Monday, February 8, 2016

Te Deum

A friend sent a group of us a poem, "Te Deum" by Charles Reznicoff.
Not because of victories
I sing,
having none,
but for the common sunshine,
the breeze,
the largess of the spring.
Not for victory
but for the day's work done
as well as I was able;
not for a seat upon the dais
but at the common table.
Another friend commented,
Very nice, and about right.
And thereby, I realized, hangs a tale.

It was 2007 and I was in a room across from the death house at an Ohio prison while my client was being executed just across the way. I was there with my co-counsel and our client's lead trial counsel. In the room with us were many members of the client's family.

After the execution, after we watched as the body in the body-bag was wheeled out and put into a hearse, the family came up to us, the three lawyers. One after another they hugged us or shook our hands, as if we were a receiving line. One after another they said, often through tears, trying to offer comfort, "You did all you could."
I understood, we understood, the sentiment. He couldn't be saved. You tried. We're grateful. Thank you.

We got it. And yet, and yet. He was killed. We failed. "Not for the victory," then. Not, indeed. But to each of us, the other message: If we had done all we could, if "as well as [we were] able," then we just weren't good enough.

I have, at one time or another, represented a couple of dozen men charged with or convicted of capital sentences in Ohio and Texas. I've never put anyone on death row, and I've gotten a number off. But I've also failed. There are those still on death row, still litigating. Some have pending execution dates, others not yet. But there are 7 men who've been executed, who I represented at one time or another after they'd been sentenced to die. They, each of them, and the others too, they haunt.

A seat "at the common table," sure. And one does what one can. The "day's work."

But in the end . . . .

Wednesday, February 3, 2016

Pete Seeger - RIP

Put $284,000 in Small Unmarked Bills in a Paper Bag and Leave It Under the Big Rock near the Playground

It must be nice to have a slush fund.  Or you could think of it as not-so-petty cash.

Turns out that Missouri pays cash for executions.  Chris McDaniel for Buzzfeed news:
Shortly before each execution in Missouri, a high-ranking corrections official takes envelopes filled with thousands of dollars in cash to the state’s executioners. The cash limits the paper trail — and helps keep the identities of the executioners hidden.
Most of the envelopes are filled with hundred-dollar bills. And on the outside, the envelopes carry instructions: They aren’t to be opened until “completion of services rendered.”
The executioners are given pseudonyms to protect their identities: M2, the nurse, gets $2,400, while M3, the anesthesiologist, gets the envelope marked $3,000. M7, the drug supplier, gets the most, an envelope filled with $7,178.88.
It adds up.  
Missouri Director of Adult Institutions David Dormire has handed out nearly a hundred envelopes filled with cash since November 2013. Over that span of time, Dormire delivered $284,551.84 in cash to the small group of individuals who help the state carry out the death penalty, according to a BuzzFeed News review of receipts, an audit of the payments, a spreadsheet showing cash withdrawals, and memos marked “confidential” in which the payments were discussed.
I kind of get it.  Giving out cash avoids a paper trail.  Records just get you in trouble.  You know, subpoena them.  Bring them to court.  Or file public records requests.  All that stuff.  Better to keep it quiet.

In fact, it's really better to keep it completely secret.  Especially from IRS.  Which might want to collect taxes.  Of course, maybe the folks taking the money under the table are reporting it.  Sure they are.  What we know is that Missouri isn't reporting it. 

Sure, the law requires that Missouri give the good-guy killers of bad-guy killers 1099 forms.  Which they also have to file with IRS.  But they don't.  Because those good-guy killers, it seems, won't kill on command if IRS is told about it.  At least, that's what George Lombardini, director of the Missouri Department of Corrections explained at a budget hearing Monday.  Danny Wicentowski of Riverfront Times was there.
“It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it,” Lombardi said, responding to questions from State Representative Rep. Jeremy LaFaver (D-Kansas City).
Of course, being good guys
Lombardi added that his staff counsels executioners to report their cash payments to the IRS.
No doubt.  And surely, they all do.  Being good-guy killers.

LaFaver had other questions.  Why, he asked Dormire, aren't the cash payments listed in the Corrections Department budget?
We don't include a whole lot of things that are expenses; we try to hit the highlights of the major items.
You know, maybe they don't budget for donuts.  Donuts and killing.  Yeah.  But ooops.  It appears that donuts are a budget item.  
Questioned further, Dormire couldn't identify another example of an expense not included in the budget.
So it's just killing.

Which didn't much please LaFaver.
"I respectfully submit and request that executing somebody, it's a big deal," LaFaver shot back. "If we're going to spend money to do that, I think it should be included in the description, that this is the area of the budget where money goes in envelopes in cash to kill people. Maybe worded differently, I understand you probably would. I probably wouldn't."
Really, though.  It's just about balance.  On the one hand, Missouri by god wants to be killing folks. Have to violate the law in order to do it?  What's more important, anyway? Executing bad guys or paying taxes.


They call it the Show-Me State.

Show me the money. 

Friday, January 29, 2016

Breaking News: Sun Rises in East

The headline in the Columbus Dispatch caught my eye.
Study finds racial, gender bias in Ohio executions
I mean, damn.  I'd figured that Ohio (the state that round at the ends and stoned in the middle) would be better than that.  We are, after all, as our license plates sometimes say, "The Heart of It All" (whatever it might be).

Oh, sure.  I knew that every state where they'd done a competent study found that the likelihood of a death sentence went up significantly if the victim was white.  And even more if the victim was also a woman.  But surely, Ohio.

I had a client scheduled to be executed in February 2007.  Ted Strickland's term as governor began in January, and within a few days of his inauguration, I got a call from his chief legal officer.  He wanted me to know that Governor Ted had given my client a reprieve until April so that he would have time to study the case and decide whether to grant clemency.

Cool, I said.  Thank Ted, I said.  But you know, what he should do, I said, is declare a moratorium on executions for a couple of years and arrange for a full study of the death penalty here.  Here's the press release, I said.
I believe that Ohio's death penalty operates as fairly and perfectly as anything done by humans can. But because death is final, and in an abundance of caution, and to show the world that we are careful, I'm calling a halt to all executions until we've done a full, open, and fair study of just how it works in both theory and practice.
Once that study is complete, I'm confident that we can go forward with no changes at all, knowing that humans cannot improve on what we do here in the Buckeye State.
Is what I said Ted should say.

And Governor Ted's chief laughed.  Yeah, he said.  Not a chance, he said.

And, of course, there was no chance Ted would do that.  For all sorts of reasons.*  One of them, was that Ohio's no different from anywhere else.  I knew it.  His chief legal guy knew it.  He knew it.

What Ohio hadn't had was a real study.  We've had a few now.  By the ABA, by the Death Penalty Task Force put together by the Ohio Supreme Court (in partial response to the ABA study).  

And now
Ohio's 53 executions shown "vast inequities" in racial, gender and geography, a new study concludes.
Research by Frank Baumgartner, a University of North Carolina political science professor, are not a revelation to those familiar with Ohio's death penalty, which resumed in 1999 after a 36-year hiatus. But it does underline a consistent pattern that has been pointed out in state, national and media reports for years.
Baumgartner looked at Ohio's 53 executions between 1999 and 2014, finding "significant and troubling racial, gender, and geographic disparities with regards to who is executed in Ohio." Baumgartner concluded that the victim's race and gender, and the county where the murder occurred, influenced whether or not the killer was executed.**
To which the cognoscenti say
No shit.

*If you're sufficiently bored, you can trawl through the archives here and find bunches of stuff I've written about Strickland and the death penalty. 

** The Dispatch posted the full study.

NB: Gideon wrote about the study, too.  And pointed out that Connecticut wasn't any better - except that it shut down the death penalty.  At least for the moment.

Friday, January 15, 2016

Severe and Comfortless and Beautiful

My sister spent the last few weeks of her life in a hospice unit in a busy urban hospital.

The staff were friendly enough, and they did what they could to make her comfortable and ease her physical pain.  She had lots of visitors.  She carried on with her work as best she could.

It was horribly depressing.  Not just because she was dying.  But because it was, in every way, a damned hospital.  Which is exactly how it looked and felt.  The staff were hospital people, nurses and orderlies and nutritionists and doctors and clergy who stopped in when called (almost never by her) or when it was time on their rounds because they were nurses and orderlies and nutritionists and doctors and clergy and they had other duties on the parts of the floor that weren't in the hospice unit and there was all the record keeping and the . . . . 

And, as I said, it looked like a fucking hospital room, with all that entails, and none of which is cheery, no matter what.  Hospice unit be damned.

So my initial reaction, just a few minutes into watching Edgar Barens' (Oscar nominated - and deservedly so) documentary following the last days of Jack Hall in an Iowa hospice was to note the remarkable irony that the hospice unit in that film seemed far nicer.  The room was brighter and cheerier, the staff more obviously caring and attentive and focused not just on Jack's medical care but on Jack, on him, as a person.

Jack's 83.  He had a heart attack in 2001 and hasn't been the same since.  After a bout of pneumonia, his breathing falters.  He can barely get across a room.  Speaking leaves him unable to breathe.  Hell, he's dying - which doesn't stop him from having a cigarette at one point.  But by then, why not?

He's also a decorated veteran from WWII, and a survivor (yes, that's a proper use of the word) of the Nazi POW's death march from the Russian front to the American front.  

He's also, and (here I get to the "remarkable irony" part) a prisoner.  Iowa State Penitentiary. Maximum security.  Locked up for 21 years.  For murder.  And the hospice is in that maximum security prison.  It's staffed by a prison nurse and, more importantly, by some of Jack's fellow prisoners.  Black guys. Themselves serving life sentences.  In the same maximum security prison as Jack (who was, his son tells us, a "segregationalist").

Prison Terminal: The Last Days of Private Jack Hall is nominally about Jack, and substantively about the very idea of a hospice program in prison, what it's really about, what makes you wail and cry - especially when (spoiler alert) Jack dies, is the other prisoners.

It's the ones who made the curtains over the window and the cabinet Jack's TV sits on.  It's the ones who tack Jack's photos on the wall facing his bed.  It's the ones who lift him into the wheelchair and then into the ambulance when he goes to the hospital. The ones who change his sheets and shave him and wash him.  

Who hold his hands.  And who, when he breathes his last, hold each others' hands over his body and pray together.

 --Excuse me, I had to pause for a minute to wipe away some tears even as I type this --

Whoever they are, whatever they did . . . .

Barens' camera takes it all in.  Day by day.  He has Jack speak - not surprisingly, his words are somewhat self-serving, acknowledging while at least half attempting to justify.  One of Jack's son's is there, visiting regularly.  Talking about the quality of their relationship - developed only after Jack had been in prison for 8 years.

Jack is, ultimately, pitiful.  You can't help but feel for him; Barens sees to that.  But it keeps coming back to the others.  The ones who take care of him and care for him.  Who tell him, finally, to let himself go.  Who zip up the body bag, and then unzip so the prison guard can be sure it's the dead guy leaving at the end and not some ringer working an escape.

The camera work is steady.  Close-ups when the person is speaking to it.  More distant (two shots or further) when we're to observe.  We meet Jack with several day's growth of beard as he speaks to the camera and tells his version of the story.
Well, my name is George William Hall, nickname Jack. Me and my son was-- younger son was livin' in Quincy. That's when the old boy got him on dope. He was about 14 years old. And he finally hung himself. And one day, this dope dealer was braggin' about how he made his money. He didn't make no more. I stopped him. So I got life up here. That was 21 years ago. I'll get outta here one of these days, in a box.
We see Jack being shaved, and clean-shaven.  Close up on the face as he speaks.  So to the men who care for him, bad teeth (missing teeth) but soft-spoken, gentle in manner.

There's some pedantry when the camera steps back and on-screen text tells us that 20 percent of the inmates in our prisons are elderly, that 100,000 will die mostly alone, in their cells, over the next decade.  Barens doesn't add that this is a change, that increasingly harsh sentencing over the last 30 years or so has been turning prisons into geriatric wards.  He doesn't need to.  

The question he asks isn't how we got here.  It's what to do now.  And he shows us a compelling answer.  

Of course, the answer raises its own question.  Just what's the point of this status quo?

"In everything that can be called art," Raymond Chandler wrote, "there is a quality of redemption."

I've quoted that often in this blawg. Edgar Barens shows it to us in Prison Terminal.

* * *

Prison Terminal is an HBO Documentary, available on HBO (or HBO Now - which offers 30 day free access (as a trial - they want you to pay after that) through March of this year.

My thanks to Edgar Barens for making the film available to me.  He asks (and who am I to refuse) that I give the film's website, which I did with a link the first time I named it, and also his twitter feed (whatever that is, I don't twit):  @prisonterminal

* * *
The title of this post is taken from Mary Oliver's poem "Snowy Night." 

Last night, an owl
in the blue dark
an indeterminate number
of carefully shaped sounds into
the world, in which,
a quarter of a mile away, I happened
to be standing.
I couldn’t tell
which one it was –the barred or the great-horned
ship of the air –
it was that distant. But, anyway,
aren’t there moments
that are better than knowing something,
and sweeter? Snow was falling,
so much like stars
filling the dark trees
that one could easily imagine
its reason for being was nothing more
than prettiness. I suppose
if this were someone else’s story
they would have insisted on knowing
whatever is knowable – would have hurried
over the fields
to name it – the owl, I mean.
But it’s mine, this poem of the night,
and I just stood there, listening and holding out
my hands to the soft glitter
falling through the air. I love this world,
but not for its answers.
And I wish good luck to the owl,
whatever its name –
and I wish great welcome to the snow,
whatever its severe and comfortless
and beautiful meaning.

Saturday, January 2, 2016

Happy New Year?

It's 2016.

Around the world, folks celebrated the new year.

In Sydney

In Moscow

In Dubai 

In London

In New York

Of course, it wasn't all fireworks.  Some places had their own customs.

In Saudi Arabia 

Ben Hubbard in the Times.
Saudi Arabia carried out a mass execution on Saturday, putting to death dozens of militants linked to Al Qaeda as well as a prominent cleric who had criticized the government’s treatment of the country’s Shiite minority.
The Saudis killed 47 in their mass executions. Though I haven't been entirely fair with the picture I chose. Some of the 47 were killed by firing squad. The others, well yeah. But
Most of the executions on Saturday were by beheading; they were not public, unlike most Saudi executions.
January is (or perhaps is not) named after Janus.  The Roman god of transitions.  

Janus is routinely depicted with two faces because he looks, at once, both to the past and the future. So looking to the past for some context is appropriate. 
The last mass execution of similar scale in Saudi Arabia was in 1980, when 63 jihadists were put to death after they seized the Grand Mosque in Mecca.
That 63, a third again as many. Still, 47 is a hell of a start to the year.  It suggests that this year is likely to top last, which itself saw a dramatic rise from the year before.
The executions of at least 157 people in 2015, a year that began with the inauguration of a new monarch, King Salman, were a sharp increase from the 90 people put to death in 2014.
Ah yes.  The new King thing.  You know the routine.
The King is dead.  
Long live the King.
The 157?  
Saudi officials have said that the increase reflects a backlog of death sentences that had built up in the final years of the previous monarch, King Abdullah.
Wimpy, that Abdullah guy.

Of course, this was the new year.

Back in 1862, we did it on Boxing Day, December 26, the day after Christmas.  38 Santee Sioux were hanged on a single scaffold - a single drop - in Mankato, Minnesota.

Some 1500 soldiers were in place to hold back the thousands of spectators.

There were actually 303 sentenced to die for their part in the Great Sioux War of 1862.  It was, they say, more than Lincoln could stomach. He decided, apparently, that there was sufficient evidence to kill only 38. Lincoln knew that commuting sentences for the rest would be unpopular. Still, he did it. Some he pardoned, some died in prison.
I could not afford to hang men for votes.
But as he saved 265, he signed off on the death of the 38. Who were killed in a single mass execution from a single gallows platform. 

Well, except for the oopsie.  It seems that only 37 of the 38 were killed. One, whose sentence had been commuted, was inserted into the lot and was killed in the place of one who was supposed to be. 

So 37 executions of the guilty and one execution of a wrong guy.

Hey, shit happens.

It's not that I'm suggesting equivalence.  But we here in the US of A, we do our share.
It's 2016. 

Happy New Year!  Thanks for stopping by.


Saturday, December 26, 2015

Wherein I Resist the Temptation To Discuss the Chlamydia Incident

He had me at nitwits.

Jay Wexler is a lawprof at BU, author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (a terrific book I reviewed here) and Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, and also of a collection of short fiction and other stuff (like law review articles and humor pieces).  He was once a law clerk to Ruth Bader Ginsburg (though not at the time she declined to provide the fifth vote for summary reversal in Overton v. Ohio thereby leaving me with what I am forced to describe as "the case I almost won in the Supreme Court").  He's probably best known for his studies of which of the folks on the Supreme Court generate the most laughs with their comments and questions during oral argument.  (Spoiler alert:  Clarence Thomas, who never speaks, comes in dead last.)

And now he's published his first novel, Tuttle in the Balance.  It's a keeper.

Ed Tuttle is an associate justice and the swing vote on a deeply divided Supreme Court.  And the sexagenarian (a double entendre from which Wexler wisely refrains) has just returned to DC in time for the Court's new term.  That's after spending 
two months of bliss in the Wyoming mountains, a glorious spell of crisp mornings and dry brilliant afternoons, of soaring eagles and scurrying marmots, of white water rafting and fly-fishing on the Snake River, not to mention a good deal of eye-popping sexual intercourse with a series of younger women who, to Ed's great surprise, were just delighted to bed down with an associate justice of the Supreme Court.
Now he's back for a term filled with important issues.  There's the first amendment case Texas v. Sexy Slut Magazine (the mag's cover featuring 42 erect penises).  There's the Pledge of Allegiance case from the Third Circuit (does "under God," a 1950's addition to the pledge to remind school children that we in the US aren't like those godless commies, violate the Establishment Clause).  And there's the question of whether cameras should be allowed in the courtroom.

Of course, Tuttle in the Balance is not all about the law.  Mostly it's about Ed Tuttle, who (as Wexler writes on his blog) is
having a mid-life crisis in the middle of one of the biggest terms in recent years. Among other things, it involves Taoism and a frisky cat.
I really don't want to give away much.  I don't want to tell you about the running meta gag about justices competing to see who can generate the most laughs during oral argument and so make points in the study that some law professor publishes.  Nor do I want to write about the laugh-out-loud fracas at the Court's conference when . . . .  And I particularly don't want to mention that drunken night when Ed and the . . . .  No, I won't go there. I won't. 

But you should.

You'll actually learn something about the law along the way.  You'll learn something about how the Supreme Court operates.  (There's some inside baseball, though not too much, and it never messes with the story.) And you'll have a good time if your sense of humor veers readily between the Marx Brothers and Animal House.

Or, well, as I said, he had me at nitwits.  

Oral arguments for the term begin Monday.  Ed has to prepare.  But "After four or five attempts to pore over the brief's Summary of Argument," he's ready to quit.  There's still time to prepare.  And he already taken a look at the bench memo Dawn, his brilliant law clerk, has written.
[A]nd if he has to, he figures he can probably read the thing the night before argument and still understand what's going on better than most of his colleagues, which is a testament not only to the fact that Dawn graduated first in her class at Harvard Law School but also to the sad truth that some of his fellow justices are, frankly, nitwits. 
Page 6.  I was hooked.

Special thanks to Jay who arranged for me to get a copy to review.