Justice?

 I make it a rule not to write about my cases or my clients.  Partly it's that attorney-client privilege keeps me from revealing some things.  Partly it's that I'm not interested in the self-aggrandizing (or self-abasement).  Partly it's just that some things are better left unsaid.  Partly it's . . . well, who knows.  I just don't do it.  As I said, I make it a rule.

I suspect I've broken the rule a time or two over the years, but hey, my blog, my rules, my right to violate sometime.

Anyway, I'm here today, after way too long, fully intending to write about a client of mine.  I've actually written about his case a number of times, but that was before he became my client - at a time when I did not imagine he would ever become my client.  As soon as he did, I stopped writing about him and his case. But like I said.

His name is Anthony Sowell.*  Over the course of some two and a half years he raped and murdered a number of women in Cleveland.  When he was finally arrested, police found 10 bodies that he'd buried in and around his house.  There was also a single head.  He was found guilty of something like 83 counts (many of them duplicative, but still, 83 counts) of rape and aggravated murder and related offenses.  He was sentenced to be executed 11 times.  That was just under 10 years ago.  

I represented him for most of those 10 years.  He was my client on appeal, in state post-conviction litigation, and in the civil case regarding Ohio's lethal injection procedures.  Nothing.  I was set to pass the case on.  Partly it was because I'd just retired from the Public Defender's office and mostly from the active practice of law.**  Mostly it was because it was time for new eyes.  

Last night sometime, Anthony Sowell died.  Natural causes, the prison folks say.  Some disease, the prison folks say.  Not Covid, but something, the prison folks say.  

It wasn't really a surprise.  He'd been in hospice care on death row for a few days.  Still, it would have been nice if the prison folk had thought to tell his lawyers or his family before they issued a press release.  Sigh.

Sowell's lead trial attorney released this statement:

It is sad news that Anthony has died. I spent many, many hours with Anthony talking about his life. He was a proud and good Marine. He had a brutal childhood. But he worked and wanted to be a good member of the community. He loved the Cleveland sports teams. He struggled with his mental health and nearly died from a massive heart attack. Then his mental health declined rapidly as a result. He was not a monster and not evil. He was damaged by childhood abuse and serious mental health problems. May he rest in peace.  

Amen.

In The Merchant of Venice, Portia, disguised as the lawyer Balthazar, urges Shylock to be merciful.  Sure, Antonio swore out a bond to repay him or pay with a pound of flesh, and couldn't pay, but it's not too late.  The cash is now available.

The quality of mercy is not strain’d,

It droppeth as the gentle rain from heaven

Upon the place beneath: it is twice blest;

It blesseth him that gives and him that takes:

‘Tis mightiest in the mightiest: it becomes

The throned monarch better than his crown;

His sceptre shows the force of temporal power,

The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;

But mercy is above this sceptred sway;

It is enthroned in the hearts of kings,

It is an attribute to God himself;

And earthly power doth then show likest God’s

When mercy seasons justice. Therefore, Jew,

Though justice be thy plea, consider this,

That, in the course of justice, none of us

Should see salvation: we do pray for mercy;

And that same prayer doth teach us all to render

The deeds of mercy. 

The quality of mercy is not strained

Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
’Tis mightiest in the mightiest; it becomes
The thronèd monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings;
It is an attribute to God Himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.

But see, there's this, too.

The State of Ohio spent well over a million dollars in the futile effort to kill Anthony Sowell.  The goal wasn't to keep him off the streets.  It wasn't to keep anyone safe from him.  Prison would do that.  And as I've detailed before, there was no question that he would die in prison.  But that wasn't enough.  They didn't want his death.  A life sentence would do that.  They wanted to kill him.  Damn.  

Zack Reed, a former city councilman from the district where Sowell and his victim's lived, told Cleveland.com

Those women never got justice. Those families never got justice. The community never got justice. Ray’s Sausage never got justice. There’s nothing good that came out of that situation.

Hmm.

Shylock refuses. No cash.  He wants his justice, that pound of flesh.  Fair enough, says Portia/Balthazar.  One pound, not a speck more or less.  And no blood.

Anthony Sowell is dead.  They kept him in a cage, but they didn't get their pound of flesh.  In this depraved business we call that a win.

-----------

*You can find earlier posts about his case through this link.

** I was keeping a few cases, including two death penalty appeals in the Ohio Supreme Court, but it made no sense for me to keep Sowell's.

Every Day a Little Death

It was November last year that a jury in Connecticut determined that Steven Hayes should be killed in revenge for the horrors he inflicted on  Jennifer Hawke-Petit, her daughters, Michaela and Hayley.  And on the survivor of the depredations Dr. William Petit (husband to Jennifer, father to Michaela and Hayley, avenging angel to all three).

I followed the trial, and especially the punishment phase, with some care.  I wrote several times about the case, about the jurors, about how despite their apparent basic decency, they all became complicit in a murder.  I wrote about how they were damaged by the trial, how they too became victims of Steven Hayes and William Petit and the madness of the Connecticut prosecutors and of our death system.

At which point it was time to do it all again. 

Same crimes, essentially the same evidence.  But different lawyers, different lawyers, and a different defendant.  This time it would be Joshua Komisarjevsky, the co-defendant.

Today Komisarjevsky was found guilty.

It cannot have been a surprise to anyone who paid even a bit of attention to what went on in New Haven Suprerior Court these last couple of weeks.  The evidence was much the same as the evidence against Hayes.  And while each blamed the other, the evidence shows that each was culpable.

Now it's time for part two.  Kill or not.

Komisarjevsky's jury (they are, ineluctably, his) will convene again on the 24th.  They will hear additional evidence and argument.  And they will decide whether Komisarjevsky should stay in prison for the rest of his natural life or only until he can be murdered.

It is grim, this business of deciding what to do with a man's life.

* * * * *

I received word today of an old friend, one who was seemingly riddled with cancer, who has been for a couple of years now fighting and clinging to life with passion and energy, with a strength almost beyond comprehension.  She had cancer.  Then more cancer.  And then more.  

Today, as I said, I received word that she is, amazingly, miraculously, apparently cancer free.  "No signs of cancer anywhere" say the doctors.

Perhaps it's just for the day, the week, the month.  Perhaps it's a cosmic practical joke and in six months she'll be dead, all the cancers returned.

But for today, at least, she's cheated death.

* * * * *

Joshua Komisarjevsky should be so lucky.  The odds are that the jury will determine that he should be murdered.  If so, if they do, it won't be a swift killing.  If it occurs at all, it will be years possibly decades from now.  After lawyers and courts have wrangled and argued again and again.  Dr. Petit will relive the agony.  He will, perhaps, hold more press conference, make more statements, continue to be the avenger.

And Joshua Komisarjevsky will wait.  As will Steven Hayes.  And someday.  Maybe.

* * * * *

The taxpayers of Cuyaoga County in Ohio spent something close to a million dollars (I'm guessing, I have no actual information, but it's an educated guess and probably right) to put Anthony Sowell on death row.  He was, you'll recall, convicted of raping and murdering 11 women.

The trial lasted weeks.  I am given to understand that there are over 13,000 pages of transcripts and about 7,000 pages of motions, briefs and orders.  The trial judge, as Ohio requires, appointed two lawyers to represent Sowell on his appeal.  Each of those lawyers is certified by the Ohio Supreme Court to accept appointed appeals in cases where the death penalty has been imposed. They are, that is, specially qualified.

Each must now read and digest all 20,000 pages.  Together they will decide upon issues to raise on appeal.  They will conduct research.  They will write and file a brief, likely a couple of hundred pages long.  They will reveiw the state's response.  They will write a reply.  They will prepare for oral argument before the Ohio Supreme Court and then travel to Columbus to present it.

All of that will consume, literally, hundreds and hundreds probably thousands to be honest about it, of hours.  20,000 pages, for godssake.  Did I mention that they'd have to do all that on fairly strict timetables?

Cuyahoga County paid something close to a million dollars to put Sowell on death row.  The two lawyers who are to represent him on appeal are, it seems to be paid no more than $5,000.  No not each.  A total of $5,000.  That comes to $2,500 each.  That would be about 12.5 cents a page.  With no pay for taking notes, internalizing, researching writing, reviewing, preparing, traveling, arguing.

And of course no money for the cases they will have to turn away, the practices they will have to shut down in order to meet the timetable demanded by the court.

Sowell has a constitutional right to effective assistance of counsel on this appeal.

At 12.5 cents a page.

 

Death, They Said

There's no case that can't be won.

I've said that repeatedly.  I've given examples.  It's true.

It's also true that not every case can be won.

And it's certainly true that some cases won't be won.  Even when counsel are brilliant and dedicated and actually have resources and make heroic efforts.

Anthony Sowell's lawyers were.

It didn't matter.

This afternoon, the jury came back with the verdicts.

• Death
• Death
• Death
• Death
• Death
• Death
• Death
• Death
• Death
• Death
• Death

Eleven times.

Each murder, they said, for each one, the aggravating circumstances outweighed the mitigating factors.

Maybe.

Or maybe it was, however much it isn't supposed to have been, the collective horror.

Regardless.

The judge doesn't have to do it.  He can impose life sentences.  He can make them consecutive.

He won't.

If 8/10/15/20 years from now, he actually gets killed by the state, will we be the better for it?

Will it have been worth it?

And will any of us sleep better tonight?

Crazy Is As Crazy Does

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

John Parker, lawyer for Anthony Sowell, during closing arguments today according to AP

You might think that's self-evident and that there's really no arguing the point - at least if living in that house was a voluntary act, which it was.  You, of course, are not a prosecutor trying to ensure that Anthony Sowell gets sentenced to be killed.

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.”

Then Carr

reminded jurors of Sowell’s comment to arresting officers when he said, “I just want to die.”
She seized on that and urged jurors to make it come true “because it’s what he wants. He wants to die.”

Just think about that for a moment.  Put aside the fact that it's not a legal basis for imposing the death penalty.*  Just think about the claim.  The reason Sowell should be sentenced to die is that it will make him happy.

There's punishment for you.

As I keep saying at these sorts of times, I don't know Anthony Sowell.  I've never met the guy.  I've never represented him.  All I know is what I read in the paper.  From that, it seems pretty clear that Sowell doesn't actually want to be sentenced to die.  Which makes Carr's urging to the jury not just disingenuous but dishonest.  

Still, all of this tells us something about what goes on in these cases.

• Start with a guy who may or may not be legally insane but is obviously crazy.
• Deny that he's any crazier than anyone else. (Sure, we'd all live with those dead bodies; hell, it's a mark of sanity to have killed them all.)
• Insist that his enormity requires that he suffer extreme punishment.
• Emphasize that the jurors can feel good about sentencing him to die because he wants that sentence so it won't be punishment at all.
• Remember that helping someone die who wants to die is assisted suicide which is illegal in Ohio.
• Remember that an Ohio execution is the felony offense of aggravated murder.
• Remember that everyone who assists or encourages the commission of aggravated murder is guilty of that offense.
• Remember that every prosecutor, juror, and judge who signs off on a death sentence has, then, committed aggravated murder (or attempted aggravated murder if the guy doesn't happen to get executed for some reason) although nobody will ever bring charges.

And try to figure out if any of this makes even a little bit of sense.

The jury returns in the morning to deliberate some more.

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

*Under Ohio law, the death penalty may be imposed only when the statutory aggravating circumstances that the jury found to be proved beyond a reasonable doubt are found beyond a reasonable doubt to outweigh any mitigating factors.  That Sowell might have wanted to be killed is not an aggravator, not something that can be even a small part of the reason to find that he should be sentenced to die.

To Exact Revenge

So the jury said Anthony Sowell did it.  Raped and murdered 11 women.  Kept bodies and body parts hanging around.

Now what?

For a week, the experts have been testifying and arguing.

• He was nuts.
• He knew what he was doing.
• He suffers from.
• No he doesn't.  And it doesn't matter anyway.
• Yes it does.

All of which is about getting to the nub of things. 

Here's what we know.

Anthony Sowell will die in prison.

Here's what we don't know.

Will he be murdered by agents of the state of Ohio or will he die by other means.

Technically, and even if he's sentenced to be murdered rather than to death in prison, we won't know for years.  There are appeals and motions and a clemency hearing (some of that whether he wants it or not).  But none of that is really the point.  The point is what to do with him.

Regina Brett, columnist for the Plain Dealer, reveals her answer in the snappy title of today's column.

Anthony Sowell should not be sentenced to death.

Her argument goes roughly like this.

The death penalty doesn't deter.  It certainly didn't deter Sowell.  Whatever the experts say, Sowell is obviously crazy as a bedbug.  He actually does well in a highly controlled environment, you know, like prison.  Let him stay there forever.

Frankly, that's not much of an argument.  She's left out the connections.  A, B, Z.  Yeah, but how do you get there?  Here's what she didn't bother to write.

When we kill for no purpose other than revenge, when we kill people who are crazy, when we kill just to satisfy our own lust for blood, we become killers.  Without any hint of justification.  There's no need to kill Sowell.  There's no point to it.  It won't restore anything.  Let's put him where he can do no harm.  That protects and punishes.  But it doesn't make us into killers also.

At least, I think that's the argument she wanted to make.  And she's right.  (Or maybe I am.) She does get this part right though.

No matter what the diagnosis, those 11 women are still dead, those 11 families are still grieving and Anthony Sowell is still a man whose mind is a mess.

Of course, in today's electronic world, everyone gets to respond. So at 8:28 this morning, 1BL2MNY (which I hope doesn't stand for what I think it might) wrote

I really don't care if he gets the death penalty or not. It is the cost of this fiasco that is troubling to me. This trial has costs the taxpayers over $750,000 to date. We will be forced to pay more with the appeals that are sure to come with a death verdict. I don' know if it was ever an option, but a plea deal of life without parol should have been made from the get go. 

A fair question, perhaps.  Cost is probably the worst reason (morally, ethically, socially) to have or not have a death penalty.  In the real world, it matters a lot.  In any event, and especially for those who paid attention and know that the families of those 11 women, or at least some of them, actually petitioned the prosecutor to strike a deal (for personal reasons that had nothing to do with money), the idea of a deal for death in prison rather than death by needle in prison made sense.

Except it only made sense if you thought the death penalty served some purpose other than blood lust.  At 8:32, just 4 minutes after 1BL2MNY posted that comment, ManginisMother posted this reply.

You are 100% correct. But a plea deal for life in prison would not allow us to exact revenge.

Which is the truth.

And is, of course, at the heart of why we shouldn't kill.

Woman's Intuition

I believe in the academic enterprise.  Really, I do.  I studied and taught English literature before (and even after) going into law.  My wife's a university professor.  My kids are pursuing Ph.D.'s.  Many of my good friends are university faculty or faculty spouses or retired faculty.

So you won't find me readily dissing what academics do and how they think.  

But did Mary Myers, Assistant Professor of Criminal Justice at the University of Akron, really say this?

The minds of serial killers are very much like those of middle-school students in some ways. They want what they want when they want it, and they don’t care who’s hurt while they’re getting it.

Sure, that was (if the quote is right) an answer to a silly question by Abby Cymerman in an interview for  Akron Life. But still.

Myers says her goal is to help students recognize the personality disorders of serial killers so they can avoid becoming a victim: “It’s such a wake-up call when they realize these killers are our next-door neighbors or that charming person sitting next to them at the bar.”

And, of course, in the halls of the junior high where every student is one.

Here's Cymerman's brief bio of Myers.

A psychologist and retired Akron Police captain, Myers is one of about 120 recognized “police psychologists” in the United States. She was the detective supervisor of Akron’s homicide squad in 1997 when Brett Hartmann killed Winda Snipes, and she served on the team that investigated the 1997 murder of Akron physician Dr. Margo Prade by her former husband, Akron police officer Capt. Douglas Prade.

As assistant professor of criminal justice at The University of Akron, Myers has been teaching a course on “Profiling Serial Killers” since it was added to the curriculum in 2003 — a class that’s filled every semester with criminal justice majors, as well as those who are fascinated by the topic.

Of course, we know the public is fascinated with serial killers.  TV, movies, the best-seller lists.  And the trials.  God help us the trials.

And Akron's right near Cleveland and Cleveland is where Anthony Sowell was found guilty a week ago of murdering 11 women over a period of time.  Which makes him a convicted serial killer.  And the trial isn't done.

Tomorrow morning they start up with Round 2.  That's when the state will try to convince the jury to tell the judge to have Sowell murdered while his lawyers urge the jury to order a sentence of death in prison. You can salivate just thinking about it if you're that sort. 

As you'd imagine, the media is priming the pump.

Which is how, via Leila Atassi's article in the Plain Dealer, the one with this screaming headline, I came upon Professor Myers. 

Serial killer profiler scrutinizes courtroom behavior of Anthony Sowell

Myers is not a witness.  She's just the nearest, handiest, professional serial killer profiler (is that an actual job title?) to Cleveland.  (At least, I assume so.)  And as a professional, she can tell by just looking at his eyes.  Say, when the verdicts were read.

His blink rate went up to about 120 blinks per minute -- about two every second. At that rate, and for such a prolonged period of time, the world becomes like a disjointed movie. It's hypnotic. It removes him from reality and allows him to see his surroundings screen by screen. Normally when a person blinks like that they're trying to hold back tears. But if that were the case, his nose would have been running. It seemed to be a conscious action, and it might be a technique he learned in the military to cope with stressful situations, such as interrogation.

Get that?   Consciously, he blinked 120 times a minute.  Twice a second.  For a full minute.  For minutes on end.  You try it.  It's damned hard.  Of course, he's a trained professional or something.

Of course, it's more than the eyes.

The breathing, however, was unconscious. He took about 18 shallow breaths per minute. You could see his pectoral muscles rise with each breath, like someone running a marathon.
At this point, I really thought he was going to lose it -- that he might use those shackled hands to hurt someone and go out his way, in a big blaze of glory. I almost called down to the courtroom to warn them that he's on the edge and to prep the officers guarding him.

And it would have been a good thing, too.  I mean, just think of how much better it would be had she given the warning.  The way he somehow got hold of that guard's gun and began shooting up the place.

What?  That didn't happen?  Nothing like that?

As a legion of sheriff's deputies escorted Sowell from the courtroom, he raised his shackled hands above his head and cast a sharp glance at cameras. 

Oooh, that "sharp glance."

He was so angry when he raised those hands. I could see it in his eyes, and no one around him was ready for it. He could have been sending a message, to an ex-girlfriend perhaps -- "See what you did to me. It's your fault." Or it could have been a hand sign that a Marine would use to signal fellow Marines when he's being taken prisoner. The gesture also might simply be a sign of indignation and pride -- that he survived the trial and couldn't be broken.

Let's see.  Really angry.  Blaming some girlfriend (one he didn't kill, I guess) and sending her a message.  Signaling one of his marine buddies to . . . I don't know; bust him loose?  Or maybe it was pride (which is, of course, the same as anger and messages to girlfriends and code for marines.

Or maybe he was stretching but with the handcuffs his range of motion was limited.

So many possibilities.

Serial killer profiling is, Myers told Cymerman,

intuitive guessing based on research.

Which is a fancy way of saying it's all about guessing and hunches.  And of course we all know the profile from TV and movies and best sellers.

Serial killers are loners, they're the folks nobody would ever suspect, they're introverted geeks, they were bullied, they're striking out at the world, they're in it for the fun, they're charming, they have lots of friends.  They're tall and short and white and of color and educated and uneducated and . . . .

Here's what we actually know about serial killers.

• We don't know who they are until we catch them.
• Most of the ones we catch are men.
• We don't know shit about the ones we don't catch.

I suppose I'm not being fair.  As a profiler, Myers wants to help catch serial killers.  As a teacher she wants to help people avoid them.  As a person, she wants to stay away from them (as do we all).

They’re sociopaths who have no need to follow the rules of our society. They’re lacking the ability to control their impulses to kill. To protect myself, I increase my awareness whenever I encounter someone who doesn’t follow these tiny, unwritten ‘rules’ that govern our everyday behavior in our society. For example, if someone enters the elevator and stands too close to me, I simply exit the elevator. They’ve broken the unwritten rule of where one is supposed to stand in the elevator. 

Which is fine.  I don't like it when people stand uncomfortably close either.  Then again, I'm not telling others to beware of the socially inept because they're all budding serial killers.

You know, like those kids in junior high.

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

Voices Redux

A week and a half ago, I wrote about the petition signed by families of eight of the eleven alleged victims of the crimes for which Anthony Sowell is on trial for his life, even included the petition. 

The petition calls on Bill Mason, the Cuyahoga County Prosecutor, to cut a deal with Sowell - essentially to take murder off the table as a sentence if he'll plead guilty in exchange for a sentence of life without parole (death in prison).  I closed the post this way:

In the courtroom, they were picking the jury.  In the office of Cuyahoga County Prosecutor Bill Mason, they were receiving the petition.

I wrote about these families the other day.  About how they didn't want to live through the trial, to hear the details, to wallow.  About how they didn't need blood, they needed an end.

A week ago, Mason said he was determined to get Sowell sentenced to die.  Leila Atassi, writing in the Plain Dealer, has a sort of update.

When asked to react to the petition, Mason said, "It's their right." 

Sure.  But that doesn't really answer the question, does it Bill?

This morning, a blogger in Australia posted a comment.

But surely what the victims want isn't the point? The prosecution is conducted by the state on behalf of the state, not on behalf of the victims (something the victims rights lobby, at least here in Australia, can't seem to grasp). Just as I don't want alleged offenders prosecuted purely because their alleged victims are noisy, I'm not interested in alleged criminals *not* being prosecuted purely because their alleged victims don't want them to.

I started to do a reply comment, but decided to make it a post instead since this is close to an issue I've addressed on many occasions.  These are the points.

• Yes, crimes are violations of the social fabric not individuals (though individuals may be victims of criminal actions).  The victim of a crime is society.  It is emphatically not one or more individuals.  The individual victims of criminal actions are victims of torts and can sue.  (As the commenter says it is in Australia, so it is here.  Victims of criminal acts and their lobby and legislators and prosecutors and judges and the mass of the public don't understand that.)
• What follows is that victims shouldn't be driving prosecutions.  (I once nearly blew up a good deal for my client when I told the prosecutor who explained that he needed permission from the family of the guy killed that I was tired of all the "kowtowing to victims.")
• And yes, it follows that what the families of the dead want is not and should not be controlling on the prosecutor who should be making independent judgments about how to proceed.
• We don't live in a world where that's routinely what happens.
• Nobody was asking that Anthony Sowell not be prosecuted.  Essentially, the fmailies who signed the petition were asking that Bill Mason negotiate for a sentence of life without parole in exchange for a guilty plea.  
• So, is their view something Mason should consider? Yeah, I think it is.  Counterintuitive views are pretty much always worth considering (though sometimes only for as long as it takes to hit "delete").  As a prosecutor, Mason acts in these cases as the embodiment and representative of society - not properly by polling, but by considering and evaulating.  The voices of these families are worthy of his  attention precisely because they aren't what he expects or we too often hear.  Maybe they have a legitimate perspective on what the proper societal response to the crimes he believes Sowell committed.  
• As they challenge Mason, so they challenge their friends and neighbors and everyone else to consider the appropriate response to a horrific set of alleged facts. 

But the real question isn't whether their views should control. 

The real question is whether their views are important and should be listened to and considered - not just by Mason, but by all of us.

That's easy.

Of course they should be.

Voices for Life

We do not want to endure a trial. We do not want to be witnesses to a media spectacle where our loved ones' lives and the details of the horrendous criminal acts inflicted upon them are spotlighted. We do not believe a costly and lengthy trial, with millions of dollars spent on multiple appeals, would deliver any degree of comfort or closure. We are aware that likely appeals could make this case drag on for years or even decades to come. The death penalty for Anthony Sowell is not necessary, or even desirable, in comparison to the grief we families will continue to suffer under the realities and uncertainties of the criminal justice system.

That's from a petition signed by the families of 8 of the women alleged to have been murdered (and then some) by Anthony Sowell.

Here's the whole thing.

Sowell Petition

In the courtroom, they were picking the jury.  In the office of Cuyahoga County Prosecutor Bill Mason, they were receiving the petition.

I wrote about these families the other day.  About how they didn't want to live through the trial, to hear the details, to wallow.  About how they didn't need blood, they needed an end.

A week ago, Mason said he was determined to get Sowell sentenced to die.  Leila Atassi, writing in the Plain Dealer, has a sort of update.

When asked to react to the petition, Mason said, "It's their right." 

Sure.  But that doesn't really answer the question, does it Bill?

Cutting a Deal?

They're picking the jury that will, at least in the short run (though not all that short given how long the trial will likely take) determine what is to happen to Anthony Sowell.

The expectation is clear:

He'll be found guilty of pretty much everything including, and really this is the only relevant part, the aggravated murders of 11 women and the accompanying death specifications.

Of course, expectations are sometimes frustrated, but that really is the likelihood.  The minimum sentence for aggravated murder with death specifications is life in prison with eligibility for parole (not parole, eligibility for it) only after serving a full 25 years in prison.  Sowell is 51 years old.  If he received the minimum sentence for each aggravated murder and for each of the numerous other charges, and if all the sentences were run concurrently, even with credit for time served he would not be eligible for parole until he was around 75.   And of course, he wouldn't get parole then.

But that's a silly calculation, since it's simply not plausible that he'd get so little time.  Aggravated murder with death specifications (or without them, for that matter) can also be punished by a sentence of life without the possibility of parole (death in prison).  As a practical matter, that's the sentence he'd get whether by stacking life with parole eligibility sentences or by simply imposing it for at least one (but more likely all) of the 11 women.

So, and assuming that the evidence comes in as the public and the press and the prosecutors expect (I have no inside information), and assuming the jury decides what the public and the press and the prosecutors expect them to decide, there will be only one question.

Will Anthony Sowell's sentence be to die in prison of natural causes or to be murdered in prison by the state of Ohio?

Either way, it's death. In prison. Sometime.

And as we know, that sometime won't be next week or next month or even next year.

Like it or not, if Anthony Sowell is sentenced to be killed, the sentence will be reviewed and evaluated by court after court.  That will take time.  He might even get a new sentencing proceeding.  Or even a new trial.

Did I mention that he's 51?  Did I point out that unless he turns out to be not guilty, he'll never again live as a free man?  Did I explain that he will die in prison?  Did you get it that almost certainly the only real question is whether he'll be murdered in our names while he's in prison?

Thomas J. Sheeran in the Columbus Dispatch and Stan Donaldson in the Plain Dealer both had stories this week about families of the 11 women and the desire of many of them to put all this behind them.  They don't need a trial.  They don't need another murder. Just let him plead guilty and spend the rest of his life behind bars.

From the Dispatch.

Some relatives of 11 women allegedly killed by a man on trial are seeking a plea deal to spare the emotional ordeal of seeing the "horrors" play out in court, two attorneys representing families said today.
The attorneys said relatives of at least six victims have signed an appeal asking Cuyahoga County Prosecutor Bill Mason to strike a deal in the case against Anthony Sowell, 51.
"They are concerned about the emotional trauma that the trial is going to cause on their families," Christine LaSalvia said.
"They are really just looking for closure. And I think, just as a way of avoiding reliving what happened and the horrors of what happened, they would prefer not to go through the trial."

Of course, that's not everyone.  From the Plain Dealer.

[N]ot all the families mind hearing what will be said in court and want the trial to take place. They feel Sowell should be held accountable for his alleged crimes.
"I want to see the whole process play out," said Carline Long, 56, aunt of Imperial victim Leshanda Long. "I don't mind hearing the details and I do not want him to get off easy and not have to answer for what he has done." 

Some might think about Sowell spending the rest of his life, however many years, confined to a cell, with no hope of release, knowing he will die without again breathing free air, walking outside, controlling his own life, living in a cell, locked down, behind bars as much as 23 hours a day, and at the end death. Is that "get[ting] off easy and not hav[ing] to answer for what he has done"? 

On the other hand.

[M]any others say the trial will only bring back their pain. Frances Webb, 49, sister of victim Janice Webb, said she doesn't look forward to the trial.
"We really don't want to deal with the court formalities. Some of us have been subpoenaed and we don't want to go back to that place or those emotions," said Webb. "We already put our sister to rest; we don't want to do it all over again." 

The Dispatch again.

[County prosecutor Bill] Mason said Friday he was determined to get the death penalty. A plea deal likely would mean sparing Sowell's life in return for a guilty plea.
Friedman said a life sentence without parole would be similar to a conviction, death sentence and Sowell dying in prison awaiting the outcome of many years of appeals.

Determination is easy.  Getting a death sentence is hard.  Getting it carried out is harder, which is sort of Friedman's point.

I don't know what will happen.

Pleas can occur pretty much any time before sentence is imposed.  If Mason's office is willing, and if Sowell is willing, it can be done.

Then it can be over.

And they can move on.  Not closure.  There's never that when you've lost someone.  But moving on.  And a focus on healing rather than hating.

Otherwise, there are months to go.  With uncertainty as the outcome.  And if the jury should say death, years more of litigation.  So the families can relive it again and again.  While they wait.  And Sowell does.

Or they can just call a halt.

It's really about that stark a choice.

The Greatest (?) Show on Earth

They start picking the jury today. And no, I'm not going to do daily reports on the trial.

But that it's now underway, that's worth noting.

At a rough guess (and I have no inside information, but given what we already know), Cuyahoga County has already invested over a million dollars in this thing what with the extraordinary fees and expenses allowed the defense and with the money the prosecutors and police have spent.

And more to go as we look at a couple of months of trial.

There one place where capital cases fairly often cost that much at trial: Federal court (your tax dollars at work, perhaps O'b could appease the Republicans by cutting the budget for capital cases - nah, wouldn't work). Then there's just the truly unusual case.  And Anthony Sowell's is it.

Eleven (11!) bodies allegedly found in and around his home in Cleveland.  11 counts of aggravated murder.  74 other charges.  As many as 132 witnesses, including the Mayor and his wife.

Carnival in Cleveland, I called it when I first wrote about the case.  The name is still apt.  So is the danger.

Sowell's lawyers want a change of venue.  The case has so saturated county awareness, they say, that it will be impossible to find a fair jury.  The judge intends to try anyway.  And today's Plain Dealer lays it out this way.

The case, which has cost taxpayers more than any in the county's history, called for an unprecedented 1,000 prospective jurors to be summoned in recent weeks in an effort to find a panel of 12 who have been least affected by the continuous news coverage.

Note the words, "least affected."  Not unbiased.  Not without having set opinions.  Sure, that's the media language, not what the judge said.  But it points to an ugly truth in these cases.  As long as they can find 12 jurors (and however many alternates they decide to seat) who'll say without breaking out in giggles or shouting "Heil Hitler" that they can be fair, that's good enough.

And there will be, almost surely, that many.

The standard is either fairness or a semi-convincing lie.

And so, they'll spend probably a couple of weeks picking a jury.  And then a mind-numbing couple of months of horror.

A circus.

For a pound of flesh the state may never collect.

I don't know if Anthony Sowell did what they say.  I don't know if he did all of it, some of it, or none of it.  I don't even know if it all happened.  I don't know if he'd have entered a guilty plea if they'd taken death off the table.  Here's what I know.

If he did those things, we'd be as well served by locking him up for the rest of his natural life as we would be by locking him up for the rest of his natural life or until the courts say we can murder him, whichever comes first.

And we could do it with far less fanfare.

And with the circus elephants kept at bay.

$185,000 and Counting

Really, it shouldn't come as a surprise.

What?  Oh, sorry.

Cost of suspected serial killer Anthony Sowell's defense surpasses $185,000 mark

That's the headline from a story in the Cleveland Plain Dealer.
Sowell, of course, is alleged to have killed a whole bunch of people and cluttered his house and property with the bodies.  (You can catch up some on the case here.)  But Cuyahoga County isn't facing those bills just because the body count is high and the case has kept the media hounds busy.  Hell, my guess (and it's only a guess, folks; I have no inside information) is that if County Prosecutor Bill Mason would say now - or would have said 150 thousand dollars ago -

Plead guilty to aggravated murder, agree to a sentence of death in prison, and we'll give up on the death penalty

Sowell would have taken the deal in a heartbeat.  My guess (still no inside info) is that he'd take the deal today.
It's one of the not-so-secrets about the death penalty that it costs a ton of money.   We can't just kill people.  First we have to be sure they're guilty.  (We're not terribly good at that, of course; see, e.g., Todd Willingham or Claude Jones down in Texas, or Joe D'Ambrosio here in Ohio; there's no shortage of other examples.)
And not just guilty of something like aggravated murder with at least one death specification.  Actually guilty of that.  That requires a full investigation complete with investigators and forensic examiners and maybe psychologists or who knows what for the defense because we don't have a system where whatever the government (or Nancy Grace) alleges must be accepted as true.
And then we have to decide that life or death question.  And the Constitution and the law of Ohio and fundamental human decency says that it isn't just whether the now-convicted person did something awful but whether the awfulness outweighs who that person is and was and how it all came to be.  Because the death penalty isn't just (we're talking theory here, but it's the theory of American justice so if you don't like it consider which other country's system you'd prefer) for the worst of the worst crimes but for the worst of the worst crimes when they're committed by the worst of the worst people.
And that means more investigation and more evaluation and more expert assistance because we want to be sure that this particular person, that one, sitting there, in the courtroom, the one the judge and the jury are looking at, him:  We want to be sure he's the one that judge and jury can look at and say
You should die and we are so damn sure of it that we're willing, individually, to be responsible for killing you.
Once more, the record shows that we're wholly incapable of making those decisions in any sort of reasonable or reliable or consistent way, but the point is that we're supposed to.  And that can't be done in a vacuum.  It really does require that we invest in getting it right.
Or, you know, we can just give this whole charade up.  Just do a trial.  Save a fortune.  Avoid the moral morass and legal quagmire of the death penalty.
In Indiana they've been talking about that. Indiana has a death penalty (though a comparatively small death row), and has killed twenty people, so they're serious about it over there.  And it's not up for immediate elimination.  An AP report explains.

Indiana state lawmakers say the General Assembly is more likely to try to find ways to help counties pay for death penalty cases than to abolish executions to save money.

"There aren't a majority of votes in the Indiana legislature to impose either a moratorium or a revocation of the death penalty, so that's not going to happen," state Sen. John Broden, D-South Bend, a Judiciary Committee member, told The Associated Press on Wednesday. 

But there's that money thing.

An analysis conducted earlier this year by the nonpartisan Legislative Services Agency found that the average cost for trial and direct appeal in six capital cases averaged $449,887, not including the costs incurred by prosecutors or sheriffs. That compares with an average cost of $42,658 for seven trials in cases involving sentences of life without parole.  

That's more than 10 times the cost.  And money's tight these days.  Sen. Broden got the point.

"In an era of declining revenues, we either need to come up with a way to fund future death penalty cases or take a look at other options. I guess everything is on the table right now," he said. 

Sure.

The comments were in response to an assertion earlier in the week by Indiana Attorney General Greg Zoeller that lawmakers should look at whether the costs of death penalty cases are justifiable in tough economic times.

Yep.
What's true in Indiana is true in Ohio.  And it's sure true in Cuyahoga County.
That $185,000 bill.  It'll be way higher before all is said and done.  Though they could pretty much cut it off right now if Bill Mason would just offer that deal.
So maybe we should try listening to some of those prosecutors across the border to our west.  That AP report quotes a couple of them from a summit at Notre Dame University where all this was discussed.

The Elkhart Truth reported that Vanderburgh County Prosecutor Stan Levco said at the summit where Zoeller spoke on Monday that he believes Indiana's death penalty system is "nearly broken" because it costs so much.

"It's almost at the point where it's no longer viable. Unless we decrease the costs, it's not worth it," he said.

The newspaper reported that Clark County Prosecutor Steve Stewart said the system is broken because it costs too much.

"Prosecutors are scared to death about filing a death-penalty case and risking bankrupting their office budget and bankrupting their county budget," Stewart said. 

Note, if you would, the name of the newspaper where those statements were quoted.  It's the Elkhart Truth.
It's Ohio's truth, too.
We can give it up.  And save a ton of money. 
Maybe for crime prevention - or relief for families of those who are killed.

Overwhelmed By the News Cycle

I was going to do an Ohio update.

* * * * * * *

We have a government murder scheduled for Thursday morning.  Michael Beuke is due to be poisioned.  If there's a problem with the thiopentol (the anesthetic that's the basic killing method here now), then they go to Plan B.  But Plan B is problematic for Beuke, as Andrew Welsh-Huggins reported for the AP.

Beuke says a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in the backup method which injects drugs into muscle.

Of course, nobody's ever used the back-up plan, so if it does get used - whether on Beuke or someone else - Ohio will be conducting human experiments in murder.

There'll be a hearing in Beuke's case Monday afternoon in Columbus.

Joseph Mengele's ghost will be watching.

* * * * * * *

Former Ohio Attorney General Marc Dann entered Alford pleas on Friday to a pair of ethics violations.  The claim is that he illegally funneled campaign and office transition funds to staffers.  He was fined $1,000 and ordered to do 500 hours of community service.

Dann was in office just briefly, forced to resign after stories of sexual harassment and frat party behavior by Dann and his staff.  There's really not much to it.  Hubris, immaturity, foolishness.  He and his pals were little more than an additional embarrassment to a state who's prior governor paid $4,000 in fines as a result of his admission of ethics violations.  

Maybe that's why the plea got so little coverage in the media.  But it should have gotten more.  Government corruption takes many forms.  There's the great and the petty.  Dann's was petty, small potatoes.  But the Attorney General is the chief law enforcement officer of the state.  Corruption there is never minor, should never be seen as trivial.

If the Rule of Law (one of the themes of this blawg, it seems) is to be meaningful, it has to be top down.  And, frankly, ethics violations by government officials are more troubling than the slap-on-the-wrist sentences they typically draw.

* * * * * * *

Anthony Sowell's alleged home, the place where they supposedly found all those bodies, is the subject of the latest litigation in his case.  Sowell, you'll recall, is facing 85 counts derived from the discovery, it is alleged, of 11 bodies of raped and murdered women in his home.  We learned a couple of weeks ago that Judge Saffold had been removed from the case.  On Thursday, newly assigned judge Dick Ambrose had his first hearing in the case.

He rescheduled the trial, which was pretty much a given.  He's taken under advisement the request to issue a gag order.  But as I said, Sowell's home is the focus of the most interesting jockeying.  Karen Farkas from the Plain Dealer explained.

The judge also did not rule on a request to reduce protection of Sowell's home, which was filed by assistant county prosecutors Richard Bombik and Pinkey Carr.

The prosecutors said a fence costing more than $15,000 was put up around the home after Sowell was arrested and the Cleveland Police and Cuyahoga County Sheriff's Department are sharing a 24/7 detail outside the house. They would like to modify that to nighttime hours.

Sims said after the hearing the house needs to be protected because of threats to burn it down. 

Cleveland's broke, which could help focus the decision.  It wouldn't be the first time that fair trial stumbled over finances.

* * * * * * *

Like I say, I wanted to write about Ohio.  But then Obama decided that he needed to jump into the Miranda fray.  And then we learned that the rumors are true and Elena Kagan is to be nominated to the Supreme Court in the morning.

Kagan is, by all accounts, smart.  She's likely to get confirmed without too much trouble.  And she's never been on the bench, which is a nice change of pace.  She's also, alas, yet another creature of the east coast educational elite who's never represented real people.  No surprise there, of course.

The last Justice who'd ever practiced what a friend used to describe as "little guy law" was Thurgood Marshall.  Representing the little guy is not, after all, its own reward.

On Saturday, the New York Times got together 10 prominent and formally diverse (woman, Asian, gay, veteran, immigrant) voices to advance their theory of the sort of person who should be appointed to the the Supreme Court.  As Orin Kerr pointed out at The Volokh Conspiracy yesterday, many of these folks demonstrate the point that

when someone makes an argument that a President should select a Supreme Court nominee with a particular experience or worldview, there is a very highly likelihood that the person making the recommendation has that exact experience or worldview.

That much said, Norm Pattis, trial lawyer, has led the blawgosphere demands of a trial lawyer for the court.  I happily seconded the notion, though with not even a hint of expectation it would happen.  Presidents in general, and Obama in particular, may make appointments for diversity, but it's diversity aimed at satisfying interest groups, not at fundamentally changing the game.  Norm's Gerry Darrow was never going to be appointed.  Oh, sure, Obama wouldn't want the fight that would go with the appointment.  More to the point, though, he has no interest in rocking boats.

His "change" was to be one of style, manner (and of course pigmentation and backstory).  To think that it was going to be systemically revolutionary?  Nah.

You say you want a revolution?  (We all want to change the world.)  Think populism.  Think tea party.  Then imagine Sarah Palin for the Court.

Of Kagan?  Apparently a moderate liberal.  No serious concern for civil liberties.  No serious concern for checking the power of the executive.  How do we know?  Not from her speeches or law review articles and not from her filings as Solicitor General.  We know because if she were a firebrand with ideas and commitments outside the institutional mainstream, if she were genuinely interested in the little guy as more than an academic construct, if she were something other than a smart, establishment, lawyer with an ivy league (or equivalent) background, she would have been dangerous.

The one thing nobody in power wants to put on the Court, is someone dangerous.  And we define "dangerous" in this context as "someone who doesn't think - at least in broad terms - the way the power elite do.  And we measure that by searching for someone like us - or like those of our base we want to placate.

Elena Kagan.  You get what you elected.  And you shouldn't have expected anything else.

* * * * * * *

Which brings us to the final piece of the news.  Here's the beginning of the story from the Times.

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.

I haven't weighed in on the debate over whether interrogators properly decided they should read Faisal Shahzad his Miranda warnings after several hours of interrogation.  Obviously, the warnings didn't stop him from talking.  Equally obviously, it seemed to me, they should have read him his rights - if they wanted to use his words against him in court.

I don't know how many times clients have explained to me that they can't be prosecuted because they weren't read their rights.  Were you interrogated?  I ask.  They never asked me nothing.  Then so what?  They don't get it.  

Doesn't every cop on TV have to read a Miranda card immediately upon arresting someone?  Sure.   But it's a literary trope.  Let me be clear.  Miranda is a constitutional requirement only for a person (1) in custody (courts find almost nobody to be in custody for Miranda purposes, but we're talking judicial theory here, not judicial practice), (2) being interrogated, and (3) from whom the authorities hope to get a statement that they will use at trial.

The law does not require Miranda before questioning in non-custodial settings.  The law does not require Miranda when there is no interrogation.  And most emphatically, the law does not prohibit custodial interrogation without Miranda warnings.  All it says is that statements made during such interrogation cannot be used at trial (with certain exceptions).  And, of course, even that rule doesn't apply when the "public safety exception" of New York v. Quarles comes into play.

And yet.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions. 

Please.  No, they really don't.  Not unless we're talking about exceptions to the quasi-policy against waterboarding. 

And, frankly, as Orin Kerr explains, it's very far from clear that Congress can make any such exceptions and have them survive constitutional muster (not that such niceties seem to be much of a concern to either Presidents or Congress).

As I suggested above, those who believed Obama had any interest in change that was actually revolutionary, were delusional.  (I only suggested that above; I'm saying it now.)  One had hoped, though, that he was not so much interested in leading from the rear.