Gamso - For the Defense

Another Month with No Killing

2012-01-27T01:06:00.001-05:00

They won't be killing Michael Webb next month. In fact, they won't be killing anyone.

Mike DeWine, Ohio's Attorney General, personally told Judge Frost that the state wouldn't object to Webb's motion.

Frankly, it's hard to imagine that he had much choice (except to let a flunky do it for him; good for DeWine to suck it up and do it himself). I mean, it's not like anything's changed in the two weeks since the 6th Circuit upheld the injunction against killing Charles Lorraine

because the State cannot be trusted.

And since nothing's changed, well then, you gotta figure that Frost was gonna grant the injunction and the 6th would uphold it no matter what.

Of course, DeWine's trying to get the the Lorraine stay lifted by the berobed one's in the nations capital. On Friday he submitted an application to vacate that stay to the former Generalissima, Elena Kagan, who's the Justice assigned to the 6th Circuit. Lorraine's lawyers have until Tuesday to respond. But even if they get the stay lifted, that won't get Lorraine killed. Given the current schedule of killings, he's probably got until sometime in 2014 at a minimum. (Though March and May of this year are still open, for reasons that never seemed clear.) More to the immediate point, the uncertainty and the near certainty that Webb would get a stay and it would stand up at least for a bit - well, enough.

Besides, as Alan Johnson wrote in the Columbus Dispatch, DeWine won't settle for half measures.

“We felt we had no choice,” DeWine said in an interview. “We’re not going to carry outanother execution without it being perfect.”

He said the Department of Rehabilitation and Correction has made “great progress” in refininglethal injection procedures, “but we’re not quite done with that.”

Perfect.

Wow.

I mean, I guess we know they're not done aiming for perfection because they just abandoned their carefully worked out and (according to Judge Frost) perfectly constitutional protocol in mid-stream while killing Reginald Brooks. You know, so they could do it better.

DeWine, of course, still claims that the protocol is constitutional. And presumably he still has the judge's agreement. Maybe now he understands that there's also a constitutional mandate to follow the protocol. But I doubt it, since his claim remains that while they keep adjusting the protocol on the fly, in mid-murder as it were, they're doing that to make a terrific protocol into a perfect one and gee, the only question is whether the one they ignore is constitutional, which it is.

Yes, I know that's confusing. So is their position.

But the bottom line is clear. No murder in February. Webb gets his stay.

Because there's the Rule of Law. And even if DeWine just thinks it's a Law of Judicial Rule, he's willing to obey.

Because One Size Doesn't Fit All

2012-01-25T17:23:00.001-05:00

I heard a judge once, sentencing a guy to death, explain that he was a serial killer even though they only knew of one person he'd killed. Sure, he'd never got caught before. Sure, there were no cases in which he was even a suspect.
But the judge knew. He just knew.
Maybe.
Then again, maybe not.
For years, really for decades, everyone assumed that fingerprints were essentially infallible, the perfect identifiers. When they first started doing DNA testing in criminal cases, prosecutors would refer to it as "DNA fingerprinting" because that would give this new technology the imprimatur of absolute certainty.
If it's like fingerprints, it has to be good.
Except, and as I've talked about before (see, e.g., here and here), it turns out that fingerprints ain't so good. It's just that nobody knew. For decades there were no false positives (or false negatives, for that matter), because they were infallible. Except that since they aren't, we have this question.

How many innocent people were convicted based on false fingerprint matches?

Nobody knows. More problematic,

Which innocent people were convicted based on false fingerprint matches?

Damn, we don't really know the answer to that, either.
But now we have DNA. Which nobody much refers to as "DNA fingerprinting" anymore because DNA is so much better. It's the gold standard. Infallible. The perfect identifier. If the testing says the DNA is Sally's, then she's guilty. If the testing says it wasn't Fred's DNA, he's off the hook. Case dismissed. Freed. Declared innocent. Given the big bucks for his trouble.
Well, maybe. Sort of. Some of the time. Often not. But I digress from the point I haven't yet really started to make.
In yesterday's Times, Cyrus Vance, Jr., New York County (that's Manhattan) District Attorney, has an op-ed touting the wonders of collecting DNA from everyone convicted of anything, no matter how trivial.

WE have a tool that can prevent hundreds of murders, rapes and robberies each year at minimal cost to taxpayers. But we’re not using it in a majority of cases because a state law restricts its use.
DNA evidence solves crimes. Since 1996, when New York State’s DNAdatabank opened with strong support from my predecessor, Robert M. Morgenthau, the bank’s DNA samples have been linked to more than 3,500 sexual assaults, 860 murders, 1,100 robberies and 3,400 burglaries. Thousands of criminal convictions have resulted. Today, however, we are hamstrung by a law that does not authorize the collection of DNA following convictions of certain misdemeanors. This has meant that we can’t use DNA technology in more than half of our cases. By expanding the collection of DNA to include those convicted of all crimes in New York State’s penal law, as Gov. Andrew M. Cuomo has called for, we will be better able to identify the guilty, exonerate the innocent, bring justice to crime victims and prevent additional crimes from occurring.

Identify the guilty. Exonerate the innocent. Bring justice. Prevent Crime. Wow! That's good stuff.
See, bad guys, really bad guys, sometimes don't get convicted of really bad crimes. Sometimes they get convicted of trivial ones. But if we have their DNA, we can tie them to really bad crimes. And that will get them off the streets so they don't do more bad stuff.
And it will also free the innocent people who are charged with and convicted of really bad crimes because we didn't bother to test their DNA against the evidence because since they'd never been convicted of trivial crimes we couldn't get it to test against the evidence before locking them up forever. Wait. No. That's not right. I don't know how it exonerates anyone.
But sure it prevents crimes.

Whom does DNA bring to justice, and how does it prevent future crimes? The case of Curtis Tucker is instructive. Following his conviction in 2010 for robbing and assaulting a 74-year-old Manhattan man suffering from Parkinson’s disease, Mr. Tucker was required to submit a DNA sample, which typically is obtained by swabbing the inside of a person’s cheek. Three days later, that $30 test produced a match linking Mr. Tucker to a brutal 2004 assault and attempted rape of a 15-year-old girl in the stairwell of her Manhattan apartment building.

Got it. Tucker committed a terrible crime in 2010. And DNA links him to a really serious crime in 2004. So if he'd been arrested and charged and convicted of the 2004 crime, he'd have been locked up and his DNA could have maybe showed that he didn't commit the 2010 crime while he was in prison.

Wait, maybe that's not a really great example of how DNA can prevent crimes.

And it has nothing to do with misdemeanants, which is really what this is about. So maybe this.

[S]amples collected from people convicted of petty larceny have been linked to roughly 48 murders and 220 sexual assaults. Clearly, the 2006 expansion of the DNA program — which passed with only six dissenting votes in the State Assembly — confirmed that collecting samples from offenders convicted of minor crimes helps solve and prevent more serious crimes.

OK, solving more crimes. 248 maybe. From how many samples? What's the percentage? And what was the prior status of those folks? Were they suspects anyhow? Were they charged with those crimes? Any of them? Still, 248 links.

Look, I get it that law enforcement types want to know everything about everyone. (DNA from all kids at birth? Why the hell not?) Scott Greenfield is right when he observes

His proposal is relatively modest, given that others argue for the collection of DNA from every person arrested, rather than convicted.

He's right, too, about the danger of error. Oh, sure, Vance acknowledges that it's possible, but just barely. And never in New York.

To date in New York, we have never had a “false positive,” or the misidentification of DNA from one person as the DNA of another.

By which, of course, he means that they've never found a mistake. Just like all those major felons who are only known to be misdemeanants because their more serious crimes have never been found.

It's true. DNA is great stuff. It really can help to properly convict and exonerate. But it's also subject to all the mistakes you can imagine. Scott talks about that, too, but he's after a different point - Vance's recognition that other sorts of evidence routinely relied on (eyewitness testimony and confessions) are often convict the innocent. Me, I want to keep talking about DNA.

The science is good, but that doesn't make the results of every test reliable. Even the best labs screw up. Even the best analysts get it wrong. I've written about this before, starting with part of a blog post by Walter Reeves.

Itiel Dror and Greg Hampikian recently published a paper titled Subjectivity and Bias in forensic DNA mixture interpretation. They wanted to address the potential problems in interpreting evidence when there may be multiple suspects. The situation most commonly occurs in sexual assault cases where there are multiple perpetrators. There may not be enough to conclusively identify one person, but there may be enough to say an individual cannot be excluded - which in the minds of most jurors means you must have done it.
They obtained an actual case out of Georgia that involved a gang rape. One of the alleged suspects identified and testified against the others. The results of the DNA analysis - by examiners who knew who the suspects were - could not exclude the others, which corroborated the co-defendant testimony.
The actual data was submitted to 17 qualified analysts who routinely do forensic work. No other facts were sent, so the examiners did not know who the suspects were. The results obtained without that contextual information were startling. Only one of the 17 agreed with the original examiner. Even more startling is that 12 examiners would have EXCLUDED the suspect they looked at. The remaining 4 would have called the results inconclusive.

Now, Reeves goes on to talk about how this is serious and how it shows the need for independent testing and not trusting the government's expert to have got it right because, after all, it's DNA. All that is surely so. But it's important to be clear about just what is so.
The science of DNA is in the technology. Done properly, with properly preserved and protected samples, the results are exactly what they are. But along with the science is the art. (Or the bullshit, depending on how you want to discuss it - Truman Capote famously said of Jack Kerouac's books, "That's not writing, it's typing.") That's the part where someone tries to figure out what the science revealed.
The science of DNA is good and reliable and actually science if it's done properly and if the samples tested were properly taken and preserved. The bullshit of DNA is in making sense of the science.

And there's this. No matter what Vance says, there's no such thing as secure data. And DNA isn't like a fingerprint that you can store and that maybe serves as an identifier sometime and maybe not. DNA doesn't just serve as an indication that Joe Blow is really Joe Blow. DNA tells a whole story about Joe. Because it's not just that Joe is Joe but it's every genetic fact about Joe. More and more of which we're learning to unravel. And more and more of which will be used in ways we never imagined - or authorized.

Because that's the one sure thing we've learned about data. It escapes from the confines we erect for it and imagine will successfully cabin it.

The dirty truth, which I've suggested before, is that they just can't be trusted. Even when they're trying to do the right thing and their hearts are in the right place.Si

Welcome Back, Joe

2012-01-23T11:18:00.004-05:00

That was then.

This is now.

Then was decades on death row.

Now is freedom.

Then was convicted (along with Michael Keenan) of killing Anthony Klann on the word of Edward Espinoza, co-defendant, juvenile, probable killer.

Now is exonerated.

Then was the government hiding evidence of innocence.

Then, but later, was the government hiding more evidence.

Then, but later, was the government dicking around yet again.

Then, but later still, was the federal judge saying

Enough. You can't prosecute him again.

And they really couldn't have, since they had no evidence. None. Not any more. Not when they had to tell all the truths.

Then, but later still, was the Sixth Circuit Court of Appeals agreeing.

It's over. Let it go.

Now is the big boys and girls, the United States Supreme Court, refusing to get involved.

11-672
BOBBY, WARDEN V. D'AMBROSIO, JOE
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

Now is when the Cuyahoga County Prosecutor has to suck it up.

His name is Joe D'Ambrosio, and I've written about his case before.

Anthony Klann was murdered in 1988. D'Ambrosio, Keenan, and Espinoza were charged with killing him. Espinoza, who was a juvenile and never eligible for death under Ohio law, cut a deal and testified against both D'Ambrosio and Keenan.

Over the years, as evidence hidden by the Cuyahoga County Prosecutor was uncovered and new evidence developed, the picture changed. But the state's commitment to killing D'Ambrosio and Keenan never wavered.

And now it's not just that they can't kill D'Ambrosio. It's not just that he's out of prison (as he has been for a bit now). He's been exonerated.

And, although I don't say this often, it happens that he's also innocent.

Which is no small thing.

Here's that "Now" picture again.

Welcome home, Joe.

Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia

2012-01-18T23:58:00.000-05:00

He'll get a chance because his lawyers abandoned him. So said 7 of 9. Ginsburg wrote the opinion. Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation.

Scalia dissented. Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers. And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that. What he said was this.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of "an orderly system of criminal litigation conducted by counsel." The republic would survive, but our whole system of criminal justice would collapse. (Which he might think would destroy the republic, but he doesn't say that.)

So fairness be damned.

The case is Maples v. Thomas, and I've written about it before. It's the sad saga of Cory Maples. He's on death row in Alabama. He got Sullivan & Cromwell, a fancy-ass, white-shoe, big-shot law firm in New York to represent him in state post-conviction proceedings because Alabama can't be bothered actually paying lawyers to do that sort of work. But S & C dropped the ball. Horribly. Inexcusably. Their lawyers abandoned Cory without telling him. Alabama sent word to the lawyers that Cory had lost a round of his case which started a clock by which he had to appeal. S & C returned the letters unopened because the lawyers who'd been working on Cory's case left the firm. And then Alabama did nothing. Until the deadline passed.

And SCOTUS today, in an opinion that really does nothing much to break any legal ground but really is no more than a correction of a monstrous and self-evident wrong, by a vote of 7-2, said to give Cory a chance. Because, after all (although they didn't say this), the alternative is unfair.

Which left Nino to stammer and threaten the end of criminal law (if not the republic).

There's nothing much new in any of this. On those occasions when 5 members of the High Court are sufficiently appalled by what the system did to the convicted guy, he wins. Because it's only fair.

On those occasions when 5 members of the High Court are more appalled by the crime than by the unfairness of what was done to the convicted guy, he loses.

Well, 5 members of the Court who don't understand that a fair system means anarchy, criminals running rampant through the streets.

Bar the gates.

Hide the silverware.

Lock up the women and children.

A year and a half ago, it was Holland v. Florida. Then, too, the poor guy's lawyer had, effectively, abandoned him. If it's sufficiently gross abandonment, said a 7-2 majority of the Court, not just garden variety negligence, but negligence with cooties, he gets a chance to be heard.

Scalia would have none of it. The problem he identified then wasn't that the republic (or at least the system of criminal law) would crumble if we tried to make it fair. The danger then wasn't fairness. It was conscience. Judges, he said, might have a conscience. But its dangerous and must be tamped down.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion.

So fairness is out. Conscience is out. What's left?

Oh, yeah.

Let them eat cake.

Because the State Cannot Be Trusted - Part Deux

2012-01-17T13:54:00.001-05:00

So now it's official.

Ohio will definitely not be killing Charles Lorraine tomorrow.

You remember. Judge Frost stayed the execution because Ohio's demonstrated refusal to obey a protocol the state invented and that he found to be constitutional means that executions here are ad hoc events, made up on the fly. As a consequence, he said, they violate equal protection.

The Sixth Circuit agreed.

[T]he State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

At first, it appeared that Mike DeWine, Ohio's Attorney General, would not appeal that decision. Then he talked with the Governor and they decided to take it up, to ask the Supreme Court to life the stay. But not this week. According to AP, they need a couple of weeks to get their arguments together for the big Court in DC.

Mike DeWine, our Attorney General has said that he'll ask the Supreme Court to lift the stay, but he won't be doing that for a couple of weeks. From his press release:

"We do not believe the stay of execution the federal courts have imposed here is warranted under the Constitution," DeWine said. "We want to give the U.S. Supreme Court an opportunity to review this case to ensure that there is a consistent constitutional approach to capital punishment. Ohio's execution process must comply with constitutional standards, and that should be the test as far as the federal courts are concerned."

Oddly, that's what the federal courts wanted, too. And it's what they said Ohio provided in its protocol.

Except, of course, that Ohio wouldn't follow its protocol.

So here's the problem.

Ohio wants to do the same thing every time. Except it wants to be able to make it up as it goes along every time. Which isn't the same thing.

Let's Do It - Updated

2012-01-17T09:28:00.001-05:00

And so it began.

January 17, 1977.

Draper, Utah.

Gary Mark Gilmore.

He had murdered Bennie Bushnell, manager of a motel he was robbing in Provo.

There's reason to believe he also murdered Max Jensen who worked at a gas station.

Firing Squad.

First person to be murdered by law in the United States since 1967. First since 1972 when the Supreme Court said in Furman v. Georgia that all current death penalty laws in this country were unconstitutional. First since 1976 when the Supreme Court said in Gregg v. Georgia that some of the new, post-Furman death penalty laws were constitutional.

He was a "volunteer." He chose not to fight for his life, and he opposed efforts to fight for it.

There's been one execution so far this year, Gary Welch was killed in Oklahoma January 5.

Charles Lorraine was due to be murdered here in Ohio tomorrow, but that apparently won't happen.

Robert Gattis is to be murdered Friday morning in Delaware, but the Board of Pardons voted 4-1 to commute his sentence from murder by prison guards to death in prison. It's up to the Governor.

But that's this year.

And this week.

There have been 1278 executions, including Gilmore's.

Last year there were 43.

In 1977, there was just the one.

34 years ago today.

UPDATES

No, not on Gary Gilmore. Nothing new there.

But Delaware Governor Jack Markell did commute Robert Gattis's death sentence to LWOP.

He Would Not Turn Back. He Was Murdered.

2012-01-16T02:22:00.001-05:00

We cannot walk alone.
And as we walk, we must make the pledge that we shall always marchahead.
We cannot turn back.

That was the Rev. Dr. Martin Luther King, Jr. laying out the path for achieving his dream in that speech he gave in August 1983 from the Lincoln Memorial to the gathered throng and to the world.

"I have a dream," he said, repeating the words time and again like an incantation. But despite the dream, the speech is not merely a hope. It's a call to action and a program.

Here's the promise, he says: What the Framers told us, what Lincoln gave us.
Here's the reality, he says: The promise is unfulfilled.
Here's where we are, he says: Here. Now. Because it's time. It's past time.
Here's the program, he says: This is what we can do. What we must do. And (albeit in general terms), how we should do it. Together. Because we can't do it alone. And it will be hard.

But here, then, is the Dream.

And so even though we face the difficulties oftoday and tomorrow, I still have a dream. It is a dream deeply rooted in the Americandream.
I have a dream that one day this nation will rise up and live outthe true meaning of its creed: "We hold these truths to be self-evident, that all men arecreated equal."
I have a dream that one day on the red hills of Georgia, the sons offormer slaves and the sons of former slave owners will be able to sit down together at thetable of brotherhood.
I have a dream that one day even the state of Mississippi, a statesweltering with the heat of injustice, sweltering with the heat of oppression, will betransformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in anation where they will not be judged by the color of their skin but by the content oftheir character.
I have a dream today!
I have a dream that one day, down in Alabama, with itsvicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and blackgirls will be able to join hands with little white boys and white girls as sisters andbrothers.
I have a dream today!
I have a dream that one day every valley shall be exalted, and everyhill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all fleshshall see it together."

King was speaking of the need to lift the veil of racism, and then destroy it. But that wasn't just necessary for Blacks.

When the dream is fulfilled, he said, when the promise is met, then we'll all be "sisters and brothers." The dream wasn't just that Black's would be free but that freedom is for everyone.

It is, of course, an altogether extraordinary speech. Read the whole thing. Listen to it. (You can do both here.)

But hold off because I need now to move you ahead somewhat more than four and a half years. April 3, 1968. Memphis, from the Pulpit of the Mason Temple, Church of God in Christ Headquarters.

King was speaking in support of striking sanitation workers. There was going to be a march the next day, and he would be there. But not just him. He wanted everyone to join.

And when we have our march, you need to be there. If it means leaving work, if it means leaving school -- be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.
Let us develop a kind of dangerous unselfishness. One day a man came to Jesus, and he wanted to raise some questions about some vital matters of life. At points he wanted to trick Jesus, and show him that he knew a little more than Jesus knew and throw him off base....
Now that question could have easily ended up in a philosophical and theological debate. But Jesus immediately pulled that question from mid-air, and placed it on a dangerous curve between Jerusalem and Jericho. And he talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn't stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But he got down with him, administered first aid, and helped theman in need. Jesus ended up saying, this was the good man, this was the great man, because he had the capacity to project the "I" into the "thou," and to be concerned about his brother.

Which is that theme again, that we're all in it together.

And there is, again, his vision.

Well, I don't know what will happen now. We've got some difficult days ahead. But it really doesn't matter with me now, because I've been to the mountaintop.
And I don't mind.
Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the promised land!

You can read and listen to that speech here. And you should.
But what you really need to do is to step back and remember that the next evening, after the march, standing briefly on the walkway outside his room at the Lorraine Motel, the Rev. Dr. Martin Luther King, Jr. was shot to death.

He had a dream. He'd been to the mountaintop. He would not turn back.

They killed him.

There's a moral somewhere in that.

Because the State Cannot Be Trusted

2012-01-13T16:23:00.000-05:00

The opinion is short. Two pages, and one includes the caption and headings and the other has the Clerk's signature. So it's not even two full pages. And really, there's only one paragraph, three sentences, of discussion.
But what it comes down to is the language I excerpted for the title of this post.
The subject is the proposed murder of Charles Lorraine by minions of the State of Ohio.
Wednesday, you'll recall (and if not, you can read about it here), District Judge Gregory Frost said that the state could not go ahead and execute Charles Lorraine on Wednesday because it can't be trusted to adhere to its constitutional duty to execute him properly. The execution protocol is just fine, the judge said, and Ohio swears it will obey the protocol. But Ohio keeps swearing to that and then refusing to obey it's protocol. Which means that the killers just do pretty much whatever they want, and that's unconstitutional.

The latest events in this litigation invoke the saying that the more things change, the more they stay the same. Ohio created a new protocol and its agents indicated that they would comply with that protocol, presenting this Court with an interpretation of the protocol in which there are five core components from which they cannot vary. Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.” Cooey (Smith), 2011 WL 2681193, at *1

The state promptly appealed. It asked the 6th Circuit Court of Appeals to vacate the stay. Essentially, the state's argument was

Hey, close enough. You can't hold us to the trivial details. It's not like we're using bludgeons or something. We said lethal injection with one drug and we really do that part. We're the government, for gods sake. You can't expect us to do just what we promised.

This afternoon, a panel of the 6th Circuit, and not a capital-defendant-friendly panel, issued its own bitch slap.

We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

Judge Frost said it was the state's own fault. All they had to do was follow the rules they made up. How hard can that be? But the state's protestations of honesty, he discovered, were lies.

Defendants have once again fooled the Court.

Which isn't nice to do. And does tend to have consequences. In the form of case by case judicial monitoring of executions.

Because the State cannot be trusted to fulfill its otherwise lawful duty.

Panel Op Affirming Stay

It's Still Nonsense - with UPDATE

2012-01-11T12:19:00.002-05:00

But the law is what it is, and the facts are what they are. The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.
U.S. District Judge Gregory L. Frost, In re: Ohio Execution Protocol Litigation (Jan. 11, 2011)

If you've followed this mess at all, you know that in July last year, Judge Frost explained and evaluated Ohio's approach to executions.

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.

And it violated the Constitution's guarantee of equal protection. So he granted a preliminary injunction staying the execution of Kenneth Smith. For the next few months, what with a couple of reprieves and a commutation and the Smith order, Ohio didn't actually kill anyone. Instead, it futzed around with its execution protocol until it came up with something that would convince the judge that they'd learned their lesson.

At a hearing at the end of October and into early November about whether they'd get to kill Reginald Brooks, they convinced him. They were really, really serious and would do what they said. Honest injun. Scout's Honor.

Here's how Judge Frost explained it this morning.

Notably, the crux of the rationale behind that decision is that Brooks failed to present
evidence that he was likely to prove that Defendants are not doing what they say they are doing in conducting executions under the current protocol. Of significance is that, unlike in the Smith proceedings, Defendants were now saying that they got the message that it mattered that their actions matched their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol. This Court also accepted that statement.

Oh, sorry. I left out the last sentence of that paragraph.

As set forth below, Defendants have once again fooled the Court.

What the state said in the Brooks hearings and in its latest iteration of the killing protocol is that any deviation from non-core portions of the protocol (the core portions concern the actual execution) would have to be submitted to and approved by the Director of the Department of Rehabilitation and Correction. See that way, the system would be arbitrary and random, which is the Equal Protection problem.

When they killed Brooks in November, there were a bunch of deviations from the non-core portions of the protocol. None of them were submitted to and approved by the Director.

Oh, but gee, close enough for government work.

Except, no. It doesn't work that way. If there's no check on deviations, well then,

[B]y now again endorsing a system in which non-core deviations can occur without approval and without consequence, Ohio has punctured the practice that lent its new protocol the saving grace this Court afforded it in the Brooks Opinion and Order.

And now the state won't even pretend that it will follow the protocol.

If there were testimony in this record that all such deviations would be presented to Mohr for those inmates following Brooks such as Lorraine, today’s result would likely be different. This is what frustrates the Court. Do not lie to the Court, do not fail to do what you tell this Court you must do, and do not place the Court in the position of being required to change course in this litigation after every hearing. It should not be so hard for Ohio to follow procedures that the state itself created. Today’s adverse decision against Defendants is again a curiously if not inexplicably self-inflicted wound.

And so.

The latest events in this litigation invoke the saying that the more things change, the more they stay the same. Ohio created a new protocol and its agents indicated that they would comply with that protocol, presenting this Court with an interpretation of the protocol in which there are five core components from which they cannot vary. Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.” Cooey (Smith), 2011 WL 2681193, at *1.

I said the other day that the Rule of Law is in large part myth. It's not a sometime thing. Either it's the norm or it's nothing.

In Judge Frost's courtroom, at least, it seems to be the norm.

"Fool me once," the saying goes, "shame on you. Fool me twice, shame on me."

Judge Frost has now been fooled twice.

Temporary Restraining Order and Preliminary Injunction granted.

Execution of Charles Lorraine halted.

UPDATE -

The state has already appealed. Notice of appeal was filed about 4 1/2 hours after the opinion & order was issued. That's not record time, but it's pretty fast.

Lorraine LI TRO

The Fat Lady Never Sings

2012-01-11T09:34:00.000-05:00

Ten years ago today, the first prisoners arrived at Gitmo.

More and more came.

They were all too dangerous to be anywhere else.

They were all terrorists committed to killing Americans. Anywhere. Anytime.

There were enemy combatants not entitled to the protections of the Constitution, of Statutes, of the Geneva Convention or other treaties, or of International common law.

And that was OK, because there were no mistakes. Every one who was there deserved to be, needed to be. Without exception. Without error.

We knew because the government told us so. Just as we knew, because the government told us so, that they were treated with generosity and decency and full respect for their rights and their beliefs.

And waterboarding.

They could be released only when the war against the tactic of terrorism was over, when nobody, anywhere, could ever again engage in terrorism because the idea of it had been eradicated.

They could, that is, never be released.

There were hundreds and hundreds of them.

Then lawsuits were filed.

Some were released.

More were. In fact, most were.

Because, well, they just were.

And some would be released if we could just find a place to send them because they did nothing wrong and posed a threat to nobody but having been in Gitmo - well, that was a warrant to torture or kill on their return to whereever.

Obama, of course, vowed to shut the place the down. By the end of 2009.

Today, ten years to the day after the first prisoners arrived, there are still 171 of them there.

With no end in sight.

No light at the end of that tunnel.

The Rule of Law of Rule - Part the First: Freedom's Just Another Word for Nothin' Left To Lose

2012-01-08T14:02:00.001-05:00

In response to the post I put up on Friday about how cops in New York City are busting subway riders for such heavy duty crimes as standing too close to the doors, Rick Horowitz added a comment.

What you describe is how the "law" has become so twisted that "law" enforcement now has complete freedom to decide who to arrest, and under what conditions.

. . .

The country that has taken the place of the United States of America is a completely lawless country. It does not matter that "sometimes" the result comports with what used to be the law. That's just an accident. It gives support to the old saying, "Even a blind squirrel finds a nut once in awhile."

The nation has not fallen into anarchy. That may or may not be a good thing.

But the rule of law is truly dead.

If you read Rick's blog (and if you don't, and you're interested in this sort of thing, you should), you know that he's been pushing that point, with more and more conviction and absolutism, for some time. And if you've been reading my blog, you know that one of my fairly consistent themes is that there's a tension between the Rule of Law and what I've taken to calling the Law of Rule, and that when they actively come into conflict in American society, it's regularly the Law of Rule that comes out on top.

My response to Rick began this way.

The Law of Rule v. the Rule of Law is, as you likely know Rick, a theme of this blog. While I'm not quite as sure as you've become that the Rule of Law is wholly dead, I'm also inclined to doubt that it ever really lived except in myth.

Then I gave a few examples of that sort of myth and said that I should maybe do a whole post on the subject. In fact, and although I didn't say it, there's more than a single post to go. It's time that get going on a series more formally examining the Rule of Law/Law of Rule tension.

So with thanks to Rick for the push, let's begin with examining what we mean when we talk about the Rule of Law and just what I meant when I said it was little more than myth.

I suppose Wikipedia, for all its limitations, isn't a bad place to start. It's entry on Rule of Law (at least in its current form - who knows what it will say tomorrow) begins this way. (I'm deleting the links and the footnotes.)

Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles. The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

I don't think Rule of Law is a maxim, legal or otherwise. A maxim is a principle or an aphorism or something (Davy Crockett's "Be always sure you are right, then go ahead" leaps to mind as I just finished reading a biography of him). Rule of Law is, rather, a concept. And I haven't done the historical research (or even checked the footnotes I deleted) to see whether the phrase really dates to the 17th Century or whether A.V. Dicey (of whom I've never heard) really popularized it. But Wikipedia seems to have part of the general idea. Everyone is subject to the law. No special rights.

In that sense, Rule of Law is embodied in the maxim (this is one),

Ours is a nation of laws, not of men.

The United Nations describes it this way at the Rule of Law page on its website.

The principle that everyone – from the individual right up to the State itself – is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.

Aristotle made a different but related point in his Politics.

Therefore, he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.

There are universal principles, Aristotle was arguing. Recognize on them, and you've found the Rule of Law. Make up the rules as you go along ("bid[] man rule"), and you've lost that.

But acknowledging that there are universals isn't enough. The Rule of Law necessarily involves adherence to those principles. That's the Rule part. Law (capitalized) has force.

Combine these things and I think we've got a working definition.

The Rule of Law is adherence to a set of universal rules or principles governing, um, er . . .

Governing what? and who?

And where the hell do those rules come from?

And what are they?

And how big a universe are we talking about?

A formalistic answer to all those questions is just to declare that the rules are whatever they are (set by man, not by "God and Reason" to go back to Aristotle).

The alternative is that they're something else, if not altogether Universal (God and Reason, Natural Law [whatever the hell that is]), then at least culturally so. Hammurabi's Code, the 10 Commandments (if you don't think they're divinely ordained). If culture seems too iffy (What Would the Athenians Do? What Would the Hittites Do? What Would the Amish Do? What Would the Soprano's Do?), God and Reason aren't a whole lot clearer. Which God? Whose reason?

The Old Testament mandates death as punishment for cursing a parent (see Exodus 21:17; Leviticus 20:9). Draw a cartoon of Muhammed and there are those who say God insists on your death. And don't get the the Phelps family and the Wesboro Baptist Church started on gays.

A 2004 Report of the Secretary-General of the UN, "The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," from which the passage I quoted above is paraphrased, says this.

The "rule of law" is a concept at the very heart of the Organization's mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Not bad, but of course there's a whole ton of disagreement about just what those "international human rights norms and standards" happen to be. Or should be.

OK, maybe we should eschew true internationalism for something a bit closer to home. Say, the Anglo-American tradition.

I know: Magna Carta. The Great Charter. The document that the peerage (i.e., the nobles) gathered at Runnymeade in 1215 to make King John sign so that he'd be less oppressive to them (not to their serfs, of course, not to the commoners). From that document, it's said, flows our freedom. Apparently New Hampshire state Representatives, Kingsbury, Twombly, and Vita think that's a good model, since they introduced in their legislature House Bill 1580. Here it is, in its entirety.

STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT requiring a reference to the Magna Carta on certain legislation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Magna Carta References. Amend RSA 14 by inserting after section 39-a the following new section:
14:39-b Magna Carta Reference. All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.
2 Effective Date. This act shall take effect November 1, 2012.So, Magna Carta as universal law? Even in just the Anglo-American universe?

So, Magna Carta as universal law? Even in just the Anglo-American universe?

A friend of mine, a Brit, responded this way when I told her about HB 1580.

A dirty little secret that we Brits rarely disclose to you Americans is that nobody, but NOBODY, in the English legal system normally refers to the Magna Carta for anything, unless they are totally nutty pro se litigant. Citing it is a great way to get a round of barely disguised snickering behind one's back. You see, we've moved on from the Middle Ages. The citizens of New Hampshire, however, are going to have to figure out whether to cite provisions such as:

"(48) All evil customs relating to forests and warrens,foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed."

Actually, I left out the first paragraph of what Hilary wrote.

This is a hoot. They clearly haven't read the document in question - or maybe they have, which would be really worrying.

In fact, they apparently hadn't read it. At least Rep. Vita hadn't. From the Concord Monitor.

Vita admitted he needs to "bone up" on the content of the charter, but said "it's a document that still functions." He views the bill as similar to efforts in Congress requiring all legislation to cite constitutional authority.
"This is a little bit older than the Constitution, but the same thought is there," he said.

Sure. Not universal law, not the Rule of Law, not even politics. HB 1580 is really just political theater.

But what about the Constitution? We certainly owe fealty to that. Just ask the Democrats or the Republicans or the Tea Party or the ACLU or the anti-ACLU folks.

I mean, everybody likes the Constitution. Especially the Bill of Rights. Right?

And we've always honored them, right?

Let's see. 1791: Bill of Rights enacted. That includes the ol' First Amendment. You know, the one about how

Congress shall make no law . . . abridging the freedom of speech, or of the press.

1798: Congress passes the Alien and Sedition Acts making it a crime to criticize the government.

Ooops. Guess the framers (or at least the Federalist framers) thought freedom of speech only covered speech in favor of the government.

I can hear the chants now.

Let's Go Status Quo!
Bill of Rights has got to go!

I'm not really being fair. The universality of a rule doesn't depend on its always being honored.

But the existence of the Rule of Law? That does depend on at least some degree of adherence, not merely lip service.

And that's where things fall apart.

We have this idea that ours is a nation of laws not of men. Over the front entrance to the Supreme Court Building, cut into the facade, it says

EQUAL JUSTICE UNDER LAW

But that's the entrance you can't use. The one they turned into an exit only. Don't let equal justice hit you on the ass on your way out.

Because the reality is that we've never really done more than pay lip service to the Rule of Law.

The Rule of Law is like one of the Platonic ideals, floating in the empyrean. We like it conceptually. But only conceptually.

Beyond that, it's pick and choose.

Cafeteria Constitutionalism.

Jefferson believed in the Constitution and a small national government of limited scope. Then he arranged the Louisiana Purchase, more than doubling the physical size of the country. And he thought that it was probably unconstitutional.

It was 1824 when Justice Story explained in United States v. Perez that the Double Jeopardy Clause didn't mean that a person couldn't be tried twice for the same crime and that a jury's failure to agree on whether a person was guilty of a crime didn't mean that the government had failed to prove the person guilty beyond a reasonable doubt.

It 1925 when the Court decided Carroll v. United States holding that the warrant requirement of the Fourth Amendment doesn't apply when it's an automobile to be searched.

As I said, Congress enacted the Alien and Sedition Acts a mere seven years after the First Amendment was adopted. The Sedition Act of 1918 made it a crime to use "disloyal, profane, scurrilous, or abusive language" about the government or the flag or the war effort.

And of course there was the Japanese interment.

I could go on.

It's not that every move was offensive to the Constitution. And it's not that they were all without significant opposition. Certainly, it's not that the courts never stepped in and called a halt.

But the courts didn't always call a halt. And the opposition too often failed. And too often the Constitution gave way.

And as Rick said, it doesn't change things that the rule of law (all lowercase) is sometimes obeyed or affirmed. We don't operate under the Rule of Law (uppercase is back) unless it's the norm.

As it is now. As it was then.

The Rule of Law applies most clearly when we don't need it.

The First Amendment really does protect the right to advocate for the status quo, and the FBI won't likely be investigating the Democratic or Republic Party - or the Presbyterians or the Baptists - in its search for terrorists or drug abusers. But don't count on the same level of respect for the Greens or the Libertarians or the Hari Krishnas or the folks at the mosque down the street.

And Lincoln freed the slaves in the states that were in rebellion - those over which he (and we) had no control. And it was, of course, a quintessential act of taking private property without compensation or even due process. Pretty clearly an unconstitutional usurpation of power - albeit an act that was morally right.

Rick thinks fondly of those days when our leaders valued freedom. But it was for them, not for us. In contemporary parlance, they were the 1 %. And they valued their freedom. But not so much that of the 99%. And especially not that of the folks who were each worth just 2/3 of a person.

I told Rick, in my comment,

The Golden Age, Eden, Camelot's "one brief shining moment," the framer's commitment to personal liberty (for white male property owners), it's all of a piece with the Rule of Law.

Maybe the Law of Rule is winning more often now than in years past. Frankly, I'm not sure how you'd measure it. What we know is that it was bad then and it's bad now.

And that you can't lose what you never really had.

But we're all conditioned to a nostalgia for what never was, but what with hindsight we can believe.

And dream.

If You Can't Do the Time . . . Stand Back from the Closing Doors

2012-01-06T23:53:00.000-05:00

Flavio Uzhca stood too close to the door on a Number 7 subway train last March so police forcibly took him off the train, demanded ID, then arrested him.

It turns out that it's a crime to stand too near the doors on a subway in New York. Or to put your feet on a seat. Or to take up even part of a second seat.

Some things are just illegal and you get a citation and go on your way. That can happen for a subway riding violation. But they can arrest you for it, too. And, according to an article by Joseph Goldstein and Christine Haughney in the Times, they do just that.

Ask William D. Peppers.

William D. Peppers recalled how empty the subway car was. It was not yet 4 a.m. on a Friday, so most of New York was still asleep, but he was already late for his job at a Bronx bakery. As his train passed through Midtown Manhattan, Mr. Peppers stretched out, closed his eyes and nodded off.
Then came the tap. It was a police officer.
Mr. Peppers had put his feet up on a subway seat, and that, the officer informed him, was a crime — one that in his case would lead to his arrest. He spent 12 hours in jail before he saw a judge, and was released after pleading guilty.

Or ask Michael Weaver.

Michael Weaver, 20, a construction worker, was heading home to Harlem after having Thanksgiving dinner with his girlfriend’s family. As he rode an empty E train, he said, he nodded off and his right knee and thigh leaned on the empty seat next to him. Just before 1 a.m., he said, he was jolted awake by a police officer who accused him of taking up more than one seat. Mr. Weaver said the officer called his unit and asserted that Mr. Weaver had a prior violation.
“He said that it was big enough to get locked up,” Mr. Weaver said.
After he spent the night in a cell, a judge offered to dismiss the case if he stayed out of trouble for six months.

But, hey. You never know.

Paul J. Browne, the New York Police Department’s chief spokesman, said enforcement of subway regulations had made the transit system much safer.
“One of the reasons that crime on the subways has plummeted from almost 50 crimes a day in 1990 to only 7 now is because the N.Y.P.D. enforces violations large and small, often encountering armed or wanted felons engaged in relatively minor offenses, like putting their feet up, smoking on a platform, walking or riding between cars, or fare beating,” Mr. Browne said.

It's a second cousin of the broken windows theory of crime control: Take care of the petty stuff and the quality of life will be better and there'll be less tolerance for the major stuff.

Another branch of the same tree calls for rousting every black or Hispanic because you'll nab a few bad guys along with the hundreds of thousands of innocent folk.

And we might as well grope granny and the kids at the airport while we're at it.

And let's put GPS monitors in everyone's car. Or maybe implant them at birth. Hey, you never know. You can't be too careful.

We can, after all, never be too safe.

Today he's rest your foot on the empty seat in front of you. Tomorrow he's shooting up a Safeway.

Besides, the cops have a quota.

One police officer who works in the transit system acknowledged that there were a lot of “petty arrests,” but he said that officers were under pressure from supervisors to “bring in one collar” each month.

In 2011, the cops issued more than 6,000 citations for these social faux pas. Sigh.

But they actually arrested another 1,600.

Arrested.

Booked.

Taken to the pokey.

Hauled 'em before a judge.

Because what the hell.

Harvey Silverglate explained that we all commit at least Three Felonies a Day. And Scott Greenfield, via Radley Balko, pointed out the other day that we begin 2012 with 40,000 new laws we can violate.

It's called overcriminalization. And it doesn't make us safer. And it sure doesn't make us more free.

But it gives the cops something to do besides ~~munching donuts~~ solving real crimes - or preventing them.

And really, it's important to keep the subways free from terrorists like Flavio, with whom I started this little rant.

See Flavio was a serious danger to public safety, and the cops caught him red handed. ~~With a bomb~~ Standing stood too close to the door.

He'll tell you about it if you can find him, which might be tricky since he's been disappeared to Ecuador.

Mr. Uzhca, a line chef from Ecuador, was returning home from his gym before 8 p.m. on March 10. When he stood at the door of a packed train, an officer escorted him off and asked to see identification, he said in an e-mail. Mr. Uzhca said he showed identification from Ecuador. By the time he was arraigned, the authorities learned that an immigration judge had issued an order in 2002 for his deportation.
Mr. Uzhca called his bosses to tell them he would not be at work that day. He never did return.

I feel safer already.

Bet you do too.

Blawgs are made by fools like me. But only cops can keep the subway free from terrorists leaning against the doors.

They're Baaaaack

2012-01-05T02:03:00.001-05:00

Like a bad penny, they're back again.

The Birthers, that is. Undaunted by the fact that nobody serious takes them seriously (unless you count Rick Perry and Donald Trump as serious people) and that court after court after court, world without end, no exceptions no way no how has ever found that their claims have merit (or that they have a right to bring them), they chip away and chip away.

And dammit. If you put an infinite number of monkeys in front of an infinite number of typewriters, sooner or later one of them's gonna move to Georgia and file a lawsuit.

Which brings us to David Welden, who is not actually a monkey but is a citizen of the Peach Tree State, and to Georgia Code, § 21-2-5(a)-(c). (Section 21-2-5 also has subsections (d) & (e), but they're not relevant here.)

§ 21-2-5. Qualifications of candidates for federal and state office; determination of qualifications
(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.
(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate's name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate's name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.

What all this means is that in Georgia pretty much anyone can challenge the right of pretty much anybody to be on a ballot. All that's required is for the challenger to claim that the candidate doesn't satisfy the constitutional or statutory requirements of the office. Which is where Mr. Welden came in. He filed a challenge with the Secretary of State claiming that Obama wasn't qualified to be President and, therefore, can't appear on the ballot for the Democratic primary. (Yes, there are Democratic primaries this year, too; though only David Welden knows or cares.)

We need to give credit where it's due. Welden did not claim that his Barakness wasn't born in the USA. He did not claim that the birth certificate is a hoax. He did not argue about Kenya or claim that Obama isn't a citizen or . . . . Actually, I have no idea what David Welden did or didn't claim. Maybe he claimed all that stuff. But eventually, and frankly it's kind of hard to pin down the chronology here, eventually, he got hold of Van Irion of the Liberty Legal Foundation in Knoxville, Tennessee. Van didn't make any of those arguments which rely on, you know, evidence.

Instead, he made a strictly legal and absolutely logical argument.

The Constitution requires that the President be a natural born citizen.
A person can only be a natural born citizen if he or she had parents who were citizens.
Obama's father wasn't a citizen.
Therefore Obama isn't a natural born citizen and so does not satisfy the constitutional requirements to be President.
Since Obama cannot be President, his name should be struck from the ballot.

Which is all well and good. And totally wrong.

The problem, of course, is with step 2. That's the crux of the legal claim. Here's the argument as Irion lays it out in his opposition to Obama's motion to dismiss.

The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.” See Minor v. Happersett, 88 U.S. 162, 167 (1875). The Court in Happersett did go on to state that other sub-categories of people may or may not be within the broader term “citizen.” However, it did so only after specifically identifying the narrower category “natural-born citizens.” Id. The Happersett Court clearly understood and established that “citizen” is a much broader term than “natural-born citizens.” Its discussion of “citizen” does not negate or alter its earlier definition of the term “natural-born citizens.” See Id. at 167-168. This precedent has never been questioned by any subsequent Supreme Court. This precedent is binding.

Not exactly.

Oh, I'm not disagreeing that the words of SCOTUS can be binding precedent. Interestingly, though, the Liberty Legal website explains that Van doesn't argue from precedent.

Unlike most attorneys, Van refuses to begin legal arguments with the presumption that all court precedent is correct. Van always starts his legal analysis with the Constitution.

Which may explain why Van doesn't actually pay much attention to the details of how binding precedent is supposed to work - or of what case law he cites actually says.

Let's start with the idea of binding precedent. It works this way (and I'm going to simplify this to focus just on relevant stuff or we'll be here all day).

When SCOTUS rules on exactly what a constitutional provision (of any other federal law or rule) means, lower courts have to accept that unless something happens to overturn it. (The constitution or statute or rule is amended, the Court decides it was wrong.) But not everything SCOTUS says counts. Much of what gets into court opinions, from the Supremes and other courts, is what lawyers, breaking out their Latin, call dicta. It's just the bullshit that courts say along the way. It's suggestive maybe, but it ain't binding. The only part that's binding is the actual rule the Court cooks up (if it cooks one up) necessary to resolve the case.

The "definition" (it's in quotes for a reason, you'll see) of "natural born citizen" in Minor is a dictum. Virginia Minor wanted to vote. Missouri said that women were not entitled to vote. Minor said that the Privileges and Immunities Clause of the Fourteenth Amendment guaranteed her all the rights of citizenship - including the right to vote. She'd lost in the lower courts but persevered to the Supreme Court. There, Chief Justice Morrison Waite, writing for a unanimous Court, said that voting was not one of the rights of federal citizenship.

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

Note that who is and who isn't a natural-born citizen is wholly irrelevant to the question. Oh, Waite prattles on at some length about how people become citizens and what it means to be a citizen and why even though the Constitution doesn't actually define the term it's pretty clear who is and who isn't. Ostensibly, he does that to explain why it is that women can be citizens just as men can. But it doesn't matter to the conclusion. It's just so much bullshit as far as the point of the case. If it contained a definition of "natural born citizen," the definition might be instructive, might be interesting. It wouldn't be binding.

So Van Irion is just wrong about that.

But, and this is important, he's wrong about the other part, too. That is, he's wrong to say that

The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.”

Oh, Minor uses those words and thereby says (in a dictum) that children born in any country of parents who were its citizens are "natural-born citizens." What it doesn't do is exclude children born in a country whose parents were not its citizens from that category. Here's the paragraph.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

Waite recognizes that there are naturalized citizens and there are citizens who are natural-born because they were born here and their parents were citizens. It may be, he says, that citizens who are born here but whose parents were not are also natural-born citizens. No need to decide, he says, and doesn't.

Not to decide, is to decide goes the old adage. Van takes that seriously. Waite said it wasn't necessary to decide whether people like Obama were merely citizens or were citizens natural born. The Court's refusal to answer the question was an explicit and binding answer.

No. That's not right. It's not even coherent.

Obama's lawyer didn't make that argument in his motion to dismiss. He argued that Georgia Code § 21-2-5 didn't apply to the Democratic primary, which was stupid. And he didn't say that Weldon's argument on the merits was the veriest bullshit. He said that no court has ever entertained an argument on the merits of any birther claim and, anyway, lots of people voted for Obama. Which are essentially irrelevant claims.

And so the Honorable Michael M. Malihi did what judges do when the defendant makes a bullshit motion to dismiss a wholly frivolous lawsuit. He denied the motion.

Accordingly, this Court finds that Defendant is a candidate for federal office who has
been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.
II. Decision

Based on the foregoing, the motion to dismiss is DENIED.

Apparently a hearing on the merits is scheduled for January 26 at 9 a.m.

I'm not planning to attend.

h/t Eugene Volokh at the Conspiracy.

A Hero Passes

2012-01-04T10:39:00.000-05:00

You know the story.

1942. We were at war with Japan. We were at war with Germany, too, but that was different because we hated Germans but they kind of looked like us and it was hard to be sure. The Japanese, though, they even looked different. And had different sorts of names. And there'd been Genghis Khan and Fu Manchu. And they were treacherous. They attacked Pearl Harbor without first sending a post card announcing when they'd do it so we could be prepared to fight back. And there was this long history of racism against Asians (who weren't, after all, white).

So we were at war and were scared and we hated them anyway, so we did what red-blooded Americans always do at times like that: We imposed a curfew on Japanese-Americans near the west coast. Then we herded them into concentration camps. More than 100,000 of them.

Until it was over.
Without trials.
Without redress.
Citzens and resident aliens.
Who'd done nothing wrong.
Except have that funny-colored skin.

Minoru Yasui, Fred Korematsu, and Gordon Hirabayashi refused. They went to court where they would be protected, vindicated.

They believed in that silly thing called the Constitution. Limited Government. Equal Justice under law. Even in times of war. Even when we're scared. Even if they were "yellow."

The courts, they knew, would enforce the Rule of Law against the Law of Rule.

They were wrong. In a string of cases, the Supreme Court ruled against them.

Korematsu, decided in 1944, was a 6-3 decision, Justices Roberts, Murphy, and Jackson dissenting.

Hirabayashi and its companion case Yasui were decided in 1943 and were unanimous.

The Japanese interment and the Supreme Court's decisions are a national embarrassment and a stain on the judiciary. Of a piece with Dred Scott, and Plessy v. Fergusen.

But Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui are heroes. They stood up for what they knew (and we know) was right. Despite the odds. They fought. And then they lost. Still, they didn't give up.

Their convictions were reversed in the 1980s. The government, it turns out, had already determined that the Japanese-Americans were no threat to national security. It just wanted them put away.

In 1988, the government apologized for its conduct and payed reparations to those it locked away for no reason but the color of their skin. Too little and too late, but something.

Minoru Yasui died in 1986.

Fred Korematsu died in 2005.

On December 31, Obama signed the National Defense Authorization Act which provides for indefinite detention without trial of anyone, citizen or not, found in this country or not, who's suspected of being somehow someway you know maybe could be connected to Al Qaeda or someone who might be somehow.

Two days later, on January 2, Gordon Hirabayashi died. He was 93. He was living in Canada. May he rest in peace.

h/t Jonathan Katz

Happy New Year! Rest In Peace.

2012-01-04T02:13:00.003-05:00

The holidays are over. Let the killing resume.

First up is Gary Welch. Oklahoma plans to kill him tomorrow.

Ralph Birdsong and Kenneth Hairston are due to be killed in Pennsylvania on the 17th and 18, but people who know better than I say it probably won't happen.

Then it's our turn here in the Buckeye State. We've scheduled the murder of Charles Lorraine for 10 AM January 18.

During his first 10 years on death row, Lorraine had a number of misconduct reports. Since 1996, there's been only one (possession of contraband in 2003; I don't know what the contraband was, but he wasn't put in the hole which suggests that it wasn't a particularly serious offense).

Nobody seems to care that he's apparently changed, calmed down, become within strictly imposed limits of death row law abiding.

Nor does anyone seem interested in the fact that Lorraine made a full confession when he was arrested. He accepts full responsibility, though he still can't exactly explain why he did it.

The Parole Board, which has in the past held it against people that they won't accept responsibility and has sometimes pointed to "poor institutional adjustment" as evidence that someone is irredeemable, voted the week before Christmas to put a lump of coal in Lorraine's stocking. He brutally murdered an elderly couple. The woman was bedridden. He saw them both as friends he says, yet he'd robbed them before and intended to kill them this time. So the hell with him.

A sentence short of the jury's finding of death and the court's imposed death sentence would demean the seriousness of this offense.

Just deserts. Or something.

Last year there were 43 executions in the United States. Texas, of course, led the way with 13. Alabama came in second with 6. Ohio, even with stays and reprieves and commutations, was a close number 3 with 5.

There were 78 new death sentences across the country. That's the first time it's been under 100 in the modern era of the death penalty (since Gregg in 1976).

The Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, a former prosecutor appointed by Governor Schwarzengroper, a supporter of capital punishment in principle, told the Los Angeles Times that it doesn't work.

"I don't think it is working," said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. "It's not effective. We know that."
California's death penalty requires "structural change, and we don't have the money to create the kind of change that is needed," she said. "Everyone is laboring under a staggering load."
In response to a question, she said she supported capital punishment "only in the sense I apply the law and I believe the system is fair.... In that sense, yes."
But the chief justice quickly reframed the question.
"I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?"

But that was so 2011.
It's a new year now.
The holidays are over.
Let the killing resume.

Gary Welsh tomorrow in Oklahoma.

Charles Lorraine here in Ohio in two weeks.

Happy New Year!!

Rest in peace.

Lorraine Clemency

More Piling On

2012-01-02T13:47:00.001-05:00

I was reviewing an indictment* charging Aggravated Murder and a specification that a gun was used in the offense. It's the usual out of Lucas County, boilerplate with a couple of blanks filled in.

THE JURORS OF THE GRAND JURY OF THE State of Ohio, within and for Lucas County, Ohio, on their oaths, in the name and by the authority of the State of Ohio, do find and present that ________________, on or about the ___ day of _______________, in Lucas County, Ohio, did purposely cause the death of another with prior calculation and design, in violation of § 2903.01(A) and (F) OF THE OHIO REVISED CODE, AGGRAVATED MURDER, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
SPECIFICATION THAT OFFENDER DISPLAYED, BRANDISHED, INDICATED POSSESSION OF OR USED FIREARM-§2941.145
The Grand Jurors further find and specify that the offender had a firearm on or about the offender or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm or used it to facilitate the offense.

As I said, that's all formula fill-in-the-blanks stuff. You do serious criminal defense in state court around here you see exactly that indictment on a fairly regular basis. But this time I was struck by something about the specification. It wasn't the obvious uncertainty.

Did he have a gun in his pocket?
Did he wave one around?
Did he just announce, "I've got a gun"?
Did he shoot someone?

I've learned to ignore that, as you do when reviewing these - except maybe for a form motion. Sure, there's a Sixth Amendment (and Section 10, Article I of the Ohio Constitution) issue when the Grand Jury doesn't charge some particular action involving the firearm, but the courts don't find that problematic.

First, the victim (if there actually was one), was probably shot to death, so you know that the actual charge is "used it to facilitate the offense." (You'll get confirmation of a sort from the coroner's report.) Second, if you don't know what's supposed to have been done with the gun, the courts have told you that your remedy isn't to get that part of the indictment dismissed, or even to get a look at the grand jury transcript, but to get the prosecutor to give you a bill of particulars saying what the state intends to prove (regardless of what the Grand Jury might have thought. Fuck the grand jury.

As I say, you ignore those problems. You can tell what the claim is, after all, and for the most part Ohio courts don't think the grand jury requirement actually requires much of anything. And hell, we don't have that many murders in Lucas County. When you get the case, maybe before, you go on line and get the news stories so you know what's supposed to have happened.

No, it wasn't that. It was the specification itself.

A bit of context.

The guy was charged with Aggravated Murder. The potential sentences are set out in Section 2929.03(A) of the Ohio Revised Code.

(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial court shall impose one of the following sentences on the offender:
     (a) Life imprisonment without parole;
     (b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment;
     (c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;
     (d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;
     (e) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (A)(1)(a) of this section, the trial court shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment that shall be served pursuant to that section.

Because none of the exceptions apply, if the accused person is convicted the judge gets to pick one of four sentences of life in prison. Three allow the parole board to think about letting her out some day - sometime after no fewer than 20 years, after no fewer than 25 years, or after no fewer than 30 years. The fourth choice is LWOP, Death in Prison.

The judge, and at the time of the indictment, the prosecutor doesn't know who the judge will be, gets to choose one of those sentences on any basis she wants. Some bases are illegal (because he's black, say, or because the family of the victim bought the judge a condo in the Bahamas a few days before the trial), but as long as the judge doesn't actually announce that she's imposing the sentence for an illegal reason, it's OK for her to do so. Judges, after all, all act with absolute integrity all the time - and announce it when they don't - and to suggest otherwise is to violate the Mark Gardner Rule.

Let's say the judge chooses life with parole eligibility after 20 full years. That means that the first time the Parole Board can consider letting the guy out of prison is after he's been in custody for 20 years. The Board doesn't have to let him out then, of course. And in fact, it won't. Just doesn't happen.

He killed someone f'rgodssake. Shit. We'll think about it again in 5 years. And then 5 more.

And 10 years later?

Well, I suppose it's possible. Call it a qualified maybe.

Life with 25, same thing: 10 years of flops minimum.

Life with 30: ditto.

LWOP? Well, that's just death.

OK, that's the context. Here's what caught my attention about the gun spec:

Why is it there? I mean, let's be honest about this.

The gun spec carries a mandatory consecutive and prior 3 year prison sentence. That is, if the guy is convicted of Aggravated Murder and also of the spec (and if he's not convicted of the Agg Murder, he can't be convicted of the spec), he gets one of those life sentences but before it begins he has to serve 3 full years. So the real sentencing options will be

23 years to the Board

28 years to the Board

33 years to the Board

3 years and then Death

Is there really much difference? Especially when we all know that the Agg Murder sentence is likely to be LWOP.

I've written before about sentences that can't be served (here, for instance). This isn't, at least technically, one of them. After all, if the guy gets 23 to the Board he could, in theory, be released after a (mere?) 23 years in prison. Depending on age and health and the vagueries of chance, he could live that long.

Will the extra 3 years make a difference?

Will they deter anyone from committing a murder "with prior calculation and design"? Will a killer do the calculus and make the decision?

Sure, I'm going to kill this guy. That's the plan, and I aim to follow it. I'll take my chance on 20 years to the Board, but not 23. So I'll leave the gun home and use a bomb or a knife or a garotte or just beat him to death. Hah! Then I've got a chance of 20 to the Board rather than 23.

And will anyone care. After all, the victim will end up just as dead.

The extra three years won't deter. And it won't send any lesson - except maybe that we think some ways of killing are worse than others, which may be true, but I can think of lots nastier ways to kill someone than shooting him. It's additional punishment, I suppose (if it's realistically going to make a difference in how long the guy serves if convicted), but not much on an Agg Murder sentence and maybe none.

I get the point of a gun spec. We don't want bad guys waving guns around because they have a tendency to go off. A robbery with a gun is perhaps more likely to end up with a seriously injured - or dead - person than a robbery with a knife. (That's an empirical question. I don't actually know the answer, but let's just assume it's true for the moment.) But a murder always involves someone ending up dead. Gunshot murder isn't, in any rational way, more serious than murder by other means, and as I say, maybe less so if we measure seriousness by, say, pain inflicted.

A gun spec in an Agg Murder case? Piling on for the sake of piling on.

Part of the theory behind our system of criminal justice is that it's supposed to be rational. Each piece is supposed to make sense, both on its own and as part of the larger system. It doesn't operate that way in the real world, of course, but that doesn't mean we shouldn't call it out for the failures.

Look, I've said before that I hate guns and wish they could all be banned (here, for instance). But my policy preference is essentially irrelevant since the Constitution takes a decidedly different view. And regardless of your view of firearms, the issue I'm addressing isn't guns but rational criminal justice charging and sentencing.

Here's the question.

Should charges (or a specification, in this case) be brought simply because it's allowed?

Here's the answer:

No.

---------------------

*Tip to lawyers, trial and appellate: You should always review the indictment or other charging instrument, not just because you need to know exactly what the charges are (and it's astonishing how often lawyers actually don't know and try to defend against charges they thought were brought against the client but were not), but also because the government screws them up sometimes - and sometimes in ways that matter.

Gearing Up for the Next Round

2012-01-01T23:45:00.001-05:00

Really, there's nothing special about January 1. Nobody looked at the seasonal cycles or at lunar months or at much of anything and said,

Gee guys, I've got an idea. Let's celebrate the new year around 10 days after the winter solstice.

That our year begins when it does, and that we celebrate it's beginning when we do, is essentially an artifact of calendrical history liturgical convenience, and Western European global hegemeny.

Still, it's what we have.

Yesterday, I wrote that 2011 was a year pretty much like any other. The odds are that 2012 will be, too.

The good, the bad, and the ugly in some generically predictable but specifically uncertain admixture. Just like always.

But if New Year's Eve is when we traditionally shuffle off the past, New Year's Day is a traditional time to look forward.

I don't make new years resolutions. I can feel guilty about overeating and underexercising without an annual promise to myself to do better. (I don't actually feel guilty about those things, but I could.) I'm not into rituals of self-improvement.

Nevertheless, I've been rereading Harper Lee's To Kill a Mockingbird. I'm old enough to have read it when it first came out, in 1960. I remember buying it in hardcover at the big Doubleday bookstore on 5th Avenue in Manhattan. I probably read it again a couple of years later when the film came out. But I'm not one of those people who went to law school (or into criminal law) inspired by the vision of Atticus Finch.

But his figure lurks.

Not so much as a model of how to do law - I once attended CLE session built around how really awful his representation of Tom Robinson was. Constitutionally ineffective.

But as a model of how to live.

There's a stubborn decency in the man. And a commitment to facing up to responsibilities and doing what you can. And not judging or condemning. And mostly, there's this sentence he speaks to Scout.

Simply because we were licked a hundred years before we started is no reason for us not to try to win.

Which is what we do.

As criminal defense lawyers.

As human beings.

Which for some of us is much the same thing.

The King is dead. Long live the King!

Welcome to 2012.

Adios 2011

2011-12-31T13:37:00.002-05:00

Then we came to the end of another dull and lurid year.

That's the first sentence of Don DeLillo's Americana. I quote it each year on December 31. It never stops capturing a certain truth.

It's been a year of highs and lows, wins and losses. Things have gotten worse and better. Years are like that.

So here's where I should insert a few highlights and lowlights from 2011 (with links). I'm not going to do that. Because there's nothing special.

Some folks got what they deserved (for better or worse). Most probably didn't.
Government fucked us over repeatedly, but sometimes it didn't.
Same for the courts.
And the cops.

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

What else is new?

As I said a year ago today,

Dickens understood, though he was speaking of a particular historical moment in A Tale of Two Cities.
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

Every silver lining has its cloud.

And so we come to the end.

Winter is come, that blowes the balefull breath,
And after Winter commeth timely death.

That's from the December Eclogue in Edmund Spenser's The Shepheardes Calender (1579).

But ineluctably (though not for several months yet) Spring follows Winter. With death, with ending, comes birth.

The Phoenix. Janus. And Shakespeare:

[T]hou mettest with things
dying, I with things newborn.

So says the Old Shepherd who has come upon a baby to the Clown who has come upon a man killed by a bear. It's from Act III of The Winters Tale, itself is a play about cycles and rebirth and starting over.

Yet we're each a little older. Perhaps a bit wiser. Maybe more jaded.

Much of what we've lost won't be recovered.

The new year isn't likely to be better than the old. And on balance we're probably worse off than we were.

I'm not talking economics here, though maybe that too. I'm talking about our rights. I'm talking about our ostensible system.

Lift a glass tonight and mourn not the passing of the year but the passing of some last chances. Mourn as we move further from the Rule of Law to the Law of Rule.

And then?

We're back at it.

They're still arresting people. Some factually innocent, some not.

They're still going to execute people.

There's still a war on drugs and it's still an arrestable offense in many places to record the police abusing the citizenry

Despite a few press releases from the Justice Department, Sheriff Joe is still in business in Maricopa. And there's a fair chance his clones are at large in your neck of the woods.

We're as scared as we were last year at this time. Maybe more.

Plus ca change, plus c'est la meme chose.

And so the fight goes on.

Thanks for sticking with me.

See you next year.

* * * * * * * * *

The play is not done
Oh, no, not quite
For life never ends
In the moonlit night.
And despite what pretty poets say
The night is only half the day.So we would like to fully finish
What was foolishly begun
For the story is not ended
And the play never done
Until all of us have been burned a bit
And burnished by the sun.

Tom Jones, The Fantastiks

Best Criminal-Law Blog Post of the Year

2011-12-24T11:35:00.002-05:00

The award is for Best Criminal-Law Blogpost of the Year. Nominations are open over at Scott Greenfield's blog.

Go. Nominate. I've already won, so it's someone else's turn.

Hat tip to Mark Bennett for suggesting that I urge you to do this.

The Soft Bigotry of Low Expectations

2011-12-23T02:53:00.002-05:00

Gerry Spence says he's never lost a case, which may or may not be the same as having won every case. Much depends on how you define wins and losses.

I want to talk about wins. Which means I have to talk about what it means to win a case.

The easy answer is hearing the prosecutor say

We're not going to prosecute.

We're dismissing the charges.

or having the judge announce

Case dismissed.

or listening to the bailiff (or judge or foreperson or whoever in your jurisdiction) reading the magic words on the verdict form

Not Guilty.

or some variation on that theme.

But sometimes, along with those golden words, there's also a

Guilty.

More than one count, more than one charge. You win some you lose some.

But what if it's only guilty? And what if it's not at trial.

I've talked about this in the context of death penalty cases: A win is anytime the government doesn't get to kill the client.

But what about other cases? And what about when there's no trial? Or when the trial is over and you're up on appeal? Lots of situations.

Here are some things that can happen that aren't exactly losses but also aren't the coveted words that send your client home with no criminal record (or no additional one).

Suppression granted
Plea bargain so the client is convicted of a lesser offense.
Plea bargain so the client is convicted of fewer offenses than she might have been.
Plea bargain so the client gets less time or better sentencing circumstances than he might have gotten.
Guilty of some but not all.
Probation.
Less time.
Lower fine.
No court costs.
Not guilty of some charges.

And that's just at trial. But you know, cases continue.

So there are appeals.

Reversed, conviction vacated, case dismissed.
Reversed, conviction on some counts vacated and dismissed but the rest is affirmed.
Reversed for new trial.
Reversed for new trial on some counts.
Reversed for new sentencing.

Although a new trial or new sentencing doesn't necessarily mean things will get a lot better. Clients do get convicted again. New sentences are not always better than the old ones.

That can happen before trial, too.

Get the confession suppressed. Convicted anyhow.
Get the breath test suppressed. Convicted of impaired driving anyhow.
Get some of the drugs suppressed. Not enough of them.
Get the objection sustained. Get the bad juror struck for cause. Get the jury instruction you want. Get the motion granted. You can still watch your client taken away in shackles.

Every silver lining has a cloud around it. Sometimes we're reminded that lemonade is really just lemons. Life sucks. Shit happens.

And yet, after a fashion, those are all wins.

Which brings me to a case out of Ohio. It's in the Sixth Circuit Court of Appeals and the issue is whether the guy's appellate lawyer was constitutionally ineffective. Not so, says the state.

Obviously he was effective; he won the appeal. What more can you ask for? What more could the client ask?

It's not a nonsensical argument. I won a new trial once for a guy on death row. The state was going to take the case to a higher court. Who knew what they'd do. So, to be protective, papers were filed arguing that I'd been ineffective. There were these issues, it was said, that I should have raised but didn't.

Maybe I should have. It's getting on toward 20 years now. While I remember the issue on which I won the case and know that I raised a whole bunch of other issues., I don't have any recollection of what there might have been out there. Call it a senior moment from back when I was a junior. In any event, the court of appeals' response was simple and to the point:

He won the case. By definition that means he wasn't ineffective.

As I say, that's not a nonsensical position. But, and this is sort of where I started, there are wins and there are wins. And while winning may not be everything (or may be the only thing), it's also sometimes just as good as a loss.

I'm not talking pyrrhic victories here, the kind that leave the client worse off than before. (And yes, there are such in the law. But as I said, I'm not talking about that sort of thing.) I'm talking about the merely worthless.

I'm talking about that case in the 6th Circuit. The one where the state argues that the guy's appellate lawyer did brilliant work, as you can tell because he won.

OK, already, cut the suspense. What did he win? Case dismissed? New trial? Nah.

He got the sentence reduced.

Hey, that's pretty good, right. Means the guy gets out sooner. Can't sneeze at that.

Or maybe you can.

The guy does get out sooner. If he lasts that long.

The old sentence required him to stay in prison for the rest of his natural life, die, then have his corpse remain in prison for another 61 years. Death + six decades + a year. And then, of course, he'd be on post-release control for 5 years. Because you have to keep an eye on zombies.

Really, that's an awful sentence. And kind of a stupid one.

So what happened? What did the brilliant lawyer achieve? The guy's got an out date now, right? Pretty good.

Well, not exactly.

The new sentence? Death in Prison followed by 53 years more in prison.

Sure, it's less time. Shaved 8 years off the sentence. Which would be a lot if the sentence were, say, 10 years. Or even 20. Maybe 30.
But an 8 year break? For a corpse?

I don't know the case. I don't know if there's a compelling argument that appellate counsel was ineffective. I have no idea. I do know that a win like that doesn't do the client much good. And it doesn't say a damn thing about the skill in general (or the constitutional competence in this case) of appellate counsel.

The lawyer who represents the guy now, the one who's arguing that appellate counsel was ineffective, the one who's got to respond to the claim that appellate counsel was surely effective since he won, that guy. He knows how hard it is to convince a court that counsel was ineffective. He knows how absurdly low the standards of competence are.

And this is perhaps a new one. On a par with the argument, in another case, that a guy couldn't have mental retardation because he once scored 14 points in inmate basketball. Steve Hardwick, the lawyer, calls the state's argument

the soft bigotry of low expectations.

Which it is. And which I stole for the title of this post.

LWOP plus 53. Another of those absurd sentences that can't be served. Still it's a win. Better than LWOP plus 61. On paper only, of course. But a win. Though the sort of win only an appellate lawyer could savor.

And then, really, not when the client is watching.

Naming Names

2011-12-18T20:54:00.000-05:00

Some people remember faces. Some names. I'm a face guy.

Introduce me to someone today and unless there's some compelling need for me to make notes of the name, I'll remember all sorts of things about her tomorrow, but probably not her name. Or his.

And so what? Aside from a little social awkwardness, it mostly doesn't matter.

Words make a difference, of course, they matter. (What else would I say? I'm an old English professor fergodssake.) But my subject here isn't generic words. It's far more specific. It's names.

Juliet called the question.

What's in a name? That which we call a rose
By any other name would smell as sweet.

Well, yeah. But if you want other folks to know you're talking about roses it's probably better not to call them snap dragons. Because names matter too.

Partly it's that names signal more than just identification, identity. Who we are is tied up with what we're called. (There are reasons many married women in this society choose not to adopt their husband's surname, just as there are reasons people elect to change their names.) And what we're called can be, well, names matter.

There are lawyers who fight tooth and nail to prevent their client from ever being called "defendant" because it suggests that they have some obligation to defend. They don't, of course. The entire burden is on the government to prove.

Occasionally a judge will actually grant a motion to prevent prosecutors from calling someone a "victim." After all, there isn't a victim if there wasn't a crime. And until the jury says there was a crime, there wasn't. But if that person is called a "victim," then guilt is presupposed.

And of course, there's the whole thing about dignifying people with their names. "Mr. Jones" is a mark of respect. "Boy" is an insult. "Nigger," at least from someone white, is worse.

There was a judge who could never remember anyone's name. "Madam Prosecutor," he would call the prosecutor. Mr. Defense Lawyer, he would call defense counsel. "Mr. Defendant," he would call the defendant. Everyone felt insulted until they understood it was his odd way of being polite.

All that is by way of introduction to a side issue in the Jerry Sandusky train wreck. A side issue, but one that's generating a fair amount of attention. Enough so that Arthur Brisbane, the "Public Editor" of the New York Times, decided to devote his column in today's paper to it.

THE NEW YORK TIMES generally does not publish the names of sex crime victims. But a Nov. 22 article about one boy in the Jerry Sandusky case at Penn State contained biographical details that effectively identified him for anyone who knows how to search the Web, according to critics and the boy’s lawyer.
Michael Boni, the lawyer for Victim 1, as the boy is known in the grand jury report, said The Times should have exercised greater restraint, adding, “These guys knew it would out the kid.”

Maybe. See, the major media (all of them) have that same general policy, subject to exceptions. Why? Brisbane again.

[I]t is the fear of exposure that often discourages victims of sex crimes from reporting them in the first place. Dean Kilpatrick, an authority on sex crime victimization, told me that public exposure of victims in high-profile cases reinforces this fear.
“Most victims, based on the research, are very reluctant to report,” said Mr. Kilpatrick, a clinical psychologist at the Medical University of South Carolina and director of its National Crime Victims Center. When they are asked why they don’t report the crimes, he said, “some of the top concerns are: ‘I am afraid,’ ‘I don’t want other people to find out,’ ‘I am afraid that people will blame me for what happened.’ ”

OK, a decent motive. We want people who are victims of criminal assault, sexual or otherwise, to report it. When we do things that embarrass them unnecessarily if they report, they're less likely to report. That's logical, and it's a seemingly fair social policy determination on the part of the media.

Except it's only seemingly fair. In fact, when you think about it for a bit, it's dangerous and, although it's easy to toss the term around in this era of Scope and Grope and indefinite detention based on government hunches and Steven Seagal joining Sheriff Joe in a tank attack on a cock-fighting tournament, unAmerican.

See, here's the thing.

The people we're protecting, the people we're allowing to have their identities hidden so as to avoid the embarrassment of naming, those people aren't actually "victims of sex crimes." They're people who claim to be victims of sex crimes. They are accusers. Maybe they're telling the truth, maybe not.

There's this other person, of course, who's deeply embarrassed, who's humiliated. Who's shamed. Who's reputation is trashed. Who's understood to be guilty. Before trial.

He's the one hiding his head during the perp walk. Because, you know, he's a perp. And we know that because he was accused by someone who's ashamed to say,

I accuse him.

Instead, there's this passive voice of condemnation.

He did something horrific to someone.

Or maybe not.

Legally not. Not unless the jury says so. Unanimously.

But we (that's neither the royal we nor the plural for you and I, it's the collective we for the body public) don't give a shit about that.

J'Accuse.

So says Publius.

Hiding for shame.

Brisbane concludes his column this way.

In the case of Victim 1, the details concerning the auto accident and the boy’s athletics added human interest to the story, giving readers a deeper understanding of the boy. Was that reason enough to include them and put his privacy at risk? I don’t believe so. The traditional mandate to preserve privacy is there to protect sex crime victims — a broader social purpose that, in my mind, outweighs the transient benefits of a single human-interest story.

Got that.

The traditional mandate to preserve privacy is there to protect sex crime victims.

And the Times didn't protect, sufficiently, Sex Crime Victim Number 1. Who might or might not actually be a sex crime victim.

I'm not interested in figuring out they identity of that person who claims to have been victimized. What I'm damn sure of is that whoever that person is, Jerry Sandusky has far more reason to have had his identity concealed.

To avoid the real shame of being an accused child rapist.
To avoid the harassment that follows absolutely.
To preserve, insofar as possible, the presumption of innocence.

Because it's what's supposed to be the American way.

Which of course we never really much honor except in the breach.

When 15,000 Hours Isn't Enough

2011-12-17T22:29:00.001-05:00

15,000 hours.

That's fifteen thousand. There are 168 hours in a week. That comes to a bit over 89 weeks. Not work weeks. It's 350 of those 40 hour weeks. No. 89 weeks at 24/7, 89 weeks of 168 hours each. Or do it differently. There are 8760 hours in a year. And then most of a second year. Non-stop. Meal breaks? Nope. Sleep? It is to laugh.

15,000 hours.

Of course, it doesn't work that way.

The 15,000 hours have been spread over 15 years.

And they've been put in by a total of 25 lawyers.

Who aren't yet done.

Though they've pretty much cut the heart out of the case.

It was 1983 when Joe Belenchia, the manager of a grocery in Memphis, was shot and killed by someone during a robbery. A customer identified Erskine Johnson, though he said he wasn't sure. Someone else said she had been told Johnson was the killer. Johnson said he was innocent, but the jury didn't buy it.

He went to Tennessee's death row in 1983.

In 1995, Cleary Gottlieb Steen & Hamilton, a white shoe law firm with offices on five continents but that calls home a space next to Zuccotti Park where the partners (who pretty much occupy Wall Street) probably didn't Occupy Wall Street, took on the case pro bono. They assigned then-senior associate (now partner) David Herrington to the case. And they worked it, he and the firm. For 15,000 hours. And 15 years.

They did the sort of work they can do because 15,000 hours over 15 years is pro bono for them. They can get 25 lawyers involved at least for bits of work over that 15 years. And they've got the money to hire all the investigators and experts and to jet to the hearings and who knows what all.

And they did.

And they needed to.

Oh, some progress came fairly quickly. In 1999, after just 14 years on death row, a Tennessee trial judge vacated Johnson's death sentence. Seems police had hidden the fact that they knew he couldn't have also shot a store customer (who lived), but it was the claim that he did shoot the customer that made Johnson eligible for death. 14 years. Or maybe 16, since it was 2001 when the Tennessee Supreme Court affirmed that decision. Or maybe it was 19 years, since it was 2004, before the state abandoned the effort to get him back on the row with a new death sentence. So, yeah, 19 years. Life to go.

Life is something, of course. But it's still a death sentence, still Death in Prison, albeit with a different mechanism for the death - nature rather than paid killers for the state. And if you're innocent, as Johnson claimed . . . .

Here's Julie Triedman for the AmLaw Daily.

Herrington recalls that the Cleary team got its first break while poring over prosecution and police records. Those records, he says, showed that prosecutors had withheld information from Johnson that supported his claims of innocence.
Among other things, Herrington says, the Cleary lawyers turned up testimony from a store customer who had identified a member of the local "Brown Gang," not Johnson, as the gunman, as well as testimony from a teenager who had told police that he saw two members of the Brown Gang changing the license plate on the alleged getaway car just before the robbery occurred. The Cleary lawyers also learned that police knew the car in question had been stolen from the St. Louis airport, and that members of the gang often stole cars there and brought them to Memphis.
. . .
Cleary's work on the case wasn't done. The firm's investigators tracked down a new witness being held in a Kentucky prison who undercut the credibility of the prosecution's key witness at trial. The Kentucky convict—a Brown Gang associate—said that the prosecution witness had close ties to a Brown Gang member who had herself been implicated in the robbery—giving the witness a motive to testify dishonestly.

The trial court said that wasn't good enough. You had no right to take so long to find compelling evidence that he's innocent. We don't care.

The court of appeals did care.

So did the Court of Criminal Appeals.

Back to the trial court, which said,

Ho, hum. Innocent? Maybe. But maybe not. Let him rot.

And so up the case went again.

And on December 9, the Court of Criminal Appeals said they'd had enough.

Conviction vacated. New trial ordered.

Let me be clear. I don't know whether Erskine Johnson killed Joe Belenchia, though from what I've read, it seems unlikely.

See, this isn't actually a post about an innocent man on death row. It isn't a post about Erskine Johnson, either. Nor about David Herrington and Cleary, etc.

It's a post about 15,000 hours. Which is more than 89 weeks at 24 hours a day, seven days a week. More than one and a half years worth of every hour of every day. 350 weeks at 40 hours per.

It's a post about time.

And it's a response to those who say - one trial. One appeal. One quick round. Justice delayed is justice denied. Kill 'em and get it over with.

It's a response to them.

Because, see, they'd have killed Erskine Johnson.

And it's a response to the State of Ohio that thinks it's appropriate to say that you get one shot at state post-conviction relief and the petition has to be filed within 180 days of the day the transcript is ready for the direct appeal. Can't get your evidence by then? That's your problem. Because we have to get on with it.

Finality, don't you know.

And, by the way, you can get paid up to $500 for investigating and preparing and litigating that petition in Lucas County, though you can get another $500 for the appeal. So for 15,000 hours, you can make $1,000. Which is $0.066667 an hour. Yep, just under 7 cents an hour. Which is a lot less than your overhead.

But really, there's no excuse for it taking that long. Just because the cops hid the evidence from you? You should have found it sooner. And then done your own investigation. ASAP. Sleep? Meals? Just assign some of the other lawyers you don't have working for you to do it. For free, of course.

As I say, this is a post about time. And about resources. And about possibility.

Erskine Johnson, if he's innocent, and it sure looks like he is but what do I know, was damn unlucky. And damn lucky, too.

The first part can happen even without the cops hiding the evidence that they've got the wrong guy. Witnesses make honest mistakes. Juries get it wrong. Under the best of circumstances and when everyone acts properly and with honesty and integrity, that can happen. Humans are fallible and they can and do screw things up. (Add malfeasance and dishonesty and convicting the innocent becomes routine.)

But if we can't prevent the bad luck of the innocent being convicted, we can make a serious effort to allow for correction. Which takes time and resources. And shouldn't rely on the chance of finding some guys with offices in South Korea deciding that they'll dump 15,000 hours over fifteen years into a case. For free. And the chance of being in a state that has a procedure for litigating actual innocence.

Wait, did I say 15,000 hours?

And counting.

The local prosecutor wants to try Johnson again.

Pre-Holiday Presents and Other News Items

2011-12-16T21:25:00.001-05:00

I could write about how death sentences are down.

I could write about how Judge Faye D'Opal of Marin County Superior Court said that California's six-year effort to revise its execution process resulted in an invalid procedure and the whole thing needs to be restarted. Judge D'Opal explained.

The Initial Statement of Reasons (ISOR) and the Final Statement of Reasons (FSOR) each substantially failed to comply with the APA requirements by not considering and describing alternative methods to the three-drug protocol; by failing to provide a sufficient rationale for rejecting these alternatives; and by failing to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, in violation of § 11346.2(b)(3)(A) and § 11346.9(a)(4).
“If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’ (Cal. Code Regs., tit. 1, § 250) and is invalid. [Citation.].” (Naturist Action Committee v. California State Dept. of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.)

I could write about how the feds have finally figured out that Sheriff Joe doesn't much like people of Hispanic descent. Shame on him, they say.

Per Marc Lacey in the NY Times.

“We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights, noting during a conference call with reporters on Thursday morning that more than 400 inmates, deputies and others had been interviewed as part of the review, including Sheriff Arpaio and his command staff. Mr. Perez said the inquiry, which included jail visits and reviews of thousands of pages of internal documents, raised the question of whether Latinos were receiving “second-class policing services” in Maricopa County.
Mr. Perez said he hoped Sheriff Arpaio would cooperate with the federal government in turning the department around. Should he refuse to enter into a court-approved settlement agreement, Mr. Perez said, the government will file a lawsuit and the department could lose millions of dollars in federal money.

I could write about how President Obama decided that revisions to the defense authorization bill satisfied his concerns so he won't have to veto the bill. This, of course, is the bill that, as Charlie Savage put it in the Times, authorizes

the government to detain, without trial, suspected members of Al Qaeda or its allies — or those who “substantially supported” them.

Former constitutional law professor Obama's concern, of course, wasn't that eternal detention of US citizens in military prisons simply because they are suspects might violate the Constitiution. Pish tosh. No, his concern was that the FBI would be hamstrung in its efforts to interrogate those folks. The FBI still thinks it will, but his Barakness is no longer worried.

Those things and more could be the subject of this post. And one or another might have been.

Except that the Ohio Supreme Court, bringing holiday cheer early (albeit slowly) to the prosecutors of Summit and Preble Counties, this morning granted their motions to kill.

Ronald Phillips is to be killed by the State of Ohio on November 14, 2013.
Dennis McGuire is to be killed January 16, 2014.

Presumably, neither Phillips nor McGuire will cherish this holiday gift. Regardless, Ohio has now got murders planned more than two years into the future.

Justice Pfeifer, who on Wednesday explained that his personal opposition to the death penalty wouldn't prevent him from signing off on executions signed off on both murders.

And there's still two weeks left to the year.

Use 'Em Or Lose 'Em

2011-12-15T18:13:00.000-05:00

Today is Bill of Rights Day.

Originally, twelve amendments were proposed for ratification. The first was never ratified. The second was ratified in 1992 and became the 27th Amendment. The rest, numbers three through twelve, were ratified and officially adopted into the Constitution on this date 220 years ago, December 15, 1791.

The Bill of Rights.

Before the day was over, we began eviscerating them.

They're not altogether gone, of course. Hell, Tim Lynch over at Cato@Liberty notes that the Third is in really good shape.

No Soldier shall, in time of peace be quartered in any house, without the consent ofthe Owner, nor in time of war, but in a manner to be prescribed by law.

It's continued vitality rests in large part on your continued ignorance. If we spent any time needing to exercise it, you can be pretty sure they'd gut it. (And remember that we're in a war against drugs and a war against terror and a war against poverty - except we pretty much surrendered in that one - so if Congress wants to prescribe a manner you might be cooking for a platoon.)

Anyhow, today's a day to celebrate the ever weakening amendments. And to remember why we have them.

Dust them off, polish them up.

Let's see if we can make them shine.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Justice Pfeifer Speaks

2011-12-14T21:56:00.000-05:00

The bill, as introduced, is 154 pages long, but there's no reason for you to slog through it. Hell, I'm not even bothering to post the thing on line. You want to read it, here's the link. Really, though, and especially since it won't become law, the bottom line is all that matters. And the bottom line is that House Bill 160 would abolish the death penalty in Ohio.

The rest is, really, surplussage.

OK, as I said, HB 160 won't be enacted. Not a chance. It's one of a long line of abolition bills to be introduced in the Ohio General Assembly. Happens every few years. But this time it's different.

First, it's different because the time is different. This is the year that Terry Collins, former director of the Department of Rehabilitation and Correction said we should abolish the death penalty. This is the year that Jim Petro, former Ohio Attorney General published a book explaining how it is that we screw up and convict innocent people. This is the year that Maureen O'Connor, Chief Justice of the Supreme Court of Ohio, established a task force to examine the death penalty and see if it's as sure and perfect as human fallibility can make it. This is the year when we've killed five men we planned to but didn't kill the other five which may not seem like much from where you sit, but Governor Kasich actually commuted two death sentences to life and granted reprieves to two other guys which is quite remarkable.

And this is the year when the abolition bill in the General Assembly got a hearing. This morning.

The highlight was Paul Pfeifer.

That's Ohio Supreme Court Justice Paul Pfeifer. That's former state Senator Paul Pfeifer who was one of the three senate sponsors of our current death penalty law. That's Paul Pfeifer who's called on the Governor to establish a committee to review every death sentence. That's Paul Pfeifer who votes sometimes to affirm death sentences and who signs off on execution dates. And it's Paul Pfeifer who told the House Criminal Justice Committee this morning that enough is enough.

Andrew Welsh-Huggins, AP reporter, was there.

"The statute does not work the way we expected," Pfeifer told the House Criminal Justice Committee. "What has enfolded is an application that is hit or miss depending on where you commit the crime and the attitude of the prosecutor in that county."

There's no political capital in this, but Pfeifer doesn't need it. 19 years on the Ohio Supreme Court, and he's secure. And he knows what he's talking about.

He is, after all, the man who wrote the law he now says should be repealed.

After he testified in favor of abolition, he talked to the press.

And through them, to us.

He says we'll abolish the death penalty one of these days.

Not soon enough for Charles Lorraine next month. Not soon enough for a lot of folks.

But Pfeifer's right, it'll happen.

Guts

2011-12-14T13:50:00.000-05:00

[F]or the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.

That's North Carolina Governor Bev Purdue this morning explaining why she vetoed the repeal of the state's Racial Justice Act. (See here.)

The law permits folks who've been sentenced to be murdered by the state to present evidence to a judge that the sentence was racially motivated. If the judge agrees, the sentence is reduced (if that's the right word) from murder while in prison to death while in prison, that is, from the death penalty to LWOP.

North Carolina and Kentucky are the only states with such law.

Does it matter? Ask Duane Buck down in Texas if he thinks a racial justice act might have made a difference to him?

Purdue says she's a strong supporter of capital punishment, and I have no reason to doubt her.

But she's taken a principled stand on race twice now - first by signing the law and now by vetoing its repeal.

Good for her.

I don't know a thing about North Carolina politics, but I'd bet that's not a popular veto. Not because Tar Heels think race should be a factor in death sentencing (OK, some probably do, but most would at least deny it) but because those from the Old North State believe that the racial justice act will prevent all executions and puts vicious murderers back out on the street. Of course, that's not so, but the relationship between what's true and what people believe is often tenuous at best. This, I suspect, is one of the times when the relationship between belief and truth is oppositional.

But the Governor did it anyway.

It was the right thing to do.

As we praise Purdue, though, it's worth just a moment to condemn the cold racism of the legislature. They who said,

Who gives a shit? Fuck 'em. They probably deserved to die anyhow. And maybe even because.

As I said, good for Governor Purdue.

And shame on those who made her do it.

Going Commando - Criminal Defense Without Underwear

2011-12-13T22:32:00.002-05:00

So there won't be a preliminary hearing.

Sigh.

Maybe a wise call, maybe not.

A prelim would provide discovery. It would trap in transcript today's version of the stories told by the witnesses. It would provide material for cross-examination. That's no small thing.

On the other hand, those salivating reporters would splash every detail of those stories over the tabloids, over tabloid television, and even over the mostly-staid media like the Times. And of course there would be the twitterers and the texters and the e-mailers and (yes) the bloggers. All of which taint the judgment of those 6 potential jurors who haven't already concluded that Sandusky is at best an incredible sleazeball. So avoiding that hearing might be wise.

On the third hand, maybe this helps down the road in obtaining a plea deal (though everyone denies that's in the works) or arguing for a lesser sentence. And maybe it helps hold bond in check or keeps out more allegations or . . . . Hell, there are possibilities every which way.

But really, that's not what interests me. What interests me is what his lawyer, Joseph Amendola, said. Not the part about how a prelim would serve no real purpose because he wouldn't be allowed to challenge the credibility of the witnesses or about how this is a fight to the death. I'm interested in this statement Amendola made to the press.

Today's decision was a tactical measure.

Well, sure. I mean, we all know that. But, and here's the thing, it was inexcusable to say it.

I don't want to be bashing Amendola over his tactical choices. Lots of folks have been doing that, talking about how they'd never let their clients sit down with Bob Costas or the NY Times or whoever. How if the client insisted, they'd withdraw.

Maybe.

I expect that Amendola knows far more about his case and his client than those folks do. I sure hope he knows more about it than I do. And he sure as hell can't know less about the local judge or the available jury pool that I do. Or local procedural quirks. So I cut him a break on all the tactical decisions.

Maybe he's really smart. Maybe he's outfoxing all the pundit lawyers and all those who wish they had their names on the front page as often as he does. Maybe he knows just what he's doing.

Or maybe not, of course. But I don't know, and I'm not wading into that morass.

After all, Casey Anthony's lawyer was savaged, and look how her case turned out.

But there's that single statement.

Today's decision was a tactical measure.

Almost certainly true. Probably meaningless. Likely without consequence. And it makes me apoplectic.

To understand, you need to imagine that Sandusky might just be convicted of something at trial and might be ordered to spend a fair amount of time in prison (say, enough to pretty much ensure that he'll never again see the outside world). If that happens, you can assume that he's going to challenge his conviction. There'll be an appeal. There'll be whatever mechanism Pennsylvania offers that serves the function of habeas corpus relief. There'll be federal habeas. Stones will be overturned. Acts will be scrutinized.

And someone will make the claim that Sandusky's Sixth Amendment right to effective assistance of counsel was violated. That's just kind of a given. But what happens then?

In order to show a violation of the right to effective assistance of counsel, the Supreme Court said, in Strickland v. Washington that it's necessary to demonstrate both that the lawyer's performance fell below an objective standard of reasonableness (later decisions from the Supreme Court and other courts make clear that almost anything is objectively reasonable) and that the deficient performance was reasonably likely to have changed the outcome of the case. Add that up and it means that the lawyer has to have been really really incompetent and that with even a marginallly competent lawyer, the result would probably have been different.

Which is a pretty tough standard to meet. Especially because, and here we get to the point, the Court said in Reed v. Ross,

[D]efense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, to object at trial or to raise an issue on appeal — and then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court.

Which is a fancy way of making the point that a tactical decision can pretty much never be deemed ineffective assistance. In fact, the first response from the government to nearly any claim of ineffective assistance is that the complained of act or omission was tactical. What that means is that Amendola just denied Sandusky any chance to argue that waiving the preliminary hearing was ineffective.

So what? What are the odds that Sandusky would make that claim someday? What are the odds they would prevail? And why can't Amendola protect his reputation by making clear that he didn't waive the hearing because he's a fool?

Let's take them in order.

Odds that Sandusky would make the claim if he's convicted? Not bad. Might happen. Good things can come from preliminary hearings. Deprived of the benefit and then convicted it's a plausible bitch. Which means it's an argument that might be made.

Winner? Probably not. Most things aren't, and it'd be damned hard to prove how the prelim minght have made a difference in this case. But if Sandusky's piling on, arguing that Amendola screwed the pooch over and over, it's another instance and those can add up even if none individually has much heft.

And now the biggie.

What's wrong with a little CYA?

Answer:

We gave up the right to metaphorical underwear when we decided to represent people charged with crimes.

Because it's always about the client. Never about us. Every word, every gesture, every typographical error, everything during the course of representation is to be for the client's benefit. Some things are necessary; some things are neutral. But if it can somehow hurt the client, we don't get to do it. Period.

Oh, we'll all fuck up from time to time. None of us is perfect. And we don't need to go out of our way to advertise the mistakes. But that's not what happened here.

Amendola wasn't fixing a mistake (if the waiver was a mistake, at least an open question). He was protecting himself against a charge of incompetence. Maybe the charge was deserved, maybe not. Will what he said matter? Probably not.

But the test isn't whether it's more than likely that what he did will hurt the client. The test is whether it could possibly have helped the client? Since it cannot have helped, then the rest of the test is whether it could possibly have hurt the client? And since there's a chance, a slim chance but a chance, it was wrong.

As it's always wrong when we try to explain our actions.

Someday Amendola may be deposed or may show up on a witness stand. A judge may order him to explain this or that action he took or didn't take. At that point, he may have to account for his decisions, and the accounting may or may not hurt his client. But this isn't the time. The explanation was gratuitous.

And it was wrong.

Look, we're in an outcome determinative business, and it's unforgiving.

If Sandusky is acquitted or convicted of just a little or takes a plea bargain that's advantageous, then Amendola will have done a great job, maybe even a brilliant one, no matter what other criminal defense lawyers may think about the wisdom of his decisions and his approach. If Sandusky gets convicted of whole bunches of things and draws the rest of his life in prison getting raped in the shower? Then Amendola goes down in the books as a gross incompetent no matter what.

But this isn't about whether Amendola's doing a good job. It's not about whether he's showing himself to be a genius or an incompetent. It's not even about him, though it's his sentence that serves as example.

No, it's about what we do. What we do is represent clients. Which means it's always about them, never about us.

When we practice self-protective law, we're looking in the wrong direction.

Dog Bites Man

2011-12-11T10:47:00.001-05:00

I was teaching a breakout session on doing appeals in death penalty cases when Marty G came into the room, apologized for the interruption, but said he'd just heard the news that the jury came back with the decision that Joshua Komisarjevsky should be killed in revenge for the murders of Jennifer Hawke-Petit and her daughters, Michaela and Hayley. He, thought, he said, that I'd want to know.

I thanked him for the news report, but the truth is that I already knew.

I knew during each of the five days the jury was deliberating. I knew during every day of the mitigation phase of the trial. I knew during the culpability phase, just as I knew that Komisarjevsky would be found guilty of the murders and the other offenses charged as a consequence of the pillaging at Dr. Petit's home.

I knew even before the trial. I knew during the interregnum between the time his co-defendant Steven Hayes was ordered killed and the time Komisarjevsky's own trial began. I knew while Hayes was on trial, just as I knew what the jury would say about Hayes.

I knew all that. But I also knew it might not happen.

As I often tell people when I teach at death penalty seminars (and sometimes just when I'm having a cup of coffee or an adult beverage with them), if a win is when the state doesn't get to murder your client (and if you don't get that, then you probably aren't cut out for capital defense work), then the simple fact is that there's no case that can't be won.

Not every case will be won, of course (though that's a different point (and another part of what you need to be able to deal with if you're going to do capital defense work), but there's no case that can't be. Still, some will be tougher than others. Some less likely.

Joshua Komisarjevsky was going to be sentenced to be killed. The crimes, the outcry, the media circus. And of course the Avenging Angel Dr. Petit. Komisarjevsky would be sentenced to be killed. I knew that, though it's possible my knowledge could have been faulty.

I also know that there's at least an even chance he won't actually be murdered by and in the name of the people of the State of Connecticut. Same for Steven Hayes. The sentence of death, a nominative thing (in linguistic-literary-philosophical-critical terms a "speech act") may or may not prove itself coterminus with the reality of an execution. Connecticut has killed only one person, Michael Ross, in this modern era of the death penalty. Ross was a volunteer (a term it appears that Antonin Scalia didn't know until oral argument in Martel v. Clair on Tuesday. And still it took years to kill him. So I don't count on Connecticut getting to murder Komisarjevsky. In fact, I think it's unlikely.

But absent a true miracle (hey, it's the Christmas season, folks; just walk into a store and listen to the piped in carols), Komisarjevsky will die. That's a sentence we all have. The difference is that he will die in prison. Most of us won't.

Scott Greenfield, approaching the same point from a different direction, puts it this way of Komisarjevsy, of Hayes, of all those who are sentenced to die, whether the sentence be death in prison or murder by prison guards.

Either way, if they are guilty, they get the death penalty, and people of all religions can come together and pray. No matter which faith captures you heart, there is no choice but death. And it's not entirely clear that one is worse than the other.

Which is true, though to those of us who plow the bloody soil of state murder the difference matters greatly.

I've never met Joshua Komisarjevsky (or Steven Hayes or any of the Petit family, for that matter). I've had nothing to do with the cases. I don't practice law in Connecticut, have only been in the State once in the past 25 or more years.

But it didn't take on-the-scene familiarity to know what the jury would say. And it doesn't take much to see what the future might hold.

Death is different.

You can ask Joshua Komisarjevsky.

Or his lawyers. Who could not stop the words, though they may prevent the deed.

Or Dr. Petit, who may yet be cheated of a portion of his vengeance.

Up Close and Personal

2011-12-10T20:50:00.001-05:00

A year ago now, probably, Jamison Koehler wrote a blog post about self-referential blawgging. I'm not going to bother looking for it to provide a direct link now, but one of the things he found was that of the blawgs he examined I seemed among the least likely to talk about myself.

Consider this post an exception. And feel free to skip over it if that bothers you.

Don't worry.

I won't be offended.

But I need to tell you a story. Like all good stories it's mostly true. Except for the parts that aren't. But that should be and could have been.

Lawyers must take continuing legal education classes. Those who do court appointed death penalty defense work in Ohio must be specially certified to do that work, and one part of the certification process is that they must have 12 hours of death-penalty-defense CLE every two years. I often teach at those seminars. I was scheduled to teach several sessions - a total of about 6 hours - at one Thursday and Friday in Toledo.

During the coming-on-toward 42 years that we've been married, both of my parents and my father-in-law died. When my father died, I was at the hospital in New York with him; my wife was in Texas with our sonse. When my mother died, I was in Toledo and then flew immediately to New York; my wife was in Panama with the boys. When my father-in-law died, my wife was in Pittsburgh with him; I was in Chicago with our younger sone who'd broken his ankle in three places the night before. So it stands to reason that when my sister died in New York, my wife was nearby but I was in Toledo. I was there rather than by my sister's bedside because although my sister was in a hospice unit and was clearly dying, we were pretty clear that she had another few weeks. And I had this obligation to teach at the seminar, though I suppose I could have got out of it. Anyway, when my wife called me with the news about my sister at 6 a.m Friday morning, it was shocking.

I could have bailed on the seminar and flown to New York that morning, but I frankly couldn't face spending who knew how many hours sitting in an airport. Instead, I stayed among friends at the seminar. Working the phones and the e-mail and making connections and dealing with the funeral home and the hospice and making arrangements to fly to New York that night. And then teaching my sessions.

That afternoon I did a sort of miscellany session where I just talk about things I've been musing over, things related to capital litigation for the past couple of years. (I call these sessions "Gamso Thinks," but the Supreme Court won't allow CLE credit for something called that, so we usually call them "Tips and Ideas" or something, which what they actually are.) I'm invited to do one of these at an Ohio death penalty CLE every few years, and I never know until a day or so before I do it exactly what I'm going to talk about. This year my theme was how you live with death penalty cases forever. There's a continuing duty to the client and you can never give up and dammit there's no case where - at least if things break even a little bit right, you can't manage, somehow, to save the client from the gallows.

I began by telling the folks in the audience, many of them friends and many of them (not all the same ones) who never have and never will do a death penalty case, that if you do enough capital trial work, sooner or later you're going to hear a judge sentence your client to be killed. And if you do enough capital appeals, you're going to have a client's death sentence affirmed. And if you do enough late-stage capital work, you're going to have a client executed. Some people, some very good lawyers cannot handle that. Others of us have the mental defect that allows us to be devastated by the loss of a client for whom we've struggled mightily but to get up the next day and fight like hell for another one.

And I told the story of a case I got involved in for the ACLU of Ohio in April 2010. I happened to be in the ACLU office. There was a guy, Darryl Durr, who was to be executed the following Tuesday. There was a necklace he wanted to have tested for DNA that might just prove he was innocent but that the state wouldn't test. He'd been asking for testing for some time, but the state was adamant. His main lawyer asked the ACLU if they'd sue in federal court to try and get him to be able to argue for the testing and get a stay so he'd be alive long enough to make it possible. The ACLU of Ohio doesn't do direct representation in criminal cases, but it does this sort of thing, and it agreed.

So I was in the ACLU office while they were preparing the lawsuit. I'd gone back to criminal defense practice by then but was there for a couple of days to hang out with my replacement as Legal Director. And since I was there, I volunteered to help. After all, I knew the death-penalty and criminal-law related issues better than anyone else in the office. I explained to the LD and to the staff attorney and the other folks involved in the case, that we would almost certainly lose. I said that Darryl's main lawyer would probably lose her part of the case, too. That by Tuesday morning, we'd all likely have lost all our litigation in every court up through the US Supreme Court. I told them that at 10 Tuesday morning, Darryl Durr would likely be executed, and that even though they'd never met him, they'd be devastated. Be prepared, I said, for one of the very worst days of your life.

All of the ACLU folks said that it would be sad, but that it wouldn't be as bad as I said. After all, they'd never met Durr, and ours wasn't his main case. And I was going to be lead counsel and have to do the actual arguing before the courts. I told them to wait.

We lost our case in the federal district court. We filed our papers and lost on Friday in the US Court of Appeals. We filed our papers and lost lat Monday night in the US Supreme Court. That same night, the Court turned down Durr's main lawyer's application for a stay and with that the latest appeals. The next morning, Darryl Durr was murdered by the State of Ohio. I was right about how they would feel. They were wrong. The LD and the staff attorney both swear that they'll never actually represent someone in another capital case.

There's no disgrace in that, I told the lawyers at the CLE session. Those ACLU lawyers are both fine lawyers, good friends, and good people. They care about their cases and their causes and their clients. They want to do a good job. They want to see some sort of justice, whatever exactly that is, prevail. But being part of death that way, of a capital case so up close, was too much. Not for them.

How do you do this, they asked? How do you keep going? And I told the two of them what I told the assembled lawyers at that CLE. I have that mental illness that allows me to do this work.

And I told the CLE class that my sister had died that morning. That a week or so before, when I was sitting in the hospice room with her, I received a phone call from a friend telling me that another friend has died that morning. I deal, I said, in death and destruction. With those who kill and with the consequences of their having killed. With the sorrow and the pain. Just because you attend the seminar, I said, doesn't mean that you have to take capital cases. They take something from you. Harden you and soften you at the same time. And they eat away at you. But if you have that mental defect, you can do the work.

And if you do it well, and passionately, and with commitment and purpose, there's nothing in the law that's more meaningful and satisfying. God's work, someone called it. He wasn't wrong. We're trying to save lives. Sometimes we do. Sometimes we don't.

I had dinner tonight with some old and very dear friends from Texas. It was joyous and sad. Metaphorical crepe hanging amid the real Santas and the menorah. I mentioned to one that the day before my sister took the ambulance to the hospital, a trip from which she never returned home, she and I had gone to see the new Werner Herzog documentary, Into the Abyss. The friend had seen it too, on opening night as it happened. Herzog was there for a Q & A afterwards. He was asked about the title and said that really, any of his films could have been called "Into the Abyss."

On hearing of my sister's death, a dear friend sent me this poem. I'd have read it to the CLE class if I'd known about it.

In Blackwater Woods

by Mary Oliver

Look, the trees
are turning
their own bodies
into pillars

of light,
are giving off the rich
fragrance of cinnamon
and fulfillment,

the long tapers
of cattails
are bursting and floating away over
the blue shoulders

of the ponds,
and every pond,
no matter what its
name is, is

nameless now.
Every year
everything
I have ever learned

in my lifetime
leads back to this: the fires
and the black river of loss
whose other side

is salvation,
whose meaning
none of us will ever know.
To live in this world

you must be able
to do three things:
to love what is mortal;
to hold it

against your bones knowing
your own life depends on it;
and, when the time comes to let it go,
to let it go.

Mumia Lives

2011-12-07T12:01:00.001-05:00

It's a mixed blessing at best for those who are convinced that he's an innocent pawn, a political prisoner, a hero (choose one or all).

It isn't, after all, exoneration and a cash reward and an apology and a free trip to Bimini and maybe a change in the way cops and prosecutors and courts conduct themselves. It isn't, in fact, any of those things.

But it's something. And it carries a lesson.

Mumia Abu-Jamal has spent 30 years in prison for a crime he (and a host of supporters around the world) insists he did not commit. The state of Pennsylvania, through the office of the prosecutor in Philadelphia, obtained a death sentence back at the start and has fought to keep it in place (and the conviction, too) ever since.

And now they're done. Sort of.

They cried "Uncle" on the sentence. No more. After the latest court decision vacating Mumia's death sentence and the decision by SCOTUS not to reverse, the state's given up.

From Philly.com.

Philadelphia District Attorney Seth Williams announced this morning he will not seek the death penalty against Mumia Abu-Jamal.

Which is something.

On the other hand, it leaves Mumia (1) convicted of a murder he may not have committed and after a trial that was pretty clearly unfair, and (2) with a sentence of Death in Prison.

Big whoop.

And yet. It's something. Not enough maybe, certainly nowhere near enough for Mumia or his supporters. But something. And not something small.

The state gave up. It will let him live.

Which brings us to the lesson.

Don't quit. Don't stop.

There have been 1277 executions by the various governments of this country since the killing resumed in January 1977. But there have been tens of thousands - I have no idea how many, but it's well up in 5 figures and might be in 6 - who were not killed. Some had cases dismissed. There have been a few not guilty verdicts. Many were sentenced to something other than murder in the trial court.

Others had death sentences vacated in state and federal courts on direct appeal or some sort of motion or collateral action. But it's taken, generally, years. Sometimes decades. Of incredibly hard work by dedicated, creative, passionate people with mostly far too limited resources. But it happens. And it will continue to happen.

Unless we call it a day.

30 years.

But they won't kill him.

It's not enough. But it's no small thing.

Let There Be Peace in the Valley

2011-12-07T09:24:00.001-05:00

Scott Greenfield has an important post this morning about drug courts and, in particular, the one in Greenburgh that operates (well, operated since apparently it's been effectively shut down by New York's Office of Court Administration).

The Greenburgh drug court took a team approach. That is, there was a team that ran it: a couple of judges, a prosecutor, and an authorized lawyer or two. They did everything by majority vote - including decide whether other lawyers could practice there. John Caher in the New York Law Journal tells the whole story and gives the example, which seems to be what got the OCA's attention of what happened to Peter Tilem's client, Brooke Ahern. (Greenfield quotes the story, too - maybe it will go viral).

Mr. Tilem's client, Brooke Ahern, had pleaded guilty before Justice Friedman to petit larceny in August 2010 and was diverted to Greenburgh drug court. In October 2011, pursuant to a bench warrant, Ms. Ahern turned herself in and was remanded without a hearing by Justice Friedman to the Westchester County Jail, records show.

Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.

Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburg drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a "team" that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.

The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.

However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.

"Presumably, with me out of the courtroom the vote was 3-2," Mr. Tilem said in his affirmation.

It's not unusual for folks like me to point out cases where courts and such "officers of the court" as prosecutors freely trample on the rights of the people. And what was going on in Greenburgh is really just another instance. More bizarre than some, less than others. It's the Law of Rule rather than the Rule of Law. Of course, there are plenty of courts that don't operate in such lawless (or in some cases openly lawless) a fashion. But in far too many cases, constitutional rights, like the Constitution itself, are considered (when they're considered at all) an impediment to be got around rather than a sacred obligation of our system.

Greenfield's point is that while the Greenburgh drug court may be an outlier, every drug court operates on the principle that while the goal is rehabilitation, the requirement is that constitutional rights must be surrendered. There are variations, but the general pattern is that you plead guilty to the charges and then everything is held in abeyance while you do court or probation ordered counseling and penance and agree to lots of Fourth Amendment violations and if you don't screw up for the requisite period of time the plea goes away. But if you aren't perfect (or sufficiently perfect), well, you had your chance. As he concludes,

[I]t's still a trade-off of constitutional rights for drug treatment.

I understand that the first step to recovery, they say, is acknowledging a problem. And I understand that the drug courts are, well, courts. Despite good intentions about rehabilitation, they operate in the midst of the criminal justice system (and of course as part of the war on drugs) where the first order of business is to convict and where the assumption is that rehabilitation is at best ephemeral.

And again, there's nothing new here.

Except that they got caught.

After exacting how much damage on how many people over how long a period of time, we'll likely never know. And mostly won't care.

Because, after all, Peter Tilem went from Greenburgh to the Office of Court Administration with a complaint. And OCA did its thing and pulled the plug on Greenburgh.

Problem solved.

The Constitution saved.

And the lion did lie down with the lamb.

Make Mine a Single Malt

2011-12-05T12:19:00.001-05:00

Prohibition was repealed 78 years ago today.

Forget that mob stuff. Forget speakeasies. Forget the nanny state and religious fanatics and the insanity of the war on booze (and drugs). Forget Eliot Ness.

Here's why it had to end. Three versions.

h/t NACDL and Mother Jones (which offers a playlist for the occasion).

There's Got To Be a First Time, Doesn't There?

2011-12-05T11:46:00.001-05:00

An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary.

That's Rule 16(A)(7) of the Ohio Rules of Appellate Procedure, the set of rules governing practice in Ohio's intermediate appellate courts. Rule 16 is about what briefs must include. Rule 28 of the Federal Rules of Appellate Procedure, addresses briefs in the federal circuit courts. Section (a)(9)(A) has the same requirement, mandating that briefs include

appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.

Which makes some sense when you think about what appeals are and how they work.

Appeals are claims that something went wrong at an earlier stage of the process. Typically, the claim is that the trial judge screwed up somehow. She did or didn't make a proper ruling on an objection. She did or didn't give the jury the right instructions. She did or didn't suppress evidence or impose a lawful sentence or properly advise the defendant of his rights when taking a plea or . . . . You get the idea.

And the judge screwed up because there was a rule he didn't follow or he followed wrong or a statute he ignored or case law he missed or misunderstood or an argument he should have bought but didn't. Or maybe the judge overlooked a crucial piece of evidence in issuing a ruling or remembered it wrong. Or something. Because the judge really can't screw up in a vacuum.

In fact, the rules pretty much require that the lawyer complaining on appeal have given the judge enough information to know what the issue was and to avoid screwing it up. It's that old "if-your-lawyer-screwed-up-you-have-only-yourself-to-blame" thing.

So sure, it makes sense that when we brief an appeal we have to provide citations and authorities on which we're relying. Because it's all about what the judge got wrong that could and should have been gotten right.

But what happens when there are no authorities to cite?

Kenneth Jowers was sentenced by a federal judge in Tennessee to 46 months in federal custody for knowingly and intentionally possessing four guns even though he was a convicted felon. The sentence was higher than it might have been because if there are more than three guns the guidelines call for a two level enhancement. (Don't worry if you don't understand. It doesn't matter.) He argued on appeal that he should have gotten less time because two of those guns were really his father's; his father stored them in his bedroom before Jowers became a felon; his father then died, and Jowers never got around to removing those guns. He didn't deny that he violated the law by possessing them (he entered a guilty plea), just that those two guns should have counted less.

Jowers had a good panel, the kind that in the 6th Circuit often leads to a 2-1 win. Not this time. When you have no case you're supposed to lose, and Jowers really had no legal case. So he lost, which is neither here nor there (except to Jowers, of course). But the question of how he lost, that's something different.

Here's a bit from the majority opinion by Judge Merritt.

Although the defendant apparently did not explicitly make a “disparity” argument in the district court based on § 3553(a)(6), which requires consideration by the court of the “need to avoid unwarranted sentencing disparities,” his only argument against this sentence on appeal is that the two-level enhancement constitutes an unwarranted sentencing disparity.” He does not explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement. He makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on “disparity” is not well taken.

Note that word so in the last sentence. He might have won, Merritt says, if only he'd had some authority, some case (as lawyers like to say) on point. But it's just him. Therefore [so], he loses.

Now, that makes perfect sense. The rules say you're supposed to cite authority, and apparently Jowers didn't. And it makes particular sense here where his saying that there was something disparate about his sentence. That is, other folks in similar situations are better treated. If you're going to make that claim, it helps if you can point to a bunch of them - or at least one. Apparently he didn't.

But the point remains that Jowers lost because he was skating solo.

Judge Clay agreed that Jowers should lose. (Jowers really did have no legal case, it appears given the standards appellate courts are supposed to apply.) But other than the result, Clay disagreed with everything Merritt wrote. OK, it's not that much. From case caption through Merritt's opinion and to the end of Clay's concurrence takes all of four pages. And the Judge's thought so little of the case that they decided it shouldn't be published.

In any event, here's the relevant part of Clay's separate opinion.

I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to “explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.” Although Defendant did not cite to any cases where a defendant received a downward variance because he only “negligently” possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.

I've written before, I imagine, about Ernesto Miranda's trial lawyer. He's the guy who stood up in an Arizona trial court and said that his client's confession should have been suppressed because the cops never told him he had a right to talk to an attorney before answering any questions. I've always imagined (though it's probably not true) that judge and the prosecutor and the court reporters and the cops and everyone else in the courtroom broke into giggles at that.

You've gotta be kidding. What've you been smoking?

But, of course, SCOTUS said he was right. (And sent the case back so that Miranda could get a new trial without the tainted confession - a trial at which he was again convicted, by the way.)

Years ago I obtained a new trial for a defendant on death row when I argued that . . . . It doesn't matter what I argued. What matters here is that my entire authority on the winning point, the only thing I cited, was the Due Process Clause of the 14th Amendment and an unreported case from a different court of appeals in Ohio that made an altogether different point.

On the Merritt test, Miranda would have lost. So would my client.

The law is harsh and unforgiving. And as I said, the rule requiring authority makes some sense. Most of the time.

But Clay is right. There has to be room to say,

Never before, but now.

The court's opinion in United States v. Jowers, by the way, is here.

Your Lyin' Eyes

2011-12-03T22:31:00.001-05:00

The case is Williams v. Illinois, cert granted at the end of June, argument before the berobed ones in DC on Tuesday.

It's another in the line of cases that began with Crawford v. Washington which said that the Confrontation Clause of the Sixth Amendment prohibits the prosecution from presenting "testimonial hearsay." In Melendez-Diaz v. Massachusetts, the Court made clear that reports of crime lab technicians are testimonial hearsay and that the prosecutor can't bring in those reports without also presenting testimony by the lab tech. The formal question in Williams is whether DNA test results are like crime lab reports. Must the lab folks who did the actual tests come and testify or can some flunky just say,

Hey, here's the report. No, I didn't have anything to do with it - never even heard of DNA until just now, you know, I'm a janitor at the pizza place next door to the lab. But they did it perfectly just like always and there's less than a 1 in 673 bazillion chance your guy isn't the killer. Trust me. It's DNA so there can't be anything wrong with how the samples were handled, how the test was done, or how the data were analyzed. No, don't bother with cross-examination. Thanks, I can find my own way out. Say, you guys like pepperoni or anchovies?

That's the technical question. The real question is whether Melendez-Diaz should be overruled either specifically or in effect. Justice Scalia, the architect of this line of cases, has been losing his majority, so it's a tough question. I mean, really, why should we bother with requiring the DNA testers to come to court when the pizza guy's available?

The essence of Williams's argument is going to be that the Constitution says confrontation* which means Illinois has to bring in the person who actually did the testing and analysis so that she can be cross examined. There's no DNA exception to that, no lab tech exception, no don't-be-silly-there's-no-need-we're-all-scientists-here exception. Besides, Williams will argue, it matters. Labs fuck this shit up all the time. And the analysis is never as clear and simple as they say. Cross-examination isn't just a constitutional guarantee, it's a necessary component of getting an accurate verdict.

Again, the state's argument is Constitution Shmonstitution. Really, the report speaks for itself. There's just no point to confrontation. And it's so much trouble. They haven't sold that to a majority of the Court in this post-Crawford world, but they may manage it this time.

Which is really too bad because Williams is right. He's not just right as a matter of constitutional law. He's right as a matter of getting it right. It does matter. It matters with DNA analysis and with ballistics and with gas chromatography and breathalyzers. It makes a real difference in the real world because the labs really do fuck it up.

So I'm watching Williams with some trepidation. Because when you put convicting people on one side of the scale and constitutional rights and actually getting it right on the other, the convicting people side tends to be a whole lot weightier.

And yet, because I'm a glass-half-full sort of guy (just ask anyone who doesn't know me), because I can always see the bright side, and seriously because I know a good point when it appears in a Times op-ed by Jeffrey Fisher (the lawyer who won Crawford and Melendez-Diaz) and in blog posts from Scott Greenfield and the Appellatesquawk, there's this.

New York just gave away the store.

Four amicus briefs were filed on each side in the case. The one that made those folks sit up and take notice is from the New York County (that's Manhattan) District Attorney and Medical Examiner. It makes three points, not in this order.

There's no testimonial hearsay involved so the whole case should just go away.
DNA is science and absolutely trustworthy so there's no point in cross-examination.
If we actually have to produce the people involved, there will be "dire consequences."

It's that last one, dire consequences, that's interesting. Here's the heading (all the caps are how it appears in the brief) of the argument's second section.

AN “ALL-TECHNICIANS-MUST-TESTIFY” RULE WOULD HAVE DIRE CONSEQUENCES FOR THE CRIMINAL JUSTICE SYSTEM

OK, I'm scared. But what exactly are those consequences?

The guilty will go free?
Raping and pillaging on the streets?
Blood and destruction?
The terrorists will win?

Nope. None of the above. No, the dire consequence is that innocent people would be convicted.

Yep. That's right. If defendants have the right to confront the folks who do DNA tests, the innocent will suffer.

You say that's bizzare? It's counter-intuitive? It's bullshit? Ah, grasshopper, how much you have to learn. Are you not familiar with the poison pill? Here's the important part of the brief (footnote omitted)

At worst, an all-technicians-must-testify rule would force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted)). Significantly, over a recent twelve-month period, nearly one in ten suspect profiles tested by the OCME for the Manhattan DA’s Office resulted in an exoneration. Indeed, in a recent “pattern rape” case in Brooklyn, DNA testing exonerated 18 suspects before the nineteenth submission led to a match. No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.
If requiring the testimony of each technician would significantly advance the truth-seeking process, then the practical concerns advanced above would give way. But nothing could be less true.

Got that?

If DNA testers actually have to testify, well then, the police and crime labs will stop doing DNA testing. They won't do the test because if it showed they had the right guy, they'd want to tell the jury, and that would mean testimony. Can't have that. And can't have the information and not tell the jury. So they just won't learn.

That means that cops and prosecutors and juries will have to rely on eyewitness testimony. And that means that at least 10 percent of the people convicted of crimes, and maybe as many as 95 percent, will be factually innocent.

And remember, "nothing could be less true" than that this will happen. That is, it's absolutely certain.

Being prosecuted in New York? Based on eyewitness evidence? You've now got what is (at least arguably) an admission by a party opponent - not hearsay - able to be put before the jury - saying that there's a pretty fair chance (if not a near certainty) that you're innocent.

Outside New York? We'll find a way.

Or, of course, as I've written before, they could just test the DNA. You know. Cause they might wanna know.

--------------------

*The actual language of the Sixth Amendment, is

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnessesagainst him.

Take Me to Your Fjord

2011-12-02T07:53:00.001-05:00

Oh to be in Norway now that winter's nigh!

Well, maybe not.* Nothing against Norway which has many fjords to recommend it and which I'd actually like to visit someday, but there is much to keep me occupied here. Still, anywhere that can yield this headline to an AP story in the Gray Lady is worth attention.

Norway: Killer of 77 Was Insane During Rampage, Prosecution Says

I mean, really? The prosecution says he was insane? The prosecution? The fucking prosecution says he was nuts?

Here it's a full scale battle. Consider Anthony Sowell, convicted killer of 11. He kept the bodies in and around his home for years. His lawyer, John Parker, explained to the jury that

[A]nyone who lives in a house for two years with the rotting remains of his murder victims must have a mental problem.

Which seems kinda self-evident to me, though the prosecutor disputed it. As I said in full snark, quoting the AP report on the jury argument,

Assistant prosecutor Pinkey Carr said Sowell deserves to die for his crimes and responded to the comments about his mental condition by saying: “He’s crazy like a fox. He’s evil.”

See, it was all carefully done so that someday when he was prosecuted for the killings he could argue that he must have been insane. But, nah. Criminal mastermind.

Which is, of course, bullshit.

But it's the prosecutorial mindset. And, oh, yeah, it's also our law.

Here's the Ohio statute on being not guilty by reason of insanity (which we call NGRI for simplicity).**

A person is “not guilty by reason of insanity” relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.

Of course, that's not the same as just being crazy as a bedbug. And actually Parker was arguing to the jury that they ought to spare Sowell's life, not find him NGRI, so the standard isn't perfect but you get the point. Sowell was clearly nuts. Just not legally nuts so as to be locked up in what used to be called an insane asylum for the rest of his life instead of locked up in prison until the state gets around to murdering him.

But back to Norway for a minute where the standards make some sense and where the prosecutor actually said they applied. Here's the test as I understand it from the media (and I'm summarizing, not quoting).

Was the person psychotic at the time of the offense? That is, was he acting under gross delusions about reality so that he didn't ?

Now, that's something less than, say, he thought he was playing ping pong but was in fact raping and pillaging. But if you're talking about criminal responsibility it makes some sense. If a person is so out-of-touch with reality that he has no grasp of the world, how can we say he's fully responsible for his acts? Well, we can in this country because we do. (Or is it that we do because we can?) But not in Norway.

Naturally, we're horrified by the Norwegian approach. Debra Saunders in the San Francisco (yes, that San Francisco) Chronicle.

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Of course, another reason might be because the experts spent a whole shitload of time examining him and concluded that he was psychotic and delusional which is the Norway standard. Here's the AP story in the Times again.

The court-ordered assessment by two psychiatrists found that Mr. Breivik, 32, an anti-Muslim militant, was psychotic during the attacks. It will be reviewed by a forensic panel before the Oslo district court rules on his mental state.
The conclusions contrasted with earlier comments by the head of the review panel, who said in late July that it was unlikely that Mr. Breivik would be declared insane because the attacks were so carefully planned and executed. But prosecutors insisted that the psychiatric report described a man living in a “delusional universe,” a paranoid schizophrenic who had lost touch with reality.

But then we don't care about that. (See my earlier post on the Norwegian horror in which I explored Professor Thane Rosenbaum's lament that our criminal justice system doesn't channel Nancy Grace on guilt and punishment.)

Which brings me to the second point (or is the third).

Scott Greenfield this morning wrote about Fordham Law professor John Pfaff's post over at prawfsblawg discussing the ability of juries to deal with conflicting scientific evidence. Here's the short version of the problem, and in fact it applies to everything that passes for expert testimony.

The bedrock assumption of our jury system (criminal, but civil too, by the way) is that the collective wisdom of 12 ordinary folk can tell when a witness is lying (or reporting on misperception) and when one is telling the truth based on watching and listening to the witness testify on direct and then on cross-examination. Whether or not that's true, direct testimony and cross examination will not help jurors accurately figure out whether computer models that show global warming will end civilization as we know it within 100 years are more accurate than computer models that show it will have no substantial effect.

That is, expert testimony is so different in kind from other testimony that when experts disagree, juries can only guess. Hell, if the scientists can't agree about global warming, how can we expect the jurors figure it out.

Which means, really, that if the experts disagree on an element of the offense, it clearly can't really have been proved beyond a reasonable doubt since that would mean the other (court-certified) expert was offering an unreasonable (and therefore improperly admitted) opinion.

And of course that means that our system is wholly fucked, which you knew anyway (or knew I thought so, at least, if you've been reading this blawg for a while - and if so, how come you didn't convince the ABA to make me a finalist in the blawgoff? But I digress).

It's a simple point, made more complicated by Pfaff's effort at quantification and invocation of Rumsfeld Koan.***

Of course, juries are already free to find a “known unknown” if they wish. I want to push the issue further: as a matter of law, should we compel such a non-finding? Even before getting to questions of jury competence, is there some sort of particularly important meta-evidence we get from credible dueling experts? Does the very inability to agree suggest, at least in criminal cases, that as a matter of law there is no fact for the jury to find? We know that we don’t know, and it is unreasonable to argue that you do know in such a setting.
Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Really, it wouldn't matter if they jurors all held doctorates in the relevant field. If the goal is to determine with which of two conflicting reasonable opinions is unreasonable (which when you think about it is precisely what we ask jurors to do in evaluating expert testimony) the only possible answer is neither and therefore the point isn't proved adequately.

There is, of course, a reason the public sneers at expert testimony. Don't believe they do? Consider New Mexico where in 1995 a proposed amendment to a regulatory bill for psychologists was actually passed by the state senate.

When a psychologist or psychiatrist testifies during a defendant's competentcy hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.
Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant's competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Honest.

-----------------

* I was all set to do some snark about the weather. In fact, I began with this:

I'm no fan of warm weather (once it hits 70 I want to put on the A/C), and I'm a big fan of cloud cover rather than sun (had god wanted us to be up and out during the day, she'd never have invented the light bulb).

Then I was going to say that living in Helsinki would be like living in a house we rented one fall semester in Pittsburgh when we were in college, back in the days of the ancien régime. Among other unlikely features, the place that had big holes in all the outside walls where the landlord really intended to put windows some day. I remember one December night, wind whipping through the place, snow settling on the furniture, me sitting on the floor in front of the stove with the oven set at 500 and the door wide open to let some of the heat into the kitchen, bundled up in winter coat and gloves, typewriter before me, trying to type a paper. Except I looked up Helsinki weather to stick in some numbers and it turns out that Helsinki actually has a pretty fair climate so the hell with it.

** I'm quoting Ohio although the standards differ from state to state and off to the feds, but Ohio's test is within striking distance of the others.

*** Reproduced here from Hart Seely's "The Poetry of D.H. Rumsfeld" at Slate.com.

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know.

Marching in Lockstep

2011-11-29T13:36:00.001-05:00

Ralph Waldo Emerson would have hated the Bluebook. That's the quasi-official citation manual of the law schools and (to a lesser extent) the legal profession.

It's a collective effort of the major law reviews from Penn, Harvard, Yale, and Columbia. Now in it's 19th Edition, it's grown (overgrown is more like it) to 511 pages of maddeningly worthless trivia. Students at most law schools are required to master its intricacies. (When do you use italics in a footnote as opposed to large and small caps?) To what end, exactly, is something of an open question. The Bluebook's goal is absolute uniformity. Everyone everywhere is to do things exactly the same way all the time so that . . . . So that it will be exactly the same all the time.

As if that were an end in itself.

Which of course the Bluebook implies it to be.

Sure. If you have the basic idea of Bluebook citation down, you'll have a handle on a fairly typical citation system that's used in many courts and by many lawyers and law firms. But certainly not all.

For one thing, there are competing guides even in the law schools. In the 1980s, the University of Chicago Law Review put out its own citation manual, informally known as the Maroonbook. Far slimmer than the then-255-page Bluebook, the Maroonbook's 30 pages were built on the idea that a citation ought to provide the reader with accurate and clear information about a source so that its provenance could be judged and it could readily be tracked down if needed and that citations should not be distractingly inconsistent. As the editors put it in the current (20th Anniversary) edition:

Users should be guided by the following four principles, listed in order of importance:
(1) Sufficiency: The citation should give the reader enough information to locate the cited material without further assistance.
(2) Clarity: The citation should be comprehensible to the reader, using plain English and following a well-recognized form whenever possible, and avoiding the use of confusing words
(3) Consistency: Citations should be consistent within a piece, though they need not be uniform across all legal materials.
(4) Simplicity: Citations should contain only as much information as is necessary to meet the goals of sufficiency, clarity, and consistency.

Still, the Maroonbook has grown from its original 30 pages to 85 because . . . . Damned if I know.

Now, the truth is that the Maroonbook never really managed to break the hegemony of the Bluebook. Nor has the fact that lots of courts don't rely on either but have their own systems.

Ohio, for instance, has long gone its own way. Here's but one easy example. The Bluebook mandates and the Maroonbook instructs that a typical case citation ends with the year of decision. For 150 or more years now, Ohio has put the year in the middle of the citation, after the case name but before information about where to find it. It's a minority approach, though not unique to the Buckeye State.

Really, it's been no big deal. Sure it's different from Bluebook (and Maroonbook) style in many ways, but it's not particularly tough to keep the basic differences in mind and use the more generic (and would-be hegemonic) systems for federal court and the state-specific approach for state court. Hell, neither is actually required, so if a detail here or there doesn't match, it doesn't matter. And we are, after all, a union of 50 states each with a legal system (or more than one) of its own. Why must they all have an identical citation system. Some coherence is surely an advantage, but nobody's talking about going from some variant on what's developed over the last 900 or so years of Anglo-American jurisprudence to some sort of obscure computer coding design. It's just that why do we need hegemony?

Leading the charge against that sort of mindless insistence on standardization is the seriously prolific federal appellate court judge Richard Posner. He's been railing against the Bluebook for years. In January he took off on the 19th edition for the Yale Law Journal.

A system of citation forms has basically two functions: to provide enough information about a reference to give the reader a general idea of its significance and whether it’s worth looking up, and to enable the reader to find the reference if he decides that he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such a system: “to spare the writer or editor from having to think about citation form,” “to economize on space and the reader’s time,” “to provide information to the reader,” and “to minimize distraction.” There is some tension among them but not a great deal, and they are easily implemented and are disserved by a 511-page tome. Most citations in a law review article, treatise, brief, or judicial opinion are to cases, statutes, treatises, and law review articles, and the format for these citations is familiar to every law student after a month or so of law school. There are esoteric sources, such as administrative decisions and regulations, but the agencies caption their various promulgations in a way that makes it obvious how to cite them analogously to judicial decisions and to statutes.
. . .
Efforts to impose uniformity beyond the basic conventions encounter rapidly diminishing returns well illustrated by The Bluebook’s obsession with abbreviations. An example that I have picked literally at random is “C.Ag.” What does “C.Ag.” stand for? Why, of course, the Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do they abbreviate Código de Águas “C.Ag”?). The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as The Bluebook does routinely. Consider “Temp. Envtl. L. & Tech. J.,” “ILSA J. Int’l & Comp. L.,” “Emp. Rts. & Emp. Pol’y J.,” and “AIPLA Q.J.” These are names of journals. Now try figuring out “B.T.A.M. (P-H),” “A. Ct. Crim. App.,” “A.F. Ct. Crim. App.,” “C.G. Ct. Crim. App.,” “N-M Ct. Crim. App.,” “Ne. Reg’l Parole Comm’n,” and “Cent. Ill. Pub. Serv. Co.”

What is the point? It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”

(Footnote omitted.)

Posner's not always right (not by a longshot), but he is this time. His own citation guide for his law clerks (included in the Yale Law Journal [that's Yale L.J., or at least it was back in the 13th edition which is what I got when I was in law school and have very rarely consulted, and never updated, since] is, he says "still only 885 words, which is roughly two printed pages."

So it was with heavy heart that I discovered this morning that the Supreme Court of Ohio (giving the full title to emphasize the pomposity and grandiosity of the damn thing) has issued a 168 page manual to take effect on January 1.

Writing Manual: A Guide to Citations, Style, and Judicial Opinion Writing

Wowsers.

It's apparently binding only on the Supreme Court itself, which is something of a relief, but

Although judges and lawyers are not required to conform to the Writing Guide, they are strongly encouraged to use it in writing opinions and briefs.
. . .
Persons preparing documents for filing in the Supreme Court should follow the Manual
of Citations. Conformance to another generally recognized citation manual is acceptable.

Nothing subtle about those hints.

Anyone used to Ohio citation form who glances into the Writing Manual will see that we're moving to something much more like the Bluebook. One colleague tells me the new style is a major improvement. Another says that it's an abomination. My own view is that it's a misguided and ultimately unnecessary effort to emulate a standard form without actually adopting one, a frankly bizarre choice. The result strikes me as a more cumbersome approach - but with no corresponding benefit.

Consider:

The Style Guide sets forth standard guidelines for formal English writing. When more than one correct standard or practice exists, one alternative has been chosen.
The guide makes no attempt to be comprehensive. For rules of punctuation, grammar, diction, hyphenation, and usage that are not covered by this guide, the Reporter’s Office follows conventions of standard English.

It's tricky to be both prescriptive and descriptive at the same time, though they get points for the effort.

Finally, there's this.

The Ohio Supreme Court entered into a contract with West some years ago for the printing of the Ohio Reports. The new manual requires citations to many sorts of cases to include Westlaw citations. All those folks who use Lexis? Google Scholar? Casemaker (provided by the State Bar)? One of the other search tools? West will happily take the new business. I don't imagine the court will get kickbacks, but a "Sales Agent of the Year" plaque might be appropriate.

Oh, that Emerson thing I started with. He wrote,

A foolish consistency is the hobgoblin of little minds.

The Bluebook has been the hobgoblin poster child for decades, the big hobgoblin on the block to switch from one bizarre metaphor to another. Ohio? This year's version is, as I said, 168 pages. I'm betting on 250 for the next edition. 350 by the end of the decade.

Murder Me Now

2011-11-28T10:44:00.001-05:00

I've taken to calling it "Death in Prison," but whether it's called that or the psychologically wrenching "Life Without Hope" or the legalistic "Life Without the Possibility of Parole" or the acronym "LWOP" doesn't matter. It's horrific. For many folks it's worse than the death penalty.

It lingers forever. World without end. Pain everlasting.

Some, not all, maybe not most but some, say they'd prefer death.

Kill me now.

They're often called "volunteers," and they raise what are for some thorny issues.

When they're being sentenced, during their mitigation hearings, sometimes even from the moment of arrest, they demand death.

Kill me, or I'll kill again.
Kill me, I'm a monster.
Kill me, I deserve it.

That's one sort of thing. Try to force the issue. But if the point of sentencing is punishment or retribution or deterrence or anything other than killing for its own sake - and in the killing fields of the U.S. we like at least to pretend there is, then there's a complicating subtext to those demands.

Kill me, it's the choice I prefer.
Kill me, it's the penalty I want.
Kill me, it will make me happy.

And when the guy (it's almost always a guy) has been sitting on death row for god knows how long and festering in his own feces and maybe he's gone completely bonkers what with 23 hour/day lockdown isolation and not having seen natural light or felt a fresh breeze or whatever for maybe a decade or two and being told you'll die on Thursday and maybe even being led to the gurney before learning that some court just granted a stay as a sick joke and maybe that's happened more than once (depending, of course, on the state and the institution and the particular case). And so he says,

Basta!
Enough!
Get it over with.
Hell, you're gonna kill me anyway sooner or later.
So do it now.
Please.
I beg you.

What then.

It's suicidal, of course, and that raises it's own issues.

Is suicide ever moral?

Is suicide ever the choice of a competent person.

Can death be a rational choice?

Can life ever be that bad?

And what of the killers?

Carrying out a punishment raises one set of moral questions. The law in most states, in the federal system, in the military allows state murder in some cases. Assisted suicide doesn't have that same broad legal approval. Assuming, of course, that it's not the same as state murder.

Carol J. Williams writing in the Los Angeles Times.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

Despairing of the isolation and monotony of San Quentin's rooftop fortress for the purportedly doomed, Stanley earlier this year stepped up his campaign for a date with the executioner by offering to solve the cold case of his third wife's disappearance 31 years ago — by disclosing where he buried her body.

When bartering failed to secure him a death warrant, he offered himself up as the test case for resuming the three-drug lethal injections, which had been suspended for six years and remain under judicial review.

"I am willing to be the experimental guy to see whether or not they work," Stanley, 66 and ailing, said in a statement to The Times. "Assuming I can't get lethal injection because of the injunction on the chemicals, I am willing to accept the gas chamber. I understand the gas chamber is available and I insist on getting a date."

Well, that calls the question.

So does this from the Statesman Journal.

Death-row inmate Gary Haugen ripped Gov. John Kitzhaber on Friday for blocking his scheduled Dec. 6 execution.In a telephone interview with the Statesman Journal, Haugen mocked Kitzhaber for not having the guts to carry out the execution.
"I feel he's a paper cowboy," he said. "He couldn't pull the trigger."
The 49-year-old, twice-convicted murderer said he plans to consult with attorneys about possible legal action to fight the temporary reprieve issued Tuesday by the governor.
"I'm going to have to get with some serious legal experts and figure out really if he can do this," Haugen said. "I think there's got to be some constitutional violations. Man, this is definitely cruel and unusual punishment. You don't bring a guy to the table twice and then just stop it."

Some folks on death row commit suicide.

Whatever the moral or legal standing of the act, they do it themselves.

Others try to commit suicide and fail. They get patched up and returned to the row - or in odder cases almost directly to the murder chamber.

Maybe they're competent to make the decision they do. Maybe not. But it implicates nobody.

Volunteers are different. They implicate everyone:

The killers.
The lawyers who support their efforts.
The lawyers who oppose their efforts.
The psychologists on both sides.
The judges.
The prosecutors.
Maybe the jurors.

And those who stand on the sidelines cheering or crying.

After reproducing a chunk of the Williams article about Stanley, Doug Berman asked one of the relevant questions.

If one is eager to torture (psychologically and physically) a condemned murderer by denying him the opportunity to end his LWOP suffering, I suppose it makes sense not to honor his wish to die. But is there a truly humane reason to refuse such a request to end LWOP suffering if the condemned murderer has no reasonable basis to hope for any eventual freedom from harsh imprisonment?

But it's only one of the questions, and really, it's the wrong one.

Because the request isn't, not ever,

Go away and let me die.

These folks aren't saying

Give me some pills and leave me in peace.

They aren't the one's slitting their wrists with their fingernails or fashioning nooses out of prison jumpsuits or smashing their heads into the wall repeatedly in the hope of breaking it open. As I say, there are suicides and attempted suicides on death row. Allowing them to act, unimpeded, may or may not be humane. But it's not what we're talking about.

We're talking about the ones who are asking us to kill them.

Not, I want to kill myself, but I want you to kill me.

Which is something very different.

Thanksgiving Greeting

2011-11-24T02:16:00.001-05:00

It was two days before Christmas, 1776. If you'd asked any clear-eyed person, you'd have been assured that the British were well on their way to crushing this rebellion among the colonies. That greatest of pamphleteers, Thomas Paine, understood. But he called not for surrender but for struggle.

THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value.

A friend reminded me earlier today that he was lead counsel for Reginald Brooks, murdered by the state of Ohio last week. He feels the loss, he said, as a spur to make him work harder.

The Governor of Oregon yesterday declared a moratorium on executions to last as long as he remains in office.

Obama, the most reticent of Presidents when it comes to showing mercy to those convicted of crimes in our federal courts, offered a bit. From the Pardon Power Blog:

The president has granted 5 pardons and - for the first time - a commutation of sentence. The typical Obama clemency recipient has committed some minor offense decades ago. But, the offenses of this little group are a little more recent (relevant). The typical Obama pardon recipient has also served no time in prison. And the ones that have served time have averaged only 24 months. In this little batch of grants, however, are three prison sentences: 36, 108 and 262 months in length. Why, someone, somewhere, may have actually had to have put some serious thought into these decisions.

Amidst death there is life. Amidst loss, comes a glimmer of hope.

We mourn what we must and rejoice when we may.

And these times, the best and worst of times as Dickens said of the days of the French Revolution but really it could have been of any time because they're all the best and worst.

These times, we rely on each other. For strength, for courage, for wisdom, for patience.

Sometimes the need is professional. Sometimes personal.

Thanks doesn't really cover it, but thanks is what we have to give.

To friends I've met and those I haven't. To clients. To the deserving and the un. To my collegues in the blawgosphere. To friends and family. To those faithful few who actually read what I write.

Thank you.

"I Refuse To Be a Part of This Compromised and Inequitable System Any Longer"

2011-11-22T22:34:00.001-05:00

[W]e have done nothing. We have avoided the question.

John Kitzhaber, Governor of Oregon

What question?

Here's a hint: In Oregon you have to volunteer.

Enough. I don't want to be coy. That's from a statement issued by Governor Kitzhaber explaining why it is that he is imposing a moratorium on executions in his state for the remained of his time in office. There have, he said, been a total of two executions there in the last 49 years. Both in the 1990s. Both while he was Governor. Both volunteers.

Now there is another. Gary Haugen, Oregon's third volunteer. And he had a death warrant, a date with the Reaper. And now he doesn't.

It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal.
In the years since those executions, many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that Oregon’s system is broken.

What to do.

It is time for Oregon to consider a different approach. I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.
. . .

Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.

Kitzhaber is very clear. He's not commuting the sentences of the men on the row (though he observes that he could). He's not saying Oregon can't have a death penalty. He's saying he won't kill. The goal offends, but it's the law. He thinks it should be changed. He's calling on the legislature to change it. In the meantime, the system is irredeemably broken. And just wrong.

And he? He won't be complicit. William Yardley in the Times:

Governor Kitzhaber said his decision was rooted in policy and personal views. He noted he had taken an oath as a physician to “never do harm.” Asked with whom he had consulted, he said, “Mostly myself.”

Which was enough to ensure that the question would no longer be avoided.

Amen.

Kitzhaber's Moratorium Statement

Remembrance of Things Past

2011-11-22T10:31:00.001-05:00

Ah, those were the good old days.

You know, when things were as they were supposed to be.

Before global warming.
Before scope 'n' grope.
Before 9/11 changed everything.
Before Bush's tax cuts.
Before the Democrats borked Bork.
Before Reagan fired the air traffic controllers.
Before the designated hitter.
Before the beatnicks and the hippies and civil rights and Vietnam.
Before the Wars.
Before the Industrial Revolution.
Before the Reformation.
Before the crucifixion.
Before Cain killed Abel.
Before the fucking serpent.

Once there was a Golden Age. When the lion would lie down with the lamb. When neighbor helped neighbor. When there was no crime. When there was no government because why bother. When all were happy and healthy.

And naked.
And lived in trees because it was too damned dangerous on the ground.
And foraged for food and in good times actually found some.
And it was bitter cold and blazing hot.
And the volcanoes. Don't talk to me about the volcanoes.
And life was, as Rousseau pointed out,
solitary, poor, nasty, brutish, and short.

There's nothing, absolutely nothing new in any of this. The yearning for better days that never were, for a perfection that we never knew, for the pre-lapsarian world. For Eden.

The oldest of civilizations pined for those days.

Nostalgia is ever with us and always has been. (Ed Asner, as Lou Grant on the Mary Tyler Moore Show, once grumbled of nostalgia "hated it then, hate it now.")

John Kennedy was murdered 48 years ago today. By Lee Harvey Oswald or some other person. Acting alone or as part of a conspiracy. And we lost our innocence.

Which we'd never had.

I was talking with someone the other day who said that the killing of four wholesome white student protesters at Kent State University by members of the National Guard was the seminal event of his life. He dreams of a pilgrimage there some day (though he said, Jews don't do pilgrimages). That day, May 4, 1970 (another day we lost our innocence), is widely remembered. Perhaps you know where you were when you first heard. Of course you know the picture.

But do you know what happened ten days later, on May 14? Do you know about Jackson State University? Where the cops killed two student protesters? Fair chance you didn't. Those kids were black at an black college in Mississippi. Killing them? Business as usual.

Which brings us back to Lieutenant Pike. Like Chief Judge Williams, he's just another example. And what happened at Davis isn't any worse than some of what's happened to other occupiers at other occupations. And to other protesters and rabble rousers from sea to shining sea. And overseas. (Just ask the Syrians.) But there was that great photo. And the videos.

And so we lost our innocence.

Again.

Really, it gets harder and harder to find.

Sauce for the Goose

2011-11-21T13:32:00.001-05:00

The Los Angeles Times gets it. Maybe it's gotten it for years. (I don't live anywhere near the Golden State and don't look at the LA Times editorial pages more than once a year or so when someone draws my attention to them.) But long ago or just this week, the Times understands.

Prosecutors cheat.

I know. I know. It's something, isn't it. Dog bites man.

The editorial is called "Defending the Brady rule," and here's how it begins.

The Supreme Court recently heard a case in which prosecutors withheld from the defense information that might have acquitted a murder defendant. The court can rectify this one injustice by ruling for the defendant, but broader reforms are necessary to prevent prosecutors nationwide from concealing evidence.

The case before SCOTUS is Smith v. Cain and it's yet another case where the prosecutors in New Orleans decided that the best way to ensure a conviction was to hide the evidence that it's case sucked. Specifically, the only evidence that Juan Smith had anything to do with shooting up a birthday party and killing five people was his identification by an eyewitness who survived, Larry Boatner. Boatner testified to his certainty.

I'll never forget him.

Which is interesting, since he repeatedly told the cops that he couldn't identify anyone and had no idea what the guy looked like. It has been clear since at least 1963 when the Court decided Brady v. Maryland that prosecutors have a constitutional obligation to turn over to the defense any information which is favorable to the defense on either guilt or punishment. Prosecutors (not every one of them, but far too many) ignore that obligation. Some ignore it routinely. Some ignore it only on special occasions. But ignore they do.

It's a particular problem in the Big Easy, though a majority of the Court ruled last year (Connick v. Thompson) that it was only a one-time thing there before agreeing to hear Smith and giving the lie to their prior decision. So they argued Smith on November 8 (transcript here) and it was kind of a disaster for the assistant prosecutor who was sent to Washington to be sacrificed on the altar of Brady.

Anyhow, the LA Times figured out not just that prosecutors violate Brady but that the occasional slapping around (it actually has happened a few times, and it's likely to happen again in Smith, though you never know) by SCOTUS doesn't really accomplish anything.

When you pit the constitutional rights of the accused against the desire to convict the winner is pretty regularly going to be the desire to convict. Which is why Brady violations (and other forms of prosecutorial misconduct) are so damn ordinary.

Oh, there's lovely language in court decisions. See, especially, Justice Sutherland in Berger v. U.S.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Sure. But the good Justice wouldn't have had to write it if prosecutors actually obeyed.

What they know is that it doesn't much matter. They'll get their convictions. Should they get caught, it probably won't get the convicted guy released. (Factual innocence? it is to laugh; mere legal innocence? it is to guffaw.) And it sure as hell won't get the prosecutor punished - unless becoming a judge is punishment. Besides, the putatively bad guy will still have done whole bunches of time, and isn't that the point?

Constitutional rights? Sure. In some other universe.

So what to do?

Cathy Cook, as I've noted here several times, told the Ohio Supreme Court during oral argument,

You've got to make them lose to make them learn.

But the court wouldn't. And doesn't. And neither, with anything like the requisite regularity, does any other court. Nor do the prosecutors suffer any sanction - either in-house or to their license.

What to do?

Back to the LA Times.

A victory for Smith would remedy this particular injustice, but violation of the Brady rule is widespread in the criminal justice system. The National Assn. of Criminal Defense Lawyers has proposed model legislation that would ensure that the Brady rule would be faithfully followed. For example, it would require prosecutors to disclose information that is "favorable" to the defendant even if it's not considered admissible. Prosecutors also would have to disclose material sought by the defense "without delay."

The proposed legislation would apply to federal prosecutions, but it could serve as a model for the states as well. Both state and federal prosecutors are bound by Brady, and both have been guilty of undermining it. Congress must act because the Supreme Court alone can't deal with all the abuses.

Well, uh, yeah. Sure. That'll fix it.

I'm a member of NACDL. It's a terrific organization. It does important work. It provides a variety of resources and support for criminal defense lawyers. It helps to educate the public about what we do and how and why. It advocates in court. And it lobbies Congress on criminal justice and constitutional issues of importance to all of us (even those who don't realize that they matter).

All of that is important. And I hope NACDL's proposed statute (you can find the text and related documents here) becomes law.

And then? Why prosecutors who don't give a shit about the constitutional rights of the accused will wake up to a new dawn. They'll run to the office, and announce to their staff

Folks, we have a new policy starting today. We have wisely ignored our Brady obligations for 48 years now, but Brady is just a requirement of the Constitution. There's now a statute that says Brady counts. And we know that statutes are far more important than the Constitution. Since Congress wants us to obey Brady we must do so. Fully. Thoroughly. Beginning today. No excuses.

Sure.

As I said, I really do hope it becomes law (though I'm not holding my breath). But the LA Times editors really do live in a fantasy world if they believe that a statute will

ensure that the Brady rule would be faithfully followed

when its violations are now "widespread."

You have to change the culture, not the law. Strong words from SCOTUS are nice. So would be a statute. And the occasional win is lovely. But none of that changes the mindset.

So here's the trick.

Vote the liars and the cheats out of office.
Yank their licenses.
Abolish prosecutorial immunity. (Hell, abolish all government immunity which is bullshit anyway in a supposedly free society.)
And make the money come out of their pockets.

Think about it this way: Prosecutors believe that the only way to change behavior is to make the miscreant suffer.

Do unto them.

A Warm, Albeit Belated, Welcome

2011-11-20T21:31:00.001-05:00

Were there any doubt, this would have resolved it.

Defendant appeals from a judgment of the Supreme Court of Kangaroo County (Budweiser, J.) convicting him after a jury trial of the felony of failure to report a suspicious package on the subway.
. . .
Equally silly is defendant’s argument that the mere fact that the package contained only gnawed chicken bones and greasy napkins was sufficient to render it a non-suspicious package. The clear legislative intent was to criminalize the failure to report packages that appear suspicious, not packages that actually are suspicious, which would require looking inside them, creating the very danger to public safety that the statute is intended to protect against which.

That's from a post last December by the pseudonymous Appellatesquawk who claims to be a lawyer representing indigent criminal defendants in New York, which I take it means he's a public defender. As a PD, of course, he doesn't have to market himself. He also doesn't market his blog which, although it hasn't been quiet, has certainly been secret.

Now, though, it's been discovered. From Greenfield to Bennett to me.

The man (?) can write. Prose fueled by righteous anger and more than a dash of wit. More importantly, he speaks the truth.

Appellatesquawk added now, to the blogroll.

BECAUSE THE PROPER RESPONSE TO "JUMP" IS "HOW HIGH" - The UC Davis Edition

2011-11-20T09:26:00.001-05:00

Photographer Lois Greenfield writes on her website

I can’t depict the moments before or after the camera’s click, but I invite the viewer’s consideration of that question.

Lois reminded me recently as we were talking about landscape and gardens and Central Park, that because an artist may be trying to improve nature, what may look natural may be entirely contrived. And yet (this was a subtext to what she was saying, I think), in the photograph, even the photoshopped photograph, there is always, at some level, the image. Which is and carries its own truth.

Jean Luc Goddard once said that

Film is truth at 24 frames a second.

Which makes something of the same point.

* * * * *

Come with me now to the campus of the University of California at Davis. And meet Lieutenant John Pike.

There's the still at the center of the changing world.

And there's the video.

And there's the longer video.

To my eyes, the still is the most horrifying. As they say on the internet, your mileage may vary.

* * * * *

When Reginald Brooks was executed in Ohio last Tuesday despite his mental illness and the state's almost 30 year effort to conceal just how crazy he really was, he spoke no last words.

But strapped to the table (it's not really a gurney), and as the ~~murderers~~ execution team members pushed the plungers that sent the pentobarbital that would kill him through the IV lines, he gave them the finger.

With both hands.

Had he been at Davis, they might have stopped the killing long enough to bring out the pepper spray.