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

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

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

Thursday, May 31, 2007

Liberal Logic

Capital Defense Weekly complains that the feds have lately obtained two death sentences in non-death penalty states. In a stunning display of ignorance or in an attempt to deceive their readers, they lament:
I guess so much for the Administration’s Federalist Society allies and their arguments about the autonomy afforded states under the 10th Amendment & that federalism means the federal government should respect a state’s decisions, like whether or not to have the death penalty.
Wow. I guess it should not be surprising, since in most law schools aspiring lawyers can graduate without having ever read the text of the constitution. If CDW had bothered to do so, they might have learned that the federal government is granted the power to regulate interstate commerce, which they do in part by criminalizing the illicit drug trade. This includes allowing for the death penalty when drug dealers kill cooperating witnesses.

I suspect CDW knows all this, however, since they themselves support illegitimate use of federal power when exercized by the federal courts to restrict state legislation on the death penalty as I mentioned here.

So it's OK for the SCOTUS to stretch the Eighth Amendment beyond recognition in overturning a state law, but on the other hand, it's an abuse when the executive branch asserts a power that no one denies they possess under the constitution.

That's liberal "logic" for you.

Wednesday, May 23, 2007

Here We Go

The gauntlet has been thrown down: Georgia'sLouisiana's Supreme Court has upheld the death sentence in a non-homicide rape case, laying the groundwork for the SCOTUS to reconsider its prior ruling that death can only be meted out for crimes involving death of a victim.

Specifically with respect to rape, in Coker v. Georgia, the US Supreme Court ruled in essence:
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

Coker was an amazing case: Coker had "raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead." Then, after breaking out of prison for those crimes, "[h]e promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm." For this last crime, a Georgia jury sentenced Coker to death.

Justice Powell, usually portrayed as an enlightened old Virginia gentleman, breathtakingly stated of Coker's crime:
there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury.
Seriously. As if rape by definition were not a crime involving brutality and lasting injury. And therefore, Powell concluded, death was a disproportionate sentence and therefore violative of the Eighth Amendment's prohibition against cruel and unusual punishment. Et viola, the belief of the citizens of a third of the states which authorized death for the crime of rape (before Furman v. Georgia effectively negated all existing capital statutes: Georgia, North Carolina, and Louisiana had re-enacted death for rape statutes in the post-Furman era), and who disagreed with Powell that rape wasn't really that serious, were suddenly declared unconstitutional because Justice Powell could not imagine how rape could be considered so brutal and serious a crime as to justify death!

Turn the page now to Louisiana, which in 1995 enacted a statute authorizing death for the crime of aggravated rape, a narrow species of rape with specific elements of aggravation, among which are a rape in which the victim is under the age of thirteen.

According the Louisiana Supreme Court's summary in Louisiana v. Kennedy, the victim, an eight year old girl, was brutally raped by her stepfather while preparing to sell girl scout cookies in the family garage; "the victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina."

The issue in the case was the identity of the peretrator. The jury concluded that the defendant had coached his stepdaughter to claim that two black males had dragged her from her garage to the yard, where they raped her. At trial, the victim testified that the defendant raped her in her room, which was consistent with the physical evidence, and that he told her to make up the story about the black men raping her.

The usual suspects in the sex offender's cheering section predict that the SCOTUS will grant cert. I agree, and, given the mushy and sorry state of Eighth Amendment jurisprudence, the robed wonders might well issue an opinion along the line of this comment on Berman's blog:
No more than seven states have the death penalty for child rape, or put another way, well over 40 jurisdictions do not. No one has been executed for child rape in at least 40 years. International consensus -- save for those countries where radical fundamentalism the rage -- is strongly opposed to the death penalty.
Amazingly, this type of drivel is what now passes for "jurisprudence" in the context of the Eighth Amendment: to be constitutional, a statute must enjoy widespread state legislative agreement, and, of course, we now look to even what the "international community" thinks is just punishment.

The good news is, on the narrow issue of compliance with Coker, Georgia's statute, dealing with rape of a very discrete and vulnerable class of victims, is clearly distinguishable from the statute nullified in Coker, which "only" protected adult females.

Tuesday, May 22, 2007

Jamalists: Majority White Jury Cannot be Fair?

Mumia Abu-Jamal is still, alas, alive and kicking. Mumia, AKA Wesley Cook, his birth name, is a self-professed revolutionary, who was a member of the Black Panthers and supported the black militant MOVE group in Philadelphia.

Jamal was found guilty and sentenced to die for the killing of Officer Daniel Faulkner:
After stopping Jamal's brother, William Cook in central Philadelphia, and calling for backup,

Cook exited his vehicle and scuffled with Faulkner. Seeing the altercation, [Jamal] ran to the scene from a parking lot across the street. As [Jamal] approached Faulkner, Jamal shot Faulkner in the back. While falling, Faulkner fired at [Jamal] and struck him in the chest. [Jamal] then stood over the fallen Faulkner and fired four more shots, the first of which entered Faulkner’s brain between his eyes. Wounded, [Jamal] then walked several steps away from the dying officer and dropped down, sitting on the curb. William Cook remained on the scene standing near the wall of the adjacent building. Within one minute of Faulkner’s radio call, Officers Robert Shoemaker and James Forbes approached the scene, where a cab
driver advised them that an officer had been shot. Additional officers arrived shortly thereafter. Faulkner was taken to Jefferson Hospital immediately, and later was pronounced dead. As Shoemaker approached [Jamal], [Jamal] reached for an unidentified object on the sidewalk. Despite Shoemaker’s repeated orders to “freeze,” [Jamal] continued to move toward the object. Drawing closer, Shoemaker identified the object as firearm, and kicked [Jamal] in the chest to get him away from the gun, and then kicked the gun out of [Jamal’s] reach. As officers carried [Jamal] to a waiting police van, [Jamal] resisted arrest by striking and kicking the officers attempting to handcuff him. As [Jamal] was being apprehended, Officer Forbes frisked William Cook, who exclaimed “I ain’t got nothing to do with this.”

The Commonwealth presented four eye-witnesses at trial. Cynthia White testified that she witnessed [Jamal] run out of a parking lot on the other side of Locust Street as Officer Faulkner attempted to subdue and handcuff Cook. Robert Chobert testified that he heard a shot, looked up, saw the victim fall, and then saw [Jamal] shoot Faulkner in the face. Michael Scanlon testified that he witnessed an assailant, whom he could not identify, attack and shoot Faulkner from behind, saw the officer fall, and then saw the assailant stand over the officer and shoot him in the face. Albert Magliton testified that he heard shots and then saw Faulkner on the ground,
and [Jamal] on the curb. Once Jamal had been subdued, Chobert was escorted to the police van at the scene where he was being held and immediately identified [Jamal] as the individual who shot Faulkner. Magliton also identified [Jamal] as the perpetrator, both at the scene and during the trial. Forbes seized two handguns from within five feet of where [Jamal] was sitting on the curb following the shooting. One was a standard police-issue Smith and Wesson .38 caliber Police Special revolver with a six-inch barrel which was registered and issued to Faulkner. Faulkner’s firearm contained six Remington .38 special cartridges, one of which had been fired. Ballistic testing later confirmed that the bullet that struck [Jamal] was fired from Officer Faulkner’s revolver. The second firearm seized was a five-shot Charter Arms .38 caliber revolver with a two-inch barrel, purchased by [Jamal] on June 27, 1979 and registered to him. [Jamal's] firearm contained five “Plus-P” high-velocity spent bullet shell casings. Officer Anthony L. Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Faulkner suffered a great deal of mutilation and could not be matched with a specific firearm. Paul also testified that the bullet specimen had eight lands and grooves with a right hand direction of twist which was consistent with a Charter Arms revolver and that, conservatively, there were a million Charter Arms weapons in existence at the time.
[Jamal] was taken to Jefferson Hospital for treatment. Because he refused to walk, he was carried into the emergency room by officers. The officers placed [Jamal] on the floor of the lobby at the entrance to the emergency room, and while waiting for treatment, [Jamal] was heard to twice say that “I shot the motherfucker, and I hope the motherfucker dies.” The statement was heard by Priscilla Durham, a security guard on duty at Jefferson Hospital. The statement also was heard by Officer Gary Bell, who responded that “if he dies, you die.”

(substituting "Jamal" for "Petitioner") Now, it's important to realize just how much damning evidence there is that amply justifies the guilty verdict and the death sentence in this case, because Jamal has become a celebrity "political prisoner" among the academic left, Hollywood, and Europeans, and even has a street named after him in France (of course) (the entire sordid cast is summarized here). To these folks, the facts no longer matter, Jamal is a symbol of their hatred of the justice system. No one really buys Jamal's latest theory that the officer was murdered by the mob because he was investigating them and the mob framed Jamal, but it doesn't matter: he's a black liberal hero and therefore whether he's actually guilty or not is irrelevant.

He has gone up and down the gauntlet of direct appeals and habeas petitions, and been soundly rejected at all stages, save for a ruling that held the death sentence had to be vacated because a sentencing instruction might have been misconstrued by the jury (an appeal of that decision is currently pending).

The case is in the news again, however, because a Third Circuit Court of Appeals panel just heard arguments that Jamal's conviction should be overturned because some black jurors were supposedly improperly striken from the jury pool.

What, you may ask, does this have to do with Jamal's guilt or innocence? The answer is nothing, but a case called Batson v. Kentucky says that since defendants have a right to have their own racial group represented on jury pools, and minorities and women have a right to sit on juries, if it can be shown that they were excluded because of their minority status or on account of their sex, the conviction must be vacated. I know that sounds incredible, but it's true: a guilty defendant can walk because a potential juror's "right to sit on a jury" has been violated, even if he had the fairest trial in the history of the world and regardless of his guilt or innocence.

Fortunately for the citizens of Philadelphia and the family of Daniel Faulkner, in order to prevail, Jamal has to show that the jury pool had a certain number of blacks, and then that these blacks were struck by the prosecution in a discriminatory manner. (four blacks and 20 whites were on Jamal's jury pool and 10 whites and 2 blacks actually tried the case). But as Capital Defense Weekly laments:

At oral argument the panel, according to press accounts, suggested they needed to know the racial makeup of the approximately 150-person jury pool before they could determine whether the selection had been biased. “It doesn’t prove anything,” without the larger number for comparison, Judge Robert E. Cowen said. No such record exists.
There's alot of baloney in Jamal's brief about how often the Philly DA strikes blacks generally and how often the particular prosecutor in the case strikes blacks generally, which is certainly a defamatory slur meant to suggest without proving that the DA is a racist, but it matters not one bit, since the only relevant legal question is how many were struck in this case, and whether race-neutral reasons were advanced for the strikes.

In any event, this would be the flimsiest of reasons to reverse a conviction which rested on such solid evidence and which had a multi-racial jury (as if that is particularly relevant). Unless of course, the Jamalists want to create a new rule that the defendant has the right to a jury of his own race, which reduces to the claim that whites are universally racist and can not fairly assess the evidence in a case with a black defendant (which is decidedly not the rationale of Batson, which expressly rejected the notion that there is a right to have a certain racial makeup, and only held that a defendant should have a jury from which his own racial group has not been improperly excluded).

A Hot Dog for Defense Counsel, On Me

So I'm doing this preliminary hearing on a drug possession case and the defendant is "alleged" to have thrown her crack stem into the toilet at a convenience store.

When the officer is asked how she recovered the stem, she relates that a store employee told her to hold on a minute, and came back with a pair of tongs, which the officer used to fish out the stem from the toilet.

The officer then says that she asked the store employee where the tongs came from.

"Oh, from where the hot dogs are served."

Monday, May 21, 2007

Welcome Home

Via One Marine's View

Capital Error in Illinois

How can you rob a restaurant, indiscriminately murder seven people, and escape the death penalty, Crime and Consequences reasonably asks. One juror holding out basically vetoed the death penalty in this case, and C&C argues that the sentencing portion of the trial in Illinois should be subject to the same deliberation requirement as the guilt phase: deliberate until a verdict is reached, otherwise a mistrial follows and a new sentencing hearing.

Unfortunately, Virginia shares this silly rule with Illinois: "In the event the jury cannot agree as to the penalty, the court shall dismiss the jury, and impose a sentence of imprisonment for life."
Any state legislators reading??

Let's at least require a re-sentencing in the event of a deadlock. Even better, eliminate the unanimity requirement altogether, in favor of perhaps an 11 or 10-juror majority.

The silliest reaction (though it will certainly be echoed by the anti-DP extremists) is given by the Chicago Sun-Times as featured in Capital Defense Weekly:
If we don’t try to execute someone responsible for seven murders, the argument will go, how in good conscience and in the name of justice can we try to execute someone responsible for one, two or three murders? Either way, the answer is we can’t. We shouldn’t.

To which a comboxer rejoinds:
What a garbage argument. It presupposes that because a solitary juror held out for life imprisonment in a heinous case that all other murderers get the benefit of that juror’s misguided mercy. What right to murderer’s have to cosmic fairness? None. But that is the argument. One juror gets to end capital punishment. Silliness.

Just so.

Wednesday, May 16, 2007

Innocence Project Gets It Wrong Again

OK let's try this again. The "Innocence Project" yet again has proven how inappropriate their very name is. This time, they claim: "After 19 Years in Prison for One of the Most Heinous Crimes in NJ History, Byron Halsey Is Proven Innocent through DNA" (emphasis mine). Byron Halsey was convicted of the sexual assault and murder of two children he was babysitting for girlfriend:
Halsey was convicted of sexually abusing, mutilating and murdering the children of a girlfriend he lived with at a Plainfield rooming house. The bodies of Tyrone, 8, and Tina Urquhart, 7, were found in the home's basement in November1985.
According to accounts of the trial, Tyrone had been smothered with a pillow and stabbed with scissors; Tina had been choked, sexually assaulted, and her skull fractured with a brick. The killer also drove four nails into Tyron's skull.

The bit about driving nails into little 8-year old Tyron's skull is important for reasons that will be clear in a moment.

At the time of the trial, all that could be determined was that the semen was of a consistent blood type with Halsey. Years later, with more sophisticated DNA testing, the evidence has been shown to belong to another individual, not Halsey. So, as the IP says, he must be innocent, right?

Not so fast.

Here are some other salient facts (from the New Jersey appellate opinion which ruled Halsey was not entitled to new DNA testing) about this case that the IP chose to simply ignore:

According to the proofs at defendant's trial, after defendant was told he failed the stipulated polygraph test he started talking "gibberish" and muttered: "work all week, get paid, want to go out, have to babysit for the kids, mother goes to bingo, left alone, no time to go out,"See footnote 44 and then said the following while in "a trance-like state":

Talking to Shy, kids making noise, told them to shut off, hung up the phone, told them to shut off, started beating them, Tyrone said he was going to call mommy. Grabbed them both by the throat, stop screaming, started saying, Tyrone, Tina, wake up, they didn't respond. Fuck up, you really fuck up now. Madman. Hid the
bodies, bring them downstairs, want speedy trial, needs help, get drunk, act crazy, have to piece things together, losing control, things got bad, committed a violent crime, Margaret please come home, can't come home. What are you all doing? All fucked up. Committed a crime, can't get rid of them, got all fucked up, can't call police. Thereafter, Miranda warnings were administered and defendant gave the following statement following waiver of his rights: I
hung up the phone and I started beating them. They said, "I am going to call mommy. Mommy will leave you, anyway she don't like you." They were both saying it. Started beating more. I don't know what happened, telling Tina I messed up. I beat them and grabbed them before they ran out of the house. I grabbed them by the throat one in each hand, I was squeezing them. There was no more life left in them . . . I sexually assaulted a seven year old girl. Where and how I can't remember . . . I can't recall if the basement door was unlocked or I used a key but I remember carrying the two children to the basement at one time. I walk out the basement, go to the side door and vomit. I say, oh man what did I do this time. I went back to my room. At this time my mind told me I didn't do nothing. Watching TV like nothing ever happened. I called Margaret . . . I ask her "where are the children?" And thereafter, defendant provided the following:
It is dark in one room. Now there is a red brick here. I accidentally hit her (Tina) with it. I ran out of the room, ran in the other room. I assumed that I didn't have nothing in my hands but I did. I hit Tyrone several times in the head with a brick. He was on the floor when I hit him. I hit Tyrone in the head several times. In
the basement I found some scissors and some nails and I left the nails in his forehead. I used the brick to put some nails in his forehead . . .

And lo and behold, forensic testing showed that "a substance found on the head of the nails removed from Tyrone was consistent with the components of the brick."

Now if Halsey did not leave behind any evidence of sexually assaulting the victims (and note that one can commit a crime like this without leaving trace evidence), and someone else's DNA was present, it by no means follows that Halsey is innocent.

What it means is that Halsey committed the murders, and there was someone else involved. Indeed, the DNA in question belongs to a convicted rapist who was a neighbor to Halsey and the victims and whom Halsey knew. This person, Cliff Hall, testified against Halsey, and certainly had ample reason to place all the blame on Halsey to cover his own involvement. Nevertheless, Hall's involvement with the crime does not lessen Halsey's own involvement.

I don't know if New Jersey can convict Halsey or intends to re-try him. Even if they don't, one thing is clear: Byron Halsey has by no means been proven innocent. At best, the fact that someone else was clearly involved in the sexual assault might exonerate him of the crime of sexual assault. The other evidence in the case still strongly points to his guilt in the murder of these children.

Yet the ludicrously self-labeled "Innocence Project" claims that the DNA alone proves Halsey's complete innocence of all charges.

As I've shown before, these guys are obviously more concerned with their own self-glorification and in their extremist anti-death penalty activism than in the facts or the truth.

Monday, May 14, 2007

Lies, Damned Lies, and Activists

Sigh... you would think that people in the business would know this: just because someone else's DNA is found at a crime scene, it does not mean a defendant has been "exonerated."

Curits McCarty was recently sprung from death row after having been convicted not once, but twice, of the 1982 murder of 18-year-old Pamela Kaye Willis. The state at trial had alleged that she had been raped. There was seminal fluid that was preserved from the crime scene, and it was new DNA testing on this evidence that showed McCarty did not contribute the evidence. A corrupt state forensic scientist had grossly mishandled the evidence, which led a judge to dismiss a third attempt at convicting McCarty even while voicing suspicions about his involvement with the murder. However, as the state court ruling on the habeas petition explained:
The State, however, claims the DNA tests do not exonerate Petitioner, stating “at best, these findings… only exclude him as the source of the seminal fluid from the vaginal slide.” Furthermore, the State correctly points out that Petitioner had previously challenged the State’s theory that a sexual assault had even occurred.
Indeed, in our opinion in Petitioner’s trial on guilt or innocence, we specifically noted defense counsel “was effective in eliciting from the experts testimony which indicated that the evidence of sexual activity did not absolutely support the conclusion that the victim had been sexually assaulted.” McCarty, 1995 OK CR 48, ¶ 63, 904 P.2d at 127. Because we found there was no “conclusive evidence that a rape or sodomy occurred,” the fact that the semen did not prove to be Petitioner’s is hardly proof that Petitioner is innocent of murder.
Amen. So, can we forget about this being another of the DPIC's falsely-labeled "death row exonerations"?

As the state of Oklahoma argued, McCarty “is anything but actually innocent of the crime… At best, this case involves a clearly guilty man who hopes to walk free because of the incompetence, or malice, of an Oklahoma City police chemist.”

Why? Because aside from the DNA, which only proves that someone other than McCarty had sex with the drug-addicted victim, and therefore is really not especially relevant to the crime of murder, the state showed that McCarty made not one, not two, but three separate and contradictory statements about the crime. The state also presented evidence that placed McCarty near the scene of the crime and that he made incriminating statements to two different witnesses.

So while a death penalty case might go out the window without an exceptional circumstance like rape, a murder charge would still be sustainable. In any case, even if it were not be possible to prove guilt beyond a reasonable doubt, as the OJ case reminded us, "not guilty" does not mean "exonerated" or "innocent."

So why would the absurdly-named Innocence Project claim that "every piece of evidence" shows McCarty's innocence?

It couldn't be that their extremist anti-death penalty ideology trumps every other consideration, including basic respect for facts and truth?


Former Marine kills cop-killer with slain officer's own firearm.

New Hampshire authorities said yesterday that they will not press charges against a former Marine who stepped into a deadly shooting and killed a 24-year-old high school dropout who had moments earlier fatally shot a police officer.
The former Marine, Gregory W. Floyd, 49, was driving with his son along Route 116 in Franconia on Friday night when he saw Liko Kenney, 24, shoot Franconia Police Corporal Bruce McKay, 48, four times in the torso. After Kenney drove his Toyota Celica over McKay as the officer lay on the ground, Floyd grabbed the officer's service weapon and shot and killed Kenney.
My only question is how the "authorities" could even couch this situation in terms of whether Floyd might be charged. How about this alternate-universe report:
"authorities credited Floyd for his bravery in stopping a deadly cop-killer and will be recommending him for reception of a civilian heroism award. When asked about potential charges against Floyd, the authorities patiently explained to this reporter that shooting an armed murderer attempting to flee a crime scene does not constitute a crime."

Friday, May 11, 2007

Don't Mess with Virginia

It seems that the mayor of New York has been conspiring to transact straw gun purchases to score some cheap political points. Our AG has fired a shot across his bow. Perhaps Bloomberg will force the issue here in my jurisdiction (which hosts one gun shop that has already been frivolously sued by NYC).

One can only hope. We'll arrest these guys and prosecute them so fast it will make his head spin.

How'd that get there?

When dope is found in a suspect's pants, they often claim "it's not my pants!" When the stuff is found in their underwear, I've heard them claim "It ain't my underwear!" or when it's in their sock, "it ain't my sock, man!" ... but this one is new for me:

From a recent case file:

[During the strip search of a prisoner being booked into the local jail for failure to appear in court], a small plastic baggie of white powder was found wrapped around [the defendant's] penis. When he was asked what it was, he stated he did not know what it was or how it got there.

Supply your own punch line.

Thursday, May 10, 2007

Ignored by NPR, Chapter IV

More signs the tide is turning against Al Quaeda:

In March, we noted the successful model of the Anbar Salvation Council will very likely be replicated elsewhere in regions where al Qaeda has established bases of operation. We singled out Diyala in particular, as al Qaeda's campaign of murder and intimidation was beginning to anger the tribes much as it did in Anbar province. Al Qaeda's establishment of its Islamic State of Iraq, with its capital in Baqubah made the province ripe for am major Coalition operation in the region. In early March, Al
Sabaah reported
the local sheikhs in Diyala were organizing against al-Qaeda and its Islamic State of Iraq, "which [is] spreading corruption in the province districts." Today, the speculation has become a reality, as, "Arab tribesmen in Baqubah have said they will form a tribal alliance to cleanse the Diyala province of foreign fighters and those of the al-Qaeda terrorist network in Iraq."
"Tribesman Sheikh Wameed al-Jabouri told al-Hayat that a number of tribes had signed a cooperation agreement to undertake this mission and to bring the city back to how 'it used to be,'" notes DPA. "The agreement could be considered "a national charter" that proves their rejection of the actions of the terrorist groups, al-Jabouri said."

Soldiers from the 5/20 Strykers conduct operations
in Buhriz on March 20, 2007.
U.S. Air Force photo by Staff Sgt. Stacy L. Pearsall.

Ignored by NPR, Chapter III

You won't hear about this hero by listening to the nattering nabobs of negativism at NPR, or by reading the Washington Post or NY Times, but every American should know that men like these are fighting the jihadis every day in Iraq and Afghanistan:

In late November, 2005, during an assault on a house in Mosul, Iraq, filled with terrorists, PFC Stephen Sanford of Charlie Company, 2nd Battalion, 1st Infantry Regiment, was hit in the leg. The house erupted in rifle fire and grenades. Soldiers were hit and dying on the first floor of the house.
Though wounded in the leg, Sanford charged back in with his team, laying down suppressive fire while his team mates evacuated the wounded. On the second evacuation of wounded, Sanford again (bleeding) kept the terrorists at bay while the wounded were evac'd. While assisting the last wounded soldier out of the house, a terrorist shot the soldier assisting the wounded troop. The soldier dropped to the floor - shot through the neck.
Sanford ran back and began performing first aid, then CPR trying to keep the soldier alive. Terrorists sensed Sanford's weak position and tried to gun him down. While performing CPR, he was shot twice in the back while trying to protect the wounded soldier with his body. Sanford then turned and fought back, killing one terrorist, but getting hit twice more.
Sanford continued fighting, trying to save his comrade, when the loss of blood was too much and he lost consciousness...
...Sanford was awarded the Distinguished Service Cross by Joint Chiefs of Staff Chairman Marine Gen. Peter Pace, who traveled to Alaska to perform the ceremony. “As he was pinning the medal on, his hands kinda shook a little bit, and he said ‘Sorry, this is the first time I’ve given one of these out.’ I said, ‘Don’t worry General, it’s my first one too.’”...
Where do we find such men?

Been Away

I've been away the past two days at a conference sponsored by the feds, dealing with firearms laws and such. It was refreshing since instead of dealing with lawyers all the time, like I have to at work, this crowd was mostly law enforcement from around the country, and the presenters were ATF, State Police, and a Richmond City gang investigator. The best part was getting a free copy of the Blue Book of Gun Values, which lists pretty much every known firearm and its value.

Ironically, literally across the hall in another conference room of this nice hotel, a group of capital case defense lawyers was holding a meeting. Needless to say, this made for an interesting mix in the hallway at the break times.


To the chagrin of some, it seems that the reports of the demise of the death penalty are premature.

Thursday, May 03, 2007

Hanoverian Usurper Comes to Virginia*

There's much buzz and excitement today in Richmond as the Queen of England visits here and travels later to Williamsburg, where she will tour the campus of William and Mary College. This is all in conjunction with the seemingly endless "celebration" of the founding of Jamestown in 1607, which, as the promoters are careful to point out, is the first permanent English settlement in the New World. You know, Pocahontas and John Rolfe and all that.

Of course, the oldest European settlement in the New World is St. Augustine, settled by the Spanish in 1565, 50+ years before an Engish settlement could take hold.

Moreover, one wonders what former ACLU lawyer and William & Mary president Gene Nicol (famous for removing the cross from the college's Wrenn chapel, then restoring it when a donor threatened to withold a $12 million gift--there's steadfast principles for you!) will say to the Queen. Will he, for instance, take a brave stand for human rights and religious liberty and challenge the Queen to use her influence to change the express anti-Catholic section of the Act of Settlement, which forbids a Catholic from becoming the monarch or continuing as the monarch if he were to convert to Catholicism? Can you imagine the uproar if there existed a similar prohibition with respect to Jews or Moslems?

I won't hold my breath.

* A bone for Jay, who posts at length about such matters today.

Wednesday, May 02, 2007

Nino Has it Right

Someone named Mike at Crime and Federalism has repeated an old canard about Justice Scalia which holds that he is not really a good Catholic because while he opposes abortion and supposedly acts on this religious belief in his professional capacity, he ignores or positively violates the Church's teachings about subjects like just wage and the death penalty.

Now it's hard to attribute mere ignorance to someone who knows his way around blogdom. It surely would not have been difficult for Mike to find a source like this one which lays out briefly the various levels of authority involved in Church teachings. He might have taken particular note of the following passage:

We must also keep in mind the distinction of three things: 1) doctrine; 2) laws; 3) prudence. The doctrine is protected by the promise of Christ, as above. Laws, not from the Holy See, but from Bishops, could contradict the Church, e. g. , by ordering bad textbooks for Catholic schools. But as to the third item, prudence or good judgment: there is no promise of Christ, no claim by the Church, to protection in prudence. Hence it is not wrong to think or even say some things are not done prudently. And if a Pope gives a practical decision on something in which morality is concerned, that is not the same as giving a teaching on a given matter.
The prudential or "practical decision" part of this passage is key to understanding Scalia's posture about the death penalty. If Mike had looked a little further into the matter, he might have found that Cardinal Avery Dulles succinctly shows that there is (and can be) no change to the Church's teaching about the morality of the death penalty. There is indeed a new emphasis on more narrowly using this penalty only when it is truly necessary to protect society from agression by the offender; however, as Cardl. Dulles explains, this new emphasis is a prudential (there's that word again) judgment by the Pope, not a magisterial prounouncement that would bind all Catholics on pain of sin.

Nevertheless, as I have attempted to show repeatedly, there is really no conflict between the way the death penalty is administered in this country and what the Church actually teaches even on this new prudential level (not to be confused with what individual laymen, clerics, bishops, or groups of bishops may wish the Church taught).

Viewed either way, Scalia is justified in upholding the death penalty: the new emphasis is just that, a prudential emphasis, not a new moral teaching and therefore is not binding like a teaching on faith or morals would be; and regardless, our practices in this country conform with even this new prudential emphasis.

Mike apparently thinks he's found a "gotcha," look-at-the-hypocrite-Catholic moment, but all he's really shown is his own shallow idiocy.

Lethal Injection Fracas

Having witnessed an execution up close and personal, I can attest that there is no sign of any discomfort whatsoever on the condemned prisoner. He goes out in a slumber, unlike his victim who usually suffered enormously from a bullet or a knife tearing through his or her flesh or in some other inhuman fashion.

Yet the anti DP lobby's latest trick is to suggest that lethal injection is cruel and usual and violative of the constitution's 8th Amendment. They point to a botched procedure here or there and extrapolate that no state reliably uses lethal injection. Lately, a disingenous "study" purports to show that inmates suffer asphyxiation during the lethal injection process.

This is all very ironic, of course, since the entire reason we have recourse to lethal injection is the idea that it is less painful than the clearly constitutional methods of electrocution, gas chamber, hanging, or firing squad.

Of course we cannot grant the unstated premise of the abolitionist lobby that death should or must be a pleasant, totally pain-free process. The suggestion that it is somehow "cruel and unusual" to inflict anything other than a totally pain-free death is an idea without precedent or support as a matter of constitutional law.

Moreover, the latest "study" is full of political commentary and the authors actually had to pay to have it published. More problems with this study are raised here.

While no one denies that we should have protocols that are adhered to in administering the death penalty, it is not the case that lethal injection unduly inflicts more pain than is strictly necessary to accomplish the execution. It is in fact certainly less painful than some of the former methods widely used in this country, none of which were found to be unconstitutional.

An Infamous Anniversary

This is the 80th anniversary of Buck v. Bell, a dark moment in our history, and a lesson in why we should not let judges substitute personal philosophy for the text and original understanding of constitutional texts.

In 1927, the state of Virginia had a statute on its books allowing for the sterilization of "mental defectives." Under this law, the superintendent of the State Colony for Epileptics and Feeble Minded ordered that hundreds of men and women who fell into these categories be sterilized. The law was a clear response to the popular eugenics movement of the time.

In Buck v. Bell , Carrie Buck, the plaintiff, had been confined to the Colony for feeble mindedness in Amherst County. Evidence showed that she, her mother, and her baby (born out of wedlock) were all "feeble minded." Buck was scheduled for a sterilization operation, but she challenged the Virginia law on the grounds that it violated her Fourteenth Amendment rights to due process and equal protection under the law.
Whaddya think? Did Carrie Buck have a "due process" right not to be sterilized by the Commonwealth of Virginia? Did the liberty interests of the 14th Amendment forbid her forcible sterilization? Let's see what that great Tower of American Jurisprudence, Oliver Wendell Holmes, Jr. had to say.

Justice Holmes:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.

Three generations of imbeciles are enough.

Call it the "survival of the fittest" school of Constitutional jurisprudence. With this rudderless mode of interpretation, the results change when the Judges change: a scant 15 years later, in the case of Skinner v. Oklahoma, the Court struck down Oklahoma's forcible sterilization of habitual criminals. Skinner himself, unlike Carrie Buck, was an armed robber and a chicken thief. The Court ruled that procreation was a one of the "fundamental rights of man," and that forcible sterilization violated Skinner's Fourteenth Amendment right to equal protection.

Fast forwarding to modern issues, we see the spirit of Holmes at work in Griswold v. Connecticut, where the Supreme Court assessed the constitutionality of Connecticut statutes prohibiting the use or sale of contraceptives to married couples. The Court held (7-2) the statutes to be unconstitutional, with Justice Douglas' opinion of the Court characterizing the statutes as "repulsive to the notions of privacy surrounding the marriage relationship."

The Justices did not agree fully on how to find a way to declare the law unconstitutional. There is no express provision of the constitution which says the state may not outlaw contraceptives. Justice Douglas (joined by Chief Justice Warren and Justices Clark, Goldberg and Brennan) reasoned that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." He found "zones of privacy" to be created by specified provisions of the First, Third, Fourth, Fifth and Ninth Amendments that bound Connecticut through the Due Process Clause of the Fourteenth Amendment.

Justice Goldberg (joined by Chief Justice Warren and Justice Brennan) reasoned that the Ninth Amendment "lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments", and that to "hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever." He concluded that "the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live'."

Justice Harlan, agreeing "with the judgment of reversal" but "unable to join the Court's opinion", argued that "the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty'."

Justice White, "concurring in the judgment," felt "this Connecticut law as applied to married couples deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment." "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law."

Justices Black and Stewart, dissenting, declared that the "Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities."

"I get nowhere in this case by talk about a constitutional 'right of privacy' as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

From Holmes' personal philopsophy of eugenics to Douglas' mystical penumbras and emanations which create a right to access to contraceptives (later extended to a right to abortion), one characteristic unites these entirely divergent line of cases: Justices substituting their private notions of what ought to be done for what the Constitution itself permits or does not permit by its express terms. The further from the text and original understanding of the Constitution the Justices go, the less will their decisions be predictable because the less will they be anchored to the written text and the meaning of the text as it was understood by the authors.

From Dred Scott to Buck v. Bell, to Wickard v. Filburn, to Griswold, to Roe v. Wade: When Justices impose personal ideology instead of doing the far less sexy work of construing statutes for compatibility with the text and original understanding of the Constitution, we lose a portion of our freedom to direct our own destiny. And the small folks like Farmer Filburn and Carrie Buck lose much of their liberty.

“They done me wrong.They done us all wrong.”
Carrie Buck shortly before her death in 1983.

Thus endeth the Lesson.