Life with Hope! What a Concept.

They didn't say Arthur Tyler should go home tomorrow, which is what his lawyers asked them to do.

Nor did they say "Off with his head," which is what Matthew Leach, Sander Leach's grandson, wanted them to do.

Nor did they say he should live but never see the light of day again, which is what Tim McGinty and the gang at the Cuyahoga County Prosecutor's office urged.

Instead, well, none of them thinks he should be killed.  Beyond that?  Well, none of them were quite ready to say.  

Eleven members of the Parole Board voted.  None said kill.  None said LWOP.  That's extraordinary. On the other hand, none said to cut him loose.  Nor did any of them say that he should get out some day.  

• All of them agreed there's too much doubt about what Tyler did to kill him.  
• All of them thought it mattered that McGinty didn't ask for death.
• None of them wanted to decide what else to do with him.

See, here's the thing.  He hasn't been a good boy these 31 years that he's spent on the row.  He's broken a lot of rules over the years.   The list of his infractions runs somewhat over 3 pages in the report list his infractions.  

So six of the folks on the Board want him to have a hearing, now, to explain.  THEN they'll decide what to do.  The others think he needs two years in general population to prove he can behave himself before they'll decide.  You know, once he's going to be allowed to ask for parole, he has to prove that he's worthy of asking.

But here's the thing, and it's important and close to unprecedented.  They all want to give him a chance.  Life with hope.  (And, at least implicitly, the clear indication that the hope will be realized before long.)  Except, of course, it's not exactly their call.

The question is where it always is.  Because the Parole Board report has no formal consequence.  It's a recommendation with no legal force.  Just a hoop the legislator set up for folks to jump through.  Governor Kasich can do whatever he wants.

Flip-a-coin Strickland made that clear, overruling recommendations of death and of life with equal randomness.  

Kasich?  

He's got just under a month to decide.

  Tyler Clemency Report by jmgamso

If You Broke It, You Should Pay for It

Dog-bites-man news from the Times:  

They won't be pardoning Cameron Todd Willingham anytime soon.* 

What?  You thought they would?  You thought that Texas would admit that his conviction, death sentence, and execution for a crime that did not occur was a horrible - even if an understandable - mistake?  You thought Rick Perry's parole board would acknowledge that he wasn't a minister of justice when he signed off on Willingham's killing while the evidence that there was no crime (and therefore, duh, no criminal) was right in front of him?  You thought they'd say that he was just a stone killer? And they were too?

Grow up.

Which brings me to Joe D'Ambrosio, though it's not the same thing.

For one thing, he's still alive.  Ohio (that's another difference) wanted to kill him.  This time there was in fact a crime (yet a third difference).  Anthony Klann was murdered.  Eddie Espinoza (the state's key witness against Joe) and Stoney Lewis (the only one with an actual motive) are the ones who slit his throat, then dumped his body.

But Joe spent 22 years on death row, not fighting for a life sentence but fighting to be free.  Because he didn't kill anyone.  Wasn't there.  Not him.  No way.

So how'd it happen?  The prosecutors lied and cheated.  Hid evidence.  Made shit up.  They'd done it to other folks.  They did it to Joe.  

I'm not exactly saying that they set out to frame an innocent man.  I'd guess that they figured Espinoza was telling something close to the truth when he cut a deal to save himself and blame Joe and Michael Keenan.  And then - well, what's the point of taking him to trial if you don't ensure that the evidence will convict him?  And if you have to invent some evidence to ensure that, and if you have to hide some other evidence?  Well, shit.  You're righteous so who gives a fuck about the rules.  They're for sissies.

Joe's out now.  Hell of a guy.  We had a few beers a couple of weeks ago, him talking about how fucked up the system is and how hard he fought all those years and how he now travels around talking to folks and trying to get them to understand.  And to act.

He was also hoping but not optimistic that maybe his lawsuit against the prosecutors and the cops and the government might get some traction in the 6th Circuit after the district judge threw it out.  This week the answer came.  No.  Oh, the circuit's opinion makes clear that Joe was victimized, that the prosecutors lied and cheated, all that stuff.  And it makes clear that they're not supposed to do those things.  But you know, the law didn't exactly say that.  (Radley Balko lays it all out in his blog at the Post, and I'm not going to rehash it here - at least not today.) 

But like I say, Joe's a fighter.  You don't survive as he did, struggle for all those years not just to cheat the hangman but to walk out a free man, without having fight in you.  

And then there's Arthur Tyler.  He's not Willingham and he's not Joe.  

It was just over 30 years ago March 12, 1983. Someone shot and killed Sander Leach.  There were two possible killers.  Either Leroy Head or Arthur Tyler. 

The evidence all points to Head. He confessed. Repeatedly.  At least 11 times. He confessed to the police.  He confessed to friends.  He confessed to his mother for god's sake.  He confessed and confessed.  He said he acted alone.  Then the cops and the prosecutors told him that if he didn't change his story and blame Tyler, he'd end up on death row.  So he told them that he didn't do it. Tyler did.  Which they believed.  

Because who wouldn't believe a confessed murderer when, after you threaten him he decides to blame someone else?

He's out of prison now.  And here's the thing, he still says he did it and Tyler didn't.  Or at least, he was still saying it when he wrote and signed an affidavit that was filed with Tyler's post-conviction petition. An affidavit the court promptly lost.  (Really, you can't make this shit up, or at least, there's no reason to because it actually happened  and happens.  Matt Brown and Scott Greenfield have been talking about who doesn't get paid any attention by the courts. The court lost the fucking affidavit! Gimme a break.)

Anyhow, lost affidavit or not, Head was all set to testify that what he'd told folks (except the jury) was true - that he was the killer and not Tyler.  Until the cops and the prosecutors said again 

Then you'll be undoing your plea bargain and we'll put you on death row.

So once again he . . . .

Todd Willingham is dead.  Joe D'Ambrosio is out and exonerated (even if not compensated).**  Arthur Tyler?  They're planning to kill him May 28.  For the crime Leroy Head probably committed.

Look, it's not that Tyler's a saint.  It's just that he probably didn't kill Sander Leach.  And no matter how you spin that, it means he shouldn't be on death row.

And then there's this.  The law at the time said that the sentencing options did not include LWOP.  

Now, imagine a fair trial.  You know, one where Head admits what he says whenever he isn't under threat of death.  One where the cops admit that Leach had over $150 cash in his pockets after the killer left, which pretty much gives the lie to Head's claim that he saw Tyler rifling Leach's pockets and stealing whatever was there after he killed the guy.  Imagine, that is, a trial where it's clear that whatever Arthur Tyler may have done that day in March 31 years ago it wasn't murder Sander Leach.

And imagine that the jury said, OK, makes sense.  Tyler didn't kill him.  But maybe he was involved. So they convict him of a lesser crime.  Or they give him one of the life sentences.  Which include possible out dates.

It's not just that Arthur Tyler shouldn't be on death row.  It's not just that they shouldn't kill him.  It's that they shouldn't give him death in prison, which is the usual best you get if the Parole Board and the gov decide to fix things.

And really, robbery gone wrong - which is what happened just with Head as, almost certainly, the robber.  That's not a death case today.  Not in Cuyahoga County.  Tim McGinty's the elected Prosecutor now, and he'll likely support a commutation to LWOP.  William Gerstenslager, the line prosecutor who put Tyler on the row, who coerced Head, who believes despite the evidence and the logic that Tyler must have done it because he just must have.  (Head's credible when he blames Tyler because he says things he could only have known if he was there, Gerstenslager said.  Of course, if he killed Sander Leach, he was there.)  Yet even Gerstenslager has said he would support a commutation to LWOP.

And that is, after all, a win in this business.  But for the guy who didn't do it?  When the law didn't allow LWOP?  When it wouldn't allow LWOP if Tyler were tried today?

Anything's possible.  The Sun could burn out tomorrow.  Malaysia Air Flight 370 might turn up having landed safely on an uncharted island in the Indian Ocean.  The Republicans in the House of Representatives might unanimously concede they were mistaken and that the Affordable Care Act is the finest and noblest piece of legislation in American History and that their foolish opposition means they don't deserve the public trust so they're all resigning.  

It's even possible that Head told the truth when he said that Arthur Tyler killed Sander Leach.

So don't cut him loose.  But don't kill him.  And don't make it LWOP.  Give him a chance.  Really.  It's not too much to ask.  It wouldn't be the end of the Republic.  Not even the end of the Buckeye State. But it'd be the right thing to do.  

And then?  

Give Joe D'Ambrosio a boatload of cash.  It won't make up for those years, nothing will.  But it'd be a start.

And Todd Willingham?  Fess up Texas.  

I have more suggestions, but they'll have to wait for another post.  This one's too long.  

--------------------
*The parole board's one-page letter denying the pardon request said he can apply for a formal exoneration again in two years.  Because, you know, he'll be more innocent then.

**Leroy Head is out, too, having served the time for admitting under threat of death that he didn't kill Sander Leach.

Death by Default

Really, if you can't prove it was a mistake, there's no hope.  At least, that's the latest lesson from the Parole Board.  

Last Friday, for a bit of early coal in his stocking, the Board unanimously said that Governor Kasich ought to let the execution team (Go Team Go) get on with the business of killing Dennis McGuire.

• He didn't fess up to single-handedly raping and murdering Joy Stewart right away.  In fact, he claimed someone else did it.  That speaks, the Board said, "poorly of his overall character."  (As if the rape murder didn't.)
• Then, just days before the hearing at the Parole Board, he finally acknowledged killing her but said it wasn't cold and calculated and planned but that he "lost control" when Stewart wanted him to leave his wife and kids for her.  That can't have been true, the Board said, because the story is uncorroborated and shows he isn't genuinely remorseful.  And, anyway, the killing was too brutal not to have been deliberate and purposeful.
• Of course, the crime was "disturbing in character."  And less than a year later he attacked a fifteen-year-old girl, "suggesting a propensity to violently prey on vulnerable victims."
• Finally, there's that McGuire had a horrific background, though maybe not all of what he says now is true.  Naturally, it doesn't matter.   

There is, in the world of appellate law, what's known as "harmless error."  I've written about it before. It's how courts decide that sure, lots of stuff went wrong, but we're not giving the defendant a break because, well, because we don't want to.  Except since they can't give 

We don't wanna

as an explanation, they say instead that the errors were harmless.  You know, the defendant didn't prove that the jury would have said "Not Guilty."  And since he still might have been convicted, well, shit, can't give him a new trial just 'cause the gov'm'nt cheated or his lawyer was an incompetent fuck up or the Constitution got stiffed.  And so the Harmless Error Rule. It 

Juries are vital, but we judges can channel them and announce when they would have reached a different result.  And when we say it wouldn't have changed anything, well there's really no basis for a do over or a fix of any sort.  That would just make us involved in the business of making trials fair to the accused - which gets in the way, after all, of making them about convicting the accused.  And so the Harmless Error Rule.

It is, of course, a sham.  As the Supreme Court of Ohio said reversing a death sentence in State v. Brooks because they were not told that even a single juror who favors life could prevent a death sentence.

We cannot know what was going on in the minds of the jurors when they were given the duty of deciding Brooks's fate, and we thus cannot say for certain whether one of the jurors would have been moved enough by the mitigating factors in Brooks's favor, his youth and harrowing childhood, to have recommended a life sentence.

Still, the Harmless Error Rule.

Of course, the courts are supposed to be in the business of getting it right and protecting rights.  Error correction is they.  Yet the Harmless Error Rule.

The Parole Board?  Executive clemency?  Not so much.

I keep saying the same thing.  The job of the Governor in this process, the job of the Parole Board, ought to be about tempering excess.  No more than absolutely necessary.  Mercy.  Grace.  Because we can be better than our worse instincts.  

Sure, maybe none of what McGuire says now would have mattered to the jury.   So said the Parole Board which surely knows because . . . . Oh, wait, no they don't.  Which doesn't stop them.

However, even taking as true all that was alleged about McGuire’s upbringing, the Board concludes that it neither explains his crime nor mitigates it to such a degree that the evidence would clearly have produced a different sentencing recommendation if presented to the jury. 

Because we should give in to our worse instincts.

Maybe Dennis McGuire deserves to die.  Maybe what he did is beyond the pale and he's beyond redemption.  Maybe he's the worst of the worst who did the worst things.  I don't know.  Neither do you.  And neither, with all respect, did the jury or the judge or the subsequent judges.  And neither does the Parole Board or the Governor.  

Those are judgments beyond human ken.  And yet, even if we knew that McGuire deserved to die, even if the jury properly weighed what Ohio statutes say they were to weigh, even if the law authorizes his death.  Even then the question.

Should we kill him?

Or ought we be better than that?  Not forgive, certainly not forget - but permit.

Mercy.  Grace.

Not for the Parole Board.  For them, he hasn't proved he shouldn't be killed, so he should.

Death by default.

* * * * *

They plan to kill Dennis McGuire on January 16.

Happy New Year!

  Dennis McGuire Clemency Report

Flipping a Weighted Coin

They plan to kill Ronald Phillips on November 14.  Maybe it will happen.  Maybe not. 

Last week, and to the surprise I think of nobody, the Parole Board said it ought to happen.

• He grew up in an abusive environment - meh.  Dysfunctional? Sure.  Abusive?  The only people who say so are Phillips himself, his siblings, and the psychologists who've examined him. 
• He was a product of that environment - meh.  It "neither explains nor excuses."  Environment and background are irrelevant.
• His lawyers were incompetent - meh.  There's been a wealth of litigation over that question and the courts haven't agreed.  Besides, he hasn't proved that if he had competent lawyers he would have been sentenced to life.
• He's changed, and now he accepts responsibility - meh.  If he accepted responsibility he wouldn't claim that his acts were anything other than pure evil.  Childhood abuse?  Encouraged by others?  Hey, if you accept full responsibility you have to acknowledge that you're just an irredeemable monster who should be killed.
• And good god, what a horrible crime.  Which it was.

All of which is pretty much true in the cases where the Board recommends clemency, too. 

As I've said about others, I've never represented Ronald Phillips.  I don't know him. I don't know the details of whether he did or did not rape 3-year-old Sheila Marie Evans with his penis at the time he killed her, which he'd done before, or only with his finger as he told the Parole Board.  I won't speak to comparative depravity of act.  What he did, what he acknowledges doing, is monstrous.

Oh, maybe his lawyers didn't do anything much to investigate or present mitigation.  But as the prosecutors explained to the Parole Board, they were trying to prevent the case from getting that far.  You can't expect them to have prepared for a sentencing phase if they hoped to avoid one. 

Also last week, someone asked on the listserv of the National Association of Criminal Defense Lawyers what people thought to be the single most important attribute of a capital defense lawyer.  To which I responded, purposely all in uppercase,

JUST DOING THE FUCKING WORK, START TO FINISH.

To which another lawyer responded that I was right, but that ought to be "the common denominator." Which is also true.  But shoulda, woulda, coulda.

If you study all the Parole Board's clemency reports, what becomes clear is that there's almost a random quality to them.  The default is, of course, a recommendation of death.  From time to time, they say otherwise.  Governor, in this case, for these reasons, you should let him live.  

The thing is that the recommendation of life cases aren't in any demonstrable way different than the recommendation to kill cases except for the votes.

• Horrible background?  Check.
• Incompetent lawyers that no other court found sufficiently incompetent?  Check.
• Accepts responsibility but maybe thinks the background contributed? Check.
• Victim's family members favor execution? Check.
• Victim's family members favor life? Check.
• A crime to curl your toenails? Check.

OFF WITH HIS HEAD!

SPARE HIM!

Sometimes you eat the bear.  Sometimes the bear eats you.

Jurors in Ohio are told that they must individually weigh the statutory aggravating circumstance that they found to have been proved beyond a reasonable doubt against whatever mitigating evidence they find to have been proved by a preponderance of the evidence.  If the statutory aggravating circumstance has been proved by proof beyond a reasonable doubt to outweigh that mitigating evidence, then they are to say "Kill."  If not, they are to say "Life."  And the "nature and circumstances of the offense" may only be placed on the mitigation side of the scale (though our supreme court has suggested, from time to time, that they can have negative weight).

It is an absurd task.  Incoherent and impossible.  The things being weighed (and of course that's if the lawyers have actually done their job and presented the mitigating evidence) aren't even broadly of the same category.  As I've said to more than one appellate body, 

It's not like weighing apples and oranges; it's like weighing apples and Oldsmobiles.

As one judge put it, after voting for life as a member of a three-judge panel trying a death penalty case here (three-judge panel's being an alternative to jury trials in capital cases in Ohio),

I just couldn't look at him and say, "Fuck you."

Which isn't exactly the legal standard.  Or maybe it is.

The Supremes say that the life or death decision must be somehow rational.  It's to be a reasoned moral response.  It's not to be - and this is the key - arbitrary.  The Supremes of course, live and decide in an ethereal bubble.

It's hard to imagine that Governor Kasich will overrule the unanimous Parole Board and decide to spare Ronald Phillips, change his sentence from Death by Prison Guard to Death in Prison. But there's ongoing litigation regarding lethal injection.  And there's whatever else may happen in the next month.

Maybe Ronald Phillips will be executed November 14.  Maybe not.

And the next guy (Dennis McGuire) and the one after that (Gregory Lott) and On Beyond Zebra! 

Maybe.  Maybe not. 

   Ronald Phillips Clemency Report

Notwithstanding an Inmate's Indifference to Clemency

I suppose it's no surprise to anyone who's followed the case.  

The Parole Board this morning recommended, unanimously as if that mattered, that Governor Kasich should let Harry Mitts be killed on September 25.  

It was just 19 years ago, August 14, 1994, when Mitts shot and killed John Bryant and police Sergeant Dennis Gilvar.  He wounded a couple of other cops.  It was, apparently incontestably, deliberate and intentional.  He wore ear muffs and goggles.  He aimed.  He fired and then fired again.  And again.  And again.   And again.  His defense at trial was that he was too drunk to form the specific intent required by law to get to this point, but the jury didn't buy it then, and Mitts denies it now. 

He says he's remorseful.  One of the prosecutors said that's a strong indication that he isn't. Of course, that puts the condemned in a bind.  The Parole Board wants to hear an expression of remorse, but if expressing it is evidence it isn't felt, and if you both have to feel it and have to express it . . . .

'That's some catch, that Catch-22,' [Yossarian] observed.
'It's the best there is,' Doc Daneeka agreed. 

But really, that wasn't the point.  Mitts didn't beg for his life.  When Cynthia Mausser, the Chair of the Parole Board, asked if he wanted clemency, Mitts told her

that he will be leaving that to the Board’s discretion. 

Of course, he'd be doing that anyway.  But his diffidence probably didn't endear him to a Board that wants to see gnashing of teeth and blubbering.  Before there can be clemency, there must be torment.  Mitts is too much at peace.  In fact, he'd gone back and forth on whether he would participate in the clemency process at all.  (In Ohio, unlike some other states, the Parole Board holds a hearing on the soon-to-be-executed regardless of his interest in clemency.  It is, after all, a chance for survivors and the families of victims to vent their spleen at the condemned - although he isn't actually present.)

And so, they said he should die.  The courts never said his trial counsel were incompetent.  He doesn't fully accept responsibility, it was a terrible crime, shooting at cops as he did.  And the cops were so damn heroic in preventing further bloodshed.  And, of course, he's indifferent.

The Board dropped a footnote in response to that last point.

While relevant, a death row inmate’s stated wishes should not be dispositive. The Board can envision cases in which a favorable recommendation for clemency may be warranted notwithstanding an inmate’s indifference to clemency or even an inmate’s stated preference for proceeding with the scheduled execution.An inmate’s indifference to, or outright rejection of, clemency may be outweighed by the existence of significant mitigation, judicial procedural deficiencies, or other factors that necessitate a favorable recommendation for clemency from the Board in the interests of justice. Mitts’s case is not such a case, however.

And there you have the bottom line.  Clemency, for the members of the Parole Board, has nothing to do with the Governor's plenary power of mercy.  (Probably doesn't for the Governor, either, but we're dealing with the Board now.  It's about "the interests of justice" which occasionally "necessitate a favorable recommendation for clemency."  

You know, error correction.  If the guy happens to be innocent, say.  Or if he's convinced them that the death sentence was a mistake.  

That's what it comes to.  It's not about our better angels, it's about our oopsies, our typographical errors.

Abe Lincoln, who had a way with words, explained why that's all wrong.

I have always found that mercy bears richer fruits than strict justice.

Not in Columbus when the Parole Board meets.*

 

   Harry Mitts by jmgamso

 

----------------------
*And not always for Lincoln, either, but that's a different blog post.

A Step Closer To Killing Billy Slagle

Damned if I know.

Just over a year ago, on July 10, 2012, Governor Kasich ignored the Parole Board's recommendation that Jeff Eley should be murdered (the Board's vote in favor of killing was 5-3) and commuted his sentence to life in prison.

That was so last year.

Today, the same governor obeyed the Parole Board's recommendation (by a 6-4 vote) that Billy Slagle should be executed.  Kill him, he said.  And for explanation?  The Parole Board said to do it.

   Kasich denies Slaglel

Yes, I can explain how it is that Jeff Eley's case is different from Billy Slagle's.  I can write about how Jeff wasn't fully responsible for his crime because of his mental illness but how Billy's youth didn't reduce his responsibility but just made him a budding serial killer.  And I can discuss in detail how it's different that the prosecutor who actually worked on Jeff's case favored commuting his sentence while it's the chief prosecutor who thinks Billy should get relief.  Or I could talk about --

Hell, you get the idea.

The thing is,

it's all bullshit.

Last year Kasich voted for life when the Parole Board said to kill.  This year he didn't.  And while the cases are different, they're not really all that different.  

Here's one of the things we know about the death penalty.  For all its layers of review and all the Supreme Court decisions and all the Parole Board hearings and all the doctors and lawyers and indian chiefs who weigh in on it.  For all the need for counsel to be specially trained and certified.  For all the commissions and task forces and ABA Guidlines.  For all the studies and law review articles and special training sessions and continuing legal education and special capital defense units in public defender offices and all the pro bono work from big law firms.   For all the vigils and the petitions and phone banks and prayer services.  For all of that,

We don't know what the fuck we're doing.

Because it's all random.  It's all arbitrary.  Exactly what SCOTUS said it cannot be and, since they did, after all, say that the death penalty is basically constitutional, that must mean that it's not random or arbitrary.  Except that it is.

And by random chance, and because the Parole Board (or 60 percent of them) said to kill (though that didn't matter for Jeff Eley) the Board said to kill, so he will.

Billy Slagle is to be killed on August 7.  

Governor Kasich is fine with that.  Damned if I know just why.

This Time with Dissents

It was August 13, 1987 when Billy Slagle, 18 years old, brutally murdered Mari Anne Pope.  Nine months later, to the day, just over 25 years ago, Slagle arrived on death row.  He's still there.

Two years ago he was scheduled to be executed.  The Parole Board did it's thing and gave a unanimous recommendation to the governor:

Kill the SOB.

Didn't happen.  Kasich gave him a reprieve.  It's now run out. Slagle's next up, scheduled to be killed on August 7.

But things can change.  And so the Parole Board meets again.  They began, as they do, by interviewing Billy who asked for LWOP.

That vicious killer wasn't me, he said.  Not that I'm innocent, but that it was an aberration, that's not the kind of person I am and not the sort I was.  I was drunk and stoned that night, and I acted out of character, he said.  I'm remorseful, he said.  I'm a good prisoner, don't get in trouble, he said. 

And there was much of the usual.  Billy was just 18, the youngest age of eligibility for death in Ohio even then. The mitigation evidence the jury heard was incomplete.  His drug and alcohol problems were truly acute and accounted for what happened.  His mother was Native American and alcohol use and alcoholism are epidemic in that community - and in their home.  He cares for his family and they for him. The world has changed and this case likely wouldn't get a death sentence today.  One juror refused to consider any mitigation evidence.

And the state put on its standard show.  Billy's death sentence has never been overturned, which means clemency is improper.*  The Board would be dissing the jury if it recommended clemency.  The trial lawyers were experienced.  An eye for an eye.

But there was something else.  The new prosecutor in Cuyahoga County.  He's apparently less enthusiastic about pursuing capital charges than his predecessors.  He's even game to revisit the death sentences they got and consider.  Which he did in Billy Slagle's case.  And as I wrote a couple of weeks ago, he thinks Slagle's sentence should be commuted to LWOP.   And so he told the Board.  And he sent one of his assistants to make the case.  

This morning the Board spoke.

Kill the SOB

Which is, of course, what they said before.  But then it was unanimous.  Not so this time.  This time it was 6-4.

Which isn't a recommendation of life, but it's something for the Governor to hang his metaphoric hat on.

   Billy Slagle 2013

----------------------
*I've observed before how basically stupid that argument is (usually it comes from the Parole Board itself).  The governor should only commute death sentences, that is, for people who no longer have them.

There But for the Grace of . . . . Ah, the Hell with It

Of course they said Steven Smith should be killed.  He had after all, viciously raped a child, a baby not yet six months old.  Raped her anally and vaginally.  And he killed her.

He acknowledges raping Autumn Carter.  He acknowledges killing her, too, though he says that was an accident, an unintended consequence of the rape.

The state disagrees.  He intentionally murdered Autumn said the prosecutors, he made a conscious decision to kill her.  He shook her violently. He smashed her face into the couch hard enough to leave a fabric pattern imprinted on her face. He banged her head around.  And the rape.  Her vagina was stretched to some 10 times normal size.  The assault went on for at least 10 minutes, perhaps as long as a half hour.

He now claims to be remorseful, now claims to have acted when he was out of control, in an alcoholic blackout, to have not known what he was doing.  But really, the prosecutors say, he knew.  He turned up the volume on the TV to cover her screams.  He tried to clean up before the cops arrived. He denied it all at trial.

And anyway, he chose to be an alcoholic - or at least chose to be an alcoholic who didn't get treatment, who didn't acknowledge his problem even when courts ordered him to admit he was an alcoholic and get treatment.

And sure, he claims to be good with kids.  Other people said he was.  Not this one.  Not this time.

And so, they said he should be killed.  The jury said so in 1998.  No court has disagreed.  And now the Parole Board says so.  They issued their opinion today.  To the surprise of nobody much, they say he should be killed.

His arguments?  Nope. They write

• The Board rejects the argument
• Even if he was 
• The Board finds counsel's suggestion absurd
• The Board rejects the argument
• The Board rejects the argument
• The Board rejects the argument
• The Board rejects the argument

So kill him. Because, see, it was awful. And the jury got it right.

The dearth of mitigation in Smith's case contrasts sharply with the appalling facts and
circumstances of his crime. Smith took the life of an innocent six-month-old infant
while using the baby to sexually gratify himself. It is hard to fathom a crime more
repulsive or reprehensible in character. It is clearly among the worst of the worst.

Shrub, back in the days when he was signing off on Texas executions without actually knowing the arguments made in clemency petitions, used to explain that he had two questions.

1. Is the guy guilty?
2. Did he have access to courts to ask for relief?

It wasn't his job, you see, to second guess what the jury said.  Nothing about mercy or justice.  His job as the executive was to, well, execute.

The Ohio Parole Board has proved itself less consistent.  What moves them one time doesn't the next.  They'd claim, I'm sure, that they're making reasoned and individualized decisions, though they look a lot like arbitrary ones.  Regardless, their focus is never on mercy.  As juries are told they may not consider mercy, the Parole Board simply refuses to.

Clemency, from their point of view, isn't an act of grace, it's a matter of error correction.  If the jury got it right . . . .

• If he's guilty.
• And if no court has overturned the death sentence.

Steven Smith's is a particularly tough case.  Whether he intentionally murdered Autumn Carter or it happened accidentally, negligently, while he was viciously raping her, the crime was horrific.  Of course, if he didn't intend to kill her, then he wasn't technically eligible for death.  But the jury said he did.  And the Board believes he did.  

And since there was no mistake, no error to correct.

Which as I've said before is just wrong.  Oh, executive clemency is certainly available to correct errors.  But it's more, or it should be.  It's about mercy, about grace, about the spontaneous not-because-you-deserve-it-but exactly-because-you-don't.

Because there but for the grace of God.

Which Governor Kasich seems sometimes to understand even if the Parole Board can't imagine why.

Steven Smith's execution is scheduled for May 1. 

   Steven Smith Clemency Report

The Parole Board Speaks: An Ustaszewski Update

The other day I wrote about Michael Ustaszewski, up for parole from the 1977 murder of Henry Cordle at the Y in downtown Toledo.  It's a murder he has spent 35 years denying he committed, denials that might or might not be true.

Actually, parole was in the works for him until members of Mr. Cordle's family and the county prosecutor objected.  The objection led to a full hearing before the Parole Board yesterday. 

Jennifer Feehan, in today's Blade, quotes Ian Engish, Assistant Lucas County Prosecutor who spoke at the hearing.

While state statistics indicate inmates convicted of aggravated murder have been paroled in the last decade after serving 25 to 27 years, Mr. English said in his mind the 35 years Ustaszewski has served isn’t enough.

“When you murder someone, you should spend your life in prison. Period,” he said. “Thirty-five years is a long time for Michael, but the victim is dead forever. He doesn’t come back and start enjoying his life, enjoying his grandchildren, hanging out with his great-grandchildren.” 

One of Mr. Cordle's grandchildren, commenting on my post, wrote
MR CORDLE WAS MY GRANFATHER AND HE DID NOT DESERVE TO DIE THAT HORRIBLE DEATH. WHETHER HE ACTUALLY STABBED HIM OR NOT, HE LEFT HIM THERE TO BLEED TO DEATH. THAT IS MURDER!!! I AM 65 YEARS OLD AND TRY TO LET GOD HANDLE THIS, BUT TODAY I AM HURTING AND AS FAR AS I AM CONCERN HE NEEDS TO STAY IN PRISON.
The Parole Board disagreed.  After the hearing, the Board granted Parole.  Feehan again.

JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction, said Ustaszewski would be released from Marion Correctional Institution on April 22, assuming his plans for housing and placement are approved by then.

The board, she said, cited Ustaszewski’s “assessed low risk, appropriate programming to address his risk, positive institutional adjustment, and supportive release plan” in granting parole.

If plans for housing and placement are approved (Parole is not without strings), Ustaszewski will be released on April 22.

If You Didn't Kill Before, How Can You Kill Again?

He has done nothing to address the mental deficiencies that put him into prison.  He can't.  He won't admit he's done wrong.  He's defective. He's a killer.

That's Ian English, an assistant Lucas County prosecutor quoted by Blade reporter Jennifer Feehan about Michael Ustaszewski, convicted of a murder he claims (and has always claimed) to have had nothing to do with. 

The crime was, of course, horrible.  74-year-old Henry Cordle was apparently a good man, a widower with 6 children.  Feehan says he was staying at the Y in downtown Toledo while work was being done on his house because he didn't want to burden his children by staying with one of them.

Michael Morris, then 19, perhaps along with Ustaszewski, went to his room to rob him.  Cordle ended up dead.  He'd been stabbed ("sliced and slashed," in Ian's words to Feehan) 37 times.  None of the wounds was fatal.  He bled to death.  Morris said that Ustaszewski was the killer.  They were both convicted of murder and sentenced to life in prison, both eligible for parole after 15 years.  Both remain in prison.

Morris has his next parole hearing in about 18 months.  In October, after reviewing prison records and meeting with Ustaszewski, the Parole Board recommended that be paroled.  But the prosecutor's office and some surviving members of Cordle's family objected,  so the Board will hold a full hearing.

Mr. English said Ustaszewski has offered no sympathy and expressed no remorse, nor has he admitted guilt.  If Ustaszewski is released, he will kill again, the assistant prosecutor said unequivocally.

He'll kill again if he's released.  

I suppose that's possible, though whether he'll kill again depends a whole lot on whether he killed before.  And whether he'll kill at all if he's released?  Ian's been a prosecutor for a number of years now, but he's not a seer.  Nor is he a psychologist or psychiatrist.  And even the shrinks don't mostly know what they're talking about when they make predictions on future dangerousness.

The truth is that people change.  Kids of 17 and adults of 53, they're not the same people.  35 years in prison changes people, too.  It's not always change for the better, of course, but that's a different point.  Whoever Michael Ustaszewski is now, he's a different person than he was then.  And that's true whether he killed Henry Cordle or not. 

Ustaszewski, who was a juvenile deliquent and had done time before Cordle was killed told Feehan that Ian's prediction is just wrong.

He really doesn’t know me. Thirty-five years is a long time from being a juvenile, and I believe I’ve grown up a whole lot, and my thinking is not the same. My mind-set is totally the opposite of what it used to be.

I have no idea whether Ustaszewski is factually guilty.  I don't know what happened that day in August 1977 when Henry Cordle was murdered.  I don't whether Ustaszewski ever killed anyone or is likely ever to kill anyone in the future.  I do know, though, something about pop nostrums.

I know that the idea that you can predict what someone will do after the age of 53 based on whether he admits or expresses remorse for something he denies having done when he was 17 is a fantasy. Yet that's the prosecutor's position.  Oh, and that the crime was really awful.

The family's is different.  For them it's not about danger.  It's about, well, you can call it what you want.  Feehan again.

Mr. Cordle’s six children have all since died. Shannon Orosco, 41, said she and her older sister will travel Thursday to Columbus on behalf of their mother, and more importantly for their grandfather, who died in such a horrible way. She said she does not think 35 years is enough for the man convicted of his murder. No amount of time is enough.

The Parole Board claims its only interest is public safety which would make Orosco's position irrelevant.  It's not.  Oh, I'm not saying the Board doesn't care about public safety.  Convince them you're harmless and you've gone a long way toward getting a recommendation of release.  But you've also got to convince them you've paid sufficiently for your crime.  

“He murdered somebody. He does not deserve to walk out through [the] gates,” Ms. Orosco said.

Which has nothing to do with public safety but has an awful lot to do with how the Board will rule.  Just ask Bret Vinocur.  Feehan did.

Bret Vinocur, a victims’ advocate who runs the Web site blockparole.com, routinely works with victims’ families to keep their loved ones’ killers in prison.

He said he took a look at Ustaszewski’s case in October, as he does with most aggravated murder cases that come before the Ohio Parole Board. He decided it wasn’t one he could put his heart into because he didn’t feel absolutely certain of Ustaszewski’s guilt.

“Based on the facts of the crime, and what I’ve read and the research I’ve done, this is a case where I’m going to put my faith in the parole board to make the right decision,” Mr. Vinocur said. “This is one of the rare cases we’re not taking a position on.”

Notice it's not about danger.  If he was sure Ustaszewski did it, he'd be fighting to keep him in prison. Instead, he's hoping the Board will do the right thing.  Which is?

Hmm? 

Here's how it works.  Ustaszewski has a sentence of 15 years to life.  The Parole Board gets to decide how much of that time he should serve.  He was first eligible for parole when he'd served considerably fewer than 15 years.  Because he'd been convicted of murder, it was a given that he would be denied.  Not because he was dangerous.  That wasn't even a serious consideration.  Because the Board doesn't think even 15 years is a long enough for murder.  After that?  

According to the Ohio Department of Rehabilitation and Correction, the average prison stay for Ohioans convicted of aggravated murder ranged from 25 years to 27 years for inmates paroled between 2000 and 2010.

Of course, most of them fess up at some point.  Factually guilty or not, they know that an admission can be a ticket home.  Some folks, though, out of stubborness, pride, stupidity, whatever, won't board that bus.  Sometimes, of course, it's out of honesty.  You know, they really are innocent and just won't lie about it.

When asked what he’d say if the parole board told him he could go free today if he admitted his guilt, he didn't hesitate. “I’m not guilty,” he said quietly.

Which can be something of a problem.

The Parole Board hearing is scheduled for this Thursday.

H/t M. S. Embser-Herbert

Dissing the Parole Board

The Board rejects the contentions advanced by Treesh's counsel that Treesh has significantly grown and improved as a human being since coming to prison and that he is two different people on and off drugs.  Treesh's institutional conduct throughout his incarceration belies counsel's contentions. So too does his recent refusal to be interviewed by the Board in advance of his clemency hearing.  Treesh's behavior including the gross disrespect he has repeatedly directed to prison staff, is indicative of a self-indulgent, petulant, and immature individual who lacks respect for authority, who is uninterested in conforming to ordinary rules of decorum; and who lacks sensitivity to the dignity and sensibilities of others.  That Treesh displays these negative qualities in prison, a structured and sober environment, strongly suggests that this is simply who Treesh is, with or without the intoxicating effects of cocaine.

Ohio Parole Board, Death Penalty Clemency Report on Frederick Treesh (Feb. 8, 2013) (emphasis added).

Fred Treesh isn't the first of Ohio's soon-to-be-executed who declined the opportunity to be interviewed by the Parole Board.  He is, I'm pretty sure (I'm not going back to read through all the reports just to check), the first to have his refusal be a formal part of the reason for urging the Governor to let him be killed.

I've never met Fred Treesh.  I can't speak to the substantive merits of whether the Parole Board's decision reflects accurately what happened that summer day in 1994 when Henry Dupree was shot to death.  I can't fairly address whether the jury got it right when they said he was the actual killer.  I can't tell you whether his Miranda rights were violated in any meaningful way.  All I know is what the courts have said, what the Parole Board said, and how the process works.

The jury said he's guilty and should die.  The trial judge agreed.  The court of appeals agreed (though not unanimously).  The Ohio Supreme Court agreed (they were unanimous, though Alice Robie Resnick only signed onto the conclusion, not the opinion).  The federal courts didn't find any reason sufficient to grant him any relief.  

The Parole Board, as always, finds all that meaningful, which of course it is.  Had the jury or one of the reviewing courts said otherwise, Treesh wouldn't be on death row and the Board wouldn't be deciding whehter they think he should be killed.

Really, it's the process though.  Here's how it works.

In the ordinary case, to get the governor to grant or deny clemency, the prisoner files an application with the Parole Board which then . . . blah, blah, blah.  It doesn't matter.  Death penalty cases aren't ordinary.  As they say, death is different.  This is just another way.  After all, the families of the murder victims have to have another formal opportunity to vent.

When it gets close to a serious execution date (Treesh is scheduled to be murdered March 6), the Parole Board begins proceedings.  Don't file a petition?  Doesn't matter.  Don't want the governor to intervene? Doesn't matter. Actively want to be killed? Doesn't matter.  The Parole Board will hold a hearing.  (Of course, if the prisoner is desperate for relief and wants a hearing, he'll get one, too. 

They don't bring the guy to the hearing.  Instead, there's an interview.  Assuming the condemned is willing to speak.

Some are.  Sometimes they talk about how they've taken responsibility for their crimes and turned their lives around.  They may talk about how sorry they are and express sympathy for the family and friends of whoever they killed.  They may talk about religion.  Or they may deny or deflect full responsibility.  They may claim innocence or diminished capacity.  Blame it on the drugs or the psychosis.  They may ramble off into a world of self-serving fantasy.  They may talk about a corrupt process or just point out as Jim Filiaggi did, that the whole process is a farce.  

Frankly, there's little evidence that the Parole Board cares much what they say.  If they express remorse and claim to have changed, it's just self-serving pap designed to save their lives.  If they say they're innocent or less than fully guilty, well that's a denial of responsibility.  It's not that the Board always favors killing.  It's that these interviews don't seem to matter much (though the Board's reports summarize and then reject them in some detail).

There are also written submissions and oral presentations.  Sometimes there will be films.  The prosecutor and an assistant attorney-general will speak and explain why the guy should be killed.  Victims of the crimes or the relatives of the dead guy may speak and urge more killing.  The condemned man's lawyers can speak and put on a show too.  Sometimes they do.  

Then the Board goes away and a bit over a week later they issue a report.  Whichever members of the Board were at the hearing vote.  They all sign the report.  Which the governor can rely on or reject or simply ignore.

There's nothing particularly unusual about Fred Treesh's case.  Less than fully responsible, disproportionate sentence, rush to judgment, rights violated, drugs and psych problems, by today's standards it's a life case, and he's a different person today than he was 18 years ago when the judge sentenced him to be killed.  No compelling reason to be merciful.  He doesn't deserve mercy.  

[Insert here my standard rap about how mercy isn't something deserved; it's an act of grace; it's about us, not them. Sigh.]

And so they voted no, as they mostly do.  Unanimously.  Let him die.  

And they added, for I think the first time, that part of the way they knew he deserved to be killed is that he blew them off.  He wouldn't go to the fucking interview.

Off with his head.

   Treesh Clemency Report by  

The Best Interests of the State of Ohio

Historically, it has never been this Board's practice to parse and critique with the benefit of hindsight strategic decisions made by attorneys during the trial and other phases of the criminal process.

That's the Ohio Parole Board saying that it just doesn't care whether those facing death had competent trail counsel.  You know, as long as they're guilty.

Until this time.

29 years ago today, December 15, 1983, Ronald Post murdered Helen Vantz.  15 months later, on March 13, 1985, he was sentenced to be murdered for killing her.  His murder is scheduled for January 16, a month from tomorrow.

Yesterday, the Parole Board issued its opinion.

Post maintained he was factually innocent.  Oh, he drove the killer to the Slumber Inn where Vantz was killed, but he stayed in the car while Ralph Hall committed the crime.  Or so he claims.

It's a hard claim to make, a harder one to sell after repeated confessions and a plea of no contest (which is an admission of the facts alleged in the indictment - including that he personally killed her). 

The Board finds defense counsel's assertion that there remains lingering doubt about Post's culpability unpersuasive. The Board is not inclined to make a favorable recommendation for clemency on the basis of Post's alleged innocence as to the shooting. Post perpetrated a horrendous crime. Post took Vantz' s life, devastating the lives of her loved ones in the process.

And then there's all the stuff about how defense counsel were incompetent.  They fucked around at trial, argued with each other about whether their client should plead guilty or no contest - while he kept telling them he wanted to go to trial.  And while he got no benefit at all from a plea rather than a trial.  Post trial his lawyers just never got around actually to investigating.  Which the 6th Circuit said was shocking and noted that he'd been "failed by his attorneys," but hey, what the hell, he was guilty.  And maybe his lawyers somehow didn't know that the polygrapher they hired was also working for the state on the case or that the victim impact testimony they didn't object to was "clearly contrary to Post's interests and contrary to Ohio law at that time."

But hey, he's guilty, so none of that matters.

Except, of course, when it does.

There's a reason lawyers say that the correct answer to every legal question is 

It depends.

Because in the long run, you never know.  What's never happened before just might happen this time.  We can predict, but we can't know.  And so they said this.  Which, as you know if you read the quote with which I began, they've never said before.

While the representation afforded Post may have sufficed for purposes of many types of criminal prosecutions, it was not befitting a capital case. A capital case necessitates a level of attention and responsible tactical decision making commensurate to its gravity. After reviewing the relevant records and hearing the arguments presented at the December 6, 2012 clemency hearing, a majority of the members of the Parole Board concludes that the representation afforded Post throughout his prosecution and beyond did not rise to the level that society has come to expect in death penalty cases.

Historically, it has never been this Board's practice to parse and critique with the benefit of hindsight strategic decisions made by attorneys during the trial and other phases of the criminal process. The Board recognizes the challenging judgment calls that attorneys are repeatedly asked to make in capital cases. It is the rare case indeed where the totality of counsel's missteps and omissions will necessitate a favorable recommendation for clemency by this Board.
 
Nevertheless, a majority of the members of the Board find it impossible to overlook the glaring omissions, missed opportunities, and questionable tactical decisions made by Post's several attorneys. The various deficiencies in Post's representation, viewed in totality, call into question whether Post's death sentence was imposed through the kind of just and credible process called for by a punishment of this magnitude.

And five members of the Board said that Governor Kasich should commute Post's sentence from murder to death in prison (LWOP).

Because we ask, or at least we should ask, more of our system than that.  Because we shouldn't be killing people without them having had a fair trial. At least, not this time.

Of course, it wasn't unanimous. Five voted for clemency.  Three said he should die.

Executive clemency would not be in the best interests of the State of Ohio.

Really, that's what they said.  Like Ohio will suffer if Ron Post isn't murdered by a team of prison guards next month.  Which really is as stupid a claim as it sounds.

But that was, this time anyway, the minority view.

Now it's up to the Governor who has the authority to do whatever he wants.  I'd suggest that he do what the majority recommends, that he'd take seriously the failures of counsel and the system.  Theat he'd say, guilt be damned, this isn't 

the kind of just and credible process called for by a punishment of this magnitude.

And it's in the best interests of the state to hold to that idea.  If we're going to be killing people, we shouldn't just care that they're the right folks.  It should matter that we're scrupulous about ensuring that it was all done right.  Not with minimal fairness but with maximal.

Ohio's better than to kill Ron Post next month.  Even if he's guilty.

    Ronald Post Clemency Report