Lone Stars and Buckeyes II: Innocence

I note that I've put the label "Innocence" on thirty posts, which is something over 10 % of all I've written since I started this blog back in May last year.  That's a lot of talk about a subject of which I'm not particularly fond.

First, it's not basically what I deal with as a criminal defense lawyer.  As a criminal defense lawyer, my subject is guilt.  (Yes, I'm oversimplifying.  A lot.)  The government must prove my client guilty with evidence lawfully obtained and properly presented to the jury.  At trial, my job is to prevent them from doing that.  Post-trial, my job is to show that they failed.  

Stewing about innocence is a distraction and a dangerous one, since it suggests that I have something to prove.  I don't.

Even as an abstract proposition, innocence is iffy.  I've talked about that before, too.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.
We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law.

Innocence, you see, is not as simple a thing as it sounds.

That's maybe a shame, since easy stuff is, well, easy.  But if we're going to complain about retentionists and prosecutors bandying about over-the-top declarations of guilt, a bit of discretion on our side is probably warranted too.  

As Roger Coleman should have taught us, not every seemingly compelling tale of misplaced prosecution is in fact a tale of misplaced prosecution.  Some criminals are pretty good liars.  And police and prosecutors are sloppy and dishonest in the investigation and prosecution of the factually guilty as well as of the factually innocent.

But, of course, there are the factually innocent.  I'm not talking about the dead innocent guys now.  Todd Willingham will be back on the radar in April when the Texas Forensic Science Commission is scheduled to have another effort by John Bradley to blow off, whitewash, or cover-up the report.  I'm talking about a couple of guys who are still alive.  One's hanging by a thread.  The other's home for the Oscars.

The one who's home is Joe D'Ambrosio.  I wrote very briefly about him the other day, but there's a lot more to say.  District Judge Kathleen O'Malley has said quite a bit of it in her rulings, but that's a ton of stuff to read.  So maybe you should just read "A Question of Truth, Life, Death" by Karen Long from the Cleveland Plain Dealer in 2003.  Or this one, "Unluckiest Man on Death Row,"  by Martin Kuz in Cleveland Scene back in 2001.

The quick and dirty?  Pretty much by chance, Neil Kookoothe (who is priest, lawyer, and nurse) happened to hear D'Ambrosio's protestations of innocence and decided to follow up.  What he discovered was a prosecution tainted by perjury, hidden exculpatory evidence, and fabrication.  And, more importantly, a prosecution in which the evidence (when you actually looked at the evidence rather than the censored version the prosecutors let out) seemed to point directly to innocence.  The more he dug, the worse it seemed.  And the more he and D'Ambrosio's lawyers went after it, the more the prosecutors lied and obfuscated.

In 2006, O'Malley ordered a new trial.  In 2009, while everyone was preparing for the new trial, and after still more evidence of innocence emerged, the key witness for the state (and from the point of view of at least some of us who've studied the case, the likely killer) died.  The prosecutor kept that secret from the judge who'd preside over the new trial, from the defense, and not incidentally from O'Malley.  Bad move.  Dishonesty on dishonesty.  Playing fast and loose after being caught playing fast and loose.

So O'Malley said they couldn't try him again.  It's hard for a federal judge to do that, she said.  The state has to really screw up.  It did.  Want to get a flavor for it.  Take a look at this editorial in today's Cleveland Plain Dealer.

If she operated in, say, a Warner Brothers cartoon instead of a federal courtroom, U.S. District Judge Kate O'Malley might have taken a frying pan to the head of Cuyahoga County Prosecutor Bill Mason.

Instead, in a sharply worded opinion last week, O'Malley laid a cast-iron hit on Mason and his office for their handling of the Joe D'Ambrosio case. She also barred them from retrying D'Ambrosio for the 1988 killing of teenager Tony Klann, whose body was found floating in Doan Brook in Cleveland, neck slashed. 

I suppose it's theoretically possible that D'Ambrosio killed Tony Klann.  Many things are possible.  And Mason still wants to retry D'Ambrosio, so either he's still covering his tracks (he was one of the trial prosecutors back in 1988) or he believes the apparent fantasy he's spun about the guy's guilt.  But there's simply no credible evidence that D'Ambrosio had anything to do with Klann's death.

And more than 20 years of lies and fabrications and hiding the ball and cheating and deception by the Mason and his office - well, if the case is so good and you've got the right guy for sure, maybe at some point you come clean?  And if you don't, that sure suggests that you don't even believe your own story.  Which, again, doesn't make it false, but sure casts doubt on it.

Of course, we've seen this sort of thing before.  Prosecutors routinely make every effort to avoid revealing the evidence that casts doubt - or to allow the evidence that may prove the doubt to be examined.

And so we leave the Texas of the North (Ohio) for the Texas of the South (Texas).

Because if Joe D'Ambrosio is a free man (though Mason's still trying to find a way to kill him), Hank Skinner is looking death in the face.

I've avoided writing about Skinner until now because, frankly, I didn't have much to add.  Another horrible story of prosecution gone wild, evidence hidden, probable innocence ignored, murder by the state imminent.  Ho hum.  What else is new?

Hank Skinner allegedly killed Twila Busby and her two sons on New Years Even 1993.  He was in the home (either committing murder or passed out while someone else did).  There were a couple of spots of blood on his shirt.  And a neighbor and former girlfriend of his testified that he confessed to her.  He always said he was innocent.  The evidence against him was always shaky, but strong enough that if you'd been a juror at his trial you'd almost certainly have voted guilty.  But as the evidence has actually been examined, it's tended to evaporate.  Balko summarizes:

· Andrea Reed has since recanted her testimony. She now says she was pressured by police and prosecutors to falsely incriminate Skinner. In an interview with Medill students, she added that, “I did not then and do not now feel like he was physically capable of hurting anybody.”
· The untested DNA included blood taken from the murder weapons, skin taken from under the fingernails of Skinner's girlfriend, a rape test taken from her that included semen, and other blood and hair found at the scene. Skinner asked his attorney to request the evidence be tested in a letter written in 1994. The attorney never made the request, stating later that he feared doing so would implicate his client.
· Skinner's girlfriend had been stalked by an allegedly lecherous uncle, Robert Donnell. Witnesses say Donnell had approached her at a party she attended the night of her death. She left frightened, and he appeared to have followed her. A friend says the uncle had raped her in the past. Days after the murders, a neighbor reportedly saw the uncle thoroughly cleaning and repainting his truck.
· Skinner's court-appointed attorney was a former prosecutor who had actually prosecuted Skinner on a minor assault and car theft charge years earlier. Skinner's two prior crimes—which his own attorney had prosecuted—were used as aggravating factors in the death penalty portion of his trial.
· According to a new report (PDF) by toxicology specialist Harold Kalant, a moderate drinker with the levels of codeine and alcohol Skinner had in his blood would have been comatose or dead. A heavy drinker may have been rousable, but would have been "stuporous," unlikely to have the coordination necessary to carry out three murders involving multiple stabbings and bludgeonings.

And then there's the DNA.  See, that was what would silence the critics.  It would prove Skinner was the killer.  Norm Pattis tells that story.  

Prosecutors promised to silence critics by submitted 14 peices of evidence for post-conviction testing. Much to the suprise of the Texas lawmen, the DNA tests did not provide more nails for Skinner's coffin. Instead, the tests raised more doubts about whether Texas plans on killing an innocent man.

One test involved a hair found clutched in Ms. Busby's hand at the time of her death. The prosecutors argued it was a hair from the killer. If so, then Skinner is not the killer: the DNA tests exclude Skinner as the person from whom the hair came. Other tests are reported either to exonerate Skinner or are said to be inconclusive.

Texas has apparently put a lid on the test results for many of the items tested. Highly probative results from broken fingernail clippings and the forensic rape kit are being withheld from public view: the state will not even discuss the results. The conclusion to be drawn from this is obvious: these test results must exonerate Skinner. Clearly, if they were further proof of his guilt, the state would have held a press conference by now to trumpet the results.

There's more to test.  The state has fought, tooth and nail, to prevent it being tested.  As I keep saying, if they're so damn sure that they're comfortable killing the guy, why are they so unwilling to have a final check?  And if they aren't so sure, then even if you believe in the death penalty and believe that Busby's killer should be executed, then maybe Skinner shouldn't be.  I mean, we ought to be confident we're killing the right guy, shouldn't we?

 

Around the time Governor Ryan emptied death row in Illinois after understanding that there had been more exonerations from the row than there had been executions, someone said that every state was like Illinois.  The only difference was that in Illinois they'd dug up the evidence.  And they had a governor who, whatever his faults (the many is in a federal prison now, after all), wasn't prepared to endorse killing folks who might have been innocent.

When I moved from Texas to Ohio in 1989, Ohio hadn't started killing its death row inmates.  That's changed now, of course, as the Buckeyes try to match the Longhorns.

I know.  I know. I'm being cynical again.  Most people, even most prosecutors and judges, even those in Texas and Ohio, don't want to see factually innocent people executed.  And yes, I'm aware that most of the people convicted of crimes, even most of those on death row, are factually guilty of something close to what they're charged with.  

I'm also aware, and frankly you have to be willfully blind to actually look at these cases and not be aware, that sloppiness and cheating and dishonesty and hiding potentially exculpatory evidence and ignoring probable innocence aren't nearly as rare as they should be.  They should be non-existent.  They happen a lot.  A whole lot.  Does that mean that all those are cases of factual innocence?  Probably not.  

But whether what we're talking about is willful blindness, gross incompetence, or actual malice on the part of the state, it ought to give us pause.  

I mean, wouldn't you want to know?  Don't you think it's worth finding out?

Lone Stars and Buckeyes

A FINE ROMANCE

 

As you know, on Thursday, Kevin Fine, Judge of the 177th District Court in Harris County (that's Houston) Texas, ruled that Article 37.071 of the Texas Code of Criminal Procedure, the statute that sets out the procedures to be followed in the trial of capital cases, was unconstitutional.  If the ruling were to stand up, Texas would be unable to seek the death penalty for John Edward Green, Jr. who is charged with capital murder for the killing and robbery of Tina Vo.

They were back in court Friday.  The  state filed motions for reconsideration and to try the case under Article 37.071 as if the court had denied the motion to find 37.071 unconstitutional.  The judge said that he would rule on those motions Wednesday.

That's just the procedural folderol of the day.  We'll catch up on all that Wednesday when the judge rules.  What was far more interesting today (except perhaps to Mr. Green, the family of Ms. Vo, and maybe the various lawyers involved in the actual litigation), was the explanation Judge Fine gave of Thursday's ruling.   

Mark Bennett provides the transcript, and some careful analysis.  My focus is a little different.  Anyway, here's the transcript.  Some excerpts and comments below.

Green Fine Transcript 2

First, Judge Fine made clear that the holding was limited and narrow.

My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

That's clear enough. What's interesting, though, is how he got there.

He found somewhere a direction from the Supreme Court that, as a trial judge, he is to be a "gatekeeper."

All I can do, as this issue has been raised, is go by what guidance there is; and the only guidance that I have found is that provided by the United States Supreme Court that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty.

Clearly I have been charged with that duty.  So I am now charged with interpreting such evolving standards and I'm called upon to assess the current state of our society's standards of fairness and ordered liberty in light of what we as a society now know.  That that is that we execute innocent people.

Really, it's one hell of a claim.  And what follows from it is, perhaps even more impressive.  The people, he concludes, don't think the death penalty is worth that cost.

And because the Constitution protects us all, the question to be asked and answered in resolving this issue is whether we as a society -- we have to look at ourselves.  Are we willing to allow our sons, our daughters, our brothers, our sisters, our friends to be the sacrificial lams should they be wrongly accused of a capital offense and then be executed.

I don't think there is -- there may be some people out there that would say they're willing to let their son die so that the State of Texas can have a death penalty, but I think those persons would be few and far between.

I find that the greater majority of our society would not be so willing to allow the execution of their friends and family or to be the sacrificial lambs so that the State of Texas can have a death penalty.  I think that the changing and evolving standards of fairness and ordered liberty are such that in light of the fact that we have overwhelming evidence that we are, in fact, executing innocent persons, I don't believe that our evolving standards are at the point where we're willing to sacrifice even those that have criminal records and even those that come from the Fifth Ward or the Ninth Ward of New Orleans or the Fourth Ward or the Third Ward of Houston.

I think society has begun to take a look within itself, and I think the proper question to be asked is just that  Are we willing to let our own be the sacrificial lambs?  I don't think society is willing to do that.

It's terrific sentiment.  It's also, I suspect, terrifically naive.

Oh, I don't think there are many folks who'd be willing to sacrifice their own innocent children in order for Texas to have a death penalty.  But the odd abstract innocent person, someone else's child, sure.  Not mine, but yours.  After all, the polling data make clear that most people believe we execute innocent folks at least occasionally and most of those people support the death penalty. 

Still, every time a judge stands up and says, "enough," every time anyone does, that's a step.

Remember the old song:
One man's hands can't tear a prison down.
Two men's hands can't tear a prison down.
But if two and two and fifty make a million,
We'll see that day come round;
We'll see that day come round.

LET'S CALL THE WHOLE THING OFF

In 1988, Anthony Klann was murdered in Cleveland.  Ultimately three men were charged with the killing: Edward Espinoza, Michael Keenan, and Joe D'Ambrosio.  Espinoza testified against the others in exchange for a lesser sentence.  Keenan and D'Ambrosio were sentenced to die.  In March 2006, a U.S. District Court Judge Kathleen O'Malley in Cleveland ordered a new trial for D'Ambrosio based on evidence that the prosecutor had improperly concealed from the defense.  Had the defense had that evidence, O'Malley concluded, would have been less likely to convict him.  The 6th Circuit agreed.

The state's case, already perilously weak, suffered another crippling blow when Espinoza died.  Thursday, while Judge Fine was declaring the Texas death penalty procedures unconstitutional because they didn't do enough to ensure that the innocent would not be sentenced to die, Judge O'Malley was ruling that the State of Ohio could not retry D'Ambrosio.  Their own misconduct was just too great.

Friday, the Cuyahoga County Court of Common Pleas dismissed the charges against D'Ambrosio.

Then there's Lawrence Reynolds.  You'll remember that he was next up in the fall when Ohio failed to kill Romell Broom.   Governor Ted put the killing off until March.  It's here.  They're planning to murder him Tuesday morning.

We're making progress.  But we're not there yet.

The Death Penalty Is Unconstitutional - At Least in Texas (Updated 2 times)

Credit to Paul Kennedy at The Defense Rests for being the first out of the box with this news from Brian Rogers at the Houston Chronicle.

A Houston judge this afternoon declared the death penalty unconstitutional in a pretrial hearing in response to a motion from defense lawyers.

In what might be the media understatement of the year, Rogers adds,

State District Judge Kevin Fine's ruling is unlikely to withstand appellate review.

More details when I get them.

UPDATE

According to the Texas Lawyer's TexParte Blog, Fine's ruling was made in the case of John Edward Green, Jr. who is charged with capital murder for the killing and robbery of Tina Vo in June 2008.  Green's lawyers, John Keirnan and Robert Loper convinced the judge that the Texas death penalty statute violates the Fifth Amendment right to due process.  Keirnan is quoted as saying that the point is that the death penalty can't be administered fairly in Texas.


For whatever it's worth, either Fine or the blog (or both) is off base in referencing the Fifth Amendment's due process protection since that only applies to the federal government, and Texas (despite its governor loving the U.S. so much that he might support secession from it) is not the federal government.  The Due Process protection that applies to the states is in the Fourteenth Amendment.


FURTHER UPDATE


Mark Bennett points out in a comment that TexParte not only got the wrong Amendment, but also the wrong statute.  On his own blog Mark explains that Judge Fine didn't say the Texas death penalty was unconstitutional.  Rather, he said that the implementing procedures are unconstitutional.  That is, Texas can constitutionally sentence you to die and execute you if it can just find a way to go about doing it.  But since the procedures are inadequate to ensure accurate results . . . .


If the judge issued an opinion, I haven't seen it.  But here (again thanks to Mark) is the motion he granted.

Show Me The Money

So Eric Holder has taken on the cause of indigent defense.

As we all know, public defender programs are too many times under-funded. Too often, defenders carry huge caseloads that make it difficult, if not impossible, for them to fulfill their legal and ethical responsibilities to their clients. Lawyers buried under these caseloads often can’t interview their clients properly, file appropriate motions, conduct fact investigations, or spare the time needed to ask and apply for additional grant funding. And the problem is about more than just resources. In some parts of the country, the primary institutions for the delivery of defense to the poor – I’m talking about basic public defender systems – simply do not exist. 

I continue to believe that if our fellow citizens knew about the extent of this problem, they would be as troubled as you and I. Public education about this issue is critical. For when equal justice is denied, we all lose. 

As a prosecutor and former judge, I know that the fundamental integrity of our criminal justice system, and our faith in it, depends on effective representation on both sides. And I recognize that some may perceive the goals of those who represent our federal, state, and local governments and the goals of those who represent the accused as forever at odds. I reject that premise. Although they may stand on different sides of an argument, the prosecution and the defense can, and must, share the same objective: Not victory, but justice. Otherwise, we are left to wonder if justice is truly being done, and left to wonder if our faith in ourselves and in our systems is misplaced. 

But problems in our criminal defense system aren’t just morally untenable. They’re also economically unsustainable. Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. Poor systems of defense do not make economic sense.

Good for him.  It's about time the Executive Branch got serious about indigent defense.  And serious it is.  Holder calls for "ongoing dialogue."  And "rais[ing] awareness" which he hopes would create "advocates for change." And for "meetings" and "conferences" and "panels" at which public defenders would be included.  Oh, and there's an "initiative."  (Or should that be "Initiative" with an uppercase "I"?) 

Can't get more serious than that.

Besides, the "Initiative," called "Access to Justice," will have a major constitutional scholar leading it.  Laurence Tribe has taken a leave of absence from the faculty at Harvard to be its "senior counselor."  NPR described his charge.

He will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer — a circumstance known in legal terms as indigent defense.

As he tries to improve indigent defense, Tribe will also look to programs outside of the criminal justice system, such as drug courts and mental health courts. He will work on issues related to criminal, civil and family courts.

Norm Pattis, spearhead of the Universal Public Defender movement, saw through the happy talk.

I think we need more than a high-octane cheerleader to make sure that all Americans have an adequate defense when accused of a crime. Professor Tribe can use all the moral suasion he possesses, but what's needed are dollars and a commitment of resources. The Government gets a Department of Justice, the Federal Bureaue of Investigation and the coordinate efforts of hundreds of local, state and federal law enforcement agencies. The defendant gets exhortation?

I'm all for anything that government does to address the problem of indigent defense.  Even admitting that there is a problem is a something.  But it's really not much.


Most of those charged with crime have no money.  They have to rely on what are mostly vastly underfunded, overworked public defenders or on appointed counsel who agree to work for substandard wages and in a system that rewards them for processing cases rather than representing clients.  The financial incentives are, alas, for taking a quick deal rather than for investigating and examining, don't even mention trying the case.  It is, of course, the clients, those poor people about whom the Constitution and Eric Holder care who suffer.  And it will take a sea change, not merely fresh pieties, to make a difference.


It's not just money.


The Supreme Court has set the bar way too low.   The Sixth Amendment guarantees not just the right to counsel, but also the right to the effective assistance of counsel.  That should mean something like actual quality representation.  It doesn't.  The Supreme Court set out the test of effectiveness in Strickland v. Washington.  It started from a premise close to integrity.

An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

And then it eviscerated it.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

That's all a fancy way of saying that pretty much anything that can be imagined to be strategy or tactics, however ill-conceived (a nice way of saying "stupid") or inadequately accomplished (a polite way of saying "performed incompetently"), will suffice.  The basic test: If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.


But even if not, the lawyer wasn't ineffective unless there's a reasonable probability that the outcome would have been different.  Got that?  The Court offered several formulations of that rule, but here's the starkest.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

And you know, it has to be that way.  Because if we actually demanded that counsel do their job properly, then the criminally accused would have a hard time finding lawyers.  And they might not trust the incompetent ones.

Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

(You really can't make this stuff up unless you sit on the Supreme Court.)


OK, I'm being harsh.  So is the law.  But here's the point;  When our system for providing indigent defense virtually guarantees that significant numbers of people will get a defense that is seriously deficient, and when the courts won't step in to remedy it then moral suasion isn't going to be the answer.


Former White House counsel Gregory Craig described the federal courts as "an emergency room for our criminal justice system" and declared that how that ER functions "determines the credibility and the legitimacy of the entire system."


That's powerful stuff.  Stronger than anything Holder said.  Craig didn't mention that the states are, by and large, worse.  


So here's step one for Holder.  Put your money (actually, ours, the taxpayers') where your mouth is.  Push  Congress, to fund indigent defense.  At a level equal to the funding of prosecution.  


And get your buddy Barak to veto any budget that doesn't.

And Now There Are Two

So there was Ohio, standing alone.

In November, you'll recall, Ohio announced that it would no-longer kill with sequential injections of three separate drugs but would, instead, use a single massive dose of barbiturate when it commits aggravated murder.   They did, beginning in December with the murder of Ken Biros, and then in January and February when they killed Abdullah Sharif Kaazim Mahdi and then Mark Brown. They plan to do it again next week when they hope to murder Lawrence Reynolds.

The switch from three drugs to one had been urged for years.  Doctors, lawyers, some abolitionists favored the switch.  It was a sensible decision clinically and legally.  About the only ones who opposed the change were the officials responsible for actually deciding how state killing should be done.  And the rest of the nation watched.  The question sat: Would any other state follow suit?

Yesterday, Washington joined Ohio.

Actually, Washington created an option.  There are now three methods of state sanctioned murder in The Evergreen State.

• Three drugs
• One drug
• Hanging

Choice goes to the guy getting killed.  Can't ask for much more than that.

Except, you know, it's still . . . .

Aw, hell.

Let me be absolutely clear about this.  If the goal is to commit murder by lethal injection, and if the goal is that the murder should be essentially painless, then switching from three drugs to one makes sense.  If the goal is a sanitized system where we say that some people must be killed but nobody's hands should get dirty, maybe this makes sense.

But the goal, however much we try to disguise it with sugar coating or a powder base, is killing.  There's really no way to make that nice, no way to make it pretty.  That we need the pretense, or think we do, probably says all that really needs to be said about it.

There was a death penalty trial in Toledo some years ago.  After the jury returned and said that the defendant should die, the judge thanked them for their service.  In very rough paraphrase, here's what he said.

What you've done is difficult, but the system required it.  Thank you for your service to the county and the system of justice.  We understand that this choice may continue to cause you stress and pain.  Should any of you need counseling as a consequence of this decision, the County will provide help you find a counselor and pay for the counseling.

Ain't no way that changing the number of drugs we use changes that.  The killing damages us, as it damages those we kill.

Washington, like Ohio, may avoid some litigation.  What it can't avoid is the fact of what it does.

Calculated Cruelty

Albert Holland had a problem:  His lawyer.

Holland was (and is) on death row in Florida after a 1991 conviction.  By 2001, he'd lost his direct appeal in the Florida courts and on October 1 of that year, the U.S. Supreme Court announced that it would not hear the case.  The next step was to go back into the Florida courts to seek some sort of collateral relief (essentially, an effort to get at things that were not part of the trial court record).  But there was a deadline out there that concerned Holland.

Under AEDPA (the Anti-Terrorism and Effective Death Penalty Act), a death row inmate has exactly one year to ask for habeas corpus relief in the federal courts.  For Holland, that year (you actually count it by days, so 365 days) began on October 1, 2001.  The thing is that once he asked the Florida courts for collateral relief, the one year clock would be stopped until they were done with his case.  So Holland had until October 1, 2002 to file his petition for habeas corpus unless the clock got stopped, and he needed to seek collateral review.

About a month after Holland lost in the Supreme Court, Florida appointed Bradley Collins to represent him on collateral review.  So far so good.  But Collins didn't act.  He sat on the case.  For months.  While the habeas clock ticked away.

Holland worried.  He told Collins, repeatedly, that all issues needed to be raised in state court and that his federal habeas petition would need to include all those issues and to be filed on time.  Collins assured Holland that all was under control.  Holland didn't believe it.  He tried to get Collins removed and new counsel appointed, or even to represent himself.  The Florida courts refused.

Ultimately, Holland lost in the Florida courts.  Collins didn't tell him.  Nor did Collins file for habeas relief.  The time for filing ran out.  Still Collins didn't tell.  Eventually, Holland learned.  He wrote and sent off the next day a handwritten petition for writ of habeas corpus.  It was dismissed. 

Your lawyer blew the deadline.  You're out of luck. 

The case is Holland v. Florida, and they argued it in the U.S. Supreme Court Monday morning. The issue is whether the gross negligence of Holland's lawyer should be a basis for equitable tolling.  That's legalese for asking whether when the lawyer screws up badly enough, and when the client's been pushing and pushing to have it all done right, that habeas deadline can be extended. Or do we just kill the client?

I'm not just being flip.  Ask Roger Coleman.  Ooops.  You can't.  He was executed.  His lawyer blew a deadline in the Virginia courts.  It was almost understandable.  What it wasn't, it turns out was excusable.  Sandra Day O'Connor began her opinion for the Supreme Court in Coleman v. Thompson with words to chill the heart of a criminal defense lawyer:

This case is about federalism.

Yeah, I know Coleman was guilty.  I also know that he never got the federal review he should have and that at the time the Supreme Court blew him off, there was substantial basis to think he might have been innocent.  It didn't matter.

Frankly, there's a fair chance nothing will matter for Holland, either.  The Court decided a long time ago that negligent lawyering wasn't a basis for relief.  Gross negligence isn't much different.  Breyer kept asking about earthquakes and hurricanes.  He wondered what would be appropriate if the lawyer were kidnapped.  Florida's lawyer was steadfast: no relief.

The other capital development of some note in the Court on Monday was the announcement that it would not hear Harbison v. Little.  Harbison was a challenge to Tennessee's lethal injection procedures.  The district court said that they were unconstitutional because there were insufficient safeguards against the condemned inmate suffering excruciating pain.  The Sixth Circuit reversed.  

And now it's done. 

A friend asked what it means.  Here's what I wrote.

My best guess, and of course, that's all it is because I have no inside information, is that SCOTUS has no interest in wading back into the world of lethal injection.  They said their piece.

And while lawyers can (and do, and I have) tear it apart and find in it things that give them room to keep litigating, the bottom line in Baze really was that lethal injection is perfectly constitutional in theory, and as supposedly applied by protocol.  If a state demonstrates that it cannot or will not follow its protocol, then there might be an available challenge in that state, but that should be resolved by the state agreeing to get its act together.  I suppose if a state decided to do lethal injection by shooting drugs into the eyeball, that would be a different enough scenario that Baze might not cover it, but that doesn't mean SCOTUS would oversee what the lower courts did to it.

So, yeah, I think LI litigation is now almost entirely going to be about state law and state procedures (the administrative procedure act cases, for instance).

Frankly, the only way I see SCOTUS getting back into this within the next 5 or 10 years is if the state loses a case in the lower courts.

Really, it's all just the usual struggle.  We can kill them.  Or we can care about fairness and dignity and integrity in the system.

I had just recently moved to Ohio and I was talking with a judge I'd never met.  I didn't know anything much about him, nor did he know anything much about me.  He asked if I was more in the due process or the finality camp.  I said that finality without truly fair and full process is just calculated cruelty. 

Actually, I don't think I said that.  But I wish I had.

Because it's true.

Welcome to the 21st Century in the United States.

Tillikum

With apologies to Oscar Hammerstein, II, how do you solve a problem like an Orca?

I've not gone off the deep end here - or even off topic.  This is a post about crime and punishment.

First of all, let me come clean.  I'm not an animal rights kind of guy.  I eat meat, and do so happily (some would say joyously).  I think it's a fine thing that we test drugs on animals before trying them out on people (though I wish the testing were more thorough and competent).  I'm not opposed to zoos.  In fact, I thoroughly enjoy them.  I like looking at beautiful animals - cute ones, too.  And I like it that I don't have to get too close.  I don't hunt, but that's not based on any sort of moral choice, I don't think.

It's not that humans are better than other animals.  I don't know what "better" would mean in that context, at that level of abstraction.  And I can't imagine how it would be measured, though I have a suspicion that if I knew what to measure and how to measure it, humans wouldn't be at the moral pinnacle.   But we're different from other animals, and it's a difference I'm happy to benefit from.  If that makes me, what?, species chauvinistic, so be it.  Spoils to the winner, and so far, it is we who have won.

Anyhow, I'm writing about crime and punishment.

Start with crime.  

Tillikum, of course, is the serial killer orka, who struck again last week after more than a decade's quiesence.  This time the victim was Sea World killer whale trainer Dawn Brancheau.  It's a horrible thing, of course.  But the question of an appropriate response always lingers after homicide.

We have to begin with the recognition that we don't really know what happened.

The latest word from Sea World is that Brancheau was rubbing Tillikum as a reward for putting on a great show earlier when he grabbed her ponytail and pulled her under.  Some thrashing about later, and she was dead.  On the other hand, some observers reported that she was grabbed by the arm, others that Tillikum took her by the waist.  All this is typical with eyewitness reports, which are notoriously unreliable except to jurors and the court system which think they're gospel.

In any event, and regardless of the details, there seems little question that Tillikum killed Ms. Brancheau.  And that it was horrible.  And that he has killed people before.

OK, that's the event.  In the Latin of the law, we call it the actus reus, the bad act.  Typically, the bad act isn't enough to be a crime.  It's necessary that the actus reus be accompanied by the proper mens rea (mental state), though there are exceptions - things that are criminal regardless of your mental state.

[Regardless, don't get excited and think you can commit criminal acts at will as long as you control your thinking.  It doesn't work that way.]

So what's the relevant mental state for a homicide?  Well, it depends on the degree of homicide (and the jurisdiction, but I'm not concerned enough about the details now to worry about jurisdictional differences; this discussion applies pretty much everywhere there's any derivative of the English, the American, which is a derivative of the English, or the Anglo-American legal system).  

Basically, there are three options.  Negligence is the mental state of (here's a shock) negligent homicide.  It involves violating a duty of care or attention.  There's recklessness, which is the mental state demanded of most things we call crimes.  Roughly, criminal recklessness is the heedless disregard of a known risk.  A reckless homicide might be a manslaughter.  And there's purpose, which is intent.  That takes you to murder.  There's a further level of depravity, of course: think of the premeditated murder.

Got all that?

Then, back to Tillikum.

What do we make of the serial killer whale?  Is he a criminal?

I know that sounds silly, but we're talking about one of the creatures widely understood to be the most intelligent on the planet with the possible exception of humans.  Richard Ellis, a marine conservationist with the American Museum of Natural History, told the AP that killer whales don't do things accidentally.  The killing of Ms. Brancheau was, he said, premeditated.

Why?  Because captivity is so inhumane.  It's Orca resistance.  Think The Birds but in the water - and reality. 
Nancy Black, marine biologist at the Monterey Bay Whale Watch, imagines a stress reaction.

"He’s more excitable. Maybe he was stressed out, maybe he had frustration,” she says. “So he grabbed the closest thing to him to take out his frustration and high energy level.”

Or maybe not.  Kathleen Parker asked her cousin Heidi Harley, an animal psychologist and former orca rider, what Tillikum was thinking.  Parker offers this summary of Harley's answer.

Most likely, Tilikum the Killer Whale simply had a "seeing red" moment. He lost control -- and then it was over.
Sometimes the Discovery Channel eats Disney.

Or, maybe, Tillikum was just being Tillikum.
What then do we do?
One possibility is to kill the whale.  That may seem cruel, but we euthanize dogs that attack children.  And, in fact, there's a long and weird history of trying animals for criminal acts and executing them when they're found guilty.  You can read about it in The Criminal Prosecution and Capital Punishment of Animals.  The thing is, we don't do that any more. 
For all the anthropomorphising and for all the intentionality we dump on animals, we're not inclined to give them moral sense.  And without that it's difficult to blame them for their actions.  You know, killer whales are killer whales.  What do you expect them to do?
So what do we do?  We isolate.  (One wonders why Tillikum wasn't isolated after the first or second killing, but it seems clear that will happen now.)  Tillikum, already denied full orca companionship and life in the open ocean, will now be denied (I assume) the chance of close up interaction with trainers - and maybe with other orca.  Think of it as life in prison.  It may or may not make Tillikum happy.  But it might save a few more lives.
Now, maybe we ought to think about an extension of that principle, that life is enough.  Because blame really doesn't accomplish much.  Because just maybe Tillikum did want to kill Ms. Brancheau.  But maybe we shouldn't kill him anyway.