Wednesday, July 1, 2015

The Banality of Samantha Hill

Apparently I was mistaken.

I was deeply moved by the families of the victims of the Charleston killings.  I thought it a wondrous thing, not to forget, but to forgive.  To return mercy for hatred.  That's a theme here, of course.  And while I don't know that I'd be capable of such generosity of spirit if it were my child/spouse/sibling, I know that I wish I were.

But, as I said, I was apparently mistaken.

The rule, Samantha Hill explains in a post at the Hannah Arendt Center is that one should forgive small harms but not big ones. 
In cases of willed evil, like that of Dylann Roof,[*] forgiveness is not called for. Forgiveness absolves the guilty and says, “But for the grace of God we all could have done what Roof did.” Forgiveness offers solidarity with the wrongdoer based on the Christian principle that we are all sinners: “Forgive us our trespasses, as we forgive those who trespass against us.”
And see, what Dylann Roof [if you believe the stories] did is not what we might do.  We're better than he is, so we should hate him unreservedly.  

On the other hand, we should be careful not to punish him. 
Punishment is a response to a crime that reintegrates the criminal back into society. Once the punishment is born, the criminal again is to become a member of society. But some crimes are so horrible that no reintegration into society is possible, and the institutions we have are not designed to deal with such acts. 
Since he can't be redeemed, or in any event should not be, we can't punish him.  LWOP? Death penalty?  No, because either way, after he's dead we'd be welcoming him back into our midst.  And we can't allow that because he's evil.  Pure evil.  

In fact, Hill tells us (securing her place in line as a potential winner in the race to be among the first to embrace Godwin's Law), he is Adolf Eichmann who oversaw the Nazi's deportation and execution of millions. Eichmann, who said he would
leap laughing into the grave because the feeling that he had five million people on his conscience would be for him a source of extraordinary satisfaction.
Not to put too fine a point on it, but the comparison is bullshit.  Even if the Charleston killer aspired to be Eichmann, he didn't succeed.  The single act of a crazed loner (even an evil crazed loner) cannot match the horror (and yes) banality of implementing the Final Solution.

Regardless, Hill is quite clear that her version of Dylann Roof cannot/should not/must not be punished.
In my judgment, we do not have the power to forgive or punish Roof; even sentencing Roof to the death penalty would constitute recognition of his act. His act is the kind of willed evil that “radically destroy[s]” our “potentialities of human power.” We must refuse to forgive Roof and also resist the urge to normalize his acts by punishing him within our legal system. There is no punishment equal to his crime.
What then?  The easy answer is that he must be expelled from human society.  Not by locking him away from society for eternity.  That would be punishment and would bring him back into society.** Nor, for the same reason, can we expel him from society by giving him the death penalty.

No, what we must do instead of locking him away or giving him the death penalty is execute him.  As a political but not a legal act.  

You know, as he killed people to make a political rather than a legal point. 

Oh, wait.

H/t Joachim Kübler

*Hill accepts, without any apparent doubt, that Roof was the killer and that what the police say about him, including the statements they say were in his purported confession, is true.  Those may be fair inferences from what the media tells us.  It does not follow that they are in fact accurate.
**Hill has a PhD in philosophy and a particular interest in  incoherent and self-contradictory "poetic thinking."  

Tuesday, June 30, 2015

1 +1 +1 +1 +1 = 5

I have spent a lot of time in the last week speaking with people who had the good sense not to go to law school.  Bright people.  Educated people, many of them.  Folks who know more, far more, than the general public about our legal system.

They've been paying attention to the Supreme Court's opinions lately because, well, who hasn't been? (Don't argue; it's a rhetorical question.) And because I'm a lawyer, they're inclined to ask questions. Which I try to answer.  And I've found myself explaining the mathematics of the law.

Now, I'm not talking about any high falutin, fancy ass, full dress stuff.  It aint rocket science.  It's not calculus, not non-Euclidian geometry.  I'm talking basic numbers.  1 through 9.  And, well, not even arithmetic.  Just basic counting.
1, 2, 3, 4, 5
That's it.  OK, you made it to five.

Justice Brennan used to hold up a hand, fingers splayed, before his new law clerks.  "You know what this is," he'd ask.  "It's five.  With five votes, you can do anything around here."

Which is true.  Except insofar as it's not.

In the beginning, (1972) there were two:
  • William Brennan
  • Thurgood Marshall

And then, 22 years later (1994), a third.
Harry Blackmun
The fourth came after another 14 years (2008).
John Paul Stevens
Now, a mere 7 years later (2015), two more.
Stephen Breyer
Ruth Bader Ginsburg
Which is 6.  And yet not 5.

Because we're talking votes, not heads.  And accomplishing something takes not 5 heads but 5 votes. At one time.

In 1972, in separate opinions in Furman v. Georgia, Justices Brennan and Marshall explained why they believed the death penalty unconstitutional - not merely as applied by the states under then-current law, but across the board.  And while there were five votes to strike every death penalty law on the books, five votes to empty death row, there were only two who were ready to end it for good.

Brennan retired in 1990.  Marshall in 1991.  When Harry Blackmun announced his opposition in Callins v. Collins,  he was alone on the Court.  Not a third vote, but a first.  When he retired some six weeks later, it was back to none.

And so it stood.  Until Baze v. Rees in 2008 when John Paul Stevens said that they hadn't shown Kentucky's lethal injection protocol was constitutional, but the death penalty itself, which was not then before the Court, was not.  Again there was one vote.  Even though he was number four.

Monday it was Breyer, joined by the Notorious RBG in Glossip v. Gross.  Which would be three, except that Stevens retired in 2007.  So, now it was two.

And while it may well be that Kagan and Sotomayor would, if the question were called, add two more votes, it's not enough.

So 6 votes.  Call it a supermajority, if you like.  But it's a case where 6 is less than 5.  And it's less than 5 even if 6 is really 4.

And so, we turn to Anthony Kennedy.  Who is the only one of the remaining Justices who just might jump ship.  And who's key to the major question:
Can you count to 5?
Breyer asks that someone raise the question.  Which is great if there are five votes but sucks if there are only 2 (or 4).  Since that would simply entrench. 

So? Josh Lee think we can get him.  Some days I agree.  Other days, not so much.

What to do?  Do the math.

Saturday, June 27, 2015

It depends on what the meaning of the word "is" is

For the last couple of days, I've been attending the annual conference of Reform Sex Offender Laws. RSOL brings together lawyers, scholars, activists, sex offenders and, especially, the unrecognized victims of the crimes of sex offenders, their families, to teach and learn and talk about how to do better. 

RSOL isn't trying to get sex offenses made legal, doesn't condone sex with children. It's not saying rapists shouldn't be punished or child pornography should be freely available.  It wants to reform, not abolish.  But it knows that much of what the media tells us about those who commit sex offenses is wrong.  

And that the boogeyman we're told to fear, really, the hundreds of thousands of them, are no more real than Jason.

It's not that there aren't folks who do, who have done, monstrous things.  It's not that there aren't some dangerous people out there. It's that people who've done monstrous things aren't monsters, they're people.  And not everyone who's done something we abhor is actually dangerous.

RSOL envisions effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.
So for two and a half days, in formal presentation, in a panel discussion, and over lunch and coffee and later drinks at the hotel bar, I've been trying to explain just how it is that the law so often makes no sense.  That the words of the Constitution so often provide only illusory promises of fairness and justice.  That despite what we were taught in 4th grade civics, our is The Law of Rule at least as much as it is The Rule of Law.

Which brings me to Thursday morning.

That's when Chief Justice Roberts wrote for a 6 Justice majority in King v. Burwell, that 
an Exchange established by the State
an Exchange established by the State or by the Federal Government.
It's a defensible legal argument despite Nino Scalia's accurate claim that it's
interpretive jiggery-pokery.
And it's an example, if one were needed, that when Holmes (that's Oliver Wendell, Jr., not Sherlock) said
The life of the law has not been logic; it has been experience,
He was making a significant point.  Logic has little to do with it.  Want another example?  Also from Thursday morning?  This time it wasn't the D.C. 9 but the Columbus 7.

Michael Keenan, they said (opinion here), must be tried a third time.  Oh, sure, there's no physical evidence connecting him to the crime.  Oh, sure, the lone admitted eyewitness is dead.  And oh, sure, the case gets to this point now only because the first two trials and death sentences were tainted by the very substantial exculpatory evidence that the prosecutors intentionally concealed from Keenan and his lawyers for some 20 years because, gee, if they'd passed it on, as the Constitution required them to, Keenan would likely - and properly - have been acquitted.  

But damn, they wanted that sumbitch executed.  Whatever it took.

But wait, a third trial?  Isn't that double, or maybe triple jeopardy?  Isn't there something in the Constitution about that?  Why yes, there is.  In the Fifth Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Keenan, of course, has already been twice put in jeopardy.  And now it's to happen a third time.  I've written about this before.  As I said then,
[I]t's another of those legal fictions. As the Supreme Court said in Richardson v. United States (1984), looking back to United States v. Perez (1924),
The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.
When ordinary logic won't do, when they have to develop a new and special sort of logic, you know the rule they'll come up with makes no sense. 

But then . . . .  Well, consider the Ohio Revised Code.  Section 1.42 says
Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
Which seems clear enough.  Words mean what they ordinarily mean.  Until you get to the very next section of the Code, Section 1.43(A).  That's where we learn that
The singular includes the plural, and the plural includes the singular.
That is, one person is more than one person.  And many things are just one thing.  But one person is, of course, also one person.  As many things are many things.  

Actually it begins earlier.  Section 1.02(F):
"And" may be read "or," and "or" may be read "and" if the sense requires it.
Words wholly untethered from meaning, left to the whim of the judge who decides what the "sense requires."

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  

Thursday, June 25, 2015

When Life (or Death) Isn't Enough

No, in one sense it doesn't matter what you call it.   Nine people are dead.  Killed.  Murdered.  Nine innocent people who did nothing to deserve their deaths.  They just happened to be in the Emanuel African Methodist Episcopal Church in Charleston, South Carolina when someone, allegedly Dylann Roof, took a gun and started shooting people.

Names won't change that.  Call it terrorism if that makes you feel better.  Call it a hate crime.  Call it Swiss cheese.  Nine people are dead because they happened to be in the place where a madman* started shooting.

And yet.

As I keep saying, and did just the other day, words matter.  They provide the categories that let us think about things and try to understand.  

So we'll start with murder.  Forget the criminal law stuff where we talk about what the elements are and whether Dylann Roof or whoever actually did each of them and whether it's proved beyond a reasonable doubt.  Just everyday murder: Purposely killing another person.  Yep. We got that.

Terrorism. Much tougher.  But roughly (I'm making this up, not looking it up) violent acts for the purpose of effecting social or political change.  Is that what he did?  Did he hope that black folk would be so frightened that they'd flee the country, or at least Charleston? Did he want to start a race war?  Or did he just kill because . . . .

Well, that brings us to hate crime.  That's when the act was done out of, er, hate.  Category hate, that is.  Not A hates B so A kills B.  Instead, it's A hates and kills B because B is _________ (a schoolteacher, a policeman, an environmentalist, a mentalist, an accordion player, a Palestinian, an Israeli, African American).  Maybe.  There's no shortage of evidence, it seems, that Dylann Roof (and that's who's accused of the killings) was racist pig.  So yeah, maybe a hate crime.

Apparently, the FBI thinks so.  And the Department of Justice.  The Times reports that federal hate crime charges are "likely."
But Justice Department and F.B.I. officials agreed that the Charleston shooting was so horrific and racially motivated that the federal government must address it, law enforcement officials said. South Carolina does not have a hate crimes law, and federal investigators believe that a murder case alone would leave the racial component of the crime unaddressed.
“This directly fits the hate crime statute,” one law enforcement official said. “This is exactly what it was created for.”
Because, and I suppose this is the point, it's a terrible thing that he killed people.  And for that he should get 9 consecutive terms of life without parole.  Or 9 death sentences to be served sequentially. But then we'd only be saying he was wrong to kill those people.  When we also need to say he was wrong to be a racist pig.  For which he could get an additional life sentence.

That'll teach 'im.

*That's a clinical term, not a legal one.  I don't know whether the person who killed the nine is nuts (another clinical term) in a way that Palmetto State law would recognize as making him not guilty by reason of insanity. (I know that it's unlikely, only because almost nobody satisfies those standards, but I don't know.)  What I do know is that no sane person does that shit.

Saturday, June 20, 2015


Shakespeare knew.
From Romeo and Juliet, Juliet to Romeo, Capulet to Montague:
’Tis but thy name that is my enemy;
Thou art thyself though, not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part 45
Belonging to a man. O! be some other name:
What’s in a name? that which we call a rose
By any other name would smell as sweet.
Of course, they both ended up dead.  it's perhaps not all that simple.
Still, words, names, count.
God, after all, named the world into existence (or so claims Genesis). The word, logos (λόγος), calls forth the thing.
God said, "Let there be light, and there was light."
Which, as I've noted before, is a pretty cool trick.
And brings me to Charleston, South Carolina, and what was surely murder whatever else it might be. Ah, but that "whatever else."
DOJ is trying to determine whether it was a hate crime or terrorism.  Presumably, that's so that they can prosecute the bad guy if South Carolina decides to give him a medal.  And folks across the spectrum are arguing about which of those it should be called.
As if it mattered.
Murdering people is offensive. Murdering people because of their race is offensive. What you call it is irrelevant. When you understand that, the debate over whether to call it terrorism begins to look a lot more ridiculous, narcissistic and offensive.
Which is of course true.  Kinda.  Because naming is explaining, and explaining gives us categories that tell us what to do.
If it's Terrorism, we have a box we can put it in.  And we can add it to the war.  Something to eradicate.  Send drones.  Take out the leaders.  Kill enough of them and its over.  (Just look how well that's been working in the middle east, but I digress.)
If it's a hate crime, well, then we educate or send people to church where they'll learn about love. (OK, that was a bad example.)
If it's racism?  Hey, that's over.  Remember, we elected a Kenyan as President.  But if we'd just get the Stars and Bars off the S.C. flag.  (And after all, Texas won't have to put them on license plates.)
Or maybe it's guns.  Obama says to control them.  The gun lobby says the problem is that we don't have enough. 
Or drugs.  Rick Perry, who called the killing of 9 an "accident," blamed it on drugs (while admitting he didn't know what he was talking about).
Also, I think there is a real issue to be talked about. It seems to me, again without having all the details about this, that these individuals have been medicated and there may be a real issue in this country from the standpoint of these drugs and how they’re used.”
So crank up mandatory minimums.  Or decriminalize.
Or provide the mental health care crazy people need.
Or maybe it's just evil.  Which is maybe a result of Adam and Eve eating that piece of fruit.  Or maybe untreatable psychopathy that isn't the same as being crazy.
Or gee, maybe he was just born that way.

The thing is, none of this, no name, will change the fact.  Scott again.
No matter what characterization floats your boat, there will still be nine dead human beings in Charleston, and none of them will be you.
And nothing will bring them back.
Of course, we'll put up a plaque.  Raise money.
And then?
Nikki Haley, South Carolina's governor, called immediately for the death penalty.  Mark Berman in the Washington Post.
“We absolutely will want him to have the death penalty,” Haley said Friday morning. “This is the worst hate that I’ve seen and that the country has seen in a long time.”  
Of course, she's not alone.  Even some from the family of Dylan Roof who's been arrested and charged with the killings. Bob Fredericks in the (sorry) NY Post.
“If he’s found guilty, I’ll be the one to push the button myself. If what I am hearing is true, he needs to pay for it” uncle Carson Cowles told “Good Morning America.”
The local prosecutor, Scarlett Wilson, expresses more restraint. Mark Berman, again, in a different story.
The prosecutor who will pursue the case against the gunman accused of killing nine people inside a historic church in Charleston, S.C., said Friday she has not decided whether she will seek the death penalty in the case.
She said that decision would come at a later time, after she was able to speak to the relatives of the people killed Wednesday inside the church.
“My first obligation, my primary obligation is to these victims’ families,” said Scarlett A. Wilson, the prosecutor for Charleston County, at a news conference Friday afternoon. “They deserve to know the facts first. They deserve to be involved in any conversations regarding the death penalty.”
Actually, her obligation is to "justice," whatever that might be, and then perhaps to the people who elected her.  But at the moment that's almost (not quite, but almost) a quibble.  In any event, what of those "victims' families"?
They forgave him.
Jeffrey Collins for AP.
Felecia Sanders survived the attack on her Bible study group by pretending to be dead, but lost her son Tywanza.
On Friday, she came face to face with the alleged shooter, as she had the night of the slaughter.
“We welcomed you Wednesday night in our Bible study with open arms,” Sanders told Dylann Storm Roof, who appeared via video conference for a bond hearing. “You have killed some of the most beautifulest people that I know. Every fiber in my body hurts … and I’ll never be the same.”
“Tywanza was my hero.”
And then Sanders did something remarkable: She forgave the young man who has been charged with nine counts of murder for the bloody attack at the historic Emanuel African Methodist Episcopal Church.
“As we said in Bible Study, we enjoyed you, but may God have mercy on you,” she said.
Sanders was one of several family members of victims to be given a chance to address the court during Roof’s bond hearing. Others also forgave him. They advised him to repent for his sins, and asked for God’s mercy on his soul. One even told Roof to repent and confess, and “you’ll be OK.”
One more from Collins.
The families are determined not to respond in kind, said Alana Simmons, who lost her grandfather, the Rev. Daniel Simmons.
“Although my grandfather and the other victims died at the hands of hate, this is proof — everyone’s plea for your soul is proof they lived in love and their legacies will live in love, so hate won’t win,” she told Roof during the bond hearing. “And I just want to thank the court for making sure that hate doesn’t win.”
See, forgiveness and mercy are words, too.  They don't explain.  They don't categorize. They don't offer easy solutions.
But they heal.  Which is probably the most any of us can hope for in the wake of horror.

Friday, June 19, 2015

On Certainty - Part 2

This was going to be a comment on Judge Kopf's post, Evil, following on the killings at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina.  But it was getting too long and filled with my typical digressions, so I thought I'd come over here.

There are, the good judge declares, those beyond the pale.  They are, he says, 
utterly beyond redemption, and must be caged
And he offers, as exemplum, 21-year-old Dylann Roof, identified by the New York Times as the now-arrested suspect.  Look, he says, reprinting a picture of a very sullen looking Mr. Roof from the Times (I'm not reproducing it), this is
what evil looks like.
Which I suppose gains some traction if it turns out that Mr. Roof is in fact the person who shot and killed all those people, though I'm just enough committed to the Constitution - and to doubt - to want to hold my declaration until he's actually convicted of something.  And even then.

I want to be clear about this.  I don't doubt that the killing of nine people is an horrific act.  And killing them because they happen to be African-American (and how convenient that they were all in one place) is particularly unsettling.  I hope the authorities track down and prosecute the right person (if it's Mr. Roof, fine, though I'd hope they don't get so invested in their certainty that they ignore leads that may point to an alternative, or additional, suspect.

But really, and aside fro the rush to judgment, the issue for the moment (and for Judge Kopf - hey, that's who I'm writing in response to) isn't about what did or did not happen.  It's about young Mr. Roof, or whoever.  It's about 

And it's about redemption - or its possibility.  And about throwing away the key now, because we know, just know.  

Because this is 
what evil looks like.
Except, well, maybe.

Maybe Roof (or whoever) can't be redeemed.  Maybe he's the Golem.  Maybe he's Satan frgodssake.

Like Judge Kopf, I've dealt with a whole lot of people who've done monstrous things.  Unlike Judge Kopf, I've gotten to know some of them quite well.  I've looked at where they came from.  I've looked at how they came to do the things they did, how they came to be the people they are.

And I've concluded that, in the last analysis, I don't know.

I know about continuities.  I know about mental illness and trauma and what growing up in a setting where a day on which you're beaten virtually senseless is one of the better days can do to a person.  I know about epigenetics.  I know about young men and women unleashed on a world they cannot cope with, that they were never taught to cope with.  

I know about how the only identity that's valued is the identity of drug dealer or killer.  I know about cravings, for drugs, for sex, for the thrill of killing someone that reminds you that you're alive.

I know how good people are driven to do terrible things.  And I know people I'd rather not see out on the street.
So, you want to have ________ over for dinner?
said a prosecutor who called me after I filed a motion for bond for a guy who'd just been convicted of multiple homicides and sentenced to a minimum of 64 years in prison and a realistic maximum of until you die or some other inmate kills you.

I had a client, a terribly violent man.  Violent as a small boy.  Violent as a teen.  Violent as an adult. He committed one murder.  Did his damndest to commit another.  The miracle was that he hadn't committed others.  The first time I sat in a room at the jail with him I could feel the violence bubbling up.  It's not that he wanted to hurt me, but that he would.  Or so it felt.  

Then they got the drugs right. 

It was Shakespeare that did it for Larry Newton.   For others it's finding some religion. Or meditation or discovering a friend or therapy.  Or just time.  Or maybe it's a miracle.

And of course, there are others for whom nothing. 

When I teach at death penalty seminars, I often say that there's no case that can't be won, no matter how horrific the crime.  There's no case, that is, that can't end up with something other than a trip to death row.  Because you never know what will happen, what can happen.  But if there's no case that can't be won, it's also true that not every case will be.  No matter what.  No matter how good. Sometimes the verdict will be death.  And you can't know for sure, not ever, until the jury comes back.

Which is the problem.  

Are there people who do terrible things, who have no compassion, no feeling, who simply prey?  And who will, forever, and no matter what.  Yeah, probably.  I think I've met a few of them.

But see, I don't know who they are.  Neither do you.  It's easy to recognize the monstrous act.  Call it evil if that makes you feel better.  But the monster?  The person beyond redemption?  

Out there? Perhaps.  Identifiable with any certainty?  Fraid not.

Which doesn't mean that there aren't people who should probably be locked up forever.  It does mean, though, that we don't really know who they are - certainly not in advance.  We can throw the key away put 'em all in solitary forever, send them to GITMO (turns out we haven't been too particular about who we did send there).  Hell, we can just execute everyone we don't like.

Or we can recognize that one of the things that keeps the monsters monstrous and turns the maybe monsters into monsters is denying them hope.  

And since we don't really know who's who. 

Which brings us back to Mr. Roof.  Who, if he is in fact the killer in the pews, did a monstrous thing.  But that tells us virtually nothing about who he is.  

Let alone about who he will be. 

Saturday, June 13, 2015


You've got to make them lose to make them learn.
That was Cathy Cook, arguing in the Supreme Court of Ohio about what it would take to get prosecutors to stop cheating, lying, hiding evidence in capital cases.  Instead, what the court did, routinely, was admonish.
Bad prosecutor.  Don't do that again.  Be aware, one of these days if you keep it up we'll reverse a conviction.
Empty threats.  No consequence.  No change in behavior.  The prosecutors were righteous, after all. They weren't breaking the rules in order to convict the factually innocent.  They were taking bad guys off the street.  No need for the niceties.  

So yeah, undoing some of those convictions based on prosecutor misconduct might achieve something - especially if the courts really had balls and said that they couldn't try the defendants again - even if the prosecutors said that they were bad dudes who'd done bad stuff.  Make 'em lose and maybe they'd learn.

Or maybe not.  Because really, the cops'll just bust the guys so they can do it again.  Or maybe the cops'll shoot next time and save everyone the bother.  I mean, they can do that with pretty much no consequence to them even without much in the way of justification.  See Michael Brown and Eric Garner and Tamir Rice and Freddie Gray and . . . .  Well, just look at Michael Brelo who was, after all, acquitted.*

Rick Horowitz suggests a different approach to the cops, making them have personal liability insurance for their police behavior (link removed).  
The most important component of this proposal is that if an individual is unable to obtain the insurance, they are unable to work as a law enforcement officer. Period. No ifs, ands, or buts. No workarounds.
This final part of the proposal provides a beautiful means of weeding people out of the force who should never be on the force in the first place. Let insurance company actuaries help clean things up. Individual insurance companies can develop their own means of deciding who to insure, and who not to insure. After all, assessing and deciding on what is acceptable risk is what they do.  
There's an elegance to Rick's proposal I like.  But it doesn't help us with the self-righteous prosecutors who'll do whatever it takes - and damned the rules.  After all, what's the risk to them.  Oh, sure, maybe some chewing out from a panel.  Embarrassing, but.  Ho hum.

And so, in the spirit of, here's something you don't see every day, I bring you to the Lone Star State where, you may recall, Anthony Graves spent 18 years in prison, 16 of them in solitary, 12 of them on death row, for a mass murder (6 members of a family, including 4 children) he didn't commit.  

How'd that happen?  Meet Charles J. Sebesta, Jr., the man who put him there.

He's the prosecutor who put on perjured testimony.

  • Who didn't tell the defense - or the jury - that Robert Carter, a co-defendant and the key witness against Graves, admitted the night before his testimony that he committed the crime alone and that Graves had nothing to do with it.  
  • Who had others testify that Carter had been consistent with his story implicating Graves knowing that their testimony was false.  
  • Who had Carter himself give the false testimony on the witness stand.
  • Who arranged for threats to prosecute Graves' alibi witness for capital murder if she testified, accurately, that he was with her and elsewhere at the time of the killings.

And who, oh yeah, there is a point to this, just got disbarred.

Prosecutors like to say that the bad guys need to learn there are consequence to them when they commit crimes.  Frankly, most of our clients don't understand those connections.  They've generally lived lives that haven't lent themselves to a clear understanding of cost-benefit analysis.  

But Sebesta?  He'd been preaching it for years.

Rule of Law for a change.

*Yes, I know that the Rice and Gray cases are still pending.