The New York Times agrees with us that John Lee Malvo, the 17 year-old accused sniper, should not have been questioned without his guardian present. See, Mr. Malvo, Juvenile:

"The government's disregard for Mr. Malvo's juvenile status was dramatically illustrated last week, when police interrogated him for seven hours outside the presence of his court-appointed guardian. Todd Petit, the lawyer appointed to serve as a stand-in for Mr. Malvo's parents, asked the police to stop, but they continued, and ordered Mr. Petit to leave police headquarters. It makes a mockery of the institution of guardianship for the government to appoint a guardian and then prevent him from being present for an interrogation that could lead to his ward's execution."

"....The Bush administration has already indicated it does not think the Constitution should apply in terrorism cases. Now it seems to be saying that if a crime is sufficiently notorious, time-honored legal protections for juveniles should be abandoned. But this nation is strong enough to prosecute criminals, internal and external, without giving up its principles."

The Daily Rant has started a discussion on last night's violent Sopranos episode. He warns, however, as do we, don't go there if you didn't see the show, he describes it in detail as do we in the comments section.

We are in the process of upgrading to MT 2.51 and experiencing some technical difficulties. We'll be back as soon as possible, so keep checking back.

Update: All seems to be working now except the search engine which we've taken off line until we can iron out the bugs.

A special thanks to Jim Capozzola at Rittenhouse Review for these very kind words about us today. (His permalink isn't working or we'd just send you there instead of reprinting.)

~~~~~
"If Jeralyn Merritt of TalkLeft knows so much about crime and criminal law, how come she’s not a ten-most-wanted criminal mastermind by now? Or is she? Just kidding. I’ve learned more about the law from Merritt, online and off, than I have from any other resource I’ve met, or encountered rather, online or off."

Thanks, Jim!

Martin Wisse has started Progressive Gold, a weblog reprinting the best of us leftist bloggers' posts on a daily basis. He got the idea from Nathan Newman's post on Why Blogs Matter, modified it a bit, and says:

"This new weblog is a first attempt at realising his vision, though somewhat differently from what he intended (for now). What I intend to do and will invite others to join me in, is to create a daily "Best of the Progressive Blogosphere" linklist. Each entry will consist of a single paragraph from the story linked to and a link to the story. That's all. There won't be any commentary, no expounding on what's happening in the world, no big thesises. Just links to the progressive blogposts you need to read today."

We like it. Martin would like Progressive Gold to be a cooperative effort, in the spirit of Blogcritics, or more like a e-magazine. If you'd like to participate, email him at proggold.cloggie.org.

Every day we are more appalled by the leaks of untested information coming from "unnamed officials" about the evidence in the sniper case. Yesterday the media cooperated with the leakers by printing supposed confessions by 17 year old John Lee Malvo. Today, two high-ranking law enforcement sources say Malvo admitted shooting a 13 year old boy as part of the alleged killing spree.

All of the courts in the states in which these two defendants have been charged need to slap a gag order on the prosecution now. We haven't seen such audacious leaks since the Oklahoma bombing case. The leaking mostly stopped once Judge Matsch issued a gag order. The media appealed the gag order to the Tenth Circuit, and lost.

The disclosure and dissemination of purported confessions and details of the investigation indicate a lack of self-restraint and a lack of an ethical compass by those responsible. It's up to the prosecutors to control their agents and "senior officials." The media needs to exercise restraint as well. Trials must take place in courtrooms, not living rooms, and the media's complicity in and furtherance of the lynch-mob mentality is shameful.

While courts can restrain parties to a case, their court staff, and individuals operating under their direction and control (such as police and investigators), they have far less power over the media. But if the others don't leak to the media, the media won't have the information to disseminate.

In Judge Matsch's "gag order" in the McVeigh case, reported at 931 F. Supp. 756 (D.C. Colo. 1996), here's what he proscribed:

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.