31 December 2003           
Ken Lammers

The Year in Review - The Blawg:

By glancing thru the blawg I realized that the image one would probably get of me is that I was an Army interrogator who was taught Arabic during my enlistment. Since leaving the Army I have apparently become a cross between Aquinas and Rehnquist with shades of Ming the Merciless. And, to top it all off, I have problems convincing my dogs that the couch is actually mine. There's probably more to me than that but nothing important comes to mind.

Other matters which have made it onto my blawg:

There have been a couple discussions as to the ethical duties of defense attorneys here and here.

Attempts have been made here to show how a courtroom actually works including a list of the rules which govern the entire system, how clients will often react even if they are innocent, how a rural court works, and the unofficial rules of federal practice in Virginia.

Certain issues have made it onto this blawg with strong reaction (politicians striving to send working class men to jail to gain favor with prohibitionists), others have just amazed me (no mens rea required in Virginia - if the police knock on your door you better sprint to open it - the (re)creation of an old form of contempt to get around the statute - the assumption of a non-existent statute so that a trial court can be upheld), at least one issue lends itself to a simmering contempt for a system which is willing to live the lie (although I offer a solution here), and this just disturbed me.

And of course, the Kringle Affair continues . . .
Ken Lammers

It sure is annoying when one of those pesky juries refuses to affirm your predisposition.
Ken Lammers

My first reaction to this was a string of curses. These people are scum.

And they're weird too.

Pointed out by Lex Communis.


Look, everyone is entitled to their opinion but that is beyond the pale. These are soldiers who have gone off and put their lives in danger by the direction of your Republic. If you want to make an ass of yourself go photoshop a picture of Bush, Rumsfield, Daschle, Gephardt or some other politician who bears responsibility:
B: [F]or we know enough, if we know we are the kings subjects: if his cause be wrong, our obedience to the king wipes the crime of it out of us.

W: But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection.
Ken Lammers

Any nominations for which blawg entry I might submit for this?
Ken Lammers

This one's for you -

Pursuant to content request from a certain individual, I still won't directly link to those sorts of pictures, however, here's a blog discussing a legal issue and linking to some very interesting evidence.
Ken Lammers

If you admit to your cellmate that you killed "a girl" it doesn't mean you killed the girl the prosecution wants to convict you of killing.
Ken Lammers

In Uzbekistan the government is trying to eliminate the death penalty for aggression and genocide. The Muslim press comments:
In our opinion by removing two articles from criminal code Uzbek government purposes two objects. Firstly, those ones who govern today's ruthless Uzbeki regime are going to win the respect of international community claiming "we do our best to introduce a moratorium". Secondly and in the main, Karimov-led herd of lawbreakers realize that one day they might be sentenced to death and consequently they are highly concerned about escapement at any price. In spite of the fact that Islam Karimov had time to murder some hundred Uzbeki Muslims today the world is already aware of continued genocide and violence committed at the head of Uzbek president.
And then follow the Suras and comparisons to Pharaoh.
Ken Lammers

Will the Governator stop offering rewards for them there bad guys?
Ken Lammers

The death penalty - It's a Southern thing, you wouldn't understand.
Ken Lammers

Using software to age a picture in order to catch to catch a suspect from 1989.
30 December 2003           
Ken Lammers

Death Cases:

(1) In Georgia the availability of life without parole is perceived as the reason for the decline of death sentences.

(2) Rochester, New York has had a spike in murders.

(3) Whether the drugs which are administered to kill convicts hide the pain of the person as his heart seizes has become one of the latest attacks on the death penalty.

(4) In China it just doesn't pay to be a corrupt government official anymore:
"In the face of irrefutable evidence, he indulged in sophistry in every possible way and refused to admit guilt," Xinhua News Agency quoted the court as saying. "His attitude was disgusting and he was severely punished in accordance with the law."
Ken Lammers

Whatdoyaknow - Being arrested and booked is not a life-affirming, ego boosting, enjoyable experience. And prisons don't smell good. And handcuffs are put on tight enough to bruise.
Ken Lammers

Citizens Step Up

That most pesky of democratic institutions stands up to Russia's top intelligence agency and finds a professor not guilty of espionage.
29 December 2003           
Ken Lammers

You like me, you really like me!

(or at least you like my blawg)


Another Greedy Clerk ranks this blawg in his top 5 (5th place). But, lest my ego grow too large, this gentleperson places not my blawg in the best of the best.
Ken Lammers

What do you do if you forgot you had your pocket knife with you when you walked into the courthouse? Here are the solutions for Roanoke, Virginia: throw it away or hide it outside the courthouse.
Ken Lammers

If you kill seven women you'd better be really dumb.
Ken Lammers

O.K. this is not what anti-terrorism statutes are meant to protect us from. This guy should be buried under a hefty stack of charges but terrorism just ain't one of 'em.
Ken Lammers

???? Convicting Two People of the Same Act is Legal ????
For prosecutors to seek and win convictions against two defendants in a crime, knowing only one of them can be guilty, is dismaying, dishonorable and maybe "outright deplorable.''

But it's not illegal, at least not according to the Ninth U.S. Circuit Court of Appeals in San Francisco.

In a 2-1 ruling Monday, the court upheld a 16-month increase in Jonathan Shaw's prison sentence for a 1995 restaurant robbery in Fairfield, based on the jury's conclusion that he held a gun to the restaurant manager's head.

In a separate trial more than two years later, prosecuted by the same Solano County district attorney's office, another jury found that a second participant in the robbery, Mango Watts, was the one who held the gun to the manager's head, a finding that added 10 years to Watts' sentence. That jury was unaware of Shaw's verdict.

Like other courts that have reviewed the case, the appeals court said only one of the two men could have wielded the gun, but no law prohibits prosecutors from making inconsistent arguments to different juries, as long as they don't falsify the evidence.
The same prosecutor makes deliberately inconsistent arguments to two different juries in order to achieve a purposefully conflicting result and that's not a clear violation of somebody's due process? Personally, I'd prefer to be the guy appealing the second Defendant's case because it would seem impossible to prove beyond a reasonable doubt that one Defendant did something which another Defendant had been found guilty of beyond a reasonable doubt and for which only one Defendant could be held responsible1.

1 I don't see any indications of arguments about principles or accessories being made here - must not be viable under California law.
Ken Lammers

Kinda strange -

In California the Union and the Dept. of Corrections are in conflict over whether prisoners can be taught while in their cells or whether they must wait until they get to a facility which has classrooms. And it's the teachers who want to delay teaching.
28 December 2003           
Ken Lammers

In the U.S. organized crime deals with drugs, prostitution, theft, etc. In Israel it deals with hotdog vending.

Dang, those must be some hellacious hotdogs.
Ken Lammers

You like me, you really like me!

(or at least you like my blawg)

Over at the Greedy Clerks Board this blawg has been listed as 3d favorite blawg and 4th favorite blawg. Wow, somebody is really reading my random musings.

Thanks to SA for the pointer.
Ken Lammers

In the Florida wrestling death, the prosecutors have offered a plea which will let the kid out of detention after a few more months. Bad press over sending a 12 year old to prison for life can have an amazing effect.
Ken Lammers

Death - Trends:

(1) Here's an article arguing that support for the death penalty has dropped in the U.S. to somewhere between 50-64%:
If you are going to commit a murder, you might want to pick your spots. "The practice of the death penalty became more isolated in 2003," the report says. "Only three states outside of the South conducted executions in 2003: Indiana, Missouri and Ohio. Three states in the South, Texas, Oklahoma and North Carolina, accounted for 69 percent of the executions in 2003. All together, the South was responsible for 89 percent of the executions this year."

(2) Despite being opined incompetent by two psychologists and a psychiatrist a man is allowed to waive the appeal after he has been sentenced to death. The author urges abolition as the only way to stop such injustices. And here's a knee jerk letter to the editor in reply.

(3) Meanwhile, in Maryland legislators plan to increase the breadth of the death penalty statutes.

(4) Meanwhile, in Massachusetts (a State with no death penalty statute), a man is sentenced to death in the federal court.

(5) Judge John Gleeson, pro-prosecution judge, fires a broadside at Ashcroft's policy of forcing prosecutors to pursue the death penalty after they have recommended against it.

(6) New York's SUpreme Court refuses to allow people to killed by the State.

(7) Illinois is willing to pay $300,000 per in order to be able to kill Defendants. How dare those evil Defense attorneys actually spend money in trying to defend someone the State is trying to kill.

(8) Are people becoming skeptical about the death penalty?

(9) An lawyer-author and and policeman-author both address the death penalty.
Ken Lammers

Death - The Green River Killer:

(1) The prosecutor's office is being challenged in lesser cases wherein it chose to ask for the death penalty because of the fundamental unfairness of letting the Green River serial murderer live while trying to kill someone else for a single murder.

This is interesting:
King County prosecutors responded with their own motion Friday and said the Ridgway decision has little bearing on the Champion case. They argued the Superior Court does not have the legal authority to address the fairness issue. It should be a matter for the state Supreme Court to decide, they said.
Ummm . . . the trial judge doesn't have the authority to decide a legal issue bearing on the trial? Since when? As I understand the way most court systems work the trial judge decides and the appellate judges / justices review. Of course, I guess the Supreme Court of Washington could have original jurisdiction but it seems unlikely.

(2) And the prosecutor again offers not to try to kill the Green River murderer if he confesses to some more murders.
Ken Lammers

Faith Based Prisons?

There's been a lot of talk about this on various blawgs (see Crescat Sententia and Southern Appeal - they link to the others).

Hmmm . . .

Well, religious scamming is a full time sport among a lot of prisoners. I suspect this will probably be the most scammed program in the prison system.

Ken Lammers

In Nevada a jury can use information not in evidence as long as a juror had the information when he walked in the courthouse and didn't look it up during the trial.
27 December 2003           
Ken Lammers

Lammers Law Office Bulletin
Kris Kringle Arrested

Yesterday, in the County of Arrestafield, Virginia Detective Bluemart and a crack squad of Arrestafield officers swore out a warrant and arrested a man suspected of breaking and entering numerous dwelling houses of others, at night, with the intent to commit a felony therein. Apparently, the man had been under suspicion for a number of years but this is the first year that a "credible" witness has stepped forward.

The witness is a minor so we at the Lammers Law Office will not reveal her name. However, upon being appointed as counsel we have investigated her story and found enough incongruities that we believe the arrest unfounded in fact and law.

Initial news reports indicated that pressure from Homeland Security was a major factor in this arrest as the Accused is not an American citizen. However, the head of Homeland Security's new Yuletide Defense Section, Ben Scrooge, denied this calling it a bunch of "Humbug."

(stock photo from Mr. Scrooge's corporation - no government photo available)

Arrestafield police released this artist rendering of the method by which they allege Mr. Kringle entered houses. When reporters confronted him with the obvious impossibilities of a man of Mr. Kringle's girth entering houses via fireplaces Detective Bluemart insisted that Mr. Kringle is a very dangerous fellow: "Mr. Kringle is an accomplished second story man who has managed to enter houses of all sorts throughout many years without a trace of how he has entered. The only confirmed method is the one depicted. Furthermore, Mr. Kringle is an international operator. We have traced his activities in multiple countries; this has not been easy because he has numerous AKA's depending upon which part of the world he is in: Kris Kringle, Santa Claus, Papa Noel, Saint Nicholas, Father Christmas, etc. As well, when questioned Mr. Kringle freely admitted to entering almost all the houses in Arrestafield County on the night in question. When I drove him around we couldn't go 50 feet without him pointing out another house he had entered. He also showed a disturbing amount of knowledge about the children of the County and was even able to list off all the children who had been involved in criminal activities in the last year."

We Need Your Help

Our investigation has uncovered some interesting facts which we believe law enforcement is sitting on. We believe that whoever the actual culprit is he acted with one co-defendant (pictured left). Be very, very careful if you spot this creature as we suspect it might be a jackelope and could turn out to be extremely dangerous if cornered. Your best course of action would probably be to send us an e-mail and track him until we arrive.

After having investigated the description of the actual perpetrator, we at the Lammers Law Office are very interested in speaking to this individual. He is almost an exact match of the description and (as you can see) he fits easily into tubes such as a garbage can (or a chimney). Known primarily by the moniker, "The Grouch," we believe it may have been the goal of this person to steal Christmas. We have a partial address but have not been able to go further than a street name. If anyone knows what city or State this "Grouch Who Stole Christmas" lives in we would be extremely grateful for your assistance in this matter.

As always, we at the Lammers Law Office look forward to the complete exoneration of our client and will make every effort in the defense of this wonderful man.
Ken Lammers

Dang! Another list of top blogs I didn't make.
26 December 2003           
Ken Lammers

Very Strange. I got spam from Bolivia today telling me that Bush had resigned?!?

If he has Fox and CNN are keeping awful quiet about it.
24 December 2003           
Ken Lammers

Look, I bring you news of great joy, a joy to be shared by the whole people.

Today in the town of David a Saviour has been born to you;

He is Christ the Lord.

Happy Christmas everyone. I'm down until 28 December 2003 anno Domini.
Ken Lammers


The Yin Blog and The Curmudgeonly Clerk both have had recent posts on procedural "technicalities."

Generally, I agree with everything they have stated. However, they have inspired me to go off on my own tangent.

I must point out that - at least from my Virginian Defense attorney perspective - that "technicalities" almost always favor the prosecution and no one is upset when that occurs. If you don't believe it go and read any local legal publication which summarizes the decisions of your court of appeals. Invariably there are cases decided in the prosecution's favor because of procedural issues. Most often it seems the procedural error relied upon by the appellate court is that the error was not properly preserved - put another way, the argument in the court of appeals does not mirror the argument made in the trial court.

Example 1: Virginia Code secs. 19.2-11.01 and 19.2-265.01 purport to give a victim the "right" to stay in the courtroom even if witnesses are excluded "unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial." 19.2-265.01. Now, as I read that it means if a victim is not to be called as a witness he can stay in the courtroom; it could also possibly mean that if the victim is going to testify as to what happened on Monday and all the other witnesses are going to testify to entirely unrelated matters which occurred on Thursday then the victim can remain. However, some trial courts have read these statutes to mean that short of an affirmative showing of impairment by the Defense (an impossible standard to show pretrial) the victim stays in the courtroom. Anyone with a drop of sense can see how that interpretation is dead in the water as soon as it runs up against that pesky old federal constitution. The statute is darn near undefendable under the 14th Amendment due process right and the 6th Amendment right to a confrontation which is untainted.

And you know what? Our Court of Appeals has more than a drop of sense. This statute has been challenged twice. Both times, rather than address the unconstitutional application of the statute the court found a way to deny the appeal based upon procedural technicality. The first time the challenge was turned away because
At trial, appellant argued that until the evidence established that a person was a victim, the alleged victim stood in the same position as any other witness in the case and should be excluded from the courtroom. Appellant never argued that his due process right was violated. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.
[U] Hague v. Commonwealth, (No. 1274-99-2, 23 May 2000)(citations omitted).
The second time the challenge was turned away because
On appeal, the defendant contends the trial court erred in failing to exclude Chesnut from the courtroom pursuant to Code § 19.2-265.1. He argues the statute requires the exclusion of all witnesses, including victim witnesses, and that the victims' rights statute, Code § 19.2-265.01, is inapplicable. This argument is different from, and actually conflicts with, the argument he raised at trial: that Chesnut should be excluded under Code § 19.2-265.01, the victims' rights statute, because his presence would impair the trial. Nothing in the defendant's argument at trial indicated that he thought the general statute, Code § 19.2-265.1, controlled rather than the specific statute, Code § 19.2-265.01, dealing with victims.

Though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court. We will not consider an argument on appeal which was not presented to the trial court.
[U] Woodell v. Commonwealth, (No. 2241-00-3, 05 Mar 2002)(citations omitted).
Example 2:

First: NCIC records are spit out by machines in the prosecutors' office (and I assume the police station). They are not kept in the clerk's office and can in no way be certified by the clerk as "judicial records" under the hearsay exception provided by Va Code sec. 8.01-389.

: NCIC records are hearsay and notoriously subject to inaccuracies. I have sat in a prosecutor's office reading a record which says my client - arrested two weeks before the meeting - had been found guilty of murder and locked away for life ten years prior. I've had police go to the wrong part of the Commonwealth to arrest someone who shared the same name as my client because they thought that person was the one the NCIC applied to. I've had a client accused of being a felon in possession of a firearm because NCIC showed him as having committed a felony when the Navy had him deployed overseas. And any number of times I've had the NCIC show a disposition for a case which, when we got ahold of the actual court records, had been dismissed or reduced to a lesser offense.

Third: There is no statute allowing NCIC reports to prove a Defendant's record - at least none I know of.

Fourth: To prove a felony petit larceny in Virginia the prosecution must prove that two prior larceny (or similar) convictions have been entered against the Defendant.

During a trial for felony petit larceny the prosecution attempts to enter the NCIC report into evidence to prove the prior convictions:
At trial, Investigator Kristie Siron of the Staunton Police Department testified that the felony theft charges were based on Argenbright's record of prior convictions for similar offenses. When shown a copy of a computer printout of Argenbright's NCIC record by the Commonwealth, Investigator Siron identified the printout as appellant's criminal record. The Commonwealth then offered the printout into evidence. Argenbright objected and the following exchange took place:
MR. BOBBITT [Defense Attorney]: Your Honor, I'm going to object to the--this printout, I mean I would think that there ought to be copies of the--of the-- certified copies of the conviction if they are going to establish that he was convicted.
MR. ROBERTSON [Commonwealth's Attorney]: Judge, there is a statute that allows the record to come in.
JUDGE: Isn't that true Mr. Bobbitt?
MR. BOBBITT: I think he's probably right, but I'm not sure about that so I'm--I'm going to object to it.
JUDGE: I'm going to admit it, it's Commonwealth's One.

The trial court relied on the information contained in the NCIC record to prove the prior convictions required under Code § 18.2-104 to convict Argenbright on thirteen out of eighteen felony charges of obtaining money by false pretenses under Code § 18.2-178. The court subsequently sentenced him to the penitentiary for ten years, with seven years suspended. Argenbright appeals the thirteen convictions elevated to felonies pursuant to Code § 18.2-104.


The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.

Both at trial and on appeal, Argenbright argued that only certified copies of court records of his previous convictions were admissible to prove the prior convictions necessary to convict him pursuant to Code § 18.2-104. While he objected when the Commonwealth sought to admit the printout of the NCIC report, his sole argument was that only certified copies of the convictions were admissible for that purpose.

Argenbright argues for the first time on appeal that the trial court erred by admitting the printout without proper certification pursuant to the Code § 8.01-389, the judicial records exception to the hearsay rule. We will not review on appeal a specific argument not raised before the trial court absent a showing of good cause or as necessary to attain the ends of justice.

. . .

When Argenbright objected to the offer of the printout of the NCIC report into evidence, the Commonwealth asserted that there was "a statute" that permits the NCIC report to be admitted into evidence. In response, the court stated that it also thought a statute permitted the admissibility of the NCIC report as evidence, and asked if Argenbright agreed. He responded that he agreed that the Commonwealth was "probably right but I'm not sure about that so I'm--I'm going to object to it." Argenbright articulated no other grounds to the trial court as to why the NCIC report should not have been admitted into evidence. Neither the trial court nor the Commonwealth's attorney identified the statute "that allows the record to come in." On appeal we will not speculate on which statute the court may have relied.

Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the judge knew and correctly applied the law. Argenbright argued that the evidence was inadmissible solely because the NCIC printout was not a certified copy of the court record of his prior convictions. He did not object that the NCIC report was not accurate or that it contained erroneous information. Finally, Argenbright did not object to the NCIC report as inadmissible hearsay or that it had not been properly authenticated. Neither did he object on the grounds of lack of adequate foundation. His failure to raise these objections to the trial court constituted a waiver of these objections. We will not consider them for the first time on appeal.
Argenbright v. Commonwealth, (3282-02-3, 25 Nov 2003)(citations omitted)(emphasis added)
While inartfully argued, the practical reality is that the only records which can be introduced are certified copies of prior convictions. NCIC records are hearsay and cannot be certified as judicial records since they are not in the clerk's office. The Defense attorney clearly has an objection that the convictions are not being proven by the one truly possible manner. The prosecutor and judge try to push him off of that objection; he bends but doesn't break - he maintains his objection. And still, his argument is found technically inadequate. The Court of Appeals has to go pretty far to find it technically inadequate but they do (when's the last time you've seen an appellate court assume a fictitious statute in order to make its decision make sense?).

Why? Why, you ask, do the Defense attorneys not make rock solid, coherent, cogent arguments to preserve their objection? Well, it's because the arguments are made off the cuff. Often it's an argument on a statute / rule which both the prosecutor and judge are disagreeing with you about, with no notice that you are going to have to argue about that particular legal point, and you must make sure you do it well enough that an appellate judge and his clerk with as much time as they wish to take cannot find some angle to throw it out. It's dang near impossible to preserve an error mid- trial if the appellate court really wants to throw it out on procedural grounds.
23 December 2003           
Ken Lammers

Tony, over at Oriental Redneck, pointed this article out to me.

Patrick was a 14 year old honor student, who had no prior record. Along with an "of age" kid, he broke into a boatyard to steal a radio. When they saw a video camera the kids made a mistake of gargantuan proportions. In an attempt to destroy evidence they burnt the boatyard down. And the feds brought the wrath of God down on the kid's head.

Why? Because a boat engine at the shipyard belonged to 41. There are statements about the case being undertaken in federal court because the evidence looked weak when the State "asked" the feds to step in and devote their more considerable resources to it and because arson is a crime of violence. However, the article makes it pretty clear that all the substantial evidence was already in hand when the case was "given" to the feds. And, hmmm . . . I know I've never heard a juvenile court judge whine, "I just can't handle this case because there's violence involved."

The State and feds seem to have concurrent jurisdiction here if I remember my conlaw correctly (navigable water=connection to interstate commerce) but it seems to me that this is a case where the proper exercise of prosecutorial discretion would have been to allow the fully developed State juvenile system handle the situation. Instead:
He was given the maximum sentence allowed: 30 months incarceration, followed by 27 months of probation. He was then sent to a maximum security juvenile facility in Pennsylvania on the order of the federal Bureau of Prisons.
. . .
Patrick is being kept at the Cresson Secure Treatment Center in the central part of [Pennsylvania].

Cresson is for the most serious juvenile offenders in Pennsylvania who have proved disruptive in other facilities. Patrick is now housed in a wing where the other inmates are all mentally ill or mentally retarded.
. . .
[T]he education he is receiving . . consists of Patrick's volunteering to tutor the other boys in reading or arithmetic.

Federal law requires that juveniles convicted in federal court be provided with proper education, and that "whenever possible" they should be kept in a facility "located in or near" their home. Cresson is 570 miles from his home.
Personal observation: This case brings to mind an article in a recent edition of the Virginia Lawyers Weekly. Written by a federal judge, it basically said the worm has turned and urged Defense attorneys to fight their cases through. The logic seems to be that the obnoxious guidelines combined with the fact that more and more trivial criminal matters are being brought in federal court has brought disfavor upon the prosecutors1. Personally, I cannot confirm or deny this because these pieces were already in play when I started watching the federal courts but I can say that prosecutors seem to get far more deference in the State courts wherein I practice.

This matter seems to be a case study in exactly the kind of case which shouldn't have been brought in federal court. Putting a 14 year old in a detention home should be a last resort (although, in this case a couple months over a summer might have scared some sense into the kid) and 30 months is basically writing the kid off. He may be a honor student now but, even if he's put in a good juvenile facility, by the time he gets out his education will be far behind those of his age. And if he remains in the place he's at now he will have spent almost three years learning to survive among the youths with whom your worst nightmares are populated. Chances of recovering from this are almost nil (and I say almost because there is always hope for some miracle). How does this serve either society or the youth?

Also check out the post on this issue at Is That Legal?

1 Caution - it's been a while since I read the article so I'm paraphrasing as best I can remember. Some of this may have come from discussing the article with other Defense attorneys.
Ken Lammers

Martha Inc:

Six days to screen jurors? Typically, I get about 15 minutes. I'm not even sure exactly what I could do with six days.

Day one, hour one: Read the available information.

Hours two thru three: Meet with my overpaid jury consultants (good gracious how I'd love to have overpaid jury consultants).

Hour four: Shoo the overpaid jury consultants out of my office - or better yet, go to lunch with the head jury consultant so that lunch at Chez Expensive gets charged to Martha Inc.

Hour five: Talk with co-counsel (or if desperate associates) about the jurors and recommendations from overpaid jury consultants.

Hour six: Mark all the people off the jury that I don't want on it (probably the same ones I would have done in 15 minutes).

Hour seven: review to make sure I didn't make any mistakes.

I can almost stretch it out to a whole day if I try real hard. Of course, I come from the realm of flat fees so I've not perfected the skill of hourly billing. If I worked at mega-downtown firm maybe I could stretch over a few days so that I could increase my billable hours.
Ken Lammers

Found at Stop the Bleating! is a forward to an article about a Brooklyn officer who thought he could confess to malfeasance on the internet and remain anonymous:
In railing against an unspoken traffic ticket quota he says that officers must meet -- 10 tickets per week, he contends -- he writes: "The new commanding officer of the precinct is pressuring us to write more and more tickets. We were officially told NOT to write anymore tickets for headlights and taillights. Most people fix the problem within 24 hours and the ticket would be admonished therefore the City of New York makes no money in the end.

"So I have come up with a better way of writing tickets. I just write down the plates of the cars that cut me off the the (sic) parkways and I send them a bogus parking ticket in the mail. The person will then have to deal with the Parking Violations Bureau and not me. Problem quickly resolved. So, in other words, be careful who you cut off on the road. They might be an off duty cop and they could write your plates down and write you a $150 parking ticket. Have a nice day."

A police source said Internal Affairs investigators are reviewing all tickets written by the officer.
No, really, they're checking on an officer who admitted to illegal activity?
Ken Lammers

Malvo Sentenced to Life
When the jury came back at 4 p.m., the foreman handed the judge only the verdict on the terrorism charge. Circuit Judge Jane Marum Roush sent jurors back to the jury room to fill out the other form. But they had not circled the verdict on the form, and the jurors were sent back to the jury room for a second time. Seconds later, they returned with the verdict. The jury then came back at 4:10 p.m. and handed the second verdict form to Roush.

The sentence is a stunning win for Malvo's defense team, which focused its efforts throughout the trial on saving the teen-ager's life rather than proving his innocence.
The prosecution is giving his reasons for the verdict:
Prosecutor Robert F. Horan Jr. said afterward that Malvo was ``very lucky that he looks a lot younger than he is.'' And he suggested the timing of the deliberations just days before Christmas affected the jury.

``We used to have a theory when I was a very young prosecutor that whatever you do, don't try one on Christmas week,'' Horan said.
I guess sometimes - even when you choose the most likely jurisdiction, in the most likely State - little glitches occur in your attempt to make sure someone gets killed. General Ashcroft, on behalf of the Bar of the Commonwealth of Virginia, I'd like to introduce you to Mr. Craig Cooley.

(2) Malvo's parents express gratitude to the jury.

(3) Family members and victims reacted:
Victoria Buchanan Snyder, brother of Sonny Buchanan, one of the 10 dead, said "I cannot say I am not disappointed, because I am disappointed." "There cannot be another case more deserving of the death penalty," she went on, but concluded: "I respect the jury's decision."

Paul Laruffa who was wounded by a bullet shot said failure to give Malvo the death penalty "minimizes what this man did." "Was Malvo less guilty than Muhammed? I don't think so. They did exactly the same thing. That is why we are expressing our disappointment."

Vijay Walekar, the brother of taxi driver Premkumar Walekar, who was shot dead as he put petrol in his vehicle, said: "I am not happy with the verdict" and highlighted the risk that Malvo could escape and reoffend
(4) A reporter describes the courtroom as the sentence is revealed.

(5) A Richmond attorney, Steven Benjamin, discusses the sentence.
Ken Lammers

Malvo - Closing Arguments:

The prosecutor:
The faces of nine slain shooting victims flashed on the large courtroom screen, smiling at the jury that began considering the fate of sniper Lee Boyd Malvo on Monday.

One by one, Fairfax County Commonwealth's Attorney Robert F. Horan Jr. demanded justice. "We want justice for Sonny Buchanan," the veteran prosecutor gravely intoned. "We want justice for Premkumar Walekar. We want justice for Sarah Ramos. We want justice for Lori Lewis-Rivera . . . . "

He proceeded through a list of nine of the 10 people killed in three terror-filled weeks in the Washington area in fall 2002. "They have one thing in common," Horan said. "They're all dead, and they're all dead at the hands of this defendant. . . . There are prodigies among children. We see them in music, we see them in academics, we see them in athletics. And unfortunately, we also see prodigies in evil."

Horan argued that Malvo, 18, was the gunman not only in the shooting of FBI analyst Linda Franklin, with which he was convicted last week, but also in the five shootings that occurred on Oct. 3, 2002, the second day of the sniper rampage. "They started out by killing innocent people before they even told the government why they were doing it," Horan said of Malvo and John Allen Muhammad, who was convicted last month of masterminding the sniper killings. "If there is such a thing as vileness, that is vileness."

. . .

"Is the behavior of this defendant so outrageous that the penalty of death is called for? Is the behavior so outrageous?" Horan asked. "We submit, based on the evidence that is already before you, that the penalty of death is the appropriate verdict at this stage."
Mr. Cooley:
Defense lawyer Craig Cooley said in his closing that Malvo is not inherently evil but was shaped by those around him, particularly Muhammad.

"There's no such thing as a self-made man," Cooley said. "Lee was uniquely susceptible to becoming attached to a father figure in the charismatic personage of John Muhammad."

Cooley said Malvo was susceptible to Muhammad because of his father's absences and because his mother beat him and moved him constantly.

"Children are not born evil. When they commit evil acts, you can almost always trace the acts to the evil that has been performed against them," Cooley said.


"We live in a society that force-feeds violence on our children, on television and in movies and in video games," Mr. Cooley said. "We glorify vengeance and we glorify violent responses to violence."
. . .
Mr. Cooley asked jurors to consider their individual responsibility for imposing the death penalty, recalling that "in ancient times execution was a participatory activity." Jurors back then, he said, would stone the defendant to death and then retrieve their bloody weapons.

He walked to the counsel table and picked up a heavy stone, weighing it in his hand.

"Each of you must actively participate or, worse, acquiesce in that decision," Mr. Cooley said of the death penalty.

Mr. Cooley ended by standing over Mr. Malvo, placing a hand on his shoulder.

. . .

Mr. Cooley concluded his emotional closing argument with a plea for Mr. Malvo's life. "It's a test of our humanity to condemn the acts but love the child," he said. "The choice here for you today is not death or freedom. The choice here is whether to take a human life or to send this child to a lifetime in prison.

"Don't be swayed by the voices of vengeance and retribution," he added. "Hold on to your compassion."
The prosecution (always given the last word) rebutted:
Fairfax County Commonwealth’s Attorney Robert Horan Jr. told jurors their decision is not about retribution. “It’s not vengeance we’re asking for,’’ Horan said. “It’s justice. We want justice for a lot of people. We want justice for Sonny Buchanan. We want justice for Premkumar Walekar. We want justice for Sarah Ramos. We want justice for Lori Lewis-Rivera. We want justice for Pascal Charlot. We want justice for Dean Meyers, Kenneth Bridges, Linda Franklin, Conrad Johnson.

“They have one thing in common. All those people, they are dead. And they’re all dead at the hands of this defendant,’’ Horan said, pointing to Malvo.

(2) More analysis of why the insanity defense was attempted.
Ken Lammers

Republicans with a Heart: All you have to do to get a pardon is promise to leave the country and go where someone might shoot at you.

And all you Left of Center folks laughed at the idea of compassionate conservatives.
Ken Lammers

Y'know, this is just silly. The school should've handled this entirley in house.
22 December 2003           
Ken Lammers

Are the recent decisions of the courts about prisoners a sign that both liberal and conservative judges have become wary of the Bush administration?
Ken Lammers


(1) On Friday the prosecution called some effective witnesses in an attempt to emotionally bias the jury:
Lee Malvo's trial had been mostly devoid of emotional moments, but it turned gut-wrenching last week when the sentencing phase began. Jurors wept during testimony by relatives of some of the victims.

Vijay Walekar, who lost his brother, Premkumar Walekar, said his sister-in-law still cries every time he calls her.

"I have to keep reminding myself that my brother is no longer with us," Mr. Walekar said quietly.

Ms. Franklin's daughter, Katrina Hannum, said she "lost my whole family the day I lost my mother."

Myrtha Cinada, whose father, Pascal Charlot, was killed, avoided looking at Mr. Malvo until the end of her testimony.

Then, she turned toward him and told him: "You are evil. You're insane because you took my father's life. Because of you, he didn't have a chance to see his great-grandchild. That's insane of you to do. You're evil."
(2) The Defense called a couple witnesses for some minor rebuttal:
The vice principal of . . . York Castle High School in Jamaica, dissolved in tears on the stand as she described [Malvo's] nomadic childhood.

"We are all hurting so much for Lee ... because here was a brilliant mind. We were certain that Lee would have achieved excellence," said Esmie McLeod, who added that Malvo was moved several times by his family.

. . .

Jamaican pastor Lorenzo King, who baptized Malvo into the Seventh-day Adventist Church in 1999 at the age 14, testified that Malvo "appeared to be lonely. And he seemed to be searching for belonging. You could sense that in him."

"I have no doubt about the quality of his commitment. He was fully committed to the beliefs of the Seventh-day Adventist Church," King said. "On the evening he was baptized he walked approximately two miles bringing his clothes with him."
(3) Today Malvo's real father is going to come to the stand and beg for his son's life.

(4) An op-ed piece calling for Malvo's life to be spared.
Ken Lammers

Death - Trends:

While crime in general is declining, murder is rising somewhat both in the nation and in New York City.
Ken Lammers

Death - Texas:

Be Careful What You Wish For

Remember last week when Kevin Lee Zimmerman complained because the federal supreme court had stayed his death sentence?

The court lifted the stay.
Ken Lammers

Death - Illinois:

What will be the effect of Governor Ryan's charges on his actions with regard to the death penalty?
Ken Lammers

Death - New Jersey:

A bill calling for the re-examination of the death penalty has passed both the Senate and the Assembly by an overwhelming margin.
Ken Lammers

Death - Georgia:

The mother of a convicted killer urges the death penalty for her son.
Ken Lammers

Death - International:

(1) India's cabinet has decided that the death penalty is appropriate for the manufacture of fake drugs. Next the proposal goes to the parliament.

(2) Britain: After serving 23 years two men's sentences are overturned because the snitch was not reliable. Heck, if we started applying that standard in the States there's no telling how many prisoners we'd have to free.

(3) Mexico has taken the U.S. to the World Court over the death penalty being applied to Mexicans in the U.S.

(4) A letter to the editor in Bangladesh urging the retention of the death penalty.

(5) China: The Supreme People's Court has overruled a two year stay by the Liaoning Higher People's Court in a corruption case: "After a retrial of the Liu Yong case, the sentence is immediate death."
21 December 2003           
Ken Lammers

Line of Fire: The FBI v. the Mob in Richmond

I watched Line of Fire for the first time last week. I took the time to watch it because it is supposed to be taking place in Richmond. Things I noticed:

Nobody in the show speaks with a Virginia accent. One person speaks with a mountain accent but nobody sounds Virginian (hint to the producers - the key is in the way native Virginians pronounce their O's).

All crime is run by a syndicate in the Fan. Hmmm . . . Well, I guess it's possible . . . But why not set up in Bon Air, or Midlothian, or Brandermill, or the West End. Well, I guess you could run into honest police out in Chesterfield County or Henrico County (the show makes it very clear that Richmond's police are not so upstanding). So you could set up in Windsor Farms. It's in the city and you could run the syndicate out of one of the mansions during the week and on weekends hop over the river and hit a few balls at Willow Oaks.

Everybody's white. Yes, you read that correctly, Richmond has suddenly has suddenly had a massive change in demographics. There is nary a black face to be seen. Where did everybody go? Or maybe if you're a crime boss in Richmond you don't have to deal with Church Hill, Mosby Court, Broadrock, &cetera?

And I don't know what building it was but the building which was supposed to be Richmond's juvenile & domestic court was not the echo chamber which Richmond built on top of a trash dump and almost had to abandon because of the fumes.

And it goes on and on. Outside of all the things I noted because of the proximity to my locale, the storyline is typical and the show is adequate but not spectacular. I'll probably watch for a couple more weeks trying to see if I recognize anything Richmondlike about the show (it is obviously being filmed somewhere else). But I cannot recommend it to you fine people.
Ken Lammers

Police in the News:

(1) In Australia I guess voluntary intoxication is a defense. Senior Constable Francis Susan Hetherington was found not guilty of perverting the course of justice in a matter where she was too drunk to remember what she did.

(2) It looks like a grand jury investigation of Dallas County Sheriff Jim Bowles will go on at least until after the primary election.

(3) In the U.K. a policeman, Richard Jasper, took the stand to describe his confusion and anguish over being charged with rape; the jury found him not guilty.

(4) Somehow, I think being found not guilty probably didn't ease the pain of having been shot driving away from the officers.

(5) Horseback patrols around the perimeter of an airport.

(6) This is the reason that most officers (or just people who work in the courts in general) like to eat where they can see the food being made.
Ken Lammers

More flower police.
Ken Lammers

Chronicle of a fight to get someone charged with manslaughter for purposeful non-compliance which caused a young man's death.
Ken Lammers

This has got to wreak havoc on your political hopes. But, then again every politician has to have his Billy, doesn't he?
Ken Lammers

The Most Important Political Matter of Our Time

The Department of Transportation has cleared Santa Claus to travel through our airspace on the night of 24-25 December. Apparently, Norad has been tracking him for 40 years and perhaps with the heightened security the right jolly old elf thought he should be on the safe side this year. Of course, this is not the first time the U.S. government has worked hand in hand with Mr. Kringle. After all, who can forget the foiling of the 1974 plot by the Group of the Martyr Ebenezer Scrooge?

My only worry is that when I initially heard this announcement on the radio Transportation Secretary Norman Mineta stated that Santa was cleared to go from house to house to deliver toys (sorry can't find anyone on the web who directly quoted his speech). However, as I remember it there is a fair amount of coal involved here too. What happens if an AWAC spots a low flying craft with a large amount of combustible material nearing D.C.?1 Will some rocket jockey fly his F-16 down from the CAP and try to take Santa out? While I suspect that a vehicle which flies to millions upon millions of households in one night - including delivery and refueling times (milk and cookies) - has the speed and manueverability to make an F-16 look foolish I really don't want to take the chance that somebody gets off a lucky shot. I urge you all to write Secretary Mineta and urge him to amend his order immediately. Don't wait. There only a few precious days to get him to fix this.

1 I mean, think about it, where else could all the coal be going? If I was good enough to get the presents Santa left me as a kid you'd have to be pretty rotten to get coal. It's gotta be going to politicians. And I've even found proof:
Ken Lammers

Apparently, jurors are too nice for prosecutors during the Christmas season. On the other hand, there's always the possibility that some jurors who might have held out will convict so they can get out of the courthouse and back to shopping, baking, cleaning up before the relatives visit, etc.
20 December 2003           
Ken Lammers

Hunting Big Game:

Prosecutors are trying hard to get Rush Limbaugh's medical records. If his name was Bob Smith and he was a mid-level manager at IBM would this investigation be going on? Nope.

In the spirit of full disclosure, I must say that I am a fan. The local talk radio station carries 4 hosts whom I listen to as I drive around during the day. Rush is my favorite of the four. I don't always agree with him but he has a good show which is always interesting to listen to and usually attempts to reason things through.

Of the others I find Glenn Beck to be hit or miss but peppered with enough humor to keep it interesting. If you can find it his "Merry Christmas from the Nation Bar Association" bit is hilarious. I'm too cheap to subscribe to his site just to download it but it truly brightened my morning as I drove to court this week (the people in the car next to me must have thought I was a madman I was laughing so hard).

Michael Graham keeps me interested because he follows the local Richmond politics where there is plenty to pick at (what does it mean if the FBI hasn't arrested someone in the City government this week? The agents were on their Christmas break.). The only thing I don't care for is that sometimes he feels like he's taking a contrary position just to get an argument from callers.

And then there's Michael Savage. I only hear Savage while I'm driving home from the office at night (he comes on at 7 p.m.) and usually the channel gets switched to sports radio after 5-10 minutes. I just can't take it. The weird thing is that quite often he is advocating things which I believe in and he still manages to make me so mad that I can't listen any longer. That's hard to do.
Ken Lammers


If only people paid attention:

Today the winningest program in college football squared off against the winningest coach in college footbal for a national championship. And I'd bet good money that most people don't even know.

Last Saturday the Mount Union Raiders won their 55th game since their last loss and set the national record. The record it broke was 54 games set by the Mt. Union Raiders immediately prior to its last loss (that's a 109-1 record). It is a football machine which has won 6 of the last 7 national championships.

During this season the St. John Johnnies coach, John Gagliardi, won his 409th game and passed Coach Robinson to become the winningest coach in collegiate history. And he's done it in a manner which most coaches would think is absolutely insane: "He's outlawed methods that he detested while he was a player. There are no spring practices, no compulsory weightlifting program and no whistles used. Players call him John - the term "coach" has been banned. Practices are held to 90 minutes or less, and there are no blocking sleds or dummies, no tackling in practice and no pads at practice (players wear shorts or sweats). In Collegeville, Minnesota, they call his approach 'Winning with Nos.'"

The two teams played for the national championship in 2000 with the Raiders winning 10-7 on a field goal with one second on the clock.

Today these two teams met without a lot of hoopla and settled it on the field. Why didn't you hear about it? Because they are both Division III teams. In case you don't know, that means the kids play without athletic scholarships. They have to actually meet the school's criteria to get in, they have go to class, and they will go on to graduate school or jobs after they finish college - not the NFL.1

They met in Salem, Virginia, played an exciting game, left it all on the field and the winner was . . .

1 How does football balance against academics at a Div. III school? Here's a blurb from my undergrad: "[Centre College s]enior strong safety John Ortega was invited to the Aztec Bowl in Cancun, Mexico, an all-star game for NCAA Division III standouts, on Dec. 13 but declined to concentrate on his academics during finals week."
19 December 2003           
Ken Lammers

Southern Appeal has a new look. As a graduate of W&L Law I must voice my approval of the arrival of

Ken Lammers

Malvo Convicted

Just in case someone out there has had their head in the sand, Malvo was convicted yesterday. Not that it wasn't expected. Some of the jury undoubtedly did not find the Defense's theory credible and even those who did had little incentive to find the young man not guilty. I've heard the reason for this explained a couple different ways. One of the best was by a lawyer warning about the dangers of doing a death case in rural areas. He said that what you have to worry about is the "farmer mentality." If something goes wrong with one of your cows you get rid of it to save the others. You don't ask if it's the cows fault; you could care less about its mens rea. But, you say, Chesapeake is not exactly Iowa. Well, O.K., then look at it this way: animals who group together will often expel members who cause trouble for the pack/herd/tribe. We are not above this. How many lepers have been expelled from societies over the centuries? How many serfs thrown off the thane's land for not raising enough grain to pay his tribute? Or put in more modern terms, if Bob can't or won't keep up at the plant's assembly line how long before he is shunted into some meaningless side job or fired? Removal is an instinctive reaction meant to save the group as a whole. And, even assuming that the jurors knew that a finding of insanity means commitment, I think it's a safe assumption that someone probably heard about Hinckley running around unsupervised nowadays. The question now is whether the jury will excise the failed/dangerous member of society thru banishment or death.

Well, enough of my rambling here's some other Malvo stories:

(1) Reactions of victims' family members.

(2) Conjecture that the insanity defense will have set the stage for the Defense to keep the jury from approving the killing of Malvo.

(3) Malvo's doodling throughout the trial was constant. Now comes news that he was using a stab proof pencil. You know, we could have used a few of those in elementary school. Every kid I knew got stabbed by a pencil at least once. Of course we used to play "sword fight" with them so maybe we deserved what we got.

(4) A timeline of the shootings.
Ken Lammers

Here's What Happens When the Government Can't Keep "Enemy of the State" Cases in the 4th Circuit.

In a case which is decided properly, the 2d Circuit finds that a citizen cannot be designated an "enemy combatant" so that he can be held indefinitely and denied constitutionally recognized rights including access to an attorney and all the due process protections. Here's the majority opinion and here's the dissenting opinion.

In a case which just screams "I AM WRONG - OVERTURN ME!!!" the 9th Circuit rules that enemy prisoners of war have the same rights:
"We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."
As this is directly in conflict with a D.C. Circuit opinion it is ripe for the overturning.
Ken Lammers

Is That Legal hails the publication of a new law journal dedicated to criminal law.
Ken Lammers

Beware the Flower Police.
Ken Lammers

Proof positive that Canadians don't always live up to the stereotype of being inoffensive, nice-guys.
Ken Lammers

Governor George Ryan, famous (or infamous) render of death penalty laws, has been indicted for graft.

The Legal Reader has links.
18 December 2003           
Ken Lammers

CrimLaw Online:

Got a hit from this last night. I think it is someone's college project. Interesting.

Of course, I also got a hit from Yahoo on a search for (+"des moines" +"male escort" -gay) so my ego can't grow too large.

And over at Begging The Question my exploits have been cited as an example of why some folks have made good career choices.
Ken Lammers

Manslaughter & DUI:

When I finished my case today I stuck around to watch a trial on a misdemeanor DUI and a preliminary hearing for DUI Manslaughter.

The prosecutor was the only one to put on any evidence and it was basically this: The Officer testifies that he was told by Defendant that he and his Best Friend get off work early in the morning and go to get breakfast. They split a pitcher of beer over breakfast, then they hang out until lunch and split another pitcher of beer over lunch. Driving back from lunch Best Friend stands up in the Jeep and hangs on to the roll bar. Defendant has to hit his brakes because of the car in front of him and Best Friend is thrown forward out of the Jeep. Statements are allowed in despite the fact that the Defendant was being held in a police car when this particular Officer arrived on the scene, the Officer testified that Defendant was not free to leave, and the Officer never read the Defendant Miranda. The Officer testified that the Defendant was upset over the death of his friend when the Officer administered 4 sobriety tests. The first administered was the "heel to toe walk a line" test. Defendant tries to start two times and the Officer stops him to keep him from doing the test before he receives the complete instructions. Defendant then walks 9 steps forward and turns and walks six steps back. One of the first nine steps is not in a straight line but the rest of the test is perfect. Defendant then passed the hand dexterity test. Defendant then passed a number counting test. Defendant then passed an alphabet test. At this point, the Officer reads him the statement of implied consent and takes him to the station for a breath test. The test was a .08 BAC.1 The BAC analysis is admitted over Defense argument that there was no probable cause as is needed to require citizens to submit to the BAC test.

Another prosecution witness - driving in the car behind - says she saw Best Friend doing things to mess with Defendant as he is driving; then she sees Best Friend stand up in the Jeep, holding onto the roll bar. She allows her car to fall back some from the car because of what Best Friend is doing. Then she sees Best Friend disappear and the car brake and swerve to the right. She pulls over and tries to call 911 but police arrive before she can. She sees the Defendant sitting in the street cradling Best Friend (now dead) in his arms. On cross she testifies that Defendant was driving correctly, no swerving, no dodging in and out of traffic, not even speeding.

The prosecutor looked like he was in pain. It was obvious that someone higher up the food chain had handed him this dog to try and his own witnesses were making the Defendant look sober. The only true evidence of intoxication was one step out of 15 in the line walk. But he need not have worried. The judge found the Defendant guilty of DUI and certified the DUI-Manslaughter to the grand jury. How? I have no idea.

During the sentencing phase for the DUI, Best Friend's parents both testified that they did not want this case brought against Defendant and that he had suffered along with the family and they did not want him punished further. The judge gave the Defendant 30 days in jail.

All I kept thinking, throughout the entire hearing, was: Why in the world would the prosecution go forward on a case like this?

1 If you've done any work at all with DUI's you realize very quickly that no matter what the law says almost no one is inebriated at .08. Still it is the level at which you are presumed guilty under the law and the Commonwealth no longer has to prove its case beyond a reasonable doubt. I have read the sophistry and apologetics in the decisions of various courts appellate; please don't write me telling me I'm wrong about the burden shifting. If it walks like a duck and quacks like a duck, it's a duck.
17 December 2003           
Ken Lammers


The jury spent a day deliberating without any conclusion but it did have some requests:
The jurors asked several questions at the end of the day, including a request to again see the Chevrolet Caprice that Malvo and Muhammad allegedly used during last year's deadly shooting spree in the Washington, D.C., area. The car had a modified back seat that could lift up and allow access to the trunk.

Circuit Judge Jane Marum Roush denied the request, saying "we really don't want the jurors pawing through" the car.

The jury also asked for help with the definition of malice, a necessary element to a murder conviction. The definition provided in the jury instructions is "an intentional doing of a wrongful act ... at a time when the mind of the actor is under control of reason." The note said they have specific trouble with the phrase "under the control of reason."

Prosecutor Robert F. Horan Jr. said he is concerned that the jury is unnecessarily confusing the malice issue with the insanity issue and wanted to clarify that. But the defense lawyers argued that sanity is a legitimate issue when debating whether Malvo's actions amounted to malice.

"Malice is a state-of-mind issue and it's affected by sanity," Malvo lawyer Craig Cooley said.

Roush ruled that the jurors will have to use the common-sense definitions of "control of reason" and she can provide no further guidance.
Personally, reading about the case from afar, I think there is about a 70-80% probability of conviction. At the beginning of the trial the prosecution started out with a 99% chance of conviction but the Defense has chipped away. The Defense has offered better testimony and a sympathetic theory which sells much better than the prosecution theory that this was all part of a scheme - which Malvo was an equal partner in cooking up - to extort money from the government. I think that at the end of the trial the probability of conviction had sunk somewhere between 50-60%. However, the prosecution seems to have done a far better job in its closing argument than the Defense and I think that hurt the Defense badly.

Not that any of this matters all that much. If the kid isn't sentenced to death in this trial they can just que up one after another until one of them returns the desired verdict.
Ken Lammers


The two sides presented closing arguments yesterday. The judge refused to allow an instruction on irresistible impulse. As always the argument for not allowing the instruction is that there is no evidence to support such a finding - which one would think ought to be the jury's decision.

The arguments went back and forth over whether Malvo was a shadow, unable to separate himself from Muhammad, or the two were peas in a pod. The prosecutor used a slick, multi-media presentation to close his case:
Commonwealth's Attorney Robert F. Horan Jr. used a multimedia presentation of crime scene photos and Malvo's tape-recorded confession to argue that Malvo was the triggerman in many of the shootings. Malvo "described [them] in a way only the killer could describe," Horan said, with Malvo's voice resounding through the still courtroom. The recording had an eerie cockiness, punctuated by odd chuckles, as the defendant said of the shootings, "They're all easy; they're not hard."

At one point, as Malvo's voice described the collapse of sniper victim Pascal Charlot in the District on Oct. 3, 2002, a transcript of his words was posted on a large screen. Fairfax homicide detective June Boyle asked him where Charlot was hit, and Malvo responded, "Chest shot." As he did, a larger-than-life autopsy photo of Charlot's fatal chest wound appeared beneath Malvo's words on the screen.

At first, Malvo listened to Horan's argument with his head bowed as photos of the sniper victims flashed above him. But soon, he returned to his habit of sketching furiously on a legal pad and ignoring the proceedings, as he has done for long stretches of the trial.
The Defense countered with an argument that Malvo couldn't have possibly made the shot he is accused of taking and that he was completely under Muhammad's control the entire time.Apparently, the Defense attorney was losing his voice during his argument:
Defense attorney Michael S. Arif began his closing argument walking back and forth in front of the jury box, both hands in his pants pockets. His voice raspy and weak from a cold, Arif told the jury that he didn't deny that Malvo was with Muhammad when Franklin was killed, but he said Muhammad took the shot that killed her.

He said that the defense does not dispute that Malvo was involved in the shootings, but argued that killing Malvo would serve no purpose.

"Adding another life to that pile of death does not solve anything," Arif said. "It does not bring anyone back. It is just revenge. There is an old adage; if you are going to kill for revenge bring two shovels."

While Arif spoke, Malvo watched him from the defense table, his right hand resting on his chin. Horan fiddled with a pile of papers in front of him, appearing not to listen to Arif.
The prosecutor exercised the huge advantage he is given during trial of having the last word:
He stood and waved three handwritten letters Malvo sent to a fellow inmate in the Fairfax County jail in late summer and early fall this year.

"If you fight them all the time they will always be looking at you," Horan, reading from Malvo's letter, said to the jury. "But if you never resist, when you do resist -- they will be caught by surprise, never expected it, wouldn't even dream you were capable of such cruelty, hatred, brains."
Now it's in the hands of the jury.

Here are transcribed portions of the closing arguments.
16 December 2003           
Ken Lammers


In the spirit of full disclosure I think you should all know where I'm coming from so I took this quiz and here are the 8 philosophers I most resemble:

1. Aquinas (100%)
2. St. Augustine (88%)
3. Kant (81%)
4. Plato (81%)
5. Ockham (78%)
6. John Stuart Mill (76%)
7. Prescriptivism (73%)
8. Aristotle (69%)

The list goes to 19, concluding with Hobbes at 0%. However, I only list the top 8 because I have serious philosophical differences with "9" and below.
Ken Lammers


The second expert called by the prosecutor "suggested that the defense team may have brainwashed Malvo during his year in the Fairfax jail, using the same techniques of isolation and information control they allege Muhammad used on Malvo."

Yeah, because we all know Defense counsel can maintain complete control of how the guards treat a Defendant the 95% of the time we are not with him in the jail.
Ken Lammers

The Federal Supreme Court has Approved Shakedown Arrests

In Maryland v. Pringle an officer arrests all three people in a car after finding drugs in the back seat. The owner of the car was driving and there was a man in the front passenger seat and a man in the back; none admit possession at the scene. Later, under interrogation, the front seat passenger admits that the drugs were his. The Court said there was probable cause to arrest all people in the car.

This raises an important question: exactly how many people are police allowed to arrest in order to shake them down in an attempt to get a confession? If officers stop a bus rented by members of the same organization (let's say the SSDP) and find a bag with 5 pounds of heroin can they arrest all 40 people in the bus? If someone is shot dead in a bar almost exclusively frequented by the Outlaws can officers arrest all 100 people in the club? Since the Court has put its imprimatur on rounding up the usual suspects, will it allow police to round up twice the usual suspects in really serious cases?
Ken Lammers


The prosecution only called psychologists in its rebuttal case. The man who seems to be the primary witness is Dr. Stanton Samenow:
Psychologist Stanton Samenow testified that Malvo's mother had instilled a strong sense of right and wrong in him, although through abusive means at times. Samenow also said Malvo expressed strong opinions about right and wrong in terms of how black people were treated in America.

Prosecutors tried to contradict Malvo's attorneys' assertion that their client was an easily-led child susceptible to brainwashing.

In interviews with Malvo, Samenow said the teenager described himself as strong-willed and emotionless. Samenow said he agrees and didn't see any evidence of mental illness.
This guy has written a book:
Samenow, who lives in Alexandria, is author of the landmark and controversial 1984 book "Inside the Criminal Mind," based on six years of clinical work and research at St. Elizabeth's Hospital in Washington. In the book, Samenow argues that most crime is caused by willful decisions of criminals. Psychological or sociological factors don't matter, he contends, nor do personal or socio-economic backgrounds. He argues that criminal offenders have a "criminal personality" present from early childhood.

"Criminals cause crime," he writes in the book. "Not bad neighborhoods, inadequate parents, television, schools, drugs, or unemployment. Crime resides within the minds of human beings and is not caused by social conditions."
So basically - you are just a criminal if you do a bad act and there are no other relevant factors.

Samenow's web site is filled with little tidbits like this:

When a person commits a crime that seems totally alien to his personality and background, people are puzzled and shocked. In my experience, a crime only appears to be "out of character." If you develop a thorough understanding of the perpetrator's mental makeup, you will learn that there is precedent if not in behavior, then in thinking for the crime to occur. The quiet man who murders his wife in the heat of an argument may not have planned the homicide in terms of a specific date, time, and place. However, in his mind, he had killed her many times during previous conflicts. This is a person who, instead of coping with the adversity, fantasized numerous times destroying the adversity. Thus the occasion in which the actual crime occurs truly reveals the perpetrator. It is within character if one only knows his or her true character.
And, amazingly, this man has never seen a Defendant who wasn't guilty:
On cross-examination, Samenow acknowledged that in more than 30 years of experience, he has never come across a criminal he believed was incapable of knowing right from wrong.
We don't really know what went on in the good doctor's interviews with Malvo:
Though little is known about Malvo's sessions with Samenow, they apparently have been stormy. Malvo's lawyers have described their client as cooperative. But they add that Malvo is frustrated by the repetitive nature of Samenow's inquiries.
But what we do know is that he didn't do any psychological tests:
Samenow also said he administered no psychiatric tests to Malvo, largely because he believes a patient can feign mental illness.
Wow. And I thought the Defense witnesses were going to look biased - he makes them look positively middle of the road.

If you are the prosecutor why do you do this to your case? Why not go to a simple middle of the road psychological expert who will almost certainly come to the conclusion that Malvo is legally sane? This guy is like shooting yourself in the foot; all he does is make the Defense look better because you were so desperate that you went out and got a witness who (from his writings and history) seems incapable of admitting that anyone might be legally insane.
15 December 2003           
Ken Lammers

Scott Peterson:

The Defense wants to change the venue because publicity could keep Peterson from getting a fair trial. I don't know where they think it could be moved. Perhaps to a county where only Amish live? Do they have those in California?
Ken Lammers

A Week in the Life of a Defense Attorney:

05 December 2003 ~ Friday

Go to General District Court in Powhatan County for a return which is not called because my client has successfully completed his obligations and didn't have to come back to court. At 11:00 leave and drive to Richmond to go to Federal Court for a detention hearing. After a hour plus I arrive in Richmond and meet with the client in the Marshal's office. Then I go down to the courtroom and meet his family prior to court. They go into shock when they find out that the mandatory minimum for the 21 counts is 60 years (and probably more). The AUSA comes to the courtroom and makes the normal noises about how guilty the client is but otherwise seems pretty straight-forward. After the detention hearing the judge sets an arraignment time for 9 a.m. on 12 December 2003 and I have to agree to the date blindly because they took my PDA from me when I came in the courthouse and therefore did not have my calender. When I get back to my office and pick up the file to enter the date in my calender I find out that there are already two cases scheduled for that date but it's too late to do anything about it that day.

08 December 2003 ~ Monday

No court scheduled so I spend the day trying to catch up on paperwork. I download a PDF of the federal sentencing guidelines and put one of my computers to work printing the thing out. It only takes about 6 hours and when finished it looks like this:

left is Va. guidelines - right is federal (twice as big unbound)

09 December 2003 ~ Tuesday

Go to court in the city of Colonial Heights for a felony domestic assault. Meet with the new Assistant Commonwealth Attorney who seems like a decent guy. A prosecutorial witness isn't there so the prosecution is prepared to ask for a continuance but my client decides to plead guilty so he can get his case over as quickly as possible.

Go to court in Chesterfield County for a preliminary hearing on cocaine possession. Case continued because the prosecution does not have its lab in proving that the stuff actually was cocaine.

10 December 2003 ~ Wednesday

Go to the office at 5 a.m. in the morning to try and get paperwork and things done before court. Fax motions for continuances to Powhatan County prosecutor and clerk offices because I have not been able to get the federal court date / time changed.

Go to court in the morning for a really nasty case wherein my client is charged with battery for choking a woman. Prosecutor calls three witnesses during the sentencing hearing telling how he ran up and choked her. My client explains in his testimony that his action came as a reaction to someone attacking him in her name. The entire case is basically a trainwreck during which I can't do much more than stand by and watch. The highlight of the case was probably when I tried to get the judge to put my client into anger management in lieu of some of the jail time - the judge refused and basically said my client was too angry to go to anger management. Client gets the max: 12 months.

Run down to Colonial Heights for a quick motion. The prosecutor is going to move for nolle prosequi (that's a dismissal without prejudice for those of you who work in jurisdictions that use English). The whole thing should take 5 minutes. Of course, the case is not called until I've been there about a hour and half. The client leaves happy but I'm running late.

I jump in my car and head out to Orange County to meet with my federal client. The feds seem to have some unwritten rule that they must keep prisoners at least a hour and thirty minutes away from the location of the courthouse in Richmond. Driving as fast as I can (while of course, never breaking the speeding laws of Virginia), I arrive at the jail at 4:15 p.m. and am denied entrance because the jail shuts down between 4-7 p.m. I'm told to come back at 7. I leave and go look for something, anything to do to kill three hours. At this I fail miserably because the entire Town of Orange shuts down somewhere between 4:30 and 5 p.m. I think they roll up the sidewalks at 6 p.m.

So I end up at the local Hardees. I order a combo meal, set up a mini-office in the non-smoking section, and eat real slow as I go over the facts and laws and sentencing guidelines for my client. At about 20 minutes to 7p.m. I go back to the jail and can get in to see my client. The meeting is a little strange. I leave and enjoy a 2 hour drive home in a pouring rain which is about 1 degree from freezing. And one of my headlights goes out on the way home. Get home a little before 10 p.m.

Miss about 3-4 Christmas parties which various firms / Bars / Courts are having this night.

11 December 2003 ~ Thursday

Go to Chesterfield court at 8:30 a.m. and find out that the case is actually at 1 p.m. Stick around the courthouse for the morning catching up with other lawyers and deputies and officers.

Show up for 1p.m docket expecting two clients to be on the list and there are three. This is not good. I scramble around trying to figure out who the third is and finally figure out that he is a show cause on a case where another attorney had been hired about 6-8 months back and my name is on the list because of a computer error. That deals with one.

The second client is easy. The client is being released from custody in order to enter the Dual Treatment Track program which helps deal with mental problems and addictions.

The third client ain't good. He's charged with concealing a firearm and brandishing a firearm. He decides that he wants to plead not guilty. We go up and plead. The prosecutor puts on his primary witness who is a little creepy. He testifies that he sees Client waving his hand tailgating him and then realizes that Client has a gun. He testifies on cross that he can see the gun clearly despite the windows of Client's truck being tinted. He testifies with confidence that Client's gun is a silver barreled gun with a black handle. He testifies that after he calls 911 to tell them he has been threatened by someone with a gun, the dispatcher tells him to follow the person who threatened him with a gun and he proceeds to follow Client's truck thru hell and high water as Client does all sorts of lane shifts to try and shake him.

Prosecutor calls the officer who responded. Officer shows a gun which was sitting on the passenger side seat and it is an entirely black gun. Then officer shows the gun which was concealed in the back of the extended cab, in a sack, in a pouch on the wall of the cab behind the client. This gun, which could not have possibly been used by Client, matches the victim's description exactly. Hmmm . . .

I call my client. In previous discussions Client has been a little slow but lucid. When called he turns into mush. He can't string three words together. Finally, with a little bit of indulgence from the judge and prosecutor I am able to lead him thru his testimony. He says he passes a car and it starts tailgating him all thru the area. He pulls out his pistol and places it on the seat next to him because he is scared. Finally, he thinks he has lost the car and goes to his ATM machine to withdraw money to make his truck payment - and is swarmed by police.

I know Client's lost the concealment but I think the witness' suspicious statements and ID'ing a gun which could not possibly been in use have at least placed the brandishing very much in play. The judge discusses the concealment charge for a few seconds before finding guilt and then just baldly finds guilt in the brandishing without addressing any of the "interesting" parts of the witness' testimony. I'm not happy with the verdict but I bite my tongue.

Then comes the fatal question: "Tell me something about your client." This judge does that to me every so often and I think I have something of worth to tell him about 1 out of every 4-5 times. Sometimes I've nothing because my client has just gotten out of a couple of months in jail, is unemployed, and lives at a motel we all know is a drug hangout. More often, it is because the client never comes to see me (despite my weekly open office hours from 2-5 on Fridays) and I only get the information from him on the fly when we come to court on his trial date. Most often the excuse for not having come to see me is work. So, I turn to the Client and ask him where he works. "I used to work at . . ." And it just went downhill from there. I knew my client's criminal record so the judge asks me what is on his traffic record (even though it is inappropriate to ask a Defense counsel about his client's record because counsel is not supposed to reveal what his conversations with his client might have revealed and Defense counsel does not have easy access to official records as prosecutors do). The judge sends the prosecutor to go get the official record and the three speeding convictions are introduced. The judge calls the guy's mother out of the gallery and asks her questions which basically reveal what is obvious to all in the court: the Defendant is slow but not mentally deficient in any way which would effect competence or legal sanity.

By the time I leave the court I am ready to spit nails. I kept my mouth shut and bit down pretty hard on my tongue but I'm afraid it did not do much good. I'm light skinned and when I become upset I turn red, when I become very upset my ears turn red too and I can feel them burning. My ears started burning from about the moment that the judge pronounced guilt and kept going until I walked with my client back to the holding area so he could start serving the 6 months the judge sentenced him to serve. The case is now being appealed to the Circuit Court.

When I arrive back at the office there are messages. I put out a couple fires and then the very last message is one from another attorney who has been hired by the family of my federal client to take my place (because it's always better to pay $10,000 to get the same result with a "paid" lawyer). By the time I calm down and get everything finished for the day it's after 9 p.m. and I realize that I have missed another Christmas party a firm was having that night.

12 December 2003 ~ Friday

In office at 5 a.m. Realizing that I have not received a fax copy of the judge signing an Order continuing my State court cases I send a fax to the clerk's office in Powhatan County telling them that if they have not continued the cases to please hold them because I expect the substitution in federal court to be quick and I will probably be able to make it to Powhatan by 10:30 to handle my cases.

I leave for federal court about a hour early because I expect to get caught in commuter traffic. Of course, there is none and I get to the courthouse 35 minutes early. I go to the cafeteria and drink a cup of coffee. Then, when I go back to the courtroom I realize I've gone to the wrong one and, with the help of a Marshal, I figure out which court I'm supposed to be in and rush over there. I get substituted out and watch the whole 5 minute arraignment wherein the Defendant pleads not guilty to all charges and then his new attorney sets a disposition date about 3 weeks out (meaning that the Defendant is probably going to plead guilty).

Then I burn rubber for Powhatan County (once again never exceeding the posted speed limit). I get there about 10:20 and realize that one of my clients was not shipped while the client who was on bond is present. After I've been sitting there for about 10 minutes, the judge stops in the middle of his docket and tells me that my cases were continued so I don't have to stay.

I return to my office and spend a glorious afternoon cleaning because I must be in the office between 2-5 p.m. for open office hours. Nobody showed up but I was there.
14 December 2003           
Ken Lammers

Death - Philosophy / Politics:

(1) Here's an article from the Philipines which lays out the basic arguments pro and con for the death penalty (excluding religious belief).

(2) Looking at the cost of attempting to impose the death penalty on someone.

(3) Mark Fuhrman comes out against the death penalty.

(4) MLK III called "for the end of the death penalty, describing it as archaic and unjust especially when applied to children."

(5) Here's a rather humorous letter to the editor arguing (poorly) in favor of the death penalty. I leave it to ya'll to find the errors in the arguments and statistics.
Ken Lammers

Death - Britain:

The death penalty of a woman who had already been killed many years back has been upheld.
Ken Lammers

Death - Feds:

The Feds are going to try to kill Eric Rudolph.
Ken Lammers

Death - Texas:

Executions were delayed in Texas because the 5th Circuit could not render a decision in time. One of the inmates' reactions: "I was ready to go. The stay only means 18 more months of this crap."
Ken Lammers

Death - Texas:

Delma Banks Jr.

In Federal Supreme Court

Among others here are the more significant arguments:
Banks' lawyers demonstrated to the Texarkana court that the prosecution had withheld from the defense and the jury the fact that its main witness, who gave damaging evidence at the sentencing hearing, was a paid police informant.

Another main prosecution witness lied when he said that he had spoken to no one in advance about his courtroom testimony. That lie was uncovered only in 1999, when Banks' defense team obtained a transcript of the witness's pretrial interview with law enforcement officials, in which he was coached and rehearsed in what to say.
The attorney for Texas replied:
Gena Bunn, an assistant Texas attorney general, told the court on Monday that state prosecutors probably knew their star witness lied on the stand during Delma Banks' capital murder trial. And they weren't particularly forthcoming about the extent of the falsehoods during Banks' appeals, she said.

But none of that is reason to overrule the appeals court that upheld Banks' conviction and sentence, Bunn said, because Banks' first lawyer was too slow to complain about the deceptions, and jurors at his trial probably would have convicted him anyway.

Banks' current attorney said the prosecutors' misconduct and Banks' first lawyer's incompetence cry out for a rehearing.
. . .
Bunn told the justices that state prosecutors didn't have an obligation to point out that one of the witnesses lied when he told the court he wasn't a paid informant. She said the lie didn't matter because the witness was paid to help police find the gun, not for his testimony.

What matters, she said, was that Banks' lawyers missed deadlines for appeals while they searched for evidence and tried to find the witnesses, who had left Texas. Because of their tardiness, Bunn argued, the prosecutors couldn't be blamed for the problems.
Point 1: No obligation to tell the court that your witness is lying? That's called a fraud on the court and you are not allowed to perpetrate one.

Point 2: Arguing procedure to save your hide when you really screwed up is not appropriate. It may work but it is a stain on the system every time form is favored over actual justice.

The Houston Chronicle described this argument as follows:
The Supreme Court today will be asked to rein in what defense attorneys, and some prosecutors, contend is a rogue appeals court that ignores the justices' rulings in order to rubber stamp Texas death sentences.
Ken Lammers

Death - Philipines:

(1) In a development which surprised no one, the Catholic Bishops opposed the lifting of the moratorium on the death penalty.

(2) But the Vice-President threw his support behind the decision.
Ken Lammers

Death - Kentucky:

Governor Patton commutes the sentence of the boy whose case set the precedent that 16 year olds could be killed by the government.
Ken Lammers


(1) An article discussing the costs of the trial - or at least the Defense side of it. I'm curious as to what the prosecution has put into this case. Much of the Defense cost is related to the fact that Virginia's discovery rules are set up so that prosecutors can withhold evidence from the Defense.

(2) The judge is allowing the rebuttal of expert psychiatric testimony by putting victims on the stand. Apparently, the attempt will be to show malingering by showing that the events did not occur as they were told to the psychiatrists by Malvo.

Not appropriate. If that is the point which the prosecutor wishes to make it should be done thru psychiatric witnesses who explain how the lack of facts lead them to the belief that Malvo is malingering. The point of putting victims on the stand is to raise emotions not to prove anything substantive. The irrational prejudice which will adhere to the process is beyond any miniscule addition to actual evidence.

However, to be fair, several of the Defense witnesses the judge allowed could be subject to the same argument.
Ken Lammers


(1) A well articulated, strong argument against removing "complicated" trials from jurors in Scotland.
Author: Lord Penrose

(2) The federal supreme court will decide whether the standard for deciding if a peremptory strike is uncostitutional in California is up to federal constitutional standards.

(3) A favorable view of jury service.

(4) Urging contempt citations for failing to come for jury duty.
Ken Lammers

Police - The Good

In Alabama an off-duty officer catches a bank robber.

Ken Lammers

Police - The Uncertain:

The grand jury cleared an officer who shot a man who jumped out of his car during a search for drugs at a home. Drugs were found and a gun was found in the car but not on the body.

The Feds are going to look into it next.
Ken Lammers

Police - The Kooky:

(1) Blanchardville, Wisconsin's Chief of Police, Kevin Larson, is also the local barkeep.

(2) Bobblehead cops?

(3) If you're impersonating a police officer pulling a State Trooper over isn't the brightest thing in the world.
Ken Lammers

Police - The Bad:

(1) Here's what happens in the U.K. to officers who set up illegal wiretaps to listen to conversations between attorneys and clients: "[T]he three officers who set up the bugs had received written warnings and a further eight had been given informal warnings."

(2) "Edward T. Norris, who became Maryland police superintendent after a celebrated crime-fighting record in New York City and Baltimore, resigned on Wednesday after he was indicted on charges of using a Baltimore Police Department charity fund to pay for gifts, private travel and visits with girlfriends."

(3) "Pamela J. Dickens, 47, [a State prison guard] was arrested Friday after a six-month investigation by the Department of Corrections. Officials had received a tip that she was having the affair and trying to get her husband, also a prison guard, killed."
Ken Lammers


(1) The background of one of the psychiatrists who testified for the Defense.

(2) Malvo's mother's reaction to what is being said in the courtroom.
13 December 2003           
Ken Lammers

Prosecutors in the News:

(1) Here's an article in the Roanoke Times wherein the Commonwealth Attorney of Suffolk County complains about the underfunding and therefore understaffing of prosecutor's offices. Here's the web page of the Suffolk County prosecutor's office. As near as I can tell there are 10 prosecutors (including the Commonwealth Attorney himself) and an indeterminate number of support staff organized as Victim / Witness, Investigation, and Community Outreach teams. That doesn't seem to include whatever secretaries or paralegals might be in the office. And it also does not include the investigation / support work done by police officers. Now let's compare this to my office (which receives funds primarily thru court appointed cases). There's an attorney, an investigator, a secretary, an advertising guy - and they're all wrapped up in one person: Me. On top of which, the State government doesn't provide anyone in my office with healthcare coverage, there are no paid vacations (in fact they are very dangerous propositions as no money flows into the office during them), and no nice retirement after working howevermany years.

Maybe he's correct and Virginia does not support its prosecutors as well as some other States. However, the massive underfunding of court-appointed Defense counsel makes it hard to feel sympathy. Especially since I've had two days this week start at 5 and end at 10 because of the multiple hats I wear and the time I plan to spend in the office today wearing my bookkeeper hat - trying to figure out if I can pay all my bills off this month.

(2) The prosecutors in the Scott Peterson case have finally been ordered to return Peterson's truck. Their reply was that they want to buy it at market value. Peterson and his attorney smiled at that - probably because it sounded as desperate to them as it does to me. CourtTv was covering that yesterday and very much over-read into that reaction the idea that Peterson and his attorney knew that if the truck were sold at auction it would fetch a high price because of its connection to this case. That seemed like a heck of a stretch to me for a reaction in the moment.

(3) And, as I do every so often, I now point you all to the most over-the-top prosecutor's web site. It's got purty colors, lots of chest thumping, shallow analysis, and it lashes out at everybody who dares to not believe. It's the Lexington-Fayette County Commonwealth Attorney.
Ken Lammers


There was no court on Friday so the only thing to report on is this article describing Malvo's six page letter / rant introduced into evidence by the Defense.
11 December 2003           
Ken Lammers


The psychiatrist discussed how Muhammad and Malvo had planned their attacks:
John Allen Muhammad and Lee Boyd Malvo scouted about 100 different locations in Maryland, Virginia and the District of Columbia as they prepared for last fall's sniper rampage, according to testimony from a psychiatrist at Malvo's capital murder trial this morning.

The plan "was basically to go to different places and keep the authorities not knowing where the next shooting was going to occur," said Dr. Neil Blumberg, who spent about 50 hours interviewing Malvo to evaluate his mental state at the time of the shootings.
The testimony about the day the child was shot was disturbing:
Blumberg also said that Muhammad planned to shoot three to five children on the morning that he shot a 13-year-old boy at a middle school in Bowie. Muhammad and Malvo had scouted three schools in the area and chose Benjamin Tasker Middle because of the woods near the school and favorable terrain, Blumberg said.

"He said he didn't like the idea, but Muhammad said 'Let's do it.' He went along with it," Blumberg testified today. "Muhammad's plan was to shoot between three and five children. Not to kill them -- no head shots -- but he said the plan was to have a ripple effect."

The boy shot at the school, Iran Brown, was hit in the abdomen and survived. No one else was shot that day. Blumberg did not say if Malvo told him why Muhammad deviated from the plan. He testified that Malvo said he was in the car acting as the spotter for that school shooting, while Muhammad fired from the woods.
Is the information Malvo gave to the psychiatrist credible?
The psychiatrist said Malvo's account was credible because Malvo acknowledged involvement in all of the sniper shootings and admitted being the shooter in one, the October 22, 2002, shooting of bus driver Conrad Johnson in Aspen Hill, Maryland. He also admitted to killing Keenya Cook in Tacoma, Washington, in February 2002.

Fairfax County prosecutor Robert Horan Jr. questioned whether Malvo admitted to shooting Johnson and Cook to avoid facing the death penalty. Maryland and Washington do not allow execution of people convicted of crimes committed as juveniles, while Virginia does.

"Do you think he was smart enough to know ... that he couldn't get the death penalty in Maryland for shooting Conrad Johnson?" Horan asked.

Blumberg said Malvo could have been aware of that, but that he did not believe it affected Malvo's statements.

Horan then asked Blumberg if Malvo knew he couldn't face the death penalty in Washington state.

"I don't know if he knew about that," Blumberg said.

- - - - -

Defense psychiatrist Neil Blumberg testified that Malvo's initial statements claiming responsibility occurred while he was still under Muhammad's influence. He added that if Malvo was lying later it didn't make sense for him to still admit he was the triggerman in two killings.

"Someone who's lying or malingering - why not deny everything?" Blumberg said.
The psychiatrist also went thru some of the shootings as laid out by Malvo:
Under cross examination by Fairfax Commonwealth's Attorney Robert F. Horan Jr., Blumberg relayed Malvo's description of the first slaying that day in Montgomery County. The victim was James L. Buchanan, 39, who was shot while pushing a lawnmower near a car dealership.

"He saw him pushing a lawn mower," Blumberg said. "There was no one around. He said he was driving and Muhammad was in the trunk. He said they were only 60 or 70 yards away. He said he saw Mr. Buchanan grab his chest. He then ran and dropped. . . . He and Muhammad switched seats and he broke down the weapon and Muhammad drove off."

The next victim that morning was Premkumar A. Walekar, 54, who was shot in the chest while pumping gas at a gas station in Aspen Hill, Md.

"He said they were parked across the street in the parking lot of a strip mall over 100 yards away," Blumberg said, "The station was busy. There were lots of targets and Muhammad shot and they left."

The first four shootings were in Maryland. The final killing of the day was in the District. Blumberg said Malvo told him that Muhammad wanted to kill someone in Washington because residents of the District were starting to "feel safe."
And the psychiatrist also testified as to the defects that were foreshadowed by Malvo's actions as a youth:
As a child, Malvo killed stray cats with a slingshot beginning at age 8 or 9 and continued the anti-social behavior for nearly five years, Neil Blumberg testified at Malvo's capital murder trial.

Malvo also regularly stole comic books and compact discs, said Blumberg.

. . .

On Wednesday, Blumberg testified that Malvo's mental diseases left him "psychologically numb" and legally insane because he couldn't tell right from wrong.

Blumberg's statements under cross-examination echo earlier testimony from a defense psychologist who said Malvo killed cats as a child. Blumberg said Malvo had grown to hate cats because his mother frequently beat him after Malvo's pet cat would soil his sheets.

The psychiatrist said shoplifting and cat-killing were signs of a childhood conduct disorder that combined with later mental illness to make Malvo "unable to distinguish between right and wrong" and "unable to resist the impulse" to commit the sniper killings in 2002.

Malvo also suffered from depression and a dissociative disorder that allowed him to tune out reality, lose his sense of identity and become vulnerable to Muhammad's wishes and "intense, coercive persuasion," Blumberg testified.
Ken Lammers

This, Ladies and Gentlemen, is the Orange County courthouse. The center right building is the Circuit Court. The center left building is the General District Court. The picture is taken from the bank parking lot in the middle of the mini-mall.

Picture taken while I was waiting to get into Central Virginia Regional Jail to visit my federal client. I got to the jail at 15 minutes after 4 p.m. and they wouldn't let me in to see my client so I had to kill time until visitaion started again at 7 p.m. (it's a two hour drive back to my office so that really wasn't an option). I spent 20 minutes driving around town and taking this picture. Then I hunkered down at the local Hardees, bought a combo, and ate very slowly over the next two hours while I did some research / paperwork. Thank goodness I carry a ton of work in my briefcase because the town rolls up its sidewalks at about 5 p.m. and there was absolutely nothing to do.
Ken Lammers

Miranda at the Supreme Court:

O.K. I can understand the idea that if a Defendant stops the police from reading Miranda warnings to him (by saying he knows his rights) and confesses that the evidence can be admitted. I don't like it because I can just hear the "You have the right to - Aw shucks, you know your rights don't you John?" question coming out of the mouth of officers. However, I can see how it looks good on paper.1

However, this is just scary:
[T]he police pursued an intentional strategy of questioning a suspect without Miranda warnings, obtaining incriminating admissions before resuming the interrogation after a 20-minute delay. This time, the suspect, Patrice Seibert, was fully advised of her rights, signed a formal waiver form, and incriminated herself again.

The initial statement was clearly inadmissible. The question for the Supreme Court on Tuesday was whether the second statement, following the warnings, should be seen as the product of a fully informed suspect's free will, admissible in court. The Missouri Supreme Court said no, ruling that to admit the second statement in this circumstance would be to encourage deliberate evasions of the Miranda rules.

The Supreme Court ruled in a 1985 case from Oregon that an intervening warning could isolate the initial failure and make a second statement admissible. In that case, however, the initial failure to give the warnings was inadvertent. A central issue in the new case is whether it mattered that the police had deliberately omitted the warnings.
That there is even a question is very disturbing. The intentional constitutional violation is clearly meant to cause a continuing result even after the "cure."

As someone who spent a little time as a professional interrogator I must say that it is a wonderful technique. You get the suspect to incriminate himself - a total confession isn't needed, just enough that he can't make a plausible denial. Then you shut down - go to the restroom, get some coffee, have an emergency call, etc. - and come back shortly. Tell the guy we have to do some paperwork, take five minutes to go over Miranda and have him sign the form, and then say something like "John, I want to make sure that I understand everything correctly so let's go over it again from the beginning."

It's great technique. It's entirely reliant upon the constitutional violation but it's a great technique. The only way I see this as potentially constitutional is if the officers actually pointed out to the suspect that all of what he said before was not admissible to court while anything he says from this point forward will be. Even then it's a stretch because no matter how you slice it the entire scenario relies on a purposeful constitutional violation.

The Court's decision on this case will determine whether Miranda has teeth or if it is just a hollow shell.

1 The problem, of course, is that every time something looks good on paper it gets pushed to its limit. Under the "get an inch take 5 feet" principle of real world application, things that the Court see as exceptions become the loophole/accepted norm in police procedure and in the courtroom. How many Defense attorneys have had their client arrested on one charge, get themselves an attorney and had the police come to the jail to speak to the client on "unrelated" charges? I have; in my latest brush with this the officer came to see my client twice without me present on "unrelated" charges involving the same victim, same m.o., same kind of charges, etc. My client was one of those rare men who refused to talk to the officer so it went like this: Arrest on two felonies, I am appointed, officer goes to talk to my client who declines without me present, client and I meet with officer but I don't let my client say anything, and then officer makes another trip to the jail to speak to my client the next day (client again declines).
Ken Lammers


(1) The Mental Testimony:

The Defense witnesses finally testified that Malvo didn't know the difference between right and wrong. Both doctors zeroed in on the constant sketching which Malvo has done throughout the trial:
Dr. Diane Schetky testified that she believes Malvo, 18, suffered a dissociative disorder characterized as "a disruption of the normal integrative functions" of the brain.
. . .
Schetky also said Malvo still does not fully appreciate the gravity of the consequences for the crimes. "He's sitting there doodling like a child in pre-school," she testified.

Malvo, who appeared to be sketching on a yellow legal pad while seated at the defense table, looked up for several seconds, then returned to drawing.
The second psychiatrist testified that:
Unable to distinguish between right and wrong, Lee Boyd Malvo met the standard for being legally insane when he participated in last year's deadly sniper rampage.

"From Day One, I thought he met the legal criteria for being legally insane in Virginia," Dr. Neil Blumberg told the jurors in the capital murder trial.

Blumberg said that Malvo had a mental disease that made him "unable to distinguish right from wrong and was unable to resist the impulse to commit the offense." Those are two of the tests for legal insanity as it is defined in Virginia.

The psychiatrist was the second to take the stand Wednesday to tell jurors that the Jamaican-born teen-ager had lost his sense of what is right. Blumberg diagnosed the youth as suffering from an unspecified "dissociative disorder," depression and a "conduct disorder."

But he believes the dysfunction was because of brainwashing by his alleged accomplice, convicted killer John Allen Muhammad. A Virginia Beach jury recommended a death sentence for Muhammad.

Blumberg, who said he is being paid about $42,500 by the state of Maryland for his evaluation of Malvo, said the disorder and brainwashing allowed the teen-ager to snuff out his feelings and take part in shooting after shooting, all for Muhammad's "righteous cause."

Even as Blumberg spoke, Malvo furiously doodled on a pad, as he has for most of the trial, alternating between looking up at the subject of his sketches and hunching over the defense table to draw.

The manic sketching, Blumberg said, was an example of dissociation, of Malvo blocking out the unpleasantness of a trial that could lead to his execution.

"This is a technique whereby he doesn't even have to think about what is going on here," Blumberg said. "What's going on here is he is being tried for murder, and he faces the death penalty. And the way he deals with that is focusing on his drawings, keeping his mind elsewhere."
Schetky explained that
Malvo "was merged with Mr Muhammad. He was acting as his proxy. He was like a puppet in his hands."
. . .
Asked by defence lawyer Craig Cooley if Malvo was able to distinguish right from wrong - the legal standard for insanity in Virginia - Schetky said, "I believe he was not."
She also testified that "Malvo 'displayed a pathological loyalty to Muhammad' and confessed to being the triggerman in the killings when police suggested that the shooter would be the one who took the rap for the crimes."

On cross it looks like the prosecutor lost some points when he, yet again, hammered away at his assertion that this is not a mental illness:
Mr. Horan's cross-examinations yesterday aimed to undermine the psychiatrists' diagnoses. He showed the jury the entry for disorder in the Diagnostic and Statistical Manual of the American Psychiatric Society and pointed out the absence of a list of symptoms, such as those found with other mental diseases.
The psychiatrists said that many broad categories in the manual, such as depression, have entries for "not otherwise specified" conditions that don't fit specific maladies but nevertheless represent legitimate mental disorders.
But he probably gained some major points in this exchange about the first person Malvo killed:
Mr. Horan noted many of the shootings, focusing on the eight that Mr. Malvo confessed to during police interrogation, and asked the psychiatrists whether the sniper suspect knew his actions were wrong.

When Dr. Blumberg or Dr. Schetky said they didn't discuss with the defendant a particular shooting, Mr. Horan often asked, "You didn't think it was important if he thought it was wrong?"

That line of questioning led Dr. Schetky to describe how the teenager was emotionally wracked when he fatally shot Keenya Cook, 21, in the face as she opened the door of her home in Tacoma, Wash. The Feb. 16, 2002, shooting served as a training exercise for Mr. Malvo, according to testimony.

Dr. Schetky said the sniper suspect was shaking and soiled his pants after he shot Miss Cook, reactions that he hid from Muhammad.

Mr. Horan asked whether that meant he knew it was wrong to shoot Miss Cook.

"He felt he didn't have a choice," she said.

Mr. Horan asked repeatedly whether the teenager knew it was wrong. Dr. Schetky said he had "misgivings."

"So, he knew it was wrong, but he decided to do it anyway?" said Mr. Horan.

Dr. Schetky said yes.
The second psychiatrist came to a slightly different conclusion:
The killing of the woman, Keenya Cook, was the first murder he explored in detail with Malvo, he testified.

Muhammad told him about the mission only three hours earlier, Malvo told him.

“He said he was a afraid to say he couldn’t do it,” Blumberg testified, “afraid Muhammad wouldn’t want him around.”

Malvo was dropped off, went to the door and talked with Cook. She was the niece of a former bookkeeper who had testified against Muhammad in a child-custody dispute in which he lost custody of his three children.

“The victim was friendly,” Blumberg said, “then he pulled out a .45 and shot her once in the head.”

He ran, in a panic, stripped off his outer layer of clothes and called Muhammad over a walkie-talkie, the psychiatrist said.

“As he was doing this he said he was only focusing on what he was going to do. Trying to control his emotions,” Blumberg said.

Malvo relied on extensive training by Muhammad, Blumberg said, that capitalized on a natural tendency of the formerly abused child to zone out on his emotions.

(2) This article about the role of Islam in these crimes has been making its rounds in papers and on the net.

(3) This page has all the paperwork and exhibits online for your viewing (including the Defense exhibits of Malvo's sketches).
10 December 2003           
Ken Lammers


(1) The prosecutor made valiant efforts in the attempt to shake the Defense's expert psychologist:
During cross-examination today, prosecutor Robert F. Horan Jr. said Malvo committed his first killing at Muhammad's bidding just 10 weeks after he ran away from his mother. Malvo confessed to the Feb. 16, 2002, slaying of Keenya Cook in Tacoma, saying he walked up to her house and shot her in the face at point-blank range.

"By February 16 he goes out and shoots a woman he doesn't even know in the face and kills her," Horan said in questioning the defense psychologist. "And it is your testimony he did this because he was indoctrinated by Muhammad?"

Psychologist Dewey Cornell said Malvo wanted to please Muhammad and that Cook's killing served as Malvo's first test that he would do Muhammad's bidding.
- - -
Horan suggested Tuesday that Cornell sought to change Malvo's attitudes and played chess with him in order to do so.

Cornell, a clinical psychologist and professor at the University of Virginia, said he played chess with Malvo "to improve our relationship ... so that he would be more likely to tell me the truth."

Horan queried later, "You were getting paid by the taxpayers, weren't you?"

"Not for the chess time," Cornell responded.
- - -
[June 1] was the first time, Cornell said, that Malvo acknowledged that he had been manipulated by Muhammad and began to tell a different version of events. Malvo began to say that he been only the spotter -- not the shooter [em dash] in all but the final sniper shooting.

That, Cornell said, is the real Lee Malvo.

Prosecutors don't buy it. In crossexamining Cornell Tuesday, lead prosecutor Robert F. Horan Jr. made a mockery of Malvo's conversion, repeatedly referring to the "old Malvo" and the "new Malvo" as if they were two different people. Horan asked which Malvo had committed various crimes, and which Malvo that Cornell had evaluated.

But Cornell wouldn't play along. "You want to call it the old Malvo and the new Malvo, but I wouldn't say there's one day in which there's a new Malvo," said Cornell, a University of Virginia psychologist who spent 54 hours with Malvo this year. "I'd say there is a process he went through and is continuing to go through."

(2) The Defenses next witness is "an international authority in the field of child soldiering":
"The purpose is to get children to do what they've been told without emotions getting in the way," Neil Boothby, an international authority in the field of child soldiering, told jurors as Malvo's capital murder trial continued in Chesapeake.

Boothby, who has observed child soldiers in war-torn countries such as Rwanda and Bosnia, testified that guerilla or state-sponsored leaders indoctrinate children to kill for a variety of supposedly just causes: religious, political, ethnic or racial reasons.

Boothby described an "emotional numbing" process that can render child soldiers so completely brainwashed that the youths can operate free of direct adult supervision and will not turn on their leaders if captured.

If a leader learns a child soldier has doubts about killing, Boothby said, the leader often will portray those moments as a sign of weakness.
. . .
Chief prosecutor Robert F. Horan Jr. vehemently objected to Boothby's testimony, saying it was irrelevant to the string of sniper attacks that left 10 people dead and three more wounded from the Washington suburbs to the Richmond area in October 2002.

"I'm not aware of any war fought by children in the United States," Horan argued. Malvo "wasn't prepared for war, he was prepared for assasination."

My comment: I really wish I could be in the courtroom watching the jurors' reactions. I know how all this reads in the papers - an overbearing prosecutor, trying too hard, is overmatched by Mr. Cooley and company. However, without watching the trial in progress I know better than to assume that is how it is actually playing out. It could be that the prosecution is in tune with the jury and Mr. Cooley & Co. look like they are scrambling around desperately for something, anything which might save their client (not that anybody I know has ever seen Mr. Cooley scramble in a courtroom). Still, I think that at the end of the day the case is just so overwhelming that the prosecution will win the innocence / guilt phase. The real fight remains the battle over whether the kid will be killed or not.
09 December 2003           
Ken Lammers

Sniper: Malvo:

(1) The most interesting development of the day was the kid telling the psychologist that he wasn't the guy who pulled the trigger:
[P]sychologist Dewey Cornell said Malvo told him he was the spotter, and told Muhammad, "SAC one, go" -- "the sign that it was clear to take a shot," Cornell said.
. . .
Cornell said Malvo's confession -- made to Fairfax County police and the FBI -- was "inaccurate," and was an attempt to spare Muhammad a death sentence.

The psychologist testified that Malvo told him "he was the spotter on every [sniper] shooting up until the last one," contradicting the statements he made to police.

"Lee always admitted that he was involved in the shooting with Mr. Muhammad," Cornell said. But the psychologist said he believes Malvo took the blame because he blamed himself "for the failure of the mission" when they were captured. Malvo was supposed to have been on lookout when they were captured, police said.
(2) The psychologist also outlined laid out the treatment Malvo had received from Muhammad:
Cornell recounted the progression of Muhammad's alleged indoctrination of Malvo as the teenager's lawyers continued their push to prove Malvo not guilty by reason of insanity for the October 2002 sniper shootings. One of the legal definitions for insanity includes an inability to determine right from wrong.

Malvo's lawyers contend Muhammad, now 42, brainwashed Malvo, now 18, and trained the teen to shoot the high-powered rifle used in the shootings that left 10 people dead and three wounded from the Washington suburbs to the Richmond area last fall.

Cornell traced the genesis of Muhammad's alleged brainwashing of Malvo, starting with how Muhammad regaled Malvo and other boys on the island of Antigua with tales of war exploits. He bought them ice cream and taught them karate.
. . .
Cornell, who has interviewed Malvo for 54 hours during the past several months, testified that Muhammad filled Malvo with hate and racial prejudice toward white people.

Muhammad allegedly made Malvo listen with headphones to audiotapes of hate-filled speeches as the teen fell asleep. Muhammad selectively culled the speeches from the writings of civil-rights figure Malcolm X, Cornell testified, adding that one such tape began with music by reggae artist Bob Marley but then shifted to hateful speech by someone else.
(3) The psychologist also described Muhammad's teaching to Malvo about right and wrong:
Cornell said Muhammad and Malvo often discussed right and wrong, and Muhammad told him "that right and wrong do not exist."

Muhammad said the two were in a war, and that "the winners in a war determine which killings are right and wrong," Cornell said.

In Malvo's initial interviews with Cornell, he defended Muhammad. After several months, though, Malvo said he realized that Muhammad had manipulated him.

"He realized he was an expendable person" to Muhammad, Cornell said, recalling that Malvo wondered: "If I was doing right, why did God let it stop?"

Malvo also had misgivings about Muhammad's plan for the sniper attacks, but felt compelled to follow Muhammad's orders.

"Mr. Muhammad gave him pep talks that black people were killed every day and that in times of war, innocent people would die," said Cornell, who interviewed Malvo more than 20 times after his arrest.
(4) And there was reinforcement whenever Muhammad saw Malvo wavering:
Cornell said that Malvo told him he was in "turmoil" over Muhammad's decision to begin a series of shootings. "He felt an obligation to follow his father, but he started to have some misgivings, which, to him, was stressful. He thought the only way out of this was to kill himself."

Cornell said Malvo told him that when Muhammad sensed he was losing his resolve to follow his orders, Muhammad would tell the teenager: "Soldier, you are not getting afraid. Soldier call yourself to attention."
(5) Malvo believed that he would be killed if he deviated from the "mission":
Muhammad often told Malvo that Malvo should shoot and kill Muhammad if he ever strayed from the mission, Cornell said. Malvo assumed the same would happen to him if he deviated, according to the witness.
(6) Some of the psychologist's presentation was not allowed by the judge:
The judge in the trial of sniper suspect Lee Boyd Malvo banned an audiovisual presentation by a defense psychologist Monday after prosecutors complained it was full of inadmissible evidence including Malvo's baby pictures.
. . .
Prosecutor Robert F. Horan Jr., who was given an advance copy of Cornell's presentation, said it included, among other things, baby pictures intended to soften up the jury.

``I've never heard of a psychologist who bases his opinion on what a baby picture looks like,'' said Horan, who likened the presentation to the type of brainwashing the defense claims was imposed on Malvo by sniper mastermind John Allen Muhammad.

Circuit Judge Jane Marum Roush agreed with Horan that Cornell's presentation was ``replete with inadmissible evidence'' and barred the defense from displaying it.
(7) Nevertheless some video came in over the prosecution's objection:
Cornell also said Malvo attested to being a fan of "The Matrix," a movie that depicts humans being under the control of an evil computer-run government. Cornell said Malvo had watched the movie more than 100 times and that the teen identified with the hero of the movie, who is to free humans who are so oppressed they don't know they are being dominated. Cornell said Malvo believed blacks were in a similar position.

The defense played a violent segment from the movie showing protagonists gunning down police and others, as well as clips from sniper video games, including "Halo," "Covert Ops" and "Ghost Recon."

One of the games includes "God Mode," in which the player is immune to an enemy's bullets. Malvo and Muhammad used the phrase "Call me God" in notes they left for police at shooting scenes and in phone calls to investigators. "Another kill," one of the games recites after each fatal shot.

"I'm not saying it controlled his actions," Cornell testified of "The Matrix." But he said the movie might have desensitized Malvo to violence and also spurred aggression.
(8) And then there was some rather strange evidence about Malvo hating cats as a child:
As a child, sniper suspect Lee Boyd Malvo hunted and killed cats with a slingshot, one of the first signs of emotional problems in an otherwise "strikingly obedient child," a psychologist testified Monday.

Malvo once had a pet cat but grew to hate cats, said psychologist Dewey Cornell, who has interviewed Malvo 21 times since February. Cornell said Malvo's mother, Una James, would beat the boy because the pet cat would sleep in Malvo's bed and soil the sheets.

"If he saw a stray cat he would become angry and shoot the stray cat. He hit some of the cats, and probably killed some of the cats," Cornell testified at Malvo's trial. "This was probably the most serious problem in his childhood.

(9) This article talks about how extremely bright Malvo was and how good he was in school - before Muhammad got complete control over him.

(10) A discussion over whether it would be tactically correct to put Malvo on the stand.
08 December 2003           
Ken Lammers

Sniper: Malvo:

(1) The Defense called an expert on brainwashing to testify at the end of last week. The prosecution objected:
Friday’s testimony centered on indoctrination, despite Fairfax County Commonwealth’s Attorney Robert F. Horan Jr.’s assertion that it was “a red herring” in a case with an insanity defense.

Horan objected repeatedly to questions about whether Malvo’s frequent moves, restricted diet or lack of a father figure could have contributed to his indoctrination by Muhammad.

Such hypothetical questions “must give the full picture of a life,” Horan said, not just pick and choose details.

Eventually, Martin was allowed to answer a question by defense attorney Thomas B. Walsh, who asked if Malvo’s nomadic existence would “be consistent with the condition that would facilitate someone being indoctrinated.”
. . .
Horan continued to object, stating that the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition “never, never, never defines indoctrination as a mental disease.”

The reference manual calls indoctrination “a dissociative disorder not otherwise specified,” Horan read. Malvo laid his head on his arms, folded on the table, and watched as the attorneys debated during a 30-minute jury recess.

Walsh explained that Martin was there not to address Malvo’s background but to testify from his professional knowledge and “simply set the stage” for later expert testimony. Fairfax County Circuit Judge Jane Marum Roush then permitted Martin to answer Walsh’s questions.
When allowed to testify, the expert's testimony was in the form of general information rather than direct application to Malvo:
Martin, who testified that he was a lieutenant in a religious cult in the early 1970s, said that there are a series of techniques cults or individuals use to indoctrinate people. Typically, he said, they have a dogma or ideology, and a system for teaching that ideology.

Cults also attack the person's past belief system, Martin said. "In other words, out with the old and in with the new."

Cults usually place some sort of demand on people they are indoctrinating, Martin said, whether it be enduring lectures, watching videotapes, or engaging in exercise and meditation.

Martin, who according to The Associated Press has not interviewed either Malvo or Muhammad, also said cults promote a fear of leaving a group, and create additional incentives -- in the form of extra sleep or food, for example -- for remaining in the group.

Martin said people have a common misconception that most indoctrinated people are isolated from society. "It's a misnomer to think that everything about these situations is like a concentration camp," he said.

And, he said, there can be one-on-one indoctrination of the sort defense attorneys say happened with Muhammad and Malvo.
(2) A couple of former FBI profilers discuss the possible motives of the shootings:
[I]t is far from clear whether the snipers had extortion in mind when they started killing.

They did not even suggest they wanted money until a vague reference to "negotiations" in a phone call to police on Oct. 15, the day after the 11th shooting - the murder of Linda Franklin at a Home Depot store in Fairfax County, for which Malvo is now on trial.

They did not get around to demanding the $10 million until four days later, after wounding a man outside a restaurant in Ashland. An entry in their laptop computer showed they had considered demanding $5 million.

The snipers wanted the money placed in a bank account from which they could withdraw it through ATMs anytime, anywhere in the world. Even Muhammad must have realized how far-fetched that was, said Robert K. Ressler, a former FBI profiler who has interviewed numerous serial killers. He said the snipers probably thought up the extortion plan in the middle of the killings as an excuse to taunt and challenge the police.

If money had been the snipers' motive, Fox said, "it would have been easier for them to rob a bank."

"Some people just like to kill other people," said Gregg McCrary, another former FBI profiler. "They try to rationalize the murders afterward, but it might not be any more complicated than that."
(3) The Voice of America discusses the brainwashing defense:
"Juries are fundamentally reluctant to accept the notion that humans are so pliable, that human will can be bent in that way," he said. Sociologist James Richardson teaches at the National Judicial College, a training center for judges at the University of Nevada at Reno. He says the brainwashing defense has been tried unsuccessfully in high-profile cases like the 1976 trial of newspaper heiress Patricia Hearst. She was kidnapped by armed revolutionaries but - toting a machine gun - later joined them in robbing a California bank. Unmoved by her defense of indoctrination, a jury found her guilty. Mr. Richardson says that although jurors are often sympathetic to the emotional pressure put on malleable suspects by conniving accomplices, they return to a premise of American justice, that people are responsible for their own actions.
(4) The Guardian sums up the Defense so far.

(5) Another article which discusses that pictures:
One drawing depicts a naked black man hanging in a public square from chains around his wrists. Nearby, a slave takes orders from his master. A caption says: "THIS IS WAR. IT WILL GO ON AND ON UNTIL YOU ARE TOTALLY DESTROY, YOUR WHITE STATE OF MIND . . . HOLY WAR! JIHAD."

Another shows the Star of David in the crosshairs of a gun scope, with the declaration, "WANTED DEAD! True Terrorists. Fight to destroy oppression," written next to the image. And in another, a sniper lies in tall grass setting his rifle sights on a target: "NO PEACE! ONLY PIECES. You got lucky boyz! (Great job). No suppressor! YOU WILL NEVER BE SAFE!"
(6) An article about Muhammad and Malvo buying doughnuts.
07 December 2003           
Ken Lammers

Death - the Federal Supreme Court:

(1) Monday the Court will hear an amazingly wide ranging review (Info from this page on FindLaw / links are on that page):
Delma Banks, Jr. v. Janie Cockrell, Director, Texas Dept. Criminal Justice
No. 02-8286

Did the 5th Circuit err in rejecting Banks' claim under Brady v. Maryland, 373 U.S. 83 (1963), that the prosecution suppressed material witness impeachment evidence that prejudiced him in the penalty phase of his trial, on the grounds that: (a) the evidence supporting the claim was procedurally defaulted, notwithstanding the fact that there was no reasonable basis for concluding that counsel for Banks could have discovered the suppressed evidence prior to or during that trial or state post-conviction proceedings; and (b) the suppressed evidence was immaterial to Banks' death sentence, where the panel neglected to consider that the trial prosecutors viewed the evidence to be of "utmost importance" to showing a capital sentence was appropriate?

Did the 5th Circuit act contrary to Strickland v. Washington, 466 U.S. 668 (1984) and Williams v. Taylor, 529 U.S. 362 (2000), when it weighed each item of mitigating evidence separately and concluded that no single category would have brought a different result at sentencing without weighing the impact of the evidence collectively?

Did the 5th Circuit act contrary to Harris v. Nelsen, 394 U.S. 286 (1969) and Withrow v. Williams, 507 U.S. 680 (1993) in holding that Fed. R. Civ. P. 15(b) does not apply to habeas proceedings because "evidentiary hearings" in those proceedings are not similar to civil trials?
There appears to be a wide variety of things that the Defense intends to try to put before the Justices:
Banks' attorneys will tell the court Monday that prosecutors hid evidence and systematically eliminated all blacks from the jury. They'll say that before his one-day trial, Banks' first lawyer interviewed no witnesses and failed to review the prosecution's evidence. He did not investigate Banks' social history or school records prior to the penalty phase of the trial. And the appeals courts never gave those lapses the attention they deserved, Banks' lawyers will argue.
. . .
[O]ver the past few terms, the court has been reshaping the nature of capital punishment by ordering changes in the way defendants reach death row.

The justices, led by newer members of the court who are still shaping their view of capital punishment, have outlawed executions of the mentally retarded; required juries rather than judges to impose death sentences; blasted racial jury-stacking in capital cases and heightened the standards for defense lawyers in death penalty cases.

Banks' case involves several of those issues and others, leading some experts to believe the justices may take another broad swipe at the existing capital system in their ruling.
(2) However the case which is getting more press is the Court's decision to make the call on whether Ring is retroactive:
In Ring v. Arizona, decided in June 2002, the court held that juries rather than judges had to make the crucial factual determinations that separated convicted murderers eligible to be sentenced to death from those who were not. While juries in most states have the role of determining the existence of "aggravating factors," five states — Colorado, Idaho, Montana and Nebraska, in addition to Arizona — gave that role to judges.

Inmates in those states with cases still on appeal received new sentencing hearings, and the states have changed their laws to conform to the Ring decision. The question for the Supreme Court now is whether inmates who have exhausted their direct appeals in state courts can bring habeas corpus petitions in federal courts to challenge the constitutionality of their death sentences.
Here's an article from Idaho, an article from Nevada, and an article from Nebraska - all discussing the potential effect of retroactive application.
Ken Lammers

Death - Minnesota:

By far the biggest flap in the press over the death penalty over the last week or so came from this State:
Gov. Tim Pawlenty said Tuesday he would push to reinstate the death penalty in Minnesota next year, saying he has had it with tales of violent sexual offenses.

"I think I speak for most Minnesotans — as a Minnesotan, as governor, as dad of two young daughters: I'm fed up," he said at a news conference, reacting to the arrest of a convicted sexual offender in the Nov. 22 disappearance of University of North Dakota senior Dru Sjodin.

Pawlenty said Sjodin's case was the "tipping point" in his decision.
The rallying of opposition to this was almost instantaneous:
Gov. Tim Pawlenty's call for the reinstatement of the death penalty in Minnesota is a profoundly troubling development which voters and legislators should reject.

Not only is state-sanctioned killing impractical, costly and ineffective as a deterrent to crime, but -- more important -- it would make all Minnesotans complicit in the very cycles of violence which everyone abhors and which are tearing at the fabric of our society.

As spiritual leaders of many of Minneapolis' downtown houses of worship, we stand with those who will resist this backward and frightening step. While we do not speak for members of our congregations, our firm opposition to the death penalty rises from what we understand to be the deepest values of our various faiths.

Rev. James Gertmenian of Plymouth Congregational Church and the Rev. Timothy Hart-Andersen of Westminster Presbyterian Church

"There are now numerous examples of innocent people who have been released from death row and many more examples of people being executed in a cloud of uncertainty about their guilt or culpability," said Caroline Palmer, president of the Minnesota Lawyers Guild and a member of Minnesotans Against the Death Penalty, a group formed this spring. "The trend in the United State is turning against the death penalty."

"Not only is it morally wrong … but it also is fiscally dumb," said Rep. Mindy Greiling, a Roseville DFLer. In other states, it costs millions of dollars to deal with the legal appeals of death row inmates.

"We cannot teach that killing is wrong by taking the lives of offenders," Kate Krisik, social concerns director of the Minnesota Catholic Conference, read from a letter from the Roman Catholic bishops' organization.

"This should really terrify everyone in our communities of color in Minnesota," said Spike Moss, a Minneapolis African-American leader. Moss and others, including the head of the Minneapolis NAACP, cited studies that have found people of color are disproportionately represented on death row.

"It is a form of torture," said Paul Werger, state death penalty abolition coordinator in Minnesota for Amnesty International.

"Thou shalt not kill. This is God's commandment," said Brian Rusche of the Joint -Religious Legislative Coalition.

NAACP national chairman Julian Bond, in St. Paul on Friday for Minnesota's 20th Human Rights Day Conference, joined those voicing concerns about Gov. Tim Pawlenty's call for reinstating capital punishment in Minnesota.

Bond said the death penalty is applied disproportionately to racial minority group members and is fraught with error. He called the governor's initiative a "bad, bad notion."

"There's a frightening hunger in part of the population for retribution rather than punishment, and that's never a good thing," Bond said. "It's not a good outcome in any case."
The Legislature's reaction seems to doom the effort before it begins

DFL House Minority Leader Matt Entenza of St. Paul says the governor's timing is regrettable.

"The members of my caucus were shocked that at a time that we should be out trying to figure out where this young woman is, that some politicians are trying to pander on hot button social issues," Entenza said.

Of the Senate members who gave an opinion in the survey, DFLers came down 25 to 2 against the death penalty and Republicans were split 10 to 10. But Hottinger said that he didn't want to declare victory and that a relatively popular governor and public anger over the Sjodin case should not be discounted. But, Hottinger said, "In the past, when there's been momentary angry public fervor, long-term thinking has prevailed."

In the House, where Republicans have an imposing 82-51 majority, with one vacancy, the numbers mirrored the Senate's. Republicans who took a side were opposed 31 to 26. DFLers who could be reached and picked a side were opposed 37 to 0.

Fully 85 percent of Minnesota's 200 legislators -- 67 senators and 133 representatives -- responded to the telephone survey conducted Wednesday through Friday. The 201-seat Legislature has one vacancy.

House Speaker Steve Sviggum, R-Kenyon, Pawlenty's indispensable ally and commander of a lopsided Republican majority, was only lukewarm about the new agenda item Wednesday. Sviggum was one of 30 House members who voted for capital punishment in 1997, the last time it came to a floor vote. There were 102 nays.

"I would tell you that there is nothing that puts it at the top of our agenda," Sviggum said. "It was kind of laid out without any discussion or notification. But if the governor introduces it, I would guess that it would come to a vote."
The only article I spotted in favor of the death penalty was this one which primarily takes issue with some inflammatory language used by the head of the NAACP.
Ken Lammers

Death - Illinois:

The reforms of Illinois death penalty have been lauded by reformers in its own Legislature, those who wish similar reforms would take place in Tennessee, and even Catholic activists.
Ken Lammers

Death - North Dakota:

It appears as though North Dakota's governor may introduce death penalty legislation but it probably won't pass.
Ken Lammers

Death - Maryland: More Comments on Lt. Governor Michael Steele's Failure to Follow Through.

When Lt. Gov. Michael Steele took office in January as the first black person elected statewide in Maryland, he vowed to set up a task force to find a way to fix the capital punishment system.

As a Catholic opposed on moral grounds to the death penalty, he said he was troubled by evidence of racial bias in the system.

Nearly a year later, there's no formal commission, and Steele hasn't contacted the leading death-penalty lawyer in the state public defender's office because, he said, "I'm still trying to identify all the players," The Washington Post reported Sunday.

Anti-death penalty activists say they can't get their calls returned from his office. And frustrated black lawmakers are questioning his commitment to changing a system in which blacks who kill whites are disproportionately represented among those sentenced to die.

Ken Lammers

Death - Oregon:

A judge has taken the death penalty in a case under advisement to determine whether it is too easy to kill someone in Oregon.

Defendant: Edward Morris
Ken Lammers

Death - Tennessee: The Tennessee Supreme Court Punts.

The Tennessee Supreme Court has refused to determine whether state law requires a new trial for a death-row inmate whose appeals presented DNA and other evidence that appears to prove his innocence in the murder of a woman.
. . .
The state justices' decision is likely to return the issue to a federal appeals court, where House's lawyer is confident his client can prevail. But House, who has multiple sclerosis, might die before that occurs, public defender Steve Kissinger said.
. . .
"My cynicism is starting to become very high in this case," Kissinger said Wednesday.

"It's clear, I hope to everyone, that the state has everything to gain from Mr. House dying on death row of natural causes. His case involves police misconduct and concealment of fabricated evidence and does not reflect well on the justice system."

Defendant: Paul Gregory House
Ken Lammers

Death - Florida:

Want help with your appeal? After you are convicted change your citizenship to Spain and sic the Spanish on the Florida courts.
Ken Lammers

Death - New York:

The NY Supreme Court's dodging of the question as to whether the death penalty statute is contitutional has even caught the attention of the press in Taipei probably because of the acrimony the latest decision has occaisioned:
"We're eagerly awaiting guidance on the constitutionality of the statute," said Michael Arcuri, the district attorney in Utica and president of the New York State District Attorneys Association. "The decision didn't give us any guidance."
. . .
The two associate judges who dissented on Tuesday, Victoria Graffeo and Susan Phillips Read, used harsh language as they argued that the court should have left in place a first-degree murder conviction for the Syracuse-area man, James Cahill III, who beat his wife with a baseball bat and later forced cyanide down her throat. Cahill is now to be sentenced to a maximum of life in prison for second-degree murder.

"The majority has substituted its `wisdom' and public policy choices for those of the Legislature," Graffeo wrote.
Ken Lammers

Death - New Jersey:

A bill to set up a committee to study the death penalty has passed the Assembly and the Senate Judiciary Committee just passed the bill unanimously. Now it faces the full Senate. It "would create an 11-member commission to examine capital punishment's deterrent effects, its cost, the high risk of wrongful conviction, whether it is fairly applied and whether the public continues to support executions."
Ken Lammers

Death - Arizona:

A letter to the editor pointing out how capital juries are stacked.
Ken Lammers

Death - California:

A woman declared mentally incompetent 3 years ago and prior to that who "had been hospitalized at least 20 times in the 12 years before" is now going to be put on trial for a hate crime murder.

Defendant: Marie Elise West
Ken Lammers

Death - Connecticut:

In Connecticut you have the right to speak before you are sentenced. You just don't have the right to speak when it would be meaningful.

Defendant: Robert Courchesne
Ken Lammers

Death Cases - Philipines:

The President of the Philipines lifted her moratorium on the death penalty as of January 2004. Shortly thereafter, it was clarified that this only applies to kidnapping cases. While some hailed this as a triumph, others condemned it including members of the legislature and a man hoping to take her job.

Death Cases - International:

(1) India may put the death penalty in place for "spurious drug makers."

(2) It might be somewhat difficult to extradite this fellow from Canada because the officer who investigated the case now has this to say:
"I'm haunted by the fact that I now think we seized an innocent man, with no valid Canadian arrest warrant, based on false evidence from the U.S."
There might also be some distrust based on a prior extradition:
Peltier, an AIM activist who is serving two life sentences for the 1975 murders of two FBI agents in South Dakota, fled to Canada. He was extradited in 1976 on the basis of affidavits from a witness named Myrtle Poor Bear, a mentally challenged woman who claimed she was Peltier's girlfriend and had seen him shoot the two agents.

Poor Bear later recanted her evidence after it was proven she had never met Peltier nor witnessed the shootings.

Warren Allmand, a former justice minister, and the judge who extradited Peltier later said they would never have agreed to his extradition had they known some affidavits and evidence presented by the U.S. were false.
Defendant: John Graham

(3) The victor in the strangest case of the week catagory:
Prosecutors in the case of the German who killed and ate a man could face legal problems proving he had committed murder because the victim offered himself for slaughter and wanted to be eaten.
(4) Kenya's government plans to do away with the death penalty:
Wilfred Machage, assistant minister for home affairs, said: "The practice has been used worldwide in the past but latest trends show that it is an abuse of an individual's right to life and it is not part of the measures that can help a convict fit in society because they will be dead."
(5) The honorable Alex Nwofe, Chairman, Nigerian House of Representatives Committee on Justice & Legal Matters:
It is to the credit of the Federal Ministry of Justice that it has assumed responsibility of not only raising issues of this nature but for ensuring that Nigerians are properly informed on the many issues related to death penalty.

This is why my Committee looks forward with much expectation to the outcome of this dialogue. Specifically the interest of the Committee on Justice and Legal Matters in the death penalty dialogue is based on our desire to raise key concerns about the state of the Nigerian Criminal Justice System. We believe that this dialogue should not be based solely on whether or not the state should be given the power to kill. This must also be a platform where stakeholders should collectively explore means by which the Federal Government and I mean specifically the Presidency would put the reform of our justice sector on top of its agenda.
Ken Lammers

If a judge dismisses your case pretrial you can apeal and win. However, that doesn't mean your case will actually be decided by a jury:
The case was so lacking in evidence it "offends my sense of justice," declared U.S. District Judge David Sam.

Sam sent Justice Department lawyers packing Friday after throwing out what he saw as a fanciful racketeering case. It was the second time he had rejected the case, and this time it was for good as he acquitted the defendants.
Maybe all the rumors about judges being upset with the draconian federal system and turning on the prosecutors are true. After all, this guy doesn't exactly sound like he would be your prototypical left-leaning, Defendant friendly kind of judge:
Sam, 70, has spent 18 years on the federal bench. He interprets law literally, frowns on fanciful legal theories and emphasizes a limited role for government, especially the federal government, in constitutional affairs.
And the case may even raise Republican ire:
The acquital in the scandal could have repercussions for the prosecution. Rep. Chris Cannon, R-Utah, who chairs the House Judiciary Committee's Subcommittee on Commercial and Administrative Law, said the panel might hold hearings next year to examine the government's handling of the case.

"After so obvious an abuse of power it is now the responsibility of Congress to see what has gone wrong," Cannon said. "This should include making the victims of fouled prosecutorial discretion whole, at least for the cost of their defense."
05 December 2003           
Ken Lammers


Under Construction Until Sunday
Ken Lammers


(1) More of the pictures he drew:

click on any picture above to go to the article it is with
One of Malvo's attorneys, Michael S. Arif, said in an interview Tuesday -- before the judge overseeing Malvo's trial had issued a gag order -- that many of the drawings were done when the teenager was held in isolation at the jail and that the issues he focused on, such as racism, were embedded in his mind by Muhammad, who was convicted and sentenced to death for a sniper slaying.

"Muhammad was off center and felt victimized by white society," Arif said. "Lee is a Jamaican, not an African American. This is not his fight. It was Muhammad's fight, if there was a fight to be had."
The pictures may also indicate what this paper calls "the Matrix Defense." Shockingly, the prosecutor just doesn't believe:
"How many million people have seen this movie and how many have committed murder?" asked Horan rhetorically during a Boston Globe interview.
Of course, the fact that millions of people have seen something and reacted differently than a single insane person did would not seem to be particularly relevant because they were sane.

(2) Here's the letter Malvo wrote which the judge did not allow into evidence.

(3) The publishing of the letter was one of the reasons the judge has now imposed a gag order on the attorneys.
In court Thursday, the judge questioned the prosecutors and defense attorneys in the case, and all told her they did not leak the letter.

Roush also said she was "disturbed" by the daily news conferences defense attorneys had been holding after court.

"I'm going to enter a gag order because I am increasingly disturbed by this. I think it's an attempt to reach the jurors or the jurors' families," Roush said. "No more talking to the papers, no more having press conferences."
(4) There was a fuss over the expert witnesses that the Defense started to put on yesterday:
Robert F. Horan Jr., the lead prosecutor, argued that some of the experts should not be allowed to testify at all and sought to limit the testimony of others. He told the judge that none of the experts the defense presented or proposed to present could say Mr. Malvo was insane in a legal sense.

"We have an insanity defense that's like a puff of smoke," Mr. Horan said. "There is no real claim that he was insane under Virginia law."

The most defense experts had concluded in their pretrial reports, Mr. Horan said, was that Mr. Malvo's ability to tell right from wrong was "severely impaired." That was not enough, he said.

Judge Jane Marum Roush, in a comment from the bench, agreed with Mr. Horan's description of the legal standard but still allowed the defense's first three expert witnesses to testify.

Judge Roush said the insanity defense required proof that Mr. Malvo was categorically incapable of making the distinction.

"I imagine someone is going to have to say at some point that the indoctrination in this case was so severe that it made Mr. Malvo unable to know right from wrong," she said. "I would be sorely disappointed if there is no such testimony."

Craig S. Cooley, a lawyer for Mr. Malvo, responded, "No more than I would be," and added that defense experts would testify that Mr. Malvo was indeed insane in that sense.

(5) [A] clinical psychologist testified that Malvo was cheerful during a daylong neuropsychological evaluation in August, a mood he called ``really quite odd.''

``It was almost a goofy affect, if you will, which seemed quite out of step with the seriousness of the situation,'' said David Schretlen, who teaches at Johns Hopkins University. ``My conclusion is that Mr. Malvo produced an abnormal neuropsychological examination.''

Schretlen said on cross-examination that he found no evidence of psychosis.


(6) When a social worker first interviewed sniper suspect Lee Boyd Malvo in jail, she was struck by the fact that the 18-year-old, who had spent almost all his life in Jamaica, acted like an oppressed American.

Carmeta Albarus, herself a Jamaican native, testified Thursday at Malvo's trial that she was taken aback that Malvo's Jamaican accent had totally disappeared. Malvo talked about racial injustice excessively, even though he attended one of the best high schools in Jamaica and lived in a nation where more than 90 percent of the country is black.

What's more, he insisted he be called John Lee Muhammad and was extremely defensive of the man he considered to be his father, John Allen Muhammad.

"Something was amiss in this Jamaican boy," she said.
. . .
Malvo also had complete confidence in Muhammad's plan to create a new, righteous society by taking 70 boys and 70 girls of all races to a compound in Canada who would then go out and change the world.

"I pointed out how ludicrous the thought was ... but he felt very confident this could be done because we have to start with the children," she said.

The $10 million demanded by the snipers in notes left at the crime scenes would have provided the funds to buy the land and establish the compound, Malvo told Albarus.


(7) Albarus said about her first meeting with Malvo in March: "The thing that really jumped out at me was Lee spoke so much like an American. There was not even the trace of a Jamaican accent," which she thought remarkable because her own accent has not disappeared after 19 years in the United States.
. . .
Albarus also decided that "I would speak to him almost exclusively in Jamaican patois. I wanted to see . . . if his Jamaican identity was totally erased. He understood me, but he responded with his American accent."
. . .
Through trips to Jamaica and Antigua, Albarus said, she began separating Malvo from Muhammad's shadow. She said she interviewed Malvo's father, Leslie Malvo, and brought back an audiotape of his voice for Malvo in May.

"It was the first time Lee was hearing his father's voice in seven years," Albarus said. She said that Malvo reverted to his Jamaican accent and that when Leslie Malvo said, "That man [Muhammad] did this to my son," Lee Malvo had tears in his eyes.

(8) This article would seem to indicate that (with the press at least) Mr. Cooley is winning the battle for the hearts and minds over the prosecutor.
04 December 2003           
Ken Lammers

Welcome for those of you from Freespace. The post can be found by scrolling down to Tuesday at 22:28.

I apologize to all. I fixed the perma-links, then I rewrote the site and now the perma-links seem to be broken again. AAArrggg!!!! Hopefully, I'll get a little time to try and fix the problem this weekend.
Ken Lammers


The Defense wasn't allowed to introduce the letter to the jury wherein Malvo wrote (in reference to Muhammad) that Malvo had "a father who I know is going to have to kill me for a righteous society to prevail." The prosecutor had objected that "The letter is pure, unadulterated hearsay" - as opposed to the impure, adultrated kind of hearsay. That was a tough call for the judge. I think there is a legitimate argument for the "present state of mind" exception to the hearsay rule. It's a close question. Of course, she's the person who gets paid the semi-big bucks to make those decisions, not me.

The best article in the last 24 hour cycle is this one from the Washington Post. The Defense theme is the poisoning of Malvo's mind by Muhammad:
The defense also introduced a stack of more than 100 drawings Malvo has made during his year in the Fairfax County jail. Many are heroic portraits of such figures as Saddam Hussein, Louis Farrakhan and Moammar Gaddafi, and they include language such as "Stand up black men, just stand up together" and "I Lee will die for the revolution."

One drawing features a rifle sight on a police officer's head. Others are messages to Fairfax Commonwealth's Attorney Robert F. Horan Jr.; one says, "Wanted Horan dead." A drawing of the World Trade Center includes Osama bin Laden and the word "prophet." Another picture shows a rifle sight on the White House with a threat: "Sept. 11 we will ensure will look like a picnic to you."

Yet another shows Malvo with a smiling Muhammad's arm around him, with the caption "Father and son."
. . .
In 1990, Muhammad was shipped to Saudi Arabia as the military prepared to move into Kuwait. He was assigned to an engineering squad headed by Sgt. Kip T. Berentson, who testified that as Muhammad's supervisor, he sometimes filed complaints about Muhammad's performance. He said Muhammad felt he was picking on him.

"Did he complain that this had some sort of racial tone?" Cooley asked. Berentson, who is white, said yes. He said Muhammad filed counter-complaints about Berentson, but none was substantiated.

In November 1991, an incendiary grenade was tossed into Berentson's tent. He said Muhammad was "suspected and removed [from the unit], but not convicted."
And here's probably the oddest story of the day. It seeks to inflate a psychiatric witness whom both the prosecutors in the Muhammad case and the Malvo case wanted to testify in their cases. He was not needed in the Muhammad case because Muhammad self-destructed his potential insanity defense by acting irrationally (Hmmmmm. . . ). In the Malvo case he was not allowed because of potential confidentiality conflicts between the two cases. The article asks why the Defense fought to keep him out of the trial. A better question might well be why both prosecutors wanted him so badly as their witness. I suspect both questions have the same answer: because both sides think he is entirely in the prosecutors' pocket.

And almost as strange: A Louisiana prosecutor is trying to arrange to have the snipers come to East Baton Rouge Parish for trial and he's promising that they'll get the death penalty down there.
Ken Lammers

Another person freed by DNA testing after spending a loooonnngg time in prison.
03 December 2003           
Ken Lammers

Mark Glaser, at USC Annenberg's Online Journalism Review, has written an article about the use of web sites by famous Defendants. I think it's worth reading - however, I might have a slight bias.
Ken Lammers

The plague trial is over - read all about it over at Sleepless in Midland.
Ken Lammers


(1) Muhammad's actual son testified today:
In his testimony, Lindbergh Williams said he loved his father, but also recounted to the Malvo jury how Muhammad repeatedly told him of the alleged abuse he was receiving from his mother.

"If you tell an 11-year-old something on a constant basis every day, every day, eventually you're going to believe it," Williams said.

Williams, now a 21-year-old janitor in Baton Rouge, Louisiana, was Muhammad's first son, born to Muhammad and his first wife, Carol Williams. The couple separated when Lindbergh was a toddler.

When Lindbergh Williams was 11, he spent a summer with his father. Lindbergh described his father as person with a "big heart" who loves children. But, Williams said, the man also is "a manipulator."

"If he sees weakness, he'll take advantage of your weakness," he testified.
. . .
Prosecutor Robert Horan Jr. questioned Williams in an apparent effort to show that as an 11-year-old he was able to overcome the will of his father.

But Williams said it was not his decision to return to his mother. Instead, he said, Muhammad's second wife, Mildred, persuaded Muhammad to return the boy.
(2) Muhammad's first wife testified that Malvo wrote a letter trying to get help to get out of his situation prior to the Washington murders.

(3) The exchange between the prosecutor and Mr. Cooley when the Defense began to introduce the tape of Muhammad's hearing wherein he lost his children:
Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. called the defense’s theory “nonsense’’ and “a red herring.’’

“Thousands and thousands of people lose their children every year in divorce court’’ and never kill people, Horan argued after objecting to jurors being allowed to hear custody testimony.

Judge, that is such speculation, it should never be allowed in this trial. Because that’s all it is. ... They were here on a totally different mission,’’ Horan said.

“Their intent was to get the government to give them money. … The goal of killing Mildred Muhammad is a pipe dream. It is a convenient pipe dream.’’
. . .
Roush sent the jury out of the room and asked Cooley, "Is anybody going to say the custody decision was at all a reason for the shootings?"

Cooley cited a number of threats against Mildred Muhammad and said, "Mr. Muhammad's intentions were recovering his children." He noted that when Muhammad was arrested last year, he told investigators of his nationwide search for his children.

Roush allowed the jury to hear the tape.
(4) A glimpse of things to come . . .
Malvo's lawyers theorize John Muhammad planned to kill his ex-wife during the sniper shootings, and then regain custody of the children. The same theory was advanced by Muhammad's prosecutors.
. . .
Cooley said the contrary positions taken by different prosecutors for the same crimes are difficult to reconcile.

"They have certainly taken contrary positions in these two trials, about as contrary as you can get," he said outside of court. "I think you'll see it raised as an issue later in this trial."
(5) Muhammad and the grenade:
Also on Tuesday, Roush ruled that jurors can hear about an incident in which Muhammad allegedly threw a grenade into fellow soldiers' tent while serving in the Army during Operation Desert Shield. Muhammad was never charged in the matter, and no one was injured.

Prosecutor Robert F. Horan Jr. argued that Muhammad's military records describing the incident and the accusations against him should not be permitted as evidence because they contained speculation from soldiers who could not be cross-examined in court.

While allowing the alleged grenade attack to be introduced as evidence, Roush barred much of Muhammad's military records, saying they contained speculation and opinions about Muhammad that are not permissible in a trial.
(6) More on Malvo's mother and her failure to come to testify.
02 December 2003           
Ken Lammers

Police can break your door in if you don't answer within 20 seconds. So sayeth the Supreme Court of the United States. Just a bare 20 seconds. They don't have to hear a toilet flushing or someone saying. "Quick, burn the stuff!" They can just break in the door because they have a warrant and you don't answer quickly enough - they can assume that you are creating exigent circumstances on the other side of the door.

First, I have to agree with the defense attorney's appraisal of the decision:
Banks' lawyer, Randall Roske, criticized the ruling, saying it will lead to aggressive searches.

"Police are going to read this as, 'Knock and announce and kick the door in,'" he said.
Yep, absolutely correct. In fact, I'm sure that's already the way police handle this situation (and I've heard about plenty of these police home invasions from clients).

Let's assume police officers with some common-sense, a healthy survival instinct, and an idea that someone dangerous is on the other side of that door (who may fight back or destroy evidence). The knock and announce does not go like this: BANG!! BANG!! BANG!! POLICE! OPEN UP WE HAVE A WARRANT! [wait 10 seconds] OPEN UP OR WE'RE GOING TO BREAK THE DOOR DOWN AND COME IN! [wait 8 seconds] O.K. HERE WE COME!! The knock and announce goes like this: tap, tap, tap (with the knuckle of the pinky finger) - police, open up we've got a warrant - wait a second or two - WHAM! Break through the door rush the house before anyone can react and get control while the occupant(s) are in shock.

Here is a statement which reflects a world view which has not been tainted by reality:
Justice David H. Souter, writing for the nine justices, said while "this call is a close one, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer."

He noted the unfortunate timing of the afternoon raid, which brought Banks "out dripping to confront the police." But police didn't know Banks was in the shower, he said.
Then why did they break into the house in broad daylight? The most likely explanation for a daylight entry is that they thought he was showering, or sleeping, or the like and wouldn't be able to react quickly to get to his weapons or destroy the evidence. They probably had such information from observing him or via the everpresent C.I. (after all they had enough info for a search warrant which must have come from the same source).

Sadly, criminal law decisions rarely seem to reflect reality. It's not really the Justices' fault. After all, how many of them have ever worked as a criminal defense attorney over a long enough period of time to gain an overview of the way things really work (if at all)?

Heck, let's see if we can get Craig Cooley to fill the next opening on the Supreme Court.
Ken Lammers

A judge in New Zealand issues arrest warrants for 63 people who failed to come to court for jury duty on the same day.
Ken Lammers

The Pentagon does an about-face.

By a "happy" coincidence Yaser Hamdi was born in South Carolina. Thereafter, he grew up in Saudia and fought against the U.S. as part of the Taliban. Still, if only by accident of birth, he is a U.S. citizen and it should not have taken two years for the military to let his attorney meet with him.

What do I hear you saying? I'm being too soft on the worm? Au contraire, mon frier. If he is a citizen entitled to the priviliges of our system he is also obligated under our laws:
U.S. Constitution: Article III

Section 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Ken Lammers

Sniper: Malvo:

The Defense played a tape of the custody hearing wherein Muhammad lost his children to his ex-wife for the jury. The prosecutor's response?
"It is absolutely a red herring in this case," Horan said. "They never made any try to kill her. Never. They were here on a totally different mission. This defendant said so."

Still, not everything went the Defense's way. Muhammad's ex-wife was not allowed to testify as to the death threats made against her by Muhammad. Still, the testimony sounds like it might have been somewhat effective:
In a firm voice Mildred Muhammad testified earlier before the jury that her husband was a very strict parent. "He was controlling," she said, "he was the disciplinarian, but his tactics were he had to have complete control of them."

Mildred Muhammad said she obtained a restraining order against her husband after he came to her house following the couple's separation and pushed her aside to get in the door so he could visit with his son, John Jr., who was ill at the time.

She also said after the separation that her husband had her phone number changed and didn't give her the new number. "Then he would say, 'Thought you would get away from me, didn't you?' " Mildred Muhammad testified.

She said that she called 911 on Oct. 11, 2002, when she saw a dark colored Chevrolet Caprice or Impala outside her home in Clinton, Md. "The driver just sat and stared," she said, "but the passenger had a newspaper that went up to cover his face."
The judge also turned down the Defense's request that Muhammad be transported to the court even though his attorneys have already told the Defense that he will not testify: "'Transporting (prisoners) around the state willy-nilly should be done sparingly' because of security risks, she said."

The Defense also called John D. Sewansker, a former classmate of Malvo, to testify about how Malvo behaved while he was in school. Sewansker "said the two were competitive in sports and studies, and that Malvo was eager to debate various issues. Malvo eventually began to debate the merits of Islam, which would get him in trouble with teachers at the school run by the Seventh-Day Adventist Church."
01 December 2003           
Ken Lammers

Curious. Why call a jury back after it has finished its duty?
Ken Lammers

Sniper: Malvo:

(1) The NYTimes pays homage to the judge.

The article also contains the following exchange:
Mr. Horan, the prosecutor, is already growing exasperated with the defense's case, though it is only getting started. He objects often, arguing that evidence about Mr. Malvo's childhood cannot tell the jury anything valuable about his culpability for his acknowledged role in the sniper shootings.

"I understand," Mr. Horan asked a witness who had testified about the strict discipline Mr. Malvo had been subjected to, "that in Jamaica if you misbehave as a child, you get a beating."

The witness, Lloyd Barrett, agreed.

"Have you ever lived with the Irish?" Mr. Horan asked.

Mr. Barrett looked mystified.

Mr. Cooley, in a news conference, expressed a sort of sympathy for his adversary.

"When we think of adjectives to describe Mr. Horan," he said, "patience is probably not No. 1 on the list."

(3) Subpoenaed: A Washington man has been subpoenaed but the big question for this week is whether Muhammad will testify.

(4) A quick description of the difference between the prosecution's case and the Defense's case:
Defence attorneys contend Malvo is innocent by reason of insanity, thoroughly brainwashed by Muhammad. Their strategy so far has included testimony showing a dramatic change in Malvo after he met Muhammad in 2000, when Malvo's mother left him to fend for himself on the island of Antigua.
. . .
Prosecutors, by contrast, portray a cold-blooded killer who functioned in concert with Muhammad and was the triggerman in most of the 13 sniper shootings in and around the US capital.
(5) Describing the constant disruptions in Malvo's early life.

(6) An article which describes the tapes and some of their stranger moments:
"Can you get them to bring me something? Raisins."

"Let me see if I can find some. Just plain raisins?" Boyle asked.

"Plain raisins, no sugar on them," he responded. He later explained the benefits of a grape fast that might last three to five days.

"Well, it cleans your body out. . . . It's an antioxidant. . . . Grapes fill you up. Ever try eating five pounds of grapes for a meal?"

Later in the interrogation, Malvo explained that health and physical stamina were imperative for him and Muhammad to carry out the shootings because any distraction might cause them to stray from a particular plan. For that reason, Malvo said, he supplemented his diet with vitamins and minerals.

"There's no room for you not to feel well," he told Boyle. "There's no reason for me to fall on the battlefield. Your soldiers are strong. They're not ill."
(7) The judge let reporters see the car.

(8) High school students have been watching the trial.
Ken Lammers

Sniper: Muhammad:

An article describing the trial's effect on the jurors.

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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.


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