Law & Justice: March 2005 Archives

One of the toughest things about covering up a murder is disposing of the body. In the past I've dismissed conspiracy theorists who have claimed that Terri Schiavo's husband Michael may have attempted to kill her, but the recent revelation that he wants to cremate Terri's body has made me reevaluate those suspicions. Terri's parents have accused Michael of strangling Terri, but burning the body would obviously make it impossible to investigate.

Some people have emailed me asking if I think President Bush or Governor Bush should be "doing something" to prolong Terri Schiavo's life, but it looks like Jeb is doing everything he can, legally, and it's not clear what anyone thinks the President should do. Send in federal marshals to put the tube back in? I suppose he could do that.

It seems to me though that most people who want to see that happen are less concerned with Terry Schiavo than with seeing one of the Bushes force a constitutional showdown with the obstructionist courts. I agree that our judges are far overpowered and should be more deferential to the executive branch, but in this case I think the courts have pretty much followed the letter of the law, even if I don't like the results. No legal system is perfect, but I'm hard-pressed to think of a different set of rules for dealing with disabled patients. Most of the time, allowing the next-of-kin to make life decisions in the absence of a living will is the right thing to do.

If anyone should be pissed, it's the state and federal legislators who have been ignored and dismissed by every judge involved in this case, from top to bottom. By extension, the public who elects the Florida legislature and the American Congress should be angered by these unelected tyrants spurning the instructions of our representatives and assuming that they know better than our legislators what is and what is not Constitutional. Judges aren't the only people who can make that determination, and they should be more humble and keep in mind that they are not representatives of the people, but appointees. (Although Florida state judges other than those on the Florida Supreme Court are elected. About the Florida Government.)

So what, if anything, would you do if you were President or Governor?

Eugene Volokh has been persuaded by Mark Kleiman that execution by torture cannot be reasonably provided by our legal system, but I never thought he was actually arguing that it could. Here's the bit of Kleiman's argument that Volokh found most convincing:

One reason is the tendency of power to corrupt, and for the conduct of the political game to become less rule-bound as the stakes increase. If the state has the power to torture, than the political process decides who is, and who is not, torturable. Those are high enough stakes to justify a considerable amount of cheating. (Would I help steal votes to prevent someone I cared about from being tortured? Of course I would. To keep him from being sent to prison, even unjustly? Probably not.)

A second reason is that putting torture on the agenda changes the job descriptions of public officials in a way that is likely to change the composition of the class of public officials. Presumably, if an execution requires a death warrant signed by the governor, a torture-execution will require no less. So anyone unwilling to sign such documents will be disqualified from seeking the governorship. You can think that there are arguments for cruel punishments and still be reluctant to be ruled by those most willing to order the infliction of such punishments.

That's a particular concern with respect to the office of juror. Under current American law, jurors who have scruples about capital punishment are excluded from juries in capital cases. Unsurprisingly, those are also the jurors most likely to vote to acquit. So someone accused of murder is more likely to be convicted if the case is a capital one. If the sentence were death by torment rather than simple execution, the exclusion of the scrupulous would leave a jury even more grossly stacked against the accused.

Those are certainly good arguments, but I didn't think Professor Volokh was claiming that his execution-by-torture preference could ever actually be implemented in law. Indeed, he ackowledged that his views are "pointless", "since they can't be implemented in my country without a constitutional amendment that isn't going to happen." And Kleiman's reasons are exactly why such an amendment would be impossible to pass. However, none of that speaks against the general principle of the justness of execution by torture in some set of very limited circumstances, and I'm not exactly sure what Professor Volokh has been persuaded of.

Whoa, I'm impressed. Quick-thinking Senator Mike Enzi has subpoenaed Terri Schiavo according to a Drudge exclusive.

**Exclusive Fri Mar 18 2005 00:50:07 ET** The Chairman of the Health, Education, Labor, and Pension (HELP) Committee, Mike Enzi (R-Wyoming) has requested Terri Schiavo to testify before his congressional committee, the DRUDGE REPORT has learned. In so doing it triggers legal or statutory protections for the witness, among those protections is that nothing can be done to cause harm or death to this individual.

Members of Congress went to the U.S. Attorney in DC to ask for a temporary restraining order to be issued by a judge, which protects Terri Schiavo from having her life support, including her feeding and hydration tubes, removed... Developing...

Gosh that's clever. Here's a FoxNews story about the subpoenas that doesn't mention Enzi.

Eugene Volokh says that it's just and right for Iran to brutally torture a serial killer to death. Of the killer,

Mohammad Bijeh, 24, dubbed "the Tehran desert vampire" by Iran's press, was flogged 100 times before being hanged.

A brother of one of his young victims stabbed him as he was being punished. The mother of another victim was asked to put the noose around his neck.

The execution took place in Pakdasht south of Tehran, near where Bijeh's year-long killing spree took place.

The killer was hoisted about 10 metres into the air by a crane and slowly throttled to death in front of the baying crowd.

Hanging by a crane - a common form of execution in Iran - does not involve a swift death as the condemned prisoner's neck is not broken. ...

The crimes of Mohammed Bijeh and his accomplice Ali Baghi had drawn massive attention in the Iranian media.

They reportedly tricked children to go with them into the desert south of Tehran by saying they were going to hunt animals. They then poisoned or knocked their victims out, sexually abused them and buried them in shallow graves.

Professor Volokh writes:

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

Clayton Cramer disagrees as such:

What I find especially disturbing is the notion, expressed by Professor Volokh, that this torturous revenge constitutes justice. Does it bring back the dead children? Does it go back in time and prevent their suffering? Does it make the living less traumatized by what happened to their children? No.

There's a famous quote by Gandhi, "An eye for an eye will blind the world." Perhaps executing monsters like this makes sense, especially if you live in a society where it is impossible to keep them locked up for life, or where powerful forces (like the ACLU) argue that murderers should not be executed, but people who have committed no crime should be starved to death [Terry Schiavo]. Adding torture to the execution doesn't do anything but lower our society to the level of the savages.

I've never really liked that quote by Gandhi, because I don't think it's true. The Biblical standard for punishment is laid down not for personal revenge, but for justice imposed by the public.

Leviticus 24:17-22

17 " 'If anyone takes the life of a human being, he must be put to death. 18 Anyone who takes the life of someone's animal must make restitution-life for life. 19 If anyone injures his neighbor, whatever he has done must be done to him: 20 fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured. 21 Whoever kills an animal must make restitution, but whoever kills a man must be put to death. 22 You are to have the same law for the alien and the native-born. I am the LORD your God.' "

Despite what Gandhi asserted, most of us don't intentionally attack or violate other people, or even cause property damage for which restitution must be made. Perhaps if these instructions for punishment were taken as license for vigilantism I could see Gandhi's point, but that's obviously not the intent.

As for Professor Volokh's original position, I think it's clear that he's right from a Biblical perspective. God commands that the punishment fit the crime, and it is by his divine authority that human agents are justified (and required) to carry out those punishments against another human being.

Patterico is asking for bloggers to make a pledge of defiance against the FEC.

Yesterday I said that, if the FEC regulates blogs, I will continue to blog the same way I always have. Some have warned me of the dangers inherent in such a position.

This led to me wonder how unusual my position really is. I suspect that my attitude is widely shared by bloggers, including those who have signed the open letter to the FEC.

I think it’s time to put the question to you directly. Who out there will make this pledge:

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

I'm somewhat torn. On one hand, as a Christian I'm generally a fan of obeying the rules, even when they're rules I don't like. As long as a law doesn't prevent me from carrying out God's will -- through evangelism, discipleship, ministry, fellowship, and worship -- then it's hard to spiritually justify disobedience.

On the other hand, freedom is great, and a powerful help in doing God's will. Many Christians over the centuries have given their lives for liberty, their own and others'. Many noble wars have been fought to change evil rulers, and God himself curses those who oppress the weak through government. Regarding the evil in Israel (the northern Kingdon) under King Jeroboam II, God said through the prophet Amos:

Amos 5:12-15

12 For I know how many are your offenses
and how great your sins.
You oppress the righteous and take bribes
and you deprive the poor of justice in the courts.
13 Therefore the prudent man keeps quiet in such times,
for the times are evil.
14 Seek good, not evil,
that you may live.
Then the LORD God Almighty will be with you,
just as you say he is.
15 Hate evil, love good;
maintain justice in the courts.
Perhaps the LORD God Almighty will have mercy
on the remnant of Joseph.

Of course, verse 13 is instructive: the prudent man keeps quiet. The Hebrew word here translated prudent is sakal.

1) to be prudent, be circumspect, wisely understand, prosper a) (Qal) to be prudent, be circumspect b) (Hiphil) 1) to look at or upon, have insight 2) to give attention to, consider, ponder, be prudent 3) to have insight, have comprehension a) insight, comprehension (subst) 4) to cause to consider, give insight, teach a) the teachers, the wise 5) to act circumspectly, act prudently, act wisely 6) to prosper, have success 7) to cause to prosper 2) (Piel) to lay crosswise, cross (hands)

Being prudent is generally wise, and God extols the virtues of wisdom, but here he does not command it. Verse 14 indicates that we are charged with pursuing what is good and hating what is evil, regardless of our desire to avoid attracting the attention of evil-doers; it's obvious that fighting evil is an obligation of all Christians, but doing so in a prudent way seems laudible.

On the third hand, it's not obvious, that potential speech restrictions by the FEC actually qualify as "evil". Sure, speech restrictions lay along the path to evil and oppression, but as Eugene Volokh has often argued, the slippery-slope argument is over-used without justification. Early Christians were thrown to lions, and the apostles never told anyone to fight against Roman oppression. When Christians were oppressed, it was for spreading the Word of God, not over political issues.

I'm entirely in favor of resisting speech restrictions through legal means, but I'm not confident that disobeying justly enacted laws is within my God-given authority, except insofar as such laws prevent me from carrying out God's will or are directly evil. What are your thoughts?

Update:
Roscoe has a good perspective on evil and the law.

So, here is where I come down. In the unlikely event that the FEC promulgates regulations that impact little-ole-me, I intend to try to comply with them if I can without compromising what I am trying to do with this blog. I am sort of with Sir Thomas More (well, the character playing More) in "A Man for All Seasons" that one should obey even those laws with which you disagree, if one can:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Mark Smith, of La Crosse, Wisconsin, has proposed that hunting stray cats should be legalized.

Smith, 48, has proposed that any cat not under its owner's direct control, or not wearing a collar, should be considered fair game for any hunter with a small-game license. He wants to see the state reclassify free-roaming cats as an unprotected species, arguing that the ones out in the wild are no different than other invasive species.

Smith said his proposal was prompted by cats prowling around the bird feeder at his home.

Maybe he wouldn't have a cat problem if there weren't so many disgusting birds all over the place. Pigeons are rats with wings, and crows are even worse. Beyond merely hunting them, I think there should be a bounty for crows and pigeons, and the people who purposefully feed them should be forced to pay it.

Sherry F. Colb has a great break-down of the sperm theft trial I mentioned earlier in which Sharon Irons received sperm from Richard O. Phillips via oral sex which she then used to inseminate herself and conceive a child. Phillips sued for emotional distress and to be free of paternity obligations, but he was nonetheless ordered to pay $800 a month in child support. Ms. Colb writes that there must be some point at which "a man's lack of actual responsibility for the creation of a child must absolve him of financial responsibility as well."

Men, in other words, can seemingly be conscripted into fatherhood against their will and then forced to take care of the child whom they never agreed to have.

Some say, in response, that the man, in effect, agreed to have the child when he had sex with a woman and thus risked such an outcome. On this view, a man who engages in sexual intercourse assumes the risk of becoming a father. If he wants to avoid paternity, he must abstain from sex or undergo sterilization. Because pregnancy as well as its termination have such physically intimate consequences for a woman, the man -- physically separate from these experiences -- loses control over paternity once he consents to having intercourse.

This argument, of course, is in some tension with the notion that a woman does not consent to maternity when she engages in intercourse. Such tension is surely not lost on disgruntled fathers.

But even if one accepts that intercourse equals consent to paternity, what happens when a man does not consent to intercourse? Does he still bear the risk of becoming a father? The case of Phillips and Irons - as described in Phillips's complaint - tests our intuitions about that very question.

The bolding is mine; if society acknowledged that a woman does consent to maternity when she has sex (as I believe to be the case) then the issue of abortion would necessarily be considered in a different light.

Being on the "terrorist watch list" -- officially the Violent Gang and Terrorist Organization File -- already makes it rather difficult to travel by plane, but now some of our leaders are saying that people on the list shouldn't be able to buy a gun.

(CNSNews.com) - Being on a terrorism watch list does not mean you really are a terrorist -- and therefore, your right to buy or own a gun should not be infringed, Second Amendment supporters say.

But FBI Director Robert Mueller, Sen. Frank Lautenberg (D-N.J.) and gun control groups disagree.

In testimony before Congress on Tuesday, Mueller said lawmakers "ought to look at what can be done" to prevent people on the government's terrorism watch list from buying guns.

By my understanding, the FBI has almost complete autonomy over who gets added to the list, which means that such a scheme would effectively allow the FBI to arbitrarily determine who can carry a gun.

His comments followed the release of a government report showing that more than 40 people included on a terrorism watch list were allowed to buy guns last year.

According to the audit by the Government Accountability Office, 35 people on the government's terrorist watch list legally bought guns in the United States between Feb. 3 and June 20, 2004. Twelve more people on the list were allowed to buy guns between July 1 and Oct. 31 of last year.

But none of those people had been charged with, or convicted of, any crime, said the Citizens Committee for the Right to Keep and Bear Arms.

By law, convicted felons, illegal aliens and people declared mentally ill are not allowed to buy guns. Being included on a terrorism watch list may invite more scrutiny, but it does not automatically disqualify someone from legally buying a gun.

Our natural and Constitutional rights cannot be taken away arbitrarily by some federal agency. Does that make it easier for terrorists to get weapons? Yes. Freedom isn't free.

Rape is such a heinous crime that women who falsely report being raped should face serious consequences.

BLOOMINGTON, Ind. -- A woman who told police she was raped and beaten in a restroom at Assembly Hall but later said she made up the story has been charged with false informing, authorities said.

IU student Mary E. Bray, 19, reported the assault to staff members at Bloomington Hospital, where she was taken after IU police cited her for illegal possession of alcohol during an IU-Purdue basketball game on Feb. 22.

Authorities on Tuesday included a charge of misdemeanor false informing, court documents said. A police investigation into the reported rape revealed a "time line which does not offer the opportunity for this crime to have occurred," court documents said.

IU police had said they believe the woman made up the story because she was drunk.

Miss Bray didn't falsely accuse a specific person, so I suppose that charging her with a misdemeanor is sufficient. If she had pointed a finger at someone and purposefully lied then I would support a punishment for her equivalent to that faced by rapists.

For instance, if Michael Jackson's accusers are found to be lying, then they should be punished severely via criminal prosecution. Now, Mr. Jackson may be acquitted because the charges cannot be proven to be true, but that alone wouldn't be sufficient to prove that his accusers were maliciously lying. If, however, the prosecutor does believe the accusers made false accusations (rather than simply unprovable ones), he should bring charges against them and try to prove it in court.

The Spork posts a puzzle sent from BTK to the media.

VICTIM, FOLLOW, PJ, USD 259, WICHITA, MO, OAS, OR, DNA, KIA, SOS, DOB, ER, RR, PR, PX, PEO, GAO, CIO, CO, AWOL, INS, MIT, TIM, SOX, BOA, CIG, VISE , SET, POD, ODD, RON, CRUISE, SEX, SOW, PROWL, SLIT, LIT, RUM, FIR, OAK, NEE, BEE, BEES, SEE, ORCS, ANN, NOG, ROE, ZEN, GAR, RAG, SIM, SPOT, POT, DETAILS, GO FOR IT, FANTASIES, BUILDS, STEAM, TEAM, TELEPHONE CO, LARRY, IAN, ANDERSON, STRONG, SCHOOL, LOO, POET, HIT, NEW, 316, 8M, PET, LOST PET, HELP, FOR SALE, POE, RUSE, REALTORS, INSURANCE, SERVICEMAN, VICE, HANDYMAN, REMODEL, MODEL, DOME, MODE, MOD, LED, REAL, AX (twice), WRONG, ADDRESS, ADD, DAM, FAKE ID, VEND, RAN, SEA, POD, RIB, WIT, HAT, FOP, PLAN, SIX, FIB, PIG, LEO, DAUB, HELM, PIN (twice), NIP, DIN (twice), PAR, RAP, SAT, LEE, CAD, 'NAM, MAN, AMY, EAR, WEND, RAE, MAY, YAM, ADT...

Here's a PDF of the original "Chapter 8" puzzle. The Spork also adds some interpretation from her own expertise. For myself, I can add the following.

"USD 259" == $259 (USD is "US dollars")
"MO" ?= Missouri
"OAS" ?= Oklahoma Archeological Survey
"DOB" == Date of Birth
"PX" == Post exchange, possibly Leeker's grocery store at 61st North and Broadway, which has a post office.
"GAO" ?= Government Accounting Office
"AWOL" == Away Without Leave
"BOA" ?= Bank of America
"CIG" ?= Community involvement group
"ORCS" ?= the monsters? originally from Tolkien
"316" == Wichita area code
"8M" ?= something to do with football state champions
"VEND" ?= vending machines
"DAUB" and "HELM" ?= people by those names died in Wichita in 1978
"VICE" and "VISE" ?= both spellings, but not next to each other

I bet most of this is gibberish, with a few clues tossed in here and there. Interesting, nonetheless.

The Wichita Police Department and Chief Norman Williams are clashing with The Wichita Eagle over speculative -- and possibly inaccurate -- reporting.

The local media in Wichita, Kan., have long been connected to the BTK murders. Now that a BTK suspect has been arrested, local law-enforcement officials are instead decrying the media. And the local paper is fighting back.

In an interview with The Wichita Eagle Monday, Wichita Police Chief Norman Williams said he was misquoted by CNN -- which reported Williams saying that BTK suspect Dennis L. Rader was cooperating with law enforcement -- and lambasted reports containing, he said, speculation and misinformation. At a media briefing that morning, the chief even threatened to sue those spreading it. ...

By Monday, Chief Williams suggested the press was no longer being so helpful. An example he gave of the recent distortions was the suggestion that Rader was being held for more than 10 killings. Not true, Williams said. "At this time, Dennis Rader has been connected to only 10," he told the press. The police department also refused to comment on reports that Rader's daughter [Kerri Rader] played in his arrest.

Not only do the police need to protect their information to aid a successful prosecution, but Chief Williams also has to be mindful of the fact that this case is his big chance in the limelight, and I'm sure he doesn't want to screw it up. Obviously I assume his top priority is punishing the killer, not promoting himself, but his own reputation is on the line and it's only natural that he be concerned with how the reporting of the investigation makes him look.

Meanwhile, the Eagle reports that Rader has made his first court appearance and been officially charged with ten counts of first-degree murder -- all before 1994, which makes Rader ineligible for the death penalty. If prosecutors had a murder they could tie him to from after 1994 I think they would have done it, because there's little point in having yet another trial to put him to death if they could do it now. They must have some other murders as backup, however, because prosecutors generally don't like to put all their eggs in one basket by trying all applicable murders in the same trial. If something goes wrong with the prosecution and Rader is acquitted, they want to have more charges to file against him immediately that won't be prohibited by double jeopardy protection.

In other reporting, it looks like Rader's ignorance of computers helped lead to his capture:

The Rev. Michael Clark, pastor of Christ Lutheran Church, said Tuesday that police searched the church and found that a 3.5-inch diskette containing what is alleged to be communication from BTK had once been used in the computer in the church office. ...

As president of the church council, Rader was responsible for printing the agenda for council meetings. The printer Rader used at home was broken, so he had saved the agenda on a floppy disk and brought it to the church to print it out, Clark said.

He said Rader didn't seem to know a great deal about computers.

"He didn't know how to fire it up until I showed him how," Clark said.

Other than that one time, "he didn't have any reason to use the computer," Clark said.

Retired Wichita police Lt. Charles Liles said sources of his within the department told him that the disk had been a major break for investigators.

He said he was told that the disk had been reformatted, but "the FBI took that disk and found information leading to the church, which led to him (Rader)."

The Daily Spork is your one-stop destination for BTK news and speculation. She's got a long list of potential Dennis Rader victims, some that could lead to the death penalty because they were murdered after 1994, as well as criticism of the Wichita Police Department and their attempt to silence anonymous sources. Maybe if they had listened to more anonymous sources themselves it wouldn't have taken 30 years to catch this monster, hm? My own thought is that they suspect Rader had an accomplice of some sort, and they're still trying to build a case against her (or him). The Spork was also one of the first people to post pictures of Dennis Rader that may be of interest.