O brave new world

Let's pretend, for the moment, that they're serious. Let's assume that they really are going to start from scratch and figure out a way to kill people that's

1. Within the competence of the folks they can find to do it;
2. Based on lethal injection and is quick and painless as the Ohio General Assembly demands;
3. Sure and certain and constitutional.

Let's assume, they can thread that needle.

According to the Columbus Dispatch today, everything is up for grabs.

Injecting deadly drugs into muscle and bone, using a single, more powerful drug, or using an entirely different combination of drugs are options being reviewed.

Prison officials are consulting with Dr. Mark Dershwitz, a University of Massachusetts professor of anesthesiology who testified for the state last year as a paid expert witness in a lethal-injection lawsuit in federal court. He has consulted with several states on lethal-injection litigation.

Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction, said, "We're considering all options at this time. It could be a backup or a complete change."

So there's no telling what they'll do. On the other hand, there's no need for them to do anything. After all, Walburn said, DRC Director Terry Collins, who is presumably overseeing this ghoulish rethinking of how to kill, is "fully supportive of the execution team and the current protocols."

So whose idea is it? And who's going to oversee it.

Walburn said there's no time limit and that Strickland can grant further reprieves. Strickland said, in granting the reprieves to Reynolds and Durr, that Biros will be killed in December and that they've "made progress," whatever that might mean. Perhaps it just means that they've spoken with Mark Dershwitz. He's the anesthesiologist from the University of Massachusetts who testifies for the states in lethal injection cases explaining that the administrative protocols and procedures are essentially foolproof.

It's perhaps worth a moment's thought to remember two others who've worked with the states on improving the technology of death.

There was Fred Leuchter. He claimed to be a trained engineer, and after studying execution technology, concluded that the various states all did it badly. He redesigned electric chairs and gas chambers and designed a lethal injection system, all to ensure that executions would be carried out surely and humanely. He obtained contracts with several states to install and maintain his equipment. Lots of publicity, lots of money. Until the bubble burst.

It all came out when, due to his expertise, he went to Auschwitz to examine the gas chambers as a paid expert on behalf of a Holocaust denier on trial for his views. Leuchter concluded that the Holocaust just didn't, you know, occur.

At which point people began looking more closely. Turns out Leuchter wasn't actually an engineer. And he didn't really know what he was doing. He would basically blackmail states into hiring him. When they refused, he'd testify that their technology would fail and cause horrific, grotesquely painful executions. He was discredited, convicted (on a plea) of practicing engineering without a license.

Unmasked as a sham and scoundrel. But a damned interesting one. Errol Morris made a documentary film about him, Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr. (A transcript is available here.)

And then there's Jay Chapman. He was the Oklahoma Medical Examiner who, in 1977, in response to a question by a state legislator looking for a humane way to kill, spent three weeks working out the formula for the three-drug cocktail which has been the forumul used in lethal injection throughout the country. His position has been consistent: If it's done right, the cocktail he developed will result in a quick and essentially painless death. That's a view nobody seriously disputes.

The question, though, is whether it's done right. And Chapman's recognized the basic problems:

• It often isn't done right.
• The people who do it often aren't competent.
• There are better drugs to use.
  
• The second drug serves no useful purpose.

And so they'll make something new up. Or not. Because we know that the current system is both deeply flawed and beyond reproach.

"O brave new world," Shakespeare has Miranda say in The Tempest. She speaks in wonder at what to her is newfound beauty and love.

When Aldous Huxley took the phrase for the title of his distopian novel, Brave New World, the wonder was replaced with deep satire.

Ohio advertises itself as "The Heart of It All." It's a pretty cold cold heart.

PERSPECTIVE: The Killing (To Resume Soon?) State

What's next?

We've got a breather here, though it may not be much of one. Officially, it's two men long and lasts only until December 8 when Ken Biros is still supposed to be killed. Doug Berman's calling it a "mini-moratorium," and if it really only lasts that long it's hardly worthy even of that name.

Romell Broom's re-execution (a term you don't find many opportunities to use) is on hold until after Judge Frost rules after a hearing at the end of November. Ken Biros (scheduled to be killed in December) and, it now appears, Lawrence Reynolds (March 9 is his new execution date) are going to be part of that hearing, too, though only Broom will have the claims about trying to kill him twice.

While everyone prepares for those hearings and whatever comes out of them, litigation on other fronts is ongoing.

The Ohio Supreme Court today ordered the Attorney General to respond to Broom's petition for a writ of habeas corpus. Broom asked that court to prohibit further efforts to kill him. Don't hold your breath. On the other hand, we're in something very close to uncharted legal waters here. Remember, the only other time an execution failed so badly that they just gave up one day was 16-year-old Willie Francis in Louisiana in 1946. In that case, and after the Supreme Court gave the go-ahead, in a decision with no serious precedential value today, they killed him.

Then there's Lawrence Reynolds. The Sixth Circuit's 2-1 decision yesterday to order a stay and remand the case for a hearing before Judge Frost is only partially mooted by Strickland's reprieve. The reprieve effectively moots the stay unless Judge Frost takes till after March 9 to decide, which is possible but hardly the sort of thing anyone would be counting on. On the other hand, the remand for hearing before Judge Frost remains effective. So Reynolds is back - or is he?

Press reports indicate that before the Governor granted the reprieve, Attorney General Cordray had filed in the U.S. Supreme Court to lift the stay imposed by the Sixth Circuit. As of this writing, the Supreme Court website doesn't have any indication of that on its docket. But Law Dork, in this important post includes a link to the AG's filing. And according to the New York Times,

In a statement issued late Monday, Mr. Cordray said the appeal would continue despite the governor’s decision to postpone the executions.

Law Dork points out (here) that other comments by Cordray indicate that he's an enthusiastic supporter of executions whose main concern about the death penalty is that we don't kill enough people. So it seems he's pushing for broad authorization to shut down the whole LI debate in Ohio. What's interesting is that if the Court were to agree to hear some broad-based challenge it would probably grind executions in this state to a halt for a while. So maybe he just wants a quick ruling that the Sixth Circuit had no right to grant a stay, which would probably end other Sixth Circuit stays based on Broom, but might have no broader consequence.

In any case, and I should note that I have no particular track record on these predictions, it seems unlikely that SCOTUS will step in to declare unproper a stay which has been effectively mooted. In fact, it's not clear that the Court would really have the authority since there's no longer a case or controversy on that to resolve.

That's just what's readily going on in the courts.

Meanwhile, Alan Johnson has a story in the Columbus Dispatch on just what is cruel and unusual punishment in violation of the 8th Amendment in which he quotes a few of the comments to earlier stories. It's ugly out there.

And then, of course, there's the ongoing study by Ohio officials about how to do things differently. Well, maybe there's a study. Strickland says that DRC has been working diligently on a back up plan since they failed to kill Broom. There's absolutely no other evidence that it's true, and there's good reason to believe that they've done nothing. Certainly, they've been remarkably quiet about anything they have done. But let's consider.

The reprieves were obviously the right thing to do. It would be, at best, embarrassing to carry out executions while the courts are actually reviewing the question of whether the last execution was so badly screwed up that future executions would be unconstitutional. Of course, Strickland didn't say that was the reason for the reprieves (and maybe it wasn't). What he said is that DRC is trying to come up with a back up plan.

OK, every system should have a back up of some sort. According to Judge Sutton of the Sixth Circuit channeling Cordray's office, the Ohio protocol calls for stopping the execution if they can't make it work in two hours. In fact, the protocol calls for a huddle when and if they decide they're stuck. And it allows them to quit at that point. Essentially, the protocol says, "We'll cross that bridge when we come to it."

But this is a plan about killing. You know, when murder method A doesn't work, go on to murder method B. That's stark. And Strickland says they're making great progress in finding a method of lethal injection that doesn't involve lethal injection:

Since September 15, Department personnel have diligently researched a range of potential back-up or alternative procedures for lethal injection that would comply with Ohio law. Although they have made substantial progress in this regard, more research and evaluation of back-up or alternative procedures is necessary before one or more can be selected. In addition, the selection of a back-up or alternative procedure will require training and other preparation by the Department in order to incorporate it fully into the Department’s lethal injection protocol.

So it's hard to find and hard to implement, but they're making great progress - which I assume means they've decided that lethal injection by insertion of a urinary catheter is off the table as an option. At least I hope so.

In any event , there's now at least and at last there's some acknowledgment that our system needs help. But it needs it quickly. By insisting in his reprieve order that Biros should still be killed in December (Judge Frost may have something to say about that), Strickland has put a strict limit on how long they can take to find and implement a new method.

An AP report from this morning says that they're

considering using lethal injections into inmates' bone marrow or muscles.

The report also says "that everything is on the table," which pretty much means that nothing is. (Maybe they will result to the catheter.)

It keeps coming back to this: The desire to kill runs up against the difficulty in killing. I know I'm being naive here, but you gotta ask if it's worth the effort. In that context, it's important to note that some politicians are willing to jump into the fray and take a real position.

Jennifer Brunner, the Secretary of State who's running in the Democratic Primary against Lee Fischer in the hope she'll get to run for the Senate next year, published this piece in the Huffington Post right after the Broom fiasco. The death penalty should be ended, she says, and certainly we need a moratorium. In Massachusetts, Democrats running for Ted Kennedy's seat in the Senate are arguing about who's more sincerely committed to abolition.

And it's not just the Democrats. Travel down to Texas and you'll find Senator Kay Bailey Hutchison, running in the Republican primary for governor against Rick Perry, taking him on over effectively shutting down the commission that was about to hear and review the evidence that Cameron Todd Willingham, executed in 2004, was factually innocent:

I am a supporter of the death penalty, but I also believe that 100 percent of the people who also believe the death penalty is a deterrent think we need to have all of the evidence and all of the technology to assure that when such a punishment is given that we have all of the evidence and the capability to assure that the person is guilty.

I definitely disagree with the governor changing the commission just before the hearing that would perhaps lend some light on the technology that would determine whether arson was a factor.

It's another case where the governor is trying to maintain a loyalty to him but not to the responsibility person on the commission had taken to the people of Texas and our judicial system.

Ya think?

So maybe a tide is turning. Maybe it's time. A little political courage might go a long way right about now.

Start with this: It's not about equivalence. We're not willing to match what they did. Once we abandon that pretense, we can give up the whole killing thing. Murder is murder.

Sometimes it really is that simple.

Credit where it's due - II

If you missed it, and even if you didn't it's worth a recap, he called them off.

Around 4:40 this afternoon, the Governor stepped in and issued reprieves for Reynolds and Durr. Reynolds now has until March 9 and Durr until April 20. It was so obviously the right thing to do that I never really thought it would happen.

He issued a statement, along with the reprieves.

Since September 15, the Department of Rehabilitation and Corrections has been working to establish a back-up or alternative lethal injection protocol in the unlikely event similar circumstances arise when implementing the death penalty in the future.

While the department has made progress, additional time is needed to fully conduct a thorough and comprehensive review of an alternative or back-up lethal injection protocol that is in accordance with Ohio law.

See, we have no plan B. The protocol says that if they're having trouble, they'll put their heads together and try to figure out what to do next. That's not a plan. So now they want to have one. You know, if we can't kill him easily, how should we do it?

Still, some fallback position more clearly established than, "We'll cross that bridge when we come to it" is obviously a sensible idea, even if it does mean an alternative execution scheme.

So Reynolds and Durr have some time. Not so for the next three (December, January and February). Strickland is holding to those dates.

For now.

We'll see.

It's good, at least, that there's finally some acknowledgment that our system needs help.

Now comes the really hard part: Admitting that there's no good way to go about killing people.

A momentary pause or a real moratorium? Or maybe just a burp.

Lawrence Reynolds won't be murdered on Thursday. Maybe.

You know the back story. Since May 2006, there have been three horribly botched execution efforts in Ohio. Most recently, the State of Ohio's crack execution team worked at it for two hours on September 15 but ultimately failed in its effort to kill Romell Broom. The state planned to try again a week later, but ultimately agreed that it would do nothing until a federal Judge Gregory Frost held hearings at the end of November. (See here and here, for instance.) Among the key questions:

1. Are Ohio's execution procedures unconstitutionally flawed as written?
2. Is Ohio really as incompetent as it seems to be?
3. Regardless of what's in the written protocols, does Ohio's execution process entail a "demonstrated risk of severe pain" sufficient to make the system unconstitutional?

The hearings will explore these questions for Broom and also for Ken Biros (who was going to get a hearing regardless).

The problem is that there are two other men Ohio wants to kill before the hearing occurs. Lawrence Reynolds on October 8 and Darryl Durr on November 10. What about them? Good sense suggests that their killings should be stopped. Even if you think the state should be in the murder business, it's reasonable to say that they should stop killing people until they've determined how to do it properly. But good sense has never had much to do with this.

Reynolds asked the Ohio Supreme Court for a stay. The state opposed the request. The court denied it. (Documents here.) Reynolds asked the 6th Circuit court of appeals for a stay. The state opposed the request. This morning, in a 2-1 decision, the court granted it and ordered Judge Frost to hold a hearing. Presumably, that will be part of the Broom/Biros hearing of November 30.

But don't let's go popping the champagne corks just yet.

As the Columbus Dispatch notes, the state can ask the entire 6th Circuit to review what the panel did. And the state can ask the Supreme Court to reverse the panel decision. Will the state ask? I don't know. What will happen if they do ask? I don't much like my guesses, but the truth is, I don't know.

Guarded hope for Reynolds seems to be the watchword.

Which brings us to Darryl Durr and the other men with execution dates.

Judge Sutton, who voted against stopping the Reynolds killing, noted that granting his motion has a broader consequence:

The last problem with Reynolds’ motion for a stay is that there is no way to grant it
without effectively imposing a moratorium on implementing the death penalty in Ohio.

Sutton found that problematic. I find it encouraging.

One can only hope.

UPDATE

I'm told that the state has asked or is about to ask the Supreme Court to jump in and lift the stay the Sixth Circuit imposed this morning. More news as it develops.

Celebrity Justice. Or not.

Think about it another way.

Roman Polanski has spent the last 31 years or so living in France and Switzerland, making movies, winning an Oscar, and oh yeah, being a fugitive from justice. On his most recent trip to Switzerland - to attend a festival and pick up a prestigious award - he was arrested by Swiss authorities who have been, at last, asked to extradite him to the United States so that he can face whatever he might face for his crimes.

Perhaps we should be specific. He was charged with the drugging and multiple raping of a 13-year-old girl. He entered an agreed plea to something like unlawful sexual intercourse with a child under 14. He fled the country when word reached him that despite expectations when he entered the plea, the judge would impose some period of incarceration as part of the sentence. As is the case in all agreed pleas, the truth is murky.

In a plea bargain such as this one, the defendant (Polanski, here) admits to something less than the charges in return for the certainty that the sentence will be less than the potential sentence if found guilty at trial. The state obtains a guilty verdict and some sentence avoiding the risk that the defendant will prevail at trial and go free. Both the defendant and the state save the cost and stress of a trial. And when the alleged crime is a child rape, everyone avoids the public ugliness. The details of the allegation needn't come out. The child needn't suffer the stress of getting on the witness stand but also won't have to answer to cross examination.

The problem is that when everyone is willing to live with the bargain, nobody knows what actually happened. The reduction in risk and burden is also a reduction in accountability for the defendant and for the system.

[A brief aside here to note that the Duke lacrosse team did not rape Crystal Gail Mangum, and the Hofstra five did not rape Danmell Ndonye. Those cases never went to trial because the evidence that the allegations were false was clear and overwhelming and revealed and presented before things got that far. (And what is it about college students, anyway, that brings forth these false charges of gang rape?) There's no way of knowing how many false rape charges are prosecuted (but see here for an interesting discussion of the question). It's a certainty that it happens, though, and that some people are convicted of them - some even plead guilty.]

Polanski is now in his mid-70s. The girl now in her forties. He has been angling to get the prosecution dismissed. She has supported him in that effort, though she insists that he is guilty. The press, the arts communities (there's more than one) and the blogosphere are all in high dudgeon over Polanski's arrest and possible extradition.

It is, depending on who you listen to, an outrage or about time. Those who disagree are blinded by celebrity worship, wholly immoral, 21st Century Javerts chasing the noble Jean Valjean out of sheer vengence, Ashcroftian moral crusaders, or . . . . Enough. It's getting ugly out there.

Which brings us to that other celebrity rogue who's treatment has gotten attention lately, Andrew Sullivan. You remember, he's the friend of President Obama who got busted by the feds for blowing a bit of weed on federal property at Cape Cod. Unlike what happens to everyone else facing that charge, the local U.S. Attorney decided that the case against Sullivan should be dismissed because he'd suffer collateral consequences from a prosecution. The thing is most of those people who do get prosecuted suffer those same consequences, and nobody cares.

Yes, the government has discretion about who and when to prosecute. And yes the collateral consequences of prosecution are appropriate considerations to weigh when determining whether to exercise that discretion. (See commentary here, unearthed by Doug Berman here.) But when that discretion is only exercised in favor of the wealthy pal of the Pres with one of the most important political blogs in the country, well, you gotta wonder about abuse.

Don't misunderstand. Child rape is a vile act for which there's no excuse. Possession of marijuana (and this is in small amounts for personal use) shouldn't be a crime at all.

But the truth is that it looks a lot like Polanski got preferential treatment 31 years ago, and is being targeted now because he's charged the LA prosecutors with misconduct back then. And all of that is based on who he is. The ordinary child rape defendant wouldn't have been able to flee the jurisdiction in 1978. If he did, they'd have brought him back and nobody would have blinked. And if they hadn't found him for 31 years, they'd probably have forgotten all about it. Just as the public posturing on all sides is a consequence of his celebrity, so is every event in the case.

Same for Sullivan. What they did for him they should do for everyone. But anyone who spends even a brief time in the trenches of criminal law knows they don't.

Paris Hilton spent more time in custody than the typical drunk driver because of who she was. Michael Vick. OJ. The list goes on. Some do better for the celebrity, some do worse. What it never seems to be is irrelevant.

Cartographer's Plot

There's a line in Rosencrantz and Guildenstern Are Dead, Tom Stoppard's great reworking of Hamlet, where, while they are on a boat heading for England, one says to the other something like, "What is this England, anyway? I don't believe in England." The other responds with my favorite question in all of literature. "What do you think it is, a cartographer's plot?" I want to talk about Law (with the uppercase "L" intentional).

As Greenfield points out with regularity (here, for instance, and here), there's a huge disconnect between what happens in law school and what happens in the real world of legal practice. He's clearly right about that. Whether it's a problem is, I suppose, a question of what you imagine law school ought to be.

If it's graduate school goal, aimed at the intellectual endeavor of learning theory and understanding jurisprudence and "learning to think like a lawyer" (whatever that method of thought might be), then traditional law school education is probably an adequate model. If it's the trade school goal, aimed at turning out actual lawyers who can represent actual clients in actual legal practice, that traditional law school education is probably somewhere between worthless and dangerous.

In days of yore, the standard way of becoming a lawyer was to be apprenticed to one. You'd "read for the law" by working for a practicing lawyer, and at some point you'd become certified (or certifiable, perhaps). Along about 1850, we got the stand-alone law school and shortly thereafter the idea that one learned law not by doing it but by studying judicial opinions and being grilled on what they meant and how they might apply in other contexts.

Since that educational model bore no clear relationship to the practice of law, it became wedded to the bar exam. Passing the test, which serves as the final hoop to jump through in the certification system, would demonstrate not that you'd learned the law (which is what a law degree was supposed to demonstrate) but that you had some idea about what to do with that learning. So there you have it, the newly minted lawyer, learned (and degreed) in the law and tested in practice. Except, of course, without necessarily having either exposure to or actual testing in practice. Pass the bar exam, take the oath, and you can immediately start ruining the lives of real people.

Frankly, I'm enough of a pointy-headed intellectual to think that all that theoretical schooling has some value. My concern is that we don't add a mandatory component of some sort of real internship at the end of it. Like the physician who cannot practice without some supervision upon licensing, so for the lawyer. BigLaw and agency law and being a prosecutor supposedly provide that, though the problems with the way law is often practiced at BigLaw and agencies and prosecutors' offices indicate that they often do a bad job.

But all that's by way of introductory "going to the sheep" (a lovely phrase meaning "a digression" I learned last night at the dinner accompanying a conference of Romance Language professors).

Onto the Law.

I have, over the years, spent a fair amount of time with young lawyers and with law students. One of the things they tire of hearing me say is that I don't believe in the Law. That is, I don't believe in the law school idea of Law. It's interesting. I sometimes enjoy studying it. I spend a lot of time, perhaps too much, thinking about it. I even use it in my legal work. But it's nonsense, as much a fiction as the emporer's new clothes, and nearly as worthless as they for the legal equivalent of staying warm and dry.

I know of no better way to explain this than with the troublesome case of Paul House. House was charged, convicted, and sentenced to die for the 1985 rape and murder of Carloyn Muncey. Through years of appeals and post-conviction proceedings, he maintained his innocence. A federal district court, though concluding that he'd procedurally defaulted his innocence claim (by not pursuing it at all the proper times in state court), nevertheless held a hearing to see if he could present enough evidence of innocence to overcome the default. It concluded he did not.

Eventually, the case made it to the en banc Sixth Circuit. That mean that all fifteen of the active judges on the court would hear the case. In House v. Bell, the court issued three conflicting opinions (available here), which together say pretty much all there is to say about law and politics and fundamental fairness, here's what happened.

Judge Norris, writing for eight judges appointed by Republican Presidents, held that House should die:

Despite his best efforts, the case against House remains strong. We therefore conclude that he has fallen short of showing, as he must, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.

Judge Merrit, writing for six judges appointed by Democratic Presidents, said that House was obviously innocent and should be released from prison immediately:

I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide.

The final vote was Judge Gillman's. He, too, was appointed by a Democratic President. He concluded that it was a really close case and House should get a new trial.

Because the majority voted to affirm the district court, absent further action, Paul House would be executed.

Let's summarize: Fifteen judges, each of whom claims to be following the same legal tests established by the same laws and clarified by the U.S. Supreme Court reach three different conclusions. Every Republican judge believes Paul House should be killed. Six of Seven Democratic judges believe he should be set free immediately. The seventh Democratic judge thinks it's too close to call and that he should get a new trial. The result is that House should have been killed.

In any rational system, in any fair system, this could not be the outcome. Judges would not split perfectly along party lines. There would be some consideration on the part of those who think he should die that, given the astounding degree of difference on the other side, perhaps they should look again, even give up a bit of their certainty. Same for the folks who thought he should be freed immediately.

What the Sixth Circuit's House opinion teaches is that the law is not about the Law or about fairness or about justice. It's about politics, pure and simple. At least, it is much of the time. At least, it was for House.

House's is an extreme case, and the Sixth Circuit is, in this regard, an extreme court. But we see much the same thing in SCOTUS. It may not be precisely that ideology trumps legal analysis, but you know, if you pay any attention to these things, where most of the Justices will align themselves on most controversial issues long before they vote. And the number of 5-4 decisions from the Court indicates just how broad and stark these divisions are.

What they teach you in law school is that the rules matter and the precedents matter not basically for their own sake but because that's how the law works. Judge's apply precedent fairly. There may be some ideological underpinning, but basically if you have the case law on your side, you win.

But you know, spend some time where I've spent it, in the criminal courts in Texas and Ohio, and you come to see that just isn't true in any consistent way. Politics, ideology, courage, the local newspaper, disgust. These control.

I was arguing a case in the Sixth Circuit. The first words from one of the judges indicated that he'd conducted his own testing of what the evidence showed and concluded that my representations of its significance were wrong. He's supposed to be limited to the record below. He's not supposed to conduct an experiment. But I knew going in that I would lose even though I was legally right. The court wasn't going to rule for my client unless the other side completely screwed up. The law be damned.

And so it is with the Law. It's the framework used to justify the decision otherwise made. It's the excuse, not the basis. They don't teach that enough in law school, don't teach enough about power, don't teach enough about politics.

And it's not just that the traditional law school model, and even the ever-more-common clinical classes plugged into that model don't really teach how to craft an opening statement or pick a jury or decide on a theory of the case or even how to ask questions on cross-examination. It's that they don't teach the real skills, whining and pleading.

They don't teach you in law school how to get on your metaphorical knees and beg a judge to let you have the money to hire an arson expert when the government claims that your client is guilty of arson because, hell, why bother. After all, the government had an arson expert and he concluded the fire was arson. You expert would just agree, so what's the point. No cash, sorry.

They don't teach how to ask the judge to give your client less time when the newspaper's just put out an editorial calling for a sentence greater than that allowed by law. They dont teach you how to deal with the media, how to say "no comment" without looking like you're afraid to comment or how to comment in a sound bit short and clear enough to get onto the 11 o'clock news.

And they don't teach you that the Law is something you have to use, but not something to believe. "[T]he law," Mr. Bumble said, "is a ass, a idiot." Often that seems to be so. More often though, the Law is a sham.

Mike, at Crime & Federalism has the best tag line in the blawgging business,

Because everything I was ever told was a lie.

As Stephanie Plum would say, "Damn skippy."

--------------------------
Paul House is, by the way, alive today and out of prison. The U.S. Supreme Court took in his case and reversed the en banc Sixth Circuit. By a vote of 5-3 (Alito not participating, but given the rest of the lineup it's clear that he would have voted for death given the opportunity) and in an opinion by Justice Kennedy, the Court said that House did not prove he was innocent but made enough of a showing that the lower courts had to attend to the merits of his claims. (Opinion here.)

Ultimately, he won a new trial and the State of Tennessee, after some posturing, dropped the charges.

Texas Two-Step

"[W]ho needs Rick Perry?" That's the question posed by Bidish Sarma at the end of this intriguing post at A Criminal Enterprise.

The issue is Perry's blatantly politcal ploy in replacing three members (including the chair) of the Texas Forensic Science Commission just two days before they were to hold a hearing to explore whether Cameron Todd Willingham, executed in 2004 for the arson murder of his children, was factually innocent. Perry signed off on the Willingham killing despite strong evidence at the time that the purported arson was no such thing. The evidence has only gotten stronger since then. By replacing the Commission members just before the hearing, Perry effectively scuttled the hearing, which the new chair has put off at least temporarily and has suggested he may not hold at all.

[If you've somehow missed this story, or any part of it, click on Cameron Todd Willingham in the "Labels" section on the right. Read those posts and follow the links.]

Anyway, Sarma's argument is that maybe we're relying too much on the Commission to declare Willingham the dead innocent guy and therefore putting too much attention on Perry. Why can't the Texas legislature hold hearings and acknowledge the truth? Why not the courts?

As advocates, we need not focus only on the Governor, deplorable as his actions may be. Let us hold the entire government responsible, until someone steps up. Inaction here is as contemptible as Perry’s bad action.

Well, sure.

But it's the Texas Legislature that created the Commission to do just that. And it's the Texas Courts that have proved singularly uninterested in innocence or other justice related issues.

The law of Judge Roy Bean legend (Hang 'em first, try 'em later) has remarkable resonance in a state where the criminal courts are presided over by Judge Sharon Keller. She's the one who explained to Frontline that

We can't give new trials to everyone who establishes, after conviction, that they might be innocent.

She was talking about the denial of relief to Roy Criner whose rape conviction was so scuttled by DNA evidence that ultimately George Bush pardoned him. She's also the one who ordered the courthouse doors locked in September 2007 thereby preventing a late filing that almost surely would have prevented the execution of Michael Richard. We await a decision in her disciplinary hearing over that adventure (see here).

And of course, Keller's not alone. There's Judge Shaver who, commenting on a death penalty case before him where the lawyer slept through much of the trial (and not the only such case in Texas), said

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Strictly, of course, that's true. The framer's didn't think they needed to make that rule explicit. They probably figured that it would be covered by the general right to counsel, the one that SCOTUS says means the effective assistance of counsel. But why look to SCOTUS?

The Texas tourism industry used as its slogan for some one (and maybe still does), "Texas: It's a whole other country." As best-selling author Sarah Palin might say, "You betcha."

Anyway, Sarma makes a perfectly reasonable point when he says that we don't need Perry or the Texas Commission to acknowledge the innocent guy. And, frankly, we weren't likely to get them. Killing the wrong man is bad. Killing a man for what wasn't a crime at all may be even worse. Don't expect ready acknowledgement from anyone involved.

And why should we.

Look, the dead innocent guy is the holy grail of abolitionists. (Actually we have the dead innocent guy. He was Frank Lee Smith who died of cancer after 14 years on Florida's death row, and was exonerated by DNA - which identified the real killer -- 11 months later; the holy grail is the executed innocent guy.) They (we) believe that putting a name and face on an incontestably innocent guy who was executed will move people in a way little else can. And we (they) may be right.

But a concession that we screwed up, and we're not likely to see it from any quarter in Texas, may not be what we need. Heck, we came damn close to that from Governor Ryan in Illinois when he emptied death row, granting full pardons to four of the men there. The truth is that we probably need something more definitive for that particular grail.

But you know, Perry's political shenanigans may be almost as good. When the Governor so fears unleashing the truth that he's willing to be caught playing politics to hide it, we have a greater truth to which we can point.

If you fear what you might learn about Willingham, what about the next guy? If we're afraid to find out, aren't we implicitly saying this happens a lot? We may not have, right now, Willingham as a poster child for the executed innocent. We may have something better. Rick Perry as poster child for the recognition that they're out there. And he's scared.

I've said a lot that I don't know what happened to Willingham's kids. Neither does anyone else. I know there's no credible evidence Willingham killed them, but that doesn't mean it didn't happen (though it sure throws doubt on the prospect). But I know Perry is scared. We all know that, just as we know that Ohio officials are lying when they say we have a competent and capable execution team.

When government officials make it an official practice to hide from the truth and to deny the truth when confronted with it, when they do it so blatantly that everyone knows, the effect is that they admit it. And they reveal that even they don't believe in the very system they're hiding and lying to prop up.

I keep saying we need to face up to what we do. Public lying in so obvious a way is, paradoxically, facing up to the truth.

So the answer to who needs Rick Perry is that we do. His efforts to hide from the truth do more to make the truth convincing than his open embrace ever could.

Thanks, Rick.

Will they sterilize the needles now that they know they may not actually kill anyone?

So they think torture is OK.

Without explanation, without comment, without dissent, and without a shred of apparent concern or human decency, the Supreme Court of Ohio today refused to stop the murder of Lawrence Reynolds. The court thus proved again the applicability to it of Justice Jackson's words about the U.S. Supreme Court.

We are not final because we are infallible, but we are infallible only because we are final.

There were two entries, issued simultaneously here. I reproduce them in their entirety.

MERIT DECISIONS WITHOUT OPINIONS

2009-1740. In re Reynolds.
In Habeas Corpus. On petition for writ of habeas corpus of Lawrence Reynolds and respondent’s motion to dismiss. Motion to dismiss granted. Cause dismissed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, and Cupp, JJ., concur.
O’Connor, J., not participating.

MOTION AND PROCEDURAL RULINGS

1996-1956. State v. Reynolds.
Summit App. No. 16845. This cause came on for further consideration upon the filing of appellant's motion for stay of execution scheduled for October 8, 2009.
It is ordered by the court that the motion is denied.
O’Connor, J., not participating.

That's it. Cold and spare. I suppose when you say that it's OK to kill someone knowing that torture is a real possibility you really don't want to explain why. But you know, they ought to own up to it.

The good news is that there's plenty of time for intervention. The bad news is that time is running out. There remains the 6th Circuit. SCOTUS, perhaps. And the Governor.

It seems a safe bet that all the others wished the folks in Columbus had stopped this, so that they wouldn't need to go on record. None of them want much to stop it or let it go on. None want to be part of this legal and moral mess. But they all are. Whether they speak to this particular case at this particular time or not. They brought us this far.

They signed off on this killing before. They've signed off on others. They've said, some more explicitly than others, but they've all said it, that the details don't matter. It's all close enough for government work. Your government. And mine. At work.

I wouldn't want to believe it, either

While whatever crime was going on in the street, the defendant claimed that he was upstairs, down the block, gambling in a whorehouse. And he had an alibi witness.

Prosecutors salivate when they hear that the defense is alibi. It's not that they don't recognize the force of a really good alibi, it's that the alibi is almost never really good. Let me be clear. An alibi is not good just because it's true. An alibi is good if it's credible. And it almost never is.

First most people charged with crimes for which alibis are possible don't keep minute by minute calendars of where they are and what they're doing and who they were with. Neither do their witnesses. Cross examination goes roughly like this.

PROSECUTOR: So at 2 p.m. on that Thursday afternoon 26 months ago, you were driving around with the defendant looking for a place to get a pizza with pepperoni and olives?
ALIBI WITNESS: Yeah.
PROSECUTOR: And you remember that particular afternoon and remember the date and time because if you weren't with the defendant you wouldn't have wanted the olives?
ALIBI WITNESS: Right.
PROSECUTOR: What were you doing the day before at 2 in the afternoon?
ALIBI WITNESS: Probably watching TV.
PROSECUTOR: What were you watching?
ALIBI WITNESS: The game.
PROSECUTOR: Which game?
ALIBI WITNESS: Whichever one was on?
PROSECUTOR: What's the date and day of the week and time of the day that you spent with the defendant after the pepperoni and olives?

Nobody knows this stuff. If the witness claims to, the jury thinks he's lying. If the witness admits he doesn't know, the jury thinks he's lying about the alibi.

Second, the odds are that the guy who was driving your client around looking for pepperoni and olives isn't all that credible anyhow. Think about who you spend most of your spare time with. Family and friends, right? Your mother would lie for you. So would your best friend. At least, that's what the prosecutor will suggest. And it's what the jury is likely to believe.

Third, most of our clients don't have particularly savory friends to begin with. The alibi witness who could confirm that the defendant was gambling? His street name was Snake, which the prosecutor used during every question on cross examination. Oh, and Snake explained that he always gambled in whorehouses because "Sporting is my life."

The thing is that the defendant may well have been up in the whorehouse gambling with Snake or driving around looking for a pizza. Truth's a lovely thing is we can figure it out.

What got me thinking about alibis and about Snake was a question a graduate student asked me yesterday. We were talking about arbitrators (don't ask) and he wondered how they can know who's telling the truth. The answer, I said, is that they can't. So I told him about Snake. And then the rest of the class had questions.

So I told them the truth.

See, here's the thing. Our systems aren't about truth. They can't be. Truth is evanescent and fleeting and ultimately unknowable. Scientists do experiments to falsify. If the result of the experiment conflicts with the hypothesis, and if the experiment was done properly, then the hypothesis is wrong, or at least incomplete. If the experimental result agrees with the hypothesis, well, then there's agreement. It's evidence, but not final. There's always another experiment. Cold fusion, anyone?

The only things that are incontestably true are true within a defined framework. Parallel lines do not meet in Euclidean geometry because that's how we define parallel lines within Euclidean geometry. But there's also non-Euclidean geometry, and the answers vary. The universe has a curveture because our definition of universe is limited to this particular one in which we live, but the universe of universes is beyond our ken.

Ohio courts ostensibly observe the "physical facts rule," which says that testimony positively controverted by physical facts is immaterial and should receive no weight. As the Ohio Supremes explained in a products liability case back in 1975, the issue is whether "circumstantial evidence of physical facts is so conclusive as to wholly rebut oral testimony presenting a different version." So if the plaintiff says that he was permanently and totally disable from a war injury but evidence reveals that he reenlisted in the army two more times, the plaintiff won't be believed. (That's an example from a federal case in 1942.)

The physical facts rule makes so much sense that we shouldn't be surprised to discover only a minority of states observe it. (We should, perhaps, be surprised that Ohio is part of that minority, but then it's a rule we observe only nominally. It seems that courts never find circumstances in which it applies.)

The thing to note about the physical facts rule, though, is that it's about what we should believe. Some things, the rule says, simply aren't worthy of belief, so they must not be true.

The key word is belief.

Look, I explain to the client who tells me that it's his word against the word of the cop so he can't be convicted because that's a reasonable doubt. Reasonable doubt is about proof. Proof isn't about what you think or I think or even what's true. It's about what 12 jurors are willing to believe. They'll have a hard time believing you were gambling with Snake when there's all this other evidence that you were doing whatever. You may have been with Snake, but they have to believe that just a little bit for it to help you.

That's both why we have an adversary system and a consequence of it. The parties present and challenge each other's evidence (let's leave aside for now the fact that the defense need present no evidence at all). The jury sifts through it and decides what to believe. The goal in presenting evidence (or challenging it) is to make your position believeable. The long-term hope is that the results will accord with something we're willing to think of as objective truth often enough that the system won't implode.

So there's a metaphorical pathway here. What's presented as evidence is intended to be proof sufficient to engender belief which results in a verdict that, we hope, approximates truth. But the system isn't about truth because that's a will-o'-the-wisp. It's about belief, about whatever it is of which those jurors can be sufficiently convinced. And because it's about belief rather than unknowable truth, it's going to be wrong some substantial-but-impossible-to-know percentage of the time.

That's true of the criminal justice system and the civil system. We're going to get things wrong some. Factually wrong. We need to acknowledge and accept that. The problem is that the post-trial systems are terrible at catching and fixing those mistakes. The reasons are understandable. (Finality is a virtue; new evidence will often be no more compelling of truth than the old evidence; we can't really know the truth, anyhow; for just three examples.) But the consequence is one we should accept.

All of which is what takes us from Snake to Texas Governor Perry.

Snake was probably lying for his friend (and gambling and whoring buddy). But maybe not. We don't know the truth, cannot know the truth, and only have the word of the witnesses. Frankly, at this remove (it's considerably more than 20 years since I read the transcript), I don't recall the crime or the sentence or even the defendant's name. I have no insight whatsoever into whether he was factually guilty, and I have no reason to think anyone has ever even considered pursuing the matter after he was convicted. (I didn't represent him at trial.)

Then there's Governor Perry. He signed off on the killing of Cameron Todd Willingham by the State of Texas back in 2004. Back then, there was considerable evidence that the fire in which Willingham's children died, the fire he was executed for setting, was not set at all. It was, even in 2004 evidence seemed to indicate an accident that Willingham had no part in it. Since then, the evidence of Willingham's innocence - and the complete evisceration of the evidence of his guilt - has become remarkably clear. (The story is fully laid out here; I blogged about it here and here and here.) Three men only, it seems, remain adamantly convinced that Willingham did it.

The prosecutor maintains that although the fire was not arson, Willingham set it in order to kill his children. Yes, that's right, he acknowledges that there was no arson but claims that Willingham killed his children by burning their house down. Like the White Queen, he is comfortable in the belief in impossible things. It is a useful dissociative skill, I suppose, if you don't want to think you're responsible for the death of an innocent man. Hard to blame him for some degree of self-delusion.

Doug Fogg, who conducted the local fire investigation (the state's investigator is dead), maintains that it was an arson and the large number of nationally recognized and respected experts who disagree don't know what they're talking about. The evidence of arson, since fully discredited by scientific experiments, he insists is right and the science is wrong. (See here.)

And then there's Governor Perry. He doesn't explain much, just says he has no doubts. What he has is some power. In this case, the power to conceal. Tomorrow, Friday, the Texas Forensic Science Commission was to meet and review the accumulating body of exonerating evidence in Willingham's case. It would then make a recommendation. If it were objective, the recommendation would be that Texas acknowledge having killed an innocent man.

Except the Guv ensured that won't happen, at least not tomorrow. Yesterday, he replaced three members of the Commission - including its chairman. Hearing's off. Innocence delayed, if not precluded. Truth - it's just a fleeting thing. Why even bother?

There are those, many in fact, who believe the Earth to be no more than 10,000 years old. They, too, insist that the contradicting science is simply wrong. One may acknowledge the depth of their faith without believing that they can serve usefully as experts in the analysis of geological strata.

As I keep saying, I don't know what caused the fire that killed Willingham's three children. But neither does anyone else. What we've run out of is proof, run out of evidence that there was an arson. What remains is belief. Sometimes that's just a euphemism for delusion.

Tom Paxton explained:

I Believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

Oh the building inspector came around,
And he poked his head inside my door
Just as the plaster missed his head
Then he smiled and said,
“Well the building looks quite safe to me."

And I believe, I do, I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The politician told me just the other day,
That he really didn’t want the job at all,
But he would make this sacrifice for me,
If I would only place my trust in him.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And the labor leader told his membership,
That his limousine was no extravagance at all.
His cocktail parties at Miami Beach,
Merely helped him roll the Union on.

And I believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

The Commissioner of Public Safety called,
On the people to support their local cops,
Who never ever use any extra force,
When a kindly word would do as well.

And I Believe, I do. I believe its true.
I believe exactly what they tell me to.
I believe, I do. I believe its true.
I’m a simple guy, I believe.

And there seem to be even more believers than ever these days.

********************
I can't find a free version of Paxton singing it. This is some other guy.
http://www.youtube.com/watch?v=vTNDDNuNB50