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More on Religion...

One-in-ten Muslims (and one-in-four younger Muslims) living the United States support suicide bombings.  Yet some bloggers are afraid of Christians who want to work within the existing legal structure to change society; and a full 53% of academics hate Evangelical Christians

I don't think it's proper to dislike a person based on his or her religious beliefs.  But if you're going to pick a religion to dislike or fear, shouldn't it be the religion containing a large number of suicide-bombing apologists?   

Hilarious Overreaction of the Day

If you wonder why religious people seem to suffer from a siege mentality, look no further than this post, where a very respectable blogger links to "about the scariest article I have read in a while."  Was the article about global warming?  AIDS?  The massacre in Darfur?  Nope.  It was an article about Christian law schools.  I kid you note.

One of these law students struck fear into the hearts of (wo)man by noting:

"I didn't want to just be a Christian attorney, but an attorney who dedicates my gifts and talents to Christ," said Chicago-born Daniel White, 25, an African-American.

What is scary about this?  I truly do not understand.  A student simply wants to use her legal skills to further moral causes.  How is this any different from what people in the ACLU and NLG do?  Are left-wing students who call students who work for the highest bidder "sell outs" also scary?

Of course, one should fear what the dastardly professors at one law school are teaching:

Liberty integrates the moral and religious roots of the rule of law into every class discussion, an approach Staver calls "law plus." That came through during a recent "Lawyering Skills" class when professor Rodney Chrisman presented a case and then asked his students whether they would compromise their integrity on behalf of a good client. "The Bible says a good name is a greater treasure than silver and gold." Chrisman told them.

Umm.... Isn't is pretty standard fare to ask your students: "Would you lie in order to save an innocent client?"  This is a serious issue that lawyers - religious and secular - have wrestled with.  What is scary about such a classroom discussions? 

The blogger also wonders: "How did these schools get accredited by the ABA?  They are subversive."   Yes, I did a double-take, too.  Subversive?  Wow.

What is subversion about using the existing legal system to put into place values you hold dearly?  The ACLU believes that church and state should remain separate.  They sue to put this judgment into place.  Is the ACLU subversive?  According to Joseph McCarthy, yes.  According to decent people, no.

While I loathe Jerry Falwell, Pat Robertson, Jay Sekulow, and other hucksters, I can't see what is subversive about a bunch of people of faith trying to do what the Left has done for decades - namely, re-shape society through the courts.  While I might not prefer to live in a society shaped by hypocrites like Falwell (or, for that matter, John Edwards), I certainly would not consider people working within existing legal structures to be subversive.  But, again, at long last, I have characteristics perhaps lacking in others.

Who's a Rat?

Doug Berman links to an interesting article discussing the use of - choose your term - "rats," "snitches," and "informants."  My biggest problem with informants is this: While in the past police used small fish to catch bigger fish, today's informants are often the most deadly members of a criminal organization.  Because many drug arrests involving a numbers game - much like a sales quota - police are using sharks to catch small-time criminals.  In addition, while this would be impossible to prove empirically, my intuitive sense is that informants actually create more crimes than they help solve - usually by involving people who were not committing any crimes at all when approached by the informant.

The government should solve, not create, crimes.  Offering an existing member of a criminal organization leniency for his testimony is one thing.  (Think Sammy the Bull serving 5 years for double-digit murders in exchange for his testimony against Jon Gotti.)   Arresting someone and then telling him, "Go see how many guys you can get to commit crimes with you," is something entirely different.  More often than not, informants are used to create crimes that would not have existed absent the informant's participation. 

The Vanishing Trial, As Reported in The New York Times

The New York Times 
Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers' written submissions.

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop— until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains.

There is, of course, nothing wrong with settlements, at least when they are the product of reasoned and sensible compromise between evenly matched adversaries. But trials are not disappearing simply because more cases are being settled. Instead, they are increasingly being replaced by summary judgments, in which judges evaluate evidence submitted to them on paper.

''During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,'' Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution.

Professor Galanter elaborated in an interview. ''Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,'' he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.

''We've moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,'' Professor Galanter said.

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called ''Vanishing Trials, Vanishing Juries, Vanishing Constitution'' in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.

Those who have the temerity to ''request the jury trial guaranteed them under the U.S. Constitution,'' wrote the judge, William G. Young of the Federal District Court in Boston, face ''savage sentences'' that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of ''the most stunning and successful experiment in direct popular sovereignty in all history.''

Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself.

In an article titled ''Why Summary Judgment Is Unconstitutional,'' published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries.

When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job. The theory of summary judgment is that judges may rule for one side or the other only after finding that no ''genuine'' issues of ''material'' fact are in dispute. They must determine, as the Supreme Court has put it, whether ''a reasonable jury could return a verdict'' for the party defending against a motion for summary judgment.

All of that pushes judges right up to and sometimes across the constitutional line of determining the facts for themselves.

In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for ''leaving justice entirely in the hands of professionals.'' But that is not the theory of the Constitution, he continued, which enshrined ''the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.''

The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls ''as fundamental a part of our culture as jazz or rock 'n' roll,'' is dying.

I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America.

I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.

NDAA, Lawrence Floyd, and Prosecutorial Misconduct

In Griffin v. California, the Supreme Court held that it was unconstitutional for a prosecutor to argue that since the defendant did not testify, the jury should infer that he had something to hide.  It is per se prosecutorial misconduct for a prosecutor to ask a jury to draw adverse inferences against a defendant who exercises his constitutional right to remain silent at trial.

Yet fifty years later, Assistant County Prosecutor Lawrence Floyd, in clear violation of Griffin's black-letter rule, urged a jury in a death-penalty case to infer the defendant's guilt because he did not testify.   The judge immediately ordered a mistrial.  The judge also fined the prosecutor's office - but not Floyd himself.  This was an entirely weak sanction.

As Kip noted, Lawrence Floyd should have been ordered to personally pay the fine.  But that is not enough.  Floyd should be suspended from the practice of law.

The Griffin rule is crystal clear, and known by every prosecutor in the country.  Lawrence Floyd deliberately violated this rule, seeming because he was doing poorly at trial and thus wanted a "do-over."  Floyd's motivations for violating the law aren't at issue.  What is at issue is that he knowingly violated the law.  He should be punished.  Will the State Bar do so?

Will the National District Attorneys' Association call for Floyd to face professional discipline?  In it's "We'd better distance ourselves from Mike Nifong statement," NADA proclaimed:

The confidence of the public and the very integrity of the criminal justice process depend on strict compliance with these ethical standards. To the extent that any individual prosecutor violates these high ethical standards the public confidence in our criminal justice system is undermined and the image of all prosecutors suffers.

Here, Floyd violated clear ethical standards.  These standards are so clear that even the most unhinged prosecutor could not defend Floyd's conduct.  There is, in a word, no room for debate.

What will NDAA do?  If NDAA does nothing, can we infer that its members are not truly concerned with professional ethics, but rather issued a statement denouncing Nifong simply because, in doing so, they hoped to avoid any meaningful regulation of prosecutors?  If NDAA does nothing, can we infer from its silence that it does not truly care about prosecutorial ethics?

Insurance Company Backs Killer for 100 Grand

When I first started reading this article (via CrimLaw), I was shocked.  "Why in the world," I thought, "would an insurance [Boston Mutual] company want to give a crime victim's life insurance proceeds to her killer?"  There is a very good reason why.  (And if you hate insurance companies, you will love what I'm about to point out.)

There was an accidental-death clause in the insurance policy.  Under this clause, the insurer would have to pay an additional $100,000 to the insured's beneficiaries if the insured died through no fault of her own. But if the insurance company could establish that the insured's killer killed her for a good reason, then the insurance company would save the $100,000.  "She brought the death upon herself," is essentially what the insurance company argued.

I realize business is business... But... Wow...  Just wow

Oh, it gets more amazing.  I did not have to read between the lines or infer that the company backed the killer because of a motive to save money.  The insurance company's lawyer admitted this!

Another reason Boston Mutual backed Ludwig was financial, [lawyer Peter] Jason said. Karen Ludwig's insurance policy included an accidental death benefit of an another $100,000, which would kick in if the court determined that she died through no fault of her own.

If the court found that Karen Ludwig somehow brought on her own death -- for example, by aiming a gun at her husband -- then the company probably would not have to pay the accidental death benefit, Jason said. But because the court favored Snider over John Ludwig, the company probably will owe $200,000, including the accidental death benefit, he said. The court has yet to decide on that issue.

"Boston Mutual has an interest in whether Mr. Ludwig or Ms. Snider is entitled to the proceeds because it likely will affect the determination of whether the accidental death benefit is payable," Jason said.

You just can't make this stuff up.

Virtual Tour of Death

California is now offering everyone a free - if only virtual - tour of the death chamber.  How cool is this?!  If  they would televise the actual executions - or start a "Running Man" sort of game show - I would be totally stoked.  (Hat tip: AL&P)  Less flipy, if we as a society are going to kill people, we ought to at least be informed of the logistics of it.

UPDATE: If you want to traumatize yourself, pretend you're an actor and imagine yourself in the "prep/control room."  There are people next door mixing chemicals and preparing needles to stick into your arms.  Others are waiting to watch you die.  Use your imagination.  I'm not very creative, but I was able to come up with a narrative that was able to make me feel pretty sick for several minutes minutes:

I'm sitting in a prep room on a cold metal stool.  I can feel my tail bone pressing hard against the seat.  There are men next door with guns ready to shoot me if I blink too quickly.  I am moving slowly, slowly because my wrists and ankles are shackled.  The steel of the shackles are cold against my skin, and they wobble slowly up and down my sweaty wrists.  I can hear the chains cling.  Oddly, I'm a child again, as the chains sound like a slinky - slink, slink, slink goes my toy down the stairs.  Cling, cling, cling goes chains.

I'm jutted back to reality as I'm moved from the prep room into the a six-by-nine foot pod.... There's a small window, but I cannot see anyone.  Suddenly I'm hot an panicky.  The pod is so stuffy and I'm bound so tightly that I feel like the walls are caving in, like I'm being buried alive.  I'm sweating under my collar, and breathing heavily - but shallowly.  My lungs won't fill in air, as my stomach has ties knots around my lungs. 

Men in white coats are roll up my sleeves.  They apply a tight rubber band around my arm, exposing a thick, blue vein.  The needle is placed into my arm, and the stuff they pump inside me burns like battery acid and runs thick though my veins like peanut butter...

This is "Hell"?

I wished I lived such a privileged existence that the following is among the worst things that happen in Hell:

  • “You’ve been giving orders your whole life, and now there’s this buffoon with an IQ of 20 telling you to clean the toilet—and you’ve got to do it.”
  • [Your only food outside of the kitchen must be prepared in] a crude four-microwave setup.
  • Other prisoners treated a snitch "horribly when he got back,” Porro said. “Nobody would talk to him. He would go to the weight room and everybody would shun him and walk away.”

Excuse me while I sit here alone at my computer, weeping at the injustice of it all.   (Hat tip: SL&P).

I loathe articles like these.  Prisons - well, state prisons - are horrible places.  But articles like these, under the guise of "exposing" the horrors of prison life, trivialize the real problems.  If you're a prison and you don't need to fear having serious medical issues ignored, or getting shanked or raped, you don't have anything to complain about.   Sure, it's lonely inside and the food doesn't taste great.  But, really, if those are your biggest problems, you're doing rather well.

On a related note, having spoken to people who did both state and federal time, all of them have said the same thing: "Compared to state prison, I could serve federal time standing on my head."

Where's My Remedy?

Marty Lederman has an interesting post that, ultimately, defends racial discrimination.   Racial discrimination is appropriate, Lederman argues, when it's part of a remedial scheme.  In the context of the Supreme Court case he's describing (a case where Native Hawaiians discriminate against whites), he seems to make this point in support of racial discrimination:

Notably absent from [a guest blogger's] post is any acknowledgment that the ... policy is intended as a remedy for the past harms inflicted by the national government on Native Hawai'ian peoples ....

In other words, racial discrimination is appropriate when it's intended as a "remedy" for past harms inflicted on a specific group because of their race.  Fair enough.  I'm caucasian.  I want my remedy.

Years ago my unemployed father applied for several jobs.  One job he applied for was with the state police.  He went through every level of testing and interviewing but was not ultimately awarded the job.  A well-placed friend on the force told us that he did not get the job because of affirmative action. 

Almost a decade later, my father received a letter from the state police noting that it had lost a class action brought against it by whites who were more qualified than black applicants - but who nonetheless were not offered jobs. 
(The case was Koski v. Gainer.)  My father was told that he was one of those people who did not receive the job despite his superior qualifications. 

My dad ultimately found a job - a dead-end job where he earned approximately $10,000 a year and did not receive any sorts of benefits or have an opportunity for a promotion.  As a state trooper, my dad would have earned around $30,000 his first year - with regular raises and benefits.  Instead, he worked in a factor.

As one of four children, my childhood was fundamentally different.  Not just my childhood, but my entire early life.  Why?  Because of my race.

By Lederman's logic, whites should be entitled to some form of affirmative action - as they have faced discrimination.  I'm not being flip when I ask Lederman: What remedy am I entitled to?  Or was it appropriate that I suffered because of what other whites did long before I was even born?  So much for the Constitution's prohibition on corruption of blood!

Despite talk of "remedies," affirmative action does nothing but create an entirely new class of victims.  It chooses its victims based on the color of their skin.  Affirmative action is despicable no more defensible than its cousin, Jim Crow.

Killing Innocent People Acceptable, Scalia States

In an amazing concurring opinion in Kansas v. Marsh, a death penalty case, Justice Scalia writes:

    Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.

But in the case of the death penalty, a person isn't merely "punished."  The person is killed.  Isn't killing an innocent person murder? 

Perhaps it's the case that if you enact enough procedures to reduce the likelihood that an innocent person will be killed, then what you are doing is not really murder.  If so, what is killing a person under such circumstances called?

If a man scientist released a drug into the air that would only have a .01% chance of killing everyone who contacted it (and someone actually died), could that person be prosecuted for murder?  If not, why not?

I suppose the argument is that, unlike the mad scientist who need not release his toxins into the air, we must have a criminal justice system.  This is a fair point.  But does that mean our justice system must kill people?

Some might try a reductio ad absurdum, arguing that: "By your logic, we cannot have prisons, because wrongfully imprisoning someone is also a moral wrong."  However, I support prison reforms not because I care much about the dignity of the violent criminals, but because it is a fact that innocent people are in prison: The only way to mitigate the harm we as a society have done to the wrongfully imprisoned is to ensure they, at the very lease, are, say, able to avoid prison rape.  To do this, we must be over inclusive.  That is, since we know some people in prison are innocent, but we do not know which ones, we must enact measures that benefit everyone - even the guilty.

But back to my question.  Is it moral to have a system that kills innocent people .01% of the time?  If so, why?