seth is not religious, otherwise he might realize that to Christians, using Our Lord's name in vain is an offensive, sinful blasphemy. But what the hell? It's only Christians he's offending. And we all know what they're like!

For a guy who hails from Dartmouth and Harvard Law and a self-professed "poet," such a potty mouth in writing is telling enough. But the blinding ignorance of 1) the Confederacy and its causes (hint: more than just slavery); 2) what a noose might mean for someone who loves the old West, like Allen has explained he does (hint: not lynchings); 3) Allen's own Jewish heritage, all leads one to wonder if poor Seth's mind just shuts down at the prospect of a conservative southern governor-turned Senator who doesn't just jettison his beliefs because an effete New Englander's dainty sensibilities just can't stand the thought of the rebel flag! And a noose? It just makes him all goose-pimply!

Clearly, we down here in "Virginny" are just a bunch of anti-Jewish racists longing for the return of lynchings and slavery! We can't remember the War Between the States unless Massa up there in his Ivy League tower makes us repeat that we really, really, oppose slavery. We can't appreciate the death penalty without being guilty of supporting lynching. And as for that Jesus Christ fella? He's nothing but a curse word for the sensitive, New England not-particularly-religious Jewish poet.

Windy's Jury Duty

Windypundit has his first installment up about his jury_duty in a criminal case. It's an aggravated assault case, so he won't have to become a "conscientious objector" and make a statement against the war on drugs.

So far, we learn that as his jury panel is ushered into the courtroom he has correctly identified the prosecutors as the folks wearing suits "not quite as expensive looking" as the presumed defense attorney's. Of course, we've always known that prosecutors are not as sharp-looking as most defenders.

Of particular interest to me was the voir dire process and reading about how it is done differently in Chicago. For example, Windy relates that among the questions the jurors are asked is one similar to this, which I use in every jury trial: "do you have any religious, philosophical, or ethical beliefs which would prevent you from passing judgment on another person and possibly sending him to prison?" Windy notes that in a past trial for which he had served on the jury (not the current trial),
when one man claimed to have religious objections to imposing judgement on others, the judge got loud and confrontational and told him that other people of his religion had served on juries, and then tried to argue that the jury just decided the facts, it was the court system that passed judgement. Those were good points, but the juror stood his ground. He didn't make it into the box, so I assume he was struck.

Windy writes that the judge in this case simply passed over the same answer a prospective juror gave.

In the last jury I tried I struck a woman who answered that she could not "sit in judgment;" in the six or seven years I've asked that question, this was the first affirmative response I've gotten; but I think it's a useful question, even if Ken always did object to the question.

Part two of Windy's trial story is yet to come.

Wednesday, September 20, 2006

Where's the Anti-Nancy?

Is Nancy Grace simply seeking the truth in spite of all the obfuscation of defense lawyers doing their best to cloud their client's guilt? Or is she a publicity hound who cares nothing for the rights of the accused?

The defense oriented folks who hate the woman frequently trot out the charge that an appellate court thought she failed to fulfill her ethical duties properly in a case she prosecuted, but denied the habeas petition anyway. In other words, the conviction stood.

My own two cents (admittedly having watched Grace only for a few minutes): people get too riled up by TV shows like this, which are geared to one thing only: ratings. It's entertainment, folks. If the defense bar is so upset, why don't they find someone to be the anti-Nancy Grace?

Answer: because while fighting for victims and against bad guys is a compelling heroic narrative, in real life there is not much glory in defending most criminal defendants, who are overwhelmingly guilty. Real life, in short, is not "To Kill a Mockingbird" or "Twelve Angry Men," it is Tom Mesereau defending a Michael Jackson, where even if you have a factually innocent client and get an acquittal, you still won't find much sympathy for your client. As we have covered before, since the vast majority of charged defendants are correctly convicted, there is simply not much glory out there for a defense attorney.

But hey, it's a free market and a free country. If some crusader wants to step up to the plate, more power to him.

HT: Ken.

Speaking Truth to Power

Somebody is really ticked-off in San Francisco over a cop killing. It seems that "a San Francisco police officer was killed early today near McLaren Park when his patrol car was struck by a vanload of robbery suspects being chased by other officers."

The "somebody" is Gary Delagnes, San Francisco Police Officer's Association President. Would that some public officials had the courage to say things as bluntly as he does in this video clip.

Tuesday, September 19, 2006

Chicago DA Didn't Listen to Me

This should be interesting. Windy Pundit has apparently been chosen to sit on a criminal jury lasting three days. I look foward to getting his perceptions of the case and his experience as a juror when it's over.

Monday, September 18, 2006

Religion of Peace Burns Churches, Kills Nun

We're in a war to the death with an enemy that thinks nothing of burning churches and assasinating elderly nuns over comments from Pope Benedict XVI which have been taken wildly out of context.

In fact, if these Moslem morons would stop and think for a minute, they might be advised to leave well enough alone, since the Church has in recent years actually been far too praiseworthy of its ancient foe, militant Islam (the term is redundant, actually, since Islam is by definition militant). If your enemy is laying down, like the Church has with regards to Islam, the smart move is not to rock the boat over a misconstrued comment.

Don't get me wrong: I wish the Pope had made his own the words he was quoting: "Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." Sadly, I fear the Pope will bend to the media fury and apologize; and the Church will become even more meek and ineffectual while Islam conquers Europe by demographics.

God bless the troops, who as we speak are killing these whack jobs by the bushel.


HT: Feddie & Joee blogs.

UPDATE: Well, it certainly didn't take long for the Pope to cave in.

Coming soon to a town near you?----->


Glad he's in Chicago...

Speaking of juries, Windy Pundit is being called up for jury duty. Love his photography and reading his point of view, much as I disagree with it, but would definitely be striking him off any of my jury panels. Nothing personal, mind ya! He's particularly miffed by the paltry $17 and change he'll get for the privilege of serving his community.

Friday, September 15, 2006

Excused for Good Cause?

A two day civil jury is about to begin in my courthouse. The opposing attorneys have reputations for being unpleasant, argumentative, blowhards. The judge is a somewhat tired fellow who seems to be anxiously awaiting the moment he hits maximum retirement benefits.

So lawyer #1 gets up in voir dire of the jury pool and asks, "Is there anyone here who would have difficulty being able to sit through a two day trial of this case?"

A couple of jurors raise their hands.

And then the judge's hand goes up too!

Thursday, September 14, 2006

"Your client is in jeopardy at this point"

Congratulations to my friend and colleague Sandy Sylvester, the premier child abuse prosecutor in our state, who turned back an effort by a convicted sex offender to avoid the state's mandatory registration law. This guy, who had 50-100 sexual contacts including intercourse, with his sister beginning when she was in first grade, believed the sex offender registry law should not have to apply to him because he had not been caught doing anything wrong since his conviction in 1994 and registering would cause him public humiliation.

"What he wants to do is to have access to children and not have anyone know about his past,'' Sylvester said. And since a 1995 study shows the recidivism rate for incest offenders to be approximately 9%, there is a clear public interest supporting the legislature's determination that these offenders need to be tracked.

HT: Ken and Concurring Opinions, whose author, Dan Filler, a child porn apologist, applauds a German magazine Bravo for showing nude teens: "In one western democracy, at least, such photos can be acceptable and appropriate" and who believes that we "attack child sexuality [sic] [to such a degree] that we both over-prosecute relatively harmless conduct (like the photos in Bravo) and over-punish serious, but not necessarily recurring misconduct ("consensual" incest between siblings)." Personally I'd like to keep track of Filler's whereabouts.

(UPDATE: Excuse me, I had no idea that Filler is actually professor Filler of Drexel, a former public defender and outspoken opponent of capital punishment in Alabama. Since he is an academic, I acknowledge that he is professionally required to have his head up his.... er, I mean, take provocative and sometimes unconventional views of such issues. My apologies. Besides, I don't have to worry-- Philly is a long way from Richmond).

Constitution Quiz

See if you can pass the Constitution pop quiz.

My favorite question?

2. Who believed that the American Constitution should be set aside and rewritten every generation?
a. The liberal senator from Massachusetts
b. Nikita Khrushchev
c. Satan
d. Thomas Jefferson

It might come as a shock to Judge Harvie Wilkinson of my own beloved 4th Circuit, who seems to be under the impression that the democratic will should not be expressed through the process of constitutional amendment, but the correct answer is "d."

HT: Fr. Jim

Marines Under Friendly Fire

Check out the real story of the so-called Haditha massacre by U.S. Marines, where a squad of Marines supposedly murdered 15+ civilians in cold blood after one of their fellow Marines was killed by an IED.

The media, as usual, so quick to paint the incident as a war crime or another My Lai, is curiously quiet about the following salient facts that rebut the scripted version they are using to undercut morale and discredit the military:

1. An IED explosion killed a Marine.
2. Marine intelligence operatives learned immediately that the incident now developing was being videotaped by the al-Qaida insurgents, a common practice among this media-savvy group of killers.
3. Within five minutes of the explosion the Kilo Company Marines came under small-arms fire from the vicinity of two houses in the immediate area of the explosion. Radio communications verify this despite Congressman Murtha's claim that no firefight took place.
4. A squad under the command of Staff Sgt. Frank Wuterich entered the two houses, using normal house-clearing procedures. In the course of this operation, a door was opened and as dictated by the ROEs [Rules of Engagement] a grenade was thrown into the room and automatic fire sprayed on the unknown occupants, killing the 15 civilians in the room. In the second house, another civilian was gunned down. The Marines noticed that a rear door was ajar, indicating that someone had fled before they entered.
5. Within minutes a UAV was in the sky above the area. It remained aloft all day, catching views of armed conflict. Some screen-shot photos were downloaded either at battalion or regimental headquarters.
6. Within 30 minutes of the explosion an intelligence unit was on the scene and the Marines involved were closely questioned. Those in that unit testify that the Kilo Marines' composure and demeanor were such that it was incomprehensible to them that they could have just participated in the cold-blooded massacre of the civilians.
7. By nightfall an after-action PowerPoint presentation including the screen-shot photos downloaded from the UAV was sent up the chain of command. It carefully and fully detailed the day's action and was based on the constant radio communications, testimony of those present as participants and after-action investigators, and the data revealed minute-by-minute by the UAV. It left no T's uncrossed and no I's undotted.

8. Within days of the incident, officers from up the entire chain of command were fully briefed and concluded that the evidence provided themproved that the actions were fully justified by the circumstances on the ground at the time.

I could hope that if these Marines are exonerated, the media will beat their collective breasts like they do for civilian defendants who are exonerated in civil courts, and piously intone about the horrors of rushing to judgment.

But I won't hold my breath.

Wednesday, September 13, 2006

Clinton for the Defense


Doug Berman doesn't seem too surprised that Bill Clinton is a lying hypocrite, even if he is disappointed that ol' Bill did not act on his pro-criminal favoritism while President:

TalkLeft's Jeralyn Merritt reports here that she attended a 2-hour roundtable meeting of progressive, Democrat bloggers convened by former President Bill Clinton. She also provides this report for folks interested in criminal justice:

Criminal defense lawyers take note: He's far better on our issues than we thought while he was President, from mandatory minimums, to drug courts to restoring the right to vote to former offenders. I'm totally impressed.

I totally disappointed. If Clinton was really good on these issues, how he governed and influenced criminal justice issues during his reign would have -- and should have --- been a whole lot different.


Although I agree that Clinton obviously would act on his convictions only when convenient, it's not entirely true that he didn't help out his criminal buddies: he did grant a staggering 140 pardons on his way out the door in 2001, including to a cocaine trafficker; Susan McDougal, jailed for refusing to testify about Clinton's Whitewater role; and his own brother. Worse, Clinton pardoned convicted FALN terrorists in 1999, over the protests of the US Attorney, the FBI, victims groups, and despite the overwhelming condemnation of Congress. I don't suppose Bin Laden and his crew, who were actively plotting to take down the World Trade Centers at the time, failed to note this particular pardon.

Castration Being Considered Again

Every so often a legislator floats the idea of castration for sex offenders. One such legislator in Virginia is behind an effort to offer "voluntary" castration in lieu of indefinite civil commitment. In Virginia, once a serious sex offender has served his sentence, the Commonwealth may seek a civil commitment, which is indefinite unless and until a judge rules that the commited person is no longer a threat. According the Richmond Times Dispatch, Sen. Emmett W. Hanger Jr., R-Augusta, has argued that "'when I proposed this initially, it was part of a list of cost-reduction methods.'' The [civil commitment]center is extremely costly, he said."

The problem? No one knows in a quantifiable sense what the real deterrent effect of castration is. Since many of these crimes are not motivated solely by the desire for sexual release, the question arises whether castration will really prevent some sexual offenders from re-offending. The best a medical expert could offer? "It's hard to say more than [studies] suggest it might help." This was the worry of the chairman of the state crime commission:
"But I'll tell you I'm real concerned about . . . the lack of credible information" about the effectiveness of castration, said Stolle, R-Virginia Beach. Without further information, he said, "I'd be uncomfortable releasing these people from civil commitment."

Previously, I've offered a different solution to the problem of violent, predatory sex offenders. In any case, releasing them from commitment on such flimsy evidence of castration's effectiveness would be a serious, and likely fatal, error.

Tuesday, September 12, 2006

Gun Crimes Up; PA looks for Answers

"Earlier this month, the Philadelphia Daily News called its hometown the 'City of Blood,' and by all accounts that is a fair assessment for a place with 268 murders and more than 1,330 people shot this year," according to Lancaster Online.

Philly is not alone:
Last year, there were two violent gun crimes for every 1,000 individuals, compared with 1.4 in 2004, according to the department's Bureau of Justice Statistics. There were 2.6 robberies for every 1,000 people, compared with 2.1 the year before."This report tells us (the more serious) events, robbery and gun crimes, increased, and the FBI already told us homicides increased," said criminal justice Professor James Alan Fox of Northeastern University.

What to do about it?

Some lawmakers want to restrict even further the rights of the people to keep and bear arms, as if the law-abiding community needs disarming, not the criminals.

How do you disarm the criminals, who won't obey gun control laws?
Lancaster County District Attorney Don Totaro... believes there are more effective ways of curbing violent crime.“As far as gun control, I don’t see that working. Not at all,” he said. “One of the reasons is, criminals will always find ways around the laws. Essentially they only affect law-abiding citizens.”He added, “For example, convicted felons who illegally possess guns and those who act as ‘straw purchasers’ to buy guns for felons present a clear danger to our community, yet state penalties are inadequate to deal with this serious problem.”The solution, he said, is tougher prison sentences.“The tragic shooting of an F&M College student last week once again illustrates the need for tougher penalties against criminals who possess guns,” Totaro said. “Because not all gun crimes are prosecuted in federal court, it is incumbent upon our state Legislature to address this deadly problem by passing laws that hold dangerous criminals responsible for their actions.”
What he's talking about is a state level counterpart to Project Exile, a federal initiative begun in Richmond, but since expanded to other federal districts and repackaged as "Project Safe Neighborhoods." But not every such gun case can be taken to federal court. Some are hard to try, and the feds usually only "adopt" the slam dunk cases. Many federal judges complain about "federalizing" such customarily local cases. So the states have begun to enact their own tough mandatory time for felon-in-possession laws. Virginia some years back enacted just such a package of laws, called "Virginia Exile." Our gun statutes are, in some instances, even harsher than the feds'.

Pennsylvania would be better served sending up convicted felons caught in possession of a gun for mandatory jail terms than by enacting further useless gun control laws.

Monday, September 11, 2006

Death Penalty Opponents' Strategy Sending More Defendants to Jail for Life Without Parole

Quite a conundrum for the capital punishment abolitionists. For some years, they have pursued a line of attack that features giving jurors the option of imposing life without parole instead of the death penalty, expecting that many juries would chose LWOP. They've been successful in introducing the LWOP alternative in 37 of the 38 states which still have the death penalty. The rationale for these efforts, as I said, is that when given the option of death or LWOP many juries will chose the "safer" course of imposing LWOP.

The conundrum arises because according to a Harvard Law Review Note,
Twenty years of experience with life-without-parole statutes shows that although they have only a small effect on reducing executions, they have doubled and tripled the lengths of sentences for offenders who never would have been sentenced to death or even been eligible for the death penalty. Before death penalty abolitionists continue to push for the expansion of life without parole, they should recognize that their crusade has lifelong ramifications for thousands of noncapital prisoners.
In other words, the LWOP "net" catches many more offenders than those who face a good prospect of having the death penalty imposed in their cases. Thus, the unintended consequence of attacking the death penalty by enacting LWOP statutes has been to increase the number of LWOP sentences while not appreciably reducing the incidence of imposition of the death penalty.

This makes perfect sense, since the death penalty is generally reserved for the most egregious cases and is usually not sought unless the government has a strong prospect of gaining a death sentence. In that small subset of cases (egregious facts; strong evidence of future dangerousness) a jury is far less likely to consider LWOP, even while, in the abstract, answering a pollster, many people will say they would favor LWOP over the death penalty.

So what's a good abolitionist to do? Continue to see many offenders punished with LWOP who would not have received such a tough sentence before, or take LWOP off the table and watch death penalty sentences increase (even if only by a marginal amount)?

HT: Capital Defense Weekly.

Friday, September 08, 2006

I Believe in One PD, the Lawyer Almighty...

This, from what I glean, is the "Public Defender's Creed:"
I am a public defender. I am the guardian of the presumption of innocence, due process, and fair trial. To me is entrusted the preservation of those sacred principles. I will promulgate them with courtesy and respect but not with obsequiousness and not with fear for I am partisan; I am counsel for the defense. Let none who oppose me forget that with every fiber of my being I will fight for my clients. My clients are the indigent accused. They are the lonely, the friendless. There is no one to speak for them but me. My voice will be raised in their defense. I will resolve all doubt in their favor. This will be my credo; this and the Golden Rule. I will seek acclaim and approval only from my own conscience. And if upon my death there are a few lonely people who have benefited, my efforts will not have been in vain."
(Per Skelly at Arbitrary and Capricious). Where to start?

First, does it strike anyone as slightly exaggerated to claim that defense lawyers are the guardians of due process and a fair trial? The courts and the prosecution have no stake in the process?

It is simply an outright falsehood that defense lawyers are "entrusted" with preservation of these guarantees. The hint that they are not entrusted with being guardians of a fair trial and due process is given in the next line, where it is acknowledged that defense attorneys are "partisan. [They are] counsel for the defense." Then those who "oppose" these lawyers are admonished to remember that "with every fiber of my being I will fight for my clients."

In fact, as I have mentioned here before, the way our system works is that it is “the duty of the prosecutor [...] to seek justice” while the defense attorneys duty is to represent his client zealously within the law. The prosecutor is in fact the guardian of a fair trial and due process, since his sole duty is to seek justice, not merely to convict. The defense attorney has no such obligation to seek justice. His obligation is to zealously represent his client without breaking the law. So to the extent there is a conflict between due process and a a fair trial and zealous representation, the defender has to abide by the duty to zealously represent, even if the other values of fair trial and due process are sacrificed. How does this work in practice?

Say the government's witness, who is the client's girlfriend, has sworn out an assault and battery warrant against the client. The defense attorney interviews the girlfriend and she confirms the accuracy of the complaint she swore out against the client. The attorney reminds her that the client loves her and if he goes to jail their children will suffer because he's the primary breadwinner. He tells her that she must testify truthfully, but if she should not remember the incident clearly when the case is tried, and there is no other evidence, the charge will probably be dismissed. At trial, she "can't remember" what happened and the client is acquitted.

Has the defense attorney broken any law or other ethical rule? He came up to the line but did not cross it, in my view. He zealously represented his client. Did he advance the concept of a fair trial (which means a fair trial for both the government and the defense)? Clearly not, what he did was plant a seed that bore fruit because his primary interest was not fairness, but getting his client acquitted. Examples such as this are legion.

Such is the devotion of the defense lawyer to his client that he will forget about the due process, fair trial stuff, which establishes a burden of proof beyond a reasonable doubt, and instead will, in the words of the Creed, resolve "all doubt in [the client's] favor." So whatever defense the client tells the attorney he must lay aside his doubts and accept the client's story. Never mind the black eye, the genital trauma, the lack of prior relationship, the sex was consensual! The defense lawyer (if he can't talk his client out of such a stupid story) has to present the story at trial; according to this Creed, he also has to check in his common sense at the door and really believe the guy!

Lastly, and very tellingly, the defense lawyer's creed sets up his own private conscience as his sole guide: no ethical rule, no rule of court, no law, can stand athwart the path of the righteous lawyer's conscience and tell him "no, you cannot act this way or that way." News flash: no one's conscience can be the absolute guide to the propriety of their conduct, and if the conduct violates some clearly established norm, it's probably a safe bet that the person needs to reformulate his conscience. In any case, if a defense lawyer wants to keep his law license, he had better heed the ethical rules and the law more than his conscience.

Rather than a manifesto of self-righteousness, I would imagine a lawyer trying to do the right thing would simply acknowledge that he has a duty of zealous representation, but he will not believe whatever baloney his client wants to serve up, he will not view himself as the uber-guardian of the entire justice system, he will not allow his private conscience to trump his legal, moral, and ethical duties, and he will understand that the prosecutor is enjoined to seek justice, not merely convict, and hence not view him merely as the client's enemy.

Too many "true believers" who ascribe to a Creed such as this one sacrifice their client's best interest (by perhaps not seeking, or turning down, a plea offer) so they can crusade against some perceived injustice, using the client as a pawn for their personal political philosophy. The lawyer goes home at night; the client goes to jail.

Thursday, September 07, 2006

Court-Appointed Attorney Roulette

First Blonde Justice slamming us prosecutors for not listening to them, now one of my area's own defense attorneys taking me to task.

It seems that a defendant I prosecuted has filed from jail a motion entitled:
SHOW CAUSE MOTION TO GRANT RELEASE FOR WRONGFUL INCARCERATION BASED ON A VIOLATION OF STATUTORY FORMER JEOPARDY AND STATE CONSTITUTIONAL FORMER JEOPARDY
PROTECTIONS.

Say that three times fast. Anyway, this pro-se filing is interesting not because of the jail-house pleading itself, but because the convict attaches to his motion a copy of the correspondence between him and his defense lawyer.

In this correspondence, the lawyer is explaining to his client what happened in court on a particular hearing date. He wrote, "the Assistant Commonwealth Attorney dared not ask for another continuance." He then told his client how he, the lawyer, had valiantly but vainly argued for a dismissal of the charge instead of the nolle prosequi I had sought. He then informed his client that the Commonwealth could obtain a direct indictment rather than beginning the process all over again, or, in the lawyer's words:
The Commonwealth could be really sneaky and indict you just before your term is up on the federal charge, but they really would be playing with the constitutional speedy trial issue.

He was right of course; I "dared not" ask for another preliminary hearing continuance, so the case was "nolle prossed." Then I did indict the defendant. Those "really sneaky" prosecutors.

When the indictment came down, the attorney, who was no longer counsel of record on the case, since the old case was over and the new case had not yet had a lawyer appointed, wrote the defendant another letter, in which he explains that since the defendant was being held in another state, that the Interstate Agreement on Detainers applied to his situation, and he could demand trial within six months. The lawyer advises the defendant that should he assert this right,
the Commonwealth will not have the right to any of this six-month continuance before a nolle prosequi garbage.

He concludes by urging the defendant to try to have him picked as his lawyer again:
I do believe you have a constitutional speedy trial issue. Judge ____ may appreciate a good constitutional argument. Notwithstanding all that I have done, the ... Court may still choose to appoint a new attorney, because this case would, technically, be a new case. Do you still want me to be your attorney, or do you want to take your chances with the next attorney? Keep your notes so that the attorney can prepare arguments.
So having overcome the "really sneaky " Commonwealth and the nolle prosequi "garbage," the lawyer is confident one of our judges "may appreciate a good constitutional argument."

Wouldn't you want to try to convince the court to appoint this lawyer to your case if you were facing five mandatory years in prison and not "take your chances" with another lawyer?

Wednesday, September 06, 2006

SJ Excommunicated From the Church of Shea

If Catholic issues and religion are not your cup of tea, tune out now.

I run this blog primarily as a current legal events/ legal issues blog from my perspective as a prosecutor and a Catholic. I sometimes specifically foray into truly important issues like religion and culture. One such foray, commenting here about the wisdom or not of making a Catholic saint out of a convicted cop killer, drew a severe reprimand from a gentleman named Mark Shea, who runs a Catholic blog.

Shea thinks my questioning the wisdom and motives of the movement to make the cop killer a formal Catholic saint renders me a lover of "vengeance against sinners." Never mind that I specifically credited the position that the convicted killer could actually have been personally very holy. In Shea's world apparently, if you're a Catholic (or at least one who agrees with Shea's positions), your job is to shut up, "pay, pray, and obey" and not question any action taken by a Churchman.

In my world, I give total obedience to the formal teachings of my Church, defend them and try to live them. But nowhere has the Church told me that I have to agree with the preliminary process of proposing someone for canonization. In fact, until recent years, the advocatus diaboli would bring foward reasons why a person should not be canonized. Sometimes these reasons have nothing whatsoever to do with whether the candidate is actually in heaven or not, but rather with the prudential question of the propriety of formally declaring sanctity.

Sadly, the devil's advocate has either been eliminated altogether or is rarely used. In any event, it is hardly treason to the Church or disrespect to the French Cardinal who began this process to point out that this choice may be imprudent. Indeed, several police groups in France have done so. Further, no mention has been made of the candidate's heroic virtue or miracles attributed to his intervention, both recognized prerequisites for canonization.

Does this mean that Dismas cannot be honored as a saint? Or that we cannot acknowledge saints who lived sinful lives prior to conversion?

Indeed not, and it is a cheap, disingenous straw man argument to bring it up. Dismas was not formally recognized as a saint by the process of canonization, but has always from time immemorial been honored as such by custom. I think we can agree, too, that his situation is somewhat different, since he suffered next to Our Lord and received the guarantee of his salvation from His own mouth. Dismas, incidentally, is rightly called the patron saint of death row inmates, but he, unlike the Frenchman, acknowledged the justice of his sentence, an acknowledgment the Lord did not contradict.

Other great sinners turned saints did great works of holiness after their conversion. I will stand correction on this point, but there are few if any saints like this Frenchman, who simply converted but did little else of note thereafter.

In any event, Shea seems a rather bitter character. I've had a link to him for a long while, even while he has banned me from commenting on his blog because I differ with him on the propriety of the Iraq war, and now, he attacks my character on his blog when I can't defend myself to the 2,561 daily visitors he gets. For comparison, I get about 40-45 a day. He knows he can smear with relative impunity.

But for goodness sake, Shea, get the name of my blog right. It is not Confounding the Wicked; it is, as he would notice if he looked at the big words at the top, Seeking Justice. But that's just the level of attention to detail his readers have perhaps come to expect.

DP Abolitionist Hero Goes Down

Perhaps you remember former Governor George Ryan of Illinois? He's the guy who emptied death row in Illinois in 2003, nullifying the sentences handed down in 167 cases. No thought to whether some or all of them were factually guilty and had no defense. No thought to the years the cases had spent being vetted by appellate courts for error, with no reversible error being found. No thought, apparently, for the victims of these murderers or the victims' families, friends, or society at large, which now would face the prospect of some of these convicts serving only what remained of 40-year sentences.

Needless to say, this reckless act of self-aggrandizement made of the Republican governor an absolute darling of the left, especially the death penalty abolitionist movement. He even won a Nobel Peace Prize nomination for his efforts.

But lo and behold, the saintly Ryan was really nothing but a cheap crook during his tenure as governor and for years before. While he was opening the cell doors on death row, he was also cashing in on his position:
Ryan's time in public office was rife with corruption. He is accused of using his campaign fund as his personal piggy bank and of quashing investigations into his fund-raising practices. While Ryan was secretary of state, unqualified truckers paid bribes to underlings to get licenses, and one of those truckers was involved in a fiery crash that killed six children. Both [Patrick] Collins [the AUSA who tried the case]and Rein, [a] juror, pointed to what they thought was the closest thing to a "smoking gun." It was a December 1994 memo where Ryan right-hand man Scott Fawell told Ryan to get rid of state investigators rooting out corruption and replace them with people who wouldn't "screw" Ryan's friends.

In fact, he is more than just accused of these acts, he has been tried and convicted of them. Governor Ryan the criminal convict faces sentencing today in a federal court in Chicago.

How interesting that the same anti-death penalty crowd who lauded Ryan for helping out his fellow criminals by emptying death row, were in effect character witnesses for him at his trial and sentencing.

Did Ryan cynically use the capital punishment issue to burnish his "good guy" bona fides against the day he had to have known would soon come, when he himself would be a convict? Prosecutors are seeking 8-10 years, and his defense team is seeking 2 1/2 years or no active jail time.

Considering the harm he did to his state, cynically emptying death row to curry favor with the MSM and legal establishment, while ripping off the citizens and literally allowing children to die while trying to cover up the corruption that lead to the deaths, 8-10 seems lenient.

UPDATE: Ryan received 6 1/2 years, the judge splitting the difference between the defense request and the prosecution's request.

Tuesday, September 05, 2006

The Anti-Feige

It's a small world, after all. Check out Sarena Straus' debunking of David Feige's whining portrayal of the Bronx criminal courts. She, the ex-Bronx DA, takes Feige, the ex-Bronx PD, to task in a very reasoned way for his overwrought portrayal of the prosecutors he dealt with. She gently suggests that perhaps Feige earned the treatment he received.

Prosecutors have lots of discretion as a rule. They can be benevolent or not towards a lawyer and his or her clients. A lawyer who bad-mouths the prosecutor, or who is constantly impugning their character or professional conduct, will often be treated with less accomodation than a reasonable defense attorney whose clients are not always innocent or victims of police misconduct. It's the Boy Who Cried Wolf syndrome. If Feige is always claiming police misconduct or making unreasonable assertions of innocence, no prosecutor is going to listen to him when he might actually have a situation that needs consideration.

One of the hardest things for new prosecutors to learn is not to punish the defendant for having a hateful, arrogant, ideologically-driven attorney. By the same token, I don't feel the need to go out of my way for such a person.
It seems that the defense of "extreme emotional distress" could be the route for the patent lawyer turned alleged knife killer that we considered here. In Connecticut,
EED, a rarely successful statutory affirmative defense available only in murder cases, permits defendants to be found guilty of manslaughter if they can show that, at the time of the crime, they were so overwhelmed by a triggering event that they could not conform to the requirements of the law, New Haven Public Defender Thomas Ullmann explained.
Of course, it is not an absolute defense like insanity, but only gets the charge knocked down to manslaughter. In this light, it resembles Virginia's common law "heat of passion upon reasonable provocation" defense, which, if shown, also eliminates the elements of malice and premeditation, resulting in a manslaughter conviction, not murder.

DUI more Serious Than Child Molesting?

What is one to make of the suggestion that because drunk driving results in much more loss of life and destruction than child abuse, it should be punished more harshly? Specifically, the claim is made that "we should be worrying a lot more about sentencing for drunk drivers than, say, sentencing for sex offenders." Really. No one will be surprised that the suggestion comes from an academic, since only they seem so habitually removed from reality.

This particular law prof deeply thinks other profound thoughts such as:

Other than cynical explanations based in class and race, I have a hard time understanding why we so readily turn to super-tough criminal enforcement to deal with non-violent drug crimes, but then we go harmfully soft on drunk driving.

He even wonders whether, we might not be required to execute drunk drivers, using the rationale of some death penalty advocates who have argued that the state has a moral duty to execute murderers in order to deter killings and save lives that would otherwise be lost to undeterred murders.

So drunk driving is worse from a sentencing perspective than child abuse, drug dealing, and is essentially equivalent to capital murder.

It apparently escapes his notice that according to the National Highway Traffic Safety Administration (NHTSA) own figures: 42,116 total fatalities involved 57,480 drivers, of which 7,400 were known to have had a blood alcohol concentration (BAC) over the legal limit. Thus, 12.87% (or 7,400) of the drivers involved in fatal crashes were legally intoxicated. Therefore, drunk drivers were associated with about 5,422 traffic fatalities. NOT the 16, 885 figure used in the lawprof's blog posting.

He does not cite the source of his number, but I suspect it derives from MADD (Mothers Against Drunk Driving), a group that routinely overstates the scope of this admitted problem. For instance, this group often conflates "alcohol-caused" with "alcohol-related," two very distinct categories. Then, advocates such as our lawprof pick up the skewed numbers and make outrageous policy prescriptions from them.

Moreover, tragic as any traffic fatality is, DUI fatalities differ in kind from child abuse, drug dealing, and capital murder. In DUI cases, routinely the defendant has little or no criminal history: in the other types of cases, the offenders often have lengthy records.

But fundamentally, there is a difference between criminally negligent conduct and willful, premeditated conduct. The law has alway recognized this difference and accounted for it in sentencing. Thus, an employed, productive mom with kids who has a couple of glasses of wine with friends at dinner and blows a .08 blood alcohol reading and is thus legally "intoxicated," will not be punished as severly as a gun-toting crack cocaine dealer. Is this hard to understand?

DUI fatalities are another case entirely, and at least in Virginia, are routinely prosecuted as manslaughter cases carrying up to ten years in prison. The law recognizes gradations of offenses and the judgment has been made by most legislatures that routine blood-alcohol level DUIs are not as egregious as molesting children or dealing drugs. That these latter activities cause much greater social harm is an unsurprising observation... unless you're a lawprof, I suppose.

But in any event, I would invite him to come out of the tower and down to traffic court and consider whether the average DUI case, with an offender who is a productive citizen with a clean record, has not harmed anyone, and yet will be going to jail for some period of time, is really being treated with leniency. Because now more than ever, jail time is a real possibility, even for a first time offender. Often, there is mandatory time depending on the b.a.c. level. Second offenders almost certainly go to jail, and in Virginia third timers are felons.

Friday, September 01, 2006

Patent Lawyer Goes to Town

A patent lawyer, of all people, kills a neighbor when the lawyer's wife tells him the neighbor sexually abused their 2-year old daughter. Injustice Anywhere wonders what a prosecutor's take on the situation is.

Well, first of all, using a knife is kinda messy, but the guy is a patent lawyer, for crying out loud, and can't be expected to think the thing through rationally. Personally, I would have used my Smith & Wesson 10-mm. on the guy, or maybe my Remington 810 loaded with slugs. And I would have invited him over to my house so I could make a plausible defense of the home claim; heck, maybe even plant a piece on the guy, who knows?

Having a 2-year old daughter of my own, that is my initial reaction.

My professional reaction is that the guy needs to be charged with first degree murder. Period. No way you can just rely on some report of unknown reliability and use it as the basis of meting out street justice. Even if the report were true, I would still charge him with first degree murder. It's premeditated: he had to get a knife, go next door, climb through the guy's window... textbook premeditation.

That being said, would it break my heart if the jury improperly excercized nullification? Take a guess. It would be tough to find a proper offer to make, assuming the guy has no criminal history. I might let him plead straight up to manslaughter, and let the court sentence him (10-year max in Virginia). Couldn't offer a total walk for such a premeditated killing, no matter what the equities are.

This is why I don't prosecute kiddie-victim crimes... the few times I've had to, I've come too close to reaching over the aisle and pummeling the human garbage who preyed on some kid.

Sarena the ex-Bronx DA has a much more calm and thoughtful approach.