Sunday, October 27, 2013

Flipping a Weighted Coin

They plan to kill Ronald Phillips on November 14.  Maybe it will happen.  Maybe not. 

Last week, and to the surprise I think of nobody, the Parole Board said it ought to happen.
  • He grew up in an abusive environment - meh.  Dysfunctional? Sure.  Abusive?  The only people who say so are Phillips himself, his siblings, and the psychologists who've examined him. 
  • He was a product of that environment - meh.  It "neither explains nor excuses."  Environment and background are irrelevant.
  • His lawyers were incompetent - meh.  There's been a wealth of litigation over that question and the courts haven't agreed.  Besides, he hasn't proved that if he had competent lawyers he would have been sentenced to life.
  • He's changed, and now he accepts responsibility - meh.  If he accepted responsibility he wouldn't claim that his acts were anything other than pure evil.  Childhood abuse?  Encouraged by others?  Hey, if you accept full responsibility you have to acknowledge that you're just an irredeemable monster who should be killed.
  • And good god, what a horrible crime.  Which it was.
All of which is pretty much true in the cases where the Board recommends clemency, too. 

As I've said about others, I've never represented Ronald Phillips.  I don't know him. I don't know the details of whether he did or did not rape 3-year-old Sheila Marie Evans with his penis at the time he killed her, which he'd done before, or only with his finger as he told the Parole Board.  I won't speak to comparative depravity of act.  What he did, what he acknowledges doing, is monstrous.

Oh, maybe his lawyers didn't do anything much to investigate or present mitigation.  But as the prosecutors explained to the Parole Board, they were trying to prevent the case from getting that far.  You can't expect them to have prepared for a sentencing phase if they hoped to avoid one. 

Also last week, someone asked on the listserv of the National Association of Criminal Defense Lawyers what people thought to be the single most important attribute of a capital defense lawyer.  To which I responded, purposely all in uppercase,
To which another lawyer responded that I was right, but that ought to be "the common denominator." Which is also true.  But shoulda, woulda, coulda.

If you study all the Parole Board's clemency reports, what becomes clear is that there's almost a random quality to them.  The default is, of course, a recommendation of death.  From time to time, they say otherwise.  Governor, in this case, for these reasons, you should let him live.  

The thing is that the recommendation of life cases aren't in any demonstrable way different than the recommendation to kill cases except for the votes.
  • Horrible background?  Check.
  • Incompetent lawyers that no other court found sufficiently incompetent?  Check.
  • Accepts responsibility but maybe thinks the background contributed? Check.
  • Victim's family members favor execution? Check.
  • Victim's family members favor life? Check.
  • A crime to curl your toenails? Check.

Sometimes you eat the bear.  Sometimes the bear eats you.

Jurors in Ohio are told that they must individually weigh the statutory aggravating circumstance that they found to have been proved beyond a reasonable doubt against whatever mitigating evidence they find to have been proved by a preponderance of the evidence.  If the statutory aggravating circumstance has been proved by proof beyond a reasonable doubt to outweigh that mitigating evidence, then they are to say "Kill."  If not, they are to say "Life."  And the "nature and circumstances of the offense" may only be placed on the mitigation side of the scale (though our supreme court has suggested, from time to time, that they can have negative weight).

It is an absurd task.  Incoherent and impossible.  The things being weighed (and of course that's if the lawyers have actually done their job and presented the mitigating evidence) aren't even broadly of the same category.  As I've said to more than one appellate body, 
It's not like weighing apples and oranges; it's like weighing apples and Oldsmobiles.
As one judge put it, after voting for life as a member of a three-judge panel trying a death penalty case here (three-judge panel's being an alternative to jury trials in capital cases in Ohio),
I just couldn't look at him and say, "Fuck you."
Which isn't exactly the legal standard.  Or maybe it is.

The Supremes say that the life or death decision must be somehow rational.  It's to be a reasoned moral response.  It's not to be - and this is the key - arbitrary.  The Supremes of course, live and decide in an ethereal bubble.

It's hard to imagine that Governor Kasich will overrule the unanimous Parole Board and decide to spare Ronald Phillips, change his sentence from Death by Prison Guard to Death in Prison. But there's ongoing litigation regarding lethal injection.  And there's whatever else may happen in the next month.

Maybe Ronald Phillips will be executed November 14.  Maybe not.

And the next guy (Dennis McGuire) and the one after that (Gregory Lott) and On Beyond Zebra! 

Maybe.  Maybe not. 

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