Lies, Damn Lies, and the Law

Some true stories:

• A judge told me (off the record) that when it comes down to it, he finds cops more credible than lay witnesses.

• Another judge told me (off the record) that if it had been a DUI he'd have granted the defendant's motion and dismissed the case, but the charge was aggravated murder so he denied the motion.

• Another judge told me (off the record) that the three-judge panel trying the death penalty case dismissed the death specifications after finding they were proved but before the sentencing phase of the trial and imposed a life sentence because "we knew if the case had gone forward we would have sentenced him to die."

• The Texas Court of Criminal Appeals explained that it was denying the pro se defendant relief because he'd filed his documents the wrong way, but if he did it right - and they told him how to do it - they'd grant relief.  He followed instructions.  They denied relief.

* * *

None of this, except possibly for the specific examples, is new to anyone who's been in the trenches for a bit.  If we were ever naive enough to believe, we've learned otherwise.  It's why I so often say, to the frustration and irritation of law students and new lawyers that I don't believe in The Law, that thing they teach in the law schools that comes with the upper case L.  I believe, of course, in law. That's the thing that bites you on the ass when you think The Law is on your side.

* * *

We have in Ohio executions scheduled, with real, serious execution dates, through September 2020, which, if you're mathematically challenged, is nearly four years from now.  That's 23 men who know when they're supposed to be killed.  They've run through all standard process, both state and federal. Sometimes more than once.  It's pretty much a certainty that some of them (no, I don't know which, nobody does) will not in fact be killed as scheduled, because there's all sorts of things outside standard process that can happen.  But those dates are real.

In the last week, the Supreme Court of Ohio scheduled executions in two more cases:  For November 2020 and March 2021.  Those dates are not serious. The court sets an execution date when it denies direct appeal and affirms a death sentence.  But it's consistently followed the rule that everyone is entitled to at least one full round of state review.  So it grants motions to stay those dates.  Doesn't mean those two men won't ever be executed.  But it won't happen on the current schedule.  Those men each have more years to go.

In fact, trial judges are supposed to set execution dates when they impose death sentences.  The Supreme Court then vacates those dates so it has time to hear and affirm the death sentences and set its own first set of fictitious dates.

* * *

It's not exactly that it's a game. And not exactly that it's dishonest.  It's partly the Law of Rule rather than the Rule of Law.  Partly it's power.  Partly it's fear. And sometimes what's actually supposed to happen does, which gives too many people false expectations about next week.

Really, it's something like a legal fiction.  We pretend, because it's what keeps the system - and for better or worse the system is all we have - operating.

But you do kinda have to wonder.

It depends on what the meaning of the word "is" is

For the last couple of days, I've been attending the annual conference of Reform Sex Offender Laws. RSOL brings together lawyers, scholars, activists, sex offenders and, especially, the unrecognized victims of the crimes of sex offenders, their families, to teach and learn and talk about how to do better. 

RSOL isn't trying to get sex offenses made legal, doesn't condone sex with children. It's not saying rapists shouldn't be punished or child pornography should be freely available.  It wants to reform, not abolish.  But it knows that much of what the media tells us about those who commit sex offenses is wrong.  

And that the boogeyman we're told to fear, really, the hundreds of thousands of them, are no more real than Jason.

It's not that there aren't folks who do, who have done, monstrous things.  It's not that there aren't some dangerous people out there. It's that people who've done monstrous things aren't monsters, they're people.  And not everyone who's done something we abhor is actually dangerous.

RSOL envisions effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.

So for two and a half days, in formal presentation, in a panel discussion, and over lunch and coffee and later drinks at the hotel bar, I've been trying to explain just how it is that the law so often makes no sense.  That the words of the Constitution so often provide only illusory promises of fairness and justice.  That despite what we were taught in 4th grade civics, our is The Law of Rule at least as much as it is The Rule of Law.

Which brings me to Thursday morning.

That's when Chief Justice Roberts wrote for a 6 Justice majority in King v. Burwell, that 

an Exchange established by the State

means

an Exchange established by the State or by the Federal Government.

It's a defensible legal argument despite Nino Scalia's accurate claim that it's

interpretive jiggery-pokery.

And it's an example, if one were needed, that when Holmes (that's Oliver Wendell, Jr., not Sherlock) said

The life of the law has not been logic; it has been experience,

He was making a significant point.  Logic has little to do with it.  Want another example?  Also from Thursday morning?  This time it wasn't the D.C. 9 but the Columbus 7.

Michael Keenan, they said (opinion here), must be tried a third time.  Oh, sure, there's no physical evidence connecting him to the crime.  Oh, sure, the lone admitted eyewitness is dead.  And oh, sure, the case gets to this point now only because the first two trials and death sentences were tainted by the very substantial exculpatory evidence that the prosecutors intentionally concealed from Keenan and his lawyers for some 20 years because, gee, if they'd passed it on, as the Constitution required them to, Keenan would likely - and properly - have been acquitted.  

But damn, they wanted that sumbitch executed.  Whatever it took.

But wait, a third trial?  Isn't that double, or maybe triple jeopardy?  Isn't there something in the Constitution about that?  Why yes, there is.  In the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Keenan, of course, has already been twice put in jeopardy.  And now it's to happen a third time.  I've written about this before.  As I said then,

[I]t's another of those legal fictions. As the Supreme Court said in Richardson v. United States (1984), looking back to United States v. Perez (1924),

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.

When ordinary logic won't do, when they have to develop a new and special sort of logic, you know the rule they'll come up with makes no sense. 

But then . . . .  Well, consider the Ohio Revised Code.  Section 1.42 says

Words and phrases shall be read in context and construed according to the rules of grammar and common usage.

Which seems clear enough.  Words mean what they ordinarily mean.  Until you get to the very next section of the Code, Section 1.43(A).  That's where we learn that

The singular includes the plural, and the plural includes the singular.

That is, one person is more than one person.  And many things are just one thing.  But one person is, of course, also one person.  As many things are many things.  

Actually it begins earlier.  Section 1.02(F):

"And" may be read "or," and "or" may be read "and" if the sense requires it.

Words wholly untethered from meaning, left to the whim of the judge who decides what the "sense requires."

Because 

From Through the Looking Glass

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  

On Not Reading the Fucking Record

When one of the justices of the Ohio Supreme Court (as they say, there is no justice in the lower courts and there are no judges on the Supreme Court)* recuses herself, they bring in a visiting judge from one of the courts of appeals so that there will be still be seven folks to hear the case.  

One of those VJs, one who sat on a death penalty appeal, said afterwards that he was appalled by the fact that none of the others, not one of the six, read the transcript of the trial.  How, he wondered, could they fairly determine exactly how the case went down, what the evidence did and did not show.  In particular, how could they decide whether the aggravating circumstances outweighed the mitigating factors - the question that's the basis of the life/death decision in Ohio, if they didn't read the record for themselves?

I was in court with a guy, back for resentencing after the Supreme Court had thrown out his death sentence.  The judge, a successor to the trial judge who was no longer on the bench, started to pronounce sentence.

Wait, your Honor.  You can't decide on the sentence without having read the record.
Oh, yeah, I suppose. 

Not just capital cases.  commonly, all that appellate judges know about the record in the case before them is what the parties said in their briefs.  Maybe they'll read a few pages if something catches their attention or raises a question.  Not often, though.  And not the whole damn thing.

Trial judges, too, ruling on motions in civil cases where there may be hundreds, even thousands of pages of depositions and exhibits.  Rely on the briefs.  Oh, and the law clerks (often called "staff attorneys" these days to distinguish them from law students who may do the same work) will sometimes slog through the record.  But sometimes not.

Sure, there are exceptions.  Too few.

Our vision of the dispassionate judge, sitting on the bench, dispensing Solomonic justice after full and careful reading of the whole and independent legal research.  I'm not saying it doesn't happen. 

But

It's not that long ago that the U.S. Supreme Court (OK, The Supreme Court of the United States) heard argument and issued opinions in 150 or 175 cases a year.  And then the 9 folks in their robes took July, August, and September off.  They're down to about  80 cases a year now.  They still take those months off.  And they're up to 4 law clerks/staff attorneys each.

From the oral argument before the court Monday morning in Brumfield v. Cain, about how Louisiana deals with (and in Brumfield's case dealt with) questions of mental retardation which relate directly to whether folks (like Brumfield) who face capital charges or actual death sentences can be executed. The 8th Amendment, according to the Court, says they can't.  But how to implement that?

The lawyer for the state, Premila Burns, is at the podium trying to answer questions.

JUSTICE BREYER:  No, no.  I think we're all on the same page here, and I think we've made some progress in this, because I agree with you, and I agree with Justice Scalia that what we have to do is to look at the whole record and see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record, is the Louisiana court clearly wrong?  Is it unreasonable in saying there wasn't enough evidence, even though there has to be some, which is up to them pretty much how they say the some, but they're unreasonable in saying that there wasn't some evidence justifying a hearing.  And the only way to do that is for us to read it.  Is -- is that right?
MS. BURNS:  The record has to be read.
JUSTICE BREYER:  Would you agree with that?
MS. BURNS:  I would agree that the ­­--
JUSTICE BREYER:  I agree with that.
MS. BURNS:  ­­ -- entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was myopic.
JUSTICE SCALIA:  I haven't read the whole record, you know, and I doubt that I'm going to.  And ­­ and I doubt that this Court is going to read the whole record in all of these Atkins cases in the future.  I mean, what ­­-- what you're saying is ­­-- is­ -- you don't think it's -- it's fantastical?

Sure, the record in Brumfield is somewhere around 20 volumes long.  And it's mostly tedious.  And will mostly prove irrelevant to the question if anyone actually bothers to read it all.  

Mostly.  Not entirely, though.  Except who'll find out? 

Shit, we're only dealing with life or death.  And constitutional rights.  And a bunch of folks doing half the work they used to but with a larger staff and still managing to take three months off a year.

Dahlia Lithwick, and probably not she alone, was struck by Scalia's brazen admission that he won't do it.  

To be sure, 20 volumes is a big, big record. And probably lots and lots of reviewing judges don’t bother to read the record every single day across this great land. But it takes a certain kind of something-something to say it out loud, right there at the highest court in the land.

Well, yeah.  It's one thing for us to know.  One thing for the child who knows no better than to speak the truth to point out that the emperor has no clothes.  

It's something else for the emperor to admit it.

They want our respect.  They work so damn hard.  The ones you like and the ones you don't.

And they just can't be bothered.  Which means they really do just pull it out of their collective asses.

But hey, they're supreme.

Law of Rule.



------------------
*Which is properly, if pompously, called the "Supreme Court of Ohio," a term slightly less pompous than the high court in Massachusetts which is the Supreme Judicial Court to distinguish it, perhaps, from those supreme courts which are not judicial - like perhaps the courts of New York where the Supreme Courts are the trial and intermediate appellate courts while the high court is the Court of Appeals, which is at least properly descriptive if not terribly grand sounding.  Of course, the court that just declared Amanda Knox and Raffaelle Solecito innocent is the wonderfully (and in this case aptly) named Court of Cassation.  (Look it up yourself if you want to know what it means.)  

The Bestest System Around

I started to write this as a comment at Hercules and the Umpire, the blog of Judge Richard Kopf.  But it was getting long and circuitous, discursive and digressive and I figured the hell with it.  I'd just make it a post here.

It's a response to the Judge's response to pieces by Judges Rakoff and Kane on plea bargaining and the innocent and how federal judges should take a more active role in plea bargaining to assure that innocent people don't just plead guilty.  Here's the heart of what Judge Kopf has to say.

1. Rakoff and Kane both claim that studies show that somewhere between 2 and 8 percent of people convicted of crimes are factually innocent.  Although they don't cite their sources, so it's impossible to know where those figures come from or what they're based on, they don't apply to federal courts because in federal courts innocent people never get convicted.
2. In our very effective adversary system judges should be eforcing the rules but staying out of the adversarial process, which includes plea bargaining.

Maybe. 

Let's start by acknowledging that Kopf actually has no idea what percentage of factually innocent people end up getting convicted in federal court.  Not in federal court generally.  Not in his court.  He may know how few convictions are overturned based on factual innocence, but that doesn't answer the question since factual innocence is rarely a meaningful avenue of post-trial litigation regardless of whether it's real.  He may know that people who plead guilty acknowledge that they are guilty, but that doesn't mean they actually are.  He may know that when people plead guilty, the government has significant evidence against them, but that doesn't mean it's all true.  He may know that when juries return guilty verdicts, it's because they were convinced beyond a reasonable doubt by the evidence. But we know that the evidence is only as good as what's presented and what the jury ends up believing.  Prosecutors, even federal ones, hide evidence sometimes.  They rely on unreliable evidence claiming it's iron clad.  Defense counsel are sometimes inept, sometimes without adequate resources, sometimes just wrongheaded.  And juries can just get it wrong.

Judge Kopf doesn't know.  Neither do I.  Neither do you.

People plead guilty because the risk of trial is too great.  They plead guilty because they have a lawyer who hasn't the balls to go to trial.  They plead guilty because they've been told that if they don't, the government's going to go after someone they care about enough to protect.  They plead guilty because their scared or they're misinformed about what might happen at trial or they just want to get it over with.

And yes, sometimes they plead guilty because they are in fact guilty and want to take responsibility for what they did.

And all that is true in federal court where the FBI and the DEA and the NSA and the SEC fed the evidence to the AUSA and they're all noble and brave and true and . . . .

Excuse me.  

There is, often, a greater degree of professionalism and competence in federal court than in state court.  But bullshit is bullshit and there ain't no guarantees.  Just ask Ted Stevens. 

And, as I've suggested before here, there's guilt and there's guilt (just as there's innocence and there's innocence).  And if Harvey Silverglate is right and everyone commits three federal felonies a day, then there's a sense in which (a) there are no innocents, except maybe of the particular offense at issue, and (b) many of the folks who are factually guilty are by any fair measure innocent of any wrongdoing.  Which would completely fuck up the numbers if we actually knew what the numbers were.

That much said, I'm going to venture a guess.  There's a significant percentage of factually innocent people who are convicted of crimes.  Sometimes by juries.  Sometimes at bench trials.  Sometimes by plea.  Whatever that percentage, it's too high.  It's higher in some courts than others.  It's higher for some offenses than others.  

My gut, my experience, and the data I've seen all suggest to me that the innocent-convicted fall at the ends of the spectrum.

Relatively minor offenses draw guilty pleas because they end things quickly and there's just not enough at stake (and not enough financial incentive for lawyers) to try the cases.  Defendants in custody want to get out rather than sit in the local hoosegow waiting for a trial.  Defendants out on bond want to get it over with rather than waste more and more time showing up in court for pre-trial hearings where all that happens is that they're told to come back another time.  Enough! they say.  Let me plead and get it over with.  Truth be damned.

At the other end, the risks of trial are so great (execution, LWOP, 500 years) that a plea to almost anything less is worth it.  Truth be damned.  And if the case goes to trial?  These are the cases where the cops make up evidence, where the confessions are false, where the evidence is hidden.  Because the press.  And the voters.  And by god something must be done and someone must pay.  As they said to Clarence Brandley down in Texas, "Since you're the nigger, you're elected."   

Which, of course, doesn't mean that the wrong guy is convicted (though Brandley was, and spent 9 years on death row).  Or executed (but Todd Willingham and Carlos deLuna and coming soon to a neighborhood near you).

And we know the errors in rape cases.  But of course there are rapes.

And judges are no better at knowing what evidence the prosecutor is hiding or the cops have planted than anyone else is.  If anything, they're typically more credulous than juries.

But what to do?

I'll offer some thoughts later this week.

Buyer's Remorse: Another Body in a Body Bag

On Halloweeen, the jury returned its verdicts.  Shawn Ford, Jr., should be killed for beating Margaret Schobert to death with a sledgehammer, they said.  He should spend every day of the rest of his natural life in prison for killing Margaret's husband, Jeffrey, the same way.  They're both death sentences, of course. The difference is that for Margaret, the jury said not only that Ford die in prison, but that he should be killed there.*

One of these days, Judge Tom Parker will sentence Ford.  He has no choice of sentence involving Jeffrey.  He's required to do what the jury said: LWOP, death in prison.  He does have a choice in the other case:  Death, LWOP, 30 years of actual time in prison and then a theoretical chance of parole, or 25 years of actual time before a theoretical chance of parole.

Of the hundreds of jury death recommendations in Ohio, only 8 times have judges rejected the recommendation and imposed a version of a life sentence.  I wouldn't put any money on this being number 9.

All that is, ultimately, a digression from what I want to talk about.

Ohio law says that those verdicts must be unanimous.  And they were.  The 12 jurors who earlier found Ford guilty deliberated again and then unanimously agreed that he should be killed for Margaret's death and spend the rest of his natural life in prison for Jeffrey's.  All 12 signed both verdict forms.  The judge polled them.  All 12 agreed that they intended what they signed.**

Except.

One of the things we know about capital juries, even capital juries that eventually decide to kill, is that at first, there are almost always votes for life, even if only one or two.  When the jury returns a death verdict, it's because those one or two lifers eventually gave way.  Because it's tough.  And part of what we need to do as trial lawyers is empower those jurors, give them the tools and the strength to stand up to the rest.  Because all it takes is one, finally, who won't cave.

There isn't supposed to be any caving, of course.  Jury deliberations are supposed to be, well, deliberate.  Reasoned and rational.  Tote boards adding and subtracting.  Balance beams for weighing.  This much on one side, that much on the other.  Jurors are told not to vote for the majority "just to be congenial." 

But it's not congeniality that screws with the verdicts.  it's hostility.  The jury room is contentious, argumentative.  It can get ugly.  Nigger.  Honky.  Fucking cunt.  Shithead.  There have been assaults. 

I didn't want to find him guilty, a juror told us in a case I handled on appeal.  And then I didn't want to vote for death.  But she did.  She found him guilty.  She voted for death.  The law says, basically, so be it.  Jurors can't recant their verdicts once they've been accepted.   Finality, after all.

So it was in Shawn Ford's case.  Phil Trexler in the Akron Beacon-Journal.

A juror who agreed that Shawn Ford Jr. should be executed for the killing of a New Franklin woman now says others on the panel intimidated her over two days of contentious deliberations and she never believed a death sentence was warranted.

Never believed.  Never wanted it.  Voted for it anyway.

“I didn’t want the death penalty at all,” she said. “I fought for hours. I had one juror get in my face saying, ‘I can’t believe you wouldn’t give this kid the death penalty. What’s wrong with you, something’s wrong with you.’
“Yes, [I was intimidated]. It was rough. It was hard. And I’m still not at peace that a death sentence was handed down … I don’t feel a death sentence is right for Shawn. He needs help, not a needle in the arm.”

No, I don't imagine she is at peace.  She said she held the verdict form for 20 minutes, unable to sign it even after she agreed to.  But she did.  Sign.  Death.

And when the jury was polled? 

“I hesitated to say yes,” she said. “I wanted to say no, but I couldn’t. I was looking down. I was shaking. I couldn’t even control myself. But I said yes.”

She caved

[b]ecause of how awful they were. . . . They were screaming at me.

The law, our law, says the jury must be unanimous.  They said they were.  That's enough for the law.

Enough, even if it's a lie. Truth, that elusive thing?  It doesn't matter.  It's all about magic words. Signatures in ink on a verdict form.  Saying "yes" to a question nobody really understands.

After the verdicts were read and the courtroom cleared, the juror said she found herself back with the others in their deliberation room. She said some hugged and others laughed while she wept looking out a window.
“I was furious with them at the end. I couldn’t even look at them in the eyes. I wanted to get the hell out of there,” she said. “I didn’t say a word to anyone. I flung my juror [badge] on the table. One lady who works for the judge said, ‘It’s OK.’
“And I said, ‘No, it’s not OK.’ I said, ‘We’re putting another body in a body bag.’ ”

-----------------
*Yes, I know, and I assume the jurors knew, that For cannot serve both those sentences.  One keeps him in prison until he dies of natural causes.  The other arranges his murder.  If he is killed for Margaret's murder, he won't have served the sentence for Jeffrey's.  If he serves the sentence for Jeffrey's, he won't have served what the jury urged for Margaret's.  Nobody said the criminal law makes sense.

**Actually, each of the 12 was asked, "Are these your verdicts?"  And each said "Yes."  I've often wondered if jurors asked that question really know that what it means is "Do you agree that this is the verdict you think is correct?"  I"m pretty sure the answer is that they don't.

Dissing the Heinous Crime Rule

I'm at a gathering of criminal defense lawyers which just naturally gets me thinking about what criminal defense lawyers do.  And no, I'm not wading back into that thicket today, though if you're remarkably bored you can search the archives for a string of posts in the Who-We-Are-and-What-We-Do series.  Anyhow, this is just an opening (you gotta start somewhere) to get to the simple point (which is itself a set-up for where I hope to take this).

We represent people charged with and convicted of crimes.  Some of the crimes are crimes only because the law says so.  (See Greenfield this morning on New York's law against gravity knives, for instance.)  Some are crimes because, well, it's against the law to steal a loaf of bread even if the kids are hungry.  And you don't have a right to beat up the guy on the next barstool just because he looked funny at you.

And then there's the monsters.  We represent people accused of, then convicted of, truly horrific things.   Really, until you've walked for a while in the trenches of the criminal law, you don't have a real understanding of the things people do to one another.  Baby rapers, torture killers, guys who fly airplanes into buildings, self-declared monarchs who commit genocide.  Some of the folks charged with, even convicted of those crimes in fact committed them.  

Others - that's another of the horrific things people do to one another.  They charge them, and convict them, of stuff they didn't do.  Even really awful stuff.

Out in the world there are the Nancy Graces, the Thane Rosenbaums, the Robert Bleckers, the Bill Otises.  They know, just know, who really did it.  They have no sympathy for the system that they claim coddles the evildoers, the monsters.

But here's a simple point, and it's where I want to go, what I want to be as clear as possible about.

It's when the charges are worst.  It's when the outrage is greatest.  It's when the accused is most clearly guilty in fact.  When she's most reviled, most despised.  When there's no excuse to be believed, when there's nothing.  When it's the devil himself in the box.  When it's hardest.

That's when it matters most.

Not just that we be there.  That part's easy.  We're there because it's what we do (again, search the archives).  

Floyd Holder, a fine lawyer gone for some time now (Jonathan Turley, who tried a case with him, once described him to me as "the Rumpole of the Plains"), described to me what he called the "Heinous Crime Rule."  

If the crime is sufficiently heinous, there's no such thing as reversible error.

Which is, I regret to say, mostly true.  And exactly wrong.

Because that's when it matters most.  That's when our system is most tested.

Because that's when the Rule of Law is most readily susceptible to giving way to the Law of Rule. It's when the courts, that don't want to, are most obligated to say 

NO.  DAMMIT.  SHIT.  WE HATE THIS.

But if you can't do it right, then you don't get to do it at all.

If the measure of a society is how it treats the least, the measure of a legal system, and the measure of a judiciary, is how it treats the worst.

Thank you for your attention.

Little Kids Do Lie

Danny Brown spent some 19 years in prison for a murder he didn't commit.  

When the DNA came back to Sherman Preston, it wasn't really much of a surprise.  Back when Bobbie Russell was killed, Preston was a one-man crime wave, raping and killing.  In fact, when the DNA was finally tested, Preston was doing a life sentence for a similar murder - convicted years after the fact on a DNA match.  Anyhow, after the DNA, and after Danny passed a polygraph (because the magic box, so unreliable that its results aren't ordinarily admissible in court, trumps real science) Julie Bates, the Lucas County prosecutor agreed to cut Danny loose. 

The only witness to Bobbie Russell's murder, assuming he actually saw it, was her then-six year-old son Jeffery.  Jeffery said Danny did it.  Jeffery also said he saw things that would have been physically impossible for him to see.  But when an investigator went to tell Jeffery about the DNA, the young man (he was 25 or 26 by then) again said that Danny did it.  So Julie Bates figured that it was so.  After all, she said, mouthing one of the stupidest things anyone has ever said,

"I don't think little kids lie."

And though she agreed to cutting Danny loose and dismissing the charges against him (without prejudice so she could refile them when the DNA morphed into Danny's or something), she maintains that he killed Bobbie Russell.  Because kids don't lie.

Actually, I don't think Jeffery did lie.  I think he was mistaken.  And now he has a false memory.  It happens.  Way too much.

But little kids?  That thing about them not lying?  As I said, one of the stupidest things anyone has ever said.  Little kids lie all the time.  

Chaneye Kelly was 8 when she lied.

Her father, she said "stuck his pee-pee into my pee-pee."  

When she was 9, and on the witness stand, she lied again, this time with clinical precision (and clinical terminology).

The prosecutor Karen DiValentino started with a few benign questions but quickly got to the point: “Do you know why you’re here today?”
“Yes,” Chaneya said. “Abuse.”
“By who?”
“My father.”
“Do you know where that happened?”
“In the bathroom …”
“When you were laying on the floor, what, if anything, did your father do?”
“He, um, stuck his penis in my vagina.”
“And were you laying on your stomach or your back when that happened?”
“Back.”
“And did he do anything else to you?”
“He took his finger.”
“And where did he put his finger?”
“In my vagina.”

On that testimony, and on his witness-stand puffing of his military record (he claimed to be a Vietnam vet, which he wasn't, and to have a purple heart, which he didn't), the jury took just 4 hours to convict Daryl Kelly.  The judge called him a "pathological liar" and sent him up the river for 20-40 years.

It's been about 14 years now that Daryl Kelly's been in prison.  About 13 since Chaneya acknowledged her lies.  

She lied because her mother (the aptly named Charade), a drug addict supporting her habit through prostitution, threatened to beat her with a belt unless she did.  She lied because the prosecutor promised to buy her a bicycle if she'd implicate her father.  She lied because she was a kid.  And kids lie.

Eventually a panel of prosecutors was convened to consider Chaneya's recantation and Daryl's protestations of innocence.  They interviewed Chaneya.  It didn't go well.

[S]he got the feeling they were more interested in protecting her father’s conviction than in listening to her. “There was a point in time in there that I just blew up,” she says. “I got really upset. I was just like: I’m tired of this. I just want you guys to listen to me … I’m telling you that nothing happened. Why is it so hard for you guys to understand that? Absolutely nothing happened.”

They decided, those prosecutors did, that prosecutors don't lock up innocent people.  Daryl Kelly denied he was guilty.  Since it couldn't be true, they concluded that he was a pathological liar. And guilty.

The cops, of course, were free to lie.  

Detective Mancinelli grilled Daryl. “Mr. Kelly, if you didn’t do anything wrong, how did your finger­prints get on her thighs and buttocks?”
He scrambled for an explanation. “Maybe while I was sleeping,” he said, “my wife took my hands and put them there?”
“How did your semen get inside your daughter’s mouth?”
Daryl tried to make sense of what he was hearing, offering a couple of explanations before saying, “Maybe while I was sleeping my wife had sex with me and then took the semen and put it on her?”

Which is, of course, bullshit. That never happens except in Scott Turow novels. Certainly it didn't happen in this case. Kelly's explanations were implausible because he was trying to account for things that didn't happen. Mancinelli was making them up. But since the explanations were implausible, since Kelly didn't just admit the things that hadn't happened, he was lying.  And only bad guys lie.  Oh, and cops.  Cops are free to lie.  They're the good guys. 

Daryl Kelly sits in his cell.  He's pretty much lost touch with his kids.  They're young adults now. They've moved away.  They have lives of their own.  They don't much come to visit.

Recently he was transferred to Fishkill, a medium-security prison, and when he got to his new bunk, he didn’t put up any photos of his family. “Prison is not my home,” he says.
Instead, he keeps his pictures of his children hidden inside a photo album. Every now and then, when he wants to feel less lonely, he’ll sit down on his bed and study snapshots from all the years he missed: the kids posing in front of their church, Chaneya in her gown at high-school graduation. When he gets to the last page, he slips the album into a plastic bag to protect it from dust, places it back inside his locker, and closes the door.

* * * * *

There are lessons in all this.

• Don't talk to the cops.  It's really true.  What you say will be used against you.  The police say they just want to clear things up.  They clear things up by arresting people.  Don't help them.
• Don't tell stretchers on the witness stand.  They'll come back to bite you.  Cops can get away with testilying.  When ordinary folks do it, it's perjury.  
• Don't believe what they taught you in civics.  The people who run the system don't believe that it's better for 10 guilty people to go free than for one innocent person to be convicted.  In fact, they think it's better for 10 innocent people to go to prison than for one guilty person to go free.It won't all work out in the end.  

That's all trivia.  You knew that if you'd paid attention.  The harder lesson, the more serious one, is that the system doesn't give a shit.  Nobody cares about Daryl Kelly.  At least, nobody with the clout to do anything.  Those projects set up to investigate and free the innocent?  They ignore him or blow him off. The government?  It is to laugh.  The prosecutors whose job is to do justice (whatever the fuck that means)?  We've seen what they did.

Up against everything is that kids don't lie when they accuse.  Jeffery Russell told the truth.  He was telling the truth when he spoke of things that he saw through solid walls and he told the truth about Danny Brown.  And we know it was true (OK, we don't, but Julie Bates does) because "little kids don't lie" when they accuse.  Chaneya Kelly told the truth when she accused her father.  Because little kids don't lie.  When they accuse.  She lied when she said that what she'd said before was a lie.  We know she lied then because before she'd accused and little kids don't lie.  When they accuse.

Daryl Kelly might have a shot at parole sometime if he'll just fess up and lie and admit that he raped his daughter.  Which he didn't do.  But since speaking the truth makes him a pathological liar, it just stands to reason that lying makes him truthful.

Joseph Heller, of course, wrote of a particular fucked-up system.

“There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
"That's some catch, that Catch-22," he observed.
"It's the best there is," Doc Daneeka agreed.”

-------------------------------

I got the story of Chayneya Kelly and her father from an article by Jennifer Gonnerman in New York Magazine.  The quotes are from Gonnerman's article.  You should go and read the whole thing.  

News From Across the Pond

With cause, Gideon likes to quote this passage from Justice White's* opinion for a unanimous court in Coffin v. United States.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1.

White relates that story as he's tracing the genesis and history of the presumption of innocence.  He goes on to cite Fortescue.

Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliæ, Amos' translation, Cambridge, 1825.

And then, of course.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.

These are bedrock principles of Anglo-American jurisprudence. Their heritage predates the republic, predates Blackstone, predates even the Emperor Julian.**

Except, well, bedrock legal principles designed to protect the innocent have a way of turning into quicksand.  Oh, sure, our institutions pay verbal obeisance to the idea that it is more important that innocence be protected than that guilt be punished.  But for all you'll hear about reconciliation and forgiveness, and for all I imagine he'd deny it, in practice our system reflects the attitudes of Bill (hang-'em-high) Otis a whole lot more than it does the attitudes of Helen Prejean.  Consider that in poll after poll, some 60% or more of the population believes that some number of factually innocent people have been executed and that others will be but that some 60% or more of the population thinks we should have the death penalty anyway.

Another of those supposedly bedoock principles is explicitly mentioned in the Constitution (as amended).

No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.

That's the Double Jeopardy Clause of the Fifth Amendment.   It embodies, the Supreme Court tells us, three protections.

• A person can't be tried again for an offense after being found not guilty.
• A person can't be tried again for an offense after being found guilty.
• A person can't be punished for the same offense more than once.

All that seems clear enough.  Alas, it bears little relation to what happens day to day in our courts.  Hell, the same Supreme Court that regularly identifies those protections routinely tells us that this or that one doesn't apply because, well, it doesn't.

The simplest example is what they call the We Can Do Whatever We Want Dual Sovereignty Doctrine which says that the feds (or another state) can try and convict and punish you for a crime regardless of whether you were tried and acquitted or convicted and punished for the crime in state court.  But really there are a whole bunch of other circumstances in which a person can be tried more than once for the same crime.  Just ask Curtis Flowers who's on death row in Mississippi now following his sixth trial for the same offense (an offense, I should add, that he insists and has always insisted he did not commit).

Anyway, the point is that we have this institutional idea about how a system should work and about the importance of innocence that says the government only gets one try and really does have to provide proof beyond a reasonable doubt because the risk of some guilty person walking free is worth it to ensure that innocent people will not be convicted.  Of course, it doesn't work all that well as we know (if we're honest about it) that a hell of a lot of factually innocent people are convicted of crimes.*** And, sadly, we don't actually want it to work all that well.

I mean, really, stop people on the street and ask if they'd be OK with some child molester going free if it meant that a few innocent but accused child molesters would also go free.  (Of course, you'd have to get past the initial reaction that nobody who's accused is in fact innocent.)  Check with Nancy Grace.

Despite that, despite what they've done to Curtis Flowers, despite all the folks who actually did get tried twice or thrice or whatever even though the state didn't manage to prove them guilty and who did get punished multiple times for the same crime and who . . . .  Despite all that, we've got the limited but real protections of the Double Jeopardy Clause.  The key, the most solid protection of which, is that first one above, that if a person is found not guilty, he can't be tried again.  At least not of the same charges in the same jurisdiction.  The accused can appeal a guilty verdict.  The state can't appeal a not guilty.  

And there's more.  The state can't (this is theory more than practice, but still) introduce evidence that the accused is a bad person in order to convince the jury that he must have done whatever.  Prior bad acts (which is what they're called in the legal biz) are admissible for many purposes, but not to show that if she did it before, she's surely likely to have done it this time.

And if we didn't have those protections (however limited they really are), can you just imagine?

Harbinder Khatkar

Actually, you don't have to imagine.  Just look across the pond.  That's where you'll find Harbinder Khatkar who's doing life (or at least 14 years - don't ask me, I don't practice law over there).  From The Guardian.

A violent rapist has been jailed for life after a landmark legal ruling in which his original acquittal for the offence was quashed by the court of appeal.

Harbinder Khatkar, from Derby, has been ordered to serve at least 14 years after being convicted of offences committed in December 2011 and February 2013.

The 37-year-old attacked six women on 2 February this year - less than six weeks after a jury acquitted him of an earlier rape in which he forced his way into the victim's home.

Following Khatkar's arrest for the later offences, the CPS successfully sought permission from judges to retry him by arguing that his subsequent crimes were so similar they amounted to new and compelling evidence of guilt.

If it's so, Khatkar is a legitimately bad dude who's done a shitload of terrible things and continued to do them after he was acquitted.  But rather than try him for the new stuff (though I suppose they might have done that too), they just doubled down.

Speaking on the BBC Radio 4 Today programme, Alison Levitt QC, principal legal adviser at the CPS, stressed that the "exceptional power" to quash acquittals had been used sparingly since its introduction eight years ago.

Levitt said: "In 2005 the law was changed to allow what is called bad character evidence, which is evidence that somebody has done something so similar or of the same type of offence on another occasion.

"It's a very exceptional power.

"When something has gone wrong and the evidence is strong enough, as we said it was in this case, it is only right that we should use it."

You know, there's this whole idea the Republicans (and especially the Tea Partiers) emphasize that the government can't be trusted.  Except, of course, when it comes to prosecuting people.  Then we can trust them. Never to abuse the power.  And never to make mistakes.

If The Guardian story is right and they've tried this only rarely in Britain, well, good for them.  But we know what happens once a small breach occurs. Now that they see it works, they'll do it again.  And again.

And all those folks who say that we should never look at foreign law will be lining up.

Salivating.


-------------------

Edward Douglass White

*No, not Whizzer White.  Associate Justice Edward Douglass White.  The, er, distinguished looking dude on the right.





**You won't do better if you really want to trace it than to read Alexander Volokh's law review article, n Guilty Men. (H/t to Greenfield for pointing me to it a couple of years ago.)

***I'm not just talking about the ones doing life or death for murders and sex offenses, though there are plenty of those.  I'm talking about the ones who plead guilty because the deal is too good to take a chance on trial and the ones who plead guilty because they've already served more than the maximum they could get but they couldn't bond out because they were too poor and the ones who . . . .

Gideon Lives

When last we dropped in on Richard Sybrandy and Morgan Witt who were the public defenders in the cities of Burlington and Mt. Vernon, Skagit County, Washington (here).  As it happens, that was also when we first dropped in on them.  At the time, they were explaining (or at least Sybrandy was) that they were each providing absolutely extraordinary (they meant it in a good way) representation to 1000 indigent misdemeanants and 1000 other alleged baddies every year.  That Oh, sure, they didn't go to the jail to see their clients and they didn't actually try the cases and they didn't hire investigators or do research or . . . . But they pled 'em out.  

And really, what more could you ask of your lawyer?

As it happens, Joseph Jerome Wilbur, et al., asked more.  And they asked it in a lawsuit brought by the ACLU of Washington, Wilbur v. City of Mt. Vernon, et al., which went to trial back in the Spring before the Honorable Robert S. Lasnik, U.S. District Judge for the Western District of Washington.  Long before the trial, back when the lawsuit was filed and I wrote about Sybrandy and Witt, right about that time, they gave up their PD gigs and the defendant cities hired Mountain Law to provide indigent defense to the alleged misdemeanants. 

Nothing significant changed other than the personnel.

And so, today, the good judge ruled.  The cities lost.

The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status. It is the lack of a representational relationship that would allow counsel to evaluate and protect the client’s interests that makes the situation in Mount Vernon and Burlington so troubling and gives rise to the Sixth Amendment violation in this case.

See, the problem wasn't Sybrandy and Witt.  Well, actually it was.  

[I]ndigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.  The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. To the extent that “adequate representation” presumes a certain basic representational relationship, there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the government’s case was so infrequent that it was virtually a non-factor in the functioning of the Cities’ criminal justice system.

Still, Sybrandy and Witt were little more than henchmen, the willing but hapless participants in the cities' refusal to provide constitutionally mandated counsel to the people they charged with crimes.  They enabled the policy of violating the Constitution. Hell, they profited from the policy.  But they didn't cause it.  And when they were done, Mountain Law was there to pick up the mantle of spear-carrier for the oppressors prosecutors.  Because it was the policy.

Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. Intentional choices made while negotiating the public defender contracts and allocating funds to the public defender system left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable. And the Cities knew it.

The words are Lasnik's, the italics are mine.

Of course, it's not done.  Judge Lasnik ordered remedies and put on plaintiff's counsel the duty of oversight.  Are the remedies adequate?  Will the cities comply?  Inquiring minds want to know.  One hint may be in a comment by Andrew Cooley who represented the cities.  According to Gene Johnson in the Bellingham Herald, Cooley said that

the cities have doubled their public-defense budget since the lawsuit was filed, and it remained unclear whether officials could stomach spending any more. Instead, Burlington and Mount Vernon might simply disband their municipal courts, leaving Skagit County District Court to handle those cases.

Read more here: http://www.bellinghamherald.com/2013/12/04/3354095/judge-wash-towns-fail-poor-defendants.html#storylink=cpy

See, here's the thing.  If the government wants to prosecute people, it needs to come up with the money. Can't stomach the cost of providing for the constitutional rights of people you prosecute?  Then prosecute fewer people.  Or, if you're in Washington State, dump the cost on someone else.  You know, 

Let George do it. 

In the meantime, one win for Gideon.

  Wilbur v. City of Mt. Vernon, et al.