Friday, August 10, 2018

we have stopped being a civilized nation

Shortly before 8 Thursday night, Bily Ray Irick died.  He was killed by prison guards in revenge for the rape and murder of 7-year-old Paula Dyer 32 years ago.

Earlier on Thursday, and without addressing the merits of his requests, the Supreme Court denied the last effort to stop or delay the killing.  Sonia Sotomayor dissented.  

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent. 

Saturday, June 16, 2018

May 6, 1986.  Warren, Ohio.  Raymond and Doris Montgomery.  He 77, she 80.  Both dead.  Stabbed to death in their home.

Later that day, Charles Lorraine confessed to killing and robbing the couple.  Then he went to a bar and, with some of the money he took, bought drinks for some friends. It was his last day of freedom.  He was 19 years old then.  He'll be 52 in October.

December 9, 1986, seven months and three days after the killings, Lorraine was sentenced to be killed.  He's been on death row ever since:  32 years, 1 month, and 10 days as I type this just after midnight the morning of June 16.

I don't know Charles Lorraine.  I never represented him.  I don't know much about him.  I do know this.  It's been 32 years, 1 month, and 10 days.  He was 19 then.  He'll be 52 in October.

Oh, and I know this.  Yesterday morning, the Ohio Supreme Court, without dissent, granted the motion of the Trumbull County Prosecutor and set a date for Lorraine to be killed:  March 15, 2023.  
Nearly 5 years from now.  More than 36 years from the day he was sentenced to die.  Nearly 37 years from the date of the killings.

Let's do that again.

  • March 15, 2023.  
  • Nearly 5 years from now.  
  • More than 36 years from the day he was sentenced to die.  
  • Nearly 37 years from the date of the killings.

And I do know that I'm pretty much a broken record here, but I gotta say it:  Even if you believe in the death penalty, even if you believe that it can be morally justified or (and?) that it discourages murder.  Even if you think it's a damn good idea as a matter of principle.  Even if all that.
36 fucking years?
My god.  What's the point?  And who, exactly, are we killing?  I mean, whatever else, the Charles Lorraine of today is not the Charles Lorraine who murdered Doris and Raymond Montgomery on May 6, 1986, not the Charles Lorraine who was sentenced to die on December 9 of that year.  36, nearly 37 years, they make a difference.  Who we were is not who we are.

And who we'll kill is not who we sentenced to die.

Really, it's enough.    

Doris and Raymond Montgomery
Charles Lorrine

Thursday, May 17, 2018

What is truth, said jesting Pilate

Back in 2010, Times columnist Nicholas Kristoff had an op-ed about Kevin Cooper, a black man on death row in California for stabbing four people to death and leaving for dead a fifth who somehow survived and said the killing was done by 3 white guys. Kristoff's op-ed grew out of a dissenting opinion by 9th Circuit Judge William Fletcher in Cooper v. Brown, arguing that Cooper was likely factually innocent, had been framed by the cops, and that the courts and prosecutors and government authorities were at least passively complicit.

As Fletcher's dissent was a jumping off point for Kristoff, so his op-ed was a jumping off point for a blog post I wrote.

Today, in the Times on-line and I think set for a print version in the Sunday paper, Kristoff has a lengthy follow-up, detailing his own investigation. It's powerful. Well worth reading for justice gone awry and for the active unwillingness​ of those sometime Democratic heroes Jerry Brown and Kamala Harris to just take the smallest of steps - allowing the DNA testing to go forward. The testing that might well show it wasn't Cooper - which seems pretty likely, but who knows.

As I've regularly said here,


But Jerry Brown (yeah, that Jerry Brown, the former Governor Moonbeam, the present Governor Old-Liberal-Icon) won't allow it. And Kamala Harris, once California Attorney General, now Senator Harris - she (like Jerry when he was California's AG) just wants the conviction affirmed and Cooper to stay in prison forever unless he's killed and damned with any DNA testing.

It's worth noting how Kristoff explains his continuing passion for the case:
It’s obvious to you by now that this is not a usual column — I’m not sure The Times has ever published a column of this length — so why am I exploring the case with such passion? I became interested primarily because Fletcher and other respected federal appeals judges had said he was framed. That just doesn’t happen.
I’m also haunted by something else. In 2000, I proposed reporting a lengthy piece about doubts about the conviction of Cameron Willingham, who was then on death row in Texas for the arson murder of his three children. An editor talked me out of it, and I never did write about Willingham, who was executed in 2004. Since then, growing evidence has emerged that he was innocent, and perhaps it’s partly to atone for my earlier failure that I’ve taken up Cooper’s case.​Which does sort of make the point that Cooper's not the only one. That death row, and really all our prisons (and our jails, too, but that's a different story), have significant numbers of folks in them who are likely to be innocent.
Wholly, factually, innocent. Wrong guy.*  Or, even, crime didn't happen.**

All of that ​​is quite an extraordinary explanation from a Times columnist, I think.

And he follows it up with the plaint of everyone who recognizes that we're supposed to have a system of something like justice - whatever exactly that might be.
Maybe in the grand scheme of things, the fate of one man on death row doesn’t seem so important; innumerable people die tragically every day. Yet we aspire to be a nation where we are all equal before the law, and if we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.
Governor Brown, if you’re reading this, I understand that you may believe that Cooper is guilty. But other smart people, including federal judges and law school deans, believe him innocent. So how can you possibly execute him without even allowing advanced DNA testing, at the defense’s expense, to resolve the doubt? What’s your argument for refusing to allow testing? ​
Though Kristoff doesn't say it this way, testing will lead to one of three conclusions:
  1. Cooper's guilty, in which everyone can go home and rest assured.
  2. Cooper's an innocent guy we wanted to kill, in which case we can try and find the real killer and, by the way, do what we can to make sure we don't keep doing shit like this and also try to make some small amends to Cooper for his wrongful decades on death row.
  3. Can't really tell shit. In which case, we'll at least have tried.
So what's the harm? What, exactly, are they scared of?  Don't we want the truth?

Oh, yeah, I forgot.

*In which case, of course, the right guy is presumably still out there on the streets.
**The likelihood in Willingham's case.  The fire was probably not arson but an electrical fire from bad wiring.

Tuesday, April 17, 2018

Ya Think?

In fact, if the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes— and often harsher than the punishment for felonies. And not only are “punitive civil sanctions . . . rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.” Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L. J. 1795, 1798 (1992) (emphasis added). Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.
Sessions v. Dimaya, Gorsuch concurring.

Thursday, March 15, 2018

Five Fucking Years

Five years. 


         FIVE YEARS.


OK, it's really 4 years 9 months and 29 days. 

But that's a quibble.

That's how far into the future they've planned the killing.  Talk about premeditation.  Talk about prior calculation and design (which, under our statute turns garden variety murder into aggravated murder).

It's Antonio Sanchez Franklin, convicted of the brutal murders of Ophelia, Ivory, and Anthony Franklin (his grandmother, grandfather, and uncle).  The crimes were, the jury and the courts agreed, committed with (here's that phrase again) "prior calculation and design."

Here's how the Ohio Supreme Court explained it,
     This court has never set forth a bright-line test for discerning the presence or absence of prior calculation and design but instead undertakes a unique analysis of the facts of each case. . . . . In the instant matter, the facts demonstrate prior calculation and design.

     Obviously, appellant knew his victims very well, since they were close relatives with whom appellant resided. His relationship with each was clearly strained. The evidence indicates that despite the wishes of Ophelia and Ivory Franklin, appellant created friction by refusing to get a job or attend school. In fact, approximately two weeks prior to the murders, his grandparents gave him thirty days to find another place to live, a prospect that caused appellant to act in a hostile manner toward his family.
     Moreover, appellant was at odds with Anthony Franklin. While he was being questioned by Dayton police in Nashville, appellant, in reference to Anthony, exclaimed, “Son of a bitch raped me, that’s why I killed ’em all. * * * He raped me when I was fourteen, and the old man knew about it, but that was his son, so he didn’t do anything about it.” Appellant also revealed that Anthony had accused him of being gay.

     There is also evidence to support the view that the accused gave thought and preparation to choosing the murder weapon and the murder site. He used various weapons on the three victims. He shot Ophelia and struck her repeatedly with a blunt instrument, and beat Ivory and Anthony with blunt instruments as well. Unsatisfied, appellant proceeded to intentionally set a fire. These events occurred in a place where appellant knew that all three individuals could be found at once.

     Finally, it does not appear that the murders were instantaneous events, but instead were carried out over a period of time.
All of which is, if it's all true,* pretty compelling evidence of prior calculation and design.

As, of course, is a plan - hell, it's an order - to commit a murder, purposely causing the death of another as the statute says, in 4 years, 9 months, and 29 days.  Especially when you've even planned the particulars of how the killing is to be done.

I'd be remiss here if I left the impression that there are no other killings on the horizon here in the Buckeye State.  In the nearly 5 years before Franklin's special day Ohio has 27 others lined up.  Each neatly and precisely scheduled.

Next up is William Montgomery from Toledo, just under a month from now, on April 11.  But that's only the latest date.  September 28, 2012, the good folks at the Ohio Supreme Court ordered his murder for August 6, 2014, a mere 23 months and some days in the future.  But well, Ohio's had serious trouble killin folks.  The Governor rescheduled his murder for February 11, 2015, then or September 17, 2015, then . . . . Damn, this is long.  Here's a list:

  • August 6, 2014
  • February 11, 2015
  • September 17, 2015
  • August 15, 2016
  • June 13, 2017
  • October 18, 2017
  • January 3, 2018
  • April 11, 2018

Given all that, maybe the most you can say is
Which is probably for the best given that there's a fair chance Montgomery didn't actually kill Debra Ogle and Cynthia Tincher 32 years ago.  But you know, that's maybe just one of those things.  I mean there was a trial.  And the county prosecutor is quite sure he's guilty, so really, who's gonna kick up a fuss?

Anyway, after Montgomery, there's Robert Van Hook in July and then Cleveland Jackson and then Warren Henness and then . . . . And more than 20 others until Quisi Bryan On October 16, 2022.  

And now Antonio Franklin.  In just short of 5 fucking years.

His date set this morning (yesterday morning, actually, since it's a bit after midnight now) by the Justices of the Supreme Court of Ohio.  Their latest planned aggravated murder.

"Depend upon it, sir," Dr. Johnson said, 
when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.

Five years, though, that's maybe a little different.

On the other hand, don't hold your breath.  I'm not a betting man, but it's even money that whatever may be happening at 10 in the morning on January 12, 2023, it won't be the murder of Antonio Sanchez Franklin by the State of Ohio.  There's just too much that can happen in five years.  Including, just maybe, the end of our cycle of vengeance.  

The maybe innocent William Montgomery next month?  That's a different story.
* * *
Here's today's order.
1998-2061. State v. Franklin.Montgomery C.P. No. 97CR1139. On motion to set execution date. Motion granted. Antonio Sanchez Franklin’s sentence shall be carried into execution by the warden of the Southern Ohio Correctional Facility, or in his absence, by the deputy warden on Thursday, January 12, 2023, in accordance with the statutes so provided.
*I have no inside knowledge.  I never represented Franklin, haven't read the transcript of his trial, haven't discussed the case with any of his lawyers.  All I've done is read some court opinions.

Wednesday, February 7, 2018

Pardon me?

"Can my sins be pardoned?"
That's the sort of question I suppose nearly all of us ask ourselves, or ought to, from time to time.  Obviously so for those who believe in an authority, a deity say, who rewards and punishes according to some measure of worthiness.  Or a loved one.  

Less obviously for those of us who don't, but of course there's the question of whether we pardon ourselves.  

Of course, there's also the matter of sins.  But that can be an elastic term.  Put aside Eve and the fruit of the tree of knowledge.   Sins needn't be mortal.  An everyday transgression of the social compact will do.  A little untoward envy.  A sharp word undeserved. (And how often is one really deserved?)  Just being shitty 'cause you're in a lousy mood.  

I'm a criminal defense lawyer.  I traffic in the venal things folks do to each other.  

Some are nearly beyond understanding.   Think Stalin or Hitler or Pol Pot.  Or on a smaller scale the mother who dangled her two-year-old boy out the second story window by an ankle.  Then dropped him.  

Others, well, there was the guy who robbed the carry out and the burglar who stole the costume jewelry and the fella who broke into the house to steal some what he could find but fell asleep on the bed and woke up surrounded by cops with guns pointed at various parts of his body.

And pretty much everything in between.

But the question of pardon.  Which is where I began and where I kinda want to go.

You know, if you've spent any significant time reading this blog, that I'm the atheist who believes deeply in mercy and grace.  And that they're about the giver, not the person receiving.  And how the virtue comes not from being generous to the deserving.  That's easy, after all.  It's about giving regardless of merit.

And it's about forgiveness.  Which is the pardon thing again.

And that question, "Can my sins be pardoned?"

Any of us may ask.  perhaps all of us should.  But the question I quoted (note not just the indent but the quotation marks to provide a clue) came from someone very specific.  With a very specific answer.  
They probably won't be.
Her name, she of the perhaps unpardonable sin, is Kim Hyun-hui, and just over 30 years ago she murdered 115 people.  

She was, as Chico Harlan puts it in the Washington Post, "groomed to be a warrior in North Korea’s army of international spies." And that was her task.  Blow up a South Korean airliner with all the passengers aboard.  Though she didn't much see it as murder. She didn't think of the people.  What she saw was a "technical operation."  A task to perform.  

Which she did.  KAL flight 858.  Killing 115.  She was captured.  Tried to kill herself, biting down on a cyanide-tipped cigarette as she was trained and ordered to do.  But it didn't take.  
When she awoke, her left hand was cuffed to a hospital bed, an oxygen tube in her nose. Men in combat fatigues stood around her, machine guns cocked.
Through weeks of interrogation, she remained strong.  Then, Harlan writes, she was given a suit, put in a car, and driven around Seoul.
Kim saw a city that looked nothing like the miserable enemy outpost North Korea had described. She saw families smiling. She saw cars everywhere. She saw crowded shopping malls. She saw street vendors selling food. She saw the Olympic Village.
And she started to think that her mission, her whole purpose, had been a sham.
“Founded upon lies,” she said.
Blowing up the plane was supposed to disrupt the 1988 Olympics in Seoul.  Instead, Kim watched then on TV.  And she cooperated with the authorities.  And she was sentenced to be killed.  For blowing up a plane with 115 innocent people on board.
Can my sins be pardoned?
A year after the death sentence, there was an answer.

South Korean President Roh Tae-woo pardoned her, saying that she had been a mere tool manipulated by the real perpetrators, North Korea’s ruling Kim family.
But of course that isn't the pardon she asks about.

She no longer resembles the spy who was given eight years of physical and ideological training. She is 56 years old. She lives on the outskirts of South Korea’s third-largest city. She wears glasses and keeps her hair short. She no longer practices taekwondo. She no longer has an interest in knife combat or code-cracking.
Rather, she lives quietly, in a suburb.  With her husband (one of her interrogators) and their two teenagers.

Here's a question.  Is this woman, Kim Hyun-hui, taken from a plane, arrested, wearing a mask designed to prevent her from biting off her tongue, this spy 

Is she this woman, Kim Hyun-hui, 56, suburban housewife, mother of two?

Only one of them, I think, would wonder, as nearly all of us do, or ought to, from time to time.

Can my sins be pardoned?  
And I'm quite sure only one of them would offer as answer
They probably won't be.