31 March 2008

CLTV 20: Jury Nullification / Justification Defenses

Wherein I rambled on about Jury Nullification / Justification Defenses for a while and cut it down to 15 minutes. I don't think I cut out the important parts, although the switch to discussing whether jury sentencing might be the solution is ragged.

I talk about the problems associated with allowing defendants to argue nullification/justification to a jury.

Here it is over at CLTV (the vid's a little larger than here).

30 March 2008

Hollywood and War Movies
At Least I Know One Person is Reading the Blawg



Scott Greenfield read my rant yesterday about Stop Loss and decided to poke at me a little bit. I think he make be piqued, just a bit, by the fact that I lumped him and his in with Hollywood types. I can't blame him for that, I'd probably be a wee bit disconcerted myself. On the other hand, he does seem to be taking some responsibility for the fact that there are people out there who think that I should be pay $5 for a 75 cent cup of coffee just because they shaved a penny's worth of cinnamon into it and put 5 cents of whip cream on top. In any event, I really wasn't going after New Yorkers and he asked some questions which need to be answered.

1) Don't we, like, have to win or accomplish something before we make a movie that's pro-war?

Nope, Casablanca came out on 01 January 1942, long before we accomplished something or won our first battle (Midway June 1942). I'm sure you can find any number of movies ranging from "Why We Fight" to "The Flying Tigers" which came out the same year all with pro-war themes.

2) Don't they get Fox News out there on the left coast?

I think it's only actually banned in San Francisco and Seattle. In L.A. it's not that it's banned, it's just that nobody watches it because those horrible little people on Fox don't have a clue about fashion and important celebrity news (Fox, sadly, seems to have been making efforts to fix this).

3) What about all the good, uplifting stories about people getting killed and maimed? How come there's never anything about that?

Let me try to give a serious answer here. Uplifting stories would be about honor, courage, sacrifice, perseverance, soldiers doing their duty, and the bonds that formed in military units. This does not mean that the downside of war must be ignored. I'm not asking for The Longest Day. I'm asking for A Band of Brothers. Band of Brothers took us through both the good and bad. It showed the ideals I listed above; it also showed inept commanders, people dying, stupid orders, U.S. soldiers who stole things, and U.S. soldiers killing people they should not have. Yet, I felt like I was being shown reality, not a thinly veiled morality play aimed at showing the evil of the U.S. military, American soldiers, American politicians, or just plain Americans. In the end, despite all the evil shown therein, it is uplifting because it shows the soldiers persevering through all of it: they soldiered on.

What then, am I bumbling about, trying to say? 1) If you are going to make a movie which is pro-soldier, the claim made over and over in pre-release interviews for Stop Loss, don't make it about a soldier who is refusing to do his duty and abandoning his fellow soldiers. Do it about a squad in country prevailing against high odds through training, intelligence, and perseverence. 2) I am skeptical that Hollywood can do this because of philosophical leanings and a lack of actual experience among those writing, directing, and acting in Hollywood films.

BTW, Scott, I getting near the end of my 4 years in the Army in 1990. I had been accepted at St John's of Minnesota. I was getting out and getting on with my life. Then Iraq invaded Kuwait. I was among the first deployed and in the last group of my unit to leave. I was "extended" in active service beyond my ETS date and ended up staying in for 2 years longer than planned. I'm not terribly sympathetic to the plight of the "hero" in this movie.

29 March 2008

Stop Loss is Dead
Long May it Burn

From Deadline Hollywood

"I'm told #7 Stop-Loss opened to only $1.6 million Friday from just 1,291 plays and should eke out $4+M. Although the drama from MTV Films was the best-reviewed movie opening this weekend, Paramount wasn't expecting much because no Iraq war-themed movie has yet to perform at the box office. 'It's not looking good,' a studio source told me before the weekend. 'No one wants to see Iraq war movies. No matter what we put out there in terms of great cast or trailers, people were completely turned off. It's a function of the marketplace not being ready to address this conflict in a dramatic way because the war itself is something that's unresolved yet. It's a shame because it's a good movie that's just ahead of its time.'"

AAAAAaaaarrrrgggggg!!!!! You've got to be kidding me!

It's not a "function of the marketplace not being ready to address this conflict." It's a function of the fact that you idiots made a movie about a man who is deserting.

In case you couldn't tell, I had a visceral reaction against this film the first time I saw its trailer (maybe a month ago). I'm a member of the great unwashed masses - you know those of us who live in the Tweens (the flyover lands between NYC and Cali.) - who will never go see this movie or others of its ilk.

To those of you from Hollywood trying to push these movies: You have no credibility. Every single movie you make comes across from an anti-war point of view. As the Wall Street Journal put it,
As Hollywood sees it, the fictionalized stories worth telling about Iraq and the war on terror involve the rape and murder of an Iraqi girl by American soldiers ("Redacted"); the kidnap and torture of an innocent Egyptian ("Rendition"); the duplicity of the Army surrounding a soldier's death ("In the Valley of Elah"), and other American perfidy.
Stop Loss fits right in with the meme.

Don't get me wrong. I don't expect Hollywood to actually make big budget, serious pro-war movies. It isn't going to happen. Personally, I'm of the opinion that they couldn't do it if they wanted. And, I really don't want them to try - at least until they can do better than something like Heartbreak Ridge (the last pro-war movie I can remember which isn't about WWII or earlier).

I just wish that Hollywood would stop making the anti-war, anti-U.S. movies. I know they won't; I've heard the Jon Stewart manifesto,
The films that were made about the Iraq war, did not do as well. But I'm telling you, if we stay the course, and keep these movies in the theaters, we can turn this around. I don't care if it takes 100 years. Withdrawing the Iraq movies would only embolden the audience. We cannot let the audience win.
and I believe that Hollywood will continue to make movies of this sort to live out their Vietnam era mindset and to tell us ignorant sots out in the hinterlands what we should think.

27 March 2008

So, You Want a Prosecutor Blawg

Sure, I'm out here and have been prosecuting about a year and 8 or 9 months, and Tom's been back for a while and posting every few days, but there's always room for one (or a lot) more. Ladies and Gentlemen, I present to you a newby prosecutor blog:

Western Justice

Everybody go over and say "Hi!" And I mean say "Hi!" Do me the favor of not sniping at him. The blawg is young, well written, partisan, and will drive some of you defense attorneys crazy. I'd rather ya'll not drive him off the web or discourage him or make him defensive. He's a new prosecutor and it's interesting to see his perspective. I'd rather not see that bogged down with back and forth sniping; I've already almost lost one of favorite blogs to this. If you must snipe go over to Tom's; he's been prosecuting for years and ain't nothing ya'll are going to say to him he can't shrug off or throw back at you (go on, ask him a question about the death penalty and Catholic theology - I dare you). On the other hand, I'm not sure I'd want to expose any new prosecutor to the withering, insightful, and pointed commentary of Scott or Mark if it weren't friendly (although, he does apparently share Mark's affinity for a certain picture; unusual that, most prosecutors seem to favor some variation on crusaders rather than gladiators). I guess what I'm asking is that while over there you comport yourself with the same dignity and courtesy you do while on this blawg.

Cool, we're now up to 3 prosecutors who actually blawg about *GASP* criminal law.

If your money smells like marijuana . . .

. . . let it air out before you take it to the bank.

It was so bad that the cashier put it in a plastic bag to keep from smelling it.

25 March 2008

Medellin v. Texas
US SCt Slaps Down the President

The International Court of Justice can demand new trials for foreign citizens in the US who weren't told they could contact their embassy or consulate. President Bush can order that States will comply with the ICJ.

However, the States don't have to pay any attention to either of them. The part of the Vienna Convention which the ICJ and President tried to enforce is not self enforcing. In other words, when the treaty was approved by the Senate and signed by the President it did not state that it would become law within the signatory countries. Therefore, in order for the treaty to have force of law within the U.S. the Congress had to pass a law enforcing it.

Congress did not. Thus, the President as chief of the executive branch had neither power to enforce under the treaty itself nor power to enforce under a congressionally mandated statute. He had no power to execute and his mandate that the States enforce is unconstitutional.

Federal Noogies

Sometimes things happen which I just don't get. First of all, what would make a senior male federal agent think that giving a female AUSA a noogie was OK? Second, did there really need to be a year long investigation into whether it "was foolish horseplay, bullying, or harassment." The answer to all three is "Yes." Has no one in the FBI worked with men before? Do they not realize that this is part of a typical male acceptance/testing/alpha dog process?

What was the appropriate response here?1 Well, she could have just laughed it off. She could have elbowed him in the ribs (or other sensitive areas). She could have pulled a practical joke on him the next time he came to meet with her. All are fairly typical bonding ritual responses.

Why'd it go further? Hard to say; going forward on something like this doesn't really help anyone. She comes across looking like she can't work well with others; he comes out looking like a neanderthal who never heard of the initials P followed by C. She gets what sounds very much like a demotion, from the Organized Crime Strike Force to "handles drug cases." He gets fired (although this seems as much because he lied about the incident).


----------
1 I am, of course, assuming the typical 4 to 6 swipe noogie - not a 10 minute rub 'em bald version.

23 March 2008

CLTV 20: Computer Instead of Cable
Hulu and Miro

A TechStuff segment in which I talk about and demonstrate both Hulu and Miro, the latest forays of big television channels and small internet vidographers onto the net.

21 March 2008

Good Friday


Ecce Agnus Dei, ecce qui tollit peccata mundi.

Purim

According to AOL, it's also Purim, that most interesting of Jewish holy days. Remember, in addition to making lots of noise, to keep Hamam's name from being heard, there's also an obligation to drink until you can't tell the difference between that evil man and Mordechai.

From the outside looking in this always looked like it could be a lot of fun.

CLTV_19: This Week's Best of the CrimLaw Web

This week featuring 4 posts from Practitioners and 1 post from a Professor.

18 March 2008

The Things People Steal Nowadays

1. Ring (off finger of invalid).

2. Girl Scout funds (from cookie sales).

3. Cows (killed by mob).

4. Mother's ashes (returned).

5. Mobile phone (caught by rugby team).

6. Mountain bike (stopped by owner).

7. Meat (beaten down by owner with a ham).

8. Ham (caught drunk in the parking lot).

9. Computer games (the silver lined bag doesn't help much when the employees see you do it).

10. Meat and perfume (it's good to diversify).

11. Church charity boxes.

12. Copper (to the tune of 8 years).

13. Purses (of women who would take his offer to carry them).

14. Lead (stopped after his foot went thru the roof).

15. Vodka (because he was having a bad day).

16. Art (if you pawn famous works of art you will be caught).

17. Trash cans (6 months in jail).

18. Wallet (given back when she chased him down).

19. iPod (can't just take one because yours is broken).

20. Police car (the Sydney police caught on because he was driving erratically).

15 March 2008

You've Got to Be Kidding Me

The SEC basketball tournament moved to a smaller arena because of the other arena getting hit by bad weather (maybe a tornado).

Now, instead of working out some way to determine which fans will get to watch games (lottery, first-come-first-in, etc.), the SEC banned all regular fans. Only VIP's and roadies getting to watch the game in the arena.

Just imagine, you're a Kentucky fan who drove 8 hours to get to Atlanta. You paid for an entire weekend at a hotel (not to mention gas, meals, etc.) - you probably even took time off work. Now you don't even get a chance to watch the game(s) you paid for. And you get to drive back 8 hours.

12 March 2008

Law School Innovation

As anyone who has read this blawg long knows, I have characterized law school as "cramming a year of education into three years."

Well, it looks like W&L (my law school) is taking a step which will make it cramming 2 years of education into three years. The third year of school is now going to be all about practicums:
Students will not study law from books or sit in classrooms engaging in dialogue with a professor at a podium. The demanding intellectual content of the third year will instead be presented in realistic settings that simulate actual client experiences, requiring students to exercise professional judgment, work in teams, solve problems, counsel clients, negotiate solutions, serve as advocates and counselors—the full complement of professional activity that engages practicing lawyers as they apply legal theory and legal doctrines to the real-world issues of serving clients ethically and honorably within the highest traditions of the profession.
I'm impressed. I just wish they were doing this back when I was there.

Mary Ann + Mary Jane

Dawn Wells is pinched.

10 March 2008

Cantebury's Law

Well, now I know all the things I did wrong back when I was a defense attorney. I didn't play spy / counter-spy with the prosecutor's office. I didn't didn't coach my client to lie on the stand. I didn't hire private investigators to spy on jurors while the trial is ongoing.

Yeesh.

Not CLTV: Basketball

Yeah, I know it isn't CLTV (I didn't even have time to put the opening on it). Spent the last weekend in Central Kentucky trying to overdose on basketball.

It probably won't mean much to the rest of ya'll, but I had a blast.

07 March 2008

CLTV: Be the Government

How to turn minor slights into an advatage during a jury trial.

With thanks to Mark and Jamie for putting the idea for today's CLTV into my head.

And Tom adds his voice here.

I'm So COnFusEd: Simple Justice

Scott is arguing the law and order position. I think my glasses may be broken.
:-0

Japan: A Witness Can Call It Off

Unlike here in the U.S. a victim in certain serious crimes (rape) can refuse to go forward and the prosecutor cannot press the charge.

Prosecutorial Disclosure of Death?

What if the witness dies pretrial? Does the prosecutor have to inform the defendant?

BTW: In Virginia we don't have witness lists, so even that level of disclosure might not be an issue.

44" Breasts = Not Guilty

Proof that they can be good for something other than just turning my brain to mush (along with most other guys).

06 March 2008

Question as to Rationality and Irrationality

Must we punish irrational acts which violate a criminal law?

If we don't punish irrational acts which violate criminal law are we then encouraging more rational actors to violate the law?

Example: I've both represented and prosecuted the 40 year old lady who has never broken a law in her life and has plenty of money in her pocket, but follows the impulse to try to get out of a store with a cart full of items. She has foolishly followed an irrational impulse. However, if the next lady comes along and gets a similar impulse and knows that nothing happened to her friend Mary when Mary did it there is less rational push-back against the irrational impulse.

Impulse (irrational) < Concern about being caught (rational)

Impulse > Concern about being caught - Knowledge that previous people caught were not punished (rational)

My Dog Ate The Blog Post

I had spent a good bit of time typing up a blog post about why criminal actors are rational. It was insightful, thought provoking, brilliantly analytical, and so well written it could bring an English Studies grad student to tears.

And then my dog decided to lay down under the table my computer is on and pulled the plug.

04 March 2008

Penalties and the Rational Offender

Simple Justice raises a point I both want to agree with and disagree with. He posits that increasing maximum penalties is an ineffective deterrent to those who tend to break the law.

There are two reasons Scott's correct. The first is that most of the time nobody, outside of some legislators and lawyers, knows when laws are changed. There won't be multiple news stories splashed across TV, Drudge, and the local paper if the first of July comes around and Virginia changes larceny of a dog from a class 6 felony (up to 5 years) to a class 5 felony (up to 10 years) - along with the 500 other major and minor changes made to the law. If no one knows that the law has changed it can't be factored into a cost-benefit analysis and shan't be a deterrent.

The second reason is that often knowledge works against the intended effect. Those with familiarity with the system will know that changing stealing a cat from a misdemeanor to a felony will probably result in less actual jail time. A district court judge would probably give a little time in jail for stealing Tigger. In circuit court this case will be seen as less important than drug dealers, murderers, bank robbers, etc. and, at least in Virginia, the judge will have sentencing guidelines telling him the defendant should get probation. I'm not saying that the offenders know all the intricacies of sentencing, just that they know that low level felonies usually end up with probation (at least the first and maybe second conviction) and aren't concerned if a misdemeanor changes to a low level felony.

On the other hand, Scott is wrong in that changes in the law do make their ways into the consciousness of the community. Sometimes this rise in awareness can be fast; sometimes it can be slow. In Virginia an example of the fast rise would be Exile, gun control laws. The government saturated the market with well done, well placed, effective commercials and continues to follow up with reminder commercials. This effort penetrated the minds of those whom it was supposed to effect and they all know that felon+firearm or drugs+firearm is bad and will result in mandatory prison time. Slower penetration happens when the law changes and the community comes into contact with that law fairly regularly. An example of this was when Virginia overhauled its DUI statutes a few years back. Offenders did not know the law had changed, but they went back and told other members of the community; it took about two years, but the changes finally penetrated to the point I didn't have to argue over the state of DUI law with people anymore.

Personally, I think that offenders do a cost-benefit analysis. They wouldn't phrase it like that, but they do consider what they know and what they think they know. Scott's correct in his assertion that they sometimes have the wrong idea about what the law actually is: "I can't be convicted of shoplifting. He put the stuff in my purse; I didn't touch anything." That statement gets the law wrong, but it implies a cost-benefit analysis: I can't go to jail if he's the only one who touches the stuff so I'll let him put stuff in my purse because (multiple choice) 1. I luv him, or 2. I'll get my cut later, or 3. He'll give me drugs if I let him.

Of course, there will always be entirely irrational actors; however, I think these are few. And, of course, Scott is correct in his assertion that crimes committed in the heat of the moment will not be effected by the costs, no matter how great (nothing will effect these until pre-crime units are deployed). In the end, we must act to influence rational actors and be prepared to deal with those so far outside the norm as to be uneffectable.

How do we do this? Well, moving things up the maximum potential punishment scale isn't really going to accomplish anything. Two things need to happen. To begin with, any increase should be in the actual punishment scale. In other words changing something from a misdemeanor to a felony doesn't accomplish much. However, changing a misdemeanor from 0-12 months to 3-12 months does something which will impact the sensibilities of the community: it mandates more actual punishment. Personally, I'd be in favor of returning a lot of felonies to misdemeanors as long as the misdemeanors are misdemeanors with teeth. I think that 3 months in jail on a misdemeanor has more of a deterrent effect than felony probation.

Then, punishment needs to be consistent. Yes, yes, I have read some Emerson, but I'd remind you that he is talking about "foolish consistency." I'm talking about a considered consistency. Punishment needs to be consistent over a long period of time, otherwise it does not have the desired impact. If the punishment does not remain consistent it doesn't sink in to the community. For instance, if felony petit larceny (3d conviction) were changed back to a misdemeanor with 6-12 months after a couple years to sink in it could impact the thoughts and acts of the community. However, if the typical disposition were to reduce every 3d to a plain old petit larceny and give a weekend in jail it wouldn't work. This, IMO, is the reason that the massive federal drug sentences haven't made a dent in drug trade. 98% of offenders were getting State sentences of a year, maybe two, perhaps four if they were really bad (yes I know your State had much worse punishment - this is just an example) while 2% were getting 10 years or 20 in the federal system. Let's imagine the equation here (all numbers pulled out of my imagination):

Federal
$3,000 per week * 52 weeks [<=>] 25% chance of being caught (2% * 10 years in prison)


State
$3,000 per week * 52 weeks [<=>] 25% chance of being caught (98% * 2 years in prison)


Now, let's imagine a world in which the punishment in both was equal and set at the higher level.

$3,000 per week * 52 weeks [<=>] 25% chance of being caught (100% * 10 years in prison)

The risk is higher when the punishment is consistently higher and this will sink into the community. Will higher consistent minimums stop all crime? No. The best you can ever hope to do is raise the entry threshold. If 40% of the community is willing to enter into illegal activities under the first set of equations and 15% are willing to enter into illegal activities under the last equation that's moving things in the right direction.

02 March 2008

Weekly Sports Post



It's been a basketball filled weekend for yours truly, with the best part being the trip to Lexington to watch Bryan Station put a good old fashioned wuppin' on Scott County in the District Championship. Both the first and second place teams go on to the regionals, but the loser was going to be on the same side of the bracket as Lexington Catholic and, as the lady next to me cheerfully informed me "I don't want to have to beat both of them to get to the Sweet Sixteen." Lexington Catholic, Bryan Station, and Scott County are ranked 1, 2, 3 in Kentucky and only one team from the region goes to Kentucky's basketballfest (The Sweet Sixteen), the 16 team tournament for bragging rights in the Commonwealth.

If you are a Defender fan the second quarter was amazing, 2 back-to-back 3 pointers built Station's momentum and the Fort (what they're now calling the basketball auditorium) went nuts when #30, Terrell Combs (going to Minnesotta on a football scholarship), leapt ten feet into the air and smashed a Scott County shot into the stands. Then the Scott County coach got a T and finally, with time running out Station's big time star, Shelvin Mack (going to Baylor) hit a three. From then on the Defenders just kept pushing until they beat the Cardinals 94-75. Now on to the Regionals where just about everybody is ranked in the top 20. It should be a good tournament. Sadly, because apparently they wanted the regional championship to be poorly attended they scheduled it for a Tuesday night.



Sadly, the news for my Centre College Colonels wasn't quite so good. The SCAC tournament was this weekend and Centre breezed through the first couple games.

Before the tournament was over the SCAC named Thomas Britt the SCAC player of the year.

It also named Centre's Coach, Greg Mason, coach of the year.

Unfortunately, in the championship game none of this did Centre any good. I'd like to say they were beaten by a superior Millsaps team, but I'd not be telling the truth. Centre played the worst I've seen them play this year. They were missing 3 pointers, free throws, and lay-ups (and lay-ups & lay-ups & lay-ups . . .); Centre only shot 20% in the first half. Millsaps won by 9 and it wasn't that close. Now Centre will probably get a Pool C bid to the NCAA tournament and I think this might scuttle Centre's hopes to host a round in the tournament (and my hopes to go watch a round).