"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, March 27, 2008

Spitzer's New Job?

Parental Discretion advised...

Court Rejects Mumia's Batson Claim

The Third Circuit Court of Appeals upholds Wesley Cook's, aka, Mumia Abu Jamal's conviction, but remands for resentencing because of an ambiguity in one of the sentencing phase jury instructions.

The Court decisively rejected the defense's central claim that blacks were improperly excluded from the trial jury, which had two black members who voted to convict and to sentence Mumia to death.

I hope Pennsylvania pursues an appeal to the en banc Third Circuit and to the SCOTUS if necessary on the sentencing instruction issue(the PA Supreme Court found it unambiguous); failing that, they should vigorously pursue on remand a death sentence for this malicious cop killer. Hopefully they will not knuckle under to the on-going high pressure campaign from the usual academy and Hollywood leftists.

More background on this appeal and the case here.

UPDATE: Full opinion here.

UPDATE II: On reading the opinion, the Batson issue was a real stretch for Mumia on several counts: First, Batson itself was not decided until four years after the trial of this case, and although the SCOTUS ruled that Batson would retroactively apply to cases not ended when it was decided, the applicablility of Batson to those cases seems unfair when neither party could utilize their peremptories with Batson's new requirements in mind. Second, since Batson was not in force when the trial took place, there could be no contemporaneous objection by the defense (or by the prosecutor) which would have allowed for a remedy to be applied at trial (e.g., disallowing the challenged strike and seating the juror). Third, since the burden of persuasion rests on the party challenging the strike, it is their burden to present an appellate record of sufficient detail to assess the challenge. Thus, if the race of each juror answering voir dire questions was not adequately identified on the record, the challenger of the strike is hard pressed to exclude the possibility that an unidentified juror's answers to voir dire questions was in fact the challenged juror, and those answers, not the juror's race, supports the challenged strike.

The importance of a complete record for those challenging a strike is demonstrated by this passage from the 3d Circuit opinion, citing:
four missing pieces of evidence often used when evaluating whether a defendant had established a prima facie case [of discrimination under Batson]: (1) the racial composition of those jurors dismissed by the defendant; (2) the total number of jurors in the venire; (3) the racial composition of the entire venire; and (4) the number and race of those dismissed for cause...the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson.
Again, the practice tip: perfect the record if want to make a successful Batson challenge.

Monday, March 24, 2008

Kilpatrick Charged With Perjury

Kwame Kilpatrick, the Mayor of Detroit, whom I've written about before, is now charged with perjury for lying during the trial of a police officers' whistleblower lawsuit, wherein the officers, who won the suit, 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 flat out called the cops who had protected him liars for alleging that Kilpatrick had used them to help him cover his adulterous affair. He denied the affair, but alas, emails and text messages pretty clearly show otherwise, in contradiction of his sworn testimony.

Thursday, March 20, 2008


Paul Scofield. Particularly great in A Man for All Seasons, Henry V, and Hamlet. Examples:

Death By a Thousand Cuts for Peremptory Challenges

I've mentioned before, in commenting on Miller-el v. Dretke, that the SCOTUS is killing the whole concept of meaningful peremptory challenges, a process begun in Batson and which continues in yesterday's case from on high, Snyder v. Louisiana, a capital murder case.

For those fortunate enough not to be lawyers, "peremptory challenges" are where each side at trial gets to strike a certain set number of prospective jurors, not because they are unqualified, but for whatever reason the lawyer thinks the juror may not be favorable to his or her side. For "whatever reason," that is, until the case of Batson v. Kentucky, which 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 by use of a peremptory challenge solely based on 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.

In yesterday's case, the defendant, Snyder, and his wife Mary had separated:
they discussed the possibility of reconciliation, and Mary agreed to meet with [Snyder] the next day. That night, Mary went on a date with Howard Wilson. During the evening, [Snyder] repeatedly attempted to page Mary, but she did not respond. At approximately 1:30 a.m. on August 16, Wilson drove up to the home of Mary’s mother to drop Mary off. [Snyder] was waiting at the scene armed with a knife. He opened the driver’s side door of Wilson’s car and repeatedly stabbed the occupants, killing Wilson and wounding Mary.
The prosecutor struck all five black jurors who remained on the panel after the "for cause" strikes had been made. The sole strike the SCOTUS focused on was of a juror who was a student teacher, and whom the prosecutor struck because he appeared to be nervous, and who during questioning said he was worried about missing class. Unfortunately, the record shows that the juror's dean was contacted and said it would not be a problem for the juror to miss a week of student-teaching, and other jurors with similar situations were not struck.

Therefore, the SCOTUS reasoned, the strike was "suspicious." To reach this conclusion, the majority had to substitute its own credibility determination for that of the trial court, which ruled that the contested strikes were race-neutral. Previously, the SCOTUS has ruled that determination of the credibility of the proferred race-neutral reasons resides with the trial judge who can observe the lawyer's demeanor and the surrounding facts and circumstances better than an appellate judge looking at a cold record. Check out Justice Thomas' dissent, which as usual, cuts to the heart of the case, which is the majority ignoring its own precedent by taking the credibility determination out of the hands of the trial court.

Trial lessons for prosecutors (and defense attorneys, since they are bound by Batson also):
1)Protect the record by having the judge adopt your observations about the juror's nervousness, arm-crossing hostility, obnoxious t-shirt, or whatever. At the least, try to get the judge to spell out that he or she is ruling that your reasons are neutral and that he finds them to be credible.
2) If you want to strike a juror for reason 'x,' make sure that you are striking other reason 'x' jurors, or at least make sure you have additional reasons to exercize the strike you want, so you can justify not striking all the reason 'x' jurors.

On the other side, if you're challenging a strike, make sure you have a tight record, because as a case I recently tried and which was upheld on appeal demonstrates, the burden of persuasion for Batson challenges rests on the challenging party, so if the record is not clear enough for the appellate court to assess a challenge, you lose.

If you live in Louisiana, congratulations, you'll be paying to have Snyder re-tried, not because he is not guilty, not because his trial was unfair (ruling a particular juror was improperly excluded does not impugn the fairness of the jury that actually heard the case), but because one juror strike may have been improper.

Monday, March 17, 2008

March 17

Drink Murphy's ..........................................

And Enjoy some Clancy Brothers.

Justice for the 9/11 Killers

Professor Stephen Bainbridge has a good summary of the issues surrounding executing the WTC masterminds on trial at Gitmo. His piece responds to the suggestion of the U.S. Attorney General Michael Mukasey that he personally hopes the plotters are not executed.

Bainbridge considers his position in light of his Catholic beliefs, and concludes that since the plotters are incapacitated now at Gitmo, there is no need to execute them according to John Paul II's teaching in Evangelium Vitae.

Interestingly, however, he concludes by noting "I confess that it’s a close case. The blood of thousands calls out for retributive justice." And he quotes in this respect another blogger: "The visceral reaction is to say that these men should die a slow, painful death. But I’ve got to wonder what that’s going to accomplish at this point."

Yet he shies away from this question of why it seems to be just to execute these killers. Why? John Paul II himself admitted

The primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offence'. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime....
In other words the Pope recognized that for some 6,000 years, the traditional justification for capital punishment rested not primarily with the observation that its use will protect society, but rather that it is sometimes necessary to execute a murderer in order to restore the moral equilibrium upset by his offense; in other words, it is right for society to expect that there be a congruent satisfaction for the offense.

It is this just satisfaction for the offense that answers the natural reaction to the crime of murder in those whose sensibilities have not been blunted to this worst of crimes.

With respect to the 9/11 killers, the enormity of their offense has "overriden" the modern dissipation of this visceral hatred most people used to experience concerning murder.

There will always be cases so horrible, or in which there are so many victims, that the attempts to squelch our innate hatred of murder will be overriden, and it will be appear that the only just response from society is to exact the ultimate penalty from someone who, in a certain sense arrogating to himself a power belonging to God alone, dared to take another human person's life.

Friday, March 14, 2008


William Morva, whom I've pointed to before as a poster child for the need for the option of the death penalty, was sentenced Thursday to die for killing a hospital security guard in order to escape from the hospital where he was being treated awaiting attempted robbery charges. The next day, he shot a deputy in the back of the head while the deputy was searching a patch of woods for Morva. Morva "smiled slightly and snapped his fingers as the verdicts were read. He nodded to jurors and patted his attorney after he learned his fate. 'He seemed to be acting like he won the lottery,' Harold McFarland, father of one of the victims, said."

Morva based his defense in part on the claim that the jail was not being accomodating enough to his irritable bowel syndrome.

Yes, you read it right. You see, his IBS got so bad he thought he would die, and if that were to happen, he wrote in a letter to his mother, "'I'll kick an unarmed guard in the neck.' The letter went on to say that Morva would stomp that guard until he died."

This evil stain on the human race killed a heroic sheriff's deputy and a devoted husband and father to small children (see here and at my other posting about this case for details on these victims).

He will kill no more.
Derrick McFarland, RIP & Family
Cpl. Sutphin, RIP

Are Former Prosecutors Better Defenders?

I don't have a lot of interest in the whole Spitzer thing: what, a sanctimonious northeastern liberal democrat zealot who has no personal sense of honor or morality? I'm shocked, shocked.

But some folks think he made a smart move to hire former prosecutors to defend him in the criminal probe.

I wonder if that's really such a clever move. I know many former prosecutors (by which I mean someone who did prosecution for more than just a year or two), now in defense work, and in many ways it's easier for me to say, "now you know I can't offer you x or y, and you wouldn't have when you were in my position." I certainly don't feel any need for the sake of old times or whatever to offer more than I would to some other attorney.

Moreover, being a good prosecutor doesn't always seem to translate into being a good defense attorney, or at least into becoming a great defense attorney. Sometimes, ironically, the former prosecutors are pretty obnoxious and are the least likely to get good outcomes for their clients.

Most of the persuasive, pre-trial negotiators I know have never prosecuted. And if I ever needed a crim defense attorney, former prosecutors would not even be in the top 5 of my list.

I Know These People

Funny cartoon courtesy of Lammers.

Wednesday, March 12, 2008

Back to School

Not surprisingly, the Catholic left is having fits over the President's veto of the Surrendercrats attempt to restrict our Intel folks from using anything beyond the Army Field Manual tactics for interrogation of the enemy.

The complaint from these people is odd: they appear to advocate imposition of the Army Field Manual techniques on all our Intel operatives. But oddly, they appear ignorant that the Field Manual itself allows for many techniques that the Fifth Columnists would dissaprove of, such as sensory stressors and inducing fear in the captured enemy (i.e., anything beyond the "golden rule" standard: we can do nothing to the enemy that we would not want done to one of our captured military).

Nevertheless, the lack of logic is what astounds: the Left assumes that if the Intel community is not bound to the Army regs, it follows that torture in all forms is being authorized. But as a strict matter of logic, to refuse to bind the Intel people to the Army regs is not to authorize the Intel community to engage in prohibited acts of torture.

This error assumes that the Army Manual regs encompass the entire universe of non-torture interrogation techniques, and therefore any non-Army Manual regs interrogation methods are ipso facto torture. But that implicit conflation of all permissible methods with the Army Manual methods is unproven.

But BDS (Bush Derangement Syndrome) quickly crowds out logic and reason, especially when the topic is interrogation of terrorists.

Tuesday, March 11, 2008


Thinking of some of the prosecutors I know, this could be a very scary prospect.

While I currently pack a S&W 10mm, I would really like one of these

Friday, March 07, 2008

We're from the Government...

Ken Lammers has some ideas on how a prosecutor might respond to a common defense tactic, described here, of referring throughout the trial to the "government," with the view that jurors view it as a disparaging or negative term. A local famous blowhard defense attorney in our area thinks this is a wonderfully clever tactic.

Ken hits on a solution, namely, pointing out in closing argument that the "government" in a democracy is, in effect, the people. So, "yes, ladies and gentlemen, I represent the government, Officer Friendly works for the government... and you and I and defense counsel in our country ARE the government, of the people, for the people, by the people, as another famous government official once said."

Or words to that effect.

One trick I like to do is to start off in voir dire by placing myself on the juror's side: "ladies and gentlemen, as Judge Hangemhigh told you, my name is Tom McKenna, and I represent the people of this county in criminal cases..." and so on.

Ultimately, however, I think neither the "government" tag nor my or anyone else's parry to that thrust really amounts to a hill of beans. If my case is gonna go down because the jury can't bear to hear that the "government" investigated and prosecuted it, then it's probably a pretty lame case to begin with.

Wednesday, March 05, 2008

Southern Appeal Part II

Feddie at Southern Appeal is back in the saddle again, like Stonewall Jackson returning from the grave.

Tuesday, March 04, 2008

Small Laws

Chesterton once said, apropos of modern society and its decaying adherence to shared Judeo-Christian norms:

"When you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws."

Which leads us to Professor Berman, at SL&P, who says that "as a believer in America's" founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars. I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues." Berman and others have been complaining about the recent statistic purporting to show that we now lock up 1% or so of our adult population. Berman decries the usual attempted demarcation of this issue, as all others, into "liberal" and "conservative" schools.

Perhaps some of the answer to the "shame" of “over incarceration” lies in the observation that when society no longer as a whole abides by shared norms, i.e., for us in the Western world, the moral code of Judeo-Christianity, chaos ensues, as an offender experiences little if any social, familial, or moral opprobrium attached to “minor” crimes such as theft or intoxication by drugs or alcohol. As these smaller social ills are no longer controlled by shared values that create social, familial, and religious pressure not to engage in them, the law must step in to fill the void created by the absence of these controls. And viola, instead of these ills being addressed in the family, community, and church (mainly through pressure to conform to the norms of these societies and by enforcing these pressures in the media, the schools, and other important outlets of culture), the state as a kind of uber parens patriae, intervenes so that society does not simply crumble under the weight of these ills.

The state now being involved, the easiest apparent solution to deterring and punishing these “small” law violations becomes at least some amount of incarceration. The state is not a subtle enough instrument of social correction and control to address easily the problems lawlessness causes. It knows generally only the harshest remedies, including incarceration.

In sum, when the gentler means of social control (family, community, church) fail because of lack of agreed social and religious norms, the harsher means of state control must needs assert themselves, for the survival of orderly society.

Many of our academic discussions bewail these harsher means, but not wanting to admit of their cause, fail to offer solutions that will be successful. Some seem to measure success by increasing the social cost and chaos by simply not punishing the offenses, while offering no real substitute for the traditional institutions that otherwise kept these offenses in check.

I offer no solution to this problem, short of a restoration of the power of the traditional institutions of social control... but I am not delusional enough to imagine that the revolution which has been waged precisely to destroy or marginalize the power of these socially restraining institutions will be met with a counter revolution to restore them.