The Greatest (?) Show on Earth

They start picking the jury today. And no, I'm not going to do daily reports on the trial.

But that it's now underway, that's worth noting.

At a rough guess (and I have no inside information, but given what we already know), Cuyahoga County has already invested over a million dollars in this thing what with the extraordinary fees and expenses allowed the defense and with the money the prosecutors and police have spent.

And more to go as we look at a couple of months of trial.

There one place where capital cases fairly often cost that much at trial: Federal court (your tax dollars at work, perhaps O'b could appease the Republicans by cutting the budget for capital cases - nah, wouldn't work). Then there's just the truly unusual case.  And Anthony Sowell's is it.

Eleven (11!) bodies allegedly found in and around his home in Cleveland.  11 counts of aggravated murder.  74 other charges.  As many as 132 witnesses, including the Mayor and his wife.

Carnival in Cleveland, I called it when I first wrote about the case.  The name is still apt.  So is the danger.

Sowell's lawyers want a change of venue.  The case has so saturated county awareness, they say, that it will be impossible to find a fair jury.  The judge intends to try anyway.  And today's Plain Dealer lays it out this way.

The case, which has cost taxpayers more than any in the county's history, called for an unprecedented 1,000 prospective jurors to be summoned in recent weeks in an effort to find a panel of 12 who have been least affected by the continuous news coverage.

Note the words, "least affected."  Not unbiased.  Not without having set opinions.  Sure, that's the media language, not what the judge said.  But it points to an ugly truth in these cases.  As long as they can find 12 jurors (and however many alternates they decide to seat) who'll say without breaking out in giggles or shouting "Heil Hitler" that they can be fair, that's good enough.

And there will be, almost surely, that many.

The standard is either fairness or a semi-convincing lie.

And so, they'll spend probably a couple of weeks picking a jury.  And then a mind-numbing couple of months of horror.

A circus.

For a pound of flesh the state may never collect.

I don't know if Anthony Sowell did what they say.  I don't know if he did all of it, some of it, or none of it.  I don't even know if it all happened.  I don't know if he'd have entered a guilty plea if they'd taken death off the table.  Here's what I know.

If he did those things, we'd be as well served by locking him up for the rest of his natural life as we would be by locking him up for the rest of his natural life or until the courts say we can murder him, whichever comes first.

And we could do it with far less fanfare.

And with the circus elephants kept at bay.

What Would Kevorkian Think?

So Jack Kevorkian is dead, and not by his own hand.

There's much to say about him, much that's interesting and intriguing.  A good biography would read, in many respects, like an absurdist novel.

• Mad scientist becomes hero/villain social activist.  
• Media fascinated.
• Tabloids go crazy.
• Goes to prison.
• Changes, in many respects, American culture.

I can see the movie now.

But that's not what I want to talk about.  I want to talk about the death penalty.

Jack Kevorkian influenced that, too.

Put aside his interest in organ harvesting and the widely accepted view that his assisted suicide machines might be 8th Amendment friendly.  The connection between assisted suicide (any kind of suicide, really) and executions makes the government uncomfortable.  We don't do that, you understand, officials say with straight faces while insisting that the folks on death row who voluntarily give up their appeals must be permitted to be killed as they wish.

It's not assisted suicide, because they're not committing suicide.  They're being killed at our insistance - but on our schedule.  Though with their willingness and support.

If they try to commit suicide, after all, we'll stop them if we can, fix them up, and then kill them ourselves.  If we accepted suicide, we'd just let them die.

So no, they can't kill themselves.  They can't even help.  We have to do it all.

And if they want it, too?  Well, that's just a coincidence.

Certainly, they deserve the dignity of being allowed to choose not to fight, to choose to support the sentence, to ask the jury for it, to oppose judicial intervention.  That's their right as humans.

But they don't have the right to kill themselves.

Only we have the right to kill.

Their only right is to be killed.  By our hand.

Something's wrong with this picture.

WWKD?

He Speaks, We Kill

There's a long history to the idea of having the condemned speak last words.

Here's the beginning of a law review article by Kevin O'Neill ("Muzzling Death Row Inmates: Applying The First Amendment to Regulations that Restrict a Condemned Prisoner's Last Words," 33 Ariz.St.L.J. 1159 (2001), not available for free, I'm sorry to say). 

Nathan Hale stood on the gallows in 1776, awaiting execution by his British captors, he was asked whether he had any last words. His dying speech, brief but eloquent, resounds through history: "I only regret that I have but one life to lose for my country."

The privilege to utter a last dying speech in the moments just before one's execution is a freedom that is deeply ingrained in Anglo-American history and tradition. Visible as early as 1388, the privilege was consistently honored at English executions throughout the sixteenth century and took root on this side of the Atlantic in the seventeenth century. It was available to everyone: from kings, queens, and aristocrats to the poorest of the poor. Indeed, the privilege was extended to individuals conspicuously bereft of most rights: including "witches," slaves, and prisoners of war. Even a Tennessee lynch mob saw fit to afford its victim the right to deliver a last dying speech.

The general hope, even the expectation, was that the condemned would speak words of remorse, or repentence, would note the error of his (mostly his, sometimes her) ways and warn others to be better.

The soul of the condemned might then be saved, the community comforted in the knowledge that they had killed the right person and achieved the saving of (mostly) his soul, and the members of the community would be chastened and avoid sin/crime/whatever.

Sometimes that happened.  Sometimes, as with Nathan Hale, the last words were of defiance.  Sometimes. . . .

Well, it could get messy.  But maybe that's fair when you're busy killing people.

Polly Klaas was 12 years old when Richard Allen Davis entered her bedroom where she and some friends were having a slumber party.  He kidnapped her, murdered her, and according to the jury attempted to sexually assault her.

When the jury returned its verdict finding Richard Allen Davis guilty of all the charges against him, AP reported that he

turned to the television cameras and raised the middle fingers on both of his hands.

And just before the judge sentenced him to die, Davis told the court that he didn't sexually assault the girl.

I would also like to state for the record that the main reason I know that I did not attempt any lewd act that night was because of a statement the young girl made to me while walking her up the embankment: ''Just don't do me like Dad."

The Polly Klaas story, from the moment she was kidnapped through Davis being sentenced to die was tabloid fodder for the non-tabloid media.  And the sentencing apparently scared the Ohio Department of Rehabilitation and Correction.

A year or so later, and before the State of Ohio got back into the killing business after 36 years, the good people at the Department of Rehabilitation and Correction, feared that someone they would kill might take a lesson from Davis and say something offensive at the end.  You know, remorseless killers and all that.

So they cooked up this plan to deny the condemned the opportunity to say his (mostly his) last words.  Instead, the protocol (and I don't have a copy - or any of the early paperwork handy) required that several hours before the killing, guards would give the guy who was gonna be killed a legal pad and a pencil.  He could write down whatever he wanted as last words (assuming literacy, but hell, so what if he wasn't).
Then, after he was dead, the warden would read some, all, or none of the statement to the press.  If he wanted, the warden would edit the statement.

Really, who would mind?

The answer is that the ACLU of Ohio would mind.  And it's then-Legal Director, the same Kevin O'Neill who later wrote that law review article I quoted a bit of, sued.  No court ruling.  The state caved and the case settled.  Last words, spoken by the condemned, restored.

At the time of the lawsuit, I was quoted in the Columbus Dispatch saying that the state was trying to "pretty up" the process but that it was, no matter how they cosmeticized it, killing.

Since then, they've killed 45 men here in the Buckeye State.  Every one has been offered the opportunity to speak into a microphone and have his last words reported by the media witnesses and heard by whichever other witnesses were present.

Which is as it should be.

All of which is prelude to this story by Andrew Welsh-Huggins of the AP.

Kenneth Smith is scheduled to die July 19 for his involvement in the slaying of a husband and wife in their Hamilton home in 1995 during a robbery. Since his incarceration, Smith, 45, had his larynx removed and uses an artificial voice box.
For the execution, the state will raise the head of the gurney where Smith will lie about four inches and let him keep one arm free to make it easier to use his voice box, according to an affidavit by Edwin Voorhies, South Regional Director for the Department of Rehabilitation and Correction.
It would be the first time an Ohio inmate has not been completely strapped down since the state resumed executions in 1999.
Smith will be able to use his free hand "to make a final statement, to help clear his throat, and to do other things which his condition requires," Voorhies said in the affidavit filed Friday in federal court in Columbus.

It's clearly right.  Smith, if they kill him, has a right to speak his last words.

And yet there's something disturbing about the plan. 

It's something akin to those last minute efforts to save the guy's life so we can kill him.  (See, e.g., Lawrence Reynolds.)  But it's not quite that.  That, after all, betrays the raw cynicism of the killing machine.  This betrays its grotesqueness.  

It's not that they're planning on killing someone with a disability.  Hell, you could make an argument that it would violate the ADA to refuse to do so.  And it's not exactly that they're accommodating the his disability.  That's the ADA again.

No, it's that the disability becomes, in a sense, the centerpiece.

We're no longer talking about murdering Kenneth Smith or even how to murder him.  Instead we're talking about how to help him speak from a table in the murder room.  We need to let him do it, but it's a distraction.

The folks who want him dead understand that.  All they're interested in is the killing.  

And while it's important that he gets to speak, it's as important, maybe more, that we focus attention on the fact that we're helping him speak only so we can murder him.

His words matter.

The killing matters.

The mechanics of his speech? 

That's a distraction.

His words count.  The te

Because Even the Innocent Are Guilty

I talk a fair amount about innocence here.  Mostly it's about how this guy was convicted and now there's some substantial evidence of innocence that the system doesn't want to look at because

• Hey, we don't make mistakes.
• Hey, mistakes happen but they're rare and who really knows and we can trust the jury.
• Hey, easy for him to say, but the evidence at trial was overwhelming.
• Hey, maybe he's innocent, but we can't just go and reopen cases just because people say we made mistakes.
• Hey, finality.  You know, finality.  
• Hey, get over it.
• Hey, not good enough.

Or some variant that I missed in that litany.
Sometimes it's about how we actually let the guy out of prison but still won't give him his life back or any recompense for the years. 
But occasionally its other things.
Consider the Alford plea.
The name comes from North Carolina v. Alford.  Alford was facing the death penalty for a murder he said he didn't commit.  His lawyer investigated, concluded the evidence was overwhelming, and convinced him to plead guilty to second degree murder which took death off the table.  Alford entered that plea but said, under oath and while he was pleading guilty, that he was in fact innocent.  The Supreme Court said the plea was valid.
Alford pleas can be useful.  The factually innocent client facing overwhelming evidence of guilt (it happens) is offered a good deal but the requirement is a guilty plea.  Sometimes the client wants to  take that deal, which can be a wise choice, but will not lie and say he's guilty.  Or cannot, for one reason or another, admit guilt but the deal is too good to pass up.
See, there's a problem though.  Someone raised it the other day on a criminal defense listserv.
Client took an Alford plea, swore he didn't commit the crime but that he was pleading guilty to avoid the risk of a much worse sentence should he be found guilty as charged.  The judge accepted the plea but then gave the harshest possible sentence because the client hadn't accepted responsibility for the crime.  After all, if you don't accept responsibility, how can you be rehabilitated?
But wait.
How do you accept responsibility for a crime you didn't commit?  How do you show remorse for actions you didn't take?

That's always a problem if you go to trial.  But when you plead guilty, you're supposed to be acknowledging all that.
Except, of course, if you plead guilty while saying you're innocent.
And of course, if you happen to be innocent.
As it's a problem with pleas, so it can be a problem with probation (or Ohio's current version of probation - community control).  Sex offenders, for instance, are commonly required to attend and complete sex offender therapy classes.  A requirement of those classes is admitting and taking responsibility for what you did.  If you didn't do it, you can't acknowledge and take responsibility.  So you flunk the class and may have your probation revoked.
It's where this started off.  The system isn't interested in innocence.
Oh, sure, there's that thing about how it's better that ten (or a dozen or a hundred or whatever your particular source for the maxim chose) guilty people go free than that a single innocent person be convicted.  But you know, we (that's the generic "we" rather than me and at least some of you reading this) don't believe that.
Our commitment is to guilt.  Charge someone, anyone, with something.  He's probably guilty.  Hell, we're all guilty of something, lots of things, really.*   Lock everyone up.  Then we'll all be safe from them.  (Though if we lock everyone up, we'll be locked up with "them." But I digress - or maybe not.) 
And so it is that, as Scott Greenfield explains, untested and hotly disputed allegation qualifies not just as evidence but as proof beyond question.  And as Brian Tannebaum revealed, there was no need to bother actually learning if that funny looking stuff was marijuana before arresting Robin Brown in front of her customers, taking her to jail, doing a body cavity search, and the like.  And when it wasn't weed?  Hey, shit happens.  We didn't convict her, so that proves the system works.
There's nothing much new in any of this.
A couple of hundred years ago, we set up a system of limited government and refused to ratify the Constitution without a promise of a Bill of Rights.  Why?  Because at the time, we were more scared of the government than we were of each other.**  Turn that on its end, make us more scared of each other, and you can see how we've lost the thread.
Because there's always some risk.
He might have done it.  Or wanted to.  Or might yet.  Or if not that, then something.
So what's the harm.
Innocence?  Not since they ate that fruit in the Garden of Eden.
Former Attorney General Ed Meese once said it all.
If a person is innocent of a crime, then he is not a suspect.
Throw the book at 'em.
Serves 'em right.


--------------------
*Mirriam Seddiq's great tag line

We are all not guilty of something. . .

is true, of course.  But it takes a criminal defense lawyer (or maybe a theologian) to think it matters. 
** Actually, that's more scared of the federal government.  The Constitution did almost nothing to regulate the state governments, but the states were smaller then and people (by which I mean people who counted, by which I mean white, male, property owners) felt like they could control their states to ensure that people who counted (by which I mean white, male, property owners) wouldn't be abused.