It’s Killers, not Jurors who Inflict Cruel, Unusual Punishment

An op-ed writer, unlike a sitting judge, can assume that a defendant will be found guilty.

I am doing precisely that to make my points.

Two nurse practitioners, Sister Margaret Held and Sister Paula Merrill, “the sweetest, most gentle women you can imagine” were found knifed to death in their rural Holmes County Mississippi home on Aug. 25.

Their life’s work was to provide flu shots, insulin and other medical care for children and adults who couldn’t afford it. Sister Paula had served the poor of the county for 30 years. Their Lexington clinic provided about 25 percent of all the medical care in the county of 18,000. “They’d help anybody they could help. They’d give you the shirt off their backs.”

The stark reality is this: These two nuns were deprived of life and liberty without due process of law. Their murderer arrogated unto himself the offices of prosecutor, judge, jury and executioner. The nuns were provided no attorneys. They were not allowed to confront nor cross-examine their accuser in open court. They received no trial consistent with the law of the land. They were executed in a summary fashion. For them: no fair trial; no appeal; no constitutional rights.

Now Rodney Earl Sanders has been arrested and charged with two counts of capital murder. It appears Sanders was released from prison in December 2015 after serving nine months for a felony driving under the influence conviction -- as per the Mississippi DOC. Their records are said to show that he also did prison time from the mid 1980s to early 1990s for armed robbery.

If Sanders is indeed prosecuted, all the rights he denied to Sisters Margaret and Paula will be lavished upon him. And if the prosecutor seeks the death penalty, and if Sanders is convicted and sentenced to death, a phalanx of lawyers and other “enlightened individuals” will trip over themselves to ensure that Sanders escapes the death penalty.

They’ll argue the death penalty is “too random.” That one murderer escapes the death sentence while the next murderer gets it. They will call any method of execution, “cruel and unusual punishment!”

When his case gets to the U.S. Supreme Court, it would be heard by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonja Sotomayer and Elana Kagen -- “progressive” judges who are certain that their own notions of “cruel and unusual punishment” are superior to those of the men who wrote and adopted our Constitution.

Sander’s appeal would afford them one more opportunity to abolish the death penalty -- not withstanding the fact that the men who wrote the Constitution specifically acknowledged that the state could impose the death penalty, as long as trial was pursuant to indictment, and due process was accorded the defendant.

Do not misunderstand me. I do not believe that the death penalty is appropriate in every murder case, or even in this case. But in some cases, the FACTS of the case justify imposition of the death penalty.

And because whether the death penalty should be imposed is preeminently a “fact question,” and since juries (not judges) determine questions of fact under our Constitution, the question of whether the death penalty is appropriate in light of all the facts of the case is a question for ordinary citizens and not judges (government functionaries).

A 12-man jury brings 12 different judgments to all the great issues: Can the murderer be rehabilitated? Will imprisonment adequately protect the public? Is death proportionate to defendant’s offense? Will life deprecate the enormity of the murder? Considering the facts, Is death deserved?

The people of the U.S., of course, can amend the Constitution to abolish the death penalty. But the notion that judges can effectively declare two express provisions of the Constitution unconstitutional, is nothing more than judicial fiat, judicial usurpation, and judicial misconduct.

If the facts are as alleged, it seems to me Sanders is an excellent candidate for any usual form of execution. His sentence will be far less “random” than the death penalties he imposed upon his victims. And perhaps because I presided over so many jury trials, I’ve come to trust juries more than I trust judges.


Posted: QCOline.com September 9, 2016

Copyright 2016, John Donald O'Shea

It’s Killers, not Jurors who Inflict Cruel, Unusual Punishment

An op-ed writer, unlike a sitting judge, can assume that a defendant will be found guilty.

I am doing precisely that to make my points.

Two nurse practitioners, Sister Margaret Held and Sister Paula Merrill, “the sweetest, most gentle women you can imagine” were found knifed to death in their rural Holmes County Mississippi home on Aug. 25.

Their life’s work was to provide flu shots, insulin and other medical care for children and adults who couldn’t afford it. Sister Paula had served the poor of the county for 30 years. Their Lexington clinic provided about 25 percent of all the medical care in the county of 18,000. “They’d help anybody they could help. They’d give you the shirt off their backs.”

The stark reality is this: These two nuns were deprived of life and liberty without due process of law. Their murderer arrogated unto himself the offices of prosecutor, judge, jury and executioner. The nuns were provided no attorneys. They were not allowed to confront nor cross-examine their accuser in open court. They received no trial consistent with the law of the land. They were executed in a summary fashion. For them: no fair trial; no appeal; no constitutional rights.

Now Rodney Earl Sanders has been arrested and charged with two counts of capital murder. It appears Sanders was released from prison in December 2015 after serving nine months for a felony driving under the influence conviction -- as per the Mississippi DOC. Their records are said to show that he also did prison time from the mid 1980s to early 1990s for armed robbery.

If Sanders is indeed prosecuted, all the rights he denied to Sisters Margaret and Paula will be lavished upon him. And if the prosecutor seeks the death penalty, and if Sanders is convicted and sentenced to death, a phalanx of lawyers and other “enlightened individuals” will trip over themselves to ensure that Sanders escapes the death penalty.

They’ll argue the death penalty is “too random.” That one murderer escapes the death sentence while the next murderer gets it. They will call any method of execution, “cruel and unusual punishment!”

When his case gets to the U.S. Supreme Court, it would be heard by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonja Sotomayer and Elana Kagen -- “progressive” judges who are certain that their own notions of “cruel and unusual punishment” are superior to those of the men who wrote and adopted our Constitution.

Sander’s appeal would afford them one more opportunity to abolish the death penalty -- not withstanding the fact that the men who wrote the Constitution specifically acknowledged that the state could impose the death penalty, as long as trial was pursuant to indictment, and due process was accorded the defendant.

Do not misunderstand me. I do not believe that the death penalty is appropriate in every murder case, or even in this case. But in some cases, the FACTS of the case justify imposition of the death penalty.

And because whether the death penalty should be imposed is preeminently a “fact question,” and since juries (not judges) determine questions of fact under our Constitution, the question of whether the death penalty is appropriate in light of all the facts of the case is a question for ordinary citizens and not judges (government functionaries).

A 12-man jury brings 12 different judgments to all the great issues: Can the murderer be rehabilitated? Will imprisonment adequately protect the public? Is death proportionate to defendant’s offense? Will life deprecate the enormity of the murder? Considering the facts, Is death deserved?

The people of the U.S., of course, can amend the Constitution to abolish the death penalty. But the notion that judges can effectively declare two express provisions of the Constitution unconstitutional, is nothing more than judicial fiat, judicial usurpation, and judicial misconduct.

If the facts are as alleged, it seems to me Sanders is an excellent candidate for any usual form of execution. His sentence will be far less “random” than the death penalties he imposed upon his victims. And perhaps because I presided over so many jury trials, I’ve come to trust juries more than I trust judges.


QCOline.com September 9, 2016

Copyright, John Donald O'Shea

The Pope's Message: Will Minds Change?

Pope Francis spent much of his time in the U.S. speaking on the need to welcome immigrants, protect the environment and help the poor.

Regarding his speech to Congress, The Huffington Post writes, "In his wide-ranging 3,404-word address ... the pope called for action to protect refugees, eliminate capital punishment and stop war, yet used a mere 21 words to allude to abortion and only 54 to touch vaguely upon the fact that same-sex marriage is now legal across the United States.

"On abortion, the pope’s comments were tucked into a larger discussion on the the Golden Rule, which 'reminds us of our responsibility to protect and defend human life at every stage of its development.' But he did not say the word 'abortion.'

"On marriage, the pope had a few more words. 'I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.'"

So why is the pope calling upon the U.S. to accept more immigrants?

According to a 2013 U.N. report, "Trends in International Migrant Stock: The 2013 Revision," immigrants form 14.3 percent of the U.S. population.

They compose no more than 4.8 percent of any other country's population; 19.8 percent of all the world's immigrants reside in the U.S. No other country has accepted more than 4.8 percent of the world's immigrants. The pope's home country, Argentina, has accepted 0.8 percent!

There are 45,785,090 immigrants in the U.S. No other country has accepted more than 11,048,064 immigrants.

And why is the pope telling the U.S we must do more for the poor? Is there any other country that presently does more? In the U.S., we have Social Security and Medicare for the aged. We have Social Security Disability and Medicare or Medicaid for the disabled.

We have the Supplemental Nutrition Assistance Program for the "poor." (A family of one with a maximum annual income of $15,301 is eligible, as is a family of four with a maximum annual income of $31,525.) We provide free K-12 public school education for every American child, and special education for disabled children. We provide unemployment insurance for those who lose their job. HUD helps apartment owners to offer reduced rents to low-income tenants to make affordable apartments available for low-income families, the elderly and persons with disabilities. HUD also provides the Section 8 vouchers to allow those with low incomes to pay for all or part of their rent. And nearly half of those (47 percent) who report income pay no federal income tax!

Is the plight of the "poor" in the U.S. more dire than the plight of the “poor" almost everywhere else in the world? If so, why do we have 45,785,090 immigrants? Why are Mexican and Central American immigrants pouring into this country? And why aren't people leaving the U.S. to live in Mexico, Russia or Ethiopia?

And why is he lecturing America on the need to be good stewards for the environment? Haven't we cleaned up the Great Lakes? Can you recall a time when raw sewage was dumped into our rivers? Don't we now have tertiary treatment? Can you remember driving through Gary, Ind., when smog continually hung over the city? Is that the case now? I can remember when some cars got seven miles to the gallon, and spewed exhaust. By 2016, won't American cars and light trucks have to average 34.5 mpg?

Would America be a better place if we immediately ceased heating and cooling our homes with fossil fuels?

In our courts, once the judge determines the witness to be an "expert,” that witness can give his opinion  on the ultimate issue in the case without stating facts that form the basis of that opinion, e.g., "I think Dr. X was guilty of malpractice when he removed Mrs. Y's appendix.” But what good is that opinion without setting out the facts that form the basis of that opinion? "Mrs. Y only wanted him to remove a wart on her big toe!"

So what will be the long-term effect of the pope's words?

When a pope addresses matters that traditionally are within the realm of "faith and morals," it is there that the pope is most authoritative — even for those who reject his infallibility. But when he speaks on quantum physics, absent a showing that he has a background in quantum physics, he lacks credibility. Similarly, his background as a bishop in Argentina in no way qualifies him as an expert on the U.S, our capitalist system or our immigration practices.

Of course, he may be utilizing material prepared for him by experts. But absent a showing of the expertise of his experts, it is entirely reasonable to discount the pope in areas such as biology, physics, chemistry, geology, economics and U.S. history.

Indeed, many of the same people who extol the pope's genius when he speaks on immigration and the environment would label him a "Neanderthal" when he speaks on things on which he should have expertise: abortion, contraception and traditional marriage.


For those reasons, I believe the pope's message will be largely forgotten or ignored within the week. Those who are opposed to "open borders” will remain opposed. Those who believe "God helps able-bodied people who help themselves" will continue in that belief. And those who believe "global warming" to be a scam will conclude the pope is out of his element. Meanwhile, the killing will go on in the Middle East, and in the Planned Parenthood clinics.

Posted: Friday, October 23, 2015 11:00 pm  QuadCitiesOnline

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Death Penalty: What of Innocent Victim's Right to Life?

The U.S. Conference of Catholic Bishops, writing of "Human Life and Dignity," tells us, "As a gift from God, every human life is sacred from conception to natural death. The life and dignity of every person must be respected and protected at every stage and in every condition. The right to life is the first and most fundamental principle of human rights."

I do not quarrel with the proposition that the right to life is the most fundamental principle of human rights. But when I am told that life is sacred or precious, the lawyer within me asks, what does that mean?

During his recent speech to Congress, Pope Francis called for global abolition of the death penalty:

"Every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes."

But if  that is so, what justification did the police at Oregon's Umpqua Community College have in engaging in a shootout with the gunman who had just murdered 10 people there, and who would have murdered far more had the police not intervened?

Wasn't the gunman's life sacred before, after and during his murder spree? Wasn't he "endowed with an inalienable dignity" during commission of each murder? By what right did police interfere? Would it not have sufficed to remind the gunman he was in a Gun-Free Zone? Shouldn't the officers have used non-lethal force to take him into custody?

A 26-year-old man has a life expectancy of 51.4 years. Unless paroled, at $50K per year, his "rehabilitation" will cost society $1.3 million.

Consider the following scenarios:

-- Gunman X walks across the campus at Augustana College, shooting and killing everybody in sight. When Rock Island Police officers arrive, the gunman shoots at them. Can the officers use deadly force to stop the killing spree? Can an officer use deadly force to prevent himself from being shot? Or does the gunman's "inalienable dignity" and the fact that his life is "sacred" mean that his person is inviolate from the officer's use of deadly force?

-- The Iranians finally develop a nuclear weapon. They are intent on wiping Israel off the map. Each Iranian's life is "sacred," and each Iranian is "endowed with an inalienable dignity." Can Israel launch a pre-emptive strike and kill Iranians to prevent its own extermination, or must Israel accept nuclear destruction, and await the eventual "rehabilitation" of the Iranian state and its people?

-- Would the Jewish people have been justified in using deadly force to assassinate Hitler and other Nazi leaders prosecuting the Holocaust? Were Hitler, Himmler and others all endowed with an "inalienable dignity?" Were England, the USSR and the USA wrong to make war on Hitler and his allies?

I can accept the proposition that every person is born with an "inalienable dignity." I also can accept the proposition that no man or government can take away an innocent man's "inalienable dignity." And I accept the proposition that "the right to life is the first and most fundamental principle of human rights." But if human life is truly sacred, and worthy of protection, then there must be some mechanism or mechanisms to protect it.

As the Jews were being exterminated during the Holocaust learned, prayers and papal teachings did not do the job.

I would, therefore, posit a fourth proposition: "A man himself can forfeit his own dignity and his right to life by taking or making war on innocent life."

A man who employs deadly force against the innocent, invites use of deadly force against him. That can be either force used in self defense or in defense of others. Without the right of self-defense and the right to defend others, the right to life of the innocent is illusory, and is alienable at the whim of every prospective murderer, school shooter, or would-be Hitler or Stalin.

I have never been in favor of applying the death penalty in all cases of murder; but in some cases, like St. Thomas Aquinas, I believe it is justified and indeed necessary and proportionate.

Assume that the Umpqua murderer, had been taken alive, convicted and imprisoned for "rehabilitative" purposes. If he thereafter murdered two prison guards in an effort to escape and attack the next community college, the death penalty to me would seem reasonable, necessary and proportionate.

The death penalty should remain disfavored, but available.

If a home owner or a police officer can use deadly force to defend his own life, based on an instantaneous judgment, without a trial and appeals of any sort, it seems bizarre that a state cannot impose the death penalty after a fair jury trial and the innumerable appeals that follow -- if the sentence is reasonable, necessary and proportionate.

If a nation can enter a "just war' and kill millions without anything in the nature of a trial, why can it not execute a murder after an fair trial and appeals which demonstrate the fairness, necessity and proportionality of the sentence?

And for those who don't know, death sentences are reviewed with the strictest scrutiny known to the law.




























Posted: Tuesday, October 13, 2015 11:00 pm QCOnline.com
By John Donald O'Shea

Copyright 2015
John Donald O'Shea