Last Friday, for a bit of early coal in his stocking, the Board unanimously said that Governor Kasich ought to let the execution team (Go Team Go) get on with the business of killing Dennis McGuire.
- He didn't fess up to single-handedly raping and murdering Joy Stewart right away. In fact, he claimed someone else did it. That speaks, the Board said, "poorly of his overall character." (As if the rape murder didn't.)
- Then, just days before the hearing at the Parole Board, he finally acknowledged killing her but said it wasn't cold and calculated and planned but that he "lost control" when Stewart wanted him to leave his wife and kids for her. That can't have been true, the Board said, because the story is uncorroborated and shows he isn't genuinely remorseful. And, anyway, the killing was too brutal not to have been deliberate and purposeful.
- Of course, the crime was "disturbing in character." And less than a year later he attacked a fifteen-year-old girl, "suggesting a propensity to violently prey on vulnerable victims."
- Finally, there's that McGuire had a horrific background, though maybe not all of what he says now is true. Naturally, it doesn't matter.
There is, in the world of appellate law, what's known as "harmless error." I've written about it before. It's how courts decide that sure, lots of stuff went wrong, but we're not giving the defendant a break because, well, because we don't want to. Except since they can't give
We don't wanna
as an explanation, they say instead that the errors were harmless. You know, the defendant didn't prove that the jury would have said "Not Guilty." And since he still might have been convicted, well, shit, can't give him a new trial just 'cause the gov'm'nt cheated or his lawyer was an incompetent fuck up or the Constitution got stiffed. And so the Harmless Error Rule. It
Juries are vital, but we judges can channel them and announce when they would have reached a different result. And when we say it wouldn't have changed anything, well there's really no basis for a do over or a fix of any sort. That would just make us involved in the business of making trials fair to the accused - which gets in the way, after all, of making them about convicting the accused. And so the Harmless Error Rule.
It is, of course, a sham. As the Supreme Court of Ohio said reversing a death sentence in State v. Brooks because they were not told that even a single juror who favors life could prevent a death sentence.
We cannot know what was going on in the minds of the jurors when they were given the duty of deciding Brooks's fate, and we thus cannot say for certain whether one of the jurors would have been moved enough by the mitigating factors in Brooks's favor, his youth and harrowing childhood, to have recommended a life sentence.
Still, the Harmless Error Rule.
Of course, the courts are supposed to be in the business of getting it right and protecting rights. Error correction is they. Yet the Harmless Error Rule.
The Parole Board? Executive clemency? Not so much.
I keep saying the same thing. The job of the Governor in this process, the job of the Parole Board, ought to be about tempering excess. No more than absolutely necessary. Mercy. Grace. Because we can be better than our worse instincts.
Sure, maybe none of what McGuire says now would have mattered to the jury. So said the Parole Board which surely knows because . . . . Oh, wait, no they don't. Which doesn't stop them.
However, even taking as true all that was alleged about McGuire’s upbringing, the Board concludes that it neither explains his crime nor mitigates it to such a degree that the evidence would clearly have produced a different sentencing recommendation if presented to the jury.
Because we should give in to our worse instincts.
Maybe Dennis McGuire deserves to die. Maybe what he did is beyond the pale and he's beyond redemption. Maybe he's the worst of the worst who did the worst things. I don't know. Neither do you. And neither, with all respect, did the jury or the judge or the subsequent judges. And neither does the Parole Board or the Governor.
Those are judgments beyond human ken. And yet, even if we knew that McGuire deserved to die, even if the jury properly weighed what Ohio statutes say they were to weigh, even if the law authorizes his death. Even then the question.
Should we kill him?
Or ought we be better than that? Not forgive, certainly not forget - but permit.
Not for the Parole Board. For them, he hasn't proved he shouldn't be killed, so he should.
Death by default.
* * * * *
They plan to kill Dennis McGuire on January 16.
Happy New Year!