Because It Went So Well Here

So they decided - narrowly, but astounding given the place and the choice - that they'd rather not send the guy who yearns for the time of slavery, who thinks the amendments striking down slavery and allowing blacks and women to vote, who thinks homosexuality should be a crime, and who doesn't believe that his state is bound by the decisions of the U.S. Supreme Court on the Constitution, the guy who maybe, probably, spent his thirties trolling for14 and 15 year old girls . . .

They decided they'd rather send to the Senate a guy who favors abortion on demand and prosecuted members of the Klan.

Alabama, it seems, is showing a bit of envy.  It's like it wants to be, at least a little, like the rest of the country.

But why pick Ohio?

You'll remember how last month we here in the Buckeye State decided that a 69 year old guy who gets around on a walker, wears a colostomy bag on the outside, suffers from COPD and cancer - a guy who has maybe 6 months to live - should be executed rather than left to die on his own in prison, where he'd been for some 20 years.

You'll remember that Alva Campbell had veins that couldn't be accessed by needles, but they'd try anyway, 'cause he was sentenced to be killed and that meant he couldn't be allowed to just die. 

And you'll remember that they tried for about 30 minutes to kill him - and then gave up.  Making him the second person in the country, after Romell Broom, to survive the attempt at lethal injection.  Both in Ohio, incompetence capital of the nation.

And so, after beating back Roy Moore (who's demonstrably not anti-semitic, says his wife, because "one of our attorneys is a Jew") and sending Doug Jones to Washington . . . .

Doyle Lee Hamm

They're getting set to kill Doyle Lee Hamm in February.

 Of course, killing folks is nothing new for Alabama.  They've executed three folks this year.  They've got 191 or so on death row. 

But let's just focus on Hamm, on death row for robbing and killing Patrick Cunningham.  Here's the short version, from Jennifer Gonnerman in the New Yorker last year.

Growing up, Hamm flunked first grade, drank beer and whiskey mixed together, graduated to sniffing glue several times a day, quit school in the ninth grade, ingested Valium and Percocet and quaaludes, watched his six older brothers all go to jail, and eventually acquired his own extensive rap sheet, including arrests for burglary, assault, and grand larceny. He married and had one daughter. (The marriage lasted six months; his wife cited “habitual drunkenness” as one of the grounds for divorce.) In January of 1987, Hamm went on a crime spree that included a shooting in Mississippi and ended when he and two accomplices were arrested following the murder of a motel clerk in Alabama. About three hundred and fifty dollars were missing from the register and the clerk was found on the floor, shot once in the temple. Hamm confessed to the murder, and, at thirty years old, was condemned to death by way of Alabama’s electric chair, which was painted yellow and known by the nickname Yellow Mama.

Got that? 

Carol Robinson at AL.com has more.  He's 60.  Been on death row for 30 years now.  They call him Pops.  And, oh yeah he's been fighting cranial and lymphatic cancer for several years now.  It's terminal. 

Oh, and his veins are no good.  Mark Heath, an anesthesiologist on the faculty at Columbia University, examined Hamm a couple of months ago. 

"There are no accessible veins on [Hamm's] left upper extremity (arm/hand) or either of his lower extremities (legs/feet)," Heath found. Use of one "potentially accessible" vein on Hamm's right hand "would have a high chance of rupturing the vein and being unsuccessful," he added in a written statement Harcourt filed with the court.

The inability of corrections personnel to inject the drugs properly could "cause Mr. Hamm to become paralyzed and consciously suffocate" and would be "an agonizing death," said Heath, whose research has documented problems in the administration of lethal injections nationwide.

All of which makes Doyle Hamm look an awful lot like Alva Campbell.  Who we in Ohio tried to kill last month because it was important not that he die soon but that he be killed.

As I say Alabama has its eye on being not just a southern backwater.  It wants, apparently, to be Ohio.

Life & Death & Life & Death & Life & Death &

I wanted to write about Tommy Arthur.  

The good people of Alabama, the Yellowhammer State, are eager to kill him for the murder of Troy Wicker back in 1982.  Of course, he might not have done it.  But hey, why let bother you?  It doesn't seem to bother them.

Here's the thing.

There's really only one significant bit of evidence against him.  Wicker's wife, Judy Wicker, says Arthur did it.  Of course, she didn't say that in her first 7 statements.  She didn't say it, in fact, until she was doing time for paying a hit man $90,000 to kill Troy. That's when the state offered to let her out early if she'd finger Arthur.  She took the deal.

Then there's Bobby Ray Gilbert.  He confessed to the killing under oath.  But they did some DNA testing and it didn't match, so the courts figured he was lying.  After all, if DNA doesn't put someone at the scene, he must be innocent.

Oh, wait.  DNA doesn't put Arthur at the scene, either.

Anyway, there's more to test and more sophisticated testing and it can be done and should be done and Alabama won't even have to pay.  But of course it refuses.

Because, you know, 

OK, I don't know why, either.

And so, after 25 years on the row, 70-year-old Tommy Arthur was marching toward his 5th execution date in the last 11 years.  A very real one.  March 29.

But it didn't happen.  What did happen is some terrific lawyering.  The 11th Circuit granted a stay, refused a motion to reconsider, and that was that.

Of course, it had nothing to do with the DNA, nothing to do with whether Arthur actually killed Troy Wicker.  Nobody much seems to care about that.  No, the stay was over lethal injection and the use of pentobarbital as the first drug in the three-drug sequence.

Still, now there's time.

And that means a chance.

Which is what I wanted write about.  And then the Ohio's Attorney General's office issued the Capital Crimes Annual Report.*

2011 Cap Crimes Annual Report Narrative and Covers (BSL)

It's not exactly bedtime reading, but it has it's own fascination.  There's a short "History of Ohio's Death Penalty," a review of the statutes, a bit on DNA and mental retardation, lists of who left the row and how.

But the meat of the thing is the "Case History Sheets," a page devoted to everyone who's been sentenced to die in Ohio with a "Summary of the Crime," a chart giving the dates of the standard procedural history of the case, and information about the current (as of Dec. 31, 2011) status of the case.  In 46 cases, that status is "executed by lethal injection."  In 22, it's "died of natural causes."** 

Of course, there's a certain bias to the thing.

Joe D'Ambrosio, exonerated, is almost certainly factually innocent. You wouldn't exactly get that impression from reading this "Summary of the Crime."

On 09/24/88, D'Ambrosio and two accomplices, Thomas Keenan and Edward Espinoza, murdered 19-year-old Anthony Klann at Doan's Creek in Cleveland. Mr. Klann was friends with a man the defendants were looking for because Keenan claimed the man stole his drugs. D'Ambrosio, Keenan and Espinoza kidnapped Mr. Klann at knifepoint, beat him with a baseball bat and stabbed him several times. Thomas Keenan also received a death sentence.

Then again, the state's never conceded error in D'Ambrosio's case.  Or, now that I think about it, in the case of anyone else they sent to the row.

Cause they're all guilty.

Even the innocent ones.

Which returns us to where we began.  With Tommy Arthur.  

Who's still alive.

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

*The official publication date is Sunday, April 1, but it's available now, as you can tell since I'm embedding all 354 pages of it here.

**That's as of Dec. 31, 2011.  The number is up to 23 now, since 75-year-old Billy Sowell died earlier this week.

Because I'm the Judge, That's Why

On Friday, after 15 hours of deliberations, a jury in Cleveland found Anthony Sowell guilty, guilty, guilty.  All those bodies, the folks who escaped, kidnapping, and on and on.  82 counts!  (Acquitted of one, I should add, and the judge earlier entered acquittals on 2 others.)  Next up, after a week to regroup, everyone will reassemble to consider the sentence.

Under Ohio law, it works like this.

• The judge will decide the sentences to be imposed for all the crimes other than the aggravated murders with death specifications.
• The judge will decide whether the sentences should run consecutively or concurrently.  And he can mix and match, making some consecutive and others concurrent.
• The jury will decide, sort of, whether Sowell should be murdered by the state of Ohio, and how often.  And if not, or not always, what life sentence to impose.

That last probably requires a bit of explanation.

For each aggravated murder with death specifications, there are four possible sentences.

1. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 25 years in prison.
2. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 30 years in prison.
3. Life without the possibility of parole (LWOP or Death in Prison).
4. Death.

Each count is determined separately.  So the jury can, at least in theory, say death for this murder, LWOP for that one, 25 - life for another, death again, 30 - life here, and so on.  And, again, the judge decides whether to make the sentences consecutive or concurrent.  (Kill him 11 times in a row or kill him 11 times simultaneously?)

But there's another bit of the law, which is why I said that the jury would "decide, sort of," whether Sowell should get death.  Any of the life sentences chosen by the jury is the sentence that must be imposed for that murder.  But the judge has the authority to overrule a jury's death sentence and impose any of the life sentences he chooses.

So, if the jury says for one of the killings Sowell should serve a full 30 years and then be eligible for parole, Sowell will get that sentence.  The judge cannot reduce it to 25 years before eligibility or enhance it to LWOP or death.  But if the jury says death, the judge can impose any of the four possible sentences.  That is, a death verdict from a jury is, technically, a recommendation.

The idea is that the jury speaks for the community, but if the jury is swayed by passion and blood lust, a wise and dispassionate judge can fix it.  But when the jury (that is, the community) says life, overruling that would be unjust, unfair, undemocratic.

Not surprisingly, Ohio judges don't like to overrule juries.  In fact, and in a couple of hundred (I'm too lazy to count them but it's pretty clearly over 200 jury death verdicts) cases where juries have said death since the law went into effect in October 1981, Ohio judges have instead said life a total of 8 times.

Why "not surprisingly"?  Is it because juries are so good?  Because they never get it wrong?  Because nobody ends up on death row who doesn't deserve to be there?

Uh, no.  Not even close.

In a small way, it's a function of judicial deference to juries.  In a larger way it's because judges are too lazy  or (and here's where we finally get to the point) too scared or too busy pandering to do what they know they should.

See, our judges in Ohio are elected for six year terms.  And while they aren't supposed to make decisions based on how they'll play with the voters at the next election (or when they seek election to a higher court), it's always a consideration.  Unconscious perhaps (or maybe that should be "subconscious") but a consideration.

Don't believe me?

One day years ago, from his seat behind the marble (granite?) bench in the Rhodes Office Tower before the Supreme Court had its own special building, one Ohio Supreme Court Justice looked down on counsel for a capital defendant during during oral argument and asked

But what would people say if we reversed?

Not perhaps the most judicious of questions, but it was before they started recording all the arguments and making them available for posterity.

But pandering (and no, I say invoking the Mark Gardner Rule, no sitting Ohio judge or Justice would ever pander that way) reaches heights undreamed of in lesser locales in the Yellowhammer State (Alabama, for the uninitiated).

There are 3 states where judges can impose death after a jury says life: Alabama, Delaware, and Florida.

No one is on death row in Delaware as a result of judge override. Delaware judges - who are not elected - typically use override to impose life sentences. In Florida, six people are on death row as a result of override. No Florida judge has imposed death through override in 12 years. Whereas more than 20% of the people on Alabama’s death row were condemned by override, judge override accounts for less than 2% of Florida’s current death sentences. Florida judges have used override to impose life sentences in 87 cases, compared to only nine in Alabama.

That's from a report, The Death Penalty in Alabama: Judge Override released a couple of weeks ago by

the Equal Justice Initiative.

The report explores the numbers in some detail. It analyzes the standards - both theoretical and as applied - in each of those three states.  It examines geography.  It looks at politics and the way judicial elections are run.

These political pressures produce the appearance and reality of a judiciary that is insufficiently independent to provide a fair and impartial hearing on controversial issues or enforce the rights of politically unpopular minorities. Because trial judges have almost unlimited discretion in capital sentencing, and because reviewing judges also are subject to reelection pressure, the override decision is perhaps the most vulnerable to political pressure. Scholars observe that, in a state where the majority of people favors the death penalty, “a judge who declines to hand down a sentence of death, or who insists on upholding the Bill of Rights, may thereby sign his own political death warrant.”

Well, yeah.

But most telling is when the judges admit the truth.

In his order condemning John Neal to death despite the jury’s life verdict, Baldwin County Judge Charles Partin determined that Mr. Neal’s 65 IQ score classified him as having mild mental retardation, but the judge asserted that “[t]he sociological literature suggests Gypsies intentionally test low on standard IQ tests.” After Mr. Neal’s case was reversed on appeal because the prosecutor illegally excluded people of color from the jury, the State agreed that Mr. Neal is exempt from the death penalty because he is mentally retarded.

Then there's Judge Dale Segrest.

After hearing evidence about 19-year-old Bobby [Waldrop]’s addiction to crack cocaine, his deep remorse over the killing of his grandparents, and the love between him and his grandparents, the jury decided that life in prison without parole was the appropriate punishment. Judge Segrest was facing re-election at the time of sentencing, and he overrode the jury’s verdict. in open court, he explained that he sentenced Mr. Waldrop (who is white) to death to show he was not racially biased in his past cases: “If I had not imposed the death sentence [on Bobby Waldrop], I would have sentenced three black people to death and no white people."

Is racism the main reason for the overrides?  The report doesn't answer that, and I can't.

Here's what I know.

Death sentences are inherently arbitrary.  There's simply no consistent, fair, rational way to determine whether this person should be executed for this criminal homicide but that person should be sentenced to life for that criminal homicide.  Like all weighing tests in the law, like all balancing tests in the law, the decisions are inherently arbitrary.  When made by a jury of 12, there's some hope that the various juror's individual views will temper each other.  Frankly, the hope that the result will be fair and just is vain, but there's at least a chance that the juror's biases and prejudices and predilections will even out.  When a single judge can toss that aside, with no real oversight, with no real standards, there's no real hope.

After a couple of decades on the bench, Harry Blackmun concluded that the death penalty simply could not be imposed fairly and rationally.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

That was 1994.

And it's today. 

Alabama's a particularly ugly example, but it's just an example.

H/t Russ Bensing

Nobody Wanted Him To Be Killed

Leroy White

Well, Almost nobody.

The victim's family said he should get life.  The jury said he should get life.  The lawyer who prosecuted the case thinks he should do life rather than be executed.  But Leroy White was sitting on death row in Alabama.  Worse, the state was asking for an execution date, which seemed weird because he thought his case was on appeal. It wasn't, and they got the date.

White was on death row because Alabama is the only state that lets a judge override a jury's recommendation of life.  (Unlike, say, Ohio where a jury's vote for life is binding but a vote for death is a "recommendation" which the judge can, in theory, overrule.)  In White's case, the judge did that.

So White sat on death row, ran through whatever process Alabama offered, and then went into federal court.  No local attorneys for that, but attorneys from the Maryland law firm of Saul Ewing L.L.P. took up the case.  Then, in 2006, Ewing himself asked to withdraw since he'd been suspended from the practice of law.  Fortunately, another lawyer from the firm took up the case.  Unfortunately, that lawyer was James Benoit.

Benoit didn't do this sort of work.  He didn't realize that when the federal district court dismissed White's petition for writ of habeas corpus, he was supposed to appeal.  He didn't bother to talk to White or write to him about an appeal.  Or to mention that he was withdrawing from the case.  So he missed the deadline for filing an appeal.  

Enter Bryan Stevenson of the Equal Justice Initiative.  He filed for clemency laying out the story and attaching supportive letters from the victim's family and the prosecutor.

White Clemency

Neither the 11th Circuit nor the US Supreme Court were much concerned.  Brian Lawson in the Huntsville Times sets it out.

Both courts rejected the missed deadline argument, despite an affidavit by former attorney G. James Benoit of Maryland, who admitted withdrawing for unrelated work reasons and failing to tell White about it.
Benoit, who took over White's case after another member of his law firm was suspended from practicing law, said he doesn't believe he communicated with White during the time an appeal could be filed. He said he was unaware of rules that required him to file an appeal.
"At all times I represented Mr. White pro bono," Benoit wrote. "I formerly practiced transactional tax and corporate law and no longer practice law. I have never tried a case and have never been in a courtroom in my career."

It's January 13.  Leroy White is in a cell on death row.  Under death watch.  He's to be killed at 6 p.m.

At 4:30, they say no more visitors, no contact even with his lawyers.  SCOTUS issues a stay.  Nobody to tell White what's going on.  The stay is lifted.  At 9, they kill him.

There's nothing much new here.  White's story isn't much different from that of Cory Maples or Albert Holland or Michael Keenan in Ohio or far too many others.  Of course, for the moment, Maples and Holland and Keenan are still among the sort-of living.  Leroy White was murdered at 9 p.m. on January 13 of this year.

Clayton Crenshaw, Alabama Assistant Attorney General who heads the Capital Litigation Division of the office says it's no big deal.  After all, White didn't prove he would win an appeal, so what's the harm in not giving him one?  Crenshaw didn't say that there's no harm in just dispensing with trials and killing people when you arrest them unless they can prove that they would have been found not guilty, but the logic isn't much different.

Scott Greenfield, this morning, points to exhaustion with stories of police shootings and beatings and the like.  They fade, he says, "into an amorphous mass."   So with these tales.  Too many and they blur.  Stalin knew.

A single death is a tragedy. A million deaths is just a statistic.

So it's important to focus.  On the single death.

The jury voted to save his life.  The victim's family thought he shouldn't be executed.  The prosecutor thought he shouldn't be executed.  Leroy White was executed.  

Feel better now?

Bryan Stevenson put it better than I can.

The death penalty is not just about do people deserve to die for the crimes they are accused of, the death penalty is also about do we deserve to kill. If we don't provide fair trials, fair review procedures, when we have executions that are unnecessarily cruel and distressing, or if we have a death penalty that is arbitrary or political or discriminatory, then we are all implicated.

He Ain't Heavy, Nor My Brother

During the Civil War (they still call it the War of Northern Aggression down there), confederate soldiers from other states derisively called the confederate troops from Alabama "Yellowhammer." Of course, once Alabama's troops led the South to victory over the North and full and permanent independence, Alabamans proudly adopted the name.

Oh, wait. The South lost the Civil War. (My sister-in-law, who lived in Richmond, Virginia for a few years, looked at the boulevard with statutes of all the great confederate generals and called it "Losers Row," but I digress.)  Alabama is known as the Yellowhammer State anyway.

None of that really has anything to do with the news out of Alabama today, but I hate to let a good state nickname story go to waste.

The thing is that Alabama has a history of what you might call intolerance and scorn for the niceties of constitutional law.  You may remember (if you're old enough), George Wallace's inaugural address in 1963 when he was sworn in as Governor.

Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and time again through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation today . . . segregation tomorrow . . . segregation forever.

More recently, Alabama gave us Roy Moore.  While he was Chief Judge of the Alabama Supreme Court, he arranged for a 5,280 pound granite monument of the 10 Commandments to be placed in the rotunda of the state's judicial building.  The US District Court ordered the monument removed.  The 11th Circuit ordered it removed.  The Supreme Court denied Moore's cert petition.  The other Judges had the monument removed to avoid a $5,000/day fine.  And Moore was removed from office for flagrant disregard of the orders of federal courts.  (Full story here.) 

And now there's Alabama's new Governor, Robert Bentley.  He was sworn in Monday.  Apparently, he went right from the inauguration to Dexter Avenue King Memorial Church, where Martin Luther King, Jr., was once pastor.  That was fitting, I suppose, on Martin Luther King day. But then, the Birmingham News had the story.

It seems that while explaining that even though he's a Republican, he plans to be Governor of all the people, and while explaining that he thinks King "was one of the greatest men that has ever lived," well, somehow he let loose that he may be governing everyone, but you know, we're just not all . . . . Ah, here's the Birmingham News.

"There may be some people here today who do not have living within them the Holy Spirit," Bentley said. ''But if you have been adopted in God's family like I have, and like you have if you're a Christian and if you're saved, and the Holy Spirit lives within you just like the Holy Spirit lives within me, then you know what that makes? It makes you and me brothers. And it makes you and me brother and sister."
 
 Bentley added, ''Now I will have to say that, if we don't have the same daddy, we're not brothers and sisters. So anybody here today who has not accepted Jesus Christ as their savior, I'm telling you, you're not my brother and you're not my sister, and I want to be your brother."

Glad to know, I suppose, that he'd like to welcome me into his family.  But a bit disheartening, I'd think, if I were a Yellowhammer, to be told right off the bat that there are the folks he's related to and then there are the rest.  And that I was one of the rest.

According to Jay Reeves of AP, Bill Nigut, regional director of the Anti-Defamation League, said,

His comments are not only offensive, but also raise serious questions as to whether non-Christians can expect to receive equal treatment during his tenure as governor.

And Nigut added that 

[I]t sounded like Bentley was using the office of governor to advocate for Christian conversion.
"If he does so, he is dancing dangerously close to a violation of the First Amendment of the U.S. Constitution, which forbids government from promoting the establishment of any religion."

But you know, it's Alabama.  Where the Tuscaloosa.