"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

Tuesday, February 26, 2008

Democracy and the Death Penalty

Crime and Consequences on an internet poll in the UK:
"Should Britain bring back the death penalty?" The result:
"And a staggering 99 per cent of the 95,000 readers who responded to our You The
Jury poll said the Government SHOULD reintroduce it."

While noting the limitations of internet polls, it's hard to ignore the overwhelming results here. The results confirm the suspicion expressed by me here and also by Nino the Sage that abolition of the DP is not a democratic phenomenon.

Hillary for the Defense

From Prof. Berman's blawg, a Hillary story illustrating 1) Her "it takes a village" hypocrisy; and 2) why I'm glad I don't do defense work:
In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas — using her child development background to help the defendant....
In her 2003 autobiography "Living History," Clinton writes that she initially balked at the assignment, but eventually secured a lenient plea deal for Taylor after a New York-based forensics expert she hired "cast doubt on the evidentiary value of semen and blood samples collected by the sheriff's office."...
"She was vigorously advocating for her client. What she did was appropriate," said
Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law. "He was lucky to have her as a lawyer ... In terms of what's good for the little girl? It would have been hell on the victim. But that wasn't Hillary's problem."...
Rodham, records show, questioned the sixth grader's honesty and claimed she had made false accusations in the past. She implied that the girl often fantasized and sought out "older men" like Taylor....

The rest of the story of Clinton's brief foray into defense work here, with the usual disclaimers that working hard to destroy a young girl's reputation without any evidence to back it up is just "part of the job" for a good defense attorney.

Indeed, if the young victim were lying, one wonders why Hillary agreed to plead her client to "unlawful fondling of a minor under the age of 14, which carried a five-year sentence."

And yes, I understand that even a child rapist is entitled to present a defense, but there are other ways to present a defense than by trying to destroy a complaining witness, especially where exoneration is not the goal, but conviction on a lesser charge, as in Hillary's case. All-out destruction of the "opponent" is not often, if ever, required for effective representation. I've seen truly competent attorneys who manage to retain their moral integrity while carrying out their legal duty to their clients.

Friday, February 22, 2008

They Say it All

HT to Crime and Consequences for catching this story via the Guardian:
Relatives of two of the five women murdered by [U.K. serial killer] Steve Wright today urged the government to bring back the death penalty following his conviction.
Statements read out on behalf of the family of Tania Nicol and Paula Clennell — Wright's first and last victims — called for the killer to face the same fate as his victims.
"Today as this case has come to an end, we would like to say justice has been done but we are afraid that whilst five young lives have been cruelly ended, the person responsible will be kept warm, nourished and protected. In no way has justice been done," said the Nicol family.
Describing Wright as a "monster", they added: "These crimes deserve the ultimate punishment and that can only mean one thing."
"The public must insist the government ensure the return of the death penalty for these kinds of things or many other families will go through the kind of suffering we have endured."
Clennell's mother, Isabella, said Wright's "lies and excuses" made her feel sick.
"Who knows, she [my daughter] may have been off the drugs and leading a normal life. At least she would have had that choice. Steve Wright took that choice away from her and the other four girls.
"I wish we still had the death penalty because this is what he deserves. He has murdered five girls but at the same time ruined a lot more lives."
Annette Nicholls' family expressed relief that Wright was no longer capable of terrorising young women.
"At last we can rest in peace that this man is no longer on the streets of Ipswich ready to take another girl's life."
But they added: "No punishment this person receives will ever be enough for us. This man has robbed a little boy of a mother he adored, the parents of a loving and much loved daughter and siblings of a loving sister."

These victims' families hit almost instinctively on a couple of reasons the DP is necessary and just in a well-ordered society:

1) Just Desserts: 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.

There will always be some crimes that cry out for the ultimate punishment. As long as there are, there will be strong support for capital punishment, yes, even in England, where, as Nino the Sage mentioned, public support, as in most of Europe, has been favorable towards capital punishment.

Wednesday, February 20, 2008

The Cost of Frivolity

As noted in some of my prior postings, one of the latest pitches of the DP abolitionist movement is to complain about the presumably exorbitant costs of litigating these cases.

Yet whence do these extra costs arise?

Could part of the answer be multiple filings that have no merit, like this THIRD state Post-Conviction Relief Act motion filed on behalf of convicted cop-killer Black Panther member Wesley Cook, aka, Mumia Abu-Jamal?

The Supreme Court of Pennsylvania, the Commonwealth's attorneys, and other staff had to spend many hours of work to conclude that this filing had no merit; and in fact, that it was trying to supplant an earlier, also meritless, second PCRA filing. In cases where the state is picking up the defense lawyer's bill, tack on those costs also to these kinds of frivolous filings.

Cut down on the frivolous motions and reduce much of the cost of these cases, especially one like this, where guilt was decisively established and appeal after appeal has found no error.

If indeed there is grossly more money being spent on DP cases, the scatter-shot, multiple, and usually frivolous filings by the condemned are often the source. Yet in many if not most death cases, there is little to no doubt about guilt, and the ordinary mechanisms of appellate review and one habeas review ought to resolve any lingering issues of trial error.

So if too much money is being spent, the abolitionists themselves can solve the problem, coupled with more Court oversight to curtail such dilatory and frivolous pleadings.

Don't hold your breath.

Trial Practice Tips

If you're going to flip off a witness,



make sure you preserve for the record what gestures are being made and which are being referred to by the questioner and the witness.

Like the part best where the witness finds an excuse to flip off the lawyer.

HT: Prof. Cassell at Volokh.

Thursday, February 14, 2008

Stupid Criminals

When you're going to be sentenced for robbery and felony eluding the police, it's probably better not to volunteer to the probation officer preparing the pre-sentence report, the following:

Social/Religious Activities Narrative:


Subject reports no religious preference or church membership. In his spare time he likes to do rap music and make CDs, smoke a little "weed," and visit with his son.

Hopefully he doesn't engage in the last two activities at the same time.

Wednesday, February 13, 2008

The Sage



You can count on an old-schooler like Justice Scalia to cut to the heart of an issue. In an interview with the BBC recently, Nino discussed using physical coercion in interrogation of certain kinds of suspects.


He began by clarifying the obvious (or what should be obvious)-- that the Eighth Amendment does not bar the use of coercive interrogation methods:

Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" also applied to "so-called" torture.

"To begin with the Constitution ... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.

Scalia seemed to indicate that coercion would be appropriate in proportion to the necessity of finding the information sought and so long as the force itself was proportionate (i.e., no hacking off limbs to find out where an enemy leader is located):

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked.
"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"

Although speaking in constitutional law terms, the principles Scalia touches on seem to be also in the solid mainstream of the moral teachings of his Catholic upbringing.
Scalia also had some thoughts to share about European sanctimony concerning American use of the death penalty:

"If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today," he said.
"There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous," he said.
More on the morality of coercion here and in the links found in that posting.

Tuesday, February 12, 2008

Pro Se defendants

Ken Lammers posts on dealing with the pro-se defendant as a prosecutor. We all have such stories. My best example was a guy who among the dozens of other arguments (like demanding to know whether we would be prosecuting him under "continental, maritime, ecclesiastical, or civil" law) insisted that he could not be convicted because the charging documents did not properly recite his true name of Edward., Rourke. Since the officer improperly omitted the period and the comma between his names, he argued, the Court could not convict him.



Alrighty then.

Monday, February 11, 2008

Costs, Continued.

Professor Berman over at Sentencing Law and Policy, in a posting about a state DP case in Wyoming, wonders
about the opportunity costs of the modern administration of the death penalty. There are literally millions of law-abiding Americans who could and would benefit greatly from just a few hours of a lawyer's time. And yet, while lots of law-abiding poor people have to make due with help from a lawyer, murderer James Harlow received the benefit of " year's worth of one lawyer's time" principally because the state of Wyoming decided it wanted to execute Harlow for his crime.
The opportunity costs, of course, extend far beyond the time of defense lawyers. How many crimes will go unprosecuted or under-prosecuted in Natrona County while state prosecutors invest resources in trying to add Donald Rolle to Wyoming's death row? How many civil lawsuits in the state will have to wait while state judges consider the "more than 100" motions that could be filed in the Rolle case? How many other state employees will get consumed (and perhaps even emotionally scarred) by the "long, difficult process" that just about every capital case creates?
Couple of thoughts occur: one, I have not noted a shortage of lawyers or wanna be lawyers:
1,084,504 lawyers. And our nation's 188 accredited and often subsidized law schools are graduating 40,000 new lawyers each year as they have consistently for the last 20 years. In a decade we will have 1,500,000 lawyers. A 50% increase.
This is one country where just about anyone who wants a lawyer can get one; indeed, we are choking with lawyers.

Second, if the elected prosecutor of Natrona County, Wyoming, wants to expend the time and effort to seek the DP for an appropriate case, why should a law school professor, or anyone outside of the electorate of that jurisdiction, have any say about that choice? Certainly it is unfair to guess that the elected official will now neglect his other duties. Having tried a capital case, I can assure Prof. Berman that it is possible and not particularly burdensome to prosecute a capital case while other prosecutors handle the other cases that are the bread and butter of a prosecutor's office. Any murder case, capital or not, will take the special time, care, and attention of a prosecutor or a team of prosecutors for the duration of the case.

Lastly, as to the numerous motions that will supposedly clog the court's docket-- yes, it is true that capital defenders must now snow under the courts with these motions ("CYA motions" as the saying goes, to cover them in the inevitable habeas), the overwhelming majority of which are form motions cranked out by capital defense seminars, and most of which are disposed of quickly in a few hours' motions hearing.

It is true that such cases take more time and deserve more care than the average case. But that the justice system is crippled by a capital litigation is an overstatement of the abolitionist movement.

Friday, February 08, 2008

The Cost of Justice

It's gratifying to see that the Prohibitionists have developed a new-found concern over the use of tax-dollars. They worry that

The capital murder prosecution of Michael Addison in New Hampshire will cost the state at least $978,000 in its first stage. Attorney General Kelly A. Ayotte estimates that there are about eight lawyers working on Addison’s case from her office. The state has been allocated $420,000 for the four new staff members along with other office costs, to prosecute Addison. The $420,000 does not include the costs of salaried state prosecutors who are helping to prepare the case and litigating pre-trial issues. The New Hampshire Public Defender Office, which represents Addison, is expected to have spent about $530,000 by the end of its fiscal year in June.
In brief, Addison is a convicted burglar and armed robber who gunned down a Manchester police officer who was investigating a domestic violence complaint. After "allegedly" killing the officer, Addison fled the state and led police on a lengthy manhunt, ultimately being arrested in Massachussetts. The victim, officer Michael Briggs (whose name apparently doesn't merit a mention over at at Capital Defense Weekly or at the DPIC site, the source of the CDW entry), was a former Marine and had, ironically, rendered first aid to Addison in an earlier, unrelated shooting incident. He leaves behind a wife and two sons.



Of course, even if it costs a million dollars to execute a cop-killer, the people of New Hampshire might consider it money well-spent.

But the DPIC and the abolition folks are, unsurprisingly, not telling the whole story. First, they don't tell us how much of these sums would be spent in any event prosecuting this crime. Even if the DP were off the table, this would be a high-profile case where the state would be pursuing a life sentence (LWOP). This is not a garden variety manslaughter case.

Second, even if the costs of this prosecution approach $2 million (an extremely high estimation), the ultimate costs of a LWOP sentence could easily approach that $2 million figure. Incarceration routinely cost $25-30,ooo/year. Maximum security costs are higher than that.

Bureau of Justice Statistics studies indicate that on average, a convicted felon serves about 24 years in prison. The BJS acknowledges that in cases of LWOP, this would be an underestimate. If we assume for illustration purposes, then, that an average 25 year-old LWOP inmate serves 40 years in prison, the incarceration costs are:

$30,000/year x 40 years = $1,200,000.


A very conservative estimate, since max security costs can reach upwards of $75,000/year per inmate. Add to this 1.2 million cost the extra litigation costs associated with a LWOP case, and you begin to approach the $2 million mark.

Moreover, New Hampshire is in a singular situation of being a very small state having to expend money on a one-time basis to handle one case. In most states, there is no need to hire new lawyers to handle DP cases.

I've always scratched my head when I hear abolitionist argue against the DP because it supposedly "costs too much." Would they be happier if appeals were truncated; rules of evidence were not stretched in capital cases as they are so that sentencing hearings become veritable re-creations of the defendant's entire life story? If expert testimony funding was restricted like it is most other cases? All these things make a capital case more expensive to prosecute. If the abolitionists care so much about the "burden on the taxpayer," will they advocate for streamlining DP cases?

No? Thought not.

Of course the prohibitionists care not about spending money; heck, certain of them have, vulture-like, literally made a living off of the DP. I suspect they very much like the lots of money being spent on these cases, which has provided a comfortable living for them. No, what they're interested in is trying to convince people that spending money on the DP is the only kind of state spending (besides perhaps defense spending) that is out of control and needs to be stopped. It takes little imagination to forsee that when the DP is abolished as being too expensive, these same people will still be with us, telling us that LWOP is too expensive, too cruel and unusual, and the rest of it.

In any event, the response is simple: if the DP is "too expensive," make DP cases less expensive by more carefully controlling the kinds of trial level and appellate shennanigans that constitute the bulk of the cost. One example of a cost-effective improvement in my own state of Virginia is the creation of regional public Capital Defenders who specialize in capital litigation and aid the primary defense counsel at much less cost than appointing expensive out of town litigators. Other savings can be found.

Regardless, however, of the cost, there will always be certain crimes that society judges are worth spending the modest extra money in order to see that justice is done.

The murder of Officer Briggs is, for the people of New Hampshire, exhibit #1.

Tuesday, February 05, 2008

The Great Question

Thoughts for Super Tuesday:

the federal courts have a great deal to do with how prosecutions are conducted in state courts. Judge Henry Friendly warned us over four decades ago that the Bill of Rights was being transformed into a detailed code of criminal procedure. Judicially created rules that are not really in the Constitution and often have nothing to do with the reliability of the verdict -- and in some cases actually obstruct the search for truth -- operate to defeat the cause of justice every day in American courtrooms. Will the next President appoint judges who will take us further down that path or judges who will realize we have already gone too far? [...]

Collin Levy wrote on Thursday in the WSJ that "conservative court watchers are questioning whether [McCain] could be trusted to fill seats on the Supreme Court." To relieve these fears, Sen. McCain should go beyond naming examples and make clear his position on the Great Question of constitutional law:

In the context of judicial review of statutes, what is the nature of the Constitution? Is it a contract between the people and their government, to be enforced according to its terms as understood by the contracting parties at the time? Or is it a portal for wise, wonderful, black-robed platonic guardians to plug in to a Jungian cosmic consciousness, decide what is truly best for the great unwashed, and ram it down their throats whether they agree or not?
More at Crime and Consequences.

Huh?

Not sure what whacked-out Islamics seeking to execute adulterers has to do with the DP in America... but I suppose guilt by association is OK with liberals so long as you're trying to advance a policy they favor, like prohibition of the DP.

How the gods punish Hubris




Ken Lammers, my former adversary, explains a little about the ethics of prosecutorial decision-making, now that he's gone over to the right side.

Friday, February 01, 2008

Mayor's Plan to Destroy Police Officers Backfires

Kwame Kilpatrick, the race-baiting Mayor of Detroit, has worked hard to paint two whistle-blowing police officers assigned to protect him as money-grubbing liars. The officers revealed that the mayor's police protection detail had been helping the mayor carry on adulterous affairs, while some officers in the unit allegedly engaged in overtime abuse, accident cover-ups and drinking on the job.

Kilpatrick's response to the officer's claims was to call them "lies." "These individuals want money," said Kilpatrick. "They will say anything to get money."

Nevertheless, a jury found in favor of the officers and awarded a $9 million judgment against the Mayor and Detroit.

Lo and behold, now surfaces a series of incriminating text messages that seem to show convincingly that Kilpatrick lied under oath at the officer's trial when he claimed never to have engaged in an illicit affair with his aide.

In a probable attempt to influence the course of a possible perjury prosecution, Kilpatrick amazingly called the Wayne County prosecutor, a political opponent of his, to tell her he would remain neutral in the upcoming DA's election contest. To her credit, the DA has promised a thorough, detached investigation which will not be driven by media hype over the case.

Kilpatrick should resign, Spiro Agnew-style, in the hopes that it will earn him some credit when the perjury charge comes.