It all happened near the end of the week.
- Judge Frost said he believes them.
- A nearly unanimous Ohio Supreme Court said they don't think any of it matters.
- Judge Emmert said he doesn't want to know, either.
- Dudley Sharp said he already knows, though much of what he knows is wrong.
And the days grew shorter. And fewer.
I didn't want to write this post. I've been resisting it, because one of the things everyone who pays even a little attention, and certainly everyone involved in it know is that you never really know what will happen.
As I said, I didn't want to write this post. I hoped I wouldn't have to. And there is still time.
But it draws short.
On Friday, Judge Frost explained, that the State of Ohio seems to have got religion.
You'll recall that back in July, the judge explained that
It is the policy of the State of Ohio that the State follows its written execution protocol,
except when it does not. This is nonsense.
More than just "nonsense." Judge Frost said it violated the equal protection rights of Kenny Smith who was about to be executed. And he called off the killing. Now, several months later, and with a new protocol in place and Reginald Brooks due to be killed a week from Tuesday, the judge held several days of hearings and decided that he thinks they've come up with a system he can trust. This time, he says, they seem to mean it.
This litigation has too often supported the inherent truth of the adage that those who
cannot learn from history are doomed to repeat it. With some caution, the Court today reaches the conclusion that the State of Ohio has apparently learned the lessons of its prior embarrassments and corrected its course in order to pursue court-ordered implementation of its latest written execution protocol.
. . .
After the Smith rebuke, it appears that the state officials involved have finally recognized that subject adherence to the protocol and too much discretion to depart from core provisions or safeguards are neither laudable nor constitutionally permissible approaches. Thus, “the perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol” appear to be relegated to the past, obviating the conclusion that Ohio’s execution practices offend the Constitution based on irrationality and disturb fundamental rights that the law bestows on every individual regardless of the depraved nature of his or her crimes.
Yeah, well, maybe. Or maybe not.
And maybe we'll find out as the killings resume. Which the Ohio Supremes seem to be just fine with.
Because on Friday, they refused three motions to stay the Brooks murder.
Which about covers it.
Should we hold off on killing him until we're sure he's competent to be executed as the Constitution requires? No. Except Judge O'Donnell, and he alone, would wait for an appellate court to decide that one.
She we hold off on killing him until we've decided whether the evidence the state has just now revealed, after he's been in prison for getting on toward 30 years now entitles him to a new trial? No, of course not. O'Donnell doesn't think so, either.
Should we hold off on killing him while the commission established by this very court to figure out if we're doing the death penalty fairly and properly issues a report? No. Are you crazy? Why would we do that? Again, O'Donnell agrees with the rest of them.
Which puts it pretty squarely in the laps of the federal courts and Governor Kasich. The Guv has proved himself surprisingly willing to not kill people over the last few months as he's commuted sentences and granted reprieves. Perhaps I should be optimistic. I'm not.
And then there's Texas. Where it's looking more and more like it's up to the Governor who would be President.
The good people of the Lone Star State want to kill Hank Skinner on Wednesday. At least, Lynn Switzer does. Here's the very short version of the problem from Radley Balko at Huffington last week. If they kill Skinner, he says,
[I]t may be the biggest travesty of justice in the modern death penalty area. That isn't necessarily because Skinner is innocent. He may be guilty. I don't know. The problem is that the state of Texas also doesn't know.
Well, yeah. I've talked about Skinner a fair amount over the last couple of years. There's this DNA he's been trying to have tested for the last 10 years. For the last 10 years, the state has fought tooth and nail to prevent the testing. He's been to the US Supreme Court over the damned DNA testing. And he won his case. The Texas Legislature f'rgodssake passed a law to ensure that he could get the DNA tested. In response, DA Switzer asked the court to set a date to kill him. Which it did. This coming Wednesday. This week, a Texas court said it didn't care about the new law. No testing. Let him die.
Dudley Sharp, a free-lance death penalty enthusiast, wrote in the Austin American-Statesman that Skinner is gaming the system with a last minute bid for a stay. Of course, that bid has been going on for 10 years, and if they'd tested all the stuff back then, he'd either have been exonerated or killed years ago. They refused. It's not Skinner who's responsible for the delay.
And who's gaming what system?
Of course, Sharp makes clear that Skinner doesn't really want the DNA tested. If only he'd ordered his lawyers at the time of the trial, they'd have had to test it, Sharp says. Which isn't true.
Or he could have jumped up and demanded that the judge order the lawyers to test it, and of course the judge would have - or would have given him new, more compliant lawyers.
Anyone who does this work knows that ain't how it happens. Sharp lives in a fantasy world, of course. But then he's certain. The details really don't matter.
Here's the truth. If they'd tested the DNA 10 years ago, just like if they test it now, one of three things happens.
- It proves Skinner is innocent.
- It proves Skinner is guilty.
- It proves to be inconclusive.
So now let's look at Texas and Lynn Switzer and why there's this unwillingness to test the DNA.
Is it because they're sure he's guilty and the DNA will prove it and it's been worth 10 years of legal wrangling and expense and bad publicity because they don't want proof that will lay public suspicions to rest but would rather have it look like they're callous and don't give a shit about killing a maybe innocent guy?
I don't think so.
Here's what I think, and it's the only even close-to-rational explanation: They're afraid it will prove he didn't do it. And then they've got a guy they've been calling a monster and trying to kill for about 16 years now and damn will they look foolish. So better to trust the jury and kill him than take a chance.
Leonel Herrera said he was innocent and shouldn't be killed, but Texas was adamant. In 1993, the Supreme Court said
Bah, humbug. Let him die.
And Harry Blackmun dissented.
I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. See Colemanv. Thompson, 501 U. S. 722, 758-759 (1991) (dissenting opinion). See also Coleman v.Thompson, 504 U. S. 188, 189 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U. S., at 343-345 (opinion concurring in judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
The Court of Criminal Appeals can grant a stay and order testing. So can the governor.
Or they can, in effect, join Lynn Switzer on the hypodermic's plunger.