According to this article in the Richmond paper, the jurors in the John Muhammad sniper trial were unaware of Virginia law on jury deadlocks. During deliberations on Friday (early in the process), the jurors apparently reached an impasse. They asked the judge what would happen if they could not reach a verdict. The judge told them nothing.

Well, more accurately, he didn't tell them the truth: In Virginia, if the jury in the sentencing phase of a capital trial deadlocks between life (without parole) or death, the default is life (without parole). Some states don't do this, and force everyone to go through a whole new sentencing phase with a new jury, but not Virginia.

And here's the worst part -- the judge told the jury they had to be unanimous (or at least that's the impression the jury got). As for a death verdict, that's true, but the Supreme Court has been clear that the jury does not have to be unanimous for a life verdict. In other words, one juror could have hung the jury and saved Muhammad's life.

That's why the fact that the only other alternative is life without parole is so important for the jury to know. Would the jury have hung if it knew that Muhammad would never get out of jail? We'll never know. But one of the jurors said, "I do think it is deceptive. I don't think it would have changed the verdict, but it would have been less stressful knowing the facts."

Making a (literally) life-or-death decision should be stressful. But it should also be an informed decision. Based on what I've read, the judge here didn't give the jury some pretty crucial information.

My guess is, though, that this will all turn out to be academic. At most, a reviewing court might say that the judge erred, but that the error was "harmless." Maybe if the court had real qualms about the new terrorism law Muhammad was prosecuted under, it could use the jury instruction issue to punt the case back for resentencing. However, I'd say there's almost zero chance Muhammad won't be executed.

Check out this analysis of Bush's first attack ad in slate. (Note also how early it's coming.) Bush complains about Democrats "attacking the President for attacking the terrorists." There are just so many things wrong with this ad, and not enough time to list them, so just read the story.

I think the authors have an interesting point that it might be a sign of desperation on the part of Bush, because he knows he's going to be vulnerable on how he has managed the after-war in Afghanistan and Iraq, plus his reasons for going to Iraq in the first place. So, he makes up this ad essentially saying, despite all evidence to the contrary, that Iraq and al-Qaeda are the same thing, and our reason for going to Iraq was "terrorism."

Finally, I am happy to see what I think is a proper use of the term "begging the question":

This ad is a blunt instrument, but one sly element is the way it begs the question of whether the attack on Saddam Hussein is part of the campaign against terrorism.

See? The ad assumes the conclusion it hopes to prove: that the war in Iraq was necessitated, even justified, by concerns about terrorism. Nice. George Bush, question beggar.

Let me mention here that I'm not saying we might not have been justified in going to war in Iraq, or that post hoc rationalizations aren't permissible here. What I am saying is that the war wasn't sold to the American people as part of the war on al-Qaeda (in fact, there was a lot of grumbling that we were leaving that unfinished), and that even if it was, it was done without evidence. Bush's ad conflates everything, and then implies that the Democrats are as bad as the terrorists. Classy. What a noble way to run a campaign.

This story from the Big Fork Eagle is truly strange. Horse owners near Big Fork, Montana have been encouraged by local authorities to keep a close eye on their animals after two recent incidents of horse theft and "victimization." The perpetrator is apparently still at large but he is missing his cowboy boots.

Maybe he should look into the online dating scene instead of running around northern Montana naked in the middle of November "victimizing" horses. Thanks (?) to the Corner for the lead.

I was reading a case today about sanctions against an attorney for continued rude conduct against the judge and other attorneys. She was accused of using "gutter language" during depositions, and she wrote a letter to the local paper attacking the judge for incompetence and bias. Then, she asked the judge to recuse himself because he would naturally be biased against her because of this pretty vicious letter. The judge, properly, said that a lawyer can't manufacture a bias claim like that.

But the part that really got to me was that she had served subpoenas on all of the judge's colleagues, and all of the law clerks to all those judges. I'm not exactly sure what my reaction to getting a subpoena would be, but I’m afraid I might need these. The case I was reading is here. The subpoena story is from a case cited therein. Thanks to Howard Bashman at How Appealing for the lead.

We're working on building the blogroll in the right column. Clearly, we like more than those few sites. Also, we're going to get around to writing a bit more about ourselves soon. As for substantive content, I've been thinking about a couple of things. One is this whole mess involving electronic voting machines. I'm really worried that these things will fail miserably in 2004, leading to all kinds of headaches and litigation (there's already been some). Conspiracy theorists will be pleased to know that the CEO of Diebold, the leading producer of touch-screen voting machines (they’re big in ATMs now), is a huge George Bush supporter. I'll try to get more on that out soon. Finally, I'll try to answer the question whether Democrats really want the economy to tank (in order to ferment opposition to Bush), which, as far as I'm concerned, is like asking if Republicans really want another big terrorist attack (in order to promote support for Bush, like we had after Sept. 11).

I'll admit I've given some thought to online dating from time to time. I haven't had a date in a while, and online dating has certainly become more socially acceptable. This is a really good article about the whole online dating "scene" from Sunday's New York Times Magazine.

One reason I don't do it is simply that I don't have a digital camera, and to do well on these sites, you have to have a picture posted. Another is that it seems like "resorting" to going online is a move of desperation. It's kind of the same reason I have never been to the movies in the theater alone (for me, it’s a social event, and going alone says I don't have any friends), or why I've never worn sweatpants out in public in a situation where normal people wear pants (to me, once you do that, you’ve given up).

In fact, the author notes that several people told her they saw "the bar scene" as the only possible alternative to online dating. I'll leave for another time what that says about our society, if there really aren't any ways for young(ish) single people to interact outside of smelly, loud bars. But apparently these people see online dating as something of a last resort, or at least a next-to-last resort. But on the other hand, the author talks to people who have met "soulmates" and people who have so many dates they have to keep track of them on a spreadsheet.

I think another problem is that I don't think I make the best first impression on women. Or perhaps more accurately, I move quickly into "the friend zone" and we all know there's no escape from there. And computer dating, to me, is really the illusion of intimacy. I'm not much of an impulse buyer, and I don't think an online commercial for a person could sell me either.

However, there comes a point where biology trumps philosophy. So, if someone can help me out with the picture, I may take the leap. I'll keep you posted on my progress.

According to this post in National Review Online’s The Corner, a FOX News poll says that 45% of Americans would rather spend Thanksgiving with George Bush, as opposed to 35% with Hillary Clinton. The Cornerite expresses surprise that the margin isn’t wider.

I think Republicans make the same mistake about Hillary (I’ll use her first name to distinguish her from her husband) that Democrats do about Bush. (Of course, I’m generalizing terribly here.) They think that everyone hates her/him as much as they do. The big mistake the Democrats appear to be making in the 2004 race is giving the nomination to someone based on anger at Bush instead of sound policies. I can very easily see the Republicans doing the same thing in 2008 – assuming that people will feel the same visceral hatred of Hillary that they do.

In fact, Hillary has a pretty good shot at winning, given the Electoral College system. She has proven she can win New York. Does anyone think she would lose California? Add in a few other states Clinton and Gore won, and pretty soon it gets close to 270 votes. And just as Howard Dean’s “I’m mad at Bush” campaign won’t win, neither will a “Hillary’s a bitch” campaign in 2008. Republicans underestimate her at their own peril.

Now, the really fascinating question is how Hillary feels about the 2004 race, whether she would accept a draft, whether she would serve as a running mate, or whether she (not so) secretly wants the Democratic nominee to lose, making her the “titular head” of the party. Well, who else would it be? Tom Daschle? Nancy Pelosi?

In response to my John Edwards post below, a reader raises two issues (see the comments for his thougtful response).

First, I’m constrained to agree that Bush will be quite difficult to beat in 2004. As for “wasting” Edwards here, one problem is that he has said he won’t run for re-election to the Senate. So, if he loses (either at the top of the ticket or as the veep nominee), what is he supposed to do for the next three years? For reference, I wondered what Adlai Stevenson did between 1952 and 1956. I found this description here:

"After the election, Stevenson continued to play a large political role as titular leader of the Democratic party. He traveled widely, spoke frequently, and criticized the Eisenhower administration vigorously. He maintained that the administration was weakening the vital Western alliance and not doing enough to promote economic development and to combat communism."

Well, Edwards won’t be the “titular head” of anything. Maybe Al Gore really is done with politics, but if not, he certainly hasn’t kept himself in the public eye too well. Any suggestions for what Edwards could do to prepare for a 2008 run? And would he be able to get the nomination over Hillary Clinton?

Second, this kind of dovetails into our reader’s comment about the one-and-done nature of presidential politics. Again, Stevenson is a counter-example, and of course Andrew Jackson is another.

But you have to go back to Richard Nixon in 1968 to find someone who was a losing nominee before (1960) but came back to win. (Ronald Reagan sought the nomination in 1976 but didn’t get it.) In fact, Nixon is the only one I can think of from the whole twentieth century (someone please correct me if I’m wrong).

I think part of this is that the parties, especially the Republican party, have tended to give the nomination to the person who is “next,” like, say, Bob Dole. There is also the natural notion that the failed candidate has had his (gender-specific pronoun chosen purposely) chance. If he didn’t win the first time, it is seen as the country rejecting him. Who wants to vote for a loser?

Another issue is money. The failed candidate has a lot of debts to pay off, and will face a tough time raising money in the future. And the failure can trickle down to all kinds of things, like that candidate’s patron in the national committee getting ousted, which would make it harder for the party establishment to come around a second time.

But I think it’s a good point. One thing a lot of politicians could learn is humility, and little provides it like losing.

Also, if this turns out to be a “name recognition” campaign for Edwards, it will invite comparisons to John Kennedy, who did much the same in 1956. If only he had something to do until the next election. Too bad he can’t write a Pulitzer Prize-winner!

These gorgeous ladies are well worth your time. For my money, NFL cheerleaders are the only really interesting or entertaining aspect of pro football. But as far as the game is concerned, give me college ball any day.

Thanks to Jason H. for bringing their site to my attention.

I've already caused some controversy with my BCS-related post here. I'll also point to this piece from slate about the bowl system. I agree with it.

UPDATE: I thought of this when I first read the article, and then forgot until Pancho reminded me, that the slate story uses the phrase "begs the question" in exactly the way that peeved me enough to start this whole enterprise:
"For that matter, there wasn't an odds-maker in the country who didn't seem to think that the Wolverines wouldn't beat the Buckeyes by at least seven points, which begs the obvious question as to why the BCS, the New York Times, USA Today's Jeff Sagarin, and others whose rankings systems are included in the BCS ratings would go to such elaborate lengths to elevate Ohio State." (emphasis added)

Despite this, I still agree with it. I'd be happy to receive any examples of this error from the major media, by the way. I'll be on the lookout.

No, not "T" turkey. The bird. This summer, I was given a turkey fryer by my father-in-law. I am planning to use this device to fry a turkey for Thanksgiving. I tell you this because I am on the hunt for injectable turkey marinade recipes. I would prefer something homemade over some mass-produced high-fructose corn syrup concoction. Thus, I invite any reader who has suggestions or recipes (hopefully from past personal experience) to leave a comment to this post. No ideas are too boring or outrageous for consideration.

If no one is willing to assist me, then I will just have to go it alone - my fallback recipe will likely consist of melted butter, garlic, herbs, and Louisiana hot pepper sauce (but not in a 1:1:1:1 ratio).

Thanks in advance.

I commend to you Chris Hitchens's latest piece for Slate which, in trying to explain the Istanbul synagogue attacks, confronts the reality of jihadism, both pre- and post-September 11. That reality is that “the large majority of those murdered by Islamic holy warriors have not been Europeans or Americans as the term is usually understood.” Rather, Hitchens points out that “the current jihad is still waged chiefly against Muslim states and societies and, as Istanbul proves, not just against dictatorial ones.” Click here to read the whole article.

He wasn’t, but in case you hadn’t heard, John Edwards’s was. That fact is mentioned three times in a brief bio on the official Edwards campaign page.

I think Edwards still has a shot at winning the Democratic nomination. Howard Dean will win New Hampshire and Iowa, but Edwards will win South Carolina. Eventually the race will have to coalesce into Dean v. Somebody. If Edwards can make a decent showing elsewhere on the first big primary day, why not him? Realistically speaking, Edwards is probably a better bet for the veep nod, but if the nominee ends up being Dean, won’t that be the strangest pair since at least Reagan-Bush? And after the whole Confederate flag flap, won’t it look like the worst kind of pandering on Dean’s part, and the worst kind of flip-flop from Edwards?

By the way, some of my conservative friends think Edwards’s past a trial lawyer is some kind of black stain on his soul, or at least something voters won’t like. And I’ll agree that in the abstract a lot of people have negative thoughts about “trial lawyers” when you make them sound like “ambulance chasers.” But when people get hurt, often one of the first calls they make is to a lawyer. Now, maybe that says something about our culture of entitlement or something. People don’t like taxes in the abstract but they sure do like the idea of “free” drugs. (By the way, check out the photo in that link. Jim Jeffords’s head is framed by the Capitol’s rotunda, and he looks positively beatific. Jeffords in a halo = liberal media bias?) (By the way, the fact that the Senate got more than sixty votes against two efforts to derail the Medicare bill shows that filibusters can’t hold up against truly bipartisan, mainstream measures....unlike certain judicial nominees.)

Anyway, back to Edwards. It’s not something Edwards talks about, but his 17-year-old son Wade was killed in 1996 when his SUV was blown off the road by strong winds and then flipped over. The incident is mentioned at the beginning of a Washington Post profile of Edwards you can read here. As the author notes, if there was someone to sue over this, surely Edwards was the man to do it. But he didn’t. Now, I think Edwards is right not to try to capitalize politically on this obviously life-altering tragedy (it is widely believed that wade’s death was the reason Edwards got into politics in the first place), but I wish more people knew about it. It’s an interesting character study. But if Edwards were to get the nomination, and the Republicans trotted out a bunch of anti-lawyer ads, we could expect to see ads full of people in wheelchairs or people who have lost children or something, telling us how John Edwards cares about “regular people” like them.

And, I’d like to see him rip into George Bush in a debate.

I’m a big college sports fan. (The pros, eh, not so much.) So, as the college football season winds down, I’ve been doing some thinking about the BCS brouhaha. A lot of people are agitating for a playoff. But way too many people are pushing for a half-step to a full-fledged playoff like the lower divisions have. The idea is that, after the four BCS games, two or four teams would then have a playoff.

This is dumb, and here’s why. Let’s assume the favorites win out, and the top four teams, in order, are Oklahoma, Southern Cal, LSU, and Michigan. Let’s further assume that Michigan and LSU play in different bowls and both win. In the “championship” game, let’s say USC beats Oklahoma. Then what? We’d have USC, Oklahoma, and LSU all with one loss, and Michigan (and a few others) with two. Which two teams should play in a two-team playoff? If you have a four-team playoff, why shouldn’t Texas or Tennessee or Georgia or Ohio State or someone be in it? There is always going to be controversy over the last team in/out, just like there is with the NCAA basketball tournament, and just like there was when two polls decided everything.

Now, let’s assume Oklahoma wins out, but USC and LSU lose. Then we’d have one undefeated team and several two-loss teams. Why in the world should Oklahoma have to play one of them to call itself national champion? And if one of those two-loss teams were to beat Oklahoma, why should a two-loss team be considered champion over a one-loss team?

I’m not sure what scenario people advocating this mini-playoff have in mind. I don’t think there is any perfect system (and to be fair, the mini-playoff folks haven’t said their idea is one). But I think a mini-playoff is even less perfect than the system we have now. It seems like a classic case of planning for one event, but not thinking out the contingencies.

I love the basketball tournament – the upsets, the unusual matchups, the attempt to cram as much basketball as possible into a weekend, the whole thing. But the thing that makes Division 1-A college football so great is that the whole season is the playoff. Every game counts so much. Michigan wouldn’t be in this position if it had taken care of business early in the season. It has no one to blame but itself. Had it won its games, like Oklahoma, we wouldn’t even be having this discussion. Could the BCS system be improved? Sure. But the answer isn’t a do-over after the bowl season.

In a half-hour or so of television-watching tonight (well below my usual), I saw four commercials for cell phone companies in which they made a big deal out of our new ability to keep cell phone numbers when we change services. A new law allowing cell phone number portability took effect today, and these guys are all over it. There was even a news promo promising more coverage of this important development tonight at 11:00. I guess the whole impetus for the new law was a widespread desire for portability, but it got annoying fast.

Also, in a half-hour or so of listening to the radio tonight, I heard two ads for diamond jewelry. ('Tis the season, indeed.) I’m going to have a post soon about dating, so I won’t get into this here. But it was pretty annoying too.

I wish I were still in law school. I really enjoy my work (more than most people have a right to, I imagine), but my worst day in law school was better than my best day in the real world. Well, expect for getting paid, that is. Maybe that’s why I eventually want to teach: I could get paid and hang out in the law school all day.

Anyway, if I were back in law school, right about now I’d be getting worried about exams. This sobering thought was triggered by reading this opinion from the California Supreme Court. Thanks to Howard Bashman at How Appealing for the pointers here and here. It’s a wonderful exam-question-type case. The issue is whether the felony-murder rule applies when one accomplice accidentally kills himself while committing the crime. Here, three guys burned up a truck for the insurance money. One of them lit himself on fire and eventually died. So, could the others be charged with felony murder?

I had a bad experience in Criminal Law (both input and output), so I don’t really understand the felony-murder rule. But this is a very interesting decision. Ultimately, the court held that the rule does apply when the defendant was at the scene (distinguishing some old arson-for-hire cases) and the act that led to the death was in furtherance of the underlying felony. Here, that was lighting the fire. Some older cases had language that could have been interpreted to say that the murder had to be the act in furtherance of the crime – like killing a witness or a policeman attempting to stop the crime. So it wasn’t an easy case, and I could see a professor having fun with it on an exam.

Now here is a case that is no fun. Thanks to Ken “The Hammer” Lammers at the CrimLaw blog for the pointer. The issue here is whether the fairly new Virginia law criminalizing possession of a gun on school grounds requires scienter. The court held that it didn’t, because the statute didn’t specify a requisite mens rea. The policy in Virginia is that, unless the legislature abrogates it, the common law of England at the time of ratification is the law of Virginia. At common law, the court said, all crimes were strict liability crimes. So, the only question under the new Virginia law is mere possession. Ken comes up with a few not-too-impossible scenarios, such as a student trying to get a teacher in trouble by hiding a gun in the teacher’s purse or briefcase. The teacher wouldn’t be able to say he or she didn’t know the gun was in there – possession alone is enough. Even trying to stop a Columbine-style attack wouldn’t be a defense to having a gun at school. As Ken points out, most prosecutors probably wouldn’t bring charges in those cases, but as he rightly argues, we shouldn’t have to count on prosecutorial grace to save us from bad case law. And after all, a prosecutor brought charges in this case, where an art teacher apparently forgot the gun was in her bag when she took it to school. Again, even if she honestly didn’t know the gun was in there, she’s guilty. Rough justice in Virginia.

Gentle readers of this blog will be pleased to learn that the official launch of Begging the Question is planned for the very near future. Until then, please feel free to navigate the site and leave any comments regarding any technical issues or the color scheme in the comments section of this post.

Stay tuned. You will not be disappointed.

Welcome to the blog. I guess the easiest way to fill this space is the tired literary device of an imaginary question-and-answer session. If you have one and it isn't here, feel free to make the session less imaginary by emailing us.

Q: Can something be "less imaginary"? Either it is imaginary or it isn't, right?

A: Quiet, you.

Q: Why "Begging the Question"?

A: I had been thinking about starting a blog for a while, but one of the biggest drawbacks was that I would have to come up with a name. Recently, in several places within a short span, I saw someone commit one of my biggest pet peeve grammar mistakes. They used the phrase "begs the question" essentially literally. That is, they meant, "raises the question" or "suggests the question." Of course, that's not what it means. "Begging the question" is the logical fallacy of assuming the conclusion of your argument.

Anyway, I got sufficiently peeved about this and decided to use the phrase as the name of my blog. Having made that decision, the rest was easy.

Q: Blogs are just a waste of time. I don't like to waste my time. Therefore, I won't read your blog.

A: That's not a question, but it is a good example of an argument that begs the question.

Q: So your blog is just going to be a compendium of common grammar and logic mistakes?

A: Heavens no. That would be a waste of time. In fact, I can pretty much guarantee plenty of both on our part here. It's going to be fairly unstructured, more or less our thoughts on whatever moves us to write. I'll start what is sure to be a trend: stealing from other bloggers. One of my favorite blog names is Life, Law, Libido. I don't read it as often as I should, but I think that name sums up the kind of things you can expect to see here, if you read "libido" to mean anything that stirs our passions.

Q: You say "we" and "us" a lot. Are you being pretentious or are there really more than one of you?

A: Probably both. There are two of us writing here for now, although we will consider offers to join up. Both of us are lawyers. I (Milbarge) work for one of the federal courts of appeals, and Fitz-Hume works for an administrative law judge. We were classmates at law school, and now reside near each other on the east coast of the United States. I'm from a small Appalachian town, and Fitz-Hume is from Texas originally. Fitz-Hume is doing most of (read: all) the code and technical stuff, and I'm probably going to end up providing most of the content because I don't have a life to spend my time on.

Q: Why Milbarge and Fitz-Hume?

A: We decided to use aliases for professional reasons. Neither of us expects to have to defend this blog at a confirmation hearing, but it's just easier to avoid the appearance of impropriety. We decided on "Fitz-Hume & Milbarge" from the classic 1985 Cold War spoof "Spies Like Us." I will note that the Foreign Service Board cheating scene clearly shows that Austin Milbarge is a lefty, by the way: Check him out writing the answer to Emmett Fitz-Hume's question, "What does KGB stand for?" Anyway, there's no real reason for this other than we like the movie.

Well, if you have any questions or comments, feel free to email us at BTQblog (at) hotmail.com, or use the "comments" function. We're happy to hear from you. We hope you enjoy the blog.