Next Verse, Same as the First

Really, it gets tiresome asking the same questions over and over again.

But then, nobody's ever come up with any reasonable answers.

It's been about six months since we last checked in on Hank Skinner. That was back in March when the Supreme Court decided (6-3) that he could sue in federal court to declare that the Texas statute that prohibited him from getting DNA testing was unconstitutional.  It didn't say he could get the DNA tested, didn't even say the Texas law was unconstitutional, just that he could try to convince a federal trial court that the law was unconstitutional (at least as applied to him).  And once he convinces the judge, then he can get Texas to give him the DNA to test and he can prove, he says, that he didn't kill Twila Busby and her two sons.

It's been more than a decade now that Skinner's been trying to get DNA tested.  At one point, Texas went along with it and agreed to test a bit of the stuff that was out there.

Heh.  That'll show him.  We'll test the DNA and it'll be him and there won't be no more of this bullshit claim that he didn't do it.  Yeah.  Fuck 'im.

So they tested, but gosh darn, it wasn't Skinner.

Sheeeeit.  Now what?  No more DNA testing.  That's f'r damn sure.

Which is what led to the Supreme Court case and all that.

OK, so now Skinner sits on death row in Texas waiting for the courts and then the test results and then an apology and the 80 grand a year that Texas law says goes to innocent guys who get convicted of crimes.  Except, you know, if that were all there were to this, I wouldn't be writing about it now.

There have, in fact, been some developments over the past six months.  Here's a short summary from David Protess writing at the Huffington Post (link removed).

As a federal magistrate in Texas considered the lawsuit that quickly followed, Skinner had another temporary stroke of good fortune. In May, the Texas legislature overwhelmingly passed a bill guaranteeing the right to post-conviction DNA testing, and in June Gov. Rick Perry signed it into law. The bill's sponsor publicly said that it was designed for cases like Skinner's and in memory of another prisoner, Tim Cole, who tragically died behind bars before DNA tests proved his innocence.
Suddenly, Skinner had two chances for justice: the federal lawsuit against the D.A. to gain access to the physical evidence in his case, and a new state law assuring the tests.

Except (you knew that was coming, didn't you?), that's not the whole story.  The rest of the story is that . . . .  Here's Protess again.  (This time I'm leaving the link in.)

What happened next defies imagination. A Texas judge, days before the new statute went into effect and the DNA motion was filed, set another execution date for Skinner: November 9th. That's right. Skinner is scheduled to die in a month -- while two judges continue to contemplate whether he can test the evidence that might clear him.
Under other circumstances, the courts would issue a stay of execution and allow both civil actions -- one authorized by the highest court in the land, the other by the state legislature -- to move forward. Unfortunately for Skinner, however, the U.S. magistrate almost certainly lacks the authority in a federal civil case to issue a stay of execution in Texas. How about the state court judge with the DNA motion on his desk? He happens to be the same judge who set Skinner's execution date for November 9th.

So just over a month.  Which is both plenty of time (the last time Texas tried to murder Skinner they were within an hour of getting it done when the Supreme Court stopped them) and no time at all.

My guess is that there'll be a stay.  But it's really no more than a guess.  Texas wants to kill Skinner.  And it damn sure doesn't want that DNA tested.

Which brings me back to where I started, with those questions I keep asking that nobody can seem to answer.  There are two of them.

1. Why not test the fucking DNA?
2. What are you afraid of?

Imagine for just a second that you're Lynn Switzer, the prosecutor.  (Of course, if Lynn's reading this, no leap of imagination should be necessary.)  You believe (at least I hope so), that Hank Skinner really killed those people so that his execution won't be what Harry Blackmun called "simple murder."  (It'll be a more complicated murder, but I digress.)  Because it's so damned obvious to you, you can't see the point in further DNA testing. OK, so you think it's silly.

• So what?
• Why not do it anyway?  (Remember, you won't even have to foot the bill.)
• Where's the harm?
• You get to look caring and responsible and extra-careful.  After all, you're planning to put someone to death.  And you can convince all those dewy-eyed skeptics out there that you were right and they were wrong.  (Take that, Gamso.)

Or maybe not.  Maybe you're not so sure.  Maybe you have doubts.  But after all, the jury said he did it.  And there's no absolute, incontrovertible proof he didn't.

• Break a few eggs.
• Who gives a shit about Hank Skinner anyway?
• Just a bunch of do-gooder, rabble-rousers and outside agitators and troublemakers like Gamso and we'll never shut him up no matter what.
• And there ain't no point in double checking because fuck, what do I care?
• One less piece of shit convict.

But, if they get the real proof, then what do we do?  We can't kill him if there's absolutely incontrovertible proof that he's the wrong guy.  Or maybe we can hide the results?  No, not in this case.  Never get away with it.

Let's take the questions one at a time.

Why not test the fucking DNA?  

There's absolutely no good reason.  There's no good reason not to test it in Skinner's case.  There was no good reason not to test it in Michael Morton's.  There is, I don't know how to say this delicately, there is NO GOOD REASON NOT TO TEST THE DNA.  

If it proves he's guilty, you've lost nothing.

If it proves he's innocent, you can save the life of an innocent guy.

If it's inconclusive, you're in the same position as you are now, but nobody can say you blew it off.

What are you afraid of?

There's only one possible answer.  You're afraid that Hank's innocent.  You're afraid that there's been a terrible mistake.  And you don't want to know.  But that means you'd rather kill an innocent guy than run the risk of learning you've got a killer out on the street.  Which makes you wholly unfit for office.

Or even for being a member of the human community.

Ah, you say, but the interests of finality.  What about finality?  There must be an end.

I'm hesitant to travel too far down that road since it leads rather directly to Die Endlösung.  

But look, death is as final as it gets.  And if Hank is factually innocent?  And you could have found out an acted?  But you didn't bother?

Executions are murder.  Executing the factually innocent, especially when you purposely choose not to find out, is a calculated cruelty beyond anything even vaguely civilized.  Maybe Die Endlösung wouldn't be so inappropriate at that.

Carpe Diem: Cory Maples, Rick Perry, and Prohibition

I was going to write about Cory Maples.

The idea was that I'd begin by quoting the last couple of sentences from the transcript of the oral  argument at the Supreme Court yesterday.  These sentences, from the end of the rebuttal argument by Maples' attorney, Gregory Garre:

Mr. Maples is not asking to be released from prison. He is asking for an opportunity to present a serious constitutional claim of ineffective assistance of counsel to a Federal habeas court on the merits.
If the claims are as manifest as we think, that clearly will have little burden on it. But simply allowing those claims to be adjudicated on the merits in Federal court will go a long way to preserve the legitimacy in criminal justice in a case in which a man's life is at stake.

Then I was going to quote a brief exchange between Justices Ginsburg and Kennedy and John Neiman, Jr., Alabama's Solicitor General.

JUSTICE GINSBURG: Did you oppose it? Did the State oppose the out-of-time appeal?
MR. NEIMAN: Yes, Your Honor, the State did oppose the out-of-time appeal, and the State pressed the procedural bar in Federal court in this case. But the State had every prerogative to do so, in part because this Court recognized in Coleman, a case where Petitioner undoubtedly could have said that he lost his right to he appeal through no fault of his own, the State had the power to do that. There are good reasons for the State -JUSTICE
KENNEDY: Could the state in the Federal litigation have waived the procedural default?
MR. NEIMAN: Your Honor, I think the law's not exactly clear on that, but I know of no law that would say the Alabama Attorney General -- the Alabama Attorney General has to press every single non-jurisdictional defense at his or her disposal. But he did not do so here and had good reason not to. That's in part because Coleman says that this is how procedural defaults work. There are good reasons for procedural defaults. They are grounded in the same equitable principles that -

And then I'd join many others in quoting Justices Alito, Roberts, and Scalia.

Alito:

This is a case where case where, as I said, it's a capital case, as we all recognize. Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances.
Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not give a decision on the merits of that? Why push this technical argument? 

Roberts:

Why did he do it? Why did he do it, then? Just gloating that -- that the fellow had lost? What was the point of it? He must have thought there was a problem, right?

Scalia:

If we find -- if we find that these lawyers did abandon their client, would there be some sanction imposed upon them by the Bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does anything happen to the counsel who have been inadequate in a capital case? 
. . .
Have you ever heard of anything happening to them? Other than they are getting another capital case?

I was going to give you that string of quotes and then doubt whether the collective wisdom of the media, that Maples will win either 8-1 or 7-2 (Scalia dissenting or maybe Scalia & Thomas), bears any actual relationship to reality.

Oh, it might.  And my track record at predicting defense wins at SCOTUS (I never predict defense wins at SCOTUS) is less than perfect (I mean, once in a while the defense does win at SCOTUS).  But the fact that everyone who spoke (which of course leaves out Thomas) except Scalia expressed some degree of distaste for Neiman's argument and for what Alabama did and, especially, for what the lawyers for Maples did (even Scalia didn't try to defend them), there was also serious skepticism about the argument Maples was making.

The truth is that for Maples to win the majority has to decide that his lawyers didn't just screw up royally but actually abandoned him to the maw of the execution machine.  (Actually, the Court could just decide that his lawyers were not merely negligent but super-dooper-negligent-with-a-cherry-on-top.)  And for all the recognition that Maples got fucked by his lawyers (which even Scalia acknowledged, remember) and at least quasi-recognition that he got fucked by the staff at the clerk of courts office in Alabama, it's far from clear to me that there are 5 votes (which is the magic number, after all) to say that he was badly enough fucked for them to give him a break.

Because, you know, the interests of finality.  And it's not like Alabama courts didn't rule against him. And it isn't like he didn't kill anyone.  Garre explained.

The question in the case is really not who shot the victim. The question was whether Mr. Maples was going to be convicted for capital murder or murder that would result in life imprisonment.

Which might make it easy.

The real problem, as I've said before, is that Cory Maples' lawyers just fucked him a bit more dramatically than the lawyers fucked their client in cases where the courts are are routinely willing to say,

Tough shit! And don't forget to turn out the lights after everyone leaves the execution chamber.

As I said, that's what I was going to write.

But then Scott Greenfield wrote about the importance of continuing to focus on our issues, and trying to figure out how to keep the press/public interested.  Scott took as his jumping off point, this post at prawfsblawg by Lee Kovarsky of the University of Maryland Francis King Carey School of Law (naming rights being what they are, if I were a smart ass I'd wonder if they actually auctioned off the school's name to the highest bidder or simply jumped on the first person who offered a few million; of course, I'm not a smart ass, so those thoughts never crossed my mind).

Kovarsky has a simple question:

Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.

The death penalty is, Kovarsky says, hopelessly racist in fact if not in theory and certain to kill some number of innocent persons.  On the former point, he discusses a now-murdered client of his, Milton Mathis.  On the former, he points not to the dead (Troy Davis, Cameron Todd Willingham) but to the exonerated, including his client Anthony Graves.  We've done it, he says, and we'll do it again.

To believe otherwise is to live in denial of basic probability. The best death penalty defenders can say is that we can't pinpoint the specific cases. That's not the point.

Which is exactly right and precisely expressed.

But so what, he wonders.

In light of these two critiques - featured prominently alongside Perry's bruising ascent through the primary field - is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don't feel optimistic. The first calls on Milton's case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry.  And media coverage of the death penalty generally has sputtered while Perry's star fades.

But maybe even the passing surge of interest is enough to counter the inertia in death penalty states? Nope. The problem is less Rick Perry per se than it is the constituency to which he genuflects. While general support for the death penalty has fallen to 67 percent nationally, and while the public is particularly concerned about wrongful executions, let's not confuse a national sample with the audience at that Republican debate. That audience looks a lot like the electorate in Republican primaries of deep-red, high-execution-volume states like Texas and Alabama. And I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed.  

OK, that's Kovarsky.  I tried to write a comment, but what I wrote wasn't allowed.  (No curse words.  I think it's probably because I was too wordy.)  Here's the guts of what I wrote.

To begin with, the reference to 67 percent of the population supporting the death penalty is at best misleading.  The data are clear that while some 60-67 percent of the population (it varies by poll) support the death penalty as a punishment for murder when the question is yes or no, when there are alternatives the percentage shrinks dramatically.  Add LWOP into the mix and the percentage drops dramatically - by some polls to less than 50 percent.  Add LWOP with financial support (from prison earnings, say) to the family of the victim, and the polls consistently show less than 50 percent.

The polls also show that somewhere around two-thirds of the people think we've executed innocent people in the past 5 or 10 years but that roughly two-thirds of them still support the death penalty (again, as an abstract, yes or no question).  But as I've argued elsewhere (see here), there are polls and there are polls.  The ones in the jury room are as revealing, and perhaps as meaningful, as the ones conducted by the professional pollsters.

It may be that Rick Perry's capital record is responsible for some of the media flurry around the death penalty recently, but there was plenty when the Supreme Court ordered the Troy Davis case back to the district court for a hearing.  As there was when Karla Faye Tucker was killed.  As there was when Ted Bundy was.  As there was when . . . pick your death row celebrity.  It wasn't a presidential campaign that led to legislative repeal in New Jersey, New Mexico, and Illinois.  It wasn't a presidential campaign that led to the New York Legislature not enacting a law that would have satisfied the New York Court of Appeals holding and reinstated the death penalty in that state.

I'm not starry-eyed about any of this.  National abolition is a very long way from occurring, and Texas and many other states will likely get there, if they ever do, kicking and screaming.  But to think that attention to and effective action toward abolition is largely a function of Rick Perry's record (or the cheers from the throng at the debate) is to seriously oversimplify and to draw a false conclusion.

I copied all that in here because I want to use it to make a point of mine (rather than just to respond to Kovarsky. Movements are hard.  If you're watching Ken Burn's documentary sequence on Prohibition (or if you read Daniel Okrent's Last Call: The Rise and Fall of Prohibition), or if you study the history of women's suffrage (which Okrent convincingly shows was linked to prohibition, by the way) or any other major social movement, you'll discover that it takes enormous time and commitment and energy.  Prohibition didn't happen overnight.  The 18th Amendment was ratified in 1919, but Okrent shows that what he calls "the nations first large-scale expression of anti-alcohol sentiment" dates to 1840.  That's 70 years.

Changing the world takes time.

Death sentences are down.  Executions are down.  The criminal justice system still fucks people over regularly, even when their lawyers don't.  

Greenfield writes

For the brief, shining moment that Americans are hearing about potentially innocent, or  definitely mentally retarded (except in Texas) men being executed, the least we can do is strike while the iron is hot.  Given the efforts of the Innocence Project and its friends is raising our national consciousness, that our system is so fraught with imprecision and mistakes, most people are aware, at least to some extent, that their reliance on the criminal justice system, from trials to the Supreme Court, to assure us that only the guilty are executed has been undermined.  And yet, this has yet to upset enough people to cause a shift in attitudes toward the death penalty.

While writing, talking, discussing the problems with capital punishment isn't the sort of stuff that endears others at cocktail parties, or sucks in readers of all stripes, it may be a long time before people have the death penalty on their front burner again.  Pretty soon, they'll be back to paying bills and feeding mouths, the things that directly affect their lives.

Don't squander the opportunity.  And really, who cares about Christie's weight or Perry's hair?

Which is right.  Troy Davis's execution, coupled with Rick Perry's record and attitude put the death penalty on the front page, and abolitionists must take advantage of that.  But even though it won't stay on the front page, even as it drops below the fold and then to page 27, it will be back.  Because there'll be another death row celebrity and another case that cries out and gets the media's attention.  It's happened before, and as long as we keep killing people, it will happen again.

And in time.

Kovarsky talks about McCleskey v. Kemp.  It will, he says,

ultimately assume its rightful place in the anti-canon next to Dred Scott and Korematsu, involved an equal protection challenge to the death penalty. Recently-deceased Professor David Baldus provided as evidence a study that showed that, controlling for other variables, non-white offenders were 1.7 times as likely to receive a capital sentence as white offenders. Killers of white victims were 4.3 times as likely to be capitally sentenced as were killers of non-white victims. This, the Court ruled, was just the cost of doing the states' capital business.

And if the species survives long enough, he'll be proved right.  And abolition will come to pass.  In the meantime, as they kill more of his clients, and more of mine, we can know that each execution takes us closer to abolition.  That's no comfort, but it's not something to forget, either..

Free! But Damn! 25 Years!

The easy thing is to be happy for Michael Morton.

After 25 years in prison for a murder he didn't commit, he'll be released Tuesday or Wednesday.  The case against him will, almost certainly, be dismissed within a few months.  More, he should be declared innocent,

Michael Morton

So it's easy to be happy for Michael Morton.  And we should be.

At the same time, we should be, on his behalf and on our own, frustrated and angry.  After all, he spent 25 years in prison for the murder of his wife.  A crime he didn't commit.

If all goes as it should, the state of Texas will end up paying him a whole lot of money.  Millions.  It's not enough.  Not for 25 years.  Not for a lifetime.  Not for the opprobrium.  Not for the worry and the fear and the uncertainty.  Not for the hell he's lived.

And sure as shit not for the fact that it shouldn't have happened.

Christine Morton was murdered, bludgeoned to death in her bed, shortly after her husband, Michael, left for work that day in 1986.  Police and prosecutors ignored other leads, ignored evidence that seemed to indicate that Michael could not have been the killer.

Actually, they didn't just ignore that evidence.  They hid it.

They hid the fact that Christine's Visa card was found 2 days after the murder - and after Michael was in custody.  They hid the fact that a check made out to her and with her forged endorsement was cashed 9 days after the murder - and after Michael was in jail.   They hid the fact that Christine's 3 year old son described the attack on his mother, revealed specific details that were true, and said that Michael was not there.

Michael should never have been convicted.

But he was.  And he insisted he was innocent.  He sought DNA testing.  And for 6 years (six years) the county prosecutor (not the one who'd hidden the evidence and cheated to get a conviction, the current one, John Bradley, fought tooth and nail to prevent the testing.

Because by god it's . . .

Damned if I know.  And Bradley ain't talking.  Per Brandi Grissom in the Texas Tribune.

“As a lawyer, I had what I believe are good-faith reasons for raising concerns about that," he said.

Oh.  I feel better now.  I'm sure Morton does, too.

Of course, this is the same John Bradley who successfully torpedoed the investigation into the Willingham murder.  Hard to be surprised that he had no apparent interest in figuring out whether there was another oopsie.

Except, you know, now that the evidence is there.

See, what happened is that Bradley lost the fight to keep the DNA from being tested.  And when it was, well hot damn.  Not only wasn't it Morton's, it was actually the DNA of a guy they've successfully identified and also the DNA left at the scene of Debra Jan Baker's murder.  Like Christine Morton, she was bludgeoned to death in her bed.  Oh, and she was killed in 1988, two years after Christine's killing, after Michael was in prison.

Bradley was surprised.  Chuck Lindell at the Austin American-Statesman.

Williamson County District Attorney John Bradley said finding a DNA link between two similar murders, one committed while Morton was in prison, was "lightning-bolt type of information."

And so, and grudgingly we have to give Bradley a little credit here, Bradley and Morton's lawyers got together and drafted Stipulated Findings of Fact and Conclusions of Law for Judge Sid Harle to sign (he did on Monday) and send on to the Court of Criminal Appeals.  

Morton Findings

As I said, it's easy to be happy for Michael Morton.

After 25 years he hasn't just been freed, he's been wholly exonerated. 

And yet.

H/t Scott Greenfield, Grits

First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

Honesty: A Concept

But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution. 

That's from Scott Shane's "News Analysis" in the New York Times on the killing of Anwar Al-Awlaki and Samir Khan.  Really, you can quibble about the language, but you can't argue with the fact, at least not if you're going to be even a little bit honest.

You can argue, of course, about whether it was legal anyway.  Shane again:

Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans. 

Yeah, those wimpy leftists and rightists.  How dare they wrap themselves in the Constitution when we're talking about America and American lives.  Dick Cheney understood that obeying the Constitution shouldn't get in the way of defending the country.   Obama gets that, too.  It's unavoidable.  We have to abandon our way of life in order to preserve it.  (Cheney and Obama would both probably disagree with the characterization.  Tough.)

Of course there are lawyers.  There's always a trusted advisor or law professor who'll argue that the Constitution gives the Pres plenary power to do whatever he wants or thinks he needs to.

But they're wrong.  As Nixon was.

Even if they can find judges, even if they can find Five Who Decide on the Supreme Court.  The Court decided Dred Scott.  The Court decided Plessy.  The Court decided Korematsu. The Court decided Kelo.  The Court decided whatever case you think it got wrong.  As Justice Jackson said, concurring in Brown v. Allen,

We are not final because we are infallible, but we are infallible only because we are final.

So here's a couple of things that are true:

• Killing Al-Awlaki and Khan, even if they deserved it and even if it were OK for the government to kill individuals (this is not a post about the death penalty), was unconstitutional.
• Killing Al-Awlaki and Khan, even if it was wise (I've got my views on that, you may have yours), was unconstitutional.
• Killing Al-Awlaki and Khan, even if the President's advisers and lawyers said it was legally permissible, was unconstitutional.
• Killing Al-Awlaki, even if the Supreme Court should someday say otherwise, was unconstitutional.

Nixon was wrong.  It's not legal just because the President does it.

Sometimes, of course, it may be worth breaking the law.  Sometimes it may even be right.  Hell, signing the Declaration of Independence was an act of treason.

But the signers of the Declaration didn't pretend that they were obeying British law.  They owned up to what they were doing. 

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.

So here's my humble suggestion.

Mr. President:  If you're going to engage in extrajudicial killing, and clearly you are, don't pretend that the law authorizes it.  Here's how your speech should begin.

Today, as yesterday and the day before that and the day before that, on my orders and authorization, the military and the Department of Homeland Security and the Justice Department and the Treasury Department,and the State Department and probably the fucking Postmaster General violated the Constitution.  They'll all do it again tomorrow.  And next month.

Then you can list all the ways.

And you can try to explain why.

My guess, and I dearly hope my guess is wrong, is that most people would think it was fine.  

Because, as Scott Greenfield would say with more than a touch of irony, you did it for the children.