RE: Legal Wranglings

Lee: You asked, "Why all the hoopla to prove that Malvo was an instrument of murder when society already has the notion that conspiring to a crime is enough to be guilty of it, whether or not they actually do it."

This actually gets into an interesting little area of criminal law. The way that criminal law gets written is that there is usually a panel of judges, prosecutors, defense attorneys, and law professors that draft suggested criminal legislation for the state legislature, which usually passes such suggestions. The result is an orderly definition of crimes with associated punishments. Usually the crimes are written such that if the difference between two defined crimes is only the mental state of the accused person, then the crime with the lesser culpability is defined as a "lesser included." That means that you can be charged with the higher crime or the lower crime, but not both. It also means that if you are charged with the higher crime, then the jury is often allowed to find you guilty of the lesser crime instead.

Here is an example: First-degree murder is usually defined as killing someone with the "intent" to do so. Second-degree murder is usually defined as killing someone with "aggravated recklessness", which means that the accused person created "unreasonable and substantial risk of death or great bodily harm to another" and "is aware of that risk." The difference between the two crimes is the mental state of the killer. In Wisconsin second-degree murder is a lesser included of first degree. So you cannot be found guilty of both crimes. This makes sense to me. You killed one person, you should be found guilty of murder only one time.

Over time, legislatures are faced with "high profile" cases. For example, in Wisconsin, a mentally insane man got onto a bus with a bucket of gasoline, poured it onto the bus driver and set him on fire, killing the driver. The legislature reacted to the bus driver lobby by passing a special law for killing bus drivers while they are on duty, and they failed to make it a lesser included on any other crime. Now if you kill an on duty bus driver in Wisconsin, you will be charged with murder, and with a separate "killing a bus driver" crime, each of which has a life sentence as possible punishment. But you only killed one person, not two.

The answer to Lee's question is that prosecutors want to charge Malvo with as many crimes as possible. Depending on how statutes are written, it is often possible to charge someone with two crimes for the same act. For example, as you will see below (the very last section), under the Virginia State Terrorism Offences "a prosecution under any section [of the anti-terrorism act] shall not prohibit or bar any prosecution or proceeding under such other provision." (Virginia Code § 18.2-46.10. – see below).

Virginia State Prosecutors can charge Malvo with regular old first-degree murder (which requires "intent"), and ALSO conspiracy to commit murder as an act of terrorism. Actually, as far as I can tell, prosecutors can charge Malvo with regular first-degree murder AND charge him with committing an act of terrorism for murder.

Below is the Virginia terrorism law. (You can search the Virginia Code here.)I think this is a terrible law. It means that people can be charged and punished twice for the same crime.

For interpreting this section you need to know that § 19.2-297.1(i) defines the following as "acts of violence": first and second degree murder, voluntary manslaughter, Mob-related felonies, kidnapping, abduction, malicious felonious assault, malicious bodily wounding, robbery, carjacking, criminal sexual assault, arson.]

§ 18.2-46.4. Definitions

As used in this article unless the context requires otherwise or it is otherwise provided:

"Act of terrorism" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation.

"Base offense" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent required to commit an act of terrorism.

"Weapon of terrorism" means any device or material that is designed, intended or used to cause death, bodily injury or serious bodily harm, through the release, dissemination, or impact of (i) poisonous chemicals; (ii) an infectious biological substance; or (iii) release of radiation or radioactivity.

§ 18.2-46.5. Committing, conspiring and aiding and abetting acts of terrorism prohibited; penalty

A. Any person who commits or conspires to commit, or aids and abets the commission of an act of terrorism, as defined in § 18.2-46.4, is guilty of a Class 2 felony if the base offense of such act of terrorism may be punished by life imprisonment, or a term of imprisonment of not less than twenty years.

B. Any person who commits, conspires to commit, or aids and abets the commission of an act of terrorism, as defined in § 18.2-46.4, is guilty of a Class 3 felony if the maximum penalty for the base offense of such act of terrorism is a term of imprisonment or incarceration in jail of less than twenty years.

§ 18.2-46.6. Possession, manufacture, distribution, etc. of weapon of terrorism or hoax device prohibited; penalty

A. Any person who, with the intent to commit an act of terrorism, possesses, uses, sells, gives, distributes or manufactures (i) a weapon of terrorism or (ii) a "fire bomb," "explosive material," or "device," as those terms are defined in § 18.2-85, is guilty of a Class 2 felony.

B. Any person who, with the intent to commit an act of terrorism, possesses, uses, sells, gives, distributes or manufactures any device or material that by its design, construction, content or characteristics appears to be or appears to contain a (i) weapon of terrorism or (ii) a "fire bomb," "explosive material," or "device," as those terms are defined in § 18.2-85, but that is an imitation of any such weapon of terrorism, "fire bomb," "explosive material," or "device" is guilty of a Class 3 felony.

C. Any person who, with the intent to (i) intimidate the civilian population, (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation, (iii) compel the emergency evacuation of any place of assembly, building or other structure or any means of mass transportation, or (iv) place any person in reasonable apprehension of bodily harm, uses, sells, gives, distributes or manufactures any device or material that by its design, construction, content or characteristics appears to be or appears to contain a weapon of terrorism, but that is an imitation of any such weapon of terrorism is guilty of a Class 6 felony.

§ 18.2-46.7. Act of bioterrorism against agricultural crops or animals; penalty

Any person who maliciously destroys or devastates agricultural crops or agricultural animals having a value of $ 2,500 or more through the use of an infectious biological substance with the intent to (i) intimidate the civilian population or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation, is guilty of a Class 3 felony.

For the purposes of this section "agricultural animal" means all livestock and poultry as defined in § 3.1-796.66 and "agricultural crop" means cultivated plants or produce, including grain, silage, forages, oilseeds, vegetables, fruits, nursery stock or turf grass.

§ 18.2-46.8. Venue

Venue for any violation of this article may be had in the county or city where such crime is alleged to have occurred or where any act in furtherance of an act prohibited by this article was committed.

§ 18.2-46.9. Seizure of property used in connection with or derived from terrorism

A. The following property shall be subject to lawful seizure by any law-enforcement officer charged with enforcing the provisions of this article: all moneys or other property, real or personal, together with any interest or profits derived from the investment of such money and used in substantial connection with an act of terrorism as defined in § 18.2-46.4.

B. All seizures and forfeitures under this section shall be governed by the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2.

§ 18.2-46.10. Violation of sections within article separate and distinct offenses

A violation of any section in this article shall constitute a separate and distinct offense. If the acts or activities violating any section within this article also violate another provision of law, a prosecution under any section in this article shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby.

- posted by Ethan at 4:35 PM; link

 
Legal Wranglings

[The following is a post from Lee Hoggard via thecruxmail@yahoo.com. (Lee, I regret that it's taken a few days to get this up. The mail bag is not checked with any great frequency, unfortunately. In the future, feel free to just send things directly to me at malznauer@yahoo.com and I'll make sure they go up the same day. Incidentally, it's good to hear from you.)]

I imagine Dahlia Lithwick knows her stuff, and God knows she makes reading about the cases before the Supreme Court interesting, but I've always understood that Conspiracy charges allowed every member that plan and/or participated in a crime to be guilty of it, regardless of the actual part they carried out. A quick google returned this from the California Statues (http://www.courttv.com/trials/soliah/1975charges_ctv.html):

§ 182.1 [Criminal conspiracy] If two or more persons conspire to commit any crime...they shall be punishable in the same manner and to the same extent as is provided for the punishment of said felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder in which case the punishment shall be that prescribed in the first degree.
All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect such a conspiracy shall be done.

This, too from the Hawaii Criminal code (http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0705/HRS_0705-0526__anno.htm):

SUPPLEMENTAL COMMENTARY ON §705-526

Act 149, Session Laws 1997, amended this section to provide that conspiracy to commit murder in any degree is a class A felony. The legislature found that the offense of murder warranted punishment under the Code sufficient to fit the grave consequences of the crime, and that persons who are found guilty of conspiracy or solicitation to commit murder should also be penalized to a similarly serious degree. The legislature recognized that two Hawaii supreme court opinions, State v. Kaakimaka (84 H. 280, 933 P.2d 617) and State v. Soto (84 H. 229, 933 P.2d 66), concluded that conspiracy to commit murder and solicitation to commit murder are class C felonies. The legislature acknowledged that the decisions had led to incongruous sentencing under the sentencing guidelines of the Code. Conspiracy and solicitation are ordinarily designated the same level of felony offense as the underlying crime, or at the very least, one grade lower. Senate Standing Committee Report No. 1600.

I couldn't find anything official from Virginia, but there was this (http://www.pbs.org/newshour/updates/sniper_10-29-02.html):

"On Monday, prosecutors in three Virginia counties filed capital murder charges against the pair. In Prince William County, a grand jury also charged Muhammad and Malvo with conspiracy to commit murder under a new post-Sept. 11 terrorism law. The terrorism law gives Virginia prosecutors an additional means of seeking the death penalty if the suspects elude that punishment in other trials."

So, I guess I'm missing something here. Why all the hoopla to prove that Malvo was an instrument of murder when society already has the notion that conspiring to a crime is enough to be guilty of it, whether or not they actually do it. These kinds of charges are used all the time in murder-for-hire case. Also, in those cases the person pulling the trigger is never made a little bit less guilty because someone egged them on.

The Crux really ought to have a comment section.

I remain yours in all legally perplexity,

Lee Hoggard

- posted by Mark at 11:18 PM; link

 
Two quick points for Charles Krauthammer

1) Computation ≠ consciousness. Single-celled organisms exhibit behavior far closer to self-awareness than that of our best computers, and they have nothing remotely like the neuronal processing that you're saying gave rise to consciousness.

2) Moore's Law is not that "computers double in power every 18 months." It's (roughly) that the transistor to square inch ratio for silicon chips tends to double every 12 (now 18) months. Not quite as spooky, huh?

- posted by Bob at 1:44 PM; link

 
Bad straw man, bad!

Bush's first ad is out:

"It shows Mr. Bush, during the last State of the Union address, warning of continued threats to the nation: 'Our war against terror is a contest of will, in which perseverance is power,' he says after the screen flashes the words, 'Some are now attacking the president for attacking the terrorists.'"

- posted by Bob at 1:24 PM; link

 

This piece on the Kasparov v. Fritz chess match is an entertaining read. Krauthammer gives the anti-argument regarding the computer's inevitable leap into consciousness: "If it could happen for carbon, surely it could happen for silicon." I don't know about that, but his description of the chess is really good.

- posted by alan at 8:56 AM; link

 
Modern problems

From pp. 150-151 of the Bedford/St. Martins version of A Midsummer Night's Dream edited by Gail Kern Paster and Skiles Howard:

"At the end of the play Theseus rewards the mechanicals with praise, thanks, and remuneration. The lovers are rewarded not only with an invitation to repair to their wedding beds but, after the human characters have exited the play, with Oberon's blessing upon their issue. We are left with an image of social harmony, but the image is problematic if we remember the physical and social separation between the ranks of men that the comic ending has not altered." (italics mine)

In a romantic comedy from the 1600's with fairies, Greek gods, pagan heroes and a love potion, Paster and Howard find a problem: lack of social justice. By this ridiculously inappropriate criterion, the only way to write a unproblematic comedy would be to have it end with total revolution. It's as if a Christian tempered their praise of Star Wars by saying that though he was glad that Luke blew up the Death Star, the movie's ending was problematic because you don't know if Luke, Han, and Chewy had accepted Christ as their savior.

- posted by Mark at 5:53 PM; link

 
The Specter Problem

My latest piece is the Washington Times this week.

My calculus:

With four and maybe five Democratic senators in the South retiring, Republican control of the upper chamber is nearly guaranteed next year. Even if Mr. Toomey were a guaranteed loser in a general election, the pro-life cause would benefit from a Specter loss.

If the choice is between 52 GOP senators with a Judiciary Chairman Specter as opposed to 51 Republicans and Chairman Jon Kyl, Arizona Republican, the decision to get rid of Mr. Specter should be a no-brainer for pro-life voters.

- posted by Carney at 5:02 PM; link

 
Bad Prospects

The latest American Prospect in its "Heroes & Zeroes" feature lists Zell Miller as a Zero opposite hero: Conrad Black, accused of taking millions in illegal payments as a publisher. Is this just even-handedness for the Prospect, who stuck up for impeached President Bill Clinton?

No, because it turns out Black is no conservative at all. The hawkish publisher wins the Prospect's praise for a Wall Street Journal piece saying what the neocons are all thinking: Mister, we could use a man like Franklin Roosevelt again.

- posted by Carney at 4:53 PM; link

 
Polysemy

The "language log" is a blog for big shot linguists to, well, blog. Here is a piece on the old nugget about language playing an instrumental role in the way a language user thinks. The "Whorfian" hypothesis.

- posted by alan at 9:36 PM; link

 
Why can't monsters get along with other monsters?

Edward Epstein has a good article here partially rehabilitating "the Prague connection"--one alleged link between Al Quaeda and Iraq.

- posted by Mark at 1:24 PM; link

 
LBJ for the USA

Bob Kagan in the Washington Times has a good article about Dean's foreign policy leanings, "No George McGovern". What he surprisingly finds is an underlying fundamental agreement between Dean and the present foreign policy establishment. As he spells it out, this has two implications:

"The Bushies are planning to run against a dovish McGovern, but there's a remote possibility they could find themselves running against a hawkish Kennedy. The bigger implication, which the rest of the world should note well, is that the general course of American foreign policy is fairly stable and won't be soon toppled -- not even by Howard Dean."

(Link compliments of David Adesnik at OxBlog)

Precisely if Dean's no McGovern, however, one might wonder if he'll have an LBJ-style polarizing influence on the Democratic party. Right now, Dean looks like the anti-war candidate, but if he turns out to merely be the anti-this-war candidate, there is substantial and vocal minority of anti-war lefties who will no longer have any mainstream candidate. They'll either have to bolt the party, or try to cause a rift within.

(A historical note: When Dean was governor of Vermont, he seriously disappointed the ideological left once he arrived in office, often siding with business against more typically liberal concerns. See here. It could happen again.)

- posted by Mark at 11:14 AM; link

 
Move over, Poochie

"Disney's market research has shown [Mickey Mouse] is barely known by children other than as an image and most youngsters who do have an opinion simply describe him as 'boring'.
The new, 21st century Mickey is understood to be more streetwise, with a suitable appreciation of skateboarding, extreme sports and computer games."


Streetwise and a video game afficionado? This new Mickey is a regular Renaissance Man.

- posted by Mark at 9:25 AM; link

 
Re: We are all legal pragmatists now

And here's a little something for those of you who need to get your legal theory spoon-fed to you with baseball analogies: Strict Constructionism and the Strike Zone.

- posted by Mark at 6:52 PM; link

 
We are all legal pragmatists now

Dahlia Lithwick in Slate:


"Depending on what happens in the Malvo trial, and at both sentencing hearings, at the end of these two trials we may witness a result that is not precisely legal but nevertheless probably fair: Muhammad will be executed for murders he never quite committed, and Malvo's life may be spared for murders he blatantly committed, because of an intuitive emotional consensus that he was not fully culpable as an adult."

At least in some cases, it appears, juries have no problem simply ignoring the letter of the law. Is there anybody who would take up the banner of strict constructionism here?

- posted by Mark at 6:37 PM; link