Monthly Archives: October 2014

Jail House Snitches Lie

jailCellWe all know jail house snitches are of a lowly character that can’t be trusted.  When I was a NY federal prosecutor, I would never think of using one in the grand jury or on the witness stand in a criminal case.

However convincing the rat, however seemingly useful the testimony to make your prosecution, you had to worry that you were being had – so that the snitch could get what he wanted, some consideration on his sentence, favors to ease his custody, or funds and rewards for his commissary or outside bank account for “cooperating.”

Often the jail house snitch seemingly offers “inside information” on what the target of your investigation said about an offense while the target was in jail, in the yard, at the sally port, by his cell, “admitting” to some aspect of the case you’re pursuing that helps you “make” your case.

These mimetic monsters absorb small and large details from an unwary or reckless prosecutor’s questions and weave a story that “fits,” that helps make a conviction possible in a difficult case where the prosecutor may feel he’s suffering an evidential shortfall.

Our criminal justice system is hardly perfect to begin with but taking one of these snitches and adding them to the mix of a jury trial is to infect an already challenged process with an ingredient you almost certainly know is flawed.  Yet it happens all too often that prosecutors use these snitches at trial in capital or murder cases.

Another challenging aspect of any criminal prosecution is how you use accomplice testimony, meaning someone who was involved in the crime, who “flips,” and agrees to testify for the government in exchange for some consideration on the charges he’ll face or the time he’ll spend in custody, from probation to fewer years than if he took his chances at trial.  You can appreciate how risky it is to shore up an accomplice’s testimony with a jail house snitch.

We will likely be having court arguments, even evidentiary hearings with prosecutors and investigators testifying, so that the court may decide whether a jail house snitch lied at a first degree murder trial in Loudoun County that resulted in a conviction on June 16, 2014, and a jury recommendation that the Accused be imprisoned for life.  Continue reading

Smaller is better – for learning

smallschoolWho really thinks that large factory size schools where principals and teachers carry walkie-talkies to manage the place are better than small schools with fewer students in each class room?

If you’ve ever taught a class, or attended one, you know you can give or get more attention in a smaller class, and it’s hard for any son or daughter to get lost or hide from the teacher’s attention when the class is smaller.

We all know what drives the super-sized school is the uncontrolled residential development that, these days, burdens all manner of resources including whether our aquifers can continue to supply enough water for all the wells that will be necessary to serve the residential deluge as yet unbuilt.

We have folk, mostly elected, who rattle the budgetary sabre, threatening to close the small legacy schools, running them down, slandering them – in my opinion.

It’s a test of political wills, to see if the political class can cauterize the right-minded impulse of communities and parents who prefer that small schools educate our young.

What’s the proof that small schools are better? Continue reading

America has a heart!

marriagestickfiguresWhen a friend wants something you don’t understand, you respect your friend’s choice.

It may not be true of everything but, when it comes to personal relations, we really should err on the side of support and approval for a friend.

If we can’t support and approve, we should at least be tolerant of another’s choices even when our personal religious belief contradicts our friend’s choice.

Same sex marriage has been in dispute a long time, and is often rightly compared with the offensive intolerance once legally visited upon mixed racial couples.

The federal and state courts have almost uniformly found any state prohibition of same sex marriage to reflect a private moral view that advances no legitimate government interest, and that violates an individual’s constitutional right to marry regardless of gender.

I expected that the Supreme Court would leave this constitutional issue to the states and the lower federal courts unless there was a split in the lower federal court decisions.  Justice Ruth Baden Ginsburg seemed to be saying the same thing at a public forum when she commented that the three federal appeal courts considering the question were in agreement.

The Supreme Court foreshadowed its disapproval of any gay marriage ban when it threw out a federal law that refused benefits to same sex couples.

On October 6, 2014, the Supreme Court therefore found somewhat unsurprisingly no reason to give a hearing to lower court decisions in agreement — that the U.S. Constitution guaranteed the right to same sex partners to marry.

The U.S. Supreme Court, by refusing to hear cert petitions from several “agreeable” federal circuits, thus affirmed the lower court decisions, legalizing same sex marriages in Virginia (Rainer v. Bostic, McQuiqq v. Bostic, Schaefer v. Bostic), Wisconsin (Walker v. Way), Indiana (Bogan v. Baskin), Utah (Herbert v. Kitchen) and Oklahoma (Smith v. Bishop).

The Supreme Court’s tacit approval of these appellate court holdings likely means states in those same federal circuits will approve same sex marriage – and that includes Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina.

On Friday, October 10, 2014, sure enough, a North Carolina federal judge, Max O. Cogburn, Jr., from Asheville, did just that; he struck down the state’s ban on gay marriage as unconstitutional, even though the ban had been approved by the voters in 2012.  Judge Cogburn said: “This issue before this court is neither a political issue nor a moral issue.  It’s a legal issue.”  Sheriff Deputies, Chad Biggs, 35, and Chris Creech, 46, were among the first wed after Judge Cogburn’s ruling.

On Friday, October 10, 2014, the Supreme Court denied a stay to a federal appeals court decision that granted freedom to same sex couples to marry in Idaho.  Idaho officials in favor of the ban argued to the high court, a little too much in the court’s face, if you ask this litigator, that, if they meant to signal approval by the Supreme Court of gay marriage, they should deny the stay.  The Supreme Court denied the stay.

In Leesburg, Virginia, where we make our law offices, Carla Rhoads and Cindy Losasso, a couple for 16 years, got their marriage license and reportedly were the first gay marriage in Loudoun County.

America has found the heart to approve same sex couples and – here in Virginia – we can now truly say – “Virginia is for lovers!” – for all lovers.

Lock that digital back door

banksafeIt’s time to lock that digital back door to your private information to defend against the government’s unrestricted intrusion on what was once presumed to be the safe and easy bit and byte beltway that we call the Internet.

You may not think to lock the doors to your country home until there’s a burglary or home invasion in your neighborhood.

We enjoyed that open country door freedom on the Internet until the sobering disclosures more than a year ago by former CIA computer specialist, Edward Snowden.

Snowden has since made it crystal clear that, if you’re not encrypting what your communicating, your information is likely flowing by the petabyte into NSA’s multi-million dollar data-devouring Super Cray Computer, once called “the Black Widow.”

Since the disclosures, the President, the NSA, and the Congress have lacked the resolve to discourage the government’s uninhibited surveillance of us, its citizens. Continue reading

Is intolerance a disability?

Diana Flannery on stage with “A Place To Be.”

Diana Flannery on stage with “A Place To Be.”

“I know I have a learning disability,” said Diana Flannery, my daughter.

“I have to organize my thoughts before I speak,” said Diana, “So I stutter.  Sometimes I don’t.”

“I think fine but I hear some people say, and I can hear them say it, that I’m stupid.  I don’t know what to think of people like that.”

“I know I’m in good company, others deal with disabilities, and many help.”

The Good Book says to remove the obstruction from your own eye before judging another.  After all, who among us is perfect, physically or otherwise?  Yet intolerance abounds.

Is intolerance a moral disability? Continue reading