The Defender

Justice For All?

2011-01-02T11:24:00.003-05:00

Recently a Michigan man was criminally charged with a felony for reading his wife's email:

*Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.* (Full story: http://www.freep.com/article/20101226/NEWS03/12260530/)

Unfortunately, it's yet another example of overbearing and overzealous prosecutors abusing their discretion by charging someone under a law for something the law was never intended to do. It's also an example of legislators' imprudence in drafting legislation that can be abused this way.

From the article:

*"What's the difference between that and parents who get on their kids' Facebook accounts?" attorney Deborah McKelvy said. "You're going to have to start prosecuting a whole bunch of parents."*

Many people think it's great when our legislators enact a plethora of "get tough on crime" laws. There is no easier way to score points with voters by pandering to them with a "law and order" image. Yet, this case shows how people who blithely cheer such politicians on and just as enthusiastically applaud harsh punishments get hoisted on their own petard when they may themselves be charged with a crime for something seemingly innocuous and done with good intent. It happens more than you think.

Police and prosecutors portray themselves as society's protectors, and encourage the public to give them tremendous authority because they will supposedly use proper "discretion" when enforcing the law. Sadly, this is often merely image manipulation so the government can have unfettered power, which leads to asinine prosecutorial conduct as demonstrated in this case.

Even if this Michigan man is eventually acquitted, his name will be forever besmirched by the existence of a felony arrest record, he will spend thousands to defend himself, and he will endure great emotional and mental stress. If acquitted or if the law is rescinded he'll never get an apology or any recompense from the prosecutor or the government. If found guilty, his life is ruined.

Doesn't seem like justice to me.

I Pledge Allegiance?

2010-10-25T21:51:00.006-04:00

A Christian friend recently said he can find more arguments against than for keeping the phrase "under God" in the pledge of allegiance to the flag. He wonders if there should be a pledge at all. He said he doesn't pledge allegiance to his country. Even though he believes it was founded on Christian principles, the way we have treated Native Americans, African slaves, unborn babies etc. suggests to him that we are by no means a nation “under God” let alone a country he should “pledge my allegiance” to.

I replied that I am a Christian "under God" but I sometimes fail God, as do all Christians. Sometimes Christians fail in grievous ways, at least from a human perspective. It's inevitable this side of eternity. We are still Christians under God despite our failings.

Our nation was never a theocracy but a nation founded by spiritually imperfect people who believed in God and the Bible. The nation that grew up around its founders had plenty of failings, as my friend mentioned. It simply reflected the imperfections of its founders. It doesn't mean the nation wasn't under God. To be under God the way he described it, the nation would have had to be the Millennial Kingdom ruled by Christ himself.

Slavery was wrong, as were many other injustices, and as a nation we were under God in our efforts to end them. Yet, we should not judge 18th and 19th century Americans solely through the lens of modern enlightenment.

I agree that as a nation we are hardly under God today, but there are still good reasons for allegiance.

I agree a Christian's ultimate allegiance is to God. But does that mean we cannot state our loyalty to our country insofar as we believe its ultimate goals and ideals are good? It may be argued in 2010 that out nation's ideals and goals are at best mixed in terms of having Christian virtue, but I think we can pledge loyalty to our nation just as we are implicitly loyal to our spouses, children, parents, etc. Of course, if our child does wrong we don't excuse or ignore it, but we are still loyal to our child in our love and care. Is it wrong to feel that way about our nation? I don't think so.

Why do I love my country? Well, there's the usual material blessings we can't even count, at least compared to most of the rest of the world's population. But that of course is trivial compared to the spiritual blessings my family and I have enjoyed because we live here. Had both sets of my grandparents not come here from Russia in the early 20th century most of family probably wouldn’t even exist. My father and uncles likely would have been killed along with the other 22 million Russians, military and civilian, in WWII. Those that survived would have been imprisoned, physically and spiritually, behind the Iron Curtain that was the USSR.

Instead, my grandparents became Christians after coming to the USA as did all their children and most of their grandchildren, including me. I suppose there is some Calvinistic argument that I hardly owe my country any gratitude for my faith, but that's how I see it. It's reason enough to love my country and pledge my "allegiance" to it if for no other reason than to repay the debt of gratitude my family and I owe for all the blessings it's given us.

More Free Speech, Not Less

2010-01-31T18:04:00.005-05:00

I applaud the recent Supreme Court ruling in Citizens United vs Federal Election Commission allowing corporate and similar entities to make campaign contributions within thirty days of election day. It is an important free speech issue.

Distilled to its essence, the ruling says that free speech cannot be abridged merely because citizens associate to speak with a united voice or because they have a certain interest, identity, or ability to monetarily publicize their speech. Democrats are naturally upset because corporations generally favor Republicans, and other Democrat groups (e.g., unions) who might benefit from the ruling are less well-funded than most corporations. But the ruling makes a lot of sense when one understands the Constitutional mandate in the First Amendment that Congress make no law abridging free speech.

Critics assail the ruling because they say it affords to corporations the rights of individual persons, such as the right to vote. To the extent the ruling ascribes "personhood" to corporations or could be interpreted or applied that way, a puzzle ensues. How far can corporate entities go in asserting their rights as "persons"? I'm not sure the Court believes that the ruling should be interpreted to expand corporate rights this way but it admittedly presents some argument for such expansion that may have to be dealt with in future court rulings. It's not a reason, however, to deny associated citizens the right to free speech. Nearly a century ago Supreme Court Justice Louis Brandeis understood that well when he said that the remedy to be applied to differing political views is "more speech, not enforced silence."

I'm always very concerned about any law that curtails Constitutional rights because, once curtailed, they are rarely restored and it opens the door for further diminution of our liberties. I see this problem with efforts to deny individuals such as the Christmas 2009 plane bomber the rights of a criminal defendant. His crime occurred within United States boundaries and is addressed by our federal crimes code, yet because he may be associated somehow with an international terrorist group many advocate for stripping him of rights afforded under our criminal justice system. This is sought despite our criminal justice system having successfully tried and sentenced terrorists many times already.

Once we make exceptions to who our Constitution protects none of us are guaranteed its protection. Again, basing application of rights on the identity and association of the accused is dangerous territory. Seems like that happened in 1930s Germany and didn't turn out so well.

Bringing Terrorists to Justice

2009-12-20T20:00:00.000-05:00

President Bush consistently and adamantly referred to terrorists as enemies in the "War on Terror." He justified his truncation of Americans' civil liberties (e.g. Patriot Act) as necessary to fight the War on Terror effectively. If he was correct in this perception of the anti-terror campaign, that is, that the 9/11 attack was an act of war to which we must respond in kind, then the enemy should have been treated according to the provisions of the Geneva Convention and other military protocols which ensure humane treatment of prisoners which, heretofore, the USA has adhered to (at least officially).

He refused to do this, however, because the reason he characterized Al-Qaida this way was only to justify his military-oriented approach to opposing them. When it came to how to treat them after capture he backed away from the "we are at war" characterizations and called them "enemy combatants", rather than prisoners of war, thus placing them in legal limbo indefinitely - not subject to civil or military prosecution or due process. Instead, the whims of the executive branch controlled their status and fate. I believe this approach was extra-constitutional at a minimum and probably constitutionally impermissible. This has also been the view of nearly every court that has decided any challenge to Mr. Bush's anti-terror policies.

President Obama has at least backed away from the War on Terror model and classified those detained at the Guantanamo prison as accused criminals subject to prosecution under our criminal justice system. Until 9/11, this was always how we handled terrorist acts occurring on US soil. The 9/11 attack was much worse than any previous attack so Mr. Bush used it to rationalize the altered prosecutorial approach, as described above. The essence of the criminal acts of 9/11, however, was no different than prior terrorist acts on US soil. Only the scope was larger. Therefore, there was no legal justification for changing the way the criminal suspects were treated. It was just the executive branch exploiting and manipulating the understandable fears of Americans to adopt a legally unprecedented and unjustified method of detaining and prosecuting criminals (although under Mr. Bush there never was any meaningful prosecution, just indefinite detention).

Mr. Obama's critics on this issue doubt our ability to securely and justly put to trial modern terrorists. They again play to our fears in demanding unprecedented and arguably unconstitutional methods for keeping Americans safe from terrorism and exacting retribution. Instead, I have put my faith in our great Constitution and its design for criminal justice to appropriately prosecute even those accused of heinous acts of terrorism against our country. History will show whether we stand tall against those who seek our demise or capitulate to our anger and fear and thus unwittingly grant our enemies victory.

America, Christians and Torture

2009-05-16T20:00:00.001-04:00

I believe George W. Bush is a good man and had good intentions as president. From a conservative's perspective he did many good things while in office. I certainly believe the media treated and evaluated him wrongly and unfairly, to say the least. Nevertheless, I have serious problems with some of what he did. I am even more concerned about Barrack Obama's presidency than any other, but I also believe he is a good and well-intentioned man who can and will do some good things as president. The older I get the more I don't see politicians and and political parties through "black and white" perspectives. On balance, you'll find me supporting Republicans, but there is plenty of bad in the party. It is certainly not God-ordained that we support Republicans.

Some conservatives who categorically state that the USA under Bush didn't commit torture seems untenable. What some have done is change the definition of torture so that as long as there is no evidence of maiming, injury or death, no torture has occurred. This means that we can supposedly inflict unlimited pain on someone but as long as we don't leave any marks, it's OK. First, this is disingenuous and therefore not something a Christian should be saying. It sounds like political doublespeak. Second, I simply cannot accept this definition as it really doesn't mitigate the concerns about inflicting torture on people. Torture is about inflicting so much pain or agony, mental or physical, that a person yields to our will. Simply avoiding maiming or killing somebody doesn't stop that.

There is a reason why the US military will not do what George Bush authorized against Guantanamo and similar detainees to extract information. Historically, it's been considered inhumane. It's also counter to the Geneva Convention which, heretofore, the USA has always respected. When I was a kid I used to be so proud of our country because we wouldn't stoop to the levels of our enemies in wars to torture people as the Japanese and Germans did in World War II. Somehow we managed to win those wars anyway while taking the high road. It is sad and very disappointing that we are now known for doing those things for which we once condemned our enemies. Sure, we are more sophisticated than the Germans and Japanese since we try to leave no marks, but it is no less torture if the effect and result is the same.

Evading or attempting justification of the torture issue by characterizing the people held at GITMO and other CIA prisons as "murderous detainees", as I heard one conservative friend do, is telling. I guess some have rationalized our treatment of them by convincingly themselves as apparently the Bush administration did that all these people are so bad that they have no rights, human or otherwise, such that the end justifies the means in the way we extract information from them. As a Christian, no matter who these people are or what they have done I must first regard them as souls for whom Christ died because he loves them. This does not mean we must be naive and give them the benefit of the doubt regarding what they may have done or been involved with. But if you see them as souls in need of a Savior, it's hard to inflict unlimited pain on them or do the terrible, indecent things that were done at Abu Ghraib, even though no marks are left on their bodies, and then justify it.

Second, how do we know all these detainees are "murderous"? Most have never received fair hearings of any sort to formulate charges or justify holding them indefinitely. They've been plucked from the "battlefield" based on military persons' suspicions of them. Undoubtedly, many have done bad things and would be convicted of some offenses if tried. However, I can assure you from dealing with how law enforcement accuses and charges people, their accusers are by no means always correct. I'd think their accusers and imprisoners would be even less careful to fairly accuse them since they know they don't really have to be held accountable for their actions. Bear in mind, our highest courts, conservative leaning as they are, have turned back virtually every Bush administration and Republican effort to circumvent some sort of due process for the detainees who, had it been left to the Bush administration, could be held indefinitely without any sort of objective review of their cases. I fail to see how that is American or Christian.

Forget the Campaign Rhetoric

2008-09-28T12:07:00.000-04:00

I am not enthralled with either presidential candidate this year. Nevertheless, I think this and most elections are too important to sit out as a voter merely because neither major candidate perfectly suits our needs and wants.

When considering who to vote for I review a candidate's lifelong record rather than his campaign rhetoric. Both candidates will say or not say certain things just to get elected, but then his true intent and philosophical orientation will reappear. A leopard can't change his spots. I can review a candidate's professional and personal life adequately to know where he really stands. That being the case, unless something startlingly new and revealing comes out during the campaign, my mind is more or less made up well before the election. Frankly, it seems a little naive to depend on the vagaries and rhetoric of the campaign all viewed through the manipulative, biased and distorted media prism (let alone campaign ads) to decide who to vote for. That's true whether you prefer FOX News, CNN, the New York Times or any other media source for your political information.

That said, Senator John McCain's record is one of general traditional conservative values, with some exceptions. He has some history for bipartisanship that is greater than most other Republican politicians. Senator Barrack Obama, including well before he became a senator, has strongly supported liberal positions. His votes in the senate are considered about as strongly liberal as any senator. Importantly, both of these men will bring their conservative or liberal views to bear when nominating not only Supreme Court justices but hundreds of judges for the lower federal courts. Because these are lifetime appointments, a president's legacy is often determined to a great extent by his judicial appointments. These will be my primary considerations when voting for president.

I think it's unwise to be sidetracked by issues such as which vice-presidential candidate is better suited for the presidency, which candidate has a better military service record, which one is a better orator, etc. Regardless of who "wins" on these peripheral issues each candidate still has his core beliefs and his lifelong record as I've explained above and the latter will determine how he leads our nation. In this election we have a clear choice between two clearly different political orientations and philosophies of governing. I think the prudent voter will align him or herself with the candidate whose history best reflects their own political and philosophical values and vote accordingly.

Kids In Prison: Irony and Tragedy

2008-04-29T20:07:00.000-04:00

It's popular for people to say that if a teenager commits an adult crime, he should do adult time. The theory is that a teen who is old enough to commit violent crimes is old enough to suffer the consequences of adult behavior. Thus, most states provide for teenagers under 18 to be charged as adults if they commit violent crimes.

This is a leap in logic to assume that merely because a 14 year old kid commits an act of violence he has the same responsibility for his actions as a mature adult. In almost every other way society deals with youth we make the opposite assumption, specifically, that youth are immature and naturally irresponsible with minds that don't think as carefully and deliberately as adult minds are expected to think. Youth are obviously woefully inexperienced in life and typically oblivious to consequences for their actions. The law reflects this proper understanding of young minds in many ways. For example,

minors cannot legally bind themselves to a contract;
minors are considered unable to give consent to have sex with an adult even if the minor actually says "yes" and puts it in writing;
minors cannot marry if they are under age 16 or if 16 -18 parental consent must be given;
driver licensing laws are much stricter for minors;
minors cannot vote, serve in the military without parental consent, legally consume alcohol, or be involved in most other adult activities independent of parental consent or adult oversight.

All of these restrictions are imposed because society understands that, generally speaking, youth are simply not able to responsibly handle themselves in these areas. They are too immature and inexperienced and thus likely to get themselves and others into trouble if they are permitted all rights and privileges enjoyed by adults. Yet, for some reason, when a youth commits a violent crime he is deemed fully responsible for his actions such that he must be punished as an adult with much more life experience and ability to know and act better. Why?

It's because our pandering political leaders and a populace rashly demanding high profile "crime control" allow this tragic double standard. It makes for good political theater and points with the voters (can you say "politico job security"?) to announce how pubescent criminals have been locked up for good, or at least most of their useful young lives. The politicians don't bother to recount how much this costs the voters in additional taxes as the penal system expands exponentially to accomodate this bloodlust for young offenders. Nor do they mention how ultimately ineffective the process is when young offenders who are eventually released are unrehabilitated. To the contrary, they will have only become more serious, dedicated and competent criminals because of their exposure to older convicts in the prison system and lack of opportunity to receive age appropriate correction for their original offenses.

Youth who commit crimes must be dealt with by the juvenile criminal justice system where age and maturity appropriate measures can be taken to safeguard the public from them but also effect redemption of their potential. Who would disagree that if there is any "sweet spot" in one's life where he is especially malleable for good and more likely to change his ways to become a productive member of society, it is when one is a teenager? Certainly, the odds are much better for effecting positive change in these young lives than the much older adult criminal who is set in his ways, yet we so casually cast them to the trash bin of adult prison when they offend.

Sadly, politicians and society itself seem more interested in despairing of these young lives, thus wasting them literally at society's expense. It's the ultimate, immediately gratifying, "feel good" approach to a problem. It feels good to lock up the bad guys, whatever their ages, and get them off the streets, because it gives us a sense of security, albeit a false one since it is not a long term solution. Ironically, it is the adults fostering this approach to our troubled youth who demonstrate the greatest irresponsibility and lack of foresight by their actions.

Your Tax Dollars At Work

2008-02-28T20:07:00.000-05:00

I just watched an interview of the secretary of the Pennsylvania Department of Corrections (prison system). I learned

from 1940 through 1980 the PA state prison population ranged from 5000 to 8000; the state population increased by 20% over this 40 year span;
since 1980 the inmate population has grown to 46,000 at 27 facilities - a 575% increase; the state population has increased by 3.5% during this 27 year span;
three new prisons are needed NOW at a total cost of $600 million to build and $50 million per year to operate;
the inmate population increases by about 1600 inmates a year, a 3.5% annual increase, while the state population is essentially stable;
At the current rate of inmate population growth a new $200 million dollar prison (in today's dollars) will be needed every year after 2012;
it costs $32,000 per year to house an inmate;
the above facts and figures are proportionally similar to growth rates and costs at state prisons throughout the country;
the increase in prison population and costs are directly related to dramatically higher incarceration rates and stiffer sentences for nonviolent offenders, mostly substance abusers and property offenders (theft).

Some questions:

Knowing the above information and assuming it is applicable to your area, do you feel safer in your community today than you did 20 years ago? For those who are older, 40 years ago?

Are you content as a taxpayer to have your money taken to support the state prison system with its never ending escalating costs?

Extremist types may advocate stripping the prison systems down to "bare bones" to cut costs, but we all know our country will not regress to barbaric treatment of inmates anytime soon, so get real.

Would it not be prudent to move beyond our expensive, so-called "get tough on crime" approach of the last 30 years or so which basically means (1) enact more criminal laws enabling more people to be charged and convicted for ever more infractions of codes of behavior, (2) mandatory or longer sentencing requirements which take discretion away from judges to fit the sentence to the crime (3) without addressing the causes for criminal conduct?

Muslims, Christians and Intolerance

2008-02-09T12:50:00.000-05:00

Conservative Christians (evangelicals) are sometimes accused of being "intolerant" toward those of different political persuasions or those having different worldviews. In the meantime, many Muslims give an entire new meaning to intolerance by their Draconian reactions to what many see as minor offenses to their religion. My friend, Mark S., compared the two religions recently and offered the cogent thoughts below.

I think we should clarify what tolerance and intolerance are. There is a time for each. Ancient, theocratic Israel was not tolerant of false gods -- they would tear down their idols and kill their priests. God ordered
sorcerers to be executed -- not a model of toleration.

The difference between Christians and the Muslims is the location of our eternal kingdom. The Muslim believes his religion is destined to rule the physical world and he fights for that present kingdom. Christians ought to be every bit as "intolerant" as Muslims are regarding sin and blasphemy. I watched a silly Indiana Jones movie last night and at one point Indy said "Jesus Christ" and his father slapped him across the face and said, "that's for blasphemy." Spot on.

Jesus said, "My kingdom is not of this world, else my servants would fight." Christians' "tolerance" of evil and blasphemy should not be born of our inability to be outraged and shamed, it should be born of our knowledge of where our kingdom is located and what final judgment is coming. We don't fight because God is coming to fight for us -- he is coming having fought such battles before. Our outraged response to evil should be increased warnings and confident "the Lord rebuke you" type statements, not shrill pronouncements that sound rather self-righteous. The Apostle Paul told the Thessalonians of New Testament times that their confident endurance was proof of the coming judgment of God. Their faith was evidence of the things not yet seen.

In my opinion, that's how we should respond.

Mark S.

The War

2007-12-01T21:19:00.000-05:00

There is no greater defender than the one who fights for his country, to protect our freedom, our families, our way of life. Ken Burns' documentary about World War II, simply titled The War, chronicles the stories of such great defenders. I'd say it is one of the best documentaries I have ever viewed and certainly the best WWII documentary I've ever seen.

Some historians have commented that the documentary "is what it is" and is thus good only for what it attempts to portray rather than being useful as an exhaustive explanation of the Second World War. I agree but I'd add that it does an exceptionally good job accomplishing its goal of telling the stories of those who lived through the horrors and joys of the war years. Despite its long length, it is not a detailed historical account or analysis of WWII, its battles, leaders, strategies, virtues or evils although it touches on some of all of that. It is a grand human interest story. It should thus have appeal to a wide spectrum of viewers, not just history enthusiasts.

Most powerful and impressive are the interviews of combat veterans and those who lived through the war on the home front. The mental and emotional toll it took on these people, which they feel nearly as strongly today over sixty years after the war needed, is manifest in their interviews. Every episode brought tears to my eyes.

The film references in detail American wrongs as well as America's virtues during the war. For example, the unconstitutional internment of Japanese-Americans, discrimination against black servicemen, and even retaliatory atrocities committed by Americans are explained. Of course, the valor and sacrifice of those supporting the troops and of the troops themselves, as well as the ultimate triumph of good over evil are plainly emphasized.

It contains graphic depictions of the results of battlefield violence and some occasional but mostly mild profanity, although nothing gratuitous. If the "F" word spoken clinically is unbearable to the listener then you will want to silence the very beginning of the "FUBAR" and "SNAFU" episode where the narrator briefly explains the meaning of these acronyms which originated on the WWII battlefield.

This is a moving and monumental epic done nearly to perfection. I highly recommend this film.

The Professional Wrestlers of TV News

2007-11-26T21:18:00.000-05:00

It perplexes me why so many public people accept invitations to be "interviewed" on the news programs and channels, especially Fox, MSNBC and CNN. Almost always, the host uses these people as a foil to tout his or her own opinions, feed the audience's biases, and thus grandstand to enhance ratings.

Bill O'Reilly and Nancy Grace are two of the worst in this regard. They unfailingly interrupt and shout down, bully or derogate any guest with whom they disagree or who actually make some sense in opposition to the view the host wants to herald. The interviews are so short that one can utter no more than a few sound bites, rarely any substance. Because time is so limited everybody talks at a rapid pace, breathlessly trying to score their talking points before being interrupted or cut off by time constraints. Such pandering to the apparently extremely limited attention span and of the average viewer is pathetic.

I think some interviewees like to have their ego stroked by appearing on the shows but by doing so they are often unwittingly made to look silly by design of the host. This makes most TV news show hosts a lot like professional wrestlers - everything is a setup.

Sad Times

2007-11-18T18:13:00.000-05:00

A man came to me recently who was cited with luring a child into his vehicle. The law states that "Unless the circumstances reasonably indicate that the child is in need of assistance," luring a child into a motor vehicle is a criminal offense.

The man told me he was on his way home at about 3:30 PM because he is a stay at home dad and his own 11 year old son would soon be home from school. A short distance from his house he stopped to ask a neighbor boy (age 10 or 11) if he wanted a ride to the boy's house. The boy said "no", explaining that he had only a short distance to walk. The man then invited the boy to his own son's birthday party and gave him a note with his phone number to call about the date and time (which hadn't been decided yet). After giving the boy the note he drove off. This account is about the same as what the boy told the police except the police say the man "insisted" the boy come with him. However, the car was only momentarily stopped and the man never got out of his car or did anything to entice the boy into the car except what is stated above.

The boy apparently went home and told his parent(s) who then called the police. The police charged the man with the above criminal offense of luring a child into a motor vehicle.

It struck me that unless an adult clearly determines that a child needs assistance, such as a medical emergency, and that need is later verified by a credible third-party, it is now high risk to ever stop and offer a ride to a child even if you know him or her. You can be criminally charged and, like this man, your charge will be picked up by the media and it will be implied that you are a sexual predator of children. This man is in his early 40s and has no criminal record, let alone one of a sexual nature. He is now terrified about how this will turn out.

Regardless of whether this man really had anything illicit or not on his mind when he stopped to offer the boy a ride, this is a sad commentary on modern society. The man could indeed be telling the truth.

Some say, even if this man is innocent, he lacked common sense. Perhaps true, but the tragedy of our times includes the compulsion parents have to teach their children to react to adults this way. Now, it is a crime for an adult to lack common sense, I guess. Occasionally, I see high school kids in my neighborhood walking to school since there is no bus service in our area. I've thought that I should offer them a ride since I drive right by the high school but I never have because of how this is perceived to be such a risk for a child. It's indeed sad that I won't offer some simple kindness because I'm afraid of what might happen to me and because the child might be afraid to accept my offer. I could be criminally charged and have my personal and professional reputation destroyed. These are sad times indeed. Does anyone ever ask why this has happened or are we content to spend more tax dollars to build more prisons while we stick our heads in the sand to avoid dealing with the reasons for this degeneration of our society?

Sgt. Kyle Kalasnik - an inspiring story

2007-09-21T21:49:00.000-04:00

I was upstate Pennsylvania visiting my cousin Sgt. Kyle Kalasnik and family recently. Kyle was home from the Marines on convalescent leave from a combat injury so I decided to make a visit. I had time to talk to Kyle about his nearly two years (three tours) in Iraq. Kyle understates his military service and eschews recognition for it but if asked he will matter-of-factly tell you what he experienced. I knew he had endured some difficulties and had been recognized by his superior officers but I didn't fully appreciate his story until last weekend.

Kyle joined the Marines shortly after high school graduation in 2003. Within months he volunteered for duty in the Iraqi War. Kyle has since received two Purple Hearts. He has the scars and surgically extracted shrapnel to show for it. One is for having his leg and arm ripped up by pieces of the Humvee he was riding in when it was hit by a rocket propelled grenade on the front passenger door. He was sitting in the seat on the other side of the door! His knee was badly damaged and he underwent surgery last month to repair it. He is now on crutches at home for thirty days of convalescent leave.

Another Purple Heart is for being blasted with shrapnel and glass on the right side of his body and face. One small shrapnel scar is millimeters from his right eye. He was that close to having his eye ripped to shreds. He was in a Humvee when a suicide bomber drove his vehicle into it. Fortunately for Kyle, he was on the opposite side from where the bomber crashed the Humvee. Sadly, the two Marines on the exposed side were killed while Kyle was blown out of the Humvee.

Kyle was also in a helicopter that was dropping out of control into a lake when the pilot told Kyle and the other Marines in the chopper to jump before it crashed. Kyle and the others did, while in full battle gear, from 80 feet in the air into a cold lake. Kyle plunged 30 feet underwater and, without shedding any of his gear, swam back up to the surface and then about 100 feet back to shore. On the way, he saved another Marine who had panicked and was nearly drowning. Four other Marines died in that incident.

As if all of this was not enough to leave me with immense respect for and pride in Kyle, his mother showed me this letter they received from Kyle's superior officer:

Dear Mr. and Mrs. Kalasnik,

I am sending you this to congratulate you on your son's most recent achievement. Yesterday, he was awarded the Navy Commendation Medal with Combat Valor. For bravery on Oct 7 2004 in Ramadi, our platoon was sent out to seek and destroy the insurgents who were shooting mortars at our base. Once their location was found, your son ordered his squad to stay under cover and then he, by himself assaulted a house with a machine gun positioned in it. Charging through a murderous hail of gun fire, and explosions, he snuck around the house, to the back door. He entered the door, and waited for the enemy to appear. When they did, your son opened fire, killing one, and wounded another, and taking him prisoner. His actions, cause a squad sized enemy force, to then pull out of their defensive positions in the adjacent buildings, and retreat thus ceasing their mortar fire.

While serving as the Platoon Sergeant for Ammunition Platoon, Headquarters Company, Headquarters Battalion, 1st Marine Division. I had the honor of serving with your son Corporal Kyle Kalasnik. Kyle served as 1st Squad's, Squad Leader. A position not normally held by junior corporals. I must admit I was very leery at first of having such a young Marine, let alone an NCO, in such a vital leadership position. However Kyle stunned me and the entire platoon. His attention to detail, and dedication to duty, both in the rear, and under fire, proved to me that your son was more then qualified for the job. He treated everyone with respect, I don't think I ever saw him yell at anyone. His coolness under fire, set a shining example for us all to follow. And in the rear, he was always there for anyone to talk to if they had problems, or to help in any way he could. I know it was because of his leadership through this tour of duty, that we had no one in Ammunition Platoon get killed. He did an outstanding job, and you should be proud, I know I am.

Sincerely,

Michael Williams, Sgt/USMC

Plt Sgt, Ammo Plt, Hq Co, Hq Bn, 1st Mar Div

Kyle's parents knew nothing of this courageous conduct or the medal Kyle received until Sgt. Williams sent this letter.

Thankfully, Kyle is spending his last several months as a Marine at Camp Pendleton and plans to end what will be a nearly five year stint in the Marines in the first half of 2008.

Why New Sex Offender Laws Won't Work

2007-08-26T19:13:00.000-04:00

With every new sex offense that is trumpeted by cable news channels and their celebrities (such as Bill O'Reilly) as a reason to "get tough" on these offenders, we seem to be ever more oblivious to the ultimate ineffectiveness of such laws as "Jessica's Law" or "Megan's Law" or any other law drafted in haste because of the outcry from those horrified by some sex crime.

My point in referencing Jessica's Law, Megan's Law, etc., is to illustrate that society keeps avoiding the real issue, namely, why are these sex offenses happening? Particularly, if they are occurring more frequently than many years ago, why is that so? We can go on making prison sentences longer and longer and spend more and more money monitoring sex offenders (all of which costs the honest citizen untold tax dollars) but I really doubt it will accomplish anything except take them off the streets for a time. Granted, society must be protected from these offenders but sex offenders are a lot like drug dealers. The ones who are arrested are quickly replaced by others because there is an insatiable appetite for drugs. Similarly, our society and culture is sickeningly obsessed with sex thus creating an abominable and correspondingly sickening addiction to ever more unconventional means of obtaining sexual gratification. Hence. the grisly child sex cases. Nobody wants to face this root of the problem. We just spend more tax dollars warehousing and policing offenders only to have the ones we catch replaced by others whose appetite for such sexual gratification has been fed by the near collapse of our traditional moral standards.

That said, I believe the incidence of "arrogant, liberal, soft judges", who media news celebrities such as Bill O'Reilly love to hate, giving light sentences to serious sex offenders is a lot less than most people on the Jessica's Law bandwagon think. I have encountered far more cases of judges throwing the book at such offenders than I have of judges showing leniency. What you hear about are a very few anomalous cases that FOX News and other media pandering to their "law and order" audiences inaccurately and shamelessly portray as typical.

I believe those who prey on children sexually or otherwise should receive severe sentences. However, the "one size fits all" mandatory minimum sentencing laws which take all discretion away from a judge inevitably cause some people who should not be so harshly treated to receive unfair and unduly harsh sentences. There is a difference, for example, between a 40 year old man sexually abusing an eight year old girl and a 17 year old boy having sex with a willing 13 year old. Yet, many laws would lump these cases together for sentencing purposes. All states have sentencing guidelines that a judge must follow when sentencing someone. This provides a range for sentencing set by the legislature which allows for application of aggravating and mitigating factors but also lets a judge do his job, namely, make a judgment regarding a sentence after both the defense and prosecution have presented their arguments for a particular sentence. If either the defense or prosecution believe the judge has abused his discretion in sentencing the sentence can be appealed to a higher court. This in the long term is much fairer by allowing for the many different circumstances in each case which require customized sentences.

Instead of our lawmakers reacting only to the near hysteria fanned by news celebrities in need of a fan base to sustain themselves, we should let our judicial system do its job. Prosecutors should prosecute. Defense lawyers should defend. Juries should deliberate and judges should sentence accordingly. Taking away these important responsibilities in favor of mandatory laws removing discretion of those closest to the cases mocks and denigrates our constitution and the brilliant and magnificent judicial system it created. Worst of all, it ultimately erodes all of our civil liberties and individual freedoms by making it a little easier next time someone doesn't like our speech or conduct to ignore the principles of our constitution in favor of mob rule.

Smoking Bans: Choking Civil Liberties

2007-07-14T12:58:00.000-04:00

A recent newspaper article reported another major public university's decision to ban all smoking on campus. This follows numerous new state and local government laws to ban or drastically restrict smoking outside of one's home.

A good demonstration of how dirty smoking cigarettes is can be found by entering the car of somebody who smokes. The entire interior is permeated and coated with smoke film and odor. It is as if you are stuck inside a glass jar with somebody smoking in your face. I have a friend who smokes and has in her car's console a cup half-filled with water that she uses as her ashtray. It is a putrid swill of cigarette stubs, floating ash, and water that has turned to an ungodly color. Whenever I observe this I am reminded that this is how the inside of smokers' lungs appear. It makes me wonder how smokers survive as long as they do.

That said, as long as cigarettes are a legal commodity I disagree with the back door approach to eliminating smoking by greater infringement on the civil liberties of smokers. I don't have a problem with reasonable restrictions on smoking indoors or even some outdoor restrictions but banning smoking on an entire university campus or other areas even where it does not affect others is overbearing. The government doesn't have the political courage to make tobacco illegal like other dangerous drugs so it fights smoking by stripping citizens of their civil liberties instead. The tobacco companies meanwhile go on making billions of dollars and are even subsidized by our government. I think that is hypocritical and wrong.

George Bush vs. U.S. Constitution

2007-06-16T12:41:00.000-04:00

On June 11 the Fourth Circuit Court of Appeals harshly rebuked the Bush Administration's anti-terror strategy by ruling that legal U.S. residents cannot be imprisoned indefinitely without being charged with a crime merely because the Administration has labeled them as "enemy combatants." Prior to this ruling the Bush Administration was making unilateral determinations about legal U.S. residents' status as enemy combatants. No court or objective third-party or other entity, was involved in making the determination. Once the determination was made the enemy combatants were considered to have no Constitutional rights to a lawyer, a trial, notice of charges, or any other basic elements of fairness guaranteed by the Constitution.

First, this is a particularly significant ruling because the federal appellate court is subordinate only to the U.S. Supreme Court, and because the Fourth Circuit Court is known for its conservative judges who are usually sympathetic to Bush policies. For a typically sympathetic, high court to soundly rebuke the president as it did is rare and thus casts an even greater shadow on the president for his disregard for and disrespect of basic constitutional rights.

Second, this is one of several recent high court rulings rebuking and reversing Bush policy on constitutional grounds for its Homeland Security policy yet Bush persists in attacking or ignoring the rulings and by extension the Constitution itself by relentlessly pushing such policies. This demonstrates an arrogance and cavalier attitude for the law that is astonishing.

Third, its is frightening to see how our nation can so easily abide the trampling of constitutional rights. Bush has somewhat avoided accountability in the court of public opinion on this issue by saying it's OK to strip people of basic rights because he is fighting terrorists and thus protecting Americans. If he addresses the constitutional issues at all, he merely gives lip service to the idea of due process and essentially claims that fighting terrorism trumps the need for deference to the constitution.

The question thus arises, if Bush is allowed to disregard constitutional rights based on his unilateral and arbitrary decision that fighting terrorism is more important, what is to stop some future political leader from applying this rationale closer to home to other population segments that the leader deems unsavory? Sooner or later some leader is going to make a case for stripping U.S. citizens of rights that your or I hold dear using the same rationale that Bush uses to ignore constitutional rights to combat terrorism. If that happens, it may be too late to reverse course and salvage the freedom we once had as a nation. One way to combat such a tragedy is to promote reverence and loyalty to our constitution, emphasizing its centrality in our system of government, and avoid minimizing its ultimate authority regarding individual rights as President Bush has done. .

I am very thankful for our judicial system which has thus far stood up to the bullying and grandstanding of President Bush on this issue. Presently, it demonstrates that our three branch system of government is working. I am proud of that. However, it also shows that if the bulwark of our courts fails because of the machinations and force of a dynamic but ultimately evil leader we are only one step away from being a nation where freedom is no more.

Memorial Day: Honoring The Dead

2007-05-27T21:16:00.000-04:00

Officially, Memorial Day was established to honor those who have died while in the armed forces of our country. (Veterans Day, November 11, honors living veterans.) Both of these days are especially poignant for me because my father and four uncles served in WWII. Only my father and one uncle are still alive today. Presently, I have a cousin in the Marines, having served three tours in Iraq since 2003. He has received a Purple Heart for injuries and other awards.

I found these words especially meaningful when considering those who have died serving their country:

I am a defender of my country. My actions are governed by those of my forefathers whose courage and valor beyond the call of duty enables this country to remain independent. I will never forget that I am dedicated to those principles which let our flag fly free throughout the world. I have always placed my trust in God and in these United States of America. I have given my life in their defense.

- Inscription from the monument at the grave site of Franklin R. Sousley, one of six Marines who raised the flag on Mt. Suribachi, Iwo Jima Island, during the WWII battle there. He was killed during the battle when a Japanese sniper shot him in the back, piercing his spine. The photograph of this flag raising became the iconic symbol of the Marines and one of the most reproduced photos in history.

To honor those who died on Memorial Day you may wish to attend a parade, decorate a vet's grave site, take a trip to view your local war or veterans' memorials or something similar so that the day doesn't pass without paying some tribute to those who are the reason for Memorial Day. As a start, you may wish to visit my online photo album and view various war and veterans' memorials I've photographed in my travels.

http://picasaweb.google.com/jkalasnik/VeteransAndWarMemorials

Cops, Adrenalin, and the Shameless War On Drugs

2007-05-19T20:02:00.000-04:00

Several months ago I commented to a friend that many police are not so much courageous and virtuous good deed doers as they are thrill seekers who like the adrenalin rush of law enforcement. I appreciate what they do but to say they are necessarily more heroic or braver than anyone else as opposed to simply persons of average character who like a thrill is inaccurate. My friend somewhat mocked me for saying this and gently implied that I have an unjustified, cynical view of the police.

I found it interesting then to read an article in my local newspaper, the York Sunday News, which supported my view. The article is from February 4, 2007 and reported on the efforts of the local "Drug Task Force" (DTF). The DTF is a conglomeration of police from various municipal police departments in the county and the state police who are assigned to investigate and arrest illegal drug traffickers. One member of the DTF told the newspaper reporter doing the story that "he was attracted to the work because of the adrenalin rush." He explained,"Just the fast paced lifestyle that we live...a lot of times we're runnin' and gunnin', chasing people."

The same officer also commented that their efforts as part of the so-called "War on Drugs" were merely putting "a Band-Aid on large lacerations." He also said that despite making drug arrests every day; "we run out of hours in a day; [but] I haven't seen any letdown in the dealers or users." I rest my case that many of these people do what they do not because they have any greater share of virtue, good character, courage, or any other positive attributes than the rest of us. They have a job and they do it because they like it regardless of whether it really does any good.

As for the War On Drugs, it is a major waste of time, effort, resources, and taxpayer dollars. As a nation we spend untold billions fighting illegal drug use and trafficking. However, as the DTF police officer said, it just doesn't do any good except to keep people in the law enforcement industry employed at taxpayer expense. The problem is the huge demand. As long as people want illegal drugs they will have a street value that makes it worth the risk for dealers to sell them. And so it goes. Until we find a solution that reduces or elimnates demand rather than foolishly emphasizes making as many arrests as possible to "fight" this War, law enforcement's efforts will be essentially useless and we'll continue to throw untold billions of taxpayer dollars down a black hole in the name of "law enforcement."

More Tasteless News Coverage

2007-05-16T21:59:00.000-04:00

After Jerry Falwell's death on May 16 I've heard some pretty tasteless commentary on the news. Does respect for a grieving family mean nothing today?

CNN interviewed a man last night who has authored God Is Not Great, apparently some venomously blasphemous book mocking people of faith and faith leaders especially. He was especially hateful in remarks about the "charlatan" Jerry Falwell. These folks are entitled to their confused opinions but I think it is tasteless and disrespectful for major news networks to give a platform to such Falwell and Christianity haters at the time of Jerry's death. I strongly doubt that the same media would invite such derogatory commentary about Jesse Jackson, Al Sharpton and other left-wing opportunists and exploiters when they die

More on Defending Scumbags

2007-04-27T20:42:00.000-04:00

A lawyer friend of mine, who has represented a few criminal clients, commented that criminal defense lawyers seem inherently less virtuous than other types of lawyers because they are willing or even seemingly eager to defend people he perceives as "scumbags." Here's how I responded:

Making such a damning assessment of criminal defense lawyers based on your limited experience with them makes as much sense as me saying that all pastors are perverts because I've known some who have cheated on their wives.

I think you are confusing the roles of the defense lawyers and prosecutors with the nature of the cases and defendants they defend and prosecute. I find many of the acts my clients are accused of committing "distasteful" but that is beside the point. In the big picture my role is to uphold a priceless constitutional principle of fairness and justice, i.e., due process, that is unmatched in almost any other nation's criminal justice system. Our founding fathers were indeed manifestly insightful, magnanimous and gracious (sounds Biblical to me) in devising this system.

To fulfill my role as a defense lawyer is indeed a privilege and honor even if knowing some of the people that receive its benefit is not. Similarly, medical doctors treat all sorts of slimeballs and make them well. They do so zealously and with great effort. By doing so they demonstrate the highest ethical standards, i.e., a commitment to a higher purpose, notwithstanding their personal opinions abut their patients. A lawyer, to perform his task well, must necessarily set aside his personal biases and look beyond the ugliness of his client's case and zealously defend his client to advance the great principles of fairness and justice, i.e., due process. If we let any one of these cases slide it chips away at the guarantees of liberty that benefit us all.

Your comment about being embarrassed to admit that you represent people accused of crimes makes me wonder, how can you fulfill your ethical duty to zealously defend your client if you are embarrassed to even admit you represent him? I think what that comment really demonstrates is, frankly, an unhealthy and distorted view of our criminal justice system. For your clients' sake, I'd suggest you stop taking criminal defense cases immediately.

The Duke Three: Epilogue

2007-04-15T20:49:00.000-04:00

What a poignant quote from one of the young men, Reade Seligmann, who was falsely accused of rape and declared innocent last week:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves. So rather than relying on disparaging stereotypes, or creating political and racial conflicts, we must all take a step back from this case and learn from it. This tragedy has revealed that our society has lost site of the core principle of our legal system, the presumption of innocence.”

Sadly, all too true.

The Nauseating Mr. Nifong

2007-04-14T20:54:00.000-04:00

The Duke University lacrosse team scandal which finally resulted in dismissal of all criminal charges against the accused is astonishing in so many ways.

First, it is rare for criminal charges of this nature, once they are filed in court, to be completely dismissed. If it happens it usually occurs in the very early stages of the case. More often, the prosecution offers a very sweet deal to the defendant(s) so some sort of conviction will result. This saves face for the prosecution and prevents the defendants from taking any retaliatory civil action against the government. That all charges in this case were dismissed so long after having been filed speaks to its utter and complete mismanagement by the prosecution.

Second, even if an accused is acquitted at trial the only legal conclusion that permits is that the evidence failed to prove the accused are guilty beyond a reasonable doubt. An acquittal doesn't necessarily establish that someone is actually innocent. In the Duke case the state attorney general who reviewed the case after county prosecutor, Michael Nifong (pictured above), turned it over to him stated that the accused were actually innocent. Even in cases which are overturned on appeal because DNA evidence reverses a conviction most prosecutors will not publicly state that the accused is innocent; it is almost unheard of because, among other reasons, it leaves the government open to a civil lawsuit for wrongful prosecution.

Third, the report released by the state attorney general which announced the dismissal of all charges against the accused was nearly unprecedented in its specific, scathing language used to describe Mr. Nifong's professional misconduct:

He is a "rogue" prosecutor;

He failed to verify the accuser's allegations (an elemental step in charging and prosecuting someone);
"All evidence contradicts [the accuser's] story. [The accuser] contradicts herself";
The charges in the case were wrong. "We need...to keep this from happening again to anybody."

Bear in mind the above comments were made by a fellow prosecutor.

Fourth, the process of holding Mr. Nifong accountable for his misconduct hasn't ended with the dismissal of the charges. The State Bar has accused Mr. Nifong of intentionally withholding evidence from the defense which could have proved the accuseds' innocence, lying to the court and to State Bar investigators, and making misleading and inflammatory public statements about the accused. Mr. Nifong has preliminarily tried to get some of these ethics charges dismissed. His challenged was quickly denied by the ethics panel which heard the challenge. Ultimately, if he is found guilty of these charges he could be disbarred.

What damage has Mr. Nifong wrought by his misconduct?

He caused the accused to endure a year of public attack and character assassination, including suspension as students at a prestigious university; although exonerated now, to some extent the specter of the criminal allegations will always affect the accused;
The accused spent over $3,000,000 in their defense. One of the accused noted that but for his family's ability to pay he might have lost this fight (think of the number of cases where the accused don't have the means to fight the government as here and the injustice that results);
Mr. Nifong has betrayed the trust not only of the accused but the public who elected him and pay his salary as a public servant. This betrayal severely damaged the reputation of the criminal justice system. It is a jurisprudential "Watergate."

What should be done about this tragedy?

Mr. Nifong should be permitted to have a fair hearing on the numerous ethics charges against him. If he is found guilty he should be permanently disbarred. The arrogant, selfish, deceitful and wrongful manipulation of a criminal accusation for political purposes and personal gain described by the charges should prohibit him from ever again having the privilege to practice law.
The accused should sue Mr. Nifong and the government he represents civilly to obtain recompense for the material and personal losses they have suffered. Unfortunately, although Mr. Nifong's conduct seems to me as bad as criminal conduct, he cannot be criminally charged. Therefore, a civil judgment seems the best way to hold him accountable. A civil lawsuit is also merited because Mr. Nifong has not truly apologized to the accused. He has offered a qualified apology by saying "to the extent his judgments in the case were incorrect" he is sorry for the results on the accused. No admission of wrongdoing but instead a statement which is more of an excuse than admission of wrongdoing.

What can we learn from this tragedy?

Prosecutors, a.k.a. public "servants" such as Mr. Nifong are vermin. Their arrogance and avaricious lust for power knows no limit. Hopefully, prosecutors such as him are atypical, yet many with still serious but lesser degrees of chutzpa to railroad the accused do exist. Government prosecutions should thus be greeted warily by the public and the defense must be accorded every opportunity to hold the prosecution accountable for fairly prosecuting a case.
Criminal accusations are only accusations, nothing more. Many in the media, politics, education and especially the black community rushed to judgment prematurely, harshly, and unjustifiably merely because it made for good headlines, scored points with some voting constituents, and served a political agenda about race relations. Shame on all of them. Will they now have the character and integrity to acknowledge they were wrong in their reactions and apologize? Sadly, that's doubtful.
Do not talk to the police if you are suspected of a crime. The accused in this case maintained a wall of silence regarding any police questioning and it served them well. Anything a suspect says can and will be used against him. Given the overall untrustworthiness of the investigation in this case the only result of submitting to police questioning would have been to allow accuseds' statements to be misinterpreted or contorted to make them seemingly incriminatory. Because the accused said nothing to the police the authorities were left with only the false evidence they compiled from the accuser which, along with all of the misconduct committed by the government, ultimately served to cause the case to collapse like a house of cards.

Imus's Plight: Political Correctness Gone Wild

2007-04-13T21:43:00.000-04:00

The Don Imus farce reveals as never before the unrestrained hypocrisy and obsessive desire of the politically correct crowd to crucify anyone who dares encroach upon their Holy Grail of racial rectitude.

Imus is a "shock jock." He makes a living doing and saying outrageous things as does Howard Stern and Andrew Dice Clay. Imus and his type are purposely profane, crude and vulgar because they have found an entertainment niche appealing to the lowest common denominator of society's comedic standards. However, Imus's "nappy headed ho's" comment is really no worse than most other comments he makes as part of his entertainment shtick. In fact, he has probably made any other comments that could be considered more blatantly offensive. Perhaps the only redeeming quality of his "jokes" is that his intention is to be humorous but never malicious.

Imus's mortal sin, from a public entertainment figure standard, was directing a single typical crudely humorous comment toward young black women. He thus stumbled into the venomous pit of pseudo moralists who act as the racial speech Gestapo. Once one has fallen into this abyss there is no escape. Like the early 20th century German Gestapo, the racial speech Gestapo is unforgiving and relentless in its desire to see any who dare deviate from their strict code for racial speech destroyed and stripped of any public support or esteem. Thus, it doesn't matter if Imus grovels and prostrates himself before the verminous likes of Al Sharpton and other self-appointed judges of racial rectitude to beg for some semblance of forgiveness. He is dead meat because he has violated the Holy Grail of political correctness: absolute fealty to black victimization.

The hypocrisy of the Sharpton crowd is well-documented and abundant, yet it doesn't matter because political correctness gone wild has the media and society's leaders set to crush like walnuts in a vise any who speak out against such duplicity by showing a little common sense.

Al Sharpton, Jesse Jackson, and similar racial opportunists thrive on such controversy. In fact, their careers could not survive without shamelessly exploiting any perceived slight against the black race. Imus's comment was especially tantalizing to their exploitative desires because it contained both racial and sexist slights. These men are despicable. They continually use incidents such as this to remind their followers that they are victims who are hopelessly, cruelly, and perpetually enslaved by the White Man. By doing so, they engender race warfare and an entitlement mentality so their purported victim status can be assuaged. However, the result is actually maintain their followers within a cruel cycle of dependency and class struggle.

So should Imus be punished in some way? Sure, but why hasn't he been punished for all the other nasty jokes he has made over the years? It's because this isn't really about Imus but about a ripe opportunity to further the political agenda and public statures of unscrupulous men and fanatical political movements.

The Criminal Justice Merry Go Round

2007-03-31T15:54:00.000-04:00

Sadly, when dealing with societal problems and crises, our political leaders often deal with the short term, "feel good" view that is politically viable rather than looking at underlying reasons for the problem and long term solutions. Our criminal justice system is a good example. Probation and parole departments supervise criminal offenders who have committed relatively minor crimes meriting a sentence of non-confinement and serious offenders who have been released from prison but still have time to serve on their overall sentence. As with the Public Defender's office, the probation and parole department is usually underfunded and understaffed. The caseload that individual probation officers have is often overwhelming. This results in probation officers having little time to do anything but act as modified prison guards doing the bare minimum to keep convicts "in line" or, if the offender seems especially unsavory, the P.O. may make a special effort to "violate" the offender so he will be returned to prison.

A primary reason people fall into the criminal justice system as offenders is a notable and often severe deficit in their adult life skills. They have simply never acquired many of the basic components of responsible adult living. This does not excuse their criminal conduct, but it does make it imperative that while serving their sentence this deficit is positively and affirmatively addressed to avoid recidivism. Unfortunately, our society and political leaders encourage having offenders punished and locked away (out of sight, out of mind) rather than truly rehabilitated. Thus, most probation officers are about being de facto policemen rather than positive motivators and instructors who help the offender succeed in life or at least avoid criminal conduct. The offender is left on his own to aimlessly trudge through life with deficient life skills with the only incentive to not re-offend that he might have to go back to prison. Now that might seem like a great incentive to the average Joe Citizen, but it is all often only marginally effective negative reinforcement to the parolee. Often, it doesn't matter how severe the threat of additional punishment is because the offender simply has little clue of how he can overcome his deeply ingrained, seemingly inherent deficiencies which lend themselves to criminal conduct. It's akin to telling a five year old child "if you don't learn how to make your own dinner, support yourself, and get yourself to school, you're going to get a spanking." Good luck with that. Parole and probation is thus too often about a rote list of do's, don'ts and threats but not about encouragement, positive motivation or any other truly helpful instruction on how to straighten out.

Offenders should be required to take responsibility for themselves and obey rules to earn privileges and trust but a probation and parole system that is about merely policing and punishing offenders rather than effectively rehabbing them merely fuels a vicious cycle of re-offending. This comes at great cost to society by having to continually spend huge sums of money for more prisons, probation officers, police officers and every other facet of the criminal justice system. Additionally, there is the terrible cost to additional victims of crime. By simply throwing money at the problem so we can build and expand more prisons for ever longer prison sentences imposed on offenders instead of investing in long term, cost effective solutions (which are typically operationally cheaper than prison) such as education, useful job training, appropriate counseling of offenders, and other customized rehabilitative plans, those on probation and parole are basically being set up to fail and returned to prison for longer warehousing which costs over $22,000 annually per inmate .

Thus, the practical result of the penal system does seem to be more about taking offenders off the streets rather than fixing the underlying problem that caused their misconduct. The current hysteria over sex offenders and the corresponding wave of "Jessica's Laws" is assumes that sex offenders can never be cured and we should just take them off the streets and warehouse them for as long as possible. The police and prosecutors pile on as many different criminal charges for a single criminal episode to make the sentencing options as long as possible. To a great extent, this mentality has spread to treatment of offenders generally regardless of their crimes. The cost for this offender warehousing system doesn't seem to bother anybody though. It's a monumental cost of over $100 annually per U.S. resident (excluding capital spending) but the public seems to want the warehousing concept implemented, which means we will see ever greater tax burdens thrust on the population. Ironically, the greater the prison population the fewer people there are to shoulder society's tax burden so this further exacerbates the per capita cost of incarceration and probably results in even more crime victims since we are not dealing with the root of the problem. What a tragically shortsighted view. In the end, everybody loses.

Defending Scumbags

2007-03-23T21:41:00.000-04:00

After telling a friend about my experience representing someone accused of possessing and photographing child pornography, my friend asked me how I could defend "scumbags" such as this who are contemptible and revolting to most people.

I told him his was a very good question which is difficult to answer adequately without composing a constitutional, philosophical and spiritual dissertation, but here are my thoughts stated as succinctly as I can.

1. As an overarching premise to the thought of representing people accused of crimes, I bear in mind that these are souls for whom Christ died. Regardless of what they may have done they are loved by God. They need help. I don't know of any Scriptural principle which allows me to exclude these folks from ministry, which is how I see my profession. Call me crazy, but I have a heart for them (see below).

2. The information the public receives about the accused is almost always one-sided. The police and prosecutor trumpet their case publicly while the accused and his attorney must await trial to tell their side. Conservatives especially grow up thinking that those in law enforcement are "White Knights" who are inherently scrupulous and fair. That is untrue. Law enforcement types have no corner on scruples or good character. Often, the only difference in character between a police office or prosecutor and a defendant is that one wears a badge. Those without a badge need a defender.

3. Most people accused of crimes who come to me readily acknowledge they broke the law and must be held accountable. They don't seek to evade responsibility but do want to be treated fairly. The prosecution cannot be trusted to treat the accused fairly unless held accountable by the accused's defender. Absolute power corrupts absolutely. In these cases I am not so much defending the accused as I am ensuring fairness in the sovereign's treatment of him.

4. Some accused are guilty of something but not of all the charges they've received. Police and prosecutors routinely "overcharge" the accused (e.g., charge him with attempted homicide when assault is more appropriate) to gain leverage in plea bargaining and ensure a conviction on some charge. Thus, I "defend" these folks not on the basis that they are totally innocent but that they are not guilty of all the charges filed against them.

5. Some are falsely accused. These folks obviously need help to defend themselves.

6. Relating to #1 and #2, above, most of the accused are not "scumbags" but people not much different than you and me who use very poor judgment (haven't we all?) and get themselves in trouble. Those who were sexually, physically or emotionally abused as children which practically ensures that they will be criminal offenders. My 50ish client who is addicted to child porn is not a scumbag as most people would imagine. His troubles started when as a three year old boy he witnessed his father shoot his mother with a shotgun point blank because he caught her cheating on him. When the police arrived they found the sobbing three year old had embedded himself in his dead mother's chest cavity which had been blown away by father's shot. Father received a couple years in prison; his sentence was minimal because a judge thought finding his wife cheating on him sort of justified his anger and conduct. After Father was released from prison he had custody of my then 6 year old or so client and his older sister. Father essentially became his children's pimp selling them as sex slaves to adults until they were in their early teens. Not surprisingly, my client struggled with his perspective of sex all his life. He was never charged with any crime until he was in his early 50's when he was accused of sexual fondling of a couple fully clothed children. He was given five years probation and required to attend county sanctioned sex therapy (useless). In his fifth year of probation his probation officer checked his home computer for contraband and found child porn images downloaded from the Internet. He now faces 10-15 years in prison because this is his second sex offense. I believe this is excessively harsh given his background, original offense and the nature of the parole violation. People like this man need defenders.

7. Even if I were defending a true "scumbag" at trial I would be OK with it because I know that even though I may not like my scumbag client or what he has done it is absolutely necessary that we make the prosecution prove its case. It's critically important to look at the big picture. In our country we believe that a grievous wrong is done when someone is wrongly convicted. Hence, our criminal justice system premises itself on the belief that it is "better that ten guilty men go free than one innocent man be convicted." Without providing for a vigorous defense of all accused the government will inevitably overreach and abuse its powers (which it tries to do all the time) thereby jeopardizing all our freedoms. The government must be accountable at all times or it will victimize the innocent sooner or later.

Knowing my clients' background or "the story behind the story" usually gives an entirely different perspective of the case than what is told in the pro-prosecution media. Knowing the sovereign must be held in check motivates me. Knowing that I am ministering to the lowliest as Christ did while he served among us especially motivates me.

Getting Off On Technicalities

2007-03-17T20:56:00.000-04:00

Occasionally you might hear a story about someone who commits a heinous crime getting off on a "technicality." Recently, someone told me about a woman who had been murdered but whose attacker was not punished supposedly because the attacker's defense counsel got her off on a so-called technicality.

An important question here is, what do you consider a technicality? One man's technicality is another man's blatant violation of a Constitutional right or other clearly stated law. The latter should be sacred, in my opinion, so I am slow to call violations of the Constitution, rules of evidence, the rules of criminal procedure or any law "technicalities." They are the bedrock of our criminal justice system. Otherwise, shall we simply ignore all such technicalities when the popular consensus is that someone is guilty? If so, who gets to make the decision of who is plainly guilty and who is not? Things quickly become arbitrary and capricious when we ignore so-called technicalities.

Our nation has always erred on the side of risking that some guilty go free or at least not fully punished to avoid the innocent being convicted. That's an underlying principle of our criminal justice system. I think it's good. Thankfully, our criminal justice system has a vital component, grace, which I think is just as important as justice and, when both are judiciously applied, result in the fairest application of the law.

That said, these types of cases where someone literally gets away with murder on a so-called technicality are rare. I think it is more likely that an innocent person will be convicted or at least convicted of more than he is really guilty of. Most criminal defendants in state courts are represented by public defenders. Although these lawyers are valiant and often heroic in their efforts to defend their clients, they are typically overwhelmed by the volume of cases they have. This results in many defendants receiving only token representation unless it is a very serious case when some additional time is devoted to the alleged offender (at the expense of other cases, of course). Meanwhile, prosecutors heap on as many charges as possible to leverage the negotiations, hoping to quickly resolve the case and "encourage" the defendant to just plead guilty rather than risk trial and possibly receive very stiff sentences for the multiple charges if they lose. As a result, many defendants do plead guilty to charges that may not be truly merited but the alternative is to "roll the dice" at trial and possibly be found guilty of much more serious charges (underlying this is the understanding by both sides that the jury doesn't always get it right).

Although there is the rare case where someone who is guilty "gets off" on a technicality, if there really is such a thing, we should be much more indignant over the people who have been wrongly convicted. Do you know how many death row convicts have been exonerated since 1973? It is 123. The average time on death row was 9.2 years, with the maximum being 33 years. Click here for data. That is injustice. If there are so many people wrongly convicted of murder when the greatest resources typically are used to ensure fairness, isn't it reasonable to assume that there are similar or greater numbers among those charged with lesser crimes? Where is the indignation for these people?

A Justice Department report released in December 2006 revealed that a record 7 million people--one in every 32 adults in the U.S.--was either behind bars, on probation or on parole at the end of 2005. Though the U.S. has just 5 percent of the world's population, it has an incredible 25 percent of the world's prison population--2.2 million people. Since 1970, the U.S. incarceration rate has increased by 700 percent, and that number is still rising. And this happened with a criminal justice system which many people believe has been tilted toward defendants' rights for many years.

We will never have perfect justice as long as humans are fallible. For the time being though, I have little fear that we are underprosecuting or undersentencing those who are criminally charged and convicted. I am also satisfied that ensuring that law enforcement adhere to "technicalities", and holding them strictly accountable for violating the rules rather than blindly trusting them to do so will not only serve the interests of justice but increase respect for law enforcement. There will be fewer betrayals of trust leading to public disdain, such as occurs when law enforcement itself commits criminal acts in the name of law enforcement. Click here for news report.

Trust Law Enforcement? I don't think so.

2007-03-10T15:29:00.000-05:00

The USA Patriot Act has been hailed by the Bush Administration as crucial to ensuring Americans' security in a post 9/11 world. It significantly expanded law enforcement powers at the expense of citizen privacy for the sake of purportedly increased security. President Bush and his appointees in the Justice Department have repeatedly claimed that Americans should trust that law enforcement's use of the act would be scrupulous and target only terrorists. Frankly, civil libertarians like me have rejected these assurances since the Act's passage as unreliable and bound to fail. For me this is premised on my experience finding law enforcement generally having no greater integrity or moral compass than anyone else and, that being the case, bound to manipulate unchecked powers granted them in a way that harms ordinary citizens. Now, we find these fears fully merited. See the news report here.

The US Attorney General Alberto Gonzales admitted the FBI broke the law to secretly pry out personal information about Americans by using the Patriot Act as a pretext. He stated that criminal charges against FBI agents are a possibility (although I doubt Bush will permit such accountability). These damning findings of widespread FBI misconduct were documented in a 126 page report by the Justice Department's own Inspector General.

This is entirely consistent with my experience dealing with law enforcement. Any enforcement tool is likely to be used in a way that was not its original intent to tread on the personal privacy and liberties of ordinary citizens. We cannot trust law enforcement to "police" themselves. Nor are they customarily truthful with people when they conduct their investigations. This means that the tools and procedures we grant them to enforce the law must must be carefully dispensed with safeguards in place to prevent their abuse, which is bound to happen otherwise.

Myths the Police Would Like You to Believe

2007-03-07T21:57:00.000-05:00

1. If the police contact you and say you need to come to the police station to answer some questions, you must go. FALSE! They want you sit in a little interrogation room with a police officer, be very uncomfortable, and be intimidated into making statements they can and will use against you. You are not required to go anywhere unless you are placed under arrest. If they don't arrest you it means thay don't have a case.

2. The police cannot lie to you or they will get in trouble. FALSE! Police lie a lot and can do so with impunity, especially when investigating and questioning people. It is a favorite tool to get people to make statements that can be used against them.

3. If a person confesses to a crime the police will go easier on him. FALSE! The police try to get a confession to make THEIR job easier. They don't have to work as hard to solve a crime. That's why they pressure people into "confessing" and even twist someone's words to make them sound as incriminating as possible. The police rarely control how "easy" you may be treated anyway. That's up to the judge and prosecutor.

4. If you are innocent and have nothing to hide you should not be reluctant to talk to the police, let them search your house or car, or do anything else they ask. FALSE! Always remember the police are looking to make arrests - that's how they get ahead in their careers. ANYTHING you say or do will be scrutinized with an eye to accuse you of a crime. The police presume you are guilty and will use anything you say or anything they see in your vehicle or house against you if they can. Unless you can absolutely guarantee nobody who has been in your house or car has left anything that could be suspicious you should NOT allow the police in your private space.