Tag: Constitution

It starts:

Civil liberties groups and associations of defense lawyers have lined up on the side of the accused...But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

And continues:

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

I found this podcast of the Frank Beckmann show, which is only accessible in these parts by computer streaming.

I am a huge fan of Frank Beckmann, even though I don't get to listen to him very often.

From the beginning of my Blog, I have been using Fred Thompson as my spokesman.  His "First Principles" are some of the strongest proponents for following "The Doctrine of Original Intent" of our Constitution that I've found.  One of those principles reads as follows:

"Limited Government - Government must be strong enough to protect us, competent enough to provide basic government services, but limited by the "Delineated Powers" in the Constitution."

In the Ventris case, Donnie Ray Ventris and his girlfriend, Rhonda Theel, shot and killed one Ernest Hicks with a .38-caliber revolver, and then drove off in Hicks's truck with approximately $300 of his money and his cell phone. On a tip from the "friends" who drove Ventris and Theel to Hicks's home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris's holding cell, instructing him to "keep [his] ear open and listen" for incriminating statements. According to the informant, in response to his statement that Ventris appeared to have "something more serious weighing in on his mind," Ventris divulged that "[h]e'd shot this man in his head and in his chest" and taken "his keys, his wallet, about $350.00, and ... a vehicle."

At trial, Ventris took the stand and blamed everything on Theel (who says chivalry is dead?). The prosecutor then asked to call the jail cell informant to impeach Ventris's testimony. The trial court let the testimony in and Ventris was convicted. The Kansas Supreme Court reversed the conviction, holding that allowing the informant to testify violated Ventris's Sixth Amendment right to counsel during all custodial interrogation. The US Supreme Court then reversed and reinstated the conviction, finding that the Sixth Amendment would prohibit the prosecution from using the informant's testimony as part of its case in chief, but once Ventris testified, the informant could be used to impeach him. As the prosecution put it at trial, the Sixth Amendment "doesn't give the Defendant ... a license to just get on the stand and lie."

In the Dean case, Christopher Michael Dean, wearing a mask, entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. Fortunately, no one was hurt. At trial, Dean admitted the robbery and was convicted.

Federal law imposes additional, mandatory sentences on defendants for using firearms during crimes -- 5 years for carrying one, 7 years "if the firearm is brandished" and 10 years "if the firearm is discharged." Dean appealed the additional 10-year sentence he got because the gun went off, claiming that it was an accident. The Supreme Court affirmed the added sentence, finding no requirement that the defendant intend for the gun to discharge. In part of his opinion, Chief Justice Roberts quoted from one of history's greatest legal writers, on whom much of our common law relies:

"[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour." 4 W. Blackstone, Commentaries on the Laws of England 26-27 (1769).

Justice Stevens dissented in both cases, finding on behalf of the criminal each time, despite the fact that there was no doubt about guilt in either case. He described the Ventris decision as "another occasion in which the Court has privileged the prosecution at the expense of the Constitution," despite the fact that, as Justice Scalia observed, "we have multiple times rejected the argument that this "speculative possibility" [that police will use informants solely to gain impeachment material for the unlikely event that the defendant will testify] can trump the costs of allowing perjurious statements to go unchallenged. * We have held in every other context that tainted evidence--evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid--is admissible for impeachment."

In Dean, Justice Stevens found that an intent to discharge the weapon must be found, despite the absence of any statutory requirement for intent. This conclusion is so obviously inconsistent with his decision in Ventris that the only way it can be reconciled is to observe that, in both cases, Stevens would have ruled for the guilty defendant instead of the prosecution.

Stevens would exclude the informant's testimony in Ventris, despite the fact that it was being used to impeach perjury by the defendant, and regardless of the intention of law enforcement. On the other hand, in Dean, Stevens would protect a criminal who takes a loaded gun to a bank robbery by requiring that the prosecution prove that, if the gun went off, the criminal intended for the gun to go off.

Thus, in Dean, where the criminal is concerned, intent is everything, while in Ventris, where the focus is on the prosecution's conduct, intent is irrelevant.

We expect this kind of flip-flopping inconsistency from our politicians. Are we now relegated to getting it from our judges also? And, what's worse, we're getting it from our Supreme Court justices, who have the highest responsibility of all -- defining, defending, and applying our magnificent Constitution.

The News: President Obama made the following statement at a press conference in Turkey,

I wasn't going to write about "Washington D.C.'s Vote" but the more I read all the comments over at "Hot Air " the more I realized that everyone is missing the point.  

I lived around D.C. pretty much from birth until I was 31 either in MD or VA.  I worked in on around D.C. for over 18 years.  So I am well aware of the issues in play here.  "We The People" should be demanding an amendment to the Constitution giving D.C. two Senators and two Congressman, Point and Blank!  However, what the Liberal Senate is currently doing is taking what has been a smaller national issue, moving it to the front so they can secure a sure "Left" vote.

With the Left Senate so close to being filibuster proof this will secure it for them.  But what is really going on, that no one is catching, is that they will be making the tie breaking Vice President vote meaningless. The Founding Fathers set up the Senate so it would always have an even number of votes so the "President of The Senate" would always have a role.  With all our Vice Presidents lately giving up their Constitutional responsibilities as President of the Senate, there was only one remaining role the Vice President still had, their tie breaking vote.  With that vote gone why do we need a Vice President.

Although the current Vice President is "Left", the liberal Senate could not guaranty this always to be true.  Now they have secured that the tie vote will always be "Left".

"The Doctrine of Original Intent"

As Always Thanks for being involved, Many Blessings, Shane