Saturday, October 23, 2010

Restorative justice in Oakland-another view.

A friend of mine has taken restorative justice training in Oakland, California-a city so infested with criminals of every stripe that people are willing to try any remedy no matter how sketchy.

Here's the response I might have made, had I the disrespect to embarrass her on facebook. I like her a lot better than that.

I was trained as a mediator by the Iowa Mediation Service and I have also observed the practice of restorative justice in action. There are legal rights and responsibilities afoot that I am painfully aware of because of my training in my day job that many people I trained with, being drawn from the clergy and the field of social work are only dimly aware of.

I have defended and prosecuted a number of people in the 17 years I have had a law license. I have also seen compulsory mediation used to bludgeon parties into a settlement, most often one that strips women of their legal rights in dissolution of marriage proceedings-because of the dimly perceived set of legal rights and responsibilities I mentioned.

In the main, we do not throw away lives involved in criminality of a violent kind-they do it to themselves, just as a reasonably intelligent mouse who knows the dangers of the mousetrap because he's heard of it from other mice who may have survived nevertheless makes a run at the cheese on the pan. Some mice go in for bravado and some use finesse and they both manage to pull it off a few times which gives them the mistaken notion that they can repeat the process indefinitely. By the time the mice face the cat, they've already compiled a body of experience and folklore that makes the entire reclamation project problematic-they've already succeeded and think they can do it again if they con the rest of us-which they also know that they can do.

People who practice the criminal arts, in the main, are good examples of Jeremy Bentham's principle in action-they'll sacrifice anything and anyone for pleasure and they'll do anything and everything, no matter how dishonest, to avoid punishment. That means they'll lie to you, to me, to their attorneys and counselors, their parents if they've got em, and always to the cops whose job it is to protect saps like you and me from people like them.

A case we heard about took place in Texas. A man had assaulted and murdered a woman, he was convicted and sentenced to prison, and a restorative justice proceeding was instituted, conducted by a social worker. As part of that, the murderer had to describe in detail what he'd done to the victim's father.
And so he did but it occurred to the father of the victim that the criminal was describing not the murder of his daughter, but the murder of another woman entirely. The proceeding had been videotaped, and that later formed part of the evidence that solved a cold case because the murderer was so dismissive of the rest of us-no matter how well meaning- that he couldn't even bother to keep his victims straight.

Friday, October 15, 2010

Supremes Clarify Heemstra rule

State v. Millbrook, no. 07-0309 (Iowa Sept. 17, 2010)

This recent decision's gone a long way toward clarifying the felony murder doctrine as modified in State v. Heemstra. If you recall, when the predicate felony is merged into the homicide, it cannot serve as the predicate felony that triggers the felony murder rule,

Confused? Read on.

Millbrook was convicted in The Kingdom of Scott of felony murder in which a nineteen year old bystander was killed. Here's what happened.

On the evening of August 19, 2006, an outdoor party was in progress at which the victim, Vincelina Howard, was attending. Parenthetically, the Howard family is no stranger to law enforcement in the Quad Cities and one of their members had recently been sentenced to the whole megillah for various offenses.

A minivan rolled by and the occupants opened fire. Vincelina was struck by a bullet and died shortly thereafter.

Millbrook had attended a memorial earlier that day for one of his friends who had been killed in a drive by shooting. Together with fellow travelers Bogan, Lobley, and White, they set out to find one Stevie West, who, it was thought, had been involved in gunplay in Rock Island. Spotting West on the bridge, they followed him to the vicinity of the Howard family party.

The door of the minivan slid open and all four occupants fired their weapons into the crowd.

Millbrook and the others were apprehended and Millbrook was convicted under a felony murder theory. Millbrook argued for reversal in light of the Heemstra decision wherein it was found that the predicate felony (in that case, willful injury) must be separate and distinct from the act that caused the victim's death. Millbrook argued that the crime of intimidation with a dangerous weapon merged into the homicide.

Evidence that Millbrook opened the door to the minivan and that White reached across and opened fire supported the theory that Millbrook aided and abetted White's crime before he had opened fire himself.

The takehome's clear. The conduct of the offender must be carefully examined for potential independent criminal liability that can serve as the predicate felony so as to avoid the application of Heemstra.