Wednesday, April 1, 2015

On Not Reading the Fucking Record

When one of the justices of the Ohio Supreme Court (as they say, there is no justice in the lower courts and there are no judges on the Supreme Court)* recuses herself, they bring in a visiting judge from one of the courts of appeals so that there will be still be seven folks to hear the case.  

One of those VJs, one who sat on a death penalty appeal, said afterwards that he was appalled by the fact that none of the others, not one of the six, read the transcript of the trial.  How, he wondered, could they fairly determine exactly how the case went down, what the evidence did and did not show.  In particular, how could they decide whether the aggravating circumstances outweighed the mitigating factors - the question that's the basis of the life/death decision in Ohio, if they didn't read the record for themselves?

I was in court with a guy, back for resentencing after the Supreme Court had thrown out his death sentence.  The judge, a successor to the trial judge who was no longer on the bench, started to pronounce sentence.
Wait, your Honor.  You can't decide on the sentence without having read the record.
Oh, yeah, I suppose. 
Not just capital cases.  commonly, all that appellate judges know about the record in the case before them is what the parties said in their briefs.  Maybe they'll read a few pages if something catches their attention or raises a question.  Not often, though.  And not the whole damn thing.

Trial judges, too, ruling on motions in civil cases where there may be hundreds, even thousands of pages of depositions and exhibits.  Rely on the briefs.  Oh, and the law clerks (often called "staff attorneys" these days to distinguish them from law students who may do the same work) will sometimes slog through the record.  But sometimes not.

Sure, there are exceptions.  Too few.

Our vision of the dispassionate judge, sitting on the bench, dispensing Solomonic justice after full and careful reading of the whole and independent legal research.  I'm not saying it doesn't happen. 


It's not that long ago that the U.S. Supreme Court (OK, The Supreme Court of the United States) heard argument and issued opinions in 150 or 175 cases a year.  And then the 9 folks in their robes took July, August, and September off.  They're down to about  80 cases a year now.  They still take those months off.  And they're up to 4 law clerks/staff attorneys each.

From the oral argument before the court Monday morning in Brumfield v. Cain, about how Louisiana deals with (and in Brumfield's case dealt with) questions of mental retardation which relate directly to whether folks (like Brumfield) who face capital charges or actual death sentences can be executed. The 8th Amendment, according to the Court, says they can't.  But how to implement that?

The lawyer for the state, Premila Burns, is at the podium trying to answer questions.
JUSTICE BREYER:  No, no.  I think we're all on the same page here, and I think we've made some progress in this, because I agree with you, and I agree with Justice Scalia that what we have to do is to look at the whole record and see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record, is the Louisiana court clearly wrong?  Is it unreasonable in saying there wasn't enough evidence, even though there has to be some, which is up to them pretty much how they say the some, but they're unreasonable in saying that there wasn't some evidence justifying a hearing.  And the only way to do that is for us to read it.  Is -- is that right?
MS. BURNS:  The record has to be read.
JUSTICE BREYER:  Would you agree with that?
MS. BURNS:  I would agree that the ­­--
JUSTICE BREYER:  I agree with that.
MS. BURNS:  ­­ -- entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was myopic.
JUSTICE SCALIA:  I haven't read the whole record, you know, and I doubt that I'm going to.  And ­­ and I doubt that this Court is going to read the whole record in all of these Atkins cases in the future.  I mean, what ­­-- what you're saying is ­­-- is­ -- you don't think it's -- it's fantastical?
Sure, the record in Brumfield is somewhere around 20 volumes long.  And it's mostly tedious.  And will mostly prove irrelevant to the question if anyone actually bothers to read it all.  

Mostly.  Not entirely, though.  Except who'll find out? 

Shit, we're only dealing with life or death.  And constitutional rights.  And a bunch of folks doing half the work they used to but with a larger staff and still managing to take three months off a year.

Dahlia Lithwick, and probably not she alone, was struck by Scalia's brazen admission that he won't do it.  
To be sure, 20 volumes is a big, big record. And probably lots and lots of reviewing judges don’t bother to read the record every single day across this great land. But it takes a certain kind of something-something to say it out loud, right there at the highest court in the land.
Well, yeah.  It's one thing for us to know.  One thing for the child who knows no better than to speak the truth to point out that the emperor has no clothes.  

It's something else for the emperor to admit it.

They want our respect.  They work so damn hard.  The ones you like and the ones you don't.

And they just can't be bothered.  Which means they really do just pull it out of their collective asses.

But hey, they're supreme.

Law of Rule.

*Which is properly, if pompously, called the "Supreme Court of Ohio," a term slightly less pompous than the high court in Massachusetts which is the Supreme Judicial Court to distinguish it, perhaps, from those supreme courts which are not judicial - like perhaps the courts of New York where the Supreme Courts are the trial and intermediate appellate courts while the high court is the Court of Appeals, which is at least properly descriptive if not terribly grand sounding.  Of course, the court that just declared Amanda Knox and Raffaelle Solecito innocent is the wonderfully (and in this case aptly) named Court of Cassation.  (Look it up yourself if you want to know what it means.)  

Friday, March 27, 2015

Crisis Averted

Whew, that was close!

Poor Texas, down to it's last shot.   One left for Number 1.

We're talking penobarbital, the drug of choice for state-performed murder.  And after Texas killed Manuel Vasquez earlier this month, they were about done.  

The shortage of killin' drugs is, of course, hardly news.  Pharmaceutical companies don't want to be in the business of providing drugs to help states kill their people.  (It's not all noble sentiment - they're in the money-making business as much as the drug business, and there's a lot of blowback.  Bad PR. Worldwide problems.  So states scramble.

The old 3-drug sequence (thiopental, pancuronium bromide, potassium chloride) gave way to single doses of pentobarbital and then odd mixes with midazolam and then obviously-fucked-up killings. So new plans.  Unregulated compounding pharmacies, secretly chosen, passing drugs under highway overpasses late at night and then sneaking them into the prisons in the guards' underwear.  Utah's bringing back the firing squad.  Oklahoma's on the verge of poison gas (an allegedly friendly one). Other states want to restore the chair.

And Texas, which has for years now been the execution capital of the nation, was down to a single dose of pentobarbital with another bunch of guys with dates in the next couple of months lined up to be offed.  So they could whack Kent William Sprouse on April 9, but then?  Hell, they had 3 more planned for April alone.

Would the Lone Star State, the "whole other country" as the tourist board used to say, collapse? Would it have to leave the union?  Again?  Would the Republic of Texas (that's what they were after breaking away from Mexico and before joining the U.S. of A.) survive?

Rest easy.  Texas found a supply.  They won't say from where (if they told you, they'd have to kill you, and the supply is limited), but they've got enough of what they allege to be pentobarbital to get through next month.

I'll be in Texas for a few days in late June.   I'm now confident that Texas will still be there. Standing tall.  


Sunday, March 22, 2015

Pay No Attention to the Man Behind the Curtain.

No, it's not noteworthy because it could conceivably get on the ballot in California.  Under the law there, it seems that just about any damn fool thing can get on the ballot in California.*

And it's not noteworthy because it's so over-the-top fundamentally offenseve. (Your mileage may vary, of course) 

It's not noteworthy because, if it somehow got on the ballot and received a majority of the votes it might become law despite the fact that it's clearly unconstitutional.  Lots of laws are clearly unconstitutional.  Some of them get enforced for decades.  

Nor is it noteworthy because it's a lawyer, one Matt McLaughlinwho's proposed it and is pushing it. 

What's noteworthy about the proposed Sodomite Suppression Act is that it's been taken seriously.

The gang from the Westboro Baptist Church cheers the deaths of American service men as god's proper vengeance for our national tolerance of homosexuality.  (You might ask around in the LGBT community about just how much national tolerance there is, but the accuracy of their perception is really beside the point.)  They crave attention.  They demonstrate at funerals to get media coverage, and it works.

McGloughlin wants more than attention.  He wants mandatory execution for "any person who willingly touches another person of the same gender for purposes of sexual gratification." And if the government doesn't start the killing in a year, his legislation would authorize lynching.  And if he can get the necessary signatures (quite a large number, but there are a lot of whack-ass folk out there, so who's to say), he'll have his spot on the ballot.

Of course, there's another possibility, this being California and all.  McGloughlin, who seems to have almost no presence as an attorney, may be engaging in a form of performance art.  

Jonathan Swift generated some outrage when he suggested that a solution to overpopulation and hunger in Ireland was to eat the babies of the Irish poor.  Thing is, he didn't mean it.  It was satire.


No, he's no Swift.  And he's probably serious.  Which doesn't mean that he can't be treated as a joke.

As I write this, nearly 15,000 people have signed a petition on calling for him to be disbarred.  I'm not signing.  Why dignify any of it with the attention?

(And yes, I get the irony.)

*I'm taking the media's word for this, which is dangerous, but for a variety of reasons I think it's probably right in this case.

Friday, March 20, 2015

This Is What It Comes To

This is what it comes to.

They sent him to death row, but Glenn Ford didn't kill Isadore Rozeman.  Andrew Cohen, last month, for the Marshall Project.
You probably don’t remember Glenn Ford or his remarkable story of injustice and redemption. Eleven months ago, he walked out of a Louisiana penitentiary after spending 30 years on death row for a murder he did not commit. He was able to do so only after a new generation of prosecutors finally acknowledged in court what their predecessors knew or should have known all along: that there was “credible evidence” that Ford “was neither present at, nor a participant in, the robbery and murder” of Isadore Rozeman, an elderly jeweler who was shot to death in Shreveport on November 5, 1983.
Ford, a black man, was swiftly convicted by an all-white jury in 1984 for Rozeman’s murder but the case against him was always weak. His trial lawyers were uniquely unqualified to represent him in a capital case. The most important eyewitness for prosecutors later confessed she had lied about Ford’s involvement in the murder. The murder weapon was never found. The forensic evidence pointed away from Ford, who early on identified the two likely killers, and on top of that the coroner delivered flawed testimony. But for 30 years, as Ford’s case toggled back and forth between state and federal courts, no judge deemed any of this prejudicial enough to rescue the condemned man, who maintained his innocence the whole time.
This is what it comes to.
30 years on death row.  30 years ripped away from his life, really from any life.  
This is what it comes to.
They discovered in 2011 that Ford had cancer.  They didn't tell him.  They didn't send him to an oncologist.  Stage 3 when he got out and actually got a diagnosis.  Stage 4 now.  Doctors are giving him months.  Maybe 3.  Maybe 8.  Less than a year.
This is what it comes to.
Louisiana allows compensation in some cases.  $25,000 a year.  Maximum $250,000.  Ford wants it. The current prosecutor in Caddo Parish, the one who helped cut him loose, opposes that.  The Louisiana AG does, too.  We didn't do anything wrong, they say.  Bad luck, they say.  Besides Ford might still be guilty, they say.   No flies on us, they say.  Bastards, I say.
This is what it comes to.
Marty Stroud was the lead prosecutor who put Ford on the row.  He wrote about it in the Shreveport Times.  
Had I been more inquisitive, perhaps the evidence would have come to light years ago. But I wasn't, and my inaction contributed to the miscarriage of justice in this matter. Based on what we had, I was confident that the right man was being prosecuted and I was not going to commit resources to investigate what I considered to be bogus claims that we had the wrong man.
My mindset was wrong and blinded me to my purpose of seeking justice, rather than obtaining a conviction of a person who I believed to be guilty. I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion. And that omission is on me.
Furthermore, my silence at trial undoubtedly contributed to the wrong-headed result.
I did not question the unfairness of Mr. Ford having appointed counsel who had never tried a criminal jury case much less a capital one. It never concerned me that the defense had insufficient funds to hire experts or that defense counsel shut down their firms for substantial periods of time to prepare for trial. These attorneys tried their very best, but they were in the wrong arena. They were excellent attorneys with experience in civil matters. But this did not prepare them for trying to save the life of Mr. Ford.
The jury was all white, Mr. Ford was African-American. Potential African-American jurors were struck with little thought about potential discrimination because at that time a claim of racial discrimination in the selection of jurors could not be successful unless it could be shown that the office had engaged in a pattern of such conduct in other cases.
And I knew this was a very burdensome requirement that had never been met in the jurisprudence of which I was aware. I also participated in placing before the jury dubious testimony from a forensic pathologist that the shooter had to be left handed, even though there was no eye witness to the murder. And yes, Glenn Ford was left handed.
All too late, I learned that the testimony was pure junk science at its evil worst.
This is what it comes to.
In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie "And Justice for All," "Winning became everything."
After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That's sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any "celebration."
This is what it comes to.

Wednesday, March 18, 2015

In Which I Wish, If Just for a Day, My Texas License Was Still Active

I hadn't written about it because, frankly, it was hard to see how I might have done a better - or more interesting - job than Dahlia Lithwick did.  And aside from the fact that he and I have both worked on capital cases . . . .  Really, there just wasn't anything for me.  

The subject was David Dow, an effective, committed lawyer doing late stage capital defense work in Texas.  More specifically, the subject was David being held in contempt by the Texas Court of Criminal Appeals (where Sharon Keller is Chief Judge) for a maybe-late filing after having blown another deadline five years earlier.  And so he's punished by not being allowed to defend his clients in that court for a year.  It's a punishment that will hurt his clients far more than it will him. After all, they could get executed while he can't act. He can try and catch up on his sleep.

Here's Lithwick (hyperlinks removed).
One of the sad truths of the capital defense business is that some trial lawyers who show up to defend their clients have been known to sleep through their trials, fail to interview witnesses, or are too drunk to do their jobs. And yet reviewing courts almost invariably determine that such lawyers provided perfectly competent defense. As one Texas judge put it in the face of such allegations: “The Constitution does not require perfection in trial representation.” So, for instance, judges in Houston continued to appoint lawyer Jerome Godinich to represent capital defendants even as he missed one filing deadline after another, depriving his clients of crucial judicial review. That there is really no such thing as an ineffective lawyer is one of the cardinal rules of the death penalty machine. But dare to be an effective one? Well, that’s another story.
. . .
Nobody is arguing here for dissing courts or missing deadlines. But proportion is as important to the administration of justice as timeliness, and judges should know this better than anyone. We joke darkly about Texas and the death penalty a lot in this country, in part because Texas makes it so darn easy. Suspending one of the nation’s most prominent and outspoken death penalty lawyers in a snit is just silly. Suspending him for a year, while other lawyers doze and drink their way through trials as their clients face death, borders on the criminal.
As I said, I couldn't top that.

But you know, these stories have legs.  And while the Court of Criminal Appeals is the high court for criminal matters in Texas, it's not always the highest court.  That honor goes to the Texas Supreme Court which, in its realm, is, er, supreme.

From time to time, we in the law biz get to take a stand.  Speak truth to power.  Declare that this (whatever it might be) cuts to the heart of what we do and what our system is designed to do.
  • They did it in Maricopa County, holding a rally to support the Rule of Law agains Sheriff Joe and his minions who work daily to enforce the Law of Rule.  Of course, Joe's still at it, but the rally was quite something.
  • We did it in Ohio when a judge held new lawyer/new public defender Brian Jones in contempt for refusing to go to trial (it would have been his first trial) without being allowed time to prepare. Something like 75 of us signed the brief on Brian's behalf.
  • And now in Texas.
The case filed in the Texas Supreme Court, is In re David Dow v. The Texas Court of Criminal Appeals.  The document is a Petition for Declaratory Judgment Or, In The Alternative, Writ of Mandamus.  Without going into the details, it asks the court to vacate the order preventing Dow from appearing in the Court of Criminal Appeals. 

There are, to the petition, some 24 pages of text.  followed by around 50 pages listing Texas attorneys who declare
I have read this motion and join in its filing.
Nobody sent me a draft of the petition to ask if I'd sign it.  And I couldn't have signed it if someone had because my Texas license is inactive.  (Costs me a lot less than keeping it active would.)

But damn, I'd have liked to.

Because what they did today to David, they'll do tomorrow to the next person who works too hard or effectively for his clients.  

Because Law of Rule, by god.

Monday, March 16, 2015

On Mercy Considered As One of the Fine Arts: Part the Second

Jennifer Bishop-Jenkins won't remember the time I met her.  I'll never forget it.

It was 2003.  She was coming to Cleveland to speak at at the ACLU about the death penalty.  I was to give some general comments and then introduce Jennifer.

She was, at that time, chair of Murder Victim's Families for Reconciliation.  Her pregnant sister Nancy, and Nancy's husband had been murdered, shot to death in a Chicago suburb.  She opposed the death penalty and had, as I understood it, forgiven the killer.  I didn't know much more than that. I was eager to hear her speak.

I gave my comments, introduced Jennifer, and was quickly reduced to tears.

I write a lot about forgiveness and mercy and grace in these posts.  They are, I say, about those who give, not those who receive.  They define those who bestow them ("bestow" for they are gifts) as surely as the bitterness of hatred and vengeance define those who cannot get past them.  They aren't things that can be earned, they're not about what's deserved.  If they were, they'd be about the recipients rather than the donors.

I'd understood that in a generic way before that night in April.  I understood it in a visceral way after hearing Jennifer speak.  Stories will do that.

So, when I learned that Nancy's other sister, Jeanne Bishop, had written a book about her journey to forgiveness and reconciliation, I just naturally asked the publishers to send me a copy.  Which they kindly did.

The book is Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer.  I finished it Sunday morning, right before reading Antjie Krog's op-ed in the Times on the parole of Eugene ("Prime Evil") de Kock in South Africa.  The coincidence of mercy and mercy - and the question of whether anyone is irredeemable - are what turned what was going to be a book review into this two parter.

The crime was brutal and callous.  It was the night before Palm Sunday, 1990.  Nancy and Richard had just returned home from a family dinner.  They walked in the house and there was this kid, David Biro.  16 years old.  Sitting in a chair in the darkened house.  With a gun.  He forced them into the basement.  Shot Richard in the back of the head.  Shot Nancy twice, in the side and abdomen as she "huddled in a corner, protecting her head with her arms."  Biro fled.  Nancy lived another 15 minutes or so.  
Nancy dragged herself by her elbows again, to where her husband lay dead.  Next to his body she wrote a message of love in her own blood: the shape of a heart and the letter u.
Love you.It was the way she had signed letters to Richard over the years.  She died there next to him.
As I said, brutal and callous.  

Jeanne was, of course, horrified when she learned.  The heartsick family gathered at the police station.  They tried, Jeanne tried, to understand what could make someone kill like that.
As I did, I spoke for the first time since arriving at the station.  It wasn't a thought I had formulated; it just emerged.  I heard myself saying these words to the assembled group: "I don't want to hate anyone."
Not hating was a start.  it wasn't a finish.  

They caught David Biro, of course.  Put him on trial.  He tried to blame a friend.  The jury didn't buy it.  LWOP.  

And though Jeanne came to forgive Biro, her number one goal was to never have to hear of him.  In fact, she didn't speak his name.  For years.

But, and here's where this gets tricky.  That has to change.  She can't run from the fact of him.  For her to heal, she has to reconcile herself to him.  That means coming to speak his name.  And then, praying for him.    

I need to pause here, for a moment and consider, as she does, David Biro.  "Who was" he, she wonders when she starts praying for him.  She reports.

  • One of his high school counselors:  "Biro wasn't the worst kid I had.  But he was the scariest."  When other kids did something wrong, they'd feel bad about it.  "He didn't even understand why he should feel bad."
  • A psychiatric social worker "described him as charming, manipulative, and utterly without empathy."
  • A cell mate:  "wrote from prison to tell me that David had casually discussed the murders with him, expressing no remorse.  When another high-profile, multiple murder occurred while they were in custody together -- the shooting deaths of women shoppers at a local Lane Bryant store -- one of the victims happened to have the same name as my older sister.  The cell mate said David had hoped that it was she who had been killed."

Jeanne turns to Biblical parables to understand possibility.  Jesus, she concludes, can heal.  And apparently he does.

Praying for him isn't enough.  She has to meet him, to apologize to him for not forgiving him more openly and fulsomely sooner.  This person who has never even hinted at accepting responsibility, let alone feeling remorse for what he did.

And so, to the prison, where it seems he's no monster.  He's thoughtful.  He feels badly for what he did.  They discuss.  They see each other every couple of months.  And she sees that he's been heeled from his budding sociopathy.

Or, of course, although she never mentions this as a possibility and appears not to see it, he's canny enough to understand how to make her support him, how to manipulate her with lies and false professions.

I am, perhaps, being too cynical.  I believe in redemption.  But it's mostly not that neat.  And prison isn't a place where those with serious psychological problems tend to get better.  

If I'm too cynical, Jeanne seems insufficiently so.  Biro expresses remorse.  Hence, he's remorseful. He didn't plan to kill anyone, he says, so clearly that's the case.  She attributes all to God.  (It's no accident that Change of Heart  is published by Westminster John Knox Press, a religious publisher.)  She's deeply religious.  She turns repeatedly to the Bible and to priests and Biblical scholars and lawyers.   Folks like Mark Osler, a law professor, former prosecutor, devout Christian, anti-death penalty activist, who himself wrote a curious book, Jesus on Death Row: The Trial of Jesus and American Capital Punishment, arguing that the prosecution, trial, and execution of Jesus follow a process very like that the capitally charged and ultimately executed in this country experience.  Somehow we're to find in that parallel an understanding of why killing people here is like killing the factually innocent Jesus and is, therefore, wrong.*

There were times I wanted to toss Change of Heart across the room.  Enough with the Christian sermons.  Enough with what God can do and Jesus does and how the Bible's lessons . . . .

But you know, the book is, ultimately, deeply moving.  Jeanne Bishop's story - and this is very much her story - is remarkable.  She became a criminal defense lawyer, a public defender, because her sister was murdered.  She ultimately became an activist in the movement to abolish LWOP sentences for juveniles.  She became, if not a friend, exactly, a force for the man who coldly murdered her loved ones.  Not because she loved them insufficiently, but because love is transcendent.

And because, finally, redemption for Biro is about redemption for her.

She went to speak to 6th, 7th, and 8th graders at a Catholic school.  Her topic: forgiveness and reconciliation.  She went to mass with them.  Then gathered with them and spoke.
I told of Nancy and Richard, who had lived in an apartment only a block away from the church as a happy young couple, of the murders, the arrest, the sentence, the change in me, my visits with David.  The student's faces changed; you could see them pondering. The room was quiet as I finished; you could hear the slightest rustle of the wind on the snow outside.
The principal of the school, a lively, white-haired nun, came forward at the end to than me.  She turned to address the children: "Let's dismiss Ms. Bishop with a blessing."
A blessing? For me? I had never been given such a treasure before, especially not by angels in plaid skirts and khakis.
It's a lovely moment.  But what matters is what follows.
This is what led me to that moment: the story I had lived and told.  The tears.  The cost.  Like every blessing, every grace, it was unearned.  I had as much to atone for as anyone, and many of my scars were self-inflicted.  Much of my life I have been a striver, the girl who wanted (and got) the best grades and the best job, who cringed when she failed.  Part of that, perhaps, was the idea that I had to earn the blessing and affirmation of others and of God.  In that moment, surrounded by children, I saw the deeper truth: grace is given, not earned, a function of being loved rather than of worldly accomplishment.
So let me come back where I began, in Part the First.

The essence of the Truth and Reconciliation Commission was that knowing the truth, hearing it from those who inflicted pain, brings peace.  You can't force remorse.  It's there or it's not.  But speaking truth has healing power to those who hear.  And, ultimately, to those who speak.

And they gave amnesty not because it was deserved but because it served two goods:  it led to the speaking of truth.  And it put to an end having to deal with the bad guys.  They could be, as the word suggests, forgotten - even as their evil could be remembered.

And de Kock's parole - he did good, regardless of motive.  And while he could never do enough good to make up for the evil, releasing him was, at some level, enough.  

Jeanne Bishop's take is broader still.  David Biro tells what happened, expresses remorse (real or feigned) after he's forgiven.  The reconciliation may help him, but ultimately it helps her.  She grasps from the beginning the lesson others never do.
From the moment the police told me that Nancy and Richard had been murdered, I sensed in my deepest core that hating the person who did it would affect him not a bit, but it would destroy me.  I'd heard this saying: Hating someone is like drinking poison and expecting the other person to die.  I refused to give him that power over me.
And there it is again.  It's about us, not them.

Change of Heart is not without flaws.  But insofar as it teaches that lesson, it's a winner.

*I'm not being quite fair to Osler, but I thought he stretched his analogies further than they wanted to go, and his repeated claims that Jesus was innocent strike me as flawed.  He was, certainly, if you believe him to be the Jesus of Christian faith, the son of God who killed and thereby (and by choice) took upon himself all human sin, innocent in the sense of pure.  But if the reference is to legal guilt . . . .  He was charged with blasphemy for holding himself out to be the son of God.  He did that.   Caveat:  I'm a lawyer and an atheist.  I was not raised Christian.  I've read the New Testament, studied it as a work of literature.  But I'm no Biblical scholar.  Take my readings with a large dollop of salt.

Sunday, March 15, 2015

On Mercy Considered As One of the Fine Arts: Part the First


t is entirely a coincidence that today's Times has an op ed by Antjie Krog on the parole of Eugene de Kock.

South Africa’s most notorious apartheid-era assassin, Eugene de Kock, has received parole after spending 20 years in prison. The government’s decision to let him walk free has unleashed a sort of identity crisis among South Africans. Could a man once known as “Prime Evil” really have changed? Why are we showing such charity to the deadliest cog in apartheid’s racist machine? And more important, why are so many South Africans — mostly white — so angry that this specific prisoner has been freed?
Has he really changed? This man who oversaw, who arranged, who ordered kidnapping, torture, murder of black South African's, anti-apartheid activists and then just people who happened to be black. This man who arranged to have the crimes blamed on - and sometimes done by - other black South Africans. Who acted to preserve the system of apartheid, itself a moral abomination.

Has he really changed? Is change of such a person even possible? And frankly, so what?

Krog gives some background.

After South Africa’s transition to democracy in 1994, Mr. de Kock disclosed the full scope of his crimes as part of his testimony before the Truth and Reconciliation Commission as both an amnesty applicant and an expert witness. This commission was set up as an example of restorative justice — granting amnesty to perpetrators of violence after they confessed in public. By telling the truth and proving that a crime was committed for political reasons, a perpetrator could receive relief from civil and criminal prosecution. Witnesses and victims of gross human rights violations also testified before the commission, and some received reparations.
As a reporter covering the often heart-rending hearings in the 1990s, I watched Mr. de Kock calmly correct facts, expose lies and name superiors who then quickly had to apply for amnesty themselves. He became the polygraph machine of the commission. Without him the “truth” part of the T.R.C. would have been sorely lacking.
And so he received amnesty.  But not for everything.  89 charges remained.  He was sentenced to 212 years in prison.  A sentence he clearly could never serve.  Still, he was the Prime Evil.
Then the unthinkable happened. With his intimate knowledge of apartheid-era security agencies, he began to assist victims in finding the remains of loved ones. He provided answers and pointed to places where bodies could be found. Mr. de Kock openly confessed his regret directly to victims and admitted that nothing could redeem him. This contrasted sharply with many of his commanders, who openly refused to apply for amnesty, or the politicians who denied that he had carried out their orders.
Regret, Krog tells us, was not a requirement.  Mere admission was all that was required.  But this was something more than either.
Marjorie Jobson assisted victims’ families who wished to meet Mr. de Kock in jail. She describes him as “a treasure trove.” In meetings lasting over two hours, he told in “the finest detail exactly what had happened affecting the people in the room.” When these families left, she added, they would begin to sing “from the sheer relief of having received answers.”
But really, is it sincere?  Has the leopard changed his spots?  Can he?  Is it a sham?  Jut the psychpath gaming the system?

For Krog, it's enough.  
For me it is irrelevant whether this change is genuine; the fact of his assistance to the victims is what counts.

Of course, it matters just what we're trying to accomplish.

Thane Rosenbaum wants revenge.  There's no stopping point to that.  Robert Blecker wants retribution which he insists is something different because revenge is about getting even (and has no stopping point) while retribution is about getting even (and has no stopping point).  For them, for Bill Otis and Nancy Grace and the rest, it's about, well, there's no stopping point.  They don't care about redemption.  Only about punishment.  The more the merrier.*

Oh, sure.  Maybe de Kock has been good for 20 years.  And maybe he'll be good for the rest of his life.  So what?  He was evil.  And evil he remains.  Whether or not he evinces any more evil. Whether or not he actually remains evil.  

Off with his head.

The problem with LWOP sentences is that they're built around the commitment to throwing away the key.  They either assume improvement impossible or declare it irrelevant.  Let us decide today and forever.

An attitude the parole for de Kock just rejected.  Because regardless of whether he deserves it, we do. Because, as I've said repeatedly, mercy and grace aren't about them, they're about us.  They aren't earned, they're a gift.  And they make us better.

Which brings me to why Krog's op ed is coincidental.   For which you'll need to read Part the Second, since this post is already too long.

*That's not entirely true.  Blecker, at least, clearly cares about redemption.  He just thinks it shouldn't be allowed to interfere with the glory of punishment.  Good that they're redeemed.  Now, get on with making 'em suffer.