Christianity and the Death Penalty

"[I]n 1992 the Catechism suggested current Catholic thought on the death penalty was not what strong proponents of capital punishment wish it to be. Then in 1996 further changes were made to the Catechism to bring it in line with Evangelium Vitae. It was at a press conference announcing these changes that Cardinal Ratzinger, now Pope Benedict XVI, used the phrase “a development of doctrine” to describe how the death penalty was being perceived in Rome.

The “development” is less clear than it may seem. Through the Middle Ages, Christian philosophers and theologians developed a set of careful distinctions concerning courts and penalties, and one of their central aims was to limit the punishments that might be imposed by otherwise unconstrained rulers. But something odd happened during the Enlightenment. Voltaire came across the anti-death-penalty arguments of an Italian criminologist named Cesare Beccaria and promptly used them, with enormous success, as yet another weapon in his war against Christianity. The traditional Christian teachings, which had typically functioned to restrict the severity of criminal sentences, were suddenly declared to have been teachings in favor of torture and the death penalty.

So successful was the attack that many commentators today still accept Voltaire’s terms. Whether they defend or reject the death penalty, they all seem to believe the patristic and medieval writers accepted capital punishment not merely as necessary at the time but as required by justice at all times. The current position of the Catechism thus appears a radical change from earlier positions—as it may be, from the positions of some theological figures, but not as many as the historical commentaries on capital punishment would lead us to suppose."

Lv Commonwealth Conservative

With Apologies

The feed for Lex Radio has changed so all your aggregators and subscriptions are now out of date. Everything now on the blog should reflect the new rss feed for it. This has been done in an effort to get it to work with iTunes (which kept uploading pdf files from the old feed) and to fix a problem with the latest post disappearing from Odeo. Hopefully, everything is fixed now and will work. We'll see.

For those of you directly downloading Lex Radio everything is still the same.

Wonderful, a serial killer with a blog.

The Russian media is awash with speculation as to who killed spammer.

A good idea based upon the acts of evil people. No one should revel in the death of an 18 year old who dies in service of his country.

Can you arrest someone for trespasses in your State on the theory that he isn't a citizen and therefore is banned?

Lex Radio 080705

Click on the Logo to find the rss for the PodCast.

Click on the Title above it for a direct download.

Article and Blogs discussed:

Part 1 - Indigent Defense Commission

Indefensible
SW Va Law
Confutatis Maledictis

Part 2 - Around the Web

Arbitrary and Capricious 1
Crime and Federalism
CrimProf 1, 2
Sentencing Law & Policy
DUI Blog
Arbitrary and Capricious 2
SoCalLaw
Indiana PD
Killing Trees
River of Cocaine

BTW: Because of problems I had trying to get the podcast feed up on iTunes and Odeo, the feed has changed and anyone who subscribed before will have to go back and subscribe again. Sorry about that.

Boston's City Council is considering an ordinance which would keep it from contracting with any company that refuses to hire people with criminal records.

New Type of Cyber Criminal in Town

A company hires a security agency and a profiler to catch someone stealing it's information and trying to blackmail it.

[L]aw enforcement authorities and computer security specialists describe [this] recent evolution of computer crime: from an unstructured digital underground of adolescent hackers and script-kiddies to what Bednarski describes in his study as "information merchants" representing "a structured threat that comes from profit-oriented and highly omes from profit-oriented and highly secretive professionals."

Are they saying that there's now a computer Mob?

Police suing to get out of a station because officers have come down with scabies, asthma and other respiratory ailments and they are tired of sharing the space with toxic mold, bugs, and rats.

NYC Murders Way Down

NY may be on its way to less than 500 murders this year.

How do you get convicted of attempted perjury? You either lied or you didn't.

Sometimes having a gazillion people's fingerprints on file isn't enough.

Hold police at bay for 5 hours, get 45 days in jail.

"DaimlerChrysler AG said Friday it is cooperating with the U.S. Justice Department, which is investigating claims that the company's Mercedes Car Group may have paid bribes to foreign officials and that senior executives were aware of it."

Isn't that standard operating procedure in a lot of countries? DOJ's involved, why?

P2P illegal in Europe.

Clubbing a Canadian goose is something the people at the 19th hole will frown upon.

Rob the clerk at a convenience store which you go to each day and you will get a lot of time in prison.

Sure, lie to the police officer (who finds you at the bar) who was in court when you were put on probation and told not to drink. That'll always work.

Why does internet scamming come from Nigeria?

Because they are too well educated and don't have enough real work.

Dukes of Hazard

Hey, there's a documentary out there about Feddie's State.

It was fun to watch but a total waste of time. If your brain kicks in at any moment or tries to compare it to the TV show you won't enjoy it. Basically, it was a TV show stretched into a movie.

BTW, how do I get the Governor of Virginia to pardon my clients after they've shot burning arrows into police cars at 125 mph and caused the police car to explode? Or do I just need to move to Georgia to get those kinds of results?

Blakely & Virginia's Guidelines

A question from J.H:

Based on the referenced VA Code, what if a Judge does not comply with providing a written justification for the enhancement, could the Blakely ruling be applicable for an Appeal in VA??

Va. Code Ann. §19.2-298.01(A), (B). Virginia relies on jury sentencing for all cases tried before a jury. In such cases, the jury is free to select any sentence within the statutory sentence range and is not in any way required to base the sentence on the sentencing guidelines. In such jury-sentencings, no Blakely issue is raised. However, the judge determines the sentence in any case where: the defendant pleads guilty to an offense; the defendant waives a jury trial and is tried by the court; the jury does not unanimously agree on the sentence; or the prosecution and the defense agree that the court may fix punishment. In such cases, the court must apply the sentencing guidelines and provide written justification for an enhanced sentence.

What JH is talking about is this:

§ 19.2-298.01. Use of discretionary sentencing guidelines.

A. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the suitability of the applicable discretionary sentencing guidelines. . . . In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.

B. [When} the court imposes a sentence which is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.

The guidelines discussed were created with a stated purpose:

§ 17.1-801. Purpose.

The General Assembly, to ensure the imposition of appropriate and just criminal penalties, and to make the most efficient use of correctional resources, especially for the effective incapacitation of violent criminal offenders, has determined that it is in the best interest of the Commonwealth to develop, implement, and revise discretionary sentencing guidelines. The purposes of the Commission established under this chapter are to assist the judiciary in the imposition of sentences by establishing a system of discretionary guidelines and to establish a discretionary sentencing guidelines system which emphasizes accountability of the offender and of the criminal justice system to the citizens of the Commonwealth.

The Commission shall develop discretionary sentencing guidelines to achieve the goals of certainty, consistency, and adequacy of punishment with due regard to the seriousness of the offense, the dangerousness of the offender, deterrence of individuals from committing criminal offenses and the use of alternative sanctions, where appropriate.

The theme you'll notice running through all of that is the word "discretionary." The guidelines are by no means mandates. In fact, going back to § 19.2-298.01:

F. The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shall not be reviewable on appeal or the basis of any other post-conviction relief.

This means that a judge doesn't really even have to state for the record his reason for departure. Basically, the guidelines are not mandated at all. Blakely only applies if the guidelines are mandated in some form or another.

With that in mind, the question becomes - why do we even have guidelines? They shan't be enforced by the appellate courts so why would a judge ever pay attention to them? They are a tool for the General Assembly. Under Article IV of the Virginia Constitution, sec. 7:

The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years.

Basically, every eight years a judge comes back before the General Assembly and has to justify himself. Additionally, if a judge has ambitions of becoming an appellate judge he may be questioned as to his record in regards to the guidelines. However, let's face it, if a judge were crass enough to be manipulating cases in anticipation of his future he'd realize that while downward departures might hurt him it is unlikely that upward departures would. In fact, whenever attorneys think that they've noted an upward, over-the-guidelines trend in the sentences handed out by a certain judge one of the topics which always seems to crop up is, "Judge Smith is running for the Court of Appeals." Is it true? Unlikely, but it makes good gossip.

Caption & Apsortation

Complaints about the unneeded use of Latin in law. However, it's not just Latin which gets used to sound important in the courtroom (while actually saying little).

A year or so back I had a really bad shoplifting case. There was no way to win and no way my client was pleading guilty. It was so bad that when I got to court the prosecutor had decided to let one of her third year, trial certified law student interns try the case (which only happens in open and shut felony cases).

We go through the case; it's as bad as I thought it would be and the intern is sailing though. It's just been too easy. Perhaps feeling a little mischievous, I slip into legal garbalese in my closing argument. I went on and on arguing that while the prosecution may have proven asportation it never proved caption. I don't know if other jurisdictions use these terms in larcenies but I know I'd never heard of them until I started reading Virginia case law. And even then "caption" wasn't in my copy of Black's so it took a little bit to figure out. I finish up with some sort of grand statement like "And, of course, as we all know, your Honor, since they haven't proven caption my client can't possibly be found guilty of larceny." Walking back to the defense table I glance over at the intern. He looks absolutely lost. When the judge asked for rebuttal the prosecutor had to ask the judge to give her a few minutes to explain. The prosecutor then spent at least 5 minutes explaining it to him before he got up and started speaking. Even then he didn't use the terms; instead he spoke of exercising dominion and control and carrying something away. To this day I'm not sure he knew which one was caption and which was asportation.

Teach them to sic an intern on me. Next time I'll have to memorize two or three Latin phrases so that they come tripping off the tongue. Maybe something like:

As we all know, your Honor, the police philosophy in this sort of situation is "Conlige suspectos semper habitos."


Your honor, the officer was clearly on a fishing expedition. You'll note that he didn't say "Dic mihi solum facta, domina."


I know my client hasn't yet paid the restitution however, he assures me "Perscriptio in manibus tabellariorum est."

Heck, I could even use some of these with Tom the next time we have a trial. During my opening argument I could tell the jury: "Ladies and gentlemen, Mr. McKenna rudely keeps trying to throw my clients in prison. Sometimes I just want to turn to him and ask, "Nonne de Novo Eboraco venis?"

Careful What You Wish For

Well, after griping about not having clients come visit there comes a client during my open office hours. He even brings his 3 month old son and his baby's momma.

About half way through the interview he apologizes for the odor coming from his son. I've been around plenty of kids so the odor isn't bothering me that much and I tell him so. Then he hands the baby off to momma. To give the kid credit he knew exactly what momma exists for and he starts grabbing. I ignore it, trying not to embarrass her. Then, out of the corner of my eye I see momma reach up, pull the right side of her blouse down, get what God gave her out, and shove the baby's face on it.

The rest of the interview I concentrated my view on Client with laser-beam precision.

Policing, the way it was.

Feeling the Luv

Crimlaw can always be depended upon to post something, usually something good. The only drawback to CrimLaw is that Lammers changes his format more often than a teenage girl changes her hair.

If only I could deny it . . .

Around the Web

1. You must break the law to follow it.

2. As opposed to the "Love Crimes" symposium it hosted last year.

3. The end justifies the means. A surprising thing to hear from Tom.

4. The only way you truly understand the criminal justice system is to work in it for an extended period of time. And, let's face it, the Harvard, Yale, and Stanford law students who clerk for Circuit Court Judge the Honorable Aloysius BigMuckityMuck Feeder III and then get their chance to serve as a clerk for Justice the Honorable "Here because I have no papertrail" Smith are the people most likely to come back and serve on the court. Somehow, I just can't picture these folks taking a prosecution job at a Commonwealth Attorney's office.

5. Calling out judges for putting private attorneys first on the docket. I can't speak for others but around here there is often some jockeying to be the last case (or at least near the end). The thinking is that the judge is more likely to cut your client some slack if there's no one else in the courtroom to see it and then demand that their attorneys ask for the same thing. The other way I've seen to guarantee that you are at the back of the docket is to be a lawyer with a reputation for being difficult. Everyone, prosecutors and defense counsels, wants your trial moved to the last spot because they are worried you will - once again - turn a 10 minute driving suspended trial into a 2 hour lecture on the constitution (and lose, just like the last 7 times).

6. But if there are fewer clerks per justice, what will all the Harvard, Yale, and Stanford grads do? OMG, they'll have to get "real jobs!"

7. Wait a sec . . . Blonde Justice blogged about something legal?!? No, wait, it was actually a story about her dad. Still, it was kinda there. Yeesh, if she keeps doing that she won't have time to blog about all those strange reality TV shows I don't watch. However, shall I keep up?

8. The hibiscus task force is shut down. Not entirely shocking.

I've been interviewed . . .

. . . over at Southern California Law Blog.

In case you can't figure out who is who, I'm the guy with the loud, noxious voice and Jeff is the one who sounds like he's had a little bit of training in this area and knows what he's doing.

A Judge Who Really Knows His Circuit

Client has been found guilty and I am trying to keep him on bond until his sentencing hearing. Mainly, I am arguing that he should stay on bond so he can keep his job. The Judge starts questioning Client:

Judge: You work at Zed Corp?

Client: Yes sir.

Judge: Has that been sold to Gamma Corp?

Client: About a year ago.

Judge: And does Moses still work there?

Client: Yeah, but he's been moved into packaging.

Apparently my client answered all the questions correctly 'cuz he got to stay out on bond.

Mr. Lammers Has No Rights . . .

Client is pleading guilty. Before the judge will accept the plea he has to question the client as to whether he understands the rights he is giving up, has discussed the case with his lawyer, and understands what he is charged with. The Judge begins his questioning:

Judge: Mr. Smith,you have a lot of rights in this courtroom. Mr. Lammers doesn't have any rights here. You have a number of rights . . .

Gotta admit, I was standing there in the half-listening state you find yourself in when hearing the same questions you've heard thousands of times. However, when I heard the judge strip me of all my civil liberties just because I had walked into his courtroom my head did snap up.