Monday, October 5, 2015

The Spoken Postulation of His Unheard Presence

In a post at Fault Lines this morning (probably yesterday morning by the time anyone reads this), I wrote about some of the arbitrariness and and hypocrisy of the death penalty as practiced in the US of A.  

To know how the death penalty works in practice is to know that, whatever hopes one might have for it, the death penalty doesn't actually work.  It does, however, have effects.  Let's call them penumbras.  (Lawyers will know that there's some irony to the choice of term; nonlawyers should consider themselves lucky.)

I began that post with a story about Tim Hoffner's jury.  You can go over to Fault Lines and read the tl;dr or stay here for the  shorter version.   

The jury sat through days of testimony of a horrific crime, an Edgar Allen Poe sort of crime.  They found Hoffner guilty.  Then they said that he should die.  The judge, the late Bill Skow, thanked the jurors for their service.  
What you did, he told them, was difficult but necessary.  And we, the citizens of Lucas County, and the officials of the county, are enormously grateful.  For what you did, he added, if any of you need therapy as a result, the county will pay.
I don't know if anyone took the judge up on the offer.  And, frankly, the county wasn't about to pay much.  But it's worth taking a minute to think about the offer - and the need for it.

Sitting on a capital jury, sentencing someone to die, it's traumatic.  Like being (and yes, I know the analogy isn't fair) in a combat zone.  A vital job for which there's a fair chance you'll suffer a lifetime of psychological problems.  And, of course, juries are drafted, not filled with volunteers or professionals.

What I told you about the Hoffner jury was from the outside.  It's what the judge offered and the messages implicit in it.  Sometimes we get a peek inside.
She still cries when she thinks about the 12 people she never met. At night she imagines the horrors she only heard about.
The life she led before this summer still feels out of reach, and she fears that others will find out who she is and what she did for 16 weeks.
She was one of the jurors who listened, deliberated, voted guilty, and then said no, not death.  Not for James Holmes who shot up that movie theater in Aurora, Colorado.  She'd kept silent, but last week she spoke with Jordan Steffen of the Denver Post.

The headline is that the press has been misled and misleading in saying that there was only one juror for life.  In fact, she said, there were three.  But the headline isn't the point.  Here's the point.
In the interview at an empty diner in eastern Arapahoe County, the juror eyed the wait staff. She politely asked to move to a table in the corner of the room, out of earshot of others.
It was the first of two relocations she would make in the restaurant.
The toll of the trial is evident. At times she fights back tears. Afraid someone will recognize what she's talking about, she stops in the middle of words when a server checks on her meal.
She does not doubt her verdict.
The juror still believes in the death penalty, but she is adamant that death was not an appropriate sentence for Holmes. She said she decided to end her silence because she could no longer bear to watch the weight of public scrutiny — what she described as a "witch hunt" — fall solely on the shoulders of her fellow juror.
"I don't think any one of us three would ever tell you that he deserved life or that we felt life was appropriate. It's just that the other option wasn't an option," she said. "It was one or the other. You didn't get anything in the middle."
Oh, but how important that we put her through it.

Kelly Gissendaner faced death for the murder of her husband.  A murder she did not commit.  The murder was committed by Gregory Owen.  He was, at the time, her lover.  And she got him to do the deed.  He's serving life and will be eligible for parole in 2022.  She was executed last week by the good people of Georgia.

Rhonda Cook, a reporter with the Atlanta Journal-Constitution was one of the media witnesses. 
The singing is what I will always remember about the execution of Kelly Renee Gissendaner.
Her voice was joyful and light as she sang the first verse of “Amazing Grace.” By the second verse, though, the 47-year-old dying woman struggled to sing as the lethal injection drug took hold.
It's a prison, so the witnesses are regimented.
We are led though an underground tunnel and up a flight of stairs where we are given notepads and two pencils. We then wait in a nearby employee break room.
We wait for hours and the mood shifts from boredom to high-alert and then back to boredom. The long stretches of silence are broken by talk of sports, people we cover and, of course, Gissendaner.
An obviously bored prison guard assigned to baby sit us pops her chewing gum as she studies the screen on her cell phone.
The hum from the condenser keeping soft drinks in a vending machine cold is almost deafening.
When I was waiting, in an office across from the death house at the Southern Ohio Correctional Facility in Lucasville, waiting for them to finish killing my client, there was a clock in the room. Stuck.  The time, permanently it seemed, 11:24.  The second hand would advance toward the twelve, toward it becoming 11:25.  Click, click, tick, tock, one second at a time.  And then it would fall back. 

It's what you fixate on.  Chewing gum. The condenser.  Pencils.  Two of them.
Gissendaner is strapped to the gurney when we enter the chamber. She lifts her head to watch the witnesses taking their seats on the three church pews. Hers arms are strapped to boards that extend out and down from each side. The IVs have been inserted. A sheet covers most of her body.
With everyone seated, Gissendaner directs her final statement to one of her lawyers, Susan Casey.
“I love you, Susan,” Gissendaner said.“You let my kids know I went out singing “Amazing Grace.”
Casey nods and then sobs. A chaplain prays. And then she sings.
“Amazing grace,
how sweet the sound,
that saved a wretch like me.”
A few more lines and then Gissendaner closed her eyes for the last time.
Jeff Hullinger of 11 Alive watched the killing, too.
We were the last in to a small building that looks like a concession stand at a high school football game. We entered seeing three church style pews with lots of men. Then right in front of us is Kelley Gissendanner- -on the gurney, arms outstretched with needles and tubes. She makes eye contact as we enter the room. She begins to sob, I avert my eyes trying to compose myself. She is somewhat agitated or nervous.
The chamber door closes behind with a clang. No one is to exit. We are told, “There is medical attention (a doctor) if you need it.”
Wait.  Why would you need a doctor?  Has a witness ever hard a heart attack from the stress?  And they really won't let him out?  So they get a twofer?  Gissendaner and a member of the press?  Cool. Or horrifying.  Hullinger doesn't pursue the thought, doesn't question.  Anyhow, the door closed with that "clang" so it's really too late to find out.
The warden appears as a sort of host. A prayer is said; Gissendanner is crying, sobbing, wailing. Gissendaner singing a panicked “Amazing Grace” is a searing thought tonight. The hymn will not sound the same to me again.
“I’m sorry” she says to her husband, an “amazing man who didn’t deserve it”. . . She wants to take it back, She wanted her Children to know she went out signing Amazing grace.
The faces of those viewing were empty, forlorn, mostly male, and mostly turned away. A woman sobs & sings. Compassion is only present in thought.
Forget what they did to Kelly Gissendaner.  Look what they did to Jeff Hullinger.
Listening to prayer in the middle of this execution – in this awful place – felt necessary but unheard by a deity.
. . .
And when it was over, I wanted to sprint to the prison van amidst the razor wire. I wanted someone to take me somewhere to collect myself and pray.
Feel better now?
* * *
1968, I'm pretty sure it was.  Central Park in New York.  Concerts in the Park, sponsored by, if memory serves and it may not, Schaefer Beer.  Judy Collins.  Time for her encore during a raging Thunderstorm.  She alone on the stage.  A capella.  Her voice soaring above the thunderclaps. If you were there, you remember it.  This is as close as I can find.

"The Creation of the Inaudible," by Pattiann Rogers

Maybe no one can distinguish which voice  
Is god’s voice sounding in a summer dusk  
Because he calls with the same rising frequency,  
The same rasp and rattling rustle the cicadas use  
As they cling to the high leaves in the glowing  
Dust of the oaks.

His exclamations might blend so precisely with the final  
Crises of the swallows settling before dark
That no one will ever be able to say with certainty,  
”That last long cry winging over the rooftop
Came from god.“

Breathy and low, the vibrations of his nightly
Incantations could easily be masked by the scarcely  
Audible hush of the lakeline dealing with the rocky shore,  
And when a thousand dry sheaths of rushes and thistles  
Stiffen and shiver in an autumn wind, anyone can imagine  
How quickly and irretrievably his whisper might be lost.

Someone faraway must be saying right now:  
The only unique sound of his being
Is the spoken postulation of his unheard presence.

For even if he found the perfect chant this morning 
And even if he played the perfect strings  to accompany it,   
Still, no one could  be expected  to know, 
Because the blind click beetle flipping in midair, 
And the slider turtle easing through the black iris bog,   
And two savannah pines shedding dawn in staccato pieces   
Of falling sun are already engaged in performing   
The very same arrangement themselves.

Thanks to Paula Wallace and The Rev. Dr. Thomas C.H. Scott for the poem.

Thursday, September 24, 2015

Hands in the Air or I'll Attach These Pieces of Paper

Gabriel Reveron, a deputy sheriff in Polk County, Florida, shot and killed Dominic Fuller.

Ho hum.  Shit happens.

Besides, Fuller was a bad guy. The Sheriff's office says so.  Stephanie Allen, in the Orlando Sentinel, reports.
Dominic Fuller, 34, of Haines City, was sitting in a stolen car outside a house on Delon Court in Auburndale, when deputies were called there on suspicion of illegal activity, according to the Sheriff's Office.
As deputies approached, Fuller ran, leading them on a chase through the neighborhood.
At one point, he broke into a camper, where a woman was sleeping and demanded she give him a ride, the Sheriff's Office said. The woman refused, so Fuller ran some more, trying to open vehicle and residential door handles on his way.
The Sheriff's Office said at least one witness reported hearing Fuller say he had a gun, others heard him say he was armed.
Oh, and he'd been arrested 17 times over the years. Yeah.  Trouble.

Deputies caught up to him at a residence.
Fuller stood in the home's doorway, with his right hand behind his back staring at deputies and refusing commands, according to the Sheriff's Office.
He tried to get out a window.  Then back to the doorway.  Where he brandished a shotgun pistol assault rifle bazooka.  And so Deputy Reveron shot five times.  When the metaphorical smoke cleared, the literal body of Dominic Fuller was dead.

Oh, I just noticed that I didn't say what it was that Fuller brandished; I just gave a list of a few things he didn't brandish.  It was one of these deadly babies.

Yep.  Dominic Fuller.  Brandishing a stapler.  Threatening the cops with office supplies.  Shot.  Killed.

As I said before, shit happens.  It happens often enough that I don't normally bother to write about it.  Why, this time, then, you may well ask. 

And I'll have to tell you that it's because of Sheriff Grady Judd, the big cheese of Polk County law enforcement. Sheriff Grady Judd who told the AP in a story picked up by the Times.

“We don’t choose to shoot people; people choose for us to shoot them,”


Dominic Fuller ran.  Then he hid.  Then he tried to flee again.  Cornered, he did the only thing he could.  

He armed himself with a deadly stapler.

No, wait, that's not it.  He chose to have Deputy Reveron shoot him.  And the good deputy obliged.  

I suppose that was the "serve" part of "serve and protect."

Of course, he does look a little shifty.

Dominic Fuller

Thursday, September 17, 2015

Like and Unlike - Sandy and the Notorious RBG

I like to call it "The Case I Almost Won in the Supreme Court."

"Almost won" is, of course, an awful lot like lost, except maybe it sounds better.  Sigh.

Here's what happened.  No votes to grant cert, which made sense.  The issue had been resolved by the Supremes decades earlier except that Ohio didn't get the memo.  And really, it wasn't (anymore) the least bit controversial.  Not even in Ohio where there was no controversy since it was as if it had never happened.

It wasn't a death penalty case.  Millions weren't at stake.  The republic wasn't in any particular peril from a rogue Ohio court.   My client had been convicted of a low level drug offense and sentenced to some 6 months in the hoosegow.  Why would anyone down in D.C. call for full briefing and oral argument?  Hell, I wouldn't have.

But Justice Breyer figured that since this was the 2001 and the issue had been resolved in 1958, well, maybe it was time to pass the word to the folks in the Buckeye State.  So he wrote what they call on First Street a "Statement . . . respecting the denial of the petition for writ of certiorari."  Three others signed on, the usual suspects for such a thing: Justices Souter, Stevens, and Ginsburg O'Connor.

Wait, did I say O'Connor?  Did I strike out RBG?  That's not the usual suspects at all.  And it's not what should have been a losing hand.  After all, I got the Justice who was never in the minority.  But I lost the presumed liberal.

And while the plural of anecdote is not data, the story says something about the Justices Linda Hirshman calls "sisters in law."  In fact, she makes that the title of her new book, a joint biography of the two: Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.  

O'Connor and Ginsburg are, of course, an oddly matched duo. But matched they are.  O'Connor, the child of an Arizona rancher, born in El Paso in 1930, raised on the ranch and sent off to boarding school.  Ginsburg, born and raised in Brooklyn in 1933, educated at the local public schools.  Both academic stars at college and at the top of their classes in law school.  Both denied opportunities they'd have gotten after law school had they been men.*

O'Connor ended up practicing law and volunteering like crazy back in Arizona.  Then she got elected to the legislature and then appointed to the Arizona Supreme Court.  Ginsburg taught law and developed and ran the ACLU's Woman's Rights Project and argued landmark cases advancing gender equality before the U.S. Supreme Court.

In 1981, Reagan appointed O'Connor to the Supreme Court.  The first woman ever in that men's club. Ginsburg, who had been appointed to the D.C. Circuit Court of Appeals in 1980 by Jimmy Carter, joined O'Connor on the Court in 1993.  As they both acknowledged repeatedly over the years, life on the Court for each was better when the other was also a Justice than during the years (fewer for Ginsburg) when she was the only woman there.

Those are the facts.  Hirshman sets them out clearly, balancing them, adding stories as she goes.  And Hirshman's a good storyteller.  (She demonstrated that in her previous book, Victory: The Triumphant Gay Revolution.)

The meat of the book, though, isn't in the biography or the personal tidbits (O'Connor cooked up meals for meetings with her clerks; Ginsburg didn't cook at all but her husband was a terrific chef). It's in the discussion of the cases and the law, that part of the subtitle about how they "Changed the World." 

Ginsburg, Hirshman says repeatedly though rarely as explicitly as I;m going to make it sound, has an agenda.  Her goal as a litigator and as a justice has been to eradicate gender inequality in the law.  Completely. She advocated for the goal (brilliantly and with remarkable success) in the work she did at and for the ACLU.  She had a strategic plan, modeled on how Thurgood Marshall went after racial discrimination leading to Brown v. Board of Education.  It's an incremental approach, winning the easy cases that establish precedents that make the harder cases inevitable.  (It's using the uppercase L Law that I've regularly say I don't much believe in.)

She maintains that agenda on the Court, but she's frequently been blocked at advancing it because she can rarely garner 5 votes for the sweeping language she wants to put into opinions.  As a result, she either has to tone down her opinions or to write stirring dissents.

O'Connor has no agenda.  Like Ginsburg, she's a feminist, but unlike Ginsburg she's a secret one  She agrees with all Ginsburg's goals (except on abortion where she voted to keep it legal but make it extraordinarily difficult for women who aren't rich to obtain) but doesn't actually favor advancing them very far.  Rather, she simply votes not to make things worse.  Because she has neither agenda nor philosophy she chooses to decide cases in ways that provide no precedent for anything and no guidance for the lower courts.** 

She was almost always in the majority but routinely limited the reach of that majority.

But ultimately, the two working together advanced women's equality in absolute terms.  And it couldn't have happened without both of them working together.

Hirshman plays that out with discussion of case after case.  She gets into the behind the scenes maneuvering on how opinions get written and the internal dynamics of the Court and the Justices. (Lewis Powell comes off particularly poorly.)

The problem with the thesis is that it's too bold, doesn't quite follow from the evidence she presents, and frankly ignores too much.

For most of her time on the Court, Ginsburg has been the closest one there to being what we think of as a liberal.  Yes, she's voted strongly in favor of gender equality - which has had, by the way, some serious success at the Court.  But she's pushed other traditional liberal causes, too.  She has been, and remains consistently among the Justices favoring due process in criminal cases, government regulation of business, and the welfare state.

In each of those areas, O'Connor has been, shall we say less enthusiastic.  Not the most avid voice of traditionally conservative values and positions, her case-by-case jurisprudence, her disinclination to set rules and precedential guidance made her the Court's swing vote when opinions otherwise divided along traditional lines with four votes on each side of an issue.  Win O'Connor, and you carried the day even if it didn't do much for the next case up.  (My case, of course, was an exception, dammit.) Win Ginsburg and, well, you won Ginsburg.

So did they "change the world"?  Hardly.  They changed the complexion of the Court itself, of course.  And that has had consequences.  It's given the lie to the claim that women can't.  It's allowed them to serve as role models for a couple of generations now.  And it's affected some votes and, therefore, some rules of our society.  They moved a set of issues - important ones, but just one set.   And in very large part, Ginsburg moved it before either of them got on the Court and O'Connor resisted undoing what she'd achieved. 

Hirshman's occasionally just wrong about something.  She defines "borking," a term growing out of the confirmation hearings of Robert Bork (who of course did not get on the Court) as "killing a nominee by letting him expand upon his weirdly marginal beliefs." Not so.  Borking is the systematic, unfair, and dishonest vilification of someone - especially a candidate for public office. (Whether Bork was actually borked is a arguable; the question depends on whether the attacks on him were fair, a matter of some dispute.)  

Hirshman's prose is sometimes too glib and at times jarringly colloquial.  Some of her characterizations veer toward caricature (especially of Lewis Powell, who's almost borked himself here).  There are things one would like more of - including the less than cordial relationship William Brennan had with O'Connor after he, in dissent, derided an early opinion of hers as an "exercise in judicial activism."  Hirshman references the story, then lets it go.

These are quibbles.  Sisters in Law is on the whole engaging and informative.  Hirshman has an eye for the telling anecdote.  An if O'Connor and Ginsburg haven't changed the world, they've certainly made their mark.

*The stories are well known.  
O'Connor, getting no traction on the job market after law school because firm after firm explained that they didn't hire women, finally used connections to speak with one of the big shots at Gibson, Dunn & Crutcher.  She was told that the firm never hired a woman lawyer and never would.  "Our clients wouldn't stand for it."  But he did offer her a shot at a job as a legal secretary.
Ginsburg, too, was not offered a job at a firm after law school.  But some of her professors thought she could do better.  They recommended her to their close connection, Justice Felix Frankfurter, urging him to hire her as a law clerk.  Nope.  "I'm not hiring a woman."

**O'Connor's vote in the case I almost won is a perfect example.  This is settled law, she joined Breyer in saying, just, do what we told you 43 years ago.  Ginsburg's vote remains to me a mystery.
My thanks to Harper Collins for sending me an advance copy of the book to review.

Tuesday, September 15, 2015

Because It's Their Job To Beat Up the Prisoners

Indulge me in a thought experiment.

Imagine that you’re an inmate at the Clinton Correctional Facility in upstate New York.  That’s the maximum security prison from which Richard Matt and David Sweat escaped earlier this year with the assistance of Joyce Mitchell.  So you’re locked up, maximum security. 

Imagine that there was no mistake.  You’re a badass.  Clinton Correctional indeed.  You’re right where you should be. 

Matt and Sweat have escaped, Matt’s been killed.  Sweat captured.  And Mitchell’s locked up now, too.  Of course, it’s always possible someone else was also involved.  The corrections officers obviously want to know.  I mean, if there are other folks involved in the escape, they need to be found. 

What to do?

We know what they did at Gitmo.  There’s a model.  But waterboarding requires so many supplies.  (You know, water and boards.)  Not everyone has those handy.  Ah, but the COs do have fists and feet.  So here they come.  At you, an innocent inmate (innocent of involvement with the escape, that is) regardless of whether the guy two cells over is also innocent.  Doesn’t matter.

OK, at least they had a reason.  They were trying to beat a confession out of you. 

Now imagine that you’re an inmate and, oh, what the hell.  They just beat you for no apparent reason.

Cause why the hell not?

And so you complain.  About the brutality.

And some reporter asks the governor.  Andrew Cuomo.  Man who wants to have the Attorney General rather than the local DA go after cops who murder unarmed black guys for no apparent reason.  Decent.  Catholic.  Democrat.

                  Is there a problem with brutality in prisons?

And he says.

Well, state prisons have brutal people in them. So, unless you call that a brutality problem, no.

To which the reporter says

And then explains that no, no, no,

I was asking if the COs are brutal.

And Governor Cuomo, son of Mario, explains that of course not.

They have to make sure they get a certain amount of respect in the job, otherwise they get hurt. So, I think they're doing a good job.

Because if they don’t beat the hell out of prisoners for no good reason . . . .


Law of Rule.

Saturday, September 5, 2015

It's an Accusation So It Must Be True

There is one and only one piece of evidence that it was Danny Brown who raped and murdered Bobbie Russell in December 1981. Her son, Jeffery, six-years old at the time, said it was.

Danny spent 19 years in prison.  Then the DNA came back.  Wasn't him.  It was, the DNA said, Sherman Preston.  That was no surprise since around that time Sherman was implicated in a number of related crimes - always acting alone.  In fact, by the time the DNA came back, he was serving a life sentence for a similar crime just a little bit earlier - a crime for which he was convicted in large part based on DNA.

Danny got out.  The prosecutor dismissed the charges.  Innocence triumphs.  It was a great day.


An investigator from the prosecutor's office had located Jeffery and went across the country to talk to him.  Now 27, he said now what he'd said then.  It was Danny he saw do that to his mom.  And Julia Bates, the elected prosecutor who'd gone into court to personally announce that she was dismissing the charges against Danny because no jury would find him guilty what with the DNA and all, maintained then and maintains now that Danny Brown in fact killed Bobbie Russell.

Because Jeffery.  Because Jeffery was 6 when it happened.  Because he was 7 when he testified. Because even though his testimony included things that obviously were not so, that were physically impossible (he claimed to see things on the other side of solid walls from where he was) he told the truth about seeing Danny do that to his mom.  Because, as she told Jennifer Feehan in the Toledo Blade five years ago when asked if she thought Danny was guilty
Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes.
"I do," she said. "I don't think little kids lie."
I thought then and think now that it was one of the stupidest things anyone has ever said.  Kids in fact lie all the time.  The dog ate my homework.  And of course, they're wrong a lot.  Even when they believe things.  (Again, Jeffery testified to several things that were demonstrably false, physically impossible.)  And that he still believes?  Sure.  That happens too.

The first time I wrote here about Danny's case, I told this true story:
Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.
Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.
Julie Bates, whatever else, is not stupid.  Yet "I don't think little kids lie."

What she meant, of course, is that she believes them when they accuse.

Which brings me, in my typical elliptical way, to my subject, Richard Beck's compelling but flawed new book, We Believe the Children: A Moral Panic in the 1980s.  

February 1984, KABC-TV News in Los Angeles included this breathless report on the investigation into allegations at the long-established, highly regarded McMartin Preschool:
Authorities now believe that at least sixty children were victimized. . . . [They] had been keeping a grotesque secret of being sexually abused and made to appear in pornographic films while in the preschools's care and of being forced to witness the mutilation and killing of animals to scare the kids into being silent.
Wow!  And then it turns out that the same things were happening at day cares and preschools across the country.  But worse.  Kids were being forced to eat body parts of murdered children.  Eyes were plucked out.  Satan worship.  Bodies buried in and around the facilities.

Hell of a story.  And, I should add, pretty much entirely bullshit.

Except everyone bought into it.  Police, prosecutors, juries.  Parents, god knows.  Doctors made up tests from which they could tell, tell for sure, that what was perfectly normal in a child was hard evidence of abuse.  Social workers and psychologists and psychiatrists and cops and parents coerced children into making up more and more outrageous stories.  

Sure there was no evidence.  The dead animals weren't found.  The missing and murdered children don't seem to have been missing or murdered.  The pornographic films (or the studios where they were made) weren't discovered.  The gouged out eyeballs and lopped off body parts don't seem actually to have been gouged or lopped.  But the press dutifully (and enthusiastically) reported as true.  And juries often believed.

Because like Julie Bates, nobody could believe that little kids would lie.  At least not about something really awful being done to them.   And after all, the more you had to threaten them for not telling or reward them for telling, the more obviously true the allegations.

It's that story, built around the McMartin fiasco that started it all, that frames Beck's book.  He's not the first to tell it, but he tells it well.  From the allegations to the investigation to the trials and then the unraveling as it became clear that the absence of evidence really wasn't evidence of guilt.

And as he tells the McMartin Preschool story, so Beck tells of the national hysteria that ensued. Because if the Golem came to LA in the guise of Peggy McMartin, it must be in a Long Island basement masked as the Friedmans and dressed as James Rud at the Valley Green Trailer court in Jordan, Minnesota, and in Niles, Michigan and Malden, Massachusetts and Chicago and. . . .

Good god!  These monsters were everywhere destroying the lives of our children.  And the evidence was, of course, that the children could be browbeaten into saying so.  And that, stunningly, all the real evidence - the films, the ritually slaughtered animals and children, the hidden tunnels, the lopped off limbs - none of it could be found.  How diabolical!  And how much that proved.

For its considerable strengths, We Believe the Children is not without its weakness.  

Trying to find an underlying cause, Beck turns to the woman's movement and the increasing role of women in society.  The religious right and social conservatives glommed onto the idea of evil daycare as a way of punishing women who'd abandon the role of housewife and take an actual job - forcing her children into the day care clutches of committed Satanists.  My god.  He may not be entirely wrong, but it's overly simplistic as most here's-the-cause explanations tend to be.  (As others have noted, Beck's evidence doesn't really support his argument.  Beck points to Gloria Steinem's financial contributions and Ms. magazine's 1993 cover story headline, "BELIEVE IT! Cult Ritual Abuse Exists. One Woman's Story.")

Nor is Beck's exploration of Freudian (and Freud's own) analysis and the psychiatric and psychological worlds' embrace of multiple personality disorder particularly convincing.  

But the story.  The panic, the ruined lives, the political careers made.  (Janet Reno, Clinton's Attorney General, rode to Washington on the back of Frank Fuster whose wife, Ileana, as part of her plea deal joined the chorus of accusers telling a jury about how Frank, wearing "a white sheet and a strange mask, . . . had sexually assaulted her with a crucifix" and forced her to abuse kids.)

If you think Salem and the witch trials, you're on the right track.  It's a connection Beck makes explicit in his introduction, though he downplays the horror of Salem noting that once the hysteria there ended, there were apologies and reparations.  The victims of the day care hysteria, on the other hand? Well, some have had their convictions overturned.  Others continue to rot in our prisons.  Then again, they killed a bunch of folks up in Salem, and apologies and reparations didn't really do them any good.

Perhaps oddly (or perhaps I'm just wishing that Beck would climb onto one of my own hobby horses), Beck doesn't do much looking at what we haven't learned. 

The Golem, after all, turns out not to have been in the witches of Salem.  They didn't exist.  Nor was the Golem in the preschool teachers and day care workers who didn't do a damn thing to the kids. (Nor, and I'm straying only slightly, was the Golem in the communists and fellow travelers, like President Eisenhower, who Joe McCarthy and his ilk took on in the late 40s and early 50s.)  No, the Golem was the witch hunters, the prosecutors (and cops and parents and media and your next door neighbors).   

And the Golem remains.  This is the lesson implicit in We the Children.  It's the Golem of uncritical belief in the monster under the bed.  The Satanist, cult-predator, child-care workers of the 50s who could only be stopped by locking them up forever - and the damage they caused, my god - are in this year's flavor those who ever considered a sex act outside the missionary position between spouses. And maybe even then.

From the sex offender registries to the hysteria surrounding campus sexual aggression (he looked at me without first obtaining permission) is but a small step.  Believe the children?  We believe the accusers.  Just ask Danny Brown.

My thanks to Public Affairs Books for providing me a copy of We Believe the Children  for this review.

Thursday, August 20, 2015

A Corrections Officer Ain't No Ham Sandwich

The idea is that the grand jury is a check on prosecutorial abuse.  You get a bunch of citizens who scrutinize the prosecutor's evidence, challenge it even, and decide whether there's probable cause to believe the accused is guilty.  Not whether the accused is guilty.  Whether there's probable cause.

In theory, they grand jurors get to call witnesses and question them.  The grand jury can investigate. Theory, of course, bears almost no relationship to reality.  In reality, grand juries do what prosecutors want them to do. (But see the runaway grand jury in Harris County, Texas a few years ago.)

If the prosecutor wants an indictment, the prosecutor gets an indictment.  (Hence that line credited to Sol Wachtler that a prosecutor can get a grand jury to indict a ham sandwich.) And if the prosecutor doesn't want an indictment?  Darren Wilson in Ferguson for the killing of Michael Brown.  Daniel Pantaleo in Staten Island for the killing of Eric Garner.  And the cop in your town.

But, wait, you say.  Isn't that just the GJ doing its job?  Deciding that the evidence wasn't there?  How disingenuously cynical you are, Gamso, to suggest that the prosecutors manipulated the evidence, intentionally presented weak cases.  You don't know.  The prosecutors sandbagged.  Maybe the evidence just sucked.

Well, sure.  I suppose.  I mean anything's possible.  But you know, I don't make this shit up out of whole cloth.  (Well, yeah, actually I do.  But someone wove that cloth into a coat.  OK, I've dragged this idiot metaphor out to the point of incoherence.  I'll go on.)

Come with me, then, you doubters, to Charlotte County, Florida.  Population per the 2010 census 159,978. County seat Punta Gorda.  Where the state's attorney for the 20th Circuit, Stephen Russell, is in charge of presenting evidence and giving legal advice to the grand jury.  Which State's Attorney Russell had three of his henchmen assistants do in regard to the April 2014 killing of Matthew Walker.

Matthew Walker
In the Charlotte Correctional Institution.  By corrections officers.  During a late night cell check that in fact (per Adam Kreger of Sun Newspapers) violated CCI policy.  "Walker’s larynx was crushed, and he took several blows to the head, neck and torso."

There was an investigation.  
[F]ive of the dozen corrections workers involved could have potentially faced criminal charges.
Five?  Twelve were involved?

Hey, shit happens.

The case went to the grand jury.  Whose proceedings are secret.  As in the grand jurors can get in serious trouble, as in felony charges, for revealing what happened behind those closed doors.  But for an 85-year-old woman who sat un the grand jury enough is enough.

In June, the grand jury returned a no bill.  Refused to indict anyone.  
“It has really bothered me all this time,” said Louise Salcedo. “We all knew they were guilty and should have been prosecuted, but we were talked out of indicting them. This man was beaten to death.”
Not that there wasn't probable cause.  But because why prosecute prison guards just cause they beat a guy to death.  Hell, he was a prisoner.  Shit happens.
“They told us the chances of convictions were very slim,” Salcedo said. “I find it baffling ... very confusing.”
The paper tracked down the grand jury foreman.  Oath of secrecy.  He wouldn't talk.  Salcedo, on the other hand, tracked down the paper.
“After reading everything in the paper, I feel guilty that I maybe could have done something better,” Salcedo said.
The grand juror said she believes all the guards present during the fatal beating “were guilty of watching this and not stopping this.”
She said they all knew it.  But they didn't indict anyway. 
A community-driven candlelight vigil was held outside the Charlotte Correctional Institution on Wednesday. The ceremony remembered Walker’s death and aimed to let state officials know people want justice for the homicide and others who have died at the prison.

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A desire which, along with 10 bucks, might buy a ham sandwich.

Of course, in Charlotte, that ham sandwich won't get indicted.  At least not if it's a prison guard's.