"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, April 30, 2009

Picking Our Robed Masters

In Virginia, all trial-level judges are selected by the local legislative delegation, which forwards the names to the General Assembly, which routinely votes to appoint the candidate selected by the local delegation. When a vacancy occurs or the delegation cannot agree, the governor can make interim appointments.

Re-appointment (at 8-year terms for circuit judges and 6-years for district judges) is usually routine and automatic by vote of the General Assembly. Occasionally, but rarely, a sitting judge will not be re-appointed if there has been egregious incompetence.

While the system of picking judges in Virginia is in my view highly preferable to direct election by the public (see some examples of judicial electioneering here), there is much to be said for efforts to reform the back-room dealmaking that too often occurs in the selection process.

Now enough discontent has surfaced among the public that a group calling itself the Pitchfork Rebellion is seeking to change the way judges are selected and re-appointed.

Apparently the group seeks transparency in the selection process and term limits (judges currently can be re-appointed indefinitely until age 70).

While it is a worthy idea to open the selection process up to public scrutiny, term limits are a bad idea in my view, since there are many capable and experienced judges and there is no reason they should not serve indefinitely, subject always, of course, to the scrutiny and re-appointment vote of the General Assembly at 6 or 8 year intervals.

Tuesday, April 28, 2009

Catholic Bishop Endangers Colorado Residents

Apparently Denver Archbishop Chaput is being credited for having an important hand in the Colorado House's decision to abolish capital punishment. The story goes that a 32-32 tie in the legislature was broken when one legislator underwent the following process:

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

Rain Found to Cause Dampness, Part II

OK boys and girls, say what you will about the compatibility of enhanced interrogation with Catholic principles (more on my views on this here), one recurring theme amongst the kid gloves, tea and crumpet set is that "torture" simply does not work and never provides actionable intelligence. Why this matters to the effetes I'm not sure, since they hold no physical or mental compulsion of any sort to be ever moral in any circumstances.

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.

A Reading from the book of Stevens...

Today the SCOTUS issued from Mt. Olympus a new doctrine for the masses. Before today, if an officer arrested someone in a vehicle, the vehicle could then be searched, even if the person had been cuffed and taken down to the station.

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

Newsflash: Rain found to Cause Dampness

And in other news, defense lawyers' fancy-titled group, the Constitution Project, finds a burning need for more defense lawyers, lower case loads for defense lawyers, and more pay for defense lawyers.

How surprising.

HT: A Public Defender

Oh, and I almost forgot...

Happy 420 Day, everyone!

No Crown for Homophobic Ms. California

wow. Apparently now you can't even apologetically say, "shucks, ya know, I think marriage is between a man a woman" and become Ms. America. I don't know who this, ahem, guy, Perez Hilton is, but you can see his clear disapproval for such a politically incorrect answer. Apparently this queer and proud fella mistook the cheers that greeted Ms. California's answer for boos, which is odd given the clear evidence of the video footage.

Nah, Couldn't Possibly Have Happened This Way

For what it's worth, this is making the rounds... unverified as yet, but certainly sounds right on.

What really happened on the U.S.S. Bainbridge
and the take down of those ragheads holding phillips
just received this version and given the players in the white house, sounds much more plausibe
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.
2. Once they arrived, BHO imposed restrictions on their ROE that they couldn't do anything unless the hostage's life was in "imminent" danger
3. The first time the hostage jumped, the SEALS had the pirates all sighted in, but could not fire due to ROE restriction
4. When the navy RIB came under fire as it approached with supplies, no fire was returned due to ROE restrictions. As the pirates were shooting at the RIB, they were exposed and the SEALS had them all dialed in.
5. BHO specifically denied two rescue plans developed by the Bainbridge CPN and SEAL teams
6. Bainbridge CPN and SEAL team CDR finally decide they have the OpArea and OSC authority to solely determine risk to hostage. 4 hours later, 3 dead raggies
7. BHO immediately claims credit for his "daring and decisive" behaviour. As usual with him, it's BS.
Read the following accurate account.
Philips’ first leap into the warm, dark water of the Indian Ocean hadn’t worked out as well. With the Bainbridge in range and a rescue by his country’s Navy possible, Philips threw himself off of his lifeboat prison, enabling Navy shooters onboard the destroyer a clear shot at his captors — and none was taken.
The guidance from National Command Authority — the president of the United States, Barack Obama — had been clear: a peaceful solution was the only acceptable outcome to this standoff unless the hostage’s life was in clear, extreme danger.
The next day, a small Navy boat approaching the floating raft was fired on by the Somali pirates — and again no fire was returned and no pirates killed. This was again due to the cautious stance assumed by Navy personnel thanks to the combination of a lack of clear guidance from Washington and a mandate from the commander in chief’s staff not to act until Obama, a man with no background of dealing with such issues and no track record of decisiveness, decided that any outcome other than a “peaceful solution” would be acceptable.
After taking fire from the Somali kidnappers again Saturday night, the on scene commander decided he’d had enough.
Keeping his authority to act in the case of a clear and present danger to the hostage’s life and having heard nothing from Washington since yet another request to mount a rescue operation had been denied the day before, the Navy officer — unnamed in all media reports to date — decided the AK47 one captor had leveled at Philips’ back was a threat to the hostage’s life and ordered the NSWC team to take their shots.
Three rounds downrange later, all three brigands became enemy KIA and Philips was safe.
There is upside, downside, and spinside to the series of events over the last week that culminated in yesterday’s dramatic rescue of an American hostage.
Almost immediately following word of the rescue, the Obama administration and its supporters claimed victory against pirates in the Indian Ocean and [1] declared that the dramatic end to the standoff put paid to questions of the inexperienced president’s toughness and decisiveness.
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.