Insufficient Cooties

His name is Paul Howell.  And, as explained by the Honorable Rosemary Barkett, concurring in the judgment (though reluctantly), he done got fucked.  (No, those aren't the judge's words, they're mine. Her words are below.)  

Howell's on death row in Florida.  They almost killed him earlier this year, but he got a stay.  See, the lawyers the state chose to represent him screwed up his case and blew his deadline for seeking relief in federal court.  Burkett gave some detail.

[B]oth his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional.

Now, that's serious shit.  But hey, the Supremes have made it clear that your lawyer acts on your behalf.  And when your lawyer is negligent, well, that's the price you pay for having picked such a dumb shit incompetent as your lawyer.  You should have known better.  

Hold on though.  Howell didn't pick his lawyers.  The state of Florida did.  And since they chose the lawyers, isn't it especially unfair, maybe even unconscionable, to say that Howell should pay with his life for their incompetence?  I mean, we know that Antonin Scalia thinks that fairness and conscience have no place in the criminal justice system or in constitutional law, but he was dissenting when he said those things.

Doesn't matter. The law is clear.  The client suffers for the lawyer's negligence. 

Unless

Unless the lawyer was really, really, really, negligent.  Extra special negligent.  With Cooties.  Which Paul Howell said his lawyer did. (Had? What's the right verb for screwing up with cooties?)  But the court said the Cootie rule wouldn't help him.  It came too late.  He couldn't expect his lawyers to know that the Cootie rule would come along to save them, so they were just grossly incompetent, and that's not enough.  Here's Judge Pryor.

The district court denied Howell’s motion because it concluded that the change in the interpretation of the statute of limitations was not an extraordinary circumstance that would entitle Howell to relief from a final judgment. We affirm.

Burkett, who thinks it sucks, reluctantly agrees.  It's worth quoting her entire opinion.

I agree that, under our precedent, it cannot be said that the district court abused its discretion in dismissing Mr. Howell’s Rule 60(b)(6) motion. However, for the reasons articulated in my concurring opinion in Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring), I continue to believe that it is unjust and inequitable to require death row inmates to suffer the consequences of their attorneys' negligence. Moreover, this is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court. What results is a habeas system wherein unqualified and incompetent attorneys regularly fail to ably navigate the procedural waters established by state and federal statutes. This system, which consistently leads to death row inmates being denied an opportunity to present non-frivolous habeas claims, is, in my view, antithetical to the promise of habeas corpus enshrined in the Constitution.

Here, Mr. Howell appears to have colorable claims that both his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional. I continue to believe that it is unconstitutional and immoral for death row inmates to lose a fundamental constitutional right because of their attorney’s errors, especially when they are as egregious as those we deal with here.

Which is exactly right (except maybe for the part about what the precedent says). But, and here's the bottom line, unless the court reverses itself or the Supreme Court steps in, Paul Howell could be the first person in years to have been involuntarily executed without any federal court reviewing his constitutional claims.

Not because he didn't have any.  Not because they weren't maybe worth hearing.  Just because his lawyers fucked up.

Even if you believe in the death penalty, even if you think Howell deserved it, don't you maybe have to wonder if there's something wrong with a system that says

We might not have killed you if your lawyers did their job.  But them's the breaks.

NumbersL 1338, 500, 2, 180

Of course, it's just a number.  You know, like 7 or 12 or 365 or 3.14159 or 714 or 56 or 511 or 186,000 or . . . .  And maybe you can figure out what those numbers all mean.  Because they're just numbers, too, though special ones.  Here are some others: 18, 21, 30, 50, 65, 100. That set has a certain resonance because they are a set that says something particular.

But others, like these two, well, they derive their meaning from context.

• 1,338
• 500

Here's the context.  Since executions resumed in this country with the January 1977 killing of Gary Gilmore in Utah, there have been 1,338 of them.  Last night it was Brian Davis in Oklahoma.  He was number 1,337.  This evening, Texas killed Kimberly Lagayle McCarthy.  The 13th woman executed in this era, number 1,338 overall.  And number 500 killed in Texas.  Which is, when you think even briefly about it, a hell of a lot of dead bodies.  No other state has killed more than 100 or so. 

So yeah, it's just a number.  But in its roundness, it maybe carries a bit of extra weight.  Maybe makes you stop and pause for a moment.  Not if you're Rick Perry, of course.  But maybe if you're wondering.

* * * * *

Now, the folks who think it's good that we're clearing up the backlog, killing off those folks who need killin', and generally being altogether responsible about it.  Maybe they should pause for a minute and consider Robert Bradley Miller of Oklahoma and Howard Michael Scheinberg of Florida.

No, they're not inmates on death row.  Never have been though some might suggest.

Miller and Scheinberg were prosecutors who tried cases that put people on death row.  No news there. Lots of prosecutors have done that.  That's how all those folks got on the row, after all.  But these two.

Let's start with Scheinberg.  He was engaged in the trial of Omar Loureiro.  On March 27, 2007, the jury returned a guilty verdict. On May 20, they said he should die.  Under Florida law, that's just a recommendation that the judge can accept or reject.  On August 24, then-Judge Ana Gardiner actually imposed a death sentence.  Ho hum.  That's what happens.  Except --

See, from March 23, that's 4 days before the jury came back with the guilty verdict, until August 24, Scheinberg and Gardiner were, how can I put this delicately?  Not quite sure.  Largely, that's because the Florida Supreme Court, ruling on the disciplinary case The Florida Bar v. Scheinberg is less than forthcoming.

I mean, I assume that Scheinberg and Gardiner were, as they don't actually say any more, canoodling, doing the nasty, making the beast with two backs, fucking their eyes out.  But I don't know that.  What I know is that during that 5 month period, 

Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages.

They weren't about Loureiro's case or any other case.  They weren't about bar committees or legal stuff of any sort.  They were, as the court says several times, "personal."  And secret.  Can't forget secret.  As in they didn't tell Loureiro's lawyer that while his motions were being ruled on and while the judge was deciding what to do, the judge and the prosecutor were shagging each other comatose at the No Tell Mo-Tel exchanging hundreds and hundreds of text and phone messages.  Which could lead to what the court describes as 

an appearance of impropriety in the case.

To which one says, 

No shit.

Cause when the judge and prosecutor are bopping each other every chance they get (enough with the cutesiness of pretending we don't know - either they were fucking like bunnies or getting each other off over the phone or (probably) both; any other explanation is altogether implausible given the court's delicate failure to explain.

Loureiro got a new trial.  Scheinberg got his ticket yanked for 2 years.

* * * * *

And then there's Miller.  He was the prosecutor in the 1993 cases against Yancy Lyndell Douglas and Paris LaPriest Powell.  They were co-defendants, charged and tried, two years apart, for the killing of Shauna Farrow and the wounding of Derrick Smith.  Both sent to death row where they lost round of litigation after round of litigation until a federal judge stepped in and reversed the death sentence because of Miller's "'egregious conduct' as prosecutor."

Which led to investigation which led to ethics charges which led to the Oklahoma Supreme Court and State ex rel. Oklahoma Bar Association v. Miller.  And while they hated to do it, and said, in essence, 

it was OK to lie and cheat back 20 years ago, so we aren't going to be as harsh as we might be

they just felt constrained.  Since despite some verbal gymnastics, the court did find that Miller

• abused the subpoena process to force witnesses to cooperate;
• failed to disclose evidence to the defense; and
• obstructed defense access to evidence.

The Bar Association had found more misconduct.  And the Bar Association recommended that Miller lose his license for a year and pay something over $61,000 in costs. But he was, after all, a prosecutor.  (No, that's not really what the court said.  It said this happened a long time ago when ethics standards weren't particularly rigid [you know, because it was OK for prosecutors to lie and cheat and ab use their power and hide evidence in the 1990s], and Miller had never been caught before and he did cooperate.)  So 180 days and $12,000 plus.  Which is not as much, but not chopped liver, either, as my mother really might have said.

And there were the two dissenters.  Judge Taylor wrote, and Judge Watt joined in, a short and pithy dissenting opinion.

Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

* * * * *

Which  brings me back to 500 and 1,338.

Here's what we know.  Prosecutors will lie and cheat and hide evidence to get convictions.  Especially where the stakes are high - and they're never higher than in death penalty cases.  And mostly, nearly always, they get away with it.  And it happened in Kimberly McCarthy's case.  And nobody much cared.

Hidden evidence is tough, because there's no obvious way to find it.  Misconduct of other sorts may be easier to find, but the legal question is always, "So what?"  Would it have changed the outcome in the case of this monster?  That's the way the courts ask it, since they've already concluded that the guy is guilty and doesn't deserve a break.

So most of the misconduct is ultimately whitewashed away.  And actual discipline of prosecutors for their misconduct is incredibly rare. Which is, of course, why they keep doing it.

* * * * *

About 25 years ago, a judge asked me if I was more in the "Due Process" or the "finality" side of criminal law.  You know, the cranky due process types all want the system to be fair.  

Getting the right guy?  Sure that matters.  But we're significantly the worse for it if we have to lie and cheat to do it.  The integrity of the system requires that the system act with integrity.  Which it all too often doesn't in these cases.

Something to think about as we think about those numbers.  And as we give some praise to Florida and a (grudging) Oklahoma.

So a rare nod to Oklahoma and Florida. 

Law Day USA

Tomorrow morning, Governor O'Malley is finally going to sign the bill abolishing the death penalty in Maryland.  It's about time.  I mean, the guy pushed and pushed for the law, finally got it enacted, and now he's waited more than a month to sign the thing.  (OK, I know absolutely nothing about Maryland's legislative procedure - maybe he was required to wait this long, but I doubt it.) 

It's prospective only, which means the bill doesn't actually take anyone off Maryland's death row who's currently there, though O'Malley has the authority to commute all their sentences.  Abolition laws in New Mexico and Connecticut were also prospective only.  Last week, the Connecticut Supreme Court heard oral argument on whether the law must also apply to the 11 men on death row there at the time the law was enacted.  You can watch the argument here.

Anyway, Maryland will end it, and thereby become the sixth state in six years to abolish the death penalty.  The others are New York, New Jersey, New Mexico (the fourth new, New Hampshire, has come close but hasn't made it), Illinois, and Connecticut.  And it's at least possible that Delaware will join that crowd this year.  Hell, they're actually going to have a hearing in the Texas House on an abolition bill.  It won't go anywhere, of course, but this is the fourth time the bill's been introduced and the first time it's gotten this far.

Of course, we're still killin' folks.  Through the end of April there have been 9 executions around the country this year (4 of them in Texas).  And Florida just passed a bill that, if the governor signs it, would put executions on a super-fast track.

In that spirit, and today, which is Law Day USA (so named by presidential proclamation in 1958 and congressional action in 1961 in response to May Day celebrations by godless communists and their ilk), the State of Ohio has this morning executed Steven Smith.  Earlier this morning, our state Public Defender, Tim Young, put out this statement.

Today Ohio will execute Steven Smith. And after the state kills Mr. Smith there will be “no winners here tonight”. This is the title of a 2009 book by Andrew Welsh-Huggins that examines the death penalty in Ohio. The title says all that needs to be said. Ohio will not be a better place tonight for Steven Smith’s execution. Ohio will have not reduced crime, murder rates will not go down, and Ohio will have one more death rather than fewer. And even the victim’s family, who want closure, will still grieve.

I Will Relive All the Pain All Over Again

Lynn Elliott

David Alan Gore

David Alan Gore was 29 on July 26, 1983 when he and his cousin Fred Waterfield picked up Lynn Elliott and Regan Martin who were hitchhiking their way to Wabasso Beach, Florida.  Instead of taking them to the beach, though, they put handcuffs on them and drove them to Gore's parent's house where they raped them.  Gore shot Elliott, then 17, to death while she was trying to escape.  14-year-old Martin survived.

Elliott wasn't the first woman he killed.  Here's Melissa Holsman in the Treasure Coast Palm.

On the eve of his death penalty trial for the 1983 abduction, rape and murder of a Vero Beach High School senior, David Alan Gore told authorities what they had long suspected: Lynn Elliott, 17, wasn’t his first killing.
She was his sixth, Gore, then 29, confessed to prosecutors in November 1983.
Gore, 58, admitted killing six women in Indian River County between 1981 and 1983. Most were sexually assaulted, some were tortured and others were dismembered and buried in hidden graves in citrus groves west of Vero Beach.

Waterfield is doing life.  Gore is doing life, too, but not for Elliott's killing.  For that, he's to be executed at 6 tomorrow evening by the people of the Sunshine State.  (Yeah, his lawyers are still filing stuff, but you probably shouldn't hold your breath waiting for some court to issue a stay.)

And execution in Florida isn't exactly big news around the country.  After all, they've killed 72 men and women there beginning with John Spenkelink in 1979.  Hell, Gore won't even be the first this year.  That was Robert Waterhouse, murdered on February 15.

So there's nothing special about Gore.  A brutal serial rapist and murderer.  Just another guy on the row.  His death will be, the 73rd execution in Florida, and number 1,290 since Gary Gilmore restarted executions in 1977.

But this post isn't about Gore.  Nor is it about Elliott.  He probably can't be saved.  She, surely, cannot be resurrected.  Nor can Gore's other victims.  "Shit," as testimony indicated that one of my former clients said while watching a news story on TV about a murder he'd recently committed, "happens."  And really and sadly, it can't be undone.

But then there's this special series on Gore and his crimes and the upcoming killing in Treasure Coast Palm.  And in particular, there are the stories of the others, those who are still around.  Family and victims. 

Consider Lynn's parents.  Russ Lemmon talked to them.

Jeanne Elliott says her stress level has gone up considerably since Feb. 28, the day Gov. Rick Scott signed Gore's death warrant.
That's not the case with her ex-husband, Carl Elliott.
"The closer it gets, the better I feel," he said.
. . .
They both plan on being in the front row for Thursday's execution.

Their son, Jason, may or may not be a witness, but he's thrilled for his parents.

"I'm looking forward to it for my parents," he said. "It's great that it's happening, but more so for them."

Then there's Martin, the one who survived.

Lee Martin also plans to witness the execution. She is the mother of Regan Martin, who was abducted with Lynn Elliott but survived the ordeal.
Regan Martin, now 43, is married with two kids and living in Georgia.
"I know that I am not going to witness the execution. I really don't want to see his face again," Regan Martin said. "My husband will be going in my place and of course my mother will be there.

And so it goes.  Lemmon spoke with the families the 6 women Gore killed and quoted them all on their plans and enthusiasm for the upcoming festivities.

He didn't speak to Gore's family, though.  Or at least he didn't report what they might have had to say.  My guess is that they aren't quite as enthusiastic as they are set to join all those others in losing a child/brother/father/uncle/spouse.  But then, we don't count them as victims.

We do, though, count Angela Hommell.  It was back in 1976 that Gore and Waterfield took turns raping her at gunpoint after she tried to get them to help with a pair of flat tires.  Melissa Holsman tells the rest.

Angela Hommell

What she believed was a friendly ride to work nearly turned deadly, she said, after the men took turns raping her while pointing a gun at her head, court documents state.
In 1984 sworn depositions, Gore admitted he and Waterfield devised a ploy to pretend to threaten her with a gun, as part of a plot to rape her.
"After I pulled out the gun, he was keeping the game going, that's when I told him 'Fred let's don't play anymore. Let's go ahead and do what we're going to do,' " Gore recalled during an October 1984 deposition.
He said he had a "snub nose" .22 caliber handgun.
They agreed to let Hommell go, he said, after she promised not to tell anyone what they had done to her. But at a hospital that night, she reported the incident and Gore and Waterfield were briefly jailed before being released. Both men claimed their sex with Hommell was consensual and they were never charged with a crime.

It's that last line.  Never charged with a crime.  Hommell figures that if they'd been prosecuted for her kidnapping and rape, they'd have been in prison and therefore the crime spree that included the death of Lynn Elliott, well, it just wouldn't have happened.   Maybe, maybe not.  But if she couldn't stop the other killings, maybe she can stop this one.

"I am writing to you to ask for clemency and/or a (stay) of execution for Dave Gore," Hommell wrote state officials in March. "I believe if they (Gore and Waterfield) would have been prosecuted for the rape against me they would have gone to jail and not be able to go on the killing spree that they did. I am not going to feel closure and/or justice for me if Dave is killed. Not in my name. . . . I am asking as a victim of Dave (and Fred) to stay the execution and give him life without the possibility of parole," she wrote. "If you do not stay the execution, April 12 will be a horrible day for me and I will relive all the pain all over again."

She told Holsman.

"I don't believe in the death penalty. I'm Roman Catholic and in Germany we think the death penalty is barbaric. . . . If he does get killed on (April) 12, that's going to be a bad day for me, or any day therefore, you know."

Rev. Bill Carmody, pastor at St. Dominic's Catholic Church in Colorado Springs, has counseled Hommell for a decade or so.  He knows she's serious.

"The reason she's doing it is to give David Gore one last shot at life," Carmody said. "In spite what he did to her, she's still going to fight for his life, which I find amazing."

Nobody's quite saying it, at least the Treasure Coast Palm doesn't say it, but killing Gore won't bring anyone back.  The dead stay dead.  There'll just be one more dead person.

Who will likely be mourned. 

And whose death will revictimize Angela Hommell.  Who's really suffered enough.

As I keep saying, it's not about him.  It's about us.

I should note that in 15 minutes the Connecticut House of Representatives will begin debating abolition.  And then there'll be a vote.  And it will just be up to the Governor, who says he'll sign.

That won't change anything for Gore, of course, or for the Elliotts or Regan Martin.  Or for Angela Hommell.

Hang 'em High

It's never enough.  There is no equivalence.  There can't be until we admit, really until we embrace, that it's about vengeance pure and simple.  And until we write the last vestiges of the 8th Amendment out of the process.

I've written about this repeatedly.  Here's what I say.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

Oh, sure, as I said, there's that pesky 8th Amendment thing about how there can't be any 

cruel and unusual punishments inflicted.

But, hey.  We're talking about bad guys here.  Surely there's a way around it.

The problem is that we don't want to admit that we want blood, that we're actually killing.

So we pretend.  We make it look pretty, cosmeticize it, medicalize it, sanitize it.

And then we're frustrated because . . . .

Because, dammit all murder is murder.  

Finally, at last (or OHMYGOD depending on your perspective), there's this guy.

His name is Brad Drake and if you live in District 5 in Florida,

he's your State Representative.  And he's got a plan.  Scrap that oh-so-nice lethal injection equipment.  From his press release.

Over the past few weeks there has been much discussion and debate regarding the effectiveness of certain medicines used as preferred method for execution. So, I say let's end the debate. We still have Old Sparky. And if that doesn't suit the criminal, then we will provide them a .45 caliber lead cocktail instead.

That'll teach 'em.

I am sick and tired of this sensitivity movement for criminals,” Drake said. “Every time there is a warranted execution that is about to take place, some man or woman is standing on a corner holding a sign, yelling and screaming for humane treatment. However, I have no desire to humanely respect those that are inhumane.”

Yeah, by god.

Give Drake credit.  He doesn't just talk the talk.  On Tuesday, he introduced HB 325 to stop this mollycoddling of the due-to-be-killed.

Fla. HB 325

So good for Brad. He knows he's a killer.  He's happy to admit it.  Happy to say, this is who we are and what we do.

But really, if he's going to admit it, why stop with the chair and the firing squad.  What about the gibbet?  Ritual beheading?  Drawing and quartering?  Hell, why not crucifixion?

And that 8th Amendment thing?  Newt thinks it's cool for the President to refuse to obey the Supreme Court and the Constitution.  Surely Florida can do no less.  Just ask Brad.

H/t Joe H & Turley