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Recent Blog Posts
Why TBI is Important
An understanding of traumatic brain injury is, as I've said before, important to criminal-defense lawyers. It is important for the sake of the accused, who are more likely to get a raw deal if their lawyers don't understand how it is that a bang on the head could lead to "criminal" conduct. It is also important to creating a better understanding of the broader ramifications of our criminal "justice" system.
Criminal defense lawyers know that everything we are and do results from factors outside our control - for most of us, our genes and our environment (nature and nurture). That I am a criminal-defense lawyer instead of an accused is an accident of fate - of dumb luck.
Lots of people - especially the fortunate - have difficulty accepting that everything they are is, in the final analysis, the result of factors beyond their control - nature and nurture. "I made good choices," they say. Each choice, however, was the result of their genes and environment. "But my environment was the result of the good choices I made," they say." Yes, and each of those choices resulted from genes and environment at that point, and so on and so forth, until at some point the ability to make the right choice was not itself chosen.
The Abandonment of American Ideals
(I promised, on reading SHG's 231 Years and Still Trying, to write about the nature of freedom, the power of fear, and the abandonment of American Ideals. This is the first post in the series, though it covers the third topic.)
When I was growing up, my dad worked for the CIA. I was curious about the Cold War, and learned at a young age what it was that distinguished the "evil empire" of the Soviet Union from America. It wasn't the doomed economic system or the invasion of Afghanistan. It was, rather, the Soviet government's intrusion into the lives of its citizens.
This intrusion made the Soviet people less free than us; it was epitomized by the government's use of citizens as informants against each other. I remember it clearly: in the Soviet Union, you would never know who might be an informant. Neighbors would inform on neighbors, friends on friends, and children on parents.
Right v. Legal — an Example
Blonde Justice had a post yesterday, On Patriotism, in which she wrote about a group of protesters who protest at soldiers' funerals. Their cause is irrelevant, and - following the Blonde's example - I won't dignify them by naming the group. But their story is an excellent illustration of the difference between "legal" and "right."
These protesters' acts are legal, but wrong. They have a First Amendment right to protest, and to be as disrespectful and rude as their pathetic upbringings allow. The government has no business telling people what they can say where or when. If the government can punish them for their speech, it's one step closer to punishing me for mine. The irony is that soldiers like those being buried have died so the protesters can have this right.
The Blonde mentions an anti-protest group, the Patriot Guard Riders, who attend the funeral services as guests of the family and "shield the mourning family and their friends from interruptions created by any protester or group of protesters" (from their website).
If Illegal ? Wrong, What Does “Wrong” Mean?
Adam wrote, in response to this post:
I'm willing to accept that the protesters actions (or any action for that matter) are wrong, but not on the basis of such a bald statement as the "protesters' acts are legal, but wrong." Wrong because you say so? Wrong because a vast majority of society disapproves of their actions? Wrong because rude is the same thing as wrong? Admittedly, you were just providing an example, as indicated by your title. But without defining "right" or "wrong", there's not much point in discussing the difference between right and legal. I'm hoping you were going for something more than "I know it when I see it."
Right and wrong are matters of personal moral judgment. "Wrong" is what I would try to teach my children not to do. "Right" is what I would try to teach them to do.
If I said "because rude is wrong," I would be expressing my own personal moral judgment no less than if I said "I know it when I see it". Some people who read my blog might think that the protesters are right, and try to teach their children to emulate them.
Polygraph Examinations
Sometimes a polygraph ("lie detector") examination report is helpful in the defense of a criminal case. Such reports are not generally admissible at trial, so that the jury will probably never see the report. But it might be a useful tool in convincing either the prosecutor or the grand jury not to proceed with the case.
Sometimes I see criminal-defense lawyers offering to let prosecutors' polygraph examiners (usually police officers) question their clients. This is generally sloppy lawyering, if not downright ineffective assistance of counsel. I even took over one case in which the previous lawyer had not only let the polygraph examiner from the Sheriff's Office examine the client, but then also let the investigating officer and the polygraph examiner interrogate the client in the lawyer's absence!
Government polygraph examiners use the polygraph as a tool to get confessions. Being told that the machine says you're lying provides tremendous motivation to change - or at least explain - your story. Sometimes a police polygraph examiner will tell the accused that he has failed the polygraph regardless of the real result.
Read it Today.
Scott Greenfield gives us a beautiful Independence Day post, 231 Years and Still Trying. Read it today.
Scott evokes three interrelated themes that I'll explore in coming days:
The nature of freedom;The power of fear; andThe abandonment of American ideals.
Technorati Tags: America, blawgs, freedom, philosophy, fear
Happy Independence Day!
If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen.
- Samuel Adams
They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable–and let it come! I repeat it, sir, let it come.
How TBI Happens
I have written about traumatic brain injury (TBI) in the criminal justice system here and here and here.
Here is a post about traumatic brain injury (TBI) from the Neurophilosophy blog, describing how TBI happens (especially in a war zone) and the effect that it has on the brain. An excerpt:
Neurologists affiliated with the U. S. military now estimate that up to 30% of troops who have been on active duty for 4 months or longer (in both Iraq and Afghanistan) are at risk of some form of disabling neurological damage. This is partly based on the knowledge that closed head injuries far outnumber the penetrative head injuries on which official statistics are based. So, while official figures put the number of U. S. troop casualties in Iraq and Afghanistan at 22,600 (as of November 2006), there may be up to 150,000 already suffering from TBI.
Allegations Never Presented to the Jury
One of the president's justifications for the commutation of Scooter Libby's sentence is that Libby "was handed a harsh sentence based in part on allegations never presented to the jury."
What the president probably doesn't know is that this is how federal sentencing works. The jury determines whether the government has proven beyond a reasonable doubt that the defendant committed the crime with which he is charged (including all factors that increase the statutory maximum sentence).
The judge then can consider whether aggravating factors (factors that increase the defendant's sentence within the statutory range) are proven by a preponderance of the evidence, and sentence the defendant to anything up to the statutory maximum based on those factors.
Technorati Tags: criminal defense, federal, sentencing
Statutory Minimum and Maximum Sentences
The statutory minimum sentence for a crime is the smallest sentence that the legislature allows a judge to give a person convicted of that crime. For example, in Texas the statutory minimum for possession of more than 400 grams of cocaine with intent to distribute is 15 years in prison.
The statutory maximum, likewise, is the largest sentence that the legislature allows a judge to give a person convicted of that crime. For example, in Texas the statutory maximum for a first DWI is 180 days in jail and a $2,000 fine.
In federal court, some drug offenses have statutory minimums that aren't true minimums. For example, the statutory minimum for possession of more than 500 grams of cocaine with intent to deliver is 5 years in prison. But if a person convicted of that crime qualifies for the safety valve (see here), or if the person receives a downward departure under section 5K1 of the U.S. Sentencing Guidelines, the statutory minimum does not apply.
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