"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, July 18, 2008

Sneaky Prosecutors at it Again in Texas

I have to disagree with Mark Bennett, who complains that it is contrary to the duty to do justice for a prosecutor to ask (as he says they routinely do in Harris County, TX), the following question in jury voir dire:
If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?
I like it, and will henceforth add it to my stock questions. Mark doesn't like the fact that when a juror answers "no," they can be struck for cause. He thinks that the question is "a sneaky question, it’s unfair to the jurors, and it’s inelegant."

Inelegant? Oh my.

Methinks counsel doth protest too much. It sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law.

The burden of proof is simply: the state must prove each and every element of the offense beyond a reasonable doubt.

Note: the burden is not "beyond any doubt" or "beyond any possibility of mistake." Our system does not, and never has, required absolute certainty to convict. It wisely recognizes that absolute certainty is next to impossible, and therefore entrusts admittedly fallible human beings with looking at the evidence in a case and seeing if they have any reasonable doubt about the defendant's guilt. It's not a perfect system, but it's better (I maintain) than letting criminals go free because we can't have absolute, metaphysical certainty of guilt.

There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, "only upon testimony of more than one witness."

Now there is no doubt that such cases must be strictly scrutinized by prosecutors, and the first question must be, "why do I believe this victim/witness beyond a reasonable doubt?" If that question cannot be answered, the prosecutor would be well advised to find some other resolution of the case. There is also no doubt that a minimally competent defense attorney can make big points in a jury trial about convicting someone based on single-witness testimony.

Nonetheless, many, many cases would never see the light of day if single witness testimony was considered per se insufficient in law to support a conviction. In fact, probably most cases, at least the more routine ones, rely on the testimony of just one witness: a police officer.

But other cases often by their nature are single witness cases. For example, in Virginia, a state tied closely to the common law principles that stretch back hundreds of years, jurors are instructed in rape cases:
You may convict the defendant of rape or sodomy solely upon the testimony of the victim, if you find her testimony credible. There is no requirement of corroboration.
Now a juror who is never going to believe a single witness, no matter how credible, no matter what the surrounding facts and circumstances, is simply not willing to be an impartial arbiter of the evidence in a case, and is adding requirements to the state's burden of proof that do not exist in law.

Why a lawyer would want a juror to act in such a lawless fashion escapes me... well, not really, of course, because defense attorneys hope that jurors have such hidden misconceptions about the law, and resent the fact that the state's attorneys are uncovering those misconceptions, and that the trial judges are, as they must, excluding such jurors from service.

Thursday, July 17, 2008

Smells Like... Victory

One can only chuckle as the nattering nabobs of negativism turn tail, like this one, who has whitewashed his prediction of the surge failure by removing references to his criticism from his website. No apologies forthcoming from some religious leftists who also predicted doom.

One senses that no matter how much success we see, how much progress in defeating terrorists abroad, there will always be a leftist cheering section, both secular and ostensibly religious at home rooting for the defeat of our forces, because they can't stand the idea that Bush might just have been right.

World Court to TX: We're Serious

Oh no, Texas is in trouble now... the World Court has ordered the U.S. to stop Texas from executing 5 Mexican murderers on its death row.

It seems the WC is upset that the U.S. has not adequately addressed Mexico's claim that Treaty provisions were not sufficiently honored when Texas tried the Mexican nationals now on her death row.

Two options are on the table for the World Court:

Option 1: They can convince the US federal government to re-invade Texas to keep them from executing these poor souls.

Option 2: The World Court can dispatch the Fantastic Four on its behalf to try to break the Mexican 5 from Texas' death row.


...could be defined as trying to have an intellectual discussion with self-styled defenders of the Faith, who are so obsessed with bashing George Bush that they will even rely on Wikipedia for source-material.

For anyone following these issues from over at Papa Shea's blog, you might find these postings of interest.

For my sins (and for knocking him silly on the issue of torture-- he's removed some of my comments), I have been excommunicated by Papa Shea, and banned from the Promised Land of his comboxes.

For which I am duly grateful.

English Only, Please

I agree with A Public Defender, who wonders why lawyers continue to use ridiculous, unnecessary legalese. One of the things we try to drill into our new prosecutors both in my office and at the basic trial advocacy course I help teach, is establishing connection and commonalities with your fact-finder. The jury does not need to hear,

"What, if anything, happened after the robber pointed a firearm at you?"


"What happened after the robber pointed a gun at you?"

will do just fine.

A minor example, but there are hundreds of such useless or technical terms that can be translated into standard English.

My own theory is that lawyers like the exclusivity that comes with having their own, gnostic-like lingo to the use and understanding of which only the initiates are admitted.

Of course, sometimes it can be just a generational communication gap, such as when an elderly judge I practice in front of admonished a defendant who kept violating his probation terms,

"It's like you're just dancing around the maypole."

Now I'm thinking this street-wise criminal has never heard of a maypole, much less what they're for.

Friday, July 11, 2008

Lethal Injection Upheld for Virginia

The Fourth Circuit finds Virginia's track record for lethal injection executions does not support a death row inmate's contention that he would suffer unduly when his turn comes.

"I'll be back..."

...well, no, not so much, thank God and the Newport News, Va. Commonwealth's Attorney's Office.

Virginia executed Kent Jermaine Jackson last night for the murder of "Beulah Mae Kaiser, 79, a widow who lived across the hall from Jackson and his roommate, Joseph M. Dorsett, 29. Dorsett also participated in the slaying and was sentenced to 135 years.

Kaiser's body was discovered in her apartment two days later. Her walking cane was shoved down her throat, a jugular vein was cut, and her skull was fractured. She had been kicked, suffered several other stab wounds, and had been sexually assaulted."

Nice guy. But what did he say for himself before justice was delivered? "You all can't kill me. I am the king. Remember me like you remember Jesus. I'll be back."

"Family and friends remember Kaiser as a gentle, kind woman who was extremely generous, even to strangers. Kaiser attended church regularly and volunteered at the Peninsula Rescue Mission."

Requiescant in pace.

Tuesday, July 08, 2008

"It is very awkward, it is very embarrassing"

The awkward and embarrassing moment was when a 16 year-old immigrant got an abortion in Richmond while under the care of Commonwealth Catholic Charities. The contraceptive implant the girl was using, also provided by CCC, failed, and according to Steve Neill, diocesan spokesman, the CCC employees "were so caught up with the plight of the young girl who already had a child," Mr. Neill said. "She was not a Catholic. She got pregnant by her boyfriend, and she was determined not to have the baby."

Oh well, then of course! She must have an abortion, Steve, and the Catholic diocese of Richmond must help make it happen by transporting her to the abortuary and illegally signing the consent form for the procedure (only a parent can consent).

How awkward. How embarrassing. Especially when it turns out that it was not just a problem of the volunteers. No, the bishop himself, Francis Di Lorenzo, knew about the situation, but according to the diocesan lawyer, Bill Etherington, "DiLorenzo was given bad information about whether the abortion could be prevented, but didn't elaborate as to how. 'He was told it could not be stopped,' Mr. Etherington said. 'It was erroneous information. He didn't have to sign off on it. He was not personally involved.'"

Have we heard this cavalcade of excuses before, on another topic "awkward and embarrassing" for the bishops of this country? One also must give praise to Etherington for his lawerly use of the passive voice, "the bishop was told it could not be stopped." Really? And who would be giving the Bishop legal advice of that sort? Ahem.

Now reportedly there is an investigation taking place in the City of Richmond and also by the U.S. Department of Health and Human Services to determine whether either federal or Virginia state law has been broken.

I certainly hope that in addition to the illegal signing of the consent form, the investigation looks at whether some other laws have been broken, including but not limited to contributing to the delinquency of a minor, taking indecent liberties with a child under one's custodial care, and fornication. This child was under care of the CCC and someone either abused that trust or was negligent in allowing it to be abused.

Regardless of that "awkward and embarrassing" criminal investigation, would it not be appropriate for Bishop Di Lorenzo to resign, having allowed such criminal misfeasance to occur in his chancery and more importantly, for allowing an abortifacient contraceptive device to be implanted in a child, then sitting on his hands while the CCC helped her procure the murder of her unborn child?

Wednesday, July 02, 2008

"I only wish my son had passed this peacefully"

Said the mother of 11-year old kidnap, rape and murder victim, Junny Rios-Martinez after the peaceful execution of his murderer, Mark Dean Schwab. Schwab had just been released from serving a prison sentence for raping a 13-year old boy before murdering Junny.