Friday, November 21, 2014

Print the Legend

Those of you of a certain age know that Davy Crockett was the last defender at the Alamo to be killed, swinging his empty rifle (ol' Betsy) like a baseball bat at the hoards of Santa Ana's men who've overrun the mission-turned-fort.  

Or so Walt Disney told us.  There is in fact some reason to believe not only that the detail is not true but that David (his preferred way of referencing himself) Crockett was actually captured by Santa Ana's troops and then executed.  What's the truth?  Does it matter?

Hold those questions for a moment while you consider the blog of Judge Richard Kopf, "Hercules and the Umpire."  Judge Kopf speaks his mind, which makes his blog interesting.  It also, sometimes, generates controversy.  After all, he speaks his mind.  And some folks think he ought not have one. 

Or at least keep the fact that he has one a secret.  I a post this morning, he addressed the subject directly.
If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity.
He quotes Alison Frankel from her blog at (I'm deleting her internal links).
I also believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.
Ms. Frankel calls herself a reporter in the first sentence of that blog post, and in the bioblurb that accompanies it we're offered supporting evidence.  
A founding editor of the Litigation Daily, she has covered big-ticket litigation for more than 20 years. Frankel’s work has appeared in The New York Times, Newsday, The American Lawyer and several other national publications. 
Which is pretty good.  Especially for someone who doesn't actually favor knowing what's true.  The emperor must have his new clothes.  How dare the child reveal the truth!  

Her jumping off point is an article written by Mark Bennett (federal judge Mark Bennett, not Houston criminal defense/first-amendment lawyer Mark Bennett) which mentions that the good work of trial lawyers has resulted, among other things, in “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.” And which, along with other comments in the article, led Phillip Morris to try to convince him to recuse himself from a case because he'd demonstrated his bias. (He declined.)

Frankel concedes that the law doesn't require Bennett's recusal.  But she'd like it better if the issue had never been able to be raised.
Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.
After all, the point is to maintain illusion, to keep the secret, for judges to pretend to have no thoughts, no ideas, no beliefs.  To preserve the pretense of Olympian disinterest in the affairs of humans.  Majestic objectivity.

That's all nonsense, of course.  What we can hope from judges is that they will set their perceptions and perspectives aside and decide cases based on the law and the evidence.  We cannot expect, and really should not want, judicial automatons.  The question is whether we want the lie or the truth?

Which brings us to most famous line from The Man Who Shot Liberty Valence.
When the legend becomes fact, print the legend.
Because what Jack Nicholson said is true for Alison Frankel.
You can't handle the truth.
The thing is, we aren't in Oz anymore.  And really, we never were.  Hiding one's head in the sand really doesn't change anything.

On Just Whose Ox Gets Gored

Give Paul Cassell credit.  He said one thing that's right.
The evidence should determine the outcome in this case — not threats of violence.
Beyond that, it's all hooey.

The issue is Darren Wilson in Ferguson and whether he'll be indicted for murder.  (Spoiler alert: Nope.)  And it's Cassell's latest screed on the subject.

Here's how it works in the hypothetical Darren Wilson grand jury. If the prosecutor wanted to charge Wilson with murder, he would send in one, maybe two witnesses.  The grand jurors would hear three pieces of evidence:
  1. Michael Brown was unarmed.
  2. Darren Wilson shot Michael Brown.
  3. Michael Brown died from the gunshots.
The prosecutor would explain to the grand jurors that the elements of murder were satisfied.  The grand jury would then charge Darren Wilson with murder.  It would be done in an hour.  Any defense?  That's what trials are for.

Here's how it works in the hypothetical actual grand jury.  The prosecutor spends weeks bringing in witnesses who explain that 
Sure Michael Brown was unarmed but you have to understand the circumstances from Darren Wilson's point of view and here are the things that would constitute his defense and remember that he was a cop just trying to do the best he possibly could and Michael Brown was a street punk who probably deserved it and who's going to keep you safe at night if the cops are afraid to anything to protect themselves and you lest they be charged with murder and really the son of a bitch deserved it and anyhow really cops don't get convicted so why bother.
Now, says the prosecutor, here are the elements of murder which I suppose if you folks went out on a limb you might find but remember all that evidence of innocence and the defense that Wilson would present and you know that he won't be convicted anyhow and why tarnish a good man's reputation but if you feel that he's guilty beyond a reasonable doubt I suppose maybe, but really, we don't think we can prove it.

Here's Cassell explaining the glorious things that would will happen if when the grand jury returns without an indictment.
If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber — i.e., Brown.
None of that, none of it, is what grand juries do in the ordinary case.  Grand juries hear a summary of evidence of guilt and return indictments.  They determine not whether there's a defense, not whether the presumption of innocence has been overcome.  They determine whether summary of evidence of guilt is sufficient to say, gee, this guy oughta be tried.

The rest, that's all for trials.  It's from the trial, where the evidence of guilt is presented to a jury of 12 in a courtroom operating under the rules of evidence, where the evidence is challenged by cross-examination, where the defense gets to put on its witnesses (who the prosecutor can cross-examine), it's from there that the public can learn those important civics lessons.

Cassell knows that, of course.  And he's perfectly happy with the grand jury hearing a summary of evidence and then indicting in the ordinary case where it's Michael Brown being charged with involuntary manslaughter for causing his own death by stealing the bullets that were being flung at him by an officer's gun.  But Darren Wilson?

Law of Rule.

Tuesday, November 18, 2014

An Adversary System without Adversaries

Some background:
Ohio law says that the Ohio Supreme Court must review every death sentence on direct appeal.  A rule of the Ohio Supreme Court, a rule crafted by the Ohio Supreme Court, says that no brief can be filed after the date it is due.  Another rule prohibits asking permission to file a brief late.  Yet another rule says that if a party doesn't file a brief, it cannot participate in oral argument.  There is no rule prohibiting asking to waive that rule.  (Confused yet?  Welcome to the Buckeye State's Supreme Court where they refuse to file documents unless that don't comport with the rules and where they don't give you additional time to fix screw ups.)

A true story:
The prosecutor in one of my death penalty cases blew the deadline.  A clerk at the court, who wasn't paying sufficient attention, filed his brief anyway.  A week or so later, the court, on its own, struck the brief from the record.  When they scheduled oral argument, the prosecutor wasn't invited.  After all, he hadn't filed a brief.  He asked to participate anyway.  They said no.

And so, I had a death penalty case in the Ohio Supreme Court where the state did not present a written or oral argument.  I was unopposed.  I had the brief.  I'd made the arguments in writing.  I had 30 minutes to address the court, answer their questions, be thoughtful and eloquent and persuasive.


Another true story:
M.P. was stopped by the highway patrol for a traffic offense.  The cops charged him with that, but also with a couple of misdemeanor drug offenses.  After he pled guilty to the traffic offense, the prosecutor dismissed the drug offenses.  So P. asked to have the drug charges expunged. After all, they weren't important enough to pursue.

The trial court said 
Sure. Expunge 'em.
The prosecutor appealed.  
The charges may not have been important enough to pursue, but by god P. needs to have them on his permanent record so that they can screw up his life.  
The court of appeals told the prosecutor to pound sand.  It agreed with the trial judge.  
Life is good.  P. paid his lawyer and left Ohio.  And the prosecutor said 
This cannot be.  We have to fuck with this guy and make sure he can't get on with life.
So he asked the Ohio Supreme Court to hear an appeal.

P?  He was living in another state.  Didn't know the case had been appealed.  Had no real interest in it, anyhow.  And his lawyer?  He'd been paid.  he was done.  The supremes agreed to hear the state's appeal.  Only the state briefed it.  Only the state argued.


Yet another true story:
After the Supreme Court (US this time) decided Miranda v. Arizona (You have the right to remain silent, etc.), they enacted a statute attempting to overrule it.  For a couple of decades, nobody paid any attention to that statute.  Then a guy named Dickerson robbed a bank.  He confessed to the FBI, but they didn't give him Miranda warnings.  The court threw out his confession.  The court of appeals reversed citing that statute.  Dickerson asked the berobed ones in Washington to hear the case.  They agreed, but they had a problem.  The government wasn't willing to defend the statute.  Dickerson said the statute was worthless.  The government didn't disagree.  

And so the Supremes appointed Paul Cassell (who never met a defendant he didn't hate or a victim he didn't think should be able to be a second prosecutor - and get paid by the defendant for her trouble) to argue that the statute was constitutional and did, in fact, overrule Miranda.  
Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.
As it happens, Dickerson won (Dickerson v. United States).  3501 returned to the dustbin where it had been languishing.
* * * * *

The distinctions here matter.  

The U.S. Supreme Court, for all its faults, knows that because it resolves only real cases, it needs to hear arguments from both sides.  If the party on one side isn't interested in participating, it will appoint someone to argue that position.  

The Ohio Supreme Court, like the one in Washington, is supposed to hear and resolve only real cases. Unlike the one in Washington, the Ohio Supreme Court doesn't think it's necessary to hear from both sides.  One side doesn't show up?  Lack of interest? Lack of money?  Lack of a good calendar?  Hey, they don't care.  A real case or controversy where there's only one party?  Welcome to Ohio.
* * * * *

And so we come to the case of Jalal T. Sleibi.  

He's a lawyer and he screwed up.  The Board of Commissioners on Grievances and Discipline recommended that his license to practice law be yanked for two years but that he should be on probation for the second of those years.  Sleibi thought that was a reasonable sanctio. The local bar association thought it wasn't enough.  Take his license away indefinitely, they said.

Before they made their argument to the Ohio Supreme Court, they took by agreement with Sleibi's lawyers, the one single, allowed extension of time they could get, an additional 20 days to file. Sleibi's lawyer  miscounted.  He thought he had 20 days to file a response.  Proud of himself, and in violation of most legal practice, he filed early, sent his response by UPS overnight on the 16th day, so that it arrived before 10 a.m. on the 17th.  Three days early.

Ooops.  He actually had 15 days to respond, not 20.  He was late by something like 36 hours.  His response, naturally, was rejected.  Can't file it when it comes in late, after all.

But there's no rule that says he can't ask to participate in oral argument.  Which he did.
Typically, parties failing to file merit briefs are deemed to waive oral argurnent. See S.Ct.Prac.R. 13.04(B)(2). However, there is no rule saying that this Honorable Court may not waive the foregoing rule as there is with seeking extensions of time after the expiration of the prescribed time. In consideration of the general interests of fairness and equity to Respondent Jalal Sleibi as it relates to his license to practice law and ability to support his family, and who personally is not at fault for the untimely submission of his Answer and Brief to Relator's Objections, Respondent's counsel respectfully requests that this Honorable Court extend to Mr. Sleibi the reasonable courtesy, exception and accommodation to permit his counsel to appear at the oral argument (yet to be scheduled) in the instant matter to argue his position in advocating the acceptance of the Board's Amended Findings and to reject the extreme recommended sanction of Relator.
This motion is not made for purposes of delay, harassment or to burden Relator or this Honorable Court, and the granting of the instant motion will not cause any prejudice to any party. This position rests not only on the facts as set forth herein, but also on the proposition that given the nature of these proceedings with exclusive jurisdiction before this Honorable Court, Mr. Sleibi deserves to be afforded the opportunity to be heard and to have this matter decided upon the merits. Again, and while the substance of these proceedings, from an equitable perspective, would all-but-dictate some manner of an opportunity to be heard, counsel, for this same reason, requests that this Honorable Court allow an exception to S.Ct.Prac. R. 13.04(B)(2) and based upon principles of fairness and equity, permit counsel to argue Mr. Sleibi's position relative to those posited in Relator's Brief.
Which seems, when you think about it, pretty fair.  Just give us a chance to be heard.  Which is, after all, about the minimum of due process.

Unless, of course, you happen to be in the Ohio Supreme Court.

*In a later proceeding, we got the guy's death sentence reversed.  His sentence has been reformed. He'll come before the parole board in October 2038, just before he turns 82.  Of course, there's no reason to think he'll get parole, should he happen to live that long.  But it's a theoretical possibility.

Tuesday, November 11, 2014

Of course. But on the Other Hand, Not.

A lot of people, smart people, savvy people, devoted a lot of time and energy to proving that Roger Keith Coleman was factually innocent, that he didn't actually rape and murder his sister-in-law Wanda McCoy.  They tried to prove it before he was killed by the Commonwealth of Virginia, strapped into the electric chair.  

The case was, frankly, compelling.  And Coleman himself, with his last words, seemed to seal it.
An innocent man is going to be murdered tonight.  When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have.
Abolitionists were looking for the incontestably factually innocent guy.  Coleman seemed like a good bet.  There was, even after the execution, testable DNA.  If it wasn't his, and surely it wasn't.  There was litigation.  The press wanted the testing done.  Abolitionists wanted it done.  Virginia didn't want it done.  
My god, it might prove we killed the wrong guy.  Can't let that happen. 
The longer and harder Virginia fought, the more determined Coleman's advocates became.  Until, finally, eventually, Virginia caved.  The DNA was tested.

Turns out Coleman did it.  And he snookered a lot of people.

Which gets me to a point I've made before:  Innocence is tricky.

For one thing, it's damned hard to prove.  Which is why there's still no case of the incontestably, factually innocent person who's been executed.  Lots of candidates, of course.
  • Cameron Todd Willingham, executed for the arson murder of his kids in what almost certainly wasn't arson but was an accidental fire in which they died tragically but not homicidally. 
  • Carlos DeLuna, executed for killing Wanda Jean Vargas Lopez, a murder almost certainly committed by Carlos Hernandez.
  • Ruben Cantu, executed for killing Pedro Gomez during a robbery at which he probably wasn't present.
And that's just a couple from Texas.  There are more from Texas.  And more from your state if your state has done any significant amount of killing.  But you'll note that those cases all have qualifiers before the innocence.  Almost certainly innocent.  Probably wasn't there.  

The identification sucks. The cops lied.  The evidence was planted.  The glove didn't fit.   But none of that proves factual innocence.  It just means that there's no reliable evidence of guilt - or maybe even of a crime in Willingham's case.  Sure, we know the math.  If enough folks are executed, sooner or later there'll be a factually innocent one put to death.  And probably it's already happened a bunch of times.  But . . . .

So, I'm wary.   Yet I tell the stories because they're powerful.  And because there's a fundamental truth in them.  We don't know what the fuck we're doing.

And yet that wariness.  It's dangerous to proclaim innocence and then discover you've been talking about Roger Coleman.  Or, say Timothy Hennis who was sentenced to die for the rape and murder of Kathryn Eastburn and the murders of her two young daughters, then retried and found not guilty by a jury and then later convicted of the original killing. 

That danger, though, requires the ability to own up.

Those who were gulled by Coleman have to admit.  Ditto Hennis.  Which brings me, at last, to Anthony Porter and, especially, Alstory Simon.  

Porter was convicted and sentenced to death for the 1982 murders of Marilyn Green and Jerry Hillard.  He remained on death row until 1999 when the Medill Innocence Project, part of the journalism program at Northwestern University turned up compelling evidence that he was factually innocent.  That evidence consisted largely of Alstory Simon's confession.  

Porter was freed, Simon entered a guilty plea and was sentenced to 37 years.  Of which he served 15. He was freed a week and a half ago when State's Attorney Anita Alvarez concluded that his confession was coerced by lies and trickery and even an actor hired to pretend to have been a witness. And he was represented at his plea by a lawyer hired (or so it is suggested) in order to secure his prompt conviction.  Simon was, Alvarez concluded, probably shouldn't have been convicted.  Framed, so the reporting suggests, by the Innocence Project (not the students, the project's director and investigator) in order to secure Porter's release.  

You can, and should, read Jim Stingl's column about what they did to Simon in the Milwaukee Journal-Sentinel.  And then you should read Scott Greenfield.  And you should be outraged at what was done to Simon in the effort to free Porter.  

Kent Scheidegger, of course, sees this as "the exemplar of [the abolition] movement's bottomless dishonesty."  Because an example always proves the point and can with perfect fairness be universalized.  And because no prosecutor and no government agency every lied and cheated and coerced and did double dealing.  Which is why we can be assured that no innocent person has ever actually ended up convicted of a crime - except of course Simon who was convicted only on evidence trumped up by our side.

There's a couple of points to make here.

First, we don't know the truth about who killed Marilyn Green and Jerry Hillard.  Could Porter have done it?  It's possible.  Could Simon have?  Yeah, could be.  We don't know.  Porter was convicted though there are plenty of hinky things about the case.  He's right-handed.  There's reason to think the shooter was left-handed.  His lawyer slept through at least parts of his trial.  He has an IQ of 51 suggesting that he likely wasn't able to offer much help to his snoozing attorney.  

And, oh yeah, there were a bunch of other suspects the cops didn't bother to investigate.  Including a guy named Alstory Simon.  Who might, after all, have killed those kids.  Because a coerced confession isn't necessarily false.  And it's not like the Medill folks just picked him out of a phone book.  His name was out there from the beginning.  And there's a substantial body of evidence - however improperly obtained - that suggests he's guilty.  But maybe not.

Second, there's pretty compelling evidence that David Protess (who ran the Medill Innocence Project and now runs the Chicago Innocence Project) and his investigator Paul Ciolino pushed the boundries of investigation beyond where they can fairly go and that the prosecution of Simon and exoneration of Porter are both, after a fashion, tainted.

Third, and maybe this is the key point, the proper question now isn't who killed Marilyn Green and Jerry Hillard.  Put all the epistemological and metaphysical issues aside.  Maybe it was Porter.  Maybe it was Simon.  Maybe it was someone else.  It's beyond legal proof now.  Put competent lawyers and a reasonably fair judge on the case and it's hard to imagine a jury finding anyone guilty beyond a reasonable doubt.  {Nancy Grace, of course, would know - and maybe Scheidegger - but they begin with certainty which makes their verdict worthless.)

The proper question, the only one this sordid story leaves for us, is about Portiss and Ciolino.  Did they work to gull an innocent man into confessing so that they could tout Porter's case to the sky (and ultimately have it be a significant part of the motivation behind George Ryan emptying Illinois' death row.  Or did they just go overboard in the effort to prove what they truly believed (rightly or wrongly):  Alstory Simon rather than Anthony Porter killed those teenagers.

Police, we know, have on occasion doctored the evidence.  They did it to Odell Barnes.  There's reason to think they did it to O.J.  Not to take people they thought were innocent and get them convicted.  But to make a weak case stronger or to make a case out of one where it never existed. Because, dammit, they know who the bad guys are and their just helping the evidence along.  (It's the same reason they make shit up at suppression hearings.)  It's inexcusable, but it's understandable.

It's overzealousness.  Greenfield blames what Portess did on passion.  So passionate was he about wanting to free Porter that he railroaded Simon.  I don't think that's exactly right.  The problem wasn't passion - just as it's not with the cops most of the time. The problem was certainty.  He was just so damn sure of what happened that the mechanics of honest proof gave way.

As it does with the cops.

And the prosecutors.

And the judges.

And Kent Scheidegger, by the way.

The correct answer to nearly every legal question is, as nearly every lawyer knows, "It depends."  The great lawyer Irving Younger, in the first issue of the Georgetown Journal of Legal Ethics made the point.
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised.
The danger, as Younger doesn't quite say, is in over reliance on that "conventional certitude."  That's when the nightmare begins and they frame the innocent guy.  Or the guilty one.

Monday, November 10, 2014

Or They'd Have To Kill You

We knew it was coming.  They'd made that clear.  Ohio was going to enact a law to keep all the execution details secret.  

  • Who makes the drugs?  Secret.
  • How they get the drugs?  Secret.
  • Who administers the drugs?  Secret.
  • Who advised them about the drugs?  Secret.

And it would protect the folks involved in other ways.  

  • Prohibitions on pharmacists participating?  Not in Ohio.
  • Prohibitions on EMTs participating?  Not in Ohio.
  • Prohibitions on nurses participating?  Not in Ohio.
  • Prohibitions on doctors participating?  Not in Ohio.
  • Prohibitions on violating professional ethics? Not in Ohio.

As I said, we knew it was coming.  Hell, they'd announced it.  Gonna do it.  And do it fast so that the killings scheduled to begin again in February could go forward.  

And so, as this session of the General Assembly draws to a close, House Bill 663, a bill
to provide confidentiality and license protection for persons and entities involved in executing a sentence of capital punishment by lethal injection . . .
Which, as I said, we knew.

And I suppose, maybe, if I'd been paying more attention, I'd have known to expect the next part of that sentence, though frankly, it doesn't really capture just what they've done.
and to void as against public policy any agreement that prevents the supplying of any drug or drugs to be used in executing a sentence of capital punishment by lethal injection
So let me try and explain it.

The bill says, and I'll quote the specific language in a minute, that no government entity or agency or agent or whatever can make an agreement, formal or informal, to interfere with Ohio getting the drugs it needs to kill people.  And if there is such an agreement, it doesn't count.  

Which I guess makes some sense.  I mean, all that says is that, say, the Mayor of Toledo can't prohibit a druggist in Toledo from giving DRC the stuff it needs to kill the folks on death row.  Not even if the druggist wants to make that agreement with the Mayor.  And if they do make the deal?  It won't count and the druggist can give DRC the drugs anyhow.

But that's only part of it.  Because the bill also says that the owner of the drugstore can't prohibit his employees from providing DRC with the drugs.  Which is rather different.  And rather more dramatic.  

Of course, it's really not about the neighborhood drug store.  DRC isn't turning to Walgreens or CVS to get the stuff they need for the needles.  They're thinking compounding pharmacies that will make individual doses of the drugs that the major manufacturers won't sell because they don't want to be in the execution business.  Nor, of course, do the compounding pharmacies, which is why they're only willing to do this stuff if they can keep it secret.  

But there's still that stuff about the boss not being able to direct the employees.  Here's what the bill actually says.
(F) Notwithstanding any provision of law to the contrary, any contract, subcontract, agreement, addendum, or understanding, or any portion of any such document or understanding, that does either of the following is void and unenforceable as against public policy, as a matter of law, and shall not be recognized or enforced by any court against any entity, including, but not limited to, the state, state agency, governmental entity, or political subdivision that is a party to the document, understanding, or portion, any private corporation, or any person:
               (1) Any such document, understanding, or portion that prohibits the sale, distribution, or transfer of any drug or combination of drugs to the state or to a state agency, governmental entity, or political subdivision for use in the administration of a death sentence by lethal injection as provided for in division (A) of section 2949.22 of the Revised Code;
              (2) Any such document, understanding, or portion that is designed to prevent the state or a state agency, governmental entity, or political subdivision from obtaining any drug or combination of drugs for a use described in division (F)(1) of this section.
I guess I don't really believe that the folks who drafted that language meant it quite as broadly as they wrote it.  I don't really think they meant that no person (like the owner of a compounding pharmacy) can make an agreement with another person (like a compounding pharmacist) to prevent that person from providing lethal drugs to the state.  I don't think they meant that.  More precisely, I don't think they thought about whether that's what the language of the bill might mean.

But sloppy legislative drafting has consequences.

Of course, maybe they did mean it.  Jackie Borchardt for quoted Bill Batchelder, the Speaker of the House explaining why it was so important to get this bill out in a hurry.
That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution.
Yup.  If we don't act fast, people will die before we can kill them.  Can't have that.  The sentence, after all (and I've noted this before) isn't death.  That's unavoidable.  The sentence is to be executed. If the condemned person dies, that means justice (whatever justice may be) wasn't inflicted.

Can't have that.

Though maybe if we kept it a secret and then strapped the body down . . . .

Sunday, November 9, 2014

Yea, though I walk through the valley of the shadow of death

A law student, a legal intern in our office who's licensed to argue under direct supervision of a lawyer who sits at counsel table with him, was arguing his first case in the court of appeals.  The trial court had suppressed evidence.  The state appealed.  The student/intern was defending the trial court's decision.  I went to watch and provide moral support.

He did a fine job, and he had great facts to work with.  He'll probably win though there are no guarantees in this business.

I'll be happy if he wins, of course.  It's the right outcome legally.  It's a victory for our client.  It'll be great for him.  And maybe it'll go some toward getting the cops to knock off an unconstitutional practice.*

But as I told him afterwards, it's generally not a good thing for criminal defense lawyers to win their first case.

Oh, sure it feels good.  And it's certainly good for the clients.  But it teaches a lie.

I am, I hope, a far better lawyer than I was when I took my first case.  I know more.  I have a better feel for how to present arguments, how to ask questions, how to answer them.  I'm better able to make the stage of the courtroom my stage.

I'm also, and this is getting toward my point, more used to the battering.

Those of you who are in this business, those of you who observe it, those of you who read this blog, you know that being right is the least of it.  You know that proof is what juries believe, not necessarily what happened.  You know that the deck is stacked, the cards marked.  You know that when the facts are ugly the Law (that uppercase thing defined by case law and rules and statutes and the shit they teach in law school and that law professors actually do believe in and judges pretend to believe in - often pretending to themselves) doesn't count at all. 

We do this business often from our knees.  We cry and beg and genuflect.  And sometimes, of course, we prevail.  The reality, though, is that mostly we don't.  Mostly we get, at best, a loss not as bad as it could have been.  Maybe that's a plea bargain.  Maybe it's a sentence less than the prosecutor wants. Maybe it's a guilty verdict on a lesser-included offense.  Maybe it's . . . .  But of course, sometimes.

Sometimes the drugs get suppressed.  Sometimes the jury says, "Not Guilty."  Sometimes the client goes home, not even on paper.

And sometimes they strap him down on the table and stick needles in his arms and fill him full of shit that's designed to kill him - and almost always does.

It is, as I said to the student/intern, generally not a good thing for criminal defense lawyers to win their first case.  

It's good for the client, of course.  And it's good for the ego.  But it leads to the false expectation that this business is easy, that we can win regularly - as long as we're right or smart or lucky.  Which can make the brutality of day-to-day results harder to bear.  Because really, that shouldn't happen.

No, better to lose up front.  Learn to take a punch.  Because here's the daily truth of what we do.

The Charge of the Light Brigade

Half a league, half a league,
Half a league onward,
All in the valley of Death
   Rode the six hundred.
“Forward, the Light Brigade!
Charge for the guns!” he said.
Into the valley of Death
   Rode the six hundred.

“Forward, the Light Brigade!”
Was there a man dismayed?
Not though the soldier knew
   Someone had blundered.
   Theirs not to make reply,
   Theirs not to reason why,
   Theirs but to do and die.
   Into the valley of Death
   Rode the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon in front of them
   Volleyed and thundered;
Stormed at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of hell
   Rode the six hundred.

Flashed all their sabres bare,
Flashed as they turned in air
Sabring the gunners there,
Charging an army, while
   All the world wondered.
Plunged in the battery-smoke
Right through the line they broke;
Cossack and Russian
Reeled from the sabre stroke
   Shattered and sundered.
Then they rode back, but not
   Not the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon behind them
   Volleyed and thundered;
Stormed at with shot and shell,
While horse and hero fell.
They that had fought so well
Came through the jaws of Death,
Back from the mouth of hell,
All that was left of them,
   Left of six hundred.

When can their glory fade?
O the wild charge they made!
   All the world wondered.
Honour the charge they made!
Honour the Light Brigade,
   Noble six hundred!

*I'm not holding my breath on that one, this being Ohio and all.  See State v. Hoffman and Orin Kerr's note on it.

Thursday, November 6, 2014


It is impossible to purposely or knowingly cause an unintended death.
If you're not a lawyer, that probably seems self-evident.  After all, you can't mean to do something you don't intend to do, can't try to cause an accident because then it won't be, well, an accident.  It'll be an on purpose.  

If you're a lawyer, though.  That's the shit we cut our teeth on.  

The crime is felony murder, "Murder B" we call it since it's the form or murder proscribed by subsection B of Section 2903.02 of the Ohio Revised Code, the section that defines the crime of murder.
(B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.
It's what's known as a strict liability offense.  If you're committing one of those other felonies and as a proximate result (a fuzzy term in practice, at least sometimes, but the fuzziness doesn't matter here) someone happens to die, you're guilty.  You didn't mean to kill anyone?  The death was an accident? Too bad.  Shit happens.

It's also a crime to attempt to commit a crime.  That's section 2923.02 of the Revised Code which says, in subsection A,
(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.
Which makes it a crime to "purposely or knowingly" try to commit another crime.

Bobby Nolan went to trial and the jury found that, among other things, he was guilty of attempted felony murder.  Which the court of appeals, in what may be the first case in Ohio to address the question, called "a logical impossibility."  Because you can't purposely or knowingly try to cause something to happen if you don't intend for it to happen.  

Or maybe you could, because the prosecutor asked the Ohio Supreme Court to review that decision - lest Nolan be eligible to get out of prison in 15 years or so. (I haven't bothered to look up how much time he got on the other things the jury said he did.)   And the Supremes agreed.

Yesterday, they issued their opinion in State v. Nolan.  Justice Paul Pfeifer, writing for a unanimous court, rejected the state's argument (essentially that the court had previously said attempted felony murder was too a crime) and agreed with the court of appeals.  It's not possible.  It's a quote from Pfeifer that I put at the top of this post.  What I didn't put at the top is how his opinion concludes. Here's the beginning and end of the last paragraph.
In sum, an attempt crime must be committed purposely or knowingly and intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended. . . . We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio. 
Which is clear, perhaps, only to a lawyer.

And here's the part I left out of that quote, the part that goes where I put in the ellipsis.
Thus, this case devolves to an anfractuous question: Can a person be guilty of attempting to cause an unintended death? 
To which even lawyer who spent years studying medieval and renaissance English literature and taught writing and literature to college students might well go 
An ana - what the fuck is anafractuous?
So the lawyer looks in the dictionary and learns that it comes from Latin by way of French and means something like "full of twists and turns."

A fine judge, dead for several years now, once told me that the legislature should never be allowed to mess with criminal law.  His reasoning was simple.
They just fuck it up.