Monday Night Open Thread

R.I.P. Richie Havens.

Federal defenders in Tsarnaev's case filed a motion this afternoon asking that two experienced death penalty lawyers be appointed as co-counsel with them. Federal law provides that in any case with the potential for the death penalty, the defendant is entitled to "learned counsel". Here's the motion. They cite the Jared Loughner and Eric Rudolph cases. Judy Clarke's phone must be ringing off the hook. (She represented both Loughner and Rudolph as well as the Unabomber -- and was also part of Zacarias Moussaoui's team.) If she'd agree, it would be the biggest break Tsarnaev could hope for. When it comes to saving a life, there's no one better. The New York Times had this profile of Judy in 2011 during her representation of Loughner. [More...]

This doesn't mean the U.S. will seek the death penalty --- that decision is probably months away. Under federal law, every defendant charged with a crime that carries the potential for the death penalty is entitled to two lawyers, at least one of whom must be "learned" in capital cases.

§ 3005. Counsel and witnesses in capital cases

Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours. In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization, or, if no such organization exists in the district, of the Administrative Office of the United States Courts.

If indigent, learned counsel will be appointed upon being charged. It's not necessary to wait until the Government files its notice of intent to seek the death penalty. Here's a case from the 1st Circuit (which includes Mass.):

In this case, we are asked to construe language in 18 U.S.C. § 3005 (2000), providing that following the indictment of the defendant on a capital crime, the court "shall promptly, upon the defendant's request" assign two counsel "of whom at least 1 shall be learned in the law applicable to capital cases...." We conclude that "promptly" means promptly after indictment, not (as the government asserts) only after the Attorney General has made a determination to seek the death penalty.

There is no set limit on the number of attorneys that can be appointed to represent a defendant in a capital case.

In related news, Police say Dzhokhar Tsarnaev indicated to authorities the brothers acted alone. They believe the motive was "religion."

< Boston Bombing Suspect Charged and Advised, Counsel Appointed | Tuesday Morning Open Thread >
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    As I commented earlier (5.00 / 2) (#2)
    by Peter G on Mon Apr 22, 2013 at 09:50:04 PM EST
    Tonight I feel like a motherless child.  On the other hand, here comes the sun.

    The Woodstock Generation is goin' home... (5.00 / 2) (#3)
    by Mr Natural on Mon Apr 22, 2013 at 10:12:41 PM EST
    Folk music still moves me like nothing else.

    Generally... (none / 0) (#15)
    by kdog on Tue Apr 23, 2013 at 08:04:31 AM EST
    more a blues and rock guy, but Richie sure rocked the f*ck outta his folk. Bombastic acoustic...and that voice.  Raw Power.

    One American icon I wish I had gotten around to see live...you snooze you lose.


    Ohhh, I remember so well those songs (5.00 / 3) (#4)
    by Towanda on Mon Apr 22, 2013 at 10:20:16 PM EST
    and "All Along the Watchtower" and more at an unforgettable concert in my locale by Havens, well before Woodstock.  So the crowd was small, all of us within only a few feet, almost in a circle around him.  I could feel the old wooden floor shake with every stomp of his foot, a thousand times that night, and every magical strum -- as no one could strum -- seemed to reach straight into my core.  

    His strum and his voice reached every corner of the room at some times, at top volume -- and then, with the next line, he could cut to a whisper.  Or he could bellow with controlled anger at some times and then chuckle with humor at others.  A remarkable, understated, stage presence at all times.  

    He was overdue for fame and crowds of thousands, when they finally heard him at Woodstock. R.I.P., Richie Havens.    


    Pleased that my original 1967 copy (5.00 / 1) (#16)
    by Peter G on Tue Apr 23, 2013 at 08:49:30 AM EST
    of Richie Havens' debut recording, "Mixed Bag," is still quite playable.  One of the best albums ever, so far as I am concerned.  

    My mom played that album for me... (5.00 / 1) (#18)
    by Dadler on Tue Apr 23, 2013 at 10:54:54 AM EST
    ...when I was little. I think his music, and lots of music from the 60s and 70s is implanted in the subconscious regions of my screwy brain.

    I've always enjoyed his (5.00 / 1) (#11)
    by desertswine on Tue Apr 23, 2013 at 12:08:10 AM EST
    version of "The Great Mandala" with Peter Yarrow. Sometimes you can still see it on PBS when they're fundraising. He was a great singer with a great message.

    That song (none / 0) (#23)
    by TeresaInPa on Tue Apr 23, 2013 at 07:44:09 PM EST
    can still bring me to tears.

    What else counts as learned? This site! (5.00 / 2) (#5)
    by andgarden on Mon Apr 22, 2013 at 10:30:39 PM EST
    I haven't seen that motion anywhere else. And it's just one example. Thanks Jeralyn.

    I'd love to see a shorthand version of how Federal Sentencing works in capital cases (it's difficult enough to explain in other contexts).

    thanks for appreciating it! (5.00 / 1) (#8)
    by Jeralyn on Mon Apr 22, 2013 at 10:49:47 PM EST
    I hate that mainstream media is so stingy with publishing the actual documents in cases, or puts them inside those boxes making them hard to read.

    Plus, I'd much rather read the actual document than a reporter's description of it, so I figure readers would too.

    Miss seeing you around here, Andgarden, hope you are doing well.


    Absolute pet peeve of mine (none / 0) (#9)
    by andgarden on Mon Apr 22, 2013 at 11:12:48 PM EST
    is when a news article announces a legal decision but gives you no way to read it. Scribd isn't much better. PDF please!

    I've been doing well thanks, but I've been busy. Mostly with civil litigation, but also a dash of criminal defense: I even wrote a sentencing memo for a CJA defendant in E.D. Pa. The Judge sentenced substantially below the mandatory minimum. But I can't claim credit: the client had a supportive family show up and he was credible himself. Plus the AUSA was very helpful.  


    Saving a life (5.00 / 1) (#6)
    by Dadler on Mon Apr 22, 2013 at 10:41:54 PM EST
    None is being save here, IMO. This guy will spend the rest of his days, if they don't execute him, basically in solitary and will lose his mind, however slowly or quickly it occurs. The truth is, neither "punishment" has much to do with life at all. One is a quick death, the other a slow one. Same result basically. Same reason I believe there is never justice in murder cases, simply because you can't bring back the dead. But glad to see he's not already hooded and headed to Gitmo.

    Am I right in believing that any trial ... (5.00 / 0) (#10)
    by Donald from Hawaii on Mon Apr 22, 2013 at 11:32:35 PM EST
    Jeralyn: "If indigent, learned counsel will be appointed upon being charged. It's not necessary to wait until the Government files its notice of intent to seek the death penalty."

    ... of Dzhokhar Tsarnaev has to be held in the Commonwealth of Massachusetts, unless one side or the other petitions the court for a change of venue?

    Capital punishment was declared unconstitutional in Massachusetts over thirty years ago, and the last execution in the Bay State actually took place back in 1947. I'm not at all convinced that MA citizens necessarily agree that the death penalty is an appropriate response to a capital crime such as this one.

    To wit, while it would be one thing for prosecutors to seek the death penalty in federal court, it just might be another thing entirely to convince a jury of Bostonians to go along with the idea of executing a teenager for the Marathon bombing, even if the crime did happen in their city.

    Hawaii and Massachusetts have long been considered the two most liberal states in the country. I can really only speak for public opinion out here, but the overwhelming majority of island citizens -- regardless of whether their political orientation happens to be D or R -- are very much opposed to the concept of capital punishment, which was formally abolished in 1956, when the islands were still a U.S. territory. The last execution in Hawaii took place in 1944, when these islands were held under martial law during the Second World War.

    We've had two federal death penalty cases tried out here since I've lived in Honolulu. I know personally that in one of those murder trials, jurors told the judge in no uncertain terms during their deliberations that they would refuse to convict the defendant unless both he and prosecutors first agreed that capital punishment would be taken off the table. It was, and they did.

    And in a third case involving a Marine who killed a fellow Marine in Kailua, our city prosecutor subsequently refused to release jurisdiction over the defendant to federal authorities after initially agreeing to do so, because the U.S. Attorney -- who was a Republican from the mainland -- said that he would seek the death penalty in the case. The federal judge upheld our prosecutor's contention, and ruled that because the crime occurred on civilian ground, the state held primary jurisdiction even though both defendant and deceased were military personnel.

    (There has long been a tacit understanding dating back to the time of the 1900 Organic Act that because of the large presence of U.S. military forces in the islands, crimes involving U.S. military personnel would be transferred to federal or military court, rather than prosecuted in territorial or state court, although that's obviously not always the case. In not a few instances back in the first half of the 20th century, it was not at all uncommon for military personnel accused of murdering locals -- in one instance, a Honolulu policeman! -- to not be prosecuted at all for their crimes, after jurisdiction over their case was handed to military courts martial.)

    I freely admit that I have no idea how Massachusetts residents feel overall about the concept of capital punishment, but it really wouldn't surprise me if their thoughts were not unlike ours, given that we're practically ideological soulmates.

    Your thoughts, Jeralyn? Knowing your own views on capital punishment, and were you the defense counsel in this case, how would you feel about a prosecution motion to change the venue to, let's say, Virginia?


    The same thing happened (none / 0) (#13)
    by jbindc on Tue Apr 23, 2013 at 07:45:50 AM EST
    in Michigan in 2010, where there was a federal death penalty trial of a man accused (and later convicted) of killing an armored car guard.  Since Michigan was the first English-speaking government in the world to abolish the death penalty (for ordinary crimes) in 1846 and outlawed it for the crime of treason (in the mid 20th century), there have only been a handful of federal death penalty cases in the state since statehood, so not only are jurors in unfamiliar territory, so are court personnel when it comes to this topic. But they manage to do it, regardless.  Jurors (from what I have seen) tend to take their oaths pretty seriously to follow the law, and if they swear they can fairly consider a death sentence (if brought), then they will do just that.

    I'm not sure how easy it would be to move it from Mass to Virginia (in your example), since they are in two different circuits. Obviously, the defense attorneys would have better insight.


    There was a recent - within the last couple years (none / 0) (#14)
    by scribe on Tue Apr 23, 2013 at 08:00:15 AM EST
    - case in the First Circuit involving a Rhode Island defendant.  The defendant was charged in RI and proceeding in state court, but the US Atty wanted to gobstomp in and charge him capitally.  Governor Lincoln Chaffee refused to give the defendant over to federal custody because the people of Rhode Island had outlawed capital punishment.  IIRC, he even barred the feds from coming into the jail where the defendant was.  The feds went to court to compel Rhode Island to surrender the prisoner so he could be prosecuted capitally.

    The feds won.

    You might think Mass. is a really liberal state where capital punishment is wrong and therefore not going to happen.  You would be wrong.  You'll get guys like Mikey from East Boston (a cousin of Vinnie from Bensonhurst) or the working-class characters in "The Town" and "Good Will Hunting" who will have absolutely no problem with executing a defendant, especially one like this defendant.  If you were listening to the coverage last week during the manhunt, even Barney Frank was on the tube saying he had absolutely no problem if this defendant came to a quick, bad end at the hands of the police.  Or, for that matter, look at the response David "Big Papi" Ortiz got.


    Senator Gillibrand via Twitter: (none / 0) (#1)
    by CoralGables on Mon Apr 22, 2013 at 09:47:10 PM EST
    Kirsten Gillibrand        ✔ @SenGillibrand

    Thank you Pres. Obama for inviting all the women Senators to the White House for dinner tomw night. Looking forward to it!

    i am glad to know that we (none / 0) (#7)
    by TeresaInPa on Mon Apr 22, 2013 at 10:42:28 PM EST
    make sure that anyone facing the death penalty gets the best defense lawyer they can get with experience fighting against the death penalty.  The lawyer you speak of previously defending some cases where the defendant was to my mind clearly insane.  I don't think Tsarnaev is insane at all. So I hope no one tries to use that as a defense.  However I don't believe in the death penalty.  I think it is grotesque and barbaric.  
    IMO, this kid was, in addition to being a whole lot of things that were not good, a victim  of his own brother's crazy brand of effed up Islamic extremism.  It was low on theology and high on lies and self appointed victim-hood.

    Agreed (none / 0) (#19)
    by Slado on Tue Apr 23, 2013 at 10:58:13 AM EST
    He should spend most of his adult life in jail if not all of it.

    While I'm sure his brother pushed him in this direction he was an adult and should have said no when it came to killing people.

    As with all murders it is usually a sad story all around.


    Let's actually, you know, TRY him first ... (none / 0) (#20)
    by Donald from Hawaii on Tue Apr 23, 2013 at 01:54:16 PM EST
    ... before a jury of his peers and gain a conviction, before we start talking about locking the door and throwing away the key. We still don't know the entire story yet, and we have no idea whether or not the defendant was coerced by his prother into participating, or whether he was the instigator, or whatever.

    Well, (none / 0) (#22)
    by jbindc on Tue Apr 23, 2013 at 02:13:02 PM EST
    At least an impartial jury, since that's all that's technically required by the Constitution. (In America, we have adopted "a jury of one's peers" to mean "a representative cross-sample of the population") :)

    Here's a fun little fact:

    A more difficult question is whether "impartial" means "disinterested." It is interesting to note that "partial" is derived from the same Latin root as is the word "peer." Etymology alone proves nothing, yet there is some irony in speaking not only of an impartial jury but also of a jury of peers. A plunkish etymological argument is that it is inconsistent to require a jury to be impartial and then also require it to be made up of peers, since by a strained etymology "notpartial" means "not peers."

    good jb..but what does that mean? (none / 0) (#24)
    by fishcamp on Tue Apr 23, 2013 at 08:08:03 PM EST
    That (none / 0) (#28)
    by jbindc on Wed Apr 24, 2013 at 07:39:35 AM EST
    The US Constitution does not say anything about a person being entitled to "a jury of one's peers". It says a person is entitled to an "impartial jury", which courts have interpreted to mean "a random cross-section of the community."

    Technically, a jury of his peers could be 19 year-old college students, or males, or people of Russian descent, or people from Chechnya.  Or more technically, a  jury of "peers" would be of the upper class, such as the "peerage" in England, which we don't have.


    I can't imagine (none / 0) (#27)
    by TeresaInPa on Tue Apr 23, 2013 at 08:19:34 PM EST
    how they are going to find an impartial jury.  I would disqualify myself immediately.  

    we do know (none / 0) (#26)
    by TeresaInPa on Tue Apr 23, 2013 at 08:16:44 PM EST
    that he is going to be tried.  I don't think anyone is suggesting anything else.  But I also don't think you have to be a rocket scientist (Jimmy Carter) to figure out how this all went down.  There is no doubt in my mind the older brother was the instigator.  I'll be happy to eat crow if I am wrong.

    you're right (none / 0) (#25)
    by TeresaInPa on Tue Apr 23, 2013 at 08:12:34 PM EST
    he's an adult. He is responsible for his actions. But I also know from experience that an older sibling can be a powerful influence well in to adulthood even when you don't realize the influence they are having.  

    He really isn't an adult though (none / 0) (#29)
    by Militarytracy on Wed Apr 24, 2013 at 08:42:31 AM EST
    As far as frontal lobe development is concerned.  For men, that may not fully develop as late as 26.  Legally he is an adult, brain function and impulse control is a different story.  As much as we would like a mass birthday to indicate that your decision making and impulse control is now fully developed, that just is not the case.

    Not that I know what to do about it and how that pertains to this person or "should" pertain to them.