And the Truth Shall Reveal You Killed an Innocent Man

Open covenants openly arrived at.

If you are of a certain age, perhaps you remember that idea from high school history classes. It was the first of Woodrow Wilson's Fourteen Points for how to establish and ensure world peace. In full, that first point called for

[o]pen covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

Naive, certainly, and it turned out an impossible way to conduct diplomacy, it was also a powerful statement about the importance of transparency.

If it doesn't work for diplomacy, though, we've enshrined it in the Constitution for court proceedings. It's at the beginning of the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.

The grand jury which is where charges are brought in the first place is another matter. Here, for instance, are the secrecy provisions for grand juries as set out in Rule 6 of the Ohio Rules of Criminal Procedure:

(E) Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No grand juror, officer of the court, or other person shall disclose that an indictment has been found against a person before such indictment is filed and the case docketed. The court may direct that an indictment shall be kept secret until the defendant is in custody or has been released pursuant to Rule 46. In that event the clerk shall seal the indictment, the indictment shall not be docketed by name until after the apprehension of the accused, and no person shall disclose the finding of the indictment except when necessary for the issuance of a warrant or summons. No obligation of secrecy may be imposed upon any person except in accordance with this rule.

All of which is a fancy and long winded way of saying that although people who were witnesses at a grand jury can talk about what they said if they want to, nobody else can talk about what went on there without a court order, which isn't easy to get. Oh, and the prosecutor can be told. (The federal rule is far more complicated, and much longer, but it similarly favors secrecy.)

There may be good reasons for keeping grand jury proceedings secret. In 1910, the Supreme Court of Ohio offered this partial explanation in the legalese of the day.

It is not constituted evidence in the case for any purpose. The proceedings before the grand inquest is not a trial. As yet it has no adverse parties before it, and the person whose conduct is being investigated has no right to appear there except by permission, and then not as a party, but as a voluntary witness. He cannot take his attorney with him before the inquest, nor has he a right to interview grand jurors touching what is said or transpires there. Therefore, the grand jury room is a secret chamber where, independent of fear, favor and affection, and unmoved by malice, hatred or ill-will, charges against persons may be investigated and indictments presented, if the facts warrant such presentment.

All of that means that grand jury testimony is (1) untested, and therefore not all that reliable, and (2) far more reliable than trial testimony so that (3) it's good for everyone that it be kept secret. Is your head spinning yet?

In fact, of course, all sorts of investigative proceedings are kept secret while they're underway. The question is whether that's a good idea. Which brings us, as we've so often been brought, to the case of Cameron Todd Willingham.

You'll recall where we are in the plot. Governor Perry had taken the opportunity, two days before the Texas Forensic Science Commission's hearing on Willingham's innocence, to replace the chair of the Commission. That ground the hearing to a halt before it began.

Perry said it was the merest coincidence. He wasn't trying to interfere with the Commission - and any commission who said otherwise (and there was, indeed, such a member) was a damned liar.

Why, after all, would he oppose the hearing. The purported expert hired by the Commission was only a "supposed" expert (the word and the quotation marks are both Perry's by the way) nobody would believe. And anyway, Willingham was a monster and therefore must have killed his children and deserved to die even if he had nothing to do with the fire in which they died. And of course he must have started the fire because he was a monster who deserved to die and the experts who said he didn't were only "supposed" experts .

Pretty much nobody believed Perry about the coincidence thing then. Pretty much nobody believes it now.

Well, we've now got some follow-up. Scott Henson at Grits For Breakfast directs attention to the news, as reported in the Texas Lawyer, that the newly appointed chair of the Commission, John Bradley, wants to hold that hearing after all. But in secret. You see,

It’s not a good idea to conduct an investigation in a public forum.

He doesn't say why, exactly, though he does opine about the risk.

When investigations are conducted in public, it is difficult to protect them from outside influences.

Just what those influences might be is hard to say. Perhaps the media might intimidate the Commission into honesty?

Here's 's summary of what Bradley plans to propose to the Texas Senate Committee overseeing this cluster fuck.

• Making investigations secret and meetings about them closed.
• Re-education of commissioners: "Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says."
• Lengthening terms for commissioners. (No word why the governor couldn't just reappoint if continuity is so important.)
  
• Creating new rules and procedures for the commission (no detail).
• "Clarifying" whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire's word for it.)

And here's his commentary.

Hardly anyone attends FSC meetings - at the last one in Houston not a single media member showed up, including this blogger - so the secrecy request can only be a reaction the Willingham uproar, which was raised to a national issue with Bradley's abrupt appointment by Governor Perry to chair the FSC and his subsequent decision to cancel all commission activities. What's more, Bradley thinks the public shouldn't get to know what taxpayers bought for $30K from the expert hired to advise the commission - a proposition that seems like a really big stretch, to me, anway.

Dick Cheney would be proud. It's so much easier to whitewash the truth if nobody gets to see you doing it.

Kill Them Anyhow

There really is more than enough blame to go around.

The other day, Scott put up a blistering post about Sullivan & Cromwell, one of those biglaw, white shoe firms that took on a death penalty case in Alablama and then screwed it up. Here's the story, mostly courtesy of Above the Law, which is where Scott found it.

Alabama doesn't provide post-conviction counsel to pursue issues that aren't part of the trial court record. (You know, newly discovered evidence, ineffective assistance of counsel, favorable evidence improperly hidden by the prosecutors, that sort of thing.) So when Cory Maples was sentenced to die, he needed volunteer help, and he needed it badly. The ABA has a whole recruitment and assistance project for just that purpose. So do a couple of local bar associations.

It's important work, and biglaw is perfectly capable of doing it. When those firms take on the cases they can provide the resources that are desperately needed (and were probably denied at trial) for trial phase level investigation, for mitigation investigation, for mental health investigation. They have banks of attorneys that can do research and write, and they have access to experienced capital lawyers - not mostly on staff, of course - who are willing to offer assistance.

In Cory's case, Sullivan & Cromwell came through, providing a couple of associates in its pro bono program and whatever all else they did. They filed their papers and pursued their case in the Alabama trial court. To nobody's great surprise (or so I imagine), they lost. That's how these things work. You're making the record and taking it up the legal ladder looking for a court that will grant some relief. But you have to make the record (apparently S & C did), and then you have to be sure to keep it alive.

All law has procedural hurdles. That's especially true of criminal law, and especially of post-trial criminal law, and especially of capital post-trial criminal law. The first of these hurdles is not to miss a deadline that counts (some do, some don't). S & C missed a big one. They didn't file a notice of appeal after they lost in the trial court. In fact, they didn't even know they lost in the trial court because they returned the notice unopened.

See the lawyers who were handling the case had left S & C and the new lawyers hadn't filed an appearance and . . . . Oh, hell. There's really no excuse.

S & C tried to fix it. They asked the judge to reissue the order. He refused to participate in that sort of "subterfuge." They asked the court of appeals to let them off the hook. Nope. Deadlines is deadlines. (And death is death, of course, but that rarely seems to bother a court.)

Scott's point, not wrong, is that S & C blew it.

Biglaw has made some significant contributions to the cause of death row defendants, taking their cases pro bono, both as a public service as well as a training exercise for their associates. Better that they should practice on death row inmates than major (paying) corporations. Mistakes on paying clients had dire consequences. Mistakes on death row inmates, not so much. Even if their motives were suspect, at least they filled a void of representation, and often did some great work and won some major victories.

But Cory Maples remains on death row because Sullivan & Cromwell blew a deadline. I wonder how many partners and associates will turn out to watch as he's put to death. The execution chamber isn't big enough for a law firm of Sullivan & Cromwell's stature.

That's all right. And it's an important bit of chastisement that S & C will probably never notice.

But there's another point lurking here. One I pointed out in a comment to Scott's post and for which I received a legitimate reprimand. He didn't say I was wrong, he said that he chose the point he wanted to make.

I'm choosing mine, and making it here.

S & C screwed up, which is terrible. But death penalty cases are screwed up all the time. The real problem is that we let them get screwed up and then don't provide a repair mechanism.

When Roger Coleman (a guilty man who convinced a great many otherwise savvy people he was innocent and who had a strong enough innocence claim that, at one point, he might well have been found not guilty had he been retried) lost his post-conviction proceeding in Virginia, his lawyers missed, by three days, their deadline for appealing to the Virginia Supreme Court. That court dismissed the appeal as untimely. The U.S. Supreme Court agreed.

This isn't about Coleman, Justice O'Connor made clear in the first sentence of the Court's opinion. It isn't about whether an innocent man should be put to death. It isn't about fairness or decency or justice. It's about something else, she said.

This is a case about federalism.

With those words, she killed Roger Coleman, though it took another year before the folks in Virginia actually strapped him in the electric chair.

See, like Alabama, Virginia didn't really give a hoot about anything except its damned procedures. And Coleman's lawyers screwed them up.

When a lawyer screws up a civil case, the lawyer can get sued for malpractice so that, at least in theory, the poor sod who's out some money can recoup it from the lawyer. When a lawyer screws up a capital case, the poor sod gets executed.

Take Ohio. We have a statute that says that a person who has been sentenced to die is entitled, on request, to appointment of counsel to represent him in preparing and filing post-conviction pleadings.

The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

Sounds good, doesn't it? The condemned gets not just any lawyer, he gets a lawyer who has gone through special training, has experience, and has been certified by the Supreme Court as being qualified to take on this sort of work.

What's that you say? I didn't quote the next sentence of the statute? OK, here it is.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

Yep. That's really what it says. You're entitled to the appointment of highly qualified and certified counsel. The state will choose your lawyer from only those it's quite sure will do a good job. But if the lawyer doesn't? That's your problem.

It's not the lawyer's problem. It's certainly not the state's problem. You get a lawyer. But it's OK if the lawyer fucks up. No flies on the state. You just die.

So what are we doing here? Why in the world should Alabama not have an obligation to ensure that the people it wants to kill are actually well represented? Why should it think that its deadline is more important than ensuring that Cory Maples really is guilty and really deserves to die? Why should Ohio say you're entitled to a lawyer, and they'll even provide one, but if the lawyer messes up, that's your problem?

Capital cases are screwed up all the time. Trial lawyers make horrific mistakes or just do a terrible job. So do appellate lawyers and post-conviction lawyers and federal habeas lawyers. We're all running around trying to clean up the messes left by the lawyers below.

The states create unforgiving procedural hurdles because finality is so much more important than niceties like getting the right result. Congress set up even more unforgiving hurdles and absurdly rigid standards to make it harder for the men and women on death row to show that they shouldn't be there. The courts enforce those standards and hurdles with inconsistent but all-too-often unforgiving rigor.

Big law. Little guy. Doesn't much matter, in the scheme of things. When the mistake is made by the lawyer, we kill the client.

And nobody seems to give a damn.

Uglier and Uglier

So much to talk about, I'm not sure where to begin. And I'll have to board my plane in a few minutes. So here's two stories, quick and dirty. With links.

Maricopa County

Right now, there may be no more openly lawless place in the country. Let me be clear about that. The law there is lawless, and the law is just fine with that. Here's the video.

You see Sheriffs Deputy Adam Stoddard decide to invade the attorney-client privilege. He pulls a paper out of defense counsel's file. He reads it, gives it to another deputy to copy. That's a theft offense. He gets caught.



Defense counsel points it out to the judge, who was willfully blind. Good for counsel, but when the judge tells her to calm down, she does. Bad for counsel. What just happened calls for force and continuted outrage. The prosecutors were no more than four feet away. Like the judge, and in the inimitable words of Sergeant Schultz, they "saw nothing." They are, of course, the forces of legal law and order. They are mute.

The follow up comes from Heat City. (Actually, all of this comes from Heat City.) There was a hearing before the presiding judge. Stoddard lied, repeatedly, in court. Then the lawyer who represented Stoddard apparently contradicted his client. Then the judge declared that he would do nothing about the invasion of attorney-client privilege unless the client agreed to waive the privilege.

More outrage over this at Defending People and Simple Justice.

Ohio Supreme Court

It's come to pass. The Ohio Supremes today scheduled two more executions. Michael Beuke is now scheduled to be killed on May 13. Richard Nields is scheduled for June 10.

Of course, right now, and as a continuing consequence of the failed execution of Romell Broom, Ohio doesn't actually have an execution protocol. But it has hearings scheduled in federal court in July to decide how to kill. So what happens in May and June? Or to Mahdi in January, Brown in February, Reynolds in March, or Durr in April?

Perhaps we'll torture them to death. Maybe not. The Supreme Court is, it would seem, just interested in keeping the machinery moving.

Oh, and in that same stack of orders that included the dates for killing Beuke and Nields, the court refused to reconsider its decision that Broom can't use the information that was originally and unconstitutionally hidden from his lawyers to try and prove that he shouldn't have been convicted and shouldn't be executed.

There's a whole lot of bad to go around.

And Then They Hugged

You can't do capital defense work for any length of time without becoming (if you weren't that way already) jaded and cynical. You learn quickly, if you didn't know, that the real world of capital law is driven by politics and by money and by race.

If you didn't know before, you come to see that innocent people really do get convicted and sentenced to die, and even executed. You certainly come to see that despite decades of pronouncements from the courts, there's no rational way to determine who will live and who will die. And you learn that almost nobody else in the system - not the cops, not the prosecutors, not the judges spends much time trying to understand how these things can be so - and how to change them..

But if we're a cynical bunch, we're also romantics. The cynicism may be learned. The romaniticism is inbred. The combination gets us up in the morning.

And so it came to pass that I was sitting in a conference room with a couple of hundred of the very best, most committed capital litigators in the country, and when Jennifer Thompson-Cannino (I think she just went by Jennifer Thompson at that time) finished telling her story we leaped to our feet, applauding her courage and her actions, tears flooding many an eye.

I don't have my records handy, so as I write this I believe that was before Texas killed Gary Graham, though it might have been after. But she told the story, also, in a Times op-ed just before that killing. It's an extraordinary tale, not because it's so unusual (alas, it isn't) but because she tells it at all. And because of where it ended.

The short version:

In 1984, Jennifer Thompson, a 22-year-old, blonde college student in North Carolina was brutally raped at knife point by a black man. She studied the rapist because she wanted to be sure. If she wasn't killed, she was going to be able to identify him and make him pay.

She wasn't killed. She helped police make a sketch of the rapist. Then she picked him out of a photo array. Then she picked him out of a line-up. Then she identified him in court. On her testimony Ronald Cotton was convicted and sentenced to prison for life. He got a second trial. She identified him again. Cotton said that another man, one Bobby Poole, had confessed. She looked at that man in court and said, absolutely, in certainty and in all honesty, that she'd never seen him before. Cotton was convicted again. This time he ended up with two life sentences.

Eventually they did DNA testing. Cotton was innocent. Poole was the rapist. After 11 years in prison, Cotton was freed and received a full pardon from the governor.

That's an amazing story. I can't imagine the courage it takes for Thompson to tell it to open up about what she did, about how she was wrong, about the dangers of eyewitness identification how easily and with what certainty it can be mistaken.

But see, that's only the beginning. For something else extraordinary happened.

Jennifer Thompson decided she had to meet Ronald Cotton. He described what happened.

"Mr. Cotton. I don't even know what to call you. Ron? Ronald? Mr. Cotton? If I spent the rest of my life telling you how sorry I am, it wouldn't come close to how I feel," Jennifer said. "Can you ever forgive me?"

Raymond Chandler, writing about detective fiction, said

in everything that can be called art there is a quality of redemption.

Life, of course, is often less credible, less realistic than art. Ron Cotton's answer was as simple and honest as Jennifer Thompson-Cannino's question:

I forgive you.

And then . . . . They hugged. They became friends. As did their families. And they spoke out together.

And now they've written a book, Picking Cotton: Our Memoir of Injustice and Redemption.

I know the story. I've known it for years. I cried when I first heard her tell it in that room with a couple of hundred capital lawyers. I cried when I read it in the Times. I cried when I read the book. I even cried as I typed out her words and his response just now.

The book's not a literary classic, but it's an incredibly moving and powerful story. And a seriously cautionary tale. I wish prosecutors would read it and learn. I wish judges would. Frankly, I wish defense counsel would. You should.

And We Are The Poorer For It

His name was Peter Shellem. He died a week ago, at age 49, perhaps by his own hand. For the last 23 years he was a reporter for the Patriot-News in Harrisburg, Pa.

Not just any reporter. Pete Shellem was something more. While working a full-time courts beat, he did the sort of investigative journalism they used to make movies about. Not the glossy, flashy stuff that would bring down the king (though he did that, too - more in a bit). It was the grittier stuff. He freed the innocent.

There was Steven Crawford, arrested for a friend's murder when he was 14. Shellem turned up notes showing that a state police chemist had altered laboratory results to help obtain a conviction. Crawford was released after 28 years.

There was Barry Laughman. He was coerced into confessing to the murder of a distant relative. It turns out that slides containing DNA evidence from the case were in Germany. Shellem tracked them down and had the testing done. Laughman was freed after 15 years.

There was David Gladden, mentally retarded, convicted of killing and then burning the body of a 67 year old woman. Shellem's the one who discovered that she had been living next to a convicted serial killer who killed his victims the same way she was killed. And Shellem showed that the neighbor's alibi was a lie. Gladden spent 12 years in prison.

There was Patty Carbone convicted of killing the man she said was trying to rape her. Shellem demonstrated the gaps in the evidence against her and the great likelihood that she was telling the truth. She served 12 years.

There was Jay Smith sentenced to death for three sensational killings. Shellem turned up the evidence that showed the prosecutorial misconduct that overturned his convictions and that, according to the Pennsylvania Supreme Court, was so "egregious" that a retrial would violate his rights against double jeopardy. He was in prison for six years.

And then there was the time he brought down the king.

From 1994 to 1996, Shellem headed a series of stories about justice being sold for campaign contributions in the office of then-Pennsylvania Attorney General Ernie Preate Jr.

The investigation resurrected a stalled federal probe. Preate, facing potential racketeering charges, eventually resigned and pleaded guilty to mail-fraud charges.

It's Preate, who now does prison reform work, who described Shellem as a "one man Innocence Project."

Perhaps it's no surprise that he wrote the chapter on wrongful convictions in Crime Classification Manual: A Standard System for Investigating and Classifying Violent Crimes.Digging through records and tracking down DNA isn't glamorous. But Shellem wasn't glamorous. A fellow reporter on the Patriot-News described him this way.

Forget “The Front Page” or Woodward and Bernstein. Think Columbo without the charm.

The New York Times called him "relentless," and offered this description.

A bearded, barrel-chested man, Mr. Shellem could have been cast as a B-movie reporter. He knew the first names of many bartenders in Harrisburg. He would sit in a bar poring over court transcripts and interviewing sources.

“I don’t want to lead anyone to believe I go to bars only to get stories,” he once said, “although it would be nice if my editors did.”

The Times lifted that quote from a profile of Shellem in the American Journalism Review.

The Patriot-News is a comparatively small paper in a comparatively small place. So most of us didn't know who Pete Shellem was. As Scott Greenfield said the other day, that's a shame.

Pete Shellem, was someone worth knowing and admiring.

His name was Peter Shellem. He died a week ago, at age 49, perhaps by his own hand.

Of the People, By the People, For the People

Reluctantly!?

Tuesday is election day. Toledo has now slogged through an astounding sixteen years under its so-called strong mayor system. For twelve of those years, Carty Finkbeiner has been mayor. Next year he will not be. All Toledoans may now sigh in relief.

It's worth just a moment to recall how Carty became mayor in the first place. He beat Mike Ferner in a squeaker. The polls all showed Mike ahead. By a lot. But the Blade, which had originally urged Mike to run, went all out for Carty with a front page endorsement and days of ad hominem attacks on Mike.

In any event, Carty won. then he won again. Term limits required him to sit out a term and Jack Ford became mayor. Four years ago, Carty beat Jack. This time he didn't run.

The primary is over. Opal Covey was once again defeated. So were the more plausible Ben Konop and others. It's down to Mike Bell and Keith Wilkowski.

Today is endorsement day. All Toledo waits to see who the Blade will endorse and who, for two days at least, it will savage.

Were these two candidates individuals with disparate capabilities and qualities, we might suggest that voters suffering from a strong case of what we'll call "Finkbeiner fatigue" simply choose the candidate who is most unlike the incumbent.

But of course that would be the most backhanded of endorsements, and the Blade won't do that. It is, after all, as it reminds us daily, "One of America's Great Newspapers." And great newspapers must lead. So today's endorsement is:

They can't decide.

I'm fine with that. I already voted, but I'm not endorsing anyone, either. Then again, I'm not a newspaper that traditionally (that is, always) does. More to the point, I accept the fact that in our system its the choice of the voters that counts. I'm happy with that system, even if I'm rarely all that happy with the choices the voters make. But the Blade?

And so we reluctantly defer to the electorate.

"Reluctantly"? There's a truth for you. The Blade hates letting the voters decide.

You, too, of course. Don't you just hate it when the tyrant says the people can choose?