Thursday, December 11, 2008
Yikes. And they wonder why the State is teetering on the verge of bankruptcy.
Tuesday, November 18, 2008
Many are unfamiliar with Holder, who has had a long career as a prosecutor, a judge, and as a Deputy AG under Janet Reno while she was busy incinerating women and children at Waco and allowing shoot to kill orders to be issued at Ruby Ridge. While ostensibly responsible for public corruption prosecutions, it appears Holder was very shy (to put it charitably) about charging corruption targets.
He is also opposed to the death penalty, so we can expect to see use of the federal death penalty dry up under his watch. And since we'll be likely prosecuting Islamic terrorists in federal criminal courts we could face the prospect of mass murdering Islamists enjoying lengthy stays in domestic federal prisons.
He was instrumental in the pardon of billionaire criminal and Clinton crony Marc Rich and in covering up the plan to issue the pardon from the Justice Department, which likely would have opposed the pardon. He also was involved in covering for the Clinton pardon of 16 Puerto Rican FALN terrorists, at the end of the Clinton administration. This pardon of the FALN terrorists is particularly disturbing, since "[The]FALN threatened Judge Thomas McMillen’s life during their trial in Chicago and remained unrepentant in prison. Connor [the son of one of the FALN's victim's in that case] observes:
As the deputy attorney general, [Holder] was responsible for signing off on all clemency matters forwarded to the President, and in this case he recommended that clemency be granted -- despite vehement opposition from the FBI, the Bureau of Prisons, and his own Justice Department ... Indeed, rather than consult with attack victims and their families, Mr. Holder instead met privately with members of Congress and recommended what the FALN members should do to facilitate a grant of presidential clemency.From the reckless disregard for life shown by his former boss Janet Reno, to his ignoring the FBI and Justice with respect to pardons for the FALN terrorists, to his attempt to hide Marc Rich's pardon from his own Justice Department, is Holder really the kind of change the new Administration is going to bring us?
Wednesday, November 05, 2008
A mixed bag to be sure, though the most notable vote was the slapdown of the homosexual "marriage" movement, adding to a 27-state rejection of the effort to re-define marriage out of existence.
It's tough to overcome the natural law, common sense, and 6,000 years of the Western understanding of marriage.
Friday, October 31, 2008
Thursday, October 23, 2008
Typically, they claim this shows he's incompetent, calling it "suicide by court," an insulting phrase that denigrates the entire justice system. They apparently couldn't imagine that someone might actually feel remorse, acknowledge the justice of his sentence, and not wish to contest or prolong it by a bunch of frivolous appeals. Who knows, maybe these defense attorneys just can't stand the idea that they're being cut out of the process.
I think it would be cruel and unusual punishment to force an inmate to have to associate with lawyers he doesn't want to associate with.
Wednesday, October 08, 2008
What amazes me is that we have to fish for surreptitious recordings to find out what these guys really think: they're obviously too afraid to be open about their views, and bank on the hope that they can snow the electorate by putting on a facade of moderation and smooth speech.
This bile from Warner doesn't actually surprise me-- he already has shown that he's a bald-faced liar, promising not to raise taxes when he was running for Virginia governor, then turning around after being elected and pushing through the largest tax increase in the history of the Commonwealth.
Monday, October 06, 2008
His death sentence has already been reversed, sadly, but his lawyers were hoping to get a new trial.
More about his case here and here.
Saturday, October 04, 2008
A sweet sight, indeed--->
Thursday, October 02, 2008
Another example of why sex offender registries are important... and why recidivism is a special concern with sex offenders. When they re-offend, it's not about a store losing merchandise or a drunk driver on the road, or some similar harm. The very nature of these offenses is uniquely destructive.
I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.
While the new evidence of American opinion is ultimately irrelevant to the majority’s decision, let there be no doubt that it utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference. As noted in the letter from Members of Congress, the bill providing the death penalty for child rape passed the Senate 95–0; it passed the House 374–41, with the votes of a majority of each State’s delegation; and was signed by the President. JUSTICE KENNEDY’s statement posits two reasons why this act by Congress proves nothing about the national consensus regarding permissible penalties for child rape. First, it claims the statute merely “reclassif[ied]” the offense of child rape. Ante, at 2. But the law did more than that; it specifically established (as it would have to do) the penalty for the new offense of child rape—and that penalty was death: “For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.” §552(b)(1), 119 Stat. 3263 (emphasis added). By separate executive order, the President later expressly reauthorized the death penalty as a punishment for child rape. Exec. Order No. 13447, 72 Fed. Reg. 56214 (2007). Based on these acts, there is infinitely more reason to think that Congress and the President made a judgment regarding the appropriateness of the death penalty for child rape than there is to think that the many non-enacting state legislatures upon which the majority relies did so—especially since it was widely believed that Coker took the capital-punishment option off the table.
Monday, September 29, 2008
And the media yawns and looks the other way.
Friday, September 26, 2008
There was an article in my home town paper about a year ago on the subject of the disposition of DWI cases. It seems that lawyers who make this sort of work their specialty prefer bench trials for those cases which go to trial. (At one time here in New York, 98% of all indictments were resolved through pleas - don't know the current figure or that for DWI cases). This surprised me as I have been told by other lawyers in general practice (about a decade ago) that your client very seldom benefits from a bench trial. The lawyers interviewed said juries are unpredictable and get sidetracked by irrelevant issues. What do you make of that?Yes, the age-old question of bench vs. jury trial.
It seems that bench and jury trials have both been in decline in recent years, a fact lamented by the NACDL, an organization of defense attorneys, which sees in the reduction of trials a sinister erosion of trial rights.
As to the specific question, alot of factors play into whether a jury or a bench trial is chosen, assuming the case is one of those relatively few that are actually tried in a contested posture.
Some of the factors:
* which jurisdiction is the case in: The suburban county, where jury pools are more middle class, educated, property owning, and therefore generally less sympathetic to criminals and less suspicious of the police, or the city, where jury pools are younger, less educated, have less of a property stake in the community, tend to be suspicious about the police, and tend to be more tolerant of certain crimes because these crimes are either so common or have been committed by the juror's own family members.From my viewpoint as a prosecutor, I rarely insist on a jury, but in the rare case where a defendant faces alot of very serious charges, the evidence is very strong, and the defendant will not even consider a plea agreement, I have and do take jury trials, with predictable results.
* the nature of the case: Is it a wounding or murder case where there is a strong self-defense claim with a sympathetic defendant and an unsympathetic victim? Even if legally self defense is not technically available, a jury might in effect "nullify" and acquit if they can be convinced that the victim "had it coming to him." Or in the urban jurisdiction, a construction possession of cocaine case might be a good one for a jury, where a judge might easily convict because he's seen a thousand such cases, a jury might well acquit, especially where it is "just a drug case." UPDATE: Injustice Anywhere, back from a blogging hiatus, has an example of a case where she successfully pitched a legal defense to a jury when the judge wouldn't buy it pretrial.
* which judge has the case: Some judges are so lenient or will acquit more readily that it may be a good tactical decision to forego a jury (which is always, always, a roll of the dice) and hope that the lenient judge acquits, and if he doesn't, at least he is a light sentencer. On the other hand, if the judge is a hanging judge and tends to resolve credibility of witness testimony in favor of the government, a jury might be the call where the issue is solely witness credibility, say in an assault case where there are no police witnesses.
The cases I have where defendants take juries are pretty rare, because usually defendants take juries because the case is unusually weak or circumstantial. But it is just those cases where the incentive to reach a plea agreement is the highest: the government gives up alot on the charges or the sentence imposed, and the defendant gets the assurance of a conviction on some lesser charge or some specific sentence, instead of the risk of a jury finding him guilty of the most serious charges and imposing a heavy sentence (juries determine sentences in Virginia, subject to later reduction by the court).
Bench trials usually occur where the plea agreement process breaks down, yet the defendant does not want to risk a jury conviction and sentence. The reasoning is that a judge who has heard many similar cases, will be lighter on sentencing than a jury would be. In effect, unless there is a compelling defense to the charge, these kind of bench trials are really just "slow guilty pleas" where the defendant wants to hope for the home run of acquittal, but realistically knows he will likely be convicted but will at least convince the judge that the case is not aggravated, or is a close case, and therefore receive a discounted sentence.
These are some of the considerations that attorneys face when deciding whether to seek a bench trial or a jury trial. I know that some defense attorneys could add much more to this list. Ken, for example, has lots to say about this issue, including stories like this one, which illustrates that sometimes a jury can see things that the lawyers overlook. Ken also has posted extensively on his view that jury trials in Virginia are unfair because the juries recommend sentences, usually resulting in much higher sentences than judges give, and judges then are reluctant to reduce jury sentences, and if they do, the final sentence is still usually more than the judge alone would have given.
The specific question of DUI cases is easy: not very good cases for defendants to take a jury, because if there is a technical defense a judge is more likely to buy it; and assuming the police crossed the "t's" and dotted the "i's" there is usually not much of a defense to be had. In Virginia, once you're .08 bac or above, you're presumptively guilty unless you can impeach the intoxilyzer or bring in an expensive expert to explain that it wasn't really booze that caused the reading on the machine. Neither defense is easy and usually neither works. And juries these days are not very forgiving about driving under the influence, so the risk of a high sentence is great.
Tuesday, September 23, 2008
The Boston Herald, finding the show "guilty of inanity," was rude enough to point out that:
In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.
Never has the justice system looked so silly.
Or so hairy, for that matter, based on the overflowing locks of the hero of the show (Feige himself, but handsome and able to get lots of babes?)
But, oh dear, not even all the faithful are happy. The exquisitely sensitive Seth Abramson, himself a literary PD (he's a poet, dontcha know?) has lots of problems with Feige's little show, which he derides (quite accurately) as loaded down with "trashy talk, sex, skimpy clothing, and absurd courtroom melodrama." He's got ten questions about the absurdly unrealistic show (seconded by A Public Defender) , and Feige responds to him here. Interestingly, Feige offers no defense for the show beyond 1) it shows how much the PDs "care" for their really, truly, human clients; and 2) it shows how the "system" is broken, a recurrent theme for Feige.
Feige's problem has always been that he confuses losing cases as a defender with the "system" being "broken." But as I've mentioned before, even Feige admits the "error rate" (i.e., wrongful convictions) is very small, in the neighborhood of .5%. No one wants any error, but given the fact that the justice system only asks for proof beyond a reasonable doubt for a conviction and not metaphysical certitude, the system is far from being broken.
Which may explain why TNT needs all the long hair, skimpy clothing, and sex to sell this show to viewers.
Tuesday, September 16, 2008
This appeals to Shea because he can't stand McCain/Palin (already tarring her as a supporter of embryonic stem cell research, despite her unequivocal condemnation of the practice. HINT: Mark, a VP doesn't have to agree with every policy point of her running mate), and alas, can't vote for Barry O because although Mark sounds enamored of the guy (after all, he bashes Bush and hates the war against the Jihadis), he does inconveniently favor slaughter of babies up to and beyond the moment of birth.
What tickles me is that this Joe guy is running on some sort of pseudo-Chestertonian platform, but:
*favors amnesty for illegal immigrantsSo, he wants to encourage and reward illegal immigration that is a documented threat to the national security, he wants to violate posse comitatus by injecting the military into law enforcement, and he wants to reduce our military's ability to wage war, even it would seem, against the Taliban in Afghanistan (he even muses about "what if the Amish were in charge of the war on terror?").
*wants to stop the U.S. from use of "food terrorism" and environmental
* wants peace time use of the military to aid in law enforcement
* favors elimination of "offensive" weapons
* favors imposition of a health care tax
* favors abolition of the death penalty
On the death penalty: first, abolishing it is not within the powers of the executive branch (much less as regards use of the death penalty in the states, where it is most practiced); and second, Schriner seems to hold the heretical view that the state does not have the moral authority to use capital punishment in any case.
Odd that Shea would be recommending as the "Catholic" alternative for President a guy who would try to overstep the authority of the office, raise taxes, who is a believer in man-made global warming, who would pull the rug out from under our offensive against the Jihadis, and who after all is not even an orthodox Catholic.
This is the best Shea can come up with?
From the "What We're All Called to Be" Desk, Thomas Vander Woude -- the Virginia father of seven, retired pilot, volunteer coach and onetime Christendom College AD who drowned last week to save his youngest son's life -- was mourned by an overflow crowd yesterday at a funeral liturgy led by his eldest, a priest of Arlington:
[M]ore than 2,000 people packed the pews at Holy Trinity Catholic Church for his funeral Mass in Gainesville, some listening from the vestibule, others down a hallway watching on closed-circuit television. Among the attendees were his wife of 43 years, Mary Ellen, more than 70 priests, including the bishop of Arlington, and the friends accrued over decades who came to pay respects to a man who inspired them, right up until his final breath. If Vander Woude saw the throng, he'd say, "Are you kidding me? . . . Don't waste your gas," said one of his sons, Steve Vander Woude of Nokesville, after the service. But "this guy did something saintly, and they wanted to come be a part of it."Thomas S. Vander Woude, 66, died last week while helping his son Joseph, who has Down syndrome, after he fell into a septic tank while working in the yard, police said. The tank was eight to 10 feet deep, Steve Vander Woude said.His father climbed into the 2-by-2-foot opening, managed to get under Joseph and was pushing him upward to keep his head above the sewage. Initially, Vander Woude was able to keep his own head above the muck, telling a workman who was helping from above, "You pull, I'll push," Steve Vander Woude said. But he eventually sank and was later pulled out by rescue workers, who were unable to revive him, Prince William County police said.Joseph, 20, was hospitalized last week with pneumonia but was released Saturday and attended the Mass for his father in a wheelchair, connected to an oxygen tank. His family said doctors expect a full recovery. A few days after his father's death, Joseph's family sat with him in the hospital and explained to him that his father had died.Upon hearing the news, Joseph "sat back . . . he closed his eyes, his chin quivered, and he started crying," Steve Vander Woude said. "I think he understands as much as he can right now."Another of Thomas S. Vander Woude's sons, Tom Vander Woude, pastor at Queen of Apostles Catholic Church in Alexandria, gave the homily. In it, he likened his father to St. Joseph, a man who patiently and quietly supported his family, did odd jobs for those in need and was content to worship God and not seek the limelight, Tom Vander Woude said....Mary Heisler, 36, of Nokesville, said she never would have come to Virginia as a teenager, let alone met her future husband, if it had not been for Vander Woude. She was receiving Catholic home schooling in Texas when Vander Woude, who was helping with the home-schooling program at Seton, contacted her father and persuaded him to move 14-year-old Mary and her 11 siblings to Virginia to attend the school.Her father obliged, sold the house, bought a yellow school bus and drove his family to Prince William County.Money was tight, so Vander Woude took the family into his home for a month before lending them money for a down payment on a house of their own in Manassas, Heisler said."He gave us half the home," said Heisler, who met her husband, Tim, at Seton. "I don't think he realized how many people he impacted."Peter Scheetz, assistant director at Seton, recalled a similar kindness."When my wife and I got married, we were trying to buy a townhouse," Scheetz said. "We didn't have any credit. . . . Tom Vander Woude ended up co-signing our loan for our first house." There were many similar stories about Vander Woude, who served as a pilot during the Vietnam War, a commercial pilot after he returned home and a longtime volunteer coach.His dying act was "truly saintly" and "the crown of a whole life of self-giving," Bishop Paul S. Loverde said at the Mass."May we find in his life inspiration and strength."And already, the prayers have begun -- not so much for Vander Woude, but to him. On a related note, lest we forget, today would've been Danny's 59th birthday... and even now, to simply say he's missed doesn't begin to cut
Friday, August 29, 2008
Thursday, August 28, 2008
Blonde Justice concluded that if the prosecutor is "bad" and strong arms or threatens the witness into sticking by the identification, the next time
we do come up with that gem on an investigation (like the unsure witness), he will never get a courtesy call. And then it comes out at the trial, in front of the jury - with absolutely no warning to the prosecutor. I've seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor. But it is sort of fun to watch. They don't see it coming and then BAM! it's like a train wreck! And who doesn't love a good BAM! moment in a trial?Mark Bennett jumps into to say that the
defender who holds back a bombshell for trial one time contributes uncertainty to the Government’s case in every case from then on. The less certain the Government is of its case, the better the Defense’s negotiating position. If the criminal defense lawyer has a reputation for springing unpleasant surprises for the Government in the middle of trial, he’s going to get better plea offers than if he lays all his cards on the table before trial in every case.A Public Defender weighed in to offer a different view about bush-whacking the prosecution:
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk. If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.
My own view is this, speaking strictly for myself: if there is a genuinely exculpatory tidbit, such as the victim recanting, obviously, I want to know about it-- not so I'm not caught with my pants down at trial (unpleasant as that is), but because if I talk to the victim and she tells me, "you know, I really can't be certain" or words to that effect, I'm not going to try to force that person to fake certainty.
First, it usually doesn't work: on even a mediocre defense cross, she'll likely reveal her uncertainty anyway. And if a defense investigator has her saying she is really uncertain, that prior statement will come out. Either way, it's a fair bet that a recanting witness is not going to be "threatened" into being a credible witness.
Second, call me idealistic, but I have this thing about wanting to convict guilty people, and if a witness is expressing genuine doubt (not doubt artificially ginned up by an over-eager defense investigator), and there is no corroborating evidence to shore up the identification, the first question I ask myself is "why should I believe her beyond a reasonable doubt." If I can't answer that question, I shouldn't be taking the case to trial.
Of course, it remains that a defense attorney can save the "bombshell" for trial and get lots of jollies making the prosecution look foolish by bushwhacking the prosecutor with surprise information. Heck, it happens often enough, though it's rare that the surprise evidence is of sufficient quality to gain an acquittal. It's hard (in Virginia anyway) to put on a surprise alibi defense (here, if the defense files for discovery, he must reveal alibi information, so we either get that in advance, or if no discovery is filed for, we have a hint that an alibi is coming). But occasionally there will be the unpleasant surprise, which, if it had been revealed beforehand, would have changed my view of the case.
But as Mark Bennett alluded to, I'm going to remember if you're the kind of lawyer that would rather go for the public "gotcha" than work with me to find out the truth about the case. And if that attorney practices regularly in my jurisdiction, every attorney in my office is going to be told about it.
Prosecutors have alot of discretion, and more often than not, defense attorneys are looking for the best deal for clearly guilty clients when they come knocking on my office door.
Those who play hardball are remembered at those moments.
Recently, Obama gave this irrelevant response to the fact that he befriended militantly unrepentant Weather Underground leader Bill Ayers: "I was only eight years old" when the Weather Underground were doing their thing.
Heh. And this guy was only nine when the Weather Underground tried to murder him:
In February 1970, my father, a New York State Supreme Court justice, was residing over the trial of the so-called “Panther 21,” members of the Black Panther Party indicted in a plot to bomb New York landmarks and department stores. Early on the morning of February 21, as my family slept, three gasoline-filled firebombs exploded at our home on the northern tip of Manhattan, two at the front door and the third tucked neatly under the gas tank of the family car. (Today, of course, we’d call that a car bomb.) A neighbor heard the first two blasts and, with the remains of a snowman I had built a few days earlier, managed to douse the flames beneath the car. That was an act whose courage I fully appreciated only as an adult, an act that doubtless saved multiple lives that night.
I still recall, as though it were a dream, thinking that someone was lifting and dropping my bed as the explosions jolted me awake, and I remember my mother’s pulling me from the tangle of sheets and running to the kitchen where my father stood. Through the large windows overlooking the yard, all we could see was the bright glow of flames below. We didn’t leave our burning house for fear of who might be waiting outside. The same night, bombs were thrown at a police car in Manhattan and two military recruiting stations in Brooklyn. Sunlight, the next morning, revealed three sentences of blood-red graffiti on our sidewalk: FREE THE PANTHER 21; THE VIET CONG HAVE WON; KILL THE PIGS.
Obama's friend Bill Ayers has stood by these and other terrorist crimes committed by the Weather Underground. But since Obama was only eight when they happened, it's OK to be buds with him now, you see.
Wednesday, August 27, 2008
One of the speakers [at the interfaith meeting at the Denver Democrat convention] was Sister Helen Prejean, a Catholic who is one of America's leading crusaders against the death penalty. She is the subject of the hagiographic movie Dead Man Walking. Sen. Obama, however, claims to support the death penalty. He goes so far as to say that he disagrees with the Supreme Court's recent decision forbidding the death penalty for crimes in which no one is killed (such as the rape of a child). Given Obama's (claimed) expansive support for the death penalty, the media ought to ask him why his convention prayer session featured a person whose main contribution to political debate in the United States is opposition to the death penalty in all circumstances, even for people who torture children to death after raping them.And how cozy, Sr. Prejean sharing the platform with the President of the Islamic Society of North America, a front organization for the Muslim Brotherhood, which seeks to impose Sharia law worldwide.
Wonder how Sr. Prejean would like a society where her Muslim prayer buddies have their way, and the death penalty is imposed for "murder, apostasy (watch that one, Sr. P.), rape, highway robbery, sabotage, and armed robbery, as well as drug trafficking."
Tuesday, August 26, 2008
Obama is trying to get the DOJ to shut down a political ad he doesn't like. I'm waiting, but not holding my breath, for all the libs who think the First Amendment protects any and all "speech" (even when it's not speech-- like virtual kiddie porn) to stand up and condemn this attack on the essence of the First Amendment protection-- political speech.
Monday, August 25, 2008
nothing but a stony silence, however, when she questioned the basis of the biblical crucifixion story as a "projection of our violent society."Nice. Hey, even folks who don't shy away from a party that believes infanticide is just fine might draw a line at doubting the crucifixion of Christ and comparing God to an ogre.
"Is this a God?" Prejeans asked about the belief that God allowed his son, Jesus, to be sacrificed for the sins of humanity. "Or is this an ogre?"
She went on to criticize the alleged use of torture by the US, and repeated her oft-stated view that capital punishment is itself a form of torture. That part of course, roused the crowd into standing ovations.
I'm still looking for her entire address. Stay tuned.
One of the missing inmates was identified as Edward Salas, who was sentenced to life in prison last month for the murder of a 10-year-old boy. Shots were fired through the child's bedroom window as he slept. Salas was being held at the jail awaiting transfer to state custody, authorities said.
Another escapee, Larry McClendon, was charged with murder and aggravated robbery in the January 2007 death of a store owner.
Sometimes, to protect the rest of us, we have to execute some offenders.
Thursday, August 21, 2008
Lopez: Whenever I write about Catholics and abortion, I am immediately asked, "What about war? What about the death penalty?” What about them? Can a Catholic vote for Senator “Surge”? We have killed people in Iraq, after all.
Archbishop Chaput [Archbishop of Denver]: I’ve written and spoken against the death penalty for more than 30 years. And along with most other American bishops, I opposed our intervention in Iraq. But these issues are different in kind, not merely degree, from the violence involved in abortion. Anyone rooted in Scripture and Catholic tradition will understand the distinction if he or she reasons honestly. Genocide, euthanasia, abortion, and deliberately targeting civilians in war — these things are always grievously wrong. But in Catholic thought, war and capital punishment can be morally legitimate under certain carefully defined circumstances. Abortion is never morally justified.
It we can't render offenders harmless through some means (and we can't, at least reliably), then the state may justly execute those who will constitute a threat to public safety.
Friday, August 15, 2008
one of the "Texas Seven," a group of inmates who escaped from a high security prison in Texas in 2000 and killed a police officer. He was convicted of taking part in the murder.Another example of why life incarceration does not render offenders harmless, and why capital punishment is needed in some cases.
Prior to his escape, he had faced life in prison for having ordered the killing of his wife.
I mentioned this case before, when Rodriguez decided to give up contesting his execution. As I stated then, if he had been executed for plotting his wife's murder, Officer Aubrey Hawkins (pictured at left) would not have been shot eleven times, leaving behind a wife and son.
Cases like this show why, no matter what the agitation level from abolitionists, the death penalty will always be a necessary option.
Friday, July 18, 2008
If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?I like it, and will henceforth add it to my stock questions. Mark doesn't like the fact that when a juror answers "no," they can be struck for cause. He thinks that the question is "a sneaky question, it’s unfair to the jurors, and it’s inelegant."
Inelegant? Oh my.
Methinks counsel doth protest too much. It sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law.
The burden of proof is simply: the state must prove each and every element of the offense beyond a reasonable doubt.
Note: the burden is not "beyond any doubt" or "beyond any possibility of mistake." Our system does not, and never has, required absolute certainty to convict. It wisely recognizes that absolute certainty is next to impossible, and therefore entrusts admittedly fallible human beings with looking at the evidence in a case and seeing if they have any reasonable doubt about the defendant's guilt. It's not a perfect system, but it's better (I maintain) than letting criminals go free because we can't have absolute, metaphysical certainty of guilt.
There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, "only upon testimony of more than one witness."
Now there is no doubt that such cases must be strictly scrutinized by prosecutors, and the first question must be, "why do I believe this victim/witness beyond a reasonable doubt?" If that question cannot be answered, the prosecutor would be well advised to find some other resolution of the case. There is also no doubt that a minimally competent defense attorney can make big points in a jury trial about convicting someone based on single-witness testimony.
Nonetheless, many, many cases would never see the light of day if single witness testimony was considered per se insufficient in law to support a conviction. In fact, probably most cases, at least the more routine ones, rely on the testimony of just one witness: a police officer.
But other cases often by their nature are single witness cases. For example, in Virginia, a state tied closely to the common law principles that stretch back hundreds of years, jurors are instructed in rape cases:
You may convict the defendant of rape or sodomy solely upon the testimony of the victim, if you find her testimony credible. There is no requirement of corroboration.Now a juror who is never going to believe a single witness, no matter how credible, no matter what the surrounding facts and circumstances, is simply not willing to be an impartial arbiter of the evidence in a case, and is adding requirements to the state's burden of proof that do not exist in law.
Why a lawyer would want a juror to act in such a lawless fashion escapes me... well, not really, of course, because defense attorneys hope that jurors have such hidden misconceptions about the law, and resent the fact that the state's attorneys are uncovering those misconceptions, and that the trial judges are, as they must, excluding such jurors from service.
Thursday, July 17, 2008
It seems the WC is upset that the U.S. has not adequately addressed Mexico's claim that Treaty provisions were not sufficiently honored when Texas tried the Mexican nationals now on her death row.
Option 1: They can convince the US federal government to re-invade Texas to keep them from executing these poor souls.
For anyone following these issues from over at Papa Shea's blog, you might find these postings of interest.
For my sins (and for knocking him silly on the issue of torture-- he's removed some of my comments), I have been excommunicated by Papa Shea, and banned from the Promised Land of his comboxes.
For which I am duly grateful.
"What, if anything, happened after the robber pointed a firearm at you?"
"What happened after the robber pointed a gun at you?"
will do just fine.
A minor example, but there are hundreds of such useless or technical terms that can be translated into standard English.
My own theory is that lawyers like the exclusivity that comes with having their own, gnostic-like lingo to the use and understanding of which only the initiates are admitted.
Of course, sometimes it can be just a generational communication gap, such as when an elderly judge I practice in front of admonished a defendant who kept violating his probation terms,
Friday, July 11, 2008
Virginia executed Kent Jermaine Jackson last night for the murder of "Beulah Mae Kaiser, 79, a widow who lived across the hall from Jackson and his roommate, Joseph M. Dorsett, 29. Dorsett also participated in the slaying and was sentenced to 135 years.
Kaiser's body was discovered in her apartment two days later. Her walking cane was shoved down her throat, a jugular vein was cut, and her skull was fractured. She had been kicked, suffered several other stab wounds, and had been sexually assaulted."
Nice guy. But what did he say for himself before justice was delivered? "You all can't kill me. I am the king. Remember me like you remember Jesus. I'll be back."
"Family and friends remember Kaiser as a gentle, kind woman who was extremely generous, even to strangers. Kaiser attended church regularly and volunteered at the Peninsula Rescue Mission."
Requiescant in pace.
Tuesday, July 08, 2008
Oh well, then of course! She must have an abortion, Steve, and the Catholic diocese of Richmond must help make it happen by transporting her to the abortuary and illegally signing the consent form for the procedure (only a parent can consent).
How awkward. How embarrassing. Especially when it turns out that it was not just a problem of the volunteers. No, the bishop himself, Francis Di Lorenzo, knew about the situation, but according to the diocesan lawyer, Bill Etherington, "DiLorenzo was given bad information about whether the abortion could be prevented, but didn't elaborate as to how. 'He was told it could not be stopped,' Mr. Etherington said. 'It was erroneous information. He didn't have to sign off on it. He was not personally involved.'"
Have we heard this cavalcade of excuses before, on another topic "awkward and embarrassing" for the bishops of this country? One also must give praise to Etherington for his lawerly use of the passive voice, "the bishop was told it could not be stopped." Really? And who would be giving the Bishop legal advice of that sort? Ahem.
Now reportedly there is an investigation taking place in the City of Richmond and also by the U.S. Department of Health and Human Services to determine whether either federal or Virginia state law has been broken.
I certainly hope that in addition to the illegal signing of the consent form, the investigation looks at whether some other laws have been broken, including but not limited to contributing to the delinquency of a minor, taking indecent liberties with a child under one's custodial care, and fornication. This child was under care of the CCC and someone either abused that trust or was negligent in allowing it to be abused.
Regardless of that "awkward and embarrassing" criminal investigation, would it not be appropriate for Bishop Di Lorenzo to resign, having allowed such criminal misfeasance to occur in his chancery and more importantly, for allowing an abortifacient contraceptive device to be implanted in a child, then sitting on his hands while the CCC helped her procure the murder of her unborn child?
Thursday, July 03, 2008
Wednesday, July 02, 2008
Friday, June 27, 2008
You can thank guys like this for your high insurance rates, and soon, a scarcity of physicians (at least in some specialties).
Thursday, June 26, 2008
Yarbrough "killed a store owner by sawing at his neck with a pocketknife during a 1997 robbery [and] became the 100th person executed in Virginia since capital punishment was reinstated three decades ago... The 30-year-old was put to death by injection for the 1997 slaying of 77-year-old Cyril Hugh Hamby."
infuriated victims’ rights advocates during a recent House debate when he said he would “rip apart” 6-year-old victims on the witness stand and “make sure the rest of their life is ruined.” In a fiery soliloquy on the House floor, Fagan said he’d grill victims so that, “when they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”Nice.
Wednesday, June 25, 2008
As I stated at the time of the oral argument:
Based on the quantitative score-card nature of the "reasoning" that the Court displayed in Roper v. Simmons (where they ruled that since some states had stopped executing juvenile offenders, "evolving standards of decency" forbade other states from executing juveniles), the Court should affirm Kennedy's conviction since no states used to authorize executing child rapists and now 7 states do-- a "trend" towards authorizing executing these offenders that the Court, to be consistent, should find to be as much an "evolving standard of decency" as they found the contrary trend to be with respect to permitting execution of juveniles.
Why do I get the feeling that somehow the Court's liberals and the abolition lobby will move the goalposts?
Sure enough, in today's opinion, the majority manages to conclude that despite the trend towards authorizing death for child rape, there really is no consensus, apparently because not enough states have yet enacted such statutes. Yet as the dissent points out, it's hard for a strong consensus to develop when the states know the SCOTUS is ready to nullify whatever they enact.
Of course, this squelching of any emergent consensus is necessary "because, in the end, what matters is the Court’s 'own judgment' regarding 'the acceptability of the death penalty.'"
And needless to say, the majority has all kinds of philosophical, policy reasons it doesn't like execution of child rapists... too hard on the victim, not proportionate for the offense, not a deterrent, blah, blah, blah. All very interesting, I'm sure, but of no legal or constitutional significance.
And a little more of our self-governance and liberty disappears.
Tuesday, June 24, 2008
Thursday, June 19, 2008
Even the Washington Post acknowledges that this accelerated process is related to Obama's presidential campaign, and the campaign's hope to place Virginia in play in the general election. The state Repubs are calling Kaine out on the issue:
I don' t know a lot of young Republicans who end up being felons," said Del. C. Todd Gilbert (R-Shenandoah). "Clearly the groups that are soliciting these felons to get their rights restored are predisposed to be in support of Obama, and I am sure this registration effort is designed to help their candidate.
What does it say of your candidacy and your party if you believe that the felon voting bloc is so solidly yours that it's worth spending time, money, and effort soliciting them to get their rights restored?
What's next for Kaine? A new campaign advocacy group: "Rapists, Murderers, and Drug Dealers for Obama?"
Wednesday, June 18, 2008
Bennett believes that this admission negates what he calls the second most common justification for the death penalty. Of course, it's the second most common in some particular polls of the public, hardly the place to look for theoretical justification for capital punishment.
While Ms. Siegler believes that execution provides no closure in her experience, it may be the case that the death of the offender helps begin the process of healing for some people; there is simply not enough non-anecdotal information to make a judgment. So not even Bennett's premise is beyond question.
In point of fact, however, "closure," which I take to be the notion that the execution of a murderer will help heal the psychological wound inflicted on the victim's loved ones, has nothing to do whatever with why the death penalty is an appropriate and moral penalty for certain offenses.
There are, in a nutshell, two main justifications for capital punishment, as I've argued before:
1) "Just Deserts": for some crimes, only the DP adequately addresses the moral equilibrium upset by the offender; that is, the only congruent satisfaction for the death of (especially) innocent victims is the death of the offender.
2) Deterrence: other families might also suffer such crimes if this offender is not executed (i.e., he might be paroled, pardoned, escape, or kill in prison), and some, if admittedly not all, other offenders will be deterred from such crimes.
The first is what appeals to most people when they hear about particularly heinous crimes: the belief that some crimes are so vicious that mere incarceration will not adequately address the offense to society. This central justification for capital punishment will never lose its force, so long as murderers continue to violate the arguably most important value of civil society, the sacredness of human life.
The second justification, deterrence, is a corrolary to the observation that society has a primal right to defend itself from those who would attack it, and a murderer who is executed will certainly be deterred from killing again (specific deterrence); and generally, murder is deterred at the margins by the existence of capital punishment (general deterrence), as the preponderance of studies now show.
Mark Bennett is celebrating over something of little importance, since whether the death penalty coincidentally gives "closure" to this or that victim has no bearing on the justification for capital punishment.
Tuesday, June 17, 2008
Japan has just executed three convicts, the most notorious of whom confessed to cannibalizing his four young female victims.
Meanwhile, closer to home, my own dear Commonwealth's governor, Tim Kaine, recently commuted the death sentence of Percy Walton to life imprisonment. The governor, who claims to be a Catholic while supporting vehemently pro-abortion politicians like Barack Obama and Mark Warner (democrat nominee for Virginia's Senate race), has not shied in the past from jettisoning his stated personal conviction that the death penalty is immoral and refusing other clemency petitions.
This time, however, Kaine quite cynically hid behind the alleged but never proven mental incompetence of Walton to understand the death sentence he was scheduled to undergo. While conceding that Walton was mentally competent at the time of his offenses and during his trial, Kaine claims, mirabile dictu, that new information provided to him shows that Walton is now unable to understand his scheduled execution. Kaine's pronouncement is replete with references to the unconstitutionality of executing those who cannot comprehend their sentence.
What Kaine glosses over, however, is that Walton's competency was extensively litigated, and that the en banc Fourth Circuit ruled that Walton was in fact competent to be executed.
As I related here, 15 separate judges considered and rejected the claims that Kaine swallows hook, line, and sinker. As I also predicted correctly at the time Kaine deferred the last execution date for
[this delay] will be spent desparately trying to produce "findings" that Walton is genuinely mentally deficient, which of course, will give Kaine the political cover he needs to grant clemency to a death row inmate and commute his sentence to life imprisonment.Now that the issue of Walton's competency is no longer subject to the acid test of litigation, Kaine disingenously pulled the plug on justice in the case and issued a mere ipse dixit justification based on the unproven assertions of the Clemency petition: Screw the Commonwealth, screw the Attorney General, screw the victims, the jury, the trial judge, and screw the crucible of litigation to test this "new information."
Does he have the right to commute? Certainly.
Do we have to accept his utterly phony and transparent justification? Certainly not.
Friday, June 06, 2008
I just got off the phone with a lawyer who wants to know if our "office policy" would allow for the granting of transactional immunity to a defendant in a divorce case, who pleaded the Fifth Amendment in response to this lawyer's questions about the defendant's alleged adultery. If we grant immunity, he has to answer, and proven adultery has alimony and child custody ramifications.
I had to inform him that unfortunately our "office policy" doesn't cover giving immunity to parties in a divorce action for their amorous misdeeds.
Who knows? When all the murders, robberies, assaults, and drug cases are disposed of, we might really want to go after all the violators of Virginia's adultery statute, the violation of which is a class 4 misdemeanor, punishable by a
The videos show scenes of women being made to drink urine and vomit and having objects, including fists and a medical instrument, inserted into their bodies.
The expected response? The founding fathers of our country intended for this crap to be protected by the First Amendment-- how dare the people of Florida attempt to eradicate this
And lawyers wonder why normal people hate them.
Thursday, June 05, 2008
Monday, June 02, 2008
One important factor: an active Sentencing Commission overseeing administration of the guidelines.
Full Report here.
Friday, May 30, 2008
"We have a time-held and time-tested tradition honoring those marital rights. I am taking the same approach that this state always has with respect to out-of-state or marriages conducted in foreign governments being recognized here in the state of New York. I am following the law as it has always existed.
Excuse me, but bullshit.
As even the Lambda Legal Defense Fund has acknowledged in pleadings, New York in fact does NOT recognize "marriages" which are repugnant to morality or natural law:
[the] abhorrence exception requires an overwhelming social consensus that a marriage is patently repugnant to the morality of the community. Id. The exception is so narrow that, throughout the lengthy history of the marriage recognition rule, only polygamous and closely incestuous marriages have been held to meet its stringent criterion. Van Voorhis, 86 N.Y. at 26 (exception applies in cases "of incest or polygamy coming within the prohibitions of natural law"); Earle v. Earle, 141 A.D. 611, 613 (1st Dep’t 1910) ("the lex loci contractus governs as to the validity of the marriage, unless the marriage be odious by common consent of nations, as where it is polygamous or incestuous by the laws of nature").In other words, NY will recognize proxy marriages, or common law marriages contracted elsewhere, even when NY herself does not allow such marriages. But when there are purported marriages that violate the fundamental concept of marriage (such as polygamy--trying to re-define marriage to include more than one man, one woman) or incest (trying to redefine marriage to include father-daughter, mother-son, or sister-brother couplings), NY has had nothing to do with such "marriages."
Homosexual "marriage" is of the same category: an attempt to re-define what marriage actually is, or put another way, the destruction of the commonly held notion of marriage that has perdured in the West for some 6,000+ years, and replace it with something else, all for the benefit of practioners of sexual abnormality that represent perhaps 1/10 of one percent of the population. That the idea of homosexual "marriage" is not in fact condoned ("odious" if you want to use the old-fashioned term) is shown by the people of New York's refusal to bestow the title "marriage" on such couplings, while being willing to allow homosexuals to enjoy certain civil benefits enjoyed by married citizens.
It reminds of Lincoln's aphorism: "How many legs does a dog have if you call the tail a leg? Four; calling a tail a leg doesn't make it a leg."
It's a nice try, but could it be these Dem leaders, like Paterson and Spitzer before him, advocate no-holds barred couplings because if there really are no limitations on how people couple, their own well-documented personal sexual immorality might seem less disgusting?
Tuesday, May 27, 2008
Think this guy is a continuing threat to society?
I once won a 40+ year robbery conviction in a cold-hit DNA case where a meticulous crime scene officer took swabs from the inside tip of a tiny bit of torn latex glove finger which had become lodged in a flex-cuff the defendant had used to restrain the victim.
HT: Crime and Consequences.
But read a little deeper (as you must when the left claims an "exoneration"), and you'll find that although a DNA test shows that the defendant, Blair, was not a contributor to evidence at the scene, and therefore legal doubt exists concerning his guilt beyond a reasonable doubt, there is no "exoneration:" As the District Attorney put it, "Although Mr. Blair has not been exonerated, I believe the evidence as it now stands meets the criteria for relief under the law."
Addendum: Add Capital Defense Weekly to the hot flash brigade, and Barry Scheck too, who said of this case, “Troubling questions about our criminal justice are raised any time DNA testing shows that someone on death row is innocent.”
OK, can we send these folks back to Crim Pro 101 or Basic Logic, or even Sixth Grade Grammar, or could it be that these really bright folks understand full well their mistatements?
At Grits for Breakfast, a humorous (I suppose) reference is made to the idea that death is disfavored because what lies beyond is mysterious and unknown, but that for Christians, death would actually be a welcome entry into eternal bliss (at least for a believer).
This put me in mind of one of the old arguments for the death penalty advanced by the great medieval theologian and philosopher, St. Thomas Aquinas:
The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.(Summa Contra Gentiles, III, 146). These observations reflect the position of St. Augustine in the sixth century, that “inflicting capital punishment…protects those who are undergoing capital punishment from the harm they may suffer … through increased sinning which might continue if their life went on.” (On the Lord’s Sermon, 1.20.63-64).
These viewpoints reflect a worldview opposite our own, one decidedly un-materialistic, one which values above all else the salvation of the soul as the final end of earthly life.
It's a sad reflection on modernity that the greatest possible evil is no longer the loss of our souls through sin, but the loss of our bodies, for "What is a man profited, if he shall gain the whole world, and lose his own soul?" Matthew 16:26.
Thus endeth the sermon.
Sunday, May 18, 2008
Friday, May 16, 2008
Uh, Justices: there's a slight difference: interracial couples sought the same right to marry enjoyed by same-race heterosexual couples; they did not seek to define marriage out of existence by altering the very meaning of the word, something Californians democratically thought to be a bad idea.
Only the most activist, unprincipled court could be arrogant enough to ignore the people and redefine what a word has meant for 4,000 years (at least), a job best left, as the dissent points out, to the people.
If I were advising the Mormon Fundamentalists, I'd tell them to take their polygamy gig and move it to California, since there is no rational basis there now to bar polygamy (or incestuous marriage, or any other consensual coupling that can be devised).
So much for the Catholic Church's assertion, adduced as a pragmatic reason for limiting the death penalty to only "rare" cases, that the system does just a fine job "rendering one who has committed an offense incapable of doing harm."
HT: A Public Defender.
Wednesday, May 14, 2008
Now this radical lawyer's lobby is urging that courts adopt their model jury instruction which would tell juries
In this case, the defendant, _______________ (insert name), is of a different race than ________________(insert name of identifying witness), the witness who has identified [him] [her]. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness’ original perception or the accuracy of a later identification. Youshould consider that in ordinary human experience, some people may have greater difficulty inaccurately identifying members of a different race than they doin identifying members of their own race.So in effect a jury is to be told that they can ignore "cross-racial" identifications based not on the facts of the case or the credibility of the witnesses actually testifying, but rather on their own unsupported assumption that cross-racial identification "may" be unreliable for "some people" (whether this witness is one of the "some people" is apparently irrelevant).
Ordinarily, out-of-court witness identifications are subject to the following factors in determining their reliability, and defense attorneys can use each of these factors to attack an identification:
(1) The witness' opportunity to view the person who committed the offense at the time of theoffense.Assume for a moment a robbery case where the witness focused solely on the defendant's face for three minutes in full light, gave a full and accurate description to the police before seeing the perpetrator again 5 minutes later when the defendant was caught by police, and the witness was 100% certain of his susequent identification which happened only minutes after the crime.
(2) The witness' degree of attention on the perpetrator when [he/she] observed the crime being committed.
(3) The accuracy of any description the witness gave prior to identifying the
(4) The degree of certainty expressed by the witness in making any identification.
(5) The length of time between the witness' observation of the offense and the first identification.
(6) Discrepancies or inconsistencies between identifications, if any.
Under this ABA model instruction, the jury would be invited to throw a very strong identification out the window and disregard it solely because it was a cross-racial identification.
Very convenient for the defense bar. No need to argue that one or more of the 6 traditional factors is so weak as to render the identification unreliable. No, just put this instruction out there, appeal to the uninformed bias of the jurors, and let them ignore the 6 factors, which after all are simply common-sense indicators of the reliability of an identification.
This insulting instruction is also unecessary. In Virginia, we instruct the jury thus:
You are the judges of the facts, the credibility of the witnesses and the weight of the evidence. You may consider the appearance and manner of the witnesses on the stand, their intelligence, their opportunity for knowing the truth and for having observed the things about which they testified, their interest in the outcome of the case, their bias, and, if any have been shown, their prior inconsistent statements, or whether they have knowingly testified untruthfully as to any material fact in the case.A good defense attorney explores the 6 identification factors listed above, then using this instruction, tells a jury that the witness did not have a sufficient opportunity to make a credible, reliable ID. The jury is told to use their "common sense," so if it's really the case (as asserted in the ABA instruction) that cross-racial identifications are unreliable as a matter of "ordinary human experience," the current instruction is sufficient, and the ABA's race-instruction is unecessary.
You may not arbitrarily disregard believable testimony of a witness. However, after you have considered all the evidence in the case, then you may accept or discard all or part of the testimony of a witness as you think proper.
You are entitled to use your common sense in judging any testimony. From these things and all the other circumstances of the case, you may determine which witnesses are more believable and weigh their testimony accordingly.
You might be forgiven for concluding that this is yet another tired attempt by the criminal defense lawyer's lobby to make it easier to gain acquittals for their clients.
Smith admitted to abducting and killing Running Rabbit, 20, and Mad Man, 23, after the two men picked up Smith as he hitchhiked along U.S. 2 near Marias Pass. Planning to steal the men's car, Smith marched his victims into the nearby bushes and shot them in the head with a sawed-off .22-calibre rifle.
Smith said later he wanted "to find out what it would be like to kill somebody."
What's up with Brian Schweitzer, a former Clinton official who won the Montana governorship by portraying himself as a good-old boy, gun toting regular guy; who claims to be Catholic but is pro-abortion? You'd figure that a good liberal would have more compassion for the famously downtrodden "native American" community. The "Native American" tribe to which the victims belonged specifically lobbied the governor to refuse clemency to Smith.
I guess secretly courting favor with the Canadian moral elites to the north means more to Schweitzer than the verdict of a Montana jury and the wishes of the victims' community.
Meanwhile, some Canadians are upset at their government's decision to "not actively pursue bringing back to Canada murderers who have been tried in a democratic country that supports the rule of law," a position that abolitionists find abhorrent, since apparently a fair trial in a democratic country should be subject to the veto of the mother country of the defendant.
(HT to Doug Berman)