No Small Thing

[A] criminal defendant is entitled to an effective defense, especially in a death penalty case.

So said Governor Kasich.  

And then he said the other part.  Not the one we're so used to seeing.  Not "harmless error."  Not "close enough for government work." Not "but fuck, the guy's guilty."

No, this time he said,

The Parole Board’s conclusion is that Ronald Post did not come close to receiving such a defense. After my own careful review, I agree.

Which is kind of remarkable.  As was the Parole Board's opinion.

Post is guilty and won't acknowledge it even now, the Board said.  But we still shouldn't kill him.  The Governor was less explicit, but he said the same thing.

Therefore I am ordering that he spend the rest of his life in prison with no possibility of ever getting out.

Of course, that was actually his situation before.  As I've said repeatedly here, the difference between a death sentence and LWOP is the manner and timing of death, not its place.  Both are sentences of death in prison.  It's not clear to me which is worse.  

Certainly some prefer the idea of being murdered.  Get it over with.  Kill me now. 

But as I also keep saying, these decisions aren't really about the condemned.  They're about us.

Life does not need to be made torturous.  But murder is, simply, murder.

The difference matters.

Ronald Post will not be murdered by the State of Ohio, in our names, to make us all feel better or something, on January 16.

That's no small thing.

And doing it not because he deserves it, but because fairness and decency demand it.

No small thing at all.

Thanks, Gov.

Now, about that plan to use tolls from the Turnpike to pay for construction in Columbus.

12.17.12PostCommutation

Post Warrant of Commutation

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