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May 26, 2013

Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro

AP reporter Andrew Welsh-Huggins has this effective new article discussing the possibility and challenges of a capital prosecution in the horrific Cleveland kidnapping case.  Here are excerpts from the piece:

A prosecutor faces numerous obstacles as he weighs whether to bring death penalty charges against a man accused of kidnapping three women and forcing one of them into miscarriages through starvation and beatings, capital punishment experts say.

Most agree that such charges are possible against Ariel Castro, though not without legal fights starting with constitutional questions over the definition of a murder victim for the purposes of a death penalty case.

Cuyahoga County prosecutor Tim McGinty said at a news conference on May 9, days after the women were rescued from Castro's run-down home, that capital punishment "must be reserved for those crimes that are truly the worst examples of human conduct."

"The law of Ohio calls for the death penalty for those most depraved criminals, who commit aggravated murder during the course of a kidnapping," he added....

Castro, 52, is accused of kidnapping the three women when they were in their teens or early 20s and holding them in his Cleveland house for about a decade, chaining them in a basement initially and then allowing them into upstairs bedrooms.

One of the women, Michelle Knight, told investigators Castro beat and starved her to force five miscarriages, according to initial police reports of the women's captivity....

One of the closest precedents to the Castro case is the 2005 Texas prosecution of Gerardo Flores, sentenced to life in prison under the state's fetal protection law after being convicted of stepping on his pregnant girlfriend's stomach and causing the deaths of their unborn twin sons. Flores had argued that his girlfriend wanted an abortion so he hesitantly agreed to press his 175-pound frame on her belly....

Ohio enacted a fetal homicide law in 1996, making it illegal to kill or injure a viable fetus. That law and similar laws in the 37 other states with fetal homicide statutes have been used mainly to win convictions in car crashes in which pregnant women died and in cases involving attacks on expectant mothers.

In 2011, a Franklin County man charged under Ohio's fetal homicide law was sentenced to 13 years in prison for taking his pregnant girlfriend to an abortion clinic at gunpoint. In 2008, a Stark County jury convicted former police officer Bobby Cutts of killing his pregnant lover and their nearly full-term unborn daughter but gave him life in prison instead of a death sentence....

Earlier this month in Pennsylvania, an abortion doctor convicted of killing babies born alive at his clinic avoided a possible death sentence by waiving his right to appeal in exchange for a sentence of life without parole. Prosecutors argued that Dr. Kermit Gosnell killed the babies after they were born, not as fetuses. Gosnell argued that none of the fetuses was born alive and that any movements they made were posthumous twitching or spasms.

In 2008, the U.S. Supreme Court banned the death penalty for child rapes in which a death didn't occur, spelling out that a killing is the only crime eligible for the death penalty outside of a crime against the state such as treason.

A death penalty case against Castro "would raise serious legal questions about whether a murder has occurred and whether such a death sentence complies" with the court's 2008 ruling, Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment, said in an email.

It's not unheard of for prosecutors to seek capital charges even when a body hasn't been located. But the Castro case brings up another layer of difficulty given that no human remains of any kind have been found on his property. "How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?" said Michael Benza, a Case Western University law professor who has also represented death row clients....

The nature of the crime makes it likely that, death penalty or not, Castro would face a life sentence if convicted on rape charges alone, said Hofstra University law professor and death penalty expert Eric M. Freedman. "The odds that it's going to go to a death penalty trial and result in a jury verdict of death," he said, "are vanishingly small."

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Comments

Professor Benza is an idiot. Should he be teaching anyone?

Posted by: federalist | May 26, 2013 5:00:46 PM

Which one is Benza?

Posted by: liberty1st | May 26, 2013 10:38:48 PM

Isn't it time to impeach the pro-criminal lawyers on the Supreme Court for their devastating substantive decisions? Any collateral corruption is trivial in the damage it causes compared to their protection of the vilest criminal to generate lawyer jobs. Rent seeking is the biggest crime of this syndicate.

That will never happen while "lawyer" is the most common profession in Congress. The lawyer put loyalty to the CCE above all others. A leader dared to criticize judges, and was run off, and prosecuted on made up charges by a prosecutor of the opposing party. Everyone got the message from the hierarchy.

Posted by: Supremacy Claus | May 27, 2013 7:23:38 AM

"Which one is Benza?"

The one who asked "How do you prove a pregnancy?" when the person who was pregnant and suffered the forced miscarriage is alive and available to testify, along with two other eyewitnesses.

See also this post.

Posted by: Kent Scheidegger | May 27, 2013 11:20:46 AM

The "idiot" here is given two sentences and a summary. His full remarks might tell us a bit more than what we are provided.

Let's assume he's an idiot. We are told:

"Ohio enacted a fetal homicide law in 1996, making it illegal to kill or injure a viable fetus."

Let's say that the testimony of the woman or women plus perhaps admittance by the kidnapper (legally alleged kidnapper) here is enough to prove beyond a reasonable doubt that she was pregnant. Given. The next part is to determine he caused the miscarriage again with the proper standard of proof. A bit harder. Then, you have to prove that the fetus was viable. Very tricky.

Even with the woman and other two victims.

Posted by: Joe | May 27, 2013 1:18:53 PM

Joe, he was talking in terms of proving up a pregnancy. Your defense therefore fails.

I am not sure that viability is an element of the offense either.

Posted by: federalist | May 27, 2013 1:39:17 PM

federalist and Joe --

Let's just say that if I were facing the illustrious Prof. Benza in court, the main thing I'd be worried about would be the subsequent IAC claim.

Posted by: Bill Otis | May 27, 2013 2:00:01 PM

No case is too tough for the 101st Fighting Keyboard D.A.'s office to take on. Only "real world" sissies worry about how prove the elements of a crime before they get to court!

Posted by: Jim | May 27, 2013 2:10:01 PM

Jim --

This is what the article says in relevant part: "'How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?' said Michael Benza, a Case Western University law professor who has also represented death row clients...."

Are you really having trouble with this? You prove the pregnancy by three eyewitnesses, including the girl he impregnated. You prove he caused the termination of the pregnancy by the same three witnesses who saw (and one of whom experienced) the pregnant person being beaten and stomped on the stomach and starved.

As for who can prove what in court, I give my real name so you can look up my litigation record for yourself. And what might your real name be, hotshot? The 101st Fighting Free Ariel Castro Brigade? I mean, Mr. Castro was framed, wasn't he?

Posted by: Bill Otis | May 27, 2013 2:35:51 PM

Jim, were you always this stupid, or did you have to work at it? Mr. Benza asked how the pregnancy would be proven. Um, there is an eyewitness. That's how.

Posted by: federalist | May 27, 2013 2:38:44 PM

federalist --

We might be too harsh with Jim. He actually has a point. Just because the government has three witnesses now does not necessarily mean that it will have them at Mr. Castro's trial. The defense could always stage some, uh, zealous advocacy -- defending the Constitution, dontcha know.

http://www.nytimes.com/2013/03/19/nyregion/paul-w-bergrin-new-jersey-lawyer-convicted-of-murder.html?pagewanted=all&_r=0

Posted by: Bill Otis | May 27, 2013 2:52:30 PM

Bill, there's actually stuff on defense lawyer blogs about the correctness of handing over witness info (i.e., addresses) to the accused.

Appalling.

Posted by: federalist | May 27, 2013 3:01:43 PM

The word, "element" is from some older versions of the Catechism analysis of mortal sin, and therefore violates the Establishment Clause.

1750: "The object, the intention, and the circumstances make up the "sources," or constitutive elements, of the morality of human acts."

Then 1752 and 1754.

Posted by: Supremacy Claus | May 27, 2013 3:11:28 PM

Maybe I've missed some factual information about how advanced these pregnancies were supposed to be. Depending on the facts, pregnancy could be easy or impossible to prove. If Michelle Knight was 6 months pregnant, the other two women would certainly "see" her pregnancies and there should be no difficulty proving them. If Ms. Knight just missed a period and there was no medical examination or results from a pee-on-a-stick test, she might well think she was pregnant but be wrong. There are a number of other reasons for a missed period, including stress, and I can't think of any way a prosecutor could prove beyond a reasonable doubt that she was pregnant in this circumstance.

Posted by: arfarf | May 27, 2013 8:04:44 PM

"Joe, he was talking in terms of proving up a pregnancy. Your defense therefore fails. I am not sure that viability is an element of the offense either."

What "defense" are you talking about? I said there "might" be more if we had more than two sentences. Then, I assumed he was an idiot and looked at the question as a whole. Bottom line, we both doubt the viability element. It's good to think about but as applied to this case it is something of a stretch.

Posted by: Joe | May 27, 2013 9:19:18 PM

Whatever, Joe. I am not going to play semantic games--the guy is quoted as asking how a pregnancy would be proved. That puts him in idiot territory--full stop, no need for quotes.

I didn't say I doubted the viability element--I am not so sure it's a requirement of the statute.

Posted by: federalist | May 27, 2013 11:53:10 PM

federalist --

Looks like our friend Jim stayed around long enough to (1) take a crack at the suggestions that pregnancy and a forced miscarriage could be proved, (2) blow a kiss to The Wonderful Mr. Castro, and (3) disappear.

At least Joe sticks around.

Posted by: Bill Otis | May 28, 2013 12:06:09 PM

Bill, I know you teach a criminal law class. Just curious - if you were advising your students on how to best defend Mr. Castro, what would you advise?

Posted by: Anon | May 28, 2013 3:19:13 PM

I really wish he could get the DP for the kidnappings. That's the crime that outrages people, and the reason people want him to get it. Trying to give it to him on the murder theory just feels a bit . . . off.

Posted by: William Jockusch | May 28, 2013 3:24:31 PM

Anon --

Resign.

Posted by: Bill Otis | May 29, 2013 9:55:52 AM

Bill, do you really mean that? I assume that you believe that Mr. Castro has the right to an attorney. I want him executed, but in order to do that legitimately, we need to make sure that he gets a vigorous defense.

I'm not trying to challenge or attack you. I often read and enjoy your posts on C&C and in the comments section in this blog, and I've noticed that you frequently criticize criminal defense lawyers for the kinds of arguments they make in heinous cases like this one. I'm just genuinely curious about what you think would be an appropriate argument to be made in defense of Mr. Castro.

Posted by: Anon | May 29, 2013 4:41:42 PM

Anon --

I was partly, but not entirely, being facetious.

While it is true that Castro is entitled to a defense, he is not entitled to any particular defense lawyer. The corollary is that no particular defense lawyer is required to defend him. So I would advise my students to look elsewhere for work.

It is not altogether out of utter distaste for Castro that I'm dodging your question. It's that, on the present evidence, I can't think of a defense that would have even a chance of working. That he did it is beyond dispute. That means that it has to be a mental state defense. But no such defense has a snowball's chance.

Is counsel supposed to say the guy was crazy? What, for ten years? While he held a job the whole time? No one is going to buy that.

The problem here is that the facts are just overwhelming. He wasn't crazy; he wanted what every pervert wants, to wit, sex with underage girls forced to do his degrading will. That is not a defense; it just makes it worse.

One way or the other, no matter what his lawyer does, this guy is either going to get the DP or (unfortunately more likely) LWOP.

He doesn't need a lawyer. He needs a magician. There's not enough money in this world for me, or hopefully my students, to fill either function for this guy.

Posted by: Bill Otis | May 29, 2013 7:38:33 PM

LOL good one bill. reminds me of old ted bundy. After all the trials and appeals when he hit the right judge who basically said. You have been running rings around the criminal justice sytem for a decade. Your ass isn't crazy. BYE-BYE!

soon after his ass was dead.

Posted by: rodsmith | May 29, 2013 10:29:48 PM

Interesting response, Bill. Thanks for taking the time to answer my question, I appreciate it.

Posted by: Anon | May 30, 2013 9:06:29 AM

Anon --

No problem. Just out of curiosity, what defense do you think is possible in Castro's case? As I say, it has to be a mental state defense, but I can't think of any the jury is even remotely likely to buy. The guy was living out every sicko's fantasy -- but the kind of sickness he's got in his head is not the kind that gets you acquitted. It's the kind that gets the judge and jury furious.

Posted by: Bill Otis | May 30, 2013 9:55:36 AM

Bill,

I think it depends on which charge you're talking about. I agree with you that on the kidnapping, rape, and torture charges, there's really nothing to be said in his defense. I guess if all else fails, he'll claim that he was insane and surely lose. I think the defense attorney has said something about how much Castro cares about the daughter born to him by one of the victims. That's pretty twisted but just about the only thing available to humanize him.

On the fetal homicide charges, I think arfarf had a good point earlier that Castro may be able to argue the facts depending on how far along the alleged pregancies were. But I certainly wouldn't want to be the lawyer who had to cross-examine Ms. Knight on that point.

Posted by: Anon | May 30, 2013 2:20:29 PM

Bill and Anon:

The right advice for a criminal law student is simple: (1) Don't assume that the facts reported by the media are correct. (2) Perform a thorough and diligent investigation with an open mind, including getting opinions from experts. (3) If the facts don't support an affirmative case for innocence, you can still be zealous and tenacious in holding the prosecution to its burden of proof. (4) If the prosecution goes for death, present whatever truthful information you can find that might convince some jurors to exercise mercy. For example, are there ways in which he was kind or caring toward the women, or does he have some physical or mental problem (short of insanity or incompetence) that diminishes his moral culpability?

Don't get me wrong. I have no sympathy for a person who did what he is accused of doing, and I'd lose no sleep if he got sentenced to death. But law students need to know that it's possible to present an ethical and vigorous defense even for such scum.

Posted by: arfarf | May 30, 2013 5:40:32 PM

arfarf --

The first thing I would tell my students is that life is short, and you have to make choices about how you use your time. You can use it trying to help Castro, or you can use it trying to help his victims, or thousands upon thousands of other crime victims. To me, this is not a difficult selection.

As to not assuming the facts reported by the media are correct, I agree. They're probably worse. I read in one tucked away story that one girl had to have facial reconstructive surgery, so badly was she beaten.

"Perform a thorough and diligent investigation with an open mind, including getting opinions from experts."

What "experts?" Was someone down there in the basement with them? I think what you must mean here is inveigle some paid-off shrink to fabricate a previously unknown "syndrome." The problem there is that this sort of soft-core dishonesty won't work on these facts, and is still soft-core dishonesty in any event.

"...are there ways in which he was kind or caring toward the women, or does he have some physical or mental problem (short of insanity or incompetence) that diminishes his moral culpability?"

If I were the prosecutor, I would get down on my knees and pray that the defense was sufficiently divorced from the real world as to try to show that "there [were] ways in which he was kind or caring toward the women." I can think of few more direct routes to enraging the jury to the point that they would vote for the DP in five minutes.

The extent to which you have to reach demonstrates why defense lawyering is inherently schizophrenic. You want someone to be "zealous" in trying every which way to get this guy off, but no person with normal morals could possibly want him to get off.

Posted by: Bill Otis | May 30, 2013 6:53:57 PM

I share your moral anxiety in regard to defense lawyering, Bill, and I think that "schizophrenia" is a good description of the problem.

But then that means that our entire criminal justice system is inherently schizophrenic too, since our Constitution requires that Castro receive a zealous defense in order for us to punish him. We need to ask someone to behave immorally, "schizophrenically," in that situation in order to enable Castro's punishment. Which is the moral thing for his lawyer to do, in a way.

The same schizophrenia seems to some degree present in your own views as well, since you advise against any lawyer taking Castro's case and yet (I assume) believe that he should not be tried and punished without the assistance of counsel.

Posted by: Anon | May 31, 2013 12:23:27 AM

Anon --

"But then that means that our entire criminal justice system is inherently schizophrenic too, since our Constitution requires that Castro receive a zealous defense in order for us to punish him. We need to ask someone to behave immorally, 'schizophrenically,' in that situation in order to enable Castro's punishment."

In an abstract sense, Castro's representation "enables" his punishment, sure. But on the ground, the representation is designed to AVOID his punishment. This is one reason I stay away from the abstract -- it tends to deflect from what defense lawyers actually do.

BTW, I see you use "schizophrenically" and "immorally" in apposition to one another. I believe that is a mistake. A schizophrenic cannot be blamed for acting schizophrenically, but a lawyer (or any other sane adult) can certainly be blamed for acting immorally.

"Which is the moral thing for his lawyer to do, in a way."

Not if one thinks that substance is more important than procedure. At the end of the day, ANYONE with normal morals thinks that Castro should be punished for what he did during those ten years. Do you disagree?

When I got my law license, it did not exempt me from the morals that apply to everyone else. To the extent the legal profession embraces the conceit that normal morality does not apply to it, it invites the public contempt it gets.

"The same schizophrenia seems to some degree present in your own views as well, since you advise against any lawyer taking Castro's case..."

Actually, I didn't. I was asked what I would advise my students, to whom I owe a special obligation, to do. I have no portfolio to advise "any" and every lawyer.

There are people who view the United States as an indecent, racist, bloodlusting hegemon that deserves whatever bad things happen to it. Some of those people are lawyers. For lawyers like that, trying to convince a jury to put Castro back on the street makes perfect sense, since it harms the Great Satan.

"...(I assume) believe that he should not be tried and punished without the assistance of counsel."

The problem is not per se that Castro has a right to a defense lawyer; the problem is with the present ethos of defense lawyering, which intentionally (indeed proudly) is just as happy to put guilty and dangerous defendants back on the street as it is to put innocent ones back there.

I am very much in favor of a zealous defense (as was heroically given the Duke lacrosse team rape defendants, for example) when it exonerates the innocent against the charges of a thug prosecutor. My problem is with the defense lawyer who tries to convince a jury to believe something he knows, or jolly well ought to know, is false. My other problem is that they don't give two hoots in hell whether it's false or not, nor do they give two hoots in hell about what happens to their client's next victim if they do, in fact, bamboozle the jury and put the client back on the street.

This is the bottom line for me: The legal system should seek to convict the guilty and exonerate the innocent. Everything about the system, including lawyers' canons of ethics, should be designed to facilitate that goal. When you have canons that intentionally empower a segment of the profession to ignore, indeed to not even care about, the difference between guilt and innocence, you have canons that need reform.

Posted by: Bill Otis | May 31, 2013 11:31:29 AM

Bill -

1. The question, I thought, was what you would tell law students about how to defend Castro, not whether to defend him. I've been told by lawyers in big firms that when a judge they regularly practice in front of calls and says he is going to appoint them to a case, they feel they can't say no. Sole practitioners whose economic survival depends on a steady diet of court appointments are in the same bind. They feel they have no choice unless they're willing to disadvantage themselves, their families, and their other clients. But even if your students choose a career path that is unlikely to include criminal defense, they could ask - and deserve an answer - how he could be defended.

2. You ask, "What experts?" For starters, an expert in human reproduction. I have no idea whether there are physical tests that can prove a woman has ever been pregnant, but Castro's lawyer needs to find out (and so does the prosecutor). Two of the women declined to escape when they had an opportunity to do so, and there might be a question of whether at some point their continued confinement became consensual. So the defense lawyer (like the prosecutor) probably needs to consult an expert on Stockholm Syndrome. These are illustrations, not an exhaustive list. Talking to experts is how attorneys in all areas of the law gather specialized information that is outside their personal knowledge. Consulting an expert isn't a commitment to calling that expert as your own witness. As you undoubtedly know, an expert's advice can be most valuable in keeping the lawyer from heading down a blind alley, or helping him plan how to cross-examine his opponent's witnesses.

3. There are studies about the facts that real-life jurors found mitigating in actual capital cases, and the Supreme Court says it's the defense lawyer's job to find those kinds of factors and then let the jury decide on the right sentence. I doubt that anything in Castro's background or character would move me to vote for life if he's eligible for death, but there's nothing dishonest about a lawyer giving the jurors truthful information that might lead them to opt for mercy. In our current legal system, the lawyer is the client's servant, and your students need to know that. I appreciate that you aspire to change this system, but your students deserve to know how someone would represent Castro now, not in some hypothetical future.

Posted by: arfarf | May 31, 2013 2:09:22 PM

arfarf --

1. I do not regard it as a teacher's obligation, or as a good thing to do in any manner whatever, to tell my students the most clever maneuvers for putting a violent, sadistic and disgusting defendant back on the street. And yes, he's guilty, as I know (and so do you). Osama was also guilty, and we both know that too, even though he was never tried. Any other conclusion is not a tribute to "due process." It's an exercise in solipsism. Not to mention silliness. Silliness and legalism do not get rewarded in my class. Looking at the truth head on, and law, do.

As to your other point here: I have no interest in rescuing lawyers from the difficulties of their knowing career choices. And that's assuming a lawyer could be compelled to take a criminal case, which he can't be (if you have contrary precedent, I'd like to see it). All you have to do is tell the judge, "I have daughters at home the age of the victims here, and I know in my heart I couldn't give it all in defense of this man." You'll be excused with no hard feelings and no damage to your career.

2. "Two of the women declined to escape when they had an opportunity to do so..."

And how do you know that? Wasn't this what you just said: "Don't assume that the facts reported by the media are correct." If you got this supposed "fact" about two of them declining to escape from something other than the media, what was it?

More broadly, and as I was saying before, I only hope and pray Castro tries to pin blame on the victims. If you want a quick conviction and a really nasty sentence, that's the way to get it.

3. "In our current legal system, the lawyer is the client's servant, and your students need to know that. I appreciate that you aspire to change this system, but your students deserve to know how someone would represent Castro now, not in some hypothetical future."

What my students deserve to know is up to them, the Dean and me, not anyone on this site. As it happens, I tell the students in the first class session what my background and attitudes are. This is precisely to give them the opportunity to head for the door if I'm not their cup of tea (and some do, although every year there's a waiting list, so the slots that become vacant get filled).

In my opinion, my first obligation to my students is not to impart practical information. It's to impart what being a lawyer is about (N.B., the class is not criminal law or criminal procedure. It's more akin to jurisprudence, although it's not exactly that either). Again in my opinion, being a good lawyer is first and foremost about being a good human being. It is not (as I was saying to Anon) about absolving yourself of the moral obligation every other human being has -- the obligation to do good and suppress evil.

Castro is as close to evil as you ever see. I am not going to lift a finger to help him, or to tell anyone else how to help him.

Posted by: Bill Otis | May 31, 2013 3:24:30 PM

Bill -

Thanks for correcting my misunderstanding about the nature of your class. That makes a big difference. And you're right in calling me on my lack of precision when I said that two of the women declined to escape when they had the opportunity. I should have said they "reportedly declined" to escape. For purposes of putting counsel (and the prosecutor) on notice of an issue that probably warrants consultation with an expert, I don't think my error changes the picture.

And thank you for your candor in acknowledging that you would be unqualified to sit on the jury in this case because you already "know" he is guilty. I can't say the same about myself because I lack your degree of clairvoyance. I certainly have strong suspicions that he is a vile monster who is guilty of most, if not all, charges. But my suspicions are based on media reports. Despite my regard for the press as an instituion, it's made factual mistakes on every matter where I had personal knowledge. As a result, I allow for the possibility that when the evidence is presented at trial, it'll show that Castro's guilt is less (or perhaps more) certain than what I've read.

Posted by: arfarf | May 31, 2013 6:02:09 PM

arfarf --

"And thank you for your candor in acknowledging that you would be unqualified to sit on the jury in this case because you already 'know' he is guilty."

I'm almost certainly unqualified to sit on a jury in ANY criminal case. With about two decades in the USAO and DOJ, I'd get the boot first thing, and if the lawyers didn't boot me, the judge would.

This was brought home to me a few years ago, when, post-retirement, I was called for jury duty in federal court. The judge was the lady who, about 20 years before, had fished me out of Main Justice to come to the USAO. When she saw me in the jury pool, it was all she could do to avoid laughing out loud. When she caught my eye sitting there, it was all I could do, too.

I'll just ask one more thing: You don't know this guy is guilty? Really? Come on, now. And by "guilty," I don't mean "adjudicated guilty;" obviously he's not that (yet). I mean that he did it: He abducted the three of them, kept them in his house through force and threats, and raped and severely abused them.

You don't know he did that?

Do you not know Osama planned 9-11? We have only press reports; he was never tried. So you don't know it?

C'mon, arfarf. I can tell you have a pretty darn good grasp on reality. There's no harm in using it the same way the rest of us do.

P.S. For that matter, I only know Obama is President via "press reports." I wasn't personally in the Electoral College, and I don't get too many White House invitations these days. Do I need to be "clairvoyant" to know he's the commander-in-chief?

Posted by: Bill Otis | May 31, 2013 6:37:43 PM

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