life in prison, with the remote possibility of death.

Cormac Carney went to the Air Force Academy for a year, then transferred to UCLA where he played football.  He played professionally for a year after college, then went to Harvard for law school.  In January 2003, Bush the Younger nominated him to be judge of the U.S. District Court, Central District of California.  He was confirmed by the Senate three months later.

None of that, except indirectly the fact that he's a judge, is why I'm writing about him.  Hell, it isn't why I wrote about him in 2009 or 2011, either.  I write about him every couple of years because every couple of years he does something remarkable from the bench.

He holds the government accountable for its misconduct in prosecuting folks they think are bad guys.

Judges just don't do that.  On the rare occasions they acknowledge that the government cheated, they blow it off.  It was inadvertent.  It didn't matter anyway.  Can't make an omelet without breaking a few eggs.  But Carney.

In 2009, he dismissed, with prejudice, fraud and conspiracy charges against Broadcom.  

Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anything to intimidate or improperly influence witnesses. Sadly, government did so in this case.

In 2011, he was the judge in Islamic Shura Council of Southern California v. Federal Bureau of Investigation. The government's lawyers lied to him, and he called them on it.  They said they had a right to do it.  National Security and all.  Because terrorism.    To which he said, fuck you. (Though not in those words.)

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Wednesday afternoon, he did it again.  This time it wasn't prosecutors or lawyers.  This time it wasn't the feds.  It was, instead, California.  Which in a detailed, carefully laid out and factually delineated 29 page opinion he excoriated for creating a systematically dysfunctional death penalty system.  It's captioned

ORDER DECLARING CALIFORNIA'S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER'S DEATH SENTENCE.

It's not that he says the death penalty itself is a problem.  It's the way California implements it.  Here's the guts of it, laid out in the first two paragraphs.

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 

There are, Judge Carney points out, since California's death penalty law took effect in 1978, more than 900 men and women have been sentenced to die.  13 have been executed.  93 have died of natural causes, drug overdoses, homicide, or suicide. 1 was killed by another state. There are, today, 748 on death row.

Why the problem?  Why can't California be Texas (or Ohio)?  Because it won't provide the resources. 

Every death sentence must be reviewed by the California Supreme Court.  

To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel. See Cal. Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them.

(Footnote, explaining that they're all indigent, omitted.)

But why that delay?  Oh, cause California cut the funding of public defenders to do the work and won't pay enough for appointed counsel to take it on.  Same for state habeas relief where the state won't provide the necessary funding for lawyers or investigators.

So, because California insists on having a death penalty but refuses to provide the resources necessary to make it functional, it just has a system of (one more time) 

life in prison, with the remote possibility of death.

And that possibility isn't merely remote.  It's also random, arbitrary.  Under the circumstances, and because of California's actions not the inmates', the law loses any deterrent value it might otherwise have and fails even to provide meaningful retribution.  Or so he says.

And that's unconstitutional.

Kamala Harris, California's Attorney General, says that she's reviewing the decision to decide whether to appeal.  It's hard to imagine that she won't.  And hard to imagine that if she does Judge Carney won't ultimately be reversed.  

Not because he's wrong.  But because he's right.

Because Law of Rule.

  Carney Order

Especially When It's Hard: Falling on One's Sword

I got a call today from a good lawyer hoping I could give him some advice.  He'd been appointed to do an appeal on behalf of a guy whose trial counsel was, to put it delicately, horrifically incompetent.  So bad that after he filed his brief in the court of appeals explaining just how and why the trial lawyer fucked up so badly that he didn't even reach the insanely low bar of constitutional effectiveness (hold a mirror to the lawyer's nose; if it fogs up, he was sufficiently competent), the prosecutor filed a brief saying agreeing that the lawyer was so bad that the client should get a new trial.

That is, frankly, unheard of.

But then, trial counsel (no newbie, by the way but a lawyer of long, albeit undistinguished standing) got hold of the client at the state run bars and breakfast.  Hey, he said, I'll file a motion asking the judge to cut you loose on probation if you'll just withdraw that appeal.  Hell, all you get from an appeal is a new trial.  I'm offering you a chance to get out now.  And you know, I won't even charge.

Of course, no guarantee, either.

Not surprisingly, the client was sore tempted.  Bird possibly in the hand or another trial - and maybe a plea to less time than he's doing.  Except, of course, it wasn't about the client.  it was about the lawyer who was damn sure he didn't want the court of appeals spitting out an opinion explaining that the client would have been better off represented by, say

I've written before about lawyers more concerned with themselves than with their clients.  Hell, I've had a whole series of posts I called "Selling Out the Client."  This guy's story would fit comfortably there. But been there and done that.

He's not the worst of the herd.  He's at least offering a free, potentially useful service in exchange for burying his failure. Anyway, I'm writing about him as a set up to talk about the other sort of lawyer. The kind who, when they fuck up* fess up.  Fall on their sword.

This guy, for instance.

 He's Steven O'Connor, and if the picture (from his LinkedIn page) is a little goofy, hey, he's from California.  And he's been practicing law since 1989.  And now

Rosalio Ahumada has the story in the Modesto Bee.

A defense attorney on Tuesday defied a judge by refusing to continue with the sanity phase of a Turlock murder trial. The judge was forced to suspend the trial and remove the attorney, who now faces court sanctions and discipline from the State Bar of California.
Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.
“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”

And the judge huffed and puffed and threatened.  And O'Connor stood his ground.  And the judge did find him in contempt.  And she is reporting him to the bar.

Read more here: http://www.modbee.com/2014/07/08/3429539/defense-attorney-threatens-to.html?sp=/99/1571/&ihp=1#storylink=cpy

Scott Greenfield notes that we can't tell from Ahumada's story just why O'Connor thought his trial phase representation incompetent or why he thought he could not be competent at the sanity phase. The answers likely matter - or they will - to his client, "Nicholas John Harris, who was found guilty last month of second-degree murder and arson in the stabbing death of Mark Anthony Henson."  And they may matter to the State bar.

They don't matter here.  O'Connor agreed to represent Harris.  For whatever reason, he did a terrible job.  Then he owned up to it.

It would have been simple enough to blow it off.  O'Connor could have showed up for the sanity hearing.  He could have done a great job or a mediocre one or something truly piss poor.  The likelihood is that it wouldn't have mattered - except maybe to Harris.  If the quality of his work were challenged on appeal, given the standards courts use, it almost surely would have been close enough for government work.

But O'Connor didn't.  He took the heat.  And what's pretty clearly a major hit to his career.

Because he understood that one thing, understood and acted on it.

It's never about us.  When we take that oath, we're saying that the client's interest comes first.  It comes before the vacation.  It comes before family and friends.  And it sure as hell comes before professional reputation.

We all know that.  O'Connor just lived it.  Which puts him in the pantheon.  And his career likely in the shitter.

Scott says he'd buy him a drink.

Even though he won’t be given any awards for his representation of Nicholas Harris, if I was out in Modesto, I would buy Steven O’Connor a drink. And I bet he could use one.

I would, too.  But I'm not there.  So I'll just hoist a glass in his honor.

Here's to you, Steve.  A lawyer with balls.  And integrity.

--------------------
* And really, we all do, to a greater or lesser extent, at one time or another.  We ask a horrifyingly stupid question.  We fail to ask a question we should have.  We miss a legal point - obvious or obscure that would have helped the client.  We give advice that turns out to be wrong.  We blow a deadline. Something.  Most of the time it doesn't change anything.  Often the fuck up can be cured.  But still.

A Bit of Elmer Gantry in All of Us

In July, 2011, I began a post this way.

Mark Stroman

Rais Bhuiyan

The guy on the right is Mark Stroman, and the Great State of Texas plans to murder him on Wednesday.

This post is not about him, except incidentally.

The guy on the left is Rais Bhuiyan.

This post is pretty much about him.

On September 21, 2001, the guy on the right shot the guy on the left in the face, hoping to kill him.  Just as he'd killed Waqar Hasan on September 15 and as he would kill Vasudev Patel on October 4 of that year.  His death sentence is for the murder of Patel.  It was a hate crime.  All three shootings were.  Stroman, a white supremacist, was targeting men he believed to be of middle eastern descent in revenge for the September 11 acts of terrorism. 

Except Bhuiyan didn't die.  And in the last few months, he's undertaken a truly daunting task.

He's trying to save Stroman's life.

* * * * *

That was the second time I'd written about Rais Bhuiyan.  The first time, a couple of months earlier, I gave Bhuiyan's account of what Stroman did to him, quoting the Dallas Morning News, where it sits behind a paywall.

"Where are you from?"The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunbglasses and a baseball cap, and aimed the bun directly at my face as I stood over the gas station register."Excuse me?" I asked.As soon as I spoke, God sent some angel, and I turned by face a bit to the left; otherwise, I would have been blinded in both eyes, instead of just one. I felt the sensation of a milion bees stinging my face and then heard an explosion. Images of my mother, father and finace appeared before my eyes, and then, a graveyard. I didn't know if I was still alive.I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, "Mom!" The gunman was still standing there. I thought," If I don't pretend I'm dead, he'll shoot me again."

And I also quoted Bhuiyan's explanation for his plea.

I am requesting that Stroman's death sentence be commuted to life in prison with no parole. There are 3 reasons I feel this way. The 1st is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The 2nd is beacuse of what I believe as a Muslim, that human lives are precious and that no one has the right to take another's life. In my faith, forgiveness is the best policy, and Islam doesn't allow for hate and killing. And, finally, I seek solace for the wives and children of Hasan and Patel, who are also victims in this tragedy. They have already suffered so much; it will cause only more suffering if he is executed.

* * * * *

Not surprisingly, there's more to the story.

Of course, there's the obvious more.  Texas didn't give a shit.  Victims who don't want vengeance don't count.  Bhuiyan's international efforts to save Stroman?  Nah.  His lawsuit, insisting that Stroman should remain alive while he had the chance guaranteed by Texas statutes to meet with him and pursue reconciliation?  Not a chance.  Stroman was executed July 20, 2011, just 4 days after that second post. 

But that's just the obvious more.

There's all the rest.  How did it happen that Rais Bhuiyan went from Dhaka in Banghladesh, spent a couple of years in New York, and ended up working at, and nearly dying at, a mini-mart on the outskirts of Dallas?  What happened during the ten years from when Stroman shot him that at the end turned him into an impassioned advocate for his would-be killer's life?  And what afterwards?

And then there's the other guy.  Who was Mark Stroman, anyway?  What drove him to become a one man anti-whoever exactly-it-was avenger, a self-described "American terrorist," for what happened that day in September 2001?  And how, Where did he come from?  And how in the world did he view the guy he shot in the face but was now trying desperately to save his life?

Inquiring minds, as they say, want to know.  Anand Giridharadas was one of those inquiring minds. He's a columnist for the Times, one of those biographical facts that shows up on book flaps, like the fact that he lives in Brooklyn, really of no moment.  But he's also the author of the book that has those factoids on its flap.  It's The True American: Murder and Mercy in Texas, and it's terrific.

The question that haunts, really, is the one embodied in the title. Who is the "True American"?

Is it Rais?  He left a promising career in the Bangladeshi Air Force to come to the US, raise the money to bring over his fiance, and carve a new life for himself.  Instead, he was shot, lost nearly all the sight in one eye, underwent four surgeries, found himself with some $60,000 in hospital bills and no job.

Well, no job until he caught on as a waiter at the Olive Garden. That's where he had to learn to recommend the appropriate wines with the meals, to discuss their character, to push them.  First, though, he had to convince himself that although as a devout Muslim he never had and never would have even a taste of alcohol, God would be OK with him selling what he was forbidden to drink.  But once he did.

For Rais, the greatest challenge remained alcohol.  On a good night, it could account for most of server's tips.  Rais, devout to the bone, was also pragmatic and driven enough to decide that if one was going to sell alcohol to the godless, one might as well be good at it.  

That's a quintessentially American drive.  And Rais proves to be a terrific salesman - of wine, and of himself.

He loses his fiance, but he manages a lifelong dream and takes his mother on a pilgrimage to Mecca. Which is where he remembers the promise he'd made while lying in a pool of his own blood on the floor of that mini-mart.  That if he survived, he'd dedicate his life to doing good works.  And so . . . . But of course we know that part of the story.

There's some Elmer Gantry in there along with rather a lot of Horatio Alger.  And more than a smidgeon of one or another saint.  Not hard to find a lot of True American in that kid from Bangladesh.

But maybe it's Stroman.  He's alive, his mother told him more than once, only because she couldn't raise the last 50 bucks she needed for an abortion.  Raised in poverty.  Grew up in a world of country music, NASCAR, motorcycles, guns, violence, and gung-ho Americanism.  There were the swastika tattoo, the hero worship of Hitler, the open racism.  There was the criminal record.  And always the open racism.  Dallas, he thought, was the greatest place in the greatest state.  Easy for him to say since he'd never lived anywhere else.

And yet.  Stroman is befriended by Ilan Ziv, an Israeli filmmaker.  He has supporters around the world. His victim from Bangladesh wants to save his life.  And he repents.  Maybe.  Changes.  Maybe.  Or maybe it's an act.  His version of a sales job.  Like Bhuiyan talking up the virtues of this or that wine. His siblings wonder.  But then there are his kids.

They didn't get to Huntsville for his execution, but they had a few minutes on the phone.  Amber:

Dad, I'm not CNN news; I'm ot your publicity crew.  I want to know where you're at in your spiritual life.  Because I worry about that, and I stress on that.  I mean, after you're gone, where are you going?

On the outside, before this, he'd "said little about God to her."  Now, she thought, he sounded "like a true believer."

To Erika he offered a bit of advice.

I'll always be the same fucking knucklehead that I've always been.  But if you don't know God, let Him into your life."

Like I say, maybe.  There's some Elmer Gantry in Stroman, too, though not much Horatio Alger.  

* * * * *

The thing is, there isn't a simple answer.

Rais's contact with the more rooted underclass was an education.  What struck him at the Olive Garden, making these new friends, was that the Americans he worked with didn't share his ability to reimagine and remake himself.  They seemed not to know how to take advantage of their own, fortunate country. And they were often left to themselves, without anyone to cushion their falls or witness their triumphs.

In Rais Bhuiyan, there's one American.  In Mark Stroman, there's another.  Neither quite so simple as he seems at first.  Which is, after all, the point.

Murder and Mercy.  

Indeed.

_________________________

Thanks to the good folks at W.W. Norton for sending me a copy of the book to review.