BECAUSE THE PROPER RESPONSE TO "JUMP" IS "HOW HIGH" - The UC Davis Edition

Photographer Lois Greenfield writes on her website

I can’t depict the moments before or after the camera’s click, but I invite the viewer’s consideration of that question.

Lois reminded me recently as we were talking about landscape and gardens and Central Park, that because an artist may be trying to improve nature, what may look natural may be entirely contrived. And yet (this was a subtext to what she was saying, I think), in the photograph, even the photoshopped photograph, there is always, at some level, the image.  Which is and carries its own truth.

Jean Luc Goddard once said that 

Film is truth at 24 frames a second.

Which makes something of the same point.

* * * * *

Come with me now to the campus of the University of California at Davis.  And meet Lieutenant John Pike.

There's the still at the center of the changing world.

And there's the video.

And there's the longer video.

To my eyes, the still is the most horrifying.  As they say on the internet, your mileage may vary.

* * * * *

When Reginald Brooks was executed in Ohio last Tuesday despite his mental illness and the state's almost 30 year effort to conceal just how crazy he really was, he spoke no last words.

But strapped to the table (it's not really a gurney), and as the murderers execution team members pushed the plungers that sent the pentobarbital that would kill him through the IV lines, he gave them the finger.

With both hands.

Had he been at Davis, they might have stopped the killing long enough to bring out the pepper spray.

Into the Abyss - A Review

I was going to write another post about the Rule of Law and the Law of Rule.  I was going to talk about the USA Patriot Act and John Yoo and waterboarding and drone strikes and secret memos and about the theory of what's been called the "Unitary Executive" and how it can get really nutty.  And maybe I'll do that one of these days.

But then I went and saw Into the Abyss, Werner Herzog's extraordinary documentary film.

Begin with gurney and a couple of bibles - one in English and one in Spanish.

Then a field of crosses.  A graveyard in Texas for those, a special one.  Here lie the remains of those the state killed.  Not all of them.  Just those who had nobody to claim the body.  And there, in front of this 21st Century boot hill, crosses behind him, stands the Rev. Richard Lopez, chaplain to the condemned.

The camera simply focuses on him as he speaks.  He tells of saving the life of a squirrel on a golf course by stopping his golf cart before running it over.  And he cries as he acknowledges that he cannot do the same for those whose ankle he holds as they are killed.  He doesn't know why God allows the death penalty he says in answer to a question from Herzog.  But he knows it's wrong.

Into the Abyss is an examination murder in the context of a single, horrible crime in Conroe, Texas, a small city north of Houston.  That's true, false, and misleading all at once, so I should explain.

In October 2001, Sandra Stoler, her son Adam, and Adam's friend Jeremy Richardson were brutally murdered by Jason Burkett and Michael Perry (or one of them) in order, it appears, so that they (or one of them) could steal Sandra's red Camaro.  Perry and Burkett were captured after a gun battle in a parking lot.  Burkett pleaded guilty and was sentenced to life in prison which will make him eligible for parole (not likely to get it, but eligible) after 40 years in prison.  Perry was put to death last year.

Herzog gives us often gruesome (yet oddly poignant in its quotidian detail) video from crime-scenes and shopping center cut with explanations by a lieutenant who was there and investigated the crimes explaining what happened.  Interwoven with that footage are the interviews that make the heart of the film.  With steady camera focused on the subject, Herzog speaks with those who are left.  

• He speaks with members of the families of the crimes' victims.

• There's Lisa Stotler-Balloun who talks of her love for her mother and brother and says that while she didn't much want to watch Perry being killed, but found that when he died a "great weight" was lifted from her.
  There's Charles Richardson who has tattoos of teardrops by his left-eye in memory of his dead brother and his dead sister.

• He speaks with Burkett, who claims to have been only tangentially involved.
• He speaks with Perry, just 8 days before he was killed by the state, and who claims to have had no real involvement at all.
• He speaks to members of their families.

• There's Jason Burkett's father doing life for murder and quite sure he and his son will both die in prison.  He seems to have matured, to care.  He blames himself for what his son did, for h
  There's Jason Burkett's wife, who met and married him since he went to prison and who is, somehow (she's coy about the details, but they're not hared to figure out), pregnant with his child despite the fact that they are allowed only to hold hands on her visits to him.

• And he speaks with Fred Allen, for 125 killings he was captain of the Texas execution team.  It was his job to strap down the condemned man's right leg.

And the camera again pans over the crosses.  Each cross bears an inmate number.  None, as Rev. Lopez told us, has a name.

If Texas dehumanizes, Herzog humanizes.

Herzog has a point of view.  He's unalterably opposed to capital punishment, and the film doesn't shy away from that perspective.  But it's no mere polemic.

These men and women, the living and the dead, victims all though not equivalent in their victimization, are Herzog's subject.  His unwavering camera never loses focus.  We never see Herzog himself though we hear his soft voice as he asks clear, hard, probing questions of his subjects who speak of love, loss, pain, joy.  And continually of God.  He lets them speak.  He listens.

It's said that he met each of his subjects only once, on the day he filmed them.  Once really was enough. 

The film's full name is Into the Abyss: A Tale of Death, a Tale of Life.  And it is that.

Into the Abyss tells of a crime and its consequences.  The particular crime, the particular consequences, are examined in detail.  But as Herzog hones in on those details, he captures the universal.

Tomorrow morning, the State of Ohio intends to murder Reginald Brooks.  The details are different.  The story's the same.

In the Room, the Women Come and Go/Talking of Michaelangelo

LET us go then, you and I,
When the evening is spread out against the sky
Like a patient etherized upon a table;
Let us go, through certain half-deserted streets,
The muttering retreats
Of restless nights in one-night cheap hotels
And sawdust restaurants with oyster-shells:
Streets that follow like a tedious argument
Of insidious intent
To lead you to an overwhelming question….
Oh, do not ask, “What is it?”
Let us go and make our visit.

It all happened near the end of the week.

• Judge Frost said he believes them.
• A nearly unanimous Ohio Supreme Court said they don't think any of it matters.
• Judge Emmert said he doesn't want to know, either.
• Dudley Sharp said he already knows, though much of what he knows is wrong.

And the days grew shorter.  And fewer.

I didn't want to write this post.  I've been resisting it, because one of the things everyone who pays even a little attention, and certainly everyone involved in it know is that you never really know what will happen. 

And indeed there will be time
For the yellow smoke that slides along the street,
Rubbing its back upon the window panes;
There will be time, there will be time
To prepare a face to meet the faces that you meet;
There will be time to murder and create,
And time for all the works and days of hands
That lift and drop a question on your plate;
Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions,
Before the taking of a toast and tea.

As I said, I didn't want to write this post.  I hoped I wouldn't have to.  And there is still time.

But it draws short.

On Friday, Judge Frost explained, that the State of Ohio seems to have got religion.

You'll recall that back in July, the judge explained that 

It is the policy of the State of Ohio that the State follows its written execution protocol,
except when it does not. This is nonsense.

More than just "nonsense."  Judge Frost said it violated the equal protection rights of Kenny Smith who was about to be executed.  And he called off the killing.  Now, several months later, and with a new protocol in place and Reginald Brooks due to be killed a week from Tuesday, the judge held several days of hearings and decided that he thinks they've come up with a system he can trust.  This time, he says, they seem to mean it.

This litigation has too often supported the inherent truth of the adage that those who
cannot learn from history are doomed to repeat it. With some caution, the Court today reaches the conclusion that the State of Ohio has apparently learned the lessons of its prior embarrassments and corrected its course in order to pursue court-ordered implementation of its latest written execution protocol.
. . .
After the Smith rebuke, it appears that the state officials involved have finally recognized that subject adherence to the protocol and too much discretion to depart from core provisions or safeguards are neither laudable nor constitutionally permissible approaches. Thus, “the perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol” appear to be relegated to the past, obviating the conclusion that Ohio’s execution practices offend the Constitution based on irrationality and disturb fundamental rights that the law bestows on every individual regardless of the depraved nature of his or her crimes.

Yeah, well, maybe.  Or maybe not.

And maybe we'll find out as the killings resume.  Which the Ohio Supremes seem to be just fine with.

Because on Friday, they refused three motions to stay the Brooks murder.

Brooks entry refusing stay

Which about covers it.

Should we hold off on killing him until we're sure he's competent to be executed as the Constitution requires?  No. Except Judge O'Donnell, and he alone, would wait for an appellate court to decide that one.

She we hold off on killing him until we've decided whether the evidence the state has just now revealed, after he's been in prison for getting on toward 30 years now entitles him to a new trial?  No, of course not.  O'Donnell doesn't think so, either.

Should we hold off on killing him while the commission established by this very court to figure out if we're doing the death penalty fairly and properly issues a report?  No.  Are you crazy?  Why would we do that?  Again, O'Donnell agrees with the rest of them.

Which puts it pretty squarely in the laps of the federal courts and Governor Kasich.  The Guv has proved himself surprisingly willing to not kill people over the last few months as he's commuted sentences and granted reprieves.  Perhaps I should be optimistic.  I'm not.

And indeed there will be time
To wonder, “Do I dare?” and, “Do I dare?”
Time to turn back and descend the stair,
With a bald spot in the middle of my hair—
(They will say: “How his hair is growing thin!”)
My morning coat, my collar mounting firmly to the chin,
My necktie rich and modest, but asserted by a simple pin—
(They will say: “But how his arms and legs are thin!”)
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse.

And then there's Texas.  Where it's looking more and more like it's up to the Governor who would be President.

The good people of the Lone Star State want to kill Hank Skinner on Wednesday.  At least, Lynn Switzer does.  Here's the very short version of the problem from Radley Balko at Huffington last week.  If they kill Skinner, he says,

[I]t may be the biggest travesty of justice in the modern death penalty area. That isn't necessarily because Skinner is innocent. He may be guilty. I don't know. The problem is that the state of Texas also doesn't know.

Well, yeah.  I've talked about Skinner a fair amount over the last couple of years.  There's this DNA he's been trying to have tested for the last 10 years.  For the last 10 years, the state has fought tooth and nail to prevent the testing.  He's been to the US Supreme Court over the damned DNA testing.  And he won his case.  The Texas Legislature f'rgodssake passed a law to ensure that he could get the DNA tested.  In response, DA Switzer asked the court to set a date to kill him.  Which it did.  This coming Wednesday.  This week, a Texas court said it didn't care about the new law.  No testing.  Let him die.

Dudley Sharp, a free-lance death penalty enthusiast, wrote in the Austin American-Statesman that Skinner is gaming the system with a last minute bid for a stay.  Of course, that bid has been going on for 10 years, and if they'd tested all the stuff back then, he'd either have been exonerated or killed years ago.  They refused.  It's not Skinner who's responsible for the delay.

And who's gaming what system?

Of course, Sharp makes clear that Skinner doesn't really want the DNA tested.  If only he'd ordered his lawyers at the time of the trial, they'd have had to test it, Sharp says.  Which isn't true.

Or he could have jumped up and demanded that the judge order the lawyers to test it, and of course the judge would have - or would have given him new, more compliant lawyers.

Anyone who does this work knows that ain't how it happens.  Sharp lives in a fantasy world, of course.  But then he's certain.  The details really don't matter.

Here's the truth.  If they'd tested the DNA 10 years ago, just like if they test it now, one of three things happens.

1. It proves Skinner is innocent.
2. It proves Skinner is guilty.
3. It proves to be inconclusive.

So now let's look at Texas and Lynn Switzer and why there's this unwillingness to test the DNA.

Is it because they're sure he's guilty and the DNA will prove it and it's been worth 10 years of legal wrangling and expense and bad publicity because they don't want proof that will lay public suspicions to rest but would rather have it look like they're callous and don't give a shit about killing a maybe innocent guy?

I don't think so.

Here's what I think, and it's the only even close-to-rational explanation:  They're afraid it will prove he didn't do it.  And then they've got a guy they've been calling a monster and trying to kill for about 16 years now and damn will they look foolish.  So better to trust the jury and kill him than take a chance.

Leonel Herrera said he was innocent and shouldn't be killed, but Texas was adamant.  In 1993, the Supreme Court said

Bah, humbug.  Let him die.

And Harry Blackmun dissented.

I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. See Colemanv. Thompson, 501 U. S. 722, 758-759 (1991) (dissenting opinion). See also Coleman v.Thompson, 504 U. S. 188, 189 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U. S., at 343-345 (opinion concurring in judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Perilously.

The Court of Criminal Appeals can grant a stay and order testing.  So can the governor.

Or they can, in effect, join Lynn Switzer on the hypodermic's plunger.

For I have known them all already, known them all:
Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;
I know the voices dying with a dying fall
Beneath the music from a farther room.
So how should I presume?
And I have known the eyes already, known them all—
The eyes that fix you in a formulated phrase,
And when I am formulated, sprawling on a pin,
When I am pinned and wriggling on the wall,
Then how should I begin
To spit out all the butt-ends of my days and ways?
And how should I presume?
And I have known the arms already, known them all—
Arms that are braceleted and white and bare
(But in the lamplight, downed with light brown hair!)
Is it perfume from a dress
That makes me so digress?
Arms that lie along a table, or wrap about a shawl.
And should I then presume?
And how should I begin? .      .      .      .      .      .      .      .
Shall I say, I have gone at dusk through narrow streets
And watched the smoke that rises from the pipes
Of lonely men in shirt-sleeves, leaning out of windows?…
I should have been a pair of ragged claws
Scuttling across the floors of silent seas. .      .      .      .      .      .      .      .
And the afternoon, the evening, sleeps so peacefully!
Smoothed by long fingers,
Asleep … tired … or it malingers,
Stretched on the floor, here beside you and me.
Should I, after tea and cakes and ices,
Have the strength to force the moment to its crisis?
But though I have wept and fasted, wept and prayed,
Though I have seen my head (grown slightly bald) brought in upon a platter,
I am no prophet—and here’s no great matter;
I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and snicker,
And in short, I was afraid.
And would it have been worth it, after all,
After the cups, the marmalade, the tea,
Among the porcelain, among some talk of you and me,
Would it have been worth while,
To have bitten off the matter with a smile,
To have squeezed the universe into a ball
To roll it toward some overwhelming question,
To say: “I am Lazarus, come from the dead,
Come back to tell you all, I shall tell you all”—
If one, settling a pillow by her head,
Should say: “That is not what I meant at all;
That is not it, at all.”
And would it have been worth it, after all,
Would it have been worth while,
After the sunsets and the dooryards and the sprinkled streets,
After the novels, after the teacups, after the skirts that trail along the floor—
And this, and so much more?—
It is impossible to say just what I mean!
But as if a magic lantern threw the nerves in patterns on a screen:
Would it have been worth while
If one, settling a pillow or throwing off a shawl,
And turning toward the window, should say:
“That is not it at all,
That is not what I meant, at all.” .      .      .      .      .      .      .      .
No! I am not Prince Hamlet, nor was meant to be;
Am an attendant lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous—
Almost, at times, the Fool.
I grow old … I grow old …
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind? Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.
I do not think that they will sing to me.
I have seen them riding seaward on the waves
Combing the white hair of the waves blown back
When the wind blows the water white and black.
We have lingered in the chambers of the sea
By sea-girls wreathed with seaweed red and brown
Till human voices wake us, and we drown.

From "The Love Song of J. Alfred Prufrock"        by T.S. Eliot

Threading the Needle

In 2002, the Supreme Court said that it was unconstitutional for the government (state or federal) to murder people with mental retardation.  In 2005, the Court said that it was unconstitutional for the government to murder people who committed their crime before they were 18 years old.  In 2008 the Court said that it was unconstitutional for the government to murder people who weren't themselves guilty of some form of homicide.
It's just a matter of time, it seems, before the Court carves out another category of people the Constitution says can't be mudered by the government.  There seemed two obvious sets of folks for the Court to save next.

1. The factually innocent.
2. The really, really crazy.

In some sense, the second category of people has already been taken off the table.  Back in 1986, in  Ford v. Wainwright (and see here), the Court said that it was unconstitutional for the government to murder people who, in the words of Justice Powell,

are unaware of the punishment they are about to suffer and why they are to suffer it.

But that's a really narrow measure.  We describe them as not insane (which is the word Ford used) but as "incompetent to be executed."  It excludes lots of the people who one death penalty lawyer described as

the really fucking crazy.

Which brings us to Reginald Brooks.  And to the Parole Board's decision, announced this morning.

Brooks suffers from mental illness, but not to the degree that it was the cause of the offense, and also not to the degree that he does not understand why he will be executed. . .  . [His] Brooks' mental health issues do not outweigh the significant aggravating factors
present in this case.

Did I mention that Brooks was tried and sentenced by a three-judge panel?  Did I mention that one of the three judges told the Parole Board that if he knew then what he knows know about just how crazy Brooks was - knows now because the state after nearly three decades of hiding that information finally revealed it - he would have voted for life rather than death?  Did I mention that if he'd voted for life Brooks could not have been sentenced to die?  Did I mention that the Parole Board didn't find that a consideration in its decision?

Too crazy to let him live.  Not crazy enough to keep him alive.
Brooks Clemency a 179740