Pretty Please, Mr. Holder

Nevada Attorney General Catherine Cortez Masto joined 11 other attorney generals recently in asking U.S. Attorney General Eric Holder for help in either finding new sources for sodium thiopental or making the federal government's sources available to the states.

That was yesterday's news.  But we didn't have the letter then.

Now we do, and it turns out the letter was wrong.  It wasn't 12 at table but 13.

1. Alabama
2. Colorado
3. Delaware
4. Florida
5. Idaho
6. Mississippi
7. Missouri
8. Nevada
9. Oregon
10. Tennessee
11. Utah
12. Washington
13. Wyoming

And the request was actually in two parts.  First, get us a weapon.  Second, we want to talk.

Therefore, we solicit your assistance in either identifying an appropriate source for sodium thiopental or making supplies held by the Federal Government available to the States.  We also request an opportunity to discuss this important matter with you.

Here, you can read it for yourself.

AGs' Letter to Eric Holder

Anyway, just why is it so damn important?  I don't mean to be particularly crass about this, but it's pretty clear by now that while it's hard to kill people nicely and neatly, it isn't particularly difficult to find ways to kill.  Oh, sure, you change the protocol and there'll be litigation.  So it takes a bit longer.  These states are committed to killing.  They'll find a way.

But you know, what's really interesting is the list of states that signed on.  Of the thirteen states asking the feds to help them kill, nine are among the plaintiff states challenging the constitutionality of the health care law. Now, I'm absolutely not staking out a position on Obamacare.  But I do think it's interesting that states that don't think the feds have any business getting the states to help them secure universal health care are eager to have the feds help them commit murder.

It's not a contradiction exactly, but it's a pretty short distance from one.

And, by the way, what is there for them to chat about?

No Plan B - Now with a title (Sorry about that)

You have no Plan B.

That's a paraphrase of something our expert said from the witness stand in a lethal injection case I was trying.  It was a few years ago, and at the time, Ohio's system worked like this (I'm omitting lots of detail):

1. Put shunts in guy's arms.
2. Pump thiopental.
3. Pump pancuronium bromide.
4. Pump potassium chloride.
5. Have body carted away.

What Ohio didn't have was a fallback position, a backup, a Plan B.  What if they couldn't get the shunts in?  What if it was clear that the drugs wouldn't pump?  What if?

All you'd find in the protocol in those days was amounted to,

We'll try to figure something out.

Which isn't really much of a plan.

Since that time, Ohio has

• Been unable to get the shunts in Rommell Broom's arms (or legs or feet or . . . ) and called a halt to his murder.
• Come up with a new protocol that included a Plan B using a never-before-tried murder system involving intra-muscular injection of a couple of drugs.
• Switched from the three-drug sequence to a single dose of thiopental.
• Announced that beginning with the second murder of this year it will switch from a single dose of thiopental to a single dose of pentobarbital.

We here in the Buckeye State change execution protocols as frequently as some people change their sheets.  The goal is killing, and we will find a way.

Other states, though, are less agile.

Take Nevada.

They have 82 people on death row in the Sagebrush State.  None has an execution date, or at least not a realistic one.  But the Sagebrush sages are taking no chances.  They don't move as nimbly as Ohio, so they're trying to plan ahead.

See, Nevada has no thiopental.  And as we've seen, it's getting harder to get hold of it.  Hospira won't make more.  Britain will no longer let Dream Pharma export it from the driving school.

Italy forbids export if it ends up as an execution drug.  Germany forbids export for killing.  Oklahoma replaced thiopental in its series of drugs with pentobarbital, but nobody really knows how that works.  From Politiken.

Harvard, Berkely and Fordham experts are criticising the use of a Danish anaesthetic in executions.
American death row prisoners risk extreme pain during their executions as a result of an anaesthetic produced by the Danish company Lundbeck, according to several US experts..
“Gruesome, painful, horrible,” says Harvard Anaesthestist and Medical Professor David Waisel.
Two states – Ohio and Oklahoma – have begun using pentobarbital for executions as stocks of a previous anaesthetic have run out, and the company that previously produced the anaesthetic used has decided to stop production.
“There is no documentation that this substance can be used to anaesthetise people like this. We don’t know the correct dose. Prisoners are not treated like human beings but like animals,” Waisel says. 

As I noted a week and a half ago, Lundbeck is flat-out hostile. According to it's VP for communication, Sally Benjamin Young, the company sent a protest letter to Ohio's DRC.  She wouldn't release the letter itself.

However, Young said the company told state prison officials that it is "adamantly opposed" to the use of its product, sold under the trade name Nembutal, for capital punishment. "We urged them to discontinue using it for this purpose.
"Lundbeck is dedicated to saving people's lives," Young said. "Use of our products to end lives contradicts everything we're in business to do."
Prisons spokesman Carlo LoParo said the state will not heed the company's warning and will use the new drug as planned.

But I'm getting distracted.  This is about Nevada and what they're going to do if they ever get around to killing one of the 82 folks on their death row.
No thiopental.  No Plan B.
Martha Bellisle in the Reno Gazette-Journal sets out Nevada's problem.

The Department of Corrections would need 5 grams of the drug to execute a prisoner, according to its lethal injection protocol, but it "does not maintain a supply of the drug," so none is available, said Kevin Ingram, department spokesman.

"The Nevada Department of Corrections has been working with the office of the attorney general in revising the Execution Manual," Ingram said. "Due to the limited supply of the execution drug used in the past, the drug protocol is being reviewed as well.
"No final decisions have been made by the Office of the Attorney general at this time."

Ooops.

So Nevada wants help.

In response, Nevada Attorney General Catherine Cortez Masto joined 11 other attorney generals recently in asking U.S. Attorney General Eric Holder for help in either finding new sources for sodium thiopental or making the federal government's sources available to the states.

Well sure.  If we can't kill, let's blame it on the Obama administration.  Or get them to fix it.

Except

There's no reason to think the feds have a stockpile of thiopental.

The last of the thiopental from Hospira has an expiration date of March 2011.  And then what happens?  Does it lose potency?  How fast?  Will it just stop working?  Will it have some other effect?  Nobody seems to know.

And, of course, there's no indication that Nevada, or any of the 11 other states, really cares.

Debby Denno, law professor at Fordham and an expert on execution technology and the law says that the firing squad is the best, most humane way for the state to murder people.  But nobody in this country does that any more.  (Utah carved out a special exception for the killing of Ronnie Lee Gardner.)  I'm not at all convinced that the cosmeticization of death, the pius, posturing faux decency of a "humane" execution makes any sense.

If the goal is retribution, then there should be some sort of equivalence.  If the goal is deterrence, then there should be maximum pain.  I wrote this back in 2009.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

I still think there's something to it.  If we're gonna do it.

I really don't doubt that people would line up to loose the rats.  The stadium would sell out.  Pay-per-view would set ratings records.  Yet we haven't the stomach for it.  It's not just the Cruel and Unusual Punishment Clause.  It's that however bloodthirsty we may be individually, or at least however bloodthirsty some individuals are, as a society we think we're better than that.

So we're not willing (that "we" is, again, the societal one) to wallow in what we're doing.  We must kill humanely.  Clinically.  Peacefully.  In a suitable 21st Century style.  Behind closed doors.  So that we can deny the reality that it's murder.

Most foul.

From Hamlet, Prince Hamlet meets the ghost of his dead father. 

Ham.  Where wilt thou lead me? Speak, I’ll go no further.
Ghost.  Mark me.
Ham.        I will.
Ghost.        My hour is almost come,	4
When I to sulphurous and tormenting flames
Must render up myself.
Ham.        Alas, poor ghost!
Ghost.  Pity me not, but lend thy serious hearing	8
To what I shall unfold.
Ham.        Speak; I am bound to hear.
Ghost.  So art thou to revenge, when thou shalt hear.
Ham.  What?	12
Ghost.  I am thy father’s spirit,
Doom’d for a certain term to walk the night,
And for the day confin’d to fast in fires,
Till the foul crimes done in my days of nature	16
Are burnt and purg’d away. But that I am forbid
To tell the secrets of my prison-house,
I could a tale unfold whose lightest word
Would harrow up thy soul, freeze thy young blood,	20
Make thy two eyes, like stars, start from their spheres,
Thy knotty and combined locks to part
And each particular hair to stand on end,
Like quills upon the fretful porpentine. 1	24
But this eternal blazon 2 must not be
To ears of flesh and blood. List, Hamlet, O, list!
If thou didst ever thy dear father love—
Ham.  O God!	28
Ghost.  Revenge his foul and most unnatural murder.
Ham.  Murder!
Ghost.  Murder most foul, as in the best it is,
But this most foul, strange, and unnatural.	32
Ham.  Haste me to know ’t, that I, with wings as swift
As meditation or the thoughts of love,
May sweep to my revenge.

BECAUSE, DAMMIT, IT'S THE RIGHT THING TO DO - The Resource Allocation Edition

Sigh!

In the most recent of my continuing, albeit occasional, series of posts titled "Selling Out the Client," I wrote about Anders briefs.  An Anders brief is what a lawyer is supposed to file on behalf of a convicted (ordinarily) client pursuing an appeal when the lawyer can't find any issue of "arguable merit," anything that isn't frivolous, to file on the client's behalf.  Here's a snippet of what I wrote.

Of course, the problem with a lawyer filing an Anders brief isn't that the client will lose, it's that the lawyer is, ultimately, abandoning the client.  And really, despite what the courts say, those of us who fundamentally believe in criminal defense know that our first obligation is to the client.  Within the bounds of the law, but to the client.  Anders is a betrayal of that.  (Yes, I understand that there may be a few peculiar circumstances in which Anders actually serves the client's interest.  They are, if they exist at all, exceedingly rare.)

The post received two comments (which is two more than usual).  I'd started to write a response in the comments but decided that I'd put off, for the moment, blogging about the latest Ohio voice against the death penalty and instead respond with a full post. So although I haven't called this "Selling Out the Client - Part VI (Further Thoughts)," that's really what it is.  And it is further thoughts, not second thoughts.  There's no change in position.

Like I said, there were two comments.  emerson (and what's with the abandonment of uppercase letters, by the way?  Yeah, I get the problem with typing ALL IN CAPS, but initial capitals, properly used, serve an actual purpose; as did their purposeful abandonment by e.e. cummings, who "emerson" is not) wrote of his time as an intern in an appellate office when he asked his supervisor what you do when you can't find an issue to write about that isn't frivolous.

"You always find something," she told me. "Even when you can't find anything, you find something."
Seems to me that anyone who files an Anders brief doesn't belong in appellate advocacy.

That's basically right, but it's also too facile.  Like life itself, and certainly like law, appellate advocacy doesn't lend itself so easily to one-size-fits-all, easy answer glibness. Which is perhaps why I wasn't initially moved to respond to emerson.  I mean, he was basically right and all.

But then came the more thoughtful response and question from Jonathan Edelstein.  And I realized that in responding to him I need to respond to emerson, too.  Here's what Edelstein wrote, and it's worth, for my purposes now, reproducing in full.

Jeff, I hate Anders briefs as much as you do, and it's a point of honor with me that I've never filed one. And yet...
What if you have a CJA client who pled guilty and waived his right to appeal, and there's nothing in the record that could possibly cast doubt on the validity of the waiver? Guilty pleas are different from an appellate standpoint: the client has admitted guilt, the record is far less developed than at a trial, waivers are very hard to get around, and the facts that might overcome a waiver (e.g., ineffective assistance of counsel) are often not part of whatever meager record exists.
Like I said, I've never filed an Anders brief. I've always found some way to argue against the waiver, even if it was a hell of a stretch. But sometimes I wonder whether I _should_ try so hard for clients who have waived their rights, because all the time the courts spend adjudicating waived appeals is time they don't have for my other clients with real issues.
There's arguably a freeloading problem with indigent appeals, where defendants who have validly waived their rights say "what the hell, it's free, I'll appeal anyway." And absent some kind of a pre-vetting process for appeals from guilty pleas, this will inevitably pose a resource-allocation problem for courts and indigent-defense attorneys. We both don't like Anders, but what's your solution? 

As I say, it's a thoughtful response, but it's a false question, or maybe I should say a misguided one.

I need to start with a moment of history.

When I was in law school I worked some for a very good criminal defense lawyer.  He'd tried a case as appointed counsel in federal court and lost.  It was a tough case.  The whole thing from jury selection to verdict took less than two days, as I recall.  The defense had no witnesses, simply argued that the government didn't prove it, which was, as I recall, silly.  The judge had given the defense every pre-trial motion and ruled in its favor on every even marginally significant objection.  The AUSA trying the case didn't cheat or press his points; he didn't have to.  Now the same lawyer was to do the appeal to the 5th Circuit.  He asked me to read the record and find something.

I looked.  I found one issue worth pursuing that involved a claim of ineffective assistance of counsel. (It would have been a loser, but there was something there.)  He and I argued about my briefing it, but he won the argument on the basis that he had a built-in conflict in claiming his own ineffective assistance.  That would have to be done by habeas, and he'd give the client information on how to do it.  Meanwhile, he directed me to do an Anders brief.  It was, he said, the only one he'd ever filed.

It's also the only one I ever wrote, but as Matt Brown said, when you work for a lawyer who tells you to write one, you do it.  At least, I knew that the lawyer who had me do it was eaten up by it.  He hated, hated doing it but couldn't see an alternative.

The problem with emerson's (and his supervisor's) glib responses is the problem of saying "never."  I've written a couple of hundred appellate briefs as a lawyer.  The only Anders was that one I did as a law student.  I don't expect to be doing another.  But I can't know that.  I can't know that I won't, next week, have a case where there's absolutely nothing I can argue.  I can't know that next month I won't have a situation where it's somehow in my client's best interest for me to file an Anders brief.  I can predict the future, but not with absolute certainty.

So sure, you find something even when you can't.  And if you aren't up for that, you probably shouldn't be doing appeals.  Except who knows.

And that brings me to Edelstein's point.  What in hell do you do when there's nothing to do?  And is it really worth pursuing the dead-bang-loser appeal which eats up judicial and attorney resources.  We have a system that allows any indigent person convicted of a crime an appointed attorney to pursue an appeal.  I mean, why the hell not?  But what to do about the "resource allocation problem."

One answer, of course, is Louisiana's.  No appeals and no appointed counsel for a large swath of the convicted.  I'm told (and I'm probably getting this wrong) that in New Mexico, you have to convince an appellate court that there's a meritorious issue before it will let you pursue an appeal.  And habeas appeals (by the petitioner/convicted guy) require a COA which is basically a finding that there's something worth arguing about on appeal.  There are probably other systems that effectively limit indigent appeals, though Halbert v. Michigan would seem to place severe limits on how they can do that. 

None of those answers are satisfying though, and Edelstein, while raising the question, seems  to get the answer.  We can't pre-judge.  The person who's been convicted has a real and serious interest - at least some of the time - in challenging the conviction.  Sometimes, the interest is greater than the convicted person actually understands.  (Our clients aren't always masters of grasping what's in their own self-interest.)

What Edelstein is really asking is the common appoint-counsel/public-defender and whiny judge question.  

I've got limited resources, so how can I best allocate them?

In every sphere of life, that's probably a fair question.  And as a practical matter, those of us engaged in criminal defense, especially but not exclusively in indigent criminal defense (even the non-indigent have limited resources, and resources include, by the way, the time to do what's necessary) must deal with resource allocation all the time.  But the proper answer to the question isn't to cut back on what we do for the clients.  It's to allocate more resources.

It's that Sixth Amendment thing about the right to counsel and the right to present a defense.  It's that 14th Amendment thing about there should be no deprivation of liberty or property without due process of law and that other 14th Amendment thing about equal protection.  

Equal Justice Under Law

As it says over the front entrance to the Supreme Court (you know, the entrance that the Court forbids the people from using).

Maybe the American idea requires that we actually raise taxes rather than lowering them.  Maybe it requires that we reconfigure how other resources are allocated.  Maybe it means that we're charging too many people with crimes and spending too much money on prosecutors and prisons. . . .  Hell, I don't know.  I'm just a simple country city lawyer with a blog.

But here's what I do know.  We don't advance the system by restricting it.  We don't ensure rights by taking them away.  And we don't give in to the argument that we can't afford to do it properly.

Oh, and since a frivolous argument is one that cannot be supported by an argument made in good faith for the application, modification, or reversal of existing law, and since there are lots of qualifications on when appeal waivers actually count, and since I don't think any law that allows appeal waivers can withstand fair scrutiny (and yes, I know the courts to date don't buy into that, but I'm suggesting the reversal of existing law), I think an appeal waiver doesn't force an Anders.  I think Edelstein's own experience supports most of what I wrote in that last sentence.

And more power to both him, for fighting the good fight, and to emerson for believing in it.

Selling Out the Client - Part VI

Your client was convicted of a crime.  You're doing the direct appeal.  Maybe you've been retained; maybe you were appointed; maybe you're a public defender.  Whatever.  It's your case.

You represent the convicted guy or gal.

You know that on appeal you're limited to the record from the trial court.  You don't get to call new witnesses or do a better cross-examination.  You can't ask the judge to tell the jury to disregard.  You don't get to have the drugs reweighed or to have your own arson expert.  You can't get another set of DNA tests done in the hope that they'll show it wasn't your client's semen.  No new psychologist will be able to tell the court of appeals that your guy was crazy as a bedbug and when he shot up the pancake house he actually thought he was playing badminton with some 8-legged-6-armed-14-eyed creature from Tau Centauri with the winner getting to star opposite Angelina Jolie in a remake of Love Story.

But you're stuck with the record from the trial court, and the record from the trial court sucks.  You read the pre-trial motions.  All losers.  You read the trial transcript.  Sure the prosecutor cheated some and the judge blew a ruling of two.  And there was that time when your client's lawyer didn't bother to object to the Confrontation Clause violation, but who knew that SCOTUS was going to decide Crawford that way?  Hell, you probably wouldn't have objected, either.  Anyhow, your client would probably have been found guilty regardless of all that.  And you sure aren't likely to win an appeal on this stuff.  All those issues will be losers.

And if you can't win, if all your issues lose, why then, really, it's just silly to appeal.  I mean, the whole thing's frivolous.  Right?

Now what do you do?  You look at Anders v. California from back in 1967 when the Supreme Court addressed just that question.

We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.

The answer, as I've explained before, is that you acknowledge that your primary duty isn't to the client.  Your primary duty is to the court and the system.  You can't win.  It's hopeless.  So you don't fight.  You tell the client you're throwing in the towel and then you file and Anders brief telling the court that the appeal is frivolous and asking to withdraw.  

Stop the train.  I want to get off.

Oh, you're supposed to point to anything in the record you can find that might be arguable error and explain why it's not.  (Yep.  You're supposed to explain why the client should lose.)  The client can then file a pro se brief.  And the court is supposed to scour the record itself looking for arguable error, something that isn't frivolous.  (And occasionally it finds something.  See State v. Robinson.) But the client rarely has anything useful to add.  (Which is how it's supposed to be.  Lawyers are, at least in theory, trained advocates while appellate clients are, well, convicts.)  And really appellate judges and their staff attorneys aren't criminal defense lawyers or appellate specialists or even advocates for the criminally convicted.  'Tain't their job.*

So, in the ordinary course of things, you've abandoned the client whose left without any meaningful representation.  With nothing.  Zip.  Zilch.

The lawyer who files Anders may do it out of laziness.  May do it from lack of interest.  May do it because, 

darn it, there just aren't any real issues here.

Still, as Justice Souter recognized in a footnote to his dissent in Smith v. Robbins, lawyers aren't fungible.  Some will have

[A] keener eye for arguable issues or a duller nose for frivolous ones.

Of course, the problem with a lawyer filing an Anders brief isn't that the client will lose, it's that the lawyer is, ultimately, abandoning the client.  And really, despite what the courts say, those of us who fundamentally believe in criminal defense know that our first obligation is to the client.  Within the bounds of the law, but to the client.  Anders is a betrayal of that.  (Yes, I understand that there may be a few peculiar circumstances in which Anders actually serves the client's interest.  They are, if they exist at all, exceedingly rare.)

The appellate judges I've spoken with about it don't like Anders cases.  Anders is, after all, a breakdown in the system.  The judges don't want to scour the record looking for error.  They hate doing it (or, more precisely, having their law clerks/staff attorneys do it).  They didn't become judges so that they could be replacement advocates for our clients.  And while Anders makes it easy for the client to lose, the judges know perfectly well that the client will probably lose anyway, and Anders leaves a bad taste.  It's not really how the system is supposed to work.  They get that.

But if the judges don't like it, they're OK with it, too.  Because they don't really want to have to deal with worthless appeals

Let's just have a system to shut them off.

Good idea!

Some courts have gone farther, which brings me, at last, to where I'm going.  The other day, the 5th Circuit decided two Anders cases.  In United States v. Garland, an appeal from a guilty plea, Garland's lawyer filed what purported to be an Anders brief but didn't adequately (or even at all) address potential appellate issues or explain in any detail why there weren't any.  Not enough, said the court.  In fact, we have a checklist on our website, the court explained, telling you what to look for in an appeal and guidelines for what to put into an Anders brief.  You didn't obey, so we're not letting you withdraw.  You have to represent the client you tried to sell down the river.

Accordingly, we ORDER counsel for Garland to file within 30 days a supplemental brief that comports with Anders following the guidelines set forth above or, in the alternative, a brief on the merits addressing any nonfrivolous issues that counsel deems appropriate. If counsel files a supplemental Anders brief, he should demonstrate that he has addressed the issues listed on the Anders checklist found on this court’s website at http://www.ca5.uscourts.gov insofar as it applies to his case, to assist the court in its review.

And then there's this.

[I]f counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.

B.W. Barnett at Liberty and Justice for Y'all put it,

Use the court’s template and you can’t go wrong.

The court's we-won't-be-bothered rule, that if a lawyer files a brief satisfying the guidelines and checklist the court won't bother to look at the record to see if there are issues the lawyer missed or ignored or abandoned, is the guts of the court's other Anders decision, United States v. Flores.

Flores gets there by adopting the holding of a United States v. Wagner, a 1996 case from the 7th Circuit.  (The 3rd Circuit seems to have adopted the same rule.)  Writing for a panel of the court in Wagner, Judge Posner lays out the new rule.

The intermediate position, which we now adopt, is for the appellate court to be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. (If it is not, we shall deny the Anders motion and either direct counsel to file a new brief or discharge counsel and appoint a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer's discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court's decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer's competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research.

There's a logic to this if you buy the underlying principle that a criminal appellant is entitled only to a marginally competent lawyer doing a marginally competent job.  After all, if the lawyer can convince the court of his marginal competence and the marginal competence of his review of the record for appeal, then why should the court engage in its own review?  Make it look good, and we're done.

Like I say, there's a logic.  But it's bullshit.

The court's assumption is that if the lawyer turns in something that purports to address all the issues in its checklist, then the lawyer must diligently and as an advocate examined the record and researched the potential issues.  But the assumption is nonsense.  Oh, it might be true.  Just as easily, it might be that the lawyer files some seemingly-compliant BS.

Sigh.

Keener eye or number nose.

It's really all about selling out the client.

 

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

*Here's what Anders actually says (with a footnote silently omitted and a sentence referring to the facts that led to the Supreme Court's decision omitted with ellipsis).

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. . . . Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

It's Not Just Maricopa, It's the Whole Damned State

It is emphatically the province and duty of the judicial department to say what the law is.

Chief Justice John Marshall, Marbury v. Madison (1803). 

It is emphatically the province and duty of Arizona's "Joint legislative committee on nullification of federal laws" to say what the law is.

Proposed SB 1433, Arizona Senate, First Regular Session 2011.

OK, the Arizona thing isn't a quote.  Actually I made it up.  But the conflict is real, or at least it will be if SB 1433 is enacted.  The bill creates that "Joint Legislative Committee on Nullification of Federal Laws" consisting of a bunch of state senators and a bunch of state representatives.  Here's the guts of Section 1.

C.  the committee shall recommend, propose and call for a vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the People to the federal government in the United States Constitution.  The committee shall make its recommendation within thirty days after receiving the federal legislation for consideration and process.

D.  The committee may review all existing federal statutes, mandates and Executive orders for the purpose of determining their constitutionality. The committee may recommend for nullification existing federal statutes, mandates and Executive orders enacted before the effective date of this section.

E.  On the committee's recommendation for nullification, the legislature shall vote on whether to nullify the action within sixty days after the committee's recommendation.  Until the vote, the issue in question is of no effect.  The appropriate documentation reflecting the legislature's vote shall be documented in the journals of the respective houses.

F.  If the legislature votes by simple majority to nullify any federal statute, mandate or Executive order on the grounds of constitutionality, this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order.

G.  The committee shall ensure that the legislature adopts and enacts all measures that may be necessary to prevent the enforcement of any federal law or regulation nullified pursuant to this section.  The committee shall ensure that the jurisdiction of any cause of action between this State and the federal government regarding nullification of any federal legislation, mandate or executive order with the Supreme Court of the United States alone, as stated in Article III, section 2, United States Constitution.

Got that? The Arizona legislature, by majority vote, can declare any federal law or regulation unconstitutional and neither the state nor anyone in the state will have to obey it.  Oh, and that last part says that the legislature is to ensure that only the US Supreme Court can hear a challenge to a nullified law.

Section 2, which is much longer, is an attempt to explain just what the Constitution means and how it is to be interpreted.

What?  You think I'm making it up?  Here it is in its entirety.

The legislature finds and declares:

1.  The Tenth Amendment to the United States Constitution guarantees and reserves to the states or their people all powers not specifically granted to the federal government elsewhere in the Constitution as they were publicly understood at the time that the amendment was ratified on December 15, 1791, subject only to modification by duly ratified subsequent amendments to the United States constitution.  The guarantee of those powers is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

2.  As a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912, the Tenth Amendment to the United States Constitution guarantees to this state that, other than the enumerated powers expressly granted to the United States under Article I, section 8 of the United States Constitution, Congress and the federal government will not exercise any purported additional control over or commandeer rights belonging to this state or its people.

3.  Under the Tenth Amendment to the United States Constitution, the people and this state retain their exclusive power to regulate this state subject only to the Fourteenth Amendment's guarantee that the people and the state of Arizona exercise those sovereign powers pursuant to each citizen's lawful privileges or immunities and in compliance with the requirements of due process and equal protection of the law.

4.  The ninth amendment to the United States Constitution secures and reserves to the people of Arizona as against the federal government their natural rights to life, liberty and property as entailed by the traditional Anglo-American concept of ordered liberty and as secured by state law, including their rights as they were understood and secured by the law at the time the amendment was ratified on December 15, 1791, as well as their rights as they were understood and secured by the law in this state at the time the Arizona Constitution was adopted.  The guarantee of those rights is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

5.  At the time the United States Constitution was ratified on June 21, 1788, the sole and sovereign power to regulate the state business and affairs rested in the state legislature and has always been a compelling state concern and central to state sovereignty.  Accordingly, the public meaning and understanding of Article I, section 8, the "establishment clause" of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Further, the power to regulate commerce among the several states as delegated to the Congress in Article I, section 8, clause 3, United States Constitution, as understood at the time of the founding, was meant to empower Congress to regulate the buying and selling of products made by others, and sometimes land, associated finance and financial instruments and navigation and other carriage across state jurisdictional lines.  This power to regulate commerce does not include agriculture, manufacturing, mining, major crimes or land use, and does not include activities that merely substantially affect commerce.

6.  At the time the United States Constitution was ratified on June 21, 1788, the commerce clause was not meant or understood to authorize Congress or the federal judiciary to regulate the state courts in the matter of state substantive law or state judicial procedure.  This meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to the validity of religious sectarian or foreign law as being controlling or influential precedent, has never been modified by any duly ratified amendment to the United States Constitution.  Accordingly, the public meaning and understanding of Article I, section 8 and the Tenth Amendment of the United States Constitution is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Additionally, Article I, section 8, clause 18 of the United States Constitution, the "necessary and proper clause," is not a blank check that empowers the federal government to do anything it deems necessary or proper.  It is instead a limitation of power under the common law doctrine of principals and incidents that allows the Congress to exercise incidental powers.  There are two main conditions required for something to be incidental, and therefore, "necessary and proper", the law or power exercised must be directly applicable to the main, enumerated power and it must be "lesser" than the main power.

7.  At the time the United States Constitution was ratified on June 21, 1788, Article I, section 8, clause 1 of the United States Constitution, the "general welfare clause," did not empower the federal government with the ability to do anything it deems good.  It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are prescribed in Article I, section 8 of the Constitution of the United States. When James Madison was asked if this clause was a grant of power, he replied, "If not only the means but the objects are unlimited, the parchment (the Constitution) should be thrown into the fire at once."  Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States.  The Commerce Clause was not meant or understood to authorize Congress or the federal judiciary to establish religious sectarian or foreign statute or case law as controlling or influential precedent.  This meaning and understanding of Article I, section 8, the establishment clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to controlling or influential legal authority, has never been modified by any duly ratified amendment to the United States constitution.  Accordingly, the public meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in  1912.

8.  Accordingly, we affirm that neither the "Commerce Clause," the "general welfare clause" or the "necessary and proper clause" of the United States Constitution have ever been expanded, modified or amended and therefore, this state specifically rejects and denies any expanded authority that the federal government may attempt to enforce.

9.  The Congress and the federal government are denied the power to establish laws within this state that are repugnant and obtrusive to state law and to the people in this state.  They are restrained and confined in authority by the eighteen items as prescribed in Article I, section 8 of the United States Constitution.

10.  Congress and the federal government are denied the power to bind the states under foreign statute or case law other than those provisions duly ratified by the Congress as a treaty, so long as the treaty does not violate this state or the United States Constitution.

11.  Further, no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to preempt state legislation.

12.  This act serves as a notice and demand to the Congress and the federal government to cease and desist all activities outside the scope of their constitutionally designated powers. 

Specific legislative findings about what the Constitution means and how it must be interpreted, understood, and applied. Oh, and paragraph 12 says the statute is a notice and demand which requires Congress and the federal government to do what Arizona tells them.

Of course, it's nonsense.

Much as it might wish otherwise, Arizona does not have the authority to determine which federal laws will apply within its borders.  And while Arizona courts can, in the first instance, determine whether federal laws are constitutional, they don't have the last word on the matter.  There isn't universal agreement that Marshall was right in Marbury when he declared the power of the federal courts.  But for 207 years that's been the controlling principle.  Arizona's going to have a tough time convincing the federal courts that it, not they, gets to determine the meaning of the Constitution.  Frankly, it's a secession bill.

Equally frankly, the South lost the Civil War.  Arizona just doesn't get to decide what laws apply.  Well, unless it secedes.

Sadly, Arizona isn't alone.

Well, maybe it's alone in the particulars of SB 1433.  (You'll notice that I'm treating it as if it's been enacted.  That's off in the future, though I rather expect that it will be - this is Arizona after all, self-identified as the state that's a gaping hole in the country, you know, the Grand Canyon State.)  But the general idea of states nullifying federal laws, that takes us to to the Repeal Amendment.

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Here's Eric Cantor, the House Majority Leader, quoted in a December NY Times article on the proposed amendment (which he supports)

Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives. Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.

SB 1433 really can't pass constitutional muster.  The Repeal Amendment is different, of course.  By definition, an amendment to the Constitution must be constitutional.

The good news is that even if enacted, the Repeal Amendment would likely have little real world consequence.  The Times, again, this time quoting Sanford Levinson, law prof at the University of Texas.

Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states.

That's surely true.  It's also true that the Amendment would have one powerful and potentially valuable consequence.  While state legislators are busy squabbling and posturing over whether this or that act of Congress is constitutional, they aren't inflicting any harm on the rest of us.  I mean, just think of all the bad state laws they won't have time to pass.

Like, say, SB 1433.

And then there's what Nick F, the Arizonan who directed my attention to SB 1433 said.

Astonishing. The Union will be better off without us.

Why, Exactly, Should We Kill Johnnie Baston?

Chong Mah, an immigrant from South Korea, owned and operated Continental Wigs-n-Things in downtown Toledo.  On March 21, 1994, the store was robbed and he was shot and killed.  Johnnie Baston is on death row for that killing.  Ohio intends to murder Baston on March 10.

Baston said then, and according to press reports says now, that he didn't do it.  He was there, but he wasn't the shooter.  Maybe.  I don't pretend to know and, in any case, it's not what interests me now.

(I represented Baston on direct appeal of his conviction and death sentence.  There are, in fact, a number of truly things about the case that infuriate me.  Those things have nothing to do with whether he in fact shot Chong Mah, nor are they relevant to what this post will be about if I ever get done with the digression and get to the point.  OK, I'll go there now.)

Chong Mah was, by all accounts, a decent, honest, hard working, truly wonderful man.  Perhaps that's why it's so damn poignant that we're getting all geared up to kill Baston.  See, the Mah family never wanted Baston to be killed.  They told the prosecutors at the time of the trial.  Now they're telling the Parole Board and, through the Board, Governor Kasich. 

Jim Provance, has the story in Today's Toledo Blade.

The family of Johnnie Baston's victim doesn't want him executed, so neither should the state of Ohio, Baston's attorneys will argue Thursday in hopes of convincing Gov. John Kasich to show him mercy.

That's to the point.  Even more is an affidavit from Peter Mah, son of the murdered man.

I was opposed to Mr. Baston receiving a death sentence at the time of his trial. . . . My family and I are opposed to Mr. Baston being executed.

As I said, the prosecutors knew. 

Two attorneys working as assistant Lucas County prosecutors at the time of the trial filed affidavits noting that the family told them that they would prefer to see Baston spend the rest of his life behind bars without the possibility of parole. That sentencing option wasn't available to the three-judge panel that presided over his trial.

It's true.  Ohio didn't have LWOP in 1994, though it does now.  More to the point, Kasich can commute the death sentence to LWOP.  Ah, but he shouldn't says the elected prosecutor, Julie Bates (joined by Ohio's new Attorney General, Mike DeWine.

A response to the clemency petition filed this week by Lucas County Prosecutor Julia Bates and Attorney General Mike DeWine's office said Mr. Baston continued to refuse to accept responsibility for Mr. Mah's murder during his interview with the board last week.



"In short, nothing has changed," it reads. "Mr. Mah's family maintains an opposition to a death sentence, and Baston continues to refuse to accept responsibility or express remorse. These factors were known to the three-judge panel who sentenced Baston to death more than 15 years ago and do not present viable grounds for a recommendation for clemency today."

I'm about to explain that among the numerous reasons we shouldn't kill Johnnie Baston is the only one I'm talking about here:  Chong Mah's family doesn't want now, and didn't want then, to have him killed.  And that here, in this context, that trumps everything else.  And I need to be very clear because I'm setting myself up for an accusation of hypocrisy and intellectual dishonesty.

See, I've said repeatedly that the victims of criminal acts (or the surviving friends/family/loved ones of those victims) have no proper role in the criminal justice system except sometimes as fact witness.  Crimes are violations of the social order, acts against the state which is, properly, the only victim.  Personal loss is properly (albeit often unsatisfactorally) addressed in civil law, through tort actions.  I'm particularly incensed by the prosecutors who see themselves as agents of those victims, who believe their job is to act on their behalf and to use the criminal law to exact vengeance in their names.

And yet, I'm saying that the family's views should count here.  A lot.

There's a couple of points. 

First, we're not talking about trial now.  We're talking about pure mercy, which is what the Gov can offer.  That's not properly part of the criminal justice system any more than are journalists whose independent reporting turns up compelling evidence of innocence.  The proper question for the Gov isn't whether the courts got it right (though that's not irrelevant since the Gov can, of course, fix judicial mistakes, too).  The question for the Gov is whether this or that person, Johnnie Baston in this case, should receive mercy.  

Not whether he deserves it.  Whether he should receive it.  Historically, the answer to that question was mostly yes.  In recent years, it's mostly been no.  That's not a difference in the condemned.  If mercy isn't about what's deserved, it doesn't matter much who they are.  It's a difference in politics.  Clemency has become a proxy for tough-on-crime.  Commute death sentences when you're not pretty sure the guy is innocent, and you're a wimp.  (There's some evidence that's changing, but it's far from clear, and any change is very slow.)

Anyhow, if you're a governor trying to figure out whether to exercise the extraordinary power of clemency it seems reasonable to consider the seemingly unusual voice saying "Yes."

Second, and really more important, is the nature of the death penalty.  

Robert Morganthau, long time District Attorney of New York County (that's Manhattan), put it plainly.

The only honest justification for the death penalty is vengeance.

But vengeance for whom?  Not for me?  Not meaningfully for the state.

Here's what it comes down to.  When the prosecutor says, this person should be killed because he killed someone, that's not a legal determination.  It's a moral one.  It's a claim that vengeance is appropriate in this case.  And surely the active, "please don't" from the survivors of the murdered person is a relevant consideration.  Why?  Because it undercuts the purported moral justification and dishonors the person killed.

Don't kill for me has special resonance when it's not some bunch of abolitionists making a generic statement but the family of the murdered person.

All of which gets to the title I gave this post.

Why, exactly, should we kill Johnnie Baston?

To teach him a lesson?  Nah.  If there's a lesson for him and he hasn't learned it by now, he won't have mastered it by March, though another few decades in prison might get it through to him.

To teach others? Nah.  The reality is that the people who are prone to commit murder either act on the spur of the moment, without any thought of consequence, or are quite sure they'll never get caught.  I suppose some few people here or there are deterred by the theoretical possibility of execution, just as some few commit murder in order to be executed, so that the state will help them commit suicide.  If we're out to prevent killing, there are far more efficient and effective things we could do with the resources we've been wasting on seeing Baston killed.

No, the reason we want to kill Johnnie Baston is to take revenge on him for what he was convicted of doing to Chong Mah.  But if Mah wouldn't want it, and if his family wouldn't want it, then what we're doing is no more than satisfying our own blood lust.

That's the real reason, of course.  It makes us (not me, and maybe not you, but the generic "us" that is the people of Ohio who are paying attention and maybe do or don't feel that way) feel good to kill.  We like the blood.  We feel righteous about it.  We pretend otherwise, of course.  Maybe we (that's the collective "we" again) don't really feel that way.  But the politicians think we do.  They think we want them to kill.  And they want to be re-elected.

So it's kill and kill and kill.

Tit for tat.

Someone once told me that two wrongs don't make a right.

Why should we kill Johnnie Baston?

No reason on earth.

Or in the heavens.

BECAUSE WE HAVE THE POWER TO FUCK OUR CLIENTS - The Jefferson Parish Indigent Defender Board Edition

$275 in fines, 30 days in the hoosegow with all those days suspended, 6 months inactive probation.

That's what Vincent Castillo got after a bench trial in the First Parish Court of Jefferson Parish, Louisiana.  And three misdemeanor convictions:  Speeding, driving with a suspended license, and driving with an expired license.  (I assume it ran out and he couldn't renew it while it was suspended, but I'm just guessing.  And it doesn't really matter here.)

Because Castillo was indigent, he was represented at trial by the Jefferson Parish Indigent Defender Board.  Because he lost, he tried to get the convictions overturned.  Twice he asked for counsel to be appointed to help him seek review.  Twice the Parish Court said no.  Castillo then asked the Court of Appeal, which looked at cases from the United States Supreme Court (Williams v. Oklahoma City and Mayer v. Chicago), then took a look at the Equal Protection Clause and said, "Sure."  The Parish Court, as required on remand, appointed the Jefferson Parish Indigent Defender Board (the same folks who represented him at trial, the people whose job is to represent the indigent accused) to represent him.

And the Board, understanding its duty to, as I just said parenthetically "represent the indigent accused), asked the Court of Appeal to let them off the hook.  There is, the Board said, no statutory or constitutional basis for Castillo to have appointed counsel now.

It's easy (and correct) to say that Louisiana's system for dealing with low level misdemeanors sucks.

• A person charged with a misdemeanor punishable by more than six months imprisonment is entitled to a jury trial.
• A person charged with a misdemeanor punishable by six months or less is entitled only to a bench trial.
• A person entitled to a jury trial is also entitled to a direct appeal of a conviction.
• A person entitled only to a bench trial is not entitled to a direct appeal but may seek discretionary review.

As I say, that sucks.

Oh, sure, six months or less in prison is a "petty offense."  Right.

Petty to just whom?  Fair question.  Pretty clearly not to the person sentenced to 6 months behind bars.  At Second Class Justice which is where I came across Castillo's situation (to which we'll shortly return), G. Ben Cohen puts it this way.

The criminal justice system touches the vast majority of citizens lives, on minor charges like driving with a suspended license, possession of marijuana, driving under the influence.  These are in Louisiana and many other states described as petty offenses because the maximum sentence is six months in prison.  (Imagine if you will, telling your boss, spouse or kids that you will have to be gone for six months in Orleans Parish Prison, and the punishment doesn’t seem so “petty.”). 

Yup.  Imagine that.

In any event, it wasn't petty to Castillo, which is why he kept trying to get review.

Now, back to Castillo, and a very brief review.

He was convicted of "petty misdemeanors."  He wanted appointed counsel to help him get and win discretionary review.  The judge said no.  The Court of Appeal told the judge to appoint counsel.  The judge appointed the Indigent Defender Board.  Instead of representing Castillo, the Board asked the Court of Appeal for a writ to arguing that the indidgent guy they had previously arrested was no longer entitled to counsel and that they'd gotten it wrong.  They told the Board to go away.

Enter the Louisiana Supreme Court.  They agreed to hear the question of whether Castillo was entitled to an attorney.  They appointed LSU's student law clinic to represent Castillo.  Finally, someone.  For whatever reason, Castillo refused their representation.  They filed an amicus brief on his behalf.  And the Louisiana Supremes ruled.

On Friday, the court decided Louisiana v. Castillo.

Castillo

No counsel.  None.

Oh, they cited law, reviewed cases that aren't really on point, but ultimately, they said he had no right.  Ben Cohen, again, explained why that's such a wrong headed ruling.

But now, judges in these circumstances are given complete freedom to impose what our founders would describe as tyranny on indigent defendants.  For rich defendants, judges face the possibility of supervisory review striking down an unjust punishment.  But for poor defendants, with no means of securing a lawyer, judges are free to do what they will.   And police officers can rest assured that no appellate court will throw out a search, a stop, an arrest for an indigent defendant charged with a petty offense.  Because the indigent defendant has no right to a lawyer.  That is second class justice.  No soup for you.

He's right. But courts screw poor people and criminal defendants all the time.  That's offensive, but I don't know that I'd have written about the case if that's all there were here.  

No, what particularly offends me, what set me off, happened well before the Louisiana Supremes weighed in.  I went ballistic when I saw that the Jefferson Parish Indigent Defender Board - appointed to defend an indigent guy in Jefferson Parish, a guy they'd represented at trial and to whom, presumably (though Louisiana is it's own special legal place they taught us in law school), they had some sort of continuing duty of loyalty - chose not to defend him but to litigate against his interest.  They didn't just refuse the appointment.  They challenged it.  All the way to the Louisiana Supreme Court.

Who the fuck are these people?  And by what mangling of the language do they claim to be an "Indigent Defender Board"?

Public defenders are routinely called "public pretenders."  They're thought not to be real lawyers.  They're declared unable to get real work.  That's all bullshit.  Public defenders are some of the finest criminal lawyers out there.  They are, as a group, dedicated, passionate, capable, and committed.  Oh, there are real problems.  Some PDs are lazy and incompetent.  Way too many are under resourced.  Some of the offices are badly run.  But as a group - you won't find better lawyers anywhere.

And then there's the Jefferson Parish Indigent Defender Board.

I rarely actively solicit comments, but I will here.  I invite a representative to explain just why it is that they thought it was proper not simply to decline representation with whatever bullshit excuse would satisfy the judge but to litigate against the interest of their former client and the man they were appointed to represent.

I once had a court-appointed case where my client called me a "public offender."

Please.  Tell me one reason why that tag shouldn't be hung on the JPIDB?