"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, January 31, 2007

A Good Example...

Yet another example of why we will always need recourse to the death penalty, no matter how much the abolitionist agitprop establishment wishes it would just go away. People, yes, even New Yorkers, don't think criminals who execute police officers should be allowed to continue living.

More on the Impoverished Defense Bar

Ken has an interesting take on new, absurdly detailed "guidelines" issued by the Virginia Indigent Defense Commission. Especially on point is Ken's comment that these guidelines, and the additional burdens they attempt to impose on court-appointed lawyers, are a tool by true believer types to force court-appointed lawyers to stop taking cases so the General Assembly will be "forced" to increase funding for court-appointed cases.

I for one second Ken's view that the solution may lie with increasing the cap to an across-the-board $2,500, with the actual fee granted based on documented hours on a time sheet. The trial judge could also waive the cap upon good cause shown and at the court's discretion.

The only question I have about such a system is how to control for, how should I put it, "inflation" of hours claimed. I sense that some lawyers would claim the max on each case unless the time sheets were carefully reviewed by the court.

(By the way, glad to see Ken back on the blog; I did not remove the link to CrimLaw hoping that we would hear more from him).

Friday, January 26, 2007

Who's the Real Victim?

Some law professor types seem to want to find "race" and "class" behind every possible injustice, even where those factors are nowhere to be seen.

Take two cases: in one, a 17-year old man in Georgia, Genarlow Wilson, was charged with child molestation after he and five other defendants "partied" with a 15-year old girl, drinking with her, having intercourse with her and allowing her to perform oral sex on them. Under a quirk of Georgia law, the penalty for the oral sex is a mandatory 10-year prison term, while the intercourse is only a misdemeanor.

The other five defendants chose to seek plea agreements which allowed them to avoid the maximum penalty. Wilson chose to go to trial and assert his innocence. A jury found him guilty and while not liking the penalty, imposed the mandatory minimum.

Other than the unusual fact of a very long mandatory minimum, this case is entirely ordinary: a defendant chooses to roll the dice and make the state prove the charge: if you win, you go home, if you lose, you go to jail. It happens every day in courtrooms around the country. No one, to my knowledge, has suggested that the jury was racially biased (Wilson is black, the victim is white), and I suspect that, irrelevant as it is, we would have heard about it if there were 12 white jurors.

What upsets people about the case is the harsh result, which the judge, the defense, and even the prosecutor acknowledge. But the legislature passed the law, the prosecution's duty is to do justice by convicting people who break the law, and after all, Wilson stupidly rejected plea offers that his five companions accepted. Whether you like the law, or think it silly and unfair, or (like me) think it a good law but in need of modification to account for situations like this case, it is the law, and Wilson violated it.

Now consider the case of the Duke rape prosecution. The prosecutor, Mike Nifong, offering comments in the press about the facts and strength of the case, pressed forward with a rape prosecution involving a black victim and white defendants. ABA model rule 3-1.4 states:
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

Yet Nifong had been in front of the media on many occasions talking about the evidence in the case. This alone was unethical, in my view.

Then, to compound his violation, when it became clear that a DNA result indicated that multiple men, but none of the defendants, had recently had sex with the victim, he did not disclose that information to the defense as required by law.

So there are the two situations in a nutshell: in one case a prosecution under a lawful statute without a hint of a racial component to the prosecution. In the other, a prosecutor acting unethically to try to convict white defendants charged with rape of a black victim.

While elsewhere admitting he has no evidence of a racial bias at work in the Wilson case, the law prof nonetheless throws out this comment:
What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case. In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges. In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.

What nonsense.

Nifong arguably violated several ethical rules, even before it surfaced that he witheld clearly exculpatory evidence. His violation was not that he pursued a harsh charge against a factually sympathetic victim, but that he blabbed to the press and witheld exculpatory evidence.

In the Wilson case, the prosecution had the discretion to act differently, but chose not to--because the defendant insisted on asserting his innocence. There is not the slightest ethical implication to that exercize of discretion.

The law prof's complaint is better directed against the legislature, which made the law, not the prosecutor, who merely enforced it. If his exercize of discretion is viewed as inappropriate, the redress is not through the state bar, as with Nifong, but by the people of his jurisdiction who will let him know in the next election what they think about his use of discretion.

If anything, the Nifong case shows how far some elected officials are willing to go to pursue politically "correct" prosecutions ("privileged white kids" vs. "poor African American single mom"); if there is a race and class angle it is that Nifong was willing to railroad the white defendants while playing on class envy.

By contrast, the Wilson case has no racial angle beyond the bare fact of the racial makeup of the defendant and victim. There is no evidence that the prosecutor is biased, that the jury was not racially representative, or that the courts which have reviewed the case are peopled with racists.

What explains the need to view everything through a race or class prism? Perhaps it's as simple as living out a fantasized world where Atticus Finch has to rescue the poor black folk from the inherently racist system.

But in 2007, those Duke case defendants are the real victims, not Genarlow Wilson.

Monday, January 22, 2007

January 22

ON this anniversary of Roe v. Wade, which found a right to abortion amongst the penumbra and emananations from various parts of the (obviously very leaky and gaseous) Constitution, it is fitting to post the following quotation from Princeton professor, Robert P. George:
I am personally opposed to killing abortionists. However, inasmuch as my personal opposition to this practice is rooted in sectarian (Catholic) religious belief in the sanctity of human life, I am unwilling to impose it on others who may, as a matter of conscience, take a different view. Of course, I am entirely in favor of policies aimed at removing the root causes of violence against abortionists. Indeed, I would go as far as supporting mandatory one-week waiting periods, and even non-judgmental counseling, for people who are contemplating the choice of killing an abortionist. I believe in policies that reduce the urgent need some people feel to kill abortionists while, at the same time, respecting the rights of conscience of my fellow citizens who believe that the killing of abortionists is sometimes a tragic necessity--not a good, but a lesser evil. In short, I am moderately 'pro-choice.'"
HT to "the other" Dr. Phil, and I add and adopt his post-script:
Dr. Robert P. George is George McCormick Professor of Jurisprudence at Princeton University, a graduate of Harvard Law School, and earned his doctorate in Philosophy of law at Oxford University. He currently sits on the President's Council of Bioethics and is author of numerous books on constitutional law and jurisprudence. Just in case anyone is still wondering, the foregoing statement is not intended to be taken at face value, but as a parody and reductio ad absurdum refutation of the fallacious reasoning employed pervasively by proponents of a "pro-choice" position favoring "abortion rights." I offer this explanation not to insult your intelligence, but only because of having learned the hard way to cover my bases: several years ago, I sent George's quotation out by email to all faculty, staff, and students at Lenoir-Rhyne College, only to hear that a President's cabinet meeting was called to address the issue, and, the dean of students, frantic to ensure the institution's political correctness, sent out a follow-up message indicating that the views of my email did not reflect the views of the institution and that the college did not endorse the killing of abortionists! Well guess what? Surprise - surprise! Neither do I or Bobby George!

Philosopher-Bum on Public Defenders

An interesting story by and about a homeless guy prosecuted for trespass and his travails with the San Diego Public Defender's Office. Read all the way for the nice twist at the end.

HT to Skelly who notes "I suspect that there's quite a bit of spin going on here, and surely another side to the story, but any homeless guy who can quote G.K. Chesterton can't be all wrong."

Thursday, January 18, 2007

News Flash: Lawyers Want More Money

Our local "alternative" paper, Style Weekly, recently ran an article rehashing the complaint that court-appointed lawyers don't get paid enough. The story is replete with the usual tales about lawyers handling a case that takes more time to prepare and try than the court-appointed fee caps adequately compensate for.

What's ignored by these types of advocacy pieces is that basic economics are at work: court appointed attorneys do this work because it is profitable, or they would not do it. How is it profitable? Because for every under-compensated case there might be ten that are adequately or even over-compensated. That is, since the vast majority of criminal cases are uncontested and only involve plea negotiations, they can be handled relatively quickly. In many cases, an attorney can meet his client, talk to the prosecutor right before court, and negotiate a plea and/or a sentence, and spend only an hour or so of his or her time.

Thus, by taking a high volume of these cases, an attorney can make a viable living while absorbing the occasional "under-compensated" appointed case that requires more time and effort than is reflected in the fee-cap. Many lawyers use their court-appointed practice to supplement their more lucrative ambulance chasing personal injury or divorce family law practice.

I don't necessarily oppose allowing judges more latitude in waiving the fee cap in particular cases, but I can't see that the quality of representation has suffered because of court-appointed fees being too low.

In fact, it is always the case that competency counts more than compensation. One can pay a lawyer a lot of money and get horrible representation. Believe me, it happens frequently. Some very bad lawyers are very good salesmen of their services. On the other hand, in our area, the court-appointed bar is of very high quality. These lawyers know quickly what a case is worth, whether any issues exist that need to be tried, and they have for the most part good rapport with the prosecutors. Cases are very efficiently shepherded through the system in this way. When the occasional case needs to be tried, these attorneys are just as tough as the highest "paid" lawyers around, and often, much better.

So these "the sky is falling" articles are fundamentally dishonest in my view. Sure, everyone would like to be paid more. Public Defenders want more money; yes, prosecutors would like more too ; believe it or not, despite their god-like authority, their life-tenure, and numberless perks, even Supreme Court justices and federal judges want more money. And guess what? Every group argues that the justice system will just implode if they don't get more money.

When there are no competent lawyers becoming prosecutors, public defenders, court-appointed counsel, and judges, then bring on the advocacy journalism.

Until then, please, don't insult our intelligence.

Wednesday, January 10, 2007

Hunting Mites

I suppose I shouldn't be surprised to see Mark Shea call me a "death penalty maximalist." I guess he intends it as a typical (for him) ad hominem slur, a quick and dirty substitute for argument. But I may well be guilty of the charge, if by it is meant that I do believe that every person who commits a crime that can only be adequately redressed-- in terms of justice, deterrence, protecting safety, and punishment-- by death, should in fact be executed.

In other words, every criminal who should be executed, should be executed. The common good, which is concerned with justice (i.e., a "congruent satisfaction" for the crime), deterrence (whether general or specific to the defendant himself), and punishment is not adequately served by rendering to an offender less than his crime warrants.

In fact, it would be immoral in my view to allow an offender who merits capital punishment, to escape it for some reason unrelated to the specifics of his case. Why? Because every death sentence represents a considered judgment by a jury and a judge who consider the facts, both mitigating and aggravating, that the offender merits death because he is a threat to others or his crime was unusually heinous and aggravated, or a combination of the two. To allow such an offender to escape a carefully considered punishment meted out by those who actually hear and weigh the evidence on both sides, would be to usurp the role of the jury and the sentencing judge in protecting society and vindicating the common good. Allowing the offender to escape the consequences of his crime because of some philosophical objection unrelated to his specific case is to endanger society and upset the common good.

Nevertheless, despite my passing resemblance to a "maximalist," according to Shea's definition, I am also a minimalist! Quoth he: "A death penalty minimalist says, 'Unless they constitute an ongoing menace to the common good, spare them.'"

Since, as I have shown already, the death penalty in this country is imposed very rarely, a fact I don't have much problem with, I do believe that we should and do "spare" most of them and execute only those who threaten the common good. Of course, by "common good" one must understand that the Church views the "common good" as more than mere "public order" or safety. The common good in Catholic thought comprises a whole panoply of concerns such as (among other things) justice, deterrence, and punishment.

Moreover, even if public order were the sole criterion, as I have shown before, there really are no conditions in this country that I am aware of that definitively remove the threat to the public order and safety posed by convicted capital murderers. Unless or until some such improvement arises, these offenders cannot reliably be neutralized by any means presently available.

The Catechism's restriction on the death penalty is, after all, a purely conditional, contingent one:
"If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor,"
only then is the death penalty is restricted.

Crime against fellow inmates and prison personnel, parole, pardons, executive clemency, and legal/political agitation against life without parole, all render it very uncertain that any capital offender can be truly deemed no further threat against society. Thus, when we decide to execute that .03% of murderers, we indeed are executing very rarely those offenders who a jury and a judge have carefully considered to be so violent or so depraved that they are likely to offend again.

So while Shea bloviates about why "minimalism" (the term is a Sheaism, not found in Catholic teaching) is the current rule, he seems unable or unwilling to admit that in fact, our legal system is a "minimalist" system.

And while he excoriates the mythical maximalist (who, it is alleged, "pushes for the largest number of executions possible"), he ignores the much larger problem: the abolitionists who think the death penalty may never be licitly used. While he would have a hard time finding many (if any) Catholics who advocate for "the largest number of executions possible," he can find abolitionists by the bushel among the clergy, including bishops, and among the Catholic chattering classes (the academy, the press, and most of the blogoshphere). Many of these abolitionists actually defy Church teaching by holding that the death penalty is intrinsically immoral (for instance, Card. Martino, a curial cardinal, who publicly professes the death penalty to be "a crime."). The worst "offense," on the other hand, that I have seen on the other side of the issue is the (entirely factual) observation offered that the Church formerly proposed a much broader moral justification for recourse to the death penalty than mere public safety. The abolitionist, however, would have us believe that the Church has been and is wrong when it teaches that the death penalty is moral and just under the right circumstances.

But oddly, instead of hunting the abolitionist elephant, Shea zealously hunts for the mythical maximalist mite. It's much easier hunting, apparently.