"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

Friday, May 30, 2008


Not suprisingly, the new, liberal Democrat Governor of New York, David Paterson, is trying to shove homosexual marriage down the throats of New York's citizens, who have rebuffed efforts to allow it to be enacted into the state's positive law. Now NY will recognize homosexual "marriages" contracted in California. He stated, in part:

"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?

Just askin'.

Tuesday, May 27, 2008

DNA, Again

Lest anyone apprehend that we prosecutors fear DNA because sometimes, as with the last post below, it results in convictions being reversed, a cold-hit DNA result has lead to capital charges being filed in a brutal rape-murder case. The defendant in this case went on to attack three other women in separate cases.

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.

Another Phony Exoneration Claim

Defending People gets a little over-excited about a death row reversal brought on by an investigation, ahem, intiated by the District Attorney's Office, and claims it shows "Actual Innocence in Collin County."

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?

Life v. Death

OK, so enquiring defense blawgs want to know: "Which is worse: LWOP or the Death Penalty?" Or: would you rather face a (relatively) quick and (relatively) painless death or linger for years, perhaps decades, in a prison?

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

California Court to Mormon Fundies: Move Here!

California Supremes: being homosexual is just like being black, so just as the state can't constitutionally ban interracial marriage, it can't ban homosexual "marriage."

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).

Harmless Offenders

Another death row stabbing:

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

ABA: Lazy Lawyer's Lobby

The ABA has long lost all credibility as a "professional" organization for lawyers, having long ago embraced the most extreme and radical positions that have absolutely zero to do with encouraging professionalism amongst lawyers, from abortion rights to illegal alien amnesty to opposing Federal action to protect marriage from re-definition to outright abolition of the death penalty.

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.
(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.
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.

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.
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.
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 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.

Bitter SCOTUS Justice Betrays His Own Again

Harsh, hateful, villanous, conservative, anti-defendant Justice Clarence Thomas was the lone dissenter in this week's latest from the SCOTUS, Gonzalez v. United States. Justice Thomas alone believes that the defendant must personally, and not merely through counsel, agree to permit a U.S. Magistrate judge to conduct jury voir dire.

Montana Gov Shows Some Love to Canada

Nutty Montana governor tries to craft a backroom deal to release death row inmate Ronald Smith to his native Canada, upon their promise to incarcerate him for at least five years.

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.

Got it?

(HT to Doug Berman)

Monday, May 12, 2008

That Takes Care of That

Randall Lee Smith was paroled in 1996 after serving 14 years of a 30 year prison sentence for murdering Laura Ramsay and Robert Mountford Jr. in 1981 on the Appalachian Trail in Virginia. Ramsey and Mountford were hiking the Appalachian Trail to raise money for retarded and troubled youths. Ramsay, 27, was stabbed more than a dozen times and Mountford, also 27, was shot three times.

Recently Smith, 54, was charged with a number of felonies for shooting two men on the same stretch of the Appalachian Trail where he committed the murders:
[Smith was charged] in connection with the Tuesday night shootings of Sean Farmer of Tazewell and Scott Johnston of Bluefield, Va. The men were fishing and camping along Dismal Creek, just off the Appalachian Trail, when a visitor stopped by their campsite, police and Johnston's brother reported last week.
They fed the man a dinner of fresh trout and beans, after which he told them, "Guys, I got to get out of here" -- and pulled out a pistol and opened fire, Brian Johnston said. Both fishermen were wounded but escaped.

After leading police on a pursuit ending in a vehicle crash, Smith was arrested and awaiting trial in a local jail, where he died Saturday night of as-yet unknown causes.

"Upon hearing of Smith's death yesterday, Ginny Ramsay, mother of Laura Susan Ramsay, one of the hikers killed in 1981, said that she had only one thing to say: 'That takes care of that.'"

More evidence that the penal system does not render murderers incapable of doing harm, that at least one offender would have been deterred by use of the death penalty from destroying people's lives, and that there are far greater costs imposed on society by not executing such offenders than in executing them.

Just ask Sean Farmer and Scott Johnston.

Wednesday, May 07, 2008

Appealing Ethics

So you're a defendant who's been convicted and sentenced, and your case is on appeal. You change your mind about appealing, and demand that your attorneys withdraw the appeal.

The ethical rules are clear: "the client, after consultation with the lawyer, holds the ultimate decision making authority over lawful objectives of the representation."

What if you think your client is not competent to make such a decision? Again, you would follow the rules:
Appellate counsel should consider the client’s competence to make critical appellate decisions whenever counsel has a good faith doubt as to the client's competence to proceed. Counsel may move for an evaluation over the client's objection, and if necessary, counsel may make known to the court those facts that raise the good faith doubt of competence to proceed on appeal.
Why then, did the Beltway Sniper, John Allen Mohammed, have to write to the Virginia Attorney General's Office to inform them that despite his pleas to them, his appellate counsel have not followed his direction to withdraw his appeal? Any appeals filed, he asserts, have been done "against my will." Yet appeals have been filed, and his attorneys have not sought an appellate-level competency evaluation, which could supply the only possible grounds for them to ignore their client's wishes.

It couldn't be that his lawyers care more about their capital punishment activism than they do about their client's wishes, could it?

Hand Wringing Time

Apparently, we're to be concerned that executions are resuming after the manufactured "crisis" over whether lethal injection is constitutional; the NY Times gravely warns that "questions of fairness" still becloud the capital punishment landscape.

The object of all this hand wringing is the execution last night of a Georgia inmate, William Earl Lynd, convicted
for brutally shooting his girlfriend, Virginia 'Ginger' Moore, during an argument two days before Christmas 1988.... Leaving her in a shallow grave, Lynd drove to the Ohio-West Virginia area, a region where he had lived during his youth. There, he shot a school teacher during a bungled robbery on Christmas day. The teacher died of complications from her wounds.

No one disputes Lynd's factual guilt, but in the usual post-trial second guessing his appellate team came up with the complaint that defense counsel had failed to tell the jury about Lynd supposedly having been sexually molested by neighbors at age 8.

Well, then, that just explains everything. He had to blow his girlfriend's brains out and kill another person in cold blood to assuage his bad feelings at being molested more than 40 years before.

If you don't understand the compelling logic of this, you obviously need to go to law school.

Next up: final justice for one of the most vile murderers of recent memory, "undocumented worker" Jose Medellin.

Dressing for Success

Prosecutors can't get away with wearing jeans, while Public Defenders can sport "pink hair, dreadlocks or tattoos."

I need to introduce these guys to my old boss, a veteran prosecutor who sports an earing, in a small, conservative Virginia town, no less.

But fortunately flip-flops are out of the question for everybody. At least for now.

HT: Skelly.

Tuesday, May 06, 2008

Time to Criminalize Brady Violations?

Glenn Reynolds wonders if prosecutors who willfully withold exculpatory evidence should be prosecuted.

The question arises on the heels of several high-profile cases in Dallas where convicts have been released because of doubts about their guilt. The new Dallas D.A. is making headlines for cleaning up the mess left by his apparently less-than-ethical predecessor, by reviewing cases where it seems the prosecutors witheld exculpatory evidence, such as confessions by someone other than the charged defendant. Craig Watkins, the new DA, is said to be considering whether a statute should be enacted to criminalize such prosecutorial misconduct.

However, such a statute already exists, 18 USC section 242, which criminalizes depriving any individual of his constitutional rights under the color of law. This is the statute which was used to convict the officers in the Rodney King case after a state jury acquitted them.

As I've pointed out before, it is very difficult to show even an ethical violation in such cases. While the mere fact of evidence not being disclosed can support a finding of a Brady violation, much more is needed to prove an ethical violation: namely, that the prosecutor knowingly (not just negligently) witheld the information. It would be even more difficult to sustain a criminal charge in such a case, where the proof would have to demonstrate a knowing, intentional witholding of material information beyond a reasonable doubt.

Difficult as it already is to show an ethical violation, criminalizing Brady violations would appear to be a "solution" involving more an appearance of being "tough" than a substantive response to the problem.

Monday, May 05, 2008


I do not think that word means what you think it means.


From a "true believer":
...I was none too pleased when I learned earlier this year that another Northern Virginia bar association, to which I belong -- the Fairfax County Bar Association -- took it upon itself to have a big dinner earlier this year honoring the outgoing elected prosecutor Robert Horan, Jr. This was not in my name, and I plan to inquire how Mr. Horan was designated for the honor in the first place, and whether any dissent was registered before the event went forward.

I have nothing against Robert Horan as a person versus as a recent former elected prosecutor. However, I do not think that it was justified for the Fairfax County Bar Association to have honored him. For instance, under Mr. Horan's watch -- at least during the ten years that I have been dealing with prosecutors from his office -- his prosecutors generally stuck close to Virginia's unfairly restrictive discovery rules, and this seems to continue under the current chief Fairfax County prosecutor. Some Virginia county prosecutors' offices provide discovery beyond such restrictions; that not only helps reduce the unfairness of Virginia's criminal discovery rules, but also assists defendants in making an informed decision whether to settle a criminal case through a guilty plea.

In any event, the Fairfax Bar Association's honor of Robert Horan, Jr., was not in my name; nor, of course, was it in my clients' names.
Note, our valiant defender of the Constitution can offer nothing against Bob Horan other than that his assistants follow the rules of discovery laid out by the Virginia Supreme Court. Not surprising, given that Bob Horan has had a long and untarnished career as the elected prosecutor of the largest jurisdiction in Virginia.

I know I'm the enemy of freedom and all, but it seems pretty small-minded to begrudge the guy a farewell dinner.


NPR's fawning, playful, worshipful canonization of Albert Hofman, the "father" of LSD. Sounded to me like the folks at NPR were re-living their favorite moments of the late 1960's.

Like most banned drugs, there is no therapeutic value to LSD, and it exists solely as a vehicle to induce a reason-sapping "high."

What's next? NPR running a story about that wacky but loveable, and misunderstood Pablo Escobar?


not rhetoric, on the alleged racism of the criminal justice system.

Friday, May 02, 2008

Semper Fi... and R.I.P

Amazing. Where do we get such men?
A Marine sergeant who became a symbol of resilience as he strove to recover from a roadside bomb blast in Iraq that blanketed 97 percent of his body with burns has died, the Defense Department said. He was 22. Sgt. Merlin German died April 11 at Brooke Army Medical Center in San Antonio, where he was continuing treatment for the injuries he suffered in combat on Feb. 22, 2005, the Pentagon said Thursday.
The former turret gunner was dubbed the "Miracle Man" for his determination in facing his wounds, which cost the former saxophone player his fingers and rippled his face with scars. He endured more than 40 surgeries, spent 17 months in a hospital and had to learn to walk again.
Meanwhile, he started a charity, Merlin's Miracles, to aid child burn victims and considered college and a career.
Yet some would dishonor his life and death by surrending to the fanatics who he was fighting to protect us against.


Sheer beauty: vintage 1978 Springsteen:

Europe, the Church, and Capital Punishment

As I alluded to in the post below, Herr Fritzl will probably get a relative slap on the wrist because of lenient sentencing practices in Austria, which are consistent with those of Western Europe, according to this AP story (HT to Prof Berman):

Josef Fritzl left a lot of human wreckage in his wake: the daughter he imprisoned and raped for 24 years, the seven children he fathered with her and the wife whose life he shattered. Yet, for an atrocity that has stunned the world, he may wind up serving just 15 years in prison if charged, tried and convicted.
Practically speaking, that may translate into a life sentence for Fritzl, 73. But his case has revived a debate over Europe's lenient penal system — and whether harsher, U.S.-style sentencing guidelines might help deter such heinous crimes.
"Fifteen years for destroying human lives is unacceptable," said Harald Vilimsky, a public safety policy official with Austria's conservative Freedom Party. "Any punishment that falls a single day short of a life sentence is a mockery of the victims."
Many Europeans abhor the death penalty, and capital punishment is illegal across the 27-nation EU. But in many countries, even convicted murderers handed life sentences seldom serve more than 25 years.
Sweden has life imprisonment for murder, but the sentencing guidelines go as low as 10 years. That applies — in theory at least — even to serial killers.
In Germany, convicted rapists are punished with sentences of six months to five years. Serial cases, and those involving weapons or death threats, can fetch up to 10 years in prison — but also as little as 12 months.
Poland's maximum for rape is 15 years, and that would apply even for sexual assaults repeatedly carried out over two dozen years as alleged in the Austrian case. The standard time served? Two to 12 years.
"It's rare that anyone serves the full sentence in Europe," said James Whitman, a professor of comparative and foreign law at Yale. "It's expected that people are let out early."

Now in light of these observations, I am left scratching my head in wonderment at the new-found squeamishness of my Church to support the death penalty.

You may know that the Roman Catholic Church "officially" allows that the death penalty is permissible in extremely limited circumstances which in practice Church spokesmen never will admit exist. The whole new "rarely, if ever" teaching states that the death penalty is legitimate in principle, but if
non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means.

And what are these non lethal means? The next paragraph explains:

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm -- without definitively taking away from him the possibility of redeeming himself -- the cases in which the execution of the offender is an abolute necessity "are very rare, if not practically non-existent."
Now in light of the facts recited in this AP article, and elsewhere, it is plain that according to the Church's own updated, new and improved "rarely if ever" posture, the Church should be all for capital punishment, especially in Europe, where there really is no life without parole, and where in fact murderers are routinely paroled in Italy after 10 years!

At least in the U.S., we make pretense of imposing life sentences without parole in many if not most murder cases-- and even that does not "render one who has committed an offense incapable of doing harm"-- but in Europe, where even serial murders are not punished by true life imprisonment, the state does not render offenders harmless at all.

However, I won't hold my breath for the Church to sanction the death penalty, since after all, this whole issue is not about doctrine or moral teaching (the Church cannot alter these, which is why, much as they want to suggest or imply it, they can't come out and declare the DP intrinsically evil); the current "teaching" is nothing more than an attempt to "baptize" the dominant social and political bias of European Churchmen against capital punishment.

"Our family is threatened to be destroyed by something that happened to her as a 19-year-old teenager 34 years ago in Michigan"

No sir, your family is threatened because your wife escaped prison 34 years ago while serving time for dealing heroin, (netting about $2,000 per week in 1972), stole a dead person's social security number, set up a new life in California, and lied to you about who she really is, until an anonymous tipster dimed her out.

HT to Ken, who wonders, "who turned her in?"