Lykos Strategy - Part II

Part I of the Lykos strategy, you'll recall, was to have her minions be stones.

"Stand mute," she ordered her line prosecutors.  Do not participate.  "Stand mute."

And so they did (although repeatedly announcing that they weren't speaking - the in court version of how one is to invoke Miranda rights per Berghuis v. Thompkins).

That's likely the order of the day today, too.  But as the state is silent, the defense proceeds.  More witnesses, laying out more explanation and evidence of the risks of convicting the innocent.

Still if the prosecutors are silent (in their noisy way) before Judge Fine, they've located a forum in which they want to speak.  That's Part II of the Lykos strategy:

Ask the Court of Criminal Appeals to shut the hearings down.

Tried before and failed.  Try again.  Because really, it's important not to know.

Just ask Hank Skinner about how much they don't want to know.  Or ask Gov. Perry or John Bradley how eager they are to figure out whether killing Cameron Todd Willingham was an oopsie.  Or ask the prosecutors in Ohio who refuse to allow DNA tests even when asked by the Governor and Attorney General (admittedly, both about to be out of jobs, but they hadn't lost the elections at the time).

Ignorance, they say, is bliss.

Keeping the public ignorant?

Enforced bliss.

Until, once again, people start to notice that the emperor has no clothes.

Death on Trial: Day 1

I wasn't there.  My understanding is all second hand, from reports and summaries and news stories. (I have been wading through what a lot of those hands have written, and yes, I know I'm mixing metaphors; tough).

Here's the quick summary as best I can manage it.  

The state began by objecting to the proceeding.  Prosecutors offered reason after reason why Judge Fine had no right to hold the hearing.  He was going to hold it anyway.  So the state announced that it was going to sit it out.  Prosecutors would attend.  They'd watch and listen.  But they wouldn't participate, would not speak.  Brian Rogers, in the Houston Chronicle, described that decision, made by the elected prosecutor, Pat Lykos as a

last-ditch strategy to end state District Judge Kevin Fine's judicial inquiry into the procedures surrounding the state's death penalty statute.

Casey Keirnan, one of John Green's lawyers, had something different to say.

It's arrogant, and it's contemptuous for the state to decide to not participate when they're trying to put my client to death.

Mark Bennett called it "disrespectful" because that was the best "newspaper-safe synonym" he could think of for “chickenshit."

Regardless, the judge rejected the prosecutor's plan.

I'm not allowing you to not participate.

But he can't make them cross-examine witnesses or make objections or call their own witnesses.  And the state won't do any of those things.  It reflects a contemptuous attitude, and it could be a dangerous ploy since the failure to object means that whatever evidence Green puts before Judge Fine will be admitted without objection.  But it also reflects, I suspect, a careful calculation.

Lykos (or whoever does her strategizing, I'm not there and don't know her) figures that there's a fair chance Fine will declare the Texas death penalty statute unconstitutional as applied to Green.  By sitting it out, Lykos can argue that Fine's ruling is obviously one-sided and he held what was essentially a kangaroo court.  She wasn't going to validate it by entering into his megalomaniacal game.

Or maybe not.

Regardless, stand mute (except for repeatedly saying that's what they were doing) is what the state did.

And so it began.

Green's lawyers laid out their job.  They told the judge that they had to convince him that there's a substantial chance that Green will be convicted and sentenced to die, even though he's innocent.  They can't wait until after he's been found guilty (if that should happen) to try and show that a mistake was made because the post-trial procedures are all about either legal technicalities or they demand hard proof of innocence.  Green doesn't have the sort of hard proof that works post-trial.  What he has is good reason to believe that his innocence will be irrelevant to the fact of whether he's convicted.

But what's the standard? asked the judge.  It's up to you, he was told.  All SCOTUS said is that it's unconstitutional if there's a "constitutionally unacceptable risk."  And you get to decide what that means.

And then they started on the testimony.  

The overview:  Mistakes get made.  Shit happens.

The details:  138 exonerations, 1 for every 9 people executed.

The reasons:  Bad lawyers, bad forensics, biased juries, etc., etc., etc.

And the beat goes on.

Of course, none of this will end anything.  Even if Fine says the Texas statute is unconstitutional, it won't change the law.  The state will appeal.  Eventually, the Court of Criminal Appeals will say that the death penalty is just fine, thank you.

But slowly, the public learns.  And doesn't much like what it learns.

So take that.  It's a win, regardless.

Show Time in the Lone Star State

They're not claiming that the death penalty, or the Texas death penalty is, in and of itself, unconstitutional.  They're not, that is, making a facial challenge to capital punishment.

What John Green's lawyers are going to be presenting for two weeks beginning today is evidence that

Article 37.071, § 2 of the Texas Code of Criminal Procedure [is] unconstitutional as applied, pursuant to the Eighth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 13 of the Texas Constitution.

That section of the Code of Criminal Procedure lays out the procedure to be followed when a criminal defendant has been found guilty of capital murder and the state is asking for a death sentence.

Green's claim, as laid out in detail in his Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional as Applied, is that Texas capital procedures are insufficiently protective of innocence.  

Mr. Green states a claim under the Eighth Amendment when he argues that under the Eighth Amendment, the Texas capital punishment scheme creates a substantial and constitutionally unacceptable risk that innocent people are wrongfully convicted and sentenced to death.

The Due Process Clause and related analysis, according to the Supreme Court which like it or not is the last word on these things,

does not require the elimination of every possibility of convicting an innocent person – and thus, may tolerate the execution of an innocent person.

But the 8th Amendment is different.  The Cruel and Unusual Punishment Clause, according to the Court, mandates reliability.  The risk of error under Texas procedures are simply too great.

We know, after all, that innocent people get sentenced to die.  There is substantial evidence that some have been executed.  It is, in fact, fanciful to think that it hasn't happened, and two recently exposed cases in Texas (Todd Willingham and Claude Jones) make that glaringly obvious.

But why?  What's the problem.  It starts with a set of generic problems.

Five of the factors that give rise to a risk of wrongful conviction are unique to, or manifest themselves uniquely in, capital murder cases. These are: crime “clearance” rates and pressure on the police, publicity, death qualification of prospective jurors, fear of the death penalty in defendants and their defense teams, and the tendency of capital juries to consider punishment prior to determining guilt.

But, as Ron Popeil would say, But wait.  There's more.  Along with the five generic factors, there are Texas procedure specific issues.

Seven additional factors exacerbate the risk of wrongful conviction already created by the
five risk factors peculiar to capital cases. Some of these factors are present in every case; others are present only when the prosecution’s case is built on certain kinds of evidence. All, when present in a case, magnify the risk of wrongful conviction that already inheres in every capital case.

1. Inadequate compensation of jurors results in jury pools that are not representative of a fair cross-section of the community, diminishing the protection afforded by the jury against overzealous prosecution;
2. Eyewitness identification testimony is introduced which has not been obtained through the use of safeguards established to reduce the risk of mistaken identification.
3. Confessions are introduced without having been obtained through the use of procedures necessary to guard against false confession.
4. Perjured testimony by informants  who are paid or provided leniency in their own cases is often introduced.
5. The prosecution's introduction of forensic evidence appears to lend certainty to important forensic issues which is not justified and is misleading.
6. Pretrial discovery procedures are inadequate to safeguard against the suppression of Brady evidence and the introduction of unreliable evidence.
7. Juries are selected in a racially discriminatory manner, thereby reducing the thoroughness and accuracy of their deliberations.

And there's still more.

Two procedures are designed to serve as the failsafe against wrongful conviction: state habeas corpus proceedings and clemency proceedings. However, these procedures are so flawed that they rarely serve their purpose. They are most certainly not failsafes of any sort.

Sadly, none of this is news to folks who've been paying attention.  You can argue about the severity of the problem.  You can argue about whether this or that person was in fact wrongly convicted.  You can argue about just how reliable you think the system needs to be.  (How many wrongful convictions are OK?  How many wrongful executions?)  You can argue about those things just as you can argue about whether in principle it would be better to have a death penalty or not to have one.  And you can argue about the moral contours of a death penalty law if you're going to have one.  

You can argue, that is, about all kinds of stuff.

But if you take off the blinders and look at the facts, you can't argue that the fourteen factors (count 'em, it's fourteen) Green identifies are real.

Do you care?  Should the court?  Will the system be honest enough to call a halt?

The smart money says that whatever Judge Fine decides, Texas will keep on sending people to the row and then killing them.  I think the smart money is right.  But I believe in public education, too.  More than the courts, actually.  Certainly more than the Law.  And this is a wondrous opportunity for education.
Two weeks of evidence.

Starting this morning.

And you know, once in a great while, the smart money is wrong.  

Just ask all those smart folks who invested with Bernie Madoff.

More than just a hat tip to Mark Bennett who provided the motion and related documents.

BECAUSE WE DON'T WANNA: The Supreme Court of Ohio Edition

Ubi jus ibi remedium.

Roughly translated from the Latin we get a familiar legal maxim.

There is no right without a remedy.

The idea is that if you're denied your rights, you can sue to enforce them or to receive recompense or something.  If you can't sue for one or the other form of remedy, the ostensible rights were not rights at all.  They were illusory.

Which is all about lethal injection in Ohio.

(You know, when I started this blawg, it really wasn't my intention to devote so much time to death penalty related things.  Sure, I knew I'd talk about it a lot, but I never imagined it would be this much.)

A bit of background.

Ohio Revised Code Section 2949.22 sets the actual rules for how Ohio kills people.  For our purposes, subsection A is what's relevant.

Except as provided in division (C) of this section, a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.

While the legislature has tinkered with the mechanism of killing over the years (the chair, then the chair as default but lethal injection at the choice of the condemned, then just lethal injection), the courts have basically ignored that statute.  After lethal injection litigation began heating up, the focus, in Ohio as elsewhere, pretty much remained on the Cruel and Unusual Punishment Clause of the 8th Amendment.  And the statute was mostly ignored.  (I'm oversimplifying, but it doesn't change anything here.) 

More precisely, it was mostly ignored until a trial court judge with a death penalty case in front of him decided that it meant what it said:  Death by lethal injection had to be effected "quickly and painlessly."  And our execution method, the judge agreed, doesn't go nearly far enough to ensure that.

No other state has a painlessness requirement, but Ohio does.  And since there is no right without a remedy (see how I circle back to where I started), and since Ohio statutes confer that right to a painless lethal-injection death, well, then Ohio's death penalty procedures were unconstitutional, and the judge ordered them changed.  (Story here; opinion here.)

Nothing much ever came of that case.  The state was horrified and appealed.  We need an immediate ruling so we don't kill in violation, they said.  No immediate ruling, but they killed in violation anyway.  Eventually, the court of appeals said that the judge hadn't really done anything final so it didn't count.  And in time, Ohio changed its killing method to what the judge had ordered them to do.

And the beat goes on.

Though really, none of that matters much for the immediate purpose of this post.

But 2949.22 is still out there requiring quick and painless murder.  And the 8th Amendment still prohibits cruel and unusual punishment.  And the question remains:  Does Ohio comply?

The standard way of raising the question has been by a civil rights claim (the state will be violating my constitutional rights, the condemned plaintiff says, by killing me in a cruel and painful fashion) under Section 1983 of Title 42 of the US Code.  It hasn't succeeded in Ohio, but that's the normal path.  Or it was until a couple of years ago.

That was when the 6th Circuit announced that it wanted to examine lethal injection in the context of a habeas corpus petition and ordered a district judge to gather evidence on Ohio's killing method.  (Bear with me; I'm getting to the point.)

It's at that point that another district judge called a halt.

See, one of the principles of habeas is that you have to run through state remedies before you can turn to federal ones.  The judge wanted to know how the petitioner in his habeas case, Michael Dean Scott, was supposed to raise a lethal injection claim under Ohio law.   Pre-trial as part of the criminal case, which is what we did in the case I litigated?  Could be. Direct appeal? Maybe, but where was the record?  State post-conviction?  Perhaps.  Declaratory judgment action?  Possibly.  Maybe mandamus?  Why not?  Who the hell knew?

Ah, so the judge said the Ohio Supreme Court should decide just how the constitutional and statutory questions regarding lethal injection should be raised in Ohio courts.

Because there just had to be a way.  You know, because the 8th Amendment and 2949.22 both gave the condemned guy some guarantees, some rights.

And there can't be a right without a remedy.

Ubi jus ibi remedium.

Unless, of course, you're in an Ohio court.

This morning, in Scott v. Houk, the Ohio Supreme Court said that there is no Ohio mechanism for testing the constitutionality or statutory propriety of Ohio's execution system.  Oh, if they want to kill you, you've got a right to have it be by a quick and painless execution that isn't cruel and unusual.  The court acknowledged that.  You just have no mechanism in Ohio to vindicate that right.

The vote was 5-2, though there were 4 opinions (which is a whole lot for the Ohio Supremes).

That won't end things, of course.

You can get relief, if you can, in federal court.  But don't come knocking on our door, they said.  Enough is enough, said Justice Evelyn Lundberg Stratton

At some point, the victims’ families and the state deserve finality in judgment.

Now, I don't mean to be petty about this, and I'm sure she worked hard at crafting that sentence, but whether Ohio law does or does not provide a means of litigating Ohio's lethal injection system does nothing to promote "finality in judgment."  The questions are still out there and will still be resolved.  It's just that the federal courts will be the ones to decide whether Ohio obeys the Constitution (OK, they always got to do that) and to say whether Ohio obeys Ohio law.

Punt.

So maybe there's a remedy.  After all, there's a right.  Just don't look to Ohio to provide it.

Capital Updates, We Got Updates

Build It and It Will Fall Down

 I wrote at some length the other day about Justice Stevens and how it took him 32 years to figure out that the rationality and coherence of the death penalty jurisprudence he signed off on in 1976 was a self-evident chimera to anyone who really thought about it.  And how even now, having concluded that the death penalty is unconstitutional, he can't quite admit that he got it wrong back then.

David Von Drehle, author of the brilliant Among the Lowest of the Dead: The Culture of Capital Punishment, makes the same point far more elegantly at Time.com.  It begins this way.

Suppose that you hired a highly regarded architect to design a fancy house. He comes up with the most impressive and elaborate plans, but all the basic calculations about stresses and loads are completely wrong, and from the moment you first open the front door, the place starts falling apart.
Still, you have a lot invested in the house, and you don't want to tear it down, so you bring in an engineer who proposes that you jack up the north wing, and when that doesn't work you hire a contractor who advises you to instead lower the south wing. One expert suggests reinforcing the foundation. Another expert tells you to redesign the roof.
You try them all, and more. And this goes on for years, plunging you into debt, baffling your neighbors, and never coming close to fixing your house, which looks more and more hopeless with each new "repair." Then one day, the original architect comes by, sees the ruin, shakes his head sadly and asks why, oh why, did you let all those butchers tinker with his beautiful design.
That's essentially what retired Supreme Court Justice John Paul Stevens, an architect of America's wreck of a death penalty system, has been doing in recent days. In an essay in The New York Review of Books, and again in an interview on 60 Minutes, Stevens has been busy blaming others for a mess of his own creation.
Like he said.

OKLAHOMA IS OK, OR NOT

About a month ago, discussing the shortage of thiopental and how Arizona smuggled secretly imported some from England for the execution of Jeffrey Landrigan, I noted that Reprieve was suing the government to prevent the export of the drug.

The other day, BBC reported that Vince Cable, Britain's Business Secretary, has halted the export.

The decision, which reverses the UK government's previous position, came amid a legal battle over sodium thiopental manufactured in Europe.

Mr Cable's lawyers had told the High Court they couldn't stop exports because the drug had legitimate uses.

However, he changed that position after seeing evidence that the drug was only being exported for use on death row.

Mr Cable said: "In light of new information I have taken the decision to control the export of sodium thiopental. This move underlines this government's and my own personal moral opposition to the death penalty in all circumstances without impacting legitimate trade."

It won't stop the killing, of course.  Oklahoma already figured out that one barbiturate isn't all that different from another and plans to use pentobarbital instead of thiopental for its next murder.

As NewsOK reports, pentobarbital is the "drug usually given in animal euthanasia and physician-assisted suicide in Oregon and the Netherlands."

U.S. District Judge Stephen Friot thinks that's fine.  He didn't actually say the drug is safe or proper for killing people.  He just said it "falls short of the level of risk" the Supremes said would make it unconstitutional.

If They Were Innocent, We Wouldn't Kill Them

At least, I assume that's what Texas will argue on Monday when the hearing we've been waiting for begins before Judge Kevin Fine.

Fine is the judge who's presiding over the capital murder case of John Edward Green, Jr.  Back in March, Fine said that the Texas procedures for imposing death sentences were unconstitutional because it was too easy for innocent people to get executed.  Then he sort-of took it back and scheduled a hearing.  The state tried to take him off the case.  Nope. 

There have been more delays and more briefs, but the show gets under way on Monday, December 6.

And, of course, along the way, Claude Jones has joined the list of the almost-certainly-factually- innocent-but-murdered-anyway down in Lone Star State.

We'll be watching.