"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

Monday, September 29, 2008

Ultimate Victory for Weather Underground?

The man who would be chief federal law-enforcer and commander-in-chief of the armed forces associates with a guy who doesn't apologize, and in fact boasts about, trying to blow up police stations, military bases, and even the U.S. Capitol.

And the media yawns and looks the other way.

Friday, September 26, 2008

Jury vs. Bench Trial

A reader has the following query:

There was an article in my home town paper about a year ago on the subject of the disposition of DWI cases. It seems that lawyers who make this sort of work their specialty prefer bench trials for those cases which go to trial. (At one time here in New York, 98% of all indictments were resolved through pleas - don't know the current figure or that for DWI cases). This surprised me as I have been told by other lawyers in general practice (about a decade ago) that your client very seldom benefits from a bench trial. The lawyers interviewed said juries are unpredictable and get sidetracked by irrelevant issues. What do you make of that?
Yes, the age-old question of bench vs. jury trial.

It seems that bench and jury trials have both been in decline in recent years, a fact lamented by the NACDL, an organization of defense attorneys, which sees in the reduction of trials a sinister erosion of trial rights.

As to the specific question, alot of factors play into whether a jury or a bench trial is chosen, assuming the case is one of those relatively few that are actually tried in a contested posture.

Some of the factors:

* which jurisdiction is the case in: The suburban county, where jury pools are more middle class, educated, property owning, and therefore generally less sympathetic to criminals and less suspicious of the police, or the city, where jury pools are younger, less educated, have less of a property stake in the community, tend to be suspicious about the police, and tend to be more tolerant of certain crimes because these crimes are either so common or have been committed by the juror's own family members.

* the nature of the case: Is it a wounding or murder case where there is a strong self-defense claim with a sympathetic defendant and an unsympathetic victim? Even if legally self defense is not technically available, a jury might in effect "nullify" and acquit if they can be convinced that the victim "had it coming to him." Or in the urban jurisdiction, a construction possession of cocaine case might be a good one for a jury, where a judge might easily convict because he's seen a thousand such cases, a jury might well acquit, especially where it is "just a drug case." UPDATE: Injustice Anywhere, back from a blogging hiatus, has an example of a case where she successfully pitched a legal defense to a jury when the judge wouldn't buy it pretrial.

* which judge has the case: Some judges are so lenient or will acquit more readily that it may be a good tactical decision to forego a jury (which is always, always, a roll of the dice) and hope that the lenient judge acquits, and if he doesn't, at least he is a light sentencer. On the other hand, if the judge is a hanging judge and tends to resolve credibility of witness testimony in favor of the government, a jury might be the call where the issue is solely witness credibility, say in an assault case where there are no police witnesses.
From my viewpoint as a prosecutor, I rarely insist on a jury, but in the rare case where a defendant faces alot of very serious charges, the evidence is very strong, and the defendant will not even consider a plea agreement, I have and do take jury trials, with predictable results.

The cases I have where defendants take juries are pretty rare, because usually defendants take juries because the case is unusually weak or circumstantial. But it is just those cases where the incentive to reach a plea agreement is the highest: the government gives up alot on the charges or the sentence imposed, and the defendant gets the assurance of a conviction on some lesser charge or some specific sentence, instead of the risk of a jury finding him guilty of the most serious charges and imposing a heavy sentence (juries determine sentences in Virginia, subject to later reduction by the court).

Bench trials usually occur where the plea agreement process breaks down, yet the defendant does not want to risk a jury conviction and sentence. The reasoning is that a judge who has heard many similar cases, will be lighter on sentencing than a jury would be. In effect, unless there is a compelling defense to the charge, these kind of bench trials are really just "slow guilty pleas" where the defendant wants to hope for the home run of acquittal, but realistically knows he will likely be convicted but will at least convince the judge that the case is not aggravated, or is a close case, and therefore receive a discounted sentence.

These are some of the considerations that attorneys face when deciding whether to seek a bench trial or a jury trial. I know that some defense attorneys could add much more to this list. Ken, for example, has lots to say about this issue, including stories like this one, which illustrates that sometimes a jury can see things that the lawyers overlook. Ken also has posted extensively on his view that jury trials in Virginia are unfair because the juries recommend sentences, usually resulting in much higher sentences than judges give, and judges then are reluctant to reduce jury sentences, and if they do, the final sentence is still usually more than the judge alone would have given.

The specific question of DUI cases is easy: not very good cases for defendants to take a jury, because if there is a technical defense a judge is more likely to buy it; and assuming the police crossed the "t's" and dotted the "i's" there is usually not much of a defense to be had. In Virginia, once you're .08 bac or above, you're presumptively guilty unless you can impeach the intoxilyzer or bring in an expensive expert to explain that it wasn't really booze that caused the reading on the machine. Neither defense is easy and usually neither works. And juries these days are not very forgiving about driving under the influence, so the risk of a high sentence is great.

Tuesday, September 23, 2008

All Is Not Well In PD Land

For those who are not part of the paltry 5 million who watched the last episode, the insufferable David Feige, former PD in the Bronx, having written a ridiculous book about his experiences there, has now sold Stephen Bochco on producing a cable series for TNT, Raising the Bar, which continues his book's theme of crooked cops, crooked prosecutors, bad judges (they convict his clients) and-- surprise! -- virtuous, noble PD's. Being cable, plenty of promiscuous sex had to be thrown in to get folks to tune in. (Ken has a great summary of the show and characters).

The Boston Herald, finding the show "guilty of inanity," was rude enough to point out that:

In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.
Never has the justice system looked so silly.

Or so hairy, for that matter, based on the overflowing locks of the hero of the show (Feige himself, but handsome and able to get lots of babes?)

But, oh dear, not even all the faithful are happy. The exquisitely sensitive Seth Abramson, himself a literary PD (he's a poet, dontcha know?) has lots of problems with Feige's little show, which he derides (quite accurately) as loaded down with "trashy talk, sex, skimpy clothing, and absurd courtroom melodrama." He's got ten questions about the absurdly unrealistic show (seconded by A Public Defender) , and Feige responds to him here. Interestingly, Feige offers no defense for the show beyond 1) it shows how much the PDs "care" for their really, truly, human clients; and 2) it shows how the "system" is broken, a recurrent theme for Feige.

Feige's problem has always been that he confuses losing cases as a defender with the "system" being "broken." But as I've mentioned before, even Feige admits the "error rate" (i.e., wrongful convictions) is very small, in the neighborhood of .5%. No one wants any error, but given the fact that the justice system only asks for proof beyond a reasonable doubt for a conviction and not metaphysical certitude, the system is far from being broken.

Which may explain why TNT needs all the long hair, skimpy clothing, and sex to sell this show to viewers.

Tuesday, September 16, 2008

Shea's Quixotic Endorsement

Not that the voting preferences of Catholic KOS guy Mark Shea makes me fret, but I did have to chuckle to see his endorsement of a guy named Joe Schriner for President. Schriner is running a write-in campaign based on a platform designed "to simplify lifestyles, save the unborn, heal the family, return to rural values and expand local charity efforts."

This appeals to Shea because he can't stand McCain/Palin (already tarring her as a supporter of embryonic stem cell research, despite her unequivocal condemnation of the practice. HINT: Mark, a VP doesn't have to agree with every policy point of her running mate), and alas, can't vote for Barry O because although Mark sounds enamored of the guy (after all, he bashes Bush and hates the war against the Jihadis), he does inconveniently favor slaughter of babies up to and beyond the moment of birth.

What tickles me is that this Joe guy is running on some sort of pseudo-Chestertonian platform, but:
*favors amnesty for illegal immigrants
*wants to stop the U.S. from use of "food terrorism" and environmental
* wants peace time use of the military to aid in law enforcement
* favors elimination of "offensive" weapons
* favors imposition of a health care tax
* favors abolition of the death penalty
So, he wants to encourage and reward illegal immigration that is a documented threat to the national security, he wants to violate posse comitatus by injecting the military into law enforcement, and he wants to reduce our military's ability to wage war, even it would seem, against the Taliban in Afghanistan (he even muses about "what if the Amish were in charge of the war on terror?").

On the death penalty: first, abolishing it is not within the powers of the executive branch (much less as regards use of the death penalty in the states, where it is most practiced); and second, Schriner seems to hold the heretical view that the state does not have the moral authority to use capital punishment in any case.

Odd that Shea would be recommending as the "Catholic" alternative for President a guy who would try to overstep the authority of the office, raise taxes, who is a believer in man-made global warming, who would pull the rug out from under our offensive against the Jihadis, and who after all is not even an orthodox Catholic.

This is the best Shea can come up with?

Passing of a Good Man

This guy was a real Catholic gentleman and raised some awesome basketball players. I knew him and his fine sons at my alma mater:
From the "What We're All Called to Be" Desk, Thomas Vander Woude -- the Virginia father of seven, retired pilot, volunteer coach and onetime Christendom College AD who drowned last week to save his youngest son's life -- was mourned by an overflow crowd yesterday at a funeral liturgy led by his eldest, a priest of Arlington:
[M]ore than 2,000 people packed the pews at Holy Trinity Catholic Church for his funeral Mass in Gainesville, some listening from the vestibule, others down a hallway watching on closed-circuit television. Among the attendees were his wife of 43 years, Mary Ellen, more than 70 priests, including the bishop of Arlington, and the friends accrued over decades who came to pay respects to a man who inspired them, right up until his final breath. If Vander Woude saw the throng, he'd say, "Are you kidding me? . . . Don't waste your gas," said one of his sons, Steve Vander Woude of Nokesville, after the service. But "this guy did something saintly, and they wanted to come be a part of it."Thomas S. Vander Woude, 66, died last week while helping his son Joseph, who has Down syndrome, after he fell into a septic tank while working in the yard, police said. The tank was eight to 10 feet deep, Steve Vander Woude said.His father climbed into the 2-by-2-foot opening, managed to get under Joseph and was pushing him upward to keep his head above the sewage. Initially, Vander Woude was able to keep his own head above the muck, telling a workman who was helping from above, "You pull, I'll push," Steve Vander Woude said. But he eventually sank and was later pulled out by rescue workers, who were unable to revive him, Prince William County police said.Joseph, 20, was hospitalized last week with pneumonia but was released Saturday and attended the Mass for his father in a wheelchair, connected to an oxygen tank. His family said doctors expect a full recovery. A few days after his father's death, Joseph's family sat with him in the hospital and explained to him that his father had died.Upon hearing the news, Joseph "sat back . . . he closed his eyes, his chin quivered, and he started crying," Steve Vander Woude said. "I think he understands as much as he can right now."Another of Thomas S. Vander Woude's sons, Tom Vander Woude, pastor at Queen of Apostles Catholic Church in Alexandria, gave the homily. In it, he likened his father to St. Joseph, a man who patiently and quietly supported his family, did odd jobs for those in need and was content to worship God and not seek the limelight, Tom Vander Woude said....Mary Heisler, 36, of Nokesville, said she never would have come to Virginia as a teenager, let alone met her future husband, if it had not been for Vander Woude. She was receiving Catholic home schooling in Texas when Vander Woude, who was helping with the home-schooling program at Seton, contacted her father and persuaded him to move 14-year-old Mary and her 11 siblings to Virginia to attend the school.Her father obliged, sold the house, bought a yellow school bus and drove his family to Prince William County.Money was tight, so Vander Woude took the family into his home for a month before lending them money for a down payment on a house of their own in Manassas, Heisler said."He gave us half the home," said Heisler, who met her husband, Tim, at Seton. "I don't think he realized how many people he impacted."Peter Scheetz, assistant director at Seton, recalled a similar kindness."When my wife and I got married, we were trying to buy a townhouse," Scheetz said. "We didn't have any credit. . . . Tom Vander Woude ended up co-signing our loan for our first house." There were many similar stories about Vander Woude, who served as a pilot during the Vietnam War, a commercial pilot after he returned home and a longtime volunteer coach.His dying act was "truly saintly" and "the crown of a whole life of self-giving," Bishop Paul S. Loverde said at the Mass."May we find in his life inspiration and strength."And already, the prayers have begun -- not so much for Vander Woude, but to him. On a related note, lest we forget, today would've been Danny's 59th birthday... and even now, to simply say he's missed doesn't begin to cut
Requiescat in pace.
(more at the Washington Post and here).