On Hitting Back First

The manhunt apparently continues.

Police spent hours, it seems, negotiating with an empty house in the effort to capture Maurice Clemmons, the man we're told is a suspect in what the press reports as the seemingly purposeful albeit unexplained shooting to death of four police officers in a coffee shop in Lakewood, Washington. (All those qualifications emphasize that I don't actually know any of this. It's all gathered from press reports which may or may not be accurate.)

Scott Greenfield, following up on the week's worth of discussion of what we do and who we are (latest entries here and here and here) reminds everyone that if Clemmons is captured alive, it is a criminal defense lawyer who will be standing beside him and defending him. Because that's what we do.

And when that lawyer stands beside Clemmons, we'll be asking the hard question: What now?

Let me be very clear: I'm not a Washington lawyer. I don't have a clue what the range of homicide and other offenses could be charged against Clemmons. I'm also not an Arkansas lawyer, and although press reports suggest that he may be wanted on an Arkansas warrant, I don't know anything about that, either. I could do some research to try and dig out the answers to these things, but I'd probably miss something important, or misunderstand something that seems clear but is in fact counter-intuitive. Law is like that, filled with small but important traps for the ignorant. It's why people, particularly people facing state charges, need lawyers who know the relevant local law.

Anyway, since I don't know the local law, I'm not going to try and explain how it works or what might happen under it. But there are larger questions we can address.

The act, if the press reports are even close to right, is horrific. Clemmons is alleged to have gunned down four police officers who were sitting in a coffee shop doing some computer work before their shift began. No preliminaries. No robbery. Just cold-blooded execution. And, it's said, Clemmons has a lengthy criminal history including other crimes of violence.

Complicating things still more is the spectre of Willie Horton. Clemmons, it seems was paroled in Arkansas after his sentence was commuted by then-Governor Huckabee. And it seems Clemmons was out on bond from charges that he assaulted a police officer and sexually molested a child.

So we can count on three things. Renewed calls for the death penalty, fewer people getting their sentences commuted, restrictions on bond.

The cries for the death penalty will be loudest. Indeed, they're already coming from bloggers and in comments to newspaper stories. So there's this:

Huckabee may not be the only individual guilty here and neither is Arkansas the only state. But why we keep returning this kind of scum to the street is a crime all by itself. They say the Constitution isn't a suicide pact. Well, neither should be trumped up Constitutional Rights. Degenerates like Maurice Clemmons should be shot in the head and left for dead whenever they get caught.

And this:

This is exactly what happens when you have a Liberal gov who won't follow the law and allow the death penalty to do its job. Criminals have no fear. I put this squarely on the Liberal gov's desk. She has emboldened criminals and flooded our society with early release. In 5 years, she has not sought one piece of legislation that toughens our laws. Instead by refusing to stand behind the death penalty she has put courageous crime fighters in harm's way.

And this:

They need to track this guy down and kill him dead. If he goes to prison he'll just be a hero living a pretty decent life watching tv, roof over his head and free food.

But it's never really that simple.

Apparently Clemmons was delusional. CNN says that a report from a sheriff's deputy indicated that Clemmons "believed he was Jesus and could fly."

Huckabee got it mostly right. A statement on his Web site, notes that Clemmons has a history of criminal acts but also psychoses and says that if Clemmons is responsible for these acts,

[I]t will be the result of a series of failures in the criminal justice system.

(Our social safety net systems, too, though good Republican that he is, Huckabee doesn't want to go there.)

Of course, this is but the latest. There was the Thanksgiving day massacre in Jupiter, Florida. There was the Halloween killing of a Seattle police officer and the firebombing of four police cars. And of course there's the serial rape-killer in Cleveland. There's a never-ending stream of these things.

Let's face it. Ours is a violent society. We're not going to end that by executing a few more people or keeping non-violent drug offenders behind bars or denying bond or having the police check on sex offenders more frequently. The tough on crime stuff hasn't worked and doesn't work.

I'm not saying we shouldn't have criminal laws or that there should be no consequence for those responsible for horrific acts of violence (or for those responsible for relatively minor offenses, for that matter). What I am saying is that the knee-jerk response to these crimes -

Kill everyone, and lock the rest up forever -

is not fruitful. Criminal sanctions won't end violence any more than gun control will. That's not to say it hasn't a place. But it's to recognize a reality.

Horrific crimes lead to bad law pretty much always. Just ask the vicitms of Megan's and Jessica's laws and the Adam Walsh Act. It's the double whammy: They don't achieve their inteded aim (keeping us safer) and they serve as distractions from the real business of doing what will keep us safer and what will make it easier actually to nab the folks who hurt others.

Let's go back and look again at Clemmons and his psychoses. What's an appropriate punishment for someone who acts from delusion? How do we hold him accountable for what he didn't understand or couldn't control? What will we accomplish by spending the millions (and it will cost that much before all is said and done) to try to kill him when we can achieve as much, for far less money, by confining him for the rest of his life?

Will we be better people? More moral? More noble shining examples of how to live? So we'll have hit back first. Good on us.

See, we have it backwards. We react viscerally to the horrific. Something must be done. So we do something. Anything.

What we should be doing is pausing. Rather than energizing, the horrific should stop us in our tracks. How? We should ask. Why? Sober reflection and analysis. We don't do that. And it likely won't happen now. Which is a damn shame.

Pause and consider:

• Sgt. Mark Renninger
• Officer Ronald Owen
• Officer Tina Griswold
• Officer Greg Richards

I don't know them. I don't know anything much about them. Were they good cops? I have no reason to doubt it. In their deaths, we'd do well to assume they were.

So do we honor their memory with more killing, more punishment, more violence? Or do we honor them with serious efforts at treatment and prevention?

He struck first, they say. Perhaps. But that's a problem, not an invitation.

Too Many Blow Jobs Spoil the Case

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A POX ON ALL THEIR HOUSES

Remember how less than a week before they were going to kill Tim McVeigh, and some six years after the Oklahoma City bombing the government discovered 3,135 pages of material sitting around FBI offices that should have been turned over to the defense? (Story here.) And then how a couple of weeks later they found another 900 or so pages? (See here.)

Remember how it was an embarrassment and they postponed the execution and the government looked somewhere between inept and comical and complicit? Remember how we said things like "If they can fuck this up they can fuck up anything?" And "This just proves you really can't trust them."

McVeigh's was, of course, the biggest domestic terrorism case ever. The Government had never worked harder to put together a case. There was intense scrutiny. The government saw it as a slam dunk win and death sentence. You'd think they'd have wanted the thing done right. You'd think they'd have made sure it was. As we know, you'd have been wrong.

Fast forward a few years to the nation's capital and environs. Over the space of a few weeks in September and October 2002, randomly chosen innocent people were being shot at long range by a sniper or snipers. Some 16 people were shot. 10 were killed. There was widespread panic. There was a multi-state, even nationwide manhunt for the killer or killers. Eventually, they caught John Allen Muhammad and his 17-year-old companion Lee Boyd Malvo. (Among many versions of the manhunt, Chief Moose's own self-serving tale is perhaps worth special mention.)

Attorney-General Ashcroft decided the two should be tried in Virginia. Malvo got LWOP. In November 2003, Muhammad was sentenced to die. It was Virginia, the state with the fastest average time from sentence to execution, so you kind of knew things would go quickly, and they did. By mid-May 2006, the Virginia Courts and the U.S. Supreme Court had denied Muhammad's direct appeal. His petition for habeas corpus in the Virginia courts was due and was filed in July 2006. But, as the Fourth Circuit explained,

in June 2006, one month before the due date for filing his state habeas petition, his Virginia attorneys received from his Maryland attorneys a DVD with approximately 30,000 pages of discovery responses that were not produced during his Virginia case over two years earlier even though they were possessed by the same multijurisdictional joint investigation team.

Yep. Another monster case. Another seeming slam-dunk for the Government in its cherry-picked jurisdiction. Another death sentence. Another oopsy.

So far, it hasn't mattered to the courts any more than the screw-ups in McVeigh's case mattered. Virginia courts saw no problem requiring relief. A habeas petition was quickly denied in federal district court. Yesterday, a three-judge panel of the Fourth Circuit ruled. (Opinion here.) Not surprisingly (see discussion of the Heinous Crime Rule), they affirmed his conviction and death sentence.

The panel does express distaste for and misgivings about Virginia's improper suppression of evidence.

Let it be clear that we by no means condone the actions of the Commonwealth in this case. As a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution. When questioned at oral argument regarding why this information was withheld or why the Commonwealth did not take the step of instituting an open-file policy, the Commonwealth had no explanation.

But, you know, it's not really that big a deal. After all, he's guilty of a horrible crime

Yet, at this stage of the criminal process, we deal only with actions that were clear violations of the Constitution. While not admirable, the Commonwealth’s actions did
not violate the Constitution. Even if the withheld evidence were exculpatory, Muhammad cannot show that he was prejudiced by any nondisclosure. The jury determined that he murdered several people, the evidence against him in most
instances was compelling, and any number of the killings could serve as the one predicate killing necessary for his conviction.

You know, all that complaining about how shoddy Virginia's behavior was and how the panel is only permitted to review Constitutional error would be a whole lot more compelling (and credible), if the panel had done its job right in evaluating that evidence.

According to the panel, the evidence was not exculpatory, and therefore not a basis for relief, because it did not definitively contradict the Commonwealth's case. But that's wrong on two grounds.

• The proper test, as SCOTUS has made abundantly clear, isn't whether evidence is exculpatory but whether it's favorable to the defense at either guilt or punishment, and evidence is favorable if it tends to exculpate or is impeaching. See, for instance,Brady v. Maryland, Strickler v. Greene, and Kyles v. Whitley.
• Evidence does not need to definitively contradict the state's case to be useful for impeachment - or even to be exculpatory. The ultimate test, as those same cases explain, is whether the evidence tends to undermine confidence in the outcome of the trial, whether there's a "reasonable probability" that the outcome would have been different had the evidence been used at trial.

I was in the Ohio Supreme Court years ago waiting to argue my case while Cathy Cook was arguing a death penalty appeal. Her issue, or at least the one I recall her arguing, was prosecutorial misconduct. It was another case, she said of the Hamilton County Prosecutors Office violating some set of rules, and the court should, finally, not just tell them to go and sin no more. I wrote down what she said:

You've got to make them lose to make them learn.

The court didn't make them lose that case, nor is there any particular evidence that they learned.

The maxim is that "bad cases make bad law," and the panel's opinion in Muhammad is certainly bad law. It's also enabling. And that's far worse.

What's true of the federal government in McVeigh's case and the Commonwealth of Virginia in Muhammad's is true of every jurisdiction, not in every case, but in more than a few. In cases big and small, in slam dunks and in close calls. And it shouldn't be a surprise.

If the government will be sloppy or dishonest when there's no reason, then how can we trust it in any case? And how can we trust a court system to monitor it when it hides behind obfuscation and its own unwillingness to acknowledge the law.

This is a felony?

There are the folks who get harassed, and often arrested and sometimes prosecuted, for mouthing off to the cops, being belligerent, being black, or all of the above. (See Henry Louis Gates for the most high-profile recent incident.) Then there are the folks who get busted for violating someone's, anyone's moral sensibility. (See, e.g, Bowers v. Hardwick, which thankfully is no longer the law.) And then there are the folks who are victims of plain, old-fashioned, American, my-way-or-the-highway puritanism.

Which brings us to the truly sad saga of Stacey Anvarinia. She's the 26-year-old North Dakota woman, busted in Grand Forks, South Dakota for a BUI.

What's a BUI? No, not boating under the influence. It's breastfeeding under the influence.

In Grand Forks, apparently that's felony child neglect, or at least that's the offense to which she entered a guilty plea. (Who knows what the original charge might have been that bargained down to this one?) For that offense, she faced up to five years in prison and a $5,000 fine.

She was sentenced this morning and didn't get that much - just 6 months, which she can serve in substance abuse treatment facility. Oh, and she's hoping to get her kid back. Maybe. Sometime.

I'll accept the basic point. It's probably better to be sober when breastfeeding the baby. Hell, it's probably better to be sober, period. But serving time? A felony record? Years of registration as a child offender, perhaps? (South Dakota lawyers, feel free to jump in here with the answer to that last one.)

Note to law enforcement: Not all misbehavior is criminal.

(Thanks to Doug Berman for finding the story (here) and keeping it up to date (here).

Heinous Crime Rule: Applied

A couple of weeks ago, in this post, I wrote about State v. Foster the 2006 case where the Ohio Supreme Court cut the sensible heart out of the felony sentencing reform law Ohio enacted in 1996. What I said then was that the court knew perfectly well what it was doing in Foster, but was so committed to the outcome that it didn't give a damn. And now it's stuck, and unhappily, with the very problem sentencing reform was designed to correct: unbridled discretion by the trial courts in the imposition of sentences.

(And stuck it chooses to be, I should add. Earlier this week, in State v. Elmore, the court reaffirmed Foster and rejected a number of challenges to it we've been raising since a reconsideration motion filed just days after it was decided.)

But Foster has had negative consequences beyond guaranteeing a return to unbridled discretion - consequences compounded by courts of appeals too timorous or inattentive to fix them when they can. Today, the Lucas County Court of Appeals, in an opinion that refuses to discuss the one serious issue it seems was before it, exemplifies the problem. The case is State v. Boyd, and it's ugly.

Here's what happened.

In 2003, Stephen Boyd was charged with four counts of rape. There were two victims, and

Boyd was convicted by a jury of four counts of rape. The charges grew from events on separate occasions and with different victims. That is, he was charged in Counts 1 and 2 with raping A on one occasion and in counts 3 and 4 with raping B on a different occasion. They were, by all accounts, particularly horrible crimes. The case was tried to a jury which found Boyd guilty of everything. He was sentenced by Judge Skow to 20 years in prison, and here's where the details start to matter.

Each count of rape was a first degree felony permitting a sentence of 3, 4, 5, 6, 7, 8, 9, or 10 years. Skow gave him 10 years for each finding that Boyd committed the worst form of the offense. Then finding that consecutive sentences were necessary to protect the public were not disproportionate to the offenses, he made the sentences for each victim concurrent but consecutive to the sentences for the other victim. That is, the 10 year sentences for counts 1 and 2 were concurrent to each other and were the 1o year sentences for counts 3 and 4. But the 10 year pairs were consecutive to each other, so Boyd got a total of 20 years.

He appealed, of course. The sentence and most of the appeal was done before Foster was decided, but appellate counsel had some sense of what was coming based on what SCOTUS had been doing. So he acknowledged that it wasn't Ohio law but said that there were real problems with maximum and consecutive sentences based on findings made by the trial judge rather than the jury. By the time the appeal was decided, in 2006, the Ohio Supreme Court had ruled on Foster. In light of that, and grudgingly, the court reversed and remanded for resentencing. (Opinion here.)

Back the case went to the trial court. The assumption, and this is what mostly happened in these cases, so the assumption was warranted, was that the judge would simply reimpose the same sentence - this time without an explanation. But there was one difference. Skow was not going to be the judge. While the case was pending on appeal, he'd been elected to and taken his place on the court of appeals. The case was going to his replacement, Stacy Cook.

Boyd had never had retained counsel. He had one lawyer appointed for trial, another for appeal. On remand, he got a third appointed lawyer. (He'll be up to five by the time the story - so far - is over.) And his judge, well, Cook decided she'd do her job right. She'd actually read the record and make an independent assessment of what the sentence should be. Hard to complain about that in theory. It is what she's supposed to do, and it's what few judges in that position actually do unless someone goads them into it.

This time, it was a shame.

She read the record, reviewed the transcript (perhaps consulted with her husband, former prosecutor and now judge Gary Cook, though I don't know that), thought about it, and decided Skow wasn't harsh enough. It was a terrible crime, she said. Each count, she decided, should be run consecutive to each other count. None of this 20 year trivia, she said. Slam the door. 40 years. Before imposing sentence, she told Boyd's lawyer what she was going to do. She gave him time to write a memorandum (sorry, I don't have a copy) explaining why she couldn't do it. She wondered, even as she imposed sentence, whether she had the authority. She decided the court of appeals would tell her. 40 years.

She appointed counsel (we're up to four) for the appeal. When, after numerous extensions, counsel didn't file a brief, the court of appeals removed her from the case and appointed new (fifth) counsel. He filed a brief, raising three assignments of error.

APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION WHEN THE RESENTENCING COURT IMPOSED A HARSHER SENTENCE UPON REMAND.

THE RESENTENCING COURT ACTED OUTSIDE OF ITS AUTHORITY WHEN IT MODIFIED ASPECTS OF APPELLANT'S SENTENCE WHICH WERE NOT SUBJECT TO THE ASSIGNMENTS OF ERROR SET FORTH IN HIS FIRST APPEAL, THEREBY DENYING APPELLANT DUE PROCESS AS PROVIDED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.

THE RESENTENCING COURT COMMITTED AN ABUSE OF DISCRETION BY IMPOSING CONSECUTIVE SENTENCES AGAINST THE APPELLANT.

The first and third were easy.

The harsher sentence issue in the first relied on North Carolina v. Pearce, a 1969 SCOTUS decision saying that increased sentences after successful appeals are presumptively vindictive and, therefore, unconstitutional. The problem is that Pearce has been whittled away to near nothingness and simply doesn't apply in this case. Besides, Cook made enough of a record to show she wasn't punishing him for having the gall to appeal.

The third would be a meaningful issue if Foster hadn't essentially left trial courts with full discretion to impose any sentence within statutory ranges. At least, that's how the 6th District views it. As long as the judge claims to have considered the relevant statutes, and then imposes a sentence within the statuory range, there's no abuse of discretion. Cook did that and more.

But the second assignment is tougher because it's right. I don't know exactly how it was argued, since I don't have access to the brief, but here's the guts of the claim: You remanded because the judge violated the Constitution by the way he went about imposing maximum sentences and in the way he went about making the sentences for Counts 3 and 4 run consecutively to the sentences in Counts 1 and 2. On remand, the judge can impose those same terms but do it the right way, or she can change those terms (which would result in reducing the sentence).

What she can't do is go off on a frolic (oddly, that's sort of a legal term of art) and change other aspects of the sentence. She can't do that because it's beyond the scope of authority given to her in the remand.

That's the argument. It should be a winner. We don't actually know how the court of appeals felt about it, because the court never addressed it. What it said, instead, was that because Pearce didn't apply, the first and second assignments of error were overruled. That's wrong. It's nonsense. If it isn't careless, then it's dishonest. I'd like to think it's careless.

Look, this isn't the first case where a sentence has been increased after a Foster remand. When I started writing this, it was the harshest increase on a Foster remand of which I knew. (I heard about an even worse one while I was writing.) The court should have taken it more seriously, should have really engaged with the issues, should have done it's job and reversed.

But when you're not fully engaged, when you blow off the winning argument and cost the guy 20 years of his life. . . .

Skow may have gotten it wrong. Maybe Boyd should have gotten 40 years from the beginning. Hell, maybe someone should have cut off his balls. But that's not what happened. Our system, if it's going to get the respect it wants, needs to respect itself and the law.

When I was a new lawyer, back in Texas, a wise and terrific attorney named Floyd Holder explained to me the Heinous Crime Rule. "If the crime is sufficiently heinous," Floyd said, "there's no such thing as reversible error." There are exceptions, though few and far between. The appeal from Boyd's resentencing should have been one of them. It didn't even get a carefully done loss. They just blew it off.

There really is no excuse.

ODDS & ENDS

Much as I try, there's just too much out there for me to carry on at length about everything that catches my eye. So here's a bits and pieces collection from the last few days.

*******

Credit Doug Berman over at Sentencing Law and Policy for finding this article in the Wall
Street Journal on how Sonia Sotomayor's "Criminal Rulings Tilt to the Right of Souter's." That won't be a surprise to anyone who's been reading and believing what I've written about her here and here and here. As the Journal notes,

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

Maybe that's why. Maybe it's tied into that background of struggle and bootstraps that makes her so (what's the word? Oh, yeah) empathetic. However she got there, She

"has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.

A friend likes to point out of judges that "none of them were put there to help us." But, gee, we could have hoped that Obama would have found one who wasn't going to make things worse.

*******

You thought prison was a growth industry? Maybe so. But you can always cut back on some things. It's tough, maybe to balance the budget of a prison system by buying fewer paper clips. But surely you can save on the really unimportant stuff - like feeding the inmates. At FindLaw, they've posted this AP report about how prison systems around the country (Georgia, Alabama, Tennessee, and our own Ohio are examples they cite) are "slimming down inmate meals." This follows the news (here and here) that in January a Sheriff in Alabama was jailed for serving insufficient food to inmates and pocketing the difference between what the state gave him for food and what he spent. (Alabama law actually allows that.)

Gruel, anyone?

*******

It almost never happens, but twice in the last week federal courts have granted habeas corpus relief because there just wasn't enough evidence of guilt.

Gerald Brown was convicted of aggravated murder in Franklin County Common Pleas Court for aggravated murder and a variety of other offenses including aggravated robbery, with each count of the indictment accompanied by firearm specifications. (The case was charged as a death penalty case, but the panel that heard it decided on a life sentence.) The federal district court denied all relief in habeas corpus, but the Sixth Circuit said, in Brown v. Konteh, that even with AEDPA deference a couple of the firearm specifications were supported by no evidence whatsoever and granted relief on those. It's hard to see how the partial win will do Brown any good, and that may be (an unspoken) part of the reason the court was willing to grant that limited relief. Still, it isn't every day that you see a habeas court grant relief on the basis that the evidence doesn't support the conviction.

Or maybe it is every day. In 1988, in Ocean County, New Jersey, Paul Kamienski was convicted of murder. Last week, in Kamienski v. Hendricks, the Third Circuit said that even with all the deference to New Jersey courts required by AEDPA, and looking at the facts and drawing inferences most strongly in favor of the prosecution,

no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts’ conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent.

It's an extraordinary decision, not least because it flies in the face of the Heinous Crime Rule. (If the crime is sufficiently heinous, there's no such thing as reversible error.)

*******

In Chicago, the public defender is out of money for death penalty cases and asking to have death taken off the table in some 60 cases. Stories about this have been circulating for a couple of months (see here, for instance), but it's big news right now.

The problem of underfunding public defense - and especially capital defense - is real and nationwide. I talked about it here, and it will surely come up again because it's not going away anytime soon (say, within our lifetimes). But let's give some praise to the Cook County PD for taking this step. The problem may not be the fault of the courts, but the courts have to do something about it.

*******

Finally, at least for the moment, The BLT: The Blog of Legal Times reports that

Two former Alaska state representatives who were convicted on corruption charges in the probe that ended the political career of Sen. Ted Stevens should be released from prison because the Justice Department has found information that should have been disclosed to the defense prior to trial, government lawyers announced.

And so, we have more in the extraordinary and continuing saga of the Obama adminstration's Justice Department demonstrating that the Bush administration's Justice Department violated discovery rules right and left in its investigation and prosecution of Republican officials and office holders in Alaska.