Thursday, November 19, 2015

For Your Own Good - UPDATE

Perhaps they meant well.

But the road to hell is, you'll recall, paved with good intentions.

And seriously.  I mean, I want to put this as gently as I can.
OK, I'm better now.

It's sort of about this guy.

He's Raphael Holiday.  And he was murdered by the people of the Lone Star State last night.  That's not exactly shocking.  Texas had, after all, murdered 530 people before last night, way more than any of the other states. And Holiday was convicted of a pretty ugly crime.  Brandi Grissom for the Dallas Morning News.
Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together.
That's pretty cold-blooded. And it's Texas.  So. . . .

Except that's not the story.  Nor is the story that a judge this afternoon stopped the execution and then a panel of appeals judges out it back on track.

No, the story isn't really about Holiday at all.  Nor about his execution.  Instead, the story is about James “Wes” Volberding and Seth Kretzer.  They're the lawyers who ostensibly represented Holiday.  And thereby hangs the tale.

In 2011, Volberding and Kretzer were appointed by a federal judge to represent Holiday.  And they did.  They investigated, they briefed.
They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.
And of course they lost.  At the end of June, the berobed ones in D.C. refused to hear the case.

That's usually what happens.  And it ends what you might usefully think of as standard process.  It's the last of the ordinary litigation.  From here on, the lawyer's job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.  


Wes Voldering sent Holiday a letter.  Explaining that he and Kretzer were done.  Feel free, he said, to use your resources to find a free lawyer to do emergency last stage work for you. Ain't gonna be us.
The 11/2-page message informed Holiday that his lawyers would not file additional appeals or seek clemency from the governor. Neither option, Volberding wrote, presented a real chance of sparing Holiday’s life.
So Holiday wrote letter after letter to death penalty lawyers begging for help.  Nada. Nothing. Zip. Not, I think, because they were uncaring or unwilling but because what he was asking was simply more than they could take on.  Because no matter how dedicated one is, there are still only 168 hours in a week.

Holiday wrote the federal court asking to have Voldering and Kretzer removed and new counsel appointed.  Which his lawyers, who you'll recall had decided not to pursue any more relief for him, opposed.  They weren't cold hearted.  The "political realities" were what they are.  
The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
They wouldn't want Holiday to have false hope.  It was, after all, for his own good.  To help him go gentle into that good night.  

Gretchen Sween, appellate lawyer but not a death penalty lawyer jumped in to help Holiday.  Not to file new appeals or a clemency petition.  She was, she said, not competent to do that.  But to help him get new counsel.  No, said the courts.  No, no, no.  And don't come back.

Voldering and Kretzer told Sween to stay the hell away from their client.  But grudgingly filed a clemency petition in which they laid out just how horrible Holiday's crime was.  And got his execution date wrong.

Sween called it a sham.  The courts didn't care.

Last night, as I said, Holiday was killed.

There are some bottom lines to this business.  One is that while lawyers choose the tactics, the clients choose the ends.  We don't get to decide what's in our client's basic interest if it isn't what he wants. We can decide not to take a case, but once we've signed on, once we've taken the appointment, unless it's specifically limited in scope, we don't get to just walk away.  And we especially don't get to say, Well, I know you want me to do whatever might save your life, but you'll be happier not having your hopes dashed yet again. 
There's room to argue about how we do what we do.  There's really no room to argue about whether we do it. 

Raphael Holiday. R.I.P. 

UPDATE: See Scott Greenfield, Raphael Holiday's False Hope

Sunday, November 15, 2015

Constituional, Smonstitutional. Get on with It.

Doctor, when the cast comes off, will I be able to play the violin?
Of course, there's no reason you can't.
Great.  I never could before.
Which might be the story of California's death penalty.  
  • Enacted in 1973, effective January 1, 1974
  • 747 folks on death row (728 men, 19 women)
  • 13 executions, the last in January, 2006
  • Declared unconstitutional July 16, 2014
  • Nevertheless, November 12, 2015
That last requires some explanation.  The explanation requires a bit more background than those bullet points, though they set out the general idea.

California has the largest death row in the country.  By far.  One major reason:  It doesn't execute people.  In fact, the 13 executions (again, none since January 2016) are only the third leading cause of death on the row there.  Natural causes leads the way.  When 69-year-old Ronald Seaton died in September after 26 years on the row, he was the 69th person to die of natural causes.  When James Tulk committed suicide in November 2006, he was the 14th to do so. Ten more have killed themselves since then.  (Here's the chart, from the California Department of Corrections.)

There are all sorts of reasons California doesn't actually kill the folks on death row.  Some is good lawyering.  But a major reason is the failure of California's court system.  Not that it reverses death sentences.  It doesn't much.  Rather . . . . Consider Ernest DeWayne Jones.

U.S. District Judge Cormac Carney told the story (citations omitted & paragraph breaks added) in an opinion he issued in July 2014.
After Mr. Jones was sentenced to death in April 1995, he waited approximately four years before the State appointed counsel to represent him in his direct appeal. Then, another four years later, on March 17, 2003, the California Supreme Court affirmed Mr. Jones’s conviction. In total, Mr. Jones spent about eight years litigating his direct appeal before the California Supreme Court—considerably less time than the 12 to 14 years spent by most individuals on California’s Death Row.

Mr. Jones’s state habeas counsel was appointed on October 20, 2000, five years after he was sentenced to death and while he was still litigating his direct appeal. By October 21, 2002, Mr. Jones’s counsel—the Habeas Corpus Resource Center, which continues to represent him in this federal habeas proceeding—filed his state habeas petition.

Six and a half years later, and over five years after the petition was fully briefed, on March 11, 2009 the California Supreme Court denied Mr. Jones’s petition in an unpublished order. No hearing was conducted, and no briefing was provided by the State beyond an informal reply.

Finally, on March 10, 2010, Mr. Jones filed his petition for federal habeas relief. Briefing on the petition was completed in January 2014, and the Court is reviewing his claims.
Note the first problem.  It took four years, FOUR YEARS!, to find counsel who were willing to take the case an direct appeal.  It took an additional year to get HCRC involved.  It's not that easy to find lawyers who are trained and competent and willing to take on these cases for what the courts pay. Not when you need counsel for 747 men and women.  And you see, 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, California insists on having a death penalty but refuses to provide the resources necessary to make it functional.

In April, just three months before Judge Carney issued his opinion, Jones amended the 27th claim in his habeas petition.  He'd been arguing that the delay in his case was unconstitutional.  Now he added
that as a result of systemic and inordinate delay in California’s post-conviction review process, only a random few of the hundreds of individuals sentenced to death will be executed, and for those that are, execution will serve no penological purpose. 
Which is what caught on.  Judge Carney began his opinion this way (paragraph breaks added, italics sic).
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.
And so, the bottom line. Judge Carney (appointed to the bench by the lesser Bush, George W, in 2003) declared California's death penalty law unconstitutional.

When I wrote about his decision last year, I said it was hard to imagine that Judge Carney won't ultimately be reversed.
Not because he's wrong. But because he's right.
This week, the 9th Circuit did what I expected.  They reversed Judge Carney's determination that California's death penalty was unconstitutional.  The Golden State can, they said, go back to intending to kill hundreds of people - even if it never, or almost never, kills any of them.  

It's not that the court said Carney was wrong about the law being unconstitutional.  It's that he thought that meant it should be stopped.  Here's the conclusion of the majority opinion written by Judge Graber (joined by Judge Rawlinson).
Many agree with Petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary. But “the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.” Sawyer, 497 U.S. at 234. Because Petitioner asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim.
It's not enough for the law to be unconstitutional, the court said.  The Supreme Court had to have recognized that it was unconstitutional at the time Jones was sentenced to die.  Judge Watford agreed with the outcome but not the reasoning.  He figured that Carney should have been reversed because Jones hadn't given the California Supreme Court the opportunity to reject them.

Either way, of course, the result is the same.  It doesn't matter if the law is unconstitutional. California can use it to kill people anyway.  

The Criminal Justice Legal Foundation, an organization devoted to the execution of as many people as humanly possible, promptly issued a press release quoting its Legal Director, Kent Scheidegger.  "This is a major victory for justice in California," he said.

Thereby recognizing that justice (whatever that might be) has no relationship to obeying the Constitution.

Law of Rule.


Saturday, November 14, 2015


When all you have is a hammer, they say, everything looks like a nail.

And one definition of insanity is doing the same thing over and over and expecting a different result.

Thing is, Tim McGinty's not insane.  When he went to the well a third time he knew he'd get the same result.  The catch is that he thinks we'll buy it if it just gets said enough.  

This is about Tamir Rice.  Actually, it's about Timothy Loehmann, the cop who shot and killed Tamir.  The grand jury's still out on him, of course, after only a couple of months of testimony.  

That's as opposed to the 20 minutes of testimony before the GJ returns a murder indictment in the ordinary case.  But because Loehmann's a cop, the grand jury doesn't just decide whether a quick and dirty summary of the evidence against him provides probable cause to indict.  Sure it would.  Which is fine for the ordinary person.  But for Tim McGinty, Cuyahoga County's elected prosecutor to show that he won't sweep the killing of Rice under the rug, he'll prove that he treats it just like any other killing by doing things completely differently.  

Thus, the GJ won't just get the quick and dirty probable cause stuff.  It'll hear, also, all the reasons that it should not indict.  A thorough investigation, after all.

And to show just how thorough the investigation is, McGinty's hired a couple of outside experts to evaluate the evidence.  Last month their reports were released.  The special investigators, retired FBI agent Kimberly Crawford and  S. Lamar Sims, a Deputy DA from Colorado, both concluded that Loehmann was cool.  

Their reports presumably made Loehmann happy.  And gave McGinty plenty of cover for when the GJ decides not to indict (or, if by chance they indict, for when Loehmann's found not guilty).  But Tamir's mom wasn't placated.  Nor was the African-American community. Nor, really, much of anyone else who thought that cops shouldn't go around shooting unarmed 12-year-old kids.  

So McGinty got himself another expert.  Cory Shaffer at the summarizes.
"This unquestionably was a tragic loss of life, but to compound the tragedy by labeling the officers' conduct as anything but objectively reasonable would also be a tragedy, albeit not carrying with it the consequences of the loss of life, only the possibility of loss of career," wrote W. Ken Katsaris, a certified Florida law enforcement officer, instructor and consultant.
Ah yes, tragedy upon tragedy. Tamir's dead. So sorry. But his killer might (just might, hey it's possible) have to find another line of work - perhaps one where killing is actually frowned upon.


Somehow, I don't imagine Katsaris's report will placate the community either.  Shaffer again.
Activists and the Rice family decried the earlier reports commissioned by McGinty, saying they gave too much deference toward the officers, and were written by experts who are biased in favor of enforcement.
Which is, of course, true of Kastaris, too.  

Now, it's also true that none of these hacks experts considered whether Loehmann actually broke the law when he shot and killed Tamir Rice.  All they decided was that what he did was constitutional and so he can't be sued.* But who's gonna say that if the Constitution isn't violated he still might have committed a crime?  Don't hold your breath.

So here's a lesson.  When you send the cops to decide whether it's OK for cops who are afraid to kill people rather than take a chance - because it's clear to the cops whose lives matter more.  

As I said, when all you have is a hammer, everything looks like a nail.

Law of Rule.
And note that the Constitution is not offended when a cop with no need whatsoever and apparently against direct orders shoots into a moving car and kills the driver who might (or might not) have an outstanding warrant.  So said 8 Justices of the U.S. Supreme Court Mondy in Mullenix v. Luna, leaving Sonya Sotomayor alone to think that it's a bad thing for the Court to find that the Fourth Amendment (originalists take note) "sanction[s] a 'shoot first, think later' approach to policing."

Sunday, November 8, 2015

Meet the Press

It was in a section about "journalism," and they called it "When Photographs Become Evidence." Clearly, the Times (and writer Niko Koppel) thought it was about the power of the photograph to tell the story.  

And yeah, it was.  After all, it's the photos of cops arresting a teenage girl in the South Bronx (and of the cops attacking him for taking them) that led to one of the cops slamming Times freelance photographer Robert Stolarik (he was on assignment at the time) having his camera slammed into his face, getting slammed to the ground and kicked. Then, of course, he was arrested, held several hours (not longer, one suspects, because the Times) and charged with obstructing governmental administration, disorderly conduct, harassment and resisting arrest.  That was back in August.  

But the photos did change things, and that's the point of the latest Times story
The decision to drop charges against Robert Stolarik for interfering with an arrest he had been photographing in the Bronx in 2012 and instead to prosecute an arresting officer came after prosecutors scrutinized the physical evidence: Mr. Stolarik’s digital images.
. . .
What Mr. Stolarik did not realize then was that a sequence of 60 photographs he took leading up to his arrest would provide crucial evidence that not only resulted in having prosecutors drop the charges against him, but also charge one of the arresting officers instead. Last month, Officer Michael Ackermann was convicted of falsifying a record to justify the arrest of Mr. Stolarik.
“Photos played a major role in the prosecution,” said Pishoy Yacoub, a Bronx assistant district attorney. “The stills, one after the other, show the action like a cartoon flip book.”
There's more, and if you're a criminal defense lawyer or interested in the technology of metadata it's worth your time.  (And the photos and video embedded in the article are worth viewing regardless.)

But there are other stories here, too.  After all, there were bunches of cops on the scene.  At least six were in a scrum on top of Stolarik while he was on the ground.  Because he didn't put his camera away like a good boy when the police didn't want to be watched as they down a teenage girl. None of those cops tried to prevent the arrest.  None of them tried to get Ackerman to back off.  None of them insisted on telling a story that would conflict with Ackerman's. 

That's not one bad cop.  It's a bunch of them.  Even if only one got charged and convicted.

And there's another story.  Maybe more important.  After all, we know there are bad cops out there,and we know there are supposedly good cops who cover for the bad ones.  That's not news.  No longer man bites dog.  It's just another day.  Same old shit.

No, this last story is about fantasy.  It begins with what you know (if you've been paying attention) happens out on the streets.
“Nobody gets arrested for taking pictures because there is no such charge,” said Mickey Osterreicher, who is general counsel for the National Press Photographers Association. “Photography is not a crime, so the charges we normally see are disturbing the peace, disorderly conduct, obstruction of governmental administration, loitering, trespassing and resisting arrest.”
Sure.  It happens to photographers with Press Cards stuck in their fedoras or whatever the 21st Century version of that might be.  And it happens to the folks who get too mouthy and end up attacking the officer's fist with their face.  Or who get shot for . . . .  Hell, you know the routine.

Osterrieicher, the Times says, "has educated police officers across the country on First and Fourth Amendment rights, and met with the former New York Police commissioner Raymond W. Kelly regarding arrests of journalists."  Which is cool.  And he says "that the city had good policies." Which might or might not be true and might or might not be something he'd actually agree with (since it was a Times report, not a quote from him).  What he actually says, per a quotation, is
If police officers don’t know or don’t care what those rights are, it’s not going to make any difference as we saw in this case, and, when push comes to shove, you’re going to get arrested.
Which the Times (and here's the story) paraphrases as him saying 
that training might be a problem.
Which is something altogether different, and belied by the story's final paragraph.
Indeed, on Thee Rant, a message board described as “New York City cops speaking their minds,” one commenter, dominop, responded to a post about Officer Ackermann’s conviction: “Lock up everyone in or connected with the press that you can, every chance you get! Know your enemy!”
Which pretty much makes clear what was evident from the beginning.  That the "problem" isn't about training.

No training's going to get the presumably pseudonymous "dominop" to decide that he's not at war with the press.  Nor is training going to get the cops who joined the scrum atop Stolarik and then covered Ackerman's lies to decide that they're supposed to be honest and act with integrity.

It's not that the police don't know they're not supposed to beat up/shoot/kill people who look crooked at them or don't jump high enough or fast enough on command.  It's not that police don't know they're not supposed to go along with each other and cover up misconduct by other cops.  Oh, sure, there's always room to train police in the nuance of the law.  

Osterreicher got it right.  It's a problem when police don't care about people's rights.  All the training in the world won't change that.  What changes that is aggressive accountability.  Which is pretty much non-existent.

And which the Grey Lady can't quite bring itself to acknowledge, even in a news story that closes with the proof (which I repeat here 'cause what the hell).
Indeed, on Thee Rant, a message board described as “New York City cops speaking their minds,” one commenter, dominop, responded to a post about Officer Ackermann’s conviction: “Lock up everyone in or connected with the press that you can, every chance you get! Know your enemy!”
It's that failure by the Times that's the real story.

Friday, November 6, 2015

Jamaican Blue Mountain - or That Stuff in the Cardboard Cup at the Neighborhood Bodega

Completely not what I normally write here.

There are few things in this world I love more than coffee.  Per what is supposedly an old Turkish proverb, coffee should be black as hell, strong as death, and sweet as love.  I endorse that.

One day, at the Newark Airport waiting to pick up my younger son who was flying in from Chicago for some holiday or other, I was waiting at a Dunkin Donuts kiosk.  Ahead of me was a TSA worker getting some fru fru drink.  I placed my order, "Large, black coffee."  She turned to me and, in all seriousness, asked, "What does black coffee taste like."  

Were I faster, I'd have said "Chicken."  

I wasn't that fast.  I said, "Coffee."  

Tomorrow morning I'll make a few cups of Sumatran in the French press.  But Dunkin will do just fine, thank you.

This is a terrific piece.

Thursday, November 5, 2015

Blasts from the Past

As I mentioned before, I've been posting over at Fault Lines, a really terrific group blawg written by an ever expanding stable of lawyers with at least somewhat different perspectives.

The down side, from my point of view, is that it's more serious than this blog.  I try to proofread.  I'm less profane (but it's me, so I'm still NSFW if your W is easily offended, and if so, fuck 'em).  And it's more like work than the play that this thing is.  The other downside is that I'm writing much less over here.

Anyway, go to Fault Lines and read my stuff.  And the other folks, too.

But before you do, a reminder that William Faulkner knew what he was talking about in Requiem for a Nun
The past is never dead. It's not even past.
The reminder comes from Germany where, as Melissa Eddy reports in the Times,
A German court has determined that a 93-year-old man who served as an SS sergeant at the Auschwitz death camp is fit to stand trial on charges of accessory to the murder of at least 170,000 people during his tenure there.
That comes on the heels of 94-year-old Oskar Gröning being found guilty of complicity in the murder of 300,000 Hungarian Jews at Auschwitz.

Frankly, it's not altogether clear what the point is.  

I mean, at 93 and 94, neither of these folks can be held fully accountable for hundreds of thousands of deaths.  Germany has no death penalty, so the most they can get is life in prison - which isn't likely to be long.  And even if there were an available death penalty, there's surely no equivalence.  And of course executing men who would shortly die anyway (if they even could be executed before they died of natural causes).

There is, of course, another sort of accountability in the form of a verdict.  Even at this remove, after all these years, those officers of the SS cannot escape responsibility for the enormity.  The public identification of the monster. 
To name is to shame.  And that's something.

We do it here, too.  We do it for ordinary murder, which has no statute of limitations.  But we do it with special attention for our special evils.  It was 2001 and 2002 when Thomas Blanton and Bobby Cherry were finally tried, convicted, and sentenced to prison for life for bombing the 16th Street Baptist Church in Birmingham, Alabama that Sunday morning in 1963 and killing Denise McNair, Cynthia Wesley, Carole Robertson, and Addie Mae Collins.  Our monsters.  Our enormity.

The alternative (other than just sweeping it under the rug, the past is over, let it lie - as Obama said about those who kidnapped and tortured in our names at Gitmo and elsewhere around the world) is the South African model, the Truth and Reconciliation Commission.  Which is about accepting responsibility, about learning from the past, about some form of redemption.  Can't speak for the Germans, but we're not much fond of learning and redemption here.  Rather, we've got Nebraska spending tens of thousands of dollars to try (unsuccessfully, to date) to import drugs from overseas so that they can carry out executions after the legislature overrode the governor's veto of abolition.  Oh, sure, it's on the ballot.  But still.

Ohio, too.  We've executed a whole lot more folks than Nebraska, but none since the botched killing of Dennis McGuire almost two years ago.  And we're making desperate efforts to get the drugs to start killing again - in another 14 months.  Because it's vital that we kill those people.  Lest they . . . . Well, lest they don't get killed by us.


As I said, I don't pretend to know the collective German psyche on these things.  The Holocaust was, after all, something of a national effort.  The nation gets to find its own way.

But whatever they end up doing to that 93-year-old SS sergeant from Auschwitz charged with the deaths of 170,000 - there's one immediate thing worth observing and, frankly, emulating.

Unlike 94-year-old Oskar Gröning, this guy has not yet been convicted.  He is, until that should happen, innocent.  Which apparently means that we don't get to burn down his house just yet.  We know Oskar Gröning's name not because he was accused but because he was convicted.  The 93-year-old defendant?  He's Reinhold H.  Eddy reports that 
[his] full name was not released for reasons of privacy.
Here it's different.  We conceal the names of alleged victims - even if they turn out to have fabricated their victimhood, we conceal their identity.  But the accused?  We out them with abandon.  After all, if they're accused they must be guilty.

Makes you proud to be an American.

Monday, October 5, 2015

The Spoken Postulation of His Unheard Presence

In a post at Fault Lines this morning (probably yesterday morning by the time anyone reads this), I wrote about some of the arbitrariness and and hypocrisy of the death penalty as practiced in the US of A.  

To know how the death penalty works in practice is to know that, whatever hopes one might have for it, the death penalty doesn't actually work.  It does, however, have effects.  Let's call them penumbras.  (Lawyers will know that there's some irony to the choice of term; nonlawyers should consider themselves lucky.)

I began that post with a story about Tim Hoffner's jury.  You can go over to Fault Lines and read the tl;dr or stay here for the  shorter version.   

The jury sat through days of testimony of a horrific crime, an Edgar Allen Poe sort of crime.  They found Hoffner guilty.  Then they said that he should die.  The judge, the late Bill Skow, thanked the jurors for their service.  
What you did, he told them, was difficult but necessary.  And we, the citizens of Lucas County, and the officials of the county, are enormously grateful.  For what you did, he added, if any of you need therapy as a result, the county will pay.
I don't know if anyone took the judge up on the offer.  And, frankly, the county wasn't about to pay much.  But it's worth taking a minute to think about the offer - and the need for it.

Sitting on a capital jury, sentencing someone to die, it's traumatic.  Like being (and yes, I know the analogy isn't fair) in a combat zone.  A vital job for which there's a fair chance you'll suffer a lifetime of psychological problems.  And, of course, juries are drafted, not filled with volunteers or professionals.

What I told you about the Hoffner jury was from the outside.  It's what the judge offered and the messages implicit in it.  Sometimes we get a peek inside.
She still cries when she thinks about the 12 people she never met. At night she imagines the horrors she only heard about.
The life she led before this summer still feels out of reach, and she fears that others will find out who she is and what she did for 16 weeks.
She was one of the jurors who listened, deliberated, voted guilty, and then said no, not death.  Not for James Holmes who shot up that movie theater in Aurora, Colorado.  She'd kept silent, but last week she spoke with Jordan Steffen of the Denver Post.

The headline is that the press has been misled and misleading in saying that there was only one juror for life.  In fact, she said, there were three.  But the headline isn't the point.  Here's the point.
In the interview at an empty diner in eastern Arapahoe County, the juror eyed the wait staff. She politely asked to move to a table in the corner of the room, out of earshot of others.
It was the first of two relocations she would make in the restaurant.
The toll of the trial is evident. At times she fights back tears. Afraid someone will recognize what she's talking about, she stops in the middle of words when a server checks on her meal.
She does not doubt her verdict.
The juror still believes in the death penalty, but she is adamant that death was not an appropriate sentence for Holmes. She said she decided to end her silence because she could no longer bear to watch the weight of public scrutiny — what she described as a "witch hunt" — fall solely on the shoulders of her fellow juror.
"I don't think any one of us three would ever tell you that he deserved life or that we felt life was appropriate. It's just that the other option wasn't an option," she said. "It was one or the other. You didn't get anything in the middle."
Oh, but how important that we put her through it.

Kelly Gissendaner faced death for the murder of her husband.  A murder she did not commit.  The murder was committed by Gregory Owen.  He was, at the time, her lover.  And she got him to do the deed.  He's serving life and will be eligible for parole in 2022.  She was executed last week by the good people of Georgia.

Rhonda Cook, a reporter with the Atlanta Journal-Constitution was one of the media witnesses. 
The singing is what I will always remember about the execution of Kelly Renee Gissendaner.
Her voice was joyful and light as she sang the first verse of “Amazing Grace.” By the second verse, though, the 47-year-old dying woman struggled to sing as the lethal injection drug took hold.
It's a prison, so the witnesses are regimented.
We are led though an underground tunnel and up a flight of stairs where we are given notepads and two pencils. We then wait in a nearby employee break room.
We wait for hours and the mood shifts from boredom to high-alert and then back to boredom. The long stretches of silence are broken by talk of sports, people we cover and, of course, Gissendaner.
An obviously bored prison guard assigned to baby sit us pops her chewing gum as she studies the screen on her cell phone.
The hum from the condenser keeping soft drinks in a vending machine cold is almost deafening.
When I was waiting, in an office across from the death house at the Southern Ohio Correctional Facility in Lucasville, waiting for them to finish killing my client, there was a clock in the room. Stuck.  The time, permanently it seemed, 11:24.  The second hand would advance toward the twelve, toward it becoming 11:25.  Click, click, tick, tock, one second at a time.  And then it would fall back. 

It's what you fixate on.  Chewing gum. The condenser.  Pencils.  Two of them.
Gissendaner is strapped to the gurney when we enter the chamber. She lifts her head to watch the witnesses taking their seats on the three church pews. Hers arms are strapped to boards that extend out and down from each side. The IVs have been inserted. A sheet covers most of her body.
With everyone seated, Gissendaner directs her final statement to one of her lawyers, Susan Casey.
“I love you, Susan,” Gissendaner said.“You let my kids know I went out singing “Amazing Grace.”
Casey nods and then sobs. A chaplain prays. And then she sings.
“Amazing grace,
how sweet the sound,
that saved a wretch like me.”
A few more lines and then Gissendaner closed her eyes for the last time.
Jeff Hullinger of 11 Alive watched the killing, too.
We were the last in to a small building that looks like a concession stand at a high school football game. We entered seeing three church style pews with lots of men. Then right in front of us is Kelley Gissendanner- -on the gurney, arms outstretched with needles and tubes. She makes eye contact as we enter the room. She begins to sob, I avert my eyes trying to compose myself. She is somewhat agitated or nervous.
The chamber door closes behind with a clang. No one is to exit. We are told, “There is medical attention (a doctor) if you need it.”
Wait.  Why would you need a doctor?  Has a witness ever hard a heart attack from the stress?  And they really won't let him out?  So they get a twofer?  Gissendaner and a member of the press?  Cool. Or horrifying.  Hullinger doesn't pursue the thought, doesn't question.  Anyhow, the door closed with that "clang" so it's really too late to find out.
The warden appears as a sort of host. A prayer is said; Gissendanner is crying, sobbing, wailing. Gissendaner singing a panicked “Amazing Grace” is a searing thought tonight. The hymn will not sound the same to me again.
“I’m sorry” she says to her husband, an “amazing man who didn’t deserve it”. . . She wants to take it back, She wanted her Children to know she went out signing Amazing grace.
The faces of those viewing were empty, forlorn, mostly male, and mostly turned away. A woman sobs & sings. Compassion is only present in thought.
Forget what they did to Kelly Gissendaner.  Look what they did to Jeff Hullinger.
Listening to prayer in the middle of this execution – in this awful place – felt necessary but unheard by a deity.
. . .
And when it was over, I wanted to sprint to the prison van amidst the razor wire. I wanted someone to take me somewhere to collect myself and pray.
Feel better now?
* * *
1968, I'm pretty sure it was.  Central Park in New York.  Concerts in the Park, sponsored by, if memory serves and it may not, Schaefer Beer.  Judy Collins.  Time for her encore during a raging Thunderstorm.  She alone on the stage.  A capella.  Her voice soaring above the thunderclaps. If you were there, you remember it.  This is as close as I can find.

"The Creation of the Inaudible," by Pattiann Rogers

Maybe no one can distinguish which voice  
Is god’s voice sounding in a summer dusk  
Because he calls with the same rising frequency,  
The same rasp and rattling rustle the cicadas use  
As they cling to the high leaves in the glowing  
Dust of the oaks.

His exclamations might blend so precisely with the final  
Crises of the swallows settling before dark
That no one will ever be able to say with certainty,  
”That last long cry winging over the rooftop
Came from god.“

Breathy and low, the vibrations of his nightly
Incantations could easily be masked by the scarcely  
Audible hush of the lakeline dealing with the rocky shore,  
And when a thousand dry sheaths of rushes and thistles  
Stiffen and shiver in an autumn wind, anyone can imagine  
How quickly and irretrievably his whisper might be lost.

Someone faraway must be saying right now:  
The only unique sound of his being
Is the spoken postulation of his unheard presence.

For even if he found the perfect chant this morning 
And even if he played the perfect strings  to accompany it,   
Still, no one could  be expected  to know, 
Because the blind click beetle flipping in midair, 
And the slider turtle easing through the black iris bog,   
And two savannah pines shedding dawn in staccato pieces   
Of falling sun are already engaged in performing   
The very same arrangement themselves.

Thanks to Paula Wallace and The Rev. Dr. Thomas C.H. Scott for the poem.