Friday, July 25, 2014

Is It Really Botched If He Ends Up Dead?

An hour and 57 minutes.

He gasped some 650 times for all but the last 17 minutes or so.

They gave him the fucking drugs a second time because, well, who knew if he'd ever die.

It was torture said John McCain who knows a thing or two about torture.

Smooth sailing said Jan Brewer and the AG and Kent Scheidegger and a spokesman for Arizona's DOC who all declared, with the certainty of the ignorant, that he was sound asleep through the whole thing and felt absolutely no pain or discomfort even if it took longer than they'd expected.

The family of his victims complained that it wasn't nearly ugly enough, and how dare people wish it were easier on him.

What if the federal judge had ordered it stopped and him revived?  Could they have done it? Apparently, they could have.  And could they then have tried to kill him again?  Nina Totenberg pointed to Ohio where the Supreme Court has agreed to answer that question in Romell Broom's case.

Like Ohio, and like Oklahoma, and like every other state where lethal injections go horribly wrong despite repeated declarations that it was all cool, they'll investigate and review.  And like all those states, they'll guarantee that the investigation will be independent because it will be conducted by the same people who ordered and carried out the killing.  Inspector, investigate yourself.

And like those states, and Missouri and Georgia and Texas and Louisiana and everywhere else, they'll explain that it's vital that they kill and insist that the who and how and where they get the drugs must be secret.  Because the people demand killin' but would stop it if they knew who was involved.

We once executed at high noon.  In the town square.  So the people could see the consequences and learn.  The killing was to be as John Bunyan says in a different context in Pilgrim's Progress, both "caution and example."  But of course the people partied.  And the pickpockets thrived.  

So they moved it inside.  Hidden away.  Did it at midnight.  Away from the throng, which just wouldn't learn.  And then earlier in the day, because why pay overtime or force the killers to miss time with the wife and kids afterwards?

I've said before that if we're going to do this, we should own up to it, give up the pretense of gentle killing and necessary murder.  Forget the ban on cruel and unusual punishment.  Admit that it's by God murder.  Have them tied down and gnawed to death by rats in Yankee Stadium. Put it on pay per view. Then we'd have to allow that it's no more than revenge.  Really just blood sport.  

Alex Kozinski, Chief Judge of the Ninth Circuit, dissenting from that court's refusing en banc review of a decision of a panel of that court staying the execution so that Wood could get information about the drugs Arizona was going to use and where they came from and like that so he could determine whether his killing would likely prove to be torture (citation deleted, emphasis added). 
Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See  But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.
He's OK with that splatter.  I'm not.  But then, I'm opposed to the whole enterprise.  We're better than that.  Or we're supposed to be.  That's why we hide it.  Why we pretend to medicalize.  Why it's supposed to be kinder and gentler.  Really, this is for your own good.

Which is, of course, bullshit.

His name was Joseph Wood.  He was murdered by the State of Arizona.  It took an hour and 57 minutes.  He gasped some 150 times during all but the last 17 or so of those minutes.  They had to drug him a second time.  They said it all went really well.  They lied.

Thursday, July 24, 2014

They Finally Tested the Fucking DNA. Nobody Cares What It Shows.

So now what happens?

I'm talking about Doug Prade about whom I've written a couple of times before.  He's a former Akron cop.  In 1998 the jury said he was guilty of murdering his ex-wife, Margo.  Shooting her to death.  He said, always said, he didn't do it.  And then they tested the DNA.  Oh, sure, he had to fight his way to the Ohio Supreme Court, but by a 5-2 vote, they allowed him to try and convince the trial court to order it to be tested.  All he had to do was convince the court that a test might be outcome determinative.  Which he did.

See, before she died, she I suppose before the gun went off, she struggled.   In the struggle, the killer bit her in the arm.  Through her lab coat.  Bit her so hard that she bled, bled right through the coat.  And the killer would have left his DNA on the coat.  But back then, DNA testing wasn't sophisticated enough.  They found Margo's DNA, from her blood.  But that overwhelmed whatever else.  Except Now they can do more.  And after a court order (the state fought, er, tooth and nail to prevent testing the DNA because . . . .  Oh, yeah, because it might fuck up their case.

And so they did the new testing and they found not just Margo's DNA but also another person's.  A man's.  The killer's.  Don't know who that is, though.  The only thing they know is that it isn't Doug Prade's DNA.  Which means that Doug isn't the killer.

And Judge Judy Hunter cut him loose.  She wrote,
The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder. As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.
And of course, the state appealed.  Because the jury said he was guilty and just because the killer was maybe (probably? almost certainly?) someone else, well, that doesn't count.  Because sure, that male DNA could be from some contamination somewhere along the way.  So the court examined the trial court's decision to see if it was wholly irrational or arbitrary.  And concluded, that it was.  Because they weren't convinced.  (Which isn't the standard they claimed to have used, but what the hell.)
Having conducted a thorough review of the DNA results and the testimony interpreting those results, this Court cannot say with any degree of confidence that some of the DNA from the bite mark section belongs to Margo's killer, Likewise, we cannot say with absolute certainty that it does not. For almost 15 years, the bite mark section of Margo's lab coat has been preserved and has endured exhaustive sampling and testing in the hopes of discovering the true identity of Margo's killer. The only absolute conclusion that can be drawn from the DNA results, however, is that their true meaning will never be known. A definitive exclusion result has been obtained, but its worth is wholly questionable, Moreover, that exclusion result must be taken in context with all of the other "available admissible evidence" related to this case.
And so they undid the finding that he was innocent and ordered him back to prison.  Of course, Prade appealed.  And yesterday, by a vote of 4-3 and without any explanation from anyone, the Ohio Supreme Court refused to hear the case.  Which means? 

The state says, according to press reports, that it's over.  Prade was found guilty by the jury and then by the court of appeals.  Whether he's innocent is irrelevant.  Back to prison.  He'll be eligible for parole for the first time when he's 78 or 80.  If he lives that long.

His lawyers say he gets a new trial.  Because the court of appeals never addressed the question of whether he was entitled to that.  

And while they're squabbling about that?  He either does or doesn't go back to prison.  From which he's been out for about 18 months now.

Let's recap.

  • Doug Prade, found guilty in 1998.  
  • With new evidence found innocent in 2013.
  • Found guilty in 2014 because after all the new evidence might or might prove he's innocent so he must be guilty.

Meanwhile, in Texas, Hank Skinner got the DNA tested and the trial court held a hearing.  The state, which had spent years fighting against the DNA testing, said the results proved Skinner was guilty. Skinner's lawyers said the tests showed he was innocent.  The judge carefully weighed the conflicting arguments, noting that the DNA results were largely inconsistent with the state's theory of the case, agreed with the state that some exculpatory evidence shouldn't come in.  And then said that Skinner was guilty and should be killed.

Skinner will be appealing.  And you know how well that's likely to go in the courts that already said there was no point in testing the DNA because he was guilty so there was no point in looking to see if he actually did it.

I've said before that Ohio wants to be Texas.  We've got a ways to go, but still.

Sunday, July 20, 2014

It's Complicated. And the Law of Rule

Like Judge Kopf, I was sent a copy of Uncertain Justice: The Roberts Court and the Constitution by a publicist at Henry Holt & Company in the hope that I would review it.  And like Judge Kopf, but without the initial internal debate about whether I should accept the book and consider reviewing it (I
had no hesitation at all), I did.  

Here's the basic idea:  The 9 folks who sit on the Supreme Court are all individuals.  While it's easy to say that Ginsburg, Kagan, Sotomayor, and Breyer are generally on the liberal side of things while the others are generally conservative, that's misleading.  They all shift sides at least occasionally, have their own perspectives, interpret the Constitution in their own distinct (yet overlapping ways).  Tribe and Matz lay it out in their Prologue (footnotes omitted).
Of course, an effort to understand the Roberts Court—much like an effort to understand the Court at any point in history—must reckon with more than just its results. The Court issues opinions in which the justices grapple with fundamental principles, argue over what the Constitution means and what role they should play in giving it life, and offer signals of where they are heading. These opinions open a window into the justices’ hearts and minds, giving us a glimpse of how they view the world. In many cases, the justices’ decisions, as well as their concurrences and dissents, also exert a magnetic pull on American life, both in their practical effects and through their bold interventions in our discourse. When Justice Sandra Day O’Connor warned that “a state of war is not a blank check for the President,” and when Roberts condemned the “sordid business” of “divvying us up by race,” they spoke to the public about constitutional values in ways that can’t simply be reduced to how they voted in those cases.
. . .
To that end, we do not adopt a standard convention in books about the Court: the “deep explanation.” We do not point to a strong left/right split, a partisan realignment, or a dispute over legal method and then argue that the life of the Court really boils down to that story. We do not claim that the Roberts Court is ultimately about a fight between “activism” and “judicial restraint,” both of which are largely useless terms (all justices are “activists” in certain areas of constitutional law). We do not pick one or two justices and insist that their agendas or struggles fundamentally define the Court. Nor do we distill the Court down to “liberals” and “conservatives,” explaining cases as the result of ideological blocs and agonizing over one or more inscrutable “swing voters.”
There is, of course, much to be said for these approaches to the Court. Executed well, each can reveal important patterns, draw out the underappreciated influence of a particular justice or idea, and identify overall coherence or contradiction in the Court’s undertakings. Yet writing about the Court is not like examining the physical universe. Whereas scientists can at least strive for perfection in their models, only a madman or a fool would ever claim to have fully explained the Court. At times, this realization can inspire an intense frustration: scholars of the Court inevitably feel as if they are trying to nail jelly to the wall, to borrow an apt phrase from Teddy Roosevelt. In the end, though, accepting this limitation is liberating. It points the way toward a more ecumenical mind-set that can shed valuable light on the Court by approaching it from many angles at once.
Focusing their attention on 9 subjects (Equality, health care, campaign finance, free speech, gun rights, presidential power, privacy, trading rights, access to the courts), Tribe and Matz parse Court opinions, concurrences, and dissents.  They explain how each of the justices applies his or her approach to the Constitution in this or that case.  They explain how all these are "hard" cases because there are competing interests involved.  That's so, and the cases are hard, even on the rare occasions when the cases - I'm talking here about the ones they discuss - result in complete agreement and no recognition that there are interests at stake other than those the Court honors.

There's much to be said for this. Tribe and Matz are lucid explainers of what really can be horribly convoluted and confused.  They're good at clarifying nuance, at making plain.  And they really don't oversimplify.  The Court isn't just a bunch of right wingers who occasionally break ranks and vote for some liberal idea. They understand that and convey it. Judge Kopf calls Uncertain Justice a "mature book for mature people."  Which isn't wrong.

If you don't follow the Court regularly, this is a fine introduction.  Would be law students might fruitfully read it.

And yet.

Tribe teaches law at Harvard.  He's been doing it for a long time.  He wrote the major general treatise on constitutional law.  Matz was his student.  They taught a course together.  Matz is, I read somewhere, going to be clerking for Anthony Kennedy next term.  Tribe himself clerked at the Court decades ago, and he's argued something like 35 cases there.

All that helps explain how it is that they understand the Court so well.  But it's also, I think, the genesis (or at least part of the genesis) of the problem.  Like the justices themselves, Tribe and Matz are insulated and isolated from the real world.  Where they live and teach and do their work, the Rule of Law rules.  

They see 9 brilliant men and women, striving every day to understand and apply the constitution, always acting in good faith and with utmost sincerity.  It's surely true, as they write, that none of the 9 ever says,
"I’m a [liberal/conservative], so what does that mean for my vote here?”
But that's so obviously true that it's trivia.  What does happen is that their character, their politics, their cultural preferences, their backgrounds, have enormous influence on their votes and their opinions. \ They decide the hard cases in exactly the opposite of the way law faculty mostly understand and law students are mostly taught.  

Here's the law school model.
  • These are the facts.
  • The Constitution says ___ and is best understood as requiring outcome ____ to these facts.
  • Therefore ____.
Judges, lawyers, presidents, you dear readers, may disagree about just which thing the Constitution says is most relevant and (or) about what outcome best follows from whatever that provision is.  But the model holds true.  Or so they say in the law schools.

 There are, no doubt, times when that's just what happens.  In fact, it happens often.  Because most cases are easy and there's really no question how they'll turn out.  Those cases rarely end up in the Supreme Court.  Up there, and in the tougher cases down in the trenches where nearly all the real action is, it works like this.

  • These are the facts.
  • _____ is the outcome I'm going to reach because it's the only right outcome on this facts.
  • Fortunately, there's some provision of the Constitution that can be crammed together with those facts to lead to that outcome.

I'm not saying it's conscious.  I doubt that it generally is.  But it's real. 

To fully understand the Court, you need to grasp that.  Unless you're a law professor (or law student). It's the difference, ultimately, between the Rule of Law and the Law of Rule.  And its the one thing about the Court that Tribe and Matz don't quite get.

As I say, it's a good book, an important one.  As Judge Kopf says, it's a mature one.  

Just with that caveat.  Uncertain Justice that way, too.

Thursday, July 17, 2014

life in prison, with the remote possibility of death.

Cormac Carney went to the Air Force Academy for a year, then transferred to UCLA where he played football.  He played professionally for a year after college, then went to Harvard for law school.  In January 2003, Bush the Younger nominated him to be judge of the U.S. District Court, Central District of California.  He was confirmed by the Senate three months later.

None of that, except indirectly the fact that he's a judge, is why I'm writing about him.  Hell, it isn't why I wrote about him in 2009 or 2011, either.  I write about him every couple of years because every couple of years he does something remarkable from the bench.
He holds the government accountable for its misconduct in prosecuting folks they think are bad guys.
Judges just don't do that.  On the rare occasions they acknowledge that the government cheated, they blow it off.  It was inadvertent.  It didn't matter anyway.  Can't make an omelet without breaking a few eggs.  But Carney.

In 2009, he dismissed, with prejudice, fraud and conspiracy charges against Broadcom.  
Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anything to intimidate or improperly influence witnesses. Sadly, government did so in this case.
In 2011, he was the judge in Islamic Shura Council of Southern California v. Federal Bureau of Investigation. The government's lawyers lied to him, and he called them on it.  They said they had a right to do it.  National Security and all.  Because terrorism.    To which he said, fuck you. (Though not in those words.)
The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.
Wednesday afternoon, he did it again.  This time it wasn't prosecutors or lawyers.  This time it wasn't the feds.  It was, instead, California.  Which in a detailed, carefully laid out and factually delineated 29 page opinion he excoriated for creating a systematically dysfunctional death penalty system.  It's captioned
It's not that he says the death penalty itself is a problem.  It's the way California implements it.  Here's the guts of it, laid out in the first two paragraphs.
On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 
There are, Judge Carney points out, since California's death penalty law took effect in 1978, more than 900 men and women have been sentenced to die.  13 have been executed.  93 have died of natural causes, drug overdoses, homicide, or suicide. 1 was killed by another state. There are, today, 748 on death row.

Why the problem?  Why can't California be Texas (or Ohio)?  Because it won't provide the resources. 

Every death sentence must be reviewed by the California Supreme Court.  
To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel. See Cal. Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them.
(Footnote, explaining that they're all indigent, omitted.)

But why that delay?  Oh, cause California cut the funding of public defenders to do the work and won't pay enough for appointed counsel to take it on.  Same for state habeas relief where the state won't provide the necessary funding for lawyers or investigators.

So, because California insists on having a death penalty but refuses to provide the resources necessary to make it functional, it just has a system of (one more time) 
life in prison, with the remote possibility of death.
And that possibility isn't merely remote.  It's also random, arbitrary.  Under the circumstances, and because of California's actions not the inmates', the law loses any deterrent value it might otherwise have and fails even to provide meaningful retribution.  Or so he says.

And that's unconstitutional.

Kamala Harris, California's Attorney General, says that she's reviewing the decision to decide whether to appeal.  It's hard to imagine that she won't.  And hard to imagine that if she does Judge Carney won't ultimately be reversed.  

Not because he's wrong.  But because he's right.

Because Law of Rule.

Wednesday, July 16, 2014

Especially When It's Hard: Falling on One's Sword

I got a call today from a good lawyer hoping I could give him some advice.  He'd been appointed to do an appeal on behalf of a guy whose trial counsel was, to put it delicately, horrifically incompetent.  So bad that after he filed his brief in the court of appeals explaining just how and why the trial lawyer fucked up so badly that he didn't even reach the insanely low bar of constitutional effectiveness (hold a mirror to the lawyer's nose; if it fogs up, he was sufficiently competent), the prosecutor filed a brief saying agreeing that the lawyer was so bad that the client should get a new trial.

That is, frankly, unheard of.

But then, trial counsel (no newbie, by the way but a lawyer of long, albeit undistinguished standing) got hold of the client at the state run bars and breakfast.  Hey, he said, I'll file a motion asking the judge to cut you loose on probation if you'll just withdraw that appeal.  Hell, all you get from an appeal is a new trial.  I'm offering you a chance to get out now.  And you know, I won't even charge.

Of course, no guarantee, either.

Not surprisingly, the client was sore tempted.  Bird possibly in the hand or another trial - and maybe a plea to less time than he's doing.  Except, of course, it wasn't about the client.  it was about the lawyer who was damn sure he didn't want the court of appeals spitting out an opinion explaining that the client would have been better off represented by, say
I've written before about lawyers more concerned with themselves than with their clients.  Hell, I've had a whole series of posts I called "Selling Out the Client."  This guy's story would fit comfortably there. But been there and done that.

He's not the worst of the herd.  He's at least offering a free, potentially useful service in exchange for burying his failure. Anyway, I'm writing about him as a set up to talk about the other sort of lawyer. The kind who, when they fuck up* fess up.  Fall on their sword.

This guy, for instance.
 He's Steven O'Connor, and if the picture (from his LinkedIn page) is a little goofy, hey, he's from California.  And he's been practicing law since 1989.  And now

Rosalio Ahumada has the story in the Modesto Bee.
A defense attorney on Tuesday defied a judge by refusing to continue with the sanity phase of a Turlock murder trial. The judge was forced to suspend the trial and remove the attorney, who now faces court sanctions and discipline from the State Bar of California.
Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.
“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”
And the judge huffed and puffed and threatened.  And O'Connor stood his ground.  And the judge did find him in contempt.  And she is reporting him to the bar.

Read more here:
Scott Greenfield notes that we can't tell from Ahumada's story just why O'Connor thought his trial phase representation incompetent or why he thought he could not be competent at the sanity phase. The answers likely matter - or they will - to his client, "Nicholas John Harris, who was found guilty last month of second-degree murder and arson in the stabbing death of Mark Anthony Henson."  And they may matter to the State bar.

They don't matter here.  O'Connor agreed to represent Harris.  For whatever reason, he did a terrible job.  Then he owned up to it.

It would have been simple enough to blow it off.  O'Connor could have showed up for the sanity hearing.  He could have done a great job or a mediocre one or something truly piss poor.  The likelihood is that it wouldn't have mattered - except maybe to Harris.  If the quality of his work were challenged on appeal, given the standards courts use, it almost surely would have been close enough for government work.

But O'Connor didn't.  He took the heat.  And what's pretty clearly a major hit to his career.

Because he understood that one thing, understood and acted on it.

It's never about us.  When we take that oath, we're saying that the client's interest comes first.  It comes before the vacation.  It comes before family and friends.  And it sure as hell comes before professional reputation.

We all know that.  O'Connor just lived it.  Which puts him in the pantheon.  And his career likely in the shitter.

Scott says he'd buy him a drink.
Even though he won’t be given any awards for his representation of Nicholas Harris, if I was out in Modesto, I would buy Steven O’Connor a drink. And I bet he could use one.
I would, too.  But I'm not there.  So I'll just hoist a glass in his honor.

Here's to you, Steve.  A lawyer with balls.  And integrity.

* And really, we all do, to a greater or lesser extent, at one time or another.  We ask a horrifyingly stupid question.  We fail to ask a question we should have.  We miss a legal point - obvious or obscure that would have helped the client.  We give advice that turns out to be wrong.  We blow a deadline. Something.  Most of the time it doesn't change anything.  Often the fuck up can be cured.  But still.

Tuesday, July 15, 2014

A Bit of Elmer Gantry in All of Us

In July, 2011, I began a post this way.

Mark Stroman
Rais Bhuiyan
The guy on the right is Mark Stroman, and the Great State of Texas plans to murder him on Wednesday.
This post is not about him, except incidentally.
The guy on the left is Rais Bhuiyan.
This post is pretty much about him.
On September 21, 2001, the guy on the right shot the guy on the left in the face, hoping to kill him.  Just as he'd killed Waqar Hasan on September 15 and as he would kill Vasudev Patel on October 4 of that year.  His death sentence is for the murder of Patel.  It was a hate crime.  All three shootings were.  Stroman, a white supremacist, was targeting men he believed to be of middle eastern descent in revenge for the September 11 acts of terrorism. 
Except Bhuiyan didn't die.  And in the last few months, he's undertaken a truly daunting task.
He's trying to save Stroman's life.
* * * * *
That was the second time I'd written about Rais Bhuiyan.  The first time, a couple of months earlier, I gave Bhuiyan's account of what Stroman did to him, quoting the Dallas Morning News, where it sits behind a paywall.
"Where are you from?"The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunbglasses and a baseball cap, and aimed the bun directly at my face as I stood over the gas station register."Excuse me?" I asked.As soon as I spoke, God sent some angel, and I turned by face a bit to the left; otherwise, I would have been blinded in both eyes, instead of just one. I felt the sensation of a milion bees stinging my face and then heard an explosion. Images of my mother, father and finace appeared before my eyes, and then, a graveyard. I didn't know if I was still alive.I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, "Mom!" The gunman was still standing there. I thought," If I don't pretend I'm dead, he'll shoot me again."
And I also quoted Bhuiyan's explanation for his plea.
I am requesting that Stroman's death sentence be commuted to life in prison with no parole. There are 3 reasons I feel this way. The 1st is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The 2nd is beacuse of what I believe as a Muslim, that human lives are precious and that no one has the right to take another's life. In my faith, forgiveness is the best policy, and Islam doesn't allow for hate and killing. And, finally, I seek solace for the wives and children of Hasan and Patel, who are also victims in this tragedy. They have already suffered so much; it will cause only more suffering if he is executed.
* * * * *
Not surprisingly, there's more to the story.

Of course, there's the obvious more.  Texas didn't give a shit.  Victims who don't want vengeance don't count.  Bhuiyan's international efforts to save Stroman?  Nah.  His lawsuit, insisting that Stroman should remain alive while he had the chance guaranteed by Texas statutes to meet with him and pursue reconciliation?  Not a chance.  Stroman was executed July 20, 2011, just 4 days after that second post. 

But that's just the obvious more.

There's all the rest.  How did it happen that Rais Bhuiyan went from Dhaka in Banghladesh, spent a couple of years in New York, and ended up working at, and nearly dying at, a mini-mart on the outskirts of Dallas?  What happened during the ten years from when Stroman shot him that at the end turned him into an impassioned advocate for his would-be killer's life?  And what afterwards?

And then there's the other guy.  Who was Mark Stroman, anyway?  What drove him to become a one man anti-whoever exactly-it-was avenger, a self-described "American terrorist," for what happened that day in September 2001?  And how, Where did he come from?  And how in the world did he view the guy he shot in the face but was now trying desperately to save his life?

Inquiring minds, as they say, want to know.  Anand Giridharadas was one of those inquiring minds. He's a columnist for the Times, one of those biographical facts that shows up on book flaps, like the fact that he lives in Brooklyn, really of no moment.  But he's also the author of the book that has those factoids on its flap.  It's The True American: Murder and Mercy in Texas, and it's terrific.

The question that haunts, really, is the one embodied in the title. Who is the "True American"?

Is it Rais?  He left a promising career in the Bangladeshi Air Force to come to the US, raise the money to bring over his fiance, and carve a new life for himself.  Instead, he was shot, lost nearly all the sight in one eye, underwent four surgeries, found himself with some $60,000 in hospital bills and no job.

Well, no job until he caught on as a waiter at the Olive Garden. That's where he had to learn to recommend the appropriate wines with the meals, to discuss their character, to push them.  First, though, he had to convince himself that although as a devout Muslim he never had and never would have even a taste of alcohol, God would be OK with him selling what he was forbidden to drink.  But once he did.
For Rais, the greatest challenge remained alcohol.  On a good night, it could account for most of server's tips.  Rais, devout to the bone, was also pragmatic and driven enough to decide that if one was going to sell alcohol to the godless, one might as well be good at it.  
That's a quintessentially American drive.  And Rais proves to be a terrific salesman - of wine, and of himself.

He loses his fiance, but he manages a lifelong dream and takes his mother on a pilgrimage to Mecca. Which is where he remembers the promise he'd made while lying in a pool of his own blood on the floor of that mini-mart.  That if he survived, he'd dedicate his life to doing good works.  And so . . . . But of course we know that part of the story.

There's some Elmer Gantry in there along with rather a lot of Horatio Alger.  And more than a smidgeon of one or another saint.  Not hard to find a lot of True American in that kid from Bangladesh.

But maybe it's Stroman.  He's alive, his mother told him more than once, only because she couldn't raise the last 50 bucks she needed for an abortion.  Raised in poverty.  Grew up in a world of country music, NASCAR, motorcycles, guns, violence, and gung-ho Americanism.  There were the swastika tattoo, the hero worship of Hitler, the open racism.  There was the criminal record.  And always the open racism.  Dallas, he thought, was the greatest place in the greatest state.  Easy for him to say since he'd never lived anywhere else.

And yet.  Stroman is befriended by Ilan Ziv, an Israeli filmmaker.  He has supporters around the world. His victim from Bangladesh wants to save his life.  And he repents.  Maybe.  Changes.  Maybe.  Or maybe it's an act.  His version of a sales job.  Like Bhuiyan talking up the virtues of this or that wine. His siblings wonder.  But then there are his kids.

They didn't get to Huntsville for his execution, but they had a few minutes on the phone.  Amber:
Dad, I'm not CNN news; I'm ot your publicity crew.  I want to know where you're at in your spiritual life.  Because I worry about that, and I stress on that.  I mean, after you're gone, where are you going?
On the outside, before this, he'd "said little about God to her."  Now, she thought, he sounded "like a true believer."

To Erika he offered a bit of advice.
I'll always be the same fucking knucklehead that I've always been.  But if you don't know God, let Him into your life."
Like I say, maybe.  There's some Elmer Gantry in Stroman, too, though not much Horatio Alger.  
* * * * *
The thing is, there isn't a simple answer.
Rais's contact with the more rooted underclass was an education.  What struck him at the Olive Garden, making these new friends, was that the Americans he worked with didn't share his ability to reimagine and remake himself.  They seemed not to know how to take advantage of their own, fortunate country. And they were often left to themselves, without anyone to cushion their falls or witness their triumphs.
In Rais Bhuiyan, there's one American.  In Mark Stroman, there's another.  Neither quite so simple as he seems at first.  Which is, after all, the point.

Murder and Mercy.  



Thanks to the good folks at W.W. Norton for sending me a copy of the book to review.

Friday, July 11, 2014

Third Manassas

They backed down.

This time.

The cops in Manassas, Virginia got a search warrant allowing them to medically induce a hard-on in a 17-year-old boy, take pictures of his erect penis, and have some dirty-old-man penile expert compare their pictures to ones they say the boy took himself so that they can prove he made kiddie porn of his own penis.  So they can prosecute him for the felony.

I mean, what's the big deal?  They already forcibly took pictures of his flaccid penis, so it's not like they haven't already sexually abused him once.  And if the first not-quite rape didn't satisfy. . . .

And when they're done?  Prison.  Lifetime registration.  After all, he took a photo of his penis.  (They did, too, but he took his picture willingly and for his girlfriend who first sent him pictures of herself naked, but that's OK because Hoo Ha! Pussy!  For the cops, on the other hand, it's all about inflicting justice on the miscreant, so they can sexually assault the child with impunity, because they seek only to punish him for having a picture of his penis which is altogether different from them having a picture of his penis.)

There was, as you might imagine, some indignation among the usual folks who are soft on crime.  You know, Emily Bazelon at Slate (who doesn't really believe it) and Rick Horowitz and Scott Greenfield.  And apparently everyone else, too.

And so the cops and the prosecutors issued a statement saying that they don't do shit like this and haven't actually done it in this case.
It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case.
Which seems to be true, since the kid got permission to skip town for the weekend and they wouldn't get to make their kiddie porn until he got back.

But that was so Wednesday.  By Thursday, with the firestorm breaking all around them, the cops backed off.  Matthew Barakat in the Huffington Post.
Police in Virginia on Thursday backed off efforts to take sexually explicit photos of a 17-year-old to prove a sexting case against him.
Police and prosecutors faced a wave of criticism following news media reports that they had obtained a warrant to take photos of the teen's erect penis. Police wanted the pictures to compare against photos he is accused of sending to his 15-year-old girlfriend at the time.
On Thursday, Manassas Police Lt. Brian Larkin said the Police Department will not proceed with the plan to take the pictures and will let a search warrant authorizing the photos to expire.
That's a good thing, of course.  And maybe it says something about the ability of quick and loud and universal scorn to have some effect.

So let's have a moment of pleasure that they backed down.  And then let's remember the rest.  
And they sure as hell intended to execute it.  And if you don't think they won't do it again.  Or the cops a few zip codes over.  Or the ones in your neighborhood.  When they can keep it under the radar a bit.  

Law of Rule.

* * * * *
First and Second Manassas were battles of the civil war.