Saturday, September 30, 2017

Did Kellyanne Conway murder Melissa Trotter?

It's been a while, years in fact, since I've written about Larry Swearingen who did not kill Melissa Trotter.  That's the same Larry Swearingen the good people of the State of Texas intend to kill on November 16 for the murder of Melissa Trotter.  The same Melissa Trotter Larry Swearingen did not kill.

Sigh.

Let's do this in three parts.

Part I:  Larry Swearingen was in police custody when Melissa Trotter was elsewhere getting killed.   That seems incontestable.  

The Texas courts don't care.  The prosecutors don't care.  After all, there's all that circumstantial evidence and junk science that points to him.  Therefore he's guilty.  Proof that he's innocent would be, I don't know . . . . 

Wait, I got it.
Alternative Facts.
Cool.  Let's blame the killing on Kellanne Conway.  I don't know where she was at the time.

Anyhow, whoever killed Melissa Trotter, it wasn't Larry Swearingen.

But, again, the courts don't care.  The prosecutors don't care.  And Texas plans to kill him on November 16.

Part II:  As I've said from time to time in the context of more than one allegedly bad guy
TEST THE FUCKING DNA!
But of course they won't.  Well, that's not quite right.  They've tested some.  To the surprise of pretty much nobody who paid attention to Part I, 
IT AIN'T HIS.
Which is, of course, not of any particular interest to the courts or the prosecutors.  Who don't care.

There's more stuff that can be tested, really, stuff that should be tested.  The trial court (the Texas trial court!) has a couple of times now ordered the testing under the Texas post-trial DNA testing statute. Of course, the prosecutor appealed, because -- we'll get to that.  And the Texas Court of Criminal Appeals said "No."
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT IN A CAB!
YOU MAY NOT TEST IT IN A LAB!
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT, THAT WE SAY!
Oh, and in particular, if testing were to be allowed, the DNA could not be run against the existing DNA databases to see if it matched a person who might have killed Melissa Trotter.  Say, someone who understands and hides behind alternative facts.  Say, Kellyanne Conway.

Nah!
No testing, no checking.
But the court is cool with killingLarry Swearingen November 16 for the murder of Melissa Trotter whom he did not kill.

Part III:  Which brings me to the prosecutor and the reason he doesn't want the testing done - though he'd love to have it done.  Just as long as he can be assured that the testing will be irrelevant.  Jordan Smith, at The Intercept
The problem is with the way the statute is written, says Bill Delmore, chief of the Montgomery County DA’s Legal Services Bureau, which handles the office’s appeals. In deciding whether a defendant is eligible for DNA testing, a judge is required to find that exculpatory results would likely change the outcome of the defendant’s trial. That’s exactly what Case found each time he granted Swearingen’s request. But Delmore says his office is unwilling to accept that possibility. “I would never, ever agree — never, ever agree — that the presence of a third party’s DNA on some random piece of evidence in this case establishes that Larry Swearingen is innocent. That is ridiculous,” he said.
What the DA’s office wants is to be able to conduct testing without ever having to acknowledge that the results might change the original conviction. “If you told me that all the other evidence had somebody else’s DNA on it, then I’d say, well, [that person] must’ve done this with Larry Swearingen,” Delmore said. “It’s really hard for me to imagine DNA evidence in this case that would actually, in my mind, exonerate Swearingen.”
See, the problem is that the evidence might matter.  Oh, sure, it would just get a hearing.  But damn, then someone would have to consider . . . .
Still, Delmore is adamant that he and his boss Ligon are not opposed to DNA testing, per se. “We’ve always been willing to do the testing, but we’re not willing to do it under the constraints that this stupid statute puts on us.”
Besides, they probably like Kellyanne Conway.

Or maybe it was Sean Spicer.

OK, I'll come clean.  I don't think it was Kellyanne Conway.  She probably wasn't there, either.

Friday, September 29, 2017

Selling a Cramped Originalism

I make my living in the courts.  My job (and yes, I'm oversimplifying like crazy; live with it) is convincing judges* that they should do what I want them to do, decide the way I want them to decide.  Doesn't matter if I'm right.  What matters is that I win.

The best, most logical argument in the world ain't worth shit if the judge doesn't buy it.  Arrant nonsense that the judge accepts?  BINGO! 

It's a real world business this lawyering thing.  And so, and I know this will make some lawprofs cry, day-to-day and case-by-case I don't really care how we should understand/interpret/analyze/whatever the Constitution.  

In the scheme of things, though, it matters.  A constitutional republic (and pretty much everyone agrees that's what we have) can take many forms, even framed by the broad outline of our Constitution.  The republic Clarence Thomas thinks we have (or ought to have if we understood and applied the Constitution properly - i.e., as he does) is a very different place than the one that, say, Stephen Breyer imagines.  And neither looks all that much like . . . well, maybe like yours.

Which brings me to Ilan Wurman's mistitled A Debt Against the Living: An Introduction to Originalism.**  Mistitled because it's not an introduction at all it's an argument.  

Wurman isn't interested in explaining how originalism actually operates.  He doesn't say what it looks like in practice.  There's no particular vision of the republic here beyond the claim that an originalist republic would have a lot smaller federal government than ours.  

Instead of an introduction to originalism, Wurman's is an argument for originalism.  The book, he says, 
aims to arm the reader with basic arguments about the legitimacy of Constitution and our Founding, and to explain the relevance of these arguments to modern debates over constitutional interpretation.  It argues that the Constitution does form a debt against us - against the living generation - that compels us to continue to obey and abide by it today. It then argues that originalism, the idea that the Constitution should be interpreted as it was originally understood by the Framers who wrote it and the public that ratified it, is the only method of constitutional interpretation that faithfully discharges this debt.
Maybe.  But before I get to the carping, let me lay it out.  It works, roughly, like this.

First, there's what's virtually a given for Wurman:  Of course we should understand the Constitution as it was understood by those who wrote and ratified it.  Any other approach is understanding a lie. After all, when the Constitution says that the President must be at least 35 years old, if we think 40 is better and treat 40 as the rule . . . .  (That's not his example; his example involves fried chicken seasoned with "pepper to taste" but a preference for rosemary.)  

Well, sure.  But that's not a different way of reading or applying the Constitution.  That's rejecting the Constitution.  It's not the originalist's bogeyman of the "living Constitution."  It's just a new rule with no pretense to being an understanding or interpretation or even application of the Constitution.  And while there are certainly those who'd chuck out the Constitution we have in favor of whatever, they aren't the plausible opposition.

Everyone who matters in this debate believes in the Constitution.  The disagreement is in how to apply it.  Wurman's claim is that we should apply the "original public meaning," how it was understood at the time.  Not particularly by the folks who wrote it.  And not by the folks who adopted it.  But by . . . well, by the public (whoever they are).  And we can know how the public understood it by studying what Madison said in the Federalist Papers (not so much what Hamilton said, perhaps because he understood the Constitution differently than Madison).  And also by looking at what prominent folks thought it meant.  

All of which strikes me as . . . .  Well, Brennan spoke of the hubris of imagining that we can tell how the Framers would have viewed issues arising today that were beyond possibility in 1781.  And others have pointed out that Judges and Justices (and lawyers for godssake) are not historians.  But of course that doesn't mean they shouldn't try or that they can't come close.

So sure, Wurman says, we apply the Constitution as it was understood from the get go because that's what we do.  Not particularly satisfying, but there it is.

And now that we know how to interpret the Constitution, the question is whether we should bother. And of course we should.  Because "We the people" (or at least the white male property owners) adopted it.  And because it's a good thing - despite all the ways it's a bad thing.  And because, well, sure.  Which is about as non-controversial as it gets except for those folks who'd just toss it aside - and really, that's not who Wurman's talking to - or even who I am.

OK, so originalism is good and the Constitution is good.  And other approaches, hey they're malleable.  This week's flavor may not be next weeks.  They're just preferences and politics.  Which isn't nonsense, but Wurman blows the other folks off pretty quickly.

In any event, having now convinced you (Wurman seems to think), the only real question is whether originalism supports Brown v. Board of Education.  If originalism would accept separate but equal schools, then even if it's the only proper way to read the Constitution, it should be abandoned.  Shockingly, Wurman think originalism and Brown are a match made in heaven.  And he explains why.  Maybe you buy it, maybe you don't.  Most originalists do, he says, though he acknowledges that some don't. And, although he doesn't say it, I take it that the folks who don't, since they're originalists, also don't think the Brown test is all that significant.

The problem with Wurman's originalism is that it's cramped.***  Because it was to be a government of limited powers, if it isn't explicitly allowed, it must be forbidden.  (Except, of course, when he wants to stretch a point to get a result he wants - which he is mostly how he gets to originalism endorsing Brown.)  

But there's another way that, if the term weren't taken, you could also call originalism.  Ask what's the Constitution trying to achieve.  How, within its scope and framework, understanding it's lexical terms broadly rather than narrowly, do we get there?

Consider the Fourth Amendment: 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And I get it that the Constitution doesn't say anything about an exclusionary rule for violations.  Wurman says that, therefore, originalist understanding would abolish the exclusionary rule.  But the exclusionary rule exists because without it the Fourth Amendment is no more than aspirational (we're remarkably close to that these days, but that's a different post).  If the Amendment is to be effected, the rule is a necessity.  So it's not part of the document and pretty clearly it wasn't part of the "original public understanding."  But effecting the Fourth Amendment requires it.  Which seems to me, but not to Wurman, the right test.

A Debt Against the Living is short.  It's mostly lucid.  You don't have to be a scholar, not even a lawyer I don't think, to get his argument.  But it's glib.  Too often trimming a bush  and declaring the forest cleared.  

On the other hand, based on the blurbs from some respectable and prominent originalists who seem to think the book brilliant, maybe the problem is that I'm not sufficiently of the choir to which he's preaching.
 
-----------------
*Juries, too, but less often and in any case they aren't relevant to where I'm going with this.
**The title is taken from a letter James Madison wrote to Thomas Jefferson.
***Wurman acknowledges that there's a strain of originalism that reads the Constitution more broadly than he does.  Having acknowledged the fact, he then pretty much ignores it.
------------
My thanks to Cambridge University Press for sending me a copy to review.

Saturday, September 23, 2017

The Innocence Commission and the Innocent Man

October 1987.  Nine at night.  Hickory, North Carolina, an hour or so west of Charlotte, they called it Little Berlin.   Carrie Eliot, widowed just under a year, 69 years old, five foot nothing on a good day, widowed, living alone.  

A man forced his way in.  "I want you. . . . I like older women. . . . They don't mess around."

He raped her.  First in the living room.  then the bedroom.

A neighbor, paid $1,000 for the tip, told police it was Willie Grimes.  Carrie Elliot, whose description didn't match Willie, picked him from a photo spread.  Then she identified him in court.  

Willie testified. He'd gone to the police station voluntarily.  Had no idea what they wanted.  They hadn't let him go. And now here he was. And damn, he never raped that woman.  Or anyone else, for that matter.

You know what happened next.  Nice white lady.  Black guy.  She says it's him. He says nope. There's no DNA.  No forensics.  Just she said.  And he denied.

Willie J. Grimes was sentenced to spend the rest of his life in prison.

* * * * *

It's not giving anything away to say that Willie Grimes didn't do it.  The title of Benjamin Rachlin's book, Ghost of the Innocent Man: A True Story of Trial and Redemption, makes that clear.

And if you read the flap on the dust jacket, you'll realize that the title tells only half the story. Rachlin's book is as much about Willie's "relentless champion, Christine Mumma, a cofounder of North Carolina's Innocence Inquiry Commission," as it is about Willie.  That's its strength - and its weakness.


Here's Willie.  He knows he's innocent.  His family and friends know he's innocent.  His lawyer fully believes he's innocent.  But the jury didn't buy it and the judge didn't buy it and the appellate courts don't buy it and . . . .  Damn.

The guy is shuffled from prison to prison.  He has menial jobs (there are no other sorts in prison) but makes the best of them.  He tries to stay out of trouble.  He wishes his lawyer would get back to him with what's happening - or even what isn't happening.

He'd probably have been paroled, but that required rehabilitation, which required accepting responsibility for raping Carrie Elliott.  And he couldn't do that, of course, because he hadn't raped her.

Christine Mumma was a juror in the capital case of one James McDowell.  She voted for death, but really . . . .  A few years later she went to law school. First thing she did when she got there was look up the guy she'd condemned. He hadn't been killed. In fact, he was off the row.  New lawyers got his sentence reduced to life.
She felt strangely relieved he'd never been executed.  Even a criminal like McDowell deserved a better attorney than he'd had.
After law school, after one thing and another, she ended up clerking for I. Beverly Lake, chief justice of the state supreme court.  She noticed that some of the criminal cases were incompetently tried.  Maybe the guys were guilty, maybe not.  But if they were innocent . . . . No, that never happened.  But shit.

She talked to Lake who told her what she probably knew anyway.  "Guilt wasn't a question his court considered.  That had been addressed already, at trial. . . . A judge didn't overrule jurors based on his own subjective opinion."  But you know, and they knew, that some folks behind bars were being proved innocent.  So it seemed it did happen.

Meanwhile, Willie, who was innocent but without proof, sat in prison.  In time he converted.  He became a Jehovah's Witness.  

And Christine got to working with a small clinic at UNC's law school.  And then she got Lake involved and others.  And they put together a committee to try to figure out how to make convicting innocent people harder.  

Willie's case eventually made it to Christine's file cabinet.  Where it sat because while it seemed pretty clear that his was a good innocence case, there wasn't the evidence to help him.  There just wasn't anything she could do.

And then she dragged that commission kicking and screaming into actually trying to figure out how to get North Carolina to make a serious effort to undo past wrongful convictions.  

Which eventually led (as you learned from the dust jacket) to North Carolina's Innocence Inquiry Commission.  Which is something extraordinary.*

And as you might imagine, after, years and years and false starts and dead ends.  YIPPEE!  The NCII gets its second exoneration.  And it's Willie.

And it's all very cool.

Rachlin tells the stories in alternating chapters until the end when they merge.  It's an effective narrative technique, and he tells the stories well.  That's especially true as he reports on the rape and what passes for an investigation and the trial.  And it's true as he follow's Christine's efforts to create something new in North Carolina.  And it's true when the strands come together at the end.

But the day to day of Willie's life in prison.  All 24 years of it.  Too often not so much.  It's not surprising.  It's hard to make the quotidian - even the prison quotidian - fascinating.  There are moments, but they don't tend to get developed.  An then there's another visit from his Jehovah's Witness teachers.

I'm carping, and probably shouldn't.  It's not how I'd have told the story.  But that's not the test.

So let's go with this.  You know, if you're among the people who read this blawg, that the legal system fucks up more than its fair share of the time.  Too damn many factually innocent folks are in prison - often leaving the actual criminals to prey on others.  Willie Grimes's story of innocence eventually recognized is, in that sense, nothing much new.  

By itself, it's one of those long New Yorker articles.  But it's not by itself.  it's connected to Christine Mumma's effort to do something not just for him but for a conception of justice.  That's something to write home about.  

It's something, too, to read a book about.  Ghost of the Innocent Man is that book.


----------------
* And unique.  There are, scattered around the country in various prosecutors' offices, conviction integrity units.  Some of which actually seem to function - though others pretty clearly don't.  But no other state has an actual, statutory Commission and a procedure for locating and exonerating.



Friday, August 25, 2017

No Winners

There is so much about which to cry.

Charlottesville



Barcelona



Syria  



We might quote Tacitus.
They make a desolation and call it peace.
It's easy to hate in response.

Other things are hard.  Hard to draw strength and inspiration from the horror.



Harder still, the act of grace.

http://www.bbc.com/news/av/world-europe-41056859/barcelona-attack-father-of-youngest-victim-hugs-imam

Which makes me cry, too.

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.

Bingo!

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.