Nifong Disbarred and Facing Criminal Prosecution...Good

Now let's hope that the subsequent civil suit by the lacrosse players succeeds and is able to bankrupt former Durham District Attorney Michael Nifong for his attempted railroading of these players. Here is a great summary by Professor K.C. Johnson at the Durham in Wonderland blog of the perfectly justified end to a long and painful story for the players and an equally pathetic, sad story of greed and lust for power by an attorney low enough to exploit racial tensions in a dubious case to stay in office. I only wish the hysterical "Group of 88" professors at Duke suffered the same or worse fate than Mr. Nifong for their rush to judgment and slander of these young men in the media, but the ivory tower will protect them and likely settle with the players' attorneys out of court. Here's to hoping that every last one of them are fired and that the only job they can get is as a garbage hauler or something similarly distateful. And to close things out, this report by the North Carolina Attorney General's office regarding this case is as damning as it gets for a lawyer.

"Duff Wilson continued his slanted coverage of the case right up until the end. Covering an unprecedented event—the stripping of a sitting DA’s law license for misconduct in his highest-profile case ever—that culminated with a dramatic, eloquent, and extemporaneous address by Disciplinary Hearing Commission chairman Lane Williamson, who was the first person quoted in Wilson’s article?

Nifong attorney David Freedman.

Who was the second person quoted?

Nifong’s wife, Cy Gurney.

Then, almost as an afterthought, Wilson got around to Chairman Williamson’s remarks. In his statement, Williamson twice termed the case a “fiasco”—a comment that appropriately led the N&O, AP, and the Chronicle stories on the day’s events.

The quote never appeared in Wilson’s article.

What did Wilson quote?

We had a prosecutor who was faced with a very unusual situation in which the confluence of his self-interest collided with a very volatile mix of race, sex and class,” Mr. Williamson said of the media spectacle that accompanied the case in which a black woman who worked as a stripper accused three white lacrosse players.
For good measure, Wilson closed by misidentifying the attorney who delivered the closing argument for the State Bar. His name is Doug Brocker, not (as Wilson wrote) Doug Brock. Since Wilson spent so much time around the defense table at the hearing, perhaps he didn’t learn the name of the man who cross-examined Nifong.

---------

Brocker’s closing was a masterful performance—a highly organized summary of the case complete with visuals outlining Nifong’s myriad, mutually contradictory, excuses on why he didn’t turn over the exculpatory DNA evidence. Brocker’s PowerPoint slide with headshots of Nifong’s various media appearances was particularly effective.

He also delivered one of the best lines of the entire case, describing Nifong as a “minister of injustice.”

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Even for those who have followed the case closely, many new facts emerged from the hearing. A partial list:

The language in the non-testimonial order stating that the DNA tests would exonerate the innocent was written not by Nifong or his office but by Sgt. Mark Gottlieb.

On March 27, the first business day after he had assumed personal control of the investigation of the case, Nifong met with Gottlieb and Ben Himan. After the two summarized the case, with its many holes, Nifong said, “You know, we’re fucked.”

According to his calendar, Nifong nonetheless had already scheduled interviews with the state and national media almost all the afternoon of March 27, in which he began his defamatory pre-primary publicity barrage.

Nifong sought indictments against Reade Seligmann and Collin Finnerty without watching the video presentation in which Crystal Mangum “identified” them—and probably without, he conceded, even reading the transcript of this presentation.

Nifong sought an indictment against Reade Seligmann without even knowing whether Seligmann attended the party.

In his deposition to the Bar, Gottlieb claimed that Nifong and Meehan went over the May 12 report line by line. Nifong said he never read the report.

The chief staffer for NC’s Innocence Inquiry Commission was willing to testify in Nifong’s defense.

One of Nifong’s predecessors as Durham DA, now-retired judge Anthony Brannon, openly admitted that he did his best to refrain from handing over discovery, of any type, to defense lawyers.

Two Durham judges, Marsha Morey and Elaine Bushfan, declared under oath that a man soon to be disciplined on 27 matters, many of them for fraud, deceit, and misrepresentation, has a reputation for truthfulness in Durham.

In his Friday testimony, Nifong eight times referred to Mangum as the victim.

According to Nifong, his behavior in this case was typical; he rarely reads files.

Even Himan was worried by the decision to ahead with indictments.

---------

Steven D. Michael, president of the North Carolina State Bar, issued the following statement on Nifong’s disbarment:

I am satisfied that justice was done in the Nifong case and am proud to say that our system of self-regulation worked well. Mr. Nifong received a fair trial. All interested parties – but especially the citizens of North Carolina – were finally able to see all the evidence relating to this extremely unfortunate case of professional misconduct.
.
I was very impressed with the effective and thoroughly professional presentation made by the State Bar’s lawyers, Katherine Jean, Doug Brocker and Carmen Hoyme. I also thought Mr. Nifong was well represented.
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The members of the DHC’s Hearing Committee deserve thanks and commendation as well. They presided over a very difficult case in a fair and extremely competent fashion.
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In my experience, misconduct of the sort Mr. Nifong engaged in is very rare and not at all typical of prosecutors in our state. We deeply regret the serious harm caused to these young men and their families. We hope the decision today will lessen the likelihood that anything like this will happen again.
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The Bar’s strong response to this situation made clear that the ethical rules restricting pretrial public comment and requiring prosecutors to turn over exculpatory evidence will be strictly enforced. Those rules are important because they ensure the fundamental right to a fair trial that every citizen is guaranteed in our constitution."

The Danger of Welfare is the Lack of Incentives

As Mrs. DuToit so clearly and succinctly (as usual) points out in this post, even if it is what most people with any sense of pride, ambition, self-respect, etc. would consider to be a substandard, insulting, helpless form of existence, there are WAAAAYYYY too many people in this country who are content to sit on their worthless, ever-widening posteriors waiting for the government cheese to come. They care nothing about forcing others to pay their way in life, and it absolutely infuriates me. I'm not talking about people who are truly disabled physically or mentally...I'm talking about people who are on SSI, disability, food stamps, etc. ad nauseam because they happen to be: 1.) owners of an entitlement mentality roughly the size of Billary Clintons' collective ego; 2.) a member of a perpetually aggrieved ethnic minority; and/or 3.) lazier than the day is long and even more useless. Government assistance is allegedly supposed to be a helping hand to those who genuinely make an effort to support themselves and their families and fall on temporary hard times, but it is not supposed to be an excuse for those who fall on hard times to stay there and slop at the government trough at taxpayer expense, nor is it supposed to be simply another web woven in the grand cradle to grave government welfare hammock. I've said it before, but it bears repeating...when 50% plus one of the citizenry of this country are on the government dole, any chance for tax and/or welfare reform is over. If that ever happens, I think America as we know it will introduce itself to the now defunct, deceased Roman Empire in a most infamous, agonizing manner in a few short generations. This one is short but packed with goodies, so read the whole thing.

"If someone else pays my rent, buys me food, pays for my medical care, what is the incentive for me to do anything?

I keep hearing about how there are X million people without health insurance. Of course that’s big fat bait and switch. It doesn’t say how many of those millions of people don’t have access to health care. Like none. Oh, you mean they’d either qualify for Medicare or they’d have to pay for it. Yeah, OK. And? Like I did for 15 years? I couldn’t afford medical insurance either, because my taxes were too high, paying for the medical expenses of others!

Then we’re told that there are children who don’t have medical insurance.

I guess their parents should do something about that then. Or they should have thought about that before they decided to have children.

There are people who don’t have fur coats, too. I don’t lose sleep over that either.

Don’t get me wrong. I think giving other people a helping hand is a integral part of being a decent person. But people should have to ask for help, not collect a monthly check paid for by a bunch of anonymous people. That takes the sting out of it. It is too easy to forget that it did come from the pockets of others. It is money they could have spent on their own children or (heaven forbid) on themselves, if they had a say in it. They could have decided to give some of that extra money to someone they knew who needed it. Instead, we’re forced to give it to people we do not know, who may or may not be deserving of it.

Please excuse my foul mood. I looked at the total annual withholding for taxes on my last pay-stub. Considering that about 60% of what I’ve paid in goes towards entitlements, I’m not feeling terribly charitable about paying more of other people’s costs at the moment.

When is tax freedom day these days? I think mine will be sometime in November."

Kender's Socialist Smackdown Manifesto

As Emperor Misha is fond of saying, I really don't have anything to add to what Kender over at Kender's Musings said about socialists right here. As someone once told me, "Yeah, what he said, in triplicate." I will never understand why a failed ideology that has brough about the deaths of over 100 million people since its inception worldwide still has such a cult following, but what I do know is that I will fight it at every turn with every fiber of my being. Read it all, and enjoy every minute of it...I know I did.

An Open Letter to Socialists

"I will keep this short and sweet.

I despise you.

Let's not mince words.

You disgust me.

Socialism takes away the greatness of the human spirit. Without the possibility of abject failure the possibility of true success cannot be possible.

Imagine a ladder. Imagine a wall that stretches for infinity and has ladders all along it.

In your system the ladders are ten feet tall, at a 45 degree angle and bolted to a wall and there are cushions beneath it. All but the most inept creatures make it up their ladder, to mingle with all of the others that have made it up their ladder.

Where is the glory? Where are the people that have conquered adversity to rise up and shine as an example for the rest of us?

In your system, they simply don't exist.

Now imagine that wall is now higher than you can see. It disappears into the clouds, and lining it are ladders leaning up close to the wall, not bolted on, and there are no cushions below to break your fall. Once you start climbing the ladder you find that every so often there is a level place where you can step off and stay if you wish. But you find that the higher you climb, the more enjoyable are the amenities.

Which ladder do you want to try to climb?

I want to climb that ladder into the clouds. Oh sure, I know I may fall, but the rewards are greater the higher I climb. I don't want to climb the little ladder and be mingling with the people that also made it up that ladder. Where is the glory in that?

Where is the greatness of the human spirit?

You folks that believe we should have a more equal outcome, and that life isn't fair, want to set up the system to give everyone short ladders on an easy climb.

And that is because you are cowards.

You are so scared of actually failing that you want to live in a system that takes away the possibility of failure, and to hide that cowardice you hide your intentions in alleged goals of "helping our fellow man."

Help them do what? Be mediocre? Be run of the mill? Help them be just like everyone else? Help them be cowardly like you?

You socialists are so craven that you cringe at the thought of anyone actually succeeding, and hide behind platitudes and feel good language all the while hoping that nobody realizes what weak creatures you really are, and you sit around with a smug air of superiority that deep down you know is a hypocritical lie, and you grow to hate yourselves for it.

I am ashamed to share a planet with you.

I am ashamed to share DNA with you.

To those of you in the U.S. I am doubly ashamed to share a country with you. Move to France.

I am ashamed that there are humans so scared of life, so terrified of actually being a human and failing, that you advocate a system to make failure the only possible outcome for all. I just wish you knew what it felt like to be ashamed, but you have no more shame. Your fear has overcome all of your other emotions, and you are leading us down a path that is going to make humanity much duller, less colorful and simply pointless.

Thanks for that.

Now hang your head and cry."

Informed Opinions and Decisions

This post is one of the reasons I so enjoy reading a deep, thoughtful post by Mrs. DuToit. Quite simply, she breaks it down chapter and verse where almost anyone can understand it...you know, Forrest Gump style. In this case, she calls out in devastating fashion the childish behavior of anyone of any political or ideological stripe who engages in name-calling, fact-absent arguing, or relying on someone who has no knowledge of the subject matter about which they speak as an "authority" (i.e. Holly-weirdos thinking they should be in charge of foreign policy because they saw a starving kid from Africa on a TV once). I don't mind debating someone who may have a different opinion than I do, especially if they have insight, facts, or experience that I may not. That said, the ultimate decision of what facts to put stock in, what decisions to make, and what goals to pursue on the basis of those things stays with me even after the debate is done. I respect other folks' right to disagree, to be wrong, and to believe in what they believe, and I expect the same in return. Where that respect ends, however, is generally right around the place the other person's hand reaches into my family's pocketbook to support ideas with which I do not agree, and it only increases when the motivation for that money grab is based on dubious fact (i.e. glow-bull warming). Anyhow, read the whole thing...it's good stuff.

"Informed Opinion"

"Kim recently had a post on opinions, appropriately titled, Opinions. That post focused on the difference between personal tastes/preferences and fact-based opinions.

I want to expand on that a bit, because it appears to me that there are some folks who didn’t have this explained to them.

There is nothing wrong with having tastes and preferences, in fact, it should be encouraged. Developing preferences falls into the category of having a discriminating palate, as opposed to an ignorant palate. Experience leads to preferences and away from ignorance. If you’ve tried 50 different types of cheese you will broaden your palate. You might decide you prefer harder cheeses, or goat cheese, and then expand your experience within that category, but it is all part of the process of broadening your horizons. You might discover you don’t like cheese at all, or certain types of cheese (and that’s fine, too). The end result will be a honing of your preferences so you’ll end up narrowing your selection of categories, and narrow further the categories within.

This is not unlike the academic model. The purpose of grammar school is to provide the student with generalist knowledge. In college, the breadth of knowledge does not increase. The depth of knowledge does. An undergraduate degree is still very much like grammar school, to provide general knowledge of a wide variety of subjects. High school and college provides a greater depth of general knowledge, with only a little specialization by selecting a “major.” Graduate degrees are all about specialization and focus. You study one thing, and study one particular aspect of that thing in more detail. The purpose of graduate degrees is specialization, not to gain a breadth of knowledge. You learn more and more about less and less.

That doesn’t mean that learning stops and should focus only on specialty. It simply means that your formal general education is over and you are now the captain of your general education ship. If someone chooses to focus only on their specialty, that’s fine. That is their choice, too.

What seems to have been lost in this general education road, that all of us were put on when we were children, is the concept of an informed opinion. On some issues (as I illustrated above with personal tastes and preferences) the basis of the opinion is in your own head, and no one should challenge you for citations and sources for opinions in that arena. There are no citations outside of your head and taste buds for taste/preference based opinions.

It is when we stray outside of personal taste and preferences that informed, fact-based decisions come into play. To be blunt, it is what differentiates adults from children. Children have very little real knowledge--of facts and details, and few life experiences that enable adults to form reasonable judgments more quickly. They know they like Chuckee Cheese and stuffed animals, but they don’t have knowledge (or research abilities) sufficient to come to sound conclusions much beyond that. That’s why children are not given the right to vote or the full rights and privileges of adults. They are too easily swayed by fast talkers and snake oil salesmen.

One of the ways I deal with this is that I am adamantly opposed to children making promises or commitments that extend into adulthood. I do not believe it is appropriate, for example, for children to say the pledge of allegiance. They have no idea what the words mean, or what they are pledging, and until they do, I do not believe they should recite empty words and make false promises. What I want my children to know is that their promises must be kept and their commitments more so. I can’t tell them that and expect them to believe me, when I simultaneously encourage them to commit to things they don’t fully understand. Similarly, the fact-based opinions of children are going to tend to be less stable, as more information will come available to them, their opinions will be changed as a result. At least we HOPE so, as that is the goal of education and experience.

Making an informed decision requires that we are informed on the topic. [Yeah, I know, DUH!]

Being informed however, doesn’t mean that someone else informs you and you take what they say at face value, without verifying it. You might have experience with that person to trust their judgment, in a certain area, but on issues of public policy (or on voting, for instance) you have to do some homework. The news media is not a reliable source of information. It may have been better at some point in the past, but even then it wasn’t 100% reliable. A celebrity might know a great deal about acting or movie making, but what experience or specialty knowledge do they possess with International Affairs, Climate, or our rights as articulated in the Constitution? Unless they can be shown to have some expertise and knowledge of those subjects, they are not reliable sources for anything out of their area of expertise. Quoting what a celebrity says, who is not a universally accepted expert in the subject under discussion, is referred to as “an appeal to authority.” The person must demonstrate they are qualified to speak on a subject before what they say has any value.

On something like car repairs, I can go to people I trust and have expertise. That MIGHT be my mechanic. It might not be.

An informed opinion must be based on verifiable facts. The key word here is verifiable. Facts can be true or false, so facts alone aren’t enough.

I’ll illustrate:

It is my opinion that there is no evidence of man-made global warming. There might be global warming, or global cooling, or climate change, but it is my opinion that there is no evidence to suggest that man has anything to do with it. Therefore, I believe it would be inappropriate to take any actions or make public policies that inhibit what man may do in this arena. That doesn’t mean that global warming may not be occurring. Further, it would be appropriate to have plans/policies in place to deal with it, if it should create problems, but this does not include limiting any actions that are preventative in nature (trying to stop the trend). That would be foolish, because what we do has no impact on it at all.

The above is an informed opinion that has a public policy component.

In the statement of opinion above I used the words no evidence. Now some nincompoop is going to come along as say, Yes there is!! Here is a study that says blah blah blah. And since you said there was no evidence and I have just proven that there is, your entire opinion is false. Therefore, we get to tell man to lower his carbon footprint as sound public policy.

Evidence is not always factual. The fact that someone can pull a study out of their butt does not mean that the study is accurate. We have not yet determined if the facts are true or false simply by pulling papers out of the cabinet or pasting a link in a comment post on a blog. When someone includes in their opinion a statement such as there is no evidence to suggest, what they are stating is that there is no reliable evidence to suggest... I am perfectly aware, for example, that there are studies which suggest that man is influencing climate change. I have different studies and other facts which contradict those studies. That means that I have made a judgment. I have made a judgment about the reliability of those facts and have concluded that they are false.

Someone else can make a different determination on the reliability of the facts they have seen. If we can’t come to consensus on the reliability of the facts, then we can’t come to consensus on the soundness of our opinions. That’s OK, but we need to be aware of that.

You don’t argue with someone over their opinion, per se. You argue over the reliability of their facts, providing additional facts that contradict, or other information which demonstrates that their facts are faulty or false, and your facts are less faulty or true.

THAT is argument. Argument is not suggesting that someone is an idiot because they have formed an opinion you do not share. Argument is determining which facts they used to come to that conclusion and debating their reliability or validity. On what basis have you formed the opinion that this person is an idiot? Evidence please. Without evidence the opinion could be slander (if spoken) or libel (if written). And Free Speech does not cover slander or libel, so prepare to be sued in civil court for damages. There are consequences for stating opinions not based on reliable evidence.

If someone says, “because I say so” or “I have no facts. I just believe it” then no argument is possible. If they continue to hold the same fact-based opinion, when their facts have been shown to be false, then they are just being stubborn (and stupid). If there are no facts or there is no way to verify the facts, then NO ARGUMENT IS POSSIBLE. To continue to discuss it at that point isn’t argument. It is fighting. And only children or the willfully ignorant fight over silly things like that."

New Best Birthday Ever

Last year, I wrote that my birthday in 2006 was one of, if not the best birthdays ever. I got to see some of my best friends and had a rockin' good time for a whole weekend. Well, we got a new contender now...I give you Birthday, 2007!

My birthday is on August 10th, and Althea's is on August 12th, so I had a perfect excuse to make this an all weekend affair. Since I was first on deck, my best friend Mike came in from out of town with a couple of his friends. Despite some communications mix-ups along the way and decidedly sub par food at Red Lobster, Mike got to meet Althea and we had a lot of fun at the restaurant. Then I went back to my place to get ready, and I opened the door to find my entire living room full of presents from Althea, and a dozen of the nicest white roses I'd ever seen on the kitchen counter. It sounds corny, but no one had ever gotten me flowers, and I thought that was very sweet. Althea got me virtually an entire new summer wardrobe of clothes to wear, and they all fit right and matched well together. It was exactly what I needed. Still more surprisingly, we stopped back by Althea's place before heading out on the town for her to pick up a few more things, and I was surprised with still more presents and a very tasty cake...I must say, I felt like the man all night that night. After that, we got ready and went out on the town in downtown Nashville. Mike and his date were busy dancing the night away just as Althea and I were (and my girl can really move, man is she gorgeous...what another nice birthday surprise). We danced until the wee hours and then came home.

Since Sunday is a busy day for Althea and I, I decided to do her birthday stuff on Saturday the 11th, even though her actual birthday is on the 12th. We got up early and drove to Lewisburg so she could meet my Dad. We had a nice breakfast, and everything went well...I think she passed with flying colors and gained the old man's approval. Since I inherited my selectiveness from my Dad, that was no small feat she accomplished winning him over.

After that, I whisked her back to Brentwood for her first of two appointments. First, she spent three hours getting her hair done and receiving a facial. After that, I grabbed her a quick bite of lunch and dropped her off at her second appointment, where she got a deep massage, some hydrotherapy, and a manicure and pedicure. She told me she was floating in spoiled princess relaxation after that, so I think the mission was definitely accomplished there. After that, I told her she had to go home and get dressed nice, because we had one more surprise. I made us reservations at Ruth's Chris in downtown Nashville, and we had a great time. The food was amazing, the service was top-notch, and our waiter was hysterical...I could not have asked for a better dining experience. We took some pictures before dinner and throughout the evening, some of which may be coming to Myspace sometime soon. Then we went home and spent the rest of the night together (not that way you perverts, get your minds out of the gutter!).

The next day, we went to church in the morning, had lunch together, and then I played a kickball doubleheader, which we swept 10-4 and 5-2. All around, this was a weekend to remember, and I can only pray that all the birthdays we spend together in the future will be equal to or better than this one. :)

This Joke Sounds Just Like my Grandmother...Too Funny :)

My brother sent me this joke, which I'd heard before and which does remind me a lot of what my late grandmother on my dad's side might say if she had been called to testify at a trial while she was still with us. It's even funnier to me now because I'm a lawyer myself, and because I deal with folks every day who might easily meet the description of the attorneys given by the little old lady here. I miss her and my grandfather both so much every single day. I think of them often, and can't wait to hug them again in heaven someday. Until then, this one's for you Granny.

"In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand.

He approached her and asked, "Mrs. Jones, do you know me?" She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a young boy, and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, and you
manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you."

The lawyer was stunned! Not knowing what else to do, he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney?"

She again replied, "Why, yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him."

The defense attorney almost died. The judge asked both counselors to approach the bench and, in a very quiet voice, said, "If either of you idiots asks her if she knows me, I'll send you to the electric chair."

Justice Scalia on Capital Punishment

I've always thought Justice Scalia a brilliant jurist with a sharp wit and a quick mind, and this article I came across recently did nothing to change my perception. I like how he takes great pains to distinguish his personal views, philosophy, and the history of the evolution of the death penalty as he sees these things completely separate from how he will vote on particular death penalty cases that come before the court. Perhaps my favorite point he makes is that judges are on the bench to enforce and interpret the law, not to impose upon it their own personal belief structure...would that more judges took the same approach.

God’s Justice and Ours
by Antonin Scalia

"Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”-that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.

In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted-and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run-of-the-mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead-or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would-and could in good conscience-vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.

With the death penalty, on the other hand, I am part of the criminal-law machinery that imposes death-which extends from the indictment, to the jury conviction, to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder). I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. It seems to me these individuals are not merely engaged in “material cooperation” with someone else’s action, but are themselves decreeing death on behalf of the state.

The same is true of appellate judges in those states where they are charged with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Where (as is the case in the federal system) the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench (rather than resigning) is somehow essential to preservation of the society-which is of course absurd. (As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”)

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty-and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)

It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic-and being unable to jump out of my skin-I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self-government.

Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):


Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1-5)

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government-however you want to limit that concept-derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid-did justice-through His minister, the state.

These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God-or any higher moral authority-behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge-to vindicate the “public order”-be any greater than our own?

So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the church-going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will-the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist-is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.

Of course those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes-for example, domestic murder in the heat of passion-are neither deterred by punishment meted out to others nor likely to be committed a second time by the same offender. Yet opponents of capital punishment do not object to sending such an offender to prison, perhaps for life. Because he deserves punishment. Because it is just.

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law-even if it does not compel him to act unjustly-need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that-in the words of a Supreme Court opinion from the 1940s-“we are a religious people, whose institutions presuppose a Supreme Being.” These reminders include: “In God we trust” on our coins, “one nation, under God” in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with “God save the United States and this Honorable Court,” annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, “God bless America.” All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.

A brief story about the aftermath of September 11 nicely illustrates how different things are in secularized Europe. I was at a conference of European and American lawyers and jurists in Rome when the planes struck the twin towers. All in attendance were transfixed by the horror of the event, and listened with rapt attention to the President’s ensuing address to the nation. When the speech had concluded, one of the European conferees-a religious man-confided in me how jealous he was that the leader of my nation could conclude his address with the words “God bless the United States.” Such invocation of the deity, he assured me, was absolutely unthinkable in his country, with its Napoleonic tradition of extirpating religion from public life.

It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. That, by the way, is how I read those documents-and not, as Avery Cardinal Dulles would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot square that interpretation with the following passage from the encyclical:


It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. (Emphases deleted and added.)

It is true enough that the paragraph of the encyclical that precedes this passage acknowledges (in accord with traditional Catholic teaching) that “the primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offense’” by “imposing on the offender an adequate punishment for the crime.” But it seems to me quite impossible to interpret the later passage’s phrase “when it would not be possible otherwise to defend society” as including “defense” through the redress of disorder achieved by adequate punishment. Not only does the word “defense” not readily lend itself to that strange interpretation, but the immediately following explanation of why, in modern times, “defense” rarely if ever requires capital punishment has no bearing whatever upon the adequacy of retribution. In fact, one might say that it has an inverse bearing.

How in the world can modernity’s “steady improvements in the organization of the penal system” render the death penalty less condign for a particularly heinous crime? One might think that commitment to a really horrible penal system (Devil’s Island, for example) might be almost as bad as death. But nice clean cells with television sets, exercise rooms, meals designed by nutritionists, and conjugal visits? That would seem to render the death penalty more, rather than less, necessary. So also would the greatly increased capacity for evil-the greatly increased power to produce moral “disorder”-placed in individual hands by modern technology. Could St. Paul or St. Thomas even have envisioned a crime by an individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents) as enormous as that of Timothy McVeigh or of the men who destroyed three thousand innocents in the World Trade Center? If just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment, can one possibly say with a straight face that nowadays death would “rarely if ever” be appropriate?

So I take the encyclical and the latest, hot-off-the-presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always-or indeed ever before-maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.

I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching-that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise-that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.

So I have given this new position thoughtful and careful consideration-and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.

I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty-which, if accepted, would have these disastrous consequences-is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty-eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them-under the wrapper “respect for life”-with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made-up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home."