Tuesday, April 30, 2013

I love a good feud

I have to confess, I'm kind of in love with this ricin case. It started out seeming like an anthrax copycat. Remember how the anthrax stuff happened in the shadow of 9/11? And now we had the Boston Marathon bombing followed quickly by news that a Senator and the President both had letters sent to them that might have another deadly poison in them.

Then we quickly started hearing that they knew who the sender was. Another politician, from Mississippi like the targeted Senator, made some comment like, "Oh, yeah, we know this guy. We hear from this guy a lot." It reminded me of the way some district courts undoubtedly feel when they get yet another pro se filing from a particularly squeaky wheel defendant.

Then they identified their suspect and we found his Facebook page. And, oh, it was glorious! He's an Elvis impersonator! And he believes the government is behind a massive conspiracy to sell organs. (Or something like that, I'm not quite clear because his rantings weren't all that coherent.) In short, he seemed like exactly the kind of wacko who would threaten government officials. And he signed off with the very same signature line those letters ended with!

But then it got so much better! Because he was released without bond. Seems like an awfully lenient action for a defendant charged with threatening the President... The first hint I saw of where this case would eventually lead was on the message boards of nbcnews.com, where someone swearing to be from Mississippi wrote that everyone locally knew that he'd been released because he'd been framed by another guy who had it out for him. Turns out a search of the Elvis impersonator's property yielded absolutely no hint of anything ricin-related. And now that we think about it, it's awfully convenient that the letters so clearly mirrored his words that are prominently displayed on the internet. Why, it's exactly how another guy would sign off on those letters if he wanted this guy to be the suspect...

And sure enough, that new guy's property was searched and he was arrested at something like 3 a.m., which is a pretty good indicator they are a little worried about the guy. So now this new guy was denied bond. And officials say that a search of his property did yield ricin-related evidence. (I will say, this guy's only a Karate instructor, which is less fun than an Elvis impersonator, so that's a bummer.)

So now the question is did the karate instructor really want to target this Senator and the President? Or is he just after the Elvis impersonator? If it's a big feud, it's probably the latter, right?

I really love a good feud. I love the idea of some wacky, small town feud getting so big and so over-the-top that it results in one guy threatening the President and framing the other guy for it. We have one county here in Kansas that is known for its crazy feuds. Well, known to criminal defense attorneys, anyway. But our feuds result in gun shots to the leg and showdowns in parking lots with baseball bats. Nothing like sending deadly poisons to the capitol. That, my friends, is commitment to the feud.

And it is fantastically entertaining.

Friday, April 26, 2013

Yes, there should.*

I was making my regular internet legal news rounds this morning when I spotted this headline on Slate:

Should There Be Female Guards in Men’s Prisons?

Well, I have a definite opinion about that and that headline raises one big, glaring question in my mind, so I read. I'm honestly not entirely sure of the author's point or how he would answer his own question. (Seriously, people get paid to write stuff like this?? Where's my contract with Slate?) But he starts off the piece by noting surprise to learn that women do work as guards in men's prisons.

My question is: would he be surprised to learn that men work as guards in women's prisons? He never once mentions anything about that. From the main focus of his article, he should. The article that prompted him to realize that women do work in men's prisons was about prison corruption with a heavy dose of inappropriate sexual contact between the inmates and the guards. So he really should have worried about male guards in female prisons as, I can assure you, there are all sorts of sexual shenanigans in those facilities, as well. If the author's concern is about guards being susceptible to engaging in inappropriate relationships with inmates, shouldn't the concern be equal the other way? But lesbians would be ok in men's prison while gay men aren't?

The problem with prison guards engaging in any sort of inappropriate or corrupt behavior isn't limited to sexual shenanigans. The solution shouldn't be, either. The solution should be to weed out bad guards, by things like paying guards better so they aren't tempted, impose serious sanctions on them, etc.

This article didn't have to be sexist. If the author wanted to have a worthwhile discussion of whether we couldn't remove sex from prisons by having men guard men and women guard women, he could have started that. I would think it was wrong to limit guards by gender, but at least it's a fair argument as compared to limiting the question to women working in men's prisons. But he didn't do that, did he? So, yeah, gotta call Sexist.

*Every time I go to prison, I'm a little glad to know I'm not the only woman those guys will see all week.

Sunday, April 21, 2013

Sophie's Choice for the criminal defense attorney

This criminal defense attorney has a lazy Sunday. No pressing deadlines (for once). No pressing chores, having already gone grocery-shopping and washed dishes. And no baseball to watch, as my Royals beat the Red Sox in game 1 and game 2 doesn't start for a couple of hours. (And, yes, I still rooted for the Royals 'cause I still hate America.)

So I did a little channel surfing and my little defense attorney heart leapt when I saw "My Cousin Vinny" was at that very minute starting on Comedy Central. No criminal defense attorney can turn away from "Vinny" as we all dream of conducting such perfect cross-examinations and having that brilliant moment of completely proving our client's innocence in open court.

But I'm not a naturally content person. So even after finding this on t.v., I still had to surf through the rest of my offerings. And what did I find? "A Few Good Men!" Also just starting. Gah! Because that's the other movie no defense attorney can turn away from! That sweet move during the Noah Wyle cross where Tom Cruise takes that book right out of Kevin Bacon's hand without missing a beat. The great cross of Keifer Sutherland. And, of course, that moment when he goes for it against the Colonel and gets him! We all probably know Nicholson's big speech by heart.

What is a couch potato defense attorney wanting to enjoy a lazy Sunday to do??

How we know Dzhokhar Tsarnaev is just a garden variety criminal defendant




"He lost his rights the moment he killed people"

"He's clearly guilty, so a trial is a waste of time"

"He's a waste of oxygen"

Read any crime story on any internet site and you will find these words in the comments section. People will say these things about people accused of child molestation, rape, robbery, murder, whatever. They'll also rant about the scumbag lawyers who defend these subhumans, the criminal justice system that grants them more rights than the victims, the "technicalities" that threaten to set these guys loose. Undoubtedly, they'll proclaim that those who have the nerve to defend the rule of law, due process, the 4th, 5th, and 6th Amendments, would feel very differently if our own loved ones had been the victims.

This weekend, we're seeing all of these comments being made about the surviving Boston bombing suspect.

And my responses have been the same. Constitutional rights apply to all people, regardless of how heinous the accused crime is. The Constitution is not a technicality. I'd feel the same because I'm committed to the rule of law. We can't allow our baser emotions to take control such that we abandon our most fundamental principles, etc.

And the big one I always repeat to those who say a trial is a waste of time or who would already label a suspect a murder, a molester, a terrorist: Who gets to decide which cases are so clear-cut on guilt that we can skip the trial? If there is some class of cases wherein guilt is so obvious to all, we can skip the trial, there has to be someone or some body in charge of deciding which cases are in that class. Perhaps it should be more than one person, to limit the influence of bias and to make sure the decisions aren't arbitrary. And probably we should make all of the people involved in the decision agree on the decision, so we can be confident it's the right decision. We should probably have that decision-making body be representative of a good cross-section of society. So maybe something like 12 sounds good?

Oh, wait. Sounds an awful lot like a jury! Which is the mechanism we already use for deciding if someone is guilty of murder or molestation. So maybe that's how we should decide which cases are the really clear-cut cases of guilt, too. That's the argument I always make to those people who insist some people are so obviously guilty, we should skip the trial part.

It's the same argument I'm making today to people who insist Tsarnaev is a terrorist and should be labeled an enemy combatant, shouldn't get a trial.

All the same arguments are being made by the hang-'em-high crowd and the rule-of-law crowd in this case as get made in every discussion of every other criminal case out there. Further proving this case, this crime, these accusations, should be handled in the exact same way. In a criminal trial in civilian court, open to the public and the press, with a jury of 12, and wherein the government must prove the charges beyond a reasonable doubt.

Saturday, April 20, 2013

I'm just a fame whore who hates America

I think my rants about the Boston marathon bombing are going to be numerous. Two things have just happened.

First, I saw a man proclaiming himself to be a defense attorney suggesting that the Boston Federal PD's office wants to get involved in defending the guy because it's a high-profile case. So those schmucky defense attorneys just want to make names for themselves.

For crying out loud! This nonsense was uttered by someone who defends accused criminals in courts and he thinks the federal PDs (who rightly assume they're the likeliest people to be assigned to represent this guy, at least to start, and have therefore indicated their desire to get involved right now) are motivated by publicity to get in on this case. This tv pundit is the kind of "defense attorney" I would kick out of my profession if I could. Just this morning, my fellow Kansas defense attorneys and I were pondering how long it would take us to get barred in Massachusetts so we could go there and offer our services to this guy. Were we motivated by a desire to see ourselves on camera? Of course not! We are deeply offended at the idea that our government is denying this guy his basic Constitutional rights and we want to put a stop to it. Sheesh. We're not attention whores; we're committed defenders of the Constitution.

Then a friend reported someone on her Facebook feed suggested that the Kansas City Royals should just let Boston win today. I'm currently watching the game, wearing my Royals fleece, and rooting for my team. I will be deeply disappointed if my boys don't win today because a) we have a lead in the 8th inning and b) we've finally got a real team, solid in all aspects, starting pitching, bullpen, hitting, and fielding (best dang defense in the AL) so I have hopes of playoff contention and that means we can't give away games. As I was typing, Big Papi hit into a double play and I cheered. Guess I hate America.

The Boston bombing suspect is a criminal defendant. Period.

No, the surviving suspect in the Boston marathon bombing is not a good candidate for enemy combatant status. He is a good candidate for a good, old-fashioned criminal trial in a regular old American criminal court. Because what happened at the Boston marathon was fundamentally a crime. Yes, it was committed through the detonation of explosives, just like the Oklahoma City bombing. Yes, it terrorized those who were at the scene and in the city, just as the first World Trade Center bombing freaked people out. Yes, just as those and other incidents, it qualifies for the label "terrorism." (As in meeting the dictionary and statutory definitions; not as in involving Al Qaeda or some other organized group acting as some kind of war machine in an active, on-going campaign against the United States.)

And just like those other incidents, it should be handled by a civilian, criminal court. With a jury and a judge and defense attorneys and all of those pesky rights the Bill of Rights guarantees to all. (I'm not going to point out it guarantees those rights to all regardless of citizenship because this particular suspect is a citizen.) That anyone anywhere, let alone United States Senators, are even posing the question of whether this case should be handled in a regular old criminal court is terrifying. Of course it should. He's accused of committing a crime. As a person accused of a crime, he has rights. It is at all of our peril for us to suggest that the nature of the crime means he should not be treated like every other criminal defendant.

It's also terrifying that the Justice Department thinks the Fifth Amendment doesn't have to be followed in this case of a 19 year-old American citizen accused of committing a crime on American soil for reasons we can only guess at right now. We assume it's politically-motivated terrorism that might involve a wider conspiracy and might even be connected to terrorist organizations from other nations. Sure, could be. But this kook could also have been motivated by not wanting to disappoint an idolized older brother. He could just be a 19 year-old angry boy-man who wants to see the world burn. And even if it was politically-motivated terrorism, it's still a crime. The prosecution of crimes in this country, even really bad ones, are governed by certain rules. Rules we thought were so important, we enshrined them in our original founding document, our national charter. Originally, those rights outlined in the Bill of Rights weren't included in the Constitution, but it became clear that the Constitution wouldn't be ratified without them. Those who opposed a Bill of Rights argued that it wasn't necessary because the government wouldn't be able to violate those rights, but others insisted that if we didn't explicitly tell the government it had to respect certain rights, ultimately it would violate those rights. Seems the proponents were right not to trust government, but were overly-optimistic when they thought a written Bill of Rights would stop the government from ignoring those rights.

It is indefensible to treat this particular suspect as something special, someone different from every other criminal who has wreaked havoc and killed people.

The Columbine High School attack also involved explosive devices. I seriously doubt that anyone would have advocated labeling those perpetrators as "enemy combatants" had they been captured alive. No one thought about treating Timothy McVeigh as something other than a criminal defendant. Yes, those two incidents both pre-dated 9/11. But let's not pretend that the fact that these guys were all white guys born in the US doesn't factor in as well. Would we be talking about treating the surviving Tsarnaev as an enemy combatant if he hadn't been born somewhere else? If he didn't have ties to Chechnya, a region where organized terrorism is common? If his social media profile didn't list his worldview as "Islam?" It should bother us tremendously if his religion and/or nation of origin causes us to treat him differently.

Ultimately, I don't think whether this kid will talk with interrogators, even high value interrogators from the CIA, comes down to whether he is informed of his Fifth Amendment rights or not. If he wants to talk, he'll talk. If he doesn't, he won't. Lots and lots of bad guys have agreed to talk and have declined to "lawyer up" after hearing the Miranda warnings. I'm not convinced we gain much by refusing to respect the Fifth Amendment and the Miranda rule. But we lose a lot. We lose a lot of ourselves, of who we are if we allow our actions to be dictated by those who commit crimes against us. We never further our national interests by abandoning our most fundamental principles. If we allow those who attack us because they hate our most fundamental values to make us abandon those principles, well then those terrorists have won. And we let them.

Tuesday, April 16, 2013

The Central Park Five

Right now I'm watching a documentary on the Central Park Five, the five young guys (at least some of them juveniles) who were railroaded in the Central Park jogger case. (Yes, this is how I spend my free time. It's not news that I'm a big, nerdy crim law junkie.)

Watching this is making my blood boil. That case was such a travesty. Boys as young as 14 were interrogated for hours, badgered, fed stories until they gave incoherent, inconsistent statements that they didn't even realize were confessions to this horrific, high-profile crime. And after extracting these ridiculous statements, all the police and prosecutors got to run around, high-fiving themselves because they'd solved the case, and so quickly, too! Yay good guys!

Ok, so the confessions are all inconsistent. And so none of them seem to know the where or when or what of the attack. That's not a problem, because we know we got the right guys.

Boy, it's got to make cops feel really good, like they're doing super awesome work to get scared boys between 14 and 16 to confess to this brutal rape and battery. And how easy that will make it to get them all convicted. Woot!

I mean, it's a bit of a concern that all of the DNA of the attack matches some mysterious 6th person who isn't mentioned in any of the confessions. And it's awfully odd that only that mysterious 6th person left any physical signs while the other 5 left nothing.

But no matter because we beat confessions out of those other kids and they all must have just forgotten to mention the main perpetrator.

Oh and then there's this guy who has been raping other women on the east side of New York. Who was spotted having fresh stitches on his face just days after the Central Park jogger case, when we know the jogger scratched her attacker. But somehow it never occurred to any of the police or prosecutors to check that guy's DNA against the unknown DNA from this case.

Because, see, they had the guys. They had confessions.

Somehow it never occurred to prosecutors and police in the city to notice how inconsistent the confessions all were until over a decade later when that other rapist confessed to the crime and his confession was corroborated by DNA tests. Now, they've allowed the convictions of the Central Park Five to be vacated, though many police still insist they were accomplices to the actual rapist.

This case is a tremendous testament to the power of the confession. No matter how inconsistent a confession is to the known facts of a crime, to the confessions of other co-defendants, no matter how utterly incoherent it is. People believe in a confession. Period. Because people just won't, or can't, believe that people ever falsely confess. So it's with this mindset that cops badger and harass and threaten and coerce and hammer away until they get a confession. And then once they get that confession, no other evidence matters.

But, good grief, if you have to work that hard to get a wishy-washy, not-quite-implicating-himself, incoherent mess of a statement that isn't consistent with the facts of the case or the other equally wishy-washy inconsistent mess of statements from the other co-defendants, maybe that "confession" isn't worth the paper it's written on.

The real criminals in this case are the actual rapist and the police detectives who extracted those crap confessions from boys. But those cops will never suffer any consequences. They probably still think they're the good guys who got good statements that led to the right guys. And it makes me absolutely furious.

Thursday, April 11, 2013

So there's this bar in town where all the cool kids go on Thursday night for half-price martinis. Martini night. And at this bar, there's the one table that all the cool kids want. It's in the corner. Everyone tries to reserve that table for Thursday night.

But just so we're clear. You can all try. You can all request that table. You can make your reservations an hour early, you can make your reservations a week in advance. But when we ask for that table, we get that table. Even if you're not done yet, you will be physically removed from our table to another table in the bar. Because at 6 pm on Thursday, if we want it, that table is ours.

It's wrong that I enjoy this as much as I do.

Let's go KC!

I don't know if you caught this, but I am a dedicated Kansas/Kansas City gal. Love my Jayhawks. Love my Wildcats. My Royals, my Chiefs, my Sporting. I love all things KC, the only decent thing about the cesspool that is Missouri.

So tonight, I am proud. One of the grandest things about my city is the Negro Leagues Museum. You can't talk about the history of baseball without talking about the Negro Leagues and if you love baseball, as I do, you have to make a pilgrimage to that museum. (But please don't get me started on what a sin and shame it is that Buck O'Neill never made it into the Baseball Hall of Fame, because that is a blight on the game of baseball that all baseball fans should be ashamed of.)

Anyway, tonight, the movie "42" about Jackie Robinson's introduction into the Major Leagues had its premiere. Not in Hollywood or NYC. But right here, in Kansas City, home of the Negro Leagues Museum. What a beautiful, proud moment for my city. And, no, it's not just because Han Solo/Indiana Jones is here. Although that does help.

Wednesday, April 10, 2013

A quick little lesson on circumstantial evidence

I get really annoyed whenever I hear anyone ranting that someone was convicted despite there being no "real" evidence against the guy. It was all circumstantial! As if circumstantial evidence is this big bogeyman of evidence that should not ever be trusted, or even allowed in court. It reminds me of the way people rail against hearsay because they have absolutely no idea what the words actually mean.

So let's be real clear. There are two categories of evidence: direct evidence and circumstantial evidence.

Circumstantial evidence is any evidence other than personal knowledge or observation of the facts in question. It's called circumstantial because it is a circumstance from which guilt can be inferred. If you break down that definition, as we did in evidence class oh so many years ago, you come to realize that direct evidence boils down to pretty much one thing: the testimony of eyewitnesses to the incident, which includes confessions.

Anyone who was there at the scene of the crime has personal knowledge of it. That person observed the incident.

Anything else is circumstantial evidence.

So when we're talking about evidence produced at a criminal trial, let's go through some examples to think about what is direct evidence of guilt and what is circumstantial evidence.

  1. A co-defendant testifying against the defendant, detailing their actions, should be easy. That's direct evidence.
  2. A witness testifying she saw the defendant come stumbling out of the building covered in blood and holding a bloody knife 5 minutes before the stabbing victim is found? Unless that witness personally observed the defendant plunging the knife into the victim, it's circumstantial evidence of guilt. It is certainly compelling evidence, but it's circumstantial.
  3. The defendant's DNA at the scene of the crime or fingerprint on the gun is circumstantial. It doesn't prove that the defendant was at the scene committing the crime (or even at the time of the crime) or pulling the trigger. It's just a circumstance that makes it really easy to infer the defendant's guilt, but you still have to draw an inference to get to guilt.
  4. Evidence from a red light camera that your car drove through the intersection at a time consistent with leaving the crime scene is circumstantial.
  5. Evidence that you hated the victim is circumstantial.
  6. Pretty much any other evidence you can think of is circumstantial.
Circumstantial evidence isn't bad or scary or inappropriate. It's just the vast majority of evidence. Without circumstantial evidence, most criminal cases would never be able to proceed to trial. The whole point of a prosecution case is to lay out for a jury all the little circumstances that piled together make it nearly impossible to reach any rational conclusion other than that the defendant committed the crime.

A lot of people think physical evidence is not circumstantial evidence, which strikes fear into my heart. Because what they're really saying is it is ironclad proof of guilt. So a defendant's fingerprint on the murder weapon doesn't need to be analyzed to determine if it has any probative value because it is direct proof that the defendant pulled the trigger. But that isn't right, not at all. A fingerprint or DNA on the gun is circumstantial evidence. A jury must still consider whether the particular piece of physical evidence proves the defendant's guilt, or whether it just proves the defendant was at some point in time in contact with the gun. I certainly hope they don't skip this step!

Didn't anyone ever see the Harrison Ford movie? Turned out his semen in the victim wasn't because he'd raped and murdered her. It was *spoiler alert* there because his crazy wife saved semen off her diaphragm, froze it, and then placed it in the victim to frame her husband for the murder. This crazy movie perfectly highlights why physical evidence is still just circumstantial evidence.

Some evidence is weak, some more compelling. But whether the evidence is weak or compelling does not depend on whether it is direct or circumstantial evidence. Eyewitness testimony can be incredibly flawed. Conversely, circumstantial evidence (like a defendant's bloody footprints, DNA, and fingerprints all over the crime scene) can be overwhelming.

Any questions?

Wednesday, April 3, 2013

In which I defend a Republican AG against allegations of rightwingnuttery

Sometimes, the headlines and articles written about criminal cases give off a very wrong impression. On occasion, it's probably got something to do with the complexity of the legal issues. But sometimes, it's just lazy journalism. Or exploitative journalism. I'm afraid this falls into the latter categories.

I saw the headline and was all set to be thoroughly outraged.

Top Va. Republican urges court to keep anti-sodomy law on the books
That's so awful, I thought. Disgusting, despicable. It's well-settled law going back to 2003 in Lawrence v. Texas that laws prohibiting certain sex acts between consenting adults are unconstitutional. I know in my state, we still have an anti-gay sodomy law on the books that our legislature and special Repealer Office that was set up to find obsolete laws that should be taken off the books have refused to repeal. I find it deeply offensive that my state legislature chooses to maintain a law making all homosexual sexual conduct illegal even though it's totally unenforceable.

Then I read into the article and found this line:

 The three-judge panel ruled 2-1 on March 12 that a section of Virginia's 'Crimes Against Nature' statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas."
That sentence leads one to believe that this Attorney General is just trying to keep an anti-sodomy law on the books out of some animus toward gay people or out of a belief that the state can legislate his view of sexual morality. So, yep, confirming my sense that I want to be outraged.

But if you know me, you know I go deeper than articles and find the more direct sources. Now, you'll note in the article, the AG bases his argument on the idea that Lawrence only applies to consenting adults, which kinda made me wonder what that had to do with this general anti-sodomy statute. And here's where the article is a little misleading. Turns out the Virginia anti-sodomy statute doesn't reference consenting adults. It doesn't reference age at all.

Virginia's statutes on this are a tad complicated. They have their anti-sodomy law, 18.2-361, in one chapter of the criminal code. That statute criminalizes any and all acts of sodomy. Period. No reference to age, consent, etc. Then in a different chapter, they have this separate statute, 18.2-370, that criminalizes soliciting a minor under the age of 15 to engage in sodomy. But that doesn't apply here because the girl was over 15. So this defendant was convicted of contributing to the delinquency of a minor, 18.2-371, and criminal solicitation, 18.2-29, both under a theory that he tried to get her to break the anti-sodomy law, 361.

So what the 4th Circuit Court of Appeals had to address wasn't quite what the article suggests. The defendant had been convicted of soliciting a 17 year-old to perform oral sex on him. So under 371 and 29, he met the age requirements of committing a crime in Virginia because he was over 18 and she wasn't. But because of that quirk in the child sex crimes statute that only references people 15 or younger, he could only be convicted for soliciting her to violate 361.

The problem the 4th Circuit ran up against was that the plain language of 361 is facially unconstitutional. That broad anti-sodomy statute makes no reference to age or force or anything. Just flat says any and all acts of sodomy are illegal. (Sodomy under the law is anything other than penile-vagina intercourse, btw.) If the anti-sodomy statute, 361, just separated out sodomy between adults and sodomy involving minors, the 4th Circuit wouldn't have had a problem affirming the conviction. But the statute doesn't do that.

The 4th Circuit said the anti-sodomy statute is unconstitutional and I can't disagree at all. I'm not sure the Virginia AG can disagree, either. Trouble is, if that statute is unconstitutional, then the way the Virginia statutes are crafted, the defendant can't be convicted for soliciting sodomy from someone over 15 but under 18. It's just a quirk of the way Virginia has set up its statutes. Even the 4th Circuit isn't saying Virginia can't set its age of consent at 18 and criminalize any sex acts between an adult and a minor. All the 4th Circuit said is Virginia's laws are clumsily written and that clumsiness makes it impossible to convict this particular defendant for this particular act.

So this is what the Virginia AG is challenging. He isn't tilting at windmills to keep an unenforceable statute on the books just so people in Virginia can know they live in a state that has a moral objection to anything other than straight intercourse. He just wants to save a conviction of an adult accused of inappropriate sexual behavior with a minor.

Having now meandered through Virginia's sex crimes statutes, I can verify that they're kind of a mess. Seems to me that the AG's time would be better spent working to redraft those statutes to make them readable and coherent. This particular defendant has largely served his sentence, though the state will lose the ability to make him register as a sex offender. And there will undoubtedly be other defendants who will be able to benefit from this ruling, so I'm sure he's thinking about that. He probably just needs to accept that the statutes as currently written leave this giant, unsalvageable hole. If Virginia wants to prosecute adults who engage in sodomy with 16 and 17 year-olds, they need to write a proper statute. Pursuing that would be a better use of the AG's time.

But while I think he should concede this particular battle, I will defend him against the unfair suggestion of this article.

UPDATE: Look, it's not that this AG isn't a wingnut zealot. By many other accounts, he is. If this article had included a thorough history of the AG and been accurate about the facts of this particular case, then pondered whether the AG's zealotry could affect a gubernatorial election, I wouldn't have complained. But that isn't what this article did.

Instead, it slightly misrepresented the statute in question (by suggesting it purely relates to sodomy between adults).

It woefully misrepresented a part of the 4th Circuit opinion in a block quote from another article. (The block quote suggests that the opinion notes that the defendant in that case could have been prosecuted under other statutes, which makes defending application of this particular statute in this particular case seem wingnutty. But that isn't what the opinion said at all. The opinion noted that this gap existed in the Virginia code whereby even though the legal age of consent is 18, there is no statute under which an adult who engages in sodomy with an older teen can be prosecuted. The opinion then said the Virginia legislature could write such a statute, but the courts could not.)

The fact that this AG has a history of doing wingnutty things makes it all the more important for a reporter to note when an action that may appear wingnutty on the surface could really motivated by a different kind of zeal: prosecutorial zeal. In this one specific instance, this AG isn't being an anti-gay zealot, he's being a prosecutorial zealot who doesn't want to see who knows how many convictions of adults engaging in sodomy with older teens be vacated. (I think he's wasting time defending this statute. If the legislature doesn't want to explicitly outlaw sodomy between adults and older teens, that's their choice. But I get that he thinks they intended to, they just did it based on the broad, unconstitutional anti-sodomy statute.)

Now, maybe he really is, or also is, motivated by the morality thing (it wouldn't be strictly anti-gay as the statute in question criminalizes an awful lot of stuff straight people do). But when there is another stated motivation, it is incumbent upon a journalist not to ignore that motivation and not to write an article that hints at it being pretextual without reporting on the facts that would suggest that motivation is the real motivation.

This post isn't really about defending this AG, it's about calling out shoddy journalism. This article is shoddy journalism.

SECOND UPDATE: Last one, I swear. But the more I'm looking at Virginia's oddly-crafted statutes, the more I'm thinking this decision doesn't just make prosecuting adults for engaging in sodomy with older teens who are below the age of consent impossible. I think it also threatens the state's ability to prosecute adults who engage in sodomy with teens as young as 13. That statute also specifically invokes 361, the general anti-sodomy statute. So if the anti-sodomy statute is facially invalid, it can't be the predicate offense for a violation of 370, either. (At least, defense attorneys, like this one, will surely make that argument all over the state.) As clearly right as the 4th Circuit is to find 361 facially unconstitutional, I'm not sure there's a top prosecutor in any state who wouldn't try to challenge that decision because of the potential fall-out for hundreds or thousands of convictions and on-going prosecutions. What a mess, Virginia. Fix your sex crime statutes!

Tuesday, April 2, 2013

Louis Taylor, not quite free at last

Oh, isn't this so lovely? This kind-hearted judge telling this poor man who has had 42 years of his life stolen from him, "Welcome back." As if this judge is so thrilled to be over-seeing the release of this wrongly-convicted man. He gets to be so magnanimous as he ushers this man back to life, to freedom. Oh, he's such a nice, good  judge.

As he's presiding over this giant sham of a proceeding where the wrongly-convicted man who lost 42 years of his life (which is basically his entire life as he was 16 at the time of the incident) has to enter into a no contest plea to secure his release from prison. Because this way, he can't get any money for all those years of wrongful imprisonment. He can't sue his lawyers or the cops for any civil rights violations. And he'll still be a convicted felon. But after having been sentenced to prison on 28 counts of murder, what man wouldn't take that evil deal just to get the heck out of there?

Louis Taylor was convicted of 28 counts of murder after a horrific fire ripped through the Pioneer Hotel in Tuscon, Arizona back in 1970. At the time, Taylor was 16 years old. He was at the hotel that night, apparently trying to score free food and drinks. Then he helped try to get people out of the hotel after the fire broke out.

Somehow, though, within hours, he was accused of setting the fire. He was interrogated without a lawyer. The lead fire investigator decided that his suspect was probably black, based on his years of experience as an arson investigator. I guess I missed the day in criminal profiling class when we learned that hotel fires are most likely set by teenage black boys. Luckily for Louis Taylor, this investigator didn't. That investigator was also confident, is to this day confident, that the fire was arson, intentionally set (by someone who was most likely around 18 and black, of course). So Louis Taylor was convicted and sentenced to 28 consecutive life sentences, which he has been serving since 1970.

Just one thing, though. Fire science back in 1970, well, it sucked. What fire experts now understand about fires makes fire investigators from the '70s look like idiots. All of the things fire investigators used to see as "hallmark signs" of arson just flat aren't. You will not now find one single modern fire expert who will declare the Pioneer Hotel fire arson. Instead, they will tell you the cause of the fire is undetermined. It's the same thing as the  Cameron Todd Willingham case out of Texas. We've come to realize we've convicted someone (in Willingham's case, executed him) for something we can't even know was a crime.

Fortunately, Louis Taylor got a better outcome than Willingham as he gets to sleep somewhere other than a cell tonight. But to get there, he was put in the awful position of having to accept a conviction for something he didn't do. It's a pretty good bet that the prosecutors and the judge involved are pretty darn convinced he didn't do it since they're agreeing to let him out of his 28 consecutive life sentences. They didn't have to do that. They could have fought, knowing that Taylor has undoubtedly long since exhausted all his available appeals.

Which is why I'm having a hard time swallowing that oh so jovial "Welcome back" from the judge who as he is accepting Taylor's no contest plea. There's nothing to celebrate about coercing an innocent man to accept a guilty finding to secure the freedom that should always have rightly been his. You don't get to act the part of the benevolent liberator when you're insisting on terms that will deny the liberated man any financial restitution the state owes him. Did you even make sure this man had a place to go before you sent him out into the world still stuck with a criminal record and no promise of help from the state trying to build any kind of life? He's now almost 60 and has been away from the real world for over 4 decades. He can't have many friends or job prospects. Who knows if he even has any family to fall back on. But, yeah, pat yourselves on the back for being so unbelievably generous as to let him out as long as he gives you this one last bit of himself 'cause you hadn't gotten quite enough with those 42 years.

Monday, April 1, 2013

Not my kind of justice

This headline makes me ill:

‘Justice is death’

So says the prosecutor handling the case of James Holmes, the alleged Aurora shooter. (In case all the rabid kill-him-now crowd forgets, he is still just alleged, with the state not yet having offered any proof in a trial.) 

It makes me ill. The idea that justice requires the state to kill someone, well that's no kind of justice I want any part of. This sounds a lot more like blood-lust to me, vengeance. Vengeance and justice are fundamentally incompatible with each other.

The state could have had this over with. They could have a finding of guilt. They could have the defendant committed to secure facilities for the rest of his life. They could have saved the state millions of dollars and everyone involved the strain of decades of living with this case. They could have it all over. But, no. A guilty verdict and life in prison wasn't good enough. They just have to get a death sentence, blood for blood. So they rejected Holmes' attorney's attempts to settle the case, to save everyone the time and emotional energy of a trial, not to mention the expense. 

Justice is supposed to be moral rightness, something based on reason, ethics, law, fairness. The whole idea of the social contract is that when we come together and form this intentional society, we put aside our natural state where our lives would be nasty, brutish, and short. In the state of nature, we would resort to coarser responses, to vengeance. But as a just society, we're supposed to be capable of something more, something better. As the Federalist Papers asked, 

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. ( The Federalist, 15)
There's nothing rational about this need to spend millions of dollars because incarcerating a man for the rest of his life isn't enough payback for his actions. Would this prosecutor think justice really demands killing him 12 times, once for each of his victims? There's nothing just or righteous or moral about turning away from a fair and swift resolution of a case in the hopes that you can one day pin a man down to a gurney and plunge a needle into his arm. There's nothing just about insisting on doing back to him what he did to others.

What this prosecutor is doing has a lot of names, but justice isn't one of them.

Today's dumb thing on the internet

I'm pretty sure this is the dumbest thing I will read on the internet today. (I've got a lot of work to do this evening, so I can't spend hours surfing.)

The chairwoman of the Georgia GOP sees so much potential for abuse and fraud in same-sex marriage, she can't even believe it. I mean, the likelihood of two totally straight men getting married just to secure health insurance or pension benefits or some other kind of "free ride."
I mean, what would prohibit you from saying that you’re gay, and y’all get married and still live as separate, but you get all the benefits? I just see so much abuse in this it’s unreal. 
Oh, honey. Do you really, really think that? Really? Have you never heard of "Green Card" marriages? Haven't people (gay and straight) been accused of entering into fake marriages to secure legal residency for one of the parties? Sheesh, there was a movie about it! And isn't it already possible for people to get married just for insurance purposes? They did that on "Grey's Anatomy" two seasons ago, when Kim Raver's character married a patient she barely knew so he could get the life-saving surgery he needed.

Really, the only difference that will come with expanding marriage to same-sex unions is that people desperate enough for insurance or some other benefit that they'd enter into a loveless marriage to get it will have more options. And, as happens now, the county clerks' offices around the country who issue marriage licenses still won't ask couples applying for marriage licenses if they're doing it for reasons some crazy lady in Georgia finds acceptable.

The worst "get people off welfare" proposal I've ever seen

Sometimes, you read about legislative proposals and wonder just what heartless idiot came up with that hideously awful idea. Like this one out of Tennessee. This proposal would tie a family's Temporary Assistance to Needy Families (TANF, aka welfare) benefits to the academic achievements of school children. If the kids don't test well enough, benefits cut. By 20%. Gee, that's a great idea!

We should definitely make children responsible for the financial welfare of the family. Children who might already be struggling in school should absolutely have more pressure put on them. Children whose families are in such straits that they need to turn to public assistance should without question have to share the burden.

Good grief. Happily, the legislation has at least been amended to exclude students with learning disabilities or individualized education programs (IEP). So that's an improvement. Of course, that means that the original heartless idiot(s) who came up with this idea didn't exclude those children. I guess that was just to make it clear that the drafters really are total jerks. I find it interesting that the two legislators who proposed this bill into the two houses of the Tennessee legislator never returned calls for comment. Perhaps because they know perfectly well this proposal is indefensible. Not to mention illogical, because if the idea is that cutting the families' benefits will push parents to push their children to academic success, it's going to fail. Because the two most obvious results of cutting benefits will be a) that parents have to work more and are thus around for their children even less and b) that families will have less money for food, which won't help children make up academic ground as proper nutrition is tied to academic success.

I understand getting frustrated with parents who don't provide good support for their children. But there are so, so many flaws with this discriminatory, misguided approach. First, it assumes that people who fall on hard times and need a little assistance to get by are the parents who need incentives to help their children succeed in school. What incentives exist for self-sufficient parents to help their children achieve academic success? Why not a tax penalty for parents who aren't receiving TANF benefits and whose children don't achieve the set level of proficiency? The sad underlying assumption to this proposal is that people on TANF are failures in general who won't work, won't take responsibility for their children, and are nothing more than drains on society destined to raise the next generation of worthless drains on society.

If children are really being raised by such worthless drains on society, wouldn't it make more sense to help those kids, rather than send them further into poverty? If parents turn out to be so irresponsible that they let their children fail at school, maybe we should find ways to provide the support their worthless parents won't?   Why should we insist that the children pay the price for the sins of the parents? Decent, compassionate human beings get that this proposal would only harm the very children most at risk that the bill's House sponsor claims to be concerned about. Rep. Dennis wants to target the "parents who do nothing." But if the parents already "do nothing" to help their children, what makes him think this bill will change them?

This proposal is the disgraceful work of heartless idiots. I just can't believe this proposal can go anywhere. Please reassure me that there aren't enough heartless idiots out there to let something like this pass.

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