Off With His Head

Or at least pump him full of thiopentol.

Governor ("Just tell me how many people I have to kill to get reelected") Ted adds another notch to his belt. He finally ruled on Abdullah Sharif Kaazim Mahdi's clemency petition. Denied.

According to the Columbus Dispatch, it was "one of the most difficult cases that I have reviewed." That's because the case for clemency is so glaringly obvious:

There's no real basis for thinking that Mahdi committed a capital crime.

But he killed someone. And Ted wants to be re-elected. And he thinks the notches on his gunbelt help. So many people thought better of him. So many people were wrong.

Mahdi's will be the first execution of 2010. Ohio already has five more scheduled, and that just takes us through June.

Just how many bodies does Ted think he needs?

Two Lives Down the Drain

It is 2 pm on Wednesday, November 6. Abdullah Sharif Kaazim Mahdi, my former client, is scheduled to be murdered by the State of Ohio in exactly 20 hours. The Governor has, so far, not announced whether he will grant clemency and commute the sentence.

As I explained the other day, nobody knows whether Mahdi is actually guilty of aggravated murder, the only capital crime in Ohio, the offense of which he was convicted. There is very substantial evidence he is not, that he is guilty only of involuntary manlaughter. That's a very serious crime, with severe punishment, but they don't kill you for it.

Why are we doing this?

Mahdi killed Sohail Darwish. It was a terrible thing to do. Darwish was, by all accounts, a fine man. Would he want Mahdi killed? I don't know. Does it matter? Not legally. Nor do his widow's feelings have any legal consequence. Aggravated murder is, as all crimes are, a crime against the state, not against the victim of the criminal act.

That's a difficult concept I've tried to explain before (e.g., here). The short version is that the civil law system is the mechanism for providing some sort of compensation to those who personally suffer from crime. The criminal law system is not about the wrongs inflicted on individuals. It's about wrongs inflicted on the social order. The wronged individuals should, properly, have no say.

Yet, of course, we strain to hear them. So listen to Charlotte Darwish, the widow of Sohail Darwish. She will watch Mahdi die. And naturally, she grieves still. But listen.

"When I look back on that day, I just see a white wall. I just see white because I lost all grip of reality. … It was blank, empty, cold," Mrs. Darwish said recently.

"[This execution] is going to open up a whole new chapter. I'm now not only the widow of the murdered man, but I'm the widow of the murdered man whose killer was executed," she said. "It's going to bother me and pester my soul. Now there are two lives down the drain, all because of the actions of Vernon Smith."

"All you have to live with is memories, but you can't touch a memory, you can't have a conversation with a memory. You may get a little solace out of it, but in the end it's empty because there's nothing there," she said.

"Pictures are amazing things, but they're also horrible things as well," she added. "You've got that picture as a memory, but that image haunts you. You just stare at that picture, but that picture doesn't talk back to you. It can't help you, it can't laugh with you when you're happy, it can't cry with you when you're sad."
"My thoughts haven't changed," Mrs. Darwish continued. "Vernon Smith, he lives, he dies. It's not going to bring my husband back."

She grieves. She will watch more death. It will solve nothing. Killing Mahdi won't heal, won't cure, won't restore. It's just another life "down the drain." It won't bring Darwish back.

It just leaves another hole. And more people grieving.

Charlotte Darwish, who grieves still, seems to understand that.

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NOTE: I've taken Charlotte Darwish's quotes from this story in today's Toledo Blade.

Blowin' in the Wind

They got away with it again. Sort of.

I'm talking prosecutors who cheat. You know, the ones who intentionally fabricate evidence in order to convict a couple of innocent guys of murder, a couple of guys who spend 26 years (that's 26 years! 26!) in prison before they manage to prove that they're innocent and were railroaded by the prosecutor. That's what happened to Terry Harrington and Curtis McGhee in Pottwattamie County, Iowa back in 1978.

So they sued. The problem is that the Supreme Court held, back in 1976, in Imbler v. Pachtman that prosecutors are absolutely immune from money damages for anything they do in their roles as prosecutors. What's that you say? That's a stupid rule? Yup.

But, you see, the Court figured that you didn't want prosecutors to be busy restraining their proper conduct by worrying about whether someone would think it misconduct. Huh? You still think it's stupid? Join the club. But it's the law.

Anyhow, they sued. The case, Pottawattamie County v. McGhee, made it to the Supreme Court where it was argued in November. Mike Cernovich at Crime & Federalism, rightly called it "the most interesting Section 1983 case this Term." (I've talked about the case before.)

Roughly, the prosecutors argued that if prosecutors become nervous about the consequences of making up evidence, there's no stopping point and they'll be afraid to prosecute anyone. We don't want to make them to flinch when making up evidence, because we want them to be more than willing to present evidence that isn't made up without flinching. Like I say, stupid.

Justice Sotomayor saw through it. During oral argument, she asked a lawyer from the Department of Justice who'd made that argument,

Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

You'd think this would be an easy call. Don't even have to adjust the general rule. All you have to say is that when prosecutors fabricate evidence, they aren't acting as prosecutors, they're acting as criminals: suborning perjury. But if you read the transcript of the argument, you'll see that nobody actually said that. And you'll see that it's far from clear how the Court would rule.

I mean, everyone agreed prosecutors shouldn't fabricate evidence. But whether they should be held liable for doing it? Wow, that seemed like a toughie.

If there were some other remedy for the misconduct, some other punishment to deter that sort of thing, maybe it wouldn't matter so much. But as Harrington and McGhee's brief makes clear, there is no other remedy because there are no consequences for prosecutors who cheat:

Petitioners’ amici describe a host of other remedies to punish prosecutors for misconduct. See, e.g., Nat’l Ass’n of AUSAs Br. 7-16; see also Imbler, 424 U.S. at 428-29. The most notable thing about amici’s lengthy catalog of supposed remedies, however, is that petitioners have not faced any of them. The highest court in the State of Iowa found that petitioners had violated the Constitution by suppressing exculpatory evidence. Harrington v. State, 659 N.W.2d 509, 521-25 (Iowa 2003). What consequences befell the prosecutors for that unconstitutional action? Petitioners did not face so much as a state-bar investigation, and they remain members in good standing of the Iowa bar in private practice in Council Bluffs. “Remedies” that go unused when serious, documented prosecutorial misconduct comes to light are little better, and perhaps worse, than no remedies at all. Unfortunately, the lack of meaningful response is typical. See Wayne D. Garris, Jr., Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful Convictions, 22 GEO. J. LEGAL ETHICS 829, 842-43 (2009).[] The reality is that bad prosecutors are deterred by, and punished by, civil-rights suits like this one, or not at all.[]

(Footnotes omitted.)

So there it all stood. Until everyone blinked.

The case settled. Harrington & McGhee get to split twelve million of Pottawattamie County's dollars and the prosecutors of America get to keep making up evidence. The press release crows about a victory. So the Supremes won't rule.

You can never blame parties to a lawsuit for settling rather than allowing the courts to make up new rules. And frankly, as both Norm Pattis and Sarah recognize, it may be that we're all better off not knowing that the Supremes don't really think fabricating evidence isn't part of acting like a prosecutor. Then again, we might have won. Maybe there really is a limit.

But maybe not. Maybe it really is what the particular cheating prosecutors and the Department of Justice and the various associations of prosecuting attorneys and numerous state and local governments said while trying not to admit they were saying it:

Fabricating evidence and conspiring to convict innocent people of murder is part of what prosecutors do. It's part of the job description.

I've written a lot about Maricopa County here. I've carried on high about the county sheriff and the county prosecutor who start investigations and bring criminal charges against anyone who says a bad word about them. I've said it's a constitutional crisis there, that the rule of law is gravely at risk.

Maricopa is a special place because it's ground zero for the problem. But it's also no more than an example. Today it's Sheriff Joe and Andy Thomas. In 1978, it was the prosecutor in Pottawattamie County. Tomorrow?

As Dylan wondered back in the day:

How many times can a man turn his head
And pretend that he just doesn't see?

The answer's still in the wind.

May God Have Mercy

It was a simple carryout robbery.

That's how the prosecutor described it to an AP reporter.

Just an ordinary robbery. Except that the owner of the carryout, Sowhail Darwish, was killed, shot to death by Abdullah Sharif Kaazim Mahdi.

Mahdi was tried in 1994. He was convicted of aggravated murder and sentenced to die. The good people of the State of Ohio intend to kill him on Thursday.

The question then, and the question now, is whether Mahdi intended to kill Darwish. There's every reason to doubt that he did. But (isn't there always a "but"?) his lawyers stalled on putting that evidence before the jury.

This requires a bit of explanation. Aggravated murder is the only capital crime in Ohio. In order for someone to be convicted of aggravated murder, the person must intend to kill. If Mahdi didn't intend to kill, then the crime would have been involuntary manslaughter. If it was involuntary manslaughter, he would not be facing the death penalty.

As I said, there's every reason to doubt that Mahdi intended to kill Darwish (or anyone else). His actions, his statements at the time and later, and the medical evidence all suggest that, at most, he intended to shoot Darwish in the arm. By a fluke, then, Darwish died. Involuntary manslaughter. A sentence of no more than 25 years.

Except that Mahdi's lawyers didn't put that evidence in front of the jury when they were deciding whether he should be convicted of aggravated murder. Instead, they saved the evidence and used it after the conviction. They tried to convince the jurors that because there was "residual doubt" about Mahdi's intent, they shouldn't impose a death sentence but should keep him in prison for no fewer than 30 years.

That approach, keeping the evidence of innocence from the jury until sentencing, is incomprehensibly foolish. But it's what Mahdi's lawyers did.

Residual doubt is powerful mitigation. Jurors may find the defendant guilty beyond a reasonable doubt, but still harbor uncertainty. And if they're not sure he's guilty, they're not likely to call for his death. In 1991, in State v. Watson, the Ohio Supreme Court specifically held that residual doubt was proper mitigation. So directing the jury's attention to residual doubt at sentencing is appropriate, even if hiding the evidence until then was nonsensical.

But Mahdi's lawyers also offered the jury a hard-to-swallow reason not to kill him. The crime was all about race and caused by the movies Menace II Society and Malcolm X. The effect was to distract the jury from the substantial evidence of residual doubt.

After Mahdi was sentenced to die, his case went to the court of appeals. (I was one of his lawyers in that court.) We argued, among other things, that:

• The jury should have been given the opportunity to find him guilty of the lesser offense of involuntary manslaughter.
• His lawyers were constitutionally ineffective for hiding the evidence that he was innocent of aggravated murder until the sentencing.
• His death sentence should be set aside because of residual doubt of his guilt.

And then, after we'd briefed and argued the case, while we were waiting for the court of appeals to rule, the Ohio Supreme Court overruled Watson and declared that residual doubt could not mitigate. The case is State v. McGuire, and its discussion of residual doubt is, in the words of Justice Pfeifer's separate opinion, "simply wrong."

Here's the court's position:

Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Watson, 61 Ohio St.3d at 20, 572 N.E.2d at 112 (Resnick, J., dissenting). Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. "Thus, if residual doubt is reasonable and not simply possible or imaginary, then an accused should be acquitted, and not simply have his death sentence reversed." Id.

Got that? If you weren't sure enough of the guy's guilt to kill him, you wouldn't have found him guilty in the first place. Residual doubt is just for wusses who don't have the guts to kill.

Justice Pfeifer knew better.

Certainly, residual doubt is an appropriate consideration in only a few cases. Still, its use should not be considered "illogical." It is entirely logical to be certain beyond a reasonable doubt as to a man's guilt, yet not be certain enough to send him to his death. Residual doubt acknowledges our humanity—our ability not just to spit out data, but to recognize the subtle shadings that are a 406 part of life. The factoring in of humanity when dealing with its ultimate decision is both relevant and logical.

Anyway, here's the scene: When the case was tried, residual doubt was a proper mitigating factor. When it was appealed, residual doubt was a proper mitigating factor. Trial counsel and appellate counsel urged a life sentence based on residual doubt. But while the case was in the court of appeals, the Supreme Court said it couldn't be considered. Two of the judges in the court of appeals accepted that. James Sherck was the third judge, and he didn't.

I vehemently dissent from the affirmance of the death penalty in this instance. Specifically, I disagree with the majority's handling of appellant's fourteenth assignment of error.

While State v. McGuire, supra, recently eliminated consideration of residual doubt during the sentencing phase of the trial by overruling State v. Watson, supra, it is fundamentally unfair to retroactively apply McGuire to this case. The unfairness occurs because the defense withheld certain evidence going to appellant's intent in the guilt phase, undoubtedly believing it to be more persuasive as going toward residual doubt in the penalty phase. In my view, this is critical because that evidence creates doubt as to appellant's mens rea at the time of the shooting.

. . .

if the Watson standard which existed before McGuire, is applied, a substantial residual doubt exists as to appellant's intent which, when combined with some degree of emotional instability to which the psychologist testified and appellant's youth, results in a body of mitigating evidence which I believe outweighs the aggravating circumstance proven.

As I indicated at the outset, I believe applying McGuire after the trial, even after the appeal was heard, is fundamentally unfair in view of the fact that the defense clearly tailored its case to address residual doubt in the mitigation phase.

I would find appellant's sentence was arrived at erroneously or in the alternative set aside the conviction for a due process violation and remand for a new trial at which appellant could introduce the evidence going to intent at the guilt phase.

That opinion is attached as an exhibit to Mahdi's clemency petition. More telling is another exhibit, the letter from Sherck to the Parole Board urging clemency. (The clemency petition is here and the exhibits are here.)

The Parole Board voted 5-2 to deny clemency.

So there you have it. As AP says,

No one really knows if Vernon Smith meant to shoot and kill a carryout owner.

That's really the question. There's serious doubt. Enough that even those who favor the death penalty should step away from this one. But the Ohio Supreme Court says that it's irrational to avoid killing just because you're not sure.

Free him or kill him. No in between.

That's just silly.

And now it's up to Governor Ted.

Mahdi will be number 33. Jesus was, they say, 33 when he was crucified. Ted is a Methodist minister. One can only hope.