Friday, December 15, 2017

Because It Went So Well Here

So they decided - narrowly, but astounding given the place and the choice - that they'd rather not send the guy who yearns for the time of slavery, who thinks the amendments striking down slavery and allowing blacks and women to vote, who thinks homosexuality should be a crime, and who doesn't believe that his state is bound by the decisions of the U.S. Supreme Court on the Constitution, the guy who maybe, probably, spent his thirties trolling for14 and 15 year old girls . . .

They decided they'd rather send to the Senate a guy who favors abortion on demand and prosecuted members of the Klan.

Alabama, it seems, is showing a bit of envy.  It's like it wants to be, at least a little, like the rest of the country.

But why pick Ohio?

You'll remember how last month we here in the Buckeye State decided that a 69 year old guy who gets around on a walker, wears a colostomy bag on the outside, suffers from COPD and cancer - a guy who has maybe 6 months to live - should be executed rather than left to die on his own in prison, where he'd been for some 20 years.

You'll remember that Alva Campbell had veins that couldn't be accessed by needles, but they'd try anyway, 'cause he was sentenced to be killed and that meant he couldn't be allowed to just die. 

And you'll remember that they tried for about 30 minutes to kill him - and then gave up.  Making him the second person in the country, after Romell Broom, to survive the attempt at lethal injection.  Both in Ohio, incompetence capital of the nation.

And so, after beating back Roy Moore (who's demonstrably not anti-semitic, says his wife, because "one of our attorneys is a Jew") and sending Doug Jones to Washington . . . .
Doyle Lee Hamm

They're getting set to kill Doyle Lee Hamm in February.

 Of course, killing folks is nothing new for Alabama.  They've executed three folks this year.  They've got 191 or so on death row. 

But let's just focus on Hamm, on death row for robbing and killing Patrick Cunningham.  Here's the short version, from Jennifer Gonnerman in the New Yorker last year.
Growing up, Hamm flunked first grade, drank beer and whiskey mixed together, graduated to sniffing glue several times a day, quit school in the ninth grade, ingested Valium and Percocet and quaaludes, watched his six older brothers all go to jail, and eventually acquired his own extensive rap sheet, including arrests for burglary, assault, and grand larceny. He married and had one daughter. (The marriage lasted six months; his wife cited “habitual drunkenness” as one of the grounds for divorce.) In January of 1987, Hamm went on a crime spree that included a shooting in Mississippi and ended when he and two accomplices were arrested following the murder of a motel clerk in Alabama. About three hundred and fifty dollars were missing from the register and the clerk was found on the floor, shot once in the temple. Hamm confessed to the murder, and, at thirty years old, was condemned to death by way of Alabama’s electric chair, which was painted yellow and known by the nickname Yellow Mama.
Got that? 

Carol Robinson at AL.com has more.  He's 60.  Been on death row for 30 years now.  They call him Pops.  And, oh yeah he's been fighting cranial and lymphatic cancer for several years now.  It's terminal. 

Oh, and his veins are no good.  Mark Heath, an anesthesiologist on the faculty at Columbia University, examined Hamm a couple of months ago. 
"There are no accessible veins on [Hamm's] left upper extremity (arm/hand) or either of his lower extremities (legs/feet)," Heath found. Use of one "potentially accessible" vein on Hamm's right hand "would have a high chance of rupturing the vein and being unsuccessful," he added in a written statement Harcourt filed with the court.
The inability of corrections personnel to inject the drugs properly could "cause Mr. Hamm to become paralyzed and consciously suffocate" and would be "an agonizing death," said Heath, whose research has documented problems in the administration of lethal injections nationwide.
All of which makes Doyle Hamm look an awful lot like Alva Campbell.  Who we in Ohio tried to kill last month because it was important not that he die soon but that he be killed.

As I say Alabama has its eye on being not just a southern backwater.  It wants, apparently, to be Ohio.


Monday, December 4, 2017

These Are the Saddest of Possible Words

From Alexander Pope's An Essay on Man:
Cease then, nor Order imperfection name:
Our proper bliss depends on what we blame.
Know thy own point: this kind, this due degree
Of blindness, weakness, Heav'n bestows on thee.
Submit.–In this, or any other sphere,
Secure to be as blest as thou canst bear:
Safe in the hand of one disposing Pow'r,
Or in the natal, or the mortal hour.
All Nature is but art, unknown to thee;
All chance, direction, which thou canst not see;
All discord, harmony not understood;
All partial evil, universal good:
And, spite of pride, in erring reason's spite,
One truth is clear, Whatever is, is right.
Lyndon Johnson:
I'm the only President you've got.
Richard Nixon:

Donald Trump's lawyer John Dowd:
The "President cannot obstruct justice"
"Baseball's Sad Lexicon," by Franklin Pierce Adams:
These are the saddest of possible words:
     “Tinker to Evers to Chance.”
Trio of bear cubs, and fleeter than birds,
     Tinker and Evers and Chance.
Ruthlessly pricking our gonfalon bubble,
     Making a Giant hit into a double—
Words that are heavy with nothing but trouble:
     “Tinker to Evers to Chance.”

Sunday, November 26, 2017

plus ça change, plus c'est la même chose

Return with us now to the thrilling days of yesteryear when (OK, if you're old enough to know how the rest goes and yearn for it, you'll be disappointed) . . . when blawggers talked to each other on their blawgs.

Over at Simple Justice this morning, Scott Greenfield wrote about honor.
You told the truth because telling the truth was the right thing to do. You kept your promises because it was the honorable thing to do.
We were honorable people.
Now, not so much.
There is no country for the honorable anymore. From the top down, and the bottom up, lies, deceit manipulation, distortion are all acceptable means of achieving goals, and goals are more important than how you attain them. We can fight over whether a goal is worthy or correct, but an honorable person will not lie to win the battle, will not use fallacious arguments to see if he can get an easy win, will not distort the facts to achieve victory.
I started to write a comment, but it was getting out of hand, turning into the sort of linguistic perambulation I'm inclined to over here, wandering about in a haze of seemingly-parenthetical distraction in the hope that I'll actually end up with a point that draws together the threads.  (And you wonder how many posts I've a abandoned over the years?  Or, more likely, you don't.)

Anyway, here's the thing.  I think Scott's wrong.  Sort of.

I want to be clear here.  Scott's not denying that there are honorable people today.  Folks who do the right thing, who speak and act with integrity because it's the right thing to do even when it hurts.  Folks who will not lie, will not cheat, will not . . . .  Fuck it, here's Raymond Chandler.
But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. He is the hero; he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor—by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world.
Chandler's was a fictional detective, his fictional detective in particular.  But the description so far as I've quoted it here (and of Chandler's detective it goes on) is apt.

As I say, Scott doesn't deny that there are honorable people.  His claim is that we no longer view honor as a goal, no longer embarce the ideal.  Now it's the game, the score, the win.  Lie, cheat, do what you can to get there.  (What the public has always accused lawyers of, by the way, though lawyers have always asserted that they're better than that.)  

Where he's wrong, I think, is to think it was different once.  He's wrong to think that we used to honor honor in some way more than the breach (Once more unto the breach, dear friends) but no longer do.

It's probably true that actually honorable people are and have always been rare.  But the idea of honor, the ideal of it, that's something else.  Shakespeare's Anthony knew the strength of the ideal when he offered his ironic and iconic lines.
For Brutus is an honorable man;
So are they all, all honorable men.
But so, albeit less eloquently, does Donald Trump when he accuses CNN or the NY Times or Washington Post or whoever, of
FAKE NEWS!!!
It's a fake, of course.  Every bit as fake and as calculated, if less knowing, than Anthony's remarks about Brutus.  But the claim's the same.  And if he can sell it . . . .

There's no shortage of shadenfeude these days.  It comes from the right and the left, from those we, er, honor and those we despise.  But it's all there because we like the idea of integrity - we just don't much act in conformity.  And we're willing (though perhaps topic right now, and it's not clear how far) to forgive blatant hypocrisy and accept outright lies. 

But forgiveness isn't conceptual approval.  Though perhaps between 24 hour news cycles and social media and especially hatred and certainty of our own righteousness in cause (if not in manner) we're more open about our willingness to tolerate the dishonest.

Meanwhile.



Wednesday, November 15, 2017

On Victims and Killers and Survivors. On Life and Death. On Forgiveness. - UPDATE

Lexington, Kentucky.  April.  2015.  An apartment complex.  Salahuddin Jitmoud delivering a pizza. 

Well, not exactly.  Exactly, Jitmoud was delivering his life (so the cops and courts said) to 3 men who were looking to rob pizza delivery guys.  He was 22-years old.

I don't know who actually killed Jitmoud.  Apparently the actual killer hasn't been indicted.  But Alexander Relford, according to the prosecutor (via Marwa Ettagouri at the Washington Post), "set up the robbery, he provided the knife, he tampered with evidence."  And there's the fuck-you factor.
[H]e is the one who ate the pizza afterward.
Relford got 31 years.  

  • Complicity in murder.
  • Complicity in robbery.
  • Attempted tampering with evidence.

He'll be out when he's 55.

In the criminal courts, that's little more than business as usual.  

What's not is what Abdul-Munim Sombat Jitmoud did.  He's the father of Salahuddin Jitmoud.  The kid who was murdered for his pocket change and a pizza.  He's the one who gives the lie to pretty much everything the haters want you to hear.


A Brief Digression

The case involved a shooting.  There were two victims - one intended, one an innocent bystander.  (Shit happens when bullets fly.)    

Wait, did I say there were two victims?  Only sort of.  Oh, the defendant was separately charged for each shooting.  And there's no question they were both shot (one in the leg, the other in the hand).  But the accidental victim of the gunshot?  She couldn't identify anyone as a shooter.  All she knew, all she could tell the cops was that the guy who shot her wore a red hoodie.

But the defendant didn't have a red hoodie. 

The detective said, testified under oath, that she wouldn't cooperate.  All she'd tell us about the shooter, the detective said, is that he wore a red hoodie.  And since she wouldn't cooperate, the detective said, she wasn't an "actual victim."  

Really.  That was the testimony.

End Digression

You hear that Muslims are terrorists.  The President tells you that thousands cheered in the streets in New Jersey as they watched the World Trade Center collapse.  They say it's all about hate.

Talk to Abdul-Munim Sombat Jitmoud.  Whose son was killed for a few bucks and a pizza.  Ask him.  Or just note his words, from the witness stand, at the sentencing of Alexander Relford who was at the least complicit in the murder of his son.  
Forgiveness is the greatest gift of charity in Islam. . . . I don't blame you, I blame the Devil, who misguided you to do such a horrible crime.  
There are things you rarely see in court.  
Teary-eyed after the father's gesture, Fayette County Circuit Judge Kimberly Bunnell called for a break in the hearing.
And then, after court resumed, after Relford apologized, after that.
Then the father and the convict hugged, Relford wiping his face with tissues as Jitmoud wrapped his arms around the 24-year-old.
In a couple of hours, the good people of the State of Ohio will be putting Alva Campbell to death.  It's pretty clear it won't go well. The nurses who examined his arms for the execution team said his veins can't support the needles. He'll be struggling his way to the death house with his walker.  I assume he'll still be wearing his colostomy bag.   They're giving him a special pillow so he won't have trouble breathing while they kill him.  (Yes, you read that right.) 

His will be the 56th state-sponsored murder in Ohio since we got back in the killin' business in 1999.  We've got folks lined up and set to go until well into 2022.

As I said, Relford will get out when he's 55

UPDATE

Execution failed.  They couldn't find a vein.  They're going to try again, another time, if they can manage to keep him alive until then.  It'll get easier, of course, 69-year-old, terminally-ill men routinely have their veins get bigger and sturdier over time.

I can't help but note that Ohio is now the only state to have failed even once to complete an execution since the bungled electrocution of Willie Francis in 1946.  And we've now failed twice.


Sunday, November 12, 2017

What? You Thought the System Got It Right?

Danny Brown did not kill Bobbie Russell.  

That's settled in the minds of just about everyone except her son, whose memory of his mother's murder is false, and the Lucas County Prosecutor who agreed to cut Danny loose after he spent 19 years in prison and dismiss the case against him but who still believes him guilty and would love to charge him and convict him again.

Despite the DNA that pretty conclusively indicates that Bobbie Russell was killed (and, not incidentally, raped) by Sherman Preston.  Alone.

Cameron Todd Willingham didn't set the fire that killed his kids.  Which Rick Perry basically knew when he signed off of Willingham's execution.  

Joe D'Ambrosio did not kill Anthony Klann, though he did spend 22 years on death row before he was exonerated.  And the state?  Well, you know the story.

And Ricky Jackson.  We'll get  back to him.

There are, of course, others.  The list of the wrongfully convicted isn't just a list of folks who didn't kill.  There are the ones who didn't rape, who didn't rob, who didn't burglarize, who didn't bear false witness or pray to graven images or . . . .  (OK, maybe the graven images thing.)

If you've been paying attention, you know that's true.  (As you do if you've been reading this blog, I should add in a self-glorifying moment.)  The question, of course, is how it happens.  And the corollary is what can be done about it.

Enter Mark Godsey, Daniel P. and Judith L. Carmichael Professor of Law and Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law.  And now author of Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.

Mark was at one time, as the subtitle says, a prosecutor.  Not just any old kind.  He was one of that special breed, an Assistant United States Attorney in New York.  That's big stuff, and he was, as he tells us, quite full of himself and the honor and glory and nobility of his job.  Rooting out bad guys and locking 'em up.

He tells us about how he'd brainstorm with his fellow-AUSA's to as they'd cook up cockamamie theories to explain away evidence (say, coerced confessions) that was wholly inconsistent with the guilt of those they so righteously prosecuted.

He tells us that he, well, he didn't exactly cheat.  But he didn't go out of his way to challenge the potential bullshit that was presented to him.  And he didn't notice - didn't let himself notice, really, that a whole lot of what they did in building cases and selling juries on them was grounded in a set of convictions about infallibility that bore no relationship to demonstrable fact.

This isn't exactly news, though it was to Mark until he found himself coerced into running the Kentucky Innocence Project for a year.  And oops.  

The first chapter of his book is called "Eye Opener," and it's where he describes that epiphany.

As for the rest, he takes on the usual suspects.

  • Confirmation bias
  • Faulty memory
  • Coerced confessions
  • Inaccurate eyewitness identification
  • Bullshit forensics
  • Tunnel Vision

All this, he explains, leads to factually innocent folk getting convicted of crime despite the best efforts of everyone to do the right thing.

The academics have shown this, of course.  They've done the studies that demonstrate how false memories can be created, that eyewitness identification isn't particularly reliable, that nobody - not cops, not prosecutors, and certainly not judges or jurors - is particularly good at figuring out when someone is telling the truth or when someone is lying. 

And then there's the explanation.  That's the confirmation bias and the tunnel vision.  It's the group-think of police and prosecutors.  It's built into the human condition.  There's science for that, too.

And the studies, the science, all of it, is backed (often fronted) with stories of exonerations fought, exonerations won, and exonerations still pending resolution.  Here's a case, he says.  Look how the ID was bad!  Look at how the cops coerced the confession!  Look at how they implanted a memory or just got the witness to correct the memory to comport with the evidence! 

It's storytelling not because a story proves the point but because it illustrates the point.  And amid the tens of stories he tells, there's particular focus on a few.  

Most frequently, it's the case of Steve Avery from Making a Murderer.  It makes sense.  Many readers will know the story already.  And it serves to illustrate many of his points.  Clarence Elkins and Dean Gillespie get special treatment too because, well, Mark and the Ohio Innocence Project freed them.  

None of this is particularly new.  Along with untold numbers of books and articles addressing individual horror stories of the innocent convicted and sometimes (but not always) exonerated, academics and others have been churning out books on this with regularity.  In the last few years alone there've been Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent, David Harris's Failed Evidence: Why Law Enforcement Resists Science.  And those are just a few I've reviewed here.

The perspectives vary.  They don't all tell the same stories.  But they all make the same points.  The system is flawed.  And while it can't be perfected, there are things that can be done to improve it.  Not surprisingly, they all recommend essentially the same things.

  • Videotape confessions
  • Abandon the Reid technique of interrogation
  • Sequential, double-blind administered lineups with immediate declaration of degree of certainty
  • Remove crime labs from the control of police and prosecutors

All much easier said than done.  Because - and here's the point of Mark's anecdotes - the participants in the system simply don't recognize that there's a problem. 

See, and here's the weakness - of Mark's book and, frankly, the others.  They are, all of them, too trusting.  Oh, sure, there are a few of those so-called "bad apples."  But really, police and prosecutors and judges all really do want to the right thing.  If you could just make them see . . . .

Which is much of why Blind Injustice begins and ends with Ricky Jackson, another of Mark's clients at the Ohio Innocence Project.

Jackson's story is powerful.  In 1975, he, Wiley Bridgeman, and Kwame Ajamu were convicted of murder in Cleveland.  Sent to death row.  Convicted based on a lie.  A 12-year-old kid coerced by the cops into fingering the three of them.  Freed after 39 years when the kid recanted.  
39 FUCKING YEARS.
Because the cops got the kid to lie.

What's striking, though, is not the lie.  Not the wrongful conviction.  Not even the eventual exoneration.  See, they had the hearing.  The kid, now in his 40s, testified about how he was coerced.  How he lied.  How the lie ruined his life.  And how, finally, he came to tell the truth.  When all the testimony was over, they all broke for lunch.  Closing arguments, the judge said, after we eat.
     When we returned to the courtroom at the predetermined time, the prosecutors and the judge were nowhere to be seen.  After thrty more minutes passed, there was still no sign of the prosecutors or the judge.  We sad in the courtroom and waited, confused and exceedingly nervous.
     After about forty-five minutes of waiting, the courtroom doors swung open and Mary and her team of prosecutors entered the courtroom.  With them was the elected prosecutor -- the head of the office.  They entered the courtroom at the same time that the judge entered through his private door behind the bench, as if their entrances had been orchestrated.  The prosecutors walked straight up to the bench and said something to the effect of "We agree that Ricky Jackson is innocent and that a terrible injustice has occurred in this case.  We are dismissing all the charges and agreeing that he may be set free."
     In all my years of doing postconviction innocence work, I have never been so shocked.
OK, as Mark says, that doesn't happen.  Prosecutors typically fight exonerations tooth and nail.  But, the very oddity of what happened in Ricky Jackson's case - put up against all the stories of prosecutors who never concede - gives the lie to the assurance that prosecutors and cops and judges are all acting with good faith something like 99% of the time.

Oh, I'm not saying that they set out to frame people, to convict those they know are factually innocent.  It happens, but the frequency of that is I imagine vanishingly small.  Rather, they blind themselves and then they cheat - and they know damn well that they're blinding themselves and cheating - because that's how they make squishy cases better and good cases great. 

There's a reason we have the word testilying for what cops routinely do on the witness stand.  And the larger truth (one Mark mentions almost in passing) is that we let them get away with it.  Police aren't punished even on the rare occasions they're caught cheating.  Partly that's because they have qualified immunity.  Partly it's because they have powerful unions.  Prosecutors don't suffer for their misconduct.  Partly that's because they have absolute immunity.*  And because the legal disciplinary folks give them a pass.  Why?  Mostly it's because we - the rest of us- just don't care.  They're catching bad guys, after all.

Remember, the theory of our system is innocent unless proved guilty.  If we mean it, we have to take seriously the idea that the proof should be reliable.

Blind Injustice is worth the read.  Give a copy to your favorite prosecutor.  And maybe to your neighbor.


--------------
*Mark says that they, like cops, have qualified immunity.  He knows better.

-------------
My thanks to Mark and the University of California Press for providing me with a copy for this review.

Saturday, November 4, 2017

Just Look at Them and Sigh

It was April 2, 1997, just over 20 years ago.  A sheriff's deputy was taking Alva Campbell from jail to the courthouse where he was set to be arraigned on a charge of aggravated robbery.

But Campbell broke away, stole the deputy's pistol, and ran off.  Charles Dials was driving by in his pickup.  Campbell stopped the truck, jumped in at gunpoint, and drover around with Dials in the passenger seat for a few hours.  Then he had Dials get down on the floor and shot him twice in the head.  (It wasn't Campbell's first killing.  He'd been paroled five years earlier after serving 20 years on a first degree murder conviction.)

Campbell drove around some more, stole another car, though that driver escaped.  He tried unsuccessfully to steal another car, again the driver escaped.  Police caught him hiding in a tree.  He surrendered and confessed.

He's been on death row since 1998.  The State of Ohio plans to kill him on November 15.

I could tell you about his childhood of physical and sexual abuse (even the prosecutor concedes it was terrible).  I could tell you that he's remorseful now, that he claims he's changed, that he sees the world differently than he did before.  I could tell you that he's had a pretty good disciplinary record in prison.  I could . . . .  

Ah, the hell with it.  You know all that.

What I want to consider, want you to consider, is whether Alva Campbell should now, in under two weeks, die for what he did to Charles Dials.  Die for that, because there's no question he'll die (we all do).  And there's no question he'll die in prison.  The question, as always, is the mechanism of death.

And on that point, and in this case, it's worth looking for a bit at Alva Campbell today.  That's 69-year-old Alva Campbell. 

He moves with a walker.  That's a colostomy bag on his hip.  He gets four breathing treatments a day to keep him going.  And he may have lung cancer.  

They plan to strap him to a table, but he won't be lying down.  That's too hard on his body, so he'll be propped up somehow, sitting.  

And then they're gonna stick needles in his veins and pump poison --

Oh, wait.  They can't do that.  

See, Ohio's fucked up so many executions because our prison guards aren't really competent to do this shit.  So we have some special procedures to make sure the killin' will go well.  For instance, we have nurses assess his veins to be sure that they guards can get the needles in and set.  But damn.  They report that Campbell's veins aren't up to the task.  And, of course, he's allergic to the first drug they're using.

His lawyers suggested death by firing squad.  (Bad veins aren't an issue for death by bullet.)  But of course that's not a legal method of killin' here in the Buckeye State, and who knows if the General Assembly would actually pass a law or if Governor Kasich would sign it.  Anyway, the judge said no.

And so, here's the question.

What, exactly is the point?  

Alva Campbell's gonna die soon.  He says his doctors have told him he has 6 months to a year.  Sure, that's longer than a week and a half, but not all that much longer.  And it's not like he's livin' high on the hog.  His life, what there is of it, pretty much sucks.

A few weeks ago, the Parole Board held it's clemency hearing for Campbell.  

Then they voted 11-1 against recommending clemency.  Clemency was not, the eleven said, in "the interests of justice."*  Sure he had an horrific background, but he has a "disturbing propensity to engage in extreme and senseless violence."**  The one disagreed, pointing to that horrific background. 

So, now that the Board has spoken, Governor Kasich can do what he wants.***  Which brings me back around.

See, the plan is to kill Alva Campbell not because he deserves to die.  But because he deserves to be killed.  

Because it's important that he not be allowed to die of natural causes or any way other than by drugs lawfully administered by prison guards.  Natural causes?  Feh.  That's God or Nature or just the way things go.  Suicide?  Can't allow that.  Those other options would cheat the hangman, deny the good people of Ohio the vengence justice they deserve to inflict. 

And so the old man with the colostomy bag on his hip, with four treatments a day so he can breathe, with veins that can't support the needles they'll be using to push the drugs . . . .

Aw, fuck it.
Dear Governor Kasich:
Please just let Alva Campbell die in his own, and quickly approaching, good time.  It's too late to teach him a lesson.  And killing the old, rapidly failing guy won't teach anyone else, either.  Except, maybe, that we can be as cold-hearted now as he was then.  And that we should be.
Just deserts, and all.
Teach your children well.  Of course, that's not exactly the lesson Crosby, Still, Nash, & Young had in mind.  






-----------
* Whatever those "interests" may be.  The Board didn't explain.  It never does.  Presumably they're kind of like Justice Stewart's obscenity: known when seen but inexplicable.

** Or at least he did.

*** A Board recommendation one way or another is a legal requirement in Ohio before the Governor can grant clemency, but the Gov has no obligation to follow the recommendation.  Mostly, they do, of course.  It's good to let the Board take the heat one way or the other.  But Ted Strickland commuted a sentence when the Board said not to and refused to commute one when the Board said he should.

Saturday, September 30, 2017

Did Kellyanne Conway murder Melissa Trotter?

It's been a while, years in fact, since I've written about Larry Swearingen who did not kill Melissa Trotter.  That's the same Larry Swearingen the good people of the State of Texas intend to kill on November 16 for the murder of Melissa Trotter.  The same Melissa Trotter Larry Swearingen did not kill.

Sigh.

Let's do this in three parts.

Part I:  Larry Swearingen was in police custody when Melissa Trotter was elsewhere getting killed.   That seems incontestable.  

The Texas courts don't care.  The prosecutors don't care.  After all, there's all that circumstantial evidence and junk science that points to him.  Therefore he's guilty.  Proof that he's innocent would be, I don't know . . . . 

Wait, I got it.
Alternative Facts.
Cool.  Let's blame the killing on Kellanne Conway.  I don't know where she was at the time.

Anyhow, whoever killed Melissa Trotter, it wasn't Larry Swearingen.

But, again, the courts don't care.  The prosecutors don't care.  And Texas plans to kill him on November 16.

Part II:  As I've said from time to time in the context of more than one allegedly bad guy
TEST THE FUCKING DNA!
But of course they won't.  Well, that's not quite right.  They've tested some.  To the surprise of pretty much nobody who paid attention to Part I, 
IT AIN'T HIS.
Which is, of course, not of any particular interest to the courts or the prosecutors.  Who don't care.

There's more stuff that can be tested, really, stuff that should be tested.  The trial court (the Texas trial court!) has a couple of times now ordered the testing under the Texas post-trial DNA testing statute. Of course, the prosecutor appealed, because -- we'll get to that.  And the Texas Court of Criminal Appeals said "No."
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT IN A CAB!
YOU MAY NOT TEST IT IN A LAB!
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT, THAT WE SAY!
Oh, and in particular, if testing were to be allowed, the DNA could not be run against the existing DNA databases to see if it matched a person who might have killed Melissa Trotter.  Say, someone who understands and hides behind alternative facts.  Say, Kellyanne Conway.

Nah!
No testing, no checking.
But the court is cool with killingLarry Swearingen November 16 for the murder of Melissa Trotter whom he did not kill.

Part III:  Which brings me to the prosecutor and the reason he doesn't want the testing done - though he'd love to have it done.  Just as long as he can be assured that the testing will be irrelevant.  Jordan Smith, at The Intercept
The problem is with the way the statute is written, says Bill Delmore, chief of the Montgomery County DA’s Legal Services Bureau, which handles the office’s appeals. In deciding whether a defendant is eligible for DNA testing, a judge is required to find that exculpatory results would likely change the outcome of the defendant’s trial. That’s exactly what Case found each time he granted Swearingen’s request. But Delmore says his office is unwilling to accept that possibility. “I would never, ever agree — never, ever agree — that the presence of a third party’s DNA on some random piece of evidence in this case establishes that Larry Swearingen is innocent. That is ridiculous,” he said.
What the DA’s office wants is to be able to conduct testing without ever having to acknowledge that the results might change the original conviction. “If you told me that all the other evidence had somebody else’s DNA on it, then I’d say, well, [that person] must’ve done this with Larry Swearingen,” Delmore said. “It’s really hard for me to imagine DNA evidence in this case that would actually, in my mind, exonerate Swearingen.”
See, the problem is that the evidence might matter.  Oh, sure, it would just get a hearing.  But damn, then someone would have to consider . . . .
Still, Delmore is adamant that he and his boss Ligon are not opposed to DNA testing, per se. “We’ve always been willing to do the testing, but we’re not willing to do it under the constraints that this stupid statute puts on us.”
Besides, they probably like Kellyanne Conway.

Or maybe it was Sean Spicer.

OK, I'll come clean.  I don't think it was Kellyanne Conway.  She probably wasn't there, either.