Wednesday, April 30, 2008
The monster will serve some time in jail, but since he's in his 70's, he will likely serve less than 10 years before dying peacefully in his cell, if he's not released on geriatric parole or the Austrian equivalent. Time perhaps to reconsider the option of executing such offenders?
Friday, April 25, 2008
In a detailed account at the trial of [Detective]Isnora and Detectives Marc Cooper and Michael Oliver, [police officer Michael] Carey said the cops fired in self-defense after Bell gunned the engine of his Nissan Altima and tried to run Isnora down. "The engines were still revving as if the foot was on the gas pedal," the officer said. Carey said Isnora fired at Bell's buddy, Joseph Guzman, who was sitting in the front seat. He said Guzman had to have known that Isnora was a cop.
Carey, 27, fired three times, but was not indicted. He acknowledged he did not pull his police badge out from under his T-shirt or identify himself as a cop before he shot. "At that point, the shooting had already started," said Carey, who was part of an undercover unit doing a prostitution sting at the Queens club where Bell, 23, just had his bachelor party.
"I had observed the people in the vehicle disregard police commands, assault the police officer," he said. "I didn't feel that any verbal commands would do any good at that point."
The case was decided by a judge, because the defendants waived a jury, a decision Al Sharpton criticized. One wonders whether Sharpton's criticism suggests that he believes and perhaps hopes a jury would ignore the evidence and convict based simply on emotion or the fact that the defendants are police officers. The judge who heard the case has convicted police officers before and sent them to jail.
The prosecution had a tough row to hoe, since police can use deadly force if they have a "reasonable" belief that their lives or those of civilians are in immediate danger, even if that belief is mistaken. Proving beyond a reasonable doubt that the officers were reckless and not merely mistaken is a big hurdle; one that was too high in this particular case.
Of course, no matter what the prosecution does, without a conviction some will imply a conspiracy to throw the case because, after all, prosecutors never question what the police do. Yet the fact that the case was vigorously tried and the evidence put on before a judge not known for simply giving a free pass to the police indicates that again, the system worked.
A reasonable, but mistaken, shooting by the police is a tragedy, not a crime.
Tuesday, April 22, 2008
This is the question Cynthia Sommer posed when prosecutors in San Diego declined to re-prosecute her for the murder of her Marine husband.
A jury convicted her after hearing that her healthy husband had 1,000 times the normal amount of arsenic in his body. They also heard all about problems with the chain of custody of the decendent's tissue samples and how the results were highly unusual, causing even the government's witness to doubt their reliability; and yet they convicted her anyway.
In addition to the physical evidence of arsenic poisoning, Cynthia's own flagrant and disgusting behavior assuredly help convince the jury of her guilt: Cynthia had gone on a binge of breast implants, promiscuous sex (sordid details here), and partying in the months after her husband's death, while her four children were who knows where.
Now, after Sommers' conviction was reversed because her first attorney was ruled to be incompetent, it appears that new tissue sample tests show no arsenic at all, leading the prosecution to have to drop attempts at a retrial. Sommers' new lawyer accused the San Diego DA of "gross negligence."
What would have been grossly negligent would have been for the DA to ignore the original arsenic finding, especially given Sommers' less-than-grief-stricken behavior.
They can sleep at night, Cynthia, because they did their job with the information and facts as they existed. They're also doing their job now by declining further attempts at prosecution. If you feel misused, instead of taking it out on prosecutors who have a duty to act on facts that after all, were enough to convince a jury beyond a reasonable doubt, how about looking to your own conduct and what impact it had in your conviction?
The job of a prosecutor is not to act as infallible demi-god and guarantee that no hint of doubt exists in a case; it is only to bring charges he or she reasonably believes are supported by probable cause and which he reasonably believes can be substantiated by admissible evidence at trial.
Here, in the end, the system worked; a new trial was ordered, a new test was done, and lacking sufficient evidence, the prosecution declined to pursue charges.
Far from showing negligence, the case is another example that "the system" works.
Friday, April 18, 2008
Thursday, April 17, 2008
Wednesday, April 16, 2008
Chief Justice Roberts wrote the majority opinion, but there were several concurrences. Only Souter and Ginsburg dissented. Roberts' opinion concludes that there is no evidence that Kentucky's regime of administering lethal injection unreasonably risks an inmate being accidentally conscious during administering of the lethal drugs.
Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggested—such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel—cannot remotely be characterized as “objectively intolerable.” Kentucky’s decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the EighthEven Justice Stevens, in a long concurrence laying out his policy reasons for opposing the death penalty and arguing that the death penalty is violative of the Eighth Amendment, had to admit that the SCOTUS has ruled that capital punishment is constitutional, and has established a framework for evaluating which methods are "cruel and unusual;" and under that framework, lethal injection is not unconstitutional.
Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.
Scalia, of course, is his usual incisive self, and, agreeing with my prescient analysis in this posting, skewers Stevens' gestalt reasoning. Scalia has no brook for a jurisprudence that has judges routinely negating democratically decided policies: "the people have determined whether there is adequate contribution to social or public purposes [by having a death penalty], and it is no business of unelected judges to set that judgment aside."
In a stunning slapdown of Stevens, Scalia notes that Stevens asserts:
“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. (emphasis added). Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.”.... The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is JUSTICE STEVENS’ experience that reigns over all.Ouch.
Justice Thomas, the only true, unadulterated originalist on the Court (yes, not even Nino is wholly pure) has a fascinating concurrence outlining the original understanding of the Eighth Amendment, concluding that the framers meant to outlaw only those punishments which were "torturous;" that is, designed to inflict pain beyond that necessary to effectuate death. Armed with this understanding, supported by precedent wherein the Court has three times rebuffed efforts to have them rule that a particular execution method is cruel and unusual, Thomas is able to conclude that lethal injection, a method clearly not designed to inflict gratuitous pain (on the contrary, adopted to great acclaim as a way to make executions less painful), easily survives an Eighth Amendment challenge.
Thomas cuts to the real issue in this trenchant observation:
It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.Justice Thomas then laments that the present decision will simply ensure more of this micro-managing-of-execution litigation by abolitionists.
A good win for the Commonwealth of Kentucky, for the victims of the murderers whose excecutions have been stayed, and for anyone who values democracy and the rule of law, not the rule of lawyers.
One loser is Virginia Governor Tim Kaine, who only a short time ago used the pendency of this case as political cover to impose a moratorium on executions in Virginia. Gov, you'll have to find some other excuse to thwart the course of justice in these cases.
The case is Kennedy v. Louisiana, and unlike the claim of the National People's Radio summary I heard on the radio this morning, the facts clearly show that this monster Kennedy raped his stepdaughter, causing "a laceration to the left wall of her vagina [which] separated her cervix from the back of her vagina, causing her rectum to protrude into her vagina. Additionally, L.H.’s perineum was torn all the way from the posterior fourchette, where the vagina normally ends, to the anus."
Nice. L.H. was eight years old when Kennedy raped her.
Kennedy gave several inconsistent stories about two young men supposedly committing the rape, and was found washing blood and other biological evidence off his victim when EMS arrived. L.H. also gave the police the story about two men raping her, a story which was conclusively debunked by questioning by medical personnel during the victim's hospital treatment, and from the beginning of the case, she confided to family members that Kennedy, not two strangers, had raped her.
Most damning to Kennedy was evidence that he made calls following the crime to try to learn how to remove blood stains from carpeting (he had told police the attack took place outside the house), and in one call to his boss, said he couldn't come to work that day because his step-daughter “had just become a young lady.”
One call Kennedy made was to order a rush carpet cleaning to remove bloodstains-- a call made the morning of the rape, but two hours before Kennedy called 911 to report the rape! Luminol tests also showed that large amounts of blood had been cleaned up from the carpet at the foot of the victim's bed, again showing that an attempt had been made to destroy evidence of the crime.
At trial, the now 14-year old victim identified Kennedy as the rapist, and testified that he fed her the story she initially gave the police about two strangers being the rapists.
The jury convicted Kennedy based on this evidence, and after hearing at the sentencing phase that Kennedy had raped another 8 or 9 year old relative of his former wife, concluded that death was the appropriate sentence.
COMES NOW the SCOTUS, with an opportunity to clarify (or hopefully overturn) Coker v. Georgia, a 1977 decision that nullified the democratic decision of dozens of states that allowed for the death penalty for rape of an adult victim. More details about Coker here, in my prior posting about Kennedy's case.
Today, the issue is whether the citizens of Louisiana can elect to allow for the death penalty for child rapists like Kennedy, or whether the SCOTUS, using the bizzare and new-found rationale for discerning an Eighth Amendment violation, will hold that "evolving standards of decency" preclude application of the death penalty to child rapists.
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?
The perils for the Court in this case reside in the vague and subjective standard embodied in the current fad of gestalt jurisprudence in Eighth Amendment cases. Instead of the former mode of deciding cases by discerning whether the challenged statute violates a provision of the Constitution as clearly understood by its text and the original understanding of its scope, its purpose, and its intent, the Court is now a sort of uber-Ms. Manners, discerning whether "society" is moving one way or another on a given penal issue.
Fashioning a constitutional rule on the shifting sands of the movements of public opinion is a recipe for continual litigation, constant uncertainty, and erosion of the democratic ideal in the states. And let's be honest for a moment-- Isn't it the case that this new "jurisprudence" is mere window-dressing for the Justices to impose their personal value judgments under the guise of constitutional principles?
But the lawyers at the ACLU and the NACDL, and their murdering, child-raping clients sure love it.
Tuesday, April 15, 2008
It is to be expected that defense attorneys get tagged for complaints more than prosecutors, since defense attorneys have lots of unsatisfied customers: the convicted client, the convicted client's family, the appellate court that gets the untimely appeal-- lots of opportunities for mistakes to be noticed and then to turn into bar complaints. Prosecutors, on the other hand, don't have a built-in constituency of unhappy clients with lots of time on their hands to contemplate how many mistakes they made in handling the client's case.
One item in A Public Defender's posting needs correction: he asks:
In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly [sic] false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?Now, the question is very broad, since suborning perjury is a clear cut ethics violation and a crime to boot (I assume PD means "knowingly offering false testimony...").
...Yes, there is an ethical violation and yes, there is a duty to
But the mere fact of a Brady violation does not establish an ethics violation: Brady can be violated even where there is no actual knowledge on the prosecutor's part that undisclosed exculpatory evidence exists in a case-- for example, when the police do not tell the prosecutor about the evidence.
To constitute an ethical violation, according Virginia's Rules of Professional Conduct, the prosecutor's failure to disclose exculpatory evidence must be knowing and intentional:
RULE 3.8 Additional Responsibilities Of A ProsecutorThe Bar commentary to this rule clarifies that only a willing and intentional witholding of known exculpatory evidence subjects the prosecutor to discipline:
A lawyer engaged in a prosecutorial function shall:
...(d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court.
Paragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations (paragraph (d)), for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence or situations (paragraph(e)) where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case.
In short, a Brady violation may also constitute unethical conduct, but is not per se evidence of such conduct.
Friday, April 11, 2008
A couple fighting about which gang their 4-year-old toddler should join caused a public disturbance that resulted in the father's arrest, Commerce City police said Thursday.
"[The defendant's] girlfriend told police that they had been arguing about the upbringing of their son and which gang he should belong to. The teen mother, who is black, is a member of the Crips. Manzanares is Hispanic and belongs to the Westside Ballers gang, the woman said."
I'll never be out of work in this business.
He offers a jury selection tip for the defense: "beware potential jurors who wear lanyards to jury service. They’ll go after your client like zombies on crack."
Heck, I wish I could convince my local defense bar to strike all those lanyard-wearing school teachers, social workers, and engineers that I don't generally like to seat on my juries.
Thursday, April 10, 2008
Scenario: Jack goes quail hunting before school, pulls into school parking lot with shotgun in gun rack.
1967 - Vice principal comes over, looks at Jack's shotgun, goes to his car and gets his own shotgun to show Jack.
2007 - School goes into lockdown, the FBI is called, Jack is hauled off to jail and never sees his truck or gun again. Counselors are called in to assist traumatized students and teachers.
Scenario: Johnny and Mark get into a fistfight after school.
1967 - Crowd gathers. Mark wins. Johnny and Mark shake hands and end up buddies.
2007 - Police are called, SWAT team arrives and arrests Johnny and Mark. They are charged with assault and both are expelled even though Johnny started it.
Scenario: Jeffrey won't sit still in class, disrupts other students.
1967 - Jeffrey is sent to the principal's office and given a good paddling. Returns to class, sits still and does not disrupt class again.
2007 - Jeffrey is given huge doses of Ritalin. Becomes a zombie. Tested for ADD. School gets extra state funding because Jeffrey has a disability.
Scenario: Billy breaks a window in his neighbor's car and his Dad gives him a whipping with his belt.
1967 - Billy is more careful next time, grows up normal, goes to college, and becomes a successful businessman.
2007 - Billy's dad is arrested for child abuse. Billy is removed to foster care and joins a gang. State psychologist tells Billy's sister that she remembers being abused herself and their dad goes to prison. Billy's mom has an affair with the psychologist.
Scenario: Mark gets a headache and takes some Aspirin to school.
1967 - Mark shares Aspirin with the school principal out on the smoking dock.
2007 - Police are called and Mark is expelled from School for drug violations. His car is searched for drugs and weapons.
Scenario: Pedro fails high-school English.
1967 - Pedro goes to summer school, passes English, goes to college.
2007 - Pedro's cause is taken up by local human rights group. Newspaper articles appear nationally explaining that making English a requirement for graduation is racist. US Civil Liberties Association files class action lawsuit against state school system and Pedro's English teacher. English is banned from core curriculum. Pedro is given his diploma anyway but ends up mowing lawns for a living because he cannot speak English.
Scenario: Johnny takes apart leftover Independence Day firecrackers, puts them in a model airplane paint bottle and blows up an anthill.
1967 - Ants die.
2007 - Homeland Security and the FBI are called and Johnny is charged with domestic terrorism. Teams investigate parents, siblings are removed from the home, computers are confiscated, and Johnny's dad goes on a terror watch list and is never allowed to fly again.
Scenario: Johnny falls during recess and scrapes his knee. His teacher, Mary, finds him crying, and gives him a hug to comfort him. 1967 - Johnny soon feels better and goes back to playing. 2007 - Mary is accused of being a sexual predator and loses her job. She faces three years in federal prison. Johnny undergoes five years of therapy.
Friday, April 04, 2008
Those are easy cases. It's a little more murky, however, when a lawyer is producing reasons why the jury should believe one witness and not another. In a recent case from the 5th Circuit, U.S. v. Gracia, the prosecutor made the following arguments in his closing statement:
First, the prosecutor expressed his opinion to the jury that the agents were “very, very credible” witnesses (“Statement One”). Second, the prosecutor asked the jurors rhetorically whether they thought that an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury” (“Statement Two”). Third, the prosecutor told the jury: “I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered” (“Statement Three”). Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents “got out of bed” on the day they arrested Gracia and decided that this was “the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia” (“Statement Four”).So as Ann over at Deliberations (a good-looking blog I've added to my blogroll) asks, can you pass the quiz and decide which of these 4 arguments, if any, are improper?
The 5th Circuit panel thought all four were not only improper, but egregious enough to merit reversal of the conviction. The judges opine that the problem is what they call "witness bolstering."
Here's my own view:
I thought #1 was improper, since no lawyer can give opinions as to witness credibility; but 2,3, and 4 are routine appeals to the jury as to why they should find the witnesses credible. It is not the prosecutor giving personal opinion or telling the jurors something not in evidence... presumably the agents were identified and their involvement in law enforcement was plain from their testimony.
So for the prosecutor to say, "there is no compelling reason for these witnesses to fabricate testimony, because they 1) have nothing to gain; 2) they worked hard on the case and therefore are credible based on the quality of that work; and 3) face harsh penalties including loss of job and imprisonment for perjury,"-- is not improper vouching, it is simply commonplace argument about witness credibility, and may or may not be particularly compelling, but is hardly improper.
The defense, of course, can counter each one of these arguments by arguing reasons why the agents might want to lie, and can itself argue why the defense witnesses are more credible, including any observations as to why a defense witness has nothing to gain by their testimony.
This stuff is routine, and I'm surprised the Circuit had a problem with it. Even if #1 and #3 were improper, it's hard to see how that can rise to reversible error. What's even more amazing is that the panel reversed on a ground that was not even objected to at trial! In other words, the panel is rewarding the bad lawering by the defense attorney by not holding them to the usual requirement that objections be made at trial so that the trial court has the opportunity to fix any alleged error.HT: Capital Defense Weekly.
Wednesday, April 02, 2008
Statement by the campaign of Tim Kaine for Governor: “He will enforce the death penalty in exactly the same way as have the eight previous governors–four Democrat and four Republican.”
Action by Governor Tim Kaine, April 1, 2008 (Unfortunately not an April Fool’s joke) . ...Governor Kaine imposes a moratorium on the Death Penalty in Virginia.
Statement of Attorney General Bob McDonnell on Governor’s Reprieve of Bell Execution
-Governor to Stop All Scheduled Executions Pending Decision in Baze v. Rees- Richmond- Today, Governor Tim Kaine announced a reprieve to Edward Bell, a convicted capital murderer scheduled for execution on April 8th. In addition, the Governor announced a moratorium on all executions in the Commonwealth until a decision is reached by the United States Supreme Court in the case of Baze v. Rees, involving the constitutionality of lethal injection as administered in Kentucky. In response to today’s decision by the Governor, Attorney General Bob McDonnell issued the following statement: “While I recognize the clear authority of the governor to grant reprieves to death-row inmates, and understand the rationale for his decision today in Bell’s case, that decision is premature due to Bell’s pending request for a stay in the United States Supreme Court. The question of whether a stay should be granted is first and foremost a legal decision to be made by a court. The Governor
appropriately waited for the United States Supreme Court to rule on a request for a stay last October in Christopher Emmett’s case and I see no legal reason why Bell’s case should be treated differently.” “Further, I respectfully disagree with the governor’s decision to impose a blanket moratorium on all executions in Virginia. This moratorium will pre-empt the United States Supreme Court’s ability to decide whether other Virginia capital murderers present sufficient legal grounds to stay an execution. Additionally, other death-row inmates affected by the Governor’s actions have yet to select a method of execution as Virginia law provides, and only lethal injection cases are at issue in the Baze case. Finally, without knowing the date on which the United States Supreme Court will rule in Baze, a moratorium may unnecessarily delay justice in other Virginia cases.”
“It is for these reasons that I disagree with today’s actions by the Governor.”
I've pointed out before that Tim Kaine is quite the unprincipled pol on this issue: personally despising the death penalty for religious reasons, yet willing to be party to executions, at least until now, when he sees some viable political cover for imposing a moratorium despite his campaign promises.
I guess if you think capital punishment is immoral but you'll violate your deepest held principles to carry it out anyway, you're not the kind of man to honor something as simple as a campaign promise.