The New York Times reports today that statements by the teenaged sniper suspect may muddy the case.

17 year-old Malvo was sent to Fairfax County, Virginia to face murder charges for one victim. John Muhammed was sent to Prince William County, Virginia to face charges for another victim.

Police have leaked reports that Malvo admitted to being the shooter in both of those killings, as well as in the killing of a man shot at a gas station in Fredricksburg, Virginia.

This information, even if inadmissible against Malvo because the police violated his rights by questioning him in the absence of his guardian ad litem, could be admissible as exculpatory evidence on behalf of Muhammed at his trial. If it is admitted at Muhammed's trial and the Virginia jury finds Muhammed was not the shooter, all of Ashcroft's careful planning and clever scheming might be for naught. In order for the death penalty to apply in capital murder cases in Virginia, the defendant must have been the shooter.

Authorities in Virginia are downplaying the possibility Malvo's statements will help Muhammed. They say their death case against Muhammed is still viable regardless of Malvo's statements because they have also charged Muhammed under the new Virginia terrorism statute.

But that statute has never been tested. It is doubtful it was intended to apply to serial murders. And we have doubts Virginia could even pick a jury under it.

The applicable portion of the terrorism law applies to violent crimes committed with the intent to intimidate the civilian population at large. We think that makes everyone in the civilian population of Virginia a victim, and therefore ineligible to sit on the jury. If Virginia can't seat a jury, they can't try the case and they can't convict.

For reference, § 18.2-31, the Virginia death penalty statute lists thirteen death-penalty eligible offenses. Number 13 is "The willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4."

§ 18.2-46.4. defines an act of terrorism as "an act of violence ... 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."

We are liking Mr. Malvo's lawyer in Virginia, Michael S. Arif, more and more. He issued a statement Sunday saying "the police were "flooding the media and poisoning the jury pool with their own paraphrasing and subjective interpretations of statements made during an unconstitutional interrogation."

"He said the pattern of disclosures to the news media "suggests an insecurity" on the part of prosecutors "with the admissibility of these statements."

Meanwhile, the Justice Department is now trying to distance itself from the Virginia prosecution. The Times reports, "Justice Department officials who turned the case over to state prosecutors in Virginia said today that they were not tracking the day-to-day developments, like Mr. Malvo's reported statements. "It's a state case now, and we're staying out of this," said a Justice Department official."

We'll be discussing our views of the implications of Malvo's statements today on CNN's TalkBack Live around 3:10 pm Eastern Time.

A new film could bring justice to the case of Emmett Louis Till, "a 14-year-old black Chicagoan who was kidnapped, mutilated and brutally murdered while visiting relatives in Mississippi in 1955."

Two men who admitted abducting the boy were acquitted of his murder. Despite riots over the incident, no one was ever held accountable. Now, due to a new documentary by 31-year-old Keith Beauchamp, the case could be reopened.

There will be a private screening of the film, "The Untold Story of Emmett Louis Till," on Nov. 16 at the New York University Cantor Film Center. An expert panel will discuss the case following the viewing.

Beauchamp grew up in Lousiana and when he was 10 or 11, he found a picture of the mutilated body of Emmett Till. He has been obsessed with the case ever since, spending the last six years filming and tracking down witnesses.

The trial took place in Tallahatchie County which at that time only had all white juries even though the population was two-thirds black.

"In the minds of many Mississippians in 1955, a black man could justifiably be lynched even for looking at a white woman. Emmett was tortured and killed for allegedly "wolf whistling" at Mr. Bryant's wife, Carolyn, a storekeeper in Money, Miss. One of the tragedies of this case is that the so-called "wolf whistle" was probably a misunderstanding. Emmett had a speech impediment. When he got stuck on a word, he would stop speaking and abruptly whistle, as a way of untangling his tongue."

"Over the last several decades, Hollywood has turned away even famous producers who wanted to bring this story to film. As an unknown, working quietly on his own, Mr. Beauchamp has succeeded where others have failed, casting new light on a crime that many thought would remain forever unpunished. The information in this film could conceivably change that, allowing law enforcement officials to achieve justice at last for Emmett Louis Till. "

Much has been written about the Virginia prosecutors assigned to the Sniper case. Here is a profile of Peter Greenspun, appointed by the Court to represent John Muhammed. Here is a profile of Michael Arif, lead counsel for 17 year-old John Lee Malvo.

A Pentagon plan for invading Iraq, should the new U.N. arms inspection effort fail, calls for a land, sea and air force of up to 250,000 troops. Bush has approved the plan, but not yet directed its implementation.

Gary Hart, whose name has been bandied about as one who possibly is seeking to enter the presidential race sweepstakes, which would be his first attempt at elected office since his failed 1988 bid, had this to say about the invasion of Iraq this week:

"Hart argues that a U.S. invasion of Iraq will likely result in 5,000 to 10,000 American casualties and more Middle East chaos than ever, leaving the homeland even more vulnerable to terrorist attacks. He advocates U.S.-led inspections of Iraq accompanied by powerful international military escorts to ensure compliance and the dismantling of any weapons of mass destruction."

Two California three-strikes cases were heard by the Supreme Court last week. Decisions are expected in the spring. One of the cases involves Leonardo Andrade, who received 50 years in jail as a punishment for stealing $153.00 of videos for his children to watch. Andrade has already served seven years for his shoplifting episode and will be 87 before he is due for release.

Families to Amend California's Three-Strikes is an organization out to repeal three-strikes laws, which they call "a shameful and current blot on California history." We are in complete agreement.

Their website is chock full of interesting links and information. For example, check out these 150 horror stories of three-strikes offenders. As the organization points out, "these likely only scratch the surface in demonstrating the injustice of this law. For instance, we do not receive letters from prisoners who are illiterate, cannot read English, many who are mentally disabled, those who have not heard about us, those who have heard about us but choose not to write us, and those who have committed suicide or died in prison."

As an example, take Steven Bell, who is serving 35 years to life for taking a bike out of a garage.

The site also has a serious compilation of reasons to oppose three-strikes laws, culled from the media, court opinions and other resources. Among those you can read about in detail on the site are:

Economic Reasons
Better Alternatives
Inhumane/Unjust
Applied Disproportionately to Minorities, Poor and Particular Counties
Caused by Counterfactual Fear and Vengeance
3-Strikes Focuses on the Poor, But Ignores Crimes of the Rich
Caused by Politicians who Follow the Mob (or Even Incite It)
Violates Double Jeopardy
Retroactive Application Makes It an Ex-Post Facto Law
Will Result in an Increase in Crime
Will Result in an Increase in Innocent People Being Forced to Plead Guilty
The 3-Strikes law is one of the government's ultimate intrusions into people's freedoms.
The 3-Strikes Law Incorrectly Legitimizes the Use of Violence
Even Before the 3-Strikes Law, The U.S. and California Were Among the Greatest Incarcerators in the World
Caused by Increased Social Construction of Criminals as Evil Monsters
3-Strikes Fallacies

Laurence Steinberg, Distinguished University Professor of Psychology at Temple University, makes some excellent points in his op-ed piece in today's Washington Post, Judging a Juvenile Killer:

"The Supreme Court has held that the death penalty is unconstitutional for people who are under 16 at the time of their offenses. Currently, only 22 states permit the execution of juveniles -- and in practice, only seven have executed juveniles since the death penalty was reinstated in 1976. Half the states that permit capital punishment allow for the execution of juveniles, and 40 percent of states that permit capital punishment allow the execution of juveniles as young as 16. To those who say that 16 is old enough to know better, it is worth pointing out that in virtually every other area of the law, we treat 16-year-olds as if they are inherently less mature than adults."

"Malvo is not the best poster boy for repeal of the juvenile death penalty. But ongoing research on the links between brain maturation and psychological development in adolescence is beginning to explain why adolescents are not as capable of planning, or as thoughtful and self-controlled, as adults and, more important, why these deficiencies may be inherent to being an adolescent. It is true that the science is a long way from providing a definitive answer to the question of where we should set the age boundary for adult criminal responsibility. But executing juveniles puts the United States in rare company: The only other country that is still committed to the execution of juveniles is Iran. Until the data are in, we should join the rest of the world and prohibit the execution of people under the age of 18."

Don't miss this Baltimore Sun editorial today, Virginia is for Killers?, expressing fear that Ashcroft is on some kind of "bizarre and unchecked crusade" in deciding the accused snipers should be tried in Virginia first based upon the the greater likelihood the death penalty will be imposed there.

"The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantánamo Bay, Cuba, administration officials say."

"They said the proposal to shut down the civilian prosecution of Mr. Moussaoui, the only person charged in an American court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable."

This is another end-run around justice. The White House and the Pentagon are making up the rules as they go along. They are afraid, as we predicted they would be months ago, that they will have to make Ramzi bin al-Shibh, arrested in Pakistan months ago and held in secret detention ever since, available to Moussaoui to interview. Moussaoui's Indictment is replete with references to bin al-Shibh as a planner of the Sept. 11 attacks. He could have critical information that would show Moussoui was not involved in the September 11 attacks. While Moussoui has admitted in Court that he is a member of Al Qaeda, he has insisted from the beginning that he had nothing to do with the attacks. We think the information revealed to date supports his position.

Rumsfeld and the military think it would be better to drop the federal action, move Moussaoui to Guantanamo Bay, Cuba, and try him under Bush's proposed military tribunal rules. Moussaoui, as a non-U.S. citizen, may be subject to such proceedings.

We believe the Moussaoui case has been mishandled since the beginning. As Seymour Hersh posited in an excellent New Yorker article back in September, Moussaoui should have been treated as a witness, not a defendant.

We stated then and continue to believe that:

"... what if the Government has to choose between Moussaoui and Binalshibh? Binalshibh seems to be far more critical to the Government in terms of his being able to supply information about the attacks. Moussaoui has been nothing but a thorn in the Government's side since his case started."

"Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all."

"Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other detainees."

Back to today's New York Times article:

The Pentagon and the C.I.A. prefer to keep suspected terrorists in isolation and subject to interrogation, without access to defense counsel.

"Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Mr. Moussaoui would be able to prevent the administration from moving him to Cuba."

"A decision to abandon the Justice Department's case could create a predicament for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide whether they had any standing to continue to represent him and whether they wanted to try to keep him from being transferred to military custody."

"Criminal defense lawyers not associated with the case suggested that the court-appointed defense team might try to press Judge Brinkema to block Mr. Moussaoui's transfer until the federal courts decided the constitutionality of the government's use of the "enemy combatant" designation for Qaeda figures."

"The issue has been the subject of a variety of court challenges since Sept. 11, most prominently in a case involving the Justice Department's efforts to deny a lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan and is being held incommunicado in a Navy brig in Virginia."

Frank Durnham, the Federal Defender in Virginia who serves as one of Moussoui's standby counsel, said the dismissal of the federal case will be a win for Moussaoui and that there may be nothing the defense can do to thrwart the move from federal court to military tribunal. We don't see how it could be a "win" if the result is that Moussoui will be tried in a tribunal with far fewer rights than those accorded in a federal court trial.

Meanwhile, Moussaoui's mental health is again at issue. His mother is pressing for a new psychiatric examination. "Every time I see him, he is deteriorating — getting worse and worse," Mrs. el-Wafi said, speaking through an interpreter. "He can't think rationally. He doesn't talk rationally. He keeps saying, `I am going to be out very soon.' "

Instapundit doesn't think much of Cass Sunstein's op-ed piece on Bush's renewed vigor to fill the federal courts with conservative judicial activists. I thought Sunstein's article was uninspired, at best.

I do agree with Sunstein that conservative judicial activists extremists pose a threat to the Constitution because the Constitution is a living and breathing document which can be viewed as ambiguous or open to interpretation in some instances. Stacking the courts with judicial activists extremists will provide some judges with too much power to impose their views of what the Constitution means.

Far better reading is today's New York Times Editorial, Defending the Judiciary, which is not only more on target than Sunstein, but offers some solutions as well.

We are pleased to see the New York Times in an editorial today, Justice, Hollywood Style, adopt our long held position on the Winona Ryder trial:

"Anywhere else, this petty crime by a first-time offender would have quickly ended with a plea bargain. The prosecutors, of course, made high-minded statements about the need to prove no one is above the law. But the truth is that in the great Hollywood tradition, this clunky script was green-lighted simply because a big star's name was attached."

We hope the Times is right in concluding:

"Ms. Ryder, who is not expected to do jail time, could benefit most of all. Although some producers may steer clear of a convicted felon, the trial could well revive a slumping career. "The town is behind her," one casting agent told USA Today after the verdict came in. "She's even more sought-after now." Which gives Ms. Ryder's tale the most essential Hollywood quality of all: a happy ending."

Update: We also found these interesting biographical details about Ms. Ryder in Sunday's Sydney Morning Herald of all places, in article aptly called Winona Steals The Show But Poor Dad Leon Does The Time by Duncan Campbell, reporting from Beverly Hills.

"Ryder has always been an unconventional soul. Born Winona Horowitz near Winona, Minnesota, she is the daughter of the archivist to Timothy Leary, the writer and LSD exponent who was also her godfather. Allen Ginsberg was a family friend. She was studying acting by 11 and did her first film at 15. She picked up Oscar nominations for both The Age of Innocence in 1993 and Little Women the following year. "

Mr. Duncan compares Ms. Ryder's likely shoplifting penalty to that received by Leonardo Andrade in California. Andrade, whose case is up for review by the Supreme Court, received 50 years for stealing $153 in videotapes for his children to watch. It's no wonder the civilized war looks at our penalty structure with utter bewilderment--on everything from petty shoplifting to the death penalty for juvenile offenders and the mentally ill, to jailing drug possessors, we have catupulted our justice system into the realms of outer space.

Gail Davis expands on our comment about Ashcroft's choice of Virginia as the venue for the first trial of the accused snipers, "This is not how the American justice system is supposed to work":

"Yes it is. This is the Bush and Ashcroft version of justice. They decide guilt and punishment. They use psychological torture. Constitutional protections are just an inconvenience to be gotten around. "

"The Supreme Court may have put Bush in office, but the 2002 election results will have convinced Bush et al that their view of the world has been unanimously confirmed. "

"This is it, ladies and gentlemen. Hope you like what you have wrought. Hope you are right in your faith that you would never be picked out by the police as a suspect for something you didn't do. Interminable interrogations. Light burning 24 hours in your little cell. Judges who delay you access to a lawyer. Enjoy!"

Eric over at The Hamster lives in Hawaii and offers his thoughts on the newly elected Governor Linda Lingle, including this:

"What makes me think she'll be moderate is her past record and her knowledge of Hawaii. She knows Hawaii is a Democratic state and will never be a Republican stronghold so she'll concede a lot to Democratic positions in order to make ground (she did that when she was mayor of Maui), so I don't foresee a huge difference in governing. Lingle's election isn't a black eye at all for the Hawaii Democratic Party since they already had two black eyes going into the election."

And a big thanks to Eric who in the same post linked to TalkLeft and referred to us as "the Left's leading legal blog."

We've been reading and linking to Hamster every day since it was a news service in its pre-blog days and are very glad, but not surprised, to see it has become such a leading progressive voice.