"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, August 28, 2008

Providing a Maalox Moment for the Prosecution

Ah, what to do with the "bombshell" if you're a crim defense lawyer: the information that could break good for your case. Blonde Justice got the ball rolling by positing a hypothetical where a robbery victim backs off an initially strong identification of her assailant when questioned later by a defense investigator. What to do with the information? Approach the prosecutor and risk him strong arming the victim into making the identification? Or if you get a "good" prosecutor, perhaps he dismisses or pleads the charge down.

Blonde Justice concluded that if the prosecutor is "bad" and strong arms or threatens the witness into sticking by the identification, the next time
we do come up with that gem on an investigation (like the unsure witness), he will never get a courtesy call. And then it comes out at the trial, in front of the jury - with absolutely no warning to the prosecutor. I've seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor. But it is sort of fun to watch. They don't see it coming and then BAM! it's like a train wreck! And who doesn't love a good BAM! moment in a trial?
Mark Bennett jumps into to say that the
defender who holds back a bombshell for trial one time contributes uncertainty to the Government’s case in every case from then on. The less certain the Government is of its case, the better the Defense’s negotiating position. If the criminal defense lawyer has a reputation for springing unpleasant surprises for the Government in the middle of trial, he’s going to get better plea offers than if he lays all his cards on the table before trial in every case.
A Public Defender weighed in to offer a different view about bush-whacking the prosecution:
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk. If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.

My own view is this, speaking strictly for myself: if there is a genuinely exculpatory tidbit, such as the victim recanting, obviously, I want to know about it-- not so I'm not caught with my pants down at trial (unpleasant as that is), but because if I talk to the victim and she tells me, "you know, I really can't be certain" or words to that effect, I'm not going to try to force that person to fake certainty.

First, it usually doesn't work: on even a mediocre defense cross, she'll likely reveal her uncertainty anyway. And if a defense investigator has her saying she is really uncertain, that prior statement will come out. Either way, it's a fair bet that a recanting witness is not going to be "threatened" into being a credible witness.

Second, call me idealistic, but I have this thing about wanting to convict guilty people, and if a witness is expressing genuine doubt (not doubt artificially ginned up by an over-eager defense investigator), and there is no corroborating evidence to shore up the identification, the first question I ask myself is "why should I believe her beyond a reasonable doubt." If I can't answer that question, I shouldn't be taking the case to trial.

Of course, it remains that a defense attorney can save the "bombshell" for trial and get lots of jollies making the prosecution look foolish by bushwhacking the prosecutor with surprise information. Heck, it happens often enough, though it's rare that the surprise evidence is of sufficient quality to gain an acquittal. It's hard (in Virginia anyway) to put on a surprise alibi defense (here, if the defense files for discovery, he must reveal alibi information, so we either get that in advance, or if no discovery is filed for, we have a hint that an alibi is coming). But occasionally there will be the unpleasant surprise, which, if it had been revealed beforehand, would have changed my view of the case.

But as Mark Bennett alluded to, I'm going to remember if you're the kind of lawyer that would rather go for the public "gotcha" than work with me to find out the truth about the case. And if that attorney practices regularly in my jurisdiction, every attorney in my office is going to be told about it.

Prosecutors have alot of discretion, and more often than not, defense attorneys are looking for the best deal for clearly guilty clients when they come knocking on my office door.

Those who play hardball are remembered at those moments.

Sympathy for the Devil

Long before 9/11 the US faced domestic terrorism from the Left, a sadly unremembered chapter in our history. Fortunately the Presidential election is bringing some of these leftist terrorist activities back into the light.

Recently, Obama gave this irrelevant response to the fact that he befriended militantly unrepentant Weather Underground leader Bill Ayers: "I was only eight years old" when the Weather Underground were doing their thing.

Heh. And this guy was only nine when the Weather Underground tried to murder him:
In February 1970, my father, a New York State Supreme Court justice, was residing over the trial of the so-called “Panther 21,” members of the Black Panther Party indicted in a plot to bomb New York landmarks and department stores. Early on the morning of February 21, as my family slept, three gasoline-filled firebombs exploded at our home on the northern tip of Manhattan, two at the front door and the third tucked neatly under the gas tank of the family car. (Today, of course, we’d call that a car bomb.) A neighbor heard the first two blasts and, with the remains of a snowman I had built a few days earlier, managed to douse the flames beneath the car. That was an act whose courage I fully appreciated only as an adult, an act that doubtless saved multiple lives that night.
I still recall, as though it were a dream, thinking that someone was lifting and dropping my bed as the explosions jolted me awake, and I remember my mother’s pulling me from the tangle of sheets and running to the kitchen where my father stood. Through the large windows overlooking the yard, all we could see was the bright glow of flames below. We didn’t leave our burning house for fear of who might be waiting outside. The same night, bombs were thrown at a police car in Manhattan and two military recruiting stations in Brooklyn. Sunlight, the next morning, revealed three sentences of blood-red graffiti on our sidewalk: FREE THE PANTHER 21; THE VIET CONG HAVE WON; KILL THE PIGS.

Obama's friend Bill Ayers has stood by these and other terrorist crimes committed by the Weather Underground. But since Obama was only eight when they happened, it's OK to be buds with him now, you see.

Wednesday, August 27, 2008

Sounds 'Bout Right

From Dave Kopel at the Rocky Mountain News:
One of the speakers [at the interfaith meeting at the Denver Democrat convention] was Sister Helen Prejean, a Catholic who is one of America's leading crusaders against the death penalty. She is the subject of the hagiographic movie Dead Man Walking. Sen. Obama, however, claims to support the death penalty. He goes so far as to say that he disagrees with the Supreme Court's recent decision forbidding the death penalty for crimes in which no one is killed (such as the rape of a child). Given Obama's (claimed) expansive support for the death penalty, the media ought to ask him why his convention prayer session featured a person whose main contribution to political debate in the United States is opposition to the death penalty in all circumstances, even for people who torture children to death after raping them.
And how cozy, Sr. Prejean sharing the platform with the President of the Islamic Society of North America, a front organization for the Muslim Brotherhood, which seeks to impose Sharia law worldwide.

Wonder how Sr. Prejean would like a society where her Muslim prayer buddies have their way, and the death penalty is imposed for "murder, apostasy (watch that one, Sr. P.), rape, highway robbery, sabotage, and armed robbery, as well as drug trafficking."

Tuesday, August 26, 2008

Correct Thoughts Only, Please

Shape of things to come?

Obama is trying to get the DOJ to shut down a political ad he doesn't like. I'm waiting, but not holding my breath, for all the libs who think the First Amendment protects any and all "speech" (even when it's not speech-- like virtual kiddie porn) to stand up and condemn this attack on the essence of the First Amendment protection-- political speech.

Monday, August 25, 2008

What Does it Take to Stun a DNC Crowd Into Silence?

Unbelievable. Sr. Prejean, the heretical nun who denies the Catholic teaching that capital punishment is justified under certain circumstances, and not only befriends brutal murderers but also tries to claim they never committed crimes they clearly committed, yesterday spoke to the DNCC, yes, the Democrat National Convention Committee, and even this adulatory crowd of infanticide supporters responded with:
nothing but a stony silence, however, when she questioned the basis of the biblical crucifixion story as a "projection of our violent society."
"Is this a God?" Prejeans asked about the belief that God allowed his son, Jesus, to be sacrificed for the sins of humanity. "Or is this an ogre?"
Nice. Hey, even folks who don't shy away from a party that believes infanticide is just fine might draw a line at doubting the crucifixion of Christ and comparing God to an ogre.

She went on to criticize the alleged use of torture by the US, and repeated her oft-stated view that capital punishment is itself a form of torture. That part of course, roused the crowd into standing ovations.

I'm still looking for her entire address. Stay tuned.

System Fails To Protect Us Again

Eight inmates, including a convicted murderer, escape from a New Mexico jail. Seven are still at large.
One of the missing inmates was identified as Edward Salas, who was sentenced to life in prison last month for the murder of a 10-year-old boy. Shots were fired through the child's bedroom window as he slept. Salas was being held at the jail awaiting transfer to state custody, authorities said.
Another escapee, Larry McClendon, was charged with murder and aggravated robbery in the January 2007 death of a store owner.

Sometimes, to protect the rest of us, we have to execute some offenders.

Thursday, August 21, 2008

A Clarification...

Occasionally, despite the effort by some, including, sadly, this nation's Catholic bishops, to create the appearance that the death penalty is contrary to Catholic moral principles, the truth will slip out:

Lopez: Whenever I write about Catholics and abortion, I am immediately asked, "What about war? What about the death penalty?” What about them? Can a Catholic vote for Senator “Surge”? We have killed people in Iraq, after all.

Archbishop Chaput [Archbishop of Denver]: I’ve written and spoken against the death penalty for more than 30 years. And along with most other American bishops, I opposed our intervention in Iraq. But these issues are different in kind, not merely degree, from the violence involved in abortion. Anyone rooted in Scripture and Catholic tradition will understand the distinction if he or she reasons honestly. Genocide, euthanasia, abortion, and deliberately targeting civilians in war — these things are always grievously wrong. But in Catholic thought, war and capital punishment can be morally legitimate under certain carefully defined circumstances. Abortion is never morally justified.

Any questions?

It we can't render offenders harmless through some means (and we can't, at least reliably), then the state may justly execute those who will constitute a threat to public safety.

HT: Jay.

Friday, August 15, 2008

"I am so, so sorry. My punishment is nothing compared to the pain and suffering I have caused."

These were among the last words of Michael Rodriguez,
one of the "Texas Seven," a group of inmates who escaped from a high security prison in Texas in 2000 and killed a police officer. He was convicted of taking part in the murder.

Prior to his escape, he had faced life in prison for having ordered the killing of his wife.
Another example of why life incarceration does not render offenders harmless, and why capital punishment is needed in some cases.

I mentioned this case before, when Rodriguez decided to give up contesting his execution. As I stated then, if he had been executed for plotting his wife's murder, Officer Aubrey Hawkins (pictured at left) would not have been shot eleven times, leaving behind a wife and son.

Cases like this show why, no matter what the agitation level from abolitionists, the death penalty will always be a necessary option.