Stalin's Right. Weller's Wrong.

Rodney Alcala entered guilty pleas last month.

"Yes," he said (or perhaps his lawyer did in his name, and I have no idea what words were actually used, this was New York, I wasn't there, and I don't know squat about New York law anyway), "I did it.  I'm the one who killed Ellen Hover in 1977 and Cornelia Crilley in 1971."

Alcala hasn't been wandering the streets in the interim.  Within a couple of years of Hover's murder he'd killed again - in California.  He's on death row there, has been for years and years.  Whether he's ever executed, he'll never get out.  And so New York didn't bother.  I mean, what was the point?  A show trial? He was California's problem.  Let him stay California's problem.

Which left Sheila Weller understandably unsatisfied.  Hover was her cousin though they hadn't seen one another in years.  But her cousin.  And her killer was out there.  Known.  Identified.  And New York didn't care enough to bring him to justice.  To bring Sheila something like peace.

Until last month when Rodney Alcala entered guilty pleas.

Every victim deserves her own day in court, no matter what else the culprit has been arrested for, no matter how long ago the crime: this is the pure integrity of opening a cold case.

That's from "A Cold Case of Cold-Blooded Murder," a column by Sheila in the Times.  She added this.

LAST year, when I heard that Rodney Alcala was actually going to be extradited to New York to face a grand jury on Ellen’s case, I remembered something a clergyman had said at the first service after 9/11: it was too overwhelming, and unfair to the victims, to think of 3,000 people dead. The best way to honor them was to think that “one person died,” three thousand times. When justice is broken down to individual victims, humanity is restored.

And so Sheila Weller makes her case, a moral case, a human case, for insisting that every person murdered, every person raped, every person robbed, every person abused, should be remembered.  Because Stalin was absolutely right.

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

For all of that, though, Weller is wrong.

Oh, there's tragedy to burn. Stalin was still right.  But the criminal justice system isn't about giving "victims" a day in court.  At least, not the sort of victims Weller means.

I've explained this before, but it needs to be repeated.  The victim of a crime is the state, the body politic.  It's why criminal cases have names like State of Ohio v. Some Poor Fuckup or United States of America v. Gee Hesa Shithead or, to bring this back to go, People of New York v. Rodney Alcala.

Ellen Hover and Cornelia Crilley, they were victims of Rodney Alcala, and they were victims of his criminal actions, but they aren't the victims of his crimes.  And his prosecution doesn't vindicate them in any way.  Maybe it was a good thing.  Maybe there's some sort of cosmic justice to be had in bringing Alcala before the bar in New York, in taking a ritual plea and imposing a sentence he cannot serve.  Maybe in some sense he thereby answers for what he did to those women.  So maybe it's an absolute good.  I don't know, don't pretend to.

As I've said too many times in these posts, I don't know what justice is.  I can recognize injustice, but justice - that's in the hands of the gods.

Still, if a show trial (and that's all it could be) or show plea as it happened of Rodney Alcala brought Weller some peace after all these years, if it gave her solace, I certainly don't begrudge her that.  The families, the friends, the loved ones and loving ones of those who have been murdered, and those themselves who've suffered other violations - they ache, they suffer.  They deserve what comfort and sympathy and compassion we can offer.

What they don't deserve is a day in the criminal court where their only proper role is witness.  Not victim.

Last month Rodney Alcala entered guilty pleas.  Last week he was sentenced.  25 years to life.  A sentence he won't serve because he's going to die (one way or another) in prison in California for his long-ago crimes there.  Those years, they're the ritual sentence.  Weller calls it "symbolic," and that's not wrong.  But there's another part he had to endure.  The castigation.

At one point, the judge broke down, saying she had never had before her a case with such brutality and hoped she would never again.

And with that, and with the symbolic/ritual term of years.  Weller has her peace, her satisfaction.

Or maybe not.  Part of what Jody Lyneé Madeira eloquently conveys in Killing McVeigh: The Death Penalty and the Myth of Closure (reviewed here) is that survivors want acknowledgment, recognition.  They want, they need, the bad guy to acknowledge his misdeeds.  Not to the world, but to them.  Just a fucking sincere apology.  Please.  The criminal courts aren't the place.  They rarely provide the setting.  It's not what they're for.  And so they leave those victimized by the criminal acts unsatisfied.

During the hearing he never once turned to face us, the family members. He simply clutched his orange Department of Corrections jacket, protection against the cold on the short trip from court to van and from van to Rikers.

No solace, no acknowledgement, no satisfaction.

All I could think was: a coward to the end. 

Which of course he might be.  Or maybe it just wasn't to be.  Because much as she might like to think it otherwise, the prosecution of Rodney Alcala wasn't about Ellen Hover or Cornelia Crilley.  And it wasn't about Weller or the family and friends of the mudered women.

Stalin was right.  So was that clergyman speaking after 9/11.  The murders of those two are tragedies.  They are to be mourned.  Their loved ones are entitled to grief, despair, anger, bitterness.

But the criminal justice system, whatever its virtues and whatever its defects isn't there to heal them or provide them peace or solace or satisfaction.  It can't do that because it isn't about them.  We've lied in recent years and told them it is.  We've adopted so-call "victim's rights" laws and procedures.  We've a whole panoply of stuff designed to give victims of criminal acts a role in the prosecution of people who are alleged to have committed those acts against the state.  

That's a level of dissonance that simply can't be made to cohere.

UPDATE:  See Scott Greenfield's take on Weller's Op-Ed.

None Dare Call It Closure

The thing about a criminal case is that it's about the harm done to the body politic.  That's why the cases are called things like City of ____________ or State of __________ or United States of America v. __________________.

I understand why the victims of criminal acts hate that.  They think, and prosecutors encourage the thinking, that they're central players.  It's they who were wronged, yet the trials aren't about them.

I understand it, but it's wrong.  Oh, those folks may have been wronged, but they aren't actually the victims of the crime.  The body politic is.  (Didn't I just say that?)

The victims of criminal acts have a legal remedy against those who wronged them, but it's in civil, not criminal law.  Because they aren't (and here you'll perhaps see why I've been fairly careful with my language) victims of crime; they're victims of criminal acts.  More precisely (maybe I haven't been as careful as I should have been), they're victims of criminals.

Regardless of the terms, the remedy for the individuals harmed is in a lawsuit against the person responsible.  The remedy isn't mostly very satisfying (most criminals are judgment proof, and in any event cash isn't a particularly good salve for much of the harm that people cause each other.  Still, that's our system.

Or at least that's the theory.

The thing is that it's a theory nobody but a few law professors, the odd judge, and the criminal defense bar (and maybe the clients of the criminal defense bar) likes.

So it is that over the last 15 or 20 years the criminal justice system has been . . . well, I'd say corrupted or infected or even taken over, though others would say improved or maybe corrected

or slightly modified by individual victims of criminal acts.

• Because, they say, they should have a voice.
• Because they're the victims of crime.
• Because they need to heal.

The last of those things is true, of course.  But the criminal justice system isn't the way.  Even modified.

All of that is by way of introduction to Jody Lyneé Madeira's new book, Killing McVeigh: The Death Penalty and the Myth of Closure.  (Thanks to NYU Press for sending me a copy.)

Madeira, an associate professor at Indiana University's law school, interviewed, at length, 33 people who either survived the bombing of the Murrah Federal Building on April 19, 1995 or who had relatives among the 168 people who died.  She wanted to trace what happened to them, not physically, but psychologically and socially, culturally.

Did the trial bring them closure? The death sentence? The execution itself?  Really, does one ever get over that sort of trauma? How? And what does it mean to get over it? What is closure, anyway?

Closure, she says, is not the politician's (or the prosecutor's) hype.

First, closure is most affirmatively not what contemporary culture says it is -- absolute finality, in the sense of such colloquial phrases as "over and done with," "dealt with," "put behind one's self," "let bygones be bygones," "forgive and forget." Closure is not a state of being, a quality, or even a realization.  If closure exists at all, it must be as a process, a recursive series of adjustments that a self makes in response to external, often institutional developments."

It's not an event and it's not the end.  It doesn't happen, it continues.

For the folks she interviewed, and presumably for everyone affected by the trauma of criminal acts (and maybe by any sort of trauma), it is

"memory work"-- an interactive process by which individual family members and survivors construct meaningful narratives of the bombing, its impact on their lives, and how they have dealt with, adjusted to, or healed from this event. 

And so Madeira takes us along with her subjects chronologically- from McVeigh's arrest to after his execution.  She introduces us to her subjects and tells their stories, really, she lets them tell it, quoting extensively.  But she's not telling us what they did (though there's a bit of that). Rather, it's how they felt.

Seeing McVeigh in the courtroom at his trial.  Seeing his eyes in the execution chamber.  Hearing his voice in a televised documentary.

It won't surprise anyone who reads this blog regularly to be told that I'm not much of a believer in absolutes.  There are the things I believe, of course.  But what is true of the law is true of life.  The  answer to nearly every interesting question is "It depends."

And so, it turns out, is the experience of surviving or losing a family member to the bombing of the Murrah Federal Building.  

It turned some people into anti-death penalty activists.  It made others believers in the death penalty. Some came to forgive McVeigh. Others did not.

McVeigh's eyes communicated much during his execution.  

They showed him defiant ("I've seen it a lot in my grandchildren.  You know that kind of defiance of 'you can whip me if you want to but it's not hurting'"), malicious ('eat shit and die"), arrogant ("fuck you all, I won").  And they showed him altogether unemotional ("nothing"), comfortable ("you're not hurting me"), and fearful ("I'm not in control of this. As much as I've criticized the government, the government has me.") 

Which pretty much suggests that McVeigh's eyes didn't communicate a thing.  The witnesses, those who saw his eyes, found in them different things.  But what the found was in themselves, not in McVeigh.  The interactive process wasn't really interactive because they had no interaction with McVeigh.  It was all with themselves, and what they imagined of McVeigh.

Many of Madeira's subjects took the bombing personally.  He did this to me.  He wanted to make us hurt more. He kept trying to cause us pain. But it seems clear that McVeigh didn't have any thoughts about the particulars of who would die.

Blow up the building.  Kill a bunch of people.  Who they were didn't much matter.  

There was, ultimately, nothing personal about it.

Except to the survivors and the families of the victims.

And, in the long run, to Madeira.

For her, it's a good thing that the criminal justice system has been, in part at least, remade to accommodate these victims and others.  They need to do their "memory work," and trials and sentences help them do it.  She makes passing reference to the tensions between the effort to provide for the emotional needs of individual victims of criminal acts and the constitutional rights of the criminally accused.  But for her, as for those she writes about, it's clear that the individual victims are the needy ones.

Maybe that's easy in the case of these folks.  There really wasn't much question that McVeigh was factually guilty regardless of the roles of others, known and possibly unknown. But the McVeigh case was, at the time, pretty much sui generis.  But Congress and the courts went some toward remaking the criminal justice system as a consequence of the bombing (and, as Madeira relates, at the instigation of some of its victims).  The result isn't particularly satisfying to those victims.  (No matter how much you fiddle it, the criminal justice system just doesn't lend itself into psychotherapy for victims of criminal acts.) Yet it does serious harm to the constitutional rights of the criminally accused.  

Madeira mostly acknowledges that the system, even tweaked, doesn't lend itself particularly well to aiding individual victims.  She doesn't much address the harm caused to the accused.  That's understandable.  This isn't McVeigh's story, it's the story of the bombing's victims (some of them, anyway).  And Madeira places herself firmly in their camp.

Killing McVeigh is a useful corrective to the simple-minded claims of victimolophiles and prosecutors and politicians that all we need is maximum punishments and executions and victims will be, miraculously, healed.  It doesn't work that way.

Indeed, the final need of most of her subjects, the thing that will let them not get over what happened but move on from it, isn't McVeigh's death.  It's his silence.

As frequently as she talks about "memory work," Madeira refers to McVeigh's "toxic presence."  It's about him.  He's in the news.  He's publishing an autobiography.  The trial was about his guilt, more than their suffering.  Damn.

That's the media, of course, but it's also the legal system.  Want to lose track of the guy, make him go away?  Sentence him to life and then ignore him.  Otherwise, whenever there's a new filing a new issue a new round - and that happens nowhere more than in death cases - it's the criminal who's on the front page.  Even the execution is about him.

Or you can give him life.  And let him pretty much fade away.  it's an option Madeira doesn't explore.

Put its shortcomings aside, though.  Killing McVeigh is a compassionate account of the real needs of the individual victims of criminal acts and of how, at least in this one instance, they mostly came to terms with what happened to them.

They were changed by the bombing, of course.  But they came together, joined in common interests, found that they were not alone as they struggled with their emotional responses, changing though they were.  Ultimately, though, the government couldn't heal them.  The courts couldn't heal them. The execution couldn't heal them.

All those things had some value for some of them, less - even negative value - for others. But through interaction and response and attending to each other, they come to terms with, they accept what happened, they get on with the rest.

In a few cases, they seem even to heal.  Maybe Bud Welch did when he went to Buffalo to share his humanity and his loss with Bill McVeigh.  But lost his daughter, Julie.  Bill lost his son, Tim. Maybe Priscilla Salyers watching the execution.

I am still not looking at him, and he kind of raised up, and I think was glaring into the camera, and all of sudden it's like, you know because I have this faith. . . . all of sudden he came to me. . . . I started to think of him as Timothy McVeigh, the soul, and not Timothy McVeigh, the man, and I started praying for him that this is his last chance, this is his last breath, and I prayed for him and it just like overtook me. . . . I was able to let it go,  guess to me that was the true forgiveness, not "Oh yeah, Timothy, you could be my best buddy" -- type forgiveness.  So it's forgiveness in different stages. . . . To me this was a true forgiveness, letting it go.

And

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?

Even the Prosecutors Know

I hope they get some solace in this, but the reality is they probably won’t," the prosecutor lamented. "The reality is they’ll never get their loved ones back. The promise of Casonya and Esme is gone forever and that’s just a horrible tragedy for them. They’re going to have to live with that for the rest of their lives.

That's what Joe Deters, the Hamilton County (that's Cincinnati) Prosecutor, said after a jury returned a death verdict yesterday.

Deters and I agree about, I think, pretty much nothing.  Or so I thought until I read that.  Turns out we do agree that it's just bullshit to believe that killing the killer will somehow heal anyone.  Murder cures nothing.  Vengence may bring some sort of satisfaction, but it doesn't bring peace.

Not even when the state does the killing.

They'd Rather Have Closure

The title of this post is part of what special prosecutor Raymond Fuchs said in explaining why the family of Louella Hilton went along with it.

"It," in this case, is a life sentence with the possibility (although surely not the likelihood) of parole for Gabriel Gonzales in Bexar County, Texas.

Some 13 years ago, Gonzales was sentenced to die for killing Hilton. As Craig Kapitan in the San Antonio Express-News tells it:

Gonzales was a 20-year-old member of the Crips gang who was known as “Capone” when he and four others were alleged to have stormed into Louella Hilton's Austin Highway store on the morning of June 20, 1994.

During his 1997 capital murder trial, prosecutors described him as the one who planned the heist in an attempt to gather more guns for his gang. He was also accused of serving as the triggerman, shooting Hilton three times through a closed door as she dashed for a 12-gauge shotgun in her office.

At his first punishment hearing, prosecutors described a lengthy criminal history and produced a letter they said Gonzales wrote from jail in which he pledged to kill a witness.

You read that, you think Texas, and you understand why he got death. But then, and this is unusual, the Texas Court of Criminal Appeals called a do-over. Here's the key part of the majority opinion. (I've omitted footnotes.)

The evidence and arguments at the punishment hearing would have been significantly different with the mitigating evidence adduced at the applicant's habeas hearing. The habeas court accepted as true that the applicant's father forced him to perform oral sex on him weekly beginning when the applicant was less than six years old, and that his father had anal intercourse with the applicant weekly from the time he was seven years old. The applicant's father was also physically abusive towards the applicant if he resisted, and would threaten to kill the applicant, as well as the applicant's mother, if the applicant ever told anyone about the abuse. The applicant's father also sexually molested the applicant's sister numerous times during her childhood. It is not clear from the record when the abuse ended, but the applicant lived with his father until his parents divorced in 1988, when the applicant was fourteen years old.

The habeas court accepted as true the conclusions of Dr. Raymond D. Potterf, a board-certified psychiatrist who examined the applicant and diagnosed him as suffering from Post-Traumatic Stress Disorder due to the repeated physical and sexual abuse he suffered. Dr. Potterf also concluded that the applicant had a "Borderline Normal Intelligence Quotient which would lead to poor processing of information and probably lower level of control of behaviors which included antisocial behaviors and impulsive behaviors at an early age." The habeas court accepted Dr. Potterf's conclusion that, if given extensive psychiatric treatment for Post-Traumatic Stress Disorder and Chemical Dependence, the applicant could perhaps become a productive, law abiding member of society. None of this evidence was presented during the applicant's trial.

We believe the mitigating evidence presented at the habeas hearing is substantially greater and more compelling than that actually presented by the applicant at his trial. We cannot say with confidence that the facts of the capital murder and the aggravating evidence originally presented by the State would clearly outweigh the totality of the applicant's mitigating evidence if a jury had the opportunity to evaluate it again. In short, we conclude that the applicant's available mitigating evidence, taken as a whole, "might well have influenced the jury's appraisal" of the applicant's moral culpability. Therefore, there is at least a reasonable probability that, had this mitigating evidence been available at the applicant's original punishment hearing, a different result would have occurred, such that it undermines our confidence in the outcome.

The Express-News talked to Hilton's daughter when the court's decision came out. She said she was

stunned by the ruling, said she didn't know how she would feel if Gonzales successfully evaded execution. She was, however, exasperated that a new sentence — life or death — likely would start the appeals all over.

"I'm going to be an old woman" before the case ends, Darla Hilton-Gurkins said. "I was only 27 when it happened and I'm almost 40 now.

Sure. These things drag on because with life on the line, there's every reason to keep litigating, especially because reversals happen a fair percentage of the time.

Anyway, now we're back in Bexar County. Time for a new sentencing. Which means going through it all again. And then . . . . Who knows?“I did talk to (Hilton's) family about it and explained what I thought all the problems were,” Fuchs said. “They agreed they'd rather have closure than for it to continue on.”

In this business, "closure" is the "C word." Proponents of executions like to toss it around. Seeing the killer killed, they say, will bring closure to the family of the victim. Whatever that means exactly (relief? an end to suffering? additional sufferering, now by the family and friends of the person executed? schadenfreude?), the studies don't indicate that the families of the victims of homicide derive any real peace or comfort from the death of the killer.

All they get is an end to process. And there's a much faster way. Just take death off the table.

Hilton's family got it. It's over now. Case closed. Which is maybe what closure means.

******************

Of course, that's Texas. Here in Ohio, things continue unabated.

The Ohio Supreme Court yesterday refused to stay Mark Brown's execution, scheduled for Thursday, so that he can have time for appellate review of the substantial evidence that he's factually innocent of the murder for which he's about to be killed.

Today, the court set serious execution dates for three more men. That brings us to 8 scheduled murders. One a month through September. If they all go, it will be 9 in the first 9 months of the year. Expect more. Double Digits. Oh, and on Thursday we'll be tied with Texas for the most executions so far in 2010.

Here, to help you keep track:

• Mark Brown - February 4
• Lawrence Reynolds - March 9
• Darryl Durr - April 20
• Michael Beuke - May 13
• Richard Nields - June 10
• William Garner - July 13
• Roderick Davie - August 10
• Kevin Keith - September 15

DEATH PENALTY SCREED - PART II

It's only news to those who didn't know it already. For most, there's no such thing as closure. The pain doesn't go away in a moment.

I'm talking about the families and friends of murder victims. You know, the ones who, it is said, find relief in death sentences for the killers and, later (much later, ordinarily), in their executions. Those things, we're told so often it becomes a mantra, provide peace and closure. Now, they say, they can have peace. And I suppose it happens. But it's not the norm. Revenge is not, ultimately, healing.

This isn't just me. Nobody ever said that my understanding of human psychology was particularly insightful.

(That's almost not true. Years ago, when the Ohio decided to prohibit inmates being executed from speaking their last words, I was quoted in the Columbus Dispatch as saying that they were trying to "pretty up the whole process, sanitizing the execution to distance all of us from it. It dehumanizes even further the person you are executing." The comment was quoted In Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions, and described as having been made with "telling psychological accuracy." When I saw it, I told my wife, proudly, that nobody had ever before accused me of any psychological insight whatsoever. Quick to deflate, she pointed out that authors had described me as an "ACLU attorney in Toledo," but had omitted my name, so it remained the case that I had never been so praised. But I digress.)

The idea of closure from death sentences and executions is a myth exploited by execution advocates but supported by no reputable studies. But both studies (here, for instance) and a wealth of anecdotal evidence say something different. Sharon Tewksbury, who is pleased that the man convicted of murdering her husband was executed by the State of Ohio, commented afterwards on how she and her family felt.

None of us felt elation. None of us felt overjoyed. I don't have strong feelings about the death penalty one way or the other now. My goal is to get all of the media to understand that 'closure' is a bad word, a word survivors don't understand. 'Transition' is the word we use. That doesn't mean everything is OK. Never will it be OK, and no execution, no jail sentence, nothing, will help in that process.

That should be self-evident. Killing doesn't heal. The sort of seemingly gentle killing we insist on in the United States doesn't even provide a sense of equivalence. How often we hear the cries for vengence that "he should die the way she did," yet those are the demands of individualized vengeance, not what government executions are designed to or can provide. And, yet again, vengeance may bring some sort of satisfaction, but it doesn't undo the harm, and it sure doesn't bring peace.

What it does, and this is always important to remember, is make us them. The victim becomes the victimizer. And the friends and family of the executed become new victims. It's classic feuding. Unchecked, it's Hatfields and McCoys (sorry to my friends in both families for bringing that up, but your families did broker a peace).

And then there's the time.

As this AP story from Connecticut notes, victim family members spend years, sometimes decades, hearing over and over, reliving again and again, the details of what was done to their loved ones yet having the focus of attention be not on the victim of the crime but on the convicted killer. As the article notes, there's significant evidence that death sentences are harder on victim's families than are life sentences - where the process commonly ends quickly.

There's something perverse about the delays, but they're an integral part of a system that some percentage of the time has sentenced factually innocent persons to death and, at other times, has simply made the wrong choice in deciding who should and who shouldn't be executed. Once it's done, the error really can't be remedied. And frankly, there aren't the resources to look for errors after the fact.

But how do you imagine the victim family and friends feel when there are doubts? Denial, surely. But buried somewhere a degree of uncertainty. My innocent was killed. So we killed yours.

I mentioned Sharon Tewksbury before. The family won't admit it, and the courts wouldn't accept it, but there's every reason to believe that John Byrd, who was executed for the murder of Monte Tewksbury, wasn't the actual killer. And, as something more than a mere aside, if he wasn't the killer, under Ohio law at the time and as he was charged, he couldn't legally have been sentenced to die.

Did we kill the wrong man? I don't know. But if I had supported the killing, if I'd watched it with some satisfaction, I'd sure be haunted by the question. Closure, I don't think so.