Friday, May 27, 2016

Loretta Lynch v. Connecticut

This week the Attorney General finally made up her mind.
Following the department’s rigorous review process to thoroughly consider all relevant factual and legal issues, I have determined that the Justice Department will seek the death penalty,
That's Dylan Roof, the kid who's charged with killing 9 people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina last year.

Roof, who's already facing capital charges in South Carolina courts - trial currently set to begin in January - now risks the possibility of another death sentence.  From the feds.  Because he didn't just kill 9 people.  He did it for bad reasons.  Teach that rotten kid a lesson.

It took a year of dithering rigorous review to determine that this was an appropriate use of federal resources.  So that we can get him killed twice. Or maybe it's because the AG doesn't trust those racist hicks in South Carolina to kill a white guy who killed black folk for kicks.  So the AG needs to arrange for a back-up.  You know, just in case.


Meanwhile, in Connecticut.  
  • Where the legislature abolished the death penalty going forward but left it in place so that Joshua Komisarjevsky and Steven Hayes (and incidentally the 9 other folks on death row there) could still be killed.  
  • Until State v. Santiago the Connecticut Supreme Court said that the death penalty violated the state's constitution and said that the 11 guys on death row couldn't be executed, either.
  • And then, after the personnel on the court changed, put Santiago on hold while reconsidering the matter in the case of Russell Peeler, which was not a good sign if you thought they had it right the first time.
Yesterday, the court spoke.  There are concurrences and dissents, but in its brief and unsigned opinion (footnotes omitted), the court said it would follow its precedent.
A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J.,rendered judgment imposing two death sentences. This appeal of the defendant’s death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, §§ 8 and 9, of the Connecticut constitution. See, e.g., Conway v. Wilton, 238 Conn. 653, 658–62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant’s death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant’s other appellate claims. The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects. 
Connecticut is known, among other things, as The Constitution State.

The Attorney General is named Lynch.

You can't make this shit up.

Monday, May 23, 2016

Cognitive Dissonance - Or Maybe He Just Lied

Sure, one or the other is maybe a typo.  On the other hand, maybe not.  Because once you start lying. . . .

It's from Foster v. Chatman, the opinion about racially-motivated peremptory challenges released today by SCOTUS.   You know, the one where Chief Justice Balls and Strikes Roberts views the instant replay and says the Georgia prosecutors who secured a death sentence for Timothy Foster some 30 years ago and have fought tooth and nail to maintain it since then lied through their teeth when they said that race had nothing to do with why they used peremptory challenges to strike all the black jurors.  

Sure, they marked their juror sheets with capital B's next to all the black jurors, then highlighted them in green.  Sure they had a note explaining what to do if they were forced to have a black juror.  But, you know, they just did that so they could be careful about accidentally striking those jurors because they were black.  They'd find a good reason.

And so, when the case came to the Supreme Court and there were two of the struck jurors to evaluate, well, they were ready with what they'd argued over the years.  Eddie Hood, for instance, was struck from the jury because his son was the same age as Foster and had committed a similar crime.  That'd be a good one, though the similarity between young Hood's non-violent theft and Foster's "murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing,"* might be thought, er, minimal(?).** 

But then there's this. 

One of the reasons the prosecutor chose to strike Marilyn Garret from the jury, he said, is that she "did not ask to be excused from jury service."  OK, it's a stupid reason, but race neutral.  Prosecutor just doesn't want jurors who want to be jurors.  Hey, this whole jury selection thing is often no more than gut feelings about the kinds of folks we want.  

On the other hand, one of the reasons the prosecutor chose to strike Eddie Hood from the jury is that he "asked to be excused from jury service."  Which is a stupid reason, but race neutral.  Prosecutor just doesn't want jurors who don't want to be jurors.  Hey, this whole -

Uh, wait a second.  

Like I said.  Maybe one or the other is a typo.  On the other hand.  You know, one of the things about lying is that it's hard to keep the fucking stories straight.

On the other hand, the agents of law and order have no problem with cognitive dissonance.  Consider United States v. Sokolow.  Sokolow was stopped at the Honolulu airport with a round trip ticket to Miami and over a kilo of cocaine in his carry on.  The question was whether the cops had a reasonable basis to stop him.  Writing for the majority, Rehnquist said yes.  Sokolow, you see, fit the profile of a drug courier.  

And what, you may ask, is that profile? Wonder no longer.  Thurgood Marshall explained it in his dissent.  Bottom line:  It's whatever the cops need it to be (citations simplified for readibility).
Compare, e. g.,United States v. Moore (suspect was first to deplane) with United States v. Mendenhall (last to deplane) with United States v. Buenaventura-Ariza (deplaned from middle); United States v.Sullivan (one-way tickets) with United States v.Craemer (round-trip tickets) with United States v.McCaleb (nonstop flight) with United States v.Sokolow (case below)(changed planes); Craemer (no luggage), with United Statesv. Sanford (gym bag) with Sullivan (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously) with United States v. Himmelwright (acted too calmly).
How, they say, can you tell when a politician is lying?  His lips are moving.  Sometimes works for cops and prosecutors, too.

* That's from the first sentence of Clarence Thomas's lone dissent.
** Thomas thought the trial court's acceptance of the similarity was perfectly reasonable.

The Eye of the Beholder

“The time has come," the Walrus said,
     “To talk of many things:
Of shoes--and ships--and sealing-wax--
     Of cabbages--and kings--
And why the sea is boiling hot--
     And whether pigs have wings.”
Lewis Carroll, "The Walrus and the Carpenter"
If you'd been paying attention, you knew it sooner. If you hadn't been paying attention, you should have known it in 2009 when the National Academy of Sciences released its report, Strengthening Forensic Science in the United States: A Path Forward.
Nearly all of what passes for forensic science is bullshit.
  • Fingerprints? Bullshit.
  • Shoe prints and tire tracks? Bullshit.
  • Ballistics? Bullshit.
  • Bullet lead analysis? Bullshit.
  • Bitemark comparison? Extreme bullshit.
  • Hair comparison analysis? Total, utter, beyond the pale bullshit.*
Ah, but there was still DNA.  That, the NAS report acknowledged, was actual science.  Which is, in fact true.  It is science.  Developed by scientists.  

Take a sample of something with human cells, even extraordinarily tiny amounts these days, run it through the pocketa pocketa high tech machine and you get results.  Then you compare the results to whatever and either it's consistent or it isn't.  

Which is clear and simple enough.  And even accurate.  

If everything is perfect.  Proper samples, properly protected against contamination and accurately tagged with the right person's identity.  Competent technicians performing their jobs in exactly the way they're supposed to.  Accurately calibrated equipment in perfect working order using solutions that themselves aren't contaminated. 

And oh, yeah, a single sample rather than a mixed one.

Then, you'll get results that . . . .

Well, see, there's a problem.  And the more you have to do, whether it's clone the initial sample gazillion times because it's so small or deal with the fact that it's degraded or have that mixture where there are two or more contributors.

Matthew Shaer in the Atlantic. 
A groundbreaking study by Itiel Dror, a cognitive neuroscientist at University College London, and Greg Hampikian, a biology and criminal-justice professor at Boise State University, illustrates exactly how subjective the reading of complex mixtures can be. In 2010, Dror and Hampikian obtained paperwork from a 2002 Georgia rape trial that hinged on DNA typing: The main evidence implicating the defendant was the accusation of a co-defendant who was testifying in exchange for a reduced sentence. Two forensic scientists had concluded that the defendant could not be excluded as a contributor to the mixture of sperm from inside the victim, meaning his DNA was a possible match; the defendant was found guilty.
Dror and Hampikian gave the DNA evidence to 17 lab technicians for examination, withholding context about the case to ensure unbiased results. All of the techs were experienced, with an average of nine years in the field. Dror and Hampikian asked them to determine whether the mixture included DNA from the defendant.
In 2011, the results of the experiment were made public: Only one of the 17 lab technicians concurred that the defendant could not be excluded as a contributor. Twelve told Dror and Hampikian that the DNA was exclusionary, and four said that it was inconclusive. In other words, had any one of those 16 scientists been responsible for the original DNA analysis, the rape trial could have played out in a radically different way. Toward the end of the study, Dror and Hampikian quote the early DNA-testing pioneer Peter Gill, who once noted, “If you show 10 colleagues a mixture, you will probably end up with 10 different answers” as to the identity of the contributor. (The study findings are now at the center of the defendant’s motion for a new trial.)
Because the real world problems aren't the ones you solve in a classroom.  And the problem with DNA isn't the science.  It's what happens after the science.  What happens when someone has to interpret the results.  And maybe put an innocent person away for life.

Does it happen?  Yeah.  How often?  Nobody knows.  And just about nobody believes it.

 "The sun was shining on the sea,       Shining with all his might:
He did his very best to make
      The billows smooth and bright —
And this was odd, because it was
      The middle of the night. 

The moon was shining sulkily,
      Because she thought the sun
Had got no business to be there
      After the day was done —
"It's very rude of him," she said,
      "To come and spoil the fun." 

The sea was wet as wet could be,
      The sands were dry as dry.
You could not see a cloud, because
      No cloud was in the sky:
No birds were flying overhead —
      There were no birds to fly. 

The Walrus and the Carpenter
      Were walking close at hand;
They wept like anything to see
      Such quantities of sand:
If this were only cleared away,'
      They said, it would be grand!' 

If seven maids with seven mops
      Swept it for half a year,
Do you suppose,' the Walrus said,
      That they could get it clear?'
I doubt it,' said the Carpenter,
      And shed a bitter tear. 

O Oysters, come and walk with us!'
      The Walrus did beseech.
A pleasant walk, a pleasant talk,
      Along the briny beach:
We cannot do with more than four,
      To give a hand to each.' 

The eldest Oyster looked at him,
      But never a word he said:
The eldest Oyster winked his eye,
      And shook his heavy head —
Meaning to say he did not choose
      To leave the oyster-bed. 

But four young Oysters hurried up,
      All eager for the treat:
Their coats were brushed, their faces washed,
      Their shoes were clean and neat —
And this was odd, because, you know,
      They hadn't any feet. 

Four other Oysters followed them,
      And yet another four;
And thick and fast they came at last,
      And more, and more, and more —
All hopping through the frothy waves,
      And scrambling to the shore. 

The Walrus and the Carpenter
      Walked on a mile or so,
And then they rested on a rock
      Conveniently low:
And all the little Oysters stood
      And waited in a row. 

The time has come,' the Walrus said,
      To talk of many things:
Of shoes — and ships — and sealing-wax —
      Of cabbages — and kings —
And why the sea is boiling hot —
      And whether pigs have wings.' 

But wait a bit,' the Oysters cried,
      Before we have our chat;
For some of us are out of breath,
      And all of us are fat!'
No hurry!' said the Carpenter.
      They thanked him much for that. 

A loaf of bread,' the Walrus said,
      Is what we chiefly need:
Pepper and vinegar besides
      Are very good indeed —
Now if you're ready, Oysters dear,
      We can begin to feed.' 

But not on us!' the Oysters cried,
      Turning a little blue.
After such kindness, that would be
      A dismal thing to do!'
The night is fine,' the Walrus said.
      Do you admire the view? 

It was so kind of you to come!
      And you are very nice!'
The Carpenter said nothing but
      Cut us another slice:
I wish you were not quite so deaf —
      I've had to ask you twice!' 

It seems a shame,' the Walrus said,
      To play them such a trick,
After we've brought them out so far,
      And made them trot so quick!'
The Carpenter said nothing but
      The butter's spread too thick!' 

I weep for you,' the Walrus said:
      I deeply sympathize.'
With sobs and tears he sorted out
      Those of the largest size,
Holding his pocket-handkerchief
      Before his streaming eyes. 

O Oysters,' said the Carpenter,
      You've had a pleasant run!
Shall we be trotting home again?'
      But answer came there none —
And this was scarcely odd, because
      They'd eaten every one."

*Really, the hair comparison thing is dramatic.  The FBI admitted last year that its analysts consistently reached worthless conclusions and testified to the absolute nonsense in criminal trials leading to hundred if not thousands of convictions and at least 32 death sentences - including 14 people who've been executed.  And, of course, they trained crime lab analysts across the country to do the same dangerously inaccurate work.  From the Washington Post story last year:
Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”

Wednesday, May 18, 2016

And One to Grow On

Seven years.  Good god.  I've been writing this thing for seven years now.  First post was May 18, 2009.  When I post this, it will be number 1252.  There are another couple of hundred I've started but abandoned, half posted then deleted.  And god knows how many I thought about but didn't write.

And then there are the ones I wrote elsewhere.  Fault Lines, for instance,* and there was a short-lived group blog, but that seems to have been taken down.

For all of that, it's 3 months since I've posted anything here.  But it's my blawgiversary.  Seven Year Itch (which is a complete distortion of what the movie was about, but an excuse to stick in this picture)

and I'm ready and eager to be back.

Hope you'll join me for the ride.

* A worthy endeavor.  Well worth your time and attention.  From which I this day resigned my commission.  Maybe I'll post over there from time to time, but I just gave up my weekly gig.

Friday, February 19, 2016

26 and Counting

To what end, exactly?
That's the question Ohio Supreme Court Justice Paul Pfeifer asks today.  Actually, that's my phrasing. What Justice Pfeifer said is. 
The act begs the question: Why?
The "act" was the court's order setting an execution date for James Frazier, sentenced to be killed for the March 2004 murder of Mary Stevenson in Toledo.  It's scheduled, now, for October 17, 2019 (yes, 2019).

The question, whether in my form or as Justice Pfeifer put it in his dissent (joined by Justice O'Neill) from that order, isn't about whether Frazier should be killed.  After all, Pfeifer joined the unanimous opinion affirming Frazier's conviction and death sentence.*

Nor, at least not exactly, is the question about the wisdom of setting execution dates more than three years in the future.  That's the sort of thing the court's been doing for some time.  In fact, as Pfeifer points out, as of yesterday we here in the Buckeye State had 25 executions scheduled.  First up, Ron Phillips on January 12 next year.  (Yep, next year.)  The last Gregory Lott for August 14, 2019.  

Of course, we've something of a backlog, given the moratorium on killings since the botched murder of Dennis McGuire in January 2014.  And unlike some states, we space our killings apart.

But, really, it wasn't the three years plus that left Pfeifer wondering.  It's the drugs.
The state does not have the drugs needed to carry out the executions. 
We don't have 'em.  We can't get 'em.

The last killing, the gruesome execution of Dennis McGuire (gruesome in exactly the way his expert witnesses said it would be and the way the state's witnesses assured Judge Frost it would not) was done with an experimental mix ("experimental" as in nobody'd ever been executed with that combo of drugs before) of midazolam and hydromorphone.  

So OK, we won't use that combo again.  And after much thought, the folks who make these decisions (the folks who run the prison system, not physicians or pharmacologists) decided to go back to the tried and true - thiopental or pentobarbital.  Except, well, there's none to be had.  

Ohio's been begging the FDA and the DEA and the FCC and the IRT and the BMW and anyone else with initials they can think of to allow importation of bootleg drugs from India or the Taliban or something.  Ohio's been failing.

We tried to get a compounding pharmacy to compound.  Nope.  We passed a law making the identity of the compounding pharmacy a secret figuring that the pharmacists were probably good with killing but not with going public.  We were wrong.
Given that no executions are scheduled to take place in 2016, it is likely that there are no suppliers to shield.
One more time.
The state does not have the drugs needed to carry out the executions. 
And so, the question:
To what end, exactly?
Justice Pfeifer's summary:
At this time, the state is incapable of properly executing the 25 people for whom execution dates have previously been set. It serves no rational purpose for this court to continue to set execution dates while significant logistical obstacles remain in place and more legal challenges are likely. 
And yet, the prosecutors keep filing motions to set execution dates.  And the supreme court, for reasons known only to them, grants them from time to time. In desperate hope, perhaps.  

Or perhaps, just perhaps, if the prosecutors didn't ask and the justices didn't sometimes agree, they'd be admitting that out commitment to killing our people is empty.  That we don't really expect to do it, that death row is now no more than a talking point, empty rhetoric, PR.

There are now, adding Frazier to the list, 26 men with scheduled execution dates.  It's likely there will be more as more men finish their run through legal process.

I imagine that we'll eventually execute some of them.  Maybe.  Or maybe it really is just a game at this point.
* O'Neill wasn't on the court in 2007 when it ruled in the case.  It seems likely have joined in affirming the conviction but dissented from the death sentence since he believes the death penalty unconstitutional.  (See here.)

Tuesday, February 16, 2016

A Modest Proposal

No, not Jonathan Swift's.  But you can draw your own conclusions.

Antonin Scalia, that's Associate Justice of the Supreme Court Antonin Scalia, is dead.  He has, as John Cleese pointed out (albeit in a different context), "ceased to be."  

And so the cries go out, as they do whenever a Supreme Court Justice dies a suspicious death.
Something must be done.
But what?  

As usual, there is a split of authority.

The Democrats point to the Constitution (Hah! Take that!) which provides in Section 2 of Article II that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.
The Republicans point to the Nullification Clause (secretly embedded in Article XVII and routinely relied upon by both Republicans and Democrats) which provides
not if we don't wanna.
After all, the Republicans say, the President has a four-year term.  This is the last of his four years, and so he should not do anything and we won't let him because it is, after all, just a year before we get a new President, perhaps one to our liking. No fourth-year act should be allowed.

The Democrats, responding with equal lack of authority, say that because there's a full year left to the President's term, he has six months of authority left before he is officially stripped of all Presidential powers except posing for selfies with celebrities.  (See Article XLIV)

So we have a classic Mexican stand-off.  (Would-be-President Trump has announced that he will abolish those, of course, and make Mexico pay the cost of abolition.)

In reality, both Democrats and Republicans are wrong.  From the day the President is inaugurated, the President is on a downward spiral.  Certainly, the Pres is elected for a four-year term, but that term is already winding down on inauguration day.  Why then, should we imagine that a President elected in one year but not taking office until the next ever acts in accordance with the will of the people Electoral College?  Why, indeed?
Wyoming says NO!
Clearly, the proper solution is to have any decision of consequence made by the President-elect on election day.  That way and only that way can the will of the people Electoral College be honored.

Oh, sure.  The Constitution says that the President gets to do stuff.  But that's the Dead Constitution beloved by the dead guy.  How 2015!  The Living Constitution adapted to the needs of a short-attention-span populace trained to 140 characters and fewer seconds than that, a populace that turns on its newly elected within moments (how appropriate for the age of the Apple Watch) that Living Constitution knows that Presidents are elected and, thus, President-Elect.

You're welcome.

Saturday, February 13, 2016

Not a Eulogy - a Reminder

No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.
From Devotions Upon Emergent Occasions, Meditation XVII, by John Donne
When Osama bin Laden was killed, I quoted Kathleen Parker from the Washington Post.
Ten years of waiting and wondering where in the world was Osama bin Laden, the question nagged: Was he even alive? Then, voila. He was hiding in plain sight in a compound in Pakistan. We had been observing him for months. And now he was dead, said the president.
Whereupon the strangest thing happened. People began congregating outside the White House and cheering, celebrating the death of bin Laden. Young people, mostly, chanted “USA” and waved the flag. I wanted very much to share their joy and to feel, ah yes, solidarity in this magnificent moment, but the sentiment escaped me. Curiosity was the most I could summon. How curious that people would cheer another’s death.
Not since Dorothy landed her house on the Wicked Witch of the East have so many munchkins been so happy. My 20-something son explained ever so patiently that OBL was his generation’s Hitler and that of course he was happy. Why wasn’t I?
I don’t know. To me, the execution of bin Laden was more punctuation than poetry — a period at the end of a Faulknerian sentence. That is, too long and rather late-ish. To the 9/11 generation, if we may call it that, OBL wasn’t only the mastermind of a dastardly act; he was evil incarnate and the world wouldn’t be safe until he was eliminated.
Would that justice were so neat and evil so conveniently disposed of.
Perhaps it is a function of age, but I find no solace in revenge. What I do experience at such times is overwhelming sadness about the human condition, our bloodlust and attraction to spectacle.
When Muammar Qaddafi was killed, I wrote again about the cheers.
And there was, again, rejoicing - though in this country nothing on the scale of the cheers that greeted the murder of Osama bin Laden. But in Libya the cheers and the gawkers.
And I added:
How do you measure?
Who do you kill?
Not who do you want to kill. Who do you? And are you better for it?
Are any of us?
Muammar Qaddafi is dead.
I'm sorry. That's not a cause for rejoicing. Not ever.
I've noted several times that  
When Ted Bundy was killed, Time reported that
some 200 bloodthirsty revelers gathered outside the penitentiary in Starke, Fla., for a ghoulish celebration. They lit sparklers, cheered and waved signs reading BURN, BUNDY, BURN and ROAST IN PEACE.
It is said* that when John Kennedy was killed Fidel Castro responded,
Only a fool would rejoice, for systems, not men, are the enemy.
Antonin Scalia died this morning.  Apparently of natural causes.  One imagines in his sleep.  
He was, of course, a polarizing figure with a distinct view of the Constitution and how it ought to be understood and interpreted.  He was a force among the Supreme Court's so-called conservatives, a major player driving the wins in cases reviled by so-called liberals, including probably the two most recent ones: District of Columbia v. Heller in which he wrote the majority opinion and Citizens United v. Federal Election Commission  in which he simply joined the majority.  

And he believed, deeply, in the power of the state to kill its citizens, in the power of the state to prohibit its citizens from having abortions, and in the power of the state to prevent same sex couples from doing pretty much anything - most especially getting married.

At the same time, he was the voice on the Court leading the call for juries, not judges, to make the decisions that controlled how long people could be incarcerated for their crimes and whether they should be executed.  And he led a not particularly enthusiastic Court to acknowledge that the Confrontation Clause actually required confrontation.  (Yes, the Court's been backing away from that, but he even when he thought it didn't apply he argued that it should count.)

He was, as I said, a polarizing figure.  And it was clear that he relished the role.  To liberals, he was often viewed as something close to pure evil.  Hell, I've done my share of savaging his jurisprudence. (See here, for instance.)  But he got stuff right, too.

In any event, he's dead now.

As soon as I heard the news, I sent word around to some criminal defense listservs.  A friend wrote back.
Great News.
Of course, it's not.

Whatever one thinks of his jurisprudence, he left behind a widow, children, grandchildren who loved him.  He had friends who will mourn him.

If he were your client, if he were to be executed, you'd fight like hell to save his life.  Because it was his life.

Want a change in the Court?  Hope that Obama will or won't succeed in appointing a replacement? Fear or fantasize about how the court will be different in the coming years?  Sure.

But hey, he was one of us. 

No rejoicing in his passing.

*By Phil Ochs in his notes on the back of one of his albums.  I've never had occasion (and I'm not taking it now) to confirm what Ochs wrote.