Monday, May 18, 2015

Resuscitating the Dying

It was 20 years ago when Clifford O'Sullivan sat on the witness stand in a California courtroom.  He was six years old.  He could barely see above the railing.  But he was there to testify.  

Eighteen months earlier, his mom, Kellie, was on her way to pick him up from day care.  She didn't get there. Some time later they found her body. She'd been abducted, taken into the mountains off the Mulholland Highway, and shot to death.

Now, six-year-old Clifford was on the witness stand.  Mark Scott Thornton had been convicted of the murder.  Clifford knew what should happen.  He told the jury.
All I think is that what the bad man did to my mom should happen to him.
The jurors agreed.  They voted for death and Thornton went to death rown at San Quentin.  Where he remains.  20 years later.

Let's pause for a minute to remember happier times.  Here's Kellie with Clifford.
Here they are again.

She was, he told the jury, that day 20 years ago, 
one of the greatest mothers I've met.
And you can just see that was true.

And for a boy without a mother, who's mother was ripped from him, brutally murdered.

Jessica Bliss in The Tennessean (I've turned a few of her passages into a set of bullet points here, but all quotes in this post are from her article.).
  • At age 10, he experimented with drugs and alcohol. He burglarized. At 15 years old, he was caught with cocaine but never charged. Instead, he went to rehab in Northern Idaho.
  • Alcohol, drugs, rehab. Estrangement from his father. Adoption of Buddhism.
  • [R]ural India, where a yearlong vow of silence and self-induced starvation caused liver failure and nearly killed him.
One of the things he's learned.
You don't heal.
I need to show you another picture now.

In the Nashville emergency room where he works, O'Sullivan's primary responsibility is to resuscitate the dying.
The 26-year-old nurse must stabilize trauma victims, keeping them alive long enough to get them to the operating room or intensive care unit where lifesaving work can be done.
He calls it a privilege.
Resuscitating the dying.  Which is where this is going.

Because Clifford, that's him on your left, arranged a visit to San Quentin.  To see Mark Scott Thornton.  (On your right.)

They spoke for 5 hours.

Oh, wait, I didn't tell you about the picture.  Sorry. That's Clifford on your left.  
They spoke of responsibility, and about the last time they saw each other, 20 years ago, sitting across a courtroom.
They spoke about the crime itself — and how they felt inescapably linked.
There were times during those hours, lots of them, when Clifford . . . .  You know, this is tough.
There were a few seconds of every minute during that five hours when he questioned how to separate those emotions from his intellect.
. . .
"For now," O'Sullivan recalls Thornton saying, "let us focus on making sure that the next 20 years are not a reflection of the past 20 years."
"Let's find meaning in this, for your sake, for mine and for your mother's."
At six, if he'd been able, he'd have torn Thornton to pieces.  That, he thinks, would have been justice.

He's not six any more.  He's been through a lot.  But it's damn hard. 

Of course, California doesn't actually kill any of the hundreds and hundreds of people on death row. Still.
But right now he believes that one man, Mark Scott Thornton, should be saved.
"If they put him up for a date I would stop it, just like I started it," O'Sullivan says.
"It wouldn't happen. Over my dead body."
Which is of course, why I tell these stories.

Six Long Years

Six years.  I've been doing this thing for six years now.  The first post was May 18, 2009.  I just looked up the numbers.  When this one is published, I'll have put up 1198.  There are another couple of hundred I've started but abandoned for one reason or another.  

This is a hobby, not an obligation.

I began when I returned to private practice after 5 years as legal director of the ACLU of Ohio.  I figured it would generate business.  Quickly, I concluded that I had neither interest nor skill at writing the sorts of things that were likely to generate business.  I write this because it gives me satisfaction. Bill Otis says I'm so hyperbolically defense oriented that no fair minded people will read this.  That's the pot calling the kettle black, but I'm OK.  Bill's welcome to drop by or ignore me as he sees fit.  So are you, whoever you might be.

But my business plan.  Pfeh.  In terms of raw profit, the blog has pretty clearly cost me more than I've made from it.  (Fuck you, Rakofsky.)  Anyway, I'm out of private practice now, so there's no shot at a profit motive.

And yet I persist.

Thanks for reading.

Tuesday, May 12, 2015

On Juries

I’m not absolutely sure that it’s not Pedro Hernandez. But that’s my how our legal system works.
Adam Sirois, the lone juror who voted not guilty in the Pedro Hernandez trial. Consistently. Over some 100 hours of deliberations.

Adam Sirois, who doesn't know whether Pedro Hernandez abducted and killed 6-year-old Etan Patz in 1979.

He sat and listened to all the testimony. As did the other 11. He paid attention to it all. As, we must assume, did they.
At times he was certain Hernandez did it. At the end, the other 11 were. But after all was said and done, he wasn't sure enough. Reasonable doubt. 11-1. Which means that Pedro Hernandez is innocent.

Even if he did it.

If you can't understand that, if you can't accept that, then ours isn't the system for you.

Pedro Hernandez is innocent. Wholly, completely, totally innocent. So are you.

It's not that as a matter of historic fact he did not abduct and murder Etan Patz. Maybe he did. Maybe he didn't. I don't know. You don't know. Adam Sirois doesn't know. Neither do the other 11 jurors. 

I've said this before, but it bears repeating.  Trials are not about truth.  They're not about what happened.  They're about proving things - elements of crimes we call them - to the satisfaction of 12 jurors.  Beyond a reasonable doubt.  Whatever that might be.

The prosecutors proved what they had to, proved to 11 jurors, those elements.  From which they, the 11, said Pedro Hernandez was guilty.  Adam Sirois wasn't convinced.  He didn't believe it beyond a reasonable doubt.  Whatever that might be.

And so Pedro Hernandez is innocent.  Wholly, completely, totally innocent.

Even if he did it.

Which maybe he did.  And maybe he didn't.

That, my friends, is the American Way.
* * * * *
It is, of course, also The American Way that even though the Constitution guarantees that nobody can be tried twice for the same crime, prosecutors plan to try Pedro Hernandez again for the same crime. And the Supreme Court says that's just fine.  Being tried twice for the same crime, you see, is just fine as long as it isn't being tried twice for the same crime. 

Because criminals. 

Wednesday, May 6, 2015

Grandpa Will - Fugitive From Justice

Assuming Florida extradites him what then?

Frank Freshwaters is 79.  Which means he was around 24 then, 22 when this all started.  

It started with an auto accident.  He was driving 50 in a 35 zone.  Hit and killed a guy.  Entered a guilty plea to involuntary manslaughter, got sentenced to 5 years probation with up to 20 years of prison hanging over his head if he violated.  A few months later he went and got himself a driver's license.  That was a violation and the judge shipped him.  After 8 months behind bars, theoretically facing another 19 plus years, he was transferred to an honor farm.  

From which he walked away.  In September.  1959.

He's been living in a trailer near Melbourne, Florida for 20, 30, maybe close to 40 years  (He was tracked down in West Virginia in 1975, but the authorities there wouldn't extradite him.)  At the end of a road.  Pretty much in the middle of nowhere.  Staying out of trouble.  Plays the guitar.  Hunts some.  Drove a truck for years.  Retired now and living on social security.  Known as William Cox.

Now they've got him.  No violence.  He fessed right up when they showed him a picture of this 23-year-old con and asked if he recognized the guy.

The plan is to bring him back to the Buckeye State and charge him with escape.  And of course there's the rest of that prison sentence (up to 20 years, you'll recall) still to serve.

Judge Kopf fielded a question the other day from a "trainee solicitor" about how to sentence someone who's going to be dead very shortly - perhaps even before he'll start serving his time.  What, exactly, is the point of locking up the physically helpless and soon-to-be-dead, she wondered.  It's a question worth exploring (one of these days, perhaps).  But that's not this question.

This question is different.  This question is what do we do about William Cox, who once was, and in some sense still is but in a larger sense surely is no longer, Frank Freshwaters?

There are, the courts say, three approved reasons for punishment.
  • Specific deterrence (so you won't do it again)
  • General deterrence (so other people won't do it)
  • Retibution (the close sibling of revenge, differing mostly by sounding less bloodthirsty)
Where does any of that apply?

Ohio's sentencing law today (and of course Freshwaters/Cox's old sentence wasn't imposed under today's sentencing law, and if charged and convicted of escape it won't be under today's law, either) says that the primary purposes of sentencing are to protect the public and punish the offender.  And yeah, Freshwaters/Cox hasn't been formally punished for escape, and hasn't been fully (at least per the court's order back then) punished for killing that guy while speeding through Akron.

Still, real people in the real world don't often fit neatly into packages.

J.D. Gallop in USA Today tells of the past and the present.  And adds this:
Shirl Cheetham, 34, of Palm Bay said she had known Freshwaters — or William Cox as she knew him — for nearly 15 years. She's heard his jokes, listened to him play guitar and even went hunting with him. She also says the man her children call "Grandpa Will" was the best man at her 2012 wedding.
"He is just the sweetest man. ... I'm shell-shocked. After all this time, how he managed to keep from getting caught. He stayed out of trouble all this time," Cheetham, adding that she does not plan to tell her children about the arrest just yet. "I'm still trying to wrap my head around it."
Cheetham said Freshwaters attended West Melbourne Community Church from time to time and volunteered in a thrift store.
"This is someone who loved to laugh. I honestly think they should let him go," she said.
On the other hand, consequence.

Frank Freshwaters and William Cox

Tuesday, May 5, 2015

Got Plans for the Next 3 Years? How about Burning Someone at the Stake?

In May, 1984, John David Stumpf shot and killed Mary Jane Stout.  (He shot her husband, Norman, too, but Norman didn't die.)  He's been sitting on death row in Ohio for the last 29 years.

In January 1997, Doug Coley shot and killed Samar El-Okdi. He's been on death row in Ohio since 1998.

In June 2001, Stanley Fitzpatrick killed Shenay Hayes, Doreatha Hayes, and Elton Rose.  He's been on death row in Ohio since 2002.

This morning the Ohio Supremes, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set dates for their executions.  January 3, March 14, and May 30.

Of 2018. 

Yep.  Around three years from now.

They say that justice delayed is justice denied.  I say, regularly in these posts, that I don't know what justice is.  I do, however, sometimes know what it's not.

If it made sense to kill Stumpf and Coley and Fitzpatrick, if it was wise and moral and proper, if it was just frgodssake, maybe years ago.

Stumpf, if they kill him as now scheduled, will have been on death row for somewhere close to 34 years.  There are reasons, of course.  He was one of the early cases.  The Ohio Supremes were still working at getting a handle on how our death penalty law works.  (It keeps changing, and the Supremes keep fiddling with how it works, but in the early days of the law there was a whole lot more uncertainty.)

And every case has issues that need to be resolved.  And good god, Ohio just released three guys who'd each spent 39 years in prison for a killing they didn't commit.  I mean, it's worth taking the time to be sure.

But 34 fucking years?

Well, yeah.  'Cause that's what it takes.  And even then there are issues, and frankly, I'm far from convinced any of these three will get killed as scheduled.

So we have a system that's expensive and disfunctional.  It denies justice.  It's imperfect.  And oh, yeah, it's immoral.

But by god, we've got plans for 2018.

* * * * *
I was just looking in my calendar.  I don't have anything scheduled after a doctor's appointment in September of this year.  

2016?  2017?  Hell, I've got more than two years of nothing before they plan to kill Stumpf.  

Of course, he doesn't have anything scheduled either.  Except for when they do the count every day to make sure none of the guys have escaped.

* * * * *
Meanwhile, at the Supreme Court of the United States, they're working on the really important issue:
When is it constitutional to burn someone at the stake?
The case is Glossip v. Gross and the formal subject is Midazolam and the dangers and incompetence of lethal injection as a method of government sanctioned murder (why don't we just take these guys out with drones?) as demonstrated in Ohio and Oklahoma and Arizona.  But when you're a SUPREME COURT JUSTICE you can ask pretty much anything you want during oral argument.  

Which Elena Kagan did, posing the question to Patrick Wyrick, Solicitor General of Oklahoma who responded:
                   JUSTICE KAGAN:  So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects.  Maybe you won't feel it, it, maybe you will.  We just can't tell.  And ­­-- and you think that that would be okay.
                 MR. WYRICK:  I think that that ­­ a Petitioner in that case would have no trouble meeting -- satisfying the burden this Court imposed in Baze, which is showing that that puts me at a substantial risk, objectively intolerable risk of severe pain.  That -- that threshold showing would be incredibly easy to make in that case.
                 JUSTICE KAGAN:   No, I'm -- I'm saying, because you just don't know about the anesthesia.  Maybe the anesthesia will cover all that -- the pain of being burned at the stake or maybe it won't.
When Robin Konrad who represented the guys on the row in Oklahoma stood up for rebuttal, Sam Alito (who's concerned about guerrilla warfare on the death penalty) returned to that all-important constitutional question. 
                          JUSTICE ALITO: But you're not sure that being burned alive ­­ that you think there are circumstances in which burning somebody at the stake 17 would be consistent with the Eighth Amendment?
                         MS. KONRAD: It is ­
                         JUSTICE ALITO: It's an irrelevant point, but you're ­­ you're not certain about that?
                         MS. KONRAD: Well, what I'm saying is that this Court has --­­ the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It's cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That --­­ I don't think that any ­­ any State would go to try to do that, because we move forward evolving ­­--
                         JUSTICE ALITO: That's an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?
So there it is.  The Oklahoma Solicitor General, who favors lethal injection, tells Kagan that burning at the stake is always unconstitutional.  The lawyer for the guys on death row tells Alito that, hey, maybe it would be OK.

Really, you can't make this shit up.

Thursday, April 23, 2015

Nobody's Said It Better

April 23 is World Book and Copyright Day (also known as the International Day of the Book).  It's organized by UNESCO to 
recognise the power of books to change our lives for the better and to support books and those who produce them.
I think that's pretty cool.

It's also the accepted date for Shakespeare's birthday.  We don't know exactly when he was born as there is no birth record.  But we have baptismal records.  They show he was baptized April 26, 1564. Baptism at that time and place generally occurred around 3 days after birth.  So . . .

Besides, we know that Shakespeare died on April 23, 1616, which lends an appealing symmetry to his life.

In honor of World Book Day and of Shakespeare, and in recognition of one of this blawg's major themes, from The Merchant of Venice.
The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
‘T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthron├Ęd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew, 
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy.

New Motto: Tough But Incompetent

This seems to be the argument.

  • The buck stops here, so I take responsibility.
  • But it's everyone else who's supposed to tell me what to do.
  • And then I tell them to do it.
  • But they don't properly tell me what to do.
  • And I don't actually tell them to do it.
  • And I always say what I mean, but I often fail to say what I mean and in fact say something else.
  • So the buck stops here, but I'm not responsible.

Or something like that.

We know Sheriff Joe has admitted that he didn't do what the court ordered him to.  Yesterday he testified at his contempt hearing.
He told plaintiffs' attorney Stanley Young that he remembered hearing about the preliminary injunction when it was issued but said he didn't have knowledge of all the facts of the order.
"I delegated this court order to my subordinates and also to my counsel that represented me," he said.
Arpaio said he didn't recall if he ever did anything to ensure his office was complying with the order, saying he handed over the task to his former deputy chief, Brian Sands.
Hey, what more can you expect from the Toughest Sheriff in America™? John Wayne wouldn't ask questions. John Wayne would just say,
Do it, Pardner!
Same as Joe.

And if Pardner Sands doesn't do it? Shit, he explained that he delegated to his lackeys.
Earlier in the day, Sands also distanced himself in testimony from enforcement responsibility, telling his attorney that it was typically his subordinate's duty to implement training materials. Sands said he didn't know why the training module was never completed.
Whole fucking department is incompetent.  Ain't the fault of management, for god's sake.

And sure, his press releases have him saying things he didn't mean like he was going to keep going after immigrants when he meant illegal immigrants.  

But hey, he's the Toughest Sheriff in America™not some fucking pantywaist English professor.  And anyway, what's the difference between immigrants and illegal immigrants?*


Sheriff Joe, pressing the Law of Rule.
*He didn't really ask that question aloud.  But he knows the difference:  Immigrants come from places like Canada and Sweden and Germany.  Illegal immigrants come from Latin America.  

See how easy that is.