Monsters redeemed

It's the fifth and final act of Shakespear's King Lear, the part of the play when nearly all will turn to dust.

Spoiler alert if you haven't read/seen the play.  (And if you haven't run out and do that.  Come back her someday when you have.  Or just keep reading.  It won't hurt the dramatic

Lear will have a moment of lucid understanding and the briefest of reconciliations with his loving, kind, angelic daughter just before she dies.

Why should a dog, a horse, a rat have life,

And thou no breath at all?

Then, again, Lear descends into madness.  And then he dies. 

The English kingdom is restored, but it's France that restores it.  The royal line is gone.  Only a few loyal, decent men remain.  And they are in mourning.

Is there a lesson here?  Gloucester offered this in the fourth act.

As flies to wanton boys are we to th' gods,
They kill us for their sport.

Indeed.

But amid the bleakness and emptiness, as there is in all tragedy, there is hint of redemption.  From dust comes, rebirth or at least a glimmer.

I'm not talking phoenix-like beauty or grandness.  Certainly not a heavenly kingdom.  But something allowing for the possibility of the better.

Which brings me, in my typically roundabout way, to an unusual op-ed in today's New York Times and a decision this week by the U.S. Supreme Court.  

The op-ed first.  The author is Christian Longo.  Here's the first sentence.

EIGHT years ago I was sentenced to death for the murders of my wife and three children.

And no, he isn't writing about a claim of innocence or mistreatment by the courts or cheating prosecutors or lousy defense lawyers.  The next two sentences make that clear.

I am guilty. I once thought that I could fool others into believing this was not true.

What, then? In fact, the subject is organ donation.  

There's a serious shortage of organs for folks who need them.  And then there are folks who are going to be killed.  Longo provides data.

According to the United Network for Organ Sharing, there are more than 110,000 Americans on organ waiting lists. Around 19 of them die each day. There are more than 3,000 prisoners on death row in the United States, and just one inmate could save up to eight lives by donating a healthy heart, lungs, kidneys, liver and other transplantable tissues.

OK, not everyone on the row would want to donate, but Longo does.  And there are others.  I had a client who inquired about it.  Others have, too. 

I am not the only condemned prisoner who wants the right to donate his organs. I have discussed this issue with almost every one of the 35 men on Oregon’s death row, and nearly half of them expressed a wish to have the option of donating should their appeals run out.

So what's the problem?  There's no law that prohibits organ donations from the condemned.  Why aren't we letting them (and we're not).

Oh, there are concerns about prisoners whose organs are already damaged.

[O]rgans of prisoners may be tainted by infections, H.I.V. or hepatitis. Though the prison population does have a higher prevalence of such diseases than do non-prisoners, thorough testing can easily determine whether a prisoner’s organs are healthy. These tests would be more reliable than many given to, say, a victim of a car crash who had signed up to be a donor; in the rush to transplant organs after an accident, there is less time for a full risk analysis.

And anyone killed with the three-drug sequence that nearly every state uses (the feds, too), well, that series of drugs damages the organs. But that's an argument for changing (if only for some inmates) the killing mechanism, not for refusing donations.

And there's an argument about coercion.  Certainly, there's something worrisome about harvesting organs from those we seek to kill.  Extra motive for executions and all that.

And there were those horror films where, say, the hands of an executed killer are grafted onto the arms of an innocent man (or there's a heart transplant or a transfusion or whatever) and it turns out that the killer's whathaveyou turns the innocent person into an unwitting killer.

So we rebel at the thought.  And yet.

Longo, again.

If I donated all of my organs today, I could clear nearly 1 percent of my state’s organ waiting list. I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste.
And yet the prison authority’s response to my latest appeal to donate was this: “The interests of the public and condemned inmates are best served by denying the petition.”

Really?

Build in a safeguard or two.  Protect everyone.  It's not that hard.  So?  Why not.

OK, let me offer a thought here about what's really going on.

I've talked about this before.  (Here, for instance.)  The people we kill are supposed to be monsters.  Evil incarnate.  This is not my original insight.  Consider this paragraph from a review in today's Times of David Livingstone Smith's new book, Less Than Human: Why We Demean, Enslave, and Exterminate Others.

Dehumanization — representing people to be lesser, non­human creatures, as when police officers label crimes against criminals as “N.H.I.” (“No Humans Involved”), or when Muammar el-Qaddafi calls his critics “stray dogs” — isn’t just shabby rhetoric. Dehumanization is a mind-set, as Smith writes, that “decommissions” our “moral inhibitions” about mistreating fellow human beings. Encased in law and custom, this psychological process has often licensed slavery, genocide and countless other cruelties.

The problem is that the condemned guy (or gal) must be a monster.  Oh, we've killed others, but they make us queasy, and we need to feel good about our collective murders.

But he who would somehow not just apologize, not just accept, but who would do something specifically decent - not for gain, but because it's the right thing to do - we really can't allow that.

See, rehabilitation, or something like it, screws the whole system up.

And so the case from the Supreme Court this past week.

The case is Pepper v. United States and the formal relevant issue is whether, when a federal court resentences a person for some reason, the court may consider evidence of rehabilitation since the original sentencing.  While the technical resolution involves the understanding of the current status of the federal sentencing guidelines, the underlying point - as even Clarence Thomas acknowledges in dissent - does not.  Here's a bit of Sotomayor's majority opinion (all citations silently omitted).

[E]vidence of postsentencing rehabilitation may be highly relevant to several of the factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsen-tencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing—in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes.

Pepper doesn't deal with capital cases or efforts to atone or just do something because it's right.  And it has no bearing on whether someone like Longo should be allowed to donate organs.

But Pepper has everything to do with prisoners and our willingness (or not) to believe in simple human decency.  And the possibility of redemption.

Which is really the point here.

Because if Longo can donate his organs not because it will extend his life or get him a shot at clemency or win him points with a federal court or a parole board or something.  If Longo can donate his organs, that is, not for any selfish reason but simply because it's the right and decent and humane thing to do.  If Longo - and by extension others on death row - can be allowed to show that they aren't monsters.

If all of that (or any of it, frankly), then it's that much harder to support a system that depends on refusing to believe that those on the row are - or can be - other than monsters.  And that's what's really going on.

In the last act of King Lear (what, you thought I'd forgotten where this began?), Edmund, the evil son of the Duke of Gloucester, has been mortally wounded.  He is dying.  He knows it.

I pant for life: some good I mean to do,
Despite of mine own nature.

Sister Helen Prejean says that none of us is as bad as the worst thing we've done.  For Edmund do some good is not "despite" his true nature; it's an indication that his nature is far more complex, more nuanced, than what he has done before. 

We kill the monster of our imagining.  Longo's request asks us to take a more nuanced look.

But recognizing nuance will bring down the system.

Tears Come Early

They won't be killing him for another few days, not until Thursday next week.

I'm not sure why this one is hitting me so hard.  They're all tough, of course.  Especially the ones I worked on.  But this is worst than most.

Maybe it's because it's so clearly wrong.

So a bit more background, maybe.

Johnnie Baston was sentenced to die by a three-judge panel that exhibited bias and prejudice against him at sentencing.  That's basic error.  So basic that it should get an automatic new sentencing.  But the court of appeals, while acknowledging (though not in so many words) that the panel was biased, said that it's mandated independent reweighing of the sentencing issues would cure the problem.

That's wrong.  Fundamentally, legally wrong.

Then we went to the Supreme Court.  They said (again not in so many words) that they were legally obligated to agree that the three-judge panel was biased and prejudiced.  But because the panel wasn't, it didn't matter.

Are you deeply enough in fantasy yet?

Baston said from the time he was arrested that he didn't shoot Chong Mah.  Some guy named "Ray" did the killing, Baston says.  It's possible that one of the witnesses, a passer-by outside the wig shop, might have seen this Ray.  But the panel misrepresented his testimony so that it seemed the witness saw Baston, which the witness was clear he did not.  There's other evidence that might be exculpatory.  Or maybe not.  But it doesn't matter much now.

The victim's family doesn't want Baston killed.  I made a couple of efforts (here and here) last month to explain why their feelings should, at this stage, control.  I don't know that I did a very good job of it, so let me try it much more simply now.

Clemency (which is what we're talking about) isn't about the law.  The law controls the procedures to be followed - the Parole Board must make a recommendation to the governor, after which the governor can do whatever he wants - but the law says nothing about how the decision to grant or deny clemency should be made.  That's because clemency is a vestige of the divine right of kings.  The king, you see, was God's agent in these matters, granting mercy whenever he wished.  Not because the recipient deserved it but because mercy is a gift to be bestowed at will.

The Governor of Ohio is not God's agent on earth.  He is our agent.  So executive clemency isn't about what God would do but what we would.   Here and now, as in medieval England, clemency isn't (or at least shouldn't be) about the recipient of the gift.  It's about the giver.  About us.

We have been asked to spare him as a gesture to the family of the victim.  Surely we can do that.  Because we can be merciful even to those who themselves denied mercy.

Because we are better than that.

Or maybe not.

This afternoon, without comment, Governor Kasich said we're not.  He denied clemency to Johnnie Baston.

Next Thursday, agents of the State of Ohio will kill him.

Not because he deserves to die.

But because we aren't decent enough to let him live.

Baston, according to the prosecutor, the three-judge panel, the appellate courts, and the Parole Board, chose to murder Chong Mah.  He didn't have to.  He chose to.

The panel, the appellate courts, the Parole Board, and now the Governor all chose to murder Johnnie Baston.  They didn't have to.  They chose to.  On our behalf.

Only Baston (if it was he who killed Chong Mah) and the Governor made the decisions alone.  

Only they have nobody to whom the buck can be passed.

Baston still says he didn't kill anyone.

We know for sure that Kasich is a killer. 

One for the Peach Tree State

Meet Marilyn Ringstaff, certified nurse midwife, graduate of John Marshall Law School, working at the Atlanta Legal Aid Society and as Nurse Manager at Women of W.O.R.T.H., Inc.

Now, meet Marilyn Ringstaff who's been trying for years to get permission to take the Georgia Bar Exam.

Now, meet Marilyn Ringstaff who got the Georgia Supreme Court to rule, unanimously, in her favor.

And thereby hangs a tale.

It was a dark and stormy night.  Or maybe not.  

What it was was 2002 and Marilyn Ringstaff, then a first year law student, was driving when she had a minor traffic accident and was charged with following too closely.  She didn't like the charge, didn't think it was right.

Like any ignorant young pup of a would-be lawyer, she knew her rights and knew she was being railroaded.

[T]here was no basis in Georgia law for them to give me a ticket to begin with. I wrote a brief, – researched it very carefully and asked the judge to dismiss it. I was at the beginning – first year of law school at the time. I had no legal background and, but I still researched it very thoroughly and I was sure that I was right on it and I asked the judge to dismiss the case, and he would not.

Shocking, I know.  The judge didn't dismiss a case that the defendant thought knew believed fantasized should be dismissed.  Hell, she might even have been right as a matter of law.  Regardless, she went to trial.  She continued to represent herself (it had gone so well that far, after all), so she had, as they say, a fool for a client.  And an ignorant, young pup of a would-be lawyer for a lawyer.

The judge ruled against her time and again.  She lost.  She was fined $250.  She decided to appeal.

And, of course, because she'd demonstrated such fine ability with the legal system, she chose to represent herself on appeal.

She argued that she'd received ineffective assistance of counsel from that ignorant, young pup of a would-be lawyer.  You know how that turned out.

Here's some more of what she did.

She paid the fine, including with her payment a note to the court clerk.

The note read as follows: “April: Thanks for taking care of this - keep the change [smiley face] put it into a police/judicial education fund. I can certainly say this has been an educational experience. I’m now a second-year law student and can honestly relate to what a crooked and inequitable system of ‘justice’ we have. The money was well-spent, I’m sure it will make me a better attorney [smiley face]. Marilyn Ringstaff.” The Board [don't worry; we'll get to the Board in a bit] did not include a quotation that follows Ms. Ringstaff’s name on the note and which states: “All that is necessary for the triumph of evil is that good men do nothing.”

OK, probably not a great idea.  Smiley faces be damned.  Still, "April" was, Ringstaff said, a friend.

Maybe April was a friend.  Not so the Board.

The Board is the Georgia Board to Determine Fitness of Bar Applicants.  

Their evaluation?

Unclean! Unclean! Keep Away!

Or something like that. Though, to be fair, they didn't actually accuse her of leprosy or carrying plague. 

Of course, the Board also said that Ringstaff

made remarks during her informal interview with the Board that the Board described as indicating applicant was “sure” she had been right in her belief that the ticket should have been dismissed; that “every police officer lies[;]” that the police officer who issued the citation had committed perjury when the officer testified about the citation because the officer had issued the ticket based on the word of two “unreliable” witnesses; and that the trial judge knew the officer had committed perjury.

Ringstaff filed an answer to the charges and the Georgia Supreme Court appointed a hearing officer. 

The hearing officer found by clear and convincing evidence that Ringstaff possessed the integrity and good character to be certified fit to practice law, concluded that the evidence presented against
Ringstaff bore upon her competence rather than her character and fitness, and recommended that Ringstaff be permitted to sit for the Georgia bar exam.

But the Board

said

Unclean! Unclean! Keep Away!

See, she hadn't shown, the Board said, that she had rehabilitated herself.  After all, she blamed Alan Dershowitz.

When asked what she had meant when she wrote to the trial court clerk [You remember April] that the system of justice was crooked and inequitable, Ms Ringstaff stated:
Well, maybe I can explain. When I started in criminal law, I remember studying some of the writings of Alan Dershowitz and one of the articles that we read was his article that said, “every police officer lies– every district attorney knows that every police officer lies – every superior court judge knows that every district attorney knows that every police officer lies and every appeals court judge knows that a superior court judge knows that every district attorney knows that every police officer lies” and I would never have believed that had I not experienced that myself because those officers lied on the stand and the district attorney knew that they were doing it and, I believe, the Superior Court Judge knew it. It was just a great miscarriage of justice and I still stand by those words.

OK, maybe she shouldn't have done that.

But, said the unanimous Supreme Court of Georgia, rehabilitation doesn't apply here.  The Board treated incompetence, which Ringstaff demonstrated at trial and on appeal, as a "moral character and fitness" flaw, the court said.  In fact,

The transcript of the informal hearing reflects that there is no evidence supporting the specifications listed by the Board and the conclusion drawn by the Board.
. . .
We conclude from our review of the record that Ms. Ringstaff established that she possesses the integrity and character required to be a member of the State Bar of Georgia. Inasmuch as the Board’s grounds for finding otherwise are not supported by the record, we reverse the decision of the Board and direct that it issue a certificate of fitness to practice law to Ms. Ringstaff.

I don't mean to be invading Brian Tannebaum's territory by writing about Ringstaff's case (though I'm not aware that an iPod or iPad was part of her problem).

What I'm interested in is that in Georgia, at least if you aren't licensed to practice law, it's not the kiss of death to suggest that a judge is dishonest and the system corrupt.  While in Ohio and Indiana, at least if you are licensed to practice law, you have to keep those thoughts secret.

I've never met Marilyn Ringstaff.  I first learned that she existed an hour or so before I started writing this.  I have no idea whether she'll pass the bar exam.  I have no idea whether she'll be competent to practice law if she does.  But as David Lat points out at Above the Law 

Based on her LinkedIn profile and her blog, she definitely seems like a good-hearted person, who wants to use law and public health to make the world a better place.

That's no small thing.

Glad Georgia's going to at least give her a chance to try.

Free Speech - Sort Of

I wasn't going to write about the Supreme Court's decision in Snyder v. Phelps.

I figured there was really nothing much for me to add.  I assumed that many of my brothers and sisters of the blawg would offer generalized praise for the decision, coupled with reminders that even the most evil speech (which Westboro's is) by the most repulsive folks is (which Westboro's are) is entitled to First Amendment protection.  (It doesn't deserve that protection; it gets it because, like clemency, it's about us not about them.)

And, of course, a number have.  (See, for instance, Turley, Mayer, and of course and especially Randazza.)  And then Scott Greenfield jumped in.

It's not that Scott disagrees with the general view.  Yes, the Court got it right, he says.  But we should be grateful to Alito for dissenting as a reminder that - feh.  Here's what Scott wrote.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.  

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn't walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

It's true, sadly, that while the majority opinion by the Justice with the self-satisfied smirk that he probably mistakes for a smile (that's Roberts) lays out in detail and with appreciation the powerful First Amendment issues in the case, its legalistic approach does little to capture the depth of repulsion we all should feel (and hope that Roberts and the rest feel) at what Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry."  And it's fine that someone picked up the slack to make the point.

But Alito's dissent is a problem.  Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1.  But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.

This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech.  He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.  Here's how Elie Mystal put it.

Call it Free Speech 101. The hard part about the First Amendment is that you have to allow people to say all manner of annoying, vulgar, and inappropriate things, at the wrong times.

Not that Justice Samuel Alito thinks so. Justice Alito was the lone dissenter in this case. He was also the lone dissenter in the Stevens case, in which the Court overturned a ban on animal crush videos on First Amendment grounds.  But he voted with the majority in Citizens United.

(I left in that last line about Citizens United because it finished Mystal's paragraph and it's where he was taking his post.  It's really beside the point here.)

OK, maybe Alito is alone on an otherwise free-speech friendly court.  But today's lone dissenter can be tomorrow's majority voice.  (See Scalia, Antonin.)  And it's never good to have a guy on the Court who just doesn't get it.

Especially when he's not altogether alone.

Because while the decision was 8-1, the majority was not.  Or at least not entirely.

Stephen Breyer, whose view of most Constitutional rights is, shall we say quirky (we shall), joined the majority opinion but felt constrained to write a concurring opinion pointing out that the First Amendment really isn't all that sweeping.

Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Forget all that broad language.  The Phelps family has First Amendment protection solely because this is a fact-bound opinion and the offensive folks walked a very fine line with great care.  Oh, and of course, it's only because they were picketing.  And on an acceptable subject.

The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

Breyer's trod this path before, most tellingly in an interview with George Stephanopolis where he explained (misquoting Holmes) that problematic speech (he was talking about planned Quran burning by another reverend lunatic) really isn't protected.  Here's part of what I wrote at the time adding a word I'd left out and quoting Stephanopolis.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

But, but, but (I'm sputtering here because that makes me so mad).

First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

See the difference?

Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that you should have known would cause great harm.  

But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.

And damned scary.

It was.  It is.  They are.  Both of them.  Breyer and Alito.

Nat Hentoff wrote a book called Free Speech for Me But Not for Thee.  He was, rightly, critical of that attitude.  There's a couple of guys in Washington ought to read it.

 

Disclosure:  I represented Shirley Phelps-Roper in a partially successful lawsuit challenging Ohio's funeral-protest law as amended precisely to keep the Phelps clan out of the state..

At the Very Least, Flinch.

[M]aking prosecutors flinch is -- is always a bad thing.

That's Neal Katyal, Acting Solicitor General of the United States, during oral argument in the US Supreme Court today.

The case is Ashcroft v. Al-Kidd.  Ashcroft is John, former Attorney General.  Al-Kidd is a guy who was picked up on a material witness warrant (allegedly at Ashcroft's direction) because (according to the warrant affidavit) he was planning to leave the country and he was needed to testify at the trial of Sami Omar Al-Hussayen on terrorist-related charges.  In fact, Al-Kidd was never called to testify.  He sued Ashcroft claiming that his detention was part of an illegal scheme to use the material witness law to pick up and hold and interrogate people about terrorism without probable cause in violation of the 4th Amendment.  Essentially, he says that Ashcroft & the Justice Department (Dave Barry might say that's a good name for a rock band) were using the material witness law as a pretext for unconstitutional preventive detention.  (I'm oversimplifying a lot.)

Anyway, the Ninth Circuit, in a divided opinion, said that Al-Kidd could sue Ashcroft.  In determining that he could sue, the panel slogged through the seriously troubling (or wondrously liberating, I guess, depending on your point of view) field of governmental immunity.  I talked about it a fair amount in the context of Pottawattamie County v. McGhee (see here), the case out of Iowa about whether prosecutors retain their absolute immunity from suits for money damages when they fabricate evidence in order to convict innocent people of crimes.  Here's part of what I wrote when the case settled.

Roughly, the prosecutors argued that if prosecutors become nervous about the consequences of making up evidence, there's no stopping point and they'll be afraid to prosecute anyone. We don't want to make them to flinch when making up evidence, because we want them to be more than willing to present evidence that isn't made up without flinching. Like I say, stupid.

Justice Sotomayor saw through it. During oral argument, she asked a lawyer from the Department of Justice who'd made that argument,

Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

You'd think this would be an easy call. Don't even have to adjust the general rule. All you have to say is that when prosecutors fabricate evidence, they aren't acting as prosecutors, they're acting as criminals: suborning perjury. But if you read the transcript of the argument, you'll see that nobody actually said that. And you'll see that it's far from clear how the Court would rule.

I mean, everyone agreed prosecutors shouldn't fabricate evidence. But whether they should be held liable for doing it? Wow, that seemed like a toughie.

Because Pottawattamie County settled before the Supremes could hand down a decision, we don't know what the Court would have done.  And, in any event, Ashcroft v. Al-Kidd doesn't have such clear lines.  

For one thing, it's haunted by the chimera of 9/11 and terrorism.  For another, Al-Kidd didn't spend decades behind bars.  The claim isn't even purely (his lawyer kind of dances around this in oral argument) that the government couldn't have held him.  Rather, it's that the motive for holding him wasn't the lawful motive it asserted.

And because Al-Kidd's claims weren't as clear and the government behavior wasn't as self-evidently wrong, the argument didn't have the same bite. But it had, again, Sotomayor making the same point.

Here's a bit of her back and forth with Katyal (referred to as General Katyal, because that's the way it's done).

          GENERAL KATYAL: . . . And, again, absolute immunity is important not for the prosecutor for his own sake or her own sake, but because ultimately that is what -- that causing -- damage liability will -will make prosecutors flinch the performance of their duties more generally.
          JUSTICE SOTOMAYOR: You don't -- you don't think there's a reason to make prosecutors flinch against willy-nilly -- that's not what I'm -- I'm claiming happened here, but if you take the point that you're raising, then prosecutors can out of spite, out of pure investigative reasoning, out of whatever motive they have, just lock people up.
          GENERAL KATYAL: Justice Sotomayor -
          JUSTICE SOTOMAYOR: And you're -- you're basically saying -
          GENERAL KATYAL: -- making prosecutors flinch is -- is always a bad thing.

Which is where we came in.

And which is so deeply and offensively wrong that I hardly know where to begin.

Except that even though it's wrong, the Supremes have long said that it's right.  Because if the prosecutor flinches, well then, there might be a social cost.  He might not pursue the bad guys as vigorously as he should if he's worried about getting sued when he lies and cheats and steals and does other things in violation of his oath and duty.

Which would be too damn bad.

Frankly, and Sotomayor got this in her Pottawattamie question, flinching's not enough.  But it's a start.

It would, perhaps, move us toward prosecutors with more integrity.  Or at least fewer with none.  Which would be an unalloyed good thing.

Make 'em flinch.  And then some.

More Killing to Come. And an Update

In case you haven't been paying attention, we're up to 42 executions in the Buckeye State since we opened the killing field in 1999.  That ties us with South Carolina for 9th place, one behind North Carolina.  There's almost no question that we'll easily pass both of them before spring is over.

Last year, as often recently, we were number two in the nation.  (We're Number 2! We're Number 2!)  Texas killed 17; we killed 8; Alabama was third with 5.  We were the only state to kill more in 2010 than in 2009.

We killed Frank Spisak two weeks ago.  Johnnie Baston is up next, March 10.  Three weeks ago, the good women and men in Columbus set nine more dates, taking us up through October.

That was then.  This is now.  New month, new dates.  We're into next year.

Reginald Brooks - November 15, 2011
Charles Lorraine - January 18, 2012
Michael Webb - February 22, 2012

If all goes as the state hopes and the supremes plan, we'll kill 10 this year.  Only the Christmas vacation stops it from being 11.  But there are 11 with dates.  Real dates.  Serious ones.

Will we kill them all on schedule?  Nobody knows, but probably not.  It's likely that one or more will get some sort of stay. But monthly murder.  Scheduled into next year.

Put aside the rest and there's still what I imagine of the room.

There they are.  Sitting around the table.  Picking dates to kill.

Even if you think it's a good idea, even if you favor the death penalty and favor it for these guys, even then, you've got to sense (if you think about it at all) that there's something macabre about the scene.   Don't you?

UPDATE

Yesterday, I wrote about Maureen O'Connor and how she really should keep recusing herself from anything involving the Brett Hartman case that she oversaw as Summit County Prosecutor.

I pointed out that she had signed the order setting an August 16 date for his murder by the state of Ohio, and that Hartman has asked to vacate the date because O'Connor had a conflict of interest.

This morning, along with setting the dates for Brooks, Lorraine, and Webb, the Court addressed Hartman's motion to vacate.

Granted.

New date set, O'Connor not participating.

Want to guess the date?  Yep.  August 16.

But this time they did it right.

Small comfort that.

The Supreme Court Giveth, and the Supreme Court Taketh Away

Really, what did you expect?

You thought they meant it in Crawford v. Washington when they said that the Confrontation Clause requires confrontation?  You thought that just maybe the Sixth Amendment, which is pretty much as clear as a bell on the point once you realize that "witnesses" means anyone whose statements might get used in court, means what it says.

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.

Oh, grasshopper.  You have so much to learn.

Crawford was a wonderful decision.  Along with Melendez-Diaz v. Massachusetts (which is itself hanging by a judicial thread) it gave real life to those words.  The point was simple.  It doesn't matter how seemingly reliable a statement is.  If it's to be part of the government's case, the defendant has an absolute right to challenge it by cross-examination.  Here's how Scalia put it in Crawford.

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

Of course, our prosecutors and our judges too often think just that way.  I've alluded before to the federal judge who turned down my request for an arson investigator because the state's arson investigator determined there was arson.  What need for another who'll simply agree?  The possibility that the state's expert might have been honestly (or dishonestly) wrong, or that there was even any point to trying to determine whether the state's expert was right simply didn't exist.

The test, you see, is precisely what Crawford rejected:

Are out-of-court statements reliable?

The following people's statements are always reliable:

• Children who accuse adults of sexually molesting them.
• Adults who say that children claimed to have been sexually molested.
• All people who accuse others of wrongdoing.
• Jailhouse snitches.
• Cops.
• Investigators.
• All people who work for the government and are not criminal defendants.
• All scientists except those hired by criminal defendants.

OK, I'm not really being fair.  There are exceptions.  I should have said that statements by those folks "are almost always reliable." And I should have added that reliablility is deemed indistinguishable from accuracy.  Which is really the problem.

Start by assuming that the Confrontation Clause is about testing reliability.

Can we trust that the report of what was said is accurate?  Can we believe that the speaker wanted to tell the truth?

Please, ignore for the moment the fatuousness of that trust and belief.  Just pretend.  If those things, then there's really no point in confrontation or cross-examination except to satisfy some technical requirement of the Constitution.  But the Constitution is a messy document with all those technical rules.  You know, government of limited powers.  Equal Protection of the laws.  Congress shall make no law.  The rights of the criminally accused.

Really, what matters isn't the Constitution's rules.  It's the Constitution's purpose.  And the purpose of the Confrontation Clause is to ensure that juries get to hear testimony deemed reliable, not to ensure that the defendant gets to challenge that testimony.

Or so, at least much of the time, the majority of SCOTUS thinks.

Hence, Michigan v. Bryant, as disingenuous a decision as the Supreme Court has produced in recent years.  And cowardly, did I mention cowardly?

Because when you're going to overrule precedent that's all of six years old, you probably ought to own up to it.  But in overruling Crawford (or at least a very significant portion of it), Bryant does no such thing.  

Here's the very short version of the facts.  Police are called to a gas station where Anthony Covington is lying on the ground by his car, a gunshot wound to the abdomen, and seemingly (here's a surprise) "in great pain."  Police questioned him for 5-10 minutes.  Covington told them that "Rick" shot him.  Covington died within an hour or so after EMTs arrived and took him to the hospital.  Richard Bryant was arrested, tried, convicted.  Covington's statements were admitted at the trial.

In an opinion by Sotomayor (for herself, Roberts, Kennedy, Breyer, and Alito), the Court explains that Covington's statements weren't testimonial because there was this ongoing emergency the police were concerned about and that was the "primary purpose" of the questioning.  And that's to be determined by - here's Sotomayor.

In making the primary purpose determination,standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such pri-mary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

Got that.  It's about the primary purpose of the questioning (the Court decided that a couple of years ago) and the way you figure out the purpose is by determining reliability.  Which is precisely (not approximately, precisely) one of the things Crawford said is improper.

And the statements, too, are not about actually prosecuting the guy.  After all, they come from a victim, who surely isn't just concerned with that.

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution.12 Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim’s physical state.

And, of course (though she doesn't mention it because it's simply not possible in a world where alleged victims and other government witnesses are always both truthful and accurate), that really covers it.

And yet, she says, we're following Crawford.  The linguistic legerdemain (a phrase I don't think I've had occasion to use since my days as a graduate student in English lit) is simple.  

We (that is, those who signed off on the opinion) agree that testimonial statements are covered by the Confrontation Clause.  That's what Crawford said.  We're just explaining another way of identifying statements that aren't testimonial.  

That Crawford  specifically rejected that other way?  

Pish tosh.  Don't bother us with details.

Except they ain't just .

Greenfield lays out the history and the problem clearly.  Sarah gets apoplectic.  And Orin Kerr just quotes chunks of Scalia's dissent.  Kerr sees that as a first step.  In fact, it's all that's necessary.  Here's the beginning and end.

Today’s tale—a story of five officers conducting suc-cessive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution. But reaching a patently incorrect conclu-sion on the facts is a relatively benign judicial mischief; itaffects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps asan intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peopleadopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.
. . .
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the proce-dures that our Constitution requires. And what has been taken away from him has been taken away from us all.

None of this should really be a surprise.  Frankly, the only odd thing is that Ginsburg dissented, too (though her position was that Covington's statements were dying declarations and, therefore, probably admissible but since that wasn't argued the court couldn't go there).

Thomas agreed with the result, but then he's always said that only statements formally made under oath are testimonial, and Covington wasn't under oath.  And Kagan sat it out.

For the rest?  The only question is whether they really believe the shit Sotomayor spouted.

My guess?  They do.  They want to, but they honestly do.

I'm not suggesting that they can't and won't lie when it suits them.  I'm saying that they're so divorced from the real world, where real people live and act from real motives, that they believe their own foolishness.

As Sarah repeated a couple of times in her apoplectic rant.  What fool would think that one likely reason a  gunshot victim would identify his assailant to the cops is so that the shooter could get rehabilitated?

That dimwit can only exist on a high court.