Tell It To the Judge

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. If there are any circumstances which permit an exception, they do not now occur to us.

West Virginia Board of Education v. Barnette (1943) (majority opinion by Justice Jackson).

Just three years earlier, in Minersville School District v. Gobitis, the Supreme Court held that the Constitution permitted the Minersville School District in Pennsylvania to expel Lillian and William Gobitis for refusing to say the pledge of allegiance.  As Jehovah's Witnesses, they believed allegiance could and should only be pledged to God, and while they might respect the flag, it wasn't God.  Tough.

There was but a single dissent.

Three years can, occasionally, be a long time.

Barnette was the same issue.  Again Jehovah's Witnesses.  This time the vote was 6-3.  The other way.

Justices Black and Douglas changed sides.  They explained.

Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.
Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution's plan and purpose.

And so it has been.

Unless you happen to be in the courtroom of Chancery Court Judge Littlejohn in Tupelo, Mississippi when he orders everyone in the courtroom to stand and recite the pledge.  Unless you happen to be Danny Lampley, an attorney who was in the courtroom on business and, it is reported, stood respectfully but did not recite.

Unless you happen to be jailed for refusing.

Lampley Contempt Order

I assume that even in Mississippi judges take an oath to obey the Constitution.

Sigh.

h/t NMissCommentor via The Agitator, Bennett, Ken Gibson at Windypundit, Bobby Frederick

Time To Heap Stones

Governor Ted has spoken.  It's the usual content-free form.

I've looked at everything and considered everything carefully and Michael Benge must die tomorrow.

Except he doesn't even say even that much.  It would be too direct, too personal to say that Benge should be killed. Instead he says that - aw, hell, here's whole text of his statement.

As a result of his conviction for aggravated murder, Mr. Michael Benge is scheduled to be executed on October 6, 2010 at 10 a.m.  I have completed a review of the circumstances surrounding his case to determine if executive clemency is warranted.


In conducting this evaluation, my staff and I reviewed the record of proceedings and the evidence presented in Mr. Benge's case, the judicial decisions regarding Mr. Benge's conviction, and arguments presented for and against clemency at the Parole Board hearing, as well as all supplemental material submitted to my office following the Parole Board hearing regarding Mr. Benge's application for executive clemency.  We have also reviewed institutional records, letters, the exhibits and testimony presented at the Parole Board hearing and the unanimous recommendation against clemency forwarded to me by the Ohio Parole Board on September 15, 2010. 


Based on this review, I concur with the Parole Board recommendation on this matter.

Blame free.  "I concur with the Parole Board."  How's that for deflecting responsibility.

I have to admit that I was surprised, very pleasantly surprised last month when Ted commuted Kevin Keith's sentence.  I didn't think he had either the integrity or the nerve and he proved me wrong.  But this follow-up is something else.

It's not that I held out any hope for clemency or commutation.  It's the impersonal language.  Blame it on the Parole Board.

Except it's not just Ted.  The killing is, as I wrote about Michael Benge the other day, quotidian now.  I quoted then from Alan Johnson's Columbus Dispatch article on the Parole Board's decision.

There was a groundswell of support for Keith's claims of innocence for a triple murder in Bucyrus. Gov. Ted Strickland commuted his sentence to life in prison.


Other than his attorneys and family, Benge has no one lobbying for his life.

I said then,

So he's easy to kill.

A point which wasn't just about him but, although I perhaps didn't make it with the clarity I might have, about almost everyone on death row.  Part of how they got there is that they fell through all the cracks of life.  And those who are killed there - they mostly just fall through more.  And nobody much notices unless there's something dramatic and this or that person somehow, for some reason, becomes one of the celebrities.

And yet Michael Benge has that family lobbying for his life, and who will mourn.  He has lawyers who will grieve.

And there is a small in number but dedicated cadre of abolitionist activists around Ohio who will travel to Lucasville and stand outside the prison in vigil or do the same on street corners and in front of government buildings around the state.  They won't get much attention, but they'll be there.  There are every time Ohio kills.

* * * * * 

A long-time friend asked me the other day what I thought of the poet Gary Snyder.  As part of my
response, I quoted these lines of Snyder's.

When creeks are full
The poems flow
When creeks are down
We heap stones.

They struck me then, and strike me now (and I should add, as I did to my friend, that I'm not a nature lover) as beautiful and deeply sad.  

That same friend uses as a signature block or tag-line or whatever you call it on his e-mail a few lines from the formal invocation to the muse for help that begin Book VII of Paradise Lost.

                    though fall'n on evil days,
On evil days though fall'n, and evil tongues;
In darkness, and with dangers compast round
And solitude; yet not alone . . .

* * * * *

Michael Benge will be killed at 10 tomorrow morning.

His will be the 8th murder by the State of Ohio this year, the 41st since we started killing again in 1999.  The murder of Sidney Cornwell, scheduled for November 16 will be, it seems likely, the 9th and 42nd.

Evil days.

Creeks are way down.

Over at 18

Unless you live in a cave, you know the press version of what happened:  Rutgers University student and accomplished violinist Tyler Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharum Ravi, and another classmate, Molly Wei, secretly secretly recorded him engaged in a homosexual encounter and put the video on the internet.  Ravi and Wei have each been charged with multiple counts of invasion of privacy and face at least the theoretical prospect of spending years in prison.  All three were 18 years old.

Tyler Clementi, Dharum Ravi, Molly Wei

I call that "the press version" of what happened because I don't actually know what occurred.  Neither do you.  I have no particular reason to think that the events as reported are not true, but I've seen even good reporters get the facts dramatically wrong often enough - especially in sensationalist, attention-grabbing stories like this - that I'm always wary.  More than that, though, the press version, even if perfectly accurate, is incomplete. 

Why did Ravi and Wei use the webcam and then broadcast the video?  What drove them to it?  What, if anything, did they hope to achieve?  Were they motivated by hatred of Clementi?  Because they thought he was gay?  Because he was a violinist?  Because he snored?  Was it just a prank?  Because it was sex?  Because it was gay sex?  Because the guy he was with was someone they hated?  Or lusted after?  Or told a bad joke at dinner the night before?

And what of Clementi?  Why did he jump?  Because he's gay?  Because he's not?  Because he isn't sure?  Because he was embarrassed by the particular guy he was with?  Because the camera angle was tough?  Because other people were making fun of him?  Because they weren't? For reasons altogether unrelated to the video but coincident in timing?

There are lots of other questions I could add, but I'm alread being a whole lot more flip about this than I intend, so I won't.  Besides, I'm getting sidetracked by the questions, which only deal, after all, with personal motivation.  See, personal motivation, the reasons why they each did what they did, that's only part of the story, too.

Here's another part: We live in a world of surveillance.  There are cameras on busy street corners, cameras in parking lots.  You're photographed at the bank and the post office and when you're in WalMart.  At the bus station and in the subway.  Cameras record your license when you pass through a toll booth.  Other cameras are finding out if you're running a red light or speeding.  There's a camera on the tip of someone's shoe or the end of his cane taking pictures up your dress.  There are cameras recording what goes on in public restrooms (yep, legal ones).  

And we (that's a societal "we"; I'm not talking about you and me, though maybe I'm talking about you) live for it.  Reality TV?  You bet.  Take, for instance, Apprentice contestant and now-former Brooklyn Assistant District Attorney Mahsa Saeidi-Azcuy.  Here's what NBC has to say about her.

Mahsa, 29 (Brooklyn, New York), works as an Assistant District Attorney in Brooklyn, New York, and is the host of two web shows on the side. Dealing with the financial pressures of being the sole breadwinner in her family, Mahsa has gained personal strength in this economic downturn. Before receiving her J.D. at Brooklyn Law School, Mahsa studied biology at the University of Virginia, and film at the New York Film Academy. She passionately fights to promote justice, and is obsessed with beauty, hair and style secrets.

This is not someone who's shy about being a public person.  But it's not just her.  After all, people put their own videos on YouTube. It seems as if everyone (except your humble author) is on facebook, and twitter.  Depending on the study, somewhere between 10 and 30 percent of teenagers have taken pictures of themselves at least partially nude and sent them off over their phones and computers to friends and even strangers.  And even I've got this blog.

So we live in this world where we're all on stage all the time.  We encourage that sort of thing.  And then marvel that someone takes a picture or a video and posts it online for the world to see.

But if we live in a world where everyone's private life is up for grabs, we also live in a world that is too often horrified by homosexuality.  Don't Ask, Don't Tell (and as someone recently wondered, has anyone ever been forced from the military for asking?).  Same sex marriage?  Fred Phelps and his venom spewing family from Westboro Baptist Church will be in the Supreme Court next week arguing that they have a First Amendment protected right to use the funerals of military personnel to attack support for gay rights.  (Disclosure, I represented Shirley Phelps-Roper in her partly-successful challenge to Ohio's prohibition on protests near funerals.)

It's hard to be a teenager.  It's harder still to be a teenager struggling with, or even discovering and reveling in your sexuality.  Harder still to be a teenager struggling with (or discovering and reveling in) you sexuality whose private struggles and (or) discovery are made public.

And yet, who could predict, if all of the above, that Tyler Clementi would take his life?  Even if Ravi and Wei wanted to embarrass him.  Even if they loathed him for being gay.  Even if it was something more than an offensive, ill-conceived, and frankly stupid prank gone bad.  And certainly if it was not.

There's so much more than what they did (if they did) to cause what he did (assuming he did).

Because there's plenty of blame to go around.  And Ravi and Wei, if they deserve any of it, have a wide array of others they can also point to.  If Clementi killed himself because video of him engaged in gay sex was made public, we (that's the societal we, again, not the personal one) have more than our share of blame.  To slough it all off on Ravi and Wei . . . we're letting ourselves off the hook way too easily.

One of the subjects I keep returning to on this blog is that criminal law isn't about righting personal offense.  Insofar as the law is interested in personal offense, it's tort law that shows that interest.  Criminal law is, as I've said repeatedly, about the harm done to the social fabric, to the body politic by criminal acts.

Tyler Clementi is dead.  If someone must pay, that's what torts is for.  And there's plenty of liability (not all of it legal liability, though) to go around.  But crimes?  Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex?  If they did it, it's wrong.  But years in prison?

Another Day Another Killing

It was an ugly crime.  They all are.

Judith Gabbard

Michael Benge beat his girlfriend, Judith Gabbard, viciously with a tire iron.Then he weighted her body down and dumped it in a river.  He stole her ATM card and used it to take $400 from her account.  Then he tried to blame the whole mess on a couple of other folks.

An ugly crime, like I say.

And so the, er, good people of Ohio want and intend to murder Michael Benge on Wednesday.  Which whether they recognize it or not, will be another ugly crime.  Cold.  Calculated.  Aggravated Murder in violation of Ohio Revised Code Section 2903.01(A) which prohibits the purposeful taking of a life with prior calculation and design.

Of course, we've been there (here?) before.

If Benge is killed as planned, and there's every reason to think it will happen, his will be the 41st execution in Ohio since we started killing in 1999.  It will be the 8th this year.  Only Ohio and Texas (with 16) have more than 4.  Since executions resumed nationally with the killing of Gary Gilmore in Utah, Ohio's 40 rank it 10th nationally, and moving up the list fast.  The next closest state in the north, our neighbor Indiana, has killed 20.

If you believe in the death penalty, maybe you think that's acceptable.  Maybe you think it's a good thing.  Maybe you wish we'd kill more.  

Michael Benge

But even then, even if you believe it's OK for the government to kill in our name, maybe all this makes you a little uncomfortable.

The Parole Board held a hearing in Benge's case, as they do before every execution whether the condemned wants a hearing or not.  (Someone has to provide the family of the victim with a public opportunity to express their outrage and demand another killing.)  They interviewed Benge, who gave a full confession and expressed remorse.  The state said he couldn't be remorseful now because he rejected a plea deal 18 years ago.  (If you can wrap your head around that, more power to you.)

Other killers who did similar crimes are serving life sentences.  Oops, says the state, maybe they should be killed, too.  But surely we must kill Benge.

He had family and friends say how much he meant to them and plead for his life.  She had family and friends explain how much she meant to them and plead for his death.

The Parole Board opinion is a unanimous statement, that he should be killed.

The Parole Board considered all of the written submissions, arguments, information disseminated by presenters at the hearing, the interview with the applicant, prior investigative findings as well as judicial decisions and deliberated upon the propriety of clemency in this case.  Clemency in the form of a commutation is not recommended in this case for the following reasons:

• There is no question that the victim was beaten to death during the commission of an Aggravated Robbery because Benge wanted to gain control of the victim's ATM card.
• Benge lied to investigators and the court, and he continues to circumvent the system by telling partial truths to this Parole Board in order to convey remorse and responsibility.
• Benge admits that this case is a capital case, which refutes any proportionality claim regarding other Butler County cases.
• Benge received a fair trial as supported by all appeals courts who have reviewed the conviction and sentence.
• Benge does have tremendous family support, and he has had limited institutional rules infractions; however these factors do not outweigh the brutality and aggravating circumstances of the offense, or the impact this offense has had on the victim's family.

Sure.  If you believe that everything the state said is true, then everything Benge said that conflicts even a little must be a lie.  And if he lies, he's just trying to save his life.  And if all he wants is to save his life, he should be killed.

You know, if you've followed this blawg even a little, that I'm unalterably opposed to the death penalty.  For moral and policy and practical and other reasons, I think it's a terrible idea. And what we do is, essentially, random and meaningless.

When you look at this crime or that crime, this person or that one, it's hard to see meaningful distinctions.  The killings are pretty much all ugly.  They are, certainly, all unnecessary, senseless, irrational.

The Green River Killer is doing life for the murder of 48 people.  Zacarius Moussaui is doing life for his part in the killing of 3,000.  Find me the logic that says Michael Benge should be killed if they are not.

Oh, but they should be, you may say.  Except that isn't what's happening.  It's random and chance.

Is there a groundswell of support?  Does the governor care about that?  Is Dr. Petit screaming for blood?  Does the newspaper editorialize about the case?  Is there evidence of innocence?  Enough?  To satisfy someone who matters?

The constitutional issue of capital punishment is the Cruel and Unusual Punishment Clause of the 8th Amendment.  Really, it should be a question of due process because principles of due process protect against government action that is arbitrary and capricious, and nothing is more arbitrary, nothing more capricious.

When the Parole Board's opinion in Benge's case came out, Alan Johnson wrote the story in the Columbus Dispatch.  It was, he notes, a unanimous decision: 9-0.

While the vote is similar to the last case handled by the board -- an 8-0 recommendation against clemency for Kevin Keith -- the similarities end there.

There was a groundswell of support for Keith's claims of innocence for a triple murder in Bucyrus. Gov. Ted Strickland commuted his sentence to life in prison.

Other than his attorneys and family, Benge has no one lobbying for his life.

So he's easy to kill.  Just another body.  41 for Ohio.  1228 for the nation.  That many random killings.  A few of them wholly innocent.  Others guilty of less than they were convicted for.  All of them victims of the chance that said, "kill that one" when it might as easily have said, "spare him."

Don't expect clemency from Governor Ted.