Friday, December 18, 2009
These guys never change. The amazing thing is how they attempt to come across as "moderates" while urging the most reckless policies imaginable, like imposing hefty new income taxes when people's wages are in decline, according to the Commonwealth Institute.
To paraphrase, Tim Kaine's legacy is a poor excuse to pick the citizen's pocket this 25th of December.
Monday, December 07, 2009
The Clancys popularized Irish folk music in the US in the 1960s, even appearing on the Ed Sullivan show.
A couple of my personal favorites:
RIP, Liam Clancy... may you be reunited in heaven with your brothers and Tommy Makem, and make beautiful music there.
Tuesday, December 01, 2009
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 absolute necessity "are very rare, if not practically non-existent."
Of course, despite this official Catholic position of the Catechism, which assumes, as it must, the moral licitness of the death penalty, our American bishops actually are much more radical:
Capital punishment is cruel, unnecessary, and arbitrary; it often has racial overtones; and it fails to live up to our deep conviction that all human life is sacred: "Our witness to respect for life shines most brightly when we demand respect for each and every human life, including the lives of those who fail to show that respect for others. The antidote to violence is love, not more violence."
This position is not consistent with Catholic moral thought, since it takes the heretical pacifist view that the state has no moral authority to protect itself by lethal force.
I am put in mind of these issues because of the recent execution-style killing of police officers in Washington state by Maurice Clemmons, a repeat violent offender, who amazingly, despite his record of violence, was granted a commutation of his sentence (an authority which to my knowledge, every state chief executive in the nation possesses), which freed him to be able to kill the four officers. Clemmons had a lengthy history of violence in and out of custody:
Another time, Clemmons hid a hinge in his sock, and was accused of intending to use it as a weapon. Yet another time, Clemmons took a lock from a holding cell, and threw it toward the bailiff. He missed and instead hit Clemmons' mother, who had come to bring him street clothes, according to records and published reports.Oh, and he was out on bond for child rape charges when he went on his killing spree.
On another occasion, Clemmons had reached for a guard's pistol during transport to the courtroom.
When Clemmons received the 60-year sentence, he was already serving 48 years on five felony convictions and facing up to 95 more years on charges of robbery, theft of property and possessing a handgun on school property.
Point is, when the Catechism or some bishop glibly talks about how capital punishment is uneccessary because our modern criminal justice system guarantees public safety, there's always a Maurice Clemmons out there to bring us all back to reality.
Thursday, November 12, 2009
Anyone familiar with Aristotle will recognize this concept of proportionality and retributive justice. These classical principles, based as they are on the Natural Law, were easily absorbed into Jewish and then Christian thinking about Justice. No amount of modernization of the civil justice system can derogate from the moral necessity that calls for proportional, congruent satisfaction for crimes. It is in fact one of the most important duties of the state to guarantee this type of justice, so that the community is protected, crime is punished and is perceived as being adequately punished, and to discourage private acts of vengeance.
And so recently in Virginia we witnessed the execution of John Allen Muhammad, the so-called "Beltway Sniper," who with cold calculation and meticulous efficiency, slaughtered 10 people and wounded three others. His guilt beyond any doubt whatsoever, his crimes reprehensible, his just execution was the only punishment that would approach justice in his case. Living his natural life as a ward of the state, enjoying the comforts that the American prison must offer inmates (hot meals, reading material, recreation opportunities, access to cable TV) while it would curtail his liberty, would hardly proportionally address the horrific loss of life he wantonly visited upon the affected communities.
For those keeping track, for our Catholic governor Tim Kaine, this was execution #10 that he allowed to proceed despite his supposedly "deeply held religious conviction" that the death penalty is immoral.
Tuesday, October 13, 2009
Now the dainty and sensitive Mr. Shea is famous for stirring up site-hits by issuing fatwahs against those who support enhanced interrogation methods against terrorists in possession of actionable intelligence. He casts into the outer darkness any who disagree with his private interpretation of what constitutes impermissible torture. He claims that they display an attitude of "how close can I get to morally impermissible torture."
Uh, with all due respect, Shea does the same thing with capital punishment. See, the Church holds that capital punishment is both moral and sometimes necessary. Shea, with some radical clerics, really wants no capital punishment, so they creep right up to the line of the heresy that holds that the state has no right to execute at all, and say in effect, "well, there is a theoretical right of the state to execute, but ya know, in actuality, the state can never licitly exercize that right."
In other words, all the flavor of the heresy with none of the fat and calories.
It bothers these radicals not that in fact the limiting clause placed by the new Catechism ("If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor" the death penalty should not be used) does not apply in the United States since we have demonstrably not been able to render offenders harmless by the Catechism's unknown and unspecified "non-lethal means."
It also does not occur to them that in fact, executions in this country for murders take place only in roughly 1/4 of 1 percent of cases. If that's not "rare, if not non-existent" I can't imagine what is. It's certainly not the uncaring, bureaucratic, Orwellian state-run-amok that Papa Shea breathlessly clucks about.
Of course I was not surprised by his recently voiced support for a convicted cop-killer, because Shea has shown before that he doesn't hesitate to shoot first and ask questions later. And a guy who spills so much ink over a few jihadists getting roughed up is just the kind of guy who would go to bat for a convicted cop killer.
Perhaps he needs to re-aquaint himself with the Scriptures: "But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake."
Friday, October 02, 2009
What a tragedy should the Irish give up their sovereignty to be led by, of all people, Tony Blair, who is lobbying for the EU presidency.
Monday, September 14, 2009
They both died June 25th, 2009.
One has been covered 24/7 by the media the other has been forgotten.
You're lying there, listening to the enemy machine guns, and you know you're not getting out. Your family is half way around the world, 12,000 miles away and you'll never see them again. As the world starts to fade in and out, you know this is the day.
Then, over the machine gun noise, you faintly hear that sound of a helicopter and you look up to see an unarmed Huey, but it doesn't seem real because no Medi-Vac markings are on it.
Ed Freeman is coming for you. He's not Medi-Vac, so it's not his job, but he's flying his Huey down into the machine gun fire, after the Medi-Vacs were ordered not to come.
He's coming anyway.
And he drops it in and sits there in the machine gun fire as they load 2 or 3 of you on board.
Then he flies you up and out, through the gunfire to the doctors and nurses.
And he kept coming back, 13 more times, and took about 30 of you and your buddies out, who would never have gotten out.
Medal of Honor Recipient Ed Freeman died on Wednesday, June 25th, 2009, at the age of 80, in Boise , ID. May God rest his soul.
Tuesday, August 25, 2009
That doesn’t necessarily close the question on EITs and whether or not they constituted torture [a point I've made before]. However, thanks to the political reality in the Beltway at the moment, the interrogators who employed EITs within the contemporaneous parameters created by the Bush administration won’t get prosecuted in Eric Holder’s investigation. Instead, they will focus on those who violated the boundaries, which leads to some pretty ridiculous outcomes. The DoJ
apparently wants to investigate an interrogator who blew cigar smoke into the faces of terrorists, another who used a drill and a gun to intimidate a detainee, and yet another who threatened to get a terrorist’s family members and kill them.
Are we to believe that the men who killed 3,000 men, women, and children were so sensitive that those threats would leave them psychologically scarred for life — but mass murder didn’t? Will the DoJ now prosecute police officers who blow smoke in subjects’ faces, either inadvertently or deliberately, during interrogations? Isn’t this defining torture down to an absurd level? If anything, it shows that the statutes governing torture are ridiculously vague.
The attempt to define torture down to include some of the relatively innocuous enhanced interrogation methods in my view erodes the moral force of the argument against genuine torture.
If we accept the common international law definition of torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" (U.N. Convention Against Torture), we have to exclude many of the methods encompassed by the term "enhanced interrogation techniques," and many of the methods used against hardened Jihadists.
From the mainstream media, always vigilant for unflattering stories about "Christian fundamentalism"?
[Cue the crickets chirping soundtrack].
Thursday, August 20, 2009
This is brought to mind because fresh off his recovery from the vapors over the sight of people lawfully carrying firearms during peaceful protest, Papa Shea, relying on the rantings of a leftist blog, has consigned Justice Antonin Scalia to the flames for the offense of not tearing down all the laws in England to get at the Devil.
Shea's drunk the kool aid for a convicted cop-killer by the name of Troy Davis. Troy Davis shot Savannah, Ga. police officer Mark McPhail in the face and torso as McPhail tried to keep Davis from fleeing the scene of a fight. After the killing Davis changed his shirt and fled to Atlanta. The night prior to killing Officer McPhail, Davis shot a man at a party, wounding him in the jaw. Bullet casings from both shootings were recovered and were found to have been fired by the same gun. Nine (yes, nine) eyewitnesses testified that Davis was the shooter in McPhail's murder. Davis himself admitted being present at the scene, while denying shooting McPhail. He claimed at trial that the witnesses were lying about his involvement, the same claim he is still making years later, a claim rejected by the jury and every court which has considered it.
The jury found Davis guilty of the murder and imposed a death sentence.
Years after the fact, as is common in such cases, teams of defense investigators and anti-death penalty activists have obtained affidavits from seven of the nine witnesses back-tracking from their sworn testimony at trial.
Interestingly, none of the recantations state that Davis did not murder Officer MacPhail; they merely claim now that they were not sure of the shooter's identity. All but one of the “recants” state that the original statements they gave were prepared by the police based upon their oral interviews and that they signed them without reading them. However at trial they testified that these statements were true.
And of course, it remains that two of the original witnesses still positively identify Davis as the killer.
Armed with these convenient recantations, Davis began his appeals, first in the Georgia Supreme Court which found "the evidence supports the conviction on all counts." Davis lodged a habeas corpus petition in state court, alleging in part that there was evidence presented at trial that another person shot McPhail. The state court denied the habeas petition, noting that the jury's role was to resolve conflicting evidence and that their verdict was supported by sufficient evidence.
These state courts considered his claims of actual innocence and rejected them.
Davis next turned to federal court and filed a habeas petition there, again alleging his actual innocence, which petition was also denied, the court finding “that because the submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim.” A federal appeals court affirmed this finding.
Now Davis has convinced the U.S. Supreme Court to direct that a federal District Court hold an evidentiary hearing on his innocence claim. It is this extraordinary and unprecedented procedure that led to Scalia's dissent, which states in part:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent.
It is this out-of context phrase, posted on the leftist blog, that made its way to Papa Shea's notice. And without bothering to read the entire dissent (see how easy that was to find!), or to consider the facts and procedural history of this case, Shea's substantial knee proceeded to jerk, and he raged that Scalia
argues that it is more important to execute the innocent than to stop the System from killing somebody the System has found guilty according to the System.Never mind that the blurb Shea is all upset about does not remotely say that. Never mind that the dissent no where states or implies that. Truth is not so important when you're throwing mud at the two observant Catholics on the Court (Justice Clarence Thomas joined in Scalia's dissent).
Let's keep it simple: There is not "a pretty good chance the guy is, you know, innocent." The state supreme court considered and rejected the possibility, the Georgia Pardons and Parole Board, which actually took testimony from the recanters, rejected the possibility, and a federal Court of Appeals considered and rejected the possibility. This actual innocence claim has been cooked up by Davis' lawyers with lots of help and publicity from the usual suspects in the anti-death penalty movement. It doesn't hold water.
Which is why Scalia is right for observing that this just a plain old state criminal case with no federal issue requiring more litigation. That Scalia objects to an activist majority on the Court finding any straw to grasp to keep this case from ending is hardly to suggest that he elevates the law above man.
It suggests that he, like most, believes that a fair trial, reviewed carefully on appeal and by the Executive branch of state government, and found to be correct, ought to result in the sentence being carried out.
There is no need to go tearing down the laws, as Shea wants Scalia to do, in order to do justice. "The System" is doing just fine.
Davis has had his day (his years, actually) in court and then some. Now let the jury have their say by letting justice be done at last for Officer McPhail's vicious murder.
Wednesday, August 19, 2009
For failing to act like proper Seattle suburbanites would and eschew both firearms and reminders that tyranny may justly be resisted by force at some point (not a popular view in the land that gave us Starbucks), all such protestors have been cast into the outer darkness by Papa Shea. After all, the First and Second Amendments can't really mean literally that people have a right to free speech and to bear arms.
Now this national tragedy is not confined to the example that reduced Papa Shea to quivering .
Here for instance is another, far more dangerously armed guy looking very scary-- and he's black to boot!--at an event in Phoenix Arizona:
Never mind that this dangerous "right-wing nutjob" was yawned at by the police ("What he is doing is perfectly legal," Det. J. Oliver, of the Phoenix Police Department said. "We are here to keep the peace. If we need to intervene, we will intervene at that time.")-- clearly this type of conduct is over the top and would never be tolerated in sane places like Washington state.
And the Secret Service itself apparently needs to start reading Papa Shea's blog right away because they clearly do not understand the dangerous nature of these armed thugs. Why, when "asked whether the individuals carrying weapons jeopardized the safety of the president, [Secret Service spokesman] Donovan said, 'Of course not.'"
Even the White House says they have no problem with lawful gun-toting protestors.
But what do they know?
One does wonder why Papa Shea's outrage is restricted to "right wing fanatics" engaged in such tactics. When organized, armed, militant New Black Panther members engaged in in polling place intimidation in Philadelphia in the last presidential election (Bartle Bull, a veteran activist and civil rights attorney, called it "the most blatant form of voter intimidation I have encountered in my life in political campaigns in many states, going back to the work I did in Mississippi in the 1960s.") Shea was still too busy attacking George Bush to notice, even while Obama's Justice Department winked and nodded at the intimidation.
Too busy also to take note of all the examples of leftist protest against Bush himself which was, unlike the protests now, expressly threatening.
Friday, August 14, 2009
Friday, July 17, 2009
Thursday, July 09, 2009
Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging.
Sadly the legacy of Buck v. Bell is alive and well amongst the leftist legal "elite."
Thursday, June 25, 2009
Justice Scalia wrote the majority opinion, in which Justices Thomas, Ginsberg, Stevens and Souter joined. The mix on the dissent side was equally unusual: Roberts, Alito, Kennedy, and Breyer. The Court today continued the trend I noted here in crimlaw cases, of defying easy categorization as "liberal" or "conservative." Instead there seems to be a drift into a more "formalist" or "literalist"camp, which tends to downplay or disregard the effects of their rulings on the criminal justice system and any social and economic implications and which is fairly quick to overrule or explain away contrary precedent. Scalia and Thomas are prominent in this camp. The other camp is what one might call "pragmatist" and consists of Alito, Roberts, and Kennedy. This camp affords more weight to precedent and the practical policy, economic, and "reliance" implications of newly announced Constitutional rules.
So in this case, Scalia follows a formal, literal reading of the Sixth Amendment, reasoning that lab certificates are "testimonial" in that they are prepared with a view to prosecution, and that therefore the person conducting the test must be available for cross-examination. Pragmatic concerns such as the burden on the system in producing such witnesses, the likelihood of increased dismissals when these witnesses cannot or do not come to court, and the increased expense involved in requiring analyst testimony, are brushed aside as insignificant next to the "plain" command of the confrontation clause.
The dissent, in addition to citing the pragmatic problems (and also feeding Scalia a healthy dose of "original intent" evidence refuting his formalist interpretation of the Sixth Amendment) relies on the 90-year precedent for using lab certificates without an analyst testifying to argue that the majority is not only imposing great costs on the system, but also is throwing stare decisis overboard.
About one thing there can be no dispute: this case has dramatically changed the way business will be done in drug cases, DUI cases, and any other case which has up until now relied on use of certificates of analysis of any kind. Defense attorneys will attempt to use this opinion to pry charge and sentencing concessions from prosecutors; prosecutors may respond by opting for more jury trials in appropriate cases, to raise the stakes of contesting guilt.
Let the games begin.
Tuesday, June 23, 2009
Guards used pepper spray, rubber batons and fired two warning shots to stop the fighting.We just cannot prevent some violent offenders from harming others, even in prison.
Officers said they recovered 28 inmate-made "stabbing and slashing-type weapons." No guards were hurt.
HT: Crime and Consequences.
Thursday, June 04, 2009
A credit to the Virginia Tech Corps of Cadets... would that the GOP adhered to the principles embodied in his remarks.
Wednesday, June 03, 2009
Also, the Richmond Times-Dispatch revisits an infamous death row escape in 1984 where six death row inmates escaped from a facility that had been lauded by the Governor at the time as "a firm and lasting and unbreakable connection between crime and punishment." That prison break, and other breakdowns in the prison system that year caused a shakeup in the Virginia Department of Corrections. Among the other incidents, less noticed in the sensational climate of the Briley brothers' escape, were these:
In June, two maximum-security inmates on an outside work detail at the State Penitentiary in Richmond briefly escaped. On July 10, mini-riots at Mecklenburg
injured six inmates and 10 guards.
And in early August, 32 maximum-security inmates at Mecklenburg held nine employees hostage.
These were all maximum security facilities, and despite that, convicted violent felons were able either to escape or to injure or abduct correctional employees.
We have not devised a way effectively to render offenders harmless, which is why capital punishment needs to remain an option among all other sentencing options.
Friday, May 29, 2009
What they saw as they stood passively by? "Zhu was on top of Yang, who was on the floor. Zhu stared at Yang's face as he cut through her neck. It wasn't really an angry face at all," said [the witness], at that point the only witness to the gruesome events. "It was just a really blank, determined look."
The campus cop will no doubt never see again in her career the sight that greeted her upon her arrival: "'I saw a body lying and I saw a gentleman walking toward me with a head in his hand,'" testified Nicole Irvine of the Virginia Tech Police Department.
Irvine said he dropped the head when she ordered him to put his hands in the air."
It's important continually to refer to actual crimes and the reality of their victims when discussing punishment, which far too often veers off into theory or into the defendants' pathologies. When the facts of these horrific cases are remembered, it tends to focus attention on the justice of the punishment. In this case, I can't imagine any reason why the taxpayers of this Commonwealth should suffer this monster to live on the dole in one of our fine correctional facilities for life.
How about instead some retributive justice for that Xin Yang, the poor girl who suffered such an unimaginable death?
Wednesday, May 27, 2009
Thursday, May 21, 2009
Mark Shea wants his readers to accept his decree that having a physician involved in the process is "weird." He links them to an article which attempts to compare physician involvement in the execution process in the U.S. with German physicians' complicity in Nazi atrocities. Yes, the old "reductio ad Hitlerum."
What has Mark and his buddies frothing? North Carolina's Supreme Court recently ruled that the state's medical board it overstepped its authority in threatening to sanction physicians who participate in the process of execution. The North Carolina board's position was the only one in the country absolutely forbidding physician participation in executions.
Let's look at some history: Executions used to be carried out by fairly plain methods: eletrocution, gas, hanging, firing squad, and the like. The process was a simple one where the jailers could easily carry out the physical motions that would cause the death of the inmate. The role of the physician would then be simply to verify that the death had occured, that is, that the inmate was clinically dead. It was easy for the physician to have a very limited role in the process.
Now, for all intents and purposes, the universal method of execution is lethal injection. Was this method introduced because the Godless government wanted to dehumanize the inmate; to make execution more efficient for a Nazi-like road to mass extermination?
Lethal injection arose specifically because it is widely viewed as a more humane alternative to the other methods. In that regard, it has to be noted that in states where inmates are given a choice of methods, lethal injection has been chosen by nearly 100% of the condemned.
Now if we grant that capital punishment is morally permissible, and if, as it appears, lethal injection is the most humane method that has been devised, then why the hyperbole about involving a physician? Which is more humane to the condemned man: a physician ensuring that the process is carried out correctly and with minimal pain or that a ham-handed prison guard insert the IVs and ensure the proper dosage and delivery of the various drugs?
A physician no more violates the adage, "do no harm" in overseeing the correct application of lethal injection than he would if he personally had to kill in self defense, or kill an enemy in battle during a war. The state executes an inmate in the exercize of social self-defense, and the physician who assists in this process is not only not violating his oath, he is fulfilling it by helping to ensure that his fellow citizens are protected against the offender.
The North Carolina Supreme Court correctly ruled that a group of unelected physicians with a policy disagreement about capital punishment overstepped their authority in attempting essentially to ban executions in North Carolina by bullying physicians away from carrying out a statutorily-mandated role in ensuring the integrity of the execution process.
What's actually "weird" is that any Catholic would villify these physicians as comparable to Nazis, and foster contempt for a punishment that is not only lawful, but in accord with Catholic teachings.
Wednesday, May 20, 2009
I thought, based on a clarification his camp issued that he was firmly in support of Virginia's capital punishment system.
Now we learn this about his views from a WaPo article in 2007 when he was running for the House of Delegates:
'I escape the conservative model on things like the death penalty, the mentally retarded and the mentally ill,' Cuccinelli said. He added: 'I am modestly more conservative than the district, but she is a lot more liberal than the district.'Look, this is simple. Stick to your core values and beliefs and don't hide them for political expediency. If you believe the death penalty is immoral, don't be a weasel like Gov. Tim Kaine, who believes the death penalty is immoral but signs death warrants anyway.
Cuccinelli's opposition to most expansions to the death penalty and his support for increased funding for the mentally retarded stem from his Catholic faith, he said. His support for better mental-health services comes from representing clients with mental illness in commitment hearings.
Don't tell the Post in 2007 that your faith leads you to oppose expansion of the death penalty and turn around in 2009 and boast that you
voted to extend the death penalty to people who murder trial witnesses, judges and law enforcement officers. And as your Attorney General, I am committed to upholding the death penalty verdicts of our juries and will work to defend and strengthen our capital punishment law from intrusions and attempts by the left
to derail it.
People might conclude that whatever your actual position is, you don't have the moral will to be forthcoming about it.
In 1994, a car carrying Skillicorn, Allen Nicklasson and Tim DeGraffenreid stalled along Interstate 70 north of Fulton in Callaway County.
Drummond [the victim], from the northwestern Missouri town of Excelsior Springs, stopped to help, but was forced at gunpoint to drive the men toward Kansas City. On the way, the men stopped in a rural area, and Nicklasson shot Drummond in the back of the head.
Nicklasson and Skillicorn were convicted of first-degree murder.
Nicklasson is also on death row. DeGraffenreid, who was 17 when the crime took place, served time for second-degree murder.
Supporters wanted Skillicorn's sentence commuted to life in prison, calling him a role model for other inmates. But in denying a clemency request Tuesday, Gov. Jay Nixon noted that Skillicorn was on parole for another murder at the time Drummond was kidnapped, robbed and killed. Nixon also noted that Skillicorn was convicted of two subsequent murders in Arizona just days after Drummond was killed.
A killer killing again, not having been "rendered harmless" by the justice system the first time around. Three people senselessly murdered because this guy was allowed to live after taking someone's life.
The sad truth is, some offenders will not stop killing until they themselves are justly executed.
Thursday, May 14, 2009
This divide was recently illustrated in our own Court of Appeals, where, in an en banc opinion of the whole Court, the question arose of what kind of conduct would be sufficient to establish an "overt act" which, together with agressive words, can constitute an "assault" in Virginia law. The question was a rather technical one and the facts made it a very close case, but the interesting aspect of the majority opinion affirming the conviction was that it was authored by arguably the most "liberal" member of the Court, a judge who more readily reverses convictions than his colleagues.
The dissenters argued that the Commonwealth had not met its burden in showing that the defendant's actions rose to the level of an "overt act" and therefore her words alone could not legally constitute an assault.
The dissenters? Two former 20+ year Commonwealth's Attorneys and a new appellate judge who as a trial judge had no problem convicting defendants in closely contested cases.
One trend I've noted in reading reversal opinions from former prosecutors is that there is often a reference to what the trial prosecutor should have done or could have done differently. Indeed, in this case the dissent offers their advice in a footnote that the prosecutor could have elected to prosecute under a different statute entirely!
I've personally noted this habit in my days as Assistant Attorney General, where in a stalking case the three judge panel, in a two-judge majority opinion authored by a long-time former prosecutor, reversed the conviction. (fortunately the en banc Court decided, 9-2, to reverse the panel and affirm the conviction). The former prosecutor-turned appellate judge had many questions during oral argument centered around why the prosecutor did this or that or did not do this or that, and in his dissent in the en banc opinion noted, "the prosecutor failed to produce more than speculative allusions to evidence of either the appellant's specific intent or the victim's specific fear."
In short, one comes away with the impression that sometimes what sticks out to these former elected chief prosecutors is the quality of the trial prosecutor's performance more than the legal sufficiency of what is actually proven.
A poorly prosecuted case may not be a thing of beauty to a former boss-prosecutor, but it may still be enough to get the job done.
Wednesday, May 13, 2009
Where do we find such men?
Monday, May 11, 2009
I guess Maryland never has to deal with someone like Thomas Ivey, executed on Friday by the state of South Carolina:
Authorities say Ivey’s crime spree began in January 1993, when he and another inmate escaped from the Barbour County Jail in Clayton, Ala., where Ivey was
being held on a murder charge. Ivey and Vincent Neuman busted out of jail, stole a truck and drove to South Carolina, ending up in Neuman’s hometown of Columbia.There, authorities say the pair kidnapped businessman Robert Montgomery, who was working downtown with his janitorial service. Ivey and Neuman drove Montgomery to rural Orangeburg County. Neuman later testified that while there, Ivey shot Montgomery in the head and chest, leaving his body to be
discovered by hunters.Two days later, the pair visited a mall in Orangeburg, where a clerk accused them of trying to pass a stolen check. Harrison responded to the call but let Ivey go when he realized Neuman was trying to use the check.Ivey told police a handgun in his pocket fired accidentally as he walked away, and the bullet ricocheted off the floor, hitting Harrison in the leg. Ivey said he then panicked, shooting the officer five more times, according to court records.
But I have a feeling there are guys like Ivey in Maryland too.
R.I.P, Robert Montgomery and Sgt. Harrison.
Friday, May 08, 2009
Thursday, May 07, 2009
The case is Sullivan v. Florida (summary), and I predicted here that it's the first battle in a long campaign to convince the SCOTUS to chip away at LWOP sentences under the guise of the Eighth Amendment.
This is how the law is used by social engineers who can't succeed in the court of public opinion. Can't democratically outlaw a form of punishment you don't agree with? Chip away at it in the courts.
As this case demonstrates, elimination of the death penalty, a long-time goal of legal activists, is only one part of the agenda for the criminals' lobby. So when they preach LWOP as an alternative negating the need for capital punishment, remember this case and the other sure to follow.
Officials at the California Department of Corrections and Rehabilitation announced Tuesday that they believe 41-year-old David Martinez killed his cellmate, 51-year-old James Lambert. Lambert was found unconscious in his cell on April 19, and died on May 1.
Martinez is serving a life sentence without parole from Los Angeles County
for first-degree murder.
Maybe some other country has figured out how to render these violent offenders incapable of doing harm, but clearly, we haven't.
Hat tip: Crime and Consequences.
Wednesday, May 06, 2009
“Consequentialism”-- this is the term that is supposed to neatly and quickly dispose of anyone who disagrees with Mark Shea or others on the Catholic left who insist that “torture” has been condemned by the Catholic Church as intrinsically evil.
Consequentialism in the pejorative sense meant by this group means basing one’s conclusion about the morality of an action solely by reference to the good end supposedly achieved by the action. In modern times, consequentialism of this kind derives from the utilitarianism of John Stuart Mill, which holds that an action’s practical effects on society are the sole criterion for judging its morality.
This type of utilitarian or consequentialist thinking has wreaked havoc on society, and is used to justify all varities of immoral actions on the grounds that some perceived good lies at the end of the action. So, for example, the bombings of Hiroshima and Nagasaki are viewed as morally good because although they directly resulted in indiscriminate loss of non-combatant life, they shortened the Pacific war and saved perhaps thousands of lives of U.S. troops. Or, the “hard case” of a pregnant mother who will die of complications if the child is brought to term; the child is aborted to avoid the mother’s death; or homosexual marriage, where the "good" of the parties' loving union or the value of "equality" is said to outweigh the societal benefits of traditional marriage.
So it is no surprise to find that some who support the use of methods that might constitute torture resort to straight-out improper consequentialist thinking; it seems to be a common moral error, even among Catholics, probably due to the pervasive influence of this error in society at large.
Sadly some in the torture "absolutist" camp have resorted to shabby straw-man argumentation, claiming that the whole “religious right” (i.e., those who deny that torture is intrinsically immoral) share the same consequentialist rationale as the worst example that can be dug up of that rationale. It’s the simple logical fallacy of guilt by association: If this guy supports torture on consequentialist grounds, all who believe that torture is not intrinsically evil also are guilty of consequentialism.
In this same category of straw man illogical argumentation is the attempt to paint all who support enhanced interrogation methods with the broadest brush possible by citing Charles Krauthammer’s untenable standard, "if you have the slightest belief" torture will save a life, a moral duty exists to use it.
Of course, no orthodox Catholic is suggesting or adopting a consequentialist rationale for enhanced interrogation, that is, that despite the inherent evil of the act, the good end makes the act morally acceptable. Rather, the point they make is simple: the Church has not clearly ruled out torture as an intrinsic evil. The task before us then, is the tough work of moral theology, which is to delineate exactly when and under what circumstances could enhanced methods of interrogation be morally permissible. This analysis of circumstances, proportionality of means, and intent, is the bread and butter of Catholic moral theology, and is used to evaluate use of force in just war and self-defense, what economic practices are moral, and a vast array of moral questions where an act can be moral or not, depending on the intent of the actor, the circumstances, and whether the means are proportional to the ends.
I suspect (for reasons beyond the scope of this posting) that with respect to enhanced interrogation or torture, the conclusion is these methods are moral “only rarely, when other methods have not worked, when an imminent and reasonably discernible threat to life is present, and using methods narrowly tailored to achieve the information sought.”
That's not consequentialism. Quit pounding the table.
Friday, May 01, 2009
I say "enhanced interrogation" by the way, because there is still, at this late date, a great deal of ambiguity about what the term "torture" encompasses. In terms of Catholic morality, "torture" has never been actually defined authoritatively, much less condemned, until (apparently)Veritatis Splendor, an encyclical letter of John Paul II written in 1993. In #80 of that letter, opponents of "torture" find this support for their position:
the Church teaches that "there exist acts which per se and in themselves, independently of circumstances, are always seriously wrong by reason of their object". The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts: "Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator".This is to my knowledge the first and only authoritative source for the claim that torture is intrinscally immoral. Oddly, VS #80 cites to the Second Vatican Council document "Gaudium et Spes" as authority for the claim that the list of wrongs in #80 is intrinsically evil.
But Gaudium et Spes itself makes no such claim, only stating the following:
Furthermore, whatever is opposed to life itself, such as any type of homicide, genocide, abortion, euthanasia or willful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are a supreme dishonour to the Creator.These things are styled "infamies" but the precise claim is not made that they are intrinsically evil, that is, always and everywhere forbidden, regardless of circumstances.
The troubling aspect of the anti-"torture" position is the weight it puts on VS #80's labelling of torture as intrinsically immoral.
It is troubling because the language of VS #80 is exceedingly imprecise, and if one literally takes the view adopted by what we might call the absolutists, certain untenable conclusions follow, as can be illustrated thus:
VS#80 calls "intrinsically evil" the following:
"attempts to coerce the spirit" -- this phrase is ambiguous, but if we take the position of the absolutists who insist on a very strict interpretation of the document, it would seemingly condemn as intrinsically evil even the modest coercion routinely used in police interrogation, where mild methods like temporary isolation in a small room, insistent questioning, and use of verbal trickery are all employed to "coerce the spirit" to obtain a confession. Parents are under a duty at times to "coerce the spirit" of their children through punishment, counselling, persuasion, and invocation of authority. Those in authority in many different contexts rightly attempt to coerce the spirit of those for whom they are responsible.
"deportation"-- Again, strictly reading the document as a condemnation of the named practices as intrinsically evil would lead to the surely absurd result that nations could no longer deport even the worst violators of the public order who enter the country illegally. Again, there is no support in any prior teaching of the Church for the position that deportation is an evil of any sort, much less an intrinsically evil practice that can never be justified in any circumstances. Indeed, even the United States Conference of Catholic Bishops, not noted for being particularly "rightist" or conservative about immigration, acknowledges that in some situations deportation is permissible.
The most unusual application of the "intrinsic evil" label is to what VS #80 in the official English translation calls "homicide." I wondered whether the English rendering "homicide" might be a mistaken translation for a Latin word more properly rendered as "murder," which would make sense when talking about intrinsic evil. I found that VS #80 actually quotes Gaudium et Spes here, and the Latin word used in that document (and in VS) is "homicidia." Homicidia can mean "murder," but is more accurately rendered, as it is the Vatican's own English translation does, "homicide." There are several words more specifically denoting "murder" in Latin, but these are not used in Gaudium et Spes or in VS.
So we are left with VS #80 classifying "homicide" as an intrinsic evil. This is problematic for several reasons, primary of which is that it would directly contradict the Church's long and clearly authoritative approval of Just War, proportional use of force for personal self-defense and defense of others, and the prerogative of the State to resort to capital punishment.
Now VS #80 does list some things that are in fact intrinsically evil, and we know they are because moral reaoning and the Church's long tradition have demonstrated them to be; examples of these are: genocide, abortion, euthanasia, suicide, and arbitrary imprisonment.
But the other items are not clearly intrinsically evil.
Yet the absolutists rest their case on a document which is riddled with ambiguities. There is in VS a mix of some actions that are, and always have been intrinsically evil, and which the natural law itself condemns. There are other things we must conclude are listed as intrinsic evils, which are clearly not, at least in the unqualified way in which they are presented: deportation and homicide, and probably torture itself; and there are items which are hard to describe as intrinsically evil, even while they might be often evil, such as subhuman living conditions, and perhaps torture, if we assume that the word describes a broader range of interrogation methods than the harshest practices it can be used to denote.
So VS in the end is a house of cards upon which to base an objection to torture based on Catholic moral principles. Which is not to say that torture or enhanced interrogation might not be worthy of condemnation for some other reason, or that we might define torture in such a way as to render it intrinsically immoral.
But the attempt by some to paint those who are not hasty enough to denounce all enhanced interrogation methods as lying, foolish, or sinful, based upon their absolutist reading of a very oddly worded encyclical, strikes me as unwarranted.
Thursday, April 30, 2009
Tuesday, April 28, 2009
Vigil, a former district attorney's investigator, thinks the death penalty is a useful tool. In a 2007 case, Jose Luis Rubi-Nava confessed to killing his girlfriend in Douglas County by dragging her behind his car. The threat of the death penalty secured Rubi-Nava's plea, Vigil said."As soon as the death penalty became part of the equation, he pled guilty and got a life sentence," he said.But Vigil also was thinking about moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado.Oh how wonderful! I hope Abp. Chaput, comfy and safe in his Episcopal lodgings, doesn't read the papers or doesn't have friends or family living in a less safe environment than his. If he read the Denver Post for example, he might find this intriguing statement demonstrating that imprisonment does not always protect victims from violent predators (thereby rendering capital punishment a morally legitimate punishment):
Attorney General John Suthers and district attorneys say the death penalty is key to discouraging the worst crimes. The threat of death is the only deterrent left for inmates sentenced to life in prison who might kill a guard or another inmate, Suthers said.
"If you don't have a death penalty, those are free murders," Suthers said. "There remains some crimes, some murders, that anything short of the death penalty is an inadequate societal response."
But the Archbishop doesn't have to work in a prison and interact with murderers who have absolutely no incentive not to attack or kill him. Or as a police officer trying to apprehend an escaped murderer. Or as a hospital worker tending to an incarcerated robber. Or perhaps he doesn't enjoy hiking, and so won't have to worry about a paroled murderer shooting him. But perhaps his Grace would like to put himself into the shoes of the least among us, and imagine himself an inmate in prison, accused by his cellmate of stealing the cellmate's breakfast, and then strangled to death for protesting his innocence.
Or Chaput might have bothered to look at just what kind of offenders receive a death sentence in Colorado and gotten back with us on how any of their cases do not reasonably reflect a judgment that incarceration would be insufficient to "render one who has committed an offense incapable of doing harm." Unless it's now the American hierachy's position that their judgment on this issue of rendering offenders incapable of harm should be substituted in particular cases for that of the jury's, the trial court, and the appellate courts, who presumably know much more about the facts of the case and the background of the offender.
After all, isn't this the same Abp. Chaput who stated "in Catholic thought, war and capital punishment can be morally legitimate under certain carefully defined circumstances"?
I suppose when the media sing your praises on an issue, "Catholic thought," the Catechism, and common sense are optional.
Wednesday, April 22, 2009
Nevertheless, it's time to put this particular argument to bed.
With Obama's release of previously classified Bush era memos, it has become patently clear
that enhanced interrogation practices resulted in specific, actionable intelligence that directly averted terrorist murders of innocent Americans:
interrogation with enhanced techniques "led to the discovery of a [Khalid Sheik Mohammed] plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that "information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the 'Second Wave.' " In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.But wait, there's more:
The Office of Legal Counsel memo states "we discuss only a small fraction of the important intelligence CIA interrogators have obtained from KSM" and notes that "intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of the [Counterterrorism Center's] reporting on al Qaeda." The memos refer to other classified documents -- including an "Effectiveness Memo" and an "IG Report," which explain how "the use of enhanced techniques in the interrogations of KSM, Zubaydah and others . . . has yielded critical information."Of course, the usual whiners will accept nothing less than a Divine revelation as evidence when it comes to admitting that anything the evil Bush did could possibly have been motivated by prudent patriotism, much less that these techniques they so breathlessly condemn actually save lives when used in the correct situations.
But most normal people, who, pace to the pacificist Left, are not moral monsters, and who do not believe in inflicting pain simply for the sake of cruelty, will take these revelations as what they are: good news showing that our intelligence and military officials are doing a conscientious job using reasonable measures to find out what our enemy knows, and prevent further loss of innocent life.
After today's ruling, when a police officer arrests someone in a vehicle, he may only search incident to that arrest if the person is unsecured and might therefore constitute a threat; or if he has reasonable grounds to search for evidence of the crime for which the person is being arrested.
Our man Nino Scalia, again bucking the trend and defying the facile labeling imposed upon him by the Left, would go even further and eliminate the “officer safety” search on the grounds that the police can secure someone first without having to search the vehicle, and he worries that our naughty and conniving police will “abuse the privilege” and delay securing suspects so they can pretextually search the vehicle. Hmmm, thanks for the suggestion, Nino.
Yet again, the justices generally defied “conservative” vs. “liberal” labels, with “liberal” Stevens writing the majority opinion, joined by fellow “liberals” Ginsburg and Souter, and “conservative” Thomas and Scalia. Dissenting, and arguing that the “heavy burden” required to overcome the doctrine of stare decisis had not been met in this case, were “liberal” Breyer and Kennedy and “conservative” Alito and Roberts.
While I generally agree with the Court’s new doctrine:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.I find the silly veneer of Constitutional dogma-in-the-sky rationale annoying: “Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result.”
Up until today’s decision, no one could say with a straight face that these vehicle searches were authoritatively unconstitutional; i.e., no one could soothsay that a practice long sanctioned by the courts, including the US Supreme Court itself, would now with a wave of the judicial wand, become ex post facto unconstitutional.
It’s downright silly and disingenuous to claim, as Stevens does, that all along there has been a constitutional right not to have your car searched if you’re arrested for a traffic offense. He himself catalogues the “checkered history” of this area of law, pointing out that prior to Chimel and Belton, the rule wobbled back and forth between a more expansive search incident to arrest doctrine and a more restrictive one. That pendulum has simply swung more restrictive today, not because of Stevens obeying some Constitutional-dogma-in-the-sky that only he, the high priest, has been mady privy to, but because 5 justices decided they disagree with Belton, a 28-year precedent of their own Court.
At any rate, wherever you land on the question in this case, it’s a truism that as Alito argues, this new doctrine
reintroduces the same sort of case-by-case, fact-specific decision making that the Belton rule was adopted to avoid. As the situation in Belton illustrated, there are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence in the passenger compartment of a car.
And while we're getting all dogmatic and tender for the supposed true and historical meaning of the Fourth Amendment, as Scalia pontificates, and since we're just casually throwing precedent overboard, how 'bout throwing out that not-found-anywhere-in-the-Constitution-or-in-the-"Original Understanding" exclusionary rule?
Monday, April 20, 2009
HT: A Public Defender
and the take down of those ragheads holding phillips
Radm Lou Sarosdy USN Ret. writes The real story of Obama's Decision Making with the hostages.
Having spoken to some SEAL pals here in Virginia Beach yesterday and asking why this thing dragged out for 4 days, I got the following:
1. BHO wouldn't authorize the DEVGRU/NSWC SEAL teams to the scene for 36 hours going against OSC (on scene commander) recommendation.
Despite the Obama administration’s (and its sycophants’) attempt to spin yesterday’s success as a result of bold, decisive leadership by the inexperienced president, the reality is nothing of the sort. What should have been a standoff lasting only hours — as long as it took the U.S.S. Bainbridge and its team of NSWC operators to steam to the location — became an embarrassing four day and counting standoff between a ragtag handful of criminals with rifles and a U.S. Navy warship.
Tuesday, March 24, 2009
Scalia made the remarks in response to Frank's comments that he feared a Supreme Court ruling on homosexual marriage because of the sway held by "that homophobe Antonin Scalia."