"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

Wednesday, January 28, 2009

Mankind: the Enemy?

From the hell is other people front:

Assume it's true, as some argue, that dropping crime rates in the late 90's can be explained by the in utero killing of the next generation of potential criminals beginning in the 70's.

Playing his own consequentialist moral game for a moment, when will the same author (Steven D. Levitt), who is an economist and statistician, balance the ledger by informing us of the lost social benefits of this same eliminated group? The lost tax revenue their work would have generated? The lost contribution they collectively would have made to the social security program, which is hurtling towards insolvency because soon many more will take out than put in? The lost creative, inventive, economic, and artistic contributions that cannot be precisely quantified?

In short, where's the full picture that balances the speculative and inexact "benefit" of pre-emptive capital punishment of the "criminal classes" (long a goal of population control advocates) with the enormous, quantifiable loss to society from the destruction of our most valuable resource, our people?

Apparently some in Washington are buying into this theme of humanity as the enemy: Nancy Pelosi on ABC advocating funding of contraceptives as economic stimulus because if babies are born, they might consume government resources.

And to think of the hand-wringing over capital punishment by some (lives claimed--of the guilty after fair trial and numerous appeals--: 1,136 since restoration of the death penalty in 1976) when abortion has claimed 49,551,703 innocent American lives without trial, without representation, without appeal.

Talk about straining at gnats.

Wednesday, January 21, 2009

Is "The System" Broken?

Crim defense lawyer Mark Bennett takes some exception to prosecutor Ken Lammers' suggestion that aspiring lawyers consider practicing on both sides of the divide before choosing a permanent roost. I think it's a pretty practical suggestion, not just for criminal law practice, but for any type of practice, because if nothing else, seeing what happens from the opposing side can only help make one a better advocate for the side you ultimately choose.

But what struck me was Bennett's rationale for declining the invitation. See, he thinks "The System" is "broken" and therefore no one should cooperate in its process of convicting and imprisoning offenders. He thinks:
the system doesn’t work, period. Even with zealous advocates on both sides, innocent people — that is, factually-innocent people — get convicted of crimes and sent to prison. No system that sends a single innocent person to prison deserves our loyalty. No system that sends a guilty person to prison for a day longer than necessary deserves our loyalty. Let the prosecutors, cops, and judges try to maintain this broken system. Your duty to do right trumps your duty toward the system. We criminal defense lawyers, at least, should be looking for ways to change it for the better or, failing that, to burn it down and start afresh.

What's truly remarkable about this oft-encountered sentiment (encountered amongst defense-oriented blogs, anyway) is how little understanding it reveals of what the system IS (never mind the mastubatory, self-congratulatory, revolutionary chic rhetoric).

News flash: we live in a world full of imperfection and sin. This encompasses both the criminals and the flawed people who run "The System."

Nevertheless some way of identifying criminals, trying them, and punishing them must be established, unless one advocates simple anarchy. Given this task, our Western justice system, which even Bennett admits is "the best," has come up with this rough approach:

We have public officials who investigate crimes and arrest the offenders they believe are responsible. These offenders have a right to be represented in their trial by well-educated and professionally certified lawyers whose only duty is zealously to represent their interests in the case. The government is also represented by the same class of lawyer, whose duty is not to obtain convictions, but to ensure that justice is done; and there are judges (or a jury) who decide whether the government, upon whom the burden of proof rests, has proven its case beyond a reasonable doubt. Then, and only then may an accused be convicted and sentenced. After that, the accused has a right to several varieties of direct appeals depending on the jurisdiction, and after that, to habeas corpus review, ordinarily directed to whether his trial attorney did an adequate job representing him.

Now where I suspect the rub is for many defenders, is that pesky "beyond a reasonable doubt" part. This is primarily (but not exclusively) where the potential exists for a factually innocent person to be convicted.

But if one understands that the system itself impliedly allows for the potential of a certain number of innocent people being convicted (by not demanding a standard of "absolute proof" or "proof to a metaphysical certitude") then it can be understood that the system is no way broken simply because some very small number of mistaken convictions occur.

In sum, we do not, and have never had, a system that adopts the old saying of Blackstone, "better that ten guilty persons escape than that one innocent suffer" in the sense that we fashion our system to be absolutely infallible in assigning guilt. There is, in effect, a built-in error rate inherent in the process.

I'm interested in the alternative that Bennett and others would have us adopt and how it would avoid the pitfalls of laziness, incompetence, and indifference inherent in any system peopled by... people. In recent times, after all, the courts have created out of whole cloth many new obstacles for conviction, such as the exclusionary rule, "Miranda" warnings, and the erosion of peremptory jury strikes, which defendants and clever lawyers like Bennett exploit in avoiding conviction.

While no one wants to see an innocent person convicted (and thankfully the error rate is extremely low), society has seen fit for a very long time to risk the small error rate, rather than create a system that would release many more factually guilty offenders and create very little deterrence for criminals. That there is much dissatisfaction with "The System" among defense lawyers is not surprising... no one likes losing alot, and defense attorneys frankly lose alot.

What is more disturbing is the approaching loss of public confidence that "The System" convicts and adequately incarcerates enough of the guilty (OJ, anyone? And see examples here).

Wednesday, January 14, 2009


Ricardo Montalban... "I like what they've done to my car."

New-found Passion for Law and Order on the Left Coast

You may have seen this video of a BART officer shooting a cuffed, prone suspect:

The incident has caused riots in the Bay area, which for some curious reason have been directed at black-owned businesses. Of course, because the officer is white and the victim black, the racism template is in play, whereby anything bad that happens to a black suspect at the hands of a police officer is presumptively an act motivated by racism. Now, never mind that no one knows (yet) whether racism actually motivated anything that happened in this case: the race of the parties involved is all one needs to know, after all.

Nevertheless, the officer, Johanes Mehserle, has been charged with murder by the Alameda County DA.

The DA was quoted as saying: "At this point, what I feel the evidence indicates, is an unlawful killing done by an intentional act and from the evidence we have there's nothing that would mitigate that to something lower than a murder."

I think if the defendant intentionally killed the victim, he's probably got a good insanity defense, since the crime was committed in full public view on a crowded train platform, surrounded by other police officers.

Isn't it more probable that the likeliest explanation is the truth? That for whatever reason, whether it be that this officer in the excitement and adrenaline rush thought he was deploying his taser, not his firearm, or simply that, having (even if unecessarily) drawn his firearm, he negligently but accidentally fired it?

And if the firing was not intentional but accidental, the crime should be no worse than manslaughter.

Take a look at this view of the incident. With the audio, some things become clear: the police had to have known that everyone was watching what they were doing. When the shot is fired, the officers act surprised. It looks alot like a reaction one would expect from an accidental discharge.

Will this defendant receive a fair trial in Oakland, given the vast press coverage and the injection of race into the shooting by the usual agitators? I dunno, but one thing grimly humorous has come from this mess: you can read here (as just one example) all about the conversion to a strict law and order mentality, including favoring the death penalty, of various leftists and libertarians.

Wednesday, January 07, 2009


Politics is a strange business.

Some on the left are wringing their hands about the appointment of our own beloved governor of Virginia, Tim Kaine, to head the DNC. Why are they unhappy? Because in their view Kaine is "anti-choice, anti-gay and anti-stem cell research." The reality of course is much different, Kaine is none of those things, in fact he is simply a typical unprincipled politician. While professing to be morally opposed to the death penalty, he signs death warrants as governor when he could commute those sentences.

And he is on record as opposing the repeal of Roe v. Wade, and were he not in Virginia, where even Dems have to be somewhat moderate, he would no doubt be in favor of unlimited abortion. (never mind the incomprehensibility of being in favor of the legal slaughter of innocent infants while being opposed to the execution of thoroughly culpable murderers, all the while posturing as a good old Irish Catholic).

Memo to the left: don't worry, he's one of you.

On the other hand we have the political spectacle of Roland Burris, former Illinois AG, and Rod Blagojevich's pic for Obama's vacated US Senate seat, who as AG continued to prosecute against the wishes of his own staff the wrong man for a capital murder to which someone else had confessed. He was running for governor and didn't want to appear soft on crime-- yes, shocking, another unprincipled politician.

Yet rather than oppose him for this singularly sufficient reason, the dems after weakly professing to oppose him because their corrupt colleague picked him, appear poised to cave in and seat him in the Senate.

These two guys are the worst example of political cowardice: despite their personal opposition to capital punishment one declines to exercize his commutation power, no doubt fearing the political ramifications, and the other would watch an innocent man sentenced to death, so he could appear tough on crime to win an election.

RIP, Avery Dulles

I somehow missed the news that Avery Dulles has died. This interesting man, a scion of venerable WASP lineage, he became a Catholic, a jesuit priest and ultimately a cardinal.

Among other notable accomplishments, Cardinal Dulles shattered the notion that the Catholic Church is "against" the use of capital punishment. Some, even some bishops, even some cardinals, struggle with the idea that while the Church urges certain conditions upon use of the death penalty, She does not preclude its use altogether.

Cardinal Dulles rightly saw the continued assault on capital punishment by liberal Western democracies not as a sign of religious sensitivity, but rather as a sign of the increasingly materialistic, anti-supernatural philosophical stance of these post-Christian societies.

What a shame, therefore, that some otherwise orthodox Christians fall into the trap of confusing abolition of capital punishment with Christian charity.