Gesthemene

Clarence Allen Lackey was on death row in Texas and the Supreme Court refused to hear his appeal. Justice Stevens, while agreeing that they shouldn't take the case, said it raised an interesting issue:

Petitioner raises the question whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment's prohibition against cruel and unusual punishment.

Albert Camus, in a passage I've quoted before, talked about time on death row differently. From Reflections on the Guillotine:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

Then there's Aftab Bahadur.

I doubt there is anything more dreadful than being told that you are going to die, and then sitting in a prison cell just waiting for that moment.

He wrote that less than a week ago.  He knew something of that dread.  He'd been on death row in Pakistan for 22 years now, since he was 15. He was executed a few hours ago.  The Guardian, in a headnote to his comments, offers the plot.

He was sentenced to die for a crime on 5 September 1992 where a woman – Sabiha Bari – and her two sons were murdered. Ghulam Mustafa, a plumber with whom Aftab worked as a plumber’s apprentice, was arrested early in the morning of 6 September 1992, and implicated Aftab under torture. Ghulam is set to die on Wednesday as well, but has recanted his statement and said Aftab had nothing to do with the crime. The only “eyewitness” to the crime who testified against Aftab has recently made a statement before a religious minister that he was coerced into his testimony, that he was not even there, and that he certainly did not see Aftab commit the crime. Aftab insists he is innocent. According to Aftab, when he was arrested the police asked for a 50,000 rupee bribe and said they would let him go if he paid. As a plumber’s apprentice, Aftab said he could not pay.

There are more than 8,000 people on Pakistan's death row.  It's the largest in the world.  

But if Pakistan's row is larger, the psychic conditions are likely much the same.

For many years – since I was just 15 years old – I have been stranded between life and death. It has been a complete limbo, total uncertainty about the future.

In December, they lifted a moratorium.  

When we heard the news about lifting the death penalty moratorium in December 2014, fear prevailed throughout the cells of the prison here. There was an overriding sense of horror. The atmosphere hung, gloomy, over us all. But then the executions actually started at Kot Lakhpat jail, and everyone started to go through mental torture.

More than 150 have been executed since then.

Those who were being hanged had been our companions for many years on this road to death, and it is only natural that their deaths left us in a state of despair.

It was terrorism that led to lifting the moratorium, and the idea was that they would kill the terrorists.  

While the death penalty moratorium was ended on the pretext of killing terrorists, most of the people here in Kot Lakhpat are charged with regular crimes. Quite how killing them is going to stop the sectarian violence in this country, I cannot say.

Because boundaries, limits, gimme a break.  Once they start. Look at the backlog frgodssake.

Yet, for the folks on the row, at least for Aftab Bahadur.

I have not given up hope, though the night is very dark.

The Voice of Experience

He knows whereof he speaks.

Maybe They Won't Kill This Innocent Guy

Rodney Reed, almost certainly did not rape and murder Stacey Stites that April day in 1996, just three weeks before her wedding to Jimmy Lewis Fennell, Jr.  

As a factoid, that's not particularly interesting either way you look at it.  After all, there are billions of people who certainly did not rape and murder her, and there are billions of people Rodney Reed certainly did not rape and murder.  But factoids arise in context, and the context is that Reed is on death row for killing Stites.  And Texas has been planning to kill him, in return, next week.

Which, as I say, he almost certainly did not do.

But this was Bastrop, Tx., not the most racially enlightened of places, they say.  And he was black; she was white; they were having an affair.  Oh, and Jimmy Fennell, Jr. was a cop.

Fennell was with Stites, he said, late that night.  But early in the morning - well, that's when they say she was abducted, driven away, and killed.  And that sperm with Reed's DNA, that had to have been deposited in her that morning, the forensic guys said.

Until, of course, it was later.  And some folks who actually knew what they were doing looked at the evidence.  Forensic pathologists said

• NO!  It's not possible she was killed where they say.  Lividity proves she was killed elsewhere and the body then moved.
• NO! It's not possible she was killed as late as they say.  She was killed hours earlier, the night before.  At the time she was, Fennell said, with Fennell.
• NO! It's not true that the sperm with Reed's DNA had to have been deposited that morning.  The science doesn't support that view.  You just can't tell.

Hell, that last one is from the forensic guy who testified otherwise.  I was wrong, he now says. 

Oh, and though propensity evidence is of questionable legal value, Fennell is, these days, no longer a cop.  He's doing 20 years for kidnapping and raping another young woman.

So, Texas plans to kill an innocent guy next week.

So, the judge in Bastrop refused to stay the execution for a hearing so that the evidence could be presented and studied and Texas could avoid the charade this time.

Ho, hum.

But no, wait.  

The Texas Court of Criminal Appeals, the fucking Texas Court of Criminal Appeals, called a halt.

It wasn't unanimous, of course.  I mean, Sharon Keller, she who - aw hell you can read about it (and her) if you follow the links (here) - voted to get on with the killing.  But she's said before that innocence shouldn't be an impediment.  (Really, like I say, follow the links.)

But still.

“The family is overjoyed, we’re happy beyond belief, but at the same time that it’s a major victory, it is just a step towards where we’re trying to go,” Reed’s brother, Rodrick, told the Guardian. They're expecting a new trial and exoneration.

Which is terrific, of course.  But it won't  bring back those 19 years Reed's lost.  Won't undo the fear and desperation and loneliness and horror and indignity.  Won't  stop some folks from thinking he's guilty.  Won't give him back his life.  And won't do shit for Stacey Stites who's still dead and who's likely killer still hasn't been charged.

On the other hand, Sharon Keller may be pissed, which isn't altogether a bad thing.

  Reed Stay Order

On to 2037

The catalog of the condemned.
 
First up is Harvey Mitts on September 25.  

Then Ronald Phillips, Dennis McGuire, Greg Lott, and Arthur Tyler.  One of them every other month through May 28, 2014.  The next one up, William Montgomery, should be July, but they set him for early August instead.  Another couple of weeks to be not enjoying the summer.

Raymond Tibbets is up in October, and then another break (Chirstmas vacation?) for Warren Henness who's got until January 2015.  Then the parade:

• Robert Van Hook - March 
• Jeffrey Wogenstahl - May
• Alva Campbell - July
• Angelo Fears - September

And as of this morning, Cleveland Jackson on November 17, 2015.  Just over 27 months from now.

It's a little more complicated than that, of course.  This business of planned murder.  And it's likely that one or more, maybe several, maybe most, won't go as scheduled.

There's litigation.  The Parole Board.  The Governor.  Stays and reprieves and commutations.  There's natural causes.  And as Billy Slagle reminded us, there's taking charge of it oneself.

And there's a serious question of method.  After September, our supply of pentobarbital expires.  Variations on that problem are cropping up across the country.  And every alternative generates its own problems.  

Georgia apparently decided to use a compounding pharmacy but passed a law making things so secret even the courts couldn't find out what they're doing so as to determine whether it's constitutional.  Georgia's on hold.

The supply in Texas runs out at the end of the year.  They've been talking about using a compounding pharmacy.  But they're busy recalling tainted drugs compounded there.  Texas might end up with an unplanned moratorium.

As might we here while they cook up another source of drugs or another way to kill.  Either way leads to more litigation, more uncertainty.  I don't know what will happen, but the thing is that nobody else does, either.  And that's a mess.

Meanwhile, the Task Force is due to issue its report and recommendations around the end of this year.  Press reports make clear what was obvious from the beginning given the group's make up.  There'll be a minority report, too. 

We have, 143 men and one woman on death row in Ohio.  136 of those folks are currently under sentence of death.  (I might be off by one or two.)  If we killed all 136, at one every two months, it would take us into something like 2037. 

Put the moral questions aside.  Hell, even put the economic ones to one side.  And forget about fairness and rationality.  Fallibility and error.  Ignore rehabilitation and redemption.  Mercy and grace.  Pretend it has no effect on us and doesn't create new trauma in anyone.  Put aside the lies and the half-truths and the false promise of closure.  Don't even think about the Constitution or, god help us, human decency.

Instead, ask a simple question.

Are we fucking insane?

Go home.  Kiss your partner.  Hug your kids.  Try to explain how it makes sense to kill Harry Mitts next month after he's been on the row for 19 years.

Or Phillips, McGuire, Lott, Tyler, Montgomery, Tibbets, Henness, Van Hook, Wogenstahl, Campbell, Fears.  And now Cleveland Jackson.  And the other 123.  

And the ones yet to be added.

For Want of a Nail

There are, as I've surely said before in this blawg, no guarantees in this business.

Juries surprise.  Judges surprise.  God knows witnesses surprise.  And if clients didn't surprise, there wouldn't be clients.  (OK that last isn't exactly true, but you get the idea.)

And so, when Billy Slagle hanged himself in his cell, it was a surprise.  If only he'd known.  If only his lawyers had got hold of him to tell him.   If only they'd learned a little earlier.

Because it turns out that there was a really good chance, not a guarantee (remember, there are no guarantees in this business) but a really good chance of a stay.  And maybe, just maybe, of him getting out down the road.  

We have to go back to Tim McGinty.  He is, if you haven't been paying attention, the Cuyahoga County Prosecutor, the one who asked the Parole Board to recommend that the Governor spare Billy's life and who's office then asked the courts to let Billy be killed.  I don't have any particular knowledge of why he took such seemingly inconsistent positions, but one possibility involves a matter of who had the power to do what.

See, when Billy Slagle was convicted of Aggravated Murder with death specifications, there were several possible sentences.  One, of course, was execution, which is what he got.  The others all contained the possibility - not the promise, perhaps not even the likelihood, but the possibility - of parole.  The most extreme would have required him to serve every day of 30 years in prison before being first eligible for parole.  What wasn't a possibility was LWOP, death in prison.  We didn't add that to out capital sentencing options in Ohio until 1996.

Here's where the legal stuff comes in.  Courts can maybe undo the death sentence, but they can't impose a sentence that wasn't available at the time of the crime.  That means that no court could give Billy Slagle LWOP.  (Given the arcana of Ohio law at the time, it may not even have been possible to construct the functional equivalent of an LWOP sentence, but I haven't tried to work it out in his case, so I'll leave that alone.)

What the courts can't do, in this case, the governor can.  In granting clemency and commuting a sentence, he can basically impose whatever he wants.  LWOP is a gubernatorial option.  And that's what McGinty wanted Governor Kasich to impose.  

So, maybe McGinty's thinking was that he wouldn't favor a judicial resentencing because Billy Slagle deserved, in his mind, LWOP.  I'm guessing, you understand, but it's not unreasonable speculation.

Except, like I say, there are surprises.

On Friday, after the trial court denied Slagle's motion for new trial and after McGinty had opposed granting him a stay and opposed the Supreme Court vacating the death sentence, and after Billy's lawyers had met with him for the day, they got a call from McGinty.  Alan Johnson in the Columbus Dispatch has the story as he apparently got it from Vicki Werneke one of his lawyers.

Werneke said late Friday afternoon, Cuyahoga County Prosecutor Timothy McGinty called [Joe] Wilhelm [another of his lawyers] with a revelation: county prosecutors offered Slagle a plea deal at his original trial 26 years ago. He would serve 30 years and be eligible for parole. 

That's not really all that surprising.  Even in capital cases, plea offers are common - historically that's been especially true in Cuyahoga County.  But, and here's the thing, back then, back when he could have taken the deal and gotten that life sentence with parole eligibility after 30 years, back then, Billy Slagle's lawyers didn't tell him.

Which was horribly improper.  And in light of Missouri v. Frye, a recent decision by the U.S. Supreme Court, is a credible basis for Billy to get back into court and even now, after 26 years, accept the deal.

As Ron Popeil would say, That's not all.

McGinty agreed not to oppose a stay so that Slagle's team could litigate the question.

Except it was the weekend.  They were going to file the motion for stay this morning.  They'd talk to Billy today.

But you know, there are no guarantees in this business.  

Billy Slagle, who appeared fine when his lawyers left him on Friday, hanged himself in his cell early Sunday morning.  He was 44 years old.  He'd spent 26 years in prison.  He might have been eligible for parole in 4 more years.  He almost surely wouldn't have gotten it then.  But down the road?  In another 10? or 15?  or 20?  

One wonders where the irony ends and the tragedy begins.