Not To Decide Is To Decide. Or Not.

It was probably fifteen or more years ago that I used to say I'd have to give up death penalty work one defense one day because I'd get to where I could no longer stomach being a cog in the death penalty system.  You know, since all the capitally accused and convicted are entitled to counsel (unless they're alleged to be terrorists and Joe Lieberman or Dick Cheney - or Eric Holder and Barak Obama? - were to get their way), if all of us just refused to take the cases, the system would stop.  But if we keep taking them, they'll keep getting some death sentences and killing some clients.

I said that to a young capital defense lawyer from another state one night.  We were at the bar after a full day of death penalty seminar.

YOUNG LAWYER:   But if you don't take them, they'll just find some bad lawyer to do the work.  You won't stop anything.
ME:  But I won't be helping them kill.  I won't be part of the system making it possible.

Probably ten or more years ago, a cocktail reception at a bar association function (the sort of thing I've never much been inclined to attend).  I was shooting the shit with an appellate judge, one I knew had some qualms about the death penalty.  Roughly, it went like this:

ME:  I couldn't ever do what you do.  I'd have to recuse myself from every death penalty case because I couldn't ever vote to affirm, not matter what.
JUDGE:  You have to be willing to affirm so that you can be there to reverse when that's appropriate. 

I don't really know what to make of all that.  I understood the judge's point about having to work within the system in order to achieve what can be done.  I get the idea that the perfect shouldn't be the enemy of the good.  I understand that saving a life is worth a lot.  On the other hand, how many people do you kill along the way?

I didn't say anything to the judge about being an enabler.

I still do capital defense.  And I still have some degree of ambivalence about doing it because I was right all those years ago.  If I'm working in the capital system, which I am when I defend in a death penalty case, then I'm helping to prop the system up.  No matter how good a job I do, and no matter how successful I am, I'm being an enabler.

But my subject isn't me.  My subject is the Honorable A.J. Wagner, Judge of the Court of Common Pleas of Montgomery County (Dayton), Ohio. And it's about State of Ohio v. Cody W. Henderson.

Cody along with his mother, Pandora Zan, is in jail facing a whole bunch of charges in the stabbing death of Charles Zan (Pandora's husband and Cody's stepfather) back in October.

It's taken a while, but on May 13, the charges against Cody were upgraded to include death specifications.  Later that day, Judge Wagner took himself off the case.  Lou Grieco, writing in the Dayton Daily News, notes that this is the first capital case Wagner's been assigned in ten years on the bench.  And he can't go through with it.

In his recusal, Wagner cited both his opinion that capital punishment is unconstitutional as well as his spiritual beliefs as a Catholic.
“I adhere to a belief that an individual’s temporal life begins at conception and ends when we are reclaimed by God,” Wagner wrote. “It is not for man to determine that end time, but for the creator. God was very clear about this when he gave the law to Moses, ‘Thou shall not kill.’”
Wagner noted that the American Law Institute, which developed the model penal code used across the country in death penalty statutes, including Ohio, withdrew that code in October. The original version was written in 1962, and the model code was cited by the U.S. Supreme Court as a way to “avoid the unconstitutional, unfettered discretion found in the implementation of capital punishment,” Wagner wrote.
Now, the ALI, a group of lawyers, judges and legal scholars, say they cannot devise a standard that would remove the arbitrary nature of capital punishment. “Further, believing it impossible, they have given up on even finding a standard that will work.”
Wagner noted other concerns, including that, as of 2008, 62 percent of death row inmates had killed a white victim, while only 32 percent had killed a black person. He also wrote that, since 1973, 139 defendants nationwide have been released from death row after evidence showed they were actually innocent. Five of those were in Ohio, and another seven Ohio inmates were removed from death row after they were found to be mentally retarded, Wagner wrote.

In fact, Wagner wrote a 24 page Request for Recusal expressing his misgivings and asking the presiding judge to take him off the case.  Here's the nutshell version.

I have given life sentences in the past and would not hesitate, given the proper circumstance, to impose life without parole. Death, however, is different.
The Ohio Code of Judicial Conduct Rule 2.11 (C) states that a judge "may disclose on the
record the basis of the judge's disqualification." Thus, below I give my reasoning for recusal. Although it boils down to my refusal to order the killing of a human being based in my belief that life is sacred, I believe a broader explanation is in order. This explanation is in two parts.
The first is an explanation as to why, in my opinion, the death penalty is unconstitutional.
This is not a ruling, but a list of the injustices that I cannot ignore because they result in the State putting someone to death. These same arguments would not necessarily apply to a life sentence for which I would not see the need to recuse myself.
The second explanation covers my spiritual reasoning for recusal. In every trial I advise
prospective jurors, "The Court will instruct you concerning the law as it applies in this case and it will be your sworn duty to follow that law as instructed; is there anyone, perhaps for religious or personal reasons, that cannot accept the law as it will be explained to you by the Court and apply it to the facts in this case and ultimately reach a verdict solely upon such facts and exhibits that are admitted into evidence?" The judge is likewise sworn to uphold the law and when she or he cannot do so for any reason, the judge must disqualify herself or himself.

Here's the full version of his discussion.

Wagner - Henderson Recusal  

(And here is the complete document, which has appended to it over 100 pages of material from ALI.)

Good for Judge Wagner.  He won't participate in a system that might require him to sentence someone to death.  And he's willing, and able, to explain with some eloquence why he believes that such a sentence is fundamentally wrong and immoral.  That's no small thing.  Let it be a lesson.

Bad for Judge Wagner.  His refusal to particpate means that a judge with serious concerns about the death penalty, one who would examine a capital case with the utmost care, won't get involved.  He won't be there to override the jury's verdict of death should that be appropriate.  He won't be in a position to stand up and say, "Not this time."

We ask jurors not to give up their fundamental beliefs.  Then we say we want a fair a cross-section of the community (though only of those parts of the community that have no real problem with state murder) to speak for the community.  We insist that is, that the community's view be represented, but we similarly insist that some part's of the community's view be prohibited from representation.  In this day of the Tea Party Movement (no taxation without representation), we're perfectly comfortable with representation for me but not for thee.

And so there's Judge Wagner.

Because he admits to his voice, he believes it must be silenced - at least within the halls of justice.

We used to say, "If you're not part of the solution, you're part of the problem."  That was glib and therefore false.  But it wasn't altogether false.

Judge Wagner won't be an enabler.  It's a moral stand.  A righteous stand.

And maybe, just maybe, in this one instance, we're all the worse for it.

h/t - Kevin W & OTSE