Vacation or jail?

After the events of the last few days it's time to end the double-standard in our criminal (in)justice system that we don't talk enough about.

In Dallas last night, five police officers were killed by sniper fire and another six were wounded and taken to the hospital. There was a manhunt. Three suspects were taken into custody and a fourth was found dead - apparently by a self-inflicted gun wound. These men will be placed in the Dallas County Jail. They will be charged with capital murder. Prosecutors will ask that the judge deny them bond - and the judge will acquiesce. They will sit in jail until their cases are disposed of.

In Baton Rouge, Louisiana and just outside St. Paul, Minnesota, police officers murdered black men. In Baton Rouge officers tased and tackled Alton Sterling before shooting him multiple times in the chest and back. In Falcon Heights, Minnesota, Philando Castile was pulled over for having a cracked tail light. After Mr. Castile told the officer he was licensed to carry a gun and was carrying a gun, the officer opened fire and murdered Mr. Castile in front of his girlfriend and his 4-year-old daughter.

Are the police officers in jail? Are they facing charges?

No.

They are all on paid administrative leave.

There is no justice. If you kill a police officer the entire weight of the criminal (in)justice system will come down on you; but, if you are a police officer and you kill a black man, you go on vacation.

And you wonder why this shit continues.

It's okay because I said it's okay

First forget about all the niceties we've come to appreciate. I'm talking about the Due Process Clause, the right to trial by jury and the Sixth Commandment ("Thou shalt not kill."). Because under President Barack Obama, they aren't worth the paper (or stone tablet) they're printed on. At least not when it comes to killing US citizens abroad.

NBC News got their hands on the white paper issued by the Department of Justice that serves to rationalize the "targeted" killing of US citizens abroad in our ongoing War on Everything Terrorism.

According to the white paper (apologies for NBC feeling the need to plaster its watermark all over the paper rendering parts of it illegible), there are three factors that must be considered when determining whether it's okay for our government to kill one of its citizens abroad. The killing will be considered legal if (1) a government official decides that the targeted individual poses "an imminent threat of violent attack" against the US; (2) a government official decides that it isn't feasible to capture the targeted individual; and (3) the killing follows generally accepted wartime practices.

In other words, the US government can order the killing of a US citizen abroad it the government damn well feels like it. What else could it mean? Government officials get to decide if the target is an imminent threat and if it would be too much work to try to capture him alive.

Anyone else see the problem there?

According to the paper there's no due process implications involved because the nine in robes have proclaimed that ones due process rights are subject to a balancing test. And, as anyone who has ever reviewed balancing tests knows, they are nothing more than a justification for the government to infringe upon the rights of an individual.

One either has due process rights or one doesn't. Ones due process rights either are enforced or they aren't. Either the government is sanctioned for violating them or it isn't. A balancing tests makes black letter law all murky, mushy and grey.

And, lest someone bring up the ban on government-sponsored political assassinations, just forget about it right now. You see, the author(s) of the paper have declared that the targeted killing of a US citizen allegedly working for the enemy isn't the same as an assassination. There's that whole war thing going on.

But, not exactly.

Those pesky little al-Qaeda boys aren't exactly a nation. There has never been a formal declaration of war against al-Qaeda - mainly because there's no nation to declare war against. So, if there is no declared war against al-Qaeda, then the targeted killing of a US citizen working with, or for, al-Qaeda isn't an act of war. It is, instead, the killing of a person for political purposes. Oops. That sounds a lot like an assassination to me.

I suppose one could argue that killing a US citizen who has taken up arms on the side of the Iraqis would be different, as would the same scenario taking place in Afghanistan. But that's not where the US government has targeted its own citizens for killing. Those strikes took place in Yemen - and the last time I checked, Congress never declared war on Yemen.

Of course that argument will never do. So, the paper argues that our government's fight with al-Qaeda is analogous to war. It's not our fault, after all, that they aren't a nation-state, is it? Thus the Obama Administration argues that it is justified in killing US citizens anywhere they may be abroad - even if there is no armed conflict going on in that nation.

Our government gets away with this because we allow it to happen. We have stood by and watched as state and federal governments have whittled away at our once sacrosanct Constitutional rights. They weren't taking away our rights, we told ourselves - they were just taking away the rights of those criminals. Now President Obama has decided that he has the right to suspend the Constitution when it comes to killing US citizens abroad. But we're talking about terrorists, you say.

Maybe, but the rights that protect him are the same rights that protect the rest of us. The Constitution divided the powers of government among three branches. It's not the job of the executive to determine whether a US citizen is guilty of treason - that's the role of the courts. In usurping the powers of the judicial branch to suit his political aims, President Obama has violated his oath of office.

Will anyone tell the emperor he has no clothes?

Punting time

As far as crimes go, setting an eight-year old boy afire falls toward the end of the spectrum of the worst of the worst. But what do you do when the alleged culprit is only 13? What do you do when the victim dies 14 years later from complications due to being set on fire?

You can't charge the culprit as a juvenile because the juvenile courts no longer have jurisdiction over him. But can you charge him as an adult because of his age when the victim died?

At the time of the incident state law allowed for juveniles as young as 14 to be certified to be tried as adults. Now the Supremes have said it's okay to try a ten-year old as an adult.

Yes, now that Donald Collins is an adult he understands the consequences of setting a person on fire. He's old enough to appreciate the nature of the crime. But we can't transfer that maturity to the time he committed the crime.

Our juvenile courts were set up because someone realized that children aren't as mature as adults and that the punishments meted out to adults weren't appropriate for a child. Yes, it sometimes meant that someone might walk away with a much lighter sentence for the same criminal act as an adult. There is no question that a person is just as dead whether his killer is a juvenile or an adult. There is no question that the family of the victim suffers the same loss regardless of the age of the killer. And no punishment can ever heal the loss.

Up in Montgomery County the County Attorney asked Attorney General Greg Abbott whether or not prosecutors could charge Donald Collins as an adult for the murder of Robbie Middleton. The county attorney, David Walker, was concerned that Mr. Collins would claim that trying him as an adult for the murder would violate the Constitution's ban on ex post facto laws.

Much to Mr. Walker's dismay, however, the Attorney General decided that "[a] county or district attorney's determination regarding the initiation of further proceedings falls within in the scope of prosecutorial discretion." In other words, Mr. Abbott punted.

Abbott Opinion No. 967

Of course that's just what Montgomery County officials did, too. They were hoping that Mr. Abbott would bail them out of having to make the call. If the AG said they couldn't do it, well, they had their political cover. They could call a press conference and announce that, but for the Attorney General, they would prosecute Mr. Collins as an adult. Or, if the AG told them it was okay, they could look like they were tough on crime by formally filing charges.

But now Mr. Walker and the Montgomery County District Attorney, Bret Ligon, are going to have to make the decision themselves.

As badly as Mr. Walker and Mr. Ligon want to do something, there is nothing they can do in this matter. It doesn't matter that Mr. Collins is an adult now. It doesn't matter that Mr. Collins has spent time in the penitentiary for his actions as an adult. The fact remains that he was still a child when he committed the crime and a child's brain doesn't work like the brain of an adult.

Sometimes there's nothing you can do. Unfortunately, it's situations like this that lead to bad laws and ill-advised opinions.

Jumping the gun

After spending days telling everyone who would listen that he thought James Holmes should get the death penalty for the massacre in Aurora, Colorado, lawprof Douglas Berman quoted an article stating that the death penalty is far from a certainty in the Holmes case.

Aside from the fact that most of Mr. Berman's posts are nothing more than the aggregation of articles from various sources regarding sentencing, the takeaway from the article is that there is an entire process that must be undertaken between arrest and sentencing to determine one's fate.

In his haste to be quoted, Mr. Berman seems to have forgotten that before we sentence someone in this country it is usually customary to hold a trial (or enter a plea) before anyone gets a chance to sate their bloodlust (see here and here).

For every shocking crime story that hits the news channel or the internet there seems to be a need for someone to stand up and pronounce sentence before we've even determined whether the alleged baddie is, in fact, the bad guy. It is a race to the microphone (or the keyboard) to proclaim to the world that the suspect de jour should get the needle or a thin mattress and metal bunk.

There's no need to analyze the evidence. No need to determine if the suspect had the proper mens rea for the alleged offense. No need to look at any mitigating factors. Nope. Time is of the essence. We must pronounce sentence now before the next big story knocks this one to the back page.

We are so attuned to the one-hour crime procedurals in which we go from crime to arrest (plus commercials) in just 60 minutes. But that's not how it works in real life. There are arraignments, pointless non-issue settings, motions hearings and pretrial conferences before we even get to trial.

People line up in front of the television cameras and claim they want "justice" now. Justice for what? Justice for whom? Do they really want Mr. Holmes and his attorneys to take advantage of the due process rights guaranteed him by the Bill of Rights? Are they prepared to accept a court's ruling in the event that Mr. Holmes' didn't possess the proper level of mental culpability?

Probably not. They want their friends, relatives and loved ones back. I don't blame them. But nothing that happens from this point forward will ever do what they want. Twelve people are dead and they will remain that way regardless of how this case finally works itself out.

Guilty, as charged

Our Constitution provides that anyone accused of a crime will be afforded due process of law (now that's a moving target). That means the accused will be informed of the charges against him. The accused will have the right to counsel. The accused will have the right to confront the evidence and the witnesses against him. The accused will have the right to put on evidence on his behalf. The accused will have the right to remain silent. The accused will have the right to have his fate determined by a jury of his peers.

As the presidential campaign heats up, President Obama is doing his best to show that he is tough on terrorism. He is doing his best to thwart Republican allegations that he is weak on foreign policy. In recent weeks the White House has revealed the method by which it is determined who in the Middle East will die by remote control. First we find out that John Brennan is making decisions on who lives and who dies. Now we find out that the President of the United States is playing judge, jury and executioner.

According to an article in the New York Times:

It was not a theoretical question: Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

There it is. President Obama is taking responsibility for placing names on the death list. Mr. Obama is a lawyer and certainly he is aware of the law of parties. According to the law on parties, every person who participates in a conspiracy to commit murder, or every person who participates in a murder, regardless of how small the contribution, may be held accountable for the murder.

The Lone Star State doesn't care if you pulled the trigger or just drove the car. They'll kill you just the same. In fact, the driver often gets the worse end of the deal when the actual killer cops a plea and rats out everyone else involved.

The United States has used drones to murder people in Afghanistan, Pakistan and Yemen during the Obama presidency. Those murders were committed without affording due process to those accused of being terrorists. Those murders were committed without evidence being presented in a court of law. Those murders were committed without the unanimous verdict of twelve citizens.

The government and the media like to use the term "extra-judicial killings" instead of calling the murders what they are. But, by accepting responsibility for deciding who needs killing, President Obama is accepting responsibility for the murders of innocent people - including three Americans.

They describe a paradoxical leader who shunned the legislative deal-making required to close the detention facility at Guantánamo Bay in Cuba, but approves lethal action without hand-wringing. While he was adamant about narrowing the fight and improving relations with the Muslim world, he has followed the metastasizing enemy into new and dangerous lands. When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr.

Obama told colleagues was “an easy one.”

President Obama has admitted culpability for the murders. He has violated the Constitution in at least three instances. He is guilty of depriving three American citizens of their due process rights. That, my friends, is far more worse than a "high crime" or misdemeanor.

I wouldn't shed a tear if one day Barack Obama finds himself in the dock at the International Criminal Court at The Hague charged with crimes against humanity for his actions in his War on the Constitution Terrorism. But I won't hold my breath. After all, the only folks who find themselves on the wrong side of the "v" are those who lost, are weak or out of power. Crimes against humanity are those things that They do; we are just defending freedom (read: tyranny).

Barack Obama should be charged with murder. His actions violated the sovereignty of Pakistan and Yemen. His actions have led to the deaths of women and children. He shows no remorse for his actions. But who will avenge those deaths? Who will take up the torch for the Rule of Law?

The man with his finger on the button

Well so much for all that checks and balances nonsense. Not to mention all that talk of separation of powers. The Obama White House has decided to dispense with any semblance to due process (even lip service) when it comes to the extra-judicial killing of alleged terrorists.

And, while we're at it, who came up with the term "extra-judicial killing?" Why don't we just call it what it is - murder.

John Brennan is the man with his finger on the fire button of the drones. He is the man who decides who goes on the hit list and who is targeted to be murdered. Without having to go through the layers of bureaucracy at the Pentagon, the CIA and the Joint Chiefs of Staff, the killing machine can be operated much more efficiently - and with even fewer checks on its power.

In war the commanders in the field decide where to fire and with what force. If the leader of a supposed terrorist cell is in the way, then so be it. Not that killing people is ever going to engender the warm and fuzzy feelings that proponents of the counter-insurgency movement are looking for, but, killing is, after all, part of war.

What the Obama Administration is doing is not part and parcel of war. War can only be declared by Congress against another country or army. The drone attacks are being carried out against those that los federales have decided - absent a finding of guilt - are either terrorists or people providing material support for terrorists.

When did we cede the authority to decide who lives and who dies to an unelected bureaucrat in Washington? Where in the Constitution does it give an unelected official the authority to sentence a man to death without his ever being indicted?

President Obama wants you to think that he's tough on terrorism and will continue to fight the War on the Constitution Terrorism with passion so that you'll vote to return him to office this fall. But what the president is doing doesn't mean that he's going to be tough on the bad guys - it means that he will disregard the Constitution whenever it suits his purposes. And, in that regard, he's no different than the man who preceded him in the White House.

On January 20, 2009, President Obama took an oath to defend the Constitution and the laws of the United States; what he is doing with regard to the murder-by-drone program is a direct attack on that document.

More questions than answers

One of the trademarks of a dictatorship is the Law of Rule. When the forces of democracy finally topple the old regime (which they always do), the clarion call is for the Rule of Law. In order for civil society to evolve, the arbitrariness and capriciousness of the Law of Rule must be done away with.

But in nearly every one of those countries where the old regime has been replaced, the old dictator has either taken refuge in a friendly country or met a gruesome end. This past week in Libya was no exception. Col. Muammar Gaddafi was killed after attempting to escape from his hometown of Sirte.

The former dictator was found hiding in a culvert after his convoy came under fire from NATO forces.

Exactly how Col. Gaddafi met his end is not certain. What is certain is that it was an extra-judicial killing - in other words, Col. Gaddafi was murdered.

Sure, not too many folks are going to be too upset that he's dead. But, does killing a defenseless man who has just been captured make life in the new Libya any better than life in the old Libya? What does it say about the prospects of the Rule of Law?

A larger question is whether NATO forces should have been involved in what amounted to a civil war in Libya. Was there any justification for outside forces to align themselves directly with one side in an internal conflict in another part of the world? Let's not kid ourselves, by declaring no-fly zones in Libya, NATO was providing support for anti-Gaddafi forces in the country. What price will be paid by the new government? What promises were made? What was the cost of NATO's air power?

The task in Libya is now to establish a new government and constitution and to implement the Rule of Law so that all of the trappings of a democratic society can evolve. Unfortunately, the first chance the new rulers had to implement the Rule of Law was an abject failure.

See also:

"Another one down," Gamso for the Defense (Oct. 21, 2011)
"On the killing of Moammar Gaddafi," Koehler Law Blog (Oct. 21, 2011)
"Mystery surrounds Gaddafi's end," BBC News (Oct. 21, 2011)

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Update: You are about to witness a murder

On Tuesday night the State of Texas murdered Steven Michael Woods. Mr. Woods was convicted of the 2001 murders of Ronald Whitehead and Bethena Brosz. But Mr. Woods wasn't the man who killed Mr. Whitehead and Ms. Brosz. Marcus Rhodes was the man who pulled the trigger.

Despite that fact, Mr. Woods was convicted and sentenced to die while Mr. Rhodes plead guilty and received a life sentence. Under Texas' law of parties, Mr. Woods was considered just as liable for the murders as Mr. Rhodes.

While conceptually the law of parties makes sense, when applied to a murder case it rarely results in justice. There is something fundamentally unjust that Mr. Woods is dead while the man who actually pulled the trigger is sitting in a prison cell - alive.

"You're not about to witness an execution. You are about to witness a murder," -- Steven Michael Woods

If we are going to insist on killing inmates, we should at least draw the line at killing inmates who actually took another life. While Mr. Woods is hardly innocent, he certainly didn't deserve to be strapped down to a gurney and injected with a lethal combination of drugs.

What could be more cruel than the state-sanctioned murder of a man who did not take the life of another? I am deeply troubled by what happened last night in Huntsville. I'm angry. Gov. Rick Perry had the opportunity to do the right thing and commute Mr. Woods' sentence to life without parole - but the fair-haired one is more concerned with conning voters around the country and fueling a campaign with the blood of others.

I can't decide if Rick Perry isn't troubled with the number of people he has allowed to be killed because he is too simple-minded to understand it or because he's a sociopath.

The ultimate sanction by the state is the taking of a life. That act by itself is the greatest intrusion the government can make in the lives of its citizens. If the Bill of Rights is to mean anything, what happened in Texas on Tuesday night must not be allowed to happen again anywhere else.

Click here to download Execution Watch.

On statistics and the death penalty

Doug Berman over at Sentencing Law and Policy presents us a new statistic to measure the efficiency of state death machines - "Executions per Death Sentence" or EPDS as the sabermetricians would say.

The Death Penalty Information Center calculated the number of death sentences handed down by state and the number of inmates each state murdered since the death penalty was reinstituted in 1976. Contrary to what you might think, Texas and Ohio do not head the list.

The old commonwealth, Virginia, heads up the list with an EPDS of .725, meaning that for every 100 death sentences handed down, 72.5 executions are carried out. Texas does pop up at number two on the list with an EPDS of .498, however. The national rate, by the way, is .150.

At the bottom of the list of states that have murdered at least one inmate since 1976 are Pennsylvania (.008), California (.015) and Idaho (.025).

If we look at the murder rates by state in 2009 we find that Virginia had a murder rate of 4.4 homicides per 100,000 people while Texas had a murder rate of 5.4 homicides per 100,000 people. Pennsylvania's murder rate was 5.2 homicides per 100,000, California's was 5.3 and Idaho had a rate of 1.4.

Since 1976, New York, New Jersey, New Hampshire and Kansas are alone in not murdering inmates. New York's murder rate was 4.0. New Jersey's was 3.7. Kansas rate was 4.2 and New Hampshire brought up the rear with a murder rate of .08.

So, based on the data at hand, there would appear to be little or no correlation between the number of executions carried out and the homicide rate in any given state. But, of course, having a reputation as a killer works wonders for the candidates on the right running for the White House.

Just ask George W. Bush or Governor Goodhair.

Legislating thought

US Attorney General Eric Holder said new hate crimes legislation was necessary to protect us from "violence masquerading as political activism."

Holder cited the recent killings of a young soldier in Little Rock, an abortion provider in Kansas City and a guard at the Holocaust Museum in Washington, D.C. during his address.

"We will not tolerate murder, or the threat of violence, masquerading as political activism. So let me be clear. The Justice Department will use every tool at its disposal to protect the rights ensured under our Constitution." -- Eric Holder, US Attorney General

There are a number of problems with Mr. Holder's call for more federal criminal legislation. First, every state has murder statutes on their books - where an act violates a state criminal statute, there is no need for a (redundant) federal statute. Second, we have this little thing called the First Amendment that protects speech and thought. The protections aren't absolute, but the Founding Fathers believed our society would be a tolerant society and that a man shouldn't be punished because he thought differently that his neighbor.

Most criminal acts require both a bad act and intent. The elements of murder include the act of killing another along with the intent either to kill the person or to engage in the conduct that led to that person's death. The law doesn't, nor should it, care whether the actor killed the victim because of skin color, religion, sexual orientation or political belief.

Holder said that to stop such violence, Congress should pass an updated version of hate crimes legislation in order to more effectively prosecute those who commit violent attacks based on gender, disability or sexual orientation.

Freedom of expression means that we are free to believe whatever we wish to believe - no matter how popular, or unpopular, it may be. The extremists, bigots, racists and haters will be marginalized in the full light of day - just as cockroaches run when the lights come on.

If the men who killed the returning soldier, the abortion provider and the museum guard had the intent to kill their targets and did, indeed, kill them, then they committed murder -- regardless of their attitudes or ideologies.

If we allow the Thought Police to gain a larger foothold in our criminal justice system, how long until we begin prosecuting people solely because we don't agree with their beliefs? How long until we build our own gulags?

Twelve year-old charged with capital murder

Harris County prosecutors have charged a 12 year old boy with capital murder in the death of a 10 month-old baby who was left unattended by adults last month.

The baby died (two days later) as a result of blunt force trauma to the head on March 12, 2009. According to CPS officials, the baby's mother and the mother of the 12 year-old left five children unattended while they went out.

The police informed the boy's mother that he confessed when questioned - of course there is no mention made of whether the boy was advised of his Miranda rights or whether he made an intelligent waiver of those rights.  There is also no mention of whether his parents were notified the police were questioning him.

According to the Texas Penal Code:

A person commits an offense (murder) if he:

(1) intentionally or knowlingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Additionally, a person commits capital murder if he murders someone under the age of six.

Now aside from the obvious questions of whether a 12 year-old can really grasp the concept of murder or develop the actual intent to kill someone, I want to know why the adults involved haven't been charged with any criminal act. The mothers knowingly left five children unattended while they went on about their business. The mothers knew exactly what they were doing and they knew it wasn't a very good idea.

Now, because of their decision, a 12 year-old boy is facing no future and the possibility of 40 years behind bars. Losing one child is tragic, losing two is inexcusable.

Spector convicted of second degree murder

Phil Spector, the creator of the "Wall of Sound" in the 1960's saw his world crash down on him when the jury in his second murder trial voted to convict the music producer of second degree murder.  Spector faces a sentence of 15 years to life in prison and was remanded to the custody of the sheriff to await sentencing.

Unlike the near-circus atmosphere of his first trial in 2007, the re-trial managed to come in below the radar screen and played to a sparsely-populated courtroom.

After nearly six months of testimony, the jury deliberated for about 30 hours before announcing their verdict.

For California prosecutors, it was a rare victory over a celebrity defendant. Spector's attorneys said they may appeal the judge's decision to allow five women to testify that Mr. Spector had threatened them in the past.

Of course I think that hair-do warrants a conviction by itself.

DWI = murder?

As I wrote about last week, Harris County has begun criminalizing automobile accidents.  Now the Dallas County DA's office has filed murder charges against an alleged drunk driver who fled from police and crashed into an SUV, killing a newlywed couple.  It is believed to the first time a DWI case has been pursued as a murder case in Dallas County.

The price of poker is rising and, if you are charged with DWI, you could face prison time.