Tuesday, August 27, 2013

Notwithstanding an Inmate's Indifference to Clemency

I suppose it's no surprise to anyone who's followed the case.  

The Parole Board this morning recommended, unanimously as if that mattered, that Governor Kasich should let Harry Mitts be killed on September 25.  

It was just 19 years ago, August 14, 1994, when Mitts shot and killed John Bryant and police Sergeant Dennis Gilvar.  He wounded a couple of other cops.  It was, apparently incontestably, deliberate and intentional.  He wore ear muffs and goggles.  He aimed.  He fired and then fired again.  And again.  And again.   And again.  His defense at trial was that he was too drunk to form the specific intent required by law to get to this point, but the jury didn't buy it then, and Mitts denies it now. 

He says he's remorseful.  One of the prosecutors said that's a strong indication that he isn't. Of course, that puts the condemned in a bind.  The Parole Board wants to hear an expression of remorse, but if expressing it is evidence it isn't felt, and if you both have to feel it and have to express it . . . .
'That's some catch, that Catch-22,' [Yossarian] observed.
'It's the best there is,' Doc Daneeka agreed. 
But really, that wasn't the point.  Mitts didn't beg for his life.  When Cynthia Mausser, the Chair of the Parole Board, asked if he wanted clemency, Mitts told her
that he will be leaving that to the Board’s discretion. 
Of course, he'd be doing that anyway.  But his diffidence probably didn't endear him to a Board that wants to see gnashing of teeth and blubbering.  Before there can be clemency, there must be torment.  Mitts is too much at peace.  In fact, he'd gone back and forth on whether he would participate in the clemency process at all.  (In Ohio, unlike some other states, the Parole Board holds a hearing on the soon-to-be-executed regardless of his interest in clemency.  It is, after all, a chance for survivors and the families of victims to vent their spleen at the condemned - although he isn't actually present.)

And so, they said he should die.  The courts never said his trial counsel were incompetent.  He doesn't fully accept responsibility, it was a terrible crime, shooting at cops as he did.  And the cops were so damn heroic in preventing further bloodshed.  And, of course, he's indifferent.

The Board dropped a footnote in response to that last point.
While relevant, a death row inmate’s stated wishes should not be dispositive. The Board can envision cases in which a favorable recommendation for clemency may be warranted notwithstanding an inmate’s indifference to clemency or even an inmate’s stated preference for proceeding with the scheduled execution.An inmate’s indifference to, or outright rejection of, clemency may be outweighed by the existence of significant mitigation, judicial procedural deficiencies, or other factors that necessitate a favorable recommendation for clemency from the Board in the interests of justice. Mitts’s case is not such a case, however.
And there you have the bottom line.  Clemency, for the members of the Parole Board, has nothing to do with the Governor's plenary power of mercy.  (Probably doesn't for the Governor, either, but we're dealing with the Board now.  It's about "the interests of justice" which occasionally "necessitate a favorable recommendation for clemency."  

You know, error correction.  If the guy happens to be innocent, say.  Or if he's convinced them that the death sentence was a mistake.  

That's what it comes to.  It's not about our better angels, it's about our oopsies, our typographical errors.

Abe Lincoln, who had a way with words, explained why that's all wrong.
I have always found that mercy bears richer fruits than strict justice.
Not in Columbus when the Parole Board meets.*



*And not always for Lincoln, either, but that's a different blog post.

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