BAD DAY FOR THE ABOLITIONISTS

Two death penalty stories of note. First, New England, then Guantanamo.

New England:

In May 2000, then Governor of New Hampshire Jeanne Shaeen vetoed a bill that would have ended the state's death penalty. Yesterday, just over nine years later, Connecticut Governor Jodi Rell vetoed her legislature's abolition bill. (Stories here and here.) She's not new to this. In December 2004, when Connecticut was getting ready to kill Michael Ross (it happened in May 2005), she announced that she would veto any abolition bill. (Story here,)

In a message accompanying yesterday's veto (you can read it here), Rell said what is clearly true (there are passionate retentionists and passionate abolitionists) and what is clearly nonsense ("There is no doubt that the death penalty is a deterrent" [the emphasis is mine]).

She also took the opportunity to condemn the legislature for having "largely ignored" a study commissioned by the legislature and issued in 2003 (available here).

The report made significant and thoughtful recommendations that have been largely ignored by the Legislature, including training for public defenders and prosecutors. The goal of the report is to ensure that each decision to seek the death penalty is based upon the facts and law applicable to the case and is set within a framework of consistent and even-handed application of the sentencing laws, with no consideration of arbitrary or impermissible factors such as the defendant’s race, ethnicity or religion.

Yet at the same time she chastised the legislature for ignoring the study's recommendations, she said that she opposed them.

I believe that the current law is workable and effective and I would propose that it not be changed.

There will be an effort to override, at least in the House, but there aren't likely to be enough votes. So despite the votes of their legislatures, Connecticut and New Hampshire will, for the time being, remain the only states in New England that have the death penalty.

Guantanamo

You'll recall that back in December, Khalid Sheikh Mohammed, Ramsay Bin al-Shibh, Mustafa al Hawsawi, Walid Bin Attash, and Ali Abdul Aziz Ali the five prisoners at Guantanamo who were facing capital charges over the 9/11 hijackings all tried to plead guilty and accept execution. (Stories here and here.) The Military Commission has yet to rule on whether guilty pleas would be allowed.

Now it's reported (here) that the administration is drafting legislation that would specifically allow them to do that. Why? Because it would be really hard to convict them if we held real trials (or even sham trials). So we're going to encourage them to commit suicide by Military Commission. That way the world will see how fairly we're treating them and they won't become martyrs.

Sigh.

IN CASE YOU THOUGHT IT WOULDN'T MAKE A DIFFERENCE

On April 21, in Arizona v. Gant, the Supreme Court significantly narrowed the scope of (the dissent says the majority actually overruled) New York v. Belton and limited the scope of automobile searches incident to arrest. Under Belton as it has mostly been applied, when someone who has been in a vehicle is arrested, police may search the entire passenger compartment as a matter of course. Typically, those searches, ostensibly to prevent the arrested person from getting to a weapon in the car or destroying evidence, occurred after the person was handcuffed and placed in locked squad car. Gant says the search incident to arrest rule should be limited to its purpose.

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

The change in the rule is dramatic. The practice may be something else.

The problem is another line of search cases growing from South Dakota v. Opperman which allow police who have arrested the driver of a car to conduct an inventory of whatever is in the car in order to . . . well, they aren't searching, they're just listing what's there so that when they release the car sometime after impounding it, nobody can ever say the cops stole anything from it. Of course, if they should happen to stumble across something illegal it's OK to use that because they weren't actually examining the contents of the car in hopes of finding the bad stuff. (And if you buy that, there's a well-known bridge in New York for which I can offer a really good selling price.)

So the assumption is that every search incident to arrest will be saved by also being an inventory search.

That may well happen, but not yet.

Juan Francisco Lopez was driving over 100 miles an hour on I-75 in Kentucky. Police stopped him for speeding, arrested him, put him in the back of their cruiser, and then searched his car where they turned up cocaine and a handgun. The trial court, relying on Belton, denied Lopez's suppression motion. But since Lopez was already safely in custody and away from his car, and since police could not expect to find evidence of reckless driving (which is what they arrested Lopez for) by searching his car, the 6th Circuit looked at Gant and reversed.

Of course, next time, they'll explain that the search was really an inventory. But, for now, Gant matters.

ODDS & ENDS

Much as I try, there's just too much out there for me to carry on at length about everything that catches my eye. So here's a bits and pieces collection from the last few days.

*******

Credit Doug Berman over at Sentencing Law and Policy for finding this article in the Wall
Street Journal on how Sonia Sotomayor's "Criminal Rulings Tilt to the Right of Souter's." That won't be a surprise to anyone who's been reading and believing what I've written about her here and here and here. As the Journal notes,

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

Maybe that's why. Maybe it's tied into that background of struggle and bootstraps that makes her so (what's the word? Oh, yeah) empathetic. However she got there, She

"has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.

A friend likes to point out of judges that "none of them were put there to help us." But, gee, we could have hoped that Obama would have found one who wasn't going to make things worse.

*******

You thought prison was a growth industry? Maybe so. But you can always cut back on some things. It's tough, maybe to balance the budget of a prison system by buying fewer paper clips. But surely you can save on the really unimportant stuff - like feeding the inmates. At FindLaw, they've posted this AP report about how prison systems around the country (Georgia, Alabama, Tennessee, and our own Ohio are examples they cite) are "slimming down inmate meals." This follows the news (here and here) that in January a Sheriff in Alabama was jailed for serving insufficient food to inmates and pocketing the difference between what the state gave him for food and what he spent. (Alabama law actually allows that.)

Gruel, anyone?

*******

It almost never happens, but twice in the last week federal courts have granted habeas corpus relief because there just wasn't enough evidence of guilt.

Gerald Brown was convicted of aggravated murder in Franklin County Common Pleas Court for aggravated murder and a variety of other offenses including aggravated robbery, with each count of the indictment accompanied by firearm specifications. (The case was charged as a death penalty case, but the panel that heard it decided on a life sentence.) The federal district court denied all relief in habeas corpus, but the Sixth Circuit said, in Brown v. Konteh, that even with AEDPA deference a couple of the firearm specifications were supported by no evidence whatsoever and granted relief on those. It's hard to see how the partial win will do Brown any good, and that may be (an unspoken) part of the reason the court was willing to grant that limited relief. Still, it isn't every day that you see a habeas court grant relief on the basis that the evidence doesn't support the conviction.

Or maybe it is every day. In 1988, in Ocean County, New Jersey, Paul Kamienski was convicted of murder. Last week, in Kamienski v. Hendricks, the Third Circuit said that even with all the deference to New Jersey courts required by AEDPA, and looking at the facts and drawing inferences most strongly in favor of the prosecution,

no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts’ conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent.

It's an extraordinary decision, not least because it flies in the face of the Heinous Crime Rule. (If the crime is sufficiently heinous, there's no such thing as reversible error.)

*******

In Chicago, the public defender is out of money for death penalty cases and asking to have death taken off the table in some 60 cases. Stories about this have been circulating for a couple of months (see here, for instance), but it's big news right now.

The problem of underfunding public defense - and especially capital defense - is real and nationwide. I talked about it here, and it will surely come up again because it's not going away anytime soon (say, within our lifetimes). But let's give some praise to the Cook County PD for taking this step. The problem may not be the fault of the courts, but the courts have to do something about it.

*******

Finally, at least for the moment, The BLT: The Blog of Legal Times reports that

Two former Alaska state representatives who were convicted on corruption charges in the probe that ended the political career of Sen. Ted Stevens should be released from prison because the Justice Department has found information that should have been disclosed to the defense prior to trial, government lawyers announced.

And so, we have more in the extraordinary and continuing saga of the Obama adminstration's Justice Department demonstrating that the Bush administration's Justice Department violated discovery rules right and left in its investigation and prosecution of Republican officials and office holders in Alaska.

IT'S OVER. AND IT'S LIFE

In 1998, in Virginia, Daryl Atkins was convicted of killing Eric Nesbitt and sentenced to death.

The Virginia Supreme Court ruled on his appeal, reversed the death sentence and sent him back for a new hearing and sentencing. Again he was sentenced to be executed. This time it was the U.S. Supreme Court that reversed the death sentence. It's unconstitutional to execute people with mental retardation, the Court said in Atkins v. Virginia, and sent his case back to the Virginia Supreme Court which remanded it for a jury trial on whether Atkins had retardation or should be sentenced to death.

The jury said he did not have retardation and sentenced Atkins to death. Back he went to the Virginia Supreme Court which, because the Commonwealth's expert wasn't competent to testify about retardation, and because the trial judge improperly told the jury that Atkins had previously been sentenced to death, reversed the death sentence and remanded for a new hearing.

But now there was new evidence. It turns out that in 1998, preparing for the trial, the prosecutor was not happy with the testimony Atkins' co-defendant was going to give. So she turned off the tape recorder and spent 16 minutes explaining to him how he would have to change his story to make Atkins eligible under Virginia law for death. After coaching the witness, the prosecutor then put on the perjured testimony. And hid the exclupatory evidence.

In light of the prosecutor's knowing use of perjury and hiding of exculpatory evidence, Atkins asked the trial judge to impose a life sentence and to exclude the prosecutor from any further involvement in the case. After two days of testimony, the judge imposed the life sentence. The Commonwealth asked the Virginia Supreme Court to undo that. Today, the Virginia Supreme Court refused.

So it's been eleven years. Three death sentences. And now life.

They still haven't determined whether Atkins is, under Virginia Law, a person with mental retardation. Right now, I don't think anyone much cares.

So I'm lifting my virtual glass in a toast to great and diligent lawyering, to a court that was offended by a dishonest prosecutor, and to the Supreme Court of Virginia for saying enough is enough. And to Daryl Atkins. And to life.

Gimme a real lawyer

We've all heard the words: "I don't want no public offender. I want a real lawyer."

Civics 101: The Sixth Amendment says that anyone charged with a serious offense has a right to counsel. That's been clear since the Supreme Court decided Gideon v. Wainwright back in 1963. And it's not just any old lawyer. Counsel must be effective, competent. The standards, set in 1984 in a case called Strickland v. Washington are too low, but they exist.

So the government (and for most criminal prosecutions that means state government) has an obligation to provide competent counsel for those people charged with even slightly serious crimes who can't afford to hire their own attorney. (That's most people who are charged with those crimes, of course; crime is closely connected to poverty through it perpetrators, its victims, and its consequences.)

Nobody much disputes that government has that obligation. But nobody much wants to pay for it, either. The result is that public defenders are seriously underpaid and seriously overworked. There isn't enough money to hire enough lawyers (and give them the resources - investigators, experts, paper clips for godssake) to do the job right.

In too many cases, far too many cases, the clients are processed rather than represented. Pleas are coerced by lawyers who don't have time to investigate. Cases that don't plead out quickly languish far too long - often with clients in jail - because there's no time. Trials are badly done because cases are badly investigated and hastily put together because there isn't the time and aren't the resources to do the job right. The result is that innocent people spend long chunks of time in jail and, too often, in prison. Guilty people who should receive probation or very short sentences do long time. Vast sums of money are wasted incarcerating people who shouldn't be incarcerated.

And the Constitution, you remember the Constitution, lies ignored when it isn't tattered.

I don't mean to pick on public defenders. They are almost uniformly dedicated, brilliant, hard working, caring. They're terrific lawyers. But they too often have an impossible job that we refuse to make possible. They simply don't have the time or the resources to do their jobs the way they should. It's a real crisis, this important report issued by the Constitution Project back in April and this important story from the AP give it some life.

There are three things I need to say:

1. Some problems you can make better by throwing money at them. This is one of them.
2. The truly extraordinary thing is that public defenders actually provide, a very significant portion of the time, absolutely superb representation.
3. Dumping the work on the private bar is no solution. Court appointed counsel are as badly underpaid as public defenders - worse in many cases where the pay actually fails to meet their overhead; they have no more (and often less) in the way of resources; they haven't the training or the institutional support of public defenders. And yet many of them, too, do superb work.

The wonder of the system is that the consequences aren't worse, that the system doesn't simply collapse. But tell that to the person whose lawyer couldn't find more than five minutes to meet with her before trial and who's doing time for something she never did.

And then tell her that she was denied her constitutional rights, and that if she's ever arrested again it will probably happen again, but, hey, nobody cares.

OHIO KILLS ANOTHER

Ohio killed Dan Wilson today even though the Sixth Circuit essentially determined that his conviction on the sole aggravating circumstance in his case was improper (opinion here). That doesn't make him factually innocent, but it does mean that he was never properly convicted of the only thing that made him eligible to be executed.

That was the first Ohio execution this year. But it's not likely to be the last. As I type this, there are six (6!) more scheduled.

• John Fautenberry - July 14
• Marvellous Keene - July 21
• Jason Getsy - August 18
• Rommell Broom - September 15
• Darryl Durr - November 10
• Kenneth Biros - December 8

Those six emphasize what those of us who attend to these things know: Ohio kills more people than any other state outside the South. It's not even close. And there are at least four pending requests for execution dates in the Ohio Supreme Court.

I'm resisting writing an angry abolitionist screed here. This is a day to mourn the loss of life, not to carry on about an evil system. So let us mourn: For Dan Wilson and for Carol Lutz, whom he killed. And for their friends and families. For Dan's lawyers who fought valiantly to save his life. For those yet to be killed. And for all of us in whose name this was done. For no good reason.

The screed will come in a few days.

EVERYBODY HAS A RIGHT TO BE WRONG

In the early years after I got out of law school, I worked as a law clerk ("staff attorney" is another term for the job) for a federal judge in Texas and then for all the judges in the General Division of the Lucas County Court of Common Pleas in Ohio. In those jobs I did research, gave advice, and drafted opinions which the judges eventually signed (sometimes after editing them, sometimes not). One of the things I learned is that some judges really hate, really really really hate getting reversed.

It always seemed odd to me. A reversal doesn't mean, on its face, that the judge was seriously wrong. It just means that at least two out of three judges slightly higher up the judicial food chain came to a different conclusion. It always seemed odd to me to take it personally since being reversed goes with the territory of being a judge. If you're not prepared to be reversed, don't become a judge. This was the wisdom of Justice Jackson concurring in Brown v. Allen:

Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

All of this is relevant only because, as this article on Law.com from the National Law Journal points out, Judge Sotomayor is being attacked as stupid or incompetent or hopelessly misguided or something because of the five cases in which she has written opinions that the Supreme Court reviewed, it reversed her three times. That's a 60% reversal rate.

Shocking.

Well, not really. The article also notes that Sotomayor has written 232 opinions as an appellate judge. So another way of counting is to say that she has a reversal rate of 1.29%, which seems pretty low. Or you might note that then-Judge-now-Justice Alito's reversal rate was 100% when he was nominated. Or that the Supreme Court reverses about 75% of the time when it agrees to hear cases. Does all that mean that she's actually ahead of the curve?

Nope. The basic fact is that Justice Jackson was right and none of this means anything.

There are good judges and bad ones. There are a small number of cases where a trial judge's reversal rate is so high that it suggests an unwillingness to follow settled law, though the rate would have to be extraordinarily high really to suggest that. But the reversal rate of an appellate judge by a court of discretionary jurisdiction is, truly, meaningless.

Lawlessness in the 12th District

Useful reminder from the 12th District a couple of weeks ago (and thanks to Dan Startsman from the Clermont County Public Defender's office for pointing it out) that the law is what the courts say it is rather than what it's supposed to be.

In State v. Tranovich, the Court of Appeals for Butler County concluded that the manifest weight of the evidence didn't support Tranovich's conviction for wrongful entrustment. Accordingly, and without discussion but citing its own unreported decision from 1993 in City of Mason v. Reid, the court reversed and discharged the defendant. But that ain't what the law is supposed to allow.

A reversal based on insufficient evidence is an aquittal, and double jeopardy requires that he defendant be discharged. A reversal based on the manifest weight of the evidence is not. So said the Supreme Court of Ohio in 1997 in State v. Thompkins.

In State v. Storch, the Ohio Supreme Court said that "the 'lesser' courts of Ohio ignore our words at their peril as to questions of state law." Tranovich, then, serves as a useful reminder (at least, it does unless it's appealed and reversed), that those lesser courts sometimes feel free to do just that.

Moral: It's better to win than to be right.

RETARDATION V. RETARDATION - SCOTUS SPEAKS

There are two things about Michael Bies you need to know.

• He's been found to have mild to borderline mental retardation.
• He's on death row in Ohio.

There are two things about the law you need to know.

• The Constitution used to allow the execution of people who have mental retardation.
• The Constitution no longer allows the execution of people who have mental retardation.

Michael Bies sits on death row in Ohio. He was found guilty by a jury of the aggravated murder, attempted rape, and kidnapping of Aaron Raines in 1992. He was sentenced to death because the jury found, and the judge agreed, that the various statutory death specifications of which he was also found guilty outweighed beyond a reasonable doubt mitigating factors he proved.

One of those mitigating factors proved by Bies was that he has borderline to mild mental retardation. Both the court of appeals and then the Ohio Supreme Court in its opinion agreed that Bies had proved that he had mental retardation and that it was entitled to some weight in mitigation. Both also agreed that the death specifications outweighed mitigation beyon a reasonable doubt and therefore affirmed his death sentence.

In 2002, the United States Supreme Court decided Atkins v. Virginia, holding that execution of a person with mental retardation violated the Eighth Amendment. Since Ohio courts had already determined that Bies had borderline to mild mental retardation, you'd think that might have resolved the matter. He was found to have retardation, he can't be killed.

The state didn't agree. It wanted him to prove, again, that he qualified for the exclusion. Bies figured that he'd already done that and went into federal court and asked that his death sentence be set aside. The district court and then the Sixth Circuit twice (here and here) agreed with him. Yesterday, in Bobby v. Bies, the Supreme Court said the Sixth Circuit was wrong.

In a unanimous opinion by Justice Ginsburg, the Court said the Sixth Circuit got it wrong. According to the Court, Bies has to prove again that he's got retardation because he proved it for a different reason before. Before, you see, he proved it because he thought it should weigh against a death sentence. Now, he has to prove it because it will prevent an execution.

Oh, there's another reason, too. He has to prove it again because it wasn't enough, by itself, the first time, to win the case. Let me explain. If Bies had been sentenced to life - for whatever reason - then it would be conclusively determined for all sentencing purposes between he and the State of Ohio, that he had mental retardation. Becuase he was sentenced to die despite proving that he had mental retardation, the proof from before doesn't count.

If you think either of those explanations makes sense, then you may be qualified for a seat on the Supreme Court. But since you didn't get nominated, your qualifications don't count. Or something.

Maybe we should look at this another way. Maybe the Court was just slapping down the Sixth Circuit. If that's so, then Bies may be nothing more than simple error correction - the Sixth got it wrong (and so they all think) and they decided to fix it. Indeed, that seems to be the prevailing view. But then, why this of all the stupidly decided and obviously wrongheaded capital cases out there? What made it so egregious that the Court had to step in?

Inquiring minds want to know.

How hard is this?

You don't just naturally think that the Texas Court of Criminal Appeals is the place to go for common sense rulings and for instruction to prosecutors about how to do their jobs. But once in a while they get it right.

Consider, if you will, Ex parte Johnson, an unpublished, per curiam opinion from May 20. In two pages, the court explains that Johnson entered a guilty plea to aggravated sexual assault of a child and was doing life. He complained that Brady material was withheld and that he should get a new adjudication. The trial court agreed and the Court of Criminal Appeals granted relief. You can see why they didn't publish it: It says nothing.

Judge Cochran's concurrence, on the other hand, tells a story. Seems that five days before the trial, an investigator for the prosecutor went to the child's school and was told by school officials that the child was "a great liar" but always seemed believable. The day before trial, the child recanted. Nobody told defense counsel these things. The day of trial, Johnson entered a plea. Counsel said that, had he known, they'd have gone to trial because the case would have been a winner.

You think?

But why bother with the concurrence? Certainly not just for the sake of the story. In fact, Judge Cochran explains his motivation:

I join the Court’s opinion. I write separately because many prosecutors, acting in all good faith, may not realize that, under Brady, a prosecutor must always disclose information that the complaining witness has recanted her allegations of sexual molestation (or any criminal act) even when the defendant pleads guilty or has already agreed to plead guilty.

In "all good faith"? He's gotta be kidding. Or delusional.

Still, you've heard it from Texas. When the complaining witness recants, the prosecutor has to tell the defense.

Always.

CONFIRMATION HEARINGS

Let's talk about the upcoming Senate hearings on whether Sonia Sotomayor will be confirmed as an Associate Justice of the Supreme Court.

Today's Newswire from law.com, includes this article from the National Law Journal exploring issues members of the Senate Judiciary Committee should, but almost certainly will not, vigorously pursue with Judge Sotomayor during the confirmation hearings. It's a useful reminder that her views (and votes) on the hot button social issues that Senators get points for asking about may well have less day to day consequence than what she'd say about less sexy topics like business regulation, ERISA, criminal procedure, and standing (not a complete list).

We all know how the hearings will go. The Senators from New York will explain that she's the finest person ever to be nominated. A few law professors and fellow judges will weigh in. Then it will be time for the real show. Judge Sotomayor will read a prepared statement in which she explains how honored she is and what a fine and decent judge she'll make and so forth. Then it will be time for the ostensibly serious business.

Cue the kleig lights:

Senator ___________ pontificates for a bit, then asks a complicated, nearly incoherent question, which pared down to its essence is, "Will you overrule Roe v. Wade or declare the death penalty unconstitutional or something?" Sotomayor refuses to answer because someday she might actually have to answer the question as a Justice and therefore it would be improper for the members of the Senate or for the American people to know what she might do before deciding whether she should be allowed to do it. [Note that the Supreme Court has already said that people seeking judicial positions via election have an absolute First Amendment right to answer such questions as long as they don't actually promise how they'll vote. Republican Party of Minnesota v. White, here.]

Democratic Senators ask if she'll apply the law fairly, without allowing any personal views she might have to lead her to make decisions at odds with the Constitution. She agrees to obey the Constitution.

Republican Senators demand that she repudiate any personal views she might have and agree that well-programmed computers will surely be better justices than she could ever be because the Constitution is entirely clear and only a fool could think it actually needs to be interpreted rather than applied. She finesses the answer to that one.

Everyone agrees that courts shouldn't make policy and that wise, old, white millionaires are just as able as poor Latinas to make good decisions.

Sigh.

You know, I care how she'll vote. And I've got my hobby horse issues, too. But if you're looking for the Platonic ideal of a Justice (as opposed, say, to seeking the Justice you'd most like to have voting in any given case), what you want to talk about is judicial philosophy, intepretive methodology, analytical models, jurisprudence. And, of course, wisdom.

Don't hold your breath.