Take Me to Your Fjord

Oh to be in Norway now that winter's nigh!

Well, maybe not.*  Nothing against Norway which has many fjords to recommend it and which I'd actually like to visit someday, but there is much to keep me occupied here.  Still, anywhere that can yield this headline to an AP story in the Gray Lady is worth attention.

Norway: Killer of 77 Was Insane During Rampage, Prosecution Says

I mean, really?  The prosecution says he was insane?  The prosecution? The fucking prosecution says he was nuts?

Here it's a full scale battle.  Consider Anthony Sowell, convicted killer of 11.  He kept the bodies in and around his home for years.  His lawyer, John Parker, explained to the jury that

[A]nyone who lives in a house for two years with the rotting remains of his murder victims must have a mental problem.

Which seems kinda self-evident to me, though the prosecutor disputed it.  As I said in full snark, quoting the AP report on the jury argument,

Assistant prosecutor Pinkey Carr said Sowell deserves to die for his crimes and responded to the comments about his mental condition by saying: “He’s crazy like a fox. He’s evil.”

See, it was all carefully done so that someday when he was prosecuted for the killings he could argue that he must have been insane.  But, nah.  Criminal mastermind.

Which is, of course, bullshit.

But it's the prosecutorial mindset.  And, oh, yeah, it's also our law.

Here's the Ohio statute on being not guilty by reason of insanity (which we call NGRI for simplicity).**

A person is “not guilty by reason of insanity” relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.

Of course, that's not the same as just being crazy as a bedbug.  And actually Parker was arguing to the jury that they ought to spare Sowell's life, not find him NGRI, so the standard isn't perfect but you get the point.  Sowell was clearly nuts.  Just not legally nuts so as to be locked up in what used to be called an insane asylum for the rest of his life instead of locked up in prison until the state gets around to murdering him.

But back to Norway for a minute where the standards make some sense and where the prosecutor actually said they applied.  Here's the test as I understand it from the media (and I'm summarizing, not quoting).

Was the person psychotic at the time of the offense? That is, was he acting under gross delusions about reality so that he didn't ?

Now, that's something less than, say, he thought he was playing ping pong but was in fact raping and pillaging.  But if you're talking about criminal responsibility it makes some sense.  If a person is so out-of-touch with reality that he has no grasp of the world, how can we say he's fully responsible for his acts?  Well, we can in this country because we do.  (Or is it that we do because we can?) But not in Norway.

Naturally, we're horrified by the Norwegian approach.  Debra Saunders in the San Francisco (yes, that San Francisco) Chronicle.

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Of course, another reason might be because the experts spent a whole shitload of time examining him and concluded that he was psychotic and delusional which is the Norway standard.  Here's the AP story in the Times again.

The court-ordered assessment by two psychiatrists found that Mr. Breivik, 32, an anti-Muslim militant, was psychotic during the attacks. It will be reviewed by a forensic panel before the Oslo district court rules on his mental state. 
The conclusions contrasted with earlier comments by the head of the review panel, who said in late July that it was unlikely that Mr. Breivik would be declared insane because the attacks were so carefully planned and executed. But prosecutors insisted that the psychiatric report described a man living in a “delusional universe,” a paranoid schizophrenic who had lost touch with reality.

But then we don't care about that.  (See my earlier post on the Norwegian horror in which I explored Professor Thane Rosenbaum's lament that our criminal justice system doesn't channel Nancy Grace on guilt and punishment.)

Which brings me to the second point (or is the third).

Scott Greenfield this morning wrote about Fordham Law professor John Pfaff's post over at prawfsblawg discussing the ability of juries to deal with conflicting scientific evidence.  Here's the short version of the problem, and in fact it applies to everything that passes for expert testimony.

The bedrock assumption of our jury system (criminal, but civil too, by the way) is that the collective wisdom of 12 ordinary folk can tell when a witness is lying (or reporting on misperception) and when one is telling the truth based on watching and listening to the witness testify on direct and then on cross-examination. Whether or not that's true, direct testimony and cross examination will not help jurors accurately figure out whether computer models that show global warming will end civilization as we know it within 100 years are more accurate than computer models that show it will have no substantial effect.

That is, expert testimony is so different in kind from other testimony that when experts disagree, juries can only guess.  Hell, if the scientists can't agree about global warming, how can we expect the jurors figure it out.

Which means, really, that if the experts disagree on an element of the offense, it clearly can't really have been proved beyond a reasonable doubt since that would mean the other (court-certified) expert was offering an unreasonable (and therefore improperly admitted) opinion.

And of course that means that our system is wholly fucked, which you knew anyway (or knew I thought so, at least, if you've been reading this blawg for a while - and if so, how come you didn't convince the ABA to make me a finalist in the blawgoff?  But I digress).

It's a simple point, made more complicated by Pfaff's  effort at quantification and invocation of Rumsfeld Koan.***

Of course, juries are already free to find a “known unknown” if they wish. I want to push the issue further: as a matter of law, should we compel such a non-finding? Even before getting to questions of jury competence, is there some sort of particularly important meta-evidence we get from credible dueling experts? Does the very inability to agree suggest, at least in criminal cases, that as a matter of law there is no fact for the jury to find? We know that we don’t know, and it is unreasonable to argue that you do know in such a setting.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Really, it wouldn't matter if they jurors all held doctorates in the relevant field. If the goal is to determine with which of two conflicting reasonable opinions is unreasonable (which when you think about it is precisely what we ask jurors to do in evaluating expert testimony) the only possible answer is neither and therefore the point isn't proved adequately.

There is, of course, a reason the public sneers at expert testimony.  Don't believe they do?  Consider New Mexico where in 1995 a proposed amendment to a regulatory bill for psychologists was actually passed by the state senate.

When a psychologist or psychiatrist testifies during a defendant's competentcy hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.

Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant's competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Honest.

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

* I was all set to do some snark about the weather.  In fact, I began with this:

I'm no fan of warm weather (once it hits 70 I want to put on the A/C), and I'm a big fan of cloud cover rather than sun (had god wanted us to be up and out during the day, she'd never have invented the light bulb).

Then I was going to say that living in Helsinki would be like living in a house we rented one fall semester in Pittsburgh when we were in college, back in the days of the ancien régime. Among other unlikely features, the place that had big holes in all the outside walls where the landlord really intended to put windows some day.  I remember one December night, wind whipping through the place, snow settling on the furniture, me sitting on the floor in front of the stove with the oven set at 500 and the door wide open to let some of the heat into the kitchen, bundled up in winter coat and gloves, typewriter before me, trying to type a paper.  Except I looked up Helsinki weather to stick in some numbers and it turns out that Helsinki actually has a pretty fair climate so the hell with it.

** I'm quoting Ohio although the standards differ from state to state and off to the feds, but Ohio's test is within striking distance of the others.

*** Reproduced here from Hart Seely's "The Poetry of D.H. Rumsfeld" at Slate.com.

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know.

Now What? It's Up to Ted

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

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

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

Joseph Conrad, Heart of Darkness.

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

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

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

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

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

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

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

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

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

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

The case is a mess.

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

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

Still.

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

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

Set him free!
Off with his head!

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

So this is what it comes to.

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

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

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

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

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

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

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

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

But

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

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

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

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

They went on.  Read it yourself.

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

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

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

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

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

But the horror! The horror!

Except the real horror?

That's in getting it wrong, Ted.

That's in getting it wrong.

Do They Really Believe This Stuff?

I was in a waiting room across from the death house at the Southern Ohio Correctional Facility. My client had just been executed, killed by the state of Ohio. I hadn't represented him at trial, hadn't been the one, as we say in this business, to put him on the row. But I hadn't gotten him off, either. And now he was dead. I wasn't a witness to the killing, but I'd seen the body in the body bag wheeled out of the death house and into the hearse.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said

You did all you could

Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I'd tried my best and they appreciated that. And I said to each of them, "Thank you." Because what else can you say. But you know, there's no comfort in those words.

It's not that they're empty. They're meant sincerely, the motive is pure and the sentiment is all positive. But that's from the speaker.

At your end, when your client has just been murdered and you've been powerless to prevent it, the only answer is that if this is all I could do, then I'm not good enough. And if it wasn't all I could have done, then I'm neither good enough nor diligent enough.

Eventually, you either shrug it off and go on or you give in to the guilt and the agony. If it's the latter, you drink too much or take drugs or abuse your partner or your kids or (maybe it's and) you kill youself - another victim. If it's the former, you vow to be a better lawyer.

It's not just executions. Every case we don't win where we think we should, every fight that could have been won, every time we strap on the metaphorical gunbelt.

For days now, Norm Pattis has been agonizing on his blog (here and here and here, for example) about the murder case he's been trying.

As I say, I understand. All of us who've been there, understand. The cases are about the clients. But the agony is about us, too. Our adequacy, our skills, our competence.

If I've got the plot right, his client shot two women in his kitchen, one in the head at point-blank range. That woman died; the other lived. The claim was, as I understand it, self defense. The jury was out a long time. And there is now a partial verdict. The jury resolved the lesser offenses against his client. It hung on the murder and attempted murder.

Some might call that a win. After all, his client wasn't convicted. Norm is, I think, seeing it as not even a draw but a loss. (His take on it is here.) The agony and uncertainty continue for the client, for the family and friends of the deceased, for Norm. The State, he thinks, will want to try his client again.

Wait, the state's going to try him a second time for murder? Isn't that, well, unAmerican?

Norm bemoans this.

If the law was about justice, my client would not face another trial. We tell jurors that the presumption of innocence is a complete defense. We tell them, too, that the entire burden of proof is on the state. A verdict, we say, must be unanimous. Query: since the state failed in this case to win a conviction on murder, relying on a silly Sapphistic argument about "we women" and jealousy, why does it get to try the case again? If the answer is that the jury failed to make a unanimous finding of "Not Guilty" that sounds perilously close to imposing a silent burden of proof on my client.

He's right of course. It does seem an awful lot like saying the defendant has to convince 12 jurors that he's innocent. And if it were that, it would be unconstitutional. But strictly speaking that's not right. The state has to prove to 12 that he's guilty. It failed, just not badly enough to end the nightmare.

But wait, isn't there something exactly about this in the Constitution? There is, of course. It's the Double Jeopardy Clause, right there in the Fifth Amendment:

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

That's exactly what happens when you're tried a second time for the same crime, isn't it?

The answer, alas, is "No." Oh, that's not the sensible answer, not the answer of real people in the real world. Instead it'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. Here's the rule: Even though the judge sent the first jury home, they then called a new jury and started over, the new trial is still the same trial.

OK, maybe there is a kind of goofy kind of almost sense to the idea that if the jury hasn't come back with a verdict, the process isn't over. But that takes us back to Norm's point. The government has the burden of convincing 12 people that the defendant is guilty beyond a reasonable doubt. Assuming the jurors capable of reason and people of good will earnestly attempting to do their job, the government failed. The inability of the jury to agree on guilt is, by ordinary logic rather than the special kind they make up for these things, pretty much incontrovertible evidence that the government didn't prove guilt beyond a reasonable doubt.

Except in the wholesale fantasy land of the legal system, that's how it should work, and how it would. It's what we'd expect. And it's what doesn't happen.

They say that law school is the place where you learn to "think like a lawyer." Still the White Queen managed to believe as many as six impossible things before breakfast even without that training.

The Dead Innocent Guy

Among some (many? a few? one lady in Dubuque, Iowa?) abolitionists, I'm known for disliking claims of innocence.

Frankly, I'm never even sure what it means.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.

We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law.

Innocence, you see, is not as simple a thing as it sounds.

That's why the exoneration lists are so controversial. The Death Penalty Information Center maintains what you might think of as the master list of people exonerated from death row. The current total is 135. That's a useful number we abolitionists like to bandy about, but as retentionists point out, it's a list of the legally exonerated, not necessarily the factually innocent, the wrong guy, the we just flat out got it wrongs. As Ward Campbell points out in an over-the-top but not entirely wrong condemnation of the list, it can't fairly be taken as a who's who of the innocent condemned.

Many of the cases abolitionists like to tout, Mumia Abu Jamal is a prime example, simply don't prove the claim. I mean, he may not have done it. But he may. Here in Ohio, John Spirko spent a couple of decades on death row for a murder that, frankly, there's no credible evidence he committed. But the absence of evidence of guilt isn't the same as actual proof that he's the wrong guy.

I like, in this context, to talk about O.J. and the glove. (You know, the one that if it didn't fit you had to acquit.) Let's assume the cops planted it. Does that mean he didn't kill Nicole? Most of the time when the cops lie and make up evidence it's to make a case stronger against someone they believe (often correctly) is guilty. It's far less common - not unheard of, but less common - for them to fake evidence with the intent of convicting the innocent.

Finally, of course, there's the problem that when we put our eggs in the innocence basket, we risk a whole lot of cracked yolks.

Take Roger Coleman, please. He conned a whole lot of good, committed people into believing that if they could just test his DNA they'd get the proof of the dead innocent guy, you know the one Scalia says doesn't exist, the executed person who is incontestably innocent. The Commonwealth of Virginia fought for years to prevent the testing (which tells you all you need to know about how confident it was that the right guy had been killed). And then, well, turns out Coleman did it. As more than one Virginia capital lawyer said, Coleman gave innocence a bad name.

And yet we keep searching. The elusive incontestably dead innocent guy is a quest precisely because (a) we know dead innocent guys are out there and we have a pretty good idea of who at least some of them are; (b) when we find him, or her, we'll have the hard evidence of something that will sure look a lot like what Harry Blackmun called "simple murder"; (c) personalizing the dead innocent guy, not just "there's more than one out there," but "We killed that innocent man over there," will move people. As Josef Stalin said,

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

The movement from statistic to tragedy may be the movement from retention to abolition. Indeed, it was the execution of particular and demonstrably innocent men that led to abolition in Michigan more than 150 years ago, to abolition in England far more recently.

We have another candidate.

Cameron Todd Willingham was executed by the good people of Texas in February 2004 for the arson murder of his three children. In December of that year, the Chicago Tribune published the result of its review of the case and concluded that there was no credible evidence the fire was, in fact, arson. It could as easily have been an accident. The Innocence Project was next. It hired a panel of arson experts and concluded too, in a report issued in 2006, that Willingham was probably innocent and called on Texas to investigate. Last year, Texas agreed to investigate. And now we have the results. Here's how the Chicago Tribune's article begins.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

It's not that incontestable case of the dead innocent guy. But it's getting close. At some point the weight of the likely mistakes starts to weigh on you.

So now what? What will Texas do? Will it concede that it killed a likely innocent man? Will he get a posthumous pardon? Or will the state say that all these experts, including the one it chose to review the case, are blowing smoke, bury the doubts, airbrush out the warts?

I'm sorry to say that the smart money is on the smoke and the airbrush.

Hat tip to Grits for Breakfast.

What's in a name?

I recently finished reading Neil deGrasse Tyson's The Pluto Files: The Rise and Fall of America's Favorite Planet which explores the background to and public controversy over the decision to remove Pluto from the collection of things astronomer's call "planets" and confer upon it the lesser status, "dwarf planet." (Publisher's blurb here.) Then Dick Cheney, in his speech the other day explaining that Obama's embrace of American values would lead to the deaths of thousands, maybe hundreds of thousands, said, "You don't want to call them enemy combatants? Fine. Call them what you want - just don't bring them into the United States. Tired of calling it a war? Use any term you prefer." (Text of speech here.)

Whatever Pluto was, it didn't become something different when the International Astronomical Union changed its status. And Cheney is right that keeping prisoners locked up at Guantanamo without meaningful legal protections is the same whether you call those prisoners "enemy combatants" or, say, "forensic accountants" (or "detainees," by the way, which is a word I'm not using) and that war by any other name kills just as many people. Things are what they are, no matter what you call them.

As Juliet said,

What's in a name? That which we call a rose
By any other name would smell as sweet.

On the other hand, words do matter and what we call things makes a difference. If Juliet was right, so was Hamlet. So when Polonious asked what he was reading, Hamlet's snarky response was "Words, Words, Words." Well, sure. But the (non) answer, while perhaps true, also obscured and obfuscated. That's what Orwell was talking about in "Politics and the English Language." (Here.) And it's what he let us see in action through the "Doublespeak" of 1984.

"Enhanced interrogations" may have the same referent as "torture" in the context of waterboarding, but the insistence of various folks on the term of their choice makes exactly the point that the two aren't the same. Michael Ratner, president of the Center for Constitutional Rights, referring to Obama's plan to establish a system of "prolonged detention" in the U.S. for the prisoners at Guantanamo, said, "Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name.” (Quoted in NYTimes here.) So maybe it does matter what we call things.

But it also matters what we actually do.

And whatever we call holding people in prison forever without trial (or after acquittal, if that should happen), it's not something we ought to feel good about. Obama's insistence that he can do it consistently with "our values" is true or false, I suppose, based on what those values are.

Here's one that's been with us a long time: You're innocent until found guilty by proof beyond a reasonable doubt. It's enshrined in the Constitution. See In re Winship, 397 U.S. 358 (1970). It's tied to the presumption of innocence, a value with roots that apparently go back at least to Deuteronomy. (See discussion here.)

Here's another: If you're innocent, the government has no business holding you in prison forever.

So what's the real problem? What truth do we fear? That we can't actually prove these guys are as bad as we're quite sure they are? That our "proof" is based on evidence so shoddy that nobody would believe it? That our proof came only from torture which gives unreliable results so even we don't really know if it's right? Then maybe, just maybe, we ought to reconsider that "prolonged detention." Maybe we ought to acknowledge that what we're really dealing with, no matter how we try to pretty it up, is a star chamber and that we're just planning to keep a bunch of innocent people locked up forever 'cause, well, 'cause we can.

But consistent, of course, with our values.