ODDS & ENDS

I'm back from several days at a death penalty defense seminar and the preparation of a major brief on Ohio's sex offender law. Much has happened, and since I can't write at full length about everything, it's time for another episode of odds and ends.

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This morning, at 10 a.m., the State of Ohio intends and expects to put John Fautenberry to death. They'll call it an execution, which is correct. It's also correct to call it an aggravated murder. In any event, it's almost surely going to happen.

They'll kill him with a combination of drugs that, according to the only judge to rule on the matter, violates his right - established by the Ohio legislature - to a painless death. (Judge's opinion here.) They'll do the same thing to Marvallous Keene on July 21. They've got plans for seven more, one a month, through February. You can expect more in March and April.

It's almost certain that one or more of the scheduled killings won't happen. Either a court will step in at some point or the Governor will grant someone clemency. (Hey, it could happen.) But the numbers are daunting. Ohio has already killed more people than any other state outside the South, and it seems determined to pick up the pace.

For what little it's worth, there's a certain irony in the Keene execution. As it violates a court order that Ohio stop killing with three drugs and switch to a single, massive, dose of barbiturate, Keene's execution will violate a court order, violate Keene's constitutional rights, and be (it now appears) the one thousandth execution by lethal injection in the United States.

Kinda makes you proud to be a Buckeye. Or not.

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As a reminder of a particular sort of horror in criminal justice, last week Ronald Kitchen and Marvin Reeves were freed by the State of Illinois. They each served more than 20 years for the killing of two women and three children that the state now concedes they don't have enough evidence to justify a trial. (Story here.) By the calculation of the Death Penalty Information Center they are the 134th and 135th exonerations from death row since 1973 (press release here).

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Balls and strikes and Sonya Sotomayor.

Confirmation hearings begin. The big question this year seems, for a change, not to be whether Roe v. Wade is the law of the land that deserves some degree of respect simply because it was decided and is a major front in the culture war. Rather, this year the question is whether justicing is a purely mechanical act of looking at the Constitution and the issue in question and saying "Yea" or "Nay." The Republicans insist it is, and that any contrary perspective is entirely out of the mainstream of American thought, as we can tell because if 5 of the 9 current Supreme Court Justices say so, then the other 4 are entirely misguided.

It's a silly claim, of course, and nearly everyone making it surely understands that. But it's not without some rhetorical power when stated with declaratory force and without apparent irony.

What it most reminds me of is a problem with the Ohio Constituion. The Supreme Court of Ohio routinely tells us that the Ohio Constitution provides important protections for Ohioans.

The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.

But when it comes right down to it, maybe not so much.

Here's an example of how it works. In State v. Robinette (1995), the Ohio Supreme Court held that both the federal and Ohio Constitutions require that when the purpose of a traffic stop is completed, police may not continue questioning the driver they stopped without first informing the driver that he is free to leave. The state appealed that decision to the United States Supreme Court which reversed it. In Ohio v. Robinette (1996) the Court said that whatever the Ohio Constitution might require, the Fourth Amendment required no such thing.

Back the case went to the Ohio Supreme Court which said (1997), though not in these words, "Gosh, we must have misunderstood the Ohio Constitution. Since we wrongly figured the U.S. Constitution required cops to tell people they were free to leave, we must have been wrong when we figured that the Ohio Constitution required it, too. Thanks to the U.S. Supremes for correcting our understanding of our document."

The Ohio Constitution, no less than the U.S. Constitution, means at any given moment what a majority of its high court justices think it does. Figuring out what that should be is, as I have said before (here, for instance), a whole lot more complicated (maybe not harder, but more complicated) than just observing whether a pitched ball was in the strike zone at any point.

All of which is essentially a digression from what I want to say which is that Sotomayor demonstrated a mastery of the basic rule of these hearings: Listen politely while the Senators pontificate and then say something so profoundly pedestrian that nobody can disagree with you although it's entirely content free. In this case, she said, in her opening statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Can anybody possibly think that's wrong?

Decide cases with faithful adherence to the law? That really is what every judge endorses as the way to do the job.

Understand the positions and arguments before you? Does anybody, anywhere, think judges should attempt to misunderstand them?

I'm far from the first person to compare Senate confirmation hearings with kabuki theater, but the analogy is apt. And since we know in advance pretty much all we will learn: She has a compelling life story which helps her understand the positions of the parties before her and helps her understand the real world consequences of her decisions, but which is wholly irrelevant to the decisions she makes - as are their real world consequences.

Well, why do we actually bother? Are we hoping that there will be another Robert Bork who actually had a judicial philosophy and was willing to discuss it and its consequences? Do we imagine that an Anita Hill will step forth and rivet us to the television with sordid personal accusations? Might we not let the Senators make their speeches in private without media coverage? Oh, yeah. That's why we have the hearings.

They really do present an opportunity to educate the American people on our judicial system. And they really do ignore that opportunity.

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Here's an example of why judging isn't just calling balls and strikes.

His name is Troy Davis. Maybe he's innocent of the crime for which the State of Georgia desperately wants to kill him. Certainly, the evidence of his guilt, the evidence that got him on death row, has pretty much evaporated. Most of the witnesses against him have recanted their testimony. Another person has apparently confessed to the crime.

Maybe he did it, but tried today, by competent attorneys who know what we know now, he would almost surely be found not guilty. At the least, there are serious concerns.

His case is before the Supreme Court now. They granted a stay of his execution a couple of months ago while they decided whether to hear the case. It's a decision they didn't make before their summer recess, so Davis gets to live until at least the fall.

Oh, the question: Does it matter if he's innocent? Specifically, is the Constitution offended by the execution of a factually innocent person. Oddly, the Court has never said. As I've noted before, Justice Scalia is clear (here) that he believes there to be no constitutional impediment to executing "an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate."

It's true that the Fifth Amendment says that nobody can be deprived of life without "due process of law." But is it a deprivation of that process to kill the innocent? When do we become sufficiently offended?

It ain't just balls and strikes folks.