Thursday, April 17, 2014

And Tell Sad Stories of the Death of Kings

Shakespeare's Richard II, feeling sorry for himself, recognizing that his situation is hopeless and he will shortly be deposed:
For God's sake, let us sit upon the ground
And tell sad stories of the death of kings;
How some have been deposed; some slain in war,
Some haunted by the ghosts they have deposed;
Some poison'd by their wives: some sleeping kill'd;
All murder'd: for within the hollow crown
That rounds the mortal temples of a king
Keeps Death his court and there the antic sits,
Scoffing his state and grinning at his pomp,
Allowing him a breath, a little scene,
To monarchize, be fear'd and kill with looks,
Infusing him with self and vain conceit,
As if this flesh which walls about our life,
Were brass impregnable, and humour'd thus
Comes at the last and with a little pin
Bores through his castle wall, and farewell king!
Richard lived (and died) in the 14th Century.  George V lived closer to our own time.  He wasn't deposed, but he was killed.  Euthanized, actually.  Killed by lethal injection.  A two drug sequence: Morphine followed by cocaine.  Injected into his jugular vein by his physician, Lord Dawson of Penn, late at night on January 20, 1936.  Dawson acted from the, well you can decide for yourself how you feel about his motives.  The King was clearly dying.  He'd been drifting in and out of consciousness. Dawson wrote in his diary:
At about 11 o’clock it was evident that the last stage might endure for many hours, unknown to the patient but little comporting with the dignity and serenity which he so richly merited and which demanded a brief final scene. Hours of waiting just for the mechanical end when all that is really life has departed only exhausts the onlookers and keeps them so strained that they cannot avail themselves of the solace of thought, communion or prayer. 
Dawson also wanted to be sure (I'm not making this up) that George's death would first be reported in the morning editions of the London Times rather than in "less appropriate ... evening journals."

Richard Kopf, Senior U.S. District Judge and distinguished blogger at Hercules and the Umpire, told that story in a post Wednesday.  Then he added this.
After reading the account of Lord Dawson’s use of lethal injection to kill King George V, the sardonic might well say “If lethal injection was good enough for a King, it is good enough for a killer.” But that would facile wouldn’t it?
Of course, it would be facile.  Equally of course, it's more than the sardonic who would ask that question.  That question, generalized a bit rears its head repeatedly.  
  • It's too good for these people.  
  • Who cares if he suffers?  
  • Forget this lethal injection shit.  He should be disembowled.
  • He should suffer like he made __________ suffer.
The same day Judge Kopf raised a sardonic eyebrow, the Tennessee House approved the electric chair as Plan B if the state's official killers can't get their hands on sufficient quantities of pentobarbital (the Tennessee Senate has already signed off on the chair, though the bills need to be reconciled before the chair goes to the governor for approval), it seems appropriate to take a few moments to explain just what the fuss is about lethal injection - and to give an answer to the question Judge Kopf suggests the sardonic might pose.

Begin, with this.  All the concerns about lethal injection, all the litigation, all the delays, all of that.  It's not about whether lethal injection is in principle and necessarily so painful a means of killing that even if there are going to be executions they could never be done that way without violating the Constitution. The concern is about how it's done.  The choice of drugs, the purity of them, the competence with which they're administered. 

None of that would matter, of course, if the goal were to make the killing brutal.  But the 8th Amendment's ban on cruel and unusual punishments prohibits that.  We must kill as gently as we can. Moreover, and maybe more importantly, it has to look gentle.  Witnesses must not be disturbed. Executioners are to be coddled.  So we've abandoned not only stoning and burning at the stake and the gibbet.  We've left behind hanging and the firing squad and the gas chamber.  We won't behead, not with a sword and not with a guillotine.

Florida's electric chair malfunctioned.  A couple guys had their heads engulfed in flames. Everyone in the room had to deal with the smell of charred flesh.  Florida switched to lethal injection.

But the pharmaceutical industry doesn't want to be in the business of supplying drugs for executions. And the healing professions don't want their practitioners in the killing business.  And so we have drugs made up by - well, too often we don't know by whom.  Texas is keeping it a secret.  See, if they said where they get the drugs (presumably from a compounding pharmacy and not, as Stephen Colbert suggested, from a guy loitering under the overpass), then that compounding pharmacy wouldn't want to provide them.  And the drugs are administered by - well, seemingly anybody who isn't actually trained and certified as competent to do it.

We want the killings, the legislators are saying, but we don't want anyone actually doing them.  Used to be the town square with hundreds, perhaps thousands attending.  Now it's behind the prison walls, with a few witnesses as provided by statute.  And killed by whoknowshow.

The King was put to sleep by a physician at least i part to put him out of his pain.  He had drugs, he had the knowledge to know which ones to use (morphine and cocaine) and in what quantities.  And, of course, he had the skills to inject them into the King's jugular.

That might be good enough for the condemned.  But we won't make it available, so it probably doesn't matter. 

--------------
Here's the entirety of that speech from Richard II.
No matter where; of comfort no man speak:
Let's talk of graves, of worms, and epitaphs;
Make dust our paper and with rainy eyes
Write sorrow on the bosom of the earth,
Let's choose executors and talk of wills:
And yet not so, for what can we bequeath
Save our deposed bodies to the ground?
Our lands, our lives and all are Bolingbroke's,
And nothing can we call our own but death
And that small model of the barren earth
Which serves as paste and cover to our bones.
For God's sake, let us sit upon the ground
And tell sad stories of the death of kings;
How some have been deposed; some slain in war,
Some haunted by the ghosts they have deposed;
Some poison'd by their wives: some sleeping kill'd;
All murder'd: for within the hollow crown
That rounds the mortal temples of a king
Keeps Death his court and there the antic sits,
Scoffing his state and grinning at his pomp,
Allowing him a breath, a little scene,
To monarchize, be fear'd and kill with looks,
Infusing him with self and vain conceit,
As if this flesh which walls about our life,
Were brass impregnable, and humour'd thus
Comes at the last and with a little pin
Bores through his castle wall, and farewell king!
Cover your heads and mock not flesh and blood
With solemn reverence: throw away respect,
Tradition, form and ceremonious duty,
For you have but mistook me all this while:
I live with bread like you, feel want,
Taste grief, need friends: subjected thus,
How can you say to me, I am a king?

Saturday, April 12, 2014

What We Do Is Who We Are

If you read this blog with anything even close to regularity, you know that I'm an atheist and also that I'm a serious believer in mercy and grace.  And you also know that I marvel at forgiveness.  

Perhaps it's that combination of things that drew me to this column by Giles Fraser in the Guardian. Fraser is, the Guardian tells us, "priest-in-charge at St Mary's Newington in south London and the former canon chancellor of St Paul's Cathedral."  But really, I don't care about his titles or his job. What I'm intrigued by is the idea.  We think about forgiveness wrong.

We have this idea.  Forgiveness, we think "involves person A coming to have warm and kindly feelings towards person B when person B has done them some enormous harm."  There are, in fact, cases. I've written about more than a few of them here.  They're noteworthy precisely because they're so remarkable, because they demonstrate something of the capacity of the human heart. 

Of course they're outliers.  They have to be.  Fraser puts it this way.
For the problem with forgiveness, as a kindly feeling towards a wrongdoer, is that it is impossible for most of us, maybe even for all of us. This I know: if you harmed my children, there is no way I am going to think kindly of you. Not ever. 
But if that sort of thing isn't within reach, maybe there's this.
A more realistic, and indeed a more politically useful understanding of forgiveness is, I think, that it is a refusal of getting even, a refusal of revenge.
Think of it as the anti-Blecker, the response to he who thinks insisting on getting even is the goal of life, who believes in wallowing in the hatred, not just the hatred of those who did him wrong, but the hatred of those who do anyone wrong.  Hate 'em all, thrive on it, seek revenge (but call it retribution and insist it's something other than revenge), revel in it.

Revenge, of course, is the model of the feud.  Each stroke must be repaid.  Hatfield kills McCoy, McCoy kills Hatfield.  Hatfield must strike back.  Ad infinitum.  

Ad nauseum.
Forgiveness, as in the refusal of reciprocity, does not make us feel good inside. In fact, as Nietzsche rightly pointed out, it does probably the opposite. We are still bitter and angry. But if this is the burden we have to bear for peace, then so be it.
There's room in that formulation for those who would hate, perhaps.  Fraser suggests that they could find peace by choosing not to act on the hate, and thereby give it up.
Forgiveness breaks the cycle of revenge and makes possible a future that is not trapped in the violence and hatred of the past.
Frankly, I think that's fanciful if forgiveness simply means not acting on the hate.  But then he's a priest and I'm just a lawyer.  Still, I get something of his point.
One of the things I have always liked about the stories of the Bible is that they are mostly uninterested in a person's inner life. They don't say much about how Jesus feels. But they say a great deal about what he does. Likewise with forgiveness: it is not fundamentally something that you feel, but something that you do.
Maybe.  There's a simple eloquence to that formulation - not what you feel but what you do.  Fraser knows better, I think, than really to believe it's that simple.  Because his whole point, finally, is that the act of forgiving ultimately brings peace and eases hate.  

But there's this, too.  There's no figuring in this whether the object of the forgiving is deserving.  The act of forgiving is an act of giving.   Like mercy, like grace, it's about the giver, it's about what we can and will do. 

Which is why it ultimately heals.  Because in the long run, what we do is who we are.

Friday, April 11, 2014

It's Not Just a Procedure, It's Due Process

Not long after I moved to Toledo from Texas, I was talking with a judge in his chambers.  He'd been a judge for a long time, I was new to town.  Neither of us knew much of anything about the other.  We'd just met and were feeling each other out.  
Are you, he asked, more in the due process camp or the finality camp?
I'm a criminal defense lawyer.  We're congenitally opposed to finality.  Judges, though, are different. They have different views, approach things each in her own way.

This judge knew all of that perfectly well.  He wasn't really asking where I fell on the spectrum.  He was using the question to let me know that he understood it wasn't an either/or but a continuum.  He was also, without being quotable on the subject, telling me something about another judge and her perspective on things.

I hadn't thought about his question and what he was getting at for years. Then I read what James C. Hill, Judge of the 11th Circuit Court of Appeals wrote in Rozier v. United States.  
Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result — not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.
Judge Hill was, of course, dissenting.

I came upon Judge Hill's dissent while reading Judge Ilana Diamond Rovner's dissent in Hawkins v. United States(It's actually one of Judge Rovner's three dissents from decisions in Hawkins, each making essentially the same point.)  Hawkins, it seems, had been sentenced as a career criminal.  As a career criminal, he was sentenced to something like 12 1/2 years in the his government's loving embrace.  The problem is that Hawkins wasn't a career criminal, though they figured that out later rather than sooner when the courts revisited just what sorts of people fall into that category.  Turns out that rather than spending well over a decade in the pokey, Hawkins should have gotten no more than 15 months.  He complained about it, but, well, you know, finality.  So Judge Rovner dissented.
As a philosophical matter, I believe that fairness is the lifeblood of our system of justice, and more specifically, justice requires the ability to rectify substantial uncontroverted judicial errors that cause significant injury. This is why in our anthropomorphization of Justice, she is wearing a blindfold, and not running shoes. If allowing fairness to prevail in limited situations involving grave miscarriages of justice subverts finality, then I suppose I agree with my dissenting brother in the Eleventh Circuit who, in a similar case, decried the "elevation of form over substance; of finality over fairness." Rozier v. United States, 701 F.3d 681, 690 (11th Cir.2012) (Hill, J. dissenting).
This is how we do things.  One citation leads to another.  One intriguing line leads you astray, wandering in the woods, path upon path, follow this trail and when it branches off go that way.

Which explains, I suppose, why it is that I followed Judge Rovner's citation to Rozier in order to see further what Judge Hill had to say.  And, need I add, what took me to Judge Rovner was yet another opinion.  This time it was a concurrance, written by Andre M. Davis, Senior Judge on the Fourth Circuit.  The case is Whiteside v. United States.  

Deangelo Whiteside was sentenced as a career offender, but later case law revealed that he should not have been. He filed an out-of-time petition for writ of habeas corpus to challenge his sentence. The majority opinion for the panel finds that the case presents a uniquely compelling miscarriage of justice that qualifies for equitable tolling which resolves the timeliness issue, grants a Certificate of Appealability which allows him to make his argument, and remands the case for him to be resentenced.

The dissent would have none of that.  Maybe in light of later decisions he should have been sentenced to somewhere around 11 years rather than something close to 19.  What's 8 years in prison among friends?  Oh, maybe it was unfair.  So is life.  Get over it.  And if we treat Whiteside fairly . . . .  Hell, Nino Scalia himself has warned about the dangers of judges who want to be fair and who have a conscience.  Besides, all is right.
The Great Writ stands for the fundamental proposition that government too is subject to the given law. Here the government observed the law; it is, sadly, a court that accords no meaning to that fact. How is it that requiring someone to serve a sentence lawfully imposed and constitutionally rendered becomes a “plain injustice” and a “fundamental unfairness”? Maj. Op. at 29. This path vindicates no fundamental liberty. It only transforms collateral review into a double of direct review, a redundant mechanism for routine error correction, deployed to unsettle sentences that were imposed years earlier under governing law, in accordance with unexceptionable procedure, and by a sovereign acting in accordance with its sovereign duty to protect citizens from those who repeatedly violate its criminal laws.
Much as I might grumble, that's not self-evidently wrong.  Whiteside was properly sentenced when he was sentenced.  The law doesn't allow him to keep coming back.  Hell, that's essentially what the majorities in Rozier and Hawkins said.  Which makes Whiteside all the more important.

The majority opinion, explains and develops the argument for why Whiteside should get relief and how it is that the law allows it.  It's a great analysis and filled with the sort of legal analysis that can bore even lawyers to tears.  Judge Davis is more pointed, concerned with the principle of the thing.
I am pleased to join Judge Gregory’s extraordinarily compelling opinion, which fully responds to the dissent’s overwrought and formalistic protestations that our judgment here presages an end to law as we know it. (Evidently, it is not enough simply for the dissent to say that there is no miscarriage of justice shown on this record.)

The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint. There is much that could be said about the dissenting opinion’s paean to finality, but one can hardly say it more poignantly or more persuasively than has Judge Rovner. See Hawkins v. United States, 724 F.3d 915, 919-25 (7th Cir. 2013) (Rovner, J, dissenting from the denial of rehearing), en banc reh’g denied, 725 F.3d 680 (7th Cir. 2013) (Rovner, J., joined by Wood, Williams, and Hamilton, JJ., dissenting from denial of rehearing en banc).

In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.

The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.
Because if the dissent is right, if the majorities in Rozier and Hawkins are right, then fairness is not so much wrong headed as wholly irrelevant and we've abandoned the idea of due process for the fetish of procedures.

It's tempting.  There's a simplicity to it.  But it's a fundamental error.  Due process is not a procedure or set of procedures.  Procedures are ends in themselves.  This is how we do it.  Process, Due Process is rather, a means to a larger goal.

When the innocent guy gets out of prison after a couple of decades, we pat ourselves on the back and speak of a job well done. See, the forces of procedure observe.  We care about getting it right.  How noble of us.  And our procedures ensured that outcome in orderly fashion.  

Those same procedures, of course, sent the innocent guy down.  While he screamed about due process. And he was afforded a procedure.

Sigh.                                                                                                                                                                             

H/t Doug Berman

Wednesday, April 9, 2014

Stoping 'Em Before They Violate the Constitution

There you were, driving down the street, minding your own business when you see the disco lights in your rear-view mirror. 
Shit.
You pull over, hand the cop your license and registration.  Give proof of insurance.  He explains that you were violating some provision or other of the traffic code.  
And, oh, do you happen to have any illegal drugs in the car?
Next thing you know there's a dog wandering around your car, then your stuff is being piled up on the side of the highway, a couple of high fives between the cop who stopped you and the one who came by with the dog, and it's off to the local lock-up. 

If you've got the money (or know someone who does and is willing to front it), you hire a lawyer. Otherwise, one gets appointed.  Maybe you get out on bond.  Maybe you sit in an orange jumpsuit eating bologna sandwiches on stale Wonderbread.

Six months later you're in court.  Maybe you're pleading guilty.  Maybe you're there for a hearing on a motion to suppress the drugs because, you say, that traffic cop had no lawful basis to pull you over. More, even if he could have lawfully stopped your car, he had no lawful basis to ask about drugs or bring out the dog or search the car.  And those statements you made. 
Ugh.
OR you're sitting at home minding your own business when there's a knock on the door and it's a bunch of cops, and one of them shows you a warrant to search your house for books and records and computer files and guns and ammunition and god knows what all.  And then it's off to the local lock-up.

OR instead of knocking on the door the first thing you know is that while you're watching the latest episode of CSI - You're Fucked, there's a smash and a dozen guys wearing black face masks are charging through the house, yelling, maybe shooting the dog, and throwing you face-down on the floor, kneeling on your back and holding the business end of a gun against the back of your neck.  And then it's off to the local lock-up.

Six months later you're in court.  Maybe you're pleading guilty.  Maybe you're there for a hearing on a motion to suppress because, you say, that warrant was no good or the search exceeded its scope or. And those statements you made. 
Ugh.
Or, of course, they found nothing and nothing ever came of it except that you were left on the side of the road with all the crap you keep in your car or maybe your suitcases and dirty clothes and maybe some of the pieces of your car spread out on the ground in the mud and the rain.

Or they found nothing but the neighbors saw the SWAT tank and figure where there's smoke, and now nobody will talk to you and there's a note in your mailbox scrawled in crayon saying
We've got our eyes on you
And the dog is still dead.

* * * * *

Magistrate Judge Facciola has issued another opinion.  Again he's denied a search warrant.

No, he tells the government agents, you can't have a warrant to seize e-mails and then search them. Sure, that may be the way you agents typically do it.  And that may be what you do with computers because the logistics of searching them on-site for the specific stuff you're looking for are too great, and you can't expect that the prospective bad guy will just point you to where he's got the stash of illegal kiddie porn or the plans to blow up the Golden Gate Bridge or the names of all the folks he's bribed.

But while it may be unreasonable for agents to do that search on site so they get to seize first, e-mail is different.  Google can run a quick search and give you the stuff you want.  You don't need first to seize all the e-mail and then paw through it at your leisure hoping to stumble across something incriminating.

The Fourth Amendment, see, protects against unreasonable searches and seizures.  And seizing more than you need is inherently unreasonable.  And in this case, you don't get to seize, then search.

So, in a nutshell, said Facciola.  So he denied the warrant.

Volokh Conspirator and law prof Orin Kerr says he's wrong.  Not wrong to have denied the warrant, he's silent about that.  But wrong to have denied it for the reason he does.

The time to decide whether the seize first procedure is unconstitutional is after it happens.  At a motion to suppress the allegedly unconstitutional procedure.  Then there can be full briefing and evidence about how and why this was or was not a proper process.  That, after all, is how Fourth Amendment cases work.  The government allegedly violates the law, then the courts decide.  Maybe evidence gets suppressed (if the marginal benefits of suppression outweigh the enormous costs of potentially letting the bad guy off).  Maybe not.  And in some truly extraordinary case, maybe the guy with the dead dog but nothing to suppress gets a few bucks for the burial.

But that's how it works. And, the good professor says, that's how it's supposed to work.
First, Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation. The defense would say that the execution of the warrant was unreasonable, and the government would disagree. A court could have a hearing into the specific facts, and witnesses could be called to testify. The parties could file briefs and argue the cases and principles on their side.
By predicting ex ante that the means of executing the warrant will be unreasonable, and then denying the warrant application on that basis, Judge Facciola’s opinion is essentially making a factual finding without facts and a legal conclusion without any briefing on the law. In my view, that’s not the way Fourth Amendment litigation should work. As I argued in my amicus brief in the Fifth Circuit, I don’t think there is yet a ripe dispute on which a court can enter a Fourth Amendment ruling about the reasonableness of the future search. If DOJ ends up appealing Judge Facciola’s denial to the district court, I may end up rewriting my amicus brief for DC Circuit caselaw and filing a version of it in the district court. But it’s too early to know, so that’s just a possibility.
Of course, he's right that there's a benefit to full adversarial briefing and the taking of evidence if the judge is going to decide if the cops violated the Constitution.  But here's a question:
  • Is it better that the cops violate the Constitution and then, if there's a motion to suppress (which there won't always be - remember those times at the top of this post when my hypothetical you just entered a plea), get told they did a bad?
  • Or is it better that they be prevented from doing a likely bad?
  • Clean up the mess on the floor?
  • Don't make the mess on the floor?
The judge, in issuing the warrant, is supposed to favor the second.  Don't let them do the unconstitutional thing.  And if he's wrong?  Well, a guilty guy may get another few days or weeks before being arrested.  And there may not be the chance for full adversarial testing of the judge's call.

But we know, for sure, that the Constitution will not have been violated.

Which is supposed to be the idea.  The very reason the agents are supposed to get a warrant. 
* * * * *
The story is that Lyndon Johnson, when asked why he kept Bobby Kennedy on as Attorney General given that they hated each other, said
It's better to have the bastards on the inside of the tent pissing out than on the outside pissing in.
Just sayin.

Saturday, April 5, 2014

If You Broke It, You Should Pay for It

Dog-bites-man news from the Times:  
They won't be pardoning Cameron Todd Willingham anytime soon.* 
What?  You thought they would?  You thought that Texas would admit that his conviction, death sentence, and execution for a crime that did not occur was a horrible - even if an understandable - mistake?  You thought Rick Perry's parole board would acknowledge that he wasn't a minister of justice when he signed off on Willingham's killing while the evidence that there was no crime (and therefore, duh, no criminal) was right in front of him?  You thought they'd say that he was just a stone killer? And they were too?

Grow up.

Which brings me to Joe D'Ambrosio, though it's not the same thing.

For one thing, he's still alive.  Ohio (that's another difference) wanted to kill him.  This time there was in fact a crime (yet a third difference).  Anthony Klann was murdered.  Eddie Espinoza (the state's key witness against Joe) and Stoney Lewis (the only one with an actual motive) are the ones who slit his throat, then dumped his body.

But Joe spent 22 years on death row, not fighting for a life sentence but fighting to be free.  Because he didn't kill anyone.  Wasn't there.  Not him.  No way.

So how'd it happen?  The prosecutors lied and cheated.  Hid evidence.  Made shit up.  They'd done it to other folks.  They did it to Joe.  

I'm not exactly saying that they set out to frame an innocent man.  I'd guess that they figured Espinoza was telling something close to the truth when he cut a deal to save himself and blame Joe and Michael Keenan.  And then - well, what's the point of taking him to trial if you don't ensure that the evidence will convict him?  And if you have to invent some evidence to ensure that, and if you have to hide some other evidence?  Well, shit.  You're righteous so who gives a fuck about the rules.  They're for sissies.

Joe's out now.  Hell of a guy.  We had a few beers a couple of weeks ago, him talking about how fucked up the system is and how hard he fought all those years and how he now travels around talking to folks and trying to get them to understand.  And to act.

He was also hoping but not optimistic that maybe his lawsuit against the prosecutors and the cops and the government might get some traction in the 6th Circuit after the district judge threw it out.  This week the answer came.  No.  Oh, the circuit's opinion makes clear that Joe was victimized, that the prosecutors lied and cheated, all that stuff.  And it makes clear that they're not supposed to do those things.  But you know, the law didn't exactly say that.  (Radley Balko lays it all out in his blog at the Post, and I'm not going to rehash it here - at least not today.) 

But like I say, Joe's a fighter.  You don't survive as he did, struggle for all those years not just to cheat the hangman but to walk out a free man, without having fight in you.  

And then there's Arthur Tyler.  He's not Willingham and he's not Joe.  

It was just over 30 years ago March 12, 1983. Someone shot and killed Sander Leach.  There were two possible killers.  Either Leroy Head or Arthur Tyler. 

The evidence all points to Head. He confessed. Repeatedly.  At least 11 times. He confessed to the police.  He confessed to friends.  He confessed to his mother for god's sake.  He confessed and confessed.  He said he acted alone.  Then the cops and the prosecutors told him that if he didn't change his story and blame Tyler, he'd end up on death row.  So he told them that he didn't do it. Tyler did.  Which they believed.  

Because who wouldn't believe a confessed murderer when, after you threaten him he decides to blame someone else?

He's out of prison now.  And here's the thing, he still says he did it and Tyler didn't.  Or at least, he was still saying it when he wrote and signed an affidavit that was filed with Tyler's post-conviction petition. An affidavit the court promptly lost.  (Really, you can't make this shit up, or at least, there's no reason to because it actually happened  and happens.  Matt Brown and Scott Greenfield have been talking about who doesn't get paid any attention by the courts. The court lost the fucking affidavit! Gimme a break.)

Anyhow, lost affidavit or not, Head was all set to testify that what he'd told folks (except the jury) was true - that he was the killer and not Tyler.  Until the cops and the prosecutors said again 
Then you'll be undoing your plea bargain and we'll put you on death row.
So once again he . . . .

Todd Willingham is dead.  Joe D'Ambrosio is out and exonerated (even if not compensated).**  Arthur Tyler?  They're planning to kill him May 28.  For the crime Leroy Head probably committed.

Look, it's not that Tyler's a saint.  It's just that he probably didn't kill Sander Leach.  And no matter how you spin that, it means he shouldn't be on death row.

And then there's this.  The law at the time said that the sentencing options did not include LWOP.  

Now, imagine a fair trial.  You know, one where Head admits what he says whenever he isn't under threat of death.  One where the cops admit that Leach had over $150 cash in his pockets after the killer left, which pretty much gives the lie to Head's claim that he saw Tyler rifling Leach's pockets and stealing whatever was there after he killed the guy.  Imagine, that is, a trial where it's clear that whatever Arthur Tyler may have done that day in March 31 years ago it wasn't murder Sander Leach.

And imagine that the jury said, OK, makes sense.  Tyler didn't kill him.  But maybe he was involved. So they convict him of a lesser crime.  Or they give him one of the life sentences.  Which include possible out dates.

It's not just that Arthur Tyler shouldn't be on death row.  It's not just that they shouldn't kill him.  It's that they shouldn't give him death in prison, which is the usual best you get if the Parole Board and the gov decide to fix things.

And really, robbery gone wrong - which is what happened just with Head as, almost certainly, the robber.  That's not a death case today.  Not in Cuyahoga County.  Tim McGinty's the elected Prosecutor now, and he'll likely support a commutation to LWOP.  William Gerstenslager, the line prosecutor who put Tyler on the row, who coerced Head, who believes despite the evidence and the logic that Tyler must have done it because he just must have.  (Head's credible when he blames Tyler because he says things he could only have known if he was there, Gerstenslager said.  Of course, if he killed Sander Leach, he was there.)  Yet even Gerstenslager has said he would support a commutation to LWOP.

And that is, after all, a win in this business.  But for the guy who didn't do it?  When the law didn't allow LWOP?  When it wouldn't allow LWOP if Tyler were tried today?

Anything's possible.  The Sun could burn out tomorrow.  Malaysia Air Flight 370 might turn up having landed safely on an uncharted island in the Indian Ocean.  The Republicans in the House of Representatives might unanimously concede they were mistaken and that the Affordable Care Act is the finest and noblest piece of legislation in American History and that their foolish opposition means they don't deserve the public trust so they're all resigning.  

It's even possible that Head told the truth when he said that Arthur Tyler killed Sander Leach.

So don't cut him loose.  But don't kill him.  And don't make it LWOP.  Give him a chance.  Really.  It's not too much to ask.  It wouldn't be the end of the Republic.  Not even the end of the Buckeye State. But it'd be the right thing to do.  

And then?  

Give Joe D'Ambrosio a boatload of cash.  It won't make up for those years, nothing will.  But it'd be a start.

And Todd Willingham?  Fess up Texas.  

I have more suggestions, but they'll have to wait for another post.  This one's too long.  

--------------------
*The parole board's one-page letter denying the pardon request said he can apply for a formal exoneration again in two years.  Because, you know, he'll be more innocent then.

**Leroy Head is out, too, having served the time for admitting under threat of death that he didn't kill Sander Leach.

Thursday, April 3, 2014

But What's In It for Me?

It was the confluence of things.

I got a note from one Laura McPherson telling me that I'd made her list of the top 50 criminal law blogs (at lucky number 13, no less).  Zowie!  And she thought it would be just peachy if I advertised that with a link to her list.  

Doug Berman, who took first place, promptly did.  I didn't then, and if you'll notice, I'm not doing it now, though it's not that hard to find if you're curious, and I'm sure Doug isn't the only one who bit.

Then I got a repeat request from marketer Viviana Shafrin who figures that her last e-mail must have gone into my spam folder because I didn't just jump at using (and linking to) the infographic her folks have made about whatever it was.

And then I got a request to link to someone on LinkedIn.  

Now, I have a LinkedIn account complete with secret decoder ring.  I keep the information on it pretty much up-to-date because I'd prefer there not be a lot of false information that I'm responsible for on the web (can't help the false info I'm not responsible for).  It's the same reason I keep the stuff on AVVO up to date (I'm a Superior 10.0 if you've been wondering).  I signed up with those folks for their free accounts when I went back into private practice after my gig as ACLU of Ohio Legal Director.  I figured they'd be good for business and I wouldn't do the pay versions so what the hell.  (An aside - they proved themselves absolutely worthless, at least for the kind of business I was interested in.)

Anyhow, keeping the data roughly up-to-date is essentially all I do with those sites.  But with LinkedIn, at least, there's always more.  Because there are all these requests to link to so and so.  And my policy has always been something like, What the hell?  

If I can figure out who you are, and I don't hate you, what do I care if we're somehow linked?  Except I got this Link-to-Me request from Guy Barone, who I actually know, and would have, were it two days ago, accepted.  But it wasn't two days ago.  Because there'd just been these e-mails from Viviana and from Laura.  And this very strange letter telling me how wonderful a presentation a colleague and I had given was, which is lovely and I appreciated it no end.  Except that we hadn't done it.  Not individually.  Not as a team.  Nope.  Not us.

And I thought, I don't have a clue why anyone would want me to accept their links.  I mean, I don't have jobs to offer.  (And Guy Barone doesn't need one anyhow.)  And finally I realized (I think I'm slow; if I were on facebook or I twitted I'd probably have understood this years ago) that these requests are just like the ones from the marketers - in fact most of them are probably generated by the marketers.  They don't care about anything except the link.

If I agree to be linked to Guy, he gets to add another to the whatever number of folks he's linked to.  And he can say (he wouldn't, but someone on his behalf might), 
Hey, Gamso and me. 
Which if he were stupid enough to think so (he's not, but his people or audience might be) might be supposed to provide some cachet.

So, sorry Guy.  As of today, no more accepting link requests from decent folks I happen to know (like you) or people I can just sort-of identify and don't hate.  But here, Guy, because it's not anything against you, is a link to your LinkedIn profile.

Best of luck.

Thursday, March 27, 2014

Looking Up in Some Places - Not So Much in Others

I rarely write about what goes on in the world outside the US of A.  It's not that there's any shortage of interesting news.  And god knows, it isn't that I don't have opinions.

Frankly, it's that I'm here; there's enough on my plate in this country.  And while some would surely disagree, I generally have at least a fair understanding of our systems, laws, culture, what have you. Enough so you won't generally become stupider by reading what I have to say.  I don't have the confidence often to make that claim about what's going on elsewhere.

Except that once in a while.  Like now.

It's the juxtapositions, the good news and the bad.

Start with Barbados which is where the new is good (not great, but good).  It's a lovely island in the Caribbean, a member of the British Commonwealth perhaps the original home of rum (or so the tourist board would have you believe.  I was there for a few days a couple of years ago, accompanying my wife who was there for some meetings.  I would happily go back.

But the thing about Barbados, like most of the English speaking Caribbean island nations I should add, is that they have the death penalty. They don't kill a lot of folks in the Caribbean, but they do kill some. David Mitchell for killing two German tourists in The Bahamas in 2000. Charles Laplace for killing his wife in St. Kitts and Nevis in 2008. Barbados hasn't had an execution since 1984, and there's no reason to imagine there'll be another anytime soon, but the law there is that murder carries a mandatory death sentence. And that may be changing. Tuesday, Attorney General Adriel Brathwaite said that the government will be introducing legislation to eliminate the mandatory death penalty

Under the new laws (if they pass - Brathwaite expects serious opposition) judges would be able to consider the circumstances of the murder and to weigh mitigation.  It's not abolition, but it's something.

On the other hand, Egypt is running headlong in the other direction.  Oh, it's not that they're talking about creating a death penalty where they didn't have one before.  The death penalty's been on the books there and it's used. But on Monday an Egyptian court handed down 529 (some reports say 528, but once you pass 500 the details start to blur) death sentences against members of the Muslim Brotherhood. From Al Jazeera.
Monday’s sentences in the central city of Minya were related to the death of a policeman and other violence that took place across the country since July, when the army overthrew Egypt's first freely elected president, Mohamed Morsi of the Muslim Brotherhood.
For what it's worth, most of the folks were tried in absentia, and the law allows them new trials once they're captured.  Oh, and everyone's entitled to an appeal.

Finally, there's this. Worldwide the number of executions rose last year. Rick Gladstone for the Times covers an Amnesty International report due out in a few hours.  He says that, omitting China, there were 778 executions worldwide in 2013, compared with 682 in 2012. (They omit China because the number of executions there is a closely guarded secret. For whatever it's worth, Amnesty figures they kill more people in China each year than the rest of the world combined).  The rise, Amnesty says, is largely due to a surge in executions in Iran and Iraq.

In this country, on the other hand, Maryland abolished the death penalty last year, executions were down across the country from 43 in 2012 to 39 last year.  And just a couple of weeks ago, Glenn Ford was released from prison in Louisiana after 30 years on death row for a crime he didn't commit.    It is, I suppose, better than if we'd killed him.  

But 30 fucking years!