Category ►►► Crime and Punishment

July 10, 2012

State of Denial

Crime and Punishment
Hatched by Korso

There's a great scene in Michael Crichton's book State of Fear in which an actor named Ted Bradley (a thinly-veiled version of Martin Sheen), is captured by a tribe of natives on a tropical island. The poster child for modern eco-consciousness, Bradley views the island as a paradise and its denizens as noble primitives, living in harmony with nature just as Gaia intended -- right up to the moment they cook him up for dinner.

Kind of reminds me of Rahm Emanuel.

You might have heard that the murder rate has soared even higher in Chicago since Barack Obama's former chief of staff moved into the mayor's office. No surprise there. Chicago is a rough town, and in spite of his tough-guy persona Emanuel is, after all, a Democrat -- and they aren't exactly known for being tough on crime. Even with that in mind, though, hizzoner's response to the crime wave simply boggles the mind:

We've got two gangbangers, one standing next to a kid. Get away from that kid. Take your stuff away to the alley. Don't touch the children of the city of Chicago. Don't get near them.

And it is about values. As I said then [when a 7-year-old girl was shot and killed last month], who raised you? How were you raised? And I don't buy this case where people say they don't have values. They do have values. They have the wrong values. Don't come near the kids -- don't touch them.

Yeah. Ted Bradley thought the same thing about the cannibals, and look where that got him.

The article goes on to say that Emanuel's plan for dealing with the situation involves tearing down the gangbanger hangouts and closing up their favorite liquor stores. While he's at it, maybe he can send out some community organizers to remind the thugs that they shouldn't stay out so late on school nights either.

Suddenly, Emanuel seems a lot less "Rahmbo" and a lot more Steve Urkel. Perhaps he should take a page from the Rudy Giuliani playbook, and instead of appealing to the better natures of murderers and rapists he could try busting some heads. Like Chicago, New York City had a huge problem with violent crime before Giuliani turned things around with effective policing -- which included the actual targeting of criminals, and not just the places they liked to go.

Or is that concept just too Republican?

Hatched by Korso on this day, July 10, 2012, at the time of 9:28 AM | Comments (0)

May 29, 2012

Perversion of "Compassion": Brett Kimberlin -- Guilty as Sin, Free as a Bird

Crime and Punishment , Liberal Lunacy
Hatched by Dafydd

Last, some breaking news involving Aaron Walker, a.k.a. "Aaron Worthing." But I say "last" because I'm stubbornly putting it at the bottom of this post, rather than the top, because it wouldn't make sense else. So read on, and you'll see what I mean...


I did not participate in "Blog About Brett Kimberlin Day" (last Friday, May 25th) for two reasons:

  • Nobody told me it was Blog About Brett Kimberlin Day! Why am I always out of the loop?
  • I have no interest in simply parroting what other folks had already said so ably; this is not an "echo blog."

Others -- especially my erstwhile blogboss, Patterico (one of the Kimberlin Klan's not-so-cowed victims) -- have already thoroughly covered the journalistic beat of harassment, cyberstalking, physical stalking, "swatting," libeling and slandering, forging of documents, barratry, violent threats, and general intimidation carried out by convicted domestic terrorist Brett Kimberlin; his toadies, Ron Brynaert and Neal Rauhauser; and the eternal apologists, cheerleaders for violence, groupies, hangers-on, and belligerent leftist thugs that enshroud the Kimberlins of the world like infection and miasma around rotting tissue. I had to wait until I had a completely different angle.

I'm not particularly interested in Kimberlin himself. Throughout the history of civilization, we have always had to deal with sociopaths whose psychology was still stuck at 50,000 years ago, at the dawn of modern Man, when members of one tribe thought nothing of ambushing and killing members of another tribe for no other reason than that. In fact, there are a number of countries today with that mentality built into their entire government and society (Afghanistan, Somalia, Rwanda-Burundi, and the like). If Kimberlin lived in one of those primitive, failed states, he wouldn't even stand out.

I am more interested in how the authorities dealt with him (or failed to deal), because it shines a spotlight on the collapse of the very concept of justice... and especially on the perversion of seeming "compassion," which we see time and again.

All of the following about the public figure Brett Kimberlin can be found in reasonably well-sourced Wikipedia entries (and their sources), including those for the Speedway bombings, Mumia Abu-Jamal, Dan Quayle, Nina Totenberg, and Brett Kimbinlin himself -- assuming that last hasn't been airbrushed from history by Wiki editor Richard Symonds again. It appears that "somebody down there likes" Kimberlin; and one of those "somebodies" is his Wiki pal Symonds. (The terrorist vanishes!)

Kimberlin is not a poor victim of right-wing prosecutors, though I'm sure that's what he and his crew imagine; I'm equally sure that Bill Ayres, Mumia Abu-Jamal, and Charles Manson thought the same. Kimberlin was first convicted of felony perjury in 1973, when he was all of nineteen, for falsely testifying to a grand jury about selling LSD at his high school. He was convicted seven years later of the federal felony of conspiracy to distribute marijuana and given a four-year sentence.

But by then, he had already set off eight bombs in Speedway, Indiana:

  • The first three were practice bombs set in dumpsters.
  • The next four were intended to kill or maim ordinary citizens of the city, except for one intended to kill a Speedway police officer.
  • The final bombing was the only one that succeeded at its intended mayhem; it was planted in the parking lot of Speedway High School, presumably intending to kill some unsuspecting students. Instead, it blew off the right leg of Carl DeLong and wounded him in several other places, and also wounded his wife, Sandra. De Long later committed suicide due to his permanent pain and crippling.

In a series of trials, Kimberlin was convicted of illegal use of Department of Defense insignia, illegal use of the Seal of the President of the United States, impersonation of a federal officer, and of the terrorist bombings themselves. He was sentenced to 51 years, six months, and nineteen days.

While in prison, Kimberlin reinvented himself as a leftist activist, instantly drawing the sympathy and championship of liberals, Progressivists, and other socialists, just as Mumia Abu-Jamal -- another darling of the Left, born the same year as Kimberlin -- drew petitions for clemency, impassioned rhetoric for release, and candlelight vigils after murdering Philadelphia police officer Daniel Faulkner in 1981.

(The New Left's peculiar perversion, distinct from its Communist forebears, is to stridently insist that ambush murders, terrorist bombings, and "lawfare" directed at people too poor to defend themselve in court are actually acts of heroism -- a freakish belief shared with radical Islamists. One cannot help but wonder how close the New Left has moved towards stoning to death rape victims as "adulteresses.")

Kimberlin was especially lauded when he claimed, however improbably, that he had sold marijuana to Dan Quayle when the latter was in law school, sometime between 1971 and 1974, when Kimberlin was between 17 and 20 years old... and at a time when Quayle was serving as an investigator for the Indiana Attorney General, as assistant to Indiana Gov. Edgar Whitcomb, and finally Director of the Inheritance Tax Division of the Indiana Department of Revenue.

To the average person, the claim that some lowlife teenager would be Dan Quayle's "connection" beggars credulity. Fortunately, Kimberlin found an astonishingly credulous audience in Nina Totenberg of NPR -- right around the time she was receiving a major award (no, not a leg lamp) for having broken the story that Reagan Supreme-Court appointee Douglas Ginsburg had smoked dope in his past. But of course, that background had nothing to do with Kimberlin's claim, nor Totenberg's eagerness to promote it. Synchronicity!

(Totenberg would later achieve notoriety as traducer in chief in the Clarence Thomas hearings, where she orchestrated Anita Hill's testimony that the black Supreme Court nominee, later Justice, was sexually out of control. Wait, haven't we heard those sorts of accusations against black men before?)

Here is where the perversion of so-called compassion enters the story; for in 1994, Brett Kimberlin was released on parole after serving only thirteen years -- a scant 25% of his sentence.


Was his crime deemed less severe than those of other inmates? No; according to the decision by the Sixth Circuit Court of Appeals on Kimberlin's appeal from a federal Parole Commission decision, his crimes related to the Speedway bombings were originally classified as Offence Category 8, the highest (i.e., most severe) type of crimes.

But in a bizarre twist, Kimberlin was given a Salient Factors score of 7, which translated into a "good" probability that he would follow his parole terms if he was released early. Even more bizarre, a federal district court subsequently ordered the Parole Commission to lower the Offence Category to 7, after the commissioners began to waffle on whether Kimberlin was really responsible for Carl DeLong committing suicide due to his continuous severe pain caused by Kimberlin's bomb.

Compassion! How can you blame the poor felon for his victim's suicide, merely because it was due to the crippled, agony-ridden future DeLong had to look forward to for the rest of his life? We shall demonstrate that we are not heartless, unfeeling brutes by giving every benefit of the doubt to a chap convicted by a jury of his peers of planting murderous bombs in public places.

More compassion and crocodile tears: After Kimberlin's release in 1994, he instantly violated his parole, refusing to pay the civil damages levied against him in the DeLong wrongful-death lawsuit.

Parole was eventually revoked -- in 1997. Though the mills of the federal Parole Commission grind slowly, yet they grind exceeding compassionate. Evidently, empathy drove the commission to give him three years indulgence on paying his debt to Sandra DeLong. Then in another burst of compassion for the long-suffering Kimberlin, he was released yet again on parole in 2001. And again he refused to pay the judgment.

This time, however, the Parole Commission decided the poor fellow had suffered enough -- should there no forgiveness for a couple of youthful indiscretions? -- and they let him roam free ever since.

The Kimberlin saga is one of the vilest examples of misplaced compassion in the annals of liberal "justice." A man who should have been charged with murder when DeLong finally succumbed to the pain and took his own life -- a man who had actually been sentenced to more than half a century behind bars, a sentence finally affirmed by the Indiana Supreme Court -- a man who set off a series of eight terrorist bombings in the heartland of America, one aimed at a policeman and another meant to murder high-school students -- morphed into the "victim" in this epic moral farce. He served only one fourth of his original sentence, then an additional four years after he violated parole... and that's it. As of today, he is, as Ayres smirked after his trial for his own series of bombings, "guilty as sin, free as a bird -- what a country, America!"

The last phrase of that quotation is quite misleading, however; sadly, there are many States in the western world where felons convicted of hideous, bloodthirsty, and senseless crimes are let loose for incomprehensible reasons, other than a generalized anti-punishment mentality. The killers and brutalizers are washed clean by a tidal wave of depraved moral inversion: Right is wrong, sin is sacrament, and the end -- full implementation of the Progressivist project -- justifies any means necessary, in particular, hero-worship of the vilest specimens of humanity. I believe the syllogism runs thus:

  1. The values of normative American society (liberty, Capitalism, justice, decency, and community) are so base and despicable that American culture must be utterly purged.
  2. Chaos is good, because people hurled into chaos will clutch at any new order that's offered; even if, in a functioning society, such totalitarian "order" would have been swiftly rejected by the people.
  3. Thus anything that shatters the structure of American culture and society, bringing on chaos, fear, uncertainty, doubt, and desperation, is in reality a moral victory.
  4. Therefore, leftists must approve, applaud, aid, and abet any act, no matter how violent or random, so long as it helps dismantle and disembowel the world we live in.

And that is what I call the perversion of "compassion," as illuminated by the sickening case of Brett Kimberlin and his band of merry lickspittles in the liberal movement, in the press, in the political core, and in Kimberlin's inner spiral.


Last, at long last, that breaking news I spoke of: According to Stacy McCain, a.k.a., "the Other McCain," Aaron Walker has been arrested -- for violating a "peace order" against Walker that Brett Kimberlin tricked a feeble-minded judge into issuing; the order essentially bars Walker from blogging or writing or speaking about convicted terrorist bomber and obviously public figure Brett Kimberlin.

Walker was released on his own recognizance, but he must presumably endure some sort of hearing... all for the crime of being harassed by the judge's favorite terrorist.

The judge who issued that order, C.J. Vaughey, is an imbecile who evidently has never even heard of the First Amendment to the United States Constitution. I hold that judge in utter contempt, and he himself has cast the entire judicial system of Maryland into such contempt that the only remedy would be for Vaughey to be removed from the bench.

And if Kimberlin or one of his leering acolytes manages to get a "peace order" against me, banning me from writing about Kimberlin on this blog or any other venue, I give you my word that I will violate that order the first moment I can. I am perfectly willing to be a test case as to whether a local judge can, with a wave of his magisterial paw, wash away the Bill of Rights.

The stunning fact that a despicable terrorist, arguably a murderer, known liar, and habitual abuser of court proceedings can get a dull-witted judge to grant an order barring people from discussing Kimberlin's public-record criminality, in flat defiance of our freedom of speech, is the apex of the insanity I discuss above. Clearly, Judge Vaughey feels an overflow of compassion for the Speedway bomber... but exactly nought for his victims.

He is a disgrace to his robe; it's time for Judge Vaughey to seriously consider retirement. He is the poster judge for the perversion of "compassion."

Hatched by Dafydd on this day, May 29, 2012, at the time of 7:00 PM | Comments (3)

April 23, 2012

Obamunism and the Mark of the Outcast

Crime and Punishment , Presidential Peculiarities and Pomposities
Hatched by Dafydd

According to Newsmax -- admittedly not the most reliable of sources, but it's hard to doubt this story -- many, many people have taken to Twitter to issue direct, specific, and presumably criminal threats to kill George Zimmerman (he who shot Trayvon Martin, possibly in self defense), along with solicitations for others to kill Zimmerman, as well as the judge who released him on bail. Some of the threats or solicitations:

  • Someone pass me a gun, imma go follow zimmerman, shoot, and kill him and say #imstandingmyground
  • I think imma personally kill George Zimmerman . . . anyone's welcome to join
  • Once u been convicted of a crime & let out on bail u can't be charged 2x for the same thing so that means sum1 gonna have to kill Zimmerman.
  • Zimmerman released from jail someone kill the judge!!!!!

Nor to forget the "dead or alive" wanted poster promulgated by the New Black Panther Party.

My question: Will any of these people actually be charged or indicted for making terroristic threats, solicitations to murder, or any other obvious felony?

Or does the well-publicized fact that President Barack H. Obama and his administration are backing Trayvon Martin 100% in this controversy mean that the feds -- whose jurisdiction I assume it would be, since Twitter crosses all state lines -- declare, in effect, a de facto, universal letter of marque and reprisal, "open-season" on Zimmerman? Will Obama give murderers carte blanche for any act of violent revenge they please... so long as the target is that "white Hispanic" that the American Left hates worse than anybody except perhaps the Koch brothers (whom the Left also blames for this shooting)?

If we don't hear about numerous arrests of Twitter twits, I submit we will have our answer:

Actually, it's even more lawless than that; for in the old days of sail, each privateer required specific permission from the government (the letter itself)... and he was supposed only to capture ships and bring them before a tribunal for judgment; he was only allowed to fire upon them if they resisted. The present Twiminals have no authorization from anybody to do anything, and they have no intention of taking Zimmerman for trial but simply want to kill him.

The Left has pronounced Zimmerman beyond all legal protection, moral rights, social support, and even beyond the minimal humane consideration. Without an immediate crackdown by the relevant law-enforcement agencies, Zimmerman may well end up lynched. The Obamunists will have carved "the mark of the Outcast" into George Zimmerman's brow... and anybody is allowed to do anything to an Outcast.

Yet I have a cold gut-feeling that the federal response to these crimes will be... nada. After all, if Obama had a son, he would look like Trayvon; the fish rots from the head down, and even cops take their cue from the capo di tutti capi (along with his designated button-man, Eric Holder).

In the lawless age of Obama, God knows we need a federal shall-issue concealed-carry permit, one that overrides all state and local laws banning the carrying of concealed weapons. Otherwise, at least a third of the population of the United States are utterly denied our fundamental, individual right -- affirmed recently by the U.S. Supreme Court in McDonald v. Chicago, 561 U.S. 3025 (2010) -- to keep and bear arms.

McDonald did not, of course, address whether carrying a concealed weapon is also individually protected by the Second Amendment; but we could clear that up with federal legislation as above. I truly hope that this will be one of the first actions of an incoming Republican Congress and presidency.

Democrats will inevitably try to filibuster it; but nowadays, it's not at all certain that they'll get their 41 votes.

Rather than hunker into a defensive crouch, hoping to stave off the mythical "people's movement" to install a European-style gun ban, let us go on the offensive: Let us demand that our exceptional right to keep and bear arms finally be fully implemented, as the Founders intended.

Hatched by Dafydd on this day, April 23, 2012, at the time of 1:57 PM | Comments (4)

February 6, 2012

Extra, Extra - Crimebusting Lizards!

Crime and Punishment
Hatched by Dafydd

Today is my lucky day: I had the opportunity to put up or shut up about the civic responsibilities of a culture of liberty, and I passed the test. In the process, I broke up a domestic assault on the streets, stopping a young man from violently attacking a woman he claimed was his wife.

There's nothing wrong with crowing about doing something undeniably good, especially when there's a certain risk involved; but I'm not just tooting my own kazoo here. There are cosmic points that I'll get to after giving you the bare facts...


I was walking to the gym when I heard an ongoing altercation. Looking ahead, I saw a scrum of older men surrounding a very young man (late teens or very early twenties) who was screaming at a young woman (about the same age), who he later identified as his wife. He had her pressed against an SUV; he was enraged, she was terrified.

The skinny, young man (I'll say "suspect" from now on) got increasingly violent, and the older men, who had been telling him to let her go and don't hit her, backed away, apparently nervous.

The suspect reached around the girl and grabbed her by the back of her neck; he threw her down to the pavement, and she held her arms up to ward off a blow. I did not see him actually strike the woman at any time; the only violent contact I saw him make was throwing her to the sidewalk.

I ran up to them and also told him he should just back off and let her go. The suspect turned on me, screaming obscenities into my face from about two inches away. I stared him down (we were about the same height, but I was sure I had at least 40 pounds on him).

Then he walked away, and after a moment, the woman followed; but she was walking faster. She walked past him and continued walking down the street, putting distance between them; but then the suspect broke into a run after her.

I lost sight of them for a few seconds, then on second thought, I ran after. After turning a corner, I saw he had again cornered her, this time against a huge dumpster. He raised his fist, so I dropped my pack at the corner and ran up to them.

He spun around to face me. This time, he told me that if I didn't get the "F" away from them, he would kill me. But during this distraction, the girl had darted around the dumpster, turned another corner, and run off.

The suspect realized she was gone; he caught sight of the girl some distance away and ran after her.

I walked behind him, then I too saw the girl. The suspect ran up to her and again raised his fist as if to strike her. This time, she dropped to the ground of her own accord and for a third time put her arms across her face, as if to block a punch.

I scurried to the two of them again, and again the suspect confronted me. You get the strategy, right? I was distracting him and distracting him, again and again, so he constantly had to deal with me, not her; whenever he started in on the girl, there I was, getting in his space again. I didn't yell at him, insult him, or punch him out (though I wouldn't have minded, the dirty coward). I just stuck to him like a tar baby.

By that time, a number of other people had come out of their houses; and I knew that one of the original witnesses at the beginning, five or ten minutes earlier, had called the peelers. I could hear a siren, and I hoped it was they.

I remembered I'd dropped my backpack a few streets back, and it had my wallet and keys in it. Since a crowd had gathered, I ran back, got my pack, and returned. By that time, a cop on a motorcycle arrived, and then some others.

They ordered the suspect to the ground, but he refused to comply. Instead, he hurled defiance at them. So they drew their pistols and again ordered him to get on the ground. He looked for a moment like he was going to charge them (suicide by cop?); but in the end, he lay face down on the grass, and the police cuffed him.

I told one of the cops I was an eyewitness and recounted what I had seen and heard. They had me identify him, then interviewed me and took my contact information. My guess is that the suspect will probably plead out; but if there's a trial, I'm looking forward to testifying against him; I don't like men who act like beasts, especially towards women. (Call me old fashioned.)

Finally, the police finished with me; and I headed off... and continued on my way to the gym.

...and civilization

So what's the moral? There are several:

  1. First, in the Western culture, and especially in the United States (the best of the West), we instinctively come to the aid of the underdog against a tyrant.

This is not common in the rest of the world. Believe me. In most ports of call, if a stranger sees a man beating a woman, or a big guy (or multiple guys) assailing a smaller, lone victim, the stranger will fade away as quickly as possible. And in some parts of the world -- e.g. the Moslem ummah -- if Abdul sees a big guy assaulting a little guy or gal, or a mob assaulting a lone victim, Abdul will join the mob; after all, who's the obvious "strong horse?"

I'm neither anthropologist nor geneticist, but I suspect the "stick up for the underdog" impulse comes from a gene that evolved only among those early humans who migrated into what is now called Europe, tens of thousands of years ago. If such a gene evolved after the Europe-bound population split from the Arabia-bound and Asia-bound populations, then it wouldn't be surprising that ours is a culture that helps the little guy against the big guy, but theirs have very different, and probably much older cultural imperatives.

  1. Second, you've all heard the supposed quotation attributed to Edmund Burke, "All that is necessary for the triumph of evil is that good men do nothing." Alas, there is no evidence he ever said those exact words. But the sentiment is clear, as is its applicability to the United States in 2012. And the transitive corollary is likewise clear: All that is necessary for good to triumph is that good people get off their butts and confront evil wherever they run across it.

That too is very, very American. I wouldn't say it's unique to the U.S. or even to Western Civ; but coupled with the first point, intervention by ordinary blokes is the primary deterrent to crime. Yes, social conformity can be a very good thing indeed!

Intervention can take several forms: You can confront the evildoer directly, the direct approach. Or if the odds are too great against you, you can call the coppers -- bearing in mind another, fruitier maxim: "When seconds count, the police are just minutes away!" And if even the police are suspect (or outgunned by the "cowards, traitors, and empty words"), you can serve as a witness at trial -- or in extremis, as a witness to history, as with Émile Zola's J'accuse!, or the Diary of Anne Frank.

  1. Finally, you must be able to distinguish between those evildoers who are truly dangerous and those who are just going to "shout you to death"; and you must respond according to that distinction -- or you might find yourself inconveniently dead.

I could tell that this particular suspect was not going to physically attack me; he's only comfortable attacking people who can't -- or won't -- fight back. But under different circumstances, I would have used a very different strategy to accomplish much the same end. For example, if a woman was being assaulted by multiple men, I wouldn't just wade in like Conan the Contrarian; I would only get beaten to a pulp, and the vicitm would be no better off for my useless heroics and hysterics.

Rather, in that circumstance, I would probably get someone to call the cops -- and then I would tail the perps from a distance as well as I could, trying to glean any information that would lead to an arrest: A license plate, a good description, or a house they fled to.

There is always something you can do, and always something you should do. Even if it's only a little, a whole bunch of "littles" add up to a "big," possibly even to arrest and conviction. And if everyone does his "something," then the current culture of crime and corruption will wither away.

So as I oft like to conclude, it's time for us all to put on our manly gowns, gird our loins, and pull up our socks. And the next time you see "something big going down," as they used to say on Baretta, don't complain about it... get up on your hind legs and do something to stop it!

Hatched by Dafydd on this day, February 6, 2012, at the time of 9:26 PM | Comments (1)

November 15, 2011

"Occupy White House" and the Election Riots of 2012

Crime and Punishment , Election Derelictions , Liberal Lunacy
Hatched by Dafydd

I hope I'm just thinking strategically, but I'm starting to worry about the Left's response to the 2012 general election.

We can expect massive vote fraud of course, but we're used to that; it's endemic and inevitable. Any district where the vote is close, expect the physical and electronic versions of ballot stuffing, ballot destroying, deliberate confusion, and repeated acts of "lawfare," as Democrats try to sue their way into office.

But this year, we might actually see widespread voting violence, which has long been virtually institutionalized in many European and Asian countries. We had a recent inkling of how the Left thinks during the 2008 election in Philadelphia, where members of the New Black Panther Parth intimidated both voters and Republican poll watchers; but next year's violence might involve thousands of radical leftists across the entire country. I have a hard time believing that participants in and supporters of the "Occupy" criminal gangs would get a sudden attack of conscience and reject "Occupying" the polling places.

Thus I anticipate the serious possibility of actual violent assaults at, and attempts to seize control of, hundreds of polling places in swing states, with the deadly serious attempt to allow voting only by Progressivists... and with the Occupiers actually standing in the voting booth with the voter to ensure there's no weaseling or backsliding.

I expect that in many normally Democratic districts that seem to be drifting rightwards, if there is vote-violence, the police will be directed by civilian authorities not to intervene or protect Republican voters. Attorney General Eric Holder has already signalled -- heck, has blatantly told us -- that the DoJ will not prosecute any "hate crime" committed by federally protected minorities against anybody who is not in that favored category; the Occupier goons will naturally assume (and not without good cause) that the DoJ will turn an equally glassy eye on any voter intimidation or outright violent assault that furthers the reelection of Barack H. Obama.

And they'll expect to catch the Right slow-witted, late to realize the danger, and flat-footed, as they did in the 2000 election.

We really, really need some young tea partiers and other conservatives to "hippie up" and infiltrate the Occupiers and related organizations, from radical political groups to violent labor unions; our spies must gather intel about what the Left intends to do, how far they're willing to go, to retain the presidency and the Senate. Will this election fall into the late-60s, early 70s category of "by any means necessary?"

If so, and if the police refuse to protect our sacred franchise, are we prepared to defend it ourselves? I don't know; I sure hope it doesn't come to that.

But if it does, one thing is certain: We cannot allow the Left to chavez the 2012 elections. Defending America means not only defending our physical territory but also our God-given rights -- and the integrity of the institutions that protect and preserve them, including the vote, the secret ballot, and a true and proper enumeration of those ballots.

We cannot afford to cede the vote to thuggery, intimidation, and an army of socialist sabateurs, in the craven hope that maybe we can reverse it in court months later. 2000 was a shot across our bow; next November, a dozen years later, the antiAmerican Left will be more determined than ever to hold their ideological territory... and to hell with what the actual electorate wants.

And a postscript. A number of conservative gatherings have recently been inundated by Occupiers who scream, chant, and play out creepy "call and response" catechisms in an effort to drown out the speech of their political rivals (that is, ordinary American citizens). We have yet to formulate a coherent and winnable response.

I have a suggestion: In all future political events staged by the limited-government Right that are disrupted by the Left, when the latter begin chanting their "99%" and "mike check" mantras, the Right should immediately begin loudly chanting "Four legs good, two legs bad! Four legs good, two legs bad!"

A few on the left might pick up the reference to Animal Farm and be annoyed and offended; but the vast majority will simply be befuddled; and like all lower life forms, when befuddled, they will fall into confusion, disunity, anxiety, and useless floccillation. Some really dumb Occupiers might even pick up the chant themselves, not realizing it didn't come from their own playbook. Either way, it's a win for the forces of liberty and the rule of law.

So please remember and tell your friends: When the Left starts to chant, counterchant the iconic cry of unreconstructed sheep: Four legs good, two legs bad! It'll drive them nuts trying to decode its deeper meaning, and trying to work out whether it's a compliment or an insult.

Hatched by Dafydd on this day, November 15, 2011, at the time of 2:31 PM | Comments (0)

July 12, 2010

Starting Gun for "Polanski Peel-Out Pool"

Crime and Punishment , Sex - the Good, the Bad, and the Really Bad
Hatched by Dafydd

Updated and bumped (is that "bumpdated?"); see below.

Reuters announces that Roman Polanski was released into house arrest yesterday, December 4th, 2009.

The clock is now ticking...

We'll see who called it closest anent jumping bail.

The current pool positions stand as follows:

  • Release day: Captain Ned *
  • December 6th: GW
  • December 7th: Sachi *
  • December 10th: Mr. Michael
  • December 12th: Resolute
  • December 16th: Dafydd
  • December 25th: Freetime
  • January 1st: Ken Hahn
  • January 2nd*: Chris Hunt *

* I would say Captain Ned is already out, but we'll be generous and give him through December 5th, since Polanski might have been returned to Gstaad late in the day. We'll do the same for the two people (Chris Hunt and Sachi) who selected a relative number of days after release that (upon release) turned out to be identical to absolute dates selected by another commenter: The former each get moved one day forward.

Tick tick tick tick tick --

UPDATE July 12th, 2010: We were all wrong, and evidently Roman Polanski knew more than we knew; he appears to have known that he would simply be set free by the Swiss authorities... ergo, he did not have to jump bail:

Roman Polanski was declared a free man on Monday after Switzerland rejected a U.S. request to extradite him to be sentenced for having sex in 1977 with a 13-year-old girl.

(Where "having sex" has that special definition that applies only to celebrity leftists: Drugging a thirteen year old girl, then orally, vaginally, and anally raping her by force and violence.)

Although Chris Hunt was closest to winning (having selected the latest date), nobody wins the prize. The pool, recall, specified the number of days before Polanski "splits down the Alps -- on the French side." Although the option of "Never" was available for picking (I even noted that availability), nobody picked it, not even Chris Hunt. Ergo, nobody wins.

And all of us lose, of course; as once again, the rich and infamous brutal felon laughs at American justice. And once again, Hollywood cheers... since the other members of "the Industry" all expect to receive the same courtesy the next time they, themselves feel like raping an adolescent.

Hatched by Dafydd on this day, July 12, 2010, at the time of 1:29 PM | Comments (3) | TrackBack

May 25, 2010

Migration Migraine

Crime and Punishment , Immigration Immolations , Obamunism
Hatched by Dafydd

Ever since I was about seventeen years old, I have believed that property ownership -- or monopoly control of land, for the purists who insist land, being non-anthropogenic, cannot be "owned" -- is the most fundamental civil right we have. (From here on, I ignore the purists and talk about land "ownership" without the wishy-washy quotation marks.) migraine

Correspondingly, the vigorous defense of land ownership should be given the widest latitude in the courts: A man's home is his castle, and his land is his fiefdom; or that's the way it oughta be. There is nothing more terrifying to modern man than to be turned out of his own property, especially if he owns it (or so he believes, not understanding the true goal of the Left).

So take a long, cold look at what passes for justice in the Epoch of Obamunism:

An Arizona man who has waged a 10-year campaign to stop a flood of illegal immigrants from crossing his property is being sued by 16 Mexican nationals who accuse him of conspiring to violate their civil rights when he stopped them at gunpoint on his ranch on the U.S.-Mexico border....

The lawsuit is based on a March 7, 2004, incident in a dry wash on the 22,000-acre ranch, when he approached a group of illegal immigrants while carrying a gun and accompanied by a large dog.

Attorneys for the immigrants - five women and 11 men who were trying to cross illegally into the United States - have accused [Roger Barnett] of holding the group captive at gunpoint, threatening to turn his dog loose on them and saying he would shoot anyone who tried to escape.

Let's rephrase that last sentence, using the actual legal term for what Barnett did: "Attorneys for the [illegal] immigrants... have accused Mr. Barnett of [effecting a citizen's arrest of the trespassing illegals]."

If a person enters onto my property unlawfully (as has happened) and threatens me or my property, I believe with great passion that I have the right to make a citizen's arrest and hold him until the police arrive (which I have done). I believe I have the right to do so with a gun in my hand (as I had), since one likely response to trying to do so unarmed would be for the miscreant to attack me.

But I guess that right doesn't exist in Arizona, or so the federal judge appears to believe:

In the lawsuit, MALDEF [the Mexican American Legal Defense and Education Fund, who brought the lawsuit on behalf of the illegals] said Mr. Barnett approached the group as the immigrants moved through his property, and that he was carrying a pistol and threatening them in English and Spanish. At one point, it said, Mr. Barnett's dog barked at several of the women and he yelled at them in Spanish, "My dog is hungry and he's hungry for buttocks."

The lawsuit said he then called his wife and two Border Patrol agents arrived at the site. It also said Mr. Barnett acknowledged that he had turned over 12,000 illegal immigrants to the Border Patrol since 1998.

In March, U.S. District Judge John Roll rejected a motion by Mr. Barnett to have the charges dropped, ruling there was sufficient evidence to allow the matter to be presented to a jury. Mr. Barnett's attorney, David Hardy, had argued that illegal immigrants did not have the same rights as U.S. citizens.

Small wonder that Arizona enacted the law that so infuriated la Rive Gauche!

This lawsuit, being taken so seriously by one and all, should shock the conscience of any real American. After all, we're not talking about some teenaged beach bum cutting across a corner of your lawn to get to the surf. Illegal aliens frequently trash the land, destroy buildings, steal property, slaughter livestock, wreck water tanks seeking a drink (Barnett actually installed a faucet on his 8,000 gallon tank so that they wouldn't keep damaging it), threaten family members, and even kill owners -- and that's when the illegals aren't drug dealers or terrorist infiltrators. How can any legislator in his right mind pass a law making it illegal to effect a citizen's arrest of such potentially deadly trespassers?

Ah, but there's the rub: "in his right mind." As President Felipe Calderón Hinojosa of Mexico recently reminded us, many on the Left believe that people have the "civil right" to migrate.

But if migrants have the right to migrate, the logical conclusion is that those across whose land they exercise that putative right have no corresponding right to stop them. This belief completely upends the great liberty and virtue of property ownership; it tells citizens they have no right to defend their property and vests property rights instead in those who don't own any. It's the clearest oracle yet that Obamunism equals socialism, Michael Medved notwithstanding.

Illegal aliens cannot possibly have a "civil right" to cross a rancher's land to enter the country, just as raging thugs of the Service Employees International Union (SEIU) can have no "civil right" to swarm like locusts onto the private property of a randomly selected Bank of America executive to "protest" that bank foreclosing against defaulted mortgages. In both cases, mobs of leftist looters use the pretense of "populism" to institutionalize theft -- theft of land via migration and squatting, or theft via involuntary debt "forgiveness" in the name of poverty. America is creeping noticibly towards being a kleptocracy, like Venezuela and Zimbabwe.

(Tellingly, as reported by Big Government, the SEIU is itself deep in debt to Bank of America; no conflict of interest there!)

Private property has been under seige for decades, perhaps centuries, if we include such messes as the French Revolution. But for the first time in my lifetime, we now have a president who appears to share the economic views of Venezuela President Oogo Chavez: That everything really belongs to the sovereign, who can reclaim his royal property (that is, the entire country and every jot and tittle of its GDP) whenever he chooses. We live in parlous times; I cannot predict which side will win.

In a forthcoming post, we'll examine the rise of debt-theft since passage of the Community Reinvestment Act... and how that is now driving a government fiscal spending crisis -- which itself triggers a world-wide revolution against government overspending. Action, reaction. Where is the synthesis? Will property rights survive this century?

Hatched by Dafydd on this day, May 25, 2010, at the time of 12:44 AM | Comments (1) | TrackBack

February 14, 2010

The Case of Amy Bishop: Curiouser and Curiouser

Crime and Punishment
Hatched by Dafydd

Questions swirl around the case of the female professor arrested for shooting six colleagues at the University of Alabama at Huntsville; but the controversy is less about the current shooting than it is about an earlier shooting 24 years ago in Baintree, MA, where Bishop lived with her parents at the time..

In the earlier case, the 20 year old Bishop shot and killed her younger brother Seth with a shotgun. One of the arresting officers at the time stated that she had fired three shots: one into the wall of her bedroom, one killing her 18 year old brother, and the third into the ceiling as she left. She was arrested later while hiding outside and brought in as a suspect; but when the mother later claimed that the killing was "accidental," then-Police Chief John Polio of Baintree either called or caused a captain to call at his behest ordering the police to cease all questioning and release Amy Bishop into the custody of her mother:

Frazier said Saturday he'd spoken to another retired officer who booked Bishop at the station.

"He said he had started the (booking) process when he received a phone call he believes was from then-Police Chief John Polio or possibly from a captain on Chief Polio's behalf," Frazier said. "He was instructed to stop the booking process. ... Miss Bishop was turned over to her mother and they left the building via a rear exit."

Frazier said another officer said the paperwork from the shooting went missing in 1988.

(Claims are swirling around the blogosphere that the DA involved was William Delahunt, D-MA, 100%, who is evidently considering whether to stand for reelection or not. I have no idea if this is true; or if true, whether Delahunt had anything to do with the decision to release Bishop without prosecution -- or even much questioning; or if he did, why he did. I only bring it up to prove that I am aware of its existence. If any reader has further information, please post a comment.)

When they were finally able to question her, she and her mother corroborated each other, and no charges were filed -- not even for the three possible counts of negligent discharge of a firearm, or for reckless endangerment, depraved indifference to human life, or even brandishing.

I wonder whether this seemingly abject failure to hold Bishop accountable for what she did in 1986, coupled with the apparent influence of highly placed friends and the subsequent cover-up, started Bishop down the same road that O.J. Simpson later followed, leading Bishop to believe that she was privileged and beyond the reach of the law.

Certainly such belief in recent times seems heavily concentrated within the activist Left; and while it hasn't gotten much airtime, it does appear as though Professor Bishop was an ardent liberal:

Bishop, her four children and her husband, Jim Anderson -- a sometime-collaborator in her research -- settled in a two-story house about 12 miles from campus. They were outspoken Northeastern liberals whose political yard signs stood out a little on their suburban lot facing a cul-de-sac called Scarlett O'Hara Circle.

However, the Los Angeles Times article that raised the issue seems to regard it as a reason why the killing spree was even less comprehensible than it would be if, say, she were a Tea-Party activist.

Following Thomas Sowell's seminal work the Vision of the Anointed, many liberals appear to believe that the law is for "little people" and doesn't apply to those who share "the Vision" and are involved in the urgent task of "saving the world."

The earlier claim that she may have shot her six colleagues because she was upset at being denied tenure is looking a bit shaky now; a recent article in the Huntsville Times reports that Bishop was denied tenure ten months ago; and even her final appeal was rejected months back. So the traditional "defense" of liberals who commit murder or other violent crimes -- that Bishop was driven over the edge by a cruel and heartless tenure decision by the (presumably conservative) University of Alabama -- would seem unlikely in this case. I have no idea whether the U of A at Huntsville is conservative, or whether, like most universities in conservative areas, it's a lonely redoubt of liberalism; but either way, the timeline makes the defense rather less viable.

So we're driven back to the idea of liberals seeing themselves as existing in a Nietzschean state of "beyond good and evil," so vital to the "progress" of the human race that they must be allowed their little peccadillos. We certainly don't have answers yet; but we do have questions and a clear line of inquiry that should be followed, either to establish or refute: Did "liberal privilege" play a role in this seemingly inexplicable shooting rampage?

Alas, I have no confidence in the leftstream media's ability or willingness to investigate any of these questions.

Hatched by Dafydd on this day, February 14, 2010, at the time of 3:17 PM | Comments (6) | TrackBack

January 7, 2010

Voting Rights for Felons: Presto Retro!

Court Decisions , Crime and Punishment , Injudicious Judiciary , Risible Racialism
Hatched by Dafydd

Patterico has posted on this topic as well -- the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer's, and especially a prosecutor's point of view; and in his post, he dressed me down a bit for my previous post here... or so it seemed to me. Patterico writes:

Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.

I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.

My response may be solitary, poor, nasty, and brutish; but at least it's not short!

The first charge is certainly correct; at the time I wrote the post, I didn't have the decision available to me. I couldn't even find the name of the the third judge (turns out to be Stephen Reinhardt, a name not unknown to many of us).

But to say I have "failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring" is only true in the narrowest of meanings: While I didn't grapple with these particular studies by those particular sociology professors, I have been "grappling" with identical claims by interchangeable sociology and criminology professors for more than twenty years!

I wasn't born on the turnip truck yesterday.

And I've learned it's a complete waste of time, because the studies they produce are just a beard for the real function, which is to find a friendly judge or panel, as they did here, and give them any slightest hook to hang their ideology... which they also did. Professors Crutchfield and Beckett could have introduced a wind-up monkey with a plastic banana as their sole exhibit, and Judges Stephen Reinhardt and Wallace Tashima would have given in to their inner guilt and ruled the same way. We were preaching reason to the asylum choir.

The fact is that none of these claims is new. Each has been made, then debunked, in one form or another, in service to one crank liberal "reform" or another, since the dawn of all time (that is, the 1960s): that a racial disparity in measurement X -- incarceration, conviction, trial, arrest, or search -- proves unlawful and intentional racial discrimination by some or all elements of the justice system.

In the very beginning, the anointed were content to point to any racial disparity at all. When evidence mounted far past the "overwhelming" stage that, contrary to liberal dogma and utopianism, people from different cultures do indeed commit crimes at different rates, the anointed realized they had to give some ground.

Ever since the 1980s, when I first began debating this issue in bulletin boards (anybody remember those?), the pro-reform side of academe has followed the same pattern:

  1. The new researchers cite previous researchers who found no discrimination -- and dismiss them as naive or bought off.
  2. The new researchers admit that some of the racial disparity can be explained by real differences in behavior... that is, not by direct racial discrimination; this makes them look reasonable and sets you up for the Fool's Mate.
  3. But, they argue, not all the discrepency can thus be explained (to their unattainable satisfaction) by proper and legal responses to real differences.
  4. Therefore, they conclude, the remaining "gap" must be due to racial discrimination. There's no other explanation, at least none they will consider.

It's very effective, particularly on kritarchs drunk on their own power, just itching for a chance to implement divine judicial controls, enforcing radical liberalism.

I didn't have access to the particulars of this specific batch of anointed; but even if I had, I still wouldn't have bothered "grappling" with their precise claims, because that's not the problem. And my reasoning is almost certainly similar to that of the state's attorneys, and why they didn't go into the specifics of the studies, either: At core, this case hinges on principles completely independent from choosing one of two competing answers to a controversial and active scientific question.

Diving headfirst into the steaming vat of statistics is a mug's game, because it begs the real question. There is literally nothing anyone could say, no evidence that could be produced, that would persuade the plaintiffs that policing and the courts were not citidels of segregation and redoubts of racism: It is part of their fundamental-materialist religious faith.

When setting public policy on vital democratic issues related to scientific questions (hello, global warming), there are always three considerations -- threshold conditions, actually; and none covers what I think Patterico suggested I should have done:

  1. Is the science settled? E.g., is there a scientific consensus among criminologists and sociologists that the criminal justice system in Washington is inherently racially discriminatory, violating the rights of legitimate voters?
  2. If so, then what options exist to alleviate the problem? In this case, what can Washington do to bring itself into compliance with federal standards and its own state standards of racial neutrality?
  3. Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people? In this case, if people are being wrongfully disenfranchised, what is the least disruptive way to let the actual victims start voting again?

(Sorry for all the bullet points, but some arguments really lend themselves to such constructs.)

Alas, I don't think there is a very good match between the questions above, which should inform all major policy decisions, and the demands of a federal court trial, which is an adversarial exercise in which one side generally wins and the other loses. That's too bad... because in fact, not a single one of the three threshold conditions above is satisfied (and all three need to be). Moreover, when the thresholds are not met, the judiciary has no business interfering in public policy... even apart from any great principles of freedom that trump the scientific quibbling.

Now, if a particular prisoner wants to argue that his personal voting rights were violated, let him make that claim and duke it out in court. That would at least be a judicial task.

But instead, the question that the court considered (and ruled in favor of) was grotesquely anti-democratic, collectivist, and, to put it bluntly, profoundly unAmerican: Not whether the voting right of any particular prisoner was violated, but whether the rights of all blacks and Hispanics in Washington state were violated.

And the substance of the "right"? Why, the right to have the votes of all blacks and Hispanics, law-abiding and convicted felon alike, count for the Democrats. I won't mince words; the liberal-activist Democrats want more electoral victories, and they think this will do it.

It's the Lani Guinier Conundrum: Does a bloc of voters have the right to win a certain percent of the time? In 1993, Bill Clinton nominated Guinier to be Assistant Attorney General for Civil Rights. Her nomination ran into a buzzsaw in the Senate and was eventually withdrawn.

She believed that indeed yes, blocs of minority voters -- specifically blacks and Hispanics -- had a right to win, even when they were in the minority; otherwise you have a "tyranny of the majority," she argued in the book of that title. (The hidden racist assumption is that all "minorities" think alike... or at least they should!) Thus, Guinier supported various weighting schemes to make each minority vote count for more than each of the votes of the majority. (She had to have assumed, again, that each class would vote its "class interest.")

I'm convinced that is precisely why the present case was brought: Not that the plaintiffs really cared that felons be allowed to vote, but that they assumed that a big, new bunch of black and Hispanic voters previously disallowed from voting would, when finally unleashed, vote solidly liberal-Democratic.

(Patterico notes another point: Many prisons are sited in rural areas, not in the midst of huge population centers, for obvious reasons. Thus, that "captive audience" of voters would exert a super-heavy, possibly determinative influence over local elections about local issues. In my opinion, they could practically take over small towns!)

I haven't forgotten the three questions above; we'll get back to them. But we're still dealing with the fundamental principles, and why the specific claims of liberal sociologists are actually irrelevant.

We have a fundamental principle in the United States; and that is that "rights" inhere in individuals... not factions. It does not matter how a right will affect the results of an election; freedom of speech applies to all, not just favored constituencies; either every individual has the right or none does.

In this case, no individual legal voter is denied his right to vote merely because a convicted felon with a similar skin color has lost his right to vote. My voting right is intact, even though white convicted felons housed nearby must sit out the election. However much the faction of liberal, black and Hispanic Democrats may wish they could scavange a few more votes from the prisons and among those felons who have served their time, they have no "right" to those votes.

The hyper-principle here is that the Voting Rights Act was never meant to hand more power to a particular voting faction; it was meant to protect each individual from being wrongfully denied his constitutional and state-constitutional right to cast a vote. It no more violates the voting right of a legal voter to disenfranchise convicted felons than it does to disenfranchise children, non-residents, aliens, or those who do not register to vote.

To say otherwise is to say that everyone can vote... mewling infants, alien serial killers, foreigners living abroad, and the dead. (But if the dead aren't allowed to vote, how will Democrats ever win another election in Illinois, Louisiana, or New Jersey?)

That is why it literally should make no difference whether the judicial system in Washington state is racist, because the remedy plaintiffs sought (and the Ninth Circus granted) was wild overkill, and a complete non-sequitur:

  • If plaintiffs could prove that blacks and Hispanics were being convicted of bogus charges in order to prevent them from voting, then they should bring a case to release those particular blacks and Hispanics and expunge their convictions.
  • If plaintiffs could prove that blacks and Hispanics were being frightened away from the polls by a latter-day Bull Connors, then they should bring a case to prevent the police from doing so, and perhaps award damages to the actual victims.

But under no circumstances should the "remedy" be to allow all felons, willy-nilly, to vote, because that is not even the problem they allege. The problem they allege is that the justice system is racially discriminatory, not that it's unconstitutional or illegal, as a general point, to suspend or eliminate a felon's voting rights (along with his right to possess firearms, his right to join the armed services, and so forth).

The proof is simple: If they were asserting a general right of felons to vote, then why bring up racial discrimination at all? If a felon has such a right, then he has it whether he is black, Hispanic, Asian, American Indian -- or white; and whether he is incarcerated in a city that has a discriminatory justice system or one whose justice system is squeaky clean, even by Stephen Reinhardt's standards.

By relying on claims of racial discrimination and the Voting Rights Act, plaintiffs admit that they only assert that some felons have the right to vote, not every felon everywhere; some felons are more equal than others. A black felon housed in Massachusetts has no such right; but if he's transferred to a prison in, say, rural Georgia, where the justice system may be racially discriminatory, then he would suddenly gain the right to vote -- even if he were never detained, searched, arrested, tried, or convicted in that county. Quelle surprise!

That is why I didn't even bother examining the claims of racial discrimination in the Washington justice system: As Perry Mason would say, because it's irrelevant, incompetent, and immaterial... and that is the part of this debate that has not changed since the 60s (when the lunacy began), nor since the 80s (when I began debating the lunatics).

All right, with the principles clarified, we could stop right there; we don't reach the question of the science. But we're not a court, so we can still ask those three questions about this particular issue. In case you've forgotten in all the excitement, here they are again:

  1. Is the science truly settled?
  2. If so, then what are all the options available to the state alleviate the problem?
  3. Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people?

On the first question, no, the science is obviously not settled, because many criminologists and sociologists argue that the justice system is not inherently racially discriminatory; as Patterico notes, the plaintiffs' experts actually cite some of those disagreeable dissenters.

"Not settled" guarantees that somebody is wrong here. It doesn't guarantee anybody is right; in theory, everyone could be wrong! But at the least, the anointed reformers could be wrong; the scientific method will have to sort it all out... assuming it's allowed to function, unlike the Climategate fiasco.

So far as I know, Patterico is not qualified to mediate between competing scientific claims about racial disparities and racial discrimination. Certainly neither am I, despite my math background; the intricacies of the science are well beyond me. But neither is either Reinhardt or Beckett; so where do they get off, ruling that Crutchfield and Beckett had better science than other researchers who found no illegal discrimination? Has either robèd gentleman taken even a single university-level course in statistics?

For an encore, Reinhardt and Tashima will issue a legal opinion on the Continuum Hypothesis, whether an infinity exists strictly between ℵ0 and ℵ1; the mathematical world waits with baited hook.

As I noted last post, all criminologists (including those hired by the plaintiffs in this very case!) agree that people from different cultures do indeed have different crime rates; the only disagreement is whether that behavior completely explains the conviction discrepency. Ergo, there is no consensus that the system is racist, and the very first threshold condition is not met.

Mind, all three must be met before it's legitimate for judges to monkey with voting or legislating. The anointed reformers have already lost the argument (though not the case, alas, at least not yet). But in fact, they lose on both other points as well:

They failed to enumerate all the available options, or even all the obvious ones. For example, they didn't suggest that each convicted felon's case should be reviewed, and voting rights granted only where a significant likelihood exists that the convict was railroaded due to racial discrimination. Why should a white convict caught red-handed robbing a Tofu store have his voting rights restored? What does that have to do with the plaintiffs' race-based theory of the case?

Finally, nobody has claimed, not even Patterico, that the majority judges weighed several options for dealing with the supposed racism within the justice system -- then picked the least disruptive of them all. I conclude a complete lack of parsimony; they jumped right to the most radical "remedy."

See? I didn't forget.

So the long and the short of it [hah, try and find the "short"!] is that I didn't grapple with the specifics of the claims by the anointed reformers because it's a dead-end detour; it has nothing to do with what's so wrongheaded about this decision. The scheme is as old as dirt, and I figured out a long time ago that there is never any closure arguing with people like Professor Crutchfield: He'll let you horse him around from one inconsistency to the next; then when you get tired and wander away, he'll loudly declare victory.

I went straight for the rhetorical jugular, the unAmericanness and radical nature of this decision. I have no regrets.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 7, 2010, at the time of 11:18 PM | Comments (0) | TrackBack

January 6, 2010

Voting Rights for Felons: "Race Neutral" = Race Biased

Court Decisions , Crime and Punishment , Injudicious Judiciary , Risible Racialism
Hatched by Dafydd

In an astonishment of paralogia and "dumbth," a three-judge panel of (what else?) the Ninth Circus Court of Appeals has just ruled, 2-1, that felons should be allowed to vote, even while still in prison.

To add collectivist offense to insult (they went long past mere injury), their reasoning was so racially byzantine that it sounds like a parody: A greater percent of blacks and Hispanics are incarcerated than whites; therefore, depriving these felon convicts the right to vote from their prison cells violates the 1965 Voting Rights Act!

"I can hear the cuckoo singing in the cuckooberry tree..."

Say -- wouldn't the mere fact that blacks and Hispanics are jailed at greater percentages than whites all by itself violate the 1964 Civil Rights Act ban on segregation? Let's mandate that all races be incarcerated at exactly the same percentage as their representation in society: We let all the excess blacks and Hispanics go free, and send an appropriate number of whites and Asians to prison to balance it out, even if they haven't been convicted of any crime. Sounds like a natural extension of the court's reasoning to me.

(This is a non-trivial analogy: The reasoning of this panel is that the punishment violates the Voting Rights Act because, due to black and Hispanic overreprepresentation in prison, those federally defined races suffer a "disparate impact." But by the same logic, if blacks and Hispanics are incarcerated at a greater rate than their numbers in the population, that too is a "disparate impact" that dictates where people are allowed -- or in this case, required -- to live on the basis of race. I'm certain the next step is to do just what I sarcastically suggest in the paragraph immediately above.)

The majority decision was written by Judge Atsushi Wallace Tashima, who was first nominated to the bench by Jimmy Carter in 1980, then elevated to the Ninth Circus by Bill Clinton in 1995 (confirmed in 1996); the dissenter -- she wanted it remanded back to the courts to consider whether this calamity of non-voting felons was mitigated by a recent Washington state law making it easier for felons to recover their right to vote after finishing their sentences -- the dissenter, Margaret McKeown, was nominated by Bill Clinton in 1997. (I cannot find the name of the concurring judge.)

Here's the court's reasoning, from SFGate, based in San Francisco:

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state's legal system: arrest, bail, prosecution and sentencing.

If the ruling survives, it will be binding in the circuit's other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.

About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.

Among those in Washington state who commit crimes, "minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted," Judge A. Wallace Tashima said in the appeals court's majority opinion.

For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.

Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.

It's an odd kind of racism, however, that discriminates against blacks and Hispanics but in favor of Asians, who are so underrepresented in prison that they're routinely excluded from all statistical analyses of the prison population by race. This despite the fact that racial discrimination against Asians has a long history in the United States going all the way back to the mid-19th century. (American Indian is a separate category in our "race-neutral" federal taxonomy of race.)

Oh, well.

It will probably be struck down anyway by the Supreme Court, if not by an en banc hearing of the Ninth:

A state appeals court in San Francisco upheld California's voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.

"Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison," said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. "If you do, you are going to be denied your right to participate as a full citizen in our society."

Nevertheless, let's pick through the detritis of legalisms the court appears to have relied on in this wretched decision, propositions so risible that only a lawyer could argue them. It won't take long (compared to reading Tolstoy):

Blacks are "disenfranchised" at a rate not proportionate to their numbers within the jurisdiction of the Ninth Circuit Court of Appeals; this clearly proves the entire justice system is racially discriminatory.

The assumption here is that all races, cultures, sexes, ethnicities, and nationalities should logically commit crimes at the same rate; thus, we would expect black teenagers living in Compton or Watts (or whatever the equivalent ghetto is in Washington) are no more likely to commit a felony than a Japanese-American soccer mom living in Beverly Hills. Ergo, if we find that more inner-city black youts per capita are imprisoned than Asian mothers of middle-school kids, we've proven illegal discrimination.

Anyone who accepts such a line of hooey is a dolt, robes or no robe.

Clearly, different races have different propensities towards crime. I do not believe this is due to genetics; rather, the cultures they have grown up in and voluntarily internalized "enable" wicked, evil, criminal behavior more than do other cultures. (And yes, before you ask, I have indeed read the Bell Curve and find many of their arguments unpersuasive.)

For example, the statistical tables for the 2006 National Crime Victimization Survey, conducted annually by the Justice Department's Bureau of Justice Statistics, finds (Table 40) that blacks account for 31.7% of all completed violent crimes (single offender), including 42.2% of all completed robberies and 50.8% of all completed robberies with injuries.

Yet a quick glance through at the U.S. Census numbers for 2006 shows that blacks make up only 13% of the population (which is likely an overcount, since it's based on self-report). Even accepting this probably exaggerated figure, that indicates blacks commit violent crimes at a rate two and a half times more than their percent of the population; they commit robberies at three times their numbers; and they commit robberies with injuries to the victim at a rate four times their numbers.

Every criminologist will tell you the same thing: Blacks and Hispanics commit more violent crimes per capita than do whites; though ideologically reassuring for some, the axiom of "cultural equivalence" falls apart in the real world. Thus merely citing "disproportionality" proves nothing about causality.

(For that matter, 93% of those imprisoned in 2008 were male; isn't anyone going to investigate the "obvious" sex discrimination against men?)

Minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted.

Searched: If the victim describes his attacker as black, Hispanic, or Asian, shouldn't the police focus their searches on people who at least meet the description? Or should they stop and search white senior citizens, even when the victim says he was robbed by a young black male, just to even things out? This is lunacy.

Arrested, detained, prosecuted: Police arrest or detain suspects when their investigations find evidence supporting an arrest or detention. If the court wants to rule that racism pervades "the system," shouldn't they at least point to evidence that, say, blacks found with crack cocaine are routinely arrested, while whites found with crack cocaine are routinely set free?

If there was any evidence of such, I strongly suspect it would have been reported by somebody; yet I read nine separate articles and found no reference to any such evidence.

Minorities are more likely to be convicted than whites who commit crimes, and more likely to be incarcerated if convicted.

The SFGate article didn't mention anything about conviction rates or sentencing, but that must (by definition) explain the "missing" percent to account for the higher rate of incarceration of racial minorities than whites. There are a number of non-racially discriminatory reasons why certain minorities could be convicted at a rate higher than whites (and much higher than Asians):

  1. Type of crime -- Some felonies, such as robbery, are more easily prosecuted than others, such as confidence games, burglary of unoccupied buildings, or insider stock trading, due to the differential impact on a jury of eyewitness testimony v. forensic testimony. Blacks and Hispanics commit violent crimes at a rate higher than whites, but whites probably commit nonviolent crimes at a higher rate than do blacks. Put the two together, and you have part of the incarceration answer.
  2. Poverty of defendant -- It seems self evident that people with money stand a better chance of being acquitted, or if convicted, a better chance of avoiding prison time, than poor people; quality of representation plays a huge role at trial (duh). It might be unpleasant to realize that the rich get off in situations where the poor, with their court-appointed attorneys, get jugged... but it is not due to race, as the O.J. Simpson trial proved.

    A lower percent of blacks and Hispanics than whites and Asians are able to afford a high-powered attorney. But if that is now "evidence" of racial discrimination in the courtroom, then we may as well say that the undeniable fact that a greater percent of whites than blacks can afford big houses "proves" racial discrimination in the real-estate market. What next -- must we have racial quotas for mansion ownership? Let's just ban all private housing and make everyone live in identical, government-owned shoeboxes.

  3. Attitude at trial -- Do we know for sure that black and Hispanic defendants are no more likely than whites and Asians to have a truculent, belligerent demeanor, leading juries to be more likely to convict them? I sure don't, and it doesn't seem facially obvious to me that childhood and adult-selected culture would have no effect on how a defendant acts during his trial. Again, combine the two, and you have defendents of certain races sabotaging their trials by their own aberrant behavior.
  4. Defendant's plea -- The BJS reports that of those defendants sentenced for a criminal offense in 2006, 94% pled guilty. But how does that break down by those sent to prison and those given probation or just a fine? Is a defendant more likely to go to prison if he pleads guilty, or if he pleads not guilty and vigorously contests conviction? If the former, as I believe if it, and if blacks and Hispanics were more likely to plead guilty than whites and Asians, that too would trend towards explaining why some races are overrepresented in prison.
  5. Prior convictions -- I haven't seen any statistic on how many blacks and Hispanics have prior convictions versus how many whites and Asians; this can certainly affect whether the convict is sentenced to prison. Where is the study on this question?

There are five confounding factors just off the top of my head, ten minutes' thought. No story I've read has raised a single one of these factors; evidently, they don't fit what Andrew Breitbart calls the "story-board" of this issue -- the comic-book tale that journalists really want to tell -- and all facts will be tortured until they surrender to it. In this case, the story-board is summed up by some jerk at Newsweek:

But the issue of prisoners participating in our democracy buries the real news in the decision. The court threw out Washington's law because its criminal-justice system is biased against minorities. The problem isn’t with disenfranchising prisoners, it’s with a state legal system that unfairly throws so many people of color in prison that their voting power is diluted.

This is followed by a slavish recitation of the statistical "proof" of discrimination, about which seldom is heard a discouraging word.

What it really boils down to is that the burden of proof should be on those claiming the entire justice system is riddled with racism... not on the rest of us to "prove" that racial discrimination (by whom?) didn't play a role in some black mugger with mutiple priors being sent to the Concrete Mama in Walla Walla.

Let's swing back to the Fox News story for a moment; this is the quotation that fired me up to write this post:

The two appellate judges ruled that disparities in the state's justice system "cannot be explained in race-neutral ways."

What do they mean by "race-neutral?" I think it's pretty clear that they demand that all races commit crimes in lockstep with their percent of the population. When that doesn't happen, they immediately see racism as the only possible explanation.

Today, their solution is to allow imprisoned felons, who have shown contempt for the law, to vote on who will create those laws; that is, to remove that punishment for crime. But tomorrow it may be, as I suggested, to simply force the prison system to precisely mirror the racial makeup of the country... no matter what disparate impact that would have in the real world on whites and Asians accused of crimes.

But there is a deeper, even more insidious racism in this case, and it oozes from every pore of the majority: By ruling that denying voting rights to convicted felons discriminates against minorities in general, two judges are equating felons of all races with the entire minority population. It's as bad as saying an entrance exam for getting into university "discriminates against blacks." Why, because blacks are known to be unusually stupid?

How stunningly offensive. Crikey, what a horrendous calumny that is on the honest, law-abiding, minority population of the entire western United States.

How does Los Angeles Mayor Antonio Villaraigosa feel to learn that anti-punishment radicals equate his voting rights with those of convicted felons, or argue that Villaraigosa is statistically "more likely" to be sent to prison than, say, San Francisco Mayor Gavin Newsom? I would be hopping mad.

This entire decision of the Ninth Circuit is based upon collectivist reasoning, seeing every person who happens to be black or Hispanic as nothing but a representative of his race, felons an all. The court gives no weight to the individual choices made by free individuals in a free society; it's a vile, despicable worldview that has more in common with Jim Crow than with the Voting Rights Act.

The best defense against racism -- the ultimate collectivism -- is not more collectivism, but rather treating people as individuals. Alas, I suspect it will be a long, long time before the Ninth Circus dips a toe into such a radical pond as individualism.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 6, 2010, at the time of 6:30 PM | Comments (0) | TrackBack

December 3, 2009

Polanski Peel-Out Pool

Crime and Punishment
Hatched by Dafydd

I'm setting up a "betting" pool. Not with real money, of course; we have no way to force losers to pony up. This is just a fantasy-bet pool.

Pick how many days will elapse from Roman Polanski's release under "house arrest" until he splits down the Alps -- on the French side.

Choices range from "the same day he's released" to "after one day", "after two days", etc., all the way to "won't jump bail at all" (for the trusting types). Please post a comment picking some number of days after Polanski's transfer to house arrest; whoever comes closest gets bragging rights and predictive prestige.

(Only one commenter per pick. All dates will be as reported in the Washington Examiner or the Washington Times; if the papers disagree on the date he was released or the date he runs, well then maybe two people get to win.

(And to make it fair for whoever picks "never," that person wins if Polanski still hasn't fled thirty days after the latest date picked by commenters: For example, assume the latest date picked is twenty days; then if fifty days [20 + 30] elapse without Polanski running, and assuming nobody else picks a later date in the meantime, then the "never" guy wins.)

I'll get the ball on the road: I think Polanski will wait a while, making sure he has everything arranged before bolting and waiting for Swiss police attention to wane. So I'm picking 12... I say he runs twelve days after being transferred to his chalet in Gstaad.

Please link this post or e-mail the URL to your pals -- the more the merrier!

Fire away...

Hatched by Dafydd on this day, December 3, 2009, at the time of 12:54 PM | Comments (9) | TrackBack

November 25, 2009

Exit Laughing

Crime and Punishment
Hatched by Dafydd

Well, surprise, surprise: a Swiss court has abruptly and inexplicably reversed itself; it will now grant Roman Polanski bail in the amount of $4.5 million, though that might still be reversed on appeal:

A Swiss court granted Roman Polanski bail on Wednesday, accepting $4.5 million to allow him to remain under house arrest at his chalet. The director will stay in prison for up to 10 days while the Swiss government decides whether to appeal.

The Swiss Criminal Court reversed its previous rejection of bail, saying it was confident the large cash guarantee would compel Polanski to remain at his chalet in the Swiss resort of Gstaad under house arrest and monitored by an electronic bracelet.

The court said it still viewed him as a high flight risk.

I'm confused: If the court still views Polanski as a "flight risk," if he already fled once when facing just a few weeks more in prison, then why does it even consider granting him bail?

But who knows; maybe there is something in Swiss law requiring it, I have no idea. I'm really interested in another aspect of this question, one based on a hypothetical (that actually seems fairly likely to me):

  1. Suppose bail is finally granted;
  2. Suppose Polanski makes bail and is sent to his chalet in Gstaad under "house arrest;"
  3. Then suppose he escapes again, right back to next-door France.

Would liberals -- and their neolibertarian allies, on this and many, many other issues recently -- cheer the escape? Would they treat child-raper Roman as a folk hero, the way earlier liberals treated John Dillinger -- and the way they worship Robin Hood as a hero even today?

I would be far more upset if the latter group did so than the former; I expect more from libertarians than from liberals. I don't know why; lately it seems that so-called "movement libertarians" are actually wereliberals, who go barking mad and howl at the moon every November of an even-numbered year. Still, at least they pay lip service to concepts such as rule of law and the idea that violent crime should be suppressed; liberals seem quite content using naked force to steal whatever they cannot beg or borrow.

So would those two subsets of humanity cheer the escape of Roman Polanski, if such eventuates?

I ask because I'm not sure. On the one hand, liberals revered those two armed robbers and murderers, Mr. Dillon and Mr. Hood, because they saw them as "great redistributionists."

Oddly, a great many people who call themselves "movement libertarians" feel the same way -- though it seems strange that folks who claim Capitalism as their greatest economic ideal would cheer "spreading the wealth around." (Of course, the strong libertarian support for candidate Barack H. Obama in 2008 augurs that the libertarian rejection of forced income redistribution may not be as strong as it once was.)

I've heard libertarians argue that Robin of Locksley and John Dillinger were actually "anarchists," and they were really attacking "the State" and the centralized banking system. However, what they really did, in reality or in fable, was steal from "the rich" -- i.e., any non-pauper who traveled the roads in Sherwood, anyone who made a bank deposit -- and give to themselves... and incidentally, give just enough to the poor to get a good rep as philanthropists, so the ordinary citizen wouldn't rat them out (the Jesse James gang used the same tactic). Thus, they're more like French revolutionaries than political anarchists.

But in any event, Roman Polanski cannot possibly be considered a "great redistributionist" by either liberals or libertarians; so that should, in theory, argue against either group being happy if he escapes the authorities yet again.

On the other hand, both groups -- let's just call them "the libs" collectively -- whined and bitterly complained when he was captured in the first place; the libs urged his release by Swiss authorities so he could not be extradited back to the United States.

Whatever their mysterious reasons for taking the rapist's side, the fact that they did makes it immensely hard to take the other side if he escapes: It would be tantamount to admitting they were foolishly wrong before; and both branches of the libs share an almost genetic inability to admit folly, at least in my experience.

Both parties include in their "definition of self" the deeply rooted belief in their own mental superiority to, well, everyone; but especially to conservatives, whom libs see as religious fundamentalists akin to the mullahs of Iran -- or snake-handling, tongue-speaking, charismatics and zealots (to the extent libs even know the difference). There simply is no way in Hades that a lib would ever admit he was wrong about an issue if that meant a conservative was right.

On the third hand, the libs (especially lib journalists) appear to suffer from a great and shared confusion about the nature of the actual crime committed by Roman Polanski. Sadly, the ignorance even infects the very Breitbart story we've been quoting... and Andrew Brietbart is supposed to be one of the good guys!

The verdict does not affect the Swiss Justice Ministry's ongoing assessment of whether Polanski should be extradited to the United States for having sex in 1977 with a 13-year-old girl. Polanski fled sentencing in Los Angeles a year later.

Just to set the record straight, Polanski did not "have sex" with a thirteen year old girl, no matter how much the libs would like to rewrite the crime to fit "the story" they want to tell... the story of hinky, uptight Victorians who want to persecute this brilliant artist just because they hate sex.

Polanski drugged and raped a struggling, terrified thirteen year old girl -- first orally, then anally, then vaginally. Then he paid her mother half a million dollars as a bribe -- and also had his lawyers threaten the little girl into silence, saying they would bear false witness against her, telling the mass media, hence the world, that she was a whore who was just trying to shake Polanski down.

After the victim was intimidated out of testifying, the prosecutors cut the best deal they could; and Polanski pled to statutory rape. He served six weeks in prison; but instead of going to court to get his final sentencing, he escaped and fled to la Belle France.

Roman Polanski is an escaped violent felon. But to a whole subsegment of the country, including most journalists, his only crime was "having sex in 1977 with a 13-year-old girl," who (nudge, wink) probably instigated the whole thing anyway.

Since it's all just about sex (just like Bill Clinton, who both liberals and libertarians also elevated to heroic stature during his impeachment), there is a strong impetus for the libs to cheer Polanski's possible future escape. Those conservative theocrats never want us to have any fun!

Taking all in all, I would bet a lot of money that most libs would set up a whoop and a holler if Polanski took advantage of Swiss generosity and escaped custody. Again.

So the next question is -- could he escape? And would he if he could?

The court in Geneva expresses confidence:

"The 76-year-old appellant is married and the father of two minors," the court said as it considered Polanski's offer of a cash bail secured by his apartment in Paris. "It can be assumed that as a responsible father he will, especially in view of his advanced age, attach greater importance to the financial security of his family than a younger person."

The court said Polanski would be subjected to "constant electronic surveillance" at his chalet and an alarm would be activated if he leaves the premises or takes off the bracelet.

But I'm not so sanguine. All the electronic bracelet can do is alert authorities that he has fled; it can't stun him with an electrical shock like a taser, nor can it prevent him from walking, running, or even flying in a helicopter. If he picks his time carefully -- a holiday, late at night -- he could dart into a waiting car (or helo) and get the hell out of Dodge. All right, out of Gstaad.

The Swiss cops would probably call Polanski's cell phone first, and he would tell them he's sitting quietly in his chalet; they would send a patrol out to investigate, wasting more time. By the time light finally dawned on the cheese-making bell ringers, Roman Polanski would have a big enough head start that, like a reverse von Trapp family, he could speed over the Alps and back into sanctuary in next-door France. There, he could jeer the hapless, dour authorities, thwarted in their attempt to limit human freedom -- rather, limit the license granted to artistic aristos to seize their pleasures where they will, and to hell with how the peasants feel about it.

Sure, he would lose his money; but he probably hocked his Swiss chalet to get the cash in the first place. It's clear that if he escapes, he would never be able to return to that chalet anyway, so who cares if it's forfeited to whomever put up the dough? (I'm sure the Swiss would never be motivated by $4.5 million to drag their feet on recapturing him, for they are all honorable men.)

But wait -- what about his kids, his paternal responsibility? Without those millions, he might not be able to send Morgane and Elvis to the finest schools in old Europe, thus depriving them of the elite, aristocratic upbringing which is their birthright, as the princess and prince of titled cinematic royalty. Who could imagine Roman Polanski doing anything to harm a child?

Oh, wait...

Yes, I think Roman Polanski could easily arrange an escape if he's minded. And I strongly suspect that liberals (and movement libertarians) would set up a lusty celebration if he did. I'm not sure they would, but that's how I'd bet it. They bemoaned his arrest, why wouldn't they cheer his escape?

I don't care much about liberals; anybody who could support socialism and Jacobism, now that we know where they inevitably lead, is so far gone already that one more lump of vile abuse won't move them any further down the circles of Hell.

But my evidence-based suspicion fills me with a great sense of loss for the libertarian movement I once proudly joined, back when I thought they really meant what they said: that the only true crimes where those rooted in "force or fraud." The only fraud was their claim that they actually opposed the initiation of force... at least when an aristocrat was merely enjoying his "droit du seigneur."

Alas, I must conclude that contemporary libertarians don't reject feudalism; they envy it.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, November 25, 2009, at the time of 2:57 PM | Comments (5) | TrackBack

November 20, 2009

Imagine No al-Qaeda, It's Easy If He Tries...

Crime and Punishment , Presidential Peculiarities and Pomposities , War Against Radical Islamism
Hatched by Dafydd

The national-defense syllogism of President Barack H. Obama is pristine in its consistency:

  • The war against the Iran/al-Qaeda axis is over! It ended on January 20th, 2009, when the One We Have Been Yearning For was finally inaugurated.
  • It was just one more of those failed policies from the previous administration. The war criminal Bush brought it on himself when he enraged the world by launching an unprovoked invasion of Iraq.
  • There are still a few criminal gangs that want to commit crimes against individuals inside the United States. The attacks on the American embassies in Kenya and Tanzania, the bombing of the U.S.S. Cole, the attacks on the World Trade Centers and some other public building -- these were crimes: serious perhaps, but no different in substance from a home-invasion robbery or a residential burglary.

    And we already know how to deal with crime: After the next 9/11, we'll issue an immediate and sweeping flurry of indictments against the suicide perpetrators.

  • Of course, you can't stop a burglary with missiles and bombs... therefore we should stand down all those needless, senseless military defenses -- think of the money we could save!

And to gain the love of the whole rest of the world, we should proudly and publicly proclaim that we've done so:

The commander of military forces protecting North America has ordered a review of the costly air defenses intended to prevent another Sept. 11-style terrorism attack, an assessment aimed at determining whether the commitment of jet fighters, other aircraft and crews remains justified....

The review, to be completed next spring, is expected to be the military’s most thorough reassessment of the threat of a terrorism attack by air since Al Qaeda’s strikes on Sept. 11, 2001, transformed a Defense Department focused on fighting other militaries and led to the Bush administration’s “global war on terror.”

Think of it: No more fighter jets fueled and ready to shoot down airliners... no more American troops sent all over the world... no more Guantanamo Bay... no more torturing innocent farmers and scholars kidnapped from Tora Bora. With all the protections against crime we now have -- security screenings at airports, locked cockpit doors, no-fly zones around wherever the Obamacle happens to be -- who needs military force?

The eight-year national nightmare is over; it turns out that the entire premise of "war" was flawed to begin with, as the trials of Khalid Sheikh Mohammed and other criminals prove. And the money, the expense! Just think how all those billions that could be better spent on seizing control of health care and crippling America's energy production:

The assessment is partly a reflection of how a military straining to fight two wars is questioning whether it makes sense to keep in place the costly system of protections established after those attacks on the World Trade Center and the Pentagon. Though the last of the air patrols above American cities were discontinued in 2007, the military keeps dozens of warplanes and hundreds of air crew members on alert to respond to potential threats.

“The fighter force is extremely expensive, so you always have to ask yourself the question ‘How much is enough?’ ” said Maj. Gen. Pierre J. Forgues of Canada, director of operations for the North American Aerospace Defense Command, or Norad, which carries out the air defense mission within the United States military’s Northern Command.

What could possibly go wrong?

We cannot stick with the old regime of military defense anyway; we just don't have the resources:

General Forgues said the American and Canadian fleets of fighters, refueling tankers and radar planes “are always in high demand and low supply.”

Rather than do something crazy and counterproductive, like increasing the supply of fighters and refueling tankers to match the demand, it's so much easier simply to reduce demand by ending the air defenses.

But of course, nothing is carved in stone yet; that Canadian general who runs the American air defense at NORAD, Pierre Forgues, is merely conducting a review. Who can say how it may turn out?

General Forgues cautioned that there was no predetermined outcome of the review and that it was possible the commitment to the air defense mission would remain the same, or even increase.

Just as Obama, after careful consideration, may actually choose a counterinsurgency strategy in Afghanistan and send even more troops than Gen. Stanley McChrystal has requested -- who can say? It's still under review.

The Times notes the truly staggering expenditures of the Bush regime's warmongering and jet-jockeying over the skies of America: Combat air patrols over our cities cost (brace yourselves) in excess of $50 million every week. That's more than $2.6 billion each and every year -- an utterly unsustainable expense, fully equal to an entire week of the price for ObamaCare. How can we possibly continue to bankrupt ourselves by paying for such unnecessary, imperialist, neoconservative militarism?

Thank goodness our nation came to its senses in time to elect a president who believes in strength through disarmament. It's no wonder he was awarded the Nobel Peace Prize; Barack Obama is Mother Teresa on steroids.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, November 20, 2009, at the time of 1:27 PM | Comments (1) | TrackBack

November 6, 2009

"Respond, Bradlequin!" Said the Liz-Laz Man

Crime and Punishment
Hatched by Dafydd

Our friend and worthy co-conspirator responds to my response to his original article in Mondo Cult about the Roman Polanski case:

The following is an addendum to my article, "Repent, Roman!" and is simultaneously available at both the Mondo Cult Forum and Big Lizards.

I'd like to thank everyone for participating in the debate, including The Fearless Polanski Hunters. We have discussed this in a more civilized manner than what's going on in the Left / Right mass media.

Many of my friends have participated, beginning with Mondo Cult editor Jessie Lilley. My thanks to Jessie for getting down and personal in her responses.

Next, I thank my co-author of the DOOM novels, Dafydd ab Hugh, for the best arguments against my position and his compliments about Yours Truly.

Naturally, I enjoyed the comments from J. Kent Hastings, J. Neil Schulman, Bill Ritch and Big Lee Haslup. It was Big Lee who saw through to the heart of the matter. He's right that what interests me most about the Polanski affair is not Polanski but the American reaction to this old case.

(I also received interesting comments from John DeChancie, Bill Patterson, Chesley Morton and Ed Kramer.)

Let me respond to one of the challenges presented by Dafydd ab Hugh. I think my biggest surprise is that he and I have such different takes on individualism.

I never wanted Polanski to get away with acting like a thug to that young teenager but I am satisfied that private justice was done when they reached a financial settlement. I am a libertarian. After all these years, I don't care if Polanski gets away with defying the American State. It doesn't do damage to the cause of individualism if this Polish Jew avoids getting beaten up in an American prison. American individualism faces more serious challenges.

Recently, I saw a special on the History Channel about Robert E. Burns, the man whose real life story inspired the 1932 Warner Brothers film I AM A FUGITIVE FROM A CHAIN GANG. The state of Georgia was outraged that this man escaped the coils of their system and wanted him extradited from New Jersey. Attorneys from Georgia argued that Burns had an unfair advantage over other fugitives because of his celebrity status thanks to a popular movie. Needless to say, the Hollywood elite back in the 30s was supportive of the fugitive.

New Jersey declined Georgia's request to send the guy back to that most democratic of all institutions, the chain gang. We must ask ourselves a question, did this celebrity driven double standard do damage to American individualism?

No way.

I do not agree with the Dafydd Theory because it strikes me as closer to egalitarianism than individualism. I don't see the Law as an Absolute! If I did, I would not fear and resist the State. I am not an anarchist, but I am a minarchist. I want to limit the reach of the State. Unlike the authoritarians who infest the American Right today, I really want a limited government. That's why I could never have a show on talk radio. I want a muscular State only to deal with dangerous enemies who truly threaten this country.

I am not equating the Polanski rape charges with the Burns robbery charges. I am equating the two men because they both had high profiles and were on the lam. The American people sometimes have more common sense than the authorities.

I cannot resist seizing the opportunity to respond to his response to my response. Brad's point is as always well taken; the law is a trollop who will sleep with anyone. But that doesn't mean that every dalliance with "the Man" is necessarily illicit.

I can boil down my fundamental axiom on individualism, and perhaps my core disagreement with Brad, to the following:

Individualism remains fragile.

Humans have not yet evolved to the point where individualism is the default social order. I believe someday it will be, when technology has sufficiently evolved. But for all of human history, the reflexive response of groups of humans trying to survive in a frequently hostile natural and social environment has been collectivism -- collectivism that runs the gamut from the most repressive and brutal kind to a somewhat kinder and gentler oppression.

Globally, it's nowhere near as bad now as it was even just seventy years ago, still during the Dark Age of Socialism. The urge to merge has its ups and downs, but it's mostly been dropping since the original Dark Ages, following the collapse of the Roman Empire (one of the greatest disasters of humanity, from an individualist perspective).

I don't see individualism as yet able to stand and fight; so I want, perhaps peversely, collectives to fight to defend, succor, and raise it. I note we took a great leap forward on that project in the 1770s and 1780s; so you see it can be done.

But the quickest way to discredit individualism is to encourage, or even allow, people to believe that individualism is just a code word for plutocracy. Plutocracy is where "the rich" (however defined) have their own private set of laws, whose purpose is to keep themselves on top and the rest of us in chains.

That belief, true or false, traditionally leads to Jacobism in response -- in 1789, of course, but also in 1917, 1949, 1979, and we even saw a little of that in 2008 -- where possibly mindless fury at an unaccountable and static plutocracy, "rage against the machine," leads directly to a "people's revolution" that is, of course, infinitely worse.

This I believe: Individualism can only flourish when people generally believe that all are equal under the law, prince and pauper alike. Contrariwise, when it starts appearing that the rich and powerful can get away with everything, perhaps paying a small fine they barely even notice, we're tugged towards collectivism.

That is why I believe it was good that O.J. was convicted of the armed robbery; that is why I think it will be good if Polanski has to serve some time.

Hatched by Dafydd on this day, November 6, 2009, at the time of 1:38 PM | Comments (7) | TrackBack

October 30, 2009

"Repent, Bradlequin!" Said the Liz-Laz Man

Crime and Punishment
Hatched by Dafydd

Our friend and worthy conspirator Brad Linaweaver publishes an annual magazine titled Mondo Cult; you've probably seen it around -- if you hang around the sorts of places where you'd see such a publication. The magazine now has a website and a forum, which is kind of like a blog only completely different.

In the forum, Brad has posted his thoughts on Roman Polanski. He wants us to link his article, and of course we're happy to do so.

He also wants a response -- and we're overjoyed to do that as well. (Surprise, surprise on the Jungle Cruise tonight.) He is well aware that our opinions differ, so this isn't a hit piece or ambuscade; we simply differ on a number of key points. First, however, I urge you to read Brad's entire piece. I'll wait...

You're back. To summarize, Brad postulates the following postulates:

  • From a practical perspective, it's absurd to go after an old man for a sexual transgression decades ago; there are far more pressing matters to be attended, including an economic collapse, the nationalization of banks and other industries, creeping socialism, and two wars in foreign countries... whether they're justified preemptive self-defense or imperialist overseas intervention, either way, these issues are of far more moment than what Roman Polanski did in 1977.
  • From a libertarian perspective, this is just another example of the tentacles of the State reaching out into the personal lives of individuals. In this case, the victim of Polanski's crime (her name is public, but there's no point in my bringing it up again) doesn't want him prosecuted.

    Since the victim is the girl herself, not "society," then society should not have a say in whether Polanski is prosecuted: He paid her off; she's satisfied with the reparations; the State should butt out.

  • From a justice perspective, it's absurd that this crime is prosecuted today, thirty years after the fact; even though the statute of limitations doesn't legally apply, the principle still stands: A man should not have to spend the rest of his life in fear that he will be prosecuted for a crime so many years in his past. It's not a murder, for goodness' sake! Both felon and victim have moved beyond the rape. Why reopen that can of monkeys?

At least, that is what I take as the essence of Brad's argument; if he wishes to correct any aspect of this, I will revise my response accordingly.

Rather than take the issues point by point, I want to respond philosophically -- with especial attention paid to analyzing the case under a (small-L) libertarian perspective, as that is both Brad's and my fundamental ideology. It should be easy to pick out the threads of individual response from the general argumentum.

In the process, I think we may get at something deeper than the fate of one creepy Polish-French film director.

One initial point I'd like to make in praise of Brad's article: I don't believe he ever makes the argument that Roman Polanski should not be prosecuted because (a) he was a victim of the Holocaust, (b) he made some great movies, or (c) he is a Hollywood aristo and therefore is owed a certain "droit du seigneur" -- the "right" of the lord to any woman he wants -- or "jus primae noctis," the "right" of a night with any young girl the lord fancies.

I am tremendously thankful that Brad avoided these paralogical traps, but I'm not particularly surprised: Brad is sharper than a serpent's tooth and deeper than a well, unlike 99% of the commentators on this case; and he knows very well that each of these ersatz arguments is pernicious nonsense that makes hash of the principles of Americanism.

What is Polanski's crime anyway?

The first task is not to fall into the error of most putative "libertarians" (though not Brad) who superficially "analyze" the Polanski case: Roman Polanski is not currently being prosecuted for having sex; nor is he being prosecuted today for the bogus charge (from a libertarian perspective) of having consensual sex with someone who happens to be below the legal age of consent, but who is mentally and emotionally capable of giving consent.

Nor is his current crime the oral, vaginal, and anal rape by use of force and controlled substances he was originally charged with; that accusation was (wrongly, in my opinion) plea-bargained down to simple unlawful sex with a minor (statutory rape)... probably because (a) he was a celebrity, and (b) his lawyer threatened to destroy his victim's life by essentially accusing her of being a thirteen year old whore. Frightened by the reaction after her grand-jury testimony, she evidently refused to testify at the trial; so Polanski pled to the lesser charge and was sentenced to 90 days psychiatric evaluation -- though there was always the option of the judge to give him prison time, as much as 50 years, as I recall (an option the judge did not exercise).

So what is Polanski's crime? After serving 42 days of his sentence, he was released by the psych ward with a probation-officer report recommending the rest of the sentence be canceled. But the judge rejected that evaluation and ordered Polanski back to prison for the remaining 48 days, to be followed by a voluntary deportation. Rather than face such a soul-searing, unjust sentence -- 48 more days, merely for multiply raping an adolescent! -- he fled the country.

So his current crime is actually breaking jail, just as if he'd climbed the wall at San Quentin, or wherever the heck he was being evaluated -- in layman's terms; I don't know if refusing to return to prison is a distinct legal charge.

Why does it matter? Why are the victim's wishes not being honored?

It matters very much what his crime was for two reasons. First, the victim of the current crime, escaping from prison, was not the victim of the rape; he was already "tried" for that crime (he pled guilty to the lesser charge, so there was no real trial) and sentenced. That ends the matter as far as the girl is concerned.

But when a convict escapes from prison, there is only one victim; or rather, there are hundreds of millions of victims: The entity which suffered from Polanski's cowardice or narcissism is society in general.

To deny that society can be a victim is to turn the entire concept of rule by law on its ear; it's like saying that if Barack H. Obama were to crown himself king and rule as a dictator, it would not be a crime, because you cannot point to one specific person and say "He is the victim!" We are all victims if we lose our freedom... just as we are all victims if the law is no longer applied equally to us all.

Let's assume we live in a libertarian world. Libertarianism is (or should be) based upon the fundamental axiom of maximal individual liberty -- though in the real world, too many self-defined libertarians are in fact merely libertines who care nothing about other people's liberty and even less about the common-law and legislative environment required to maintain a society based upon maximal individual liberty.

But "liberty" is not the only axiom on which libertarianism rests; there is an even more fundamental one, often forgotten in all the excitement about license and freedom: The most fundamental axiom of free government is in fact the rule of law.

This is the queer notion that there is not one lenient law for the hidalgo -- from "hijo dalgo," literally "son of something" -- and another, harsher law for the peon. This was a critical breakthough in modernity which I believe was gifted to the world by the Jews: What is wrong for the pauper is equally wrong for the prince.

It's quite a radical idea; libertarians should love it. At its base, it means that all men and women are treated equally under the law. It's enshrined in our Organic Law, both the Declaration of Independence ("that all men are created equal") and the Constitution ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

Here "due process" and "equal protection" mean equal treatment in all cases; no one is above the law. We don't always live up to it -- particularly given the cult of celebrity; but failure to perfectly realize a principle is not license to be indifferent to it.

Not Capitalism nor democracy nor individual liberty can endure when some animals are more equal than others. And without this holy trinity of rights and duties, "libertarianism" is utterly impossible.

Therefore, any libertarian should immediately recoil in disgust from an argument that says that Roman Polanski should be allowed to mock justice by fleeing the country, living in luxury while thumbing his nose at the responsibility he incurred by raping his victim -- then return to America and suffer no consequences for his perfidy. At its essence, it's no different from arguing that the cabinet of Dr. Obama should be allowed to skate on income-tax evasion, bribery, and other crimes merely because they're such important people nowadays.

Why prosecute today, after so many years?

The question almost answers itself: Because not to prosecute is to set up separate, parallel, but non-intersecting systems of putative "justice." Could we have gotten our mitts on Polanski earlier, we would have prosecuted him earlier. That we didn't capture him until last month was his own doing: He avoided countries that might extradite him.

We prosecute now, even 32 years after his escape, because we cannot allow people to use wealth and celebrity to urinate on justice. Whenever someone commits a serious crime then avoids punishment that the rest of us would have to endure, it hammers another nail in the coffin of freedom and liberty.

There are any number of despots and decadents, theorists and theocrats who argue that a "free society" is a contradiction; that there is no right to one's own conscience, no free choice, no individualism... that the individual matters nothing, and only the hive collective is important. When we fail to live up to our ideals, we give such monsters of tyranny ammunition to use in the ideological and propaganda war against liberty.

If we profess our creed that individualism, not the commune, is the fundamental unit of humanity, then we must accept the reverse of that same coin: The individual is also the fundamental unit of accountability.

That is why all decent individualists, Capitalists, and libertarians ban collective punishment: The only people who should be punished under law are those who actually commit the crime; and by corollary, all those who commit the crime should be punished under law.

Even if that requires punishment after thirty years time gone by, if there was good reason not to punish them earlier (such as flight and evasion). That doesn't mean we cannot act mercifully to those who have actually repented their crimes; but by the same token, it means we must be harsher on those who sat within a magic circle and smirked at justice.

So what should be done with Roman Polanski?

I honestly believe Polanski should suffer more punishment than simply having to serve the remaining 48 days of his original sentence; if not, wouldn't every convicted felon routinely flee?

Polanski's flight was far worse than and supercedes his original crime: The multiple rapes may have horribly damaged and distorted a young girl's life; but his escape and the decades he spent laughing at the American judicial system (and at his victim) helped destroy the very concept of a just and free society in many people's minds.

At the very least, in addition to the 48 days, Polanski should be prosecuted for escape and sentenced to more prison time than he originally faced. If he isn't, then what is the judicial incentive for any convict to fulfill his sentence? One of two things will apply:

  • Either we must allow, for consistency, all escapees we recapture to suffer no worse a fate than their original sentences -- an invitation to every convicted felon to take it on the lam instead of serving their time;
  • Else we must necessarily say that some criminals will be treated more harshly for escaping, while other, privileged criminals will be treated with royal consideration.

"Privilege," by the way, literally means "private law;" is that consistent with libertarian philosophy, that a handful of people get special protection under private law unavailable to anyone else?

Roman Polanski owes us, all of us, 48 more days in el calabozo. But beyond that debt, he owes additional penance, preferably prison time, for sloughing off his lawful and legitimate (perhaps even too lenient) punishment.

Polanski may think that's overly harsh; but that's because he thinks he's of an upper class that is "beyond good and evil," and which never has to say it's sorry. Or suffer any consequences. But bluntly, I don't give a tinker's ass what Roman Polanski thinks.

Note, 6 November 2009: Brad has responded to my reponse to his original Mondo Cult article... see here now!

Hatched by Dafydd on this day, October 30, 2009, at the time of 2:41 AM | Comments (8) | TrackBack

October 13, 2009

Are You Being Searched?

Crime and Punishment
Hatched by Dafydd

Perennial ghost blogger DRJ on Patterico's Pontifications (my second favorite blog) raised a fascinating issue yesterday. Quoth she:

The FBI is using facial recognition software to scan driver’s licenses in an effort to locate fugitives[.]

In a nuttery, the Fibbies take mug shots of wanted suspects, run them through facial-recognition software (FRS), and compare them to digitized drivers-license photos -- assuming they have some idea where the suspect might be hiding. They check potential matches by normal legwork; and if they find an actual match, they haul the blackguard in for questioning.

In the Houston Comical newspaper story DRJ quotes, the technique has already yielded at least one murder suspect:

Earlier this year, investigators learned that a double-homicide suspect named Rodolfo Corrales had moved to North Carolina. The FBI took a 1991 booking photo from California and compared it with 30 million photos stored by the motor vehicle agency in Raleigh. [Thirty million? The entire population of North Carolina is only 9.2 million! How far back do these records stretch?]

In seconds, the search returned dozens of drivers who resembled Corrales, and an FBI analyst reviewed a gallery of images before zeroing in on a man who called himself Jose Solis.

A week later, after corroborating Corrales' identity, agents arrested him in High Point, southwest of Greensboro, where they believe he had built a new life under the assumed name. Corrales is scheduled for a preliminary hearing in Los Angeles later this month.

Civil libertarians are outraged, not surprisingly:

The project in North Carolina has already helped nab at least one suspect. Agents are eager to look for more criminals and possibly to expand the effort nationwide. But privacy advocates worry that the method allows authorities to track people who have done nothing wrong.

I'm trying to logically analyze the liberty issues involved here. There are several purposes for limiting the power of the government to investigate citizens:

  1. Foremost is the danger that the State might use its investigatory power to harass and intimidate political enemies or dissidents.
  2. Next is the risk of the peelers leaping to a conclusion and putting a perfectly innocent person through the living hell of a prosecution for a crime he didn't commit.
  3. Finally, there is the danger of lazy police just sifting through reports and Google-type searches to try to find people guilty of a crime nobody has reported, and which nobody -- not even the police -- even knows occurred.

Let's take 'em one by one.

First, I don't see how this technique can be used to intimidate protesters and other dissidents whose only crime is injudicious use of the First Amendment, as my old teacher Timothy Leary used to put it. The odds of finding some thug who resembled a political enemy closely enough to pass the laugh test seem remote. So much for liberty threat no. 1.

Second, threat no. 2 seems to be of very small concern with the FRS technique: Obviously, those who don't score any "hit" in the software are not affected at all; they don't even know their photos were scanned (along with everybody else in the system, so the comparison doesn't even cast aspersions).

The same holds for those who do score an initial hit, but are knocked out by the second phase, where actual humans look at the photos. The officer shrugs, says "Not him," and there's an end to it. No suspicion attaches to the citizen in the photo.

The only threat is to an innocent person who looks enough like the suspect that he's brought into the station and quesioned. I can see an argument that this is a frightening and intrusive event, which is visited upon a completely innocent individual (by definition) on no greater "evidence" than facial similarities. But the odds are that nothing else is going to match, no other evidence; and he'll be let go after questioning. It's really no different than if a citizen saw the real gangster's picture on America's Most Wanted, then saw the innocent doppelganger, and called the cops. Regrettable but not very damning, and few would argue we should refuse to cooperate with such TV shows. We dismiss no. 2.

Thus remains only threat no. 3: That somebody will have committed a crime that is not even on the cops' radar, but will be detected via the FRS. For the record, I note that I do consider this a serious question; while there is no general right to get away with criminal activity, I'm uneasy at the prospect of every last trivial crime -- from once hiring a prostitute, to a girl steaming open mail from her boyfriend to her female roommate, to pilfering some petty cash from an employer who routinely screws you out of earned overtime -- being prosecuted because a computer dug it up.

But in this case, the FRS only works when a dangerous suspect is sought, and his mug shot (or other photo of him) is run through the system. Defintionally, this can only occur when the police are already aware of the crime -- so threat no. 3, while a valid worry, is not relevant in this case.

Thus logic compels me to give it my ethical blessing, no matter how personally creepy I find it.

It's weird, this logic thing: I took my first class in the propositional calculus (formal logic for systems not large enough to include the counting numbers) in junior high school (nowadays called "middle school"). My math/science/logic teacher's name was William "Fitz" Fitzgibbon, and he gave us a test before we had our first lecture. It included a number of word problems in formal logic specifically calculated to seem false on the basis of mere intuition.

I don't recall specifics, but here's something similar I just made up: True or false -- If you could flap your arms and fly to the Moon, you'd be made of green cheese.

Answer: True!


  1. Given "If A then B" and "not-A." (We're given the conditional, and it's self-evident that I cannot flap my arms and fly to the Moon.)
  2. "If A then B" is logically equal to "B or not-A." (That is, they have the same truth table.)
  3. "B or not-A" is true if either part is true. (This is the definition of the "or" statement.)
  4. "Not-A" is given.
  5. Thus "B or not-A" is true.
  6. Therefore, "if A then B" is true: If I could flap my arms and fly to the Moon, I would be made of green cheese. QED.

It seems absurd; but by the rules of the propositional calculus, it's true.

I feel the same way about my conclusion that there is no threat to liberty combining facial-recognition software and drivers-license photos to catch crooks: I know in my head it's true, but I can't help feeling in my glandular secretions that there's something fishy about the whole thing. Being a natural Spockian, I must vote for the cerebral cortex over the endocrine system every time.

But I don't have to like it.

Fresh-roasted to Hot Air's rogues' gallery...

Hatched by Dafydd on this day, October 13, 2009, at the time of 3:13 AM | Comments (2) | TrackBack

December 5, 2008

Knicks & Knacks I

Crime and Punishment , Malicious Mutterings & Miscellany , Opinions: Nasty, Brutish, and Shortsighted , Toxic Jackassets
Hatched by Dafydd

The Juice gets squeezed

So Orenthal Simpson gets sentenced to a minimum of 15 years, maximum of 33 years, and not eligible for parole until at least nine years have passed. Picture me doing the Snoopy dance all about the room.

Is there any part of Simpson, any slight shred of conscience left, that whispers in his ear that he deserves the sentence he got -- and maybe even more? I sincerely doubt it; I believe he sees himself entirely as the victim here, just as he saw himself as the victim when he murdered his ex-wife, Nicole Brown Simpson, and an innocent witness, Ron Goldman.

I wonder which of the following Simpson has convinced himself of:

  1. That he was completely justified, both in the robbery and in the killings;
  2. That he actually, for real, didn't kill either his former wife or Ron Goldman, and he didn't really rob anybody;
  3. Both (a) and (b) simultaneously.

Barney gets frank with us

Here's Rep. Barney Frank (D-MA, 95%) pimping for a bailout of $25 billion -- whoops! now it's $34 billion -- for the risibly dubbed "Big Three" American auto makers (they're actually the Big One, the Weak Sister, and the Flyspeck):

The [House Financial Services] committee chairman, Rep. Barney Frank, D-Mass., cited the jobs report showing the 11th consecutive month of losses as all the more reason for Congress to act to help Detroit.

"For us to do nothing, to allow bankruptcies and failures in one, two or three of these companies in the midst of the worst credit crisis and the worst unemployment situation that we've had in 70 years would be a disaster," Frank said.

Let us rephrase that with some Frank talk of our own:

For us to pound $34 billion worth of sand down the Detroit rathole, without forcing GM, Ford, and Chrysler to radically change their failed business model -- GM has been called "a benefits company that manufactures automobiles as a sideline" -- simply because we can't sit here and "do nothing," would be a folly and a catastrophe of Brobdingnagian stature.

It's a classic example of the "do something" syndrome: Don't stop, don't think, don't wait -- just do something! Of course, sometimes the very best thing to do is sit back patiently and let nature take its course. In this case, if GM and its mini-mes are forced into Chapter 11 bankruptcy, they might actually be able to break some of the onerous labor contracts they've entered into over the decades.

Incidentally, there are two significant differences between the already enacted rescue of Wall Street and the proposed bailout of Detroit; here is the first:

  • The automakers like to claim that the "American automobile industry" -- by which they mean the American-managed automobile factories in the United States employing American workers and headquartered in the United States, as opposed to the American-managed automobile factories in the United States employing American workers but headquartered in other countries -- "touches" 10% of the American economy.

    But the international credit and banking market and the financial industry that controls it is vital to 100% of the American economy. If credit is frozen across the board -- as it was and to some extent still is -- then no company can function. It's a much more significant and national (even international) problem that whether GM goes "bankrupt" and is forced to sell its assets and plants and such to other car companies.

And the second:

In the rescue of the financial markets, we have done two things: At first we purchased "toxic assets," mortgage-backed securities that literally could not be valued, hence could not be traded or used as reserves; then Treasury Secretary Henry Paulson decided to inject money more directly into the financials by buying woefully undervalued stock in major financial companies.

But once we sort out the actual components that make up the MBSes, down to the actual mortgages themselves, they will be found to have an intrinsic, nonzero value: They're based upon real property that has physical value. And once they can be valued, they will be worth more than they are right now. Similarly, as the credit crisis eases, bank stocks will rise.

  • All of which means that the $700 billion already authorized and any other money spent on this rescue is an investment, not a bailout: We will realize a positive return on our rescue money, especially if lawmakers can find the huevos to repeal or rewrite the laws that currently force financial institutions to offer oversized mortgages to borrowers who cannot possibly make the payments.

    By contrast, unless the auto companies can dramatically change their business practices to the point that they can actually compete with Toyote, Honda, BMW, Mercedes, and other "foreign" manufacturers (all made in the United States by American auto workers), they will continue to fail worse and worse, no matter how much money we inject into them.

Even if we gave them their blasted $34 billion bailout, they would simply be back in four years, like Oliver with a twist: Instead of "please sir , I want some more," it will be, "Give us another $50 billion right now, or we'll make the economy collapse again!"

That is the very definition of a bailout: enabling anti-market behavior by shielding companies from the consequences of their own corporate stupidity... hoping that if you just bail enough water out of the boat, the leak will fix itself.

Hatched by Dafydd on this day, December 5, 2008, at the time of 6:00 PM | Comments (2) | TrackBack

September 15, 2008

Novel New Criminal Defense: Globaloney Made Me Do It!

Crime and Punishment , Globaloney Sandwich
Hatched by Dafydd

The headline raises immediate and insistent alarm bells: Jury decides that threat of global warming justifies breaking the law.

The Independent reports that a British jury has just acquitted eco-vandals of spraypainting the smokestack of a coal-fired power plant, causing damages to the tune of £35,000 ($63,000); the successful defense was that the defendants had to "tag" the plant -- because of the urgent imperative to stop global warming:

Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage -- such as breaking down the door of a burning house to tackle a fire.

The not-guilty verdict, delivered after two days and greeted with cheers in the courtroom, raises the stakes for the most pressing issue on Britain's green agenda and could encourage further direct action.

"Lawful excuse" was, in fact, the only defense offered by the six defendants, members of Greenpeace all.

However some might try to spin this, it is not an example of "jury nullification" -- where a jury accepts that the defendants committed the criminal offense but hold that the law itself is wrong, throwing it back in the teeth of judge and prosecutor. By contrast, this judge actually allowed the defense that vandalizing the smokestack was necessary to prevent global warming... which is tantamount to begging the jury to run with it.

Whatever one thinks of jury nullification, what happened in Great Britain is far worse and more dangerous. It's utterly clear that the legal defense of "lawful excuse" was never meant to include the kind of situation in this trial. As the example cited above illustrates, the law was meant to cover immediate and urgent actions taken to stop an already extant and undisputed threat from spreading -- e.g., breaking down the door of a house to put out a fire inside.

This is entirely different from what happened in this case:

  • The supposed peril the defendants were trying to avert -- global warming -- is highly disputed. There is no scientific "consensus;" many respected, oft-published scientists working in the relevant fields argue that it either isn't happening at all; or that the damage is less than people like the high priest of globaloney, James Hansen, claim; or that to the extent that such damage might occur, it is caused much more by factors outside of human control, such as sun activity.
  • The supposed peril is not at all "imminent," as Hansen claims; even he speaks in a time frame of decades and centuries.
  • And most pointedly, the defendants' actions have no direct connection whatsoever to averting the supposed peril.

Unlike firemen smashing down a door to put out a fire, where the connection is obvious and direct, spraypainting insulting comments about the prime minister, Gordon Brown, as the defendants intended -- or even just spraypainting "Gordon," which is all they succeeded in doing -- has only the most tenuous, indirect effect on the energy policy of Great Britain... and an even more gossamer effect, if any at all, on global energy policy, which is driven far more by the ravenous energy needs of India and Red China and the energy policies of much more influential countries like the United States. Very few Americans will decide to oppose clean-coal technology because some idiots climbed a smokestack in Kingsnorth and sprayed the word "Gordon" at the top.

The judge had to fold himself into a Gordian Knot to equate the political war waged by Greenpeace against energy production with a burning conflagration that had to be extinguished. It's as ludicrous a stretch as arguing that bombing a random tube station in London is utterly necessary to bring the world to Islam.

Nevertheless, the judge allowed the defense team to make the argument to the jury, presenting numerous "expert" witnesses (including James Hansen himself) to speak about "the gravity of the climate danger," the "imminent peril," and the "bleak picture" of Britain's future if more coal-fired plants are allowed to be built. In other words, to hell with the voters and the government officials they elected; Greenpeace knows best, and it has license to force its own agenda on Great Britain by any means necessary.

(Hansen, you no doubt recall, was the putative scientist -- has he actually committed any real science since the early 1980s, when he made his bones? -- who recently called for energy-company executives and even other climate scientists to be criminally prosecuted for "high crimes against humanity and nature"... for daring to dissent against the "consensus opinion" of globaloney. At least Hansen didn't call it an "intergenerational crime," as co-globaloney religionist David Suzuki did.)

A verdict cannot be "jury nullification" when it is encouraged, practically demanded, by the judge. In this trial, the judge twisted court rules to admit "evidence," such as "experts" in AGCC -- including "the world's leading climate scientist," as the Independent's "Environment Editor," Michael McCarthy, characterizes James Hansen -- to testify that a childish graffito scrawled on a smokestack, with the intent to change election results towards the Left, has the same kind of "lawful excuse" as breaking down a door to put out a fire. This isn't jury nullification; the correct term for this is "legislating from the bench."

The best conclusion to be drawn is that the judge himself is an ardent believer in anthropogenic global climate change (AGCC), and he saw this trial as an opportunity to force an acquittal, embarass the government, and foster further such "actions directes," thus furthering his own political goals.

Either that, or the judge is a baboon.

What is "direct action?" In essence, it means any action taken outside the normal legal, constitutional, political, and elective mechanisms to institute political changes or circumvent the will of the voters. For example, when Earth Liberation Front activists burn down condo complexes in order to prevent development, that is direct action -- but it's also direct action when militant Islamist terrorists raid a Jewish hospital's maternity ward and shoot to death all the mothers and babies.

Although the term can theoretically refer to actions on both left and right, in practice, only lefties proudly use it; they use it to label themselves as heroic resistance fighters when they vandalize other people's property or interfere with other people's lives. Or when they assassinate innocent victims from ambush.

In this case, the damage was minimal: painting "Gordon" on the smokestack. But the precedent set by the acquittal -- that a fervent belief in the leftist cause celebre du jour gives the anointed license to commit a crime in order to "call attention" to the politics of the issue -- is terribly corrosive to civil society. It may well hasten the destruction of the once great nation of Britain. In fact, this verdict could become precedent for a defense against the crime of terrorist murder; does anybody really believe that the "Kingsnorth Six" believe in AGCC any more fervently than the "Leeds Four," who committed the London bombings on July 7th, 2005, believe in radical, Salafist Islamism?

If a judge will allow six members of Greenpeace to get away with criminal activity because of their "honestly held belief" that they must save the planet from global warming, then what is to stop another judge from allowing future "holy warriors" to get away with blowing people up because of their honestly held belief that they must save the planet from heresy and blasphemy against Allah and His prophet Mohammed?

As an immediate stopgap to prevent its use as precedent, British lawmakers had better get busy and rewrite the Criminal Damage Act of 1971; but you know they will not, because most of those in both the major political parties in the UK believe in globaloney almost as fervently as the Kingsnorth Six. And even if MPs found their huevos and did make explicit that the defense is not meant to excuse politically motivated violence and thuggery, I suspect the British courts would swiftly declare that the original law had created a "right," which would then preclude a subsequent law from "taking away" that right.

Take note, Americans: More and more American judges are looking not to our own Constitution but to "international law and standards" to judge cases here in the United States; this includes even Supreme Court justices, such as John Paul Stevens and Anthony Kennedy. If this becomes the norm in Europe and the UK -- a sincerely held leftist worldview gives the anointed license to commit crimes to further their vision -- then it will swiftly become the norm here in America, as well.

One presidential candidate, John H. McCain, will nominate judicially conservative judges and justices who will fight this trend. The other, Barack H. Obama, will work feverishly behind the scenes to appoint federal judges who would backdoor it into the Constitution.

Please express your preference by sending money to the party of your choice... and of course on November 4th as well.

Hatched by Dafydd on this day, September 15, 2008, at the time of 3:36 PM | Comments (3) | TrackBack

July 1, 2008

The New "Fairness" Doctrine

Constitutional Maunderings , Crime and Punishment , Iraq Matters , Military Machinations , Terrorism Intelligence , War Against Radical Islamism
Hatched by Dafydd
Why civilian judges have no business ruling on Gitmo cases...
and why Patterico, with the best of intentions, got it so wrong

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

"Well there's yer problem, right there!"

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

  • Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
  • Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
  • Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

  1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

  1. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM | Comments (10) | TrackBack

January 4, 2008

Killing Us With Kindness to the Unkind, Decency to the Indecent

Constitutional Maunderings , Crime and Punishment
Hatched by Dafydd

A "shibboleth" is a word used as a test: The pronunciation determines whether one is an "insider" or "outsider" (part of the tribe or a spy from some other tribe). More generally, it can mean a phrase or even a custom whose precise execution tells us to which tribe the actor belongs.

In this case, here is the shibboleth I'm thinking of, from an AP story on a death-penalty case before the U.S. Supreme Court:

The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Kennedy's lawyers say the death penalty for child rape violates the Eighth Amendment protection against cruel and unusual punishment.

In my tribe, "cruel and unusual" evidently means something very different than it does to defense lawyers... or at least different from what they argue (I don't care what they believe in their heart of hearts; they are attempting to enshrine into common law the idea that nothing, nothing, nothing can legitimately draw a sentence of death but cold-blooded murder with special circumstances; many even argue against that).

Who composes the other tribe, those who fight every death sentence? Well, some members are simply anti-punishment; these are the ones who agitate not only for the abolition of the death penalty but also to reduce all sentences for all crimes.

Other members are simply driven mad with fear that an innocent person might be wrongly executed by accident (or maliciousness). In fact, I'm certain that many already have been: In this country alone, we have had capital punishment since -- well, since this country sprang into existence. And for much of our history, many locales were none too scrupulous about whom they punished, even via the ultimate sanction. *

For both groups, we note many bizarre customs that differ, I believe, from the tribe to which most Americans belong:

  • In their tribe, the pain that might be felt for a few moments by those being executed by lethal injection is more important than the pain that will be felt for the rest of the lives of the victims or their families.
  • In their tribe, you cannot execute a serial killer, because he is by definition suffering from a mental illness; you cannot execute a stupid killer, because he is by definition mentally retarded; you cannot execute a 17 year old killer, because he is by definition a "child" with no well-formed sense of right and wrong... nor a 19 year old killer because he was (by definition) a "child" when he killed.
  • In their tribe, no appeal from a death sentence is ever the "final appeal."
  • In their tribe, capital punishment may be constitutional -- but every possible method of carrying it out is unconstitutional.
  • And in their tribe, the "right" of a raper of children to kindness and decency is of more weight than the horrific, lifelong trauma he inflicts on his victims... which might be alleviated by the knowledge that he paid the ultimate penalty for his depraved indifference to human life.

I have said for years (and gotten in trouble for saying it) that I agree with the liberals on one point: All human life has value; but sometimes, that value is a negative number. I don't restrict that condemnation only to serial killers and cannibals; I apply it to any person who has that "depraved indifference" to the lives of other human beings, and who criminally uses them as his playthings. I think it especially apt for those who hurt the most vulnerable among us -- children -- simply for the criminal's own sick pleasure. And I, personally, would execute every one of such vile, amoral subhumans.

If you kill a person who doesn't need killing (as determined by a court), you should have no guaranteed that you will get to keep your own life. (On the other hand, I have a fairly generous definition of which persons might "need killing.") Similarly, no rapist who steals the life and innocence of a child, even if he leaves the child alive, should receive any guarantee of being allowed to live. And the same for those who commit treason: No guarantees, no "right to life."

The death penalty should never be mandated; that's an invitation to kill all the witnesses, as well as (obviously) the victim himself. There should be discretion allowed the judge for tough cases, such as when a person overreacts in a tense situation and kills an innocent... or even a criminal, but one who is not egregious enough to "need killing."

For example, a father who premeditatedly kills a 20-something year old sleazebag for having "consensual" sex with the father's 14 year old daughter should not be executed; a life sentence, or even a long term short of life, would be more reasonable. (I put "consensual" in quotes because legally, a minor cannot consent to sex; but there is a huge difference between statutory and forcible rape, in my opinion.) Same with a neighbor who burns down an occupied crack house that has been selling drugs to local children.

I don't believe in "zero tolerance" laws, and I would not demand death in every case of murder. Nevertheless, I believe we should have twenty to thirty times as many executions per year as we actually have. At the very least, we should clean out Death Row, executing all those prisoners awaiting a death sentence who have had several reasonable chances to bob for the apple of appeal. We should be executing at a rate faster than we're sentencing to death, otherwise we'll never catch up... and most of the capital sentences will end up being de facto LWOPs (life without parole) instead.

As I said, I would always make exception for those who kill people who need killing; and I have a much more expansive definition of that then does, e.g., Dennis Prager or Patterico (I think). For example, I believe "He was in the act of robbing me" should be a legitimate (affirmative) defense to the charge of unpremeditated homicide, even if the robber had no weapon, if there were no other reasonable way to stop the robbery. I despise thieves, especially those who burgle and rob with impunity, knowing that if they're caught, they'll simply be let off with time served.

If I'm on a jury deciding a case where the facts show than the old lady on trial for murder shot and killed a mugger in the subway, even one who just punched her and took her purse (no threat of death) and was on his way out the door... well, at the very least, she gets a hung jury, because I would not vote to convict without some extraordinary circumstance. When a thug undertakes to terrorize and violently assault someone, he assumes the risk of getting shot himself.

In any event, I do not consider death for a child rapist either cruel or unusual; in fact, I consider it cruel and unusual to society, to the parents, and especially to the child victim to let such a person live... especially considering that so long as he is alive, some soft-hearted, soft-headed judge, parole board, or governor can always decide to set him loose on the world again.


* I can even give you a probable name: Caryl Chessman, executed for being the "Red Light Bandit," was likely innocent of those rapes, I believe. My father was a 3-L in law school at the time, and he attended some of Chessman's final appeals in 1960. My father's impression was that the court never seriously considered Chessman's central argument: That the trial transcript was fundamentally flawed; they simply responded that the transcript in question didn't show any serious irregularities.

Hatched by Dafydd on this day, January 4, 2008, at the time of 10:40 PM | Comments (9) | TrackBack

November 16, 2007

Iraqis Pass Test: Top Shiites Will Be Tried for Mass Murder

Crime and Punishment , Iraq Matters
Hatched by Dafydd

A few days ago, we posted Iraq in the Balance: Will the Shia Prosecute Their Own?, that asked the question -- Will the majority Shia be willing to prosecute their own officials who commit a horrific string of human sacrifices... or does "retributative justice" apply only to Sunni terrorists?

We noted the mass-murder cases against two Shiite militia heads (Sadrites) who happened to be high muckety-mucks in the Ministry of Health: Former Deputy Health Minister Hakim al-Zamili, and Brig. Gen. Hamid al-Shammari, head of the Health Ministry security force. ("Happened to be," my eye; Muqtada Sadr demanded they be given those positions, presumably for the very task or murdering helpless Sunnis in hospital.)

A few days ago, the top Iraqi court said there was sufficient evidence to try the two for literally hundreds of gruesome murders they appear to have ordered. But there was a potential thorn in the ointment, as we noted in the earlier Big Lizards piece:

By a quirk of Iraqi law, ministries are allowed to block prosecution of their officials if they decree -- truthfully or not -- that those officials were "carrying out their official duties." Naturally, mass-murdering Iraqi Sunni is not one of the official duties of the Iraqi Health Ministry; but the Interior Ministry (the most powerful ministry in Iraq) has used this dodge in the past to prevent prosecution of rampaging police officials.

This is the crux of the point we made:

The consequences of this decision, no matter which way it falls, are so stark and existential that it's not unreasonable to say this opportunity will either make or break the new democratic Iraq.

The question is whether Iraq has truly turned towards the rule of law... or whether they have just substituted the new boss for the old boss, with business still as usual. And here is the answer in yesterday's New York Times:

Prime Minister Nuri Kamal al-Maliki of Iraq has approved the trial of two Shiite former officials who are accused of killing and kidnapping hundreds of Sunnis, according to American advisers to the Iraqi judicial system.

The case, which could come to trial as early as this month, would be the first that involved bringing to trial such high-ranking Shiites for sectarian crimes.

An Iraqi judge ruled last month that there was sufficient evidence to try the two former officials, who held senior positions in the Health Ministry. But there had been concern that the ministry might try to block the case by invoking a section of the Iraqi criminal law that proscribes the prosecution of officials who are executing their official duties.

The approval to hold a trial was provided in a memo issued earlier this week by the acting health minister. Mr. Maliki has formally endorsed the decision, American officials said.

Take that, Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%)!

The Times understands the importance of this decision:

The case has emerged as a major test of the ability of Iraq’s judicial system to take on difficult cases, particularly those in which the accused are prominent Shiites.

“This case is as important, if not more important, than the Saddam Hussein case,” Michael Walther, a Justice Department official who leads a task force that is advising the Iraqi judicial system, said in a telephone interview. He added that a successful trial would demonstrate that the Shiite-dominated Iraqi government “is ready to prosecute its own.”

Iraq certainly isn't out of the woods yet, not even on this one case: We still have to observe the trial itself to ensure that it's both fair to the defendants themselves and also thorough... not like the way the Jim Crow South used to "try" accused Klansmen (where the opening statement was sometimes immediately followed by a vote to acquit; no need for the jury even to retire).

But so far, the civilian government of Iraq, not just the Iraqi Security Forces, has chosen justice and modernity. If this trial continues appropriately, then we can say that one great pillar of a free, democratic, and stable society has been birthed in the heart of the Arab Middle East: an honest judicial system.

America, her military, and President George W. Bush in particular were the midwives of liberty.

When Sen. Reid and his Democratic friends hear about this, how many will be overjoyed -- and how many will be crushed with the disappointment of opportunity lost?

Hatched by Dafydd on this day, November 16, 2007, at the time of 3:48 AM | Comments (8) | TrackBack

November 8, 2007

Iraq in the Balance: Will the Shia Prosecute Their Own?

Crime and Punishment , Iraq Matters
Hatched by Dafydd

A surprisingly balanced article from the New York Times on a surprisingly vital question that hasn't gotten anywhere near enough coverage:

An Iraqi judge has ruled that there is enough evidence to try two former Health Ministry officials, both Shiites, in the killing and kidnapping of hundreds of Sunnis, many of them snatched from hospitals by militias, according to American officials who are advising the Iraqi judicial system.

The case, which was referred last week to a three-man tribunal in Baghdad, is the first in which an Iraqi magistrate has recommended that such high-ranking Shiites be tried for sectarian violence. But any trial could still be derailed by the Health Ministry, making the case an important test of the government’s will to administer justice on a nonsectarian basis.

By a quirk of Iraqi law, ministries are allowed to block prosecution of their officials if they decree -- truthfully or not -- that those officials were "carrying out their official duties." Naturally, mass-murdering Iraqi Sunni is not one of the official duties of the Iraqi Health Ministry; but the Interior Ministry (the most powerful ministry in Iraq) has used this dodge in the past to prevent prosecution of rampaging police officials.

The consequences of this decision, no matter which way it falls, are so stark and existential that it's not unreasonable to say this opportunity will either make or break the new democratic Iraq:

  • If Health decides to allow the prosecution to proceed against former Deputy Health Minister Hakim al-Zamili and Brig. Gen. Hamid al-Shammari (al-Shammari was head of the Health Ministry security force), then Sunni all across the country -- indeed, across the entire Middle East -- will finally come to the realization that the democratic revolution is for real, that it's not just "meet the new boss." Iraqi Sunni will flock to the polls for the next election, whenever that is scheduled; and they will participate in the Iraqi government wholeheartedly. Iraq will have shown the world that it's not just a new oppression, this time by the majority against the minority.
  • But if the Health Ministry refuses to allow the case to proceed, then for all Sunni in the region (and mind that the Shia are only a majority in a minority of Moslem countries), the "Iraq experiment" will be proven a colossal failure. Overthrowing Saddam Hussein will still have had utility, but nothing like the effect if a fair and just democracy could arise in its place.

One tribe seizing control from another tribe -- Arabs have already seen and understood this. What was unique was the idea that the oppressors would be ousted in favor of free state that practiced justice and rule of law. That is what has never before been seen in the Arab or Persian Middle East.

The two accused Shiite officials are both Sadrites, and Muqtada Sadr personally secured them their positions; curiously, the government is only trying to prosecute them now because of a terrible fumble by the Mahdi Militia:

The case, which involves officials allied with the anti-American cleric Moktada al-Sadr and his Mahdi Army militia, would have been difficult for the Iraqi government to take on in the past because Prime Minister Nuri Kamal al-Maliki received crucial support from Sadr supporters in Parliament.

Since the spring, however, when Sadr ministers withdrew from the government, Mr. Maliki has distanced himself from Mr. Sadr’s supporters, and he has allied himself with a rival Shiite group, the Supreme Islamic Iraqi Council.

Sachi has argued for some time that Sadr made a dreadful mistake by pulling out of the government and then fleeing to Iran; she noted that he was certain to lose control: In tribal countries like Iraq, propinquity is the lodestone of power. If you're not constantly looking down people's necks and breathing over their shoulders, they'll swiftly find some other master to serve.

The Times article recounts the fascinating (if repellant) history of the Mahdi Militia. Modeling itself after the Hezbollah of Iran and Syria (say, there's a shock), the militia began by building hospitals, infiltrating the Health Ministry -- and turning the health industry into a kidnapping, torture, and murder mill. The slaughter was carried out in an organized fashion, by order, and often targeting helpless Sunni already sick or wounded and in hospital... along with their loved ones, who were often kidnapped and butchered when they unwisely came to visit the patient. The two charged individuals together are thought to account for hundreds of these ritualistic human sacrifices.

We should definitely be holding our breath about this story. There are few events that can honestly be called "crisis points," where the fate of a nation balances on the knife-edge of uncertainty; but this qualifies.

So... keep watching the skies.

Hatched by Dafydd on this day, November 8, 2007, at the time of 4:31 PM | Comments (10) | TrackBack

October 31, 2007

Courts v. Terrorism = Wile E. Coyote v. Road Runner

Crime and Punishment , War Against Radical Islamism
Hatched by Dafydd

Another terrorism trial in civilian court has just gone awry; it is now a world-wide phenomenon:

Spain's National Court convicted the three main suspects in the Madrid commuter train bombings of mass murder Wednesday and sentenced them to tens of thousands of years in prison for Europe's worst Islamic terror attack.

But the verdict was a mixed bag for prosecutors, who saw four other key defendants convicted of lesser offenses and an accused ringleader acquitted altogether.

With much of the case resting on circumstantial evidence, the three judges may have been wary after a number of high-profile Spanish terror cases were overturned on appeal.

Spain's prime minister said the verdict still upheld justice. But victims of the attack, which killed 191 people and wounded more than 1,800 when bombs exploded on four trains on March 11, 2004, expressed shock and sadness over the court's decision.

In short, the court convicted the low-level button-men who actually carried out the Madrid bombings, but it acquitted the top terrorist bosses who planned and ordered it in the first place... including Rabei Osman Sayed Ahmed, the ringleader -- who has already been convicted and jailed in Italy for the bombings in Spain, but who was found not guilty in Spain because Spanish judges found "nuances" in Osman's surveillance-taped confession.

The problem with trying to prosecute terrorists in civilian courts is that the latter were never set up to handle global conspiracies that play out over multiple cell phones, the internet, and coded conversations in several different countries. Just a simple, factual recounting of a typical conspiracy the size of the one in the Madrid bombings is apt to sound like paranoid ravings to a jury not versed in the scope and mindless ferocity of such attacks.

Thus, they tend to discount the testimony of insiders and subordinates... particularly when couched in the bizarre religious beliefs that characterize those willing to commit what amounts to human sacrifice on a scale not seen since the Aztecs. But jurors also reject the dry, factual recitations by experts on terrorism from, e.g., Israel -- as we saw in the Holy Land Foundation trial, for which see more below.

And that's assuming one even has low-level perpetrators still sucking air and available for prosecution, turning to state's evidence, and convicting their terrorist overbosses: Often, as in 9/11, the actual "soldiers" plan on joining the mass human sacrifice they precipitate.

Worse, as Judge Richard Posner pointed out, it's ludicrous to require a warrant based upon probable cause before we can start surveillance -- which is inevitably the situation we're in whenever we rely upon the civilian court system -- because the whole purpose of surveillance is to determine "who is a terrorist" in the first place! (Hat tip to Power Line.) You obviously cannot produce probable cause for surveilling "John Does 1 through 57 to be named later."

Terrorism is not even like organized crime. At the end of the day, the Mafia (and versions from other countries, such as the "Mexican Mafia" or the "Vietnamese Mafia") have a simple and understandable purpose: to make money for those at the top. Thus, you can generally prove who is il capo di tutti capi by simply following the money trail.

But the purpose of terrorism is simultaneously more elusive, like trying to nail Jell-O to the wall, and more irrational: Thus, to the extent that jurors are rational men and women, they naturally resist believing that people could rationally plot an irrational, insane, and meaningless act of mass murder.

Look at the sustained effort on the part of thousands of intelligent and rational pundits to figure out what "caused" Mohammed Atta and his 18 merry men to "martyr" themselves in order to destroy multiple buildings and kill nearly 3,000 souls... after all, it couldn't possibly be for the risible reason that American troops profaned the holy country of Saudi Arabia -- which Osama bin Laden hated and despised above all others! That wouldn't be... rational.

And the prosecution of terrorist cases is also hampered by the defense tactic of demanding hundreds of heavily classified documents in discovery and trying to call top antiterrorism officials to testify under oath; when the government refuses, for obvious reasons, to produce those documents and witnesses, many soft-hearted, soft-headed, and very angry liberal judges retaliate against the government by dismissing the charges... on grounds that Mr. Terrorist is not getting a fair trial. Thus, such judges force the government into a Sophie's Choice moment: Either they can convict this one terrorist -- or else they can continue to fight against the global Salafist, terrorist conspiracy... but not both.

Finally, many countries routinely refuse to extradite wanted prisoners to the United States if the prisoners could possibly be subject to the death penalty.

For all of these reasons, a typical civilian-court trial has about as much chance of convicting and properly sentencing a terrorist mastermind as our hapless coyote has of catching the road runner. Most of our judicial efforts come boxed from the same Acme Co. that supplies Wile E. Coyote with the rockets that malfunction, carrying him over the cliff to disappear in a tiny dust cloud at the bottom.

Another perfect example is the just "concluded" -- by which I mean "ended in a mistrial without a conclusion on nearly all the charges" -- Holy Land Foundation trial. Despite a massive volume of intelligence information introduced to the jury, much of it from "an array of internal Muslim Brotherhood documents from the 1980s and early 1990s," the jury could not agree on a single conviction for a single charge for any of the seven defendants.

There have been some partial successes: The Italian conviction of Osman cited above, for example. But even in that case, the man actually convicted (in Italian court) for planning and ordering the Madrid bombings -- thus organizing a mass murder, as far as Italian law is concerned -- received a sentence of just ten years... which an Italian court of appeals promptly reduced to eight years. That works out to just slightly over 15 days per murder, in case you're counting.

In another infamous case, the Bush administration eventually saw the graffiti on the wall and transferred the Jose Padilla prosecution from military to civilian court. At that point, the government had to drop all of the allegations that Padilla was plotting a "dirty bomb" attack (an attack using conventional explosives wrapped in a dangerously radioactive casing) and other attacks on American soil... likely because they could not use in civilian court any of the intelligence data from Khalid Sheikh Mohammed:

Padilla's attorneys would have argued that since Mohammed was "tortured" (waterboarded), everything he said was inadmissible; worse, even the successful capture of Padilla and any evidence taken at the time came, ultimately, from Mohammed's intelligence... hence was "fruit of the poisoned tree" and likewise inadmissible.

The prosecution was reduced to presenting evidence to a grand jury that got Padilla indicted on three counts -- one of which, conspiracy to murder, kidnap, and maim, was immediately chucked out by the trial judge. It was restored by the appellate court, but it's another illustration of the "soft-hearted judge" dilemma above.

There is a reason the Bush administration has resisted, to the maximum extent possible, shifting primary responsibility for dealing with terrorists to the civilian court system... and it's not that Bush wants to shred the Constitution and imprison thousands of liberal activists in Gitmo: it's that terrorists are well-trained in using the rights and liberties of our own judicial system as a weapon against us.

They are well-versed in tying our courts into knots, playing the victim, and shifting blame to American foreign policy. And because the refutation of such lies would require revealing classified information that is vital to national security, the government is typically helpless to defend itself and its prosecution.

Alas, there is also a reason why the Democrats, to a man (and I include Hillary in that), will fight until the cows come home to roost to return the war on global hirabah to the courtrooms, as it was under President Bill Clinton: Because it's so much easier simply to charge terrorists in civilian court, then throw up one's hands at the mistrials and not-guilty verdicts and say "what can we do?" than to take on the duty oneself and actually achieve results.

Declaring that the proper way to fight terrorism is not with special forces and intelligence but subpoenas and indictments relieves a future Democratic administration from all responsibility. It takes the whole "terrorism thing" off the president's plate... allowing him or her to focus on more pleasant tasks, such as raising taxes on poor smokers in order to finance government-run health care for all middle-class children and their parents.

Hatched by Dafydd on this day, October 31, 2007, at the time of 7:56 PM | Comments (7) | TrackBack

October 23, 2007

The Logic of Thug-Huggers

Constitutional Maunderings , Crime and Punishment
Hatched by Dafydd

I've said many times that I agree with those who say "all human life has value."

No, really I do; all human life does have value: But sometimes, that "value" is a negative number. Take John B. Taylor, for instance... please:

Mr. Taylor was found guilty of first-degree murder and sentenced to death at his trial in Queens in 2000. He and an accomplice, Craig Godineaux, were found to have forced seven people into a walk-in freezer at the Wendy’s in Flushing, bound and gagged them, then placed them on their knees before shooting each in the head.

Two of the victims survived, and testified at Mr. Taylor’s trial. (Mr. Godineaux, who is mildly retarded, pleaded guilty to murder in the case and is serving a life sentence without parole.)

I have a hard time understanding why anybody would have a hard time understanding this verdict. There is no real dispute that Taylor did it; no new, exonerating evidence has emerged... and he isn't even a Mexican national, allowing his pending execution to be overturned on grounds that he had not been allowed to chat with President Felipe Calderón before being tried. And yet...

Closing a chapter on one of the bloodiest crimes in recent New York City history, the state’s highest court today tossed out the death sentence imposed on a man for his role in the murders of five workers at a Wendy’s restaurant in Queens seven years ago.

The man, John B. Taylor, was the last remaining inmate on New York State’s death row.

The divided decision by the Court of Appeals [4-3] not only ordered the trial court to resentence Mr. Taylor -- almost certainly to life in prison without parole -- but it also reaffirmed a landmark decision in 2004 that effectively invalidated the state’s death penalty law.

Now why, you may ask, was Taylor's death sentence overturned? What was the great legal, moral, or substantive principle that required the Court of Appeals -- which, oddly enough, is the highest court in the state, while the lower trial court is called "the Supreme Court of the State of New York" -- to invalidate Taylor's death sentence?

It turns out to be so clear that even a death-penalty advocate such as myself would be likely... nay, driven to acknowledge the essential injustice the court sought to prevent. (Note for the irony impaired; this is an ironical sentence: I say one thing but actually mean the opposite.) It has to do with an "anticipatory" instruction given the jury in capital cases:

Under current state law, if a jury cannot reach a unanimous verdict on the question of death, the trial judge is required to tell the panelists that a sentence, to include parole, will be automatically imposed. The Court of Appeals ruled in a split decision in 2004 that such jury instructions were unconstitutional, because they could coerce deadlocked jurors to vote for death out of a fear that a violent defendant might one day walk free.

It was out of deference to that case, People v. LaValle, that the court tossed out Mr. Taylor’s death sentence today, basing its decision largely on the principle of “stare decisis,” a Latin term meaning “let the decision stand.”

So let's get this straight:

  1. The Court of Appeals originally decided in 2004, by another 4-3 decision, that New York's death penalty was unconstitutional because jurors were informed -- truthfully -- that in the event of a deadlock, the judge would have to impose a sentence that still included the possiblity of parole... which was not one of the two possibilities available to the jury (they could only consider either death or life without parole, "LWOP").

Thus, the court reasoned:

What, then, is the consequence of telling the jury that it may not impose a sentence of life with parole eligibility after 20 to 25 years, but that the court will impose that sentence if the jury cannot agree? The deadlock instruction interjects the fear that if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to society in the future. Yet, in New York a defendant's future dangerousness is not a statutory aggravator the jury may consider.

Clearly the intent of this instruction was to inhibit endless bickering on the part of the jury; the court argued that a juror might be pressured to "impose the death penalty on a defendant whom they believed did not deserve it simply because they fear that the defendant would not serve a life sentence." But wouldn't they be equally entitled to impose a sentence of LWOP?

There is no reason to presume such pressure would push one way any stronger or weaker than the other, as either decision would avoid the possibility of parole. The only pressure is for the jury to come to some decision -- not any particular decision.

This is why, I suspect, half the court dissented. Nevertheless, one of those dissenters, Judge Robert S. Smith, joined the majority today in tossing out the sentence of John Taylor. But why? Simple, and it brings us to the second prong of New York's right pranging:

  1. Then today, the principle of "stare decisis" rose up and so overwhelmed Judge Smith that he affirmed the asinine decision he, himself dissented from three years ago and applied it to the decision today.

Thus is great nonsense perpetuated, and imprudent jurisprudence drives out the good. Is it really rational to toss out a state's death penalty because jurors are threatened with the defendant getting a lesser sentence -- if they can't agree on which of the two available harsher sentences to impose?

Stare decisis is the principle that previous judicial understandings of the law should not be lightly put aside, because there is virtue in having a predictable, stable rule of law. But it has never been an absolute prohibition -- else we would still be operating under Plessy v. Ferguson, which required “equal but separate accommodations for the white and colored races.”

Rather, stare decisis is just one factor a justice (in New York, "justices" on the Court of Appeals are called "judges") must weigh in deciding whether to overturn a precedent: But if the error is great enough, it must overcome the judicial inertia imposed by stare decisis. And in this case, I think the original LaValle decision was so stupid and contrary to the will of the state legislature that, at the very least, those who dissented in LaValle itself should also have dissented here.

I'm quite sure that the four judges who imposed the LaValle decision on the state -- and then extended it to strike down the entire death penalty -- were legislating from the bench. All but one of the majority judges in LaValle were appointed by Gov. Cuomo, while all of the dissenters were appointed by Gov. Pataki; and restoration of the death penalty was a major issue in the 1994 campaign of Pataki against Cuomo, probably a major reason Pataki was elected.

(The lone exception was Judge Albert Rosenblatt, who concurred with the majority; he was appointed in 1998 by Pataki. Rosenblatt was viewed as a "moderate" even by the New York Times, which praised his selection in an editorial -- contrasting Rosenblatt with the "blindly pro-prosecution judges" Pataki appointed in his first term... not a very good sign, in my opinion.)

Since 2004, Judge Rosenblatt retired and was replaced by another Pataki appointee: Eugene F. Pigott. Since today's ruling was also 4-3, despite the defection of Judge Smith, that must mean that Judge Pigott dissented, holding that Taylor's death sentence was valid.

Thus, because of one judge's fetishistic love of stare decisis -- believing it even applies to rulings he considers incorrect -- New York blew a perfect opportunity to revisit the mistake of LaValle itself. As Judge Smith admits in his concurring opinion in the Taylor case:

I thought, and still think, that LaValle was wrong in holding the redesign to be required, but the harm done by the error does not justify casting stare decisis aside.

Color me disrespectful of the past and of bad precedent, but I strongly dissent from Judge Smith's opinion -- joining three of the seven judges, who also dissent.

The will of the people of the state of New York was cast down and stamped upon by the Court of Appeals in People v. LaValle... and the pieces were just spat upon today in People v. John Taylor. Feh.

Hatched by Dafydd on this day, October 23, 2007, at the time of 7:03 PM | Comments (2) | TrackBack

September 20, 2007

Jena Justice

Crime and Punishment
Hatched by Dafydd

There is a terrible tale of racism and racial hysteria unfolding in a tiny town called Jena in Louisiana:

Traffic jammed the two-lane road leading into the tiny town of Jena early Thursday as thousands of demonstrators gathered in support of six black teens initially charged with attempted murder in the beating of a white classmate. [The victim, Justin Barker, was selected randomly and beaten, in broad daylight, just outside his high school, by six black youths, five of them of majority age; Barker was chosen for this honor because he was white.]

The Rev. Al Sharpton said it could be the beginning of the 21st century's civil rights movement, one that would challenge disparities in the justice system.

"You cannot have justice meted out based on who you are rather than what you did," [the Rev.] Sharpton told CBS's "The Early Show" Thursday.... [Justin Barker was beaten by the black youths for who he was rather than what he did (he didn't do anything).]

"This is the most blatant example of disparity in the justice system that we've seen," [the Rev.] Sharpton said Thursday. "You can't have two standards of justice. We didn't bring race in it, those that hung the nooses brought the race into it...." [Justin Barker did not hang any nooses, and he did not bring "the race" into it.]

Thursday's protest had been planned to coincide with [defendant Mychal] Bell's sentencing, but organizers decided to press ahead even after the conviction was thrown out. Bell remains in jail while prosecutors prepare an appeal. He has been unable to meet the $90,000 bond.

"We all have family members about the age of these guys. We said it could have been one of them [any "one of them" could have beaten some random white kid because he was angry at other white kids]. We wanted to try to do something," said Angela Merrick, 36, of Atlanta, who drove with three friends from Atlanta to protest the treatment of the "Jena Six". [Nobody rallied to protest the beating of Justin Barker.]

The rally was heavily promoted on black Web sites, blogs, radio and publications.

Students came from schools across the region, including historically black colleges like Morehouse College, Spelman College, Clark Atlanta University, Howard University, Hampton University and Southern University. [But the Rev. Al Sharpton assures us that the protesters didn't inject "the race" into the beating of Justin Barker.]

Tina Cheatham missed the civil rights marches at Selma, Montgomery and Little Rock, but she had no intention of missing another brush with history. The 24-year-old Georgia Southern University graduate drove all night to reach tiny Jena in central Louisiana.

"It was a good chance to be part of something historic since I wasn't around for the civil rights movement. This is kind of the 21st century version of it," she said.... [The 21st century version of the civil rights movement seems strangely silent about Justin Barker's right not to be beaten for "walking home while white".]

[The Rev.] Sharpton, who helped organize the protest, met Bell at the courthouse Wednesday morning. He said Bell is heartened by the show of support and wants to make sure it stays peaceful. [Nobody showed any support for Justin Barker, lying peacefully in the street unconscious after his beating.]

"He doesn't want anything done that would disparage his name - no violence, not even a negative word," [the Rev.] Sharpton said. [Let's not disparage the name of the victim -- Mychal Bell -- forced to endure a trial merely for beating a random white boy. Where's the justice for poor Mychal Bell?]

Justin Barker was attacked from behind without warning; he never even saw who hit him first. He was jumped by six black youths because he was the nearest white boy around when their "black rage" overwhelmed them. This is what news agencies across the world refer to as a "school fight;" and the rallies for the defendants were populated by "veterans of the civil rights movements," as reported in the caption to this photograph:

The Blalocks prepare for joyous rally supporting racism in Jena, LA

Big Lizards caption: The Blalocks prepare for joyous rally supporting racism in Jena, LA

Actual caption:

Andrea Blalock, left, checks out a shirt for her husband Thomas Blalock, both from Stockbridge, Ga. as they prepare for a march in support of the Jena 6 in Jena, La., Thursday, Sept. 20, 2007. Hundreds of people dressed in black, from college students to veterans of the civil rights movements, boarded buses bound for Jena and a rally Thursday in support of six black teenagers who were initially charged with attempted murder in the beating of a white classmate.

"Enough is enough," says Mr. Blalock's t-shirt. Enough what -- enough white people? Enough prosecutions for black kids who violently assault random whites? I suppose Mrs. Blalock believes that's exactly the message that Jesus taught.

It appears that the core demand of the "21st century's civil rights movement" is that, if "Whitey" offends some blacks, then all other blacks have the civil right to retaliate against "Whitey;" and any old Whitey who comes along will do. Just as in one of the cases that first brought the Rev. Al Sharpton to prominence, the Crown Heights riot, where he argued that if Mr. Jew loses control of his car and accidentally kills a black girl, then Mr. Jew should be beaten to death. Of course, any "Mr. Jew" will do: Jews -- and Whites -- are fungible. We exist only as representatives of our race.

And across the nation -- across the world -- there are rallies in support of six black youths who beat a random white teenager until he had a concussion, was bleeding from his ears, and was blind in one eye for weeks. His crime was racial guilt: Other people who were also white -- just like Justin Barker! -- hung nooses from a tree to scare some black students.

There is a terrible tale of racism and racial hysteria unfolding in a tiny town called Jena in Louisiana, and in Europe, and in Asia: Flip the races around; say that six white youths beat a black teenager because some other black teenager Mau-Maued them.

How many around the globe would rally for the "civil rights" of the assaulters?

Hatched by Dafydd on this day, September 20, 2007, at the time of 10:25 AM | Comments (9) | TrackBack

August 16, 2007

Cognitive Dissidents

Crime and Punishment , War Against Radical Islamism
Hatched by Dafydd

I'm very happy that Jose Padilla was just convicted on all counts in federal court today. I'm glad that -- barring a successful appeal -- he'll spend the rest of his life behind bars.

But I'm not pleased with the continuing cognitive dissonance within the elite media, as they prosecute their unfathomable war against global intelligence gathering. To see the absurdity you must swallow to be an anti-military tribunal liberal, read on:

Neal Sonnett, a prominent Miami defense lawyer who heads an American Bar Association task force on treatment of enemy combatants, said the verdict proves that the U.S. detention camp at Guantanamo Bay, Cuba, is unnecessary to deal with terrorism suspects.

"This verdict once again demonstrates that federal courts are perfectly capable of handling terrorism cases," Sonnett said.

Note that Neal Sonnett is the only legal expert cited in this entire article; he thus stands as the voice of the media. The thrust of his argument is that, since Padilla was eventually tried in federal court and convicted, therefore we don't need military tribunals... the federal court system can handle all terrorist prosecutions.

But wait, let's add the very next paragraph:

Neal Sonnett, a prominent Miami defense lawyer who heads an American Bar Association task force on treatment of enemy combatants, said the verdict proves that the U.S. detention camp at Guantanamo Bay, Cuba, is unnecessary to deal with terrorism suspects.

"This verdict once again demonstrates that federal courts are perfectly capable of handling terrorism cases," Sonnett said.

The charges brought in civilian court in Miami were a pale shadow of those initial dirty bomb claims in part because Padilla was interrogated in a military brig and was not read his Miranda rights.

In other words, assuming the federal authorities were not simply lying (which I suspect is what AP and most other members of the drive-by media believe)... we had good evidence that Padilla specifically came here to carry out a "dirty-bomb" attack -- that is, an explosive device wrapped with a dangerously radioactive shell to create "dirty" shrapnal. But we couldn't use it, because (a) we obtained it from highly classified sources that could not be jeopardized by being introduced at trial; in addition, (b) we confirmed the accusation via Padilla himself admitting it... but we couldn't use that, either -- because we didn't allow him to have an attorney present, directing his response to every question.

We know (a) that we had evidence of the dirty-bomb charge before Padilla's capture, else why would we have nabbed him and talked about a dirty-bomb in the first place? (Unless, again, one begins by believing that everything the Bush administration says is a lie.)

And we know that AP believes, rightly or wrongly, that (b) Padilla confessed to the dirty-bomb charge; if not, why would his non-Miranda-ization even matter? The Miranda rule only covers evidence obtained at least in part by statements made by the defendant.

Thus AP believes that there was evidence of a dirty-bomb attack that we could not, for various reasons, use in federal court. So thank God he also committed other crimes that were more easily prosecuted!

However, other terrorists may be more clever than Padilla and his co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi; they may not leave a trail that can be followed by a normal criminal investigation -- subject to all the normal limitations on the collection of evidence; but which can be tracked by the use of expanded intelligence operations that could not be introduced in federal court, either because they violate some right guaranteed to ordinary criminal defendants or because introducing them as evidence would expose covert sources, methods, and technology. Such exposure allows other terrorists to elude capture by the same means.

In ordinary criminal trials, we accept the fact that a certain percent of guilty defendants will get off "on a technicality." We even say things like "better a hundred guilty defendants go free than a single innocent defendant be wrongly convicted." And what is the consequence of the guilty going free? So there will be a bit more crime, a few more robberies... even, sadly, a few more murders. But nothing with the potential to shred the very fabric of society.

This philosophy works exellently well... when the primary purpose of the judicial system is to punish transgressors who get caught and to deter others by the threat of punishment.

But where national-security is concerned, we are much less concerned with punishing the guilty than protecting society from dangerous people. Nor does deterrence factor into the equation when dealing with attackers who expect to die during their crime... as Cal Thomas put it, fanatics "who see death as a promotion." (Ralph Peters repeatedly uses the line, but Cal had it first.)

Especially in the current environment of existing weapons of mass destruction, just one of those guilty defendants who go free could later set off a bomb that kills tens of thousands (as would have happened on September 11th, 2001, if the Twin Towers had fallen immediately), drive the economy into recession or depression, lead to wars where more tens of thousands must die, possibly split us from our allies, and even lead to draconian security laws here in the United States that suspend actual civil liberties.

The enormity of letting guilty hirabi terrorists go free "on a technicality" vastly outweighs the abrrogation of any putative "rights" those terrorists may claim.

Of course, this puts a great responsibility onto the Executive, who must honestly and to the best of his ability distinguish actual terrorists from innocents caught in a web of suspicous-looking circumstances... and even from terrorist wannabes who don't really do anything but shoot off their big mouths, like Ward Churchill or most of those teenaged imbeciles who march around at "peace" rallies carrying Hezbollah flags.

Even when tribunals are conducted entirely by the Executive, they must include adequate safeguards against wrongful conviction; thus I support in theory the Hamdan case... but I think the Court went too far down the road of demanding that those who violate the Geneva Conventions themselves be offered the protections of Geneva. But clearly, we were unable to try Padilla in federal court for the most serious charge of plotting a radiological attack in New York City... because of the restrictions inherent in trying people in ordinary, civilian court.

And even the elite media agrees -- despite simultaneously trying to argue the opposite.

Hatched by Dafydd on this day, August 16, 2007, at the time of 3:31 PM | Comments (0) | TrackBack

June 11, 2007

Why Do We Kill People Who Kill People to Show That Killing People Is Wrong?

Crime and Punishment
Hatched by Dafydd

Yes, another entry in the infamous list of "Questions that answer themselves." (It made a cool velvet black-light poster back in the 1960s, however.)

Even easier if we reinsert the adjectives that were stripped out to fabricate a pseudoargument: Why do we kill evil people who kill innocent people to show that killing innocent people is wrong? Duh...

I suppose most of you will be startled right out of your falsies to learn that criminologists and economists, who are best able to evaluate the difficult statistics in such studies, have by and large agreed that the evidence is conclusive: Executing murderers really does save lives:

Anti-death penalty forces have gained momentum in the past few years, with a moratorium in Illinois, court disputes over lethal injection in more than a half-dozen states and progress toward outright abolishment in New Jersey.

The steady drumbeat of DNA exonerations - pointing out flaws in the justice system - has weighed against capital punishment. The moral opposition is loud, too, echoed in Europe and the rest of the industrialized world, where all but a few countries banned executions years ago.

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument - whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

I have always believed (since I was 11 or 12) that the moral argument in favor of capital punishment was by far most convincing to me: If you take an innocent life, or at least a life that you had no just cause to take, then your own life is forfeit; regardless of the deterrance value, it is the only coin valuable enough to pay for your evil deed. That always seemed self-evident to me.

But it is nice to know there is a practical advantage, as well. I always suspected it, but now we're starting to see clear and convincing proof.

In days of yore, the unlawful taking of a human life could oft be expiated by paying money, "weregeld" (literally, man-gold) to the victim's kin or tribe, mostly to prevent a bloody clan feud that could last for generations.

But in those days, the individual life was worth less than it is today. A person had value mostly as an ordinal number, not a cardinal number -- for the slot he filled in society rather than any intrinsic value he held as a person. Thus, it was possible to calculate how much gold was required to replace him.

But today, especially in our individualist society, we value people for their uniqueness and irreplaceability, and no amount of money fully makes up for the loss. Thus, the only punishment that is not an offensively gross underestimation of the crime is the execution of the murderer.

(When the intent is less than murder, so too is the crime; I don't support the death penalty for negligent homicide or even manslaughter.)

Naturally, there are other factors in saving lives by executing murderers: Sureness and swiftness of punishment can dramatically improve deterrance:

Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

Thus, if murderers spent only 3 years on death row before being fried instead of 20 years, each execution might save 25 lives, rather than a scant 18 lives. But don't expect any actual, you know, science to make a dent in the liberal braincase; they love to cite scientists in the global-warming debate -- assuming the scientists are reliably supportive of the wild guesses of the Intergovernmental Panel on Climate Change; but woe betide you if you dare cite actual scientists on such a moral issue as capital punishment:

The reports have horrified death penalty opponents and several scientists, who vigorously question the data and its implications.

So far, the studies have had little impact on public policy. New Jersey's commission on the death penalty this year dismissed the body of knowledge on deterrence as "inconclusive." [Where "inconclusive" is here defined as "tending towards a conclusion we really, really hate.]

Still, at least a few liberal (in a sense) legal scholars are having, if not a dark night of the soul, at least some nights tossing and moaning with "restless brain syndrome." Cass Sunstein, for example:

The studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled "Is capital punishment morally required?"

"If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he told The Associated Press. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."

Sunstein said that moral questions aside, the data needs more study.

So take heart; if other criminological battles (over carrying a concealed weapon, e.g.) define the norm, then in only a few decades, legislatures will finally start admitting that there really can occasionally be a scientific answer to a scientific question, even if it touches upon some critical aspect of the vision of the anointed.

Hatched by Dafydd on this day, June 11, 2007, at the time of 1:23 AM | Comments (11) | TrackBack

April 17, 2007

Fighting Back Was Not an Option, Part 2

Crime and Punishment , Gun Rights and Occasional Wrongs
Hatched by Dafydd

Three sober, responsible, respectable, intelligent gentlemen have made a very good case for not discussing so-called "solutions" (on either side of the aisle) for such terrible crimes as yesterday's massacre at Virginia Polytechnic Institute and State University.

Dean Barnett and Hugh Hewitt of and John Hinderaker of Power Line each says that there will come a time for understanding the macro-politics of the shooting spree; but that time is later. Now is the time for grieving, they argue -- and for healing. Hugh just said some hours ago that everyone should talk as if the parents who lost their children are listening. And I completely understand his point.

I just don't agree with it.

Were I actually talking to one of the bereaved, of course I wouldn't start discussing how to prevent such evil in the future. But I'm not; I cannot imagine anyone suffering such a loss reading a political blog the next day. It's absurd.

I'm talking to readers who, while they may be in shock, did not actually lose a loved one in this particular shooting. Any pain and loss they feel, however real and wrenching, is due to empathy with the victims.

Empathy is a vital and decent response; a man who feels no empathy for a parent who lost a child is probably a psychopath. But empathic pain is simply not in the same league as the actual pain of such a terrible loss to those who suffer it themselves. Even those who know what such pain is like from personal experience don't feel it as intensely when empathizing with a stranger as when it happened to them.

I can well understand those in the midst of such agony not wanting to hear or see anything about how to prevent such atrocities. Their brains are filled to bursting with memories that have abruptly become more precious than diamonds yet sharper than a razor. But for many of the rest of us, our pain is not so much in the gut as in the psyche... and the only balm for psychic pain is cool-headed, rational thought about solutions to the problem.

If you don't agree, I won't be offended. Stop reading this post; because from here on, logical analysis is all it will contain.

I will put the rest in the extended entry, forcing you to make an overt action to continue.

The one possibly odious trick I have played is the title, which makes a political point itself: I see the circumstances of the Virginia Tech shooting and of the British hostages as betraying the same very poignant -- and dangerous -- perspective: helplessness as a virtue.

But the two circumstances also differ in a way that at first appears vast, but upon reflection seems not so great after all. When a soldier, by inaction, renders himself helpless, we call it cowardice; but civilians do not seem to be under the same duty as a member of the military, one who has voluntarily assumed responsibility for protecting and preserving his society.

Surely, however, adult civilians are not completely bereft of any such responsibility; in fact, assuming personal responsibility for the lives and freedoms of others is, by my reckoning, exactly what separates the child from the adult. When a boy or a girl freely accepts that he has a certain duty towards his fellows, even when nobody will ever know whether he fulfilled it or not, that is when boy becomes man and girl becomes woman.

The epiphany is usually a series of small revelations that mount up over time, but it can also strike like the fangs of a diamondback in the dark night of the soul. Either way, dawn can begin at any age past puberty and can take a number of years, or a few short days... or else a lifetime can pass without the change completing.

The epiphany is this: Each one of us is a foot soldier for civilization; when evil threatens, we must do our utmost to thwart it.

Your utmost may be as simple as snitching on your best friend when you discover he has systematically looted the company you both work for... or as profound as Virginia Tech Engineering Professor Liviu Librescu, a Holocaust survivor, who gave his last full measure blocking the doorway to his classroom, allowing his students time to escape out the window.

If President Bush is decent, he will award a Presidential Medal of Freedom -- the highest award a civilian can receive -- to Professor Librescu (later, when his loved ones have recovered a bit more).

But if Bush is just as well as decent, he would instead award the Medal of Honor, which is available only to active-duty members of the military. Because when the shooting started, Professor Librescu's society had come under attack by a demonic evil; and every adult man and woman on the scene, each already a member of the unorganized militia of the United States of America, was instantly activated to defend his civilization, including Professor Librescu.

There is no difference in my mind between Professor Librescu using his own body as a human shield and a National Guardsman being activated and sent to Iraq, and both should be equally eligible for the Medal of Honor.

But Professor Librescu was 77 years old when he died; there was little he could do against a young, armed man like the killer (whose name is known, but which I will not honor with remembering) beyond delaying him for a minute or two. Professor Librescu did what he could, and it was enough: He saved many lives that were, in some sense, his responsibility. He was a teacher -- and his last breath was spent teaching the greatest lesson of all: transcendent duty.

But what about the other presumably adult men and women at that campus? Most were nowhere near the scene and therefore never had the opportunity to test their courage, their honor, and their worth. This is a minor tragedy in itself; it's the subject of one of the greatest poems ever written in English: "Elegy Written In a Country Churchyard," by Thomas Gray.

But there are others; there are also those who were there, who were close by. What did they do? How did they acquit themselves?

Did they gather those around them and hurry with them to safety? Did they save themselves? Each of these is a minor virtue, and I don't want to knock it. Sometimes, such minor virtues are all that a person can achieve, given the time, place, and opportunity.

But surely there must have come a time when a man or woman, hiding not far away, saw that the gunman had turned his back. What that person did in that moment is the true assay of character.

Maybe someone charged at the gunman -- but foul fate intervened, and the butcher heard, turned, and added another victim to his hellish toll. Anyone so killed is as heroic as Professor Librescu.

But -- and I hate the thought, even as it screams insistently -- it is virtually inevitable that there were others who were there, who saw an opportunity, but who were frozen to the spot with dread. Or else they talked themselves into believing that there was nothing they could do. Or worst of all... some must have done nothing because they had been carefully taught that "nothing" was what they were supposed to do. I cannot help thinking that for many students at Virginia Tech yesterday, just as for the fifteen British sailors and marines, "fighting back was not an option," because to them, it is never an option.

That's a job for "professionals."

Let me take a brief detour here to a post written by Dean Barnett, and to what he said yesterday while guest-hosting on Hugh Hewitt's radio show. I like Dean, though I've never met him. But I think he has exactly the wrong attitude about this spree killing. Dean wrote:

What makes tragedies like this one so gut-wrenching, though, is precisely their inexplicable nature. They are truly, literally senseless.

And yet it’s in our nature to try to make sense of the things we don’t or even can’t understand. But I’ll tell you something: Searches for reasons and explanations here are going to bring us up empty. The painful fact is that terrible things happen. There are evil people who do evil things. There’s nothing more to it than that. There’s no policy prescription that can make things like this never happen again.

This from the same man who earlier worried that that dreadful phrase would become "the epitaph of the Western world!" Dean makes a catastrophic logical error in this passage: He conflates the agent and the enabler.

He is correct that nothing we do can completely prevent evil people from attempting to perpetrate such heinous acts; but there is a great deal we can do to frustrate them when they try. And the failure even to try to stop evil is the great enabler of evil.

We know this; it's even an aphorism: The only thing necessary for the triumph of evil is for good men to do nothing. So why does Dean Barnett so blithely absolve those good men and women who had a shot but did nothing?

Because Dean, like everyone else who grew up in post-World War II America, has been bathed from birth in the fountain of futility. There's nothing you can do; don't even try. Let the authorities handle it... they're professionals. We must sit quietly and wait for instructions.

As with every other sane person, Dean must reject this rot -- intellectually. But as with every other child of the second half of the 20th centry, overcoming the doctrine of moral inertia requires constant mental battle. Don't get involved. Don't make waves. Would you rather be a live coward or a dead hero? According to the doctrine, the answer to that last question is "live coward," incredibly enough; good thing Professor Librescu was too old to have been infected.

Yesterday, while he guest-hosted for Hugh, Dean read an e-mail from a listener who groped for words to describe the eighteen-year course in the doctrine of moral inertia endured by everyone who passes through the public school system (and most of the private ones as well).

The writer was trying to talk about the professionalization of America, where every decision is left up to the "experts;" but Dean dismissed the e-mail out of hand, because its writer bemoaned the suppression of dodgeball, which appears to have annoyed Dean beyond all reason.

It was a metaphor, but it went right over his head. "Dodgeball wouldn't have solved this problem," Dean snapped -- and I had the awful impression that he imagined the e-mailer was saying students should literally have thrown basketballs at the shooter. In his post, he put it this way:

One emailer said that we had turned our kids into a bunch of wusses, and that if we brought back things like Dodgeball, things would get better.

It was a sneer, and I was very disappointed in Dean. I hope he reconsiders; what the e-mailer meant was that schools have systematically beaten the fighting spirit out of American children, who then grow into dispirited adults, for whom "fighting back is not an option."

We can overcome such conditioning; that's why I have not given up on Western Civ, unlike some. But it takes effort and will.

Here is a sidebar story about the doctrine of moral inertia, its reach and falsity and how it was overcome. Sachi tells this story from her own experience:

On September the 11th, 2001, a little after six o'clock in the morning, I got on the Hollywood Freeway in California. I was on my way to work, which I had just started a week earlier. The orientation for new government employees was scheduled for 0900, but I left early to avoid the traffic.

As soon as I turned on the radio, I discovered that something horrific had just happened in New York City: The second airplane had just struck the World Trade Centers.

I listened as a New York City DJ described people jumping from the tops of what were still, for a few minutes more, majestic, 110-story fingers pointing skywards. I was shocked into numbness; they had rationally decided to plunge to their deaths, rather than stay and be incinerated.

Then I heard the twin towers collapse, first one then the other.

By the time I got to the office around 0730, I already knew that Flight 93 had crashed somewhere in Pennsylvania, possibly because passengers fought back against the highjackers.

At nine, I went to the meeting, which was about anti-terrorism procedures, ironically enough. Our job requires us to fly so often that we have to know how to behave in case of a terrorist attack... such as a airplane highjacking. But the CIA agent who was our instructor was emotionally drained.

"I was supposed to show you this PowerPoint presentation," he said, "which tells you what to do in case..." He paused; "but in light of today's incident, all the instructions I was going to give you are out the window. Obviously, they no longer apply."

What the agent was going to tell us was that, in case of a highjacking (or any other take-over attack), do not resist; do whatever the highjackers tell you to do; keep low profile; and for God's sake, don't be a hero. It is an easily survivable situation.

Well, so much for that.

What we all learned instead on that day of rage was that we cannot always rely on someone else to rescue us. Sometimes, ordinary citizens are summoned to do extraordinary things -- as the passengers on Flight 93 must have realized.

We now know that there are evil-doers out there to whom "death is a promotion," as Cal Thomas said; they will happily die just in order to harm a few of us.

They are like Terminators, and no law or persuasion will stop them. They must be stopped by force: our force.

When some or all of civilization is at stake, failing to fight back is not an option... not even for us civilians.

It really makes no difference what tools the students should have used to fight back. If someone had had a gun, that would have been useful; but absent a firearm, a running tackle would work just as well, albeit with a great deal more personal risk. (Aboard Flight 93, the weapon of convenience was a rolling food cart.)

If several people had compacted together to rush the shooter simultaneously, he couldn't have killed them all -- and likely would be so startled that he didn't kill any of them.

How many innocent lives would have been saved, had just one or two people done his utmost, not merely to allow some students to escape, but to thwart the evil itself?

We don't know, but that's a lesser issue: The greater issue is that, by fighting back against evil, the students, faculty, and staff at Virginia Tech would have fired the shot heard round the world, the meme that "fighting back is always an option." Whenever such a massacre is aborted by extraordinary courage on the part of ordinary people, we send the message that good men (and women) must do something to prevent the triumph of evil.

But whenever we allow the moment to pass, and we remain hunkered down, hoping the butcher wanders away -- translation: oh Lord, please let him shoot that girl over there instead of me! -- we send exactly the opposite message: We reinforce the unAmerican idea that "we must sit quietly and wait for instructions."

We will lose forever that which makes us exceptional, not just Americans but all men of the West. And worse, we will lose it to terrorists and psychopaths, to tyrants and the grey horde... none of whom deserves such a cheap victory. We will console ourselves that there was nothing we could do; but in reality, we will have sat down and surrendered to a bunch of nobodies for a fistful of nothing.

Then the whole world will be barbarians until men learn a new way to coerce nature, and the swordsmen, the damned stupid swordsmen will win after all.

Larry Niven, "Not Long Before the End," All the Myriad Ways

Hatched by Dafydd on this day, April 17, 2007, at the time of 7:38 PM | Comments (74) | TrackBack

March 8, 2007

Despite Libby's Guilt, Prosecution Was Outrageous

Crime and Punishment , Plame Blame Game
Hatched by Dafydd

I believe I. Lewis "Scooter" Libby was rightly found guilty by the jury a couple of days ago. But that doesn't mean the entire lengthy investigation, grand-jury antics, and eventual criminal charges filed by Special Persecutor Patrick Fitzgerald had even the slightest bit of merit. In fact, I agree with Ann Coulter's assessment of what actually happened:

It was not a crime to reveal Valerie Plame's name because she was not a covert agent. If it had been a crime, Special Prosecutor Patrick Fitzgerald could have wrapped up his investigation with an indictment of the State Department's Richard Armitage on the first day of his investigation since it was Armitage who revealed her name and Fitzgerald knew it.

With no crime to investigate, Fitzgerald pursued a pointless investigation into nothing, getting a lot of White House officials to make statements under oath and hoping some of their recollections would end up conflicting with other witness recollections, so he could charge some Republican with "perjury" and enjoy the fawning media attention.

In this case, despite the actual guilt of Libby (that's my belief; Coulter believes he was actually innocent), justice was definitely not served: the crime would not even have occurred had Fitzgerald done his job properly... which in this case means he should have done the following:

  1. Investigated the leak;
  2. Discovered that Plame was not a covered person under the Intelligence Identities Protection Act;
  3. Discovered that the leaker was State Department aide Richard Armitage, an outspoken opponent of the war;
  4. Determined that Armitage leaked the information as a juicy tidbit of gossip, not by any political calculation or at the behest of Karl Rove, Dick Cheney, or George W. Bush;
  5. Realized that it was the political fabrications and lies of Ambassador Joseph Wilson that forced the White House to go into overtime trying to rebut his libelous claims.

All of the foregoing Fitzgerald did; but based upon those results -- which he had very early in the investigation -- he had one more responsibility:

  1. He should then have simply closed the investigation and dismissed the grand jury (or not even convene one in the first place), with a single curt statement: "Our office has found that no crime was committed, there was no conspiracy to out Mrs. Wilson, and there is no point to further interviews, subpoenas, or testimony.

Alas, like every other special prosecutor before him, after spending a few million dollars ramping up the prosecution in the first place, Fitzgerald found he simply could not stop gnawing on that hatchet. He couldn't just walk away, because people might think he was covering up for the president... or worse, they might think he was an incompetent prosecutor.

Most people tend to see the law as a bludgeon to achieve "cosmic justice." A very large percentage of people who believe Bush "lied us into war" likely saw Fitzgerald as the crusading lawyer who was going to "bring down this criminal regime" by indicting all the top people for... well, for something or other. Had he failed to indict anyone for anything, the hysteria would have probably exceeded the furor surrounding the 2000 vote.

Therefore, Fitzgerald went hell-bent for leather to get at least one notch on his belt: somebody had to be sent up the river. To paraphrase Pontius Pilate, Fitzgerald needed a crime.

Stupidly, and despite clear instructions from the president to cooperate and tell the truth, Libby gave the special prosecutor what he desperately wanted. It would have been easy enough not to; every other person Fitzgerald questioned managed to avoid lying. Libby could simply have invoked the Fifth Amendment; or for that matter, he could simply have told the truth, as his boss, Dick Cheney, and as Karl Rove did.

Nobody told him to lie; his lawyers did not present any evidence that anyone ordered him to lie, or even suggested that he lie: Although his attorneys promised to the jury that they would present such evidence, they broke that promise; the claim that he was a "sacrificial lamb" appeared only in their opening statement (and were I the judge, when they rested their case, I would seriously have considered a contempt of court citation -- or at least required them to explain why the hell they made such a serious charge in their opening statement if they had no evidence to back it up at trial).

Therefore, the following two statements are simultaneously true:

  • Lewis Libby was properly convicted of perjury and obstruction because he did, in fact, say two wildly different and contradictory things under oath, and the jury simply did not believe he had a brain seizure;
  • Lewis Libby would never have been put in the position where he panicked and lied if Patrick Fitzgerald had acted as a D.A., not as a "special persecutor."

What do I mean "acting like a D.A.?" Take Patterico, as an example (he's the only assistant D.A. I know personally). When evidence of a possible crime is forwarded to him by the police or by some other means, he does not go into the case determined to find somebody, anybody, to put in prison. Instead, he goes into the case with the first intent to see whether, in his expert opinion, any crime was even committed.

Just because the cops arrest someone doesn't automatically mean a crime was committed; and it certainly doesn't mean the detainee is guilty.

If Patterico determines that no crime was committed, then I would presume that marks the end of his investigation. He writes some sort of report to his boss, and he moves on to the next case. God knows, I'm sure he (and every other prosecutor) has enough cases on his plate that he's overjoyed when he can legitimately and in good conscience drop one!

He certainly does not begin interviewing hundreds of people only peripherally connected to the case (after he has determined no crime was committed), threatening dire consequences and hoping to frighten one of the interviewees enough that he perjures himself.

But that is exactly what a special prosecutor does routinely. And that is why I completely oppose the very existence of special prosecutors -- except in cases where it is the Justice Department itself that is being investigated for corruption... for example, if the Attorney General of the United States is suspected of accepting bribes. (Obviously, no one can be trusted to investigate himself.)

In this case, there was no reason why Alberto Gonzales could not have taken charge of this investigation; nobody had accused him of leaking Valerie Plame's name.

Fitzgerald came perilously close to having manufacturing the crime he later prosecuted. He didn't quite cross that line, because nobody forced Libby to lie; it wasn't legal entrapment. But Fitzgerald certainly realized early on that there was no underlying criminal conspiracy; yet he kept the process going, knowing there was a better than even chance that, if he interviewed enough people, one of them would do something stupid, retroactively "justifying" the original investigation.

It is that, rather than Libby's little black lie, that is the true "obstruction of justice," in a moral not a legal sense. Yet even so, I don't see any grounds for the president to pardon Libby: The purpose of the pardon is not to rescue idiots from themselves.

The president advised Libby to tell the truth; and the president, like every other boss, is, to quote Larry Niven, "not responsible for advice not taken."

Hatched by Dafydd on this day, March 8, 2007, at the time of 3:28 PM | Comments (10) | TrackBack

March 7, 2007

Why Was Libby Convicted? Probably Because He's Guilty

Crime and Punishment
Hatched by Dafydd

Reading the New York Times story on the guilty verdict against I. Lewis "Scooter" Libby, I have to say I find the jury's verdict convincing: I believe that Libby did in fact lie to the grand jury and others, that he did so to try to deflect danger from himself (needlessly, as it turns out), and that he was, therefore, guilty as charged.

Were I sitting on the jury, I think that is how I would have voted -- unless there is a whole bunch of exculpatory evidence that nobody is telling us, which I rather doubt.

Here is one of the strongest arguments: One of the major charges against Libby was that he told the grand jury that he did not know that Joe Wilson's wife Valerie was in the CIA until he was told so by TV personality Tim Russert, of Beat the Press fame. Later, Libby testified again, this time saying Vice President Dick Cheney had told him much earlier; but he "forgot" all about it:

One particularly important focus, Mr. Collins said, was testimony about a conversation Mr. Libby had with Tim Russert, the Washington bureau chief of NBC News. Mr. Libby had said Mr. Russert told him about Valerie Wilson’s job with the Central Intelligence Agency around July 10 or July 11, 2003.

Although Mr. Libby acknowledged that he had heard earlier about Ms. Wilson from his boss, Vice President Dick Cheney, he said he had forgotten about it until the July exchange with Mr. Russert, when “it was like hearing it for the first time.”

There was a problem with that story, however: As it happens, eight separate witnesses, many in the administration, testified about conversations they had with Libby... several of which predated his interview with Russert. In those conversations, either others told Libby or Libby told others about Valerie Plame (though he may not have known her actual last name).

But [jurors Rosemary Russo and Denis Collins] said it was just too much of a leap for them to think that Mr. Libby’s contradictory accounts were the result of a bad memory.

“There was no wiggle room about it, unless you think all these people who work for the administration were lying,” said Mr. Collins, who emerged as a de facto spokesman for the 11-member jury and later discussed the verdict in a phone interview.

Once they decided that one of the major charges was true, that Libby did indeed lie to the grand jury, his believability dropped. Thereafter, his explanation of forgetfulness (his only defense) was simply no longer credible. The jury believed the alternative explanation: that Libby lied.

Collins, by the way, is the guy who called Libby a "fall guy" and demanded to know why Karl Rove and other members of the administation weren't on trial for revealing Plame's status. Collins is a registered Democrat who thinks that somebody should be punished for the Iraq invasion -- but who agrees with the rest of the jury that this trial was not about Iraq:

There also was no discussion about the subtext of the trial — the decision to go to war against Iraq.

“This was not a question about who can we punish for going to Iraq,” said Mr. Collins, 57, a registered Democrat. “We just never allowed ourselves to go there, and I am not going to go there now.”

(The telling detail is Collins' diction: not "whether we can punish someone," but "who can we punish.")

Despite his obvious anti-Bush bias, Collins nevertheless believed that the administration witnesses were telling the truth about their pre-Russert conversations with Libby about Wilson's wife and the CIA.

I do not think it reasonable for President Bush to conclude that Libby actually forgot that he knew about Plame and actually told people; logically, the president must conclude that Libby really did lie and really did try to obstruct Fitzgerald's prove. Thus, as far as issuing a pardon goes, the question reduces to this: does the president believe that it's ever legitimate to prosecute a witness for perjury -- when the underlying issue is determined not to be a crime, as evidenced by the fact that, according to the special persecutor, nobody has been or will be charged for outing Valerie Plame.

If Bush believes that it is ipso facto wrong to prosecute for perjury in a case where there is no underlying crime, he can pardon Libby; but this is a radical step that would open up a whole 'nother kettle of worms: Shouldn't he then also pardon Martha Stewart? How about others who are convicted of the same crime? We could be talking about hundreds, even thousands of convicts clamoring for a pardon on the same grounds as Libby.

If Bush pardons them all, he would basically spend the remainder of his term doing so. But if he ignores the others, he opens himself to very appropriate charges of political cronyism: It's okay if Scooter Libby does it, but the rest of the public can drop dead.

I suspect that in the end, Bush will not pardon Lewis Libby. Libby may or may not ultimately have to serve time; but his exoneration, if any, will have to come from the judicial system itself -- not from the president of the United States.

Hatched by Dafydd on this day, March 7, 2007, at the time of 3:17 PM | Comments (15) | TrackBack

March 6, 2007

Three Impossible Things Before Breakfast

Crime and Punishment , Media Madness
Hatched by Dafydd

Let's count all the lies in the Washington Post!

Oh, wait; we haven't all day. All right, let's just count the lies in one story reporting on I. Lewis "Scooter" Libby's conviction today in federal court of four out of five charges brought against him by special persecutor Patrick Fitzgerald. Besides the smarmy inuendo, there are three clear and obvious falsehoods, starting with this one:

Plame's husband, former ambassador Joseph C. Wilson IV, was sent by the CIA on a mission to Niger in 2002 to assess reports that Iraq had sought to buy nuclear materials there. He concluded the reports were false.

Not according to the Senate Intelligence Committee report, he didn't.

To begin with, here are the famous (infamous?) "sixteen words" that President Bush used in his 2003 State of the Union speech, delivered on January 28th, 2003:

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

...Just so we know what Lyin' Joe Wilson later claimed to have refuted. But when Wilson was debriefed by his CIA handlers, he actually affirmed Bush's claim -- which was that Iraq had sought -- tried to obtain -- Uranium from Africa (not that we claimed Hussein had actually gotten his mits on any). In the Senate Intelligence Committee report cited above, we read this:

The intelligence report based on the former ambassador’s [Wilson's] trip was disseminated on March 8,2002....

The intelligence report indicated that former Nigerien Prime Minister Ibrahim Mayaki... said, however, that in June 1999, [redacted by Senate committee]-businessman, approached him and insisted that Mayaki meet with an Iraqi delegation to discuss “expanding commercial relations” between Niger and Iraq. The intelligence report said that Mayaki interpreted “expanding commercial relations” to mean that the delegation wanted to discuss uranium yellowcake sales.

(Page 43 of the document, page 8 of the pdf linked above.)

Remember, this is from the intelligence report by Joe Wilson's CIA handlers, based upon Wilson's oral debriefing of what he found in Niger.

This is very strong evidence that Iraq was, in fact, seeking Uranium from Africa... and Bush was absolutely right; and Wilson is totally wrong when he says today that he found nothing to back up the "sixteen words".

Wilson lied, and now the Washington Post has knowingly perpetuated that lie in order to boost Ambassador Wilson and damage President Bush.

Next big lie:

Testimony and evidence revealed that the vice president dictated precise talking points he wanted Libby and other aides to use to rebut Wilson's accusations against the White House, helped select which journalists would be contacted and worked with Bush to declassify secret intelligence reports on Iraqi weapons that he believed would contradict Wilson's claims.

"There is a cloud over what the vice president did," Fitzgerald told jurors in the prosecution's closing arguments. "That's not something we put there. That cloud is not something you can pretend is not there."

Wait, wait, wait -- ! Isn't that a subjective opinion? How can an opinion (let alone anything subjective) be a "lie?"

Let's deal with this question immediately. What is the definition of a lie? A lie is any word or action intended to deceive. Whether objective or subjective isn't part of the definition... that only speaks to how easy or hard it is to prove. Case in point:

Suppose one of the rabid Republican Coulter-haters were to say, at the end of a harangue about Ann Coulter, the following: "And on top of everything else, she's so fat, it's obvious she's still stuck back in the oral phase of development; she cannot be trusted, because that developmental phase doesn't even understand the distinction between right and wrong."

Is that subjective? Absolutely. Is it an opinion? No question about it: "so fat" is a comparative, and without knowing the thing it's being compared to, it's not a factual statement. Ann Coulter is certainly fat compared to Mahatma Gandhi during a 25-day hunger strike, for example.

Nevertheless, such a statement would be a lie. It's clearly false -- she is actually very thin -- and the intent is to deceive the listener into ignoring what she says on the specious grounds that her "fatness" means she's untrustworthy. A subjective opinion can be a lie, if the intent is to deceive.

Let's get back to Fitzgerald and his imaginary cloud...

The special prosecutor knows that Vice President Cheney has not been convicted of any crime. And why not? Well, for one reason, because Fitzgerald was not even able to get the grand jury to indict him, despite having had ample opportunities before that body.

And why wasn't Fitzgerald able to get the grand jury to indict Cheney? Clearly because the grand jury did not believe there was evidence that Cheney committed any crime!

Thus, what "cloud" is he talking about? Why, the only one we can see is a black cloud of suspicion. And since neither the court nor the grand jury put the suspicion there, Patrick Fitzgerald could only have been talking about what he, himself planted -- precisely by saying "There is a cloud over what the vice president did."

Which makes his second sentence a lie as well... the one where he said, "That's not something we put there." Oh yes you did, Mr. big-shot Special Prosecutor.

And the Washington Post knows it's a falsehood; yet it helps Fitzgerald put it across. The Post is an accessory after the fact to a big, fat, sloppy lie.

Finally, this one is really fascinating:

Fitzgerald and fellow prosecutors showed notes hand-written by Cheney and Libby indicating that the vice president was deeply disturbed by Wilson's explosive accusations that the White House had used bogus intelligence to justify the war. Witnesses and evidence showed Cheney orchestrating a point-by-point response to Wilson's claims -- some of it misleading -- that the administration gave to hand-picked reporters.

What is interesting is the ambiguous way the Post chose to slip this one across. What is the referrant of the word "it" in the parenthetical phrase? What is "misleading" -- Wilson's accusations or Cheney's response?

Fortunately for us (but not for the Post), we can definitively answer that question. "It" is singular... so it cannot refer to Wilson's accusations, which are plural. The pronoun can only substitute for Cheney's singular response.

We all know about the multiple layers of editorial input to which all stories in the elite media are subject; and while they may miss minor things like deceit, misrepresentation, and bare-faced fabrication in the body of a story... I'm certain they're quite strong on noun-pronoun agreement.

When they wrote "some of it is misleading," they meant some of Cheney's response.

This, then, is a direct accusation of deception against the vice president. But there is no attempt to substantiate the charge; it just lies there like a lox, waiting to be gobbled up.

This is clearly meant to make readers believe there is some legitimate body of evidence indicating that Cheney's response to Lyin' Joe Wilson was intentionally deceptive. But by dropping the deception depth-bomb without any intent to back it up, the Post's fraudulent claim itself is an attempt to deceive.

And therefore, this is a third Washington Post lie in the same story.

So that's that, there you have it, and I'm washing my hands of the whole affair. The Post retailed three obvious, provable lies -- in a story about a guy just convicted of lying!

That may become the new dictionary example of chutzpah.

Hatched by Dafydd on this day, March 6, 2007, at the time of 6:58 PM | Comments (4) | TrackBack

December 17, 2006

The World Turned Rightside Up

Court Decisions , Crime and Punishment
Hatched by Dafydd

You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge James Robertson, the judge who got the Hamdan case rolling in the first place, throwing out the sequel on the grounds that, according to the Military Commissions Act of 2006, the federal courts no longer had jurisdiction over enemy-combatant detainees.

In other words, doing the right thing according to the principle of judicial restraint. It was the world turned upside-down!

Well, the world has righted itself: for now, another different Clinton judge, U.S. District Judge Jeremy Fogel ("the old Fogel," we called him back in February) has used the flimsiest of excuses to find California's (and nearly every other state's) method of execution, lethal injection, "unconstitutional." Fogel held that it violated the Eighth Amendment stricture that "cruel and unusual punishments [shall not be] inflicted."

We previously covered this same case in a number of posts:

  1. If I Should Ouch Before I Die
  2. Michael Morales Dead Pool
  3. Doctors Overturn Death Penalty
  4. The Old Fogel Has Gotten His Wish

The verdict was expected, natch; back in February, the judge did everything but send spam-mail to the media explaining how he was going to rule, no matter what the evidence.

If you want a detailed analysis of just what's wrong with the judge's decision, you should read Patterico; he's one of those lawyer types, and he can give you all the particulars. But I'm here to give you the view of the ordinary guy who doesn't have the right to write "Esq." after his name (except in the Dutchy of Occulisia, where I'm actually a Peer of the Realm).

So to boil down a nutshell, the judge held that lethal injection was "cruel and unusual" because of the theoretical possibility that some condemned murderer may ouch before he dies:

Today, Fogel said "anomalies in six execution logs raise substantial questions" about whether some inmates "may have been conscious when" the second or third drugs were injected.

Fogel said that "substantial questions" had been raised by the records of previous executions in the state and that the California Department of Corrections' "actions and failure to act have resulted in an undue and unnecessary risk of an 8th Amendment violation."

That is, we don't really know whether it actually happened, but it's just possible that some prisoners might have felt some pain during their executions, in the few minutes before they died.

Actually, it's even worse. The judge tried to conceal his ill-shaped and gargantuan agenda behind a veneer of reasonability by saying that the state could skate -- if they would only adhere to a few simple protocols during executions (from our previous post, The Old Fogel Has Gotten His Wish, linked above):

In the last installment, the court-appointed anesthesiologists point-blank refused to participate in the execution.

The only other option Fogel allowed was to execute Morales by an untried, unapproved overdose of barbiturates. The state planned to do just that before the execution order expired Tuesday at midnight... however, Judge Fogel (a Clinton appointee) then added a new twist: even that lethal overdose must be administered by a doctor, nurse, or medical technician, lest it cause Morales pain:

Prison officials had planned to press forward with the execution Tuesday night using the second option. The judge approved that decision, but said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians.

To everyone's great and unexpected shock (including Judge Fogel, I'm sure) no such medical personnel were willing to inject the drug. This might have something to do with the fact that the AMA, the American Society of Anesthesiologists, the California Medical Association, and the various professional national and state organizations of nurses and medical technicians all oppose capital punishment -- and have all declared participation by their members in executions to be "unethical," which could lead to the member being subject to disciplinary actions including the loss of his medical license.

What a beautiful Catch-22! The judge says that lethal injection is perfectly all right -- but only if a doctor or other medical professional administers it... knowing that no medical professional would dare do so for fear of having his license yanked. But hey, it's not Judge Fogel's fault; it's not like he set the rules. (Oh, wait, he did; I mean, it's not like he set the rules of the AMA).

Back to the L.A. Times article. This is an odds-on favorite for an issue-analysis Oscar in the category of "Sounds vague but is in fact meaningless":

The ruling means that it is unlikely that there will be any executions in the state in the near future. It was issued shortly after Florida Gov. Jeb Bush declared a halt to executions there in the aftermath of a botched lethal injection execution this week.

The two actions represented a dramatic development in the long-running battle over capital punishment in the U.S. Just a year ago, even the most vociferous opponents of the death penalty would not have expected challenges to lethal injection procedures to have gained such gravity. But the challenges have resulted in stays of execution around the country.

We are to believe that it never occurred to "opponents of the death penalty" that filing for stays of execution around the country -- and judge-shopping for like-minded jurists -- might result in those stays being granted.

Of course, the California Supreme Court did manage to overturn all 61 executions but one during the tenure of Chief Justice Rose Bird (which tenure ended when she and two of her cronies were forcibly removed by California voters); and more recently, after the Ninth Circus Court of Appeals delayed one killer's execution so many times that the U.S. Supreme Court actually issued an injunction against any further stays.

A reasonable person might conclude that you can always find a federal judge who will weep at the sad fate of a mass murderer.

Thus, in this case, the Time's phrase "challenges... have gained such gravity" -- which evokes an image of the entire country collectively drawing breath and consulting its conscience, in light of staggering new evidence -- merely means a single, anti-capital-punishment judge in California made a stupid ruling that has to be dealt with... before the rest of us can get on with the business of ushering the lawless breed out of this world.

Shouldn't take long.

Hatched by Dafydd on this day, December 17, 2006, at the time of 3:34 AM | Comments (6) | TrackBack

December 8, 2006

Suing the Secretary and Other In-Jokes

Constitutional Maunderings , Crime and Punishment
Hatched by Dafydd

We've known for a long time that federal judges are prone to "grow in office;" in fact, I believe the very term itself was coined (wrongly) to describe the career of Justice David Hackett Souter... who was, as few now remember, a flaming liberal Republican, in the mold of his mentor, John H. Sununu -- former New Hampshire governor and White House chief of staff under President George H.W. Bush -- long before being nominated to the court. (In fact, I'm sure that's why Sununu and liberal Republican New Hampshire Sen. Warren Rudman persuaded Bush-père to nominate Souter in the first place.)

Still, it's always sad to see it happen. Especially when it's a Reagan appointee who has, like Topsy, the little girl from Uncle Tom's Cabin, "just growed." It happened with Justice Sandra Day O'Connor.

And now it seems we're in imminent peril of it happening again... this time with potential dhimmi of the year, Judge Thomas F. Hogan, appointed by Reagan to the D.C. Circus Court in 1982 -- and 24 years is a lang, lang time a-growin'. For if Hogan rules the way the Associated Press, at least, expects him to rule, he could single-handedly do more damage to America than another 9/11 would.

The ACLU is suing, on behalf of nine enemy combatants (now there's a shock!), former Secretary of Defense Donald Rumsfeld -- along with retired Lt. Gen. Ricardo S. Sanchez, who resigned because he thought Abu Ghraib destroyed his career, even though he had nothing to do with it; disgraced Brig. Gen. Janis L. Karpinski, who was directly blamed for not taking control of her troops; and Col. Thomas M. Pappas, the senior intelligence officer at Abu Ghraib, who testified against others in exchange for immunity.

But the worst part is that the suit isn't against the Office of the Secretary of Defense or the United States Army. Rather, these four defendants are being sued as individuals -- for exercising their normal official duties.

Judge Thomas "Huck" Hogan appears to be dithering, flirting with the idea of allowing any former POW, enemy combatant (lawful or unlawful), terrorist, or family of any person killed by an American soldier to personally sue the soldier, jailor, intelligence agent, commanding officer, cabinet secretary, CIA director, or president of the United States that the plaintiff deems responsible for the "victim's" inconvenience.

The ACLU -- or CAIR -- could drag not only every government official through the court system, based entirely upon the plaintiff's disagreement with administration policy, it can then extend the suit to hundreds or thousands of soldiers in the field, demanding they all be shipped back home to be witnesses and defendants in civil suits that amount to terrorism by barratry.

"Huck" Hogan himself seems to understand the dogs of judicial war he nevertheless appears poised to unleash:

Foreigners outside the United States are not normally afforded the same protections as U.S. citizens, and Hogan said he was wary about extending the Constitution across the globe.

Doing so, he said, might subject government officials to all sorts of political suits. Osama bin Laden could sue, Hogan said, claiming two American presidents threatened to have him murdered.

"How do you control that?" Hogan asked. "Where does it stop? Does it stop at the secretary of defense? Does it stop at the president? How does this work?"

Yet even so, there he stands, pointing a judicial gun at the head of American sovereignty, his finger twitching on the trigger...

Hogan questioned the scope of that immunity. He said freedom from torture is a basic right accepted by the United States and all civilized nations.

"Would you take the same policy if the argument was one of genocide?" Hogan asked. "Are you saying there could be no inquiry done?"

But of course, there has never been a shred of evidence offered that Rumsfeld even knew of the abuses (which it pleases ACLU lawyer Paul Hoffman to call "torture") at Abu Ghraib, let alone "encouraged and directed that torture," as he casually claims. So what is the point? First and most obviously, the ACLU simply hates Rumsfeld's policies so much, they seek to destroy him as a person.

But the broader political purpose of the suit is quite clear, and it's not to get abstract "justice" for the nine former prisoners: the function of the ACLU's lawsuit is to reach out and wrench American military and anti-terrorism policies more in line with those of Sen. Harry Reid (D-Caesar's Palace, 100%) and Rep. Nancy Pelosi (D-Haight-Ashbury, 100%) -- or perhaps former (thank goodness) President Jimmy Carter (D-Venus).

The intent is to leave all officials looking nervously over their shoulders, second-guessing every action -- will the ACLU, CAIR, the ADL, and every other extremist group find it acceptable? Since the answer will inevitably be No, some radical group or other is sure to find illegalities and violations in every conceivable action, the only safe thing to do is not to act at all.

And that's precisely what the ACLU wants, a "Hippocratic world": a world where all defensive action is forbidden, and every official cares only about doing no harm -- to anyone.

Thus does the politics of personal destruction make common cause with terrorism by barratry.

And the nation stands at the brink of disaster because of the inability of a Reagan-nominated federal appellate-court judge to slap this improper lawsuit down after the first day's hearing. "Huck" cannot seem to understand that whatever is the proper remedy for some horrible, policy-driven crime against humanity (such as genocide), it cannot arise from the federal courts... because any regime that would actually undertake, say, a "Final Solution to the Moslem problem," would certainly, as its very first act, disempower or even dissolve the entire civilian judicial system -- just as the Third Reich did.

Such a horrific policy implies a complete and total subversion of American society and government, something we never saw even in the depths of the Civil War or World War II, and which not even the American Criminal Lobbyist Union has had the audacity to claim. (Plenty of Islamists have claimed it; but they also claim that Allah commands them to exterminate the Jews, and they have also propelled Hitler's Mein Kampf -- in Arabic translation -- to the top of the Middle East bestseller list; so I don't see them as particularly credible on the subject.)

Judge Hogan has not yet ruled (at the time I write this), and it's still possible he will come to his senses and realize that it's not the duty of the courts to tell the American military how to wage war -- or how to punish those who violate military law -- or even to award civil damages to people who were discommoded by American foreign and anti-terrorism policies.

If Donald Rumsfeld had punched out someone in a ballroom blitz (or if he had sexually harassed a subordinate), it would be perfectly appropriate to sue him as an individual; such actions are committed by the individual, not the office. But to be able to sue Donald Rumsfeld, or Les Aspin, or Bill Cohen, or any other government official for the official acts of his office, pursuant to the express policy of the president of the United States (often acting in his capacity as Commander in Chief of the armed forces), is a prescription for complete collapse... the "Hippocratic world" of the ACLU.

Let us hope that Judge Hogan hasn't "grown" quite that far. Yet.

Hatched by Dafydd on this day, December 8, 2006, at the time of 4:49 PM | Comments (12) | TrackBack

September 12, 2006

Karl the Anti-Spammer!

Crime and Punishment , Elections
Hatched by Dafydd

But if the accusation is true, does it hurt or help?

Attorneys for a man accused of fraud say he was charged at the behest of presidential adviser Karl Rove in retaliation for a flood of spam e-mails sent to a campaign Web site. A federal prosecutor says the claim is "absurd."

Assistant U.S. Attorney David M. Siegal urged U.S. District Judge Laura Taylor Swain on Monday to reject arguments that Rove caused the criminal investigation that led to charges against Robert McAllister.

Siegal said lawyers for McAllister made the "patently absurd argument that the U.S. attorney's office in the Southern District is a shill for Karl Rove and has arrested and indicted their client in some sort of vindictive retaliation."

McAllister's lawyer Gerald L. Shargel said Monday he plans to try to call Rove as a witness, if the court allows it.

I would dismiss this as the desperate lie by a typically desperate defense attorney, and I would assume the risibility factor alone would make this defense a non-starter... except for one point: Laura Taylor Swain is a black, female Clinton appointee (2000) who got her degree from Harvard Law, and I think it better than 50-50 that she's going to seize upon this wild-eyed charge to launch her own assault upon old Karl.

In fact, I think there's a reasonable chance that she suggested the charge in the first place!

Even the last suggestion, calling Rove as a witness, which should be in the "no-fly zone," is a possibility; Swain may use her authority as a federal judge, once Rove is in the witness chair, to question him extensively about whether he suppressed the black vote using racist Diebold machines, thus stealing the 2004 election.

In the case before her, a huge flood of stock-scam spam inundated the website, which was an add-on domain name to the website of the Republican National Committee; according to the Daily News, Rove tried to contact the company and get them to stop spamming the RNC's website:

The Daily News reported Sunday that e-mails, phone records and transcripts of phone conversations indicate Rove contacted McAllister and at least three stock promoters. The newspaper reported that White House spokeswoman Dana Perino said Rove "vaguely remembered" the e- mail onslaught but could not recall whether he or any other White House worker contacted the Department of Justice.

This is the miniscule kernal of truth round which McAllister's attorney has wrapped the bizarre claim that the prosecution for stock fraud is all just a massive conspiracy to retaliate against McAllister, who is obviously the real victim here.

But I can't help think that, if his claim were bluntly put to a vote of the American people -- should stock promoters be tried on federal fraud charges merely for flooding the country with spam e-mails? -- about 90% of us would vote an emphatic Yes!

So if Judge Swain believes she will damage Karl Rove's national reputation, thus hurting the GOP's chances in November, she may be surprised by a voter backlash that instead hails him as a hero.

On the other hand, maybe she's just an ordinary, judicially minded federal judge, and she'll dismiss the claims with a single bang of the gavel... in which case, I doubt that Breitbart will see fit to report it.

Hatched by Dafydd on this day, September 12, 2006, at the time of 2:46 PM | Comments (2) | TrackBack

August 30, 2006

Patterico Agrees With the Lizard!

Crime and Punishment
Hatched by Dafydd

In my response to Patterico's post on jury nullification, Jury Nullification Or Nullifying the Jury?, I stuck up for the right of juries to, in effect, thwart the clear path of the law on those rare occasions where the law was careering towards a precipice of injustice:

Without the human element, even betimes in defiance of mechanical judgments of guilt or innocence, "justice" becomes a soulless, heartless, senseless steamroller, crushing the individual between the asphalt of necessity and the steel of the Law.

I do not want trial by foolish consistency; I do not want to be tried by computer. I want a judge to be able to hear a jury say "guilty," and to respond, "that's ridiculous; I'm overruling that verdict and finding him not guilty."

And likewise, I want the jury itself to be able to reject what would be a preposterous result and find a defendant not guilty, even when a computer with no higher moral sense would insist he was guilty beyond a reasonable doubt.

Patterico continues the conversation here, in Is Jury Nullification Ever Appropriate?... and wonder of wonders, it turns out we agree to a T-square.

He begins by allowing as how "[t]here are few absolutes in this world," but cautions that "[t]hat doesn’t invalidate general principles." Fair enough.

But he gets to the point with this pontification (all emphasis added by moi):

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency. [He unconsciously references R.W. Emerson, in his essay on Self-Reliance: "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."]

I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.

Well -- this is my entire point in a nutbag: that there are occasions where jury nullification would be appropriate. But Patterico isn't finished; he finds it important to note the rarity of such instances:

The jury is an important bulwark against the state.

But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.

Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.

Patterico is absolutely correct to note that jury nullification is not simply for situations where the juror disagrees with a law. Let me take his own example: although I do not sip wine (I guzzle cheap tawny port); and even though the only "Westside" I live on is the west side of a small city east of Los Angeles; and despite the fact that I no longer call myself a libertarian (that label having been hijacked by a disreputable gaggle of egomaniacs and narcissistic nancy-boys in leather spray-ons, who prance about denouncing the NSA al-Qaeda intercept program because it tramples the rights of bloodthirsty savages who would as soon grind the libertarians' bones to make their humus as look at them)... in spite of all these things, I believe that possession and use of all drugs except antibiotics should be completely decriminalized: a free people should be allowed to medicate themselves however they want, except when it would directly jeopardize the lives of others who disagree (hence the antibiotic exception).

But Patterico, I would have no difficulty convicting that drug dealer. I distinguish between a law I merely dislike, and a law that is so flagrantly unjust that it's worth dragging the entire legal world to a halt, just in order to stop its implementation.

To me, jury nullification is such a drastic step that it must be reserved for truly apocalyptic situations:

  • I would have voted to acquit any Japanese of escaping Manzanar, if such a case came to a civilian courtroom;
  • I would have voted to acquit any black of failing to move to the back of the bus, no matter how clear-cut the evidence;
  • And if the BCRA/McCain-Feingold law were extended to say that bloggers couldn't write about candidates within sixty days of an election -- an example Patterico himself has used; and if Patterico makes good his threat to refuse to obey it; then I guarantee you that if I end up on the jury that tries him, he will either get acquitted, or at the very least, a hung jury... for I will not vote to convict him, even if he writes "vote for Mitt Romney on November 4th, 2008!" in big, Crayola letters across the face of his blog, for all to see.

I point at the gaps, while Patterico emphasizes the fills; but we each live in the same universe.

Hatched by Dafydd on this day, August 30, 2006, at the time of 1:14 AM | Comments (2) | TrackBack

August 28, 2006

Jury Nullification Or Nullifying the Jury?

Blogomania , Crime and Punishment
Hatched by Dafydd

Patterico has an interesting challenge on his site, which he calls a "Question for Those Who Support Jury Nullification." He notes that jurors are required to raise their hands and swear to the following oath, under penalty of perjury, before they can begin hearing a case (here in California, at least; I'm not sure that the wording is exactly the same in other states or venues):

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court? [Emphasis in Patterico's original]

Patterico is a deputy district attorney in California, and he is, not surprisingly, very much against the concept of "jury nullification," by which jurors -- even though they believe that good evidence was presented that the defendant did indeed commit the actions that are illegal -- nevertheless vote to acquit... on the basis that the law itself is wrong or is wrongly applied.

(That is what ordinary, intelligent, well-read people understand by the term "jury nullification;" and that is the definition I use throughout.)

An example would be a person who passionately believes that medical marijuana use should not be illegal; so even though he believes that the defendant did actually purchase the weed, he votes not guilty -- because he believes the defendant did so to relieve his nausea while undergoing chemotherapy. (We're assuming this is in a state where such use of marijuana is against the law; I don't want to get into the situation in California, where state and federal law often collide.)

Patterico enunciates this ringing challenge:

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?....

Would you take the oath, or not? Would you faithfully apply it, or not?

To answer directly, I would take the oath, and I would have every intention of faithfully applying it; but if a situation arose where, in my best judgment, obeying the instructions of the court would directly subvert the dictates of justice and truth, then I would resolve that conflict in favor of the latter... and I would violate my oath on grounds that, when one party has breached an essential element of a contract -- in this case, the social contract -- the other is not obliged to remain faithful to his own side of the agreement. (If Hezbollah refuses to disarm, as they agreed to do, then Israeli is not obliged to withdraw, though they agree to do so.)

I myself do support jury nullification -- in concept; I certainly don't support every case where somebody invokes it. So I think it fair to say that this post is directed to me, among others... and that I should respond and defend my beliefs. So here goes.

The law is a ass, a idiot

We are talking, recall, about a fascinating discussion sparked by Patterico on his site, which you can find here.

There is a bad tendency among nearly all lawyers I know to mistake the law for the more abstract justice or even truth. Good attorneys like Patterico try hard not to let themselves fall into this trap; still, it permeates legal thinking, and I conclude it's almost impossible to fully overcome. I'm sure it's subtextually taught in law school -- I doubt any law school suggests lawyers should evaluate the law and decide whether it serves valid ends before embracing it.

But clearly non-lawyers understand, and nearly all lawyers would agree, if you put it to them so bluntly, that the law is not an end to itself; rather, its purpose, from the preamble to the U.S. Constitution, is to "establish justice" and "ensure domestic tranquility."

Most of us also realize that Jefferson was not wrong when he wrote, in another of our "organic documents," the Declaration of Independence, that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

(And taking into consideration the purpose and provenance of that document, no serious person would argue that Jefferson only meant legal means of abolishing a form of government!)

The Devil, of course, is in the details. (And wears Armani, not Prada; but that's a different argument.) Jefferson seems to have been a perpetual revolutionary, and of course you cannot construct a society based upon a violent revolution every twenty years; neither, however, can you make a society on the basis of stasis, where you support it no matter what it does or how far it drifts from its philosophical underpinnings. Each man and woman makes this decision every day, when he chooses to obey or ignore specific laws of the land. The speed limits, for example.

There is a legal adage that "hard cases make bad law." But hard cases must still be dealt with; they cannot be wished away. So let's dive into an example or two and ask, in each instance, what you -- and Patterico -- would do.

Situation: the court's instructions are flagrantly against the law.

Suppose you were a juror in a trial of a man accused of robbing a liquor store at gunpoint. You have listened to the evidence, and you believe he was probably the culprit, but you have doubts that you consider reasonable... maybe it was somebody else.

But then, when the judge gives you instructions, he tells you that you must convict if you believe the defendant guilty by a preponderence of the evidence; that if you think it more likely than not that he did it, you must convict.

Now, you know -- and certainly Patterico would know -- that this is completely wrong! You cannot vote to convict if you have a reasonable doubt, merely because you think the defendant is "probably guilty." So what do you do?

You already took the oath, having no idea that this would come up; so "would you faithfully apply it, or not?" Would Patterico?

You have two options: you can faithfully apply your oath, find the man guilty, and hope to heck that his lawyer is able to get the verdict overturned in the appellate courts. But what if the instruction itself resulted from some collusion between the prosecutor, the judge, and the defense lawyer? What if the defendant is obviously ignorant of his rights? What if nobody bothers appealing, for whatever reason, and the verdict stands, sending the poor schnook to prison for eight years -- or longer, if this is a third strike?

Can you, in good conscience, vote against justice, hoping that somebody else will come along and clean up the mess?

I, myself, would vote not guilty; if asked why I voted not guilty, I would refuse to answer... it may be courageous to stand up to such injustice, but it's grandstanding (and senseless immolation) to spit defiance into the face of the judge.

Situation: the unjust law

In a horrible twist of fate, the Democrats seize back both houses of Congress, and in 2008, Hillary becomes president. There is another terrorist attack in September, 2009; and the Democrats, following the precedent set by their Dear Leader in 1942, enact a series of laws restricting all persons of Arab descent or who are Moslems from assembling in public places or failing to register their whereabouts with the federal government. This law is applied even to American citizens.

Challenges are working their way through the courts; but for some reason, several have already been decided in favor of the Democratic position. You're called to jury duty, and during voir dire, you realize the nature of the case will involve enforcing those laws: "would you take the oath, or not?" Would Patterico?

If you do not, you will be replaced by someone who will, of course. This relieves you of direct personal responsibility in this instance... but it certainly doesn't relieve you of what you see (I would hope!) as the moral duty to fight such outrageous injustice.

Scamping jury duty by refusing the oath -- assuming it doesn't become such a mass protest that it moves mountains (as few do) -- merely means injustice will continue, administered by jurors who either don't care about justice or else agree that all "A-rabs" and "Mohammedans" are wicked and should be jailed on general principles: "The only thing necessary for the triumph of evil is for good men to do nothing," as Edmund Burke is supposed by some to have said.

I myself would take the oath, even knowing there was a good chance that I would eventually be forced to break it; I do not believe that moral judgment can be dodged, but must be embraced when demanded.

Let's suppose you took the oath. You find yourself sitting on a jury trying a defendant, Achmed Mohammed, who has no history of any criminal or violent acts. He is accused of nothing more than using a false name, calling himself Allan Michaels and denying that his parents came from Saudi Arabia in 1958... such behavior being a flagrant violation of the Emergency Arab Isolation and Moslem Suppression Act of 2009.

The charge is conclusively proven; his fingerprints clearly show that he served in the US Marine Corps in Iraq under the name SSgt. Achmed Mohammed, where he earned a minor medal and a Purple Heart. The judge instructs you that if you believe beyond a reasonable doubt that Allan Michaels is really Achmed Mohammed, you must convict. And there is that pesky oath you took to render verdict according to "the instructions of the court."

"Would you faithfully apply it, or not?" Would Patterico? I would not; again, I would break my oath, on the moral grounds that the justice system to which I swore it broke its own unspoken but nevertheless welll-understood oath to operate in a manner consistent with justice.

Situation: the just law applied unjustly

You're asked to serve on a case where a felon was found carrying a concealed weapon. Since you're not a gun-rights absolutist (you don't believe felons have a general right to carry concealed firearms), you agree to serve and you take the oath. Nothing in voir dire makes you at all suspicious.

But as the trial progresses, you discover that the felon is a nineteen year old girl who was convicted of credit-card fraud a year earlier... probably because her then-boyfriend talked her into it. After her conviction, which resulted in her serving a year in prison, she broke up with the boyfriend; and from all the evidence, it appears she reformed herself. She had not been arrested or even suspected in any subsequent crimes, and she pled guilty to the original charge and cooperated fully -- including giving a complete statement to the cops against her ex-boyfriend, for whom an arrest warrant has been issued.

But once she got out of the slam, the boyfriend, who was never apprehended, began stalking her. He repeatedly told her he would kill her. (Yes, I know; you're way ahead of me.) She went to the cops, but they told her that they were already doing everything they could to find the boyfriend; he is an elusive blackguard, and they couldn't guarantee they would catch him anytime soon. (We even assume the cops are entirely sympathetic and really are doing everything humanly possible.)

She moves, and he finds her again. She applies for the right to own and carry a firearm, but it's denied because she is a convicted felon. But she obtains a gun illegally and carries anyway. That crime comes to light because... one dark night, when she's coming home from night school, where she studies underwater welding, the boyfriend roars up in a car with a couple of his cronies and tries to kidnap her. She draws on him, shoots him, and kills him; the other thugs drive away, promptly crash the car into the front door of a police station, and are all arrested.

The girl is not charged with murder, homicide, or even ADW, because the cops thoroughly accept her explanation that she acted in self-defense. However, this being Los Angeles, she is nevertheless arrested for being a felon in possession of a gun and carrying a concealed gun without a concealed-carry permit. The case lands in your lap, as a juror.

Ample evidence is presented that she really did try to do everything legal a reasonable person would think to do before resorting to arming herself. She was terrified; she knew he would try to kill her to prevent her testifying against him... and she was right! He did exactly what she thought he would.

You took an oath to decide per the instructions of the court; the evidence is clear that she is a felon, that she obtained the gun illegally, and that she had no CCW permit. But the evidence is also clear that she had no mal intent (other than to violate those two laws); and you know that the penalty for those crimes would be many more years in prison. Maybe the judge would take pity on her; but maybe he wouldn't. How do you know? Maybe, unbeknownst to you, he's nicknamed "Hangin' Judge Harry" by his colleagues.

So... "would you faithfully apply [the oath you took], or not?" Would Patterico?

My answer is the same as in the other two cases: there is no question in my mind -- it's not even close -- that the law was never meant for a situation like this; I would be utterly compelled to violate my oath under moral law.

The slippery slope

The typical argument against jury nullification is that it creates a slippery slope: soon everyone is just picking and choosing which cases to convict and which to acquit on the basis of psychotic ideas of "justice" or even irrelevant biases. Once people get the idea that they can rewrite the law in the jury room, no one will be safe from runaway juries.

And indeed, there have been such "runaway" juries. Some maintain that the O.J. Simpson jury engaged in it by acquitting "the Juice" despite a mountain of evidence. (I don't believe that's true of most of them; I think they didn't believe the charge because of pre-existing prejudices -- so they violated their oaths for a different reason.) Let's suppose that this is true, that at least one juror believed Simpson did kill Ron Goldman and Nicole Brown Simpson, but he voted to acquit because he believed that "the Man" was always sticking it to the brothers, and it was morally right, and would lead to racial equality, for one of the brothers to stick it back to the Man by acquitting Simpson.

Others point to juries in the Jim Crow South that routinely acquitted white defendants who lynched blacks and Jews; it is not even arguable that such juries didn't exist -- the evidence is overwhelming.

Does this then invalidate the concept of jury nullification? No, because abusing a right does not make the right itself an abuse.

How many people have abused freedom of speech and of the press to pass classified secrets to our enemies via the New York Times and Washington Post? How many people have abused the right to keep and bear arms in order to murder their wives? We do not throw out these babies because they are sometimes surrounded by foetid bathwater.

Let me quote from a fellow I'm reading right now, Francis S. Collins, author of the Language of God (and the head of the Human Genome Project). Speaking about the "slippery slope" arguement in a very different context, Collins wrote:

While there is clear danger in unrestrained forms of "liberal" theology that eviscerates the real truths of faith, mature observers are used to living on slipper slopes and deciding where to place a sensible stopping point.
Collins, the Language of God, 2006, Free Press, p. 209.

Similarly, we do not see a wave of such jury nullification for tendentious or idiosyncratic reasons. We do not see tax resisters routinely acquitted, even though we all hate paying taxes. We don't see racists acquitted, even though we all have some sort of irrational prejudice. We do not even see a wave of hung juries in drug-possession cases. The huge majority of people on most juries is content to accept the law as elucidated by the judge in his instructions. It's a rare reaction -- whether done properly, or even done wrong-headedly.

The Framers of the Constitution demanded that final judgment be in the hands of a jury, if the defendant or prosecutor wants it so; this is because, in the end, we have government by the consent of the governed, and civilian juries are the most direct way to test that in individual cases. This is the "golden thread" that connects the American judicial system to the centuries of English common law from which it arose.

We cannot abandon the role of the jury as the last bastion of common-law justice in criminal cases simply because a few pathetic people are incapable of distinguishing between moral necessessity and personal preference or prejudice; we must govern society by our rules, not by theirs.

This also answers Patterico's question about the rogue cop: I want the police to have some discretion in deciding whether to arrest someone who is clearly guilty of a technical violation; and I want prosecutors to have discretion in deciding who to prosecute, and who to let off. I demand they have such authority, despite the fact that some cops let their friends off, and some prosecutors decide what cases to pursue because of personal bias or ambition.

Without the human element, even betimes in defiance of mechanical judgments of guilt or innocence, "justice" becomes a soulless, heartless, senseless steamroller, crushing the individual between the asphalt of necessity and the steel of the Law.

I do not want trial by foolish consistency; I do not want to be tried by computer. I want a judge to be able to hear a jury say "guilty," and to respond, "that's ridiculous; I'm overruling that verdict and finding him not guilty."

And likewise, I want the jury itself to be able to reject what would be a preposterous result and find a defendant not guilty, even when a computer with no higher moral sense would insist he was guilty beyond a reasonable doubt.

Don't you?

Hatched by Dafydd on this day, August 28, 2006, at the time of 4:19 PM | Comments (19) | TrackBack

July 12, 2006

Republican Uses Foul Means to Beat Rap

Crime and Punishment
Hatched by Dafydd

Heh, I'm a little late on this story. I actually wrote a stub... then plum forgot to come back and finish it up! So forewarned, here goes.

"Limbaugh won't face charges over Viagra found in his possession," the headline ominously declares.

Well dang, it's another example of how the rich can just buy their way out of legal troubles. There's that drug addict caught red-handed smuggling in another controlled substance, Viagra (well, it's not really controlled; but you know what I mean). He's detained by customs, and the antique media gleefully whisper that this could be it for the venerable Republican, the poster boy for hypocrisy.

Here he is, always going on about how heroin addicts and crackheads should be arrested... and then he's caught violating his "deal with prosecutors" by being found in possession of prescription drugs without a prescription:

Rush Limbaugh will likely have to wait several days to find out if he violated his deal with prosecutors in a prescription fraud case when authorities found him with Viagra that was apparently prescribed to someone else, a spokesman for the state attorney's office said Tuesday.

Limbaugh, 55, was detained for more than three hours Monday at Palm Beach International Airport after he returned on his private plane from a vacation in the Dominican Republic. Customs officials found Viagra in his bag, but his name wasn't on the prescription, Palm Beach County sheriff's spokesman Paul Miller said.

The Trib intoned:

Federal agents referred the case to the Palm Beach County Sheriff's Office. Prosecutors are looking into whether Limbaugh violated an agreement he struck two months ago.

Prosecutors in late April charged him with deceiving two or more doctors to write simultaneous prescriptions for pain pills. They agreed to drop the charge after 18 months if Limbaugh completed substance-abuse treatment.

Yet after all that, a couple of quick phone calls from Limbaugh's attorney, et voilà, he's sprung! Worse, now he has somehow bought his way even out of being prosecuted. Is there no end to his perfidy?

What technicality did Roy Black use to weasel his client's way out of such a clear and obvious violation of his parole -- er -- probation -- well, whatever you call the deal he struck with the DA to avoid prosecution in the doctor-shopping case?

I'm sure it was exactly the sort of legal loophole that he so often decries when poor and downtrodden bank robbers and terrorists slide through them. But boy, when the shoe is on the other hand, look who jumps through the hoop!

Aha, I think we've found it. Here is the legal loophole, via the Sun Sentinel link above, by which Limbaugh avoided being charged with possession of a prescription drug without having a prescription for it:

Saying Rush Limbaugh's Viagra prescription was legally prescribed, the Palm Beach County State Attorney's Office announced on Wednesday that it would not file charges against the conservative radio talk show host for possessing medication in someone else's name.

But Miami-Dade prosecutors will review the file and decide whether charges are warranted against the two Miami doctors involved, according to Assistant State Attorney Paul Zacks. To protect Limbaugh's privacy, his medical doctor prescribed the erectile dysfunction drug to Limbaugh's psychologist, according to Limbaugh's affidavit.

Well... dang. All right, so maybe he had a legal prescription. Can't we prosecute him anyway? After all, he was found in possession of drugs, for Pete's sake. He's always saying drugs are so bad; so put him in jail, already. ITMFA! (In this instance, the "I" stands for imprison, not impeach.)

At the very least, we must be able to prosecute his co-conspirators, the doctors who got him the Viagra in another person's name, in a flagrant attempt to flout the First Amendment guarantee that the elite news media shall always be apprised, by law, of any embarassing fact about a conservative. Just think how much mocking time they missed, not being able to make Limbaugh-Viagra jokes for weeks and weeks, before finally finding out via the U.S. Customs and Immigration Services... who kindly dropped a dime to the media.

Alas, this AP story has more on that point:

The state attorney's office said Dr. Steve Strumwasser's name was on the Viagra bottle, not Limbaugh's. Strumwasser, who is Limbaugh's psychiatrist, told authorities he "agreed to have his name on the label in an effort to avoid potentially embarrassing publicity for the suspect," according to a filing by the prosecutor's office.

"Thus, the medication contained in the subject pill bottle was legitimately prescribed to the suspect by his physician," the filing said.

It is generally not illegal under Florida law for a physician to prescribe medication in a third party's name if all parties are aware and the doctor documents it correctly, said Mike Edmondson, a spokesman for the state attorney in Palm Beach County.

So it appears the majestic equality of the law has been stymied: Rush Limbaugh, millionaire rightwinger and supporter of Bushitler, will once again weasel through the cracks of our nation's porous legal system, this time using that most diabolical and contemptible legal loophole of all: actual innocence.

But don't think we'll ever let him forget it. After all, as they say in law school (I am reliably informed), there are some crimes so heinous that not even innocence is a defense.

Hatched by Dafydd on this day, July 12, 2006, at the time of 1:42 PM | Comments (2) | TrackBack

May 24, 2006

Criminal, Schriminal - We're Talking PRIVILEGES Here!

Congressional Calamities , Crime and Punishment
Hatched by Dafydd

United States Constitution ~ Article I ~ § 6 ~ ¶ 1:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

I think it was Paul Mirengoff over on Power Line who wondered how long it would be before the blatant bribery case against Rep. William Jefferson (D-LA), was sent to the back of the bus while yet another accusation of George W. Bush's "unilateral approach to the use of [executive] authority" hopped into the driver's seat instead.

In other words, who cares whether Jefferson took hundreds of thousands of dollars in bribes... George Bush violated Congressional protocol. B'gad, but we must keep a sense of priorities here; what could possibly be more important to the republic than the privileges of members of Congress?

(It is always amusing to note, at this juncture, the etymology of the word "privilege." It comes roundabout from the Latin: privatus, private + lex legis, law or statute... a private law for a particular group of people. In this case, private law for those who pass general laws on the rest of us.)

In Culture of Oops..., we told you about Rep. Jefferson's embarassing adventure, caught on videotape accepting $100,000 from a business associate in a hotel lobby who was in fact working with the FBI in a sting operation. Searching Jefferson's house later, the FBI found $90,000 hidden in food containers in his freezer; the money was the same money that had been handed him in the hotel. We then noted:

The feds recovered $90,000 when they searched Jefferson's house; they subsequently searched his office, probably looking for the rest of the cash as well as incriminating documents -- a horrific violation of Jefferson's civil liberties, sayeth his lawyer, calling the office search "outrageous." (Yes, they already had Jefferson dead to rights; why did they need to humiliate the criminal by searching his office as well?)

Democrats and Republicans alike are up in arms. Outrageous. Astonishing. Oh, not that a congressman would be stuffing wads of cash into his briefcase; that has happened so often lately, it has become positively humdrum.

No no, Speaker of the House Denny Hastert (R-IL), House Majority Leader John Boehner (R-OH), House Minority Whip Steny Hoyer (D-MD), Deputy Majority Whip Eric Canter (R-VA), and more congressmen (and senators!) than you can shake a bag o'cash at are in full cry against "the Bush administration's assertions of executive power" in searching congressional offices for criminal cash.

Even with a warrant. Oh yes, lest we forget: Attorney General Alberto Gonzales duly obtained a warrant from a federal judge, based upon probable cause, to conduct this search. Nevertheless...

After years of quietly acceding to the Bush administration's assertions of executive power, the Republican-led Congress hit a limit this weekend.

Resentment boiled among senior Republicans for a second day on Tuesday after a team of warrant-bearing agents from the Federal Bureau of Investigation turned up at a closed House office building on Saturday evening, demanded entry to the office of a lawmaker and spent the night going through his files.

The episode prompted cries of constitutional foul from Republicans — even though the lawmaker in question, Representative William J. Jefferson of Louisiana, is a Democrat whose involvement in a bribery case has made him an obvious partisan political target.

Now, unlike 98% of the blogosphere, neither of us here at Big Lizards is a lawyer... though Dafydd sometimes plays Philadelphia lawyer in blogposts. And we understand that caselaw can determine the actual meaning of statutes and even constitutional doctrine. But we've always thought that the essence of conservative jurisprudence was that, when the actual words used in a piece o'legislation or in the Constitution had a plain meaning, that the plain meaning should prevail.

Or maybe we misunderstood.

But it would seem that the plain meaning of "they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same" is that members of Congress cannot be arrested during a session, or on their way to the session or from it.

It seems a bit of a stretch to say that "privileged from arrest" means "...and you also can't search their offices." (The other part has the plain meaning that you cannot interrogate them about some speech they made.)

Logically, if we were to take their assertions of blanket immunity from search and seizure at face value, then what is the House, from Republican Speaker Hastert down to the lowliest Democratic mouse, saying?

They are saying that if Marion Barry were elected to Congress, he could sit there in his congressional office, in full view of God and Man, openly smoking crack and shooting up heroin... and the FBI, the DEA, and the Capitol Police could only stand helplessly watching. So long as he kept his stash in the office, he needn't even hide it -- because Congress has a private law that says "what happens under the Dome stays under the Dome."

The Times hints at a somewhat narrower concern: a number of House members have recently fallen afoul of corruption investigations; thus, Congress -- which Mark Twain declared America's only "native criminal class" -- may suddenly perceive a class interest in preventing the executive from searching the hollowed halls of the Capitol building or the Executive Office Building. At least, not without a warning view halloo, to give members time to "tidy up" just a skosh.

Now, I'm just a private schlub. But I think the Times, which clearly sides with the prickly House members (rather, I suspect the Times sides with whomever opposes Bush, for whatever reason), nevertheless touched it with a needle (rem acu tetigisti) when they wrote:

[General Gonzales] and other officials suggested that the search had been made necessary by a lack of response to an earlier subpoena. "We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists," Mr. Gonzales said.

Members of Congress are mindful that much of the public is not familiar with the speech and debate clause, which, among other things, requires that lawmakers be "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." Many people may wonder why a Congressional office cannot be searched in a criminal case and what members of Congress are complaining about.

To many lawmakers, that is secondary to the larger separation-of-powers principle they see at risk.

Yup, I think that about covers it. The Lords of the District are offended that they may actually be required to suffer under the very laws they enacted for the peóns. How crass and vulgar! The "larger separation of powers principle" evidently also takes precedence over the people's business -- bills on immigration, confirmation of judges and the Director of the CIA, the war, taxes, energy exploration, and every other piece o'legislation that was let hang fire while Congress roared about laws that were a bit too universal.

The American people don't understand that. But even if you explained it to them, which do you think would concern them more: that Congressmen got their knickers in a twist over being searched (with a search warrant)? Or that Congressmen were taking massive bribes to conspire against the general welfare?

Our old pal John Boehner sums up two centures worth of privilege aroused:

"I clearly have serious concerns about what happened," Mr. Boehner said, "and whether the people at the Justice Department have looked at the Constitution."

Ah. Well, Mr. Boehner... we have serious concerns whether the Republicans in Congress have looked in a mirror recently.

Hatched by Dafydd on this day, May 24, 2006, at the time of 3:52 AM | Comments (19) | TrackBack

May 16, 2006

Excellent Amendment: Criminals Can't Become Citizens

Crime and Punishment , Immigration Immolations
Hatched by Dafydd

The Senate is currently working through a series of amendments. Some are bad; some are really ugly, like Byron Dorgan's (D-N.D.) attempt to prevent "foreigners and recent illegal immigrants" (!) from signing up to be guest workers; one presumes Dorgan wants the guest-worker program limited to Americans only.

But some of the amendments are really, really good. For example, this one:

Compromise averted a third showdown, when the bill's critics and supporters agreed to deny illegal immigrants any chance at citizenship if they had been convicted of three misdemeanors or a felony.

The last time this came up, I think I remember it was the Senate that killed it; so it's a great leap forward (er, maybe I should use a different expression) that the Senate is now aboard in saying that we only want to extend citizenship to assimilated immigrants with American virtues, not thugs with American vices.

I'm sure the House will have no objection to this provision.

Hatched by Dafydd on this day, May 16, 2006, at the time of 5:06 PM | Comments (6) | TrackBack

April 6, 2006

Patterico's Brilliant Idea

Crime and Punishment , Immigration Immolations
Hatched by Dafydd

Over on Patterico's Pontifications, Patterico has a great idea for a codicil to be added to immigration reform pending in both the House and Senate:

We will never deport the millions of illegals currently residing in the country. But, as I have previously argued, we can use our scarce enforcement resources to target violent criminals. [All emphasis added by BL]

While many illegals are hardworking folk, some are robbers, kidnappers, rapists, violent gang members, and murderers. Police officers often know who these individuals are — yet they have their hands tied by local policy.

Targeting violent illegals makes good sense.

Patterico hasn't been posting much lately; I suspect he's in trial on some major prosecution. It's good to see him back today, and with an excellent suggestion for an amendment to the bill in Congress.

Hatched by Dafydd on this day, April 6, 2006, at the time of 4:36 PM | Comments (6) | TrackBack

March 31, 2006

Are Teenagers "Children?"

Crime and Punishment
Hatched by Dafydd

This is a very strange case; most of the time, teenagers who want to video sex scenes are boys, not girls. But three Rhode Island teenaged girls got together; one sixteen year old taped her two friends (19 and 16) having lesbian sex.

All three have been arrested... but if this news report is accurate, the girls are being charged with producing and conspiracy to produce "child pornography."

If that's the case -- that's really wrong. If the law in RI makes no distinction between teens and pre-pubescent children in pornography, then the law must be changed. If the law does make such a distinction, then damn it, the news agencies should report it more responsibly.

I am a great believer in discrimination. I love discrimination... which simply means the ability and willingness to discriminate between things that are, in fact, very different. (There is also a very bad form of discrimination, where differences are manufactured where none exist -- as with racial discrimination.) Anybody who cannot discriminate between sex with a 16 year old and sex with a 6 year old is demented.

Teenagers have raging hormones. They will have sex. Not every person, of course; but we will never be able to prevent all or even nearly all teens from having sexual feelings, sexual contact, or even sexual intercourse. It's a natural phenomenon that does not respect modern-day definitions of majority that stretch out childhood by adding a long period called "adolescence." (Earlier societies tended to consider people adults when they reached sexual maturity -- pubescence.)

It's quite reasonable to have laws against adult-teen and teen-teen sexual activity; society evolves, and we're no longer like, say, the ancient nomadic herding Jews who literally considered a 13 year old boy a "man," able to marry and make contracts and such. But for heaven's sake, just because we choose to define a 16 year old as a minor doesn't mean we have to imagine that she is actually a "child."

I know many women whose first experience was as an older teen with a slightly older teenaged boy who was legally an adult; yet they don't think of that as anything remotely like "child molestation." (True child pornography always includes some aspect of child sexual abuse; it's abuse for the production of graphic imagery.)

I can certainly see making what those girls did criminal; that's up to the community. But there must be some sense of rationality at some point: even if you think it's bad (and most would, including myself) for teenaged minors to appear in sexual explicit videos, it's not as bad as when actual, prepubescent children do the same. The law -- and our rhetoric -- must reflect that, or else we stand in danger of losing all distinctions whatsoever.

And without the ability to rationally find distinction, how can we teach moral discrimination between right and wrong to our kids?

Hatched by Dafydd on this day, March 31, 2006, at the time of 6:44 PM | Comments (8) | TrackBack

March 26, 2006

Christian Conversion Case Dismissed - Rahman to Be Released

Crime and Punishment , God and Man In the Blogosphere
Hatched by Dafydd

The death-penalty case against Abdul Rahman -- for daring to reject Islam -- has been dismissed because of "problems" in the prosecution's case. While the district attorney "investigates," Rahman is to be freed.

An Afghan court on Sunday dismissed a case against a man who converted from Islam to Christianity because of a lack of evidence and he will be released soon, officials said....

An official closely involved with the case told The Associated Press that it had been returned to the prosecutors for more investigation, but that in the meantime, Rahman would be released.

We sure hope somebody has the good sense to whisk Rahman out of the country to somewhere safer... like Iraq. (And while we're on the subject, how does "a lack of evidence" cause a man to convert from Islam to Christianity? Well, let it go.)

On Friday, Big Lizards noted that what was needed here was a little Talmudic reasoning: everyone in the ummah knows that Islam is self evident, and only a madman could reject it; since it is impermissible to put a madman to death for his madness, therefore no apostate can be put to death.

That is how a Jewish Talmudic scholar would reason his way out of a policy that puts his religion at odds with the real world.

So what reasoning did the court use to dismiss the case?

"The court dismissed today the case against Abdul Rahman for a lack of information and a lot of legal gaps in the case," the official said Sunday, speaking on condition of anonymity because he was not authorized to speak publicly on the matter....

Abdul Wakil Omeri, a spokesman for the Supreme Court, confirmed that the case had been dismissed because of "problems with the prosecutors' evidence."

He said several family members of Rahman have testified that he has mental problems.

Heck, we just knew Secretary of State Condoleezza Rice would find a way to pull a rabbi out of a hat!

Hatched by Dafydd on this day, March 26, 2006, at the time of 6:30 AM | Comments (0) | TrackBack

March 24, 2006

Abdul Rahman: the Killer Cost of Conversion

Crime and Punishment , God and Man In the Blogosphere
Hatched by Dafydd

The question of what the United States should do -- and even what it actually is doing, since none of us actually knows -- about the potential death sentence against Abdul Rahman in Afghanistan, for the "crime" of converting to Christianity sixteen years ago, is not as easy as we might wish it were.

Let's start with a basic distinction that is typically lost, even when the president or members of his cabinet speak: we never did attempt to "nation build" in Afghanistan the way we did in Iraq. Rather, we deposed the Taliban, encouraged Hamid Karzai to run for president, and that was about it.

It was hardly a democratic election, in the sense of a campaign with strong, competitive candidates from different parties. Karzai became the Chairman of the Transitional Administration about a month after we booted out the Taliban; the Loya Jirga appointed him Interim President in June, 2002; and in the 2004 elections, Karzai crushed his 22 "opponents," winning 21 of the 34 provinces, despite worries that he had no support outside the capital, Kabul. Karzai is to Afghanistan as George Washington was to the United States of America, or as Ho Chi Minh was to Vietnam (how's that for a comparison?)

There is a reason we did not expend anywhere near the effort to "democratize" Afghanistan as we have in Iraq: Afghanistan is such a primative, tribal country that it's highly unlikely democrazy will ever be anything but a tribal electoral college. Karzai is sort of an honorary member of nearly all the tribes in Afghanistan and the only person perceived as being simultaneously a quintessential Afghan -- yet so outside the normal tribal politics that he won't throw his weight behind any one tribe over the others. He's "safe," probably the only man in Afghanistan who makes the tribal chiefs feel secure.

Afghanistan is not a democracy in the sense that Iraq is now, nor the sense of an Indonesia, a Philippines, or a Turkey. Likely it never will be... or at least not in the forseeable future. The Pashtun -- the tribe from whose ranks the Taliban mostly come -- are still the most powerful tribe in Afghanistan and Pakistan, and the Pashtun control many areas (the tribe, not the Taliban, which was a popular group within the tribe).

If we were to withdraw from Afghanistan, Karzai would simply turn to other countries: Russia almost certainly, but perhaps also India (as Pakistan's mortal enemy; Kabul and Islamabad don't work or play well together). That would hurt us far more than Karzai or Afghanistan... and Karzi knows it. Thus, he knows that any such threat is just hot air on our part, and he will not be impressed.

Therefore, there simply is nothing we can do to force Afghanistan not to execute Abdul Rahman... other than trying to take over the entire country and hold it -- just as the Russians tried -- or else a "rescue" (kidnapping), which would amount to the same thing in the end. We won in 2001 because we explicitly did not try to do that; instead, we concentrated on booting out the Taliban and handing the country over to Hamid Karzai. We consulted, aided, funded, and rebuilt; we kibbitzed, and out of respect and gratitude, Afghans more or less listened to us.

And it was a miraculous success: the Taliban are gone; al-Qaeda fled to Pakistan, Sudan, Iraq, Iran, and other places, fragmenting and falling into backbiting and infighting; and Afghanistan has not returned to its terrorist ways... so far. But we just don't have the same hold over Afghanistan that we do over Iraq, where most folks are desperate for us to stay, if only to protect them from each other.

We cannot force them not to execute Rahman; but we can probably persuade them... provided we do so quietly, backchannel, sotto voce, and in a way that nobody loses his face. And that, I hope, is what Bush is doing right now. As the Washington Post notes, the groundwork is already being laid for a face-saving way out:

Diplomats from several countries said yesterday that Rahman, 41, now seems unlikely to be tried or executed. Prosecutors in Kabul said he might be mentally unfit to stand trial, a sign that the government may be seeking to avoid confronting its Western allies without giving ground on Islamic law, under which conversion to another religion is punishable by death.

Strident demands that Bush "confront" the Afghans, threaten them, or even send Special Ops in to extract Rahman are very counterproductive in the long run. It's a sad fact, but we may have to turn our backs on the individual (whether Christian or Moslem shouldn't make a difference) in order to maintain an al-Qaeda-free zone in Afghanistan. Just as "we go to war with the Army we have, " as Donald Rumsfeld explained, we also must pick carefully the wars we go to at all.

There is only one valid reason for the United States to go to war: to protect the security of the United States or our allies (by extension, since alliances keep us safer than isolation). Every call to military action -- and a threat is a call to action in potentia, with identical moral value -- must be judged against this standard: will such action or such a threat make us safer or less safe?

If Rahman is executed, Bush should call a press conference to report the tragedy (so it won't look like he's trying to hide anything), but then make the point that we are not trying to turn Afghanistan into a democracy the way we are in Iraq. He can express disappointment and even anger in the decision... but he should still note that, brutal as it may be, neither the Taliban nor al-Qaeda control Afghanistan anymore, and that is what we set out to do. We have not invested in democracy in Afghanistan; our national honor is not at stake here.

Iraq is another question: Bush's strategy is to plant democracy in the heart of the Middle East... not Southern Asia.

There may simply be nothing we can do -- officially. Let's leave the president to quiet, whispered conversation with Hamid Karzai and hope that "something" can be worked out. I think that is the best course for America in the long run.

Demanding Bush make public threats would be "unhelpful," both for America and even Rahman himself.

Hatched by Dafydd on this day, March 24, 2006, at the time of 4:56 AM | Comments (9) | TrackBack

March 5, 2006

Should Justice Ever Be Invisible?

Crime and Punishment , Media Madness
Hatched by Dafydd

Associated Press (that exemplar of unbiased reportage) has an interesting article, carried by Fox News, raising (and utterly failing to analyze) an intriguing issue: under what circumstances should court proceedings be secret? For how long? How does one balance the defendant's rights to privacy, his Sixth Amendment right to a "speedy and public trial," and the First Amendment right of news agencies to investigate plea bargains?

First, let's set the stage:

Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants [out of 254,000: 1.97% -- the Mgt.] who completed their journey through the federal courts over the last three years. Instances of such secrecy more than doubled from 2003 to 2005.

An Associated Press investigation found, and court observers agree, that most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea bargains with the government.

Most of these defendants are involved in drug gangs, though lately a very small number come from terrorism cases. Some of these cooperating witnesses are among the most unsavory characters in America's courts — multiple murderers and drug dealers — but the public cannot learn whether their testimony against confederates won them drastically reduced prison sentences or even freedom.

We're not talking here about cases where national-security dictates that certain testimony remain secret (though surely some such cases are caught up in AP's statistical dragnet). Rather, we're talking about cases where a defendant cops a plea and testifies against his co-defendants... but then he wants all the details of the bargain and his testimony to remain secret, either because he is afraid of retaliation or because he was granted immunity, and he wants to live among the honest population without his neighbors knowing what crimes he confessed committing.

We can break this down further. Clearly, there are cases where secrecy is perfectly acceptable for some period of time. Even AP admits that much:

The court office also found a sharp increase in defendants whose case records were partly sealed for a limited time. Among newly charged defendants, the numbers in this category grew from 9,999 or 10.9 percent of all defendants charged in 2003 to 11,508 or 12.6 percent of those charged in 2005.

But the AP investigation found, and court observers agree, that the overwhelming number of these cases sealed for a limited time involve a use of secrecy that draws no criticism: the sealing of an indictment only until the defendant is arrested.

However, the thrust of AP's article is that secrecy is being abused by the notoriously secretive Bush administration, though they never venture a reason why -- beyond the cackling-evil caricature that infuses so much of the Left's "critique" of George Bush and Republicans.

"This follows the pattern of this administration," said John Wesley Hall, an Arkansas defense attorney and second vice president of the National Association of Criminal Defense Lawyers. "I am astonished and shocked that this many criminal proceedings in federal court escape public scrutiny or become buried."

This part of the AP analysis is almost infantile. What "pattern" are they talking about? They want to keep classfied NSA intercepts secret! They want to keep secret CIA terrorist detention centers secret! They want to keep highly confidential private advice they get from their own lawyers secret! It's a secretive administration!

But divorcing the philosophical question from the raging paranoia and Bush Derangement Syndrome of many liberals, there is still a dilemma here: if there are cases where federal DAs request cases be sealed simply because the public would be absolutely outraged if they discovered how much the DA promised and how little cooperation he got, then that certainly is a serious problem that has to be fixed.

For example, to use the example AP cites -- an example that must be considered hypothetical, since the "facts" all come from the defense attorney of a defendant acquitted despite testimony by a cooperating witness -- consider a case where a person confesses to committing "seven murders" and then testifies against defendants who are charged with committing fewer.

That bargain itself could be defensible: for example, when Mafia underboss Salvatore "Sammy the Bull" Gravano was given immunity for the nineteen murders he admitted committing in exchange for his testimony against Gambino family boss John Gotti -- being tried for a single murder, that of his former boss, Paul Castellano. Regardless of the total number of killings, Gotti was far more dangerous a man than Gravano, who was a jumped up local capo, a glorified button-man for Gotti.

But if the details are covered by a shroud of official secrecy (as they were not in the Gravano/Gotti case), "we the people" have no way to judge whether the DA is doing his job; or whether, through laziness or actual complicity, he is letting the central figures off and dropping the hammer on the subordinates instead.

However, AP suggests no rule to follow, no method to determine when secrecy is reasonable. They content themselves with citing statistics that are supposed to be frightening -- "5,000 defendants," "secrecy more than doubled from 2003 to 2005" -- but which are actually less frightening when they get around to presenting the actual numbers:

Of nearly 85,000 defendants whose cases were closed in 2003, the records of 952 or 1.1 percent remain mostly sealed. Of more than 82,000 defendants with cases closed in 2004, records for 1,774 or 2.2 percent remain mostly secret. And of more than 87,000 defendants closed out in 2005, court records for 2,390 or 2.7 percent remain mostly closed to the public.

Nor does AP tell us how long they will remain sealed. Is there a time limit, or will they remain sealed in perpetuity?

Admittedly, it's tough to find out why secret cases are secret -- because it's a secret! But AP makes no attempt even to find a law enforcement expert to talk about the reasons for secrecy; literally every single person they quote is opposed to secrecy, using terms like "astonished and shocked," "a con on the community," "a really, really ugly system," "horrifying," "violates the defendants' rights not to mention the public's right to know." If we knew all the reasons why a court might seal a case, it might be clear that some of them would be perfectly acceptable, yet still require cases to remain sealed even after the sentencing. Without this basic information, we have no way even to imagine.

AP briefly discusses only one reason: fear of retaliation. Then they quote a defense attorney expressing bafflement that secrecy would continue after convictions:

Prosecutors argue that plea agreements must be sealed to protect witnesses and their families from violent retaliation. But [defense lawyer Lexi] Christ said that makes no sense after the trial when the defendants know who testified.

Yet I can think of another just off the top of my head: perhaps the "squealer" gave grand-jury evidence not only against these particular defendants but also against many other people not yet indicted, and maybe some of that played a role in the trial, or could have been deduced from some of the trial testimony. A smart reporter looking at the transcript might write a story that made it clear that six other people were likely secretly indicted and about to be arrested -- which might lead to those people fleeing the country and sending hitmen to kill the "cooperating witness" who was to testify against them at their trials, as well as the trial just concluded.

Such a scenario would significantly increase the risk to the witness and to the DA's upcoming case if the previous case were unsealed before the next round of trials. But there are also bad reasons for secrecy: suppose some DA gave Gotti immunity to testify against Gravano, for example; or suppose a serial child molesting priest like former Father John J. Geoghan were given immunity in exchange for testimony against Cardinal Law, for the lesser crime of covering up Geoghan's sexual assaults. We would rightly be outraged, and that DA should have to defend his bizarre decision.

So there is a real need for some sort of review by somebody beyond the level of the DA (who may want to cover up a dreadful error in judgment about offering immunity), the defense attorney (for whom a plea bargain may be the best deal for his client, even if it includes perpetual secrecy), and the judge (who may care only about removing some of the cases from his overfilled calendar and may approve a plea that is not in the best interests of the community). There should be some review of such cases by somebody not directly involved in the deal and the decision to keep it secret.

What I don't know, not being a lawyer, is in what branch this reviewer should work: executive or judiciary. Should it be the attorney general or an appellate court? Or both?

And isn't there such a procedure now? Is there a body that can lift such secrecy? I would think there is: the circuit court for that district, or a judge adjudicating a Freedom of Information Act request about the case. Alas, AP did not tell us whether there is some reason these normal modes of review don't work in such cases. Maybe documents related to sealed cases are specifically exempted from the FOIA; but does that mean no judge can release them, or just that they can remain secret if the government can show a compelling reason why? At this point, even after reading the article, I have far more questions than answers.

I'd love if some attorney who is actually familiar with the law regarding sealed cases were to opine on the subject. But AP really earns its moniker "lamestream media" this time, since they make no attempt to interview anyone who can shed light on any of these unknowns.

Hatched by Dafydd on this day, March 5, 2006, at the time of 4:59 PM | Comments (4) | TrackBack

February 21, 2006

The Old Fogel Has Gotten His Wish

Crime and Punishment
Hatched by Dafydd

The state of California has given up for now, admitting that under the bizarre new rules decreed by the judicial fiat of Judge Jeremy Fogel, they cannot execute Michael Morales, or indeed any other prisoner they have on death row.

We previously blogged (here, here, here, and here) on the long, strange trip of Morales "there and back again," from his cell in San Quentin right back to the same, old cell he has occupied for nearly twenty-three years, since he was convicted in April 1983 of the brutal beating, rape, and murder of high-school senior Teri Winchell. In the last installment, the court-appointed anesthesiologists point-blank refused to participate in the execution.

The only other option Fogel allowed was to execute Morales by an untried, unapproved overdose of barbiturates. The state planned to do just that before the execution order expired Tuesday at midnight... however, Judge Fogel (a Clinton appointee) then added a new twist: even that lethal overdose must be administered by a doctor, nurse, or medical technician, lest it cause Morales pain:

Prison officials had planned to press forward with the execution Tuesday night using the second option. The judge approved that decision, but said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians.

To everyone's great and unexpected shock (including Judge Fogel, I'm sure) no such medical personnel were willing to inject the drug. This might have something to do with the fact that the AMA, the American Society of Anesthesiologists, the California Medical Association, and the various professional national and state organizations of nurses and medical technicians all oppose capital punishment -- and have all declared participation by their members in executions to be "unethical," which could lead to the member being subject to disciplinary actions including the loss of his medical license.

So in the end, Jodge Fogel got his way: the execution has been postponed for months, or however long he decides to take before holding hearings -- and all without him having to issue a ruling that could be appealed, and despite the fact that the 9th Circuit Court of Appeals and even the U.S. Supreme Court both refused to stay the execution. Fogel has overruled them all! Executions in California will now cease until one Clinton appointee is satisfied... if he ever is.

And to hell with the voters. Isn't democracy wonderful? Sure wish we had some.

Hatched by Dafydd on this day, February 21, 2006, at the time of 9:48 PM | Comments (3) | TrackBack

Doctors Overturn Death Penalty

Crime and Punishment
Hatched by Dafydd

The execution of Michael Morales was postponed late Monday night when the two anesthesiologists -- forced into the execution process by the ruling of federal Judge Jeremy Fogel -- abruptly refused to take part in the procedure, citing ethical concerns.

The doctors' withdrawal came at the end of hasty legal maneuvering in U.S. District Court, the Ninth Circuit Court of Appeals and the U.S. Supreme Court. But it was the language in an opinion rendered Monday by the appellate court that had the court-ordered anesthesiologists in mutiny.

The doctors' concerns hinged on the ethics of returning an inmate to consciousness in the event of a botched lethal injection.

Doctors said the ruling raised serious questions about the possibility of having to intervene in the execution "if any evidence of either pain or a return to consciousness arose."

In a statement to the warden, the doctors said, "Any such intervention would be medically unethical. As a result, we have withdrawn from participation in this current process. ... What is being asked of us is ethically unacceptable."

At about 2:00 am Tuesday morning, Morales was returned to his cell on Death Row in the Q. As Big Lizards predicted, the execution is postponed; but prison officials still hope to carry it out before 12:01 Wednesday morning, when the execution order expires.

The death warrant for Morales expires at 12:01 a.m. Wednesday. If the execution is not carried out before then, a Superior Court judge would have no more than 60 days to set another execution date.

Judge Fogel, a Clinton appointee, has left Warden Steven Ornoski few choices to carry out the execution within that time limit: now that the anesthesiologists have pulled the plug on the state-prescribed trio of drugs to kill Morales, Ornoski's only remaining option is to try to execute Morales with a lethal dose of the barbiturate sodium pentothal -- what used to be called "truth serum."

This method of execution has never been used before in the United States, and we really don't know how well it will work... and I forsee grave difficulties if the defense team runs to a new federal court and demands a stay of execution until the effects of 5 grams of sodium pentothal can be "studied."

In two previous posts, If I Should Ouch Before I Die and Michael Morales Dead Pool, we warned that this obsession with whether people being executed might "feel pain" before dying would come back to haunt us, wailing like a hanging-hair ghost in a Kabuki play.

As the anesthesiologists interpreted the ruling from the Ninth Circus, if they detected even the faintest evidence that Morales might be feeling pain, they would be legally obliged to stop the execution and try to bring him back to consciousness.

This is madness: we shouldn't be deliberately tormenting people; but on the other hand, you just have to accept the possibility that somebody might conceivably be hurt during an execution, for God's sake. No pussyfooting allowed when administering the death penalty.

It shouldnt' make that much of a difference; it will all be over soon, and the condemned will be beyond feeling any pain (at least in this world). This over-solicitousness of the brutal rapist murderer's frets and feelings is not only unjust to his victim, seventeen year old high-school senior Teri Winchell... it's unseemly for our judicial system, which is based, not on comfort and ease, but on justice.

Morales committed a particularly horrific and callous attack: he murdered Winchell, not because she did anything wrong -- not even because Morales himself had anything against her -- but because the man she was dating was, unbeknownst to her, engaged in a homosexual affair with Morales' cousin, Rick Ortega... and Ortega was jealous.

Ortega picked Winchell up in his car; Morales was hiding in the back seat. As they drove, Morales lunged up and looped a belt around Winchell's throat, trying to strangle her. But the belt broke... so Morales began repeatedly beating her in the head with a hammer he had with him.

When he had battered her into unconsciousness at least (and possibly already death), then Ortega pulled over so Morales could rape Winchell's comatose or lifeless body. Following the rape, he stabbed her over and over until there was no doubt that she was dead.

This is the man the courts are so terrified might feel pain while he's being put to death.

This circus is simply appalling. It is time to stop shifting heaven and Earth to keep this bestial man alive... fiat justicia ruat coelum. If Morales' legal team -- which tried to get his sentence reduced by filing falsified juror affidavits -- doesn't want him executed via lethal injection, let's take them at their word.

Let us set up a gallows and have done with him.

Hatched by Dafydd on this day, February 21, 2006, at the time of 6:29 AM | Comments (6) | TrackBack

February 19, 2006

Michael Morales Dead Pool

Crime and Punishment , Predictions
Hatched by Dafydd

Well not really; I just wanted to make people jump up and say "what the heck?"

But I am curious: gentle readers, Mr. Morales is scheduled to be executed on Tuesday the 21st, I believe, for the brutal rape and beating-to-death of Teri Winchell, who was only a high-school girl. A federal judge appears to be leaning towards issuing a stay of execution, but he hasn't finally decided yet.

What do you think the odds are that Morales will actually be executed on the 21st, as opposed to receiving a stay?

No "dead pool;" just let me know your predictions, and we'll see how it goes. My own prediction is that he will receive a stay, but it will be vacated by the circus court, and he'll be executed later in the week.

(This is a low-confidence prediction, because it all depends upon the decision of one man; my prediction that Hillary will not be the Democratic nominee is a high-confidence prediction, because I base it on the whole arc of the Democratic Party's evolution the past few years.)

Hatched by Dafydd on this day, February 19, 2006, at the time of 6:18 AM | Comments (8) | TrackBack

February 15, 2006

If I Should Ouch Before I Die

Crime and Punishment
Hatched by Dafydd

According to the Sacramento Bee, a California federal judge has jumped on the bandwagon of banning lethal injection as a method of executing Michael Morales -- for the rape, brutal beating, and cold-blooded murder of seventeen year old Teri Winchell -- because lethal injection might be painful (hat tip to Bee-blogger Daniel Weintraub).

The judge, Jeremy Fogel (appointed by Bill Clinton in 1997, Harvard Law 1974, Northern California practice and judgeship), hasn't yet finally ruled on the question or issued a stay -- which, unless the Supreme Court overturns the stay, would probably delay the execution months or even years -- but he did make it clear that he is likely to do so:

California must either scrap plans to execute Michael Angelo Morales next week or change the way it will put the condemned inmate to death, a federal judge ruled Tuesday.

U.S. District Judge Jeremy Fogel of San Jose, responding to a defense challenge that the state's method of carrying out lethal injection is cruel and unusual punishment, gave state authorities the option of defending their current procedure in a two-day court hearing.

The judge said official state logs "in at least six of 13 executions by lethal injection" raise "at least some doubt" whether inmates were rendered unconscious before being injected with chemicals that would cause "excruciating pain."

Note, this is the very same case where Morales' defense team (including Ken Starr) previously filed fraudulent affidavits from several jurors, claiming that they had changed their minds and now wanted Morales not to be executed. When the DA's office discovered that the affidavits were forged, the defense team had to withdraw them.

The evidence that induced such "doubt" that the condemned were unconscious is that they were still breathing before they were executed. Is Judge Fogel really suggesting that unconscious people don't breathe?

Here is the procedure for lethal injection:

If he stays Morales' execution, Fogel plans to conduct a full assessment of evidence in favor of and against the process that depends on the administration of 5 grams of sodium thiopental to induce unconsciousness, followed by 50 or 100 milligrams of the paralyzing agent pancuronium bromide and, finally, a similar dosage of potassium chloride to induce cardiac arrest.

It's the pancuronium bromide, the "paralyzing agent," that is supposed to stop the breathing; the sodium thiopental just induces "unconsciousness" -- and of course, unconscious people generally do, in fact, breathe (the medical term for not breathing is "respiratory arrest," not "unconsciousness"). But the entire stay of execution hinges on this point:

While "no direct evidence" showed anyone was conscious to feel pain, said Fogel, the logs noted "respirations" continuing at least until the start of the administration of pancuronium bromide in the six executions of Jaturun Siripongs, Manuel Babbitt, Darrell Keith Rich, Stephen Wayne Anderson, Stanley Tookie Williams and Clarence Ray Allen. Williams may still have been breathing when the administration of potassium chloride began.

In other words, the barbiturate that was administered beforehand, sodium thiopental, did not kill the condemned; they were still alive until they were actually executed. Therefore, concludes Judge Fogel, because they were still alive, they might have felt pain. And therefore, the execution might have been unconstitutional.

Now it's certainly possible that the judge held something different and not nearly so stupid; maybe the defense team claimed something about the respirations indicated some level of consciousness. But if so, not a single news story that I've read -- out of five -- has made any such distinction.

For example, the San Francisco Chronicle:

[Fogel] cited witness accounts, newly obtained by Morales' lawyers, that at least three executed inmates -- Stanley Tookie Williams, Darrell Rich and Stephen Anderson -- appeared to be breathing for longer than a minute after receiving a powerful sedative, the first of the three drugs. At the most recent execution, Jan. 13, Clarence Ray Allen was given a second dose of a heart-stopping chemical before he was pronounced dead.

Nor are they all copies of each other; they're not just reprints of AP. But in any event, if all of the Antique Media stories got it wrong -- we still have to work with that until somebody publishes a corrected version. Blogs are typically not primary news gatherers.

So at this point, the only evidence cited for the condemned being "conscious" is that they were "breathing," as if those two were synonyms. And feeling pain is evidently also synonymous with an unconstitutional execution, since that is the only issue that appears to have been raised.

Two previous cases came before this judge, and in both cases, he declined to delay the execution:

In his previous rulings, in the cases before the executions of Kevin Cooper and Donald Beardslee, Fogel was persuaded by a state medical expert's calculation that the sodium thiopental dose would produce unconsciousness within 60 seconds in "over 99.999999999999 percent of the population."

In other words, although the state conceded that a conscious inmate would feel "excruciating pain" from the pancuronium bromide and potassium chloride, the chance of consciousness was thought to be infinitesimal.

Among the differences in Morales' case, said Fogel, was additional expert opinion as well as evidence drawn by Morales' lawyers from the state's execution logs and presented in court.

The legal theory here is that it's constitutional to kill someone only if he experiences no pain while dying. This is to say, mere pain is enough to render an execution unconstitutional.

Would that include mental pain, the knowledge that he's about to die? Even if restricted to physical pain, how do you prove that a person didn't experience physical pain if he's dead in seconds and therefore unavailable to testify?

By the way, the Chronicle raises another point that I think is the real motivation behind these appeals:

Fogel noted that no judge has heard evidence on how California has carried out lethal injections since the state switched its execution method from cyanide gas in 1996. The state made the change after another federal judge found that the San Quentin gas chamber might be subjecting inmates to a slow and painful death.

That is, lethal injection was chosen as the only approved method of execution in California (and 36 other states) precisely because it was deemed less painful. And now a judge is about to suspend even that method here -- because it might still be painful.

I'll let the victim's brother, Brian Chalk, have the last word (from the News10 story) about this argument:

"Lethal injection is the most humane way to do it," Chalk said. "99.999 percent of the people that go through this are out before the second drug enters their vein. They don't feel anything."

"They get to go to sleep in a nice controlled, safe quiet environment," Chalk said. "That's a lot more than he gave my sister."

(In the continuation below, I discuss the two "options" that Judge Fogel offered the state, if it wants to try to continue with Morales' execution. Both options involve delays of months or years, unless the Supreme Court intervenes. Click below to see what I mean....)

Now, it's not as if Judge Fogel doesn't give California any options; he offers two for the state to proceed with the execution:

It can substitute a barbiturate or combination of barbiturates for the three-drug series used in previous executions. Or, it can station an experienced anesthesiologist in the execution chamber to verify that Morales is unconscious.

All right, let's examine these two options:

  • Substitute a "combination of barbiturates":

Since I'm quite sure that the state of California mandates the precise method of execution, this would require the state legislature to enact, and the governor to sign, a new law mandating a different method. This process itself would take a long time... especially since a majority of the state legislature's dominant Democratic caucus (and perhaps an outright majority of the state legislature) opposes capital punishment in all cases and by any means.

And in any event, the process could not even start until there was a lengthy period of investigation as to whether a "combination of barbiturates" would actually do the job consistently -- and "humanely." So we're clearly talking about a delay of years before any further executions could be conducted in California, with no guarantee the legislature would ever vote to change the procedure... especially since, by refusing to authorize any change, they could effectively annul capital punishment, regardless of what the citizens of the state demand.

And of course, even if they did change it, I'm sure Morales' legal defense team would simply claim the new method was also painful... and we'd start all over again.

  • Stationing an anesthesiologist to "verify" that Morales is unconscious

But that option, however, leads straight back to the Supreme Court:

If they opt to designate a monitor, Fogel would rule by Thursday night whether the person is qualified. Either side could appeal by week's end and push the case to the U.S. Supreme Court over the Presidents Day holiday weekend.

Of course, the state can also simply appeal Fogel's ruling, once he makes it -- which would also lead to the Supreme Court, which so far has ducked deciding the issue (in a Missouri case).

In other words, the options to Fogel has given California are to get the entire state to come up with a different method of execution (that would be subject to exactly the same arguments from the same attorneys, probably before the same judge), or else to appeal to the Supreme Court once Fogel makes his expected ruling. Which will also take time, unless the Court acts swiftly to vacate the presumed stay of execution.

Thus, however thin you slice the baloney, this is yet another ruling by a Clinton judge to overturn the will of the people by finding some "gotcha" point to declare executions unconstitutional.

Hatched by Dafydd on this day, February 15, 2006, at the time of 7:28 PM | Comments (9) | TrackBack

February 13, 2006

O What a Tangled Web - Update and Bump

Crime and Punishment
Hatched by Dafydd

UPDATE February 13th, 2006: Commenter sanddog reports that the defense team has just admitted that the letters are not true and has withdrawn them. But read on to see what the heck we're talking about!

This is jaw dropping: in an effort to secure commutation of the death sentence against California inmate Michael Morales, his defense team (which includes Kenneth Starr, interestingly) sent to Gov. Schwarzenegger six sworn affidavits from the jurors who decided his case (or his sentence, or both), begging the governator for clemency for Morales.

But according to prosecutors, those six affidavits were literally faked.

The jurors denied they thought Michael Morales deserved clemency because some of the testimony at his trial may have been fabricated, said Nathan Barankin, spokesman for Attorney General Bill Lockyer.

"We showed each person the declaration on their behalf and they all said they didn't say that," Barankin said....

On Friday, the San Joaquin District Attorney's office sent Schwarzenegger a new batch of sworn statements from five of those jurors saying they not only still supported capital punishment for Morales, but had never spoken with the defense investigator who claimed to have secured their signatures.

Kathleen Culhane, the San Francisco private investigator who Starr and Senior said had interviewed the jurors, declined to comment.

None of the five jurors involved in the legal tug-of-war, whose names were blacked out of the competing clemency documents to protect their privacy, could immediately be reached for comment.

(Evidently, one of the six jurors was unable or unwilling to file a new affidavit with the DA's office that he or she had not given the previous one; this could be as uninteresting as the juror being out of state, or as significant as the juror refusing to swear that he or she didn't previously swear. We'll see.)

It's hard to overstate the seriousness of such a charge. If this is true, and if the defense attorneys were aware when they presented them that these affidavits were fakes, then I think there's no question but that they would be swiftly disbarred; that is such an obvious consequence -- and it's so likely to be discovered, since of course the DA is going to contact the jurors, after getting blindsided like that -- that I have a very hard time believing that any of the defense team was aware of the fraud... assuming it was a fraud.

But I have an equally hard time buying the idea that five (out of six) jurors would (a) sign such affidavits for clemency, but then (b) give subsequent sworn affidavits that they had never signed the first affidavits; if they were caught, they must know they could and likely would be prosecuted for perjury or even obstruction of justice. One, maybe; but five? It strains credulity to the snapping point.

And that leaves only one explanation that I find probable. We start and end here:

Kathleen Culhane, the San Francisco private investigator who Starr and Senior said had interviewed the jurors, declined to comment.

Ms. Culhane is going to find herself on the griddle sizzling like ground chuck, confronted by five jurors who all swear they never gave her any such declarations, or indeed ever spoke to her at all. I will follow this case with rapt attention.

By the way, the Antique Media continues its anti-capital-punishment crusade by refusing to print the name of the poor 17 year old girl that Morales raped and murdered in January, 1981; her name is Terri Winchell. I believe it's important to remember the victims of the butchers on Death Row... and here is why.

Hatched by Dafydd on this day, February 13, 2006, at the time of 7:14 PM | Comments (18) | TrackBack

December 30, 2005

Expect Many Sudden New "Foreign Correspondents"

Crime and Punishment , War Against Radical Islamism
Hatched by Dafydd


Inquiry into leak of NSA spying program launched
Friday, December 30, 2005

WASHINGTON (CNN) -- The Justice Department has opened an investigation into leaks to the media about the National Security Agency's classified domestic surveillance program.

For those who missed it in an earlier post: Heh.

I anticipate a number of journalists will get a sudden yen for assignments in Venezuela or Russia or France -- countries with no effective extradition treaty with the United States (at least not one they honor where political crimes of conscience are concerned, such as when Ira Einhorn murdered his girlfriend, Holly Maddux). Just in case they suddenly need to retire from Bush's police state to breath freely in some Communist or socialist paradise, you see.

I expect the Captain Renaults of the MSM will be shocked, shocked to find themselves hauled before FBI agents and forced to testify, or else spend some time in the Judy Miller memorial cell themselves. How could the monstrous Bush administration demand they name names, when the New York Times has already formally granted anonymity to the leakers, to protect them against retaliation by disgruntled law-enforcement officials?

Nearly a dozen current and former officials, who were granted anonymity [by the New York Times] because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

The CNN story continues the fine MSM tradition of knowingly writing legal nonsense because it conforms to how the journalist thinks the world should work, regardless of how it actually does work in real life -- though at least now they're putting them into quotation marks, so we're making some progress:

"FISA says it's the exclusive law to authorize wiretaps," Democratic Sen. Russ Feingold of Wisconsin told CNN. "This administration is playing fast and loose with the law in national security. The issue here is whether the president of the United States is putting himself above the law, and I believe he has done so."

Though I don't want to judge before all the facts are in, it does appear that Sen. Feingold lied; "FISA," the Foreign Intelligence Surveillance Court of Review, in fact said the polar opposite in Sealed Case No. 02-001:

Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

[Emphasis in original Hinderaker post from Power Line.]

Here is the other CNN quotation:

Sen. Jack Reed, D-Rhode Island, said the president could have gone back to a FISA court to get approval even after the wiretaps started if he was concerned about speed. "I'm just stunned by the president's rationales with respect to the illegal wiretapping," Reed said. "There are two points that have to be emphasized with respect to the FISA procedure: They're secret and they're retroactive."

But of course, if the wiretapping is legal, because the president has the inherent legal authority to order wiretapping for national-security purposes (as even the FISA court itself agrees he does), it doesn't suddenly become illegal just because he fails to seek the retroactive cover of the FISA court that he doesn't need in the first place. The fact that the Bush administration sought 5,645 wiretap authorizations from the FISA court since 9/11 shows the president is not unmindful of the requirements for warrants when the conditions of the NSA intercept program are not met.

Finally, CNN quotes the well-known constitutional scholar, Tom Daschle (D-Nowhere), on whether the congressional Authorization for the Use of Military Force enacted after the attacks buttressed Bush's residual plenary power to order such wiretaps:

However, former Senate Majority Leader Tom Daschle, who negotiated the congressional resolution with the White House, disputes the claim that the authorization to use force permitted Bush to launch the secret wiretaps without court authorization. (Full Story)

You have to click on the misleadingly labeled "Full Story" to discover that what they really mean by saying that Daschle "disputes the claim" is that Daschle says the Senate never actually discussed the issue explicitly... which is not quite the same thing as discussing it and deciding that the law they were passing did not authorize tapping the phone calls and e-mails of foreign al-Qaeda members communicating with their agents inside the U.S., isn't it?

And of course, there is the killer question to ask of any elected official, Democrat or RINO, inveighing against the program: "All right, so are you actually calling for the NSA to stop monitoring al-Qaeda calls and e-mails?"

If Feingold says yes, as he surely would (he was the only senator to vote against the Patriot Act in 2001), then once again, the Democrats are on record caring more about Zacarias Moussaoui's civil liberties than the lives of American citizens. And if Jack Reed says no, as he probably would -- along with Sens. Nelson (D-NE), Nelson(D-FL), Specter(R-PA), Salazar (D-CO), and Clinton (D-NY), et al -- then he is exposed as the worst sort of hypocrite: he wants those involved to be labeled as corrupt tyrants, so he can gain political advantage; but he nevetheless wants the program to continue, so his kids will be safe.

This is as bad as those who want any sort of aggressive questioning to be illegal, so they can posture to the Europeans about America's moral purity... but they still want interrogators to break the law when we need to obtain intelligence vital to our security. (Then they want to prosecute the "lawbreakers," of course.)

This story is such an albatross for the Democrats and their willing accomplices in the media. What does the charge boil down to? George W. Bush cut through the legal red tape in order to protect Americans from being blown up. Yeah, I can see how that's going to turn the heartland against him.

Both John McIntyre and Tom Bevan at Real Clear Politics have argued repeatedly (here, here, and here) that this issue is an incredible political loser for the Democrats. Both Fred Barnes and Mort Kondrake have noted that it was this overreaching by the Democratic house organ, the New York Times, and the Democrats' falling upon it (along with the demand to cut and run from Iraq), that more than anything else confirmed Bush's vigorous defense of his administration's war conduct in Iraq and Afghanistan and likely helped turn around the president's job-approval numbers.

The Left's attempt to gin up a Watergate-style scandal out of the NSA issue has been exploding in their faces since the very first day of it; at what point do they just stop, take a stress pill, and ask if this is really in their best interests?

In any event, the media has made such a stink about this and rubbed the leaking into the administration's face so blatantly that now they've drawn yet another federal investigation (added to the one already in place to find out who leaked the classified information about the CIA's secret prisons in Eastern Europe, as Power Line reminds us). So at least it's had some minor good effect to slightly counterbalance the huge blow to American national security: maybe these blatantly illegal leaks will result, after a few prosecutions and lengthy prison terms, in the White House finally gaining control of the CIA and NSA.

Hatched by Dafydd on this day, December 30, 2005, at the time of 3:40 PM | Comments (3) | TrackBack

December 27, 2005

Son of Give 'Em Hell, Arnie

Crime and Punishment , Politics - California , Politics - Internationalia
Hatched by Dafydd

Just a fast addendum to my post of eight days ago, Give 'Em Hell, Arnie. In that cheery missive, I noted that a coalition of Greens, Pink Helmets, and two Reds in Arnold Schwarzenegger's home town of Graz, Austria, had scheduled a vote to strike his name from the local sports stadium to punish him for doing his duty as California governor and not stopping the execution of the execrable Stanley "Tookie" Williams. But the Governator beat them to the punch, sending official word (on official stationery) that he was revoking Graz's right to use his name in any way -- and was even returning the town's "friendship ring," since evidently the town council were no friends of his.

I noted in that piece,

Mind, it wasn't the citizens of the town... it was the city council that decided to make a big stink, thus ingratiating themselves with the internationalist Left and the U.N. toadies.

Well sho' nuff, today the New York Times dropped the other shoe:

[Wolfgang Benedek, a professor of international law at Graz University and a leader of the anti-Schwarzenegger faction] allows that there is an element of elite versus popular opinion on this matter. A poll by the local newspaper found that over 70 percent of the public opposed removing Mr. Schwarzenegger's name from the stadium.

This adds to a practical consideration very much on Mr. Nagl's mind: that Graz will no longer be able to count on using its special relationship with the governor to promote its image.

Heh. No kidding, bub.

I also love this bit of Grazian boosterism:

"We had the great classical culture on the one side," Thomas Rajakovics, the mayor's spokesman, said, referring to other important figures who are associated with Graz, from the astronomer Johannes Kepler to the Nobel Prize-winning physicist Erwin Schrödinger, to the conductor Karl Böhm. "And on the other, we had Arnold Schwarzenegger and the popular culture. These were the two poles for us, but we're not allowed to use his name any more."

Yeah, well Kepler was born and grew up in Weil der Stadt; his only connection with Graz is that he got a job there later. Schrödinger was born and grew up in Erdberg and attended university in Vienna; he too got a job in Graz at one point in his life, which is his only connection with that city.

Of those three great men to be proud of, only Karl Böhm was actually born and raised in Graz. He was also an ardent supporter of Adolf Hitler and the Nazis. I'm not exactly sure this is the image the town really wants to convey.

Better stick with Schwarzenegger!

Hatched by Dafydd on this day, December 27, 2005, at the time of 4:21 AM | Comments (0) | TrackBack

December 21, 2005

Saddam's Temper Tantrum

Crime and Punishment , Iraq Matters
Hatched by Sachi

Saddam Hussein, who terrorized the citizens of Iraq for over 30 years, is now, in captivity, whining like a spoiled child. He and his attorney have used every trick in a book to delay the trial: the latest is playing the torture card.

The court is simply wasting time by bothering to listen to Hussein's childish lie about being "beaten" by his American captors; it's simple blame-shifting, throwing sand in our eyes. I doubt I'm alone in thinking that, even if it were true, so the hell what? Not that I believe a word from Hussein, considering what he did to so many millions of people for so long -- but even if it were true, do we care if he were roughed up a bit? Does that in any way mitigate his crime? Is bad treatment in jail an ex-post-facto "defense" to crimes against humanity?

"I want to say here, yes, we have been beaten by the Americans and we have been tortured," Saddam said, before gesturing to his seven co-defendants around him, "one by one."

Hussein is still sucking air. He's still balanced on his hind legs. He doesn't have any visible injuries, he isn't in hospital, he is not disfigured: if it were true that he was slapped around, it couldn't possibly be enough to amount to "torture," as Hussein of all people should know.

Evidently, Hussein has a serious problem with memory loss. He would do well to listen to the stories of his own victims. Then perhaps he would know what the word "torture" means.

Hatched by Sachi on this day, December 21, 2005, at the time of 1:36 PM | Comments (2) | TrackBack

December 20, 2005

Why We Need the Death Penalty

Crime and Punishment
Hatched by Dafydd

Paroled TWA Hijacker Returns to Lebanon
Associated Press via Fox News
Tuesday, December 20, 2005

BEIRUT, Lebanon — A Lebanese man serving a life sentence in Germany for the 1985 hijacking of a TWA jetliner and killing of a U.S. Navy diver has returned to Lebanon after being paroled in Germany, security and guerrilla officials said Tuesday....

[Mohammed Ali] Hamadi's case came up for a court-mandated review, and he was released after an expert assessment and a hearing, said Doris Moeller-Scheu, spokeswoman for the Frankfurt, Germany, prosecutor's office....

U.S. authorities had requested his extradition so he could stand trial in the United States, but the Germans, who have no death penalty, insisted on prosecuting Hamadi.

But at least, thank goodness, the brother of Robert Dean Stethem, the Navy diver who was murdered by Hamadi, knows who is really to blame:

Stethem family members said they learned of Hamadi's release Friday from federal investigators who had worked on the case. Stethem's brother, Kenneth, blamed the U.S. government for not doing enough to keep Hamadi imprisoned.

This is the Chained Dog Syndrome in action: a vicious dog mauls a little child to death; but it's never done that before, so the owner pleads for its life. The authorities agree, but they order the dog to be chained up. The years pass, and after a while, nobody remembers why the dog was chained in the first place; all they see is the "brutality" of a magnificent animal hooked to a chain.

Sooner or later, the pressure to unchain the dog becomes unbearable -- and the resulting tragecy is even worse than the original killing.

The Germans unchained the dog, and he has now returned to the arms of Hezbollah -- not reformed but rather even more radicalized in his jihadist tendencies by years of doing nothing but mull the embittered, hate-filled, and violently antisemitic and racist philosophy of groups like Hezbollah.

Thank heavens we have a death penalty here in America; now let us use it more often.

Hatched by Dafydd on this day, December 20, 2005, at the time of 3:23 PM | Comments (11) | TrackBack

December 19, 2005

Give 'Em Hell, Arnie!

Crime and Punishment , Politics - California , Politics - Internationalia
Hatched by Dafydd

For all his mistakes and missteps, his moderation, and even his Kennedy of a wife, this is why I can't help loving this guy!

Schwarzenegger to Hometown: Remove My Name
by Jennifer Coleman
Associated Press Writer
Dec 19th, 2005

SACRAMENTO, Calif. - Gov. Arnold Schwarzenegger on Monday told officials in his hometown in Austria to remove his name from a sports stadium and stop using his identity to promote the city. The governor's request came after politicians in Graz began a petition drive to rename the stadium, reacting to Schwarzenegger's decision last week to deny clemency to condemned inmate Stanley Tookie Williams. Opposition to the death penalty is strong in Austria.

So a bunch of self-righteous, narcissistic lefty politicos in Graz decided to grandstand by circulating a petition to remove Schwarzenegger's name from the Liebenauer Stadium in Arnold's home town; in fact, the petition was to rename the stadium the Stanley "Tookie" Williams Stadium.

Mind, it wasn't the citizens of the town... it was the city council that decided to make a big stink, thus ingratiating themselves with the internationalist Left and the U.N. toadies. Arnold evidently decided he'd had enough -- so he called their bluff:

In a letter that began "Dear Mister Mayor," Schwarzenegger said he decided to spare the Graz city council "further concern" should he be forced to make other clemency decisions while he's governor. Another inmate is scheduled to be executed in California Jan. 17.

"In all likelihood, during my term as governor, I will have to make similar and equally difficult decisions," Schwarzenegger said in the letter. "To spare the responsible politicians of the city of Graz further concern, I withdraw from them as of this day the right to use my name in association with the Liebenauer Stadium."

The Governator is making it as plain as the bulbous nose on the mayor's face that Graz needs Schwarzenegger a thousand times more than Schwarzenegger needs Graz. The only successes that he had in Austria were winning a couple of junior regional bodybuilding championships there in the 1960s; virtually everything he is today he owes to his new country, America. He is forcefully reminding them of that point.

Schwarzenegger is such an American!

He even upped the ante:

In the letter, Schwarzenegger also said he would no longer permit the use of his name "to advertise or promote the city of Graz in any way" and would return the city's "ring of honor."

The ring was given to him in a ceremony in Graz in 1999. At the time, Schwarzenegger said he considered it "a token of sincere friendship between my hometown and me."

"Since, however, the official Graz appears to no longer accept me as one of their own, this ring has lost its meaning and value to me. It is already in the mail," the governor wrote.

I'm guessing that what Arnold is pushing for (without coming out and saying so) is for the fine citizens of Graz to rein in the condescending councilmen, tell them to go stuff themselves with bratwurst, and demand that the city apologize to Schwarzenegger... likely the only really famous person ever to come from "the forgotten city of Austria" (the remembered city of Austria is of course Vienna).

(I just looked it up: the only other "famous" person is conductor, cellist, and violist Nicholas Harnoncourt; now there's a name to conjure with! But even he only moved there; he was born in Berlin, Germany.)

Wake up, Graziaks: leeching off the celebrity of Arnold Schwarzenegger is a privilege, not a right.

Hatched by Dafydd on this day, December 19, 2005, at the time of 6:21 PM | Comments (0) | TrackBack

December 13, 2005

Final Tookie Lookie

Crime and Punishment
Hatched by Dafydd

After much soul searching, I have finally come to a painful realization: all human life has value (even that of "Tookie" Williams).

But sometimes that "value" is a negative number.

Adios, muchacho. Don't let the gates of fire smack you on the butt on your way inside. And abandon all hope, ye who enter here.

Hatched by Dafydd on this day, December 13, 2005, at the time of 6:25 AM | Comments (1) | TrackBack

December 12, 2005

Tookie Delookie - UPDATE and Bump

Crime and Punishment
Hatched by Dafydd

UPDATE 12/12/05 13:01: Clemency Denied:

Gov. Arnold Schwarzenegger refused to spare the life of Stanley Tookie Williams, the founder of the murderous Crips gang who awaited execution early Tuesday in a case that stirred debate over capital punishment and the possibility of redemption on death row. Williams, 51, is set to die by injection at San Quentin State Prison after midnight for murdering four people in two 1979 holdups.

...But I'll believe it when I believe it.

UPDATE 21:30: State Supreme Court denies stay of execution.

Is it just me?

According to the Associated Press,

A lawyer for convicted murderer Stanley Tookie Williams asked the state Supreme Court to stay his execution, saying the Crips gang co-founder should have been allowed to argue that someone else killed one of his four alleged victims. [Emphasis added]

The "one" victim AP refers to is Albert Lewis Owens, a clerk at a 7-Eleven that Tookie decided had too much money. Owens is not named in the AP story. Neither are Tookie Williams' other three murder victims: husband and wife Yen-I Yang and Tsai-Shai Chen Yang and their daughter, Yu-Chin Yang Lin. But this is hardly surprising... to quote an e-mail from my friend Lee Porter, who first called this to my attention:

The victims were not abstractions, they were people with their own lives and loved ones, and the murderer took what he was not entitled to take. Many writers and chatterers don't know, don't care, or don't bother to acknowledge the identity of the victim. I think this is a pathology in and of itself.

I agree, and I'll strive always to list the names of the victims whenever I write about heinous murders in the future (as I did in the previous "Tookie" Williams post, This Might Kill Capital Punishment): the murderers took their lives and future... it's up to the rest of us to protect their past, their memory, and most of all, their names.

Let me see if I understand "Tookie's" attorney's last-ditch point: she argues that one of the witnesses against Tookie Williams -- whose name, Alfred Coward, AP has no difficulty remembering -- was not a good guy himself:

Wefald's petition argues that prosecutors failed to disclose at trial that witness Alfred Coward was not a U.S. citizen and had a violent criminal history, depriving Williams of the opportunity to argue Coward was the killer in the February 1979 robbery.

Okay... but what about the murder of the Yang family eleven days later? What is Ms. Wefald actually arguing -- that the jury sentenced "Tookie" to death because Albert Owens was white... but that they wouldn't have sentenced him to death if he had only killed three Chinese? What a vile, racist argument that is.

And it's doubly absurd, because what AP fails to report is that Alfred Coward was a friend of "Tookie" Williams. He wasn't some unknown eyewitness whom "Tookie" had never seen and knew nothing about; he was "Tookie's" partner in the 7-Eleven robbery-murder. Does Wefald really expect us to believe that "Tookie" had no idea that Coward had a "violent criminal history" when he took him along to commit a robbery, which turned into a hate-crime murder? ("Tookie" later told his other partner, Tony Sims, that he killed Owens "because he was white and he ["Tookie"] was killing all white people.") "Tookie" Williams was well aware of Coward's violent past and had ample opportunity at trial to bring that out during cross examination.

Or does she make a different racist argument -- that the fact that really casts doubt on Coward's testimony against "Tookie," and makes Coward the more likely suspect in the killing, is that Coward wasn't an American citizen?

The "Tookie" worship engaged in by leftists, activists, and the Hollywood elite is simply despicable; and the more you read about his brutal murders -- here and here, for example, descriptions based upon actual testimony at trial and at parole hearings -- the more despicable it becomes.

Whether it's malign, homicidal thugs like Mumua or "Tookie" or raging surrender-monkeys like Sheehan, Murtha, and Kerry, the left-liberal movement has become known by the heroes it exalts. Let them boil in their own bile.

Oh, by the way; the total amount of money that the murders of four human beings netted Stanley "Tookie" Williams? $220.

Hatched by Dafydd on this day, December 12, 2005, at the time of 1:26 PM | Comments (3) | TrackBack

December 11, 2005

Tookie In a Coal Mine

Crime and Punishment , Elections , Politics - California , Predictions
Hatched by Dafydd

Simply put, Gov. Arnold Schwarzenegger's decision on clemency for Stanley "Tookie" Williams will be a harbinger of next year's campaign.

We already know that the Governator is running for reelection... but we don't know as what. So here is my prediction:

  1. If Arnold denies clemency, he will run for reelection as a Republican;
  2. If he grants clemency, then he will leave the Republican Party and run for reelection as an Independent.

I sure hope for the former; but if the latter happens, we'll all have the enormous satisfaction of saying "I told you so!" to Daniel Weintraub of the Sacramento Bee-blog California Insider, who has argued for several days now that Arnold's appointment of liberal Democrat Susan Kennedy shows that Schwarzenegger is bringing Democrats over to his cause -- not that Ms. Kennedy has been moving Arnold Schwarzenegger over to hers, as most conservatives believe.

I suppose it won't be too long before we find out who's right.

Hatched by Dafydd on this day, December 11, 2005, at the time of 9:42 PM | Comments (3) | TrackBack

December 1, 2005

This Might Kill Capital Punishment

Crime and Punishment
Hatched by Dafydd

I'm speaking of the Stanley "Tookie" Williams case, of course. If this goes on, it may very well spell the end of the death penalty in the United States.

Wait, Dafydd -- are you miffed because Tookie Williams hasn't yet been granted clemency? Not in the least; in fact, I would urge the Governator not to grant clemency in this case. So the guy "turned his life around" in prison and "redeemed himself." I'm not impressed... honestly, I'm not. Here's the argument for clemency on a nutshell:

Williams was condemned for killing Yen-I Yang, Tsai-Shai Chen Yang and Yu-Chin Yang Lin in the motel robbery, and for gunning down Albert Owens, a 7-Eleven clerk, in a separate crime.

While in prison, Williams has campaigned for an end to youth gang violence while co-authoring anti-gang books for youngsters. Supporters have nominated him several times for the Nobel Peace Prize.

But now that he's on death row, he's reformed! Hasn't killed a man-jack since he was convicted. And he wrote anti-gang books. Really, what's the argument here -- now that he's got all that out of his system, he'll be good from now on?

Or maybe I think Tookie Williams is actually innocent... do I? Perhaps I buy the argument that his attorneys just made to the California Supreme Court:

Lawyers for Williams, author of a series of anti-gang books for children, wanted to re-exam ballistics evidence that showed his shotgun was used to kill three people during a 1979 motel robbery.

The defense claimed the forensic evidence was "junk science," but prosecutors said that allegation was "based upon innuendo, supposition and the patent bias of (Williams') purported expert."

Again with the books? What's this obsession with literary talent? Shades of Norman Mailer and his own pet murderer, Jack Abbott. Abbott was convicted of writing fraudulent checks; then, while in prison, he murdered another inmate. Receiving a sentence of nineteen years, Abbott, a "revolutionary" devotee of both Mao and Stalin, thought he might shorten that time by enlisting the aid of famed author and bloviator Norman Mailer. In 2002, Dorothy Rabinowitz wrote in the Wall Street Journal/OpinionJournal:

The letters Abbott subsequently wrote moved him to feelings of awe, Mr. Mailer reported in a 1981 New York Review of Books piece--awe, and admiration at the prisoner's writing and thinking and moral vision. In Abbott's letters he had found, "a potential leader, a man obsessed with a vision of more elevated human relations."

Hardly any wonder, then, that Abbott soon became the object of an effort by celebrated members of the literary establishment bent on springing him from prison. His patrons were moved by the certainty that they had stumbled on a visionary who must be freed to write and think, not just for his sake but, above all, for ours. A liberated Abbott could go about enriching our society and culture with his talents, which included, Mr. Mailer explained, a bold, and comprehensive vision of society.

This "comprehensive vision of society" lured scores of Left-listing artistic dears to Abbott's side, standing side by side with that literary "genius," Norman Mailer. Mailer savored the paeans and kow-tows attendant upon the introduction he wrote to Abbott's book, In the Belly of the Beast -- a twice-narcissistic collection of letters exchanged between the two gargantuan egos. Mailer at his worst, most fatuous, and most preening: "not only the worst of the young are sent to prison, but the best -- that is, the proudest, the bravest, the most daring, the most enterprising, and the most undefeated of the poor." Gag me with a skeleton key.

In due course, Jack Henry Abbott won parole, thanks to Mr. Mailer, who instructed the Utah Board of Corrections in Abbott's talent and literary promise, as did an editor from Random House. Released to a halfway house in June 1981, Abbott was surrounded by influential admirers, guest of honor at celebratory dinners, subject of stories in People magazine, and "Good Morning America."

Roughly a month later, it all came to an end, along with the life of 22-year-old actor and writer Richard Adan. The newly married manager of his father-in-law's Manhattan restaurant had made the mistake of telling Abbott that the washroom was for the staff and not for customers. The thinker obsessed with a vision of more elevated human relations proceeded to knife Adan to death in an argument over a toilet. Adan was left to die on the sidewalk.

Abbott was eventually captured and sentenced to life in prison. He finally managed to fulfilled one of his sentences, as he hanged himself in February, 2002, with his prison bedsheets. Good night, sweet poseur-ponce; parting is such a brief candle.

I don't know if Stormin' Norman is involved in the literary orgasm of adulation sprayed across Tookie Williams -- Nobel laureates, also-rans, and wannabes are lining up by the truckload to beg Arnold Schwarzenegger to spare the Tookie's life. Maybe he's but one of the furtive 48,000 who have "signed" an online petition for clemency. Mailer may be reticent -- once burned -- but he may as well be present at least in spirit, joining the "bevy of Nobel laureates and celebrities" flinging themselves to the ground and moaning (one more for the camera now!) that they're not worthy of the redeemed authentic writer of the magnificent series of anti-gang books for children, the man who has turned his life around and not killed a soul while on ice (more peaceful than Jack Abbott -- at least after getting those four terminations out of his juices).

Dorothy Rabinowitz, who wrote the Wall Street Journal piece on Jack Abbott, must be spinning in her Barcalounger for having written this in that same article:

Causes célèbres of this sort--in which literary talent is advanced as the reason to free a violent felon--aren't likely to come around again anytime soon.

Once as tragedy, once as farce, Ms. Rabinowitz.

(In a creepy coincidence, she is most famous for agitating for the freedom of a man who was probably falsely convicted of child molestation during that bizarre, only-in-America rage of prosecutions of the 1980s -- which included here in California the McMartin Pre-School legal atrocity. Rabinowitz's cause, however, was an evidently innocent man named (really!) Gerald "Tooky" Amirault. So it goes.)

But I wander. No, I don't think Tookie Williams is innocent. I'd have to side with the numerous state and federal trials and appeals that have ruled against the man, each and every one. That's not what I'm on about; that's not the thing that threatens the very existence of the death penalty, not even if Tookie Williams were as pure as the driven laundry detergent.

It leapt out at me as I read the David Kravits AP story on the Tookster, a 600-point headline flashing blood red, the frequency calculated to seize epileptics in their tracks:

Williams, condemned in 1981, has maintained his innocence. Among his claims is that fabricated testimony sent him to death row. He also says prosecutors violated his rights when they dismissed all potential black jurors from his case.

Oh. Didn't get it? Well, my training is in math, and I tend to notice numbers before letters. Let me try it again:

Williams, condemned in 1981, has maintained his innocence.

1981 was the first year of Ronald Reagan's presidency. It was a year after I transferred from UCLA up to UC Santa Cruz, and the year I finally ceased working with my back and started working with my brain. It was a year before my BA and the year of the first Space Shuttle launch -- Columbia, STS-1, on April 12th, if you're interested.

It was twenty-four years ago. And the gentleman still seems to be here.

If anything does in the death penalty, it will be the squeamishness of the executioner, the unwillingness of the state actually to carry out the verdict it's willing to render. We perhaps will come to a day when the population of death row exceeds that of the lifers, when we haven't executed a single person in a decade, and we simply throw up our hands in frustrated surrender. That would be a tragic day, for I believe that simple justice demands that we do not allow murderers, at least the worst of them -- or the best, in Norman Mailer's perverse universe -- to continue to enjoy what they've stolen from another. Fiat justicia, ruat coelum.

But maybe that day won't come. Thank God, there will always be a Texas.

Hatched by Dafydd on this day, December 1, 2005, at the time of 4:59 AM | Comments (14) | TrackBack

November 29, 2005

Those "Corrupt" Republicans

Crime and Punishment , Unuseful Idiots
Hatched by Dafydd

As Rep. Randy "Duke" Cunningham (R-CA) blubbered out a confession yesterday to accepting bribes large enough to intrigue the publishers of the Guiness Book of World Records, Nancy Pelosi (D-CA) pounced like a cat on catnip:

"This offense is just the latest example of the culture of corruption that pervades the Republican-controlled Congress, which ignores the needs of the American people to serve wealthy special interests and their cronies," Ms. Pelosi said in a statement.

Brace yourselves for a cold blast of truth: Pelosi is technically right -- but in the larger sense, she's wrong.

She is almost certainly correct that there are more corrupt Republicans in Congress today (even as a percent of membership) than Democrats. Why? For the simple reason that Republicans are in charge. Back when the Democrats ran the joint, they were the corrupt ones, from Dan Rostenkowski to Tom Foley to Tom Daschle to Bill Clinton (Marc Rich ring any bells, Sen. Hillary?) Of the "Keating Five" senators, four were Democrats: Alan Cranston (D-CA); Dennis DeConcini (D-AZ); John Glenn (D-OH); and Don Riegle (D-MI). (The only Republican was John McCain from Arizona. Heh.)

Do we detect a pattern here? Let's reason this through. Suppose you're a corrupt businessman or foreign politician or fugitive from justice, and you think a little judicious squeeze will help your case. You have some significant lettuce to spread around. How much of it do you plan to give to pathetic, powerless losers like Harry Reid (D-Las Vegas), Nancy Pelosi (D-Baghdad By the Bay), and John F. Kerry (D-Hyannisport)? Wouldn't it be a little more rational to extend the largess to the folks who can actually steer the car, rather than just sit in the back seat and bitch about the driving?

That said, Pelosi is also wrong: there is no indication that the Republicans are any more corrupt than were the Democrats when they were in charge; in fact less, but probably only because the GOP hasn't been in power long enough to really institutionalize corruption, the way the Democrats in the House did in their decades of rule. There is no distinctively Republican "culture of corruption;" the culture of corruption attends whoever sits in the big chair, has the biggest staff, and the office with a view of the Capitol Mall -- not a view of the garbage dump.

It's power, not party, that corrupts.

And of course, much of the so-called Republican "corruption" isn't corrupt by the normal meaning of the word (payoffs, kickbacks, bribes and suchlike): Tom DeLay stands (falsely) accused, not of accepting bribes, but of bypassing campaign finance reform laws to get around Democratic gerrymandering; Bill Frist is under investigation for the sale (by a blind trust) of stock that he already owned; and Lewis "Scooter" Libby was indicted for lying about having told reporters that the wife of disgraced former ambassador Joe Wilson worked for the CIA. None of these fits the classic definition of corruption, which requires accepting money for performing favors.

So the next time your wiseguy coworker smirks about those "corrupt" Republicans, instead of launching into a three-hour peroration on the baselessness of the charges against DeLay and Frist and the overexpanded reach of the special counsel in the "Leakgate" probe, just grin and say, "of course! Who the hell's going to bribe the losing candidate?"

Hatched by Dafydd on this day, November 29, 2005, at the time of 3:13 PM | Comments (2) | TrackBack

November 28, 2005

Is Fear of Executing the Innocent Driving Down Death Penalty Support?

Crime and Punishment
Hatched by Dafydd

This appears to be the general worry underlying Patterico's proposal, over on his blog almost two years ago, that we only allow executions when defendants are found guilty "beyond all possible doubt," rather than merely "beyond reasonable doubt." He and I have been debating this point; but I wanted to get at the root concern -- which in fact should be thought-provoking even to folks who are otherwise uninterested in the back and forth. Simply put, is the public rejecting the death penalty because of a fear that some innocent person could be executed?

Not to be coy, I haven't been able to find any evidence at all that they are. There was a period in the mid- to late-1990s where it arguably could have been; there was a strong "innocence" movement then and a significant drop in support for the death penalty. But support began to move upwards after 9/11, and the late-1990s drop was entirely erased by 2003. Since then, we have returned to 2001 levels; but this cannot be explained by any "innocence project" cause célèbre.

Reuters carried a story that expressed the meme that the MSM has been flogging for years now:

A Gallup poll last month showed 64 percent of Americans favored the death penalty -- the lowest level in 27 years, down from a high of 80 percent in 1994.

"There's now considerable public skepticism about whether all those being executed are really guilty and that has cast doubt on the whole system," said Richard Dieter of the Death Penalty Information Center. [Emphasis added here and all subsequent unless otherwise noted. -- the Mgt.]

Several points to note in counterargument:

  • The Death Penalty Information Center is a notoriously strident anti-death penalty organization that is not only against the DP but even against incarceration itself.

Incarceration and Crime: A Complex Relationship, a new report by The Sentencing Project, examines the financial and social costs of incarceration, and evaluates the limited effectiveness it has on crime rates. The report notes that the number of people incarcerated in the United States has risen by more than 500% over the past three decades, up from 330,000 people in 1972 to 2.1 million people today. Though an increase in the number of offenders who are incarcerated has played a modest role in the nation's decreasing crime rate, the report notes that this policy is subject to decreasing effectiveness in the long-term. The Sentencing Project warns that increasing incarceration while ignoring more effective approaches to preventing crime will impose a heavy burden upon the courts, corrections systems, and communities, while providing a marginal impact on crime. The group recommends that policymakers further assess this problem and adopt more balanced crime control policies that provide resources for crime-prevention efforts such as programming, treatment, and community support.

The Sentencing Project is a national nonprofit organization that works for a fair and effective criminal justice system by promoting alternatives to incarceration, reforms in sentencing law and practice, and better use of community-based services and institutions. ("Incarceration and Crime: A Complex Relationship," The Sentencing Project, 2005). See The Sentencing Project's Web site. See also, Sentencing and Resources.

  • Support for the death penalty is always high but fluctuates quite a bit from year to year -- month to month, even. These fluctuations cannot be correlated to provable cases of innocent people being executed.

The soundbite here -- "lowest level in 27 years, down from a high of 80 percent in 1994" -- is very misleadingly stated, ignoring the fact that it dropped to about 65% approval in 2001, rose to 74% in 2003, and has now dropped back down to 64% in October 2005. In other words, support for the death penalty skews widely up and down. From the National Coalition to Abolish the Death Penalty:

Results of Gallup Poll on Death Penalty
Gallup Organization November 16, 2004
Who Supports the Death Penalty?

Since 1936, Gallup has been asking Americans, "Are you in favor of the death penalty for a person convicted of murder?" The percentage of Americans in favor of the death penalty has fluctuated significantly over the years, ranging from a low of 42% in 1966, during a revival of the anti-death penalty movement, to a high of 80% in 1994. More recently, public opinion on the death penalty has been more stable, with upward of 2 in 3 Americans supporting it.

Here is a 2005 abstract from Gallup itself; the full poll, which found support for the death penalty above the 74% of May 2003, requires a $95 subscription, and I ain't that interested!

Gallup's annual Moral Values and Beliefs poll finds Americans slightly more positive in their orientation toward the death penalty than they have been in the past several years. Compared with a year ago, more Americans say they support the death penalty as punishment for murder, more choose it over life imprisonment as the preferred punishment for murder, and more perceive that the death penalty is applied fairly in this country. A majority of Americans now say the death penalty is not imposed often enough. Perceptions that innocent people have been executed have fallen sharply.

So what is the claim? That people worried about innocents being put to death in 2001, so support dropped from 80% to 65%; but they changed their minds about the innocents being executed, so support rose to 74% just two years later; but then the fickle public flip-flopped back again about those poor innocents, so support dropped back down from 74% in May 2005 to 64% in October?

A far more likely scenario is that other confounding factors are at work, such as a fear of terrorism. The May 2001 poll was before 9/11, when we were still living in the world of the "peace dividend;" there were no more bears in the woods, and we had nothing to fear from criminals or terrorists.

But by the May, 2003 poll, after the war in Afghanistan and the beginning phase of the war in Iraq, terrorism was much on people's minds -- so support for the death penalty rose. Now, during recent polling, there is much skepticism about the Iraq war and the war on terror overall... so support is back down to the 2001 level.

Under this "event-driven" explanation of DP support, if Osama bin Laden were captured alive, I suspect support for the death penalty would skyrocket. But there doesn't seem to be any correlation whatsoever between support for the death penalty and the belief that innocent people are sometimes executed; that belief has been very high since at least the late 1990s.

It's possible that the drop in death-penalty support during the Clinton years, from 1994 to 2001, was due to the fear of innocents being executed; but if so, that fear was trumped by a fear of terrorism. There were no major "innocent executed" stories since the May, 2005 poll and and the most recent Gallup poll on the death penalty in October (the Ruben Cantu case Patterico discusses didn't hit the news until this month, long after the Gallup survey was taken in October).

There is thus no reason to suppose the return to 2001 levels of support from 2003 levels has anything to do with the fear of executing the innocent. We must look for other causes... of which I have suggested one; there are almost certainly others.

But the question that forms the title of this post can be fairly succinctly answered as No, there is no evidence that it has.

Hatched by Dafydd on this day, November 28, 2005, at the time of 8:12 PM | Comments (2) | TrackBack

November 22, 2005

Kill Them All

Crime and Punishment
Hatched by Dafydd

Patterico is always fascinating to read... even when he's dead wrong, as he is today.

Under the title An Innocent Person Executed? [Post 1], Pat writes:

I can’t definitively say that this is the first example of a clearly innocent person having been executed in the United States — but it sure seems that way. At the very least, he shouldn’t have been convicted. This is why I have argued [Post 2 - DaH] that no death sentence should be imposed unless the defendant’s guilt is proved beyond all possible doubt. As more cases like this crop up, more people will agree with me.

I could not possibly disagree more. The problem, of course, is that the standard Patterico suggests -- that we should impose the death penalty only when the proof of guilt is "beyond all possible doubt" -- is probably impossible to achieve in this world. (Patterico disagrees; I will deal with this below.)

Under this standard, you could not even execute Osama bin Laden: after all, he wasn't even present at the scene of the crime... how can you say that beyond all possible doubt he ordered the attack?

The sad but inescapable fact is that every possible system for determining guilt or innocence will fail... and will fail in both directions. That means that some innocent people will be convicted, and also some guilty people will be acquitted.

Not "may" fail; the odds are 100% that any system will fail. This is because every system, no matter how well thought out, depends ultimately upon fallible and at times corrupt human beings. Thus, Patterico's first suggestion is clearly wrong: we have definitely executed completely innocent people before, and we shall do so again -- unless we ban capital punishment entirely.

And that is the only way to adhere to the Patterico Principle that no innocent person should ever be executed. The Patterico Principle is functionally equivalent to banning capital punishment altogether. Any judicial system that would not be able to execute bin Laden for the 9/11 murders of nearly 3,000 people could not execute any but a tiny handful of people... and even then only when the jury violates its oath and actually sentences on the basis of the reasonable-doubt standard, not the possible-doubt standard. Below a certain level of death sentences, we cannot fairly be said to have capital punishment at all.

Here is the problem, however. The damage caused when the system fails in one direction, when an innocent person is executed, is easy to see. But when it fails in the opposite direction, it's much harder to tell whether damage has been caused; we can never really know that a murderer set free did not kill again. We only know that he has not been arrested for killing again. And considering how many murders go unsolved each year, that's cold comfort indeed.

Besides, we know of many cases where a murderer loosed by a disfunctional CJS did kill again; that scenario is far more common than even the most exaggerated claims that an "innocent man was executed." In fact, I suspect that we actually know of more people killed every year by murderers who somehow get out of prison than the total number of people executed in all fifty states in that same year, including all the guilty ones. So it's very likely that more innocent life is taken because our system is too lax on murderers than is taken because it's too harsh.

This is the side of the equation that folks who call for liberalization of the CJS rarely consider with the seriousness it deserves. Pat is no exception; he discusses the possibility on another post [Post 3], but the discussion is facile and explicitly avoids quantification:

Is the death penalty a deterrent? I think it is. However, I am not convinced by the study cited by Xrlq. I have not reviewed the study, but I am highly, highly skeptical of any “study” that purports to quantify the number of lives saved by each execution — just as I am very skeptical of “studies” that purport to show that the death penalty has no deterrent effect. I simply don’t believe that any study can quantify such intangibles with anything approaching scientific precision. I am confident that any reasonably competent expert could probably take apart the study cited by Xrlq and demonstrate it to be junk science.

Patterico, who is not a statistician or even a mathematician, and who was not even aware of this study before Xrlq drew it to his attention, is nevertheless "very skeptical" of it or of any other study that "purport[s] to quantify the number of lives saved by each execution."

Why is he skeptical? Certainly not on the basis of having studied them with sufficient expertise to pass judgment on the methodology or analysis. It's hard to escape the conclusion that Pat is "skeptical" because the study clearly conflicts with the decision Pat had already arrived at before he saw the study. (I'm sure that Pat is being completely honest in saying he is skeptical; I'm questioning his accuracy, not his veracity!)

Here is the core of Pat's argument why he thinks we need this likely impossible standard of "beyond all possible doubt," or (as he phrases it later), "proof to an absolute certainty" -- which is, of course, just as bad. Early in [2], he argues:

[I]f it is ever shown that we have executed an innocent person, that could be the beginning of the end of the death penalty in this country. [Emphasis added, here and elsewhere except as noted]

But later, he "repeats" (those are air-quotes) the argument thus:

[I]f it is ever proven, with rock-solid evidence, that an innocent person has been put to death, that will be the beginning of the end of the death penalty in this country. Poll numbers already suggest that the public has concerns about innocents being wrongfully convicted. Common sense says that, if a concrete example of an executed innocent came to light and were widely publicized, the polls would swing wildly against the death penalty. It would take time, but such an example would (in my opinion) mark the beginning of the end of executions in this country.

This is a famous fallacy in rhetoric; I call it the Accretion of Certainty Phenomenon: one begins by saying some event might happen; the next time it rolls around (in the same piece), the event now will probably happen; and at last, in the closing argument, we discover that the event will happen.

No evidence has been adduced to explain this magical transsubstantiation from the wafer of possibility to the body of certainty. It's just the "snark" principle, from the Lewis Carroll mock-epic the Hunting of the Snark: "what I tell you three times is true." Simply repeating something makes it sound more definite, concrete, emphatic.

But in fact, Patterico gives us no reason to believe that he is correct. If you polled 1500 Americans and asked them if they believe that any state, ever in the history of the United States, has executed an innocent man, I suspect the number who would say "yes" would approach 100%. I haven't done this study, but you can try just asking around among your friends. Ask them, "do you believe that sometime since 1789, when the Constitution was finally ratified, that some state has wrongfully executed an innocent man?" If you can find even one person who says "no, no state has ever in our history executed anyone who wasn't guilty," then preserve him in formaldehyde, because you have a rare specimen of credulity indeed!

And yet, the American public still strongly supports capital punishment -- probably less than in the 1800s, but certainly more than in the 1960s. Many folks will even point to cases that they believe were wrongful executions: blacks hanged in the Jim-Crow South after a kangaroo-court conviction; Sacco and Vanzetti; Caryl Chessman, supposedly the "Red-Light Bandit;" Ethyl Rosenberg (some would even argue Julius; I personally believe both were guilty and deserved to die). Folks by and large know that dreadful mistakes happen and that innocent people have almost certainly been executed, but all but a handful of states support capital punishment anyway.

So why would "common sense" dictate that one more such case "would" result in "the beginning of the end of the death penalty in this country?" (Especially if the "innocent" person wrongfully executed was no choirboy, given how many people believe thugs who steal their cars should be executed.) This strikes me as the same sort of "common sense" that tells us that the world is flat.

But let's get back to the forbidden subject: those who die because a murderer was not executed. In this imperfect world, there are no solutions; there are only trade-offs. Every policy decision is a trade-off: you reduce aspect X only by accepting a higher incidence of aspect Y. In this case, Patterico wants to reduce the number of death sentences; but he can only do so, whether he admits it or not, by accepting an increase in the number of innocents killed by convicted murderers who somehow get loose, either into the general prison population or else back into society itself.

Like it or not, even a sentence of life without possibility of parole (LWOP) does not mean the person will actually serve life. There are a number of situations that can allow that person back into society at some point in the future:

  • A future court might rule that LWOP constitutes "cruel and unusual punishment" or that it was unequally applied.
  • A future liberal legislature might remove that punishment from the code.
  • The prisoner might be released by accident, or he might escape.
  • A future governor might pardon him or commute the sentence, even without bothering to review the individual cases (as Gov. George Ryan did in Illinois in 2003, and Gov. Winthrope Rockefeller did in Arkansas in 1971, in both cases commuting death sentences to ordinary life sentences -- not LWOP).

Each of these has happened a number of times in the past. Every few years, Charles Manson comes up before the parole board. Why? He was originally sentenced to death; but the California Supreme Court, under Chief Justice Rose Bird, nullified the death penalty and changed all the death sentences to ordinary life (not LWOP, which did not exist as a distinct sentence at that point). Manson is still in prison; he's so high-profile, he'll likely never get out. But how many death-row inmates were released on parole following the Bird decision? And how many of them went on to kill again?

Unless Patterico has definite evidence that this number is significantly lower than the number of innocent people executed in California during that same period, he is wrong to dismiss the argument merely on his gut-feeling of skepticism.

So let us not make the same mistake that Patterico made; we'll leave the statement one of probability: it is likely that significantly more innocent people have been killed by murderers who eventually got out of prison than by the wrongful execution of innocent people. If Pat wants to dispute this specific point, perhaps he can start by estimating how many innocent people are typically executed per year.

Now to the point I said I would discuss below; this is "below" enough, so let's get into it! I said that the standard Patterico suggested be required for the death penalty, "proof beyond all possible doubt" (a.k.a. "proof to an absolute certainty"), was in fact functionally impossible to achieve (by which I mean you might get lucky occasionally, but not as a rule). Not surprisingly, Xrlq made the same point. Here is Patterico's rebuttal [3]:

I think Roberta, a commenter to my original post, understands what I mean. In a comment to that post, Roberta says she prosecuted a death penalty case while personally applying the “beyond all possible doubt” standard — and she obtained a death verdict. All the while, she presented the case to the jurors just as if she had been required to prove the defendant guilty beyond all possible doubt. Even if the jury had been instructed according to my proposed standard, I’d bet that she would have obtained the same result.

And the conclusion of that paragraph?

I think Roberta’s experience indicates that my more stringent standard could work in the real world.

But the point is that Roberta did not test the Patterico Principle in "the real world," because that is not the standard the jury was instructed to apply. She may have thought in her own mind that's what she was proving; but how can we possibly know that's what the jury thought? Do we know that they didn't have doubts, discuss them in the jury room, and conclude that their doubts were not reasonable? How would Roberta know that... was she present while the jury deliberated?

Even Patterico was only willing -- at first -- to say he would "bet" that she would still have gotten her death sentence. But after the Accretion of Certainty, he concludes that her experience "indicates" that his standard would work. "Indicates" is too strong a word for this vague chain of assumptions, however. This example is meaningless as a test, because the whole point is whether a jury would ever impose the death penalty if they had to decide guilt to the preposterous standard he proposes, not what the DDA muses about while she's presenting evidence.

So in fact, Patterico has no evidence at all, not a shred, that any jury would ever find a defendant so guilty that the death penalty would apply. And certainly, even Patterico would readily admit they would do so far less frequently than they do under the reasonable-doubt standard... which means fewer death-penalty convictions, hence more murderers with life or LWOP -- hence likely more murderers let loose eventually. And some portion of those would kill the innocent again. The only question is how many, and how many wrongful executions of the innocent would be prevented by the Patterico Principle.

Given that I think it highly probable that virtually no jury anywhere could find a defendant "guilty beyond all possible doubt," which means a de-facto nullification of the death penalty, I find Patterico's alarmist conclusion amusing (in a head-shaking sort of way):

[I]f it is ever proven, with rock-solid evidence, that an innocent person has been put to death, that will be the beginning of the end of the death penalty in this country.

In fact, the Patterico Principle itself will be "the beginning of the end of the death penalty," if it's ever adopted. Since I know Pat supports the death penalty, I suggest he simply has not correctly thought through the implications of his own proposal.

By contrast, I want to see executions of those on death row easier and quicker than they are now. I believe that tremendously more innocent people are killed by our catch-and-release policy for murderers than are wrongfully executed by out of control cops, prosecutors, judges, and juries. I believe deterrence is only effective insofar as people see the punishment actually being meted out. (I also want to see caning, à la Singapore, for those habituals who see prison as free R&R with three hots and a cot thrown in.)

I want to see inmates of death row being executed at a faster pace than new ones are sent up, so we whittle down the huge surplus of dead men walking.

Will this mean some innocents are executed? Oh, without a doubt. But I believe the trade-off will be fewer innocents killed overall. And unlike the Patterico Principle, that is a trade-off that actually benefits both society and also the individuals within it.

Note: This is my conservative suggestion. If anyone cares to see my libertarian suggestion, be forewarned: it's even more gruesome and troubling to folks like Patterico than this'n!

Hatched by Dafydd on this day, November 22, 2005, at the time of 6:28 PM | Comments (18) | TrackBack

October 26, 2005

What Is Truth?

Crime and Punishment , Media Madness
Hatched by Dafydd

I don't know... how about simply saying things that are accurate to the best of your knowledge?

UPDATED: See below!

The New York Times is once again trying to pick a fight with the White House over an absurdity. Here is the setup:

While not commenting on the report about Mr. Libby's conversation with Mr. Cheney [where the vice president is alleged to have told Libby that "Mrs. Wilson" suggested her husband for the mission], the White House took issue with suggestions that Mr. Cheney had not been truthful several months later in a television interview when he said he did not know Mr. Wilson and did not know who had sent him on his mission.

Asked whether Mr. Cheney always told the truth to the American people, Scott McClellan, the White House press secretary, answered, "Yes."

At issue were remarks by Mr. Cheney in an appearance on NBC's "Meet the Press" on Sept. 14, 2003. In response to a question about Mr. Wilson, Mr. Cheney said: "I don't know who sent Joe Wilson. He never submitted a report that I ever saw when I came back."

Mr. Cheney later added, "I don't know Joe Wilson," and said he had "no idea who hired him."

The point the Times makes obliquely, but which is being charged explicitly in the lefty blogs, is that there is a contradiction between Cheney saying he has "no idea who hired" Joe Wilson -- and Libby's notes, which indicate Cheney knew that Wilson was suggested by his wife, "Mrs. Wilson," for the mission to Niger. This is "teen logic" at its worst!

Here, I can settle this whole thing for the country right now. When I went to work for FileNet, I recommended they also hire my friend and former Ashton-Tate co-worker, George.

I suggested George, but I did not hire him; I was just a worker bee. The manager of our division, Mike, hired George.

Valerie Plame was a peon at the CIA. She had no authority to hire anyone, especially not her own husband. She suggested Joseph Wilson, but somebody else actually made the decision to send a know-nothing ex-ambassador to inquire whether Saddam Hussein tried to acquire yellowcake. Nobody seems to know who that "somebody else" was -- not Dick Cheney, and not the Times. And the only thing that Cheney "knew" about Joe Wilson was what George Tenet told him: that Wilson was the guy who was sent to Niger.

'Nuff said?

UPDATE: I think I've read eight MSM stories about this case in the last twenty-four hours... and not one, single story has so far mentioned the most salient feature of this case: that the Senate Select Committee on Intelligence determined that Joseph Wilson lied in his teeth about what he found in Niger. Not a single story has noted that he actually found that Iraq had likely tried to purchase yellowcake from Niger, and that Wilson's carefully orchestrated series of leaks to various reporters was a campaign of falsehoods -- capped by Wilson's own mendacious op-ed in the New York Times.

So, Mr. Wilson -- what is truth... to you?

Hatched by Dafydd on this day, October 26, 2005, at the time of 4:33 AM | Comments (6) | TrackBack

October 17, 2005

A Tale of Two Whistles

Crime and Punishment , Politics - Internationalia , Science - Bad
Hatched by Dafydd

The first whistle we all remember: Joseph Wilson, the proven serial liar who was sent by the CIA to investigate claims that Iraq attempted to purchase yellowcake Uranium from Niger, returned to report that indeed this was likely true -- but then wrote a completely fabricated article for the New York Times on July 6th, 2003, in which, in order to politically damage President Bush, Wilson flatly lied about his own findings.

Yet despite the exposure of these lies by a unanimous, bipartisan Senate committee investigation, Wilson continues to be lionized by the press and by the Michael Moore/MoveOn mob; more to the point, he remains free to wander about, instead of sitting in solemn silence in a dull, dank dock -- and wasn't even fined.

But turn now to a different whistle which blew its tune in a very different concert hall.

According to the Telegraph, a whistleblower who warned of a serious (potentially deadly) cabin-pressure design flaw in the new Airbus A380 now faces not only financial ruin but possible jail time, first because of a criminal lawsuit filed against him by his former employer and also for violating a gag order by talking about his own criminal case.

Joseph Mangan thought he was doing Airbus a favour when he warned of a small but potentially lethal fault in the new A380 super-jumbo, the biggest and most costly passenger jet ever built.

Instead, Europe's aviation giant rubbished his claims, and now he faces ruin, a morass of legal problems, and - soon - an Austrian prison. Mr Mangan is counting the days at his Vienna flat across the street from Schonbrünn Palace, wondering whether the bailiffs or the police will knock first.

Mangan, an American aerospace engineer, was brought in to head up the aerospace team at TTTech Computertechnik, an Austrian company that makes some of the components used in the A380. The A380 is the pride of Europe. It is intended to carry more than 850 passengers and fly at altitudes of 42,000 (flight level 420) -- the Boeing 747, by contrast, carries up to 524 passengers, typically at FL 350 with similar range and speed. Much is riding on the success of the A380, "the symbol of what Europe can achieve," according to French President Jacques Chirac; not only the pride of the EU but also its economic prospects depend upon a successful and timely launch of the huge airliner.

Mangan claims that his team was under tremendous pressure to meet deadline when they decided to change the specifications for the outflow valve control system. Rather than the more usual arrangement of three different systems for safety redundancy, they chose to use four identical valves.

The problem is that if an event occurs that causes one of the valves to fail, the other three may simultaneously fail for the same reason. In that case, the cabin would experience sudden catastrophic loss of air pressure. Since irreparable brain damage can occur after four minutes without oxygen, and since it takes two and a half minutes to descend from 420 to 250 (where ambient air is breathable), the flight crew would have to notice the problem and begin the descent within ninety seconds -- and among the first symptoms are inattentiveness, poor judgment, and loss of motor coordination (as I can attest from personal experience).

Any delay could result in neural damage or even death among hundreds of passengers and crew... and could even result in the aircraft crashing, if the pilots pass out: loss of cabin air pressure is considered a primary cause of a crash of a Boeing 737 over Greece this last August.

Once TTTech changed to the new valve design, they were obliged to report that change to the testing agencies, who might have to begin certification all over again. Mangan charges that the team failed to get the new design recertified, which could have taken as long as two years; the A380 was already six months behind schedule and $1.8 billion over budget. Instead, Mangan alleges,

TTTech falsely classified its micro-chip as a simple "off-the-shelf" product already used in car valves in order to except it from elaborate testing rules, he claimed. This would breach both EU and US law on aircraft regulation. "I refused to sign off on the test results, but TTTech went ahead anyway," he claimed. The key papers relate to the TTPOS operating system and were allegedly dated August 24 2004.

A number of agencies appear to have accepted or seriously considered Mangan's charge, which he first made in September 2004; he first raised the issue with the European Aviation Safety Agency (EASA), the EU equivalent of the Federal Aviation Administration here in the United States.

[O]fficials at the air safety watchdog EASA said they took the concerns "extremely seriously". An EASA source told the Telegraph that the agency was "able to confirm certain statements by Mr Mangan".

A probe - conducted by the French authorities for EASA - allegedly found that TTTech was "not in conformity" with safety rules and had failed to carry out the proper tests. The key microchip was deemed "not acceptable". EASA instructed Airbus to sort out the problem before the final certification of the A380 next year. It is unclear whether this has now been done. EASA has refused to comment publicly on the details of the dispute, prompting concerns at the European Parliament. Eva Lichtenberger, an Austrian Green MEP, wrote an "urgent" letter to the agency last month demanding "prompt and extensive information on the matter".

Had this chain of events happened in the U.S., the FAA would immediately have frozen deployment of the aircraft until the issue was investigated. Several agencies would have gotten themselves involved and there might even have been hearings in the Aviation subcommittee of the Senate Committee on Commerce, Science, and Transportation. (In fact, such hearings might still be a good idea before A380s are allowed to fly in the United States.)

Instead, the response in the European Union was markedly different. TTTech filed a lawsuit alleging both civil and criminal defamation under Austrian law, and the judge in the case issued a gag order, which Mangan says prohibited him from talking even to the EASA or other aviation safety officials. While the trial drags on, the A380 is nearing debut -- without any changes, corrections, or retesting done on the valve system, Mangan says.

This violates my duty to the public. People could die on that plane if they don't fix the problem," he said.

TTTech denies that there is any problem and denies that any of its elements covered up or failed to disclose any significant design changes. They say that Mangan has inflicted "severe damage" to their corporate reputation by making unsubstantiated claims about safety problems. They refer to him as disgruntled, say he never fit into the team, and that he is motivated by revenge.

There seems little interest within the European political community in helping Mangan defend against the criminal charge or even to evaluate his claims, despite support from the EASA. He is bankrupt, was fined $180,000 (which he could not pay) for violating the gag order, faces a year in jail for that violation -- and still faces the possibility of even more time in jail or prison for speaking out in the first place, even before the gag order.

Too bad. If only he had thought to embed his charges inside a diatribe against George Bush, as Joe Wilson did, the EU would hail him as a Hero of the People.

Hatched by Dafydd on this day, October 17, 2005, at the time of 5:44 PM | Comments (0) | TrackBack

October 3, 2005

The Evitable Collapse

Crime and Punishment , Econ. 101 , Politics - National
Hatched by Dafydd

Beebop, in the comments of Bill Bennett, Won't You Please Come Home?, called my attention to an article by Charles Murray linked at Real Clear Politics: "The Hallmark of the Underclass," from the Wall Street Journal's, Sunday, October 2, 2005.

It is a sobering article, even for those of us who haven't been drinking. Murray argues that Hurricane Katrina blew down the screens our society had erected to shield the "underclass" from view.

We haven't rediscovered poverty, we have rediscovered the underclass; the underclass has been growing during all the years that people were ignoring it, including the Clinton years; and the programs politicians tout as solutions are a mismatch for the people who constitute the problem.

What is the underclass? The Democrats like to portray all those currently in poverty as the underclass, undifferentiated between the deserving poor -- those who are temporarily poor because of bad luck, but who otherwise exemplify the virtues our society tries to inculcate -- and the undeserving poor, who are poor because of stupid choices they have made (and typically continue to make, over and over, until their miserable lives end in well-earned misery). But this is a tendentious (and tedious) class-warfare argument that Murray, of course, has no intention of perpetuating.

Charles Murray restricts the label "underclass" to the "looters and thugs," the "young men who grow up unsocialized and who, given the opportunity, commit crimes," the "young males who choose not to work," even when jobs are available, and the "inert women doing nothing to help themselves or their children. They are the underclass."

The underclass manifests as the "yeah, right, whatever" society (my quotation, not Murray's) who believe that life is pure destiny, though they would not have the words to describe it so concisely. They are not actors; they are passive elements that are acted upon by outside forces. Criminality is only one manifestation of the underclass; another is the complete lack of ambition or the mental connection between material comfort and holding a job:

Criminality is the most extreme manifestation of the unsocialized young male. Another is the proportion of young males who choose not to work. Among black males ages 20-24, for example, the percentage who were not working or looking for work when the first numbers were gathered in 1954 was 9%. That figure grew during the 1960s and 1970s, stabilizing at around 20% during the 1980s. The proportion rose again, reaching 30% in 1999, a year when employers were frantically seeking workers for every level of job. The dropout rate among young white males is lower, but has been increasing faster than among blacks.

Theodore Dalrymple, "a British doctor and writer... [who] now works in a British inner city hospital and a prison," published an entire book on the subject of the underclass: Life At the Bottom, © 2001, Ivan R. Dee Publisher. Dalrymple put his finger on the definition of the underclass, something which we urgently need to understand:

Nevertheless, patterns of behavior emerge -- in the case of the underclass, almost entirely self-destructive ones. Day after day I hear of the same violence, the same neglect and abuse of children, the same broken relationships, the same victimization by crime, the same nihilism, the same dumb despair. If everyone is a unique individual, how do patterns such as this emerge?

Dalrymple considers and rejects "economic determinism, of the vicious cycle-of-poverty variety," "genetic or racial determinism," and "the role of the welfare state." That last cause contributes and may even be a necessary precondition. Not even welfarism, however, makes the underclass inevitable.

What Dr. Dalrymple finally realized, after interviewing and treating literally thousands upon thousands of patients, is that the universal defining characteristic of the underclass is an idea: the utter lack of responsibility for their own lives. They all believe themselves to be helpless victims of forces beyond their control. It's immaterial whether those forces are economic, occult, or medical; it is the collapse of free will that sends a man or woman spiraling into the underclass.

The contrary idea [that we lack free will], however, has been endlessly propagated by intellectuals and acaemics who do not believe it of themselves, of course, but only of others less fortunately placed than themselves. In this there is a considerable element of condescension: that some people do not measure up fully to the status of human. The extension of the term "addiction," for example, to cover any undesirable but nonetheless gratifying behavior that is repeated, is one example of denial of personal agency that has swiftly percolated downward from academe....

In fact most of the social pathology exhibited by the underclass has its origin in ideas that have filtered down from the intelligentsia. Of nothing is this more true than the system of sexual relations that now prevails in the underclass, with the result that 70 percent of the births in my hospital are now illegitimate (a figure that would approach 100 percent if it were not for the presence in the area of a large number of immigrants from the Indian subcontinent).

In yet another brick in the wall of evidence that the underclass is growing to devour an ever-larger segment of society, Drudge linked an article from the Associated Press: Marriage On the Rocks in Britain.

Marriage is on the rocks in Britain, with the proportion of unmarried people set to exceed that of married people within 25 years as more men and women opt to live together without constraints, according to government statistics published this week.

The proportion of married men is expected to fall from 53 percent in 2003 to 42 percent in 2031, while the percentage of married women will decline from 50 percent to 40 percent, Britain's Office for National Statistics predicted Thursday.

The "Population Trends" report predicted on the other hand that the number of unmarried couples living together will almost double from two million in 2003 to 3.8 million in 2031.

We each have anecdotes that bring home the shock of the growing underclass -- including those rich in material wealth but impoverished of moral courage. My wife, Sachi, took a class in ethics at university some years ago; the students were asked what they would do if they discovered their best friend at work had been embezzling funds from his employer for months. Out of a class of forty-five students, exactly two said they would turn their friend in... by coincidence (perhaps), the only two girls in the class. (It was a class for engineering students only.)

When Sachi said that of course she would turn in the thief, that she could never remain friends with a person who could do such a thing, one of her male classmates sniggered "that's just like a woman!" He almost lost some teeth -- Sachi was furious.

Charles Murray gloomily notes (he was born with a dark thundercloud over his head) that none of the legislation proposed in the wake of Katrina stands even a chance of truely changing the mindset of the underclass. They will help the deserving poor, of course; but the deserving poor hardly even need help: with a mindset that a man is responsible for his own life, virtually nothing short of death can keep him down.

One might argue that by definition, only the deserving poor "deserve" to be helped. But reforming the underclass is not an act of altruism, which I find repugnant. Altruism is selflessness in the sense Ayn Rand used the term, the complete negation of self: a true altruist will take food from the mouth of his own starving child to give to another man's child.

Reforming the underclass -- ripping from their brains, root and branch, this crazed idea that somebody or something else is really to blame for the calamities the befall them -- is rather a life-and-death necessity for society. For even if we're willing to write off as "subhuman" the tens of millions of human beings in the underclass, without any concern for what will happen to them; even if we have icewater coursing through our veins; there is still the cancerous effect of such dreadful memes: they grow and metastasize through the body politic, infecting the young at all levels of society. As Dalrymple writes,

Worse still, cultural relativism spreads all too easily. The tastes, conduct, and mores of the underclass are seeping up the social scale with astonishing rapidity.... Never before has there been so much downward cultural aspiration.

Murray characteristically despairs that anything can or will be done. "Five years from now," he concludes, "the official evaluations will report that there were no statistically significant differences between the subsequent lives of people who got the government help and the lives of people in a control group. Newspapers will not carry that story, because no one will be interested any longer."

Murray's implication is that we are destined to tailspin inevitably down into a smoking hole; but this is flatly wrong. There is much we can do... but first we must shake not only the passivity induced by underclass-style disconnect between actions and consequences but also Murray's passivity of despair, cultural malaise, and gloom. What is most urgently needed to avoid losing yet another generation to the underclass mentality is not massive piles of money, nor smaller classrooms, nor better pedagogies, nor unions, nor governments, nor even homeschooling, though any of these can help along a program founded upon the proper strategy.

What we need more than anything else is to admit, first to ourselves and then to our children, that our own cultural virtues are worth learning and passing along. That there really is a right and wrong path; that evil exists, but so does good; that every person is absolutely responsible for the direction of his or her life. We need to teach that stealing is wrong; cheating is wrong; lying is wrong, wrong, wrong.

Those who say "there are no right or wrong answers" are colossally foolish. That still, small voice is not just a "Jiminy Cricket" to be crushed underfoot but a moral compass telling you that what you are doing is wrong. There are civil institutions -- police, military, religious, judicial, service organizations, and especially youth groups such as the Boy Scouts and the Girl Scouts -- that are worth preserving, not destroying. That voting may be a right, but voting intelligently is a duty. That children are for marriage, and that parenthood is for life. That sobriety is vital, while intoxication is toxic.

In other words, we need once again to begin teaching Civics to the young. It was stupid to stop in the first place... another brainy scheme from eggheaded intellectuals who never see the connection between ideas and their natural consequences. We need to begin teaching civics and requiring a passing grade in order to advance and graduate. And we need, above all else, to teach personal responsibility and accountability: as "Red" Foreman said in the only great line I ever heard on the TV series That 70s Show, "son, bad things happen to you because you're a dumbass."

The final collapse of society is not inevitable; it is, in fact, thoroughly evitable.

We didn't get to the edge of this cliff overnight; and it will take at least a generation to back away from the abyss. But two generations have already passed since Sen. Daniel Patrick Moynihan published his 1965 report for the Department of Labor, The Negro Family: the Case for National Action, warning of the impending dangers of fatherlessness, illegitimacy, divorce, and welfare dependency. Two lost generations.

If we allow another twenty years to pass, it will be three lost generations. The alarm is ringing; it is time to wake up.

Hatched by Dafydd on this day, October 3, 2005, at the time of 4:36 AM | Comments (16) | TrackBack

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