2011 - More Windmills Ahead

It's the morning of December 31.  2010 is, blessedly, almost over.

* * * * *

As a parting present, the Ohio Supreme Court finally overruled a bit of terrible law they unnecessarily, foolishly, and with an eye to figuring out how to screw more than just my client, adopted in a case of I appealed back in 1999.

I'd won in the court of appeals, cutting my client's lengthy sentence in half.  He'd gotten consecutive sentences of 8-25 years for a total of 16-50 years.  The court of appeals said that he should only have gotten one of those sentences.  The state appealed, and rather than just reversing the intermediate appellate court, the folks in Columbus took the opportunity to rewrite the law and deprive not just my client but hundreds more over the years of its benefits.  They began backing away from the decision almost immediately.  They've now formally overruled it.  And it's about damn time.

Of course, they didn't say they were wrong.  They said, instead, that the way they rewrote the statute has proved "unworkable."

My client has now been locked up for fifteen years.  He's eligible for release around the middle of 2013, but he's unlikely to get out then.  If the parole board holds him as long as it can, and if he doesn't commit any other offenses that extend his time in custody (in 2009 he was convicted of several counts of assault), he'll get out in 2050.  If he lives that long.  He was almost 16 when he was arrested.  He'll be 30 next month.  If he's released in 2050, he'll be 69.

Here's the crime.  Two guys decided to break into a home and rob the man who lived there.  My client went along with them.  While my client was stealing cigarettes and lighters, one of the others beat the man to death with a stick.  My client didn't stop the guy from getting beaten to death.  8-25 for the robbery, another 8-25 for the guy getting killed.

* * * * *

Earlier this year, I got the Ohio Supreme Court to declare that (I'm oversimplifying a lot) retroactive application of our state's version of the Adam Walsh Act, the new and especially heinous version of the sex offender registration and notification law, was unconstitutional.  That helped my clients and, literally, thousands of others around Ohio.  

But there's a group of convicted sex offenders the state refuses to grant the relief the Supreme Court ordered.  Nobody thinks they're the worst sex offenders.  They're just the ones the state figures they can still screw over.

* * * * *

In Lucasville, at the Southern Ohio Correctional Facility, employees of the state of Ohio purposely and with prior calculation and design, took the lives of 8 men this year.

• Abdullah Sharif Kaazim Mahdi
• Mark Brown
• Lawrence Reynolds
• Darryl Durr
• Michael Beuke
• William Garner
• Roderick Davie
• Michael Benge

Governor Ted could have stopped any of those killings.  He chose not to do so.  He did, however, commute the death sentences of Richard Nields and Kevin Keith.  Ted lost his bid for a second term.  He leaves office January 10.  

Frank Spisak is due to be murdered in February, Johnny Baston in March.  Ted could save their lives.  He could, in fact, pretty much empty the row.

I'm not holding my breath.

* * * * *

And you'll notice that I'm not saying a thing about Washington where, among other things the Supremes told us, for instance, that although you don't have to speak to the cops when you're in custody, you have to tell them you won't speak.

Enunciate clearly, please.

And remember:  This is a free country so you get to decide whether to be a porn star or a victim of sexual assault when you get on a plane.

* * * * *

I have motions and briefs to write, records to read, cases to prepare.  I've got oral argument coming up in April in a death penalty case.  I've got a memorandum due next week in another.  

I've got people who've lost a time or two, who are out of standard process, and who want to know if I'll help them undo their conviction or sentence.  Mostly, I can't do that; the law really does limit when you can reopen cases.  But I'll look into them enough to see whether there's a reasonable chance and, if so, whether I want to be hired to pursue it.

There's a young criminal defense lawyer in Illinois who's been writing me for advice about one thing and another.  I can't tell him anything about his local law or procedure, but I'm happy to do what I can for this man who seems genuinely interested in busting his ass for his clients.

I have the anger and bitterness and frustrations of 2010 but also the highlights.  Every silver lining has a cloud, here and there I stumble across a cloud with a silver lining.  Those are among the lessons of 2010.  And of every year.

* * * * *

Dickens understood, though he was speaking of a particular historical moment in A Tale of Two Cities.

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. 

Well, sure.  It's always like that.

More recently, there's this from Don DeLillo's Americana (1971).

Then we came to the end of another dull and lurid year.  Lights were strung across the front of every shop.  Men selling chestnuts wheeled their smoky carts.  In the evenings the crowds were immense and traffic built to a tidal roar.  The santas of Fifth Avenue rang their little bells with an odd sad delicacy, as if sprinkling salt on some brutally spoiled piece of meat.  Music came from all the stores in jingles, chants and hosannas, and from the Salvation Army bands came the martial trumpet lament of ancient Christian legions.  It was a strange sound to hear in that time and place, the smack of cymbals and high-collared drums, a suggestion that children were being scolded for a bottomless sin, and it seemed to annoy people.  But the girls were lovely and undismayed, shopping in every mad store, striding through those magnetic twilights like drum majorettes, tall and pink, bright packages cradled to their tender breasts.  The blind man's German shepherd slept through it all.

I don't think anyone's captured it better since.

* * * * *

So to the others who toil in the vinyards of criminal defense, and especially to those who write about it with passion and grace, thoughtfully and with care, Brian, Scott, Mark, Mirriam, Gideon, Jamison, Russ, Sarah, Carol, Norm, Paul, John, Eric, Terry, Matt, Rick, Bobby, Ken and Patrick, and all the rest.  Here's to you.  To us.  And to 2011.

Happy new year.