Sunday, April 29, 2012

Accelerated Shrugging

This is one of the best essays I've seen making the parallel between Atlas Shrugged and the consequences of Obama's policies.

You'll have to paste it into your browsers.

Saturday, April 28, 2012

Hanoi Jane as the First Lady

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Saturday, April 21, 2012

Zimmerman: Hobson's Choice on the Horizon?

So far, all professional discussion I’ve seen about the Zimmerman case has not yet addressed a crucial tactical decision the defense may have to make.

If the case goes to trial—there’s a good chance it won’t survive a preliminary hearing—and if the prosecution and defense put in the evidence we’ve seen so far, there will be no proof of Murder 2.  But what about a lesser included offense?  In most states, in a Murder 2 case if there is evidence of, say, manslaughter, and the defense requests that judge charge the lesser offense it must be given.

Recall the Jean Harris case in New York, where she fired some five shots in the Scarsdale Diet Doctor’s bedroom, two of which hit him.  Indicted for murder, the defense had to decide whether to ask for charges on lesser included offenses, of which there was evidence in the record.  For whatever reasons, the defense opted not to.  So Harris went to the jury with Murder or nothing—with five shots fired and a dead doctor!  What would one expect the jury to do?

Back to Zimmerman.  If the evidence is as we know it now, and assuming that there is insufficient evidence of Murder 2, does the defense ask for a charge on lesser included offenses, of which there will be evidence in the record?  Say Manslaughter—giving some jurors an opportunity to compromise and find Zimmerman guilty of a homicide even though he is not guilty of Murder 2.  Or, as in the Harris case, does the defense go for Murder 2 or nothing, looking for an acquittal but with Travon Martin dead?

The following case sheds some light on the problem.

36 N.Y.2d 467

Court of Appeals of New York.

The PEOPLE of the State of New York, Appellant,
Robert STANFIELD, Respondent.

May 5, 1975.

Henry Mark Holzer and Erika Holzer, New York City, for respondent.


JASEN, Judge.

At issue on this appeal is whether the crime of criminally negligent homicide is a lesser included offense of the crime of manslaughter in the second degree.

The defendant was indicted for manslaughter, second degree, for the death by shooting of Thomasina Banks, a woman with whom he maintained a common-law relationship. 

There were no other witnesses to the shooting and the People's case was proved almost entirely by the defendant's own oral and written statements, judicially determined to be voluntary or otherwise unobjected to.

The essential facts, as reconstructed from the defendant's statements, are these. The defendant and Thomasina, parents of three girls, at the time maintained separate residences. On January 28, 1969, at about 10:00 P.M., he decided to visit Thomasina.

Before reaching her apartment, he telephoned a friend, Willie Nyland, the boyfriend of Thomasina's sister, and during a lull in the conversation thought be heard Thomasina's voice in the background. He proceeded to her apartment, arriving at about 10:30 or 10:45 P.M., but was told by the children that she was not home. He then walked to a nearby subway station and a short time later met Thomasina there. The two then returned to Thomasina's apartment, each apparently in good spirits.

Thomasina then changed clothes and the two drank some wine. At least two of the children were in the apartment at the time. Together they discussed purchasing a car and Thomasina tried without success to mend her daughter's dress. Thomasina and the defendant were alone in the bedroom, sitting on the bed with the door closed.

The defendant asked whether she had been at Willie's house a short time before. She answered no, explaining that she had been at a friend's. The defendant then said that he had a gun and that he was going to shoot her. He then went to the dresser and took from the drawer a .38 caliber two-shot derringer. The pistol had been purchased about a year and one half before, test fired once at that time and usually was kept at Thomasina's apartment in a loaded condition. The defendant then cocked the hammer and standing very close to Thomasina with the barrel pointed upward at about a 45 degree angle, but in her direction, repeated ‘I'm going to shoot you.’ Thomasina responded, ‘Bob, don't mess with the gun like that’, and then slapped his hand or arm. The weapon discharged, inflicting a mortal wound through the left breast.

The defendant related an unsuccessful attempt to revive her, unsuccessful efforts to telephone for police assistance and a frantic telephone call to his mother in North Carolina, who advised him to contact the police. He then summoned a policeman on foot patrol in front of 120 216 W. 62nd Street.

The statements thereafter made relate that he did not intend to shoot, but only to scare Thomasina; that he cocked the hammer because, being familiar with the weapon, she would not otherwise have been frightened.

Ballistics evidence showed that the weapon discharged about 1 ½ inches from the victim. Expert testimony established that in the fully cocked position, 14 pounds of pressure on the trigger would cause the weapon to discharge, but that even in the uncocked position a sharp enough blow on the hammer could cause it to fire. There was additional testimony that the weapon lacked a trigger guard and that this made it unsafe. A toxological report showed brain alcohol content of 0.075%, indicating that the victim had been drinking.

Upon this evidence and without the benefit of a requested charge on criminally negligent homicide [my emphasis], the defendant was convicted of the crime of manslaughter in the second degree.

On appeal, the Appellate Division reversed the conviction on the law and ordered a new trial ‘in which the lesser included crime will be submitted to the jury.’

Subdivision 1 of section 125.15 of the Penal Law, Consol.Laws, c. 40, in pertinent part, provides that a person is guilty of manslaughter, second degree, when he recklessly causes the death of another person. A person is guilty of criminally negligent homicide (Penal Law, s 125.10), when, with criminal negligence, he causes the death of another person. The Criminal Procedure Law (CPL 1.20, subd. 37, Consol. Laws, c. 11—A) provides that (w) hen it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.

The essential distinction between the crimes of manslaughter, second degree, and criminally negligent homicide is the mental state of the defendant at the time the crime was committed.

In one, the actor perceives the risk, but consciously disregards it. In the other, he negligently fails to perceive the risk. (The result and the underlying conduct, exclusive of the mental element, are the same.

The People contend that the mental elements of the respective crimes are mutually exclusive and that, paraphrasing the definition of a lesser included offense, it is possible to commit the greater without concomitantly committing the lesser offense, and that, hence, the latter is not included in the former.

The argument, conceptually nice and mechanically accurate, is not persuasive. To begin with, the underlying conduct in each, exclusive of the culpable mental state, is the same. And at the outset the People are met with the equally hypertechnical counterargument that the Penal Law provision (s 15.00, subd. 4) which includes within the definition of conduct ‘an act or omission And its accompanying mental state’ (emphasis supplied), is not fully applicable, at least for purposes of what is a lesser included offense under the Criminal Procedure Law definition (CPL 1.20).

But more fundamentally, criminal recklessness and criminal negligence with respect to a particular result—here homicide—may in a particular case, if not hypothetically or definitionally, be but shades apart on the scale of criminal culpability. And the distinction between the two mental states is less clear practically than theoretically. Indeed, the definitional cleavage the People would draw, while theoretically appealing, may be illusory in practical application. Hence it seems manifest that in a practical, if not a literal definitional sense, if one acts with criminal recklessness he is at least criminally negligent. Moreover, negligence may, in a particular case, quickly, even imperceptibly, aggravate on the scale of culpability to recklessness. The principle seems well illustrated here, or at least the jury, if properly instructed, would have been privileged so to conclude.

It is necessary to say whether in this record there was a reasonable view of the evidence that would have supported a finding that the defendant committed the lesser but not the greater offense, thus entitling him to the instruction as requested. (CPL 300.50.)

We think there was. Whether the defendant perceived the risk of harm and consciously disregarded it (manslaughter, second degree) or negligently failed to perceive the risk (criminally negligent homicide) was, we think, on this record for the jury, properly instructed, to say.

When the defendant placed the derringer at Thomasina's breast, he was at least negligent with regard to the risk posed, or so the jury would have been privileged to conclude. Whether when the derringer was cocked and while ‘playing with the gun’, unawareness escalated or should have escalated to awareness of the ultimate risk created—criminal recklessness—was a factual question for the jury, considering all the circumstances including, by way of example, defendant's familiarity with weapons and the safety and other characteristics of this weapon, the interval since he last handled this particular weapon, and the likelihood that it was still loaded.

While it is his perception or nonperception of the risk of harm that governs and not the manner of occurrence of the ultimate harm inflicted, risk creation and risk perception are colored also by how others viewed the situation. Here, notably, the jury could conclude from the evidence that Thomasina viewed the defendant's actions as only ‘messing’ with the derringer, which perception, with other permissible inferences, might support a jury finding of guilty of criminally negligent and not reckless homicide.

Therefore, on the particular facts of this case on which we focus rather than merely superimposing the ‘impossibility’ formula of lesser included offense upon the abstract statutory language, we conclude that criminally negligent homicide is a lesser included offense of manslaughter, second degree, and that the defendant was entitled to the requested instruction.

Our conclusion is buttressed by policy considerations. It seems manifest that there is a benefit to the People—indeed here the Assistant District Attorney at trial argued that criminally negligent homicide is a lesser included offense of manslaughter, second degree—as well as to the defendant in recognizing that the one offense is included in the other. That is especially so where in a particular case, as is illustrated here, the dividing line between the offenses may be factually blurred.

Accordingly, the order of the Appellate Division should be affirmed.

What will the Zimmerman defense do?

Thursday, April 19, 2012

Print Edition, "The American Constitution and Ayn Rand's "Inner Contradiction"

I've been asked when the print edition of The American Constitution and Ayn Rand's "Inner Contradiction" will be available.

The reformatted manuscript and cover are being uploaded to Amazon today, I receive proofs next week, and from the time I approve them until they are available for sale is about another week.

In the meantime, you may be interested in the back cover text:

An eight-word sentence written decades ago by the late Ayn Rand provides the explanation for what has been done to our Constitution, and serves as the leitmotif of The American Constitution and Ayn Rand's "Inner Contradiction."

The blame lies with Congress and the state legislatures, surely. But more so with the Supreme Court of the United States, complicit prime mover in the other branches' injection of indefensible ethical and political doctrines into the bloodstream of America's body politic.

By use of the Court's own opinions, The American Constitution and Ayn Rand's "Inner Contradiction" presents a conclusively damning case against the institutions that have brought the United States to the brink of ruination.

The print edition cover may be seen HERE.

Monday, April 16, 2012

Zimmerman and the Law

The following is a recent Florida appellate court opinion reversing a conviction for second degree murder.  I have edited out portions not relevant to that charge and evidence.  Also other irrelevancies.  (Ellipses (. . . ) indicate that less than one sentence has been omitted.  Asterisks (*) indicate that more than one sentence has been omitted.)  The opinion’s footnotes have been omitted.  The italics are mine.

District Court of Appeal of Florida,
Fourth District.
Eric WILEY, Appellant,
STATE of Florida, Appellee.
No. 4D09–3272.
May 18, 2011.

Appellant, Eric Wiley, appeals his judgment, convicting him of second-degree and third-degree murder, and sentencing him to life in prison. We vacate Wiley's conviction for second-degree murder. . . .

Wiley was charged by information with: Count I (second-degree murder of Dwight Starks. . . .

On January 11, 2008, Wiley learned that his sister Rosica (“CC”) Mosely and Aaron Stoudemire were involved in a domestic dispute. Karen Darvelle, a member of Wiley's church, testified that on the day in question she was at church, and that Wiley was at the church with a man named Peter Clark. She was talking to Wiley when he received a phone call. She then heard Wiley say, he “don't like no trouble.” Wiley and Clark then left in Wiley's SUV. Upon arriving at CC's house, Wiley got out of the SUV and confronted Stoudemire with a gun in his hand. Subsequently, the gun discharged resulting in the death of Dwight Starks. Three eyewitnesses to the shooting testified: Wiley, Aaron Stoudemire (the first cousin of Starks), and Brandon Christie (Stoudemire's friend).

Stoudemire testified to the following. He and CC had an argument about a cell phone and it became physical. The argument then continued outside, and about five minutes later, he saw Wiley running at him with a gun in his right hand. Wiley told him, “lay down, I'm going to kill you.”

Wiley then hit him in the head with the gun and the gun went off. Stoudemire testified that when Wiley struck him in the head with the gun, Wiley's finger was on the trigger. Christie testified that when he saw Wiley hit Stoudemire on the side of the head with the gun, the gun went off. Christie further testified that he did not see anyone struggle over the gun.

On the same day, Detective Gerwan spoke with Wiley in an interview room at the Stuart Police Department. At trial, the recording from the interview was admitted into evidence. During the interview, Wiley stated that Stoudemire was punching CC when he arrived, that he saw blood on CC's shirt, and that CC's mouth was bleeding. However, Wiley did state that CC was going inside when he pulled up to the house. Wiley also admitted that he didn't see a gun in Stoudemire's hand. Regarding the shooting, Wiley stated that while he and Stoudemire were fighting, the gun fell out, and when he retrieved the gun, it discharged while Stoudemire was trying to take the gun from him. When he heard Starks was dead, Wiley said he felt bad and turned himself in.

Other testimony was also presented at trial. CC testified that she was in the house watching TV for five to ten minutes when she heard about the shooting; she did not see what happened outside. She did testify, however, that Wiley and Stoudemire were friendly and never saw them argue. Michael James Duhart testified that he was doing lawn work on his mother's property with his son, when he noticed a man emerge from a tan SUV with a black semi-automatic in his hand and heard the man say: “What the F is the problem here?” As he saw the man raise the gun up, he made a rapid exit. He then heard three rapid gun shots. Duhart's son testified that he saw a man take a gun from behind his back and raise it up. A couple of minutes, after he lost sight of the man, he heard gun shots.

Mark Chapman, Firearm Examiner, Indian River Crime Laboratory, testified that the firearm has three safeties, and in order for this weapon to accidently fire, all three would have to malfunction. Chapman further testified that assuming that all the safeties were working properly, one would have to pull the trigger for the firearm to discharge. Chapman found no reason to believe that the safeties were not working properly and testified that the gun would not discharge from being dropped or from blunt trauma.

Wiley moved for a judgment of acquittal as to Count I . . .  arguing that the State failed to negate that the death of Starks was an accident. The trial court denied the motion. Wiley was then convicted . . . and sentenced to life in prison on Count I. * * *

On appeal, Wiley argues the trial court erred in denying his motion for judgment of acquittal because the State failed to establish that the killing was not accidental or that Wiley acted with a depraved mind.

We agree with Wiley that his conviction for second-degree murder should be reversed.

* * * Generally, an appellate court will not reverse a conviction that is supported by competent substantial evidence.

A motion for judgment of acquittal should be granted in a circumstantial evidence case if  the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant's theory of events.

Once the State meets this threshold burden, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

However, “[t]he United States Constitution requires that criminal convictions must rest upon a determination that the defendant is guilty beyond a reasonable doubt of every element of the crime with which he has been charge.”

“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree. . . .”

In the context of second-degree murder, an act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life.

However, “extremely reckless behavior itself is insufficient from which to infer any malice. Moreover ... an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent.”

Further, “[a]lthough exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim,” and “[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.

The State relies on [the case of] Gibbs v. State, 904 So.2d 432, 435 (Fla. 4th DCA 2005). In Gibbs, this court held that pointing a loaded gun at the head of the victim and then firing is an act imminently dangerous to another and evincing a depraved mind regardless of human life and sufficient evidence to prove second-degree murder. However, this case is factually distinguishable from Gibbs. Here, the evidence failed to prove that Wiley acted with a depraved mind and with an indifference to human life. . . . 

First, CC testified that she considered Wiley and Stoudemire to be friendly with one another; there was no other evidence to establish the hatred and spite requirements of a depraved mind.
Second, although Gibbs holds that pointing a gun at an individual and then firing evinces a depraved mind, according to the three eyewitnesses to the shooting, this is not what happened in this case. Stoudemire and Christie both testified that Wiley hit Stoudemire over the head with the gun and the gun discharged. Wiley claimed that there was a scuffle and that the gun discharged in Wiley's attempt to secure the gun. In either situation, the factual scenario does not establish that Wiley acted with a depraved mind or with an indifference to human life, two requirements necessary to sustain a conviction for second-degree murder.

Although a person of ordinary judgment would know that hitting another over the head with a loaded gun is reasonably certain to do serious bodily injury to another, it is not an action evincing a depraved mind or of such a nature that the act itself indicates an indifference to human life. Thus, we hold that Wiley's conduct was less a result of malice and more of extremely reckless behavior, which is insufficient from which to infer any malice.

* * *

Not Funny. Not Funny At All!

Apparently, the other night Jay Leno cracked the following "joke":  "Yesterday, North Korea launched a big long-range missile. It was supposed to scare everybody. It exploded less than a minute after launching. In fact, leader Kim Jong Un was so mad, he went home, kicked his dog, and then ate it."

Nothing, absolutely nothing, is funny about North Korea--the most brutal, primitive, human-degrading, despotic regime on earth.  In its fiendish gulag it turns its people into robots, leaching from them virtually all elements of humanity.  Those who do not die from famine, that is.

For a bone-chilling account of the North Korean gulag, see the recently published book Escape from Camp 14.