Wednesday, September 17, 2014

Constitution Day

You know these words.  If you're of a certain age - or a certain background, I suppose, you were required to memorize them.
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America. 
They were adopted, promulgated, "done in Convention" as it says
by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names.  
It was, of course, an imperfect document.  Barbara Jordan in her opening statement at the House hearings on the impeachment of President Nixon gave voice to one core problem.
Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: "We, the people." It's a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that "We, the people." I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in "We, the people."
It remains imperfect.  There are things we would change today.  Some I would.  Some you would.  If we do not have exactly the country our forefathers envisioned, well, we can argue about how it is and isn't that.  And whether that's a good thing or not.  It embodies a series of compromises, after all, and that's always going to leave someone unhappy.  

And its application.  Sigh.

It's a blueprint designed for a largely agrarian society.  It created a government intended to be inefficient.  It was to be inefficient, because efficient government was government that too readily acted, too readily abused.  But it created a government still.  Not impotent, just awkward.  (The Articles of Confederation created an impotent government.  That was part of the reason for the Constitutional Convention.)

We've fiddled with it through Amendment.  We've interpreted and reinterpreted it.  We've found in it rights noone really imagined.  And we've squandered protections it clearly promised.

But the structure, for good or ill, has endured.

It was 227 years ago today.  September the seventeenth, 1787.

"What is it you've given us?" a woman supposedly asked Ben Franklin as he walked out of the Convention that day.

"A republic, if you can keep it," Franklin is said to have replied.

Monday, September 15, 2014

Of Course, It's More Complicated Than That

Judge Kopf began with Digby.  Digby'd staked out the remarkably stupid position that since Nino didn't think the Constitution prohibited the execution of the factually innocent, and didn't think that it was immoral to hold that position, he therefore thought it was just fine that they should be killed.  As the tagline to her piece says,
He doesn't think executing an innocent man matters.
Of course, he never said any such thing.  He has said that the likelihood of it is vanishingly small (the phrasing is mine, not his).  And he has acknowledged that, at least as a theoretical matter it's at least a possibility if we have a death penalty, which he thinks we should have.  But that he thinks it's OK? No, he's never said that.  And it doesn't follow.

Nor, when explaining that lethal injection is a kinder death than Sabrina Buie suffered at the hands of Henry Lee McCollum and Leon Brown and that their execution would not, therefore, offend his sensibility, did he add, as Digby seems to think he meant, that he favored their execution even though they were innocent which would be revealed with their exoneration 20 years in the future.

So Judge Kopf rightly took Digby to task. 

But because he's a thoughtful guy, the Judge wrote another post exploring his own views about judging and about factual innocence.  
Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
There followed, of course, those paragraphs.  Which carried within them, as does the introduction to them I just quoted, their own caveats and qualifiers, but at bottom said that there are circumstances under which he, as a judge, would not act to prevent the execution of a person he "knew" was factually innocent.  The law, he said.  Justice, he said, making clear that justice was different from morality.   Mine were among the so-far 95 comments.  Then I did a blog post.  In my typical discursive and round-about way, I talked about guilt and innocence and democracy and juries and Watergate and . . . . Hell, read it yourself it you're so inclined.  Or don't.

This morning, Scott Greenfield weighed in with a pair of posts:  If There Was No Other Way, Part 1 and If There Was No Other Way, Part 2.  Part 1 was an attempt to explain Judge Kopf's position. Part 2 was a response.  Pared of its explanatory framework, Scott's basic point is that whatever we might like to believe, our systems are far too fucked up to allow any executions - let alone the execution of the innocent.
We work in terrible trenches, even if the stench is removed with the perfume of an appellate decision. Nothing we do happens well enough to satisfy due process, law or the thoughtful concerns of a knowledgeable electorate. The law doesn’t happen well enough to make it just to execute anyone, no less a person known to be innocent.
All of us who labor in the trenches are unworthy of that level of respect, that the product of our labors is sufficiently sound that it justifies the taking of a human life. To believe otherwise is unbounded hubris. We may do so by relying on the platitudes of the law, but we are only fooling ourselves. There is nothing we do so well in the name of justice that the killing of an innocent person can be excused.
Which history is the immediate background to this. There is, though, a longer background.  One that reaches back to 1791 when the 5th and 8th Amendments became part of the Constitution.  First the 5th.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It's clear that the 5th Amendment accepts the prospect of executions. It says that with certain exceptions prosecution for capital crimes requires indictment by a grand jury.  The fact that a procedure for beginning capital prosecutions is set out makes clear that the Constitution in its own terms does not prohibit them.  Moreover, the amendment says that nobody can be "deprived of life . . . without due process of law."  Spin that however you like.  It says that before they can kill you, they have to give you due process.  If they do . . . .

That was Scalia's point.  The Constitution says that there can be no execution without due process. It must be, therefore, that the Constitution allows executions with due process.  Not that it mandates executions.  Not that it says executions are moral or right or even desirable.  Just that as long as there's due process, the Constitution doesn't prohibit them.

But there's also the 8th Amendment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
On its face, that says nothing about the death penalty.  Nothing about executions.  Yet for the last 42 years, since Furman in 1972 when the Supremes said every death penalty law in the country violated the 8th Amendment (even if the death penalty as such did not), it's been 8th Amendment jurisprudence that defines it.  When it's arbitrary, when it's applied to the insane, when it's applied to the intellectually disabled, when it's applied to kids, when it's applied without full individualized consideration, when . . . . Why then it's cruel and unusual.  

But otherwise?  During his confirmation hearings, Stephen Breyer was asked about the death penalty. It is, he said correctly, settled that at least in the abstract it does not violate the 8th Amendment.  And then he went on to something else.

The 5th Amendment?  Meh.

Now, you might argue that killing the factually innocent is cruel and unusual, too.  But we've yet to find 5 Justices at one time who've said that.  Might we?  Today?  If the absolute question was called?

I suspect the answer is yes.  5-4 with Kennedy joining the moderate statists who commentators and the media have come to call liberals.  I also suspect the 9 of them will go through gyrations to avoid ever having to answer that question explicitly.

But there's another way of getting there.  That business of taking life only when there's due process begs the underlying question of all procedural due process cases.  The Court laid it out in Morrissey v. Brewer, a 1972 case involving parole revocation.
Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action."
To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.
(Citation omitted, paragraph break added.)

The Court has suggested from time to time, and some think they mean it, that in death penalty cases, precisely because of the "private interest that has been affected by governmental action," the Constitution requires some sort of "super due process."  And if the person is factually innocent? 

Well, can there ever be enough process to justify the execution?

One more time.  I'm unalterably opposed to the death penalty in all circumstances.  It's bad policy, bad politics, unavoidably arbitrary and capricious.  Given the realities of our world, it's necessarily racist and classist.  It doesn't achieve it's purported ends.  And we're not capable of properly choosing its victims nor, it seems, of killing them as we insist we must:  Kindly, gently, lovingly, and in ways that disguise the fact of cold-blooded murder.  It makes us all worse.  And it's immoral.

And yet there it is.  Just waiting for some judge to answer the question of "What process is due" with an honest, 
More than we have available to give.

Thursday, September 11, 2014

Close to Simple Murder

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
Herrera v. Collins (Blackmun, dissenting)
A single death is a tragedy; a million deaths is a statistic.
Joseph Stalin
What is truth? said jesting Pilate, and would not stay for an answer.
Francis Bacon, Essays, "Of Truth."

At one time, and in some abolitionist circles, I was known as the guy who grumbled whenever anyone wanted to talk about innocence.  It is, I said then, a dangerous idea.  Partly for that reason, I suspect, our criminal law shies away from it.  We are concerned, we who operate in the trenches of the legal system, whether as defense lawyers, prosecutors, jurors, or judges, we are concerned with guilt or its absence.  Innocence is, for us, mostly a dangerous distraction.

Ask any criminal defense lawyer who's been doing this work for a while if she wants to represent an innocent person.  The answer will be an unequivocal NO.


There is this innocence thing.  It's a legal non-entity.  And at some level it's why we're here.

"I made him just and right," Milton has God say in Book III of Paradise Lost, "Sufficient to have stood, though free to fall."  Could have been innocent.  Turns out to be guilty.

It's the claim of free will and the problem of guilt.  But guilt of what sort, exactly?  Milton's rebel angels transgress against God by wishing not to be subservient.  Dig to the core, and their sin, their guilt, was pride.  The first of the deadly sins, malum in se as the lawyers put it, bad in itself.   Our transgression, Adam's and Eve's was different.  Their sin, their guilt, was disobedience.  They had but a single rule.
Don't eat the fruit from the tree of knowledge of good and evil.
And they violated it.  Nothing inherently wrong with learning about good and evil.  Not malum in se. Rather, malum prohibitum, bad because there's an arbitrary rule that says so. 

So there are different kinds of guilt depending on whether the thing is bad because it's bad or because we say so.  But that only scratches the surface.

There's moral guilt (however it's measured).

There's legal guilt, which doesn't exist until a judge or jury makes a formal finding of guilt after a trial or a plea.  And the plea might be Guilty or No Contest or Guilty with an explanation or Guilty with Reservations of Rights.  There are conditional guilty pleas.  There are Alford pleas which are guilty pleas while maintaining factual innocence.  There are Robinson pleas (at least in Delaware) which are guilty pleas when the person can't remember whether he did it or not.

There's the guilty mind which involves some level of culpability beyond the fact that it happened.  Lawyers who like to toss around Latin terms speak of mens rea, the mental state.  Did the person act purposely or knowingly or recklessly or negligently or is the crime a strict liability offense?

There are guilty motives and intents to which we assess no blame.  After all, as Anatole France mordantly observed,
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
And of course there's factual guilt.  Did the person do it?  Was it even done? (Think Cameron Todd Willingham, who probably didn't set the fire that killed his children.  It's not that he was the wrong guy, but that it was likely an electrical fire that nobody set.  No crime at all.

Innocence is, ultimately, no different.

Moral, legal, factual.  There's the innocence of the newborn.  The innocence (if one believes such things - or if they're true regardless) of the saved.

But despite how it sometimes appears, this is a blawg, not a blingusitg or blphilosophg.  And I'm a criminal defense lawyer.  Can be no other, as I've said on more than one occasion here.  And a capital defense lawyer.  And aboltionist.

If you've spent any length of time reading through my musings, you know that I'm unalterably opposed to the death penalty.  My opposition is philosophical, moral, practical, political.  It's bad policy.  It's unworkable.  It's immoral from the get go (as they say in Texas where they executed Willie Tyrone Trottie a few hours ago).  It's racist and classist and sexist.  It costs too much.  We can't get it right and don't frankly care enough even to make the greatest possible efforts in that direction.

And, of course, sometimes we just get it wrong.  Kill the guy who's not death eligible.  Or just kill the wrong guy.

How often?  Nobody knows.  Justice Scalia, using statistics in  shockingly dishonest fashion (though Hanlon's Razor cautions against suggesting the dishonesty was intentional), concludes that the chances of a factually innocent person being executed are vanishingly small.  Others find the wrong guy on nearly every gurney.  What we know, as a statistical certainty, is that if we kill enough people, we'll eventually get around to killing factually innocent ones.  

Have we already?  Polling data indicates that most folks think we have.  Those who study the matter have a number of likely examples.


Richard Kopf, Senior U.S. District Judge, and blogger at Hercules and the Umpire, set off another firestorm (not his first) with his post on The Death Penalty and the Matter of Factual Innocence.  

I knew when I became a judge, he says, that I might have to rule on capital cases.  And I knew that there was at least some chance that I'd not overturn a death sentence and that it could lead to a factually innocent person being killed.  And yet I took the job.

And swore the oath set forth in 28 USC § 453.
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”
My job, he says, is to do ("administer" in the language of the oath) justice, not morality.  
It is important to distinguish between what may be a immoral and what may be unjust. They are not the same. Depending upon your religious beliefs, it may be immoral for a judge to accept that an innocent man may die in order to maintain a system that protects society at large by executing a great number of malevolent and guilty killers. But, is the judge’s acceptance of that flawed system just? The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.
And so one does one's job.  Whatever is required.  Which for Judge Kopf, per his blog, is here.
  • Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.
And the firestorm.

It is the dilemma of the judge.  

If he wanted to, he could not declare capital punishment unconstitutional on grounds the Supreme Court had rejected.  At least, he could not consistent with his duty to obey the law regardless of his personal preferences.  If he wanted to, he could not declare a free-standing claim of innocence sufficiently compelling to grant habeas relief on it since AEDPA allows relief only on grounds approved by the Supreme Court.  He could slice and dice and twiddle, but he's wedded to the Rule of Law which means he won't "play games with the law to do so."

There is a mark of integrity in this.  I know what is right.  The execution of the innocent is never right. Within the bounds of the law, I will do what I can to prevent it.  But I won't violate my oath, my bond, my duty.  I honor the Rule of Law by obeying the law even when, perhaps especially when, it is the most distasteful.

It is the integrity we traditionally associate with Robert E. Lee, resigning his commission to fight for the South not because he believed in slavery or even favored secession but because the South was his home.  (There's some evidence that our common understanding of Lee's motives is deeply flawed, but that's for another day.)  And we praise Lee for it.  But slavery.

And though I don't think the point particularly fair, Nuremberg.

In a comment, I wrote this.
It is the duty of the judge to follow the law and to go where it takes her. But when the law is at odds with greater law (say, god’s if you believe in her, or nature’s or moralilty from whatever source), then you have the problem of what to do.
I was talking once with an appellate judge who, I knew, was opposed to the death penalty but who I also knew had voted to affirm death sentences. “How can you do that?” I asked. We talked about alternatives (ignoring the law, recusing himself from all capital cases, etc.) Ultimately, though, he offered this answer. “If I don’t stay on the cases and vote to affirm when I must, I can’t be there to overrule a death sentence when I can.”
I do believe in rules.  They are what we have.  Absent the law . . . .  From A Man for All Seasons.
William Roper:          So, now you give the Devil the benefit of law!
Sir Thomas More:      Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper:          Yes, I'd cut down every law in England to do that!
Sir Thomas More:      Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
And yet.

If the law compels a result not merely unjust but immoral, then what is the response of one wedded to the Rule of Law?

Judge Kopf assumes that those who enacted the capital laws, and the voters who put them in place, recognized that they were, in effect, condemning some innocent people.  And that they were OK with that.  it was a careful choice of balances.  I think not.  Oh, the consequence was real enough, and obvious if one considered it, but I suspect that pretty much nobody did.  Nobody, after all, actually favors the murder of the innocent.  And it's why the single dead innocent guy is worth far more than theoretical possibility or even sure-it's-happened.

We were conducting voir dire one day in a capital case.  It was the first part, in the judge's chambers. One prospective juror, the judge, court-reporter, lawyers, and defendant.  How do you feel about the death penalty, the juror was asked.  No very strong feelings.  Hard to say.  Glad we have it.  But you'd want to be really sure.
Q          What about this guy, here?  If the aggravating circumstances outweigh the mitigating factors, can you sign a verdict form saying that this man should be put to death?
A          Wow! That really calls the question.
He hemmed and hawed for a while.  Never did really answer.  He ended up sitting on the jury.  The jury gave our client life.

When push comes to shove.  When the question is called.  When you've moved heaven and earth and nobody gives a rat's ass.  Do you sign off on the killing of the innocent man?  

When President Nixon insisted that he fire special prosecutor Archibald Cox, Attorney General Elliot Richardson resigned.  When Nixon then went to Deputy Attorney General William Ruckelshaus and ordered him to fire Cox, Ruckelshaus resigned. And so Nixon turned to Solicitor General Robert Bork.  Who fired Cox.

I've never had the honor of practicing before Judge Kopf.  I've never met the man.  But I think, whatever he says now, when it's all theory, when push came to shove.  When the question was called?

Richardson, not Bork.

Friday, September 5, 2014

It can't help but have some effect

My father died in 1986.  It was no surprise.  The doctors had said 6-12 months and it had been about 10.  He was in the hospital in New York.  I was in Texas.  My mother kept telling me not to come.  
It isn't time, she'd say. It isn't time.  I'll tell you when.
Then she called.
Now, come now, today.
I caught the first plane I could get to LaGuardia.  I wore my funeral suit.   Cab from the airport to Mt. Sinai.  Ran up to the room dragging my suitcase.  My mother and sister were there.  My father was in a coma.  He was hooked up to machines that beeped and buzzed.  Monitors with green lines tracing breathing and pulse and heartrate.  My mother and sister left the room.
We'll go get some coffee.  Give you some time alone with him.
I looked out the window at Central Park.  Or maybe it was at the building across the street.  I don't know.  I didn't really see the view.  I know it was evening.  Getting dark, probably already dark.  

He lay there in the bed with the wires and the monitors and the buzzing and the beeping.  I looked at him.  I said a few words to him.
I'm here.  It's me.  I love you.
Or maybe I talked about the flight.  Braniff from Lubbock to Dallas, then from Dallas to LaGuardia. I have no idea what I said, but I remember babbling for a couple of minutes.  Then he stopped breathing.

When my mother died, I was in Toledo and she in New York.  After months in Mount Sinai, they were finally going to grant her wish and unhook her from the machines.  My sister was there with her.  She had a few strawberries and was going to give one to our mother, a treat she'd been denied for months as they fed her intravenously.  

I stayed in Toledo.  Was in court that morning to argue some case.  One of the judges asked how my mother was doing.
They're pulling the plug this morning.
Then why are you here?
I don't know.  Work distracts me.  Besides, you know how these things work.  Sometimes people linger.  My sister's with her.  When I get back to the office, I'll get word.  If she died, I'll catch a flight.
(I don't have a clue about the case.  What it was, what I argued, what they decided.  Did I win or lose? Not a clue.)

Got back to the office.  She'd died.  I caught a plane. 

When my sister died in a hospital in New York (not at Mount Sinai - neither of us will ever willingly go there), I was in Toledo, teaching at a seminar.  They'd told me she had another couple of months. They were wrong.

When my father-in-law died, in Pittsburgh, I was on my way from there to Chicago to pick up my younger son who'd just suffered a major broken ankle.  When my client,Jim Filiaggi was killed by the good people of the State of Ohio, I wasn't one of the witnesses.  I was across the way, in an office, watching the door, waiting for the witnesses to leave the execution chamber.  And for them then to wheel Jim out in a body bag.

I've had other relatives die.  I've had friends die.  I've lost clients.  Months before she became my wife, I held her cat in my arms while he died.  I was with her when her dog was put to sleep, though we didn't witness it.  I dug a grave in our backyard for my older son's rabbit.  I have friends who do death penalty work, lots of the late stage stuff.  They've watched and wailed as their clients were killed.  

Me, I've been on the periphery of a lot of death.  But my father is the only person I've actually watched die.  It's not something I'd wish on anyone.

That's me.  Then there's Michelle Lyons.  Texas Monthly, in an article by Pamela Colloff, calls her "The Witness."*

Michelle Lyons watched 278 people die.  Men and women.  Murdered in cold blood by the State of Texas.  She started attending the killings as a reporter.  She watched many more in the Public Information Office of the Texas Department of Criminal Justice, the state's prison system.  She eventually became Director of Public Information.

Driving along in her car after she dropped off her daughter at elementary school one morning after she left TDCJ, she spoke into her tape recorder.
“I support the death penalty,” she began. “I believe that there are some crimes that are so heinous that the only way you can truly pay your debt to society is with your life.” She spoke with the same deliberation she had used when addressing reporters outside the Walls after high-profile executions. “But in other cases, I feel very conflicted,” she added. “There are men I watched die that I don’t think should have.” A piece of folk art she had picked up on a trip to Austin—an evil-eye charm to ward off bad spirits—bobbed from her rearview mirror. “I thought being away from the prison system would make me think about it less, but it’s been quite the opposite,” she continued. “I think about it all the time.”
Larry Fitzgerald hired her at TDCJ.  He was Director of Public Information at the time, and they'd attended executions together.  She'd never asked how he felt about watching the killings and he never said.  Until one day on the road, after they'd both left TDCJ.
So when she had phoned him from the road the previous fall and he had casually mentioned that he was having nightmares—which he downplayed by calling them dreams—about his time inside the Walls, his words had sent a jolt through her.
Over the years, she'd gotten to know many of the folks she'd later watch be killed.
"I came to believe that there were 2 kinds of people on death row," Michelle told me. "You had guys who were true sociopaths. A lot of them fell into that category. And then you had guys who'd gotten themselves into a bad situation - running with a rough crowd, abusing alcohol, doing drugs. Maybe they robbed a store to get money for drugs and something went wrong and they shot the clerk. They'd had a choice to make, and they'd made the wrong one, but they hadn't set out with the intention of killing someone."
Some of them, anyway, she saw as people.  

Rodolfo Hernandez was missing a leg, amputated below the knee, a consequence of diabetes.  He asked for a prosthetic leg so he could walk to his execution.  No, said TDCJ.
When Michelle visited him beforehand, he anxiously jiggled the stump of his leg up and down, as if the entire limb were still there. "At one time, he was this powerful hitman and now he is an old man waiting for his death," Michelle reflected less than an hour before his execution, as she jotted notes in her office. "I don't debate whether there should be a death penalty because if someone killed one of my loved ones, I would want them to die. But I still feel sympathy for this man, who nervously kicked a leg he doesn't even have anymore."
But even then.

Hilton Crawford wanted catfish for his last meal.  Denied, since there was none in the prison kitchen. Lyons went and bought some to have it cooked for him.  She found it "very hard to explain" how she could feel compassion, do something, for a man who'd murdered a little boy.  
Later, when she caught sight of the victim's mother at Crawford's execution, she felt a twinge of panic. What if he acknowledged her gesture from the gurney? "May God pass me over to the kingdom's shore softly and gently," Crawford said after he asked the victim's family for forgiveness. He nodded as the lethal injection began flowing and then gasped before falling quiet. As Michelle looked on, contemplating how easily she had shown kindness to a man who had murdered a child, she was filled with shame.
And yet.

Fitzgerald only saw 219 executions before he retired, so Lyons at 278 by the time she left TDJC would seem to hold the record.  Fitzgerald testifies for the defense these days.  Life without parole, LWOP, death in prison, he says, is enough.  He's not bothered so much by what he remembers.  
"What bothers me is that I can't remember them all," he said. "There are names I have forgotten."
For Lyons? For anyone, you can't watch that many cold-blooded killings and not respond.  Not if you're human.
There is a difference between supporting the death penalty as a concept and being the person who actually watches its application. Being human, I knew there were bound to be cracks in the veneer. I just thought somehow it wouldn't happen to me.
She remembers a poem, not by an inmate, by Dorothy Parker, "The Veteran."
When I was young and bold and strong,
Oh, right was right, and wrong was wrong!
My plume on high, my flag unfurled,
I rode away to right the world.
"Come out, you dogs, and fight!" said I,
And wept there was but once to die.
But I am old; and good and bad
Are woven in a crazy plaid.
I sit and say, "The world is so;
And he is wise who lets it go.
A battle lost, a battle won--
The difference is small, my son."
Inertia rides and riddles me;
The which is called Philosophy.
*Much of the article is unfortunately now behind a paywall.  I've clipped and quoted from some of what you can't read there for free. 

Wednesday, September 3, 2014

When We Talk About "Justice"

They were innocent.  Then they were guilty.  Now they're innocent.  Yet they were always innocent. And will always have been guilty.

Regardless of what happened.

I'm talking about Henry Lee McCollum and Leon Brown.  Who spent 30 years in prison for a crime, an horrific crime, the rape and murder of 11-year-old Sabrina Buie.  Per Scalia, explaining why Lee McCollum ought to be killed (without actually hearing his appeal), an 
11-year-old girl [was] raped by four men and then killed by stuffing her panties down her throat.
But really, it was worse than that.  Here's the North Carolina Supreme Court.
An autopsy was performed upon the body of Sabrina Buie. Linear abrasions on her back and buttocks revealed a pattern indicating that the body had been dragged over a rough surface. There was a tear or laceration deep within the victim's vagina and a tear or laceration in her anal canal. Petechial hemorrhaging, characterized as the bursting of small blood vessels caused by pressure, was observed in the victim's eyes. Similar hemorrhaging caused by a pressure mechanism was also observed in the heart and lungs. The brain appeared slightly swollen due to a lack of oxygen.
A stick and pair of panties were wedged in the victim's throat, completely obstructing the airway. Dr. Deborah Radisch, Chief Assistant Medical Examiner for the State of North Carolina, testified that the victim died of asphyxiation.
So McCollum and Brown ended up on death row.  (McCollum actually was sentenced to death twice for the crime.)  No surprise.  The greater surprise is that 30 years later they were both still in prison, neither having been killed.

As I say, it was an horrific crime.  And McCollum and Brown were accused.  And were convicted.  Because confession.

Just like that, they went from innocent (which the law says they were right up to the moment the jury said they were not) to guilty.  And guilty they were.  For 30 years.  

Until yesterday when the judge said they were innocent.  Because DNA.

Joe Freeman Britt, the prosecutor who got the convictions, says the jury got it right.  
Don't care about no fucking DNA.  Because confession.
The current prosecutor, Johnson Britt takes a different tack. Per Jonathan M. Katz and Erik Eckholm in the Times.
In the courtroom here on Tuesday, the current district attorney, Johnson Britt (no relation to the original prosecutor), citing his obligation to “seek justice,” not simply gain convictions, said he would not try to prosecute the men again because the state “does not have a case.”
Good for him.

But Justice?

And from Johnson Britt sits, sure.  Choosing not to try and convict people you know didn't do it is, after a fashion, "justice."  (Though that somehow doesn't seem like the right word.)

But in any larger sense?

They were innocent.  Then they were guilty.  Now they're innocent.  Yet they were always innocent. And will always have been guilty.  

If only for 30 years.

That's maybe what we call "Criminal Justice."  Whatever justice is, it ain't that.

Friday, August 29, 2014

Ferguson and Spokeo

Rejecting the notion, floated by some so-called "progressives" and members of the Congressional Black Caucus that we need a Police Czar to prevent what happened to Michael Brown.  Or maybe what happened afterwards.  You know, to make the police friendly (just as the [war on] Drug Czar did such a fine job making the drug war genial and the Homeland Security Czar made TSA screenings warm and fuzzy and the Russian Czar made A FUCKING REVOLUTION), Scott Greenfield suggests that we already have the tools in place to reign in the police war on the citizenry.
But there is nothing sought for which there isn’t someone already responsible. The DoJ has an office of civil rights. The DoD doles out surplus military equipment under its 1033 program. You’ve got people paid to lead the police, oversee the police, fix the police, stop the police, then you can shake a stick at. And it’s amounted to a group of overarmed, undercaring, people with the power to subjugate upon command. So the answer is let’s add another layer with a cool Russian title?
Is there something progressive about the men and women we elected to national office, sometimes referred to as members of Congress, getting a free pass on their responsibilities? Or perhaps a Chief Executive who might use the fiat of his office to satisfy the needs of the citizenry. If only he had an Attorney General (which, If it makes people feel better, could be renamed to Attorney Czar) who was charged with seeing that the Constitution was honored by all who hoped to receive a government pension some day?
There is nothing here, nothing called for, that can’t be accomplished by the people already in place. They have the power and authority to control law enforcement. 
Don't hold your breath.

It is, after all, those elected officials (and the ones appointed by them and confirmed by them) who enthusiastically created this mess.  it is they who enthusiastically promoted the movement from 

Oops.  Sorry.  Meant this

Of course, there are also the courts.  They, as Scott added, are the backup.
And to the extent some slimy bastards sneak through, we then have judges to fix their wagon.
Well, not so much.  As Erwin Chemerinsky pointed out in a Times Op Ed the other day, various sorts of Court-created immunity protect government and cops from being sued.  You have to make them pay, but the courts insist that we can't allow that.  Oh, sure we have the right not to have our rights violated. But nobody gives a rat's ass about that.

What some people do care about is a broader effort to shut the courthouse doors to people who've been wronged.  What makes it easy, and what purportedly justifies it, is how the Supremes have dealt with the provision of Article III of the Constitution (specifically, the first paragraph of Section 2 of Article III) that sets out the jurisdiction of the federal courts.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Which brings me to Spokeo.  That's Spokeo v. Robins, a case that the Supremes have been asked to hear this year.  

Spokeo asks the question of whether Congress has the authority to give people the right to go into federal courts and sue because their rights have been violated.  Technically the issue is much narrower than that, but the broad brush is suitable here.

This is the problem.  The Court has long held that those "Cases, in Law and Equity" coming from the Constitution, laws, and treaties, are only ones where somebody has suffered a specific and personal concrete injury.  Out some money, you can sue.  Be physically harmed, you can sue.  Just be pissed because your constitutional rights are being violated but not in any personal, concrete way - you haven't lost anything except a bit of your guaranteed freedom?  Nope.  Sorry.  The courts won't fix that.

As the Supremes said, back in 1979 (citation omitted, Rehnquist and Stewart dissented from the Court's decision, but pretty clearly not from what I'm quoting), explaining what that limitation to cases meant
In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself" that is likely to be redressed if the requested relief is granted.
Why, if we actually said the courts were there to protect rights generally, to hold the government accountable for violating the Constitution?  It would surely be the end of the Republic.

Or not.

So Congress passed the Fair Credit Reporting Act and said that credit reporting agencies could be sued for willfully getting the information they reported wrong even if the person whose info was misreported hadn't suffered any actual harm from it.  (I'm oversimplifying like crazy.  Live with it.)  Spokeo said that Robins was better educated than he was, had more experience than he does, is married though he is not, and was better off financially than he is.  Robins sued for what he called a willful violation of the Act's requirements.  (Spokeo denies that it violated the Act, but that's irrelevant here.)  Ultimately, the 9th District said Robins could sue because he had an "injury in law" even if not an "injury in fact," and Congress said in the Fair Credit Reporting Act that an injury in law was enough.

Sorry for the arcana, but there was no other way.

So the question the Court can now answer if it's so inclined (the Court is set to consider whether actually to hear Spokeo at it's "long conference" on September 29) is whether there are circumstances when you can sue even if you haven't been hurt except that some right has been violated.  If the Court says yes (and I'm not putting good money on that), it's not only a victory for Robins and many other litigants, it's also a crack in the machinery that keeps the courthouse doors locked.

And once the doors are open even a little bit, then we can try to drive the trucks through.

The rules for closing the courthouse to people like Robins are supposedly based on the actual language of the Constitution.  The rules that say that cops are mostly immune to suit, that prosecutors are absolutely immune, that government is mostly immune, those rules have no grounding in the Constitution at all.  They were made up because the Divine Right of Kings and besides, if prosecutors and cops can be sued for riding roughshod over the innocent and guilty alike, they might exercise restraint - and then where would we be.

None of that would do much to hold Ferguson or Officer Wilson liable for what happened to Michael Brown.  And it doesn't directly address
But it'd be a start.

Sunday, August 17, 2014

Because He's Not Above or Below the Law

What should he do if it's true?  If he actually beat his wife?

That's what Judge Kopf asks at his blog, Hercules and the Umpire.  He's asking about Mark Fuller. That's The Honorable Mark Fuller, Judge of the United States District Court for the Middle District of Alabama.  

Jay Reeves in the Montgomery Advertiser.
Atlanta police arrested Fuller, 55, early Sunday and charged him with misdemeanor battery after his wife called 911 from a hotel and said he was beating her. Mark Fuller told police that his wife became violent as she confronted him with allegations of cheating.
Judge Fuller, of course, isn't the only judge to find himself facing criminal charges.

Here in Cuyahoga County, Judge Harry Jacob is waiting for the verdict on the charges of tampering with evidence and with records. (They dropped the far more salacious charges including promoting prostitution.) And Judge Lance Mason is out on $65,000 bond on charges of felonious assault against his wife.

None of this is, or should be, startling.  We might like to think that judges (especially federal, I suppose since they're appointed for life, but state and local, too) should be, like Caesar's wife, above reproach. The reality is that judges are no different than the rest of us.  Most are generally honest but probably break the speed limit on a regular basis, sometimes drink too much, maybe blow a little weed now and again, and probably take home a government issued pen or paper clip now and again for personal rather than official use.

Others likely cheat at cards and on their taxes.  They take hard drugs.  Maybe deal them.  They cheat on their wives and husbands, take bribes, extort campaign contributions and fix everything from parking tickets to rape charges.  And yeah, they beat their spouses.

They're also rude, intemperate, egomaniacal, power mad.  Some of them.

What to do?  What should they do?

Let's start with the obvious.  They should obey the law.  They should be ethical and honest.  If their impartiality could fairly be questioned in a case, or in all cases, they should recuse themselves.  If they can't do the job properly, they should resign.

But all that rather misses the point, and I think Judge Kopf's point.

Does the judge, any judge, have some special obligation to disavow himself of the protections of our criminal justice, or "(in)justice" as Paul Kennedy would say, system?  Is he ethically bound to plead guilty if he is factually guilty where the rest of the world is ethically free (and often wise) to make the prosecutor provide proof beyond a reasonable doubt of every element of the offense?  If convicted, does the judge have some obligation to refuse to appeal?

Must the judge who has committed any crime step down from the bench?  If the crime is malum in se rather than malum prohibitum (bad in itself rather than bad simply because some legislature declared it so), does that change the calculus?  Is the judge who isn't perfect fit to judge the imperfections of others?

Or do we actually honor the equal justice principles we ostensibly espouse?  Do we believe in paying one's debt and moving on, or are we committed to the scarlet letter and eternal punishment?

If Judge Fuller beat his wife, must he  be sent to the leper colony?  Does it matter why?  Does it matter how badly?  Does it matter if he was drunk or stoned or suffering a psychotic breakdown?  If she was?

Must the punishment be eternal banishment?  Should it be greater because he's a judge? Will that send a message?  Will the next person who's drunk or stoned or just out of control or just a mean SOB decide not to throw that punch because he'd heard a judge was stripped of his robe or sent to Siberia or locked up for a few days?  Weeks?  Months? Years?  

Or is the shame enough?  Most people charged with domestic violence crimes don't get their picture in the paper for it.  Most won't make news when their cases are resolved.  But the shame here.  Surely that's punishment enough.  Surely he's learned his lesson.  Hell, do we even need a trial.  Everyone already knows that he's guilty, regardless of whether he is.  He'll always be known as the judge who beat his wife, as a punk a brutalizer.  Reputation ruined.  No shot now at the court of appeals.  No chance he'll get any gold stars.  

So Judge Kopf asks,
What, if anything, should the judge do if he is guilty of assaulting his wife?
Right now, if there's a chance he's going to be found guilty, and there is (truth be damned), he should probably be getting into some anger management programs. 

Perhaps he should recuse himself from domestic violence cases, though as a federal judge they'd rarely work their way before him, and in any event, he's now been relieved of his entire docket.

Then he should do what any citizen should do when accused of a crime.  He should get a lawyer.  And he should see what happens.  Maybe he should go to trial.  Maybe not.  Maybe he should go to jail or prison.  Or spend 100 hours wearing a jump suit and cleaning rubbish from the side of the interstate under the watchful gaze of a Deputy Sheriff.  Or maybe he should behave himself on probation.  

Whatever should happen to anyone else who did what he did with a sentence based on the specific and individualized circumstances of the crime and of the criminal.

No more.  And no less.

And then he should, and should  be allowed to, get on with his life.