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To: Lazarus_Long who wrote (11773)	5/2/2002 8:06:49 PM
From: TimF	Read Replies (1) \| Respond to of 21057

The Stress Defense By BOB HERBERT On the evening of Dec. 27, 1991, a Manhattan resident named Ramon Roche ended an argument with his common-law wife by killing her. Court records show that he stabbed and slashed the woman, Lillian Rivera, nearly two dozen times. The medical examiner said she suffered wounds to the face, neck, chest, arms and hands. After killing Ms. Rivera, Mr. Roche went to a neighbor's apartment, where he smoked crack and snorted heroin. Later that night he would tell police that his wife had committed suicide. Two juries have convicted Mr. Roche of second-degree murder. The first conviction was overturned because of a procedural error. At a second trial, before a different judge, Mr. Roche was convicted again and sentenced to 25 years to life in prison. But last August that conviction was also overturned, in a ruling by the Appellate Division of State Supreme Court that I think was both wrong-headed and dangerous. If the ruling stands, Mr. Roche would get yet another trial. And when you conduct a trial more than a decade after a crime, there is always a greater danger that evidence could get lost or misplaced, or that witnesses disappear or die, or simply that memories fade. In short, Mr. Roche could go free. But the ruling, if it is allowed to stand, is especially dangerous in that it would make it much easier for men who kill their wives or girlfriends to escape the harshest punishment. At issue is the trial judge's charge to the jury. Mr. Roche's defense was that he did not kill Ms. Rivera. Nevertheless, the defense lawyer asked the judge, Renee White, to instruct the jury that if it determined that Mr. Roche had killed Ms. Rivera, it should also consider the possibility that he had acted under the influence of an extreme emotional disturbance. Under state law, a defendant found to have been in the throes of such a disturbance would be convicted of manslaughter rather than the more serious offense of second-degree murder. So this is not a defense to be made available haphazardly. For a jury to consider this defense, the evidence must show two things: that the defendant lost control "due to mental trauma or exposure to extremely unusual and overwhelming stress," and that there was a reasonable explanation for this trauma or overwhelming stress. What happened in this case is that a man and a woman had an argument, and the man became enraged and killed the woman. Rage is not a defense against murder. Justice White denied the defense lawyer's request. In its ruling last August, the appellate panel ruled that Justice White was wrong, and that the jury should have been instructed to consider "the affirmative defense of extreme emotional disturbance." The panel's majority said there was sufficient evidence from which a jury could conclude that the defendant had "lost control," and that "the source of the rage" was the contentious relationship of the couple, including Ms. Rivera's tendency to yell and make "demands of the defendant." The Manhattan district attorney's office has appealed that ruling to the State Court of Appeals, which will hear arguments today. The ruling has upset organizations that provide services and legal help to victims of domestic violence. If men who kill their mates can offer up as a defense the fact that they were really — really — angry, they will literally be able to get away with murder. The Center for Battered Women's Legal Services has joined the district attorney's appeal as a friend of the court. A pro bono brief prepared for the center by Maria Galeno and Jane Manning of the Salans law firm in Manhattan said the August ruling lowered the threshold of evidence required for the defense of extreme emotional disturbance to the point where it would apply "to almost any very violent killing within an intimate relationship." The lone dissent in the Appellate Division ruling was offered by Justice Peter Tom, who noted that the mere fact of a savage attack was not enough to warrant consideration of this particular defense. Otherwise, he said, the defense, "rather than being an exceptional vehicle for mitigation in an exceptional case involving extraordinary emotional tumult, would be the routine defense in every case characterized by anger and violence." I couldn't agree more. nytimes.com

To: Lazarus_Long who wrote (11773)	5/2/2002 11:12:05 PM
From: average joe	Read Replies (1) \| Respond to of 21057

"One of the legitimate functions of gov't in a capitalist country is to prevent the formation of monopolies." How do you know? You live in a text book example of a mixed economy. An open letter to Bill Gates from Edwin Locke "Dear Mr. Gates: I agree with you on one crucial point: the decision by Judge Thomas Jackson in the government’s antitrust case against Microsoft is a travesty of truth and justice. You were condemned for only one fundamental “sin” — the sin of being exceptionally successful. Although I condemn unjust accusations against you and your company, I am quite disappointed in your attempted defense. In your public “Letter to Customers, Partners and Shareholders,” you claim that you are motivated by the “most basic American values: serving customers, quality, integrity, partnering and giving to our communities.” This defense not only is totally inadequate, but amounts to utter capitulation to your accusers. Let me explain why. Your letter misrepresents the “basic American values.” The fundamental value our country was founded on is: the right to one’s own life — which includes the right to one’s own property. This means that you have the right to trade freely with others, neither forcing others to accept your terms nor being forced by others to accept theirs. And it includes the right to make a profit, as big a profit as you are able to earn in a free, unregulated market. But if you accept the premise, which is implied by your letter, that you exist only to serve others, then you have surrendered at the very outset. If the existence of your superbly productive company can be justified only in terms of a duty to serve the “public interest,” then the government — as the representative of that public and the definer of its indefinable “interests” — has the right to dictate to you the terms of your continued existence. It may claim the right to regulate your prices, your products, your contracts, and your methods of competing with your rivals. If you are only a servant of society, then nothing you do can be free of government controls. I know what you are thinking: that it would be very impractical of the government to try to control your company, since the results of such control would be less innovation, higher prices, less competition, and worse customer service. This is true — but it is irrelevant. The government is not concerned, at root, with practical consequences. It is concerned primarily with making sure you concede its right to regulate everything you do. It wants you to acknowledge that Microsoft functions, not by right, but by permission. And by your acceptance of the role of servant, you have accepted your master’s right to give you orders. This means that your property is not really yours and that the battle you are fighting is entirely on the government’s terms — it is only about the nature and degree of the controls that it will impose upon you. If an innocent man is put in jail, it is self-defeating for him to concede that the government has the right to incarcerate him, while complaining about the uncomfortable living conditions and the inordinate length of the sentence. What he has to struggle for is his inalienable right to be free. That is precisely what you are failing to do. Judge Jackson claims that you are monopolist. Why don’t you respond that only the coercive power of government can create a monopoly — that a private monopoly is a contradiction in terms, since it has no power to forcibly suppress competition? Jackson claims that you have the power to coerce your customers into buying your products. Why don’t you reply that you have no power except that of voluntary trade — and that in a trade either party can refuse to do business? Jackson claims that you harmed your customers by giving away your browser for free, thus preventing other companies from selling theirs. Why don’t you tell Judge Jackson that you alone have the right to set the terms on which you make your products available to the public? Why don’t you declare that the price you choose to place on your products is none of the government’s business? Why don’t you categorically denounce the antitrust laws as egalitarian attempts to punish success as such? The real motive of the government prosecutors is a desire to attack your right to act freely and to profit from your actions. They want to bring you down — because you have been so successful. The only way ultimately to defeat them is to assert proudly your right to your own existence — which means: the right to do business, not as a public servant but as an autonomous entity with inalienable rights.