Too Many Blow Jobs Spoil the Case

It's always about the money.

Actually, in this case it's about what they did with the money. The case is Commonwealth of Pennnsylvania v. Sun Cha Chon. In January 2008, the Honorable Robert L. Steinberg of the Lehigh County Common Pleas Court dismissed the charges against Ms. Chon. Last week, a three-judge panel of the Superior Court affirmed Judge Steinberg's decision.

Ho hum. These things happen. Now and again the defendants get a legal win. Why am I bothering to write about just another case - and in Pennsylvania, where I don't practice? It's because of why Jude Steinberg dismissed the case. It's because we've entered the mythic world where man bites dog. Steinberg dismissed due to "outrageous government conduct." By the investigating cops.

So what did Sun Cha Chon do to generate an investigation more outrageous than the typical hiding exculpatory evidence or coercing confessions or doctoring a photo array or making secret deals with a jailhouse snitch or . . . ? Was she a serial killer? Was she stealing from elderly widows? And what the hell did the cops do, anyhow, that was worse than what they generally get away with?

Ms. Chon, it is alleged, ran a brothel (the Shiatsu Spa), and was herself a prostitute.

The police got involved because a customer who was getting a massage couldn't afford a hand job so he went to the state police to complain. (It's not clear from the record just what his complaint was. Were they overcharging for the hand job? Was it a bait and switch? Did he think that if he couldn't afford a hand job nobody else should get one, either?)

OK, prostitution is a crime. So is running a whorehouse. The police went to work. Fortunately for the cops (and, as it happens, for Ms. Chon), the disgruntled customer (DC) volunteered to return to the Shiatsu and actually get that hand job - as long as the police provided the money. Seemed like a good idea to the cops. So they wired him for sound, gave him $100, and sent him off to Shiatsu heaven.

Oh, maybe I wasn't altogether clear. They gave him $60 to pay for sex. The other $40 was for him to have sex. Yes, it was to be the unusual sexual encounter where both the prostitute and the customer get paid. Condoms in pocket (DC knew to take precautions), DC went back to the Spa where he paid "Gina" (Chon) $60 for a hand job and the right to fondle her breasts. Back at the police department, he and the cops giggled a lot while they listened to the tape.

Because you can never have too much evidence, the cops paid him three more times to go back to the Shiatsu for sex. He got blow jobs. He had intercourse. He apparently did other fun stuff that the court doesn't detail. Each time both he and the prostitute got paid by the police for having sex. Life was good.

Then the police got a search warrant and busted the place.

Judge Steinberg explained why the police conduct was so outrageous. (The Superior Court agreed.)

[T]he police used sex as a weapon in its investigatory arsenal, that they permitted the sex to continue even after having enough evidence for an arrest, and that the sexual conduct was entwined with the investigation. The police conduct is made more egregious because they permitted or acquiesced in the most intimate of sexual encounters. They did so even though it was unnecessary to their investigation, and they learned very little by doing so. The mere agreement to perform sexual acts for money would have satisfied the statute, and permitted the police to secure a search warrant. . . .

Accordingly, we conclude that the decision to send the citizen into Shiatsu Spa on four occasions for a smorgasbord of sexual activity violates principles of fundamental fairness. Neither prostitution activity inside Shiatsu Spa nor the police decision-making is to be condoned. We expect more from the police, and demand that they conduct their investigations and utilize their resources without resorting to such embarrassing investigative techniques. No adequate supervisory guidance was
provided, no standards existed for this type of investigation, and some of the behavior by the participants was sophomoric.

So there you have it. Mix a "smorgasboard of sexual activity" with "sophomoric" cops and the defense wins. At least when the crime is prostitution. Judge Steinberg was careful to articulate the Heinous Crime Rule (also known as the Dick Cheney torture test).

For example, if this case involved international terrorism or a threat to the safety of our citizens, then the police conduct would not be as easily challenged.

Oh, according to this report, the prosecutor will be appealing.

Measuring the Body Count

The studies all suck.

After decades of studies demonstrating that the death penalty deters murders, that it increases murders, that it has no effect on the number of murders, we're pretty much left back where we started. The anecdotes are, for once, as meaningful as the data.

Here's what the anecdotes show:

• Some people say that they would have killed but didn't want to risk the death penalty.
• Some people say that they did kill in order to get the death penalty.
• Most people never thought about it. Either they acted out of sudden passion or, if they did think about it, figured they wouldn't get caught.

No shit. You don't have to be a scholar to figure that out. You just have to pay a bit of attention and then think about it for a few minutes.

Anyway, there's a new study about to be released in the American Journal of Criminology. Carefully done and peer reviewed, it indicates, according to a report in the Houston Chronicle, that executions in Texas, where they kill enough people to have a noticeable effect, have some slight deterrent effect. When you run the numbers, though, that slight effect adds up to maybe 10 or 12 a year. That's a fair number of dead bodies.

There are a few things to say about this.

First, there's no particular reason to believe it. I'm sure the authors were painstaking. The authors of bunches of studies have been painstaking. They generally stand behind their conclusions. But their conclusions disagree so much that about all you can do is throw your hands up in the air in frustration.

Besides this study has a couple of other curious points. I'm particularly taken by this one: Executions deter killings even if they get no publicity. That is, murders will go down as a result of an execution even if nobody knows about the execution. Maybe it's something in the air. Or maybe it's evidence that the study is BS. My money's on the BS theory.

Second, while 10 or 12 people a year is a lot, we'd save a whole lot more people if we got a few more drunk drivers off the road. Or if we hired a few more cops. Or if we actually made some efforts to rehabilitate. Or if we offered people an alternative to just hanging out. (I've said before that Bill Clinton's much maligned idea of midnight basketball was actually one of the most sensible proposals that ever got shot down.)

This part of the math is clear. Whatever you think about whether it's a good idea, executions fail the cost-benefit analsyis test. Scott Henson explains:

Perhaps there is some vanishingly small, short-term deterrent effect to the death penalty. Like the existence of a God that created man in His own image, I doubt it but won't rule it out. But in its current form, the death penalty is a political boondoggle and distraction involving a miniscule number of cases - a costly sideshow carnival act of the first order that distracts from more important discussions. Any legitimate cost-benefit analysis would find death-penalty deterrence doesn't measure up compared to underfunded but less-expensive programs that would save more lives and do more to reduce crime and deaths.

I'm all for the academic enterprise. I believe in it deeply. But I've yet to see a study of deterrence that made any sense. There may be plausible arguments in favor of the death penalty. (I don't buy into them, but they may exist.) That it deters enough crime to be worth keeping isn't one of them.

Braving The Inferno

Despite Justice Black's declaration that "No law means no law," the Constitution's protection of free speech is not, and never has been absolute.

First, it applies only to the government. Home Depot can, without violating that proscription (or the one about the free exercise of religion), fire an employee for wearing a pin that says "One Nation Under God" on his uniform because Home Depot is not the government. (Neither is Goldman Sachs, by the way, though Mike at Crimes & Federalism might want to argue the point.)

Second, even with the government it's not total. Obscenity isn't covered. Neither is child pornography. Fighting words can be banned. The Supreme Court will be deciding soon whether distributing photographic depictions of violence against animals can be prosecuted.

But you know, some of us believe in free speech even when the Constitution doesn't apply. It's not that I think truth will win out in the metaphorical marketplace of ideas. I've never been convinced of that. It is, rather, that I think the philosophical agora is in itself a good thing. If we can't speak freely, we can't think freely. If we can't think freely, we have no freedom at all.

The First Amendment wasn't placed first for a reason. (In fact, it wasn't placed first; it just ended up there.) But it's location is appropriate.

The problem is that free speech is troublesome. Intentional provacateur Stanley Fish assembled a collection of his essays under the title There's No Such Thing As Free Speech: And It's a Good Thing, Too. That's about as plain a statement of the problem as there is. Free speech is dangerous.

I wrote the other day about the thought police. I wrote earlier about the craven and dishonest (literally, intellectually, and morally) decision by Yale University Press to publish Jytte Klausen’s The Cartoons That Shook the World about the depictions of the Prophet Muhammad published by a Danish newspaper in 2005 and the responses to them - but to leave out the cartoons. That last continues to rankle. If we cannot look to the academy and its press to be forthright in defense of the open discussion of ideas, where can we look?

The answer, it seems (and thanks to Eugene Volokh for pointing it out), is to another university. What Yale will not do, Duke will. The aptly named Voltaire Press has now published Muhammad: The "Banned" Images. It's a picture book containing those 12 cartoons and apparently (I haven't got my copy yet) another 19 images of Muhammad, with commentary, and a Statement of Principle advocating not the content of the book but it's idea and signed by a dozen individuals and organizations. (I'm bitter that they didn't ask me to sign.)

This is from the Introduction:

Muhammad: The "Banned" Images is a "picture book" — or errata to the bowdlerized version of Klausen's book as published by Yale University Press. It is of course more than that. It is a statement of defiance against censors, terror-mongers, and their Western appeasers. It is a rallying cry for free speech, freedom of the press, and for open scholarship unfettered by fear.

And this is the Statement of Principle.

Free Expression at Risk, at Yale and Elsewhere

A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances cancelled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Muhammad from Jytte Klausen’s book, The Cartoons that Shook the World.

Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in Western liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie’s Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally’s play Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.

There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film Submission, and the threats against Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh’s murder, Behzti, a play written by a British Sikh playwright, was cancelled days after violence erupted among protesters in Birmingham, England on opening night.

In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, “The Face of Muhammad,” which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitching free speech against “cultural sensitivity.”

For all the prominence of Islam in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor’s scheduled speech at Hamilton College in Clinton, NY was cancelled in response to alleged threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers, citing security concerns.

The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London’s Whitechapel Gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones’ The Jewel of Medina because “it could incite acts of violence.” The suppression of images in Jytte Klausen’s book is the latest, but not likely to be the last in the series of such incidents.

Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.

A Call to Action

The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence somewhere in the world, it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.

The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.

To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.

As I said, I wasn't offered the opportunity to sign that statement before it was published. But I would have. Happily.

It Just Takes Longer (with Update)

When a jury is deciding whether to sentence someone to death or to life without the possibility of parole (LWOP), all it's really deciding is how the person is to die. Either way, the sentence is death in prison. It's just that LWOP doesn't include a murder. And the expectation, if not always the reality, is that it takes longer.

That's a piece of what the Supreme Court will be considering Monday morning in a pair of related but not identical cases: Graham v. Florida and Sullivan v. Florida.* I've made reference to these cases and the basic issue they raise a few times now (here and here and here). This time I want to give them more direct attention, both because they are up right now and because they give me an opportunity to say some other things. (Were it not for the digressions and asides, would you read this blawg at all? Would I write it?)

Both cases emerge from this stark fact reported by Adam Liptak in Saturdays N.Y. Times.

There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.

And although they differ in what may be legally significant ways (whether the differences have actual legal significance is something we won't know until the court actually rules), they raise the same fundamental question.

Does the Constitution allow an LWOP sentence for a crime in which nobody was killed when the crime was committed by a person before the age of 18?

There are three starting points when you try to offer a legal answer, depending on how you view the Constitution and the Supreme Court. There's a fourth if you just engage in the RealPolitik of the Court.

1. If you're a narrow-minded textualist who believes that things are generally permitted if they are not forbidden, you look at the words of the Constitution and notice that it doesn't say anything about either children or life without parole (or life or parole, for that matter) and wonder if there's something in the words "cruel and unusual" that applies here anyway.
2. If you're a believer in precedent, you look at what the Court said in 2005, in Roper v. Simmons (the death penalty for juveniles is unconstitutional) and wonder whether LWOP for kids is different in meaningful ways from death for kids. And you look at Kennedy v. Louisiana and wonder whether the rule about no death for non-homicides also means no LWOP.
   
3. If you believe in balancing tests, you look at the awfulness of the crimes and mutter about equivalence and rehabilitation and sentences that seem over the top.
   
4. If you're a believer in a growing, breathing, living Constitution, you look at what's going on in the states and search your heart and read the statistics and decide just how yucky you think it is to put kids away forever.
   
5. If you're a cynical outside observer engaged in RealPolitik, you try to figure out what Sonia Sotomayor and Anthony Kennedy will do.

It should be no surprise to anyone who's read this blawg for a bit that I've got a foot in most of those camps. (Don't try to count my feet. It's a metaphor.)

Textualism
Analytically, you really do have to start with the text. And it's true that the text really doesn't say anything about LWOP or kids. It allows the deprivation of both life and liberty with due process. (That's the Fifth Amendment and the Fourteenth.) And it prohibits "cruel and unusual punishments." (The Eighth Amendment, applied to the states through the Fourteenth.) But it doesn't give any actual guidance about what process is due or when a punishment is cruel or unusual or both. (Nor does it specificy whether it is prohibiting cruel punishments, unusual punishments, or only punishments that are both cruel and unusual.) Damn confusing document.

But even the most literal-minded textualists are willing to acknowledge (I think) that something doesn't have to be specifically forbidden in order to be forbidden. There's at least some Fourth Amendment limitation on wiretaps, for instance, even though there were no wires to tap when the Bill of Rights was adopted and the word doesn't appear. The thing is that we know what the most rigid textualists think about cruel and unusual punishment. Justice Thomas, joined by Justice Scalia told us in Baze v. Rees. It involves some sort of torture. (I'm omitting citations without indication.)

[T]he evidence we do have from the debates on the Constitution confirms that the Eighth Amendment was intended to disable Congress from imposing torturous punishments. It was the absence of such a restriction on Congress' power in the Constitution as drafted in Philadelphia in 1787 that led one delegate at the Massachusetts ratifying convention to complain that Congress was "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." Similarly, during the ratification debate in Virginia, Patrick Henry objected to the lack of a Bill of Rights, in part because there was nothing to prevent Congress from inflicting "tortures, or cruel and barbarous punishment[s]."

But the text need not be read so narrowly, need not be constrained by Patrick Henry's fears. And, anyway, who's to say that LWOP for kids isn't torturous?

Precedent
Then there's Roper. The Court said, as it routinely does, that death is different. And it said that kids are different. From that (and from looking at the states and the world and the data and their hearts), five of the Justices concluded that the death penalty for juveniles was unconstitutional. It's a starting point, perhaps. But where in the case does it start? If Roper is essentially about death, because death is different, then it's irrelevant. If Roper is essentially about kids being different, then it's relevant but doesn't really give an answer.

Are they different enough for LWOP to be prohibited? There is, of course, no proper answer to that question. It is, rather, a law school question. Lawyers and judges routinely pay verbal obeisance and declare fealty to it. We argue by analogy (A like B, therefore A; no, A is like the rejected C, therefore not A.) because that's the proper framework for what we do. Whether it has any real world application is a wholly different matter.

Balance
Balancing tests work this way. You look at the importance of something, and then you look at the problems with it. Then you decide whether it's more important or more problematic.

High courts love balancing tests because they let them do whatever they want. Lower courts like them less because they can't always pass the buck and say that the high court forced this or that decision. Lawyers can live with them in practice because they allow us to argue whatever we want though they make it tough to give clients the information they want. (Will I win?) Clients hate them in practice because they want advice and information that's exact (Will I win?), and all we can do is give probabilities or discuss arguments.

In these cases, the test goes something like this. (I was going to do this with a catchy graphic of the scales of justice, but I can't figure out how.)

Weigh this: There are horrible crimes committed by incorrigible kids. We need to protect the public by locking 'em up forever.

Against this: Everyone has some possibility of redemption and kids especially have the ability for rehabilitation. We don't need to throw away the keys.

Living Constitution
You know. It's the rule that says the Constution means whatever it means today, regardless of what it meant when adopted - or last week, for that matter. At it's most vacuous, it's bomfog (an acronym coined by reporters covering Nelson Rockerfeller who used to talk in all his speeches about the brotherhood of man and the fatherhood of god). More substantively, it's what allows consideration of all those things that are more than Horatio dreamt of in his philosophy.

What does it do here? Who's to say? Roll everything up and see what happens.

Kennedy and Sotomayor
Sometimes you just have to do the math. Scalia and Thomas dissented in both Roper and Kennedy. If they don't believe the constitution prohibits the death penalty for juveniles who kill or for people who don't kill, it's about impossible to see why they'd think it prohibits the death penalty for juveniles who don't kill. Roberts and Alito weren't on the Court when Roper was decided, but they were there to dissent in Kennedy. I don't imagine anyone doubts how they'll vote.

Breyer, Ginsburg, and Stevens, the Court's centrists (no matter what the press keeps saying, there hasn't been a true liberal on the Court since Brennan and Marshall retired), said you can't kill kids and you can't kill people who don't themselves kill. It's a fair bet, though far from a sure thing, that they'll say you can't put kids who don't kill away forever.

And then there's Kennedy and Sotomayor.

Kennedy is, of course, the justice of literary bomfog. ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he said Lawrence v. Texas, roughly quoting himself.) He's the closest thing to an old-fashioned libertarian conservative on the court today, but he's not particularly close. Since Justice O'Connor resigned, it's been clear that, on close questions, the Constitution ultimately means what he thinks it means. But what he thinks is hard to pin down. He opposed the death penalty for kids and for non-killers. But LWOP? Your guess is as good as mine.

And then there's Justice Sotomayor about whom we can simply say that we don't know.

OK, that's the framework analysis. Now, what does it all mean? On the one hand, it means that the law is, and the Constitution says, whatever five of the nine justices say it does. It means that the smart money is on Anthony Kennedy to decide Sullivan and Graham. It means that they may well come out differently.

Sullivan was 13 when he was sentenced to LWOP; Graham was 19, though he was 16 at the time of the underlying crime, so age may make a difference. So may the processes by which the cases got to the court. One or the other (or both) may be found to have waived the issue by not pursuing it properly in the lower courts. And, of course, their crimes and criminal records are different. Will any of this matter? Nobody knows.

But this isn't about prediction. It's about what's right. So let me begin with the caveat.

Scalia is not wrong to denigrate approaches to constitutional interpretation that are wholly divorced from its actual words and the framers' intentions, but we should be taking them as springboards for rather than limitations on analysis. If the Constitution means whatever five of nine justices happen to think it means this week, then it means nothing. It's just a vehicle for anarchy.

On the other hand, the Constitution is broad. And while some of its terms are simple enough. (One must be 35 years old to be President.) Others are remarkably squishy. (What is due process, anyway, and how much is due?) And, of course, our world is not the world of 1787 when the Constitution was adopted, or 1791 when the Bill of Rights was. Interpretation isn't, and really can't be, as ministerial a task as Scalia and Thomas often like to say, as Chief Justice Balls 'n' Strikes maintained at his confirmation hearings, or as the wise Latina told us at hers. And thank god.

So let's look at what we're talking about. Juveniles. Kids who were under 18 at the time of their crimes. That's an arbitrary age cut-off, of course, but it's what we use for many things, and it will have to do. They were convicted of doing seriously bad things (in Graham's case doing more while on probation). Their current sentences are death in prison with no possibility of release. It's a nightmare sentence. And it is, frankly, nuts.

Put aside the horror of a life confined and wholly without hope. Ask why we must keep the death bed patient in prison. Out of fear of just what do we refuse to release the quadraplegic? What's the point behind a sentence that allows for no review ever? And then apply those questions to kids.

If you don't believe the neurological and psychological studies of children, then perhaps you can believe the anecdotal evidence.

Here's Alan Simpson, Republican, who served 16 years in the Senate after his own childhood bouts with arson, burglary, and gun violence, writing in the Washington Post.

When a young person is sent "up the river," we need to remember that all rivers can change course.

And here's former juvenile offender, and unsuccessful Detroit City Council candidate Raphael Johnson, writing in Newsweek,

I'm proof that people, especially teens, can't be judged by the worst thing they ever did.

Sister Helen Prejean likes to make that same point: None of us is as bad as the worst thing we've ever done. And ultimately nobody is without hope of redemption.

These cases don't ask about actually releasing juveniles. They ask about possibility. Not should Sullivan or Graham be released someday but should they be allowed to seek release, and should there be a mechanism for granting it if it seems like a good idea at the time.

Put the legal and constitutional arguments aside, if you will. Ask the proper question: Why the hell would we want to impose LWOP on anyone? I get that it's something other than death to help avoid executions. But on it's own terms it's cruel and pointless. And, by the way, it's likely that it makes prison administration harder.

Now we'll return to the Constitution. A punishment that makes no logical sense and has no ultimate rational purpose except cruelty for its own sake, should be prohibited as cruel and unusual and as government action without due process. There's really never a constitutional justification for LWOP.

It's death in prison. Death penalty light.

The kids should win.

Alas, that's a goal, not a prediction.

UPDATE

Doug Berman predicts that however these cases come out, neither will be decided on a 5-4 vote.

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*The Court will round out its morning with a case involving patent law, Bilski v. Kappos, about which I have absolutely nothing to say.

And the Truth Shall Reveal You Killed an Innocent Man

Open covenants openly arrived at.

If you are of a certain age, perhaps you remember that idea from high school history classes. It was the first of Woodrow Wilson's Fourteen Points for how to establish and ensure world peace. In full, that first point called for

[o]pen covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

Naive, certainly, and it turned out an impossible way to conduct diplomacy, it was also a powerful statement about the importance of transparency.

If it doesn't work for diplomacy, though, we've enshrined it in the Constitution for court proceedings. It's at the beginning of the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.

The grand jury which is where charges are brought in the first place is another matter. Here, for instance, are the secrecy provisions for grand juries as set out in Rule 6 of the Ohio Rules of Criminal Procedure:

(E) Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No grand juror, officer of the court, or other person shall disclose that an indictment has been found against a person before such indictment is filed and the case docketed. The court may direct that an indictment shall be kept secret until the defendant is in custody or has been released pursuant to Rule 46. In that event the clerk shall seal the indictment, the indictment shall not be docketed by name until after the apprehension of the accused, and no person shall disclose the finding of the indictment except when necessary for the issuance of a warrant or summons. No obligation of secrecy may be imposed upon any person except in accordance with this rule.

All of which is a fancy and long winded way of saying that although people who were witnesses at a grand jury can talk about what they said if they want to, nobody else can talk about what went on there without a court order, which isn't easy to get. Oh, and the prosecutor can be told. (The federal rule is far more complicated, and much longer, but it similarly favors secrecy.)

There may be good reasons for keeping grand jury proceedings secret. In 1910, the Supreme Court of Ohio offered this partial explanation in the legalese of the day.

It is not constituted evidence in the case for any purpose. The proceedings before the grand inquest is not a trial. As yet it has no adverse parties before it, and the person whose conduct is being investigated has no right to appear there except by permission, and then not as a party, but as a voluntary witness. He cannot take his attorney with him before the inquest, nor has he a right to interview grand jurors touching what is said or transpires there. Therefore, the grand jury room is a secret chamber where, independent of fear, favor and affection, and unmoved by malice, hatred or ill-will, charges against persons may be investigated and indictments presented, if the facts warrant such presentment.

All of that means that grand jury testimony is (1) untested, and therefore not all that reliable, and (2) far more reliable than trial testimony so that (3) it's good for everyone that it be kept secret. Is your head spinning yet?

In fact, of course, all sorts of investigative proceedings are kept secret while they're underway. The question is whether that's a good idea. Which brings us, as we've so often been brought, to the case of Cameron Todd Willingham.

You'll recall where we are in the plot. Governor Perry had taken the opportunity, two days before the Texas Forensic Science Commission's hearing on Willingham's innocence, to replace the chair of the Commission. That ground the hearing to a halt before it began.

Perry said it was the merest coincidence. He wasn't trying to interfere with the Commission - and any commission who said otherwise (and there was, indeed, such a member) was a damned liar.

Why, after all, would he oppose the hearing. The purported expert hired by the Commission was only a "supposed" expert (the word and the quotation marks are both Perry's by the way) nobody would believe. And anyway, Willingham was a monster and therefore must have killed his children and deserved to die even if he had nothing to do with the fire in which they died. And of course he must have started the fire because he was a monster who deserved to die and the experts who said he didn't were only "supposed" experts .

Pretty much nobody believed Perry about the coincidence thing then. Pretty much nobody believes it now.

Well, we've now got some follow-up. Scott Henson at Grits For Breakfast directs attention to the news, as reported in the Texas Lawyer, that the newly appointed chair of the Commission, John Bradley, wants to hold that hearing after all. But in secret. You see,

It’s not a good idea to conduct an investigation in a public forum.

He doesn't say why, exactly, though he does opine about the risk.

When investigations are conducted in public, it is difficult to protect them from outside influences.

Just what those influences might be is hard to say. Perhaps the media might intimidate the Commission into honesty?

Here's 's summary of what Bradley plans to propose to the Texas Senate Committee overseeing this cluster fuck.

• Making investigations secret and meetings about them closed.
• Re-education of commissioners: "Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says."
• Lengthening terms for commissioners. (No word why the governor couldn't just reappoint if continuity is so important.)
  
• Creating new rules and procedures for the commission (no detail).
• "Clarifying" whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire's word for it.)

And here's his commentary.

Hardly anyone attends FSC meetings - at the last one in Houston not a single media member showed up, including this blogger - so the secrecy request can only be a reaction the Willingham uproar, which was raised to a national issue with Bradley's abrupt appointment by Governor Perry to chair the FSC and his subsequent decision to cancel all commission activities. What's more, Bradley thinks the public shouldn't get to know what taxpayers bought for $30K from the expert hired to advise the commission - a proposition that seems like a really big stretch, to me, anway.

Dick Cheney would be proud. It's so much easier to whitewash the truth if nobody gets to see you doing it.

Kill Them Anyhow

There really is more than enough blame to go around.

The other day, Scott put up a blistering post about Sullivan & Cromwell, one of those biglaw, white shoe firms that took on a death penalty case in Alablama and then screwed it up. Here's the story, mostly courtesy of Above the Law, which is where Scott found it.

Alabama doesn't provide post-conviction counsel to pursue issues that aren't part of the trial court record. (You know, newly discovered evidence, ineffective assistance of counsel, favorable evidence improperly hidden by the prosecutors, that sort of thing.) So when Cory Maples was sentenced to die, he needed volunteer help, and he needed it badly. The ABA has a whole recruitment and assistance project for just that purpose. So do a couple of local bar associations.

It's important work, and biglaw is perfectly capable of doing it. When those firms take on the cases they can provide the resources that are desperately needed (and were probably denied at trial) for trial phase level investigation, for mitigation investigation, for mental health investigation. They have banks of attorneys that can do research and write, and they have access to experienced capital lawyers - not mostly on staff, of course - who are willing to offer assistance.

In Cory's case, Sullivan & Cromwell came through, providing a couple of associates in its pro bono program and whatever all else they did. They filed their papers and pursued their case in the Alabama trial court. To nobody's great surprise (or so I imagine), they lost. That's how these things work. You're making the record and taking it up the legal ladder looking for a court that will grant some relief. But you have to make the record (apparently S & C did), and then you have to be sure to keep it alive.

All law has procedural hurdles. That's especially true of criminal law, and especially of post-trial criminal law, and especially of capital post-trial criminal law. The first of these hurdles is not to miss a deadline that counts (some do, some don't). S & C missed a big one. They didn't file a notice of appeal after they lost in the trial court. In fact, they didn't even know they lost in the trial court because they returned the notice unopened.

See the lawyers who were handling the case had left S & C and the new lawyers hadn't filed an appearance and . . . . Oh, hell. There's really no excuse.

S & C tried to fix it. They asked the judge to reissue the order. He refused to participate in that sort of "subterfuge." They asked the court of appeals to let them off the hook. Nope. Deadlines is deadlines. (And death is death, of course, but that rarely seems to bother a court.)

Scott's point, not wrong, is that S & C blew it.

Biglaw has made some significant contributions to the cause of death row defendants, taking their cases pro bono, both as a public service as well as a training exercise for their associates. Better that they should practice on death row inmates than major (paying) corporations. Mistakes on paying clients had dire consequences. Mistakes on death row inmates, not so much. Even if their motives were suspect, at least they filled a void of representation, and often did some great work and won some major victories.

But Cory Maples remains on death row because Sullivan & Cromwell blew a deadline. I wonder how many partners and associates will turn out to watch as he's put to death. The execution chamber isn't big enough for a law firm of Sullivan & Cromwell's stature.

That's all right. And it's an important bit of chastisement that S & C will probably never notice.

But there's another point lurking here. One I pointed out in a comment to Scott's post and for which I received a legitimate reprimand. He didn't say I was wrong, he said that he chose the point he wanted to make.

I'm choosing mine, and making it here.

S & C screwed up, which is terrible. But death penalty cases are screwed up all the time. The real problem is that we let them get screwed up and then don't provide a repair mechanism.

When Roger Coleman (a guilty man who convinced a great many otherwise savvy people he was innocent and who had a strong enough innocence claim that, at one point, he might well have been found not guilty had he been retried) lost his post-conviction proceeding in Virginia, his lawyers missed, by three days, their deadline for appealing to the Virginia Supreme Court. That court dismissed the appeal as untimely. The U.S. Supreme Court agreed.

This isn't about Coleman, Justice O'Connor made clear in the first sentence of the Court's opinion. It isn't about whether an innocent man should be put to death. It isn't about fairness or decency or justice. It's about something else, she said.

This is a case about federalism.

With those words, she killed Roger Coleman, though it took another year before the folks in Virginia actually strapped him in the electric chair.

See, like Alabama, Virginia didn't really give a hoot about anything except its damned procedures. And Coleman's lawyers screwed them up.

When a lawyer screws up a civil case, the lawyer can get sued for malpractice so that, at least in theory, the poor sod who's out some money can recoup it from the lawyer. When a lawyer screws up a capital case, the poor sod gets executed.

Take Ohio. We have a statute that says that a person who has been sentenced to die is entitled, on request, to appointment of counsel to represent him in preparing and filing post-conviction pleadings.

The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

Sounds good, doesn't it? The condemned gets not just any lawyer, he gets a lawyer who has gone through special training, has experience, and has been certified by the Supreme Court as being qualified to take on this sort of work.

What's that you say? I didn't quote the next sentence of the statute? OK, here it is.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

Yep. That's really what it says. You're entitled to the appointment of highly qualified and certified counsel. The state will choose your lawyer from only those it's quite sure will do a good job. But if the lawyer doesn't? That's your problem.

It's not the lawyer's problem. It's certainly not the state's problem. You get a lawyer. But it's OK if the lawyer fucks up. No flies on the state. You just die.

So what are we doing here? Why in the world should Alabama not have an obligation to ensure that the people it wants to kill are actually well represented? Why should it think that its deadline is more important than ensuring that Cory Maples really is guilty and really deserves to die? Why should Ohio say you're entitled to a lawyer, and they'll even provide one, but if the lawyer messes up, that's your problem?

Capital cases are screwed up all the time. Trial lawyers make horrific mistakes or just do a terrible job. So do appellate lawyers and post-conviction lawyers and federal habeas lawyers. We're all running around trying to clean up the messes left by the lawyers below.

The states create unforgiving procedural hurdles because finality is so much more important than niceties like getting the right result. Congress set up even more unforgiving hurdles and absurdly rigid standards to make it harder for the men and women on death row to show that they shouldn't be there. The courts enforce those standards and hurdles with inconsistent but all-too-often unforgiving rigor.

Big law. Little guy. Doesn't much matter, in the scheme of things. When the mistake is made by the lawyer, we kill the client.

And nobody seems to give a damn.

Uglier and Uglier

So much to talk about, I'm not sure where to begin. And I'll have to board my plane in a few minutes. So here's two stories, quick and dirty. With links.

Maricopa County

Right now, there may be no more openly lawless place in the country. Let me be clear about that. The law there is lawless, and the law is just fine with that. Here's the video.

You see Sheriffs Deputy Adam Stoddard decide to invade the attorney-client privilege. He pulls a paper out of defense counsel's file. He reads it, gives it to another deputy to copy. That's a theft offense. He gets caught.



Defense counsel points it out to the judge, who was willfully blind. Good for counsel, but when the judge tells her to calm down, she does. Bad for counsel. What just happened calls for force and continuted outrage. The prosecutors were no more than four feet away. Like the judge, and in the inimitable words of Sergeant Schultz, they "saw nothing." They are, of course, the forces of legal law and order. They are mute.

The follow up comes from Heat City. (Actually, all of this comes from Heat City.) There was a hearing before the presiding judge. Stoddard lied, repeatedly, in court. Then the lawyer who represented Stoddard apparently contradicted his client. Then the judge declared that he would do nothing about the invasion of attorney-client privilege unless the client agreed to waive the privilege.

More outrage over this at Defending People and Simple Justice.

Ohio Supreme Court

It's come to pass. The Ohio Supremes today scheduled two more executions. Michael Beuke is now scheduled to be killed on May 13. Richard Nields is scheduled for June 10.

Of course, right now, and as a continuing consequence of the failed execution of Romell Broom, Ohio doesn't actually have an execution protocol. But it has hearings scheduled in federal court in July to decide how to kill. So what happens in May and June? Or to Mahdi in January, Brown in February, Reynolds in March, or Durr in April?

Perhaps we'll torture them to death. Maybe not. The Supreme Court is, it would seem, just interested in keeping the machinery moving.

Oh, and in that same stack of orders that included the dates for killing Beuke and Nields, the court refused to reconsider its decision that Broom can't use the information that was originally and unconstitutionally hidden from his lawyers to try and prove that he shouldn't have been convicted and shouldn't be executed.

There's a whole lot of bad to go around.