Let Us Now Praise Governor Ted

There's a subject line I didn't think I'd be writing this month.

But this afternoon, Governor Ted Strickland (I'm praising him, so I use his full name) commuted Kevin Keith's death sentence.  Rejecting the unanimous recommendation of the Parole Board.  Here's the official statement his office released.

"Kevin Keith was convicted, by a jury, of callously murdering three people-including a four-year old child-and shooting three others, including two young children.  Since the time of his arrest more than 16 years ago, Mr. Keith has maintained his innocence, insisting that someone else committed the murders.

"Mr. Keith's conviction has been repeatedly reviewed and upheld by Ohio and federal courts at the trial and appellate level.  The Ohio Parole Board recommended against clemency in this case.  There is evidence which links him to the crimes that, while circumstantial, is not otherwise well explained.  It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not.

"Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it.  In particular, Mr. Keith's conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised.  I also find the absence of a full investigation of other credible suspects troubling.

"Clearly, the careful exercise of a governor's executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted.  Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether.  But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts.  That would be unfortunate--this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court.  Under these circumstances, I cannot allow Mr. Keith to be executed.  I have decided, at this time, to commute Mr. Keith's sentence to life in prison without the possibility of parole.  Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

So, it's LWOP until further notice.  But with the possibility of further notice.
Damn. 

And maybe it's less of a fluke than it seems to me.  As Alan Johnson writes in the Columbus Dispatch,

It was the second time in the last three murder cases set for execution that the governor spared the life of the convicted killer. He spared the life of Richard Nields in June, but allowed Roderick Davie to be executed in August.

It was also the second time Strickland rebuffed the parole board's recommendation in a capital case. He allowed the execution of Jason Getsy to go forward in August 2009 even though the board voted to spare his life.

I may have to start respecting the guy.

Innocence Wins, Innocents Still Lose

The title of this post may be a shade deceptive.  As I say routinely, I don't know what happened.  And, frankly, I don't much care.

But I know this much.  Knowing what we know now, these guys should never have been convicted. 

Instead, they find themselves on death row.  The time is drawing close.

I could be referring to any number of folks, but I have two in mind.

There's Kevin Keith.  Last week, the Ohio Parole Board declared that he wasn't factually innocent and should, therefore, be killed.  I've said repeatedly, I don't know what happened that night in February 1994 when Keith did or did not shoot 6 people.  The implication is that they'd have taken a different position if they decided he didn't do it.

Now there's Troy Davis.  You remember Troy.  All those witnesses who recanted.  And the guy who confessed.  And the Supremes told the lower court judge to determine if he was innocent but didn't say on what basis or how or what would follow from the determination.  And the judge held a hearing and excluded much of the evidence Troy's lawyers wanted to present.  And now he's issued this 174 page Order.

The bottom line is in the first paragraph.

For the reasons that follow, the Court concludes that while executing an innocent person would violate the United States Constitution, Mr. Davis has failed to prove his innocence.

That first clause is terrific.  It may seem self-evident, but it's not.  The Supremes have never said it.  It's never formally been adopted as the law of the land.  It is, in fact, a wholly controversial claim.  If executing one who is actually innocent, by whatever measure we use to test it, is a constitutional violation, then the courts have to grapple with freestanding claims of innocence in capital habeas cases.  Until now, the courts have refused to entertain those claims.

Like I said, no small thing.

But for Troy Davis, it's nothing at all.  Because there's that second clause.  He didn't prove it to the satisfaction of Judge Moore.

But when you get right down to it, isn't it the same point?  Given what we know now, would a reasonable jury have found him guilty beyond a reasonable doubt?  Would it have decided to kill the guy?

If not, what are we doing?  And, in any event, why don't we even ask that question?

This isn't the raving of an abolitionist.  (Well, yeah, it is.  But I'm not speaking as an abolitionist here.)  It's the question you need to answer even if you think the government should kill.  Should it kill even if the defendant, properly tried and with all available information, would have gotten life?  Should it kill because it was once a good idea even if it isn't now?

Should killing be the default?

It's really sweet, gives you a warm feeling all over to know that there's some sentiment that killing factually innocent people is a bad idea.  Now, what about the legally innocent but for bad counsel, hidden evidence, lying witnesses, mistaken witnesses, junk science, junk witnesses, aggravated newpaper editors and talk radio, racism, class prejudice, the accidents of geography and birth?  I could go on.

They still don't have to kill Kevin Keith.  Troy Davis has litigation ahead.  But their time is running out.  Things aren't looking good for them right now.  

And there are a few thousand others on the row.

Innocence may be a start, but it isn't nearly enough.

From Songs of Innocence and of Experience by William Blake

"On Another's Sorrow" (Songs of Innocence)

Can I see another's woe,
Can I see another's grief,
And not be in sorrow too?
And not seek for kind relief?

Can I see a falling tear,
Can a father see his child
And not feel my sorrow's share?
Weep, nor be with sorrow fill'd?

Can a mother sit and hear
An infant groan, an infant fear?
No, no! never can it be!
Never, never can it be!

And can he who smiles on all
Hear the wren with sorrows small,
Hear the small bird's grief & care,
Hear the woes that infants bear,

And not sit beside the nest,
Pouring pity in their breast;
And not sit the cradle near,
Weeping tear on infant's tear;

And not sit both night & day,
Wiping all our tears away?
O! no, never can it be!
Never, never can it be!

He doth give his joy to all;
He becomes an infant small;
He becomes a man of woe;
He doth feel the sorrow too.

Think not thou canst sigh a sigh,
And thy maker is not by;
Think not thou canst weep a tear,
And thy maker is not near.

O! he gives to us his joy
That our grief he may destroy;
Till our grief is fled & gone
He doth sit by us and moan. 

"The Voice of the Ancient Bard" (Songs of Experience)

Youth of delight, come hither,
And see the opening morn,
Image of truth new-born.
Doubt is fled & clouds of reason,
Dark disputes & artful teazing.
Folly is an endless maze,
Tangled roots perplex her ways.
How many have fallen there!
They stumble all night over bones of the dead,
And feel they know not what but care,
And wish to lead others, when they should be led.

---

Now What? It's Up to Ted

When a man's partner is killed he's supposed to do something about it. It doesn't matter what you thought of him. He was your partner and you're supposed to do something about it.

Sam Spade in Dashiell Hammett's The Maltese Falcon (and also in the John Huston film).

Anything approaching the change that came over his features I have never seen before, and hope never to see again. Oh, I wasn't touched. I was fascinated. It was as though a veil had been rent. I saw on that ivory face the expression of sombre pride, of ruthless power, of craven terror -- of an intense and hopeless despair. Did he live his life again in every detail of desire, temptation, and surrender during that supreme moment of complete knowledge? He cried in a whisper at some image, at some vision -- he cried out twice, a cry that was no more than a breath:
"The horror! The horror!"
I blew the candle out and left the cabin. The pilgrims were dining in the mess-room, and I took my place opposite the manager, who lifted his eyes to give me a questioning glance, which I successfully ignored. He leaned back, serene, with that peculiar smile of his sealing the unexpressed depths of his meanness. A continuous shower of small flies streamed upon the lamp, upon the cloth, upon our hands and faces. Suddenly the manager's boy put his insolent black head in the doorway, and said in a tone of scathing contempt:
"Mistah Kurtz -- he dead."

Joseph Conrad, Heart of Darkness.

I represented a guy some years ago after he had been convicted of murder entirely on the testimony of one witness, a co-defendant, who had, repeatedly (there's no disagreement about this) told the police lies about what happened.  Take away his testimony, and there's nothing else.  Nothing, even, to indicate my client was on the continent (let alone at the scene) at the time of the murder.

In fact, the co-D told police some 16 different versions of what led to the shooting, implicating my client only in version 13.  (There was actually a version 17, again implicating my client, that he told on the witness stand.)  Somewhere around version 8 or 9, the co-D conceded that he had participated in the crime.  By the time my client's name came up, the co-D was claiming that he shot the victim first but that my client (at the co-D's direction) finished the victim off.

I wasn't there.  I don't know what happened at the shooting.  What I know is that no fair and rational juror should have been able to conclude that my client was guilty beyond a reasonable doubt.  But the jury did find him guilty.  And the court of appeals (which is where I came in) deferred to their view of the evidence.

The victim in that case was a 13-year old boy.  As far as the evidence went, and I have no reason to doubt it, he'd done nothing to either of these guys.  Just an innocent kid in the wrong place at the wrong time.

But see, someone was dead.  A young boy.  An innocent.  It was heartbreaking.  (It didn't help much that trial counsel broke down in tears during closing argument while holding up a picture of the victim.)  Someone had to pay for that death, and the co-D was getting off easy for rolling on my client.

See, we call it the "justice system," and "justice" apparently cries out for someone to blame.  Juries? Well, they're supposed to do something about it.

I mean, that's not the theory.  The theory is juries as a dispassionate check on government excess.  But really, they're too often the anguished voices joining with Kurtz.  The horror!  The horror!

I never represented Kevin Keith.  I don't know exactly what happened in Bucyrus that evening in February 1994.  Frankly, I don't much care.  It's not that I'm being callous, it's that the details no longer matter.

But if the details don't matter at this point, the broader picture does.  Six people were shot.  Three were children.  Three, including one of the children, died.  On September 15, the State of Ohio intends to murder Kevin Keith in response.

Oh, there's one other thing that matters.  A lot.

The case is a mess.

Keith has a compelling alibi.  Eyewitnesses who are sure now that the killer was he were unsure or were clear at the time it was not.  There is substantial evidence pointing to a third person, Rodney Melton, as the killer, some of which police and prosecutors concealed from trial counsel.  What physical evidence there is, points as readily to the other potential killer as to Keith.  Trial counsel rushed the case and did, frankly, a lousy job.  I could go on, but I won't because, once again, the details don't really matter.  The sum of it is that there's plenty of evidence indicating Keith didn't do it.  There's evidence indicating Melton did.

What matters is that the case was a mess when it was tried and it's a mess now.

Still.

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.

Last week was the hearing before the Parole Board.  Keith asked for a pardon.  The state asked that he be killed.  There's not much middle ground there.

Set him free!
Off with his head!

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.  The Parole Board spoke today.  They said he should be killed.

So this is what it comes to.

Eight respectable citizens.  Responsible.  Reliable.  Chosen to be fair.  They heard all of that.  And they said to kill him.

But six people were shot.  Three died.  Kevin Keith was convicted of the killings.

Forget the new evidence.  Forget the hidden evidence.  Forget the shoddy defense.  Forget Rodney Melton.  The jury said he should die.  The Board agreed.

In an assertion of actual innocence, we believe that considerable deference should be afforded the findings of the jury and trial court as well as subsequent appellate and post-conviction reviews.

Oh, sure.  The jury didn't get all the evidence.  The trial court didn't get all the evidence.  None of the appellate or post-conviction reviews heard all the evidence.

So what.  Six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  Isn't that enough?  We've got someone to throw against the wall.

Except, in the last analysis, it's not up to them.  It's up to Governor Ted.  He's said that he finds some things about the case "troubling."  Me too.  But, well, will that matter?

After all six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  And it is an election year.  And the horror! The horror!  And well, when someone dies, you're supposed to do something about it?

But

The thing is, Sam Spade wasn't willing to take the fall for Brigid O'Shaughnessey.  He figured she might get out in 20 years.  And he'd be waiting for her.  Because it wasn't just any old something he was supposed to do.  It was the right thing.

The Ohio Public Defender released a statement in response to the Parole Board's ruling.

The Governor’s ultimate responsibility is to ensure that no human being is executed in Ohio absent absolute certainty. In Kevin Keith’s case, too many questions remain unanswered, and his execution should not proceed as planned.

The Parole Board's own recitation of facts and brief findings cannot avoid facts pointing to the existence of doubt about Mr. Keith's guilt. For example, the Parole Board found that the lineup used to identify Mr. Keith for this crime was "arguably suggestive," and recognized that the "science of measuring the extent to which an event is 'encoded' into memory is imprecise." The Parole Board also noted the there was no "biological evidence linking Keith to the crime." Unfortunately, however, the Parole Board gave "considerable deference" to the jury and courts in making its recommendation. But it is undisputed that no court or jury has ever considered the entirety of the new evidence that raises serious questions about Mr. Keith’s guilt.

They went on.  Read it yourself.

I've asked the question before, and I'm sadly sure I'll ask it again:  Do we care?  Does it matter?

Six people were shot, three of them children.  Three of the victims died, including one of the children.  That's a horrible thing.  It's inexcusable.  Something really should be done.

The question is what.  The answer, and really, it's beyond sensible argument, is that we don't add to the tragedy.  We shouldn't kill at all, but if we're going to (and this is Ohio, so we are), we need to be damn sure we're killing the right people.  This time we can't be.

I don't know what happened in Bucyrus that night in February 1994.  Neither does any member of the Parole Board.  Neither does Governor Ted.

How sure is sure enough?  However sure that is, we're not there.  Not even close.

But the horror! The horror!

Except the real horror?

That's in getting it wrong, Ted.

That's in getting it wrong.

One Foot After the Other

Frankly, there's just too much to talk about.  Yet it all, somehow, seems to come together.  Hang in here with me.

* * * * *

First thing Yesterday morning, there was Norm Pattis ruminating (as he does better than anyone) about how we treat the victims of crime.

Connecticut's constitution gives alleged victims of crimes certain rights. Among these are the right to be heard before the court accepts a plea bargain, the right to be heard at sentencing and the right to be treated with fairness and respect. Surprisingly, the constitution does not give to victims the most fundamental right of all: the right to stop a prosecution they do not want to take place.

Norm represents a woman who falls into that last group.  She wants to stop a prosecution of the step-father she once accused of sexually abusing her.  Norm pleads with the prosecutor and the court.  He files motion after motion.  To no avail.

Jamison Koehler took up the same theme, this time in the context of domestic violence.

Clearly, it can be difficult for a prosecutor to determine whether the complaining witness’ recantation is legitimate.  It could be that the witness did in fact concoct or exaggerate a story in the heat of passion.  It could also be that the witness is being pressured or threatened not to testify or that the witness has simply reconsidered the benefits of having the defendant sent off to prison.

Quoting Norm, Jamison sees a problem larger than the prosecutor's trouble.

As Pattis says, there is something wrong when “victims can object to punishment, address the court about a defendant, be advised about the proceeding and more or less be treated well” but “don’t have the right to tell the court that the prosecution ought not to take place at all.” 

The rights of victims apply only to support prosecution and vindictiveness.  Not to oppose it.  Well, yeah.  The working assumption of the law, and of so-called victim rights advocates, is that real victims want the guilty SOB to pay.  It plays out most dramatically in death penalty cases.  "You don't want the guy to fry?"  Then you must not really have loved your mother-father-sister-brother-son-daughter-husband-wife-lover.

And of course it's wrong.  Those victimized by criminal acts, even those who experience the murder of a loved one, they're all different.  Different things move them.  Talk to the folks at Murder Victims' Families for Reconciliation or Murder Victims' Families for Human Rights.  They'll tell you that they honor the memories of those they lost by opposing more killing.  One size doesn't fit all.

But if individual victims of criminal acts are varied and complicated, the whole enterprise of victim participation/rights is misguided.   Sure they should be treated with "fairness and respect" (whatever that means) by the powers in the system.  So should everyone.  Nobody deserves to be stepped on by the system, treated like pond scum.  That's a basic rule of any civil society.

But that's both vacuous and irrelevant.  The larger truth is that Connecticut is wrong to give the individual victims of criminal acts any voice at all in the criminal law system except sometimes as witnesses.  I've talked about this before (here, for instance).  Scott Greenfield summarized it.

I've often argued against the popular "victim's rights" legislation and agenda, which seeks to make crime victims a third player in the criminal justice system.  Its advocates, such as Paul Cassell of Volokh Conspiracy, argue that they are entitled to a vote, particularly about disposition, sentencing and restitution, that trumps the prosecution.  This flies in the face of the concept of criminal law, which seeks to vindicate societal rather than personal interests, but that doesn't prevent the assertion of the victims' "right" to be a participant.

The individual victim?  The remedy is to sue the bastard who caused the pain.   That's what civil law is for.  Criminal law is about the state, the body politic.

And since the harm criminal prosecution is designed to address is to the social order, to the fabric of society, it follows that the individual victim should have voice neither in the decision to prosecute nor in the decision not to prosecute.  That's counter-intuitive for most people, and as Norm says, it's not the law, but it's supposed to be.

But even if you buy into the idea that victims of criminal acts have a proper role to play in what we call the criminal justice system, and even if you acknowledge that those who favor reconciliation over revenge can still be real victims, there are still problems: We don't know who actual victims are, and they don't know what they're talking about.

There are three questions in every criminal case.

1. Did the event happen?
2. Was the event (if it happened) the crime charged (or any crime at all)?
3.  Is the defendant the guy who did whatever it was?

Question 1 is fundamental.  It's a common problem in sex offense cases and domestic violence, but it happens in thefts and assaults and bank fraud and all sorts of other criminal contexts.  Did it happen?  Have the police and prosecutors jumped to the wrong conclusion from the evidence?  Did the self-described victim just make it up?  Did someone else make it up and force the so-called victim to make the allegation?

Question 2 is more nuanced.  Was the act self-defense?  Did she consent?  Was it an accident?

And then there's question 3.  It's the stuff of detective novels.  And too often a real problem.

* * * * *

Consider, please, the case of Kevin Keith.  I've written about him before.  Ohio has his murder planned for September 15.

Wednesday morning was his hearing before the Parole Board which will make a recommendation to Governor Ted about what he should do.  Here's the very short version, the first and last paragraphs of Keith's written application for clemency.

Kevin Keith is innocent. At least four people saw Kevin a town away when the shootings happened. And there is no physical evidence that links him to the murders. Richard Warren, the primary eyewitness, never got a good look at the shooter because the shooter wore a mask. He told four different witnesses that he didn’t know who shot him. The other two surviving victims who knew Kevin did not identify him from the photo lineup. Quanita Reeves specifically told police that Kevin was not the shooter.
. . .
Based solely on unreliable eyewitness identification, Kevin Keith was wrongfully arrested and charged with three counts of aggravated murder and three counts of attempted aggravated murder. The eyewitness identification cannot possibly be right because Kevin was in a different city when the shootings occurred and was seen by several people. Sadly, while Kevin has been on death row for crimes he did not commit, the likely killer—Rodney Melton—has avoided being held accountable. Because the evidence of Kevin’s innocence is so strong, he asks the Board to recommend a full pardon to the Governor.

The problem is that Keith got convicted before much of the evidence of his innocence (and there's a lot, read the clemency application) was revealed. 

But there's evidence the other way, too.  And, at least as Andrew Welsh-Huggins reported for the AP, Members of the eight-member board expressed doubts Wednesday about Keith's innocence.

As always, I don't pretend to know who did what on that night in 1994.  What I know is that there's more than enough confusion and uncertainty to go around.  Witnesses on both sides have made statements and recanted them.  The evidence is tainted and ambiguous.  The cops, it seems clear, settled promptly on Keith as a suspect and wholly ignored evidence pointing at other compelling suspects.  Bad police work, bad prosecution, bad defense counsel.

And all those courts that have looked at the case since then - none looked at all the evidence.  And none asked whether all of that evidence, taken together, really adds up to proof beyond a reasonable doubt that he did it.  If it doesn't, why then he's legally innocent, regardless of the facts.  That's our system.  Like it or not.

But nobody goes there.

And Governor Ted gets to decide whether Keith should be killed.

* * * * *

I just read Scott Turow's Innocent, his sequel to the 1987 blockbuster Presumed Innocent.  Like that book, the plot is wildly implausible and feels, from the moment it opens, wholly and weirdly contrived, almost like an exercise in plotting.  I find the result unsatisfying, as I find Turow's prose overly glib and his characters not models of psychological depth but stick-figure types.  (I seem to be largely alone in this view.  Innocent has been widely praised as not just a page-turner, which it is, but as a superb novel, rich in insight and beautifully told.)

But what Turow does brilliantly, and why I bring it up here, is capture some of the feel of trial.  I've written before that real-world trials are mostly boring, and that's true.  It's not true of the trial in Innocent, of course.  (Nobody would buy the book if it were.)  But when the case is complex and the prosecutor and defense counsel both superb, there's a dynamic, a rhythm to trials.

It's going well.
It's going poorly.
We've got 'em on the ropes now.
Shit. We're fucked.
But the damn judge. 

Turow gets that.  And in that, there's the drama.

Even more, Turow gets at the one, single, fundamental truth of trial.  He puts it in the mind of Tommy Molto, the prosecutor, but any courtroom lawyer knows it.

After trying cases for thirty years, Tommy knew that at this stage of the proceedings, you drank your own Kool-Aid.  You needed to believe you were going to win to have any chance of convincing the jurors, even while you had to remain in the grip of paranoia.

* * * * *

That uncertainty, that paranoia, is real.   But so is the need to drink your own Kool-Aid.  You can't stand up in front of the jury, the judge, the panel of judges and sell something (and that's what you're doing, you're selling) you don't believe.  Ask any actor.  (Or any good commission salesman.)

The thing is, though, the space between what you believe, what you have to believe, what might even be true, and what the jury or judge or panel of judges will end up believing . . . that's the space you can't fully control.

It's the uncertainty.

Because anyone who's been at this for any length of time (except maybe Gerry Spence, who claims never to have lost a case), knows that you occasionally win when you should lose and sometimes (more often, alas) lose when you should win.

Over at Preaching to the Choir yesterday, Sarah said, with sadness, what those of us in the trenches (and especially the appellate trenches) all know.

Some days, reading through criminal case law, it seems clear that there is really only one standard, one guiding principle behind every appellate court decision:  apply the rules in whatever way will screw the defendant. 

Sure.  It's not just some days.  It's every day.   I see lawyers and judges (and law professors especially) talking about the majesty of the law and explaining that case law says you win and that this or that issue is a no brainer.  And I know the truth:  You'll probably lose.

I've said for years (and here, for instance, in this blog) that I don't believe in the Law.  (That's the uppercase version, the one we honor in theory.)  The Law is just the fictional framework in which we act.  The cases, standards of review, the stuff of law schools and textbooks and moot courts and briefs and motions and arguments to judges, that's just the language we have to use.  The reality is that the system is stacked against our clients and that far too many judges will do whatever they can to assure that we'll lose.  It's rarely as conscious as I'm making it sound, but it's every bit as real.

* * * * *

Which finally takes us back to the discussions of Justice we had around the blawgawsphere a couple of weeks ago.  What struck me last night was how odd that in all those posts and comments, in all the back and forth, nobody quoted Thomas Hardy.  It's the last paragraph of Tess of the D'Urbervilles.

"Justice" was done, and the President of the Immortals, in Aeschylean phrase, had ended his sport with Tess. And the d'Urberville knights and dames slept on in their tombs unknowing. The two speechless gazers bent themselves down to the earth, as if in prayer, and remained thus a long time, absolutely motionless: the flag continued to wave silently. As soon as they had strength, they arose, joined hands again, and went on.

Does Hardy speak with irony?  What is Justice, anyway.  Must we look to Aeschylus and the Orestia?  What about, say, Milton and Paradise Lost?  Again, from the very end, as Adam and Eve are turned out of Eden.

                                 . . . for now too nigh
Th' Archangel stood, and from the other Hill
To thir fixt Station, all in bright array
The Cherubim descended; on the ground
Gliding meteorous, as Ev'ning Mist
Ris'n from a River o're the marish glides,
And gathers ground fast at the Labourers heel
Homeward returning. High in Front advanc't,
The brandisht Sword of God before them blaz'd
Fierce as a Comet; which with torrid heat,
And vapour as the LIBYAN Air adust,
Began to parch that temperate Clime; whereat
In either hand the hastning Angel caught
Our lingring Parents, and to th' Eastern Gate
Let them direct, and down the Cliff as fast
To the subjected Plaine; then disappeer'd.
They looking back, all th' Eastern side beheld
Of Paradise, so late thir happie seat,
Wav'd over by that flaming Brand, the Gate
With dreadful Faces throng'd and fierie Armes:
Som natural tears they drop'd, but wip'd them soon;
The World was all before them, where to choose
Thir place of rest, and Providence thir guide:
They hand in hand with wandring steps and slow,
Through EDEN took thir solitarie way.

Or perhaps Sir Francis Bacon who began "Of Truth" (which appeared first in his volume of Essays) this way.

WHAT is Truth? said jesting Pilate; and would not stay for an answer.

* * * * *

There's another, more nuanced problem with Innocent.  A last sweet taste that simply doesn't ring true.  It's when the prosecutor with integrity turns on the one who cheats to achieve what he believes to be justice and then manages to undo the damage of the cheating with, it seems, no more than a phone call. Uncertain himself of the truth.

Those of us in the trenches know how often that happens.  Frankly, it doesn't.  The reasons are many, from confirmation bias to a dishonesty in the system to a belief in "Justice" however derived to willful ignorance to, finally, the system's own unwillingness to allow fixes.

* ** * *

There is no purity in this business.

It's not that we're without ethics, it's that ethics don't cover the world.  Morality is an issue, too.  And something like fairness.  But there's also the fact that it's a job.  It's what we do.

Prosecutors are supposed to seek Justice but they don't know what it is any more than I do.  On my side of the aisle, we defend.  That's our job.

It is, I believe and have argued before, a noble and honorable job.  It's one I'm proud of and care deeply about.  To the public, though, and as demonstrated by the cocktail party question, it's less than clear that it's clean and decent to blow confuse and misdirect, to question truth (as if truth were ever ascertainable, or even fully "true").  Those who don't get it quickly probably never will.

But it's the work.  And we go on because that's what we do.  All of us in this enterprise.  

Ideally, we all do not just the best we can, but the best there is to do.

To make it work like it's supposed to.

Day after day.  One case at a time.

The thing is, and at last I come to the end, it's all we've got to keep the wolves at bay.

Measure Twice, Cut Once

At some point, you start to wonder.  A couple of months ago, I wrote this about Kevin Keith.

He's on death row in Ohio.  He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation.  As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence. The state's case was, frankly, shaky to begin with, though it was enough to convince the jury. But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing.  Melton knew information only the killer could have known.  At least one survivor explicitly and insistently said that Keith wasn't the killer.  The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin.  (The actual nurse, one who did and does exist, says she was never told any name.)  And he had a substantial alibi.

OK, as I routinely say at this point, I don't know what happened that evening in February 1994.  What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.

I'll repeat that last part, phrased differently, because it's particularly important to emphasize here.

I don't know whether Kevin Keith is factually innocent or not.  I'm not saying he is.  I am saying that a jury confronted with what we know now would probably not have convicted him and would almost certainly not have sentenced him to die.

This, however, is not a post about Kevin Keith.  Nor is it about Tyrone Noling (about whom I wrote on Saturday) who also may or may not be factually innocent and who, like Keith, would likely not have been convicted had his trial lawyers known what we know now.  Nor is it about the others in similar situations.  It's not a post about the innocent or about the guilty.

I want to write, instead, about who we decide to kill.  And about some of the underlying theory.

So I have to take you back and do a little history of the death penalty in America since 1966.  I picked 1966 because that's the year, as we like to say about so many things, that everything began to change.

In 1966, as it regularly does, the Gallup organization asked people their views of the death penalty.  That year, support was at 42%, the lowest it had been and the lowest that (so far) it has been. (Data available here.)

On June 2, 1967, Luis José Monge, was killed in the gas chamber in Colorado.  He was one of only two men executed that year, and he would be the last for nearly a decade.

For five years, it was unofficial.  Something was happening, and the federal courts were taking notice.  They stopped every execution.  In 1972, they changed the rules.  The case, known as Furman v. Georgia, was argued in the Supreme Court by Anthony Amsterdam.  Here's how the Death Penalty Information Center explains.

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid. 

There was, of course, great celebration among abolitionists.  It was misguided and short lived.  The Court had emphatically not said the death penalty itself was unconstitutional.  It said the nation's death penalty laws, as written, were unconstitutional.  As a friend said about 40 years ago of Ann Margaret's vibrato, you could drive a truck through that space.

Furman was decided in June.  By November, Gallup showed support for the death penalty had risen to 57%.  And climbing.  States which had been content with not executing anyone for years, rushed to enact new laws they hoped would satisfy Furman.   They took two forms.  If the death penalty was arbitrarily applied, some states figured, a mandatory death penalty would resolve that problem.  Other states lit on something that ended up called "guided discretion."  Juries or judges could still decide what to do, but their discretion was constrained by factors and standards and guidelines and whatnot (the details varying from state to state).

Back in 1901,  Mr. Dooley said,

No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ illiction returns.

And the opinion polls.  In 1976, Gallup showed support for the death penalty at 66%.  Nearly two-thirds of the states had enacted new death penalty laws.  And the Supremes looked down and said those providing for guided discretion were good and those calling for mandatory death sentences were bad.  Because, the court didn't quite say but pretty clearly meant, the death penalty is only for the worst of the worst, and that has to be a case-by-case determination.

As it develops, deciding who is the worst of the worst involves (according to the Court) providing some mechanism by which the jury is to measure the thing that makes a killing and the killer more deserving of death against things that make the killing and/or the killer, what - less deserving of death.

In 1978, In Lockett v. Ohio, the Supreme Court said that Ohio's new death penalty law failed because it limited the things that could be weighed on the side of a life rather than a death sentence.  The Court said the jury had to be able to consider anything relevant to a life sentence, and Ohio's law didn't allow that.

Which takes us to 1981 and gets very close to the point of this history.

In 1981, Ohio enacted a new death penalty law, one designed specifically to solve the Lockett problem.  Roughly (very roughly) it works like this.

The worst form of the crime of homicide is, in Ohio, called Aggravated Murder.  If a person is charged by the grand jury with Aggravated Murder and also charged by the grand jury with a death specification (something that makes Aggravated Murder especially bad), that person is eligible for death.  And if the jury finds the person guilty of Aggravated Murder and also guilty of the death specification, the case goes to a second trial at which the State tries to prove that the death specification (not the killing, just the specification) outweighs whatever the person can show that makes life more appropriate than death.  The circumstances of the killing itself, are relevant to the determination only if they make death less appropriate than life.

If that sounds complicated, it is.  If it sounds confused, it is.  If it sounds at least a little goofy, it is.  If it sounds like a real effort to come up with a narrow death penalty, it probably was.

One of the chief sponsors of the law was state senator Paul Pfeifer, a Republican.  Indeed, he's known as the "father of Ohio's death penalty."  Pfeifer, still a Republican, is now Ohio Supreme Court Justice Paul Pfeifer.  And he's appalled.  

See, over the years, the legislature has expanded the definition of Aggravated Murder.  And it has expanded the number of death specifications.  and the Ohio Supreme Court (often over the dissent of Justice Pfeifer) has read the specifications broadly rather than narrowly.  And then it turns out that levels of independent review that Pfeifer built into the law don't actually do anything much.

And as it happens, juries are wildly erratic in making their decisions about who should live and who should die.  And geography matters.  And class matters.  And the attitudes of the local newspaper matter.  And race matters (a lot).  And dammit, this just isn't the law Pfeifer had in mind.

Those people, the worst of the worst who did the worst things, Pfeifer has no problem saying they should be executed.  He thought so in 1981 and he thinks so now.  But he's come to see that we're sending folks to death row who aren't they.  And we're killing some of them.  (And maybe he's beginning to notice that even under the best of circumstances you can't tell who they are, though I'm not sure he's getting that even now.)

So back in May, as Ohio was well into it's killing spree with a murder a month for god knows how many years into the future as we clear out death row by means of death, the Columbus Dispatch's Alan Johnson reported, he had this idea.  He proposed setting up a blue-ribbon commission to review every guy on death row.  Not to see whether to grant mercy (that's for the Governor and the Parole Board), but to see whether death is the appropriate punishment, to see whether the jury really got the death vote right, to see who is really the worst of the worst who did the worst thing.  Johnson wrote,

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.

"The point is whether or not death is the appropriate penalty," he said.

The response from those in power was, shall we say, less than enthusiastic.

Oh my stars and garters! (As the same friend who made that long-ago comment about Ann Margaret's vibrato said about something altogether different the other day.)  A commission?  Heavens, no.  Why it would mean the end of the Republic.  We'd have to delay executions.  We'd have to see if we'd made a bad judgment along the way.

Time passes and things change.  In May, it was Justice Pfeifer, a lone voice it seemed crying out in the wilderness of Republican officialdom.  Suddenly, he's not alone.

Via Doug Berman, this latest article by Mike Wagner and Alan Johnson from the front page of Sunday's Dispatch.  Here's a lengthy chunk of that article.

Cases such as [Kevin} Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases - and possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium.

"This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted.

"We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

Wilkinson, director from 1991 to 2006, takes it a step further.

"I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."

This is a powerful set of voices.  But they're still in something of a wilderness.  Governor Ted sees no point in further review.  General Cordray is sure there's never been less than perfection on his watch.  Pfeifer's the only one on the supreme court to think there's reason to check.

Really, why bother.

The witches raised apparitions who told Macbeth to "beware Macduff" but that he need fear no man "of woman born.  Besides, he was told

Macbeth shall never vanquish'd be until
Great Birnam wood to high Dunsinane hill
Shall come against him.

Made fearful by the first statement though comforted by the second and third, Macbeth figured there'd really be no harm, and the wiser, safer, course of action would be to kill Macduff.  No need, but why not?

I'll make assurance double sure.

Of course, things didn't work out quite as Macbeth planned.  The prophecies were, as prophecies tend to be, dangerously vague and misleading. 

In 1994, late in his career on the bench, Harry Blackmun, who voted against the Court's decision to shut down the death penalty in Furman and voted to reinstate it four years later, came to understand that it couldn't be done right.  You can't have a system that is both objective and subjective simultaneously.  He laid it out in Callins v. Colins, dissenting from the Court's refusal to hear the case.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Pfeifer's not in Harry Blackmun's camp.  At least not yet.  Neither is Petro.  They're not calling for an end.  They're saying that every case should be looked at with fresh eyes.  they're talking just about double checking.

You know, I say it over and over in this blog.

What's the harm?

Quotidian Killing

Roderick Davie is due to be murdered on August 10.

Ho, hum.

On Thursday, the Parole Board issued it's report: Off with his head.  

No surprise there.  Davie didn't ask for clemency, but the Board went through with its charade anyhow. 

Like I said, Ho, hum.

There's tragedy in the lack of interest.  But really, it's just another killing.  If it happens, and there's every reason to think it will, he'll be the 40th person murdered by the state of Ohio since we started killing in 1999 after a 36 year break.  He'll be the 7th person Ohio has murdered this year alone.  There are more killings scheduled through March of next year, and more ready to be scheduled.

I'm struck by, horrified by, the quotidian nature of this.  It's murder, for godssake.  That should garner some attention.

But then I read the report recommending that Governor Ted deny clemency.  Short version:  Davie is a monster.  He has no remorse, no feeling about it at all.  And he's dangerous as an inmate, threatening guards, assaulting his own sister.  Really, all there is to do is put him down like a rabid dog.  Besides,

The courts have reviewed the investigation and trial and found no irregularities warranting correction.

Let's think about that for a bit.  If the courts had found "irregularities warranting correction," Davie would have had a new trial or a new sentencing proceeding or something.  The Board wouldn't now be recommending that the Governor sign off on his murder.

So there's now a new reason to recommend not granting clemency: He's on death row.  If he had a life sentence, presumably that would be one reason (maybe even a sufficient reason) for the Board to suggest he shouldn't be killed.

Yeah, I'm being cynical.  Goes with the territory.

But when the Parole Board says things like that (and while I can't say they haven't before, I only just checked half a dozen of the clemency reports, and of those Davie's is the only one with that line), it demonstrates the carelessness and lack of attention with which they do this.

Ask any Governor, and you'll be told that whether to sign off on death is the toughest part of the job.  They'll talk about agonizing over the decisions.  But here's the reality.  They just sign off on the damn things.  At least most of the time.

It takes the exceptional case.

Maybe that will be Kevin Keith.  Ohio has scheduled his murder for September 15, but that one is messy since there's a pretty good case to be made that he's the wrong guy.  As I've mentioned before, Keith is on death row after prosecutors concealed substantial evidence that he's innocent and fabricated evidence - even making up a witness who doesn't exist - to try and show he was guilty.  

But that's Keith.  Davie?

Just your ordinary guy.  

Just another killing. 

More to come.