On Throwing One's Hands Up In Despair

Back around 2005, I was a juror.  Workers compensation case.  There was no question the plaintiff was injured due to an accident on the job.  And there was no question that after the accident, she experienced severe pain.  The sole question for us as jurors was whether the accident & injury caused the pain or whether the pain was a result of a pre-existing condition which just happened to get worse shortly after the accident.

The company's expert, a physician certified in workplace injury or some such thing, assured us that it was the pre-existing condition.  He knew that, he said, because he was a physician certified in whatever it was, and so we could be sure he was right.  You know, because he was a physician and certified.  A certified physician.  Trust him.  He just knew.

Her expert was a chiropractor chosen by her lawyer who allowed as how he treated her (and got paid for it) 44 times after he knew he could do her no good whatsoever.  The pain, he assured us with the same fervor as the certified doc, was caused by the accident.  He knew that because he treated her for it, after all.  Up to the point where he knew his treatments were worthless.  And then 44 more times.

And so we retired to the jury room.  Forty minutes later, we had a verdict.  Twenty-five or so of those forty minutes were spent picking a foreperson and observing that the MD was a whore and the chiropractor a charalatan. (I don't think those particular descriptive terms were used, but at this remove I wouldn't swear to it.)  The verdict itself was a snap once we decided to discuss the evidence and vote.  It was a civil case, so it didn't have to be unanimous.  But unanimous it was.

My fellow jurors took very seriously their job.  The deliberation was easy and quick, but their attentiveness and thoughtfulness (and their serious concern about the ethics of both experts), and the care with which they tried to get it right, was something to behold.

Of course, the whole thing was a breeze.  We were called to the courtroom for jury selection at 9 a.m.  We had a verdict by noon.

I repeat, it was unanimous.  I have no idea, of course, if our verdict comported with biomedical fact.  We know what we believed by a preponderance of the evidence (our burden of proof).  Objective truth wasn't in our charge.

And so we turn to The Land of Steady Habits.

Consider, if you will, the twelve jurors who are trying to figure out what to do with Steven Hayes.  Compare them to the eight of us.

We worked hard for 15 minutes of deliberations.  They're now going into the weekend, which, as Norm Pattis explained and the Hartford Courant agreed, is essentially unprecedented in the Provisions State.

I assume they're working hard during their deliberations, discussing, evaluating, considering, arguing, weighing the evidence, all that stuff.  We did too.  Of course, their task is different than ours was.  We just had to decide whether her claim was proved by a preponderance of the evidence.  Not whether it was true, not whether she was actually right.  And certainly not whether she had a moral claim on the workers comp fund.

The jurors in the Nutmeg State, on the other hand, have to make (or may have to make) what Justice O'Connor (that's Sandra Day of SCOTUS, not Chief Justice-elect Maureen of the Columbus 7) called a

reasoned moral response to the defendant's background, character, and crime.

How even to begin.

Connecticut's system, laid out in a chart you can find in the Courant but that I can't reproduce without some serious copyright violation, works roughly like this.  The jury found Hayes guilty of bunches of stuff.  Now it has to decide what to do with him.  It does it by answering a series of questions.

First, did Hayes prove one of three statutory mitigating factors:  Was he mentally impaired?  Was his ability to obey the law impaired?  Was it unreasonable to imagine that what he did would pose a "grave risk of causing death"?*  How one proves such things is, well, less than clear.  On the other hand, as I've noted before (here, for instance), proof is what a jury believes, however it gets there.

In any event, assuming the jury doesn't believe that Hayes proved one of those three things, it has to decide if the state proved any of the aggravating factors it charged.

And assuming they do (and you can trust me, they will), the jury has to decide whether Hayes has proved some non-statutory mitigating factor.  That is, did Hayes offer, in a moderately convincing way, some reason why the jury should spare his life?  

If so (and probably so), they come to the money question.

Do the aggravating factors outweigh the mitigating factors?

If they do, it's murder.  If they don't, it's death in prison.

But see, there's no way to answer that.  Consider the aggravators.  They're about the crimes, and although this isn't the language or even properly the test, they come down to whether this was a particularly horrible set of murders.  Answer:  Of course.

Now consider the mitigators.  They're about Hayes.  He's damaged.  He's hopeless.  Look at his childhood.

Excuse me.  What do these things have to do with each other?  They're not in the same category.  We're not asking jurors to compare apples and oranges for taste.  We're asking them to compare apples and Pontiacs and try to figure out which is better.

The task is, plainly, impossible.

Yet we demand it of jurors.  Based on evidence.  From which the jury is to decide whether the government proved Pontiacs.  Or something.

I don't know what the jury will do.  Juries are, ultimately, unpredictable.  Will they be swayed by the horror of the crime?  One fine death penalty lawyer I know says that in any weighing test, the defendant loses because the body on that side of the scale always ways more than whatever goes on the this side.  Maybe.  

On the other hand, studies show that most juries begin with a least some votes for life.  No matter what.  I know a judge who, explaining why he voted against death in a case that was tried to a three-judge panel (you can do that in Ohio), said,

I just wasn't ready to say "Fuck you" to him.

Yeah.  It turns out that even for death qualified jurors, at least for some of them, that's hard to do.  Maybe not impossible, but hard.  Which is as it should be, I suppose.

The jury will return Sunday morning.  More weekend deliberations in the effort to come up with that reasoned moral response, objectively determined, based on evidence, and looking for proof.

If they're doing the job right (and for all we know they can be sitting in the jury room playing parcheesi), they have two choices.  They can find that he proved one of the statutory mitigators which means life.  Or they can admit that the task cannot be done.  They can't decide because it isn't decideable.  The questions don't admit of proof.  And the things to be weighed cannot be weighed.  A fair jury will return a verdict of "Sorry.  Can't be done."

Sorry, can't be done.  It's not that we disagree.  We all agree that there is no proper answer to whether the aggravators outweigh because none of it is susceptible to weighing.

And then . . . 

And then . . .

And then the system stops!

Except no.  They'll get another jury, one less prone to honesty and integrity.

Because once we let the truth genie out of the bag, well, you can't stuff that sort of truth back in.

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

*A digression (which is why I've relegated it to this footnote).

In Romeo and Juliet, Romeo attempts to break up a sword fight between his friend Mercutio and Juliet's counsin, Tybalt.  But Tybalt reaches under Romeo's arm and mortally stabs Mercutio.  After which there is this.

ROMEO

Courage, man; the hurt cannot be much.

MERCUTIO

No, 'tis not so deep as a well, nor so wide as a
church-door; but 'tis enough,'twill serve: ask for
me to-morrow, and you shall find me a grave man. I
am peppered, I warrant, for this world. A plague o'
both your houses! 'Zounds, a dog, a rat, a mouse, a
cat, to scratch a man to death! a braggart, a
rogue, a villain, that fights by the book of
arithmetic! Why the devil came you between us? I
was hurt under your arm.

ROMEO

I thought all for the best.

The dying Mercutio makes of "grave" a pun.   I doubt the drafters of the Constitution State's capital sentencing statute thought in Shakespearean terms, though like Romeo, they probably thought the particular form of insanity they were creating was "all for the best."

 

Been So Torn Down

Back in May, I wrote about Vergil Richardson and Nicole Habersang and what happened in Red River County, Texas.

Ms. Habersang is an attorney in the Criminal Prosecutions Division of the Texas Attorney General's office.  She was assigned to the prosecution of Vergil Richardson.  Vergil was charged with drug possession after the local SWAT team broke down the door of a house he owned but did not live in (Kevin Callaway, Vergil's half-brother, lived there).

In any event, the SWAT team broke down the door, shot the dog (oops, wrong story, that was Missouri) searched the place, found what they say are drugs, and arrested everyone present including Vergil and his brother Mark who happened to be at the house at the time.  Both said they didn't know anything about the drugs, but hey, we know suspect are all guilty or they wouldn't be suspects, so who was gonna believe them?). And because there just isn't that much fun stuff to do in Red River County, the local prosecutor, Val Varley, went along on the raid waving a gun around.  Which makes him a witness, which is a no-no for a lawyer who wants to try a case.  So Varley removed himself and asked the Attorney General to appoint someone to prosecute.

Which is where Habersang came in.  She studied the evidence and concluded that there wasn't any.  Vergil and Mark and several of the others arrested (at some point Callaway entered a plea) were, plainly and simply, innocent.  No two ways about it.  So, in a move that surely endeared her to no prosecutor anywhere, Habersang asked the judge to dismiss the charges because the defendants were innocent.

Now, in the ordinary course of things, you'd think that would be that.  Case dismissed.  Everyone gets to go home.

The ordinary course of things, however, doesn't get much play in Red River County.  Judge John Miller refused.  The interests of justice, he said, demanded that Vergil stand trial despite the fact that he was innocent.

So that's the story I told on May 16, praising the hell out of Nicole Habersang and heaping scorn on that judge.

Then I heard from Vergil.  He posted this comment.

I been strip of my reputation,strip of my dignity, strip of my pride,and left penniless all because the color of my skin.I need somebody to help me. 

Now, that's a different story.  That's the human side.  Because these legal antics have real world legal consequences.  So the next day, I wrote this.

Criminal cases aren't about abstract notions like Justice or Fairness or Constitutional Rights.  Oh, we talk about them that way sometimes.  And all of us involved in these cases - criminal defense lawyers but also prosecutors, judges, and even cops - occasionally let ourselves believe we're on the side of the angels (for some of us those occasions arise more than others, and some come closer to deserving the belief, but that's for another post).

But that ain't what's real.

 

What's real is Vergil Richardson.  A poor man who's been battered by charges of a crime he didn't commit. Win, lose, or draw, Vergil suffers.  His family suffers.  His friends suffer.  There's satisfaction of a sort in an acquittal or dismissal, but there's no going back.  The criminal charge is a loss.  It has consequences all by itself.  And they can be devastating.

And then, maybe because I was busy working on my own cases, maybe because I got sidetracked by the Sharon Keller saga or more curiosity in Maricopa County, maybe because I was caught up in some other outrage, maybe because I just didn't pay attention, I lost track.

I shouldn't have.

Vergil and his brother Mark asked to have Judge Miller removed from the case because of his obvious bias.  They said that Miller was holding the Richardson's hostage (that's my language, not theirs as far as I know) because he wanted them to dismiss the civil lawsuit they had brought against the prosecutor and the cops for violating their constitutional rights.

On August 23, District Judge John McGraw, Jr. took Miller off the cases of Vergil and Mark and two others of their brothers.  In his place, McGraw appointed Robert Mohoney, a retired judge, to oversee the cases. 

On October 8, he dismissed the charges. With prejudice.  From behind a paywall at the Texarcana Gazette, but reproduced on the blog of Friends of Justice.

“Justice has finally been served,” Mark Richardson said. “We’ve been through so much humiliation and embarrassment.”

Vergil Richardson has not been able to work as a coach since his arrest.

"I’m looking forward to getting my life back,” he said. “I’ve been so torn down.”

Now, let's pause a moment.  Mark's wrong.  Whatever justice might be, it's hard to see it's hand in this.  Plenty of injustice, God knows.  And a few people acting with honor and commitment.  But justice?  I don't see that undoing evil gets that free pass.  Those three years of hell, the loss of liberty.

strip of my reputation,strip of my dignity, strip of my pride,and left penniless all because the color of my skin.

And now they say, "Sorry, pal."

Ain't no justice there.  Though it's surely a good thing.

We'll give the last word to Vergil, who thanks a god in whom I don't believe.  But he's entitled.

I sit back and think about when all this happened, and i question myself how in the world we made it through this and i must say God is good. The Lord placed people in my life that i can really call friends. 

Mark & Vergil Richardson

Who's Got the Drugs?

OK, so now what will we do? Will the republic survive?

It's hardly an immediate crisis what with having until February 17 to find a solution.  But still.

The problem is that shortage of thiopental sodium.  We've got enough left here in Ohio (whew, that was close) to kill Sidney Cornwell in eleven days.  And then we have the Christmas vacation in December and January, but Cornwell comes up in February, and as Alan Johnson lays it out in the Columbus Dispatch, we just don't have enough on hand to kill Frank Spisak in February or Johnny Baston in March.*

Arizona, of course, found a secret source so they could kill Jeffrey Landrigan.  The secret source, it turns out, is Britain where the sole manufacturer of the drug, Archimedes Pharma UK denies actually providing it.  But what they don't give directly, well, once they provide the drug to medical suppliers, it's out of their hands.

"The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies," it said.

Archimedes said that once the drug entered the complex chain of medical supplies it would not have known where it was eventually sold. "Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product," it said.

Carefully explained, since as Clive Stafford Smith points out, Archimides might just be criminally liable for Landrigan's murder.

One question that immediately springs to mind is whether it is criminal for the British corporation to profit from such a killing: while the language is loose, EU Council Regulation 1236/2005 takes a step along this path, making it illegal to "trade in certain goods which could be used for capital punishment, torture, or other cruel, inhuman or degrading treatment ..."

Ouch.

In fact, it seems that Tennessee has contracted to buy a quantity of thiopental from a source in Britain for use in the planned murder of Edward Zagorski on January 11.  Though there's a potential snag.  Reprieve, a British organization founded and directed by Stafford Smith and which "assists prisoners facing the death penalty, and prisoners held beyond the rule of law in the ‘war on terror,’" is suing the British government to prevent the export.

Which brings us back to Ohio and what to do about killing Spisak and Baston and the unnamed others we'll try to murder in 2011.  According to Johnson, the folks at DRC who plan the killings aren't talking.

Prisons spokeswoman Julie Walburn declined to say whether the state has considered or will consider buying from Great Britain or other foreign sources.

I've pointed out before that there's a simple solution.

Just stop the killing.

Of course, then the republic might not survive.

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

*I'll probably carry on high about Baston as we get closer.  I represented him, unsuccessfully, on appeal, and I remain outraged that he didn't get a new trial or at least a new sentencing hearing.

Isn't That Special?

You'll recall (and if you don't, shame on you) that the Special Court of Review decided last month that Sharon Keller was just a good o' boy and shouldn't have been either warned or warned of by the State Commission on Judicial Conduct.  No, I'm not going to rehash any of that here.  Go read the earlier posts (here) if you want my take on all that happened.  

What you won't recall from my post last month, because I didn't mention it, was that the Special Court also said, in its judgment, Keller should get her attorneys fees back.  You know, the good people of Texas should foot the bill for trying to besmirch her good name.  

Just like criminal defendants get back the money they pay their lawyers whenever they're found not guilty (and a portion when they're convicted of lesser offenses).  Oh, wait.  That doesn't happen.

But Keller wasn't a bad guy who won on a technicality.  She was a good gal who won on a technicality.  Makes all the difference in the world.  She was, as she claimed, vindicated.  So of course she shouldn't have to pay.

Except, well, she does.  From Chuck Lindell at Statesman.com:

State law, however, specifies that court costs and attorney fees cannot be awarded in judicial conduct proceedings.

So the Special Court issued an Amended Judgment, still dismissing the charges, but no longer saying that the taxpayers of Texas have to pick up the tab for the multi-millionheiress judge (who's been fined $100,000 by the Texas Ethics Commission for lying about hiding failing to report a couple of million dollars in assets).

Grits notes that between the 100K for the ethics fine and the 100K in legal bills the taxpayers won't pay, it's getting toward real money.   And he continues to wonder why they haven't brought criminal charges against Keller for the failure to report.  

And, by the way, its not all over yet.  She's appealed the $100,000 ethics fine.  And the Special Court hasn't ruled yet on the motion to reconsider its dismissal of the charges against her.

Ohio Court Rules for Social Pervert

I've got considerably more to say about Marty Beeson who's been upping the ante since he first declared that public defenders don't work for the public and abuse the system by actually defending their clients rather than working with the prosecutor to ensure prompt convictions.

But not right now.

Because sometimes, as I note from time to time, the courts get it right.

Yesterday, Gideon pointed to a spectacular example from Connecticut.

There are others, some I've linked to and discussed, many I haven't.  Mostly, the ones you hear about in the blawgs and the ones I write about are the big cases, major felonies, death penalty cases, that sort of thing.  That's true, too, of most of the cases we blawgers write about that leave us outraged.

But you know, most cases aren't like that.  Most are the small things.  More people, many more people, get traffic tickets than get charged with murder after all.  (Which is as it should be.  Many more people violate the traffic laws than commit homicide.)

So maybe a note about a judge doing the right thing when dealing just with an annoyance is worth a bit of attention.

I direct your attention to Clinton County Municipal Court in Wilmington, Ohio.  And to the Honorable Robert Peelle, Magistrate.

Apparently there's no dispute from the trial record about what happened.  Chester Garen was parked in a strip mall selling Hawaiian Shaved Ice from his truck.  His ten-year-old son was with him.  A car came by.  The driver and passenger both gave Garen and his son the finger.  As the Magistrate accurately observed,

It is generally recognized that defendant's gesture is considered an insult, an annoyance, and is offensive.

In any event, the passenger, Joseph George, also said something though I don't know what.  Garen called a cop, because, well, hey, that's what people do when someone gives them the finger, don't they?

But you know, we have this First Amendment thing in the US of A.  And sometimes it counts.  (Though maybe not for the Phelps family; we'll see how that works out later.)

And so it is that Magistrate Peelle explained:

Although the defendant may have acted in a disgusting and immature manner, his right to behave like a social pervert is protected by the Constitution.

Oh, you wanted to read the whole opinion/decision.  Here it is.

Free speech

Sadly, it wasn't my case.