BECAUSE THEY REALLY DON'T GIVE A SHIT - Ohio Prosecutors Edition

Let's say you're a prosecutor.  Let's say you've put people in prison.  Let's say that some of them claim to be factually innocent.  Let's say that some of those believe DNA testing will prove it.

If you're a prosecutor of decency, integrity, and fairness, you almost surely think they're wrong.  You wouldn't have pursued the prosecutions unless you believed the people guilty.  Even after they were convicted, had they come to you with compelling evidence of a mistake, you'd have joined them in requesting their names be cleared.  You know, after all, that there's a double injustice when the innocent are convicted of crimes.

• The innocent suffer.
• The guilty escape.

You do not sanction such results.  You understand that humans can make mistakes and even their best systems can err.  Whatever power you have, you will use to undo such errors.

And so, if you were one of the prsoecutors to whom Governor Ted and General Cordray wrote last week asking that you permit DNA testing (at no cost to taxpayers, by the way) on behalf of a convicted person, you would have understood that DNA testing could have one of three outcomes.

1. It could confirm guilt.
2. It could prove innocence.
3. It could be inconclusive.

None of those outcomes would offend you.  So when you got that letter, you'd immediately have said,

Of course.  But why just that person?  Let's do DNA tests in any case where there's a chance, however remote, they might provide proof one way or another.

Which explains, perhaps, why you are not a prosecutor.

Those letters from the Governor and the General?  I wrote about them on Thursday. They were sent to seven prosecutors around the state urging each of them to permit DNA testing in a particular case where they'd opposed it.

The seven cases included one where the convicted person was dead, three where the people were no longer in prison but hoped to clear their names, one of a man on death row, and two of other current prisoners.  In their original report in the Columbus Dispatch, Mike Wagner and Alan Johnson allowed Ted to explain.

"I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us," Strickland told The Dispatch. "I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime." 

Like I say, you'd think so.  But you wouldn't be a prosecutor.  We know that, because now four of the seven prosecutors have responded, as has John Murphy, the Executive Director of the Ohio Prosecuting Attorney's Association.  Are you really going to be surprised when I tell you that they aren't just jumping at the prospect of "bring[ing] clarity"?  Johnson and Wagner have a follow-up report in today's Dispatch.

Several prosecutors urged to permit DNA testing in specific criminal cases are firing back at Gov. Ted Strickland and Attorney General Richard Cordray, accusing them of "political grandstanding" and taking sides against victims.
Four of seven prosecutors in the cases under scrutiny, as well as the Ohio Prosecuting Attorneys Association, sent critical letters in response to Strickland and Cordray's requests this week.
Thus far, none has agreed to what was acknowledged as a voluntary request for DNA testing.
John Murphy, head of the prosecutors' association, said he was "deeply dismayed and surprised" that prosecutors were not consulted in advance.
"The action you have taken unfortunately gives the impression that you have taken sides, and you have done so with only the convicted criminals' side of the arguments," he told Strickland and Cordray.

Let me pause, for a moment, to ask what the hell these guys are talking about?

One example will do.  Tyrone Noling is on on death row from for a double murder in 1990.  He insists he is innocent.  The Cleveland Plain Dealer took up his case several years ago and raised some serious questions.  The paper made public records requests and discovered potentially exculpatory evidence that had been concealed from the defense.   The prosecutor insisted that Noling's lawyers couldn't use that information.  Regina Brett wrote about what happened next in her column in the PD.

The prosecutor's file contains facts that might free a man on death row.
But for 10 years, Tyrone Noling and the attorneys handling his appeals haven't been allowed to see them.
They didn't know the information existed until Plain Dealer reporter Andrea Simakis found it.
Why?
Ohio doesn't have open discovery. Prosecutors don't have to open their files and share with the defense. They can actually hide information.
Journalists can get information that the defense can't.
What's at stake?
Only a man's life.
The prosecutor's file shows that police had two other viable suspects in the 1990 murders of Cora and Bearnhardt Hartig in Atwater Township.
One suspect matched the description of a man seen near their neighborhood the day of the murder. The suspect said he didn't know the couple. He lied. He sold them insurance.
The other suspect owned a gun that ballistic tests showed could have been used to kill the Hartigs.
Shhh.
Don't tell anyone. Tyrone Noling sits on death row, even though three guys who testified against him have recanted.
The prosecutors don't seem interested in who is guilty or innocent. They already got a victory.
They fought to keep it last week in Portage County, where Judge John Enlow could -- and should -- grant Noling a new trial.
Assistant prosecutor Pam Holder argued, "I'm a little concerned The Plain Dealer is releasing information to the public that's not available to the defendant. . . . "
She's not concerned that the information could free Noling.
She's not concerned that the information could mean they convicted the wrong man.
She's concerned that the media are letting everyone know about it.
She wasn't arguing that the information doesn't exist. She was arguing that Noling shouldn't get to see it.

That was three and a half years ago.  Noling remains on death row.

As I always say at times like this, I don't know what happened that day in 1990.  I've never represented Tyrone Noling.  I've never met him.  I don't have any idea whether he killed those people.  But damn, what's the risk?  Where's the harm?  Why hide the evidence?  And to bring it back to where we started,

WHY NOT TEST THE FUCKING DNA?

But you see, Portage County Prosecutor Victor Vigluicci is among those who say he's refusing to go along with the Governor and the General.

Because, well, damned if I know.

* * * * *

And it's not just DNA.  Regina Brett's column was about Ohio's need for open discovery.  In civil cases, both sides have, essentially, all the evidence before trial.  Of course, in civil cases we're talking about something important, like money.  In criminal cases, where liberty and sometimes life is on the line, the rules are different.  The prosecutor gets to keep much of its evidence secret.  The result: Trial by ambush.  Brett spearheaded years of effort to get that changed.

And changed it was.

Effective July 1 this year, we have open discovery in Ohio (Rule 16, here).  The rules aren't perfect.  To get it enacted, the criminal defense bar and the prosecutor had to work together and the result was compromises on both sides.  But it's an enormous step forward.

The catch, of course, is that it assumes good faith on everyone's part.  I mean, it's fine to have a rule that says, the prosecutor must reveal police reports to the defense (which is part of what the new discovery rules say and is a dramatic improvement), but what can you do if the prosecutor just slips one of the reports out of the file and puts it in a secret, second file?  The rules forbid cheating.  They don't make it impossible.

Anyhow, one of the rules involves the names of witnesses.  Prosecutors are to turn them over to the defense.  There is, of course, an exception.  It's Rule 16(D).

Prosecuting Attorney’s Certification of Nondisclosure. If the prosecuting attorney does not disclose materials or portions of materials under this rule, the prosecuting attorney shall certify to the court that the prosecuting attorney is not disclosing material or portions of material otherwise subject to disclosure under this rule for one or more of the following reasons:
(1) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion;
(2) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will subject a witness, victim, or third party to a substantial risk of serious economic harm;
(3) Disclosure will compromise an ongoing criminal investigation or a confidential law enforcement technique or investigation regardless of whether that investigation involves the pending case or the defendant;
(4) The statement is of a child victim of sexually oriented offense under the age of thirteen;
(5) The interests of justice require non-disclosure.
Reasonable, articulable grounds may include, but are not limited to, the nature of the case, the specific course of conduct of one or more parties, threats or prior instances of witness tampering or intimidation, whether or not those instances resulted in criminal charges, whether the defendant is pro se, and any other relevant information.
The prosecuting attorney’s certification shall identify the nondisclosed material.

See, that's to allow nondisclusure in the exceptional case where there's a serious reason based on "reasonable, articulable grounds" to hold back some information.

Did I say the exceptional case?  Did I mention that these rules only work when applied in good faith?  Did I mention Joe Deters?

Deters is the prosecutor in Hamilton County, Ohio.  That's Cincinnati.  Here's his position (I'm trying to be fair about this) as reported by Kimball Perry in today's Cincinnati Enquirer.

In some murder cases, there have been threats of witness intimidation and an actual killing of a witness in a murder case.  Therefore, he's witholding witness names in all murder cases.

An angry Deters announced last month that he was sick of witness problems in murder cases and would withhold witness names in them after a witness in the Keyvonte Criswell's murder case was killed.
Criswell was in the Hamilton County Justice Center charged with murder in the Feb.15 killing of Jerald Travis. While in jail, Criswell is accused of telling relative Desmond Criswell and friend James Johnson the name of the lone eyewitness to the killing - Aaron Burns. Johnson and Desmond Criswell went online to the Clerk of Courts website, printed a list of witnesses in the case and went hunting for Burns, Deters said.
"The (alleged) killers were walking through the neighborhood with a Clerk of Courts witness list," he said.
On June 15, they gunned Burns down, Deters said, so he couldn't testify.
Johnson and both Criswells are indicted for Burns' slaying.
Deters and his assistant prosecutors are frustrated with witnesses who are reluctant, terrified or refuse to get involved because they don't want to be labeled a "snitch."
They're tired of cell phones being whipped out in court and pictures taken of testifying witnesses. They're concerned that people they believe are cold-blooded killers could escape justice because of fear and intimidation.

Let's see.  In this one case, folks got the names from the Clerk of Courts.  That's not discovery to the defense.  In other cases, people are taking cell-phone pictures of witnesses in court.  That's not discovery to the defense.  And none of this is specific to the case. 

Perry talked to defense attorneys, too.

They are particularly alarmed, though, that Deters' office is issuing requests to withhold witness names when there is no allegation of witness intimidation.
"They're not doing it on a case-by-case basis," said Carl Lewis, president of the Greater Cincinnati Criminal Defense Lawyers Association.
Ohio criminal rules require prosecutors to give to those charged with crimes, or their attorneys, witness names unless the prosecuting attorney has reasonable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion.
Attorney Richard Goldberg who represents Clarence Jackson, also indicted in the Palmore shooting, says Deters' request to withhold witness names in that case "doesn't even allege my client threatened anybody or intimidated anybody."
"I'm just kind of amazed they did it on this case for no reason," Goldberg said.

See, here's the thing.  There's a damn rule.  Deters doesn't have to like it.  But he's supposed to obey it.

* * * * *

Which brings me to the point.

Let's say that you're a prosecutor.  And let's say that you're supposed to be concerned about ensuring that justice (whatever that might be, and no, I'm not going back to that discussion here) is done.  And let's say that you recognize that as the representative of the government on the side of enforcing the law, you have a special obligation to obey the law.  

Now let's say that you could allow (not act, just allow) that which might provide hard proof one way or the other about someone who claims a miscarriage of justice.  And let's say that you could obey the law or ignore it because convicting people while obeying the law is tougher than convicting them while ignoring it.

Like I say, maybe you'd do the right thing.  Which is why you aren't a prosecutor.

What a Piece of Work Is a Man!

Richard II was losing.  He would be deposed.  He understood, or at least recognized it.  His supporters tried to  comfort him, but he would have none of it.  

                            [O]f comfort no man speak:
Let's talk of graves, of worms, and epitaphs;
Make dust our paper and with rainy eyes
Write sorrow on the bosom of the earth,
Let's choose executors and talk of wills:
And yet not so, for what can we bequeath
Save our deposed bodies to the ground?
Our lands, our lives and all are Bolingbroke's,
And nothing can we call our own but death
And that small model of the barren earth
Which serves as paste and cover to our bones.
For God's sake, let us sit upon the ground
And tell sad stories of the death of kings;
How some have been deposed; some slain in war,
Some haunted by the ghosts they have deposed;
Some poison'd by their wives: some sleeping kill'd;
All murder'd: for within the hollow crown
That rounds the mortal temples of a king
Keeps Death his court and there the antic sits,
Scoffing his state and grinning at his pomp,
Allowing him a breath, a little scene,
To monarchize, be fear'd and kill with looks,
Infusing him with self and vain conceit,
As if this flesh which walls about our life,
Were brass impregnable, and humour'd thus
Comes at the last and with a little pin
Bores through his castle wall, and farewell king!
Cover your heads and mock not flesh and blood
With solemn reverence: throw away respect,
Tradition, form and ceremonious duty,
For you have but mistook me all this while:
I live with bread like you, feel want,
Taste grief, need friends: subjected thus,
How can you say to me, I am a king?

That's Shakespeare, not history.

Here's the history.

Richard II, Portrait in Westminster Abbey

He was but ten years old when he became king.  He was deposed when he was thirty-two.  He died, a prisoner at Pontefract Castle, at thirty-three.  He may have been murdered; he may have died of starvation (not mutually exclusive possibilities, of course).

He was extravagant.  He amassed wealth and surrounded himself in opulence.  (It is said that he had a suit made entirely of gold thread.)  To support his lifestyle and his military incursions into Ireland, he levied what were viewed as punishing taxes.  Yet as he made war with Ireland, he made peace with France.

He was probably a better king than we imagine, for our understanding is so heavily influenced by Shakespeare, who painted him a far better man after he was deposed.  Indeed, the speech I reproduced above probably marks the point in the play where he first begins to gain our admiration.

Whatever he may have been in real life, Shakespeare's Richard II was a far better poet than he was a king.

And then there was the Thane of Cawdor.  Another Thane, Angus, explains his situation to Macbeth.

Who was the thane lives yet;
But under heavy judgment bears that life
Which he deserves to lose. Whether he was combined
With those of Norway, or did line the rebel
With hidden help and vantage, or that with both
He labour'd in his country's wreck, I know not;
But treasons capital, confess'd and proved,
Have overthrown him.

Cawdor's execution occurs offstage, but King Duncan, wants the details.  His son, Malcolm, provides them.

                                I have spoke
With one that saw him die: who did report
That very frankly he confess'd his treasons,
Implored your highness' pardon and set forth
A deep repentance: nothing in his life
Became him like the leaving it; he died
As one that had been studied in his death
To throw away the dearest thing he owed,
As 'twere a careless trifle.

Duncan promptly bestow's Cawdor's title (and lands) on Macbeth, fulfilling the first of the witches' prophecies and setting in motion the relentless ambition and desperation that lead, inevitably, to the murder of Duncan himself and the rise and fall of Macbeth.

Roderick Davie, DRC photograph

On Tuesday, Ohio plans the murder of Roderick Davie.  His will be the 40th murder under Ohio's scheme.  The 7th in 2010.  Only Texas, where they've killed 15 this year so far, has killed as many. 

Davie is no Richard II.  There's nothing particularly noble in his suffering.  He has not been brought down from great height.  His imprisonment has not changed the world or our society in any noticeable way, nor will his death.

He's not Cawdor, either.  (Nor is he Duncan or Macbeth, for that matter.)  His crime was not treason.  We do not yet know whether he will go to his murder with the nobility that Cawdor apparently went to his, but it seems unlikely he'll be the subject of such a eulogy.

Davie killed two people.  He tried pretty hard to kill a third, but that man survived.  None of the three had, so far as we know, wronged him.  The county prosecutor told the Parole Board that Davie is an "unabashed psychopath" (whatever exactly that means).  He has been far from a model prisoner (though others have done far worse things than he while behind bars).  He did not ask the Parole Board to recommend clemency, and they did not.  (The Board's report is here.)

And yet, the question really does beg to be asked:

To what end?

Macbeth, having seen the ghost of Banquo, has learned something of cosmic consequence.

Blood will have blood.

Horror visits upon horror.  Pain begets pain.  That's the message of revenge, and it really never ends.

Hamlet's father, King Hamlet, was murdered by his brother Claudius.  The ghost of the old King urges hamlet to avenge the murder.  He dithers, but in time it's done.  The result:  Virtually the entire cast of the play is dead.

Sister Helen Prejean says that we are all better than the worst thing we've ever done.  The worst thing Davie ever did, I imagine, was kill those people.  And for us?

Will we be better Tuesday afternoon than we were Tuesday morning?  Knowing that we have one more murder on our hands.

Davie was 19 at the time of the murders.  He is 38 now.  He will almost surely not make it to 39.

Zzzzzzzzzzzzzzz

Not the actual jury in this case

The scene: The Lucas County Court of Common Pleas, Toledo, Ohio
The event: A felony jury trial.
The case: State of Ohio v. Rodney J. Bunce
The charges: Aggravated Murder and Aggravated Robbery
The jury: Asleep
The verdict: Guilty

What was that?  The next to last one.  Come again?

OK, I exaggerate.  The entire jury wasn't asleep (at least as far as we know).  Just one (or maybe two) of the jurors.  And maybe only through part of the trial.

So, you know, no big deal.  Hell, Bunce's trial lawyer didn't notice (or, I suppose, didn't care).  The judge did admonish the jurors to pay attention, and made some comment at sentencing about sleeping jurors.  But really.

We've seen this sort of thing before.  More often, really, than you might imagine.

Real trials aren't like television.  They are, in fact, mostly boring with the boredom interrupted by occasional moments of tedium.  Oh, there's plenty of drama in the situation, and there really can be moments of high tension, even excitement.  Sometimes something funny happens.  But really, it's mostly a story told in snippets interrupted by prosecutors asking their favored question.

And then what happened?

Documents are shown to witnesses ("Yes, I recognize that as a copy of my telephone bill from March 2006").  People point things out on diagrams ("The living room is this one, over here").  The crime scene cops explain what they did.  ("I placed a marker next to each of the shell casings so I would be sure to get them all and then took a photograph of each of the casings.")

Cross-examinations are rarely withering.  Nobody confesses on the witness stand.  Defense counsel is dismantling the prosecutor's case in snippets, working to get a fact here and discredit an odd fact there, to bring it all together in a closing argument.

The closing arguments themselves, as likely as not, will be fumbling and inarticulate with a lot of big words that none of the jurors really understand (and that maybe the lawyers don't, either).

And the jury instructions, don't get me started on them.

So I guess it's not surprising that a juror might be inclined to nod off now and again.  Certainly lawyers have.

In fact, I've written about it before.  I called that post "Resting Up" (which I thought was pretty clever at the time, though it strikes me as less so, now).  Anyway, in that post I spoke about death penalty cases where defense counsel slept through the trial and one in Cleveland where a juror did.  I was struck then, and commented, on the essentially dismissive responses of the judges in the case.

So, for instance, Judge Kathleen Sutula of the Cuyahoga County (that's Cleveland) Court of Common Pleas said to counsel who complained about the sleeping juror,

I saw it.  So what.  Let him sleep.  You guys picked this jury, I didn't.

The defendant in that case, Arif Majid, appealed.  Ohio's Eighth District Court of Appeals reversed Majid's conviction holding that the judge had an obligation to do something about the sleeping juror and that the trial was tainted.  (Alas, it was only a 2-1 decision.)

Oh, if only Rodney Bunce were in the Eighth Appellate District.  Unfortunately, he's in the Sixth.  This morning, a three-judge panel of that court said, unanimously,

Close enough for government work.

Oh, that's not how they phrased it.  And it's true that Majid's lawyers were bothered by the sleeping juror and the judge blew them off.  But still.

Because you know, if the juror's asleep, the evidence just doesn't get heard. And what isn't heard isn't considered.

And there's that whole thing about trust in the integrity of the system.

But then there's also that part about finality trumping fairness.

Sigh.

Generalissima No Longer

She's now Associate Justice Designate Kagan, or whatever title the former (or maybe still current) Generalissima has until she's actually sworn in.


May she prove to be a fine justice despite the way she earned her robe.

A Day of Good Tidings

Let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did.  (Actually, yesterday, since it's well past midnight as I write, but you get the idea.)

Two events.  Different subjects, different states, different government officials.  But still.

* * * * * * * * *

You know about the Honorable Vaughn R. Walker, Judge, United States District Court for the Northern District of California.  In 138 pages Judge Walker said what is clearly true.  Denying same-sex couples the right to marry is, plainly and simply, irrational.

Marriage, Judge Walker said (and everyone agrees; this is as close to settled law as you'll get these days), is a fundamental right and fundamental rights cannot be abridged without compelling reason.  There is no such reason.  Thus, California's ban on same-sex marriage violates the Due Process Clause of the Fourteenth Amendment.  To the canard that those seeking the legal right to marry persons of their own sex are asking for the recognition of a new right, Judge Walker (I keep giving him the honorific because he so fully earned it) responded simply and accurately.  They do not ask for a new right; they ask, rather, to be allowed the same right as those who would marry persons of of the opposite sex: The right to have their loving, committed, and it is to be hoped lasting relationships recognized as marriages. 

That voters approved Proposition 8 denying same-sex couples the right to marry, Judge Walker said, is irrelevant since

fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.

That's a quote from the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.*

There's really not much need to say more.  But Judge Walker did.  He concluded that California's ban on same-sex marriage also violated the Equal Protection Clause.  Even under the most deferential legal standard of review for such claims, the ban on same-sex marriage fails.  All the arguments of the proponents of the ban, he concluded, really amount to no more than "[m]oral disapproval," and that's an insufficient and irrational basis for discrimination.

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

We're not done, of course.  The case now moves to the Ninth Circuit.  Then to the Supreme Court.  Prediction is dangerous.  But here's one.

Prohibiting people of the same sex from marrying each other was just found unconstitutional.  The sun will rise in the east tomorrow, and the republic will survive.

* * * * * * * * *

Meanwhile, in the occasionally great state of Ohio, the Mike Wagner and Alan Johnson, writing in the Columbus Dispatch, report that Governor Ted and Attorney General Cordray now think DNA testing is a good idea.

When Arthur Swanson died in 2006, he left behind a faded box on the floor of his prison cell that contained paperwork showing how long he had begged for a DNA test to try to prove he didn't rob an Amish family.
The 54-year-old Mansfield man was never granted that test, but he might get his wish from the grave.
Gov. Ted Strickland and Attorney General Richard Cordray wrote today to prosecutors in seven criminal cases, including Swanson's, urging them to allow DNA testing that could confirm guilt or prove innocence. In each of those cases, DNA testing has been opposed by prosecutors and ultimately refused by judges.
The other six cases involve one man on Death Row, two inmates serving long sentences and three men who no longer are in prison but want to clear their names.
"I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us," Strickland told The Dispatch. "I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."

Glad to see they've come around.

Of course, given Ohio's balkanized system of juridical fiefdoms, they don't have the power to do more than urge the prosecutors to quit stonewalling.  Still it's something.

It was, after all, back in April that Ohio murdered Darryl Durr while he was asking for DNA testing "to bring clarity to whether or not [he was] guilty of a crime."

And, oh, while it was the county prosecutor who provided the formal opposition to the testing, by the time we were arguing it in federal court, it was representatives of General Cordray who led the fight against testing.  After all, why would we want to know?

* * * * * * * *

Today's good news may not be tomorrow's.

The future of same-sex marriage is not, alas, in the hands of Judge Walker.  It will rest, at least for the relatively short term, with the Roberts Court.  

Whatever Governor Ted and General Cordray may urge today, Darryl Durr is still dead.  And they aren't offering blanket support for DNA testing.  These are seven guys we're talking about.  And one of them is dead.

But these are, absolutely, developments to savor. 

So let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did.

-------------------

*The full paragraph from which Judge Walker lifted those words is worth reproducing here:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Barnette is the case in which the Court said that students cannot be compelled to recite the pledge of allegiance.  Justice Jackson explained.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

h/t Defrosting Cold Cases

An Adversary System, If You Can Keep It

Her name is Asuncion Avila-Villa.  Her five-week old son, Israel Santos, was murdered.  His body was discovered in a trash can.  She is charged with aggravated murder and death specifications for killing the boy.  She's also been charged with gross abuse of a corpse, tampering with evidence, and unlawful sexual conduct with a minor (the alleged father of the boy).  (See here, for instance.)

She is scheduled to go on trial in September.  The grand jury appended death specifications to the aggravated murder charge, so her life is at stake.

It shouldn't need saying, but Avila-Villa is indigent.

Of course, nearly (not quite, but nearly) all of those who face capital charges are indigent.  They get appointed counsel for trial and appeal (and except in Alabama, apparently, for at least one collateral attack on their convictions).  And they get, after a fashion, funding for necessary investigation and expert assistance.

For the most part, and to the surprise of nobody who really pays attention to these things, the funding for counsel - and for investigators and experts - is generally inadequate.  And it's a struggle.

Those represented by public defender agencies are at the mercy of the agencies' budgets - which are commonly determined in large part by state legislatures that are not particularly enthusiastic about providing money to help those the government wants to incarcerate or kill.  Those represented by appointed counsel are commonly at the mercy of a judge - who may run for election and doesn't get any great public support by paying out taxpayer cash to those who are trying to help those the government would incarcerate or kill.

When the money comes, it's a struggle.

You have to explain to the judge exactly why you need this investigator or expert.  You have to explain to the judge precisely what you expert the person to do, how much it will cost, and why it's necessary to your defense.

Across the aisle (metaphorically, anyhow) sits the prosecutor.  As I said the other day, the prosecutor has an office staffed with assistants.  The prosecutor has the police, the local crime lab, the state crime lab, the FBI crime lab, a comparatively unlimited budget for experts and outré testing and evaluation.  We have what the court in the spirit of fair play (and constant concern for the public's dissatisfaction with paying us out of its tax dollars) is willing to allot.  It's rarely fair, and pretty much never even.

But here's the thing:  We have a constitutional right to present a defense which includes the right to that which is necessary to put on a defense.  It's in the Sixth Amendment and in Section 10, Article I of the Ohio Constitution.

OK, that's the set-up.  Sorry it was so long.

Now, here's the thing, and it brings us back to Asuncion Avila-Villa.  Her lawyers know they need the assistance of an expert forensic psychiatrist.  They need someone who can examine her and explain to the jury just - well, it depends on what the expert learns.  But that's the defense case.

Let me repeat that, and you'll see why in a few paragraphs.  That's the defense case.

OK, one more time: The defense case.

You know, when the state says it wants to check your client's DNA, it doesn't ask you which lab you'd like it to use for the testing.  When it's looking for an expert on gangs (it's planning to use one in Avila-Villa's case), it doesn't ask who you'd recommend.  When it's trying to decide on the charges to bring, it doesn't ask whether you'd prefer a felony or a misdemeanor.

We have what's known as an "adversary system" which means the two sides face off against each other.  It doesn't mean that the state gets to choose the defense strategy - or the defense lawyers (though the state seems to have managed the latter in a Georgia capital case).  And it sure doesn't mean that the prosecutor can tell the judge which experts you ca and cannot hire.

And yet.

Janice Morse reports for the Cincinnati Enquirer.

Defense lawyers had lined up a nationally known expert to testify for a Butler County woman facing a possible death sentence if convicted of killing her infant.

But now they will have to find someone less expensive following a judge's ruling clamping down on funds Monday in Common Pleas Court.
After prosecutors objected to the additional expenses in the case of Asuncion Avila-Villa, 26, Judge Andrew Nastoff refused to grant funds beyond the $12,500 he already approved.

Defense lawyers have already spent some of that money - they won't say how much - on travel expenses to research their client's history in her home state of California and for an initial consultation with a local psychologist.
Nastoff's ruling leaves Avila-Villa's lawyers searching for a different, lesser known expert than Dr. Phillip J. Resnick of Cleveland.
Resnick has played a role in many high-profile court cases across the nation. He served as a prosecution consultant in the case of serial killer Jeffrey Dahmer and in the Oklahoma City bombing cases but worked for the defense in South Carolina's Susan Smith child murders case and in the drowning of five children by Andrea Yates in Texas. He is considered an expert in infanticide, the slaying of infants.

Let me be very clear and precise here.  No snarkiness.  No hyperbole for the sake of making a point.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.

BECAUSE THEY REALLY ARE THAT STUPID - The FBI Narcissism Edition

The FBI says Wikipedia can't display its symbol because people might think that Wikipedia was pretending to be Special Agent Wikipedia.  Or something.  How narcissistic of the FBI.  Really, not every website aspires to be a Special Agent.

Gamso-For the Defense, for instance, would never dream of being a Special Agent.  This blawg aspires to be a member of the Ordre de la Légion d'honneur.

h/t Popehat & Gideon

It's Not Just Process, It's DUE Process

I've written about this guy before. 

His name is Cory Maples, and the State of Alabama wants to kill him.

Here's the plot.

Maples is on death row in Alabama.  There seems to be no question that he committed the crime that put him there.  There seems to be a lot of question, though, about whether he should be killed.  The jury wasn't unanimous, but it was enough for the judge.  Anyhow, because Alabama, alone among the states, doesn't provide any court-appointed counsel to pursue issues that weren't raised at trial, folks like Maples end up represented by volunteer lawyers.  Most of those volunteers are from out-of-state.

Maples hit the big time.  He got the services of Sullivan  & Cromwell, a big, respectable, white-shoe New York based law firm.  Firms like S & C do this stuff pro bono.  They pump big bucks and lots of associate time into the cases.  They can do spectacular work.

Or the associates working on the case can leave the firm, the new associates assigned can forget to enter an appearance, the firm's mail room can return unopened the notices (two of them) from the court in Alabama saying that Cory lost, and the deadline can pass for filing the notice of appeal.

Ooopsy.

S & C tried to fix it.  Nope, said the courts of Alabama.  Deadlines are deadlines.

Why, if we allowed Cory Maples to have his appeal even after his lawyers screwed up, then we'd have to let other people on death row have an appeal after their lawyers screwed up.  And gosh, golly, next thing you know, we'd have to say that people on death row shouldn't be killed over things that aren't their fault.  Why, we might have to revise the system so that fairness is more important than finality.

I've talked about all these things (Maples, finality, blaming the client for the errors of the lawyer, all of that) at one time or another.  I'm back to them today first because Adam Liptak takes up the Cory Maples story in his Sidebar in today's Times and second because blawger John Kindley, in a comment on his own post in the current interblawg squabble over "justice" and defending sent me to this post by Mark Bennett (from before I started reading most of this stuff) with comments about due process, which Bennett refers to as "procedural justice."  (Got that?)

Anyhow, I'm a lawyer and a criminal defense lawyer.  I believe deeply in due process.  Procedure is absolutely key to fairness.  Rules matter.

Fifteen years or so ago, I was arguing a sentencing appeal.  Ohio had a relatively new felony sentencing regime in place that required judges to jump through all sorts of technical hoops when imposing sentences, and judges were screwing it up right and left.  The case I was arguing was one that, I thought, was screwed up.  The problem is that it wouldn't matter to the client who'd get, at the most, nothing more than a field trip from the state prison to the county jail for resentencing.  Then he'd be resentenced, and he'd get the same sentence he had the first time.  (I don't remember the details at this remove.  The sentence may have been a mandatory minimum; I do recall that it was from a plea bargain the client had no interest in undoing.)  Still, it was clear (at least to me), that the trial court had screwed up.

So there I was in the court of appeals, making my pitch, when one of the judges, a conservative law-and-order type, asked a question.  From there, it went something like this.

JUDGE: So why are we here?  We send the case back, he gets the same sentence.  What's the point?
ME: Your Honor, it's about the rules.  It may not make a difference to the state or to my client, but the rules matter.  Someone has to tell the judges how to do this right, and you're the ones in a position to do that.  And if the outcome doesn't matter to the parties in this case, it will certainly matter in some other case.
JUDGE: I've never said this before; I don't think I've ever even thought this before.  But I agree with you.

And I won that case.  My client got a field trip back to county.  And he ended up with the same sentence.  But we made law that did, in fact, help a fair number of people over the next few years.

Process matters.  A lot.  The rules make a difference.  They have to count.

But there's a problem.  I've talked about it before (especially here and here).  We take the necessary thing (procedures/rules) and fetishize it.

Due process is fine, important, valuable.  But only (let's put that in boldface to make the point) only when it's a means to ensure a fair outcome.  A federal judge I know once explained that when you say, "That's not fair," you've got a due process issue.

The problem, of course, is with fairness.  Kent Scheidegger, over at Crime & Consequences, thinks it only fair that my clients should be killed.  Due process only applies, from his point of view (yes, I'm oversimplifying to the point of being slightly misleading, live with it), if it hastens executions.  Me, I see it the other way.  And there's one rule on my side.

The accused is entitled to Due Process.  The government isn't.

It's the difference between process (the government gets plenty of that) and due process.  And that's not about getting just deserts, it's about being treated fairly.

So let's go back to Cory Maples for a moment.  The two letters telling his lawyers at S & C that he'd lost (and therefore needed to appeal) were returned unopened.  The court (or the clerk or however it works in Alabama) could have tried harder to give notice.  It could have sent out more letters, made phone calls, told Cory, done something.  It didn't.  Not a thing.

Here's Adam Liptak, pointing to an argument in Maples' petition at the Supreme Court.

That petition discussed a precedent that might seem instructive.
In 2006, in Jones v. Flowers, the Supreme Court considered what sort of notice must be given when the government wants to sell a home for unpaid taxes. If a letter is returned unopened, Chief Justice John G. Roberts Jr. wrote for the majority, officials must try harder to reach the owner.
“This is especially true,” he wrote, “when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.”

The Crap You Don't Know.

I first discovered Bill James back in the early 1980s when a commercial publisher began putting out his annual Baseball Abstracts.  He may not have been the first of the new breed of folks doing sophisticated statistical analysis of baseball, but he was the key popularizer.  His basic idea, as he explained it over and over again, was that there were all kinds of things we just believed about the game, the received wisdom, without ever actually bothering to figure out if they were true.  He wanted to figure out if they were.

So he'd play with numbers in new ways, work out the possibilities, and then write clever, smart, easy to understand essays relating the things he learned through the numbers to the players and the game on the field.

Bill James begat Moneyball and Billy Beane.

Then the Boston Red Sox hired him and beat the curse.

Thing is, James understood that while thinking about numbers could tell you all sorts of things about the game you didn't know, the game was played by actual people, not statisticians.  Numbers, that is, could only tell you so much.  And frankly, you don't want them to tell you more.

Forget how this looks.  It's not a post about baseball or even Bill James.  It's a post about criminal law.  And about how to think.

Imagine yourself a criminal defense lawyer with a new client who is charged with, say, murder.  (If you are a criminal defense lawyer, this shouldn't be a difficult exercise; if you're not, do the mental exercise without reference to television or the movies, please.)  Police stomped around the scene while securing it.  The real-life CSI folks (fallible and sometimes dishonest, unlike the TV version) have done and will continue to do their thing, gathering evidence and subjecting it to lots of testing.  Detectives have gone door to door in the neighborhood looking for witnesses.  The state and FBI crime labs are geared up to do sophisticated and expensive testing.  The prosecutor has a whole office staffed with investigators and researchers and who knows what all.  The newspaper has run your client's picture above the fold every day for a week.

Maybe you have the money for an investigator.  Maybe you can raise the money to get a lab test or two run if you can convince the judge to order the state to turn over the evidence for testing by your people. Maybe you've got a law student helping you do some research.

The evidence the state gathered isn't exactly compelling, but it's more than enough.  Footprints, tire tracks, ballistics.  Your client made a statement that isn't quite a confession but can be twisted to sound like one.  The eyewitness described someone who doesn't look much like your client, but when the cops spread six pictures in front of her, she pointed to your guy, the only one with sideburns.

And your client has that felony record and all those tattoos.  And he's hopelessly inarticulate.  No way you want to see him on the witness stand.

But that's your case to deal with.

The jurors are told that your client has a presumption of innocence.  They're told that before they can find him guilty, they must believe each element of the offense beyond a reasonable doubt.

Pish tosh.

They start out believing he's guilty.  Where there's smoke there's fire.  If they weren't guilty, they wouldn't be suspects.  Besides, if the prosecutor and the cops didn't think he was guilty, they wouldn't have charged him and wouldn't be trying the case  You're just some hired gun.

This isn't a level playing field.

We're criminal defense lawyers.  We go to seminars where other lawyers teach "The Secrets of Effective Cross-Examination" or "How To Talk to a Jury" or "Your Opening Statement Can Win Your Case" or "Storytelling for Trial Lawyers" or "Ten Tips to Winning at Trial."

But the folks who teach those things, they all have clients doing decades in the slammer.

Most of the time, our clients did, in fact, do something at least vaguely like what they're charged with doing.  Most of the time, the state's evidence is sufficient.  Most All of the time, the decks are stacked against us.

We have to be smarter, have to work harder.  But even then the jury will probably find our clients guilty.

Which is where Bill James comes in.  He was interviewed by Geoff Baker of the Seattle Times for the Mariners Blog.

You don't learn by studying the stuff you know. You learn by studying the stuff that you don't know. So, if you divide the world into (crap) that you know and (crap) that you don't know, and you study the stuff that you know, then you're not going to learn very much. All of the progress comes from studying the stuff that you don't know. So, that's really what's interesting. And that's where most of your focus should be. Studying stuff that you can't agree about.

It's not so much thinking outside the box.  It's turning the box upside down and looking at it from a different angle.

Studying the crap you don't know.

h/t  Rob Neyer

Justice Redux: Who We Are and What We Do Yet Once More

This started out to be a comment on Mark Bennett's latest (as I write this) post on "Justice" and "justice."  Actually, it kind of began as a comment on John Kindley's comment on Bennett's post.  But it was getting clumsily long, starting to feel like I was hijacking Bennett's piece.  So I decided to come over here and do my own.

Here's what passes for the background.  The criminal law blogospshere gets roiled from time to time with discussions about just what it is we do and why.  Kindley, at his blawg, People v. State, and in comments on other blawgs, has for some time staked out the position that he seeks justice.  Others of us, at various times, on our own blawgs and in comments on others', have said - and for somewhat different reasons and in different ways - that we don't.  (No links to specific posts here, but search around in Simple Justice and Defending People and Norm Pattis and A Public Defender and lots more.)

Well, as I suggested in the first paragraph, it's back in a string of recent posts by Kindley and Bennett and Pattis and comments by them and others.

Anyhow, in the comment that got me started on this, John wrote this (among other things).

Certainly it appears to me that most criminal defense lawyers I know in the blawgosphere and in real life have what I’d call a well-developed sense of justice. We are passionate and get pissed off about things, particularly about injustices perpetrated by state actors.  I believe some of us, if we could switch hats for a second, would gladly prosecute some of these abusers (and some of us, like Norm [Pattis, linked above] kind of do, via Section 1983). I bet some of us would be positively happy to see some of them in jail. Sadly, some of our clients have done things every bit as inexcusable and abusive as these State-sanctioned abusers.

That whole switching-hats thing gets at part of the problem, I think.

I'm a criminal defense lawyer.  I advocate for the interests of my client because I've chosen that job (or maybe it chose me, but that's another discussion).  I choose (we'll stick with that) to advocate for the interests of the criminally accused because at the end of the day, I think it makes for a better society to have what we euphemistically call the "criminal justice system" tilted strongly in favor of the criminally accused.  The state has too much power, power that it readily abuses.  One way to check that power, to rein it in, is to defend those against whom it is directed.

It doesn't matter, it's simply irrelevant, whether those people have actually done what the government claims they have.  Nor does it matter whether what those people are said to have done is what law professors like to call malum in se (bad in itself, say, murder) or malum prohibitum (a wrong only because some legislative or executive or judicial body says it is, say servicing a mare within 30 feet of a public street in Ohio.  I happily defend them because the government is out to get them.
But that I advocate for my client who may have killed someone, and that I am pleased if I am successful and the killer goes home, does not mean that as an abstract proposition I want murderers running around the streets.  I want my neighborhood (and yours) to be safe.  I'm not opposed to sanctions against those who would do us harm, and in appropriate cases, confinement for a time, even a long time, may well be an appropriate sanction.

And I'm certainly not opposed to those (I've done it to, though I don't currently) who use civil litigation to curb government abuse.  But I will defend, against criminal charges, those same allegedly abusive government officials.

Because as a criminal defense lawyer, I don't give a rats ass what they did.  I'm defending them against the power of the state.  Were I also doing 1983 work, I'd be going after them as agents of the state, on behalf of their victims, for abusing the power the state gives them.  Think victims, for a moment, and it starts to become clear.  The civil case victim of an abusive cop is the person abused.  The criminal case victim of a cop who abuses people is the government.  I represent people against governments, not governments against people.

Look, I'm a criminal defense lawyer.  I'm also a husband, father, brother.  I'm a balding guy with gray hair and a bushy mustache.  I'm a Mets fan (which is tough these days).  I am the owner of an automobile and a snow blower.  I am a reader of crime fiction and renaissance English literature, of books on particle physics and on legal philosophy.  I am dozens (hundreds? thousands?) of other things. 

As I say, I want safe streets.  I want a community free of dangerous people whether they are criminals or cops or just folks who happen to be dangerous but without either position or formal accusation.  But my job as a criminal defense lawyer is not to create, not even to enable that community.  It's to hold back the government.  It's the government's job to ensure - hell, nobody's ever put it better than the Preamble does.  The job of the government is plain:

[T]o form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

That's a tall order.  And it embodies conflicting goals.  One is to "establish Justice,"  whatever the hell that means, but it clearly involves making up rules, which is a set up for trouble.  Another is to "insure domestic Tranquility," which is something like working to see that the rules are followed and keeping us safe from bad guys.  A third is to "secure the Blessings of Liberty."  That's liberty against the government.  (Remember, the same folks who drafted the Preamble also drafted the clauses permitting slavery; they clearly weren't concerned with liberty against private people.)

I choose (again, I'm taking responsibility for the choice here) to make my living, and to do my part to effect the goals of the Constitution on the "secure the Blessings of Liberty" part.  I don't see how you can sign on for both securing liberty and making or enforcing rules that, pretty much by definition, limit liberty.

I'm not an anarchist.  I operate within the system even when I don't much like it.  But my job occurs in my part of that system.  And that's just not the "justice" or "Justice" part.  Unless you make the terms meaningless.

Which brings me back to John Kindley.  He says in his latest post that those who disagree with him have

opined that my ideas are a menace to society so long as I’m practicing criminal defense.

I don't know.   I disagree with him about what the role of a criminal defense lawyer should be and about what we do conceptually.  But if he advocates zealously and fearlessly and competently for the best possible outcome for his client, innocent or guilty, and if he does that regardless of whether he believes that as an abstract proposition people do what he believes his client did should be publicly disembowled, he can be a fine criminal defense lawyer.

It'll probably be harder for him to be that fine criminal defense lawyer than one who doesn't have that cognitive dissonance, but the job is [typo corrected] ultimately about how we act, not how we feel.

Yet there is a danger to his conflating the roles of justice seeker and criminal defense lawyer.  It may not be a danger for John's clients, but it's a danger for the Republic.  If the Preamble's goals are to have substance, they need all to honored and advanced, not conflated.  One cannot simultaneously advocate for the people and for the state.  Bennett pointed out the irony of Kindley doing that in a blog he calls "People v. State."  That's exactly right.

Kill Me Now or Kill Me Later - Part 2

Let's assume he did it.

Gleason

Here's the background.  Robert Gleason, Jr. is serving a life sentence for murder.   While in prison he killed his cellmate, Harvey Watson.  The Commonwealth of Virginia charged him with capital murder.  His lawyers worked out a plea deal so he fired them and entered a guilty plea.  He insists that he be put to death.  He threatened to kill again unless he was sentenced to die.  (You can read more about it, including my take on the story here.)

While the judge considers that, Gleason is sitting in the Red Onion State Prison, Virginia's supermax.  And now, it seems, he's done it again.  This time it was Aaron Alexander Cooper, another inmate at Red Onion.

Dena Potter, writing for AP gives some details.

Cooper died Wednesday in the recreation yard for inmates housed in segregation at the maximum security Red Onion State Prison in southwestern Virginia. Elkins is awaiting a report from the medical examiner on Monday, but he said authorities believe Cooper was strangled.
Authorities are trying to figure out how it could have happened, because each inmate is placed in a separate, small caged-in area for recreation. Elkins said authorities believe Cooper was strangled with a piece of clothing, towel or bed sheet that was somehow reached through the chain link fence that separates the inmates on the recreation yard.

Let's think about that.  Gleason is in his exercise cage.  With guards watching (or supposed to be watching), he managed to slip the bedsheet he had with him (Huh?  He had a sheet?) or maybe it was a towel, through the cage slits and got it around Cooper's neck and strangled him.  While the guards just watched.  Maybe he turned himself (and his sheet/towel) invisible?  Maybe he dematerialized from his cage and rematerialized in Cooper's?  ("But Captain, the transporter's been acting up again?"  "I'll take my chances.  Beam me over, Scotty.")  Maybe the guards unlocked the cages so Gleason and Cooper could be together.

I don't know.

Still, let's assume he did it.

What do we do now.

The man wants to die.  He doesn't want to commit suicide. He wants to be killed by the Commonwealth of Virginia.  He insists that if they don't kill him, he'll keep killing.  He's apparently serious about the threat and Virginia is too incompetent to stop him.

So the issue is posed:

We do what he wants, or he keeps killing until we do?

Isn't that the essence of terrorism?  And don't we have a rule that says you don't give terrorists what they want because it just encourages more?  And anyway, why should we give him the satisfaction?  He wants to die.  We want to punish him.  Shouldn't that mean keeping him alive?

So there's the choice:  Killing him might save lives.  Killing him means the terrorists win.

I've got it.

Run the damn prison competently.