Three for Three

Clarence Carter is due to be murdered by the State of Ohio in five days.

Governor Kasich could have chosen to save his life.  He could also have chosen to save the lives of Frank Spisak and Johnnie Baston.  He chose, instead, to ensure that they would be killed.

Today, he made the same choice about Clarence Carter.

04.07.11, Carter Clemency

Carter may or may not have intended to kill Johnny Allen.  Kasich's intent is clear, though he pretends to have no blood on his hands.

I'm not religious, but if I were, on whose soul, exactly, would I be asking god to have mercy? 

American Exceptionalism?

In the first sentence of the Declaration of Independence, Jefferson gave a nod to 

a decent respect to the opinions of mankind.

He didn't say we should necessarily bow to those opinions.  In fact, he was saying we should explain the reasons for declaring independence so that the world would understand.

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

But the point that the world matters, that's got some independent heft. Not that we should necessarily bow.  The majority, after all, isn't always right or moral.  But attending? considering?  Those things make sense.  Always.  To ignore them is to value ignorance, it's to pretend I'm right because I say so is a logically compelling argument.

So take a look at this map.

That's a picture of the world in 1961.

The countries in various colors had, by that time, abolished the death penalty, mostly abolished the death penalty, or just stopped killing people.  The different colors indicate which is which.

Same thing, but 2010.

You'll notice there's been change.  

You'll notice it even more if you go the way cool original that includes a key, allows you to check out the changes at each 5 year interval, and lists each change so that you don't have to wonder, say, which that little country in the middle of wherever is.  Oh, and you can zoom in for close ups.

A quick summary in bullet points.

• The world has turned sharply toward abolition.
• The US has not.
• The US is now alone in the Western Hemisphere.
• The US is now almost alone in the Northern Hemisphere.
• All of Europe, South America, Australia, and significant portions of Africa and Asia are now abolitionist.
• We're not.

Does it matter?

It tends to support, I suppose, the theory of American Exceptionalism either in a good way or a bad one depending on your point of view.

And consider a real piece of American originalist thinking.

[A] decent respect for the opinions of mankind.

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

Amnesty's full report on the status of the death penalty, worldwide, in 2010 is at this link.

H/t for the chart to Equal Justice USA.

Hot Off the Presses

Ohio's current death penalty law took effect on October 19, 1981.  It's been amended since then to make it possible to kill more people, but that's when it began.

If you've been asking yourself

Gee, where can I get my hands on a book that describes how the law works and tell me about everyone who's been sentenced to death under it?
I want to know about the crime and what's going on with the appeals and just how darned long it's been since the guy got sentenced.  And really, I want to know about all of them - the ones who've been killed and the ones who just died and the ones who got off the row because some lame-brain judge chickened out or because our governors haven't got the balls to kill.
And of course the ones we're not killing nearly fast enough.

Well, the Ohio General Assembly wants to know, too.

So there's this law that requires the Attorney General to prepare a report every year.

Give us all the dirt, directed the General Assembly.

And every year, right at its statutory due date of April 1, the AG does just that.

The statute requires

(1) An annual capital case status report prepared pursuant to division (B) of this section shall contain all of the following information that pertains as of the thirty-first day of December of the calendar year covered by the report to each individual who was sentenced to death pursuant to sections 2929.02 to 2929.04 or 2929.06 of the Revised Code for an aggravated murder committed on or after October 19, 1981:
(a) A citation to and brief summary of the facts of each case in which the individual was sentenced to death pursuant to sections 2929.02 to 2929.04 or section 2929.06 of the Revised Code for an aggravated murder committed on or after October 19, 1981;
(b) A statement as to the individual’s present legal status;
(c) A summary history of the individual’s legal actions to vacate, reverse, or otherwise be relieved from the sentence of death described in division (C)(1)(a) of this section, including, but not limited to, motions to vacate the sentence of death, appeals, petitions for postconviction relief, and petitions for habeas corpus relief filed with a court of this state or a court of the United States under section 2929.05, 2953.21, or another section of the Revised Code, the Ohio Constitution, federal statutes, or the United States Constitution;
(d) Any other information that the attorney general determines is relevant, including, but not limited to, a tentatively scheduled date for the execution of the individual’s sentence of death in accordance with section 2949.22 of the Revised Code.

This year, including the cover, the Table of Contents, and a glossary at the back, the thing is a hefty 354 pages.  I confess, I haven't read them all.  I've read enough, though, to recognize that it's remarkably informative in its fashion.

• Want to know which men had been removed from death row because of judicial determinations that they had mental retardation? There's a list.
• Want to know which of the men on death row cheated the executioners by dying first? There's a list.
• Want to know who had made requests for DNA testing to the state courts? There's a list.
• And if you want to know how many days it was from the day Lawrence Reynolds was sentenced to die until he was killed, that's there, too.

There's a grim fascination in all of this.  And if the information is helpful to you, it's neatly collected.

Of course, there are a couple of errors I noticed, but that's a given in any almanac.

I suppose you can buy a bound copy from some state office somewhere if you want to display it on your coffee table.  Or you download it here from the AG's website. Or you can just read it here.

2010 Capital Crimes Report

Disingenuousness and the Death Penalty

One day I was standing up in the Ohio Supreme Court arguing a death penalty appeal when now-retired Justice Andy Douglas said something like,

Of course, you think that the death penalty is always wrong, don't you?

His point was that perhaps they shouldn't take me seriously when I said that the death penalty in this particular case (whichever it was) shouldn't have been imposed.  I acknowledged the general point (which had also been made in the briefs, and went on to explain why even if you're going to have a death penalty, and Ohio clearly had one, this particular guy shouldn't be executed.

I am an abolitionist.  I don't hide that behind a curtain. I don't think we should be in the killing business.  Period.

It's ugly, this killing people because by God they deserve it.  And I've suggested repeatedly that if we're going to do it, perhaps we ought to own up to it.  Back in September 2009, making a point I've made at other times and in other settings, I wrote this.

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've reprinted those paragraphs twice (now thrice) since then. 

I keep coming back to it not merely because of the grotesquerie but also because it's making a serious point.

We want to kill, but we want to pretend we don't really want that. So we dampen the cries from the openly vengeful, you know, the ones who say,

That's too peaceful.  He should die the way he made ____________ die.  He should suffer like she/he/they did.

And instead we say,

Oh, no.  He should die, but it should be humanely, peacefully, quietly, prettily.  We must kill, but it must be a nice killing.

Which, when you get right down to it, is dishonest and stupid.  And yet, do I really think we should bring back the guillotine?  Or the crucifix?  Or the myriad other truly horrific ways we have, under color of law, done each other in?

I was speaking with a man who was about to become a new client.  He was going, in a few minutes, to be sentenced to die, and I was about to be appointed to represent him on appeal. 

Is it going to be the chair, he wanted to know, or can I get lethal injection?

His concern was real.  He didn't want to be killed at all, but if it was going to happen, he didn't want it to be horrifically painful.  Hard to blame him.

One of my, er, loyal readers wrote me the other day asking what I thought of the latest screed by Bill Otis over at Crime and Consequences, "The Shake-and-Jive on Lethal Injection."

Otis, of course, is a committed supporter of state murder (a term he, understandably, doesn't use).  And he's been offering variations on this same argument for years.  Calls for a moratorium on executions, advocacy of LWOP as a sentencing option/alternative, challenges to execution technology and methodology are, he says, all stalking horses for abolition.

We abolitionists, he says, don't give a rat's ass about making the death penalty work better or keeping bad guys confined for life or making executions more humane.  All we want is to stop them.  The rest is just a cover because we can't sell abolition.

Put aside, for a moment, the question of whether we actually can sell abolition.  (Abolition in New Jersey, New Mexico, Illinois, and New York all seem to indicate that Otis is wrong about that claim, though he's right that even where we don't have a death penalty there is substantial polling data support for one.)

His broader claim isn't entirely false.  Oh, there are advocates of a moratorium who really do want to pause while we ensure that the system works as it should - getting 100% accuracy at killing only those who deserve it and not those who don't.  And there are folks who think LWOP is a really wonderful sentence on its merits, not merely as an alternative to killing.  And some people are fine with the state killing folks, but really want the deaths to be peaceful and painless.

But then there are those who'll throw any monkey wrench they can into the machinery.  Just stop the killing.  Now

And, generally speaking, it's that last group, the abolitionists, who are leading the charge.

So Otis isn't altogether wrong.

But he's far from right.

I may hope, and even expect, that a moratorium will turn into abolition because if you're going to stop the killing while you make the system work perfectly you'll likely learn along the way that the system cannot be made to work perfectly (or even particularly well).  But I'll be happy with a moratorium even if the result is just to make some small efforts toward insuring that we make fewer mistakes.  Every time we don't murder someone, that's a win.  Every mistake we don't make is a good thing.

Same with LWOP.  It's a horrific punishment.  Death in prison, I've called it on more than one occasion.  More than one person on the row has made clear a preference for execution.  But it's not killing by the state.  For an abolitionist, that's no small thing.  Is it perfect?  No.  Rules can change; laws can change; what today seem to be facts can, if not exactly change, turn out not to be facts.  And of course, people can change.  But if state murder is wrong, and if it can't be undone, then yes, LWOP.  As an alternative, it saves some lives.  As a replacement for killing it saves more.

And then there's lethal injection.  And the whole thing about being gnawed by rats.

The Eighth Amendment, whether Otis likes it or not, prohibits "cruel and unusual punishments."  That probably makes the rats in Yankee Stadium thing unconstitutional.  But it also, and more broadly, means that execution technology and methodology matter.  And it reflects something about what we as a society, if not every individual or even every bunch of us, happens to believe.  And you can certainly argue about what is cruel and unusual and what the framers might have meant or how we should apply that prohibition today, but it's there.  And if I can use it to save some lives, I will.  And if I can use it to reduce the chances that those we do kill die in horrific and horrifically painful ways, I'll do that, too.  Without qualm or reservation.

If you're going to kill my client, by god don't torture him to death.  And if there's a way to reduce the likelihood of torture, take it.

There's no lie here, no trick.

A Lucas County Prosecutor who tries many of the death penalty cases in Toledo also sometimes teaches a class on the death penalty at the local law school.  He's invited me in, a couple of times, to offer another perspective on how the system actually operates.  One time, I stood up after he introduced me and began this way.

See, here's the thing.  He's trying to get my clients killed, and I want to save their lives.

The students laughed and gasped at the same time.  Many of them looked at their professor/prosecutor who nodded and said,

He's right.

The states that kill, like Bill Otis, think it's really important.  And if it's important enough, then there's no real reason to observe the niceties.  After all, the only truly botched executions in the last 100 years or so have been Willie Francis and Rommell Broom.  You know, the guys who didn't die.

And so the states are willing if not eager to use untested drugs, to adopt procedures without safeguards, even to smuggle drugs into the country.  I mean, it's all in the service of a greater good.  The ends, killing the clients, justify the means.

Except that I was taught they don't.

Then again, I don't pretend I'm not an abolitionist.

It's similar to what I told Andy Douglas, I oppose the death penalty in all cases.  But if you're going to have one, you should do it right.  And be open about it.

The real dishonesty is in the pretense that we have a system that doesn't even deserve a second look.

Even the Judge Couldn't Take It

The mistrial, I'm sorry to say, was the shocking part.

Dontrell Deaner was facing murder charges in DC Superior Court where you maybe can still say 

Fuck y'all

to the judge after you get sentenced.  Nautrally, he had a lawyer, one Josephy Rakofsky.  I don't know Rakofsky, never heard of him before.  But he's got an on-line profile at lawyersearch.net where he claims three areas of practice.

Criminal Law

Dui and Traffic Law

Malpractice Law & Negligence

Which is rather a lot for a guy who's been out of law school just since 2009.  Per Keith Alexander in the Washington Post:

Rakofsky’s Web page on lawsearch.net says he specializes in criminal law, DUIs, traffic law, malpractice law and negligence. He lists his firm’s address as 14 Wall St. in Manhattan, but the New York state attorney registration offices have no record of Rakofsky being licensed in New York. Rakofsky, who received his law degree from Touro College in Brooklyn, N.Y., in 2009, has been licensed in New Jersey since April 29, 2010.

His lawyersearch profile tells us more.

Mr. Rakofsky has worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment. Following graduation from law school, he worked for one of the biggest civil litigation firms on the east coast and has worked for boutique white-collar criminal defense firms in Manhattan. During law school, Mr. Rakofsky interned at the Legal Aid Society (in Suffolk County). Prior to studying law, Mr. Rakofsky studied Economics and interviewed at a well-respected investment bank with branches all over the world.  Prior to law school, Mr. Rakofsky earned a Bachelor of Science in Biology, concentrating his attention on DNA.

Impressive, huh?  As Jamison Koehler, who led me to this story, notes, adding the italics,

[H]e “interviewed at a well-respected investment bank with branches all over the world."

Wow. Of course, that was before he went to law school.  We can be pretty sure if he'd been hired by that bank he wouldn't have gone to law school at all.  So maybe the proper way to put it is that 

a well-respected investment bank with branches all over the world refused to hire him.

Still, he has (if his bio is to be believed) worked both for "one of the biggest civil litigation firms on the east coast" and for "boutique white-collar criminal defense firms in Manhattan."  And if you note the plural in that last part, you'll figure that in the two years since law school he's had jobs with at least three firms and had time to go into private practice with his office in a state where he's not licensed.  Which is pretty impressive as an indication that he can't hold a job.

And speaking of holding a job, that's where this tale is going.

See (and to return where we began), somehow Dontrell Deaner's family ended up hiring Rakofsky f

to represent Dontrell in the murder case.  Of course, since he isn't licensed in DC, Deaner hired local counsel, the wonderfully named Sherlock Grigsby, to assist him.

It seems, though, whatever Sherlock did, it wasn't enough.  The Post tells what happened.

A D.C. Superior Court judge declared a mistrial Friday in a 2008 murder case and allowed the defendant to fire his New York-based attorney, who exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before.
Judge William Jackson told attorney Joseph Rakofsky during a hearing Friday that he was “astonished” at his performance and at his “not having a good grasp of legal procedures” before dismissing him. 

Part of the problem was that Deaner wouldn't listen to Sherlock.

After Friday’s hearing, Grigsby said that Deaner’s family hired Rakofsky and that he and Rakofsky “disagreed more than a couple of times” on how to proceed with the case. “He was the attorney of record. I would offer what I thought was the best advice, and he wouldn’t accept it,” Grigsby said.

Let me be clear.

This does not happen.

Oh, not the part about defense counsel disagreeing with each other.  Or the part about lead counsel being grotesquely incompetent.  Sadly, I have to report that that happens with some frequency.  And it's not unusual for judges to get pissed off at incompetent bozo lawyers who screw up trial procedures.  Especially when they openly disagree with co-counsel and piss off the client.  But taking them off the case?  During trial?  Declaring a mistrial?

That does not happen.

It should probably happen more.  We'd save some retrials.  More, we'd avoid having some people getting convicted who shouldn't have been and then not getting relief because the reviewing standards for measuring effective assistance of counsel are so low.

Of course, it turns out Rakofsky wasn't just over his head and wasn't just incompetent.  He was, it seems, also dishonest.

What angered Jackson even more was a filing he received early Friday from an investigator hired by Rakofsky in which the attorney told the investigator via an attached e-mail to “trick” a government witness into testifying in court that she did not see his client at the murder scene.
According to the filing, Rakofsky had fired the investigator and refused to pay him after the investigator refused to carry out his orders with the witness. The filing included an e-mail that the investigator said was from Rakofsky, saying: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.” The e-mail came from Rakofsky’s e-mail account, which is registered to Rakofsky Law Firm in Freehold, N.J. 

We get to try and confuse the government's witnesses on cross-examination.  We get to try and make them acknowledge that they didn't see and couldn't have seen what they just claimed to have seen.  We get to try and get them to say that black is white and down is up.  But we don't get to screw with the evidence and try to trick witnesses into committing perjury, which is pretty much what the investigator seems to be saying Rakofsky wanted him to do.

As I say with some frequency here, I have no idea whether Deaner did the things with which he's charged.  I don't know, either, whether even with a terrific defense a jury would be likely to find him guilty.  The evidence is what it is, and the facts are what they are.  But although the judge is appointing Deaner a new lawyer (what about Sherlock? inquiring minds wonder; most judges in this bizarre situation would make him continue with the trial), it will likely be a year or more before he goes back to trial.

And he'll be spending that year in custody.

I'm not sure there are any grand lessons to be learned from this fiasco.

Don't hire a lawyer who's been out of law school for less than two years for a murder case.

Yeah, that's probably one.

Don't hire a lawyer based on his paid blurb on a legal advertising site.*

That's another.

But really, anyone who couldn't figure those out going in isn't likely to take them away from this sad story either.

I'd add something about getting what you paid for, but I wouldn't be shocked to learn that Rakofsky charged megabucks.

So I guess there's just this, and it's not a lesson at all, just a fact.

For whatever reason, Judge Jackson wouldn't, ultimately, let Deaner get fucked by his lawyer.  

That's no small thing.

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

*Out of curiosity, I did a search through lawyersearch for criminal defense lawyers in Toledo.  They had 6 pages of listings (probably around 60 names, though I didn't count).  One was paid and prominently displayed on each of the 6 pages.  They had a couple of the top criminal lawyers in in Toledo listed.  Most of the best weren't listed at all.  Some of those who were listed don't do any criminal defense.  At least one of the listed lawyers died a few years ago.

For the record, I''m not listed.  Also for the record, that doesn't sadden me.

Probably Not

Those of you who pay attention to this sort of thing will have noticed that there's been some serious discussion in the blawgs recently about how (if at all) to define "beyond a reasonable doubt" and what should follow when juries can't agree about it.  (See Gideon and Gideon, Greenfield, Horowitz and Horowitz, Kennedy, and probably several others.)

Then Orin Kerr and Greenfield took on "probable cause."  Kerr said it was good to leave it undefined and "unquantified" so that judges could violate the basic requirement that warrants stand or fall based on the information sworn to in the affidavit.  (Lawyers like to say "within the four corners of the affidavit" because that reminds us that affidavits are supposed to have corners.)

By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information.

Greenfield knows better than to encourage judicial voodoo and ESP to take the place of lies facts sworn to by officers who seek warrants.  Besides, he says, we all know what "probable cause" means.

Probable.  More likely than not. Nothing to see here, right?

Except, well, not to judges.  I wrote this last year.

Now, if you're not a lawyer, you might think that probable cause means something like "probably."   You know, there's "probable cause," so it must be "probable."  The courts (and they're the ones who decide these things, after all) take a different view.  

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability."  There's a chance that the Sun will explode tomorrow ending the very existence of our planet.  It's really unlikely.  Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years.  But, hey, there's a probability.  Just a verrrry teeny one.  Probable cause.

So there you have the absolute key to the Fourth Amendment.  When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.

Scott wants to go with Brinegar which actually makes sense.  But that ain't the law as the courts read it.

And it sure as hell isn't the law in Ohio's First Appellate District.  The case is State v. Cronin, and it actually turns on just what can be probable cause.  

Cronin was driving through Cincinnati just after midnight when he did not run a red light.  Ohio Highway Patrol Sergeant Robert Hayslip, saw Cronin enter an intersection while the light was yellow (which is legal) or maybe even green.  The light turned red or maybe yellow, perhaps before Cronin got all the way through the intersection but perhaps not, and legally it doesn't matter because (once again) you can enter the intersection while the light is yellow (and certainly when it's green) in Ohio.

Hayslip pulled Cronin over for running a red light.  Which, as Hayslip observed, he had not done.

What followed was a couple of failed field sobriety tests and charges of driving under the influence and running a red light.  The trial court suppressed the evidence concluding that the evidence of the DUI was a product of an unconstitutional traffic stop. The court of appeals summarized the trial court.

“Therefore,” the court concluded that Cronin “did not run a red light, and there was no reasonable articulable suspicion to stop [Cronin’s] vehicle.”

So the state of Ohio appealed because, why the hell not.

First, says the court of appeals, the trial court got it wrong.  A traffic stop requires more than reasonable articulable suspicion.  It requires probable cause.  OK, that's looking good.  I mean, if the trial court found that the stop wasn't justified even by a measure less than probably not probable cause, then surely it isn't justified by probable cause itself.

How foolish you are to think that.

Probable cause can exist even if the officer incorrectly determines that a traffic violation has occurred or if the officer misunderstands the law that the driver is allegedly violating. The test is whether an objectively reasonable police officer would believe that a traffic violation has occurred based upon the totality of the circumstances. This is an objective standard, not a subjective one.
The proper focus is not on whether a defendant could have been stopped because a traffic violation had in fact occurred, but on whether the officer had probable cause to believe an offense had occurred. The fact that a defendant could not ultimately be convicted of failure to obey a traffic signal is not determinative of whether an officer acted reasonably in stopping him for that offense. “Probable cause does not require the officer to correctly predict that a conviction will result.”
Here, Sgt. Hayslip, without the benefit of a digital review of the events, testified that when the traffic-control signal “turned red,” Cronin’s vehicle was in the intersection. This observation, made by an experienced law-enforcement officer, provided objective evidence from which a reasonable police officer could have concluded that a traffic violation had occurred. When, as here, an officer personally observes what he reasonably believes to be a traffic violation, the officer has probable cause to initiate a traffic stop. The trial court erred in reaching its legal conclusion that Sgt. Hayslip lacked an appropriate justification to stop Cronin’s vehicle.

Let me summarize that (by the way, I omitted the footnote case citations).

Probable cause is an objective test.  If the Hayslip had an objective basis to believe that Cronin violated the traffic law, then he had probable cause to stop the car.  Hayslip's testimony indicated that he saw Cronin enter the intersection while the light was yellow.  Therefore he had probable cause to stop Cronin for running the red light.

That is, based on observing that Cronin did not run the red light, Hayslip had probable cause to stop Cronin for running the red light.

Because, after all, probably not.

Did I mention that the opinion was unanimous?

The Gray Lady Blows It Again

The Newspaper of Record???

Hah!

Last year, it was Eric Turkewitz who punked the Times on April Fools Day, brilliantly convincing them to run the story that he had accepted a position as the official White House law blogger.

Really, you'd think they'd have learned something from becoming a national laughingstock.

Maybe they did.  Maybe they learned that incompetence is its own reward, because their fact-checkers blew it once more.

This time, it wasn't Turkewitz, though.

Mirriam Seddiq has the story.