Posts Tagged ‘criminal justice system’

mountain pine beetle treatments

Photo by Forest Service Northern Region under Creative Commons on flickr, with description:

“Spraying Ponderosa Pine with Carbaryl in May, 2011 in Bitterroot National Forest Campgrounds to prevent Mountain Pine beetle damage. Contractor sprays entire bole of tree to 50 feet high. Carbaryl is a pesticide (Sevin).”

More information on the beetle and the epidemic.

I wrote this descriptive, generalized paper while I was in prison at PeWee Valley (KCIW), for a night Biology class, offered through the college JCTC. While I have a degree in Biology, it had been 30 years since I had taken an introductory course, so I enrolled in this class on “canteen scholarship.” It was taught by a Kentucky Department of Transportation worker who was in charge of managing the side of the roads. This is a huge job. The strips bordering the roads can mean the difference between life and death for travelers, because vines such as the pernicious kudzu can block views. Also, the instructor spoke at length about the multi-million dollar cleanup effort that Kentucky faced, after the ice storm. After his work during the day, the instructor continued in God’s work by donating his teaching to the college and to the prison inmates. It was one of the most delightful classes I have ever taken.

Unfortunately, the prison eliminated education to nonviolent Class D offenders and, in the interest of money, shipped these inmates back into the jails, where there was no hope of college education or treatment of any kind.

Because of my unusually long eight year sentence, I was not transferred with the other Class D inmates. This placed me into a Class C sort of category, and I “grandfathered in” to continue my schooling. I am thankful.

This paper is edited for this site, and I would like to hat tip my nephew Ray, who lives and works in Vail. He was a volunteer in the effort to control the epidemic, and he helped me with some articles, because I had no internet access in the prison. Ray, thank you.

BEETLE 3.2

A mountain Pine Beetle, by WBUR under Creative Commons, attribution, noncommercial, nonderivative on flickr.

The Pine Beetle And Its Life Cycle

The Mountain Pine Beetle (MPB), Dendroctonus ponderosae Hopkins, is an insect of the largest animal Order, Order Coleoptera (beetles). Its life cycle consists of four complete metamorphic stages: egg, larva, pupa and adult. The life cycle lasts about a year, and is completed almost entirely under the bark of host evergreen trees that include ponderosa, sugar and whitepines (major), as well as limber, coulter, foxtail, whitebark, pinyon, bristlecone and Scotch pine.

The MPB larvae are parasitic herbivores with biting and chewing mouthparts; most tree damage occurs during the 10-month-long larval stage.-snip-White legless larvae feed on the host phloem tissue from August of one year to June of the next year. Fattened larvae then excavate additional cells for the pupa stage, which lasts about a month. Adults then eat and burrow an exit to the surface, whereupon they fly, sometimes as far as six miles, to neighboring tree stands, where the cycle is repeated. During this flight, often helped by winds, females secrete male-attracting pheromones, bringing more beetles and concentrating attack numbers.

The Trees And Their Life Cycle

Pine trees are gymnosperms (meaning that their seeds are not contained in fruit) that evolved long before flowering plants. A pine contains both male and female gametophytes, a tree’s equivalent to sperm and egg. Female pine cones are fertilized by small male cone pollen. An embryo encased in a seed coat develops, and is dispersed by wind or by animals.

Pine trees extract water from the soil and pull it upward, against gravity, in the xylem tissue, through transpiration- a tree’s equivalent to sweating. Photosynthesis in the needles utilizes sunlight to convert CO2 and water into sugar and oxygen. This process utilizes chlorophyll, a green molecule that is similar in structure to animal hemoglobin. Sugar then moves, in solution, from the needles to other tree parts that require energy, by way of the phloem.

Since sap-containing phloem cells contain sugar, they are a good beetle food source. When osmotic water flows into high-sugar-concentrated resin-filled cells and tissues, a balanced hydrostatic gradient is established. In healthy trees, a copious flow of sap can actually “pitch out” a beetle attack, such that the beetles drown in the pitch. The tree must not, however, be in a state of stress in order to mount this important defense.

I am presenting this in parts, because I believe the entire discussion is too lengthy for the internet.

Next: Endemic versus epidemic and conditions that favor epidemic, and the role of fire.

Police are searching for an inmate that escaped the Fulton County Detention Center (Ricky’s World) in Hickman, KY. Inmate Joseph Ray Powell is apparently from McCracken County, so he may be headed back that way. He has been missing since Saturday.

Another recent article on Kentucky politics, and the Governor’s race.

Anthony Kendrick and Jerry Nation vacated the Blackburn Complex in Lexington on October 2, and police are still searching.

Here is a link to an online inmate, ex-inmate, and family support forum. If you have locked up loved ones, please check this out.

Will Texas execute another innocent man?

Reprinted by permission of my husband Masoninblue, who is the author. His website is http://masonbennu.wordpress.com/

Welcome back, class.

First, here’s a clip showing the best opening statement that I have ever seen.

Before we review the remaining exceptions to the hearsay rule, I want to emphasize the difference between the present-sense-impression exception, which is a statement by the declarant reacting to an event as it happens or shortly thereafter, and the excited utterance exception, which is a statement reacting to an event while under the influence of the emotional response caused by the event. For example, let’s return to our cozy couple, Amy and Beauregard, lost as they are in each other’s eyes to the eternal frustration of the waiter and owner of the restaurant, who want to lock-up and go home. Let’s also move the dinner to a month after the accident.

Beauregard nudges the bill aside and reaches for Amy’s hands saying, “I’m so sorry, honey. Tears and mascara are strolling hand in hand down her lustrous apple cheeks and falling on the white linen tablecloth, staining it. “You liked Peter, didn’t you?”

“Yes. Even though he was my boss and kind of nerdy. I’ll never forget his screams. I never heard someone scream like that. It was awful, Beau.”

“How did it happen?”

“Igor Ivarson ran the red light and hit him in the crosswalk and he bled to death right in front of me.” She sobbed and squeezed more tears from her baby blues.

Okay, is her statement admissible under the present-sense-impression exception?

No, because her statement describes an event that occurred a month earlier.

Is her statement admissible as an excited utterance?

Yes, because she was under the emotional influence of the event.

Note that this exception has been used to introduce the statements of sexual assault crime victims, particularly children under the age of 5, even though they were being questioned by adults, social workers, or police using leading questions, and even though the child never testified at the defendant’s trial. This is an especially difficult situation for prosecutors, defense attorneys, and judges, not to mention the children and the defendants. Young children are particularly susceptible to forming false memories regarding incidents that never happened when authority figures question them with leading questions, e.g., “Is that when your daddy touched you in your private place?”

Now, beginning with the third exception, since we already have discussed the first two, let’s move on to the other hearsay exceptions in which the availability of the declarant is immaterial:

3. Statement about a then existing mental, emotional, or physical condition;

4. Statements to medical personnel for purposes of medical diagnosis (Yes, what you tell your doctor about a preexisting medical condition is admissible under this exception to the hearsay rule in a legal proceeding between you and your insurance company to determine whether coverage was properly denied);

5. Statements that were recorded to preserve recollection at a time when the declarant had knowledge of the event described, but has now forgotten (this exception happens more and more now, given how many years can pass between an incident and when a legal proceeding regarding that incident finally happens);

6. Records of regularly conducted business activity that were prepared as part of the business, as opposed to generated for purposes of litigation;

7. Absence of an entry in records kept in (6);

8. Public records and reports;

9. Records of vital statistics;

10. Absence of public record or entry;

11. Records of religious organizations;

12. Marriage, baptismal, and similar certificates;

13. Family records;

14. Records of documents affecting an interest in property;

15. Statements in documents affecting an interest in property;

16. Statements in ancient documents;

17. Market reports and commercial publications;

18. Learned treatises;

19. Reputation concerning personal or family history;

20. Reputation concerning boundaries or general history;

21. Reputation as to character;

22. Judgment as to previous conviction; and

23. Judgment as to personal, family, or general history or boundaries.

There are an additional 6 exceptions to the hearsay rule when the declarant is unavailable to testify and be questioned about the statement:

1. Former testimony, if the party, or predecessor in legal interest, against whom the statement is being offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination;

2. Statement under belief of impending death concerning the cause of circumstances of what the declarant believed to be impending death (e.g., the so-called dying declaration);

3. Statement against interest (i.e., a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. By the way, regarding the Troy Davis legal case: a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement);

4. Statement of personal or family history; and

5. Forfeiture by wrongdoing (i.e., a statement offered against a party that has engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness).

Y’all can look up these rules on line for further information. Once again, the rules are FRE 801 defining hearsay, FRE 802 which says hearsay is not admissible except under these rules, FRE 803 which list 23 exceptions where hearsay is admissible regardless if the declarant is available to testify, and FRE 804, which lists 5 exceptions where hearsay is admissible, if the declarant is not available to testify.

Again, the states apply substantially the same rules in state courts and they follow the same numbering system, which makes it easy to find the corresponding state rule and compare the two.

Finally, never forget that a statement by a declarant that is NOT offered to prove the truth of the matter asserted in the statement is NOT hearsay!

Cross posted at my website and at the Smirking Chimp.

The Texas Prison System Goes To Two Meals A Day To Cut Costs.

Mike Stanfill’s Know Your Scumbags. (hat tip Silverback66)

If you followed the Scott Peterson case in California, you may want to check out this blog site. There are also other articles related to prisons and prison overcrowding.

California inmates may be shifted to county lock up, and 26,000 prison employees may be fired. While this may look good on paper, transfer from prison to county lockup (ie: warehousing) is a disaster for inmates.

In Phoenix, a former guard receives a one-year sentence for inmate abuse and misconduct.

Written by Masoninblue and reprinted, full-text, here, with permission. Please also refer to the other two Hearsay articles written by Masoninblue, and also, he will be writing a followup on exceptions to the Hearsay Rule. Masoninblue’s website is http://frederickleatherman.wordpress.com/

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.