If At Fifth You Don't Succeed - With Update

I've written before about the counter-intuitive protection against double jeopardy.  The protection is right there, in the Fifth Amendment.  (I've put it in boldface so it's easy to find.)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The way the public tends to think of the rule (and it is a rule), I think, is that you can't be tried twice for the same crime.  That's not true.  Really, really, really not true.  You can.  Twice and even thrice.

Here are the basics of what they can do.

• You can be tried for the same act by the state or local government and by the federal government or the military under what's known as the Dual Sovereign Doctrine.
• You can be tried for a second time if the verdict from the first time was reversed on appeal for any reason other than that there was not enough evidence to convict.
• You can be tried for a second time if the first trial ended in a mistrial that was not intentionally caused by the prosecution. 
• You can be tried a second time if the first trial ended in a hung jury.
• You can be tried a second time if you're in the state of Ohio and you can't convince the trial court you can't, because although double jeopardy is protection against a second trial, in Ohio, you have to have the second trial and lose before an appellate court can say that you shouldn't have had to hire another lawyer and go through the horrors of a second trial in the first place. (Yes, I know that's confusing.  So is the Ohio approach.  Confusing and stupid and wrong.  And locked in place by the Ohio Supreme Court, though sometimes you can go into federal court to prevent the state from trying you again.)

Here's how Chief Justice Rehnquist accounted for this sort of mess in United States v. Richardson (1984).

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.

Sure enough.  And as he points out, the particular non-application of the Double Jeopardy Clause to hung juries goes back to United States v. Perez in 1824.  For at least 186 years now, we've been pretending the Double Jeopardy Clause doesn't mean what it says.  And the reason, of course, is one we all know.  This time, Justice Stevens in Arizona v. Washington.

The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws. 

Let's take a deep breath and parse that for a moment.

The government's job in a criminal case is to convince the jury beyond a reasonable doubt that the defendant is guilty.  When the government fails to do that, the defendant is to be acquitted and discharged.  It may not try again.  When the jury does not unanimously agree that the government has proved guilt beyond a reasonable doubt, the government can try again because of "society's interest" in allowing the prosecutor to take another shot at it.

I can see Clarence Thomas now, clawing at the paper trying to get the rule changed to accord with the language of the Constitution.  And Scalia.  And all those folks who say the Constitution means precisely what it says, no more and no less.

Well, maybe less.

OK, the law is what it is.  And bizarre and wrong-headed though it be, we have to deal with it.  But might there be some limit?

Apparently, the answer is a resounding "No."

Case in point, from Doug Berman this morning, quoting a CNN report.

Curtis Flowers has stood before five juries in the past 13 years on capital murder charges, accused of killing four people in a Mississippi furniture store.  This week, prosecutors are hoping his sixth trial will be the last.

I'm with them.  Of course, I'm with Flowers in wishing the fifth time (or the fourth) would have been the last.

Flowers was convicted the first three times.  The first two times he was sentenced to die.  Those two convictions were reversed by the Mississippi Supreme Court because the prosecutors introduced improper and overly prejudicial evidence against Flowers.  The third conviction was reversed by the Mississippi Supreme Court because the prosecutor kicked blacks off the jury for being black.  The fourth and fifth trials ended with hung juries.

This time, the prosecutor won't be able to use the testimony of a pair of jailhouse snitches.  They'd testified that Flowers confessed to them.

The two later admitted to lying under promises of monetary reward from law enforcement.

Ooops.

Doug Evans, Flowers' personal Javert (he prosecuted Flowers the first five times and plans to do round six), says it's

a straightforward case of a disgruntled worker taking out his anger against his former employer.

Albert Einstein is frequently cited (though it seems nobody has pinned down where and when he might have said it) as the one who first said that insanity is doing the same thing over and over and expecting different results.  You know, that special kind of logic Rehnquist talked about in Richardson.

I don't have any idea whether Flowers committed the acts of which he's accused.  I'm damn well sure that it's time for the government to give up trying to prove it.  And no matter what the Supreme Court's been saying for 186 or more years, the Constitution is on my side.

MUCH BELATED UPDATE - Flowers was convicted and sentenced to die again at the 6th trial.  The jury was out for all of 30 minutes.  The lone black Evans did not manage to kick off the jury this time (unlike at trial 5) did not hold out.  The case is on appeal.

Scott Greenfield - who really should be in the top 5

I've been doing this for just over a year.  Scott's been at it for near three and a half.  I average a small fraction over a post a day.  He averages, I don't know, three or four a day.  And he's not just linking to news.  They're thoughtful, smart, sometimes snarky.

He's a model (not "the model" for there are others, too) for me and, I think, many others who till this field of criminal law blogging.

I don't always agree with him, but it's always worth seeing what he has to say.

And today, for a change, he says something about himself and what it's like to do this.  Fair enough.  He's earned the right.

OK insane guys.  Go to page 28 now.

Interpreting the Constitution: Round IV (The David Souter Edition)

June 28.  That's the day the Senate Judiciary Committee is scheduled to begin its dishonest but long-winded hearings on the nomination of General Kagan (that's how she chooses to be addressed) to the Supreme Court.

Some hope, as they do every time, that these hearings will be different.  They point to the now-famous law review article in which the General complained that confirmation hearings for Supreme Court justices are exercises in "vacuity and farce," almost wholly devoid of substance, a "ritual dance."  The nominee refuses actually to explain her judicial philosophy or jurisprudential approach to deciding constitutional or statutory issues (assuming she has one - and isn't that something we'd like to know) and refuses even more firmly to say anything substantive about anything even vaguely related to any issue which isn't wholly settled.  (General K observes, in giving a sense of what it takes for an issue to be wholly settled, that Ruth Bader Ginsburg, at her hearings, three times admitted that she thought Dred Scott to have been wrongly decided.  Is there one plausible nominee - or one senator from either party - who would today publicly disagree?)

Emily Dickinson described hope as well as anyone.

HOPE is the thing with feathers
That perches in the soul,
And sings the tune without the words,
And never stops at all,
And sweetest in the gale is heard;
And sore must be the storm
That could abash the little bird
That kept so many warm.
I ’ve heard it in the chillest land,
And on the strangest sea;
Yet, never, in extremity,
It asked a crumb of me.

But you know, the whole point of hope is expectancy.  We seek potential, look for possibility.  We join Robert Kennedy (misquoting a line spoken to Eve by the Serpent in George Bernard Shaw's Back to Methuselah) in saying "I dream of things that never were, and ask why not."

And the truth is that the dream will, as I said, almost surely be dashed.  The storm will be sore and will abash tweeting hope.  General K will disown her words.  That was then, this is now.  Enough.

But if we cannot expect - or even seriously imagine - an honest answer on an actual issue or case (other than perhaps Dred Scott), it is at least marginally possible that she will own up to a jurisprudential approach that acknowledges the actual need for a jurisprudential approach.

So then-Judge John Roberts offered balls and strikes (although I suppose he would have denied that he called 'em as he saw 'em, insisting instead that he'd just call them as they were).  And then-Judge Sonya Sotomayor explained that there was no such thing for her as jurisprudence; she just took the facts and the law and voilà.

We know better, and surely deserve better.

• It would have been good to know and to really hear a discussion from the-Judge Clarence Thomas of his rigorous textualism and willingness to jettison precedent and abandon principles of stare decisis when they lead to what he thinks wrong results however distasteful the right ones might be.  
• It would have been good to learn from then-Judge Antonin Scalia that and why he believed legislative history to be fatuous claptrap and just how his "originalism" and his view of the ossified Constitution might actually apply in the real world, both when he can live with the results and when he finds them too distasteful.
• It would have been good to learn from then-Judge Stephen Breyer that he believes that when there's a conflict between the language of the Constitution and the values he finds in it, the values should control.

Perhaps they hadn't fully formulated those attitudes at the time of their hearings.  It would have been good, would have been valuable to hear their thoughts, however inchoate and subject to maturation and change.  And if one or another truly had no jurisprudential conception at the time, no idea of how to decide cases, it would have been worth knowing that he was, in fact tabula rasa.  

Serious discussion of jurisprudence would be valuable even if it led nowhere.  More valuable still if it revealed something honest about the men who were to ascend the highest bench in the land.  It was, of course, not to be.  

By now, though, as I suggested above, the three of them have made clear that they actually have philosophy and approach.  Perhaps General K has thought about these things.  Perhaps she has an approach, or at least ideas about how to formulate one.  We're not likely to learn.

It is perhaps an accident of timing that retired timing that retired Justice David Souter recently decided to offer what I join Linda Greenhouse in hoping will prove but a first step toward presenting a comprehensive theory of constitutional interpretation.

The occasion was Harvard University's commencement.  Souter was the speaker and he took the occasion to begin (?) to speak substantively about the business of constitutional interpretation.

He began by challenging what he called the "fair reading" approach.  He didn't attribute it to anyone in particular, but it's pretty clear that he was referring to any model that pretends the answers are there just waiting to be found, that includes balls and strikes, originalism, texualism, and voilà.  Souter acknowledged the appeal.   Fair reading provides rules and rules provide grounding.

Sure, there are clear rules in the Constitution.  (His example: one must be 30 to become a senator.) And rules do make it easy.  (Though as Eugene Volokh recently pointed out, it was a clear rule violated as early as 1806.)  But the interesting and problematic issues aren't easily resolved by them.  (Hell, if they were, they wouldn't be interesting and problematic.)  That's a lesson, he says, that he learned during his time on the Court.

Anyway, fair reading doesn't work for those problems because

1. "[O]pen-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches" are simply not self-defining.
2. Constitutional obligations may seem to conflict as in the Penatagon Papers case where the President's plenary power and duty to ensure national security and the guarantees of free speech and press seemed at odds.
3. Facts aren't always simple.  So, he almost but not quite says, that in 1896 when Plessy v. Ferguson was decided it was a "fact" that separate could be equal, while by 1954, when the Court decided Brown v. Board of Education, the "fact" was that it could not.

Souter is surely right, at least in general terms, about the first two of those things.  The third, that facts are rarely simple, is perhaps appropriately, less simply true.  Sure, facts can be confused and complicated.  But even Souter doesn't quite say (and doesn't quite mean) that separate really was, as a matter of something like objective fact (whatever that might be), equal in 1896 and not in 1954.  Rather, he's referring to what he calls "constitutional facts" which

require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.

That's what he meant by how separate but equal changed from a fact to a fiction in 58 years.  And in that sense, maybe, he's right.  Understanding shifted.  But (and this is the ugly truth that Souter declines to mention) so did the personnel on the court.

In any event, the real point for Souter is that the Constitution itself, the document, simply doesn't answer all questions.

A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.  We want order and security, and we want liberty.  And we want not only liberty but equality as well.  These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one.  The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

What Souter doesn't much do is explain how a judge/justice - or even an engaged citizen - ought to go about making those choices.  How do we go about it?  If we're simply balancing what he describes as competing goods and deciding which ones should win when, if we're just asking what this year's (or day's) social construction of separate but equal means, then aren't we just allowing the Infallible (because they're last, not because they're perfect) Nine to make it up as the go?  Whatever five think?

Is it really right for the Constitution to mean whatever Anthony Kennedy thinks it is, now that it's no longer what Sandra Day O'Connor thought it was (or Lewis Powell from whom O'Connor took over the role)?

John Marshall, arrogating power to the Court, declared in Marbury v. Madison that 

It is emphatically the province and duty of the judicial department to say what the law is.

It's hard, today, to see another way being better.  But it's a model that unconstrained does, indeed, make Kennedy's brain and soul the answer to nearly all questions of constitutional magnitude.  So where the constraint?

We're talking here about first principles.  And first conflicts.  A limited government with plenary powers.  A Bill of Rights that limits the government either by narrowing the plenary powers in small and specific ways (as one might read a contract) or that stands in opposition to those powers in broad and generous ways.

One thought is that the key is in the idea of contract, and a principle of contract law:  Ambiguities in a contract will be construed against the drafter.  Essentially, the contract was drafted by the government, ratified by the people (only white male people, but I digress).  But the people could only vote up or down, accept or reject.  So where there's doubt, where the question is "What can government control?" the answer is "Less."  But then there are those provisions that grant rights.  How to reconcile the Fourteenth Amendment's Equal Protection Clause with the Fifth Amendment's recognition of the value of private property?

Thomas and Scalia would claim that the language or history or something objective provides all answers and one must simply check the data.  Breyer would say, the hell with the language, let's just look at constitutional values (whatever they may be) and apply them.  Souter, though with less clarity (again, one hopes he'll keep at it), seems to want it all.  And that's got to be right.

You start with the words.  But the words require choices.  Is it speech or religion at issue?  How does the Establishment Clause square with Free Exercise?  Can hate speech, which is protected, deny someone Equal Protection, which is protected? And whose rights are protected, by the way?  And which rights?  Where's the basis for a warrantless search?  When is bail "excessive" or a punishment "cruel and unusual"?  How in the world do we decide whether a law is ex post facto?  And where in the Constitution do you find the authorization for the FCC to punish fleeting expletives?

So the words aren't enough.  Which ones do you read?  How do you read them?  Narrowly or broadly?  Or are some narrow and others broad?

Me, I start with the idea that individual rights are, unless specifically constrained, the trump card.  But that leaves, frankly, lots of gaps.  Which right applies when?  And what happens when my rights bump up against yours?

The conversation (and that's really all it can be, since unlike Anthony Kennedy, who gets to decide, I don't have even a vote) continues.

But it won't, I don't imagine, continue where it should: In the Senate Judiciary Committee when Senators posture and General Kagan dissembles.

Clients, We Got Clients

I don't really know what happened.  Just a couple of news reports that caught my eye.  One local, one from far off Wenatchee, Washington.  I don't know that they teach anything much, though I suppose I could derive lessons from each.  I don't know that they have anything much in common, either.

But these are, after all, our clients (not mine, however).  And it's maybe worth keeping track.

Here in Toledo, we learn from The Blade (its claim to be "One of America's Great Newspapers" becoming more and more credible as the number of America's newspapers continues to shrink) that police were chasing suspected bank robber Donovan Jacobs who was "fleeing" in his own car.  Later (the details seem a bit fuzzy, but apparently police didn't capture him) Jacobs was seen driving in a stolen car.  At some point (perhaps a traffic light?), Jacobs stopped.  When police approached to arrest him as a suspect in the bank robbery, Jacobs took off briefly before shooting himself in the head.

Not fatally, however.

Meanwhile, Gavin Stanger of East Wenatchee was booked into the local lockup having, it seems, turned himself in to serve his three days for misdemeanor disorderly conduct.  Police did their job.  Pat down followed by strip search.  Dee Riggs, staff writer for the Wenatchee World (another of America's Great Newspapers?) fills us in on what happened next.

About 90 minutes later, with Stanger in a single holding jail, a jailer found a plastic bag and duct tape floating in the cell’s toilet.

OK, you'd ask questions, too.  Stanger came, er, clean.

Coming in rectally — via one person — were a green cigarette lighter, cigarette rolling papers, a golf-ball size baggie of tobacco, a bottle of tattoo ink, eight tattoo needles, a one-inch-long smoking pipe and a small baggie of suspected marijuana, said Sgt. John Kruse, a Wenatchee Police Department spokesman.
“We were all wondering, ‘How do you put all that up there?’ ” Kruse said. “The tobacco was pretty impressive; it was a good ounce.”

Me, I'm more impressed by the ink and the needles, but then I don't have the degree of experience with rectally-stored contraband that Sergeant Kruse perhaps does.

Perhaps not surprisingly, Stanger faces more charges.

You Really Can't Make This Up

It bills itself as "Everybody's Hometown."  Pretty clearly, that's not true.

It's false as a technical matter, of course, since lots of people (truly, the overwhelming majority of the worlds 7 billion or so, but even a majority of, say, Arizonans) aren't from there.

It's also false as a cultural metaphor.  I mean, whatever the city's tourist bureau may want to claim, Prescott, Arizona has demonstrated that any hometownyness it can muster belongs to only the most . . . .

Wait, let me get to it in my usual sort-of roundabout way.

We know about Maricopa County where regard for basic constitutional niceties isn't even honored in the breach.  We know about Maricopa County where Sheriff Joe says he's going to keep arresting immigrants even if they aren't going to be prosecuted.  And we know about Arizona the state where people of color immigrants criminal firriners who want to cause auto accidents have to prove that they have some specific government authorization to walk the streets.  And we know about Arizona where, it's illegal to teach ethnic studies.

Now we've got Prescott, in Yavapai County, where the only response to color is, er, whitewash.

Miller Valley School in Prescott has some 380 students from kindergarten through the fifth grade.  It also has the highest ethnic mix of any school in Prescott.  Mostly, though, it has a great big public mural depicting four of the school's kids.

And darned if one of them was Hispanic and one was African American. 

So, you know, what happened.

R.E. Wall, the artist who heads the Prescott Downtown Mural Project, told a local newspaper passersby regularly shouted racially charged comments at his group while they were creating the mural at the Miller Valley Elementary School.
"You're desecrating our school," "Get the ni---- off the wall," "Get the sp-- off the wall," were common, Wall said. "The pressure stayed up consistently," Wall said. "We had two months of cars shouting at us."

Yeah, there are racist idiots everywhere.  Prescott's no different from your town.

So you might think.  Until you have your Paul Harvey moment. 

You know, the part where the Miller School principal told Wall to make the black and hispanic kids look more, er, white.

And now you know the rest of the story.  

 

H/t Wonkette

Ohio: Where Good News Abounds

I was getting set to delve into the world of constitutional interpretation again.

The plan was to do some riff off of now-retired Supreme Court Justice David Souter's commencement speech at Harvard.  It's an impressive speech exploring just why the balls 'n' strikes model of judging and justicing (at least of constitutional judging and justicing) is necessarily nonsense and why, also, the idea that what he calls the "fair reading" model is equally hopeless.

I still want to do that.  Maybe tonight (ah, yes, another Friday night writing blog posts; you enjoy the weekend your way and I'll enjoy it mine) or tomorrow.

But the news cycle interrupts.

So it's time for a quick (I promise) dip into the criminal-law related waters of the Buckeye State (that's Ohio).  Three events.  Two at least something of a surprise.  Yesterday's first.

The Supreme Court of Ohio

On November 4 last year, the Ohio Supreme Court heard oral argument in four cases challenging in a variety of ways the retroactive application of Ohio's latest sex offender classification, registration, and notification law, the Adam Walsh Act.  (You can watch the arguments by following the links here.)

As relevant here, the AWA required that some 26,000 people who had judicially determined and imposed registration requirements would be reclassified by the state Attorney General under the new system.  The old system classified people based on a calculation about the likelihood they would be dangerous.  The more dangerous, the more attention would be paid and the greater focus.  The new system increased surveillance over everyone but abandoned the concern with prospective dangerousness.  The vast majority of those 26,000 had their classification categories and duties increased dramatically.  Thousands were moved from the least monitored to the most monitored - not because they were more dangerous (again, that was irrelevant) but because of what they had been convicted of.

Anyhow, today makes 7 months since the argument.  In the interim, the Chief Justice before whom we argued (disclosure, I was counsel and did the oral argument in the first of that morning's cases, State v. Bodyke) died suddenly.  And this is an election year in which one of the sitting justices is running against the newly appointed Chief Justice.  So we've been waiting.  And waiting.  And wondering if the court was going to order us to come back and argue them again after the election.

Now we know.  Yesterday, the court ruled in Bodyke, the first of those four cases.  Those 26,000 people were previously classified by judges.  The Attorney General, even acting on the legislature's command, cannot undo the acts of the judiciary.  The three branches of government can and should work together.  No branch, though, has the right to usurp the role of another.

26,000 people will return to their prior classifications.  We might have wished for a broader-based ruling, but this is an absolute win.  Not just for the 26,000 men and women (and their families) affected, but for all the people of Ohio.  Applying the new law to them is not only costly and unconstitutional, it actually makes us less safe, sapping attention and resources from where they can do good and directing them to where they serve no purpose.

Score One.

Governor Ted

A couple of weeks ago, I wrote about Richard Nields.  He was due to be murdered by the Ohio Department of Rehabilitation and Correction on June 10.  But the Parole Board voted 4-3 to recommend that the Governor commute his sentence to life without parole.  Three reasons.  One Ohio Supreme Court justice said that Nields' wasn't the sort of case the law should be applied to.  The federal appellate court that affirmed his death sentence said it wasn't the sort of case the law should be applied to.  And then there was Paul Shrode, the coroner who did the autopsy of the woman Nields killed, Patricia Newsome.  

Shrode testified at the trial, providing much of the evidence about how Newsome's murder was coldly calculated, evidence the prosecutor urged the jury to rely on, evidence it turns out that had no scientific basis whatsoever.  Shrode just lied about it. 

A week after the Parole Board issued its decision, Shrode was fired from his job as medical examiner for El Paso County, Texas.  Alicia Caldwell explained it this way in her story for the Dallas Morning News.

El Paso County's medical examiner was fired Monday following years of questions about his resume and qualifications.
Dr. Paul Shrode, who testified in an Ohio capital murder case where officials are now recommending the death sentence be overturned, was released from his job after a 3-1 vote by county commissioners, said commissioner Veronica Escobar.
Questions about Shrode's qualifications have swirled since he acknowledged in 2007 that he lied on his resume about having a law degree. Last year, the county was notified that Shrode was no longer eligible to become board certified in pathology, despite his claims of having received the certification years earlier, Escobar said.
"Cumulatively his own actions have made it so that it's hard for the community to have faith in Dr. Shrode and for me to have faith in Dr. Shrode," Escobar said after the vote.

So we've been waiting.  What would Ted do?  Frankly, I figured he'd let Nields die.  I mean, what the hell, who really cares, and there's an election coming up and, well, Ted hasn't exactly shown that he cares deeply about this stuff.

I guess I owe our Governor an apology.  Today he commuted the sentence to LWOP.  Richard Nields will live.  Ohio won't murder anyone this month.

Sorry for misjudging you, Ted.  

Except, there were all those other guys you let die.  And lots more are in the dock.  Many with real dates.
Score Two.

Lorain County

Her name is Nicole Diar.  She did or did not murder her 4-year-old son, Jacob.  She was sentenced to die in 2005.  Three years later, the Ohio Supremes sent her back to be resentenced.  Yesterday that was done.  Life without parole.
I've talked about LWOP before, never with joy.  It is, as I've said, a sentence of death in prison.  It's the removal of hope.  It's as ugly as can be.  Yet . . . . 
Kreig Brusnahan, one of her lawyers, put it this way.

It’s a difficult day for Ms. Diar and her family, but, given the choices we had, life without parole is certainly a better choice than the possibility of facing the death penalty.

Score Three.

And May the Best Man Win

It's a tough business this criminal defense thing.  And it takes, sometimes, a tough guy (or gal) to do it.

Last year, I mentioned this story from Washington State. It seems that Micah W. Hasselstrom tried to escape from Spokane Municipal Court. His public defender and two other PDs, with the able assistance of a deputy sheriff, tackled him. Yes, that's right. He was, in effect, arrested by his lawyer and two other public defenders.

I mean, who knew that the public defender job description included taking down escaping clients?  The real question, and the one which I gather generated heated discussion among Washington's criminal defense bar, was whether criminal defense lawyers should be using their considerable physical prowess to aid the police.  It's the question from the old union song.

Which side are you on?

Sometimes, at least, it seems the answer is clear.   Case in point.  Cook County Public Defender and sometime professional boxer, Henry Hams. 

As reported by Rummana Hussain and Frank Main in the Chicago Sun Times (and notice that this was a big enough story to require two reporters to cover it),  Hams and an (unnamed) assistant county prosecutor apparently had a disagreement over when to set a date for a hearing.  Lawyers argue about that sort of thing all the time.  Sometimes the arguments are contentious.  

There was, for instance, the time the Honorable Gregory A. Presnell, U.S. District Judge in Florida, ordered opposing counsel to resolve their dispute over the time and location of a deposition by playing rock, paper scissors.

[A]t 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.

Even when childhood games are required, though, contentious arguments over scheduling can generally be resolved peaceably.  Hams and the (unnamed) assistant county prosecutor?  Well, Hussain and Main report it this way.

The incident today happened after an argument spilled out from Judge Clayton Crane’s courtroom on the sixth floor, authorities said.
The two disagreed over when to set the next court date on a post conviction hearing for convicted murderer Derrick Neal.
“We could just set a date on Aug. 5. I don’t see a problem. . .,” Hams said, according to a transcript of the hearing.
The prosecutor responded, “I didn’t say there was a problem. I’m trying to be convenient to everybody, including myself and the court.”
The prosecutor “left the courtroom and was in the hallway when the public defender came up to him and resumed the argument. That led to a physical fight where the public defender had to be pulled off of the state’s attorney,’’ Cook County Sheriff’s spokesman Steve Patterson said in a statement. It took two deputies to separate the men, he said.
Hams allegedly put the prosecutor in a “choking headlock,’’ police said. The public defender allegedly  told a bystander he did it because he was “sick of him mocking him,” the bystander said.

Sophia Tareen, reporting the story in the Chicago Tribune reports not a "choking headlock" but that

Hams was on top of the prosecutor with both hands around his neck. 

A subtle distinction, perhaps, but one that suggests the fight to have been more a brawl than a wrestling match.

More significantly, Tareen emphasizes that the fight was all about the law.  She notes that the lawyers knew each other "only through legal proceedings."

Most criminal defense lawyers I know will tell you that criminal law is considerably more civil than civil law.  It's not that we don't fight with prosecutors (and they with us) every bit as forcefully as civil plaintiff and defense lawyers do.  Maybe it's just that with so much more than money at stake, and so little billing by the hour on either side, we're often more accommodating about the truly trivial.

Or maybe we just deceive ourselves.

In Berger v. United States, Justice Sutherland wrote of the duty of a prosecutor.

[W]hile he may strike hard blows, he is not at liberty to strike foul ones.  

The blows the (unnamed) assistant county prosecutor and Henry Hams exchanged probably weren't what Sutherland had in mind.  Then again, is not quite what Justice White was talking about in his concurring and dissenting opinion in United States v. Wade when he observed that

we countenance or require conduct [of defense counsel] which in many instances has little, if any, relation to the search for truth.

Henry Hams is in jail tonight.  He's charged with resisting arrest and aggravated battery in a public place. Both felonies.  He'll be in court tomorrow to have bond set.

h/t Law of Criminal Defense

No, You Prove It

Once you've been found guilty, the rules change.  Of course, rules are iffy things to begin with.
Consider Miranda v. Arizona.  You know, the case that says:

1. When you're in custody, and
2. Police want to interrogate you,
3. They have to read you your rights, and
4. You have to understand your rights, and
5. You have to voluntarily agree to give them up, and
6. If you then say something incriminating,
7. It can be used against you in court.  But
8. Only if the government can satisfy a "heavy burden" of
9. Demonstrating by a preponderance of the evidence steps 3, 4, and 5.

Or, of course, not.
Because "custody" isn't what you or anyone else thinks it is.  According to the courts, a person is in custody when a reasonable person would believe himself free to leave.  When you've been stopped for speeding and the cop is asking if you've had much to drink?  Nope, not custody.  When the cops knock on your door and ask to speak with you?  Nope, not custody.  When they drive you down to the police station and put you in a little room with no windows and a door that a burly guy with a badge and gun is blocking but haven't actually told you you're under arrest?  Nope, not custody.  As Scott Greenfield said yesterday in a slightly different context,  judges know all that's nonsense, but it's what they choose to believe when they are in the courtroom being judges rather than out on the street being asked questions by a cop.
And then there's that whole understand your rights thing.  As if it matters.  Did you ask for an explanation?  No?  Then you must have understood.  Oh, wait, you did ask for an explanation?  Did the cops offer one?  Then you clearly understood.
Did you voluntarily give up those rights?  The cops lied and told me that they found my fingerprints on the gun when they didn't; so I gave up my rights based on false information; that's not voluntary.  Wrongo.  The cops promised me that I wouldn't be charged , you know, and said that I'd help myself if I told them.  So I did.  That can't be voluntary.  Wrongo.  The cops threatened to beat the shit out of me.  Maybe.  Though it's your word against theirs.  And they're likely more credible to the court than you are.  And they only have a "heavy burden of proving that your waiver was voluntary, so you have to prove it wasn't.
But you said, "I should speak to a lawyer."  And they kept after me.  Ah, but you didn't say you refused answer questions until you spoke to a lawyer.  It's magic words.  You have to say the right ones.  And nobody will tell you what they are.  (Norm Pattis did take a shot at it this morning.)
And, by the way, how many accused criminals understand, "Having had these rights explained to you, do you waive your rights and agree to speak with us?" as a question (if it happens to be asked) that amounts to "You gonna give it all up and say something now so we can hang you with it?"
So the truth is that the government's "heavy burden" of proving that any custodial statement was made only after a knowing and voluntary waiver of the rights to silence and counsel is, and pretty much has been for years, just so much bullshit.
And now it's official.  Yesterday, in Berghuis v. Thompkins the Supreme Court spoke and (albeit by a 5-4 vote) explained that the burden on the government is, indeed, heavy.  And that in order to prove that the defendant understood his rights and chose not to waive them, the government must . . . . Well, actually nothing.  The government carries it's heavy burden as long as the defendant doesn't prove that he said, "I will not speak to you."  
While the Court continues to insist that the burden of proof is on the government (and is "heavy") the Court explained that the government wins as long as the defendant doesn't prove that the government loses.  And the only proof that counts is that the defendant spoke magic words - while in custody.
But I don't really want to talk about Thompkins.  Read Pattis and Horowitz and Greenfield and Sarah if you want to know what we all think about it.
I want to talk about innocence, and that takes me back to where I began.

Once you've been found guilty, the rules change.

See, up to the moment when the jury says the defendant is guilty, up to that moment, the prosecution has the burden of proving guilt beyond a reasonable doubt.  That's true (at least in theory) in federal court, in state courts, in municipal courts, in military courts martial, in pretty much everywhere.  Oh, the rules of evidence vary a bit from place to place, and procedures change, but the fundamental rule - they gotta prove it - that's core.  (Once again, I'm talking theory here.)
But once the jury (or the judge where there is no jury) says "Guilty," that all changes.  That rule, the presumption of innocence, the "They-gotta-prove-it," disappears.  From that moment on, even in theory, the burden is on the defendant to show something else.  And that burden is especially high if the something is innocence.
Take Kevin Keith.  He's on death row in Ohio.  He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation.  As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence.  The state's case was, frankly, shaky to begin with, though it was enough to convince the jury.  But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing.  Melton knew information only the killer could have known.  At least one survivor explicitly and insistently said that Keith wasn't the killer.  The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin.  (The actual nurse, one who did and does exist, says she was never told any name.)  And he had a substantial alibi.
OK, as I routinely say at this point, I don't know what happened that evening in February 1994.  What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.
But now he's got to prove his innocence, and the courts have been, shall we say, unwilling to let him do that.  Gee, the courts said, there was enough evidence at trial to convict him, so there's no need to look at evidence that shows he's innocent.  (I'm paraphrasing, but not making it up.)  So Keith's case wandered through the Ohio courts.  Yesterday, the Supreme Court refused to hear his appeal.
He's scheduled to be executed September 15.
Keith, at least, is still in the system.
Kamau Marcharia's been out of it for nearly 40 years.  Except he's not.
Back in 1964, when he was 19 (or maybe 16, 17, or 18), and living in New Jersey, Marcharia (whose name back then was Robert Lewis) was convicted of rape, kidnapping, assault, and maybe a couple of other charges.  Here, taken from a 1973 law review article on the case by attorney and crime fiction novelist Andrew Vachss, is a summary.

Two young people were the victims of a connected series of particularly vicious and senseless crimes. Indictments were returned against seven defendants, two females and five males. Both females, and two of the males were apprehended at the scene of the crime. Another male was arrested nearby, allegedly in act of escape. The remaining two defendants, Esaw Mitchell and Robert Lewis, were brought to trial seven months later. Their cases were not severed. The male victim of the crimes placed Lewis at the original scene based on some highly dubious observatory techniques. The female victim of the crimes placed Lewis at the original scene, but not at the scene of the kidnapping and the rape which followed. One of the previouslyconvicted rapists placed Lewis at the original scene and also testified that Lewis left prior to the kidnapping and rape. One of the female defendants did place Lewis at the scene of the kidnapping and rape . . . .

The State did not even contend that Lewis raped the victim, but charged that he could be convicted as an "aider and abettor" of the crimes.

Robert Lewis was convicted of atrocious assault on the male victim, of the kidnapping and rape of the female victim, and carrying a concealed weapon (found in the car of the other defendants when Lewis was not present).

If you look at that and go, "Huh?", you're not alone.
In fact, Marcharia was released in 1973, placed on parole with no conditions.  He spent 35 years as a community organizer.  Since 1998 he's had a seat on the County Council in Fairfield County, South Carolina.  He is, by most accounts, a respected, responsible, honored member of the community.  (Disclosure, I learned about Marcharia from an old friend of mine who's a friend of his.)
But see, there's that 1964 conviction.  And the rape thing.  And South Carolina's sex offender registration and notification law, which is the sort of thing nobody'd even thought of in 1964, is being used against him.  And because he's running for the state legislature, and because he's successful but not part of the establishment, there are serious efforts underway to undermine him.  And to pass laws making him ineligible for public office.
The remedy?  Why, prove he's innocent.  Or get him an unconditional pardon.  Or something.  Which has proved, for some years now, a daunting task.  Though if the case were tried today, with what we know, he'd probably be acquitted.  Which is, once again, the point.
And of course there's Cameron Todd Willingham.  If Rick Perry and John Bradley get their was, it's unlikely we'll ever really get to the bottom of his case.
And how many others?
But they've been convicted.  That means the burden's officially on them.  And the government sets it up so that they pretty much can't meet it.
There's a kind of logic at work here.  It's probably fair that once you've been convicted you don't get to keep making the government prove its case again and again.  You want to undo it, you have to show a reason.  I don't have a problem with that.
My problem is that the system (state, federal, whatever) is geared to ensure that your reasons won't get heard.
It's not enough to be innocent.  You have to have an angle.  And some resources.  And a hell of a lot of luck.
Too few do.
Ask Kevin Keith (while you still can).  Ask Kamau Marcharia.  I'd tell you to ask Todd Willingham, but it's too late for that.




Read more about Kevin Keith's case here.
Read more about Kamau Marcharia here and here.

Civil Disobedience and the Death Qualified Judge and Jury

Yesterday, I wrote about Judge A.J. Wagner who took himself off a death penalty case because he believed the death penalty law was unconstitutional and immoral, and he concluded that he could not in good conscience ever sentence someone to death.  I commended his decency but wondered about whether it was for the best.  I wrote this.

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."

I talked about that in the context of enabling the system.  I discussed my own sometime qualms about doing capital work since I am, therefore, allowing the system to function - however well I might also be doing a job of removing people from its maw.  (And yes, I know I'm mixing my metaphors; tough, it's my blawg.)

Today I received this anonymous comment.

I don't understand why an anti-death judge would make such a decision. One of the biggest criticisms of death qualifying a jury is that it weeds out an important population in the evolving standards framework. It boggles my mind why a judge would do the same voluntarily. Does OH have an elected judiciary? This may be more about his reelection than his principles. It would be nice if we abolitionists had the converse of a hanging judge. One who would continue to allow his or her personal convictions affect decisions, but at least in favor of the accused.

I started to write a reply comment, but there's really more to say than that.  So this follow-up post is, well, follow up.

The anecdote.

I was walking through an Ohio courthouse one day when a trial judge - tough, no-nonsense, former prosecutor, hard-nosed, but opposed to the death penalty - buttonholed me.

"Can't you do something about this death penalty business?" The judge asked.

As I said, the judge hated the death penalty, would work like a dog to convince the prosecutor to offer a deal to take death off the table and then to convince the defendant to take the deal.  The judge would also sentence people to death if the jury recommended it. 

"Can't you do something about this death penalty business?" The judge asked.

"I do what I can," I said.  "But you actually can stop it."

The judge glared at me for a few seconds, then turned and walked away.

Scalia speaks.

Antonin Scalia, Supreme Court Justice, Roman Catholic, supporter of the death penalty, believes the Church's opposition to the death penalty is due to the Church misunderstanding Catholic doctrine. (He's explained that more than once, though the formulation I use to describe his disagreement with the Church is mine, not his.)  Here's part of an AP report from February 2002 after he spoke at Georgetown University.

In Chicago on Jan. 25, Scalia said, "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." His remarks were transcribed by the event sponsor, the Pew Forum.
Scalia said Monday that "any Catholic jurist (with such concerns) ... would have to resign."
"You couldn't function as a judge," he said.

The ugly process of what we call "death qualification" involves removing from the jury anyone who cannot fairly consider imposing death.  That "fairly consider" is court language that means, when you plow through to simple English, that people who are opposed to the death penalty don't get to sit on the jury because they aren't likely to vote to kill.  (The law also permits removal of those who make clear clear that they will never vote for life but will always kill.)

The theory behind death qualification is the theory behind insisting that jurors follow the law.  A juror who will never vote for death (or for life), can't seriously determine (or so the court's say) whether death is an appropriate sentence in this or that case and vote appropriately.  The juror has, in effect, prejudged the case.

Scalia (yes, we're back to him), has opined at some length (Morgan v. Illinois, in dissent) that there's no legitimate constitutional basis for insisting that those who will never vote for life should be removed from a capital jury, though it's OK to insist on removing those who will never vote for death because they would be lawless.  His point is that those who will always favor death have concluded that no mitigation evidence can be sufficient to overcome, or  balance out, or whatever aggravation.  It's not that they won't consider life verdicts, it's just that they'll never be appropriate.  (The same is, of course, true as a converse for jurors who will never vote for death, though Scalia won't credit that.)

So just what's the right thing for a judge like Wagner to do?

Ohio law says that, during the sentencing phase of a capital trial, the aggravating circumstance or circumstances proved beyond a reasonable doubt during the guilt/not guilt part of the trial shall be weighed against any mitigating factor or factors proved by a preponderance of the evidence.  If the aggravating stuff outweighs the mitigating stuff beyond a reasonable doubt, then the defendant is to be sentenced to die.  If not (tie goes to the defendant as it goes to the runner in baseball), the senence is to be life.

Wagner has taken an oath to obey the law.

If his view is that aggravation, however great, can never outweigh the mitigating fact that, say, the defendant is a human being, then he can conscientiously say that he will follow the law and if it is appropriate impose a death sentence.  (It's just that it will never be appropriate.)

If his view is that he'll never impose a death sentence even if he finds that aggravation outweighs mitigation because it will make his god unhappy, then he cannot conscientiously claim that he will follow the law because he won't actually be weighing.  He'll be obeying something other than Ohio law.

Put it another way.

Should the judge, may the judge, engage in civil disobedience?

Not lawfully, of course.  But that's the question.

It's widely understood among capital defense lawyers that among jurors who will lie to get on a capital jury to ensure that the outcome (death or life) will favor their view, more of the dishonest are killers than life savers.  (I'm given to understand that prosecutors think we have it exactly backwards.)

The system, of course, insists that jurors aren't supposed to lie.  And they are supposed to follow the law.  Rogue jurors (I love the phrase; I even got to use it once in a case, though I lost, alas) aren't secret good guys.  They're, well, rogues - anathema to the very idea of the rule of law.

Regular readers of this blawg know that I am a moralist - and that I am a believer in the rule of law.

I believe in the rule of law because it's what holds the system accountable.  I believe that the government shouldn't be in the business of murder.  I believe that the reality of the death penalty is lawless, that any conceivable reality of the death penalty will be lawless.  And that executions are, in any event, morally and legally unjustifiable.

Which makes it all damned complicated.

If called as a prospective juror in a capital case, I would surely be excused.  But whether I'd be properly excused for cause (given the state of the law) or the state would be forced to use a peremptory challenge on me  depends on the questions I was asked.

Q: Would you vote for death if it were the appropriate sentence under the law?

A: Yes.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances in which you would vote for death?

A: Sure.  If it were the appropriate sentence under the law.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances under which death will, in fact, but appropriate sentence?  Can the aggravating circumstances ever outweigh mitigation?

A: Sigh.  No.

I'm booted off the jury on a challenge for cause.

Finally, there's this.

The law on this sucks.  It's just wrong.  Those who cannot ever vote for death are a significant portion of the community.  To exclude them from the jury means a jury that is tilted, biased in favor of death.  It means a jury of one's peers who happen to believe that killing the defendant is acceptable.  It means not a cross-section of the community but a cross-section of a portion of the community from which I (for instance) am excluded.  The voice is of the community, but it's the community's voice after those who might have another view are silenced.

It is, plainly and simply, wrong.

Judge Wagner has made his own decision.  I don't know what mine would have been (and since I'll never be a judge, it won't come up).  But the fact that he made that decision highlights what's deeply wrong with the law as we have it.