Who's a victim, anyway?

I'm teaching a class on the death penalty to undergraduates. In class the other day, working on providing some necessary background, I was explaining the difference between civil and criminal law. I used the simple example of me beating up one of the students. As a matter of civil law, he could sue me for the damages to him. As a matter of criminal law, I could be prosecuted for beating him up. That much was simple.

Then we (mostly, I) started talking about just what makes those civil and criminal actions different things, and why we have both. And we (mostly I) began spinning out some of the implications of the fact that the criminal action would be prosecuted by the state and the civil action by the guy I beat up.

A couple of hours ago, I saw that the "featured download" at the CrimProf Blog is an article by Paul Cassell, "In Defense of Victim Impact Statements." As the title suggests, Cassell argues that victim impact statements are an important. They serve, he says, four important purposes:

1. "[T]hey provide information to the sentencing judge or jury about the true harm of the crime -- information that the sentencer can use to craft an appropriate penalty."
2. They provide emotional therapy to crime victims.
3. They "educate the defendant about the full consequences of his crime."
4. They "create a perception of fairness" allowing "all relevant parties" to be heard.

Kevin Cole, the editor of the blog and the professor who actually posted Cassell's article observes that

[t]hose who believe that punishment should be pegged to the harm that the wrongdoer foresaw—for either retributive or utilitarian purposes—will disagree with some of the asserted benefits of victim impact statements.

That's surely true, and I wholeheartedly agree that having punishment be based on unforeseen (and often unforeseeable) consequences of criminal activity serves little sensible purpose and injects undesireable elements of both caprice (from the randomness of the unpredicted consequence) and discrimination (punishment meted out according to the appeal and articulateness of the victim, appeal and articulateness often serving as proxies for race, class, and gender) into punishment.

But there's another problem with victim impact statements, one that's inherent in the distinction I was drawing for my class.

See, the idea of the criminal law, as embodied in the indictment language, "against the peace and dignity of the state" is that crimes are acts against the social order, against the body politic. Criminal law is, and this is especially clear in a state like Ohio where criminal case captions identify the State (or City of Village or whatever community's law has allegedly been violated and is pursuing the charge) as "Plaintiff." But if the crime is an act against the state, there are two interrelated consequences.

First, and of passing interest, there is no such thing as a victimless crime. The very idea of a crime is that it is something that harms the state as the embodiment of social order. We can, of course, disagree about whether this or that activity ought to be considered criminal: Does, say, the use of marijuana actually harm the body politic? The criminalization of that act is, however, a legislative determination that it does.

Second, and what should by now be evident, the "victim" of a crime is not any individual but the state as the entity embodying the social order. Thus, for instance, the crime of murder is a purposeful killing which has as the victim not the person killed but the right of people to live in a society without purposeful killing (or something like that). A wrongful death action on behalf of the person killed and her survivors may address the same underlying facts but will treat the person killed as the victim.

That understanding makes clear why Cassell is fundamentally wrong. Point by point:

1. The harm of the crime isn't in the loss of an injured person, it's in the rending of the social fabric. The travail and suffering of an individual injured person is irrelevant to that.
2. Providing emotional comfort to those who suffer individually from the acts of criminals may be a nice gesture, but it is wholly irrelevant to the criminal process. If they can receive succor only from emoting in court, they should bring tort actions.
3. It may be, I suppose, that being verbally abused by one who's been harmed can serve some rehabilitative purpose. If so, let the prison and probation systems provide for it, it it be part of the sentence. That's not part of the process of criminal justice.
4. Inviting injured persons to emote in court so as to appear to be fair (without actually being fair, it seems) is to declare that the system is a sham. And since those persons are not the victims of crime but of torts, they are not "relevant parties."

If all this makes the criminal justice system seem coldly rational, well, isn't that the point? It's the impersonality of state or city or federal government against me. That's enough weight to bear without it being state or city or federal government, and secretly the person who claims to have been harmed against me.

Cassell's a smart guy. So's Cole. You'd think they'd get it.

Miranda's lawyer

Peter Baird died August 27. He was a lawyer with Lewis & Roca in Phoenix. You've likely never heard of him. I don't think I ever did until John Wesley Hall mentioned his passing. But if you didn't know Baird, you knew his most famous client: Ernesto Miranda.

The backstory, which you already know, is that Miranda was charged with rape. He gave a confession to the cops; it was used against him at trial and he was convicted. He appealed the case and the Supreme Court threw out the confession, creating the Miranda warnings in the process. It's after that, for the second trial, that Baird came on board - in time to have Miranda convicted again (this time without that confession he gave the authorities).

Baird argued cases at SCOTUS, but not Miranda's (that was two other lawyers at Lewis & Roca. But they're dead, too. So, apparently, is whoever tried the case in the first place. That's the lawyer I want to know about. The one who thought to stand up in court and ask the judge to suppress his client's confession because nobody told him he didn't have to talk to the police, the one who had an idea, a vision, a wild thought, and preserved it so that it could become the law of the land.

There are three lessons from Miranda's case - one for the criminal defense lawyer; one for the police and prosecutors, and one for the general public.

For the criminal defense lawyer: We have to be smarter and cleverer and gutsier. We have to ask for the sun and the moon and the stars. We have to ask for what nobody's gotten before and keep asking because one of these days it will be the law, but only if we keep after it. The good news is that we are smarter and cleverer and gutsier. The bad news is that too often we're too lazy to take advantage of that. We can't be. They have the cops and the newspapers and the public, and the law and the facts. We must have drive and determination and care and attention. And brains and wit and guts.

For the police and prosecutors: You don't need to lie and cheat. You have crime labs and newspapers and public opinion and the courts and the law and the facts. Play fair. You'll win anyhow. People want to confess, and you're good at talking them into it. And if the case is good, it will be good without that snitch, without that coerced confession, without the unconstitutional search. Trust the record, do your job, and obey the damn law.

For the general public. When police want to ask you questions, when they are ready to interrogate you, refuse. You have the right to remain silent for a reason. Shut the fuck up.

Peter Baird, the last man to represent Ernesto Miranda. R.I.P.

BECAUSE SHE DID: SLEAZY BLAWGERS EDITION

I've only been at this for a few months now, which makes me something of the new guy on the block in this blawging business. But I've been a lawyer for a whole lot longer, and a sentient being for longer still. Some ethical points are self-evident (you know, the ones that you learned in kindergarten).

Here's one: Don't steal. Here's another: Don't lie. Here's a third: Don't pick on guys who are bigger and tougher than you are.

One of the things I've learned in these few months blawging is that there's a community here, at least among the serious criminal defense lawyers. (Actually, serious criminal defense lawyers have always been a community.) I've never met these guys, but I've found a number around that country that I'd recommend in a minute to someone who needed help in their communities. They demonstrate their seriousness and their commitment and their passion and their work ethic and their sense of decency and their willingness to help others every day on their blawgs. I'm reasonably confident that they'd get my back if I needed them to.

Then there are the bottom feeders. There is, for instance, Melina Benninghoff of Fresno, California who claims that her practice is "100% Criminal Defense" and that she also does family law and personal injury (so that her claim of being "100% Criminal Defense" is a lie). She steals content from serious blawgers like Mark Bennett for her own blog. Then threatens them when they point it out (though she does the threatening through a purported intermediary whose grasp of English is nearly as bad as her sense of ethics). The intermediary (or perhaps Melina herself) is also engaged in something of a cross between identity theft and stalking, apparently in revenge for Bennett's objecting to having his posts stolen.

There are any number of reasons, some of them good, why people don't trust lawyers. And when we're out here on the web, when we lay ourselves out, reveal our beliefs and attitudes, our passions, our concerns, we open ourselves up.

And then the Melina Benninghoffs come along. She's an ethics complaint in waiting, a disbarment to come. She's a liar and a thief. Even if she's a great litigator (and it's hard to imagine that she is), you shouldn't hire her. You don't want her in your corner.

But if she has an enemies list, it'd probably be an honor to be on it.

BECAUSE THEY COULD: WATERBOARDING EDITION

A couple of years ago, I debated Robert Alt, ostensibly on the subject of warrantless wiretapping, in a forum put on by the Federalist Society at The Ohio State University Moritz School of Law. (They care about the whole name, especially that initial "The," which serves to distinguish OSU from all those other Ohio State Univerisities - wait, there are no others.) In fact, what we ended up debating (these things have a tendency to take on a life and direction of their own) was the foreign policy powers of the President.

Alt's position (which I'm oversimplifying here and which I'm certain he would say I'm misrepresenting, though he didn't say that at the time; he just said he was right and I was wrong), which roughly inheres in and follows from the idea of the unitary executive was something like this:

The President has plenary power under Article II of the Constitution to conduct foreign policy. Any limitation on that power, by Congress or the courts, violates the Constitution. Whatever the President does in the exercise of that power is legal because there can be no legal check on its exercise. The power ought, and certainly can, be exercised in secret. There is no right to oversight of what the President does in the exercise of that power. Not by Congress, the courts, or the public. The only Constitutional remedies for abuse are impeachment or defeat at the polls.

If you look at what he said carefully, it comes to this:

If we approve of the things the President does in secret and about which we don't know, we should reelect him. If we disapprove of the President's secret actions about which we don't know, we should remove him from office. Either way, it is constitutionally proper that we remain ignorant of the facts on which we should base that decision.

As I said at the time, I think that's nonsense. Alt, a distinguished scholar and professor and government insider who has a CV I can't possibly match for relevant credentials as a scholar of and expert on Constitutional Law and foreign policy, thought I was as full of shit as I thought, and continue to think, he was.

The debate was friendly and colleagial. A good time was had by all. Then we had a bit of pizza and went our separate ways, each convinced, I expect, that the other is both misguided and a fool.

Despite Alt and Dick Cheney and John Yoo and Gonzo and Shrub and the rest of them, it really is untenable to maintain that waterboarding isn't torture or that torture is legal when the President authorizes it.

This isn't news.

It's also not, ultimately, news to learn that torture doesn't work. And despite Cheney's public insistence that it does (now that he's emerged from his undisclosed location he's doing his best to be everywhere), the newly public record reveals what many of knew to begin with. Torture is worthless. Doubt it? Read this important piece by former FBI agent Ali H. Soufan, entitled "What Torture Never Told Us," in today's NY Times.

The "Us" in that title is real, since Soufan reveals how the FBI (and hence the government) got valuable intelligence from Khalid Shaikh Mohammed and other key Al Queda figures through traditional interrogation techniques. More, he explains that the flow of information stopped when they started torturing. Much of the evidence comes from the recently released CIA inspector general's report and other CIA memos on intelligence and "enhanced interrogations." Soufan concludes this way.

The inspector general's report was written precisely because many of the C.I.A. operatives complained about what they were being ordered to do. The inspecgtor general then conducted an internal audit of the entiree program. In his report, he questions the effectiveness of the harsh techniques that were authorized. And he slams the use of "unauthorized, improvised, inhumane and undocumented detention and interrogation techniques." This is probably why the enhanced interrogation program was shelved in 2005.
Meanwhile, the professionals in the field are relieved that an ineffective, unreliable, unnecessary and destructive program - one that may have given Al Qaeda a second wind and damaged our country's reputation - is finished.

So what now?

It's not a new question, and the administration and Congress and the public and Dick Cheney and activist organizations have been wrangling about it for some time. Roughly, here are the options:

• Do nothing because everything that was done was right and proper and saved us from more 9/11esque attacks.
• Do nothing and hope that it all goes away (the ostrich approach).
• Do nothing because it would cost political capital to do anything and neither the administration nor Congress has any political capital, having dithered away what they once had.
• Investigate with the promise that there will be no consequences should it happen that there were misdeeds.
• Investigate with the promise that there will be no consequences for low-level folks who were just following orders because really, they're just poor schumck's who didn't know better, but that those who authorized and approved criminal behavior might be held accountable.
• Investigate with the promise that there will be no consequences for high-level folks who authorized and approved criminal behavior because, well, because they're high-level folks, but stick it to any poor schmuck who just didn't know better.
• Some sort of truth and reconciliation commission that will give a pass to anyone who fesses up and seems honestly apologetic.
• Prosecute the hell out of everyone or someone.

Ultimately, the choice is political.

But if we're serious about the rule of law, that hazy fuzzy thing that means equal justice and that nobody's above the law and that government officials, especially, should be accountable for their actions and that what we do is the measure of who we are and how we should be perceived, then there's really no choice.

Except, as I said, the choice is ultimately political.

Credit where it's due

Robert Brundage was a well-loved figure in Toledo.

He was raised here, played the cello in the Toledo Youth Orchestra, attended the University of Toledo, went off to earn a doctorate in biophysics at Brandeis, stayed in Massachusetts where he worked as a scientist and engineer and owned a sound-recording company. A bit over a decade ago, he came back to Toledo.

Toledo loved him for coming back but especially for what he brought back: a commitment to community activism. Social justice, he was there; the environment, he was there; the arts, he was there; education, he was there. And wherever it was, he got there on his bicycle, traveling through the mixed neighborhood where he lived and was known. He embodied what he was and what he did. (See story here.)

And then he was killed.

He was biking home from, naturally, a meeting of the Jobs for Justice Coalition. Then, according to police and prosecutors, a 15-year old kid, Dai'Lahntae Jemison, punched him once, knocked him to the ground, and stole his bicycle. When he hit the ground, Brundage suffered a brain injury. Two weeks later, he died. (Story here.)

Shock and outrage and horror. The sort of crime we call senseless and the sort of loss we call tragic. And Dai'Lahntae Jemison, who had been charged with aggravated robbery was now charged with murder.

Because Jemison was 15, the case went to Juvenile Court where the ostensible goal is rehabilitation rather than to adult court where the ostensible goal is to punish the hell out of people. But because he was 15, and because the crime was murder, Jemison could have been transferred to the adult system. All it required was a showing of probable cause (that he might plausibly be found guilty) and he was "not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions." (The relevant statute is here.)

The prosecutor asked for the transfer, as the prosecutor always does. The Toledo Blade had a lead editorial explaining that Jemison should go into the adult system so that he could be sent to prison for life. (It could have been life without parole, though the Blade doesn't mention that.)

The pressure was on. And then something that just shouldn't be newsworthy happened. The judge, Connie Zemmelman, did the right thing. She considered the evidence before her (and good for Joanne Rubin, who represented Jemison and made a first-rate record), considered what the law required of her, and determined to keep him in the juvenile system. The state didn't prove he wasn't amenable to rehabilitation there.

This is no small thing for an elected judge in a high profile case in a community as small as Toledo and with a lock-'em-up-and-throw-away-the-key editorial policy in the local paper.

But there's this thing we call the Rule of Law. Judges aren't supposed to decide cases based on emotions, on the roar of the crowd, on the basis of newspaper editorials. The fact that Brundage was an exceptionally decent man or that the Old West End where he lived and where the crime occurred has too high a crime rate or that kids need to be warned that this sort of thing shouldn't happen has nothing to do with what Connie was to decide.

She was to look at specific factors and the evidence before them, and weigh them. And she did.

In her opinion explaining why she refused to transfer Jemison, she wrote this:

I feel compelled to acknowledge the tragedy of losing any life to such a senseless act. This is especially notable where the life taken involves someone like Mr. Brundage who has been a tremendous asset to our community. This act of violence will have a lifelong effect on Mr. Brundage's survivors, friends, and on Dai'Lahntae Jemison. These considerations are certainly relevant at the time of the ultimate disposition in this case - but they are not pertinent to the question of whether Dai'Lahntae Jemison is amenable to treatment in the juvenile justice system.

Amen.

BECAUSE THEY CAN: THE POLICE MISCONDUCT EDITION

The blogospher, or at least the blawgy part of it I've been following, is overflowing with outrageous tales of police misconduct, so I thought we'd take a dip into what's been happening across the country, and be grateful that, bad as things are wherever we are, they're bad elsewhere, too.

Jericho, Arkansas

Scott's the one who brought this tale to my attention (though only because I got to him today before I got to Turley).

In Jericho (where we can hope the walls might come tumbling down now, but don't hold your breath), there was this little courtroom kerfluffle. Here's how the AP story begins:

It was just too much, having to return to court twice on the same day to contest yet another traffic ticket, and Fire Chief Don Payne didn't hesitate to tell the judge what he thought of the police and their speed traps.
The response from cops? They shot him. Right there in court.

And in the back, by the way.

Jericho looks like an interesting kind of town. 174 residents, 7 cops (all of whom were in court for the shooting). They've had one police car and one fire truck repossessed for failure to make payments.

Judge Alexander, in whose courtroom (I assume there's only one judge, but with all those cops, you might wonder), responded by voiding all tickets issued by the Jericho cops - including those they wrote outside their jurisdiction, where they had no authority to write any.

Chief Payne, we can assume, will sue the bejesus out of Jericho, but a city that can't make the payments on the cop cars or the fire engines might not have the deep pockets to pay the damages. We'll see.

In any event, the Chief was taken to the hospital where he "remains in good condition."

Lawrenceburg, Indiana

When the cops get you in Jericho, you want to go to the hospital. But when they get you in Lawrenceburg, that's the last place you want to go. At least, if you're sober.

This time, Turley gets all the credit for finding this news on the website of WBPF-TV.

Seems that back in March, Jamie Lockard was arrested on suspicion of a DUI. Officer Brian Miller gave him a breathalyzer and don't you know, Jamie passed. Now, you might think that when they take you to the station and give you the test and you pass, you get to go home. You, of course, do not frequent Lawrenceburg.

Good officer that he is, Brian knew that breathalyzers can be unreliable (try telling that to the judge when it says you're over the limit), and Jamie was damn well drunk. So Brian took Jamie to the hospital where he was shackled to a gurney and subjected to a forced blood draw. And then, naturally, they inserted a catheter and took some urine. And damned if it didn't turn out that: He was sober.

So they charged him with obstruction of justice. I'm a little fuzzy about just what justice he obstructed, unless it's that he kept Officer Brian off the street for a long time.

Jamie is suing. Perhaps Lawrenceburg has more money in its coffers than Jericho does. Jamie can hope.

Toccoa, Georgia

Finally, there's this, from Radley Balko by way of Scott.

Jonathan Ayers, that's the late Jonathan Ayers, was pastor of Shoal Creek Baptist Church in Lavonia, Ga. He was doing his ministering, talking to a woman charged with possessing and distributing cocaine. He dropped her off in Toccoa, then went to a Shell station. He parked, went to the ATM in the convenience store, then returned to his car as a couple of undercover cops from the local drug task force pulled out of a black Escalade, guns drawn, ran up to the car, and then shot him to death when he didn't stop for them.

The woman was the target of the undercover cops. They just wanted to talk with Ayers because he was dropping her off. They never did get to ask their questions.

Is there a moral to this? Don't try to be a decent man? Don't comfort the afflicted? Don't ever fail to cooperate fully with armed men running at you with guns drawn? Or maybe, it's this: If you're a cop and just want to question a possible witness who hasn't done anything wrong, the best approach may not be threatening, and then taking, the witness's life.

On his blog, Pastor Ayers wrote, “I have three loves in my life: Jesus Christ, my wife Abby, and the Church." He and his wife were expecting their first child.

You can watch the surveillance video showing the whole thing (albeit without perfect detail) here, and read the details here.


The thing that's frightening about these stories is that they're nothing special. Just the ordinary workings of small town cops. Stories gathered over just a couple of days.

I don't think most cops are as vicious and incompetent and maybe corrupt as these folks in Jericho, Lawrenceburg, and Toccoa. Police have a tough, too often thankless job, under often horrible conditions. But we give them enormous power and then blink when they abuse it. Too much power, too little accountablility. And it's not just small towns.

Take this story from Cincinnati, where Officer Robert Kidd was fired six years ago for raping a drunk woman her drove home, then rehired, and now fired and rehired again for sending a woman a photo of his penis accompanied by the words, "Do u like?" He sent it while on duty. She was not amused (though perhaps the arbitrator who ordered his reinstatement, with back pay, was).

As Scott explained, you think someone's keeping an eye on these guys. You're wrong.

Encouraging Developments

It is absolutely clear (widely ignored, but absolutely clear) that the Due Process Clauses of the Constitution ( Fifth and Fourteenth Amendments) require the prosecution to turn over any evidence in the possession of the government that is favorable to the defense. We call it "Brady material" after the Supreme Court's 1963 decision in Brady v. Maryland. (The Court extended the rule in 1995 in Kyles v. Whitley, a case out of Louisiana.)

The evidence doesn't need to be exculpatory, just favorable - either to determinations of guilt or punishment. It doesn't even need to be in the possession of the prosecutor. The obligation is ultimately the government's with the prosecution acting as the agent (and potential fall guy) for the rest of the gov. So the prosecutor has a duty to gather the evidence that the rest of the government has, scour it for what might be favorable, and turn it over.

There's a second set of discovery obligations in criminal cases that are set forth in court rules. The federal version is in Federal Rule of Criminal Procedure 16. The states each have their own. Ohio's is Ohio Rule of Criminal Procedure 16. The federal and Ohio rules are similar but not identical. Those rules overlap Brady obligations, but require release of non-Brady material, too.

It won't shock regular readers of this blog (are you out there?) to suggest that these obligations are too often honored only in the breach. And when prosecutors do get caught violating Brady or local criminal rules, alas, the sanction is too often nothing, at most a slap on the wrist.

Anyway, that's all preliminary to a couple of developments.

DEVELOPMENT 1

The American Bar Association, which has a lot of members, a big budget, significant prestige among big firm lawyers and law professors and people who know absolutely nothing about the day to day practice of law, and no actual power whatsoever, released an ethics opinion in July that might just make a difference. It's "Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense," and as Scott Greenfield notes, we haven't been giving it the publicity and attention it deserves.

Here's the ABA's summary (all in italics in the original which makes it hard to read, so I've removed them).

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

There are three key things here.

First, the disclosure obligation extends not just to evidence but to "evidence or information." Prosecutors have too often hidden Brady material by claiming that it's not really "evidence."

Second, the disclosure must occur

as soon as reasonably practicable so that the defense can make meaningful use of it.

That might seem self-evident, but try putting it to the prosecutor who "satisfies" his obligation by turning over material during the trial.

Third, it's an ethics opinion. I know, I know. But really, there are ethical rules for lawyers. And we're supposed to obey them. When we don't, we can be sanctioned, even disbarred. (Of course, the reality is that comparatively trivial transgressions tend to result in severe sanctions against criminal defense lawyers while major violations get prosecutor's wrist's slapped just before they get elevated to the bench, but that's just how it looks to an objective observer.) State ethics rules are the ones we're obliged to follow, and they are mostly modeled on the ABA's rules and interpreted in accord with the ABA interpretations. So this opinion has, at least potentially, some actual clout. At least, it does if we push it hard.

Development 2

Here in Ohio know we've been working for years to amend our Criminal Rule 16 to provide for greater discovery, ideally open file discovery. If the state is confident enough to charge my client, it should be confident enough to let me see what it's got. The fight has been going on for years, but the rule hasn't changed significantly. Now, however, it looks like there's actually going to be a real change.

It's not pure open file discovery and it's not the rule I'd have liked, but the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association have agreed on a draft rule (see story here). With both those organizations in line, there's every reason to believe the rule will be enacted and effective in 2010. This is big stuff.

Development 3

I've talked here and here about the discovery efforts in the Rommell Broom case. The Cuyahoga County Prosecutor hid evidence at his capital trial. Shortly after the defense got it, and before the defense could use it, the Ohio Supreme Court seemed to say, in another case, that the defense can neither get nor use such evidence. So, since 1994, Broom has sat on death row in Ohio with this evidence he couldn't use. Then, in July, the Cuyahoga County Court of Appeals said that Broom could use the evidence.

But can he? The state is planning to kill him in less than two weeks, on September 15. And the prosecutor has appealed the order allowing use of the information. Yesterday, the Ohio Supreme Court almost stepped in. In a three paragraph unsigned order yesterday, the court agreed to hear the appeal and ordered expedited briefing to be completed by September 9. One hopes that if it agrees the evidence can be used, it will also grant a stay of the execution so that it can be used.

For reasons they don't explain, Justices O'Connell and Pfeifer would not have expedited the briefing.

So, what does all this mean? Is honesty to rear its ugly head in the criminal justice system? Is someone actually going to force the government to play by the rules? Integrity? Fairness? Dare I say "Justice"?

No, I won't say any of that. But it's a glimmer, a start, a basis for some hope. That'll matter to Broom, of course. And it should matter to the rest of us.

A time to heal? Nah!

Some years ago, when I was arguing with a prosecutor about the virtues of life without parole over the death penalty (not a happy choice, certainly, but the cases are what they are), he complained that our prisons are turning into geriatric wards and that any cost savings in keeping people imprisoned forever rather than killing them would be eaten up by the medical expenses.

I suggested an alternative: "Let them out. What, exactly, is the point behind keeping the comatose behind bars?" (OK, I didn't really ask that question, but I did say, "Let them out." Keeping the frail and dying in custody just because it's permitted . . . . Well, what's the point? There are common provisions for "compassionate parole" or "medical commutation" or some such thing just because of that. But then there's our need to be tough.

Consider Susan Atkins. She was part of Charles Manson's so-called "family." She admitted stabbing Sharon Tate 40 years ago in the horrific Helter Skelter killings. She's dying of brain cancer. (A year ago, she was told she had just a few months to live.) She had a leg amputated last year. The other leg is paralyzed. She has been a model prisoner, known for helping other inmates. And, to confirm that prosecutor's point (though she's not geriatric), it costs California $17,000 a year in medical expenses to keep her locked up.

So, yesterday was her latest parole hearing. (She'd already been denied compassionate release.) Her lawyer, speaking on her behalf, was apparently eloquent. Vincent Bugliosi, the prosecutor who put Manson and his followers behind bars, said last month that enough is enough. He told the Los Angeles Times, that it was wrong to say,

just because Susan Atkins showed no mercy to her victims, we therefore are duty-bound to follow her inhumanity and show no mercy to her.

and

She's already paid substantially for her crime, close to 40 years behind bars. She has terminal cancer. The mercy she was asking for is so minuscule. She's about to die. It's not like we're going to see her down at Disneyland.

But you see, we aren't yet done with vengeance. Tate's sister told the Parole Board,

I will pray for her soul when she draws her last breath, but until then I think she should remain in this controlled situation.

Why, exactly? To what end?

The Parole Board voted unanimously to deny parole. The NY Times reports that

Parole commissioner Tim O'Hara said that he and the other commissioner who presided over the hearing, Jan Enloe, based their decision heavily on the ''atrocious nature'' of the 1969 killings and said that Atkins never fully understood the magnitude of her crimes.

She never did. Now perhaps she can't. Throw away the key.

The idea behind mercy is that it's a gift, not an earned reward. The same for compassion. Or so you'd think.

Here we go again

I first saw it in a post from Turley, though it looks like the Associated Press was first out with the news cum rumor.

Justice Stevens has hired one law clerk for the 2010 term of the Supreme Court (the one that begins in October 2010). That's the news.

Justice Stevens will retire next summer. That's the rumor.

The news fuels the rumor because:

1. Active Supreme Court Justices have four law clerks each.
2. Retired Justices are entitled to one law clerk.
3. Typically, Justices hire their clerks a year in advance, so most (if not all) of the clerks for the 2010 term have now been hired.
4. Although he's often among the last to hire his clerks, Stevens typically hires all of his at one time.
5. He'll be frickin' 90 years old, fergodssake.
6. He'll have been on the Court for 35 years.
   
7. He can be assured that if he retires next summer, while Obama's still President and before things start heating up for the 2012 election, Obama will appoint and Congress will confirm a strong liberal to replace him.

Or something. All but the last are simple facts supporting the inference/rumor/speculation that Stevens will retire. The last is no more than a pure presumption. I mean, it is what the press is saying. On the other hand. Obama's first pick for the Court is deeply disappointing to many liberals (and frightening to some of civil libertarians and criminal defense lawyers such as, um, me). Whence the assumption that he'll satisfy us all as he has less political capital to spend, I'm not sure. But then, Stevens, as he'll be the first to say (at least, according to recent interviews) isn't a liberal. He's the same guy he was when Ford appointed him. A moderate conservative. It's just that the court's moved so far to the right, that moderate conservatives are now considered raging liberals.

Anyway, them is the tea leaves.

Another Month, Another Killing

They're gathering up the needles and tubes again down in Lucasville. This time it's Rommell Broom.

Broom is on death row for the 1984 kidnap, rape, and killing of Tryna Middleton in Cleveland. At his trial in 1985, the prosecutors violated their constitutional obligation to turn over all evidence favorable to the defense. In 1994, Broom finally got that information, but before he could use it to petition for a new trial, the Ohio Supreme Court said, in the context of another case, that Broom had no legal right to use that information. (It really does make as little sense as it sounds like. I discussed the situation, and its current status in Broom's case, here.)

As these cases do, Broom's moved through the courts and then the political system. In 2007, the Parole Board voted to deny him clemency (report here). Strickland didn't have to decide, then, what to do because his execution was stayed while lethal injection litigation made its way through the courts. Now, although lethal injection litigation continues in Ohio, and although a court just decided at the end of July that Broom can finally use the information he got in 1994 (opinion here), the state is gearing up to murder him on September 15.

Last week, the Parole Board issued a supplemental clemency report. They Board didn't change its mind. The fact that he can now use the evidence the state hid to try and show that he should never have been convicted - and certainly should never have been sentenced to die - they decided unanimously, is no reason not to kill him before he gets a chance to do that.

Last month, Strickland defied the Parole Board's recommendation of clemency and ordered the murder of Jason Getsy to go forward. It's about impossible to imagine that he'll ignore the Parole Board's recommendation of murder and grant Broom clemency, or even a reprieve. So it's up to the courts. I'm not holding my breath, though I'm wishing hard.

Mark it on you calendar. September 15. We Don't Give a Damn Day.