Tuesday, July 25, 2017

The Nooses Tighten -- UPDATE

As I type this, it is a little after 1 in the morning in Ohio.  In just under 9 hours, Ron Phillips will be killed at the Southern Ohio Correctional Facility in Lucasville.

The killers will be a group of prison guards.  It's duty they've volunteered for.  They've chosen, for whatever reason, to kill a man for whom they hold no personal animus, a man who's done them no personal wrong.

Those guards won't be acting alone.  Killing Ron Phillips wasn't their idea, after all.  It was the prosecutor who decided he should be killed and the jurors who agreed.  The trial judge signed off on it.  So did appellate judges, justices of the Ohio Supreme Court, judges and justices in federal court. 

The Parole Board was cool with it.  So, it seems, is Governor Kasich who's skipping opening day at the state fair to oversee the murder.

It doesn't need to happen.  We've managed this long without killing him or anyone else.  No need to start up the pumps again.  Thing is, it's not about need.  It's desire.  They want to kill him.  Nothing personal of course.  Not for most of them.  It's calculated.  A dispassionate decision.

Oh, the courts could still call a halt.  So could the Governor who's received petitions with somewhere close to 100,000 signatures asking him to stop it.

I've been happily surprised before, but I don't think I will today.  

8 1/2 hours.

And then there's TaiChin Preyor.  He's got until Thursday.  A whole day left to contemplate his . . . .

The Texas Court of Criminal Appeals turned him down.  Not because they had to.  Because they could.  Here's the explanation.  

Which is a long way of saying, 
We don't gotta.
Of course, that's just a fancy way of saying 
We don't wanna.
Which puts 'em in the same camp as all those folks up in Ohio.  Sure, we don't have to kill him.  But we actually want to.  Even though (here it comes again), he didn't do anything personally to us.  It just feels good.

You know, like the old Nike commercials.  
Just do it!
'Cause we can.

Judge Alcala dissented in a 33 page opinion (that Scribd doesn't seem to want to let me embed, so here's a link.

He doesn't disagree with the majority's cold-hearted legal calculus.  It's not that we have to grant him relief, he says.  

It's just that what they have to do isn't the whole thing.  It matters, too, what they ought to do.  It matters that they can grant relief.  And in this case . . . .
The extreme circumstances presented in this application include the essential abandonment by applicant’s initial habeas counsel, and the interloping by a foreign attorney without credentials to practice before this Court and in the absence of applicant’s informed consent to pursue habeas litigation for him as a non-attorney. This Court should stay this impending execution of applicant and file and set this case to consider overruling Graves. Assuming Graves is overruled, I would remand this case to the habeas court so as to permit this applicant, who has made a prima facie case that trial counsel performed ineffectively as to their investigation and presentation of mitigation evidence, a live hearing in the habeas court. Because this Court denies the motion to stay execution and permits this execution of applicant several days from now despite the egregious post-conviction errors in this case, I respectfully dissent.
It is, of course, a dissent.


UPDATE -- In case you couldn't tell, I'm an idiot.  It's now a bit past noon, and I just realized that today is Tuesday, not Wednesday.

Ron Phillips is scheduled to be killed tomorrow, not today.  TaiChin Preyor on Thursday, not tomorrow.

So there's more time yet for something to happen.  I'm still not holding my breath.

Saturday, July 22, 2017

And It's Wikipedia by a Noose

They plan to kill TaiChin Preyor Thursday.

It's not all that surprising.  We're talking Texas, after all.  And while executions are fewer these days than just a few years ago, well . . . .  We're talking Texas, after all.

Sometime after 4 in the morning on February 26, 2004, Preyor broke into the apartment of his, er, friend, Jami Takett, a drug dealer.  He went into her bedroom where he stabbed Jason Garza who got away and had neighbors call for help.

Then, according to the Texas Court of Criminal Appeals* he "stabbed Tackett numerous times and slashed her throat, severing her trachea, jugular vein, and carotid artery."

It was brutal.  But capital murders, all murders in fact, are.  There are no nice murders.  In any event: Texas, death sentence, death row.  Execution date set.  Execution date withdrawn.  And now, as I said, they're planning to kill him on Thursday.

Texas kills enough folks (Preyor would be number 543; no other state's total is close; though he'd be only the 6th in the Lone Star State this year) in enough iffy circumstances even for supporters of state killin' that I don't tend to spend any time focusing on the individual cases.  But this one is --

OK, look.  So his trial lawyers didn't notice, didn't investigate, didn't care, didn't do something to let his jury know about the horrific physical and sexual abuse inflicted on him as a kid by his own family.  Want an example?  Happy to oblige.

When he was 14, Preyor was admitted to the hospital and treated for two broken ankles and a broken hand. Seems he'd injured himself jumping from the fourth floor of his apartment building to escape his mother, who was chasing him with a knife.

Prosecutors, of course, described that family as "wonderful" and filled with "outstanding people."  Well, yeah, you wonder at them.  And they were outstanding in their awfulness.  But that's not what the prosecutors meant or the jury understood. Sigh.  

Capital trial lawyers who don't investigate their clients' backgrounds and don't present the jury with the all-too-common details that would curl their toes in horror are, sadly, if not quite the norm anymore, far too common.

But it's what happened later that moves Preyor's story from just another instance of what-the-hell-are-we-doing-killing-these-people to 
We're fucking doing what?  You're shitting me!
See, his mom might have abused the hell out of him, might have tried to kill him, even.  But that was -- how can I put this delicately? Got it. --  That was her job.  Wasn't the state's business to kill him.

And so, unhappy (and rightly so) with the representation her son had received, she decided to try hiring a lawyer.  Her first thought was Johnnie Cochran.  After all, he got OJ off.  Turned out he was dead.  Then there was some local guy who said he'd need 150 grand which was waaay more than she could raise.  But soon she heard about one Phillip Jefferson who'd allegedly won a murder case one time.    

She met with Jefferson.  He was, she said, "very well presented and groomed."  And he "talked about how impressive he was to juries."  Oh, and he'd take the case for $20,000.


Just one snag.   He said he was "retired," and while he'd come out of retirement if there was a hearing, in the meantime he'd work with Brandy Estelle - a Los Angeles attorney he knew.  She'd put her name on the papers, but he'd be the power behind the titular throne.  Oh, and don't mention my name to anyone, please.

And so. . . . 

Of course, it turns out that Jefferson's "retirement" was involuntary.  He'd been disbarred.  Brandy?  Hey, she was a real estate lawyer.  But what the hell.  If you can vet a contract for the sale of a home, surely you can fight a death sentence in Texas.  After all, you've got a computer.

Brandy had a computer all right.  And she used it to do absolutely first rate legal research.  After all, capital law is hard.  You want to do the best.  

You could go to seminars, work with the top folks (who are, by the way, remarkably willing to help in these cases).  You could do hours and hours and hours of research on one of the main legal databases, Lexis or Westlaw, read the cases, learn the field.  Or you could skip all that and go to the best of all sources to understand how to work the intricacies of Texas capital post-trial procedure while investigating the hell out of the case.

You could, that is, go to fucking Wikipedia.  Where you'd print out the article "Capital Punishment in Texas."

And, of course, you could bill the federal courts for the same work you were paid for by Preyor's mother.**

Even in capital cases, even in Texas, this is extraordinary.

"A pardon is an act of grace," wrote John Marshall in United States v. Wilson (1833).  And grace, as I've said here many times, is about the giver, not the receiver.  It's not about what's deserved but about what sort of people we are.

TaiChin Preyor is on death row.  Right now he doesn't need all the grace of a pardon.  A stay would do it. Or a reprieve.

Even though he's in Texas you'd think that might be within reach.  

At least, you could hope so.

*  It's not altogether clear that the CCA summary of the crime and what Preyor did is accurate. Much, according to some later filings, is at best murky.  But that court's version is, for the moment at least, the "legal truth."

**  The information about Phillip Jefferson and Brandy Estelle is taken from various documents, including a supplemental clemency petition filed by Preyor's new attorneys on his behalf.

Wednesday, July 19, 2017

After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched and described what the witnesses saw.
Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

Monday, June 19, 2017

A Terrorist by Any Other Name

What’s in a name? that which we call a rose
By any other name would smell as sweet.
The names are the problem, Juliet says. Romeo, after all, is wonderful. The trouble is that he's a Montague, hated for that alone by her family, the Capulets.

Names, words themselves, matter. They have power.

Consider the god of Genesis. For him (that sui generis god is surely male) god the word, logos (λόγος), calls forth the thing.
And God said, Let there be light: and there was light.
Want a more quotidian example?  

Michelle Carter was just convicted of involuntary manslaughter for sending her boyfriend, Conrad Roy III, text messages urging him to kill himself - which he did.

In the Washington Post, Tung Yin has an op-ed discussing the difficulty of determining when a killing is terrorism rather than murder.  It was easy, he says, in decades past when terrorists routinely announced their motives.  Now, not so much.  

While Yin concedes that 
As far as the prosecutions go, perhaps it doesn’t matter whether reporters and ordinary Americans regard a perpetrator as a terrorist or as a mass murderer.
It clearly matters to him a great deal.  He never does say why, though perhaps it's because he's a law prof specializing in, according to a biographical note accompanying his op-ed, "national security law and terrorism." 

But to what end, exactly?

Call it murder.  The victims are just as dead.  The killers can get whatever satisfaction they get from killing bunches of people.  But really, there's nothing special.  Nothing to see here.

Just another mass murder.

Doesn't have the same cachet, does it?  Hard to find quite the same sense of nobility?  Maybe harder to convince someone to do it. 

Just a thought.  Because words matter.

Sunday, June 18, 2017

Government Work

Hey, maybe he didn't do it.  But close enough for government work.

It's the story of too many folks on death row.  Too many folks in prison.  Too many charged and convicted where . . . .

OK, let me be both careful and honest about this.  I don't know how many factually innocent folks - ones who just flat out didn't do it (whatever the it may be) are charged with and convicted of crimes.  I don't know how many pay the traffic tickets they shouldn't have gotten or how many are doing a few years in stir or how many are awaiting a trip to the gurney.  Or how many have been executed.

I don't know.  Neither do you.  Neither does anyone else despite studies and analysis and careful estimates and wishful thinking and blind guesswork.  Nobody knows.  

What we know is that whatever the number, it's too many.  Every one is a failure of one or more parts of the system.  Every one is a mistake.  Some of those mistakes are more tragic than others.  Some have deadly serious consequences:

  • Innocent people locked up forever.
  • Innocent people killed.
  • Lives ruined.
  • Families destroyed.
  • Guilty people left free.
  • Some to pillage, rape, murder again.

But every one a mistake.  Every one a failure of our system of so-called justice.

Nicholas Kristof in today's Times tells the story of one likely candidate.  (Kristof's written about him before; so have I.)  This guy.
Kevin Cooper's on death row in California for four brutal murders in 1983.  There's a better than even chance he was framed for the killings that put him there.   Despite a lot of concern - and some outright vituperation - expressed by a number of judges, by some media, and by plenty of do-gooders, nobody with the power actually to do something has seemed to show much interest.

I mean, hell.  The guy was convicted by jury of 12.  And we haven't gotten around to killing him yet, despite his having spent more than three decades on death row.  What more can you ask for?

Oh, yeah.  You can ask for new and more definitive DNA testing.  

You know, the stuff that can maybe answer the question of whether he's the wrong guy.  Or, of course, maybe not.  If they'd do the testing, there are three possibilities.

  • It'll pretty conclusively show he didn't do it - and just maybe who did.
  • It'll pretty conclusively show that he did just what he was convicted of, showing that this is a case where things actually worked right.
  • It'll be inconclusive and leave things about where they are now, but with another stone turned.

Is any of those a bad thing?  Is there something to fear?  Is there any good reason why they won't just


Yeah.  I couldn't think of a reason, either.

Close enough for government work?

Looks like it is.

Saturday, June 17, 2017

Conflating Guilt

You know Cosby's guilty.  You just know it.  But the jury hung!?

What is it that the jury did't get?  How could they have been so confused? 

And that cop in Minnesota, Jeronimo Yanez.  The one who killed Philando Castile who's girlfriend caught it all on video.  Acquitted?  

Gimme a break.

I mean, we know.  We just fuckin' know. 

Which is, kinda, the problem.  Sorta.  In part.

Greenfield explains today why Cosby may not actually be guilty.*  But, well, Scott only touches on a part of it.  Because guilt is complicated.  As is innocence.

I've talked about these things at length before (here for instance).  I'm going to try doing it simply, now.

So -- 


By which you mean exactly, what, Grasshopper?

Legal?  Cosby will be legally guilty only if and when a jury says they are convinced that the prosecutor proved beyond a reasonable doubt each of the elements of the offense as set forth in the Pennsylvania criminal code.  Legal guilt is, essentially, a question of what the jury says it believes based on the evidence presented.

Factual?  Cosby will be factually guilty of violating that law, whatever the prosecutor does or does not prove to the satisfaction of the jury, if he in fact did each of the elements of the offense as set forth in the Pennsylvania criminal code.  The jury may or may not reach a verdict (OK, this jury didn't actually reach a verdict at all, but that's a quibble) that conforms to factual guilt.  That's why factual and legal guilt aren't the same thing.

Moral?  The fucking SOB is a pig who ought to be strung up by his fingernails.  Sometimes moral guilt equates with factual or legal guilt.  Sometimes not.  Nobody said life is fair.  And nobody says that we're all going to make the same moral judgements.  You know, life sucks.

Biblical?  We're all children of original sin, if you believe that shit.  Ain't none of who isn't guilty. Sigh.

Which brings us to



Legal?  Unless and until a jury says he's guilty, he's legally innocent.  Wholly and completely. Without exception.  Which has, of course, nothing beyond vain hope and some degree of luck and coincidence, to do with 

Factual?  As in, he did not in fact do each and every one of the things the statutes set out as elements of the offense.  Which may or may not match up with 

Moral?  Is what he did subject to moral opprobrium?  Kinda depends on whose morals you look at, I imagine.  

Biblical?  Is he saved?  God'll sort it out.  If she's so inclined.  And exists.


*And with the hung jury he is, at least for now, wholly and completely innocent - in a way.  (Keep reading the damn post to learn the way.

Tuesday, April 25, 2017

The Theory of Our Constitution

Back in the 1950s, Bob Hope used to tell this joke.
An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded."It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."
* * * * *
We begin at the beginning, with the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Justice Black looked at those words and famously said, "No law means no law."

I suppose he may have said that at one time or another, but the actual quote is from a concurring opinion in Smith v. California. It's worth quoting the whole passage.
I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge.
Oddly, Floyd Abrams doesn't quote that passage in The Soul of the First Amendment, his new book about the speech and press protections of the First Amendment. 

Nor does he quote Holmes, dissenting in Abrams v. United States:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
But if Abrams doesn't quote Black or Holmes in this brief book, he channels them.

Here, he says, is how it works in the United States under the First Amendment.  At least, how it works now and how it has generally worked since somewhere in the middle of the last century. 

Speech is protected.  The press is protected.

The government doesn't get to tell you what you can say and what you can't.  The government doesn't get to decide who can speak and who can't.  The government can't prevent people from saying offensive things.  It doesn't get to decide that the New York Times can have a voice but Breitbart can't.  

Or the other way around.

It's legal - offensive and hateful and stupid, but legal - to spout racist claptrap and insist that the Holocaust didn't happen, and it's too damn bad.

Truth is an absolute defense to defamation.

And corporations?  They really can spend their money on advertising to try and influence elections.

You may not like it.  You may prefer the greater privacy protections in Europe.  You may prefer to prevent speech you consider hateful.  You may think Citizens United was the worst, most wrong-headed decision the Supreme Court ever issued.  

And you may believe with every fiber of your being that Berkeley should prevent Ann Coulter from speaking there and that if Berkeley lets her in it would be proper to fire bomb the auditorium in order to shut her voice down.  Ulrich Baer, you may insist, is right when he claims in the Times that the remedy for bad speech is to stifle it, that it's only those who don't intuitively understand the harm of speech who believe that the remedy for bad speech is more speech.

But that's not our system.  Our system, as Abrams makes clear, is unique in rejecting every one of those things.  With the narrowest of exceptions (and still too many, some of us would argue), Hugo Black was right.  No law means no law.  The "spirit of the First Amendment," he says, is "its anticensorial soul." 

You're free to insist that he's wrong, of course, or that he should be.  You can speak out against free speech and the First Amendment as much as you like.  The First Amendment gives you that right. Maybe it would be better otherwise.  They think so everywhere else in the world, and maybe they're on to something.

Or maybe not.  Floyd Abrams thinks not.  Abrams is 80 years old.  He's been litigating these cases for decades.  And winning them.  

In The Soul of the First Amendment he tells the story of how "no law" came to mean something close to "no law."  He shows how it is that our approach to free speech really is unique.  And he explains, argues, why he thinks it's a good thing.

There are, of course, serious questions.  That you can speak doesn't necessarily mean that you should. In the book's final chapter he explores how "free speech should be responsibly exercised."  That's not a legal question, of course, and "[t]he First Amendment provides no answer to this question.  It never does."

My thanks to Yale University Press for sending me a copy for this review.