"We can be better than this."

William Garner is dead.

He was murdered this morning by the State of Ohio.

Shortly before the killing, Tim Young, the Ohio Public Defender, sent this statement to the staff of his office and the members of the Ohio Association of Criminal Defense Lawyers.  I reprint it here with his permission.

Today Ohio will kill William Garner.  This will be Ohio's 13th execution since 2008.  There have been two grants of clemency and two stays, including one botched execution during the same period for a total of 17 scheduled executions in that short time - second only to Texas.  During this period Ohio has moved to a one drug protocol and has already scheduled executions through March of 2011.  I have sent a message to the entire staff of the Office of the Ohio Public Defender for every execution and now include the listserv.  It is difficult to find words to express the dismay and disgust at such a history.  So, I say again:  Today, Ohio will kill William Garner.  That must have meaning.  That we as a society can come to this moment, the deliberate taking of life, and to be so crass and callous, that it is just another one of many. Please never forget the immensity of this moment, the horror of the act of killing regardless of the actor and regardless of the method, and never forget that we can be better than this.

William Garner.

Sixth Person Executed in Ohio this year, thirty-ninth since 1999.

Procedure Uber Alles

By this time tomorrow, William Garner will likely be dead.  He'll have been murdered by a team of prison guards at the Southern Ohio Correctional Facility in Lucasville.

There is, apparently, no question of whether he did, in fact, set the fire (or fires) that resulted in the deaths of five children.  He says he didn't intend their deaths (the state says otherwise), but he's lost that argument.  Either way, he bears responsibility for their deaths.

The question, though, is what sort of responsibility we're talking about.  And what's an apt response.

Maximum and death, says the state, of course.  That's why we're here today with another killing (the 6th as a consequence of the fire) intended (no question about that this time) for tomorrow morning at 10.

But you know, questions of responsibility and our response to the crime are worthy of serious consideration.

So here's what else is out there.  Garner is what they used to call "slow."  At the time of the crime, his lawyers claim and the state does not dispute, his mental age was, and remains today, around 14.  Now, we know that the Constitution prohibits the execution of those under 18.  (Roper v. Simmons.)  So does Ohio's death penalty statute.  (Ohio Revised Code Section 2929.02(A).)

The courts have interpreted both those provisions to refer exclusively to chronological age rather than mental age, but that's frankly senseless.  In fact, chronological age in this context is a proxy for mental age.  It's easier to check, surer to determine.  But we don't kill kids because it's wrong to hold those with insufficient maturity to control, understand, and appreciate fully responsible for their acts.  

Similarly immature adults should be treated the same.

Garner asks the Supreme Court of Ohio to agree.  At least, fairly to consider the question.

The state urges the court not to.  Why?  Two reasons:  The courts have never bought the argument before, and anyway, there's no proper procedure for the courts to decide the case.

You know, it gets tiresome.

Yes, there is a virtue to finality.  Things should be concluded.  Of course.  Enough is enough.  Yup.  Delay for the sake of delay.  Nah.

But there's finality and finality.  And there's nothing more final than what Ohio has planned for tomorrow morning.  Once that's over, it'll be too late to reconsider an ill-conceived rejection of the relevance of mental age, too late, at least, for Garner.

So why not pause and do it right, while there's still time?  Because procedure says he should be killed regardless of the merits of his claim.

When procedure becomes fetish that substitutes for good sense, fairness, and human decency, procedure becomes an outrage.  We saw it last week when the Ninth Circuit held in Lee v. Lampert that procedure trumps factual innocence.  Garner's case isn't about innocence, so maybe it's less stark.  But it's just as real.

Justice-to-be Kagan, in a rare moment of candor, acknowledged that being a judge sometimes involved judging things.  Being a justice on the Ohio Supreme Court, too.

Now's a chance guys.

Go for it.

UPDATE
To what I assume is nobody's great surprise, but to the deep disappointment of some of us, the Ohio Supreme Court has refused, without explanation, to hear Mr. Garner's appeal and argument.
One step closer to murder.

The Good, The Bad, and the Silly

Once again, there's too much going on and not enough time to write about it all.

The Troy Davis case leads the way as both Davis and the state of Georgia filed their closing arguments yesterday.

While Davis argues that he can't be executed because he's innocent, Ohio prepares to murder William Garner next Tuesday.

And then, of course, there are the alleged Russian spies who, it seems, didn't have any actual, you know, secrets.  But still.  Spies.  Russians.  In the Burbs?

* * * * *

Troy Davis is innocent.  No, he's not.

Wednesday, the briefs were filed.  (Troy's is here; Georgia's is here.)  The court ordered the parties to address five questions.

1. Whether, as a matter of constitutional law, the Eighth Amendment to the United States Constitution bars the execution of a petitioner who has had a full and fair trial without constitutional defect, but can later show his innocence; 
2. What the appropriate burden of proof would be in the case of a petitioner alleging innocence subsequent to a full and fair trial, assuming the Eighth Amendment of the United States Constitution does bar the execution of such an individual upon a sufficient showing of innocence;
3. Whether 28 U.S.C. § 2254(d) bars the Court from granting relief in this case even
   if it finds that Petitioner can demonstrate his innocence;
4. What level of deference, if any, should the Court apply to state court factual determinations when the federal court holds an evidentiary hearing but the state court did not; and
5. What level of deference, if any, the Court should apply to the state court’s specific findings with respect to any witnesses whose testimony is before both this Court and the state court in affidavit form only?

Begin with the exciting news.  Both Davis and Georgia agree that Scalia/Thomas are wrong.  The 8th Amendment, they both say, does prohibit the execution of an innocent person, even on who "had a full and fair trial without constitutional defect."  That's no small thing.

From the state's point of view, though, it's trivia.  See, it doesn't matter because, the state says,

Troy's not innocent.  Not even a little.   No matter how you define innocent.

It follows that the state says, the same thing in answer to each of the questions.
But it doesn't matter and there's no need to decide because by whatever standard and with whatever level of deference, Davis hasn't shown that he shouldn't die.
Of course, the state also says the standard of proof he should have to meet is extraordinarily, unbelievably, incomprehensibly high.  And it doesn't matter anyway, because he's still not entitled to relief under the law.  Georgia courts get all the deference in the world, since they decided the case on the merits and affidavits are fine for them.  And in an affidavit war, Georgia gets all the deference because affidavits are no good at this hearing.  (Yes, I'm oversimplifying.)
Troy's case is pretty much equally predictable.  The standard of proof is daunting, but easily met in this case ("a clear probability that a reasonable juror would have reasonable doubt about his guilt").  Of course the statute permits relief.  No deference to Georgia courts at all, either in general or in an affidavit war.
It's a game.  Here's the truth.  If the judge believes strongly enough that Troy's innocent (or is sufficiently uncomfortable with the idea that he's guilty), he'll write an opinion laying out a standard, saying that Troy met it, and explaining why either he's entitled to relief or why the Supremes should grant him relief.  If Troy hasn't made a strong enough case for the judge to decide that he's uncomfortable with the idea of killing the guy, he'll write an opinion saying that Troy didn't meet the necessarily high standard for relief (if there is such a standard, which question he can punt) and sending the case back to the Supremes. 
Either way it goes back to the Supreme Court to do whatever they want.
It matters what the judge decides, but the legal wrangling - like the factual argument - is cover.  The judge knows how he feels.  The rest is the window dressing.

* * * * *

William Garner must die because . . . . Er, because.

His name is William Garner.  There's nothing exciting the media about his case.  He deliberately set a fire (the state says three fires) that resulted in the deaths of five children.  He does (or according to the state does not) accept responsibility for what he did.  He did (or according to the state did not) intend the children to die.  His background, even by the horrific standards of so many on death row was awful.  Even the Parole Board recognized something exceptional here.

It is clear Mr. Garner suffered developmentally and was raised in an exceptionally and horrendously abusive environment.

But see, there are all those dead kids.

However, we cannot conclude that the mitigating factors are significant enough to outweigh the aggravating circumstances of an offense resulting in the death of five innocent children.

Unanimously, the Board said to kill him.

Governor Ted surely will.

Here, as always, are the final questions:

Will we be better people for having done it?

Will the world be a better world once he is dead?

Is it necessary that we kill him?

Really, aren't those the keys?  And isn't the answer to each question, "No."

* * * * *

But the hydrangeas.

It's a small thing, I suppose, amid the great questions of life and, especially, death.  They aren't the Rosenbergs (whether the Rosenbergs were or not).  They apparently had no secrets to give up.  But Russian spies.  In the burbs.

Come, let us be afraid together.

Because if you can't trust your neighbors.

As for Cynthia and Richard Murphy (or so they called themselves while pretending to be Americans), living in Montclair, N.J., just 14 miles or so west of Manhattan, like serial killers, they fooled the neighbors.  The Times caught the absurdity, though perhaps mistakenly thought the line was a joke.

Jessie Gugig, 15, said she could not believe the charges, especially against Mrs. Murphy. “They couldn’t have been spies,” she said jokingly. “Look what she did with the hydrangeas.”