May 6, 1986.  Warren, Ohio.  Raymond and Doris Montgomery.  He 77, she 80.  Both dead.  Stabbed to death in their home.

Later that day, Charles Lorraine confessed to killing and robbing the couple.  Then he went to a bar and, with some of the money he took, bought drinks for some friends. It was his last day of freedom.  He was 19 years old then.  He'll be 52 in October.

December 9, 1986, seven months and three days after the killings, Lorraine was sentenced to be killed.  He's been on death row ever since:  32 years, 1 month, and 10 days as I type this just after midnight the morning of June 16.

I don't know Charles Lorraine.  I never represented him.  I don't know much about him.  I do know this.  It's been 32 years, 1 month, and 10 days.  He was 19 then.  He'll be 52 in October.

Oh, and I know this.  Yesterday morning, the Ohio Supreme Court, without dissent, granted the motion of the Trumbull County Prosecutor and set a date for Lorraine to be killed:  March 15, 2023.  
Nearly 5 years from now.  More than 36 years from the day he was sentenced to die.  Nearly 37 years from the date of the killings.

Let's do that again.

• March 15, 2023.  
• Nearly 5 years from now.  
• More than 36 years from the day he was sentenced to die.  
• Nearly 37 years from the date of the killings.

And I do know that I'm pretty much a broken record here, but I gotta say it:  Even if you believe in the death penalty, even if you believe that it can be morally justified or (and?) that it discourages murder.  Even if you think it's a damn good idea as a matter of principle.  Even if all that.

36 fucking years?

My god.  What's the point?  And who, exactly, are we killing?  I mean, whatever else, the Charles Lorraine of today is not the Charles Lorraine who murdered Doris and Raymond Montgomery on May 6, 1986, not the Charles Lorraine who was sentenced to die on December 9 of that year.  36, nearly 37 years, they make a difference.  Who we were is not who we are.

And who we'll kill is not who we sentenced to die.

Really, it's enough.    

Doris and Raymond Montgomery

Charles Lorrine

   Charles Lorraine Death Entry & Warrant by jmgamso on Scribd

Can You Spell "Moratorium"?

Damned if I know what happens now.

Last July, the Honorable Gregory Frost, U.S. District Judge for the Southern District of Ohio, heard extensive evidence of how Ohio actually went about executing people.  The evidence revealed, as he said in the first paragraph of his opinion,

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

It's also unconstitutional, he said, in violation of the Equal Protection Clause of the Fourteenth Amendment.  The state, he said, had to stop saying that its protocol was binding and actually treat it as binding.  It would, that is, have to start obeying its protocol.

More precisely, though he didn't say this, the state had to convince him that it would actually obey its protocol.

And he enjoined the execution of Kenneth Smith.

As I wrote at the time,

The Rule of Law, not the Law of Rule.

And, oh yeah.  The truth.

In response, the state cooked up a new protocol.

In November, after more hearings, Judge Frost concluded that the state had got religion.  The new protocol comported with the 8th Amendment, he said (as he thought the previous one also did), but it also had enough built in safeguards and assurances that, he thought, it would actually be obeyed.  Hell, it had a special procedure for deviations. And so the execution of Reginald Brooks went forward.

And the state disobeyed the protocol and ignored the special deviation procedure.

Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.”

And he enjoined the execution of Charles Lorraine.

As I wrote at the time,

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

Judge Frost has now been fooled twice.

This time, the state appealed.  It didn't argue that it had obeyed the protocol.  Too late for that.  Instead, it argued that it didn't have to obey the protocol in detail.

Close enough for government work.  Surely all that the government has to do is have a constitutional protocol.  It doesn't actually have to obey it.

Or maybe it does.

The 6th Circuit put it this way.

As the district court found, whether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

Which is really quite an extraordinary statement.  But then judges don't take it well when they catch someone lying to them. 

And really, the state had a simple solution: Obey its own damn protocol.

As I wrote at the time,

Judge Frost said it was the state's own fault.  All they had to do was follow the rules they made up.  How hard can that be?

Of course, we know the answer.

They decided to appeal to the berobed ones in our nation's capital, ask them to life the stay so that Charles Lorraine can be killed.  But they decided to take their time, to hone their arguments.  So Lorraine didn't get killed, and they announced that this month's killing of Michael Webb would be halted, too.  While they came up with a perfect and perfectly constitutional protocol.

As I wrote at the time,

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

Well, they did go to the Supremes.

Tear down this wall, they said.

Oh, wait, that was Reagan talking to the Soviets.

Lift the stay, they said. We have a constitutional protocol.  It satisfies the 8th Amendment.  It doesn't matter whether we follow it.

Really, that's what they said. Here's the quote from their application to vacate the stay.

The State of Ohio and its execution team take seriously the duty to perform executions constitutionally and according to the protocol. The point, however, is that those two obligations—acting constitutionally and acting according to the protocol—are separate inquiries. The federal courts have authority to intervene only if the State fails on the first score.

And the Supremes refused, though they didn't say why and it's not particularly clear that the refusal means anything much.

SCOTUS on Lorraine Stay

Still, it leads me to where I began.

Damned if I know what happens now.

Mark Wiles is next.  he's supposed to be murdered on April 18.

And all the state has to do to make it happen is to convince Judge Frost that this time they'll obey the protocol.

They don't need a new one.  They don't need to refine.  They need to obey.

And they need to make Judge Frost believe that they'll obey.  Though having been fooled twice now, he's likely to be skeptical of the state's assurances.

But if they can't convince him, then it would seem that they can't kill.

My guess is that they'll reach some sort of accommodation within a few months, though it's hard to see just what they will be.

And I wouldn't bet the farm on it happening.

Because the State Cannot Be Trusted - Part Deux

So now it's official.  

Ohio will definitely not be killing Charles Lorraine tomorrow.  

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

The Sixth Circuit agreed.

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

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

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

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

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

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

So here's the problem.

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

Because the State Cannot Be Trusted

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

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

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

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

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

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

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

Defendants have once again fooled the Court.

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

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

Panel Op Affirming Stay

It's Still Nonsense - with UPDATE

But the law is what it is, and the facts are what they are. The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.

U.S. District Judge Gregory L. Frost, In re: Ohio Execution Protocol Litigation (Jan. 11, 2011)

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

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

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

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

Here's how Judge Frost explained it this morning.

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

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

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

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

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

Oh, but gee, close enough for government work.

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

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

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

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

And so.

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

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

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

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

Judge Frost has now been fooled twice.

Temporary Restraining Order and Preliminary Injunction granted.

Execution of Charles Lorraine halted.

 UPDATE - 


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

Lorraine LI TRO

Happy New Year! Rest In Peace.

The holidays are over.  Let the killing resume.

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

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

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

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

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

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

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

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

Just deserts. Or something.

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

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

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

"I don't think it is working," said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. "It's not effective. We know that."

California's death penalty requires "structural change, and we don't have the money to create the kind of change that is needed," she said. "Everyone is laboring under a staggering load."

In response to a question, she said she supported capital punishment "only in the sense I apply the law and I believe the system is fair.... In that sense, yes."

But the chief justice quickly reframed the question.

"I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?"

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

Gary Welsh tomorrow in Oklahoma.

Charles Lorraine here in Ohio in two weeks.

Happy New Year!!

Rest in peace.

Lorraine Clemency