Nobody Wanted Him To Be Killed

Leroy White

Well, Almost nobody.

The victim's family said he should get life.  The jury said he should get life.  The lawyer who prosecuted the case thinks he should do life rather than be executed.  But Leroy White was sitting on death row in Alabama.  Worse, the state was asking for an execution date, which seemed weird because he thought his case was on appeal. It wasn't, and they got the date.

White was on death row because Alabama is the only state that lets a judge override a jury's recommendation of life.  (Unlike, say, Ohio where a jury's vote for life is binding but a vote for death is a "recommendation" which the judge can, in theory, overrule.)  In White's case, the judge did that.

So White sat on death row, ran through whatever process Alabama offered, and then went into federal court.  No local attorneys for that, but attorneys from the Maryland law firm of Saul Ewing L.L.P. took up the case.  Then, in 2006, Ewing himself asked to withdraw since he'd been suspended from the practice of law.  Fortunately, another lawyer from the firm took up the case.  Unfortunately, that lawyer was James Benoit.

Benoit didn't do this sort of work.  He didn't realize that when the federal district court dismissed White's petition for writ of habeas corpus, he was supposed to appeal.  He didn't bother to talk to White or write to him about an appeal.  Or to mention that he was withdrawing from the case.  So he missed the deadline for filing an appeal.  

Enter Bryan Stevenson of the Equal Justice Initiative.  He filed for clemency laying out the story and attaching supportive letters from the victim's family and the prosecutor.

White Clemency

Neither the 11th Circuit nor the US Supreme Court were much concerned.  Brian Lawson in the Huntsville Times sets it out.

Both courts rejected the missed deadline argument, despite an affidavit by former attorney G. James Benoit of Maryland, who admitted withdrawing for unrelated work reasons and failing to tell White about it.
Benoit, who took over White's case after another member of his law firm was suspended from practicing law, said he doesn't believe he communicated with White during the time an appeal could be filed. He said he was unaware of rules that required him to file an appeal.
"At all times I represented Mr. White pro bono," Benoit wrote. "I formerly practiced transactional tax and corporate law and no longer practice law. I have never tried a case and have never been in a courtroom in my career."

It's January 13.  Leroy White is in a cell on death row.  Under death watch.  He's to be killed at 6 p.m.

At 4:30, they say no more visitors, no contact even with his lawyers.  SCOTUS issues a stay.  Nobody to tell White what's going on.  The stay is lifted.  At 9, they kill him.

There's nothing much new here.  White's story isn't much different from that of Cory Maples or Albert Holland or Michael Keenan in Ohio or far too many others.  Of course, for the moment, Maples and Holland and Keenan are still among the sort-of living.  Leroy White was murdered at 9 p.m. on January 13 of this year.

Clayton Crenshaw, Alabama Assistant Attorney General who heads the Capital Litigation Division of the office says it's no big deal.  After all, White didn't prove he would win an appeal, so what's the harm in not giving him one?  Crenshaw didn't say that there's no harm in just dispensing with trials and killing people when you arrest them unless they can prove that they would have been found not guilty, but the logic isn't much different.

Scott Greenfield, this morning, points to exhaustion with stories of police shootings and beatings and the like.  They fade, he says, "into an amorphous mass."   So with these tales.  Too many and they blur.  Stalin knew.

A single death is a tragedy. A million deaths is just a statistic.

So it's important to focus.  On the single death.

The jury voted to save his life.  The victim's family thought he shouldn't be executed.  The prosecutor thought he shouldn't be executed.  Leroy White was executed.  

Feel better now?

Bryan Stevenson put it better than I can.

The death penalty is not just about do people deserve to die for the crimes they are accused of, the death penalty is also about do we deserve to kill. If we don't provide fair trials, fair review procedures, when we have executions that are unnecessarily cruel and distressing, or if we have a death penalty that is arbitrary or political or discriminatory, then we are all implicated.

RULES IS RULES

More than twenty years ago, in Griffey v. Rajan (no free copy for a link, sorry), the Ohio Supreme Court set forth what you'd think might seem an fundamental principle of any decent justice system:

Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds.

In fact, courts (in Ohio and elsewhere) rely on that principle exactly to the extent they're so inclined. Griffey itself was decided on a procedural technicality, despite its announcement of the rule against doing that. The full sentence, omitting citations, says, basically that policy is the more important than procedure except when it isn't.

Although we are committed to the principle that Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds . . . , we refuse to let Civ.R. 60(B) [which would allow the merits to be heard] serve as an emasculation of the pleading rules and time limits.

The short of it is that there's no rule.

Which brings us, again, to the saga of Rommell Broom. (See here and here.) When last we dropped in on the case (here), the Ohio Supreme Court had decided to expedite its review of the case - which would give it time to decide and then stay the execution in order to permit a hearing. Friday afternoon, the court ruled. And in the great battle between technical procedure and merits, procedure won again.

The formal question was whether Broom should have a chance to use material that the state unconstitutionally hid at trial to show

by clear and convincing evidence that, but for constitutional error at trial, no reasonable trier of fact would have found him guilty.

Got that? Broom wants the chance to demonstrate that if the state hadn't cheated he couldn't possibly have been convicted. And remember, nobody is disputing the fact that the state did cheat, did violate the Constitution.

And the court said "No." Gee, you could have tried to use the material to show that years ago. Just because we seemed to say back then that you couldn't, well we didn't absolutely clearly say you couldn't, so it's too late now. The court didn't even say that he could have used the evidence back then, just that he might have been able to. And he had to have tried.

We might never have allowed you to try proving that you're innocent, but we're certainly not going to let you do it now. And then there's the throw away, almost a passing thought, certainly not the basis of the decision: Oh, you're probably guilty.

Justice Pfeifer concurred only in the result. He said that he looked at the evidence and it really wouldn't have made a difference. Otherwise, procedure be damned, he'd support the right to a hearing. And Justice O'Donnell, who didn't bother explaining why (didn't want to be pissing into the wind seems like one possibility) dissented and would have allowed the effort to prove innocence.

Years ago, I was arguing a case in the court of appeals. The issue involved some ambiguity about how judges were to impose sentence under Ohio's then new felony sentencing law. The reality was that if I won (which I did), my client would get resentenced and might (though not necessarily) get the same sentence again, this time properly imposed. One of the judges asked me why, if the ultimate sentence would probably be the same, the court of appeals was even involved. My answer was something like this:

Part of your job as an appellate court, is to make sure lower courts do their job right, and to tell them how to do it. My client is entitled to a fair sentencing procedure done in accordance with the law. If he gets that, maybe he'll get a lower sentence, maybe not. But he'll have gotten a chance. Rules matter and you have to explain what they are. But they matter not just for themselves but so that the parties get their chance. And you have to ensure that.

The judge looked at me from the bench and said

You know, I don't think I've ever said this before, I don't think I've ever even thought this before, but I agree with you completely.

When Alice asked Humpty Dumpty how he could "make words mean so many different things," she got a simple but dishonest answer:

"The question is," said Humpty Dumpty, "which is to be the master; that's all."

Words signify, they have meaning, not in themselves but toward an end. So with procedural rules. They matter not in themselves but because they provide a mechanism for reaching the merits of a case. When they triumph on their own, when they become the master, when we don't give Broom a chance to prove he's innocent now because he didn't make an effort to prove it at a time when it looked like he wouldn't be allowed to, the tail wags the dog.

Death, the courts tell us, is different. Damn straight.

Execution Tuesday.