NumbersL 1338, 500, 2, 180

Of course, it's just a number.  You know, like 7 or 12 or 365 or 3.14159 or 714 or 56 or 511 or 186,000 or . . . .  And maybe you can figure out what those numbers all mean.  Because they're just numbers, too, though special ones.  Here are some others: 18, 21, 30, 50, 65, 100. That set has a certain resonance because they are a set that says something particular.

But others, like these two, well, they derive their meaning from context.

• 1,338
• 500

Here's the context.  Since executions resumed in this country with the January 1977 killing of Gary Gilmore in Utah, there have been 1,338 of them.  Last night it was Brian Davis in Oklahoma.  He was number 1,337.  This evening, Texas killed Kimberly Lagayle McCarthy.  The 13th woman executed in this era, number 1,338 overall.  And number 500 killed in Texas.  Which is, when you think even briefly about it, a hell of a lot of dead bodies.  No other state has killed more than 100 or so. 

So yeah, it's just a number.  But in its roundness, it maybe carries a bit of extra weight.  Maybe makes you stop and pause for a moment.  Not if you're Rick Perry, of course.  But maybe if you're wondering.

* * * * *

Now, the folks who think it's good that we're clearing up the backlog, killing off those folks who need killin', and generally being altogether responsible about it.  Maybe they should pause for a minute and consider Robert Bradley Miller of Oklahoma and Howard Michael Scheinberg of Florida.

No, they're not inmates on death row.  Never have been though some might suggest.

Miller and Scheinberg were prosecutors who tried cases that put people on death row.  No news there. Lots of prosecutors have done that.  That's how all those folks got on the row, after all.  But these two.

Let's start with Scheinberg.  He was engaged in the trial of Omar Loureiro.  On March 27, 2007, the jury returned a guilty verdict. On May 20, they said he should die.  Under Florida law, that's just a recommendation that the judge can accept or reject.  On August 24, then-Judge Ana Gardiner actually imposed a death sentence.  Ho hum.  That's what happens.  Except --

See, from March 23, that's 4 days before the jury came back with the guilty verdict, until August 24, Scheinberg and Gardiner were, how can I put this delicately?  Not quite sure.  Largely, that's because the Florida Supreme Court, ruling on the disciplinary case The Florida Bar v. Scheinberg is less than forthcoming.

I mean, I assume that Scheinberg and Gardiner were, as they don't actually say any more, canoodling, doing the nasty, making the beast with two backs, fucking their eyes out.  But I don't know that.  What I know is that during that 5 month period, 

Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages.

They weren't about Loureiro's case or any other case.  They weren't about bar committees or legal stuff of any sort.  They were, as the court says several times, "personal."  And secret.  Can't forget secret.  As in they didn't tell Loureiro's lawyer that while his motions were being ruled on and while the judge was deciding what to do, the judge and the prosecutor were shagging each other comatose at the No Tell Mo-Tel exchanging hundreds and hundreds of text and phone messages.  Which could lead to what the court describes as 

an appearance of impropriety in the case.

To which one says, 

No shit.

Cause when the judge and prosecutor are bopping each other every chance they get (enough with the cutesiness of pretending we don't know - either they were fucking like bunnies or getting each other off over the phone or (probably) both; any other explanation is altogether implausible given the court's delicate failure to explain.

Loureiro got a new trial.  Scheinberg got his ticket yanked for 2 years.

* * * * *

And then there's Miller.  He was the prosecutor in the 1993 cases against Yancy Lyndell Douglas and Paris LaPriest Powell.  They were co-defendants, charged and tried, two years apart, for the killing of Shauna Farrow and the wounding of Derrick Smith.  Both sent to death row where they lost round of litigation after round of litigation until a federal judge stepped in and reversed the death sentence because of Miller's "'egregious conduct' as prosecutor."

Which led to investigation which led to ethics charges which led to the Oklahoma Supreme Court and State ex rel. Oklahoma Bar Association v. Miller.  And while they hated to do it, and said, in essence, 

it was OK to lie and cheat back 20 years ago, so we aren't going to be as harsh as we might be

they just felt constrained.  Since despite some verbal gymnastics, the court did find that Miller

• abused the subpoena process to force witnesses to cooperate;
• failed to disclose evidence to the defense; and
• obstructed defense access to evidence.

The Bar Association had found more misconduct.  And the Bar Association recommended that Miller lose his license for a year and pay something over $61,000 in costs. But he was, after all, a prosecutor.  (No, that's not really what the court said.  It said this happened a long time ago when ethics standards weren't particularly rigid [you know, because it was OK for prosecutors to lie and cheat and ab use their power and hide evidence in the 1990s], and Miller had never been caught before and he did cooperate.)  So 180 days and $12,000 plus.  Which is not as much, but not chopped liver, either, as my mother really might have said.

And there were the two dissenters.  Judge Taylor wrote, and Judge Watt joined in, a short and pithy dissenting opinion.

Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

* * * * *

Which  brings me back to 500 and 1,338.

Here's what we know.  Prosecutors will lie and cheat and hide evidence to get convictions.  Especially where the stakes are high - and they're never higher than in death penalty cases.  And mostly, nearly always, they get away with it.  And it happened in Kimberly McCarthy's case.  And nobody much cared.

Hidden evidence is tough, because there's no obvious way to find it.  Misconduct of other sorts may be easier to find, but the legal question is always, "So what?"  Would it have changed the outcome in the case of this monster?  That's the way the courts ask it, since they've already concluded that the guy is guilty and doesn't deserve a break.

So most of the misconduct is ultimately whitewashed away.  And actual discipline of prosecutors for their misconduct is incredibly rare. Which is, of course, why they keep doing it.

* * * * *

About 25 years ago, a judge asked me if I was more in the "Due Process" or the "finality" side of criminal law.  You know, the cranky due process types all want the system to be fair.  

Getting the right guy?  Sure that matters.  But we're significantly the worse for it if we have to lie and cheat to do it.  The integrity of the system requires that the system act with integrity.  Which it all too often doesn't in these cases.

Something to think about as we think about those numbers.  And as we give some praise to Florida and a (grudging) Oklahoma.

So a rare nod to Oklahoma and Florida.