"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, June 27, 2008

Big PI Lawyer will Bother Big Business No More

Crusading plaintiff's attorney, having made a mint off suing "big" tobacco, "big" pharm, and "big" insurance gets five years for trying to bribe a judge to get another load of cash from an insurance company in post-Katrina litigation.

You can thank guys like this for your high insurance rates, and soon, a scarcity of physicians (at least in some specialties).

Thursday, June 26, 2008


That's the milestone reached in Virginia by last night's execution of Robert Yarbrough. His was the 100th execution in Virginia since the resumtion of the death penalty in Virginia in 1982.

Yarbrough "killed a store owner by sawing at his neck with a pocketknife during a 1997 robbery [and] became the 100th person executed in Virginia since capital punishment was reinstated three decades ago... The 30-year-old was put to death by injection for the 1997 slaying of 77-year-old Cyril Hugh Hamby."

Why Folks Find it Easy to Hate Lawyers

In light of yesterday's child-rapist-friendly decision from the SCOTUS, this story is unusually timely: Massachucetts is considering a bill to enhance penalties for child molestation. In the course of debating the bill a legislator, James Fagan, a defense attorney by trade
infuriated victims’ rights advocates during a recent House debate when he said he would “rip apart” 6-year-old victims on the witness stand and “make sure the rest of their life is ruined.” In a fiery soliloquy on the House floor, Fagan said he’d grill victims so that, “when they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

Wednesday, June 25, 2008

Moving the Goalposts

It has come to pass, as I predicted here, that the SCOTUS would suddenly find that gee, a consensus towards execution of child rapists would not be evidence of "evolving community standards" such that the practice could escape being labelled cruel and unusual, and hence violative of the Eighth Amendment.

As I stated at the time of the oral argument:

Based on the quantitative score-card nature of the "reasoning" that the Court displayed in Roper v. Simmons (where they ruled that since some states had stopped executing juvenile offenders, "evolving standards of decency" forbade other states from executing juveniles), the Court should affirm Kennedy's conviction since no states used to authorize executing child rapists and now 7 states do-- a "trend" towards authorizing executing these offenders that the Court, to be consistent, should find to be as much an "evolving standard of decency" as they found the contrary trend to be with respect to permitting execution of juveniles.

Why do I get the feeling that somehow the Court's liberals and the abolition lobby will move the goalposts?

Sure enough, in today's opinion, the majority manages to conclude that despite the trend towards authorizing death for child rape, there really is no consensus, apparently because not enough states have yet enacted such statutes. Yet as the dissent points out, it's hard for a strong consensus to develop when the states know the SCOTUS is ready to nullify whatever they enact.

Of course, this squelching of any emergent consensus is necessary "because, in the end, what matters is the Court’s 'own judgment' regarding 'the acceptability of the death penalty.'"

And needless to say, the majority has all kinds of philosophical, policy reasons it doesn't like execution of child rapists... too hard on the victim, not proportionate for the offense, not a deterrent, blah, blah, blah. All very interesting, I'm sure, but of no legal or constitutional significance.

And a little more of our self-governance and liberty disappears.

Tuesday, June 24, 2008

Thursday, June 19, 2008

Tim Kaine Gathering Up the Felon Vote for Obama

Governor Tim Kaine of Virginia, when not commuting death sentences, has stayed busy fast-tracking applications from felons to have their voting rights restored. In Virginia, the only way a felon can vote is to petition the governor for restoration of that right.

Even the Washington Post acknowledges that this accelerated process is related to Obama's presidential campaign, and the campaign's hope to place Virginia in play in the general election. The state Repubs are calling Kaine out on the issue:
I don' t know a lot of young Republicans who end up being felons," said Del. C. Todd Gilbert (R-Shenandoah). "Clearly the groups that are soliciting these felons to get their rights restored are predisposed to be in support of Obama, and I am sure this registration effort is designed to help their candidate.

What does it say of your candidacy and your party if you believe that the felon voting bloc is so solidly yours that it's worth spending time, money, and effort soliciting them to get their rights restored?

What's next for Kaine? A new campaign advocacy group: "Rapists, Murderers, and Drug Dealers for Obama?"

Wednesday, June 18, 2008

Marines, 7, Murtha, 0

Anyone remember Rep. John Murtha smearing our Marines in Iraq, accusing them of murder for an incident in Haditha?

Eight Marines were charged with various counts, including murder, for an incident following an IED explosion which killed a fellow Marine. Some Iraqi non-combatants were killed while Marines pursued enemies who the Marines claimed were attempting an ambush.

Lt. Col. Jeffrey Chessani, accused of failing adequately to investigate the incident, had the charges against him dismissed yesterday.

Of the eight Marines charged, only one now faces charges. The others' charges have been dismissed or they have been found not guilty after a trial.

Media coverage of the sensational claims of Murtha was extensive; that they have proven to be baseless has not garnered much coverage.

I'm shocked, shocked.

Is "Closure" Vital for Capital Punishment?

Mark Bennett over at Defending People has praise for Texas prosecutor Kelly Siegler, who writes that the concept of "closure" for murder victims' families is nonexistent, in that the execution of an offender does not heal the pain of the families' loss.

Bennett believes that this admission negates what he calls the second most common justification for the death penalty. Of course, it's the second most common in some particular polls of the public, hardly the place to look for theoretical justification for capital punishment.

While Ms. Siegler believes that execution provides no closure in her experience, it may be the case that the death of the offender helps begin the process of healing for some people; there is simply not enough non-anecdotal information to make a judgment. So not even Bennett's premise is beyond question.

In point of fact, however, "closure," which I take to be the notion that the execution of a murderer will help heal the psychological wound inflicted on the victim's loved ones, has nothing to do whatever with why the death penalty is an appropriate and moral penalty for certain offenses.

There are, in a nutshell, two main justifications for capital punishment, as I've argued before:
1) "Just Deserts": for some crimes, only the DP adequately addresses the moral equilibrium upset by the offender; that is, the only congruent satisfaction for the death of (especially) innocent victims is the death of the offender.
2) Deterrence: other families might also suffer such crimes if this offender is not executed (i.e., he might be paroled, pardoned, escape, or kill in prison), and some, if admittedly not all, other offenders will be deterred from such crimes.

The first is what appeals to most people when they hear about particularly heinous crimes: the belief that some crimes are so vicious that mere incarceration will not adequately address the offense to society. This central justification for capital punishment will never lose its force, so long as murderers continue to violate the arguably most important value of civil society, the sacredness of human life.

The second justification, deterrence, is a corrolary to the observation that society has a primal right to defend itself from those who would attack it, and a murderer who is executed will certainly be deterred from killing again (specific deterrence); and generally, murder is deterred at the margins by the existence of capital punishment (general deterrence), as the preponderance of studies now show.

Mark Bennett is celebrating over something of little importance, since whether the death penalty coincidentally gives "closure" to this or that victim has no bearing on the justification for capital punishment.

Tuesday, June 17, 2008

Justice abroad, injustice at home

Despite the insinuations of some abolitionists, the United States is not the only Western industrialized nation to permit capital punishment.

Japan has just executed three convicts, the most notorious of whom confessed to cannibalizing his four young female victims.

Meanwhile, closer to home, my own dear Commonwealth's governor, Tim Kaine, recently commuted the death sentence of Percy Walton to life imprisonment. The governor, who claims to be a Catholic while supporting vehemently pro-abortion politicians like Barack Obama and Mark Warner (democrat nominee for Virginia's Senate race), has not shied in the past from jettisoning his stated personal conviction that the death penalty is immoral and refusing other clemency petitions.

This time, however, Kaine quite cynically hid behind the alleged but never proven mental incompetence of Walton to understand the death sentence he was scheduled to undergo. While conceding that Walton was mentally competent at the time of his offenses and during his trial, Kaine claims, mirabile dictu, that new information provided to him shows that Walton is now unable to understand his scheduled execution. Kaine's pronouncement is replete with references to the unconstitutionality of executing those who cannot comprehend their sentence.

What Kaine glosses over, however, is that Walton's competency was extensively litigated, and that the en banc Fourth Circuit ruled that Walton was in fact competent to be executed.

As I related here, 15 separate judges considered and rejected the claims that Kaine swallows hook, line, and sinker. As I also predicted correctly at the time Kaine deferred the last execution date for this malingerer Walton,
[this delay] will be spent desparately trying to produce "findings" that Walton is genuinely mentally deficient, which of course, will give Kaine the political cover he needs to grant clemency to a death row inmate and commute his sentence to life imprisonment.
Now that the issue of Walton's competency is no longer subject to the acid test of litigation, Kaine disingenously pulled the plug on justice in the case and issued a mere ipse dixit justification based on the unproven assertions of the Clemency petition: Screw the Commonwealth, screw the Attorney General, screw the victims, the jury, the trial judge, and screw the crucible of litigation to test this "new information."

Does he have the right to commute? Certainly.

Do we have to accept his utterly phony and transparent justification? Certainly not.

Friday, June 06, 2008


Time for Friday afternoon music. This from the last era of great rock music, the 1980's, from the Mozart of electric guitar, Mark Knopfler. Listen also for the ending piano riff.

Duty calls

Well, it's duty day for me, which means I field citizen and police inquiries, and the occasional question from a lawyer.

I just got off the phone with a lawyer who wants to know if our "office policy" would allow for the granting of transactional immunity to a defendant in a divorce case, who pleaded the Fifth Amendment in response to this lawyer's questions about the defendant's alleged adultery. If we grant immunity, he has to answer, and proven adultery has alimony and child custody ramifications.

I had to inform him that unfortunately our "office policy" doesn't cover giving immunity to parties in a divorce action for their amorous misdeeds.

Who knows? When all the murders, robberies, assaults, and drug cases are disposed of, we might really want to go after all the violators of Virginia's adultery statute, the violation of which is a class 4 misdemeanor, punishable by a tax fine of no more than $250.

Lawyers Handling the Constitution Like Max Hardcore Handles His Women

A pornographer is convicted of obscenity charges for producing absolutely vile porn videos.

The videos show scenes of women being made to drink urine and vomit and having objects, including fists and a medical instrument, inserted into their bodies.

The expected response? The founding fathers of our country intended for this crap to be protected by the First Amendment-- how dare the people of Florida attempt to eradicate this disgusting misogynistic filth important political expression from their community.

And lawyers wonder why normal people hate them.

Monday, June 02, 2008

No Surprise

The National Center for State Courts finds that Virginia's discretionary sentencing guidelines "virtually erase discrimination in criminal punishments," while in enlightned Minnesota, mandatory guidelines have not erased the "widely held belief the guidelines have failed because they haven’t reduced racial disparity.” Also studied, and found to be wanting, Michigan.

One important factor: an active Sentencing Commission overseeing administration of the guidelines.

Full Report here.