A Terrorist by Any Other Name

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

The names are the problem, Juliet says. Romeo, after all, is wonderful. The trouble is that he's a Montague, hated for that alone by her family, the Capulets.

Names, words themselves, matter. They have power.

Consider the god of Genesis. For him (that sui generis god is surely male) god the word, logos (λόγος), calls forth the thing.

And God said, Let there be light: and there was light.

Want a more quotidian example?  

Michelle Carter was just convicted of involuntary manslaughter for sending her boyfriend, Conrad Roy III, text messages urging him to kill himself - which he did.

In the Washington Post, Tung Yin has an op-ed discussing the difficulty of determining when a killing is terrorism rather than murder.  It was easy, he says, in decades past when terrorists routinely announced their motives.  Now, not so much.  

While Yin concedes that 

As far as the prosecutions go, perhaps it doesn’t matter whether reporters and ordinary Americans regard a perpetrator as a terrorist or as a mass murderer.

It clearly matters to him a great deal.  He never does say why, though perhaps it's because he's a law prof specializing in, according to a biographical note accompanying his op-ed, "national security law and terrorism." 

But to what end, exactly?

Call it murder.  The victims are just as dead.  The killers can get whatever satisfaction they get from killing bunches of people.  But really, there's nothing special.  Nothing to see here.

Just another mass murder.

Doesn't have the same cachet, does it?  Hard to find quite the same sense of nobility?  Maybe harder to convince someone to do it. 

Just a thought.  Because words matter.

Killers By Any Other Name

Stephen Castle in the Times.

A knife attack in a London subway station on Saturday was being treated as a “terrorist incident,” the police said after they arrested a 29-year-old man suspected of the assault.
A 56-year-old victim sustained serious, but nonlife-threatening injuries, and two others were wounded less seriously at the Leytonstone station in East London. The suspect was detained after officers used a Taser on him.

An ugly story.  A horrible thing.  "Absolutely shocking," said Jeremy Corbyn, leader of the opposition.  The only good news is that nobody died.  Still.

“I would urge the public to remain calm, but alert and vigilant,” Cmdr. Richard Walton, who leads the Counter Terrorism Command of London’s Metropolitan Police, said in a statement. “The threat from terrorism remains at severe, which means that a terrorist attack is highly likely.”

Of course.  It's Britain.  The Blitz.  The IRA.  Stiff upper lip.  Keep calm and carry on.  But it's terrorism, so if you see something, say something.  (Not just our side of the pond.)

Wait, I'm already getting sidetracked.  It's that first line of the story that caught my eye, the part about how it's "being treated as a 'terrorist incident."

We know about that.  It's how the FBI is investigating the killing of 14 in San Bernadino.  And of course there were the 3 at Planned Parenthood in Colorado and the 9 at the Emanuel African Methodist Episcopal Church in South Carolina.

All of which were terrorism.  Or not.  

We wade into this linguistic thicket on a regular basis, it seems.  Whenever the body count mounts. 

This time Greenfield's insisting that words have meaning, that terrorism untethered to any single meaning is just whatever feels (as distinct from feelz, I think, though I'm not sure just what the difference is).  And so he insists on statute.

And this is why the definition is best grounded in statute. That humanities academics enjoy arguing over how many angels can dance on the head of a pin elucidate nothing. If we’re to use words, there must be a common definition. Adding the word “terrorism” either means something or it’s just another word designed to create hysteria.

Over at Fault Lines, Noel Erinjeri too turned to statutory definition while insisting that names don't matter but that if he's guilty He damn well oughta get LWOP.

But what we call him isn’t important. What’s important is that he be prosecuted according to the due process of law. And, if he’s convicted of first degree-murder, that we lock him up and throw away the key.

I've dropped in on the question, too.  After the shooting in Charleston, for instance, where I quoted what Greenfield had to say at the time.

DOJ is trying to determine whether it was a hate crime or terrorism. Presumably, that's so that they can prosecute the bad guy if South Carolina decides to give him a medal. And folks across the spectrum are arguing about which of those it should be called.
As if it mattered.
Scott Greenfield:

Murdering people is offensive. Murdering people because of their race is offensive. What you call it is irrelevant. When you understand that, the debate over whether to call it terrorism begins to look a lot more ridiculous, narcissistic and offensive.

Which is of course true. Kinda. 

The thing is not so much that we've all been mostly wrong in what we've written (though arguably we have) but that we've been missing the point.

Oh, we've all started from the premise (explicitly stated or otherwise) that words matter.  The Greek word, logos (λόγος), after all, is the root of logic.  

More, the word calls forth the thing.  God, you'll recall, named the world into existence (Genesis 1:3). 

And God said, Let there be light: and there was light.

In fact, God was the word (John 1:1)

In the beginning was the Word, and the Word was with God, and the Word was God.

Indeed.  We were right.  Words matter.

And while it's common and mostly proper to insist that those words have meaning on which we can all agree,* that's for purposes of advancing actual thought.  If it's important for a specific reason to know whether something is an act of terrorism (because of a potential legal consequence, say), then obviously it's important to have a definition as a referent.  But mostly that's irrelevant.

It doesn't matter, for purposes of any available legal consequence, for instance, whether Tafsheen Malik and Syed Rizwan Farook were terrorists.  They're dead.  We don't try dead people in our courts.  We don't sentence them.  We don't hang their bodies at the edge of the city to deter other would-be whatevers.**

But there are other sorts of consequences to terrorism than the legal ones.  For those, imposing definitions is trickier.  They're the emotional and political consequences.

Terrorism is what justified Barefoot Scope 'n' Grope by TSA at the airport.  And keeps us docile enough to accept it.

Terrorism is what allows governors to declare that Syrian refugees can't be allowed to cross their state borders and Presidential candidates to vie with each other in demanding that they be turned away before they even reach the nations.  (Let the little kids drown since they'll surely either be carrying bombs or will grow up to make and plant them.)  

Manchurian Candidates every one.

It's important, for whipping up frenzy and justifying the metaphorical ovens that there be no definition.  If there's a definition of terrorism, then it's harder for the demagogues to do their demagoguing.  Absent a definition, it's a free for all.

And of course there's the pure feeling.  

If it's an act of terrorism, we should all be scared.  If it's just garden-variety psychopaths or pissed off folks, no need to worry.  

After all, if they were terrorists, they showed that terrorists can strike anywhere - even the Inland Regional Center in San Bernadino.  So nobody is safe and everyone should be scared. 

If they weren't terrorists, then it's just ordinary crime that can occur anywhere - even the Inland Regional Center in San Bernadino.  So we're all safe and nobody needs to be scared.

If we had a real definition, we'd know, and then you couldn't decide for yourself.

As Juliet said.

'Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What's Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name,
And for that name which is no part of thee
Take all myself.

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

*It was the vacuous Khalil Gibran, had his Prophet say that we would "never understand one another until we reduce the language to seven words."  He didn't add that at that point we would understand only that nobody had anything to say.  We might as readily reduce the language to grunts.

** I had a client on death row who died while his petition to the Supreme Court was pending.  The petition was dismissed as moot.  No relief for the dead guy.  On the other hand, the state of Ohio didn't get to execute him, though that's really not relevant here.

Doubling Down

"What do you read, my lord?" asks Polonius of Hamlet who accurately but mockingly replies

Words, words, words.

The thing is, Hamlet is mocking both himself and Polonius.

The prince has been charged by the ghost of his father, old King Hamlet, to kill his uncle Claudius, brother of the old king, successor king himself, and stepfather to the prince having married the old king's wife. (A too long and cluttered sentence, but I assume you know the plot, so it doesn't really matter.) Polonius, pompous busybody and courtier (and father of Hamlet's girlfriend), isn't exactly ignored, but is put in place for his nosiness.  And Hamlet himself, why, all for him is words.  He hems back and forth.  He cannot decide. 

To be or not to be.

It's all words.

But, of course, they're powerful things words.  I've observed that before about them.  They matter.

As lawyers, they're the tools we use.

Politicians, too.  

But with great power comes great opportunities for fuck ups.  Consider Fukushima or Chernobyl.

Take Todd Akin. Please.

Unless you've spent the last 72 hours or so in a cave, you know the basic plot.  Asked on TV about abortions in cases of rape, Todd explained that he's talked to lots of doctors and learned that there are two kinds of rape (at least) and that women's bodies have a magic contraceptive agent that can tell the different sorts and work whenever the rape is the "legitimate" sort.

If it's a legitimate rape, the female body has ways to try to shut that whole thing down.

You know.

Now, Todd Akin is a deeply religious man as well as being an idiot. 

And it came to pass that upon his spewing of offensive shit and stupid shit both, there arose a great cackling among his opponents and a great consternation among his fellow believers who are a shade too smart to get caught actually saying anything as dumb as he did.

"Quit the campaign" came the voices from those supporters of science and evidence except when it involves actual science and evidence.  John Cornyn, Karl Rove, John Ashcroft, Mitt Romney (one waits in vain to hear from Sarah Palin) all said Akin must quit.  The party will no longer fund his campaign.  Rove's super PAC will no longer fund his campaign.

They did not know the sort of man with whom they were dealing.

Yes, he said those things.  But he has deep empathy for rape victims (at least the legitimate ones), rape being a horrible crime and all.

I used the wrong words in the wrong way, and for that I apologize.

Those wrong words, he said, were

ill-conceived

"A bit like a rapist's child, perhaps," as my friend Hilary said.  (Really.  He said that. You can't make this shit up.  Though you can set it off and print it in boldface.) 

Of course, it's not just that the words were wrong.

That's what happens when you say dessert instead of desert or when autocomplete changes enemy to enema.

Todd's problem wasn't poor word choice.  I mean what would the right words have been?

OK, I know.  He didn't mean "legitimate" rape.  He meant "forcible" rape.  (He's tried that tack before - as has Paul Ryan, by the way, who's on the Romney express now insisting he's never said any such thing, just as he also insists he was for the stimulus before he was against it  But I digress.)

But see, "forcible" really isn't much better.  It just tries to define those rapes that are "legitimate."  Because, one assumes, statutory rape is OK.  And date rape is OK.  Rape only counts, is only really really wrong if the victim also gets the shit beaten out of her.

Which is, apparently, what releases the magic contraceptive.

Timex Todd has taken a lickin' but keeps on tickin'.  He says he's in for long haul.  Has a new ad out called "Forgiveness" that apologizes for using those "wrong words." And that says he really does care deeply and that illegitimate rape isn't a mitzvah.  But the baby is and mom should be honored to have the chance to carry the legitimate rapist's child to term if she should be fortunate enough not to have the spermicidal gene.

Todd's is the great American moment. He won't be swayed by party elders or wiser heads.

(Nearly all heads are wiser, but I'm digressing again.) He told Mike Huckabee,

I believe the defense of the unborn and a deep respect for life, which underlie all of America, those are important parts of who we are. And they’re not things to run away from.

Now you may not have known that "the defense of the unborn" is what "underlie[s] all of America."  But then you, unlike Todd, aren't channeling God. John Eligon in the Times.

It was “appropriate to recognize a creator, God, whose blessings of life, liberty and the pursuit of happiness is the very source of American freedom,” Mr. Akin, 65, said in a radio interview. “And that part of the message I feel is missing” from the campaign, he said, adding, “That’s the reason why we’re going to continue. Because I believe there is a cause here.”

And you didn't get the Republican nomination for Senate in Missouri.

What I Meant Isn't What You Think I Meant Unless You Think I Meant What I Meant

I've written so much about Hank Skinner's case, that I just assumed I'd be writing about the decision as soon as it came out.  Then the opinion came out yesterday and was so narrow and constrained - carefully explaining how what Skinner wanted (a chance to argue in federal court that the application of the Texas DNA testing law to his case violates his due process rights) did not run afoul of the Rooker-Feldman Doctrine (don't ask) and establishing that what Skinner wanted isn't actually to undo his conviction or sentence, so it's not a habeas issue - that it really didn't break much ground or lend itself to my brand of pontificating.  So I left it alone.

Except that there was this sentence Clarence Thomas wrote in dissent nagging at me.

The Court has recognized that §1983 does not reach to the full extent of its “broad language.”

Hmm.  Here's what § 1983 (that's Section 1983 of Title 42 of the US Code, by the way) says. 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Ok, that is pretty broad.  In plain English, what it says is that anyone whose rights under the US Constitution or federal law are violated by any state or local official can sue over the violation.  (There are some limitations, but narrow ones, on suing judges.)  But as Thomas didn't quite say, plain English is for losers.  And as he did say, the Court has consistently said that 1983 doesn't mean what it says.

Now, Thomas is one of those guys who believe that the words control (except, of course, when they don't) and that judges and justices don't have the right to ignore the laws as they are writ just 'cause they disapprove.  So you might think he would be getting set to say something about how the Court is out of line.  If you thought that, you'd be mistaken, seriously, profoundly mistaken.

In fact, the whole point of Thomas's dissent is that 1983 means even less of what it says than the majority thinks.  And the majority doesn't think it means much.

Oh, there have been and continue to be lots of successful 1983 actions.  People, in fact, bring those cases all the time.  And they win a fair percentage.  (They lose a fair percentage, too, of course, but that's a different issue.)  But as Thomas says, there's much that the courts don't allow to be covered.

That's worth saying again.

There's much that the courts don't allow to be covered.

It's not a secret conspiracy.  It's that some things . . . . Well, you just can't sue over them.  Or if you can, there are hurdles.  Or you can sue, but not through 1983.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

163 In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

Though as it happened (and this is long before there was a 1983), Marshall found that Marbury's rights were invaded but that he really couldn't sue over them.

It begins (for our purposes) with the Constitution.

The First Amendment says,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Justice Black famously declared that "'No law' means no law."  That's tautologically true, of course, but nobody with any authorizing power (including Black himself) really understood it that way.

And if the words of the Constitution don't mean what they say (and I'm not getting, here, into discussion of whether it includes stuff it doesn't say, like "there's at least some right to privacy"), then there's really no use expecting that the statutes will mean what they say.

And so, when you really get down to it, the question the Court chose to confront in Hank Skinner's case was how much the decision would matter.  Not to Skinner, of course.  To the courts.

Ginsburg (in the Court's opinion), took it head on.  (I'm omitting a footnote.)

Respondent Switzer and her amici forecast that a “vast expansion of federal jurisdiction . . . would ensue” were we to hold that Skinner’s complaint can be initiated under §1983. See Brief for National District Attorneys Association as Amicus Curiae 8. In particular, they predict a proliferation of federal civil actions “seeking postconviction discovery of evidence [and] other relief inescapably associated with the central questions of guilt or punishment.” Id., at 6. These fears, shared by the dissent, post, at 6.

And here's what Thomas wrote on the subject (footnote included).

Allowing Skinner to artfully plead an attack on state habeas procedures instead of an attack on state habeas results undercuts the restrictions Congress and this Court have placed on federal review of state convictions. See Osborne, supra, at ___ (ALITO, J., concurring) (slip op., at 3). To allege that the Texas courts erred in denying him relief on collateral review, Skinner could only file a federal habeas petition, with its accompanying procedural restrictions and deferential review. But a successful challenge to Texas’ collateral review procedures under §1983 would impeach the result of collateral review without complying with any of the restrictions for relief in federal habeas.
The majority contends that its decision will not “spillover to claims relying on Brady v. Maryland, 373 U. S. 83 (1963).” Ante, at 13; but cf. Osborne, supra, at ___–___ (ALITO, J., concurring) (slip op., at 3–5). In truth, the majority provides a roadmap for any unsuccessful state habeas petitioner to relitigate his claim under §1983: After state habeas is denied, file a §1983 suit challenging the state habeas process rather than the result. What prisoner would not avail himself of this additional bite at the apple?*
——————
*Nor is there any reason to believe that the Court’s holding will be cabined to collateral review procedures. The Court does not discuss whether a State’s direct review process may be subject to challenge under §1983, but it suggests no principled distinction between direct and collateral review. This risks transforming §1983 into a vehicle for direct criminal appeals. Cf. Heck v. Humphrey, 512 U. S. 477, 486 (1994). Just as any unsuccessful state habeas petitioner will now resort to §1983 and challenge state collateral review procedures, so, too, will unsuccessful appellants turn to §1983 to challenge the state appellate procedures.

See it's not about the law.  it's about the courts.  The issue is floodgates.  And the courts don't want to open them.  Never have.

In this case, a key to Spitzer's win is that he convinced the majority there wouldn't be a ton of new cases.  It may not be so easy for the next guy.

The next guy as it happens, is Abdullah Al-Kidd.  I wrote about his case last week.  The question involved Al-Kidd's right to sue John Ashcroft for violating his rights under the 4th Amendment.  Among the topics discussed at oral argument was just how many other cases there might be.  Lee Gelernt, Al-Kidd's lawyer, said "only a few hundred each year."  Roberts didn't see that as so few.

So every time the prosecutor elects not to call one of these witnesses for a variety of reasons, you would have a claim that this wasn't designed to elicit testimony?

Kennedy floated the idea of 4,000 a year.

No, said Gelernt.  Just a few hundred.

Neal Katyal picked up on the question in his rebuttal argument.

If I could start with the Chief Justice's point about the cost of these lawsuits and allowing them to proceed. My friend on the other side says, well, but this will be a small, rare case, an isolated example, but I don't think that's true. I think if you allow their motivation argument to -- to -- to pierce absolute immunity, you will have this in every case or near every case. 95 to 96 percent of Federal cases are resolved by plea agreements. So there isn't someone who is actually called at trial.  You could allege it in any of those cases.
And particularly when you lace on to that what my friend has said is a disturbing, quote, "national pattern of abuse" of the material witness statute, something which we --with which we vigorously disagree, but if you could add the fact that someone wasn't called on in a trial to that national pattern, then you'll be having these damages actions quite a bit of the time. Now he says don't worry, it will only be a few hundred of these lawsuits. Well, leaving apart the fact that that excludes immigration cases and excludes the States' cases, as Justice Kennedy said, a few hundred lawsuits just at the Federal level filed against the Attorney General?

It's not all (or always) about actually making work for the courts.  Nor does it always shut out cases.  Those are just easy instances.  Rather, it's a larger point to which I've alluded to a whole bunch of times.

Words matter, but they don't control.  The law means what it says except when it doesn't.  And we're not seers.

There's no certainty in this business.  Not in the Supreme Court of the United States and not at trial in your local municipal court or whatever the lowest level court of record is in your jurisdiction.  Any lawyer who makes a promise about what can be achieved is either deluded or lying.

We live in a world of best guesses.  And as I've said more than once - dismaying many young lawyers and law students and driving crazy many folks too smart to go to law school - the correct answer to every legal question is 

It depends.

What got me started here isn't that Clarence Thomas said that 1983 doesn't mean what it says.  It's that the proposition is so obvious that he doesn't even see why or how it's at odds with his judicial philosophy.  (Ditto Scalia, but he didn't join that dissent.)

From Through the Looking Glass

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  

It's Complicated - and It Depends

While we wait for Pat Quinn to decide whether to sign the abolition bill in Illinois, I've been grumbling over language.

I actually wrote a fair chunk of a post trying to draw together a series of disparate bits and pieces on the recurring (in this blawg) theme that words matter.  (It probably recurs more than that link indicates, since I'm pretty sure I haven't stuck that label on every post I should have.)  But the post didn't work because, well, the bits and pieces were too disparate.  I can tie shit up, but there were too many stretchers there.

And, frankly, I'm not sure I have anything useful to say about what happened in Tucson the other day.

A crazy person, maybe acting alone or maybe not, shot a lot of people.  A bunch of them died.  It shouldn't have happened.  Sarah Palin didn't make him do it.  Neither did MSNBC.  None of it has anything to do with blood libel or cross hairs.  Arizona gun laws (or lack of them) might have made it easier, but horrible gun crimes occur all across the country, and you cannot show that this one wouldn't have happened if only the local laws were less generous to gun owning (or monster clips).  Or if we did a better job dealing with mental illness.  Or if they'd set up metal detectors at the Tucson city limits.

I mean, maybe.  But maybe not.

And every proposed remedy, which may or may not have prevented this and may or may not prevent some other horrible event, comes at a cost.  

Someone pointed out the other day that if we'd reduce the national speed limit to 25 mph, we'd significantly reduce traffic fatalities and save a lot of energy.  Sure.  But at a tremendous cost in productivity and jobs.  And an enormous change in our lifestyles.  People who like the idea of living off the land in a cabin in northern Minnesota probably have a different idea about how the cost-benefit analysis of that 25 mph speed limit works out than I do.

As the answer to every legal question is, "It depends," so the answer to every policy question is, "It's complicated and nuanced."

Which is why I want to talk about Mark Twain.  And the Constitution.

Because they're simple (in a complicated an nuanced way).

We honor Huckleberry Finn.  The greatest American novel.  The source of everything.  (No, I'm not putting in links to praise for the book.  There'd be no stopping point.)  And as the folks who catalog these things will tell you, one of the most banned books in America.

Ostensibly, the problem with Huckleberry Finn is that it uses the word "nigger."  Cause offense that.  Nasty word.  Don't let anyone near it and it will go away.  Except it won't.  And racism certainly won't go away just because we stop using a particular racist term.  I'm not saying we should use it.  It's normally deeply offensive coming from anyone white, and there's no advantage in being offensive for its own sake.  On those occasions when racial identification matters, there are far better ways to express it.  But the word is out there, and there's neither point nor ability to pretend it isn't.

Anyway, the real problem with Huckleberry Finn isn't that the word "nigger" appears it it.  The real problem is that Jim is the book's moral center and that Huck ultimately comes to understand and accept that racism and slavery are evil.  That's what scares people.  That's why they want it banned.

See, reading Huckleberry Finn is about confronting who we are, facing up to ourselves.  That's radical.  And dangerous.  Words matter.  Twain knew it.  And he used it.

Then there's the Constitution with that elegant and eloquent and noble Preamble.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Wow.

That's great stuff.  But it was a pretty limited conception of "We the People."  Really, it was "we the white, male, property owners."  That changed through the oxymoronic conceit of a bloody civil war and the post-war, Reconstruction Amendments.   But it took, in some sense, Representative Barbara Jordan's soaring, and searing, rhetoric at the opening of the Nixon impeachment hearings, to make that point plain.

Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: "We, the people." It's a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that "We, the people." I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in "We, the people."

Wow, again.

Because the Constitution as written is a deeply flawed, seriously racist document.  It approved slavery.  It counted slaves as less than full people.  It was a revolutionary document, but the revolution had its limits, and equality wasn't high enough on the list of revolutionary ideals.

And it came to pass that on the floor of the House of Representatives, in open session, they did what they'd never done before:  Read the text of the Constitution. Aloud.  For the first time ever.  Which is pretty cool.  And pretty much something that should be done from time to time.  

And of course, they screwed it up.

In the effort to save it.

They took out that slavery stuff.  And the 3/5 compromise.  Because, you know, they'd been superseded by amendment.  And, as Dahlia Lithwick pointed out in Slate last week, they left in other stuff that had been superseded by amendment because . . . .  Well damn, because they were intentional or sloppy or stupid or making a weird political point or twelve or who the hell knows.  Regardless, of how and why it happened, though:

In other words, in addition to taking it upon themselves to whitewash past constitutional errors, House Republicans today compounded the sin by inventing a choose-your-own-ending document they tried to pass off as official. 

Which brings us back to Huck and the "n" word.  (And Tom Sawyer and "i" word ("Injun" as in "Injun Joe.")  Because, as you've likely heard, there's a new edition that uses a scalpel to slice and dice those words out.  "Nigger" is replaced by "slave."  (Because, I suppose, African-American's don't mind being thought of as slaves though they find it offensive to be called "nigger.")  And "Injun" will now be "Indian."  

Words, as I say, matter.

There are consequences to the fact that the Constitution included the 3/5 compromise and explicitly allowed human slavery.  And it does no disservice to We the People to be reminded from time to time that it wasn't a universal "We" and, frankly, still is only grudgingly.

And it matters, though in different ways, that Huck didn't refer to Jim as "slave Jim" though Jim was in fact (OK, in fiction, but you know what I mean) a slave.  Twain knew what he was doing.  He said so, right up front.

EXPLANATORY

IN this book a number of dialects are used, to wit: the Missouri negro dialect; the extremest form of the backwoods Southwestern dialect; the ordinary "Pike County" dialect; and four modified varieties of this last. The shadings have not been done in a haphazard fashion, or by guesswork; but painstakingly, and with the trustworthy guidance and support of personal familiarity with these several forms of speech.

I make this explanation for the reason that without it many readers would suppose that all these characters were trying to talk alike and not succeeding.

THE AUTHOR.

I talk a lot in these posts about how governors and prosecutors and courts and too many of We the People are inclined to bury their collective heads in the sand and avoid finding out whether they've convicted (or executed) the right guy.  "You'd think they'd want to know," I keep writing.

Because, well, you'd think they'd want to.  Just as you'd think that they, we, might want to acknowledge who we are and from whence we came.  

You'd think that those who care about the Constitution would want to acknowledge some of its history while they spout the importance of its original understanding.

And you'd think that an English professor would get that words matter even when they aren't pretty.

But you'd think that complexity and nuance weren't just really awful things, too.

And that because words matter, we should honor them rather than hide from them.

I leave you with Shakespeare.

LORD POLONIUS
   . . .
What do you read, my lord?


HAMLET
   Words, words, words.


LORD POLONIUS
   What is the matter, my lord?


HAMLET
   Between who?


LORD POLONIUS
   I mean, the matter that you read, my lord.


HAMLET
   Slanders, sir: for the satirical rogue says here
that old men have grey beards, that their faces are
wrinkled, their eyes purging thick amber and
plum-tree gum and that they have a plentiful lack of
wit, together with most weak hams: all which, sir,
though I most powerfully and potently believe, yet
I hold it not honesty to have it thus set down, for
yourself, sir, should be old as I am, if like a crab
you could go backward.


LORD POLONIUS
    [Aside]
    Though this be madness, yet there is method
in 't. Will you walk out of the air, my lord?


HAMLET
   Into my grave.


LORD POLONIUS
   Indeed, that is out o' the air.

    [Aside]
    How pregnant sometimes his replies are! a happiness
that often madness hits on, which reason and sanity
could not so prosperously be delivered of. I will
leave him, and suddenly contrive the means of
meeting between him and my daughter. -- My honourable
lord, I will most humbly take my leave of you.


HAMLET
   You cannot, sir, take from me any thing that I will
more willingly part withal: except my life, except
my life, except my life.

Shakespeare, Hamlet, Act II, Scene ii.

Innocence Yet Again

I've talked about innocence far more than I like. But if I'm going to toil in the field of criminal defense blawgging with an emphasis on the death penalty, it's hard to avoid.

The problem with innocence, though, is like the problem with guilt. The words are slippery. Just what sort of "innocence" are we speaking of? Factual? Legal? Moral? Spiritual? Are we involved in ontology or omphaloskepsis? (There is a difference.) Same for guilt.

OJ is legally innocent of the murder of Nicole and of Ron Goldman. That's the result of the criminal trial. But he is legally responsible for their deaths. That's the result of the civil trial. Try explaining that to the man or woman on the street, and then ask if it makes any sense.

In fact, and I get tired of saying this, criminal trials are not about factual guilt or innocence. (Though we hope their verdicts will reflect it.) They're about proof as presented through a set of procedures and rules developed and refined over centuries and subject to almost daily modification at the whim of judges, justices, and legislators.

Take the case of the already executed Cameron Todd Willingham. (I'm not going to rehash it all here or even set out links to the 15 posts I've given that label. [It'll be 16 once I post this.] There's a link to all of them on the right.) He did or did not murder his children. Despite the claims of the surviving arson investigator who testified that there was a fire set and of Willingham's trial lawyer who's sure he was guilty, who was sure of it at the time, and who wants the world to know it, there's simply no credible evidence that Willingham killed anyone. Which doesn't mean he didn't, but goes a long way toward proving that.

(A brief digression. Grits reports that John Bradley, who's the head of the Texas Forensic Science Commission and was seemingly appointed to whitewash the Willingham case, now seems poised to do just that. Stay tuned.)

Then there's Hank Skinner (Again, you can find the links yourself). He's still on death row as opposed to having been executed thanks to some great, creative lawyering. Did he actually do the things the jury said he did? Damned if I know. Is that relevant to questions of guilt or innocence? Depends on the questions.

The Death Penalty Information Center maintains a list of those exonerated from death row, what it calls "The Innocence List."

For Inclusion on DPIC's Innocence List:

Defendants must have been convicted, sentenced to death and subsequently either-

a) their conviction was overturned AND

i) they were acquitted at re-trial or
ii) all charges were dropped

b) they were given an absolute pardon by the governor based on new evidence of innocence.

That's it. Notice that nowhere in that explanation is the claim that being on the list means a person is not factually responsible for the acts at issue. (Though, certainly, maybe most are innocent in that way.) Rather, they are on the list because the law has so declared them and in the case of gubernatorial pardons there is some "evidence of innocence."

And so we come to the sad case of Timothy Hennis. In 1985, in Fayettevill North Carolina, Kathryn Eastburn was raped and she and her two young daughters were murdered. Hennis was convicted of the crimes and sentenced to die. Tried and convicted of rape and murder from 1985, the North Carolina Supreme Court ordered a new trial. In 1989, he was acquitted, found not guilty. That's exoneration. Legal innocence.

Hennis qualified under (a)(1) for inclusion on the list of exonerated persons. And there he remained. Until Thursday of last week when he was found guilty of the crimes in a military court. (Don't try to understand how this is possible given that pesky double jeopardy prohibition in the constitution. I've talked about that before, most recently here.)

Kent Scheidegger cackled.

This is the smoking gun that proves what we have been saying all along. The so-called innocence list is nothing of the sort.
. . .

We have known all along that the "innocence list" claim was a lie. Now we have official proof, beyond a reasonable doubt.

The Times balances Scheidegger's claim with Dick Dieter's explanation.

In an interview, Mr. Scheidegger said that the Hennis case showed the stark difference between a jury’s not finding guilt beyond a reasonable doubt and actual proof of innocence. In the Hennis case, he said, “we have proof that he was a guilty murderer who got away with it, and yet he was on the innocence list.”

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.

Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

Paul Cassell, writing at The Volokh Conspiracy, has a slightly different take. DPIC deceived him.

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit. If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

You see, if DPIC is going to have what they call an "Innocence List," they need to do more than explain how it's derived. They have to make sure that Professor Cassell reads and understands the explanation. That's a tough job. You can lead a horse to water and all that.

Then there's Bill Otis whose post I'm reproducing in it's entirety:

Inspired by, but not a report of, the Hennis case and the commentary thereupon, and in appreciation of so many other indignant DPIC stories of "the innocent."

Innocent (archaic) -- Didn't do it.

Innocent (modern) -- Not as "innocent as a newborn babe" but kind of innocent, not in the woden, old fashioned sense, but in the sense that the "alleged" killer was, you know, abused 30 years ago by his long-dead step-father, leading to his inability to form criminal intent notwithstanding that he stabbed the victims 20 or 40 times or something; and which step-father his lawyer would have found out about but for his sleeping through pre-trial preparation, not to mention the trial, leading to reversal for ineffective assistance. So, you see, he was, to the more sophisticated among us, innocent. See also "exonerated."

Innocence list -- A compilation of people who either (a) did it, or (b) didn't do it, not that it matters that much, since the whole point is to conflate the two, so long as much of the media can be relied upon to portray the list as consisting only of (b). See also Roger Keith Coleman, who never made the innocence list but served the same purpose despite his now quietly conceded abject guilt.

As Greenfield notes, this is all about the definition of innocent, which is kind of where I began and which allows for a difference between legal and factual innocence. Scott explains in his just slightly snarky way:

Cassell wants to know how these people can be called "innocent". Because this is the United States of America, and in the United States of America, everyone who is not convicted is innocent. Actually, truly, really, 110% innocent.

Absolutely.

Neither Cassell nor Scheidegger is really as stupid or as inattentive as I'm making them sound (or as Greenfield does) by throwing their own words back at them. They're making rhetorical points by deliberately misreading DPIC's use of "innocence" just as DPIC chooses to the call it's list of the exonerated an "Innocence List" for rhetorical purposes.

But words matter, and DPIC at least has the integrity to define its words and explain its list. Don't like that list? Fine. Make your own. Hell, make a list of everyone you think is guilty who still isn't behind bars or strapped to the gurney. Be careful, though, to define your terms out in the open.

But while they're compiling the lists, there's still the question of Hank Skinner's DNA.

Bill Otis asserts the importance of DNA testing and took me to task for saying that he thought it shouldn't be done. That claim doesn't seem to be echoed in a demand that Texas allow that testing for Skinner (or Ohio for Darryl Durr). I don't notice Scheidegger or Cassell demanding it, either. Neither Scalia nor Thomas, the two justices who are on record as saying that the Constitution isn't concerned with conviction of the innocent but think governors will surely save any that come close, seem to have demanded the testing, either.

(I'll be happy to redact from that paragraph the name of any of those folks who've demanded that Texas allow DNA testing for Skinner or Ohio for Durr. I can't find it.)

Because really, if we're going to discuss hypocrisy and the abuse of rhetoric, there's no shortage.

And regardless of whether Hennis is one of them, there have been factually innocent folk sentenced to death. And whether Scheidegger or Otis or Cassell or Scalia or Thomas or your next door neighbor wants to believe it, it's damned likely some have been executed. And it's a mathematical certainty that if we kill enough people, some will be innocent. Factually.

If that's OK with them, let them say so. Then they can decide about who needs to apologize to whom. If it's not OK, then what happens?

And let's get at the DNA.

SOTOMAYOR THROUGH THE LOOKING GLASS

We know that the judge (and certainly the Justice) is not merely a legal umpire, calling metaphorical balls and strikes. There are, whether still-Judge Sotomayor (or now-Chief-Justice Roberts wants to admit it or not, ambiguous rules; there are times when choices must be made among competing rules, and there are times when lacunae in the rules must be filled. And, of course, there is always the matter of whether prior rulings were correct, and what to do about them if they were not. Justices do those things all the time; judges do them more than you might imagine.

While she grudgingly agreed that such things might, perhaps, occassionally happen, Sotomayor basically told the Senate Committee that it's never a court (or judge or justice) making law because the definition of making law doesn't apply to what courts, judges and justices do. Well, what if congress then formall enacts just that rule? Congress will have made law. The court will merely have interpreted. The act is the same, but the actor, controls the name we give to the activity.

I professed English, taught literature and writing to college students for fifteen years before I went to law school. Then and since (and before, but that's a quibble) I've spent more hours than I care to count considering the power and importance of language, of the word, logos.

And God said, Let there be light: and there was light. And God saw the light, that it was good: and God divided the light from the darkness. And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day.

Speak the name and call forth the thing. Name it, and it is. No small thing this. Words matter.

To appellate lawyers and judges (and justices) words really are everything. We don't have live testimony, we have cold transcripts. We don't have (at least not commonly) the power point presentations and videos and audio tapes. When they matter, they commonly have to be transcribed, drawn down to their base essence as words. We don't have witnesses who fidget and look down and mumble and look evasive or forceful or indifferent. The scientist's lab coat is as purely a thing of the imagination in the court of appeals as is the police officer's uniform.

What we have is words and voice.

When I taught, I realized that teaching is performance. There are many ways to do it well (and, of course, to do it badly), but it's all performance. So is litigation. When I stand up in the courtroom - to object, to make an argument, to ask a question or to answer one - it is my stage.

The judges want to direct, of course. They can interrupt me or shut me down. At a motion hearing or in an appellate court (and also, but less readily, at trial) they can tell me to change gears, to shift topics. It's my job not to let them control things to the point where I don't get to pursue the script I'm interested in writing.

I control the stage through inflection, volume, tempo, gesture, appearance, force of personality, presence. But mostly through the words I choose. It's the poetry of prose, something more than the prose Jourdain was so delighted to learn he had been speaking all his life in Moliere's Le Bourgeois gentilhomme. The argument must be sound, the references to the law and the record precise and accurate, but like the classroom lecture, if the jury or the judge doesn't pay attention, I gain nothing. I must convince not merely through logical argument (as the courts, and law schools) would like us to believe, but through the power of how that logical argument is presented.

The judge/justice who writes an opinion need not convince. Explanation is required, but not more. It need not be convincing, or (and many who wear the robe are probably grateful for this part) even coherent. The judicial command isn't theatrical, isn't rhetorical, isn't logical (though judges and justices may be some or all of those things, as may their opinions). It's a creature solely of power.

I argue. They decide.

Their word counts because of the position they hold. Justice Jackson, concurring in Brown v. Allen, explained

We are not final because we are infallible, but we are infallible only because we are final.

The story goes that Justice Brennan would, to each of his new law clerks, hold up his hand and direct their attention to it. Then he would explain the Rule of Five. "Five votes can do anything around here." If he could round up four additional votes, he could decide the case. That simple, really.

I can do the same thing with a majority of a court. But I don't start with my own vote. You see, the word is powerful and its mere utterance calls the thing into being only when the speaker has that godlike power.

There's a fiction of fungibility, that it shouldn't matter who the judge is because, well, because. When they put on the robe, they're interchangeable. In some sense, sometimes, maybe. But ultimately it matters. A lot.

Judge Sotomayor will, barring catastrophe, become Justice Sotomayor in the very near future. Her words have been neither eloquent nor honest. Frankly, they've often not even been coherent. They didn't have to be, which shows the power of sheer power. As used, it's straight out of Through the Looking Glass.

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

And so, as Kurt Vonnegut would have it, it goes.

AND NOW THERE ARE NINE

Add to the six men already facing very real execution dates in Ohio three more. This morning, the Ohio Supreme Court this morning announced three more execution dates.

• Lawrence Reynolds, Jr. (Summit County)- October 8, 2009
• Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Lamont Smith) (Lucas County) - January 7, 2010
• Mark Brown (Mahoning County) - February 4, 2010

The court itself is less personal, beginning not with a name, but a case number.

1996-1956. State v. Reynolds.
Summit App. No. 16845. On motion to set new execution date. Motion granted. It is ordered that appellant’s sentence be carried into execution by the Warden of the Southern Ohio Correctional Facility or, in his absence, by the Deputy Warden on Thursday, October 8, 2009, in accordance with the statutes so provided.
It is further ordered that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that said warden shall make due return thereof to the Clerk of the Court of Common Pleas of Summit County.
O’Connor, J., not participating.

1998-0552. State v. Smith.
Lucas App. No. L-94-093. On motion to set execution date. Motion granted. It is ordered that appellant’s sentence be carried into execution by the Warden of the Southern Ohio Correctional Facility or, in his absence, by the Deputy Warden on Thursday, January 7, 2010, in accordance with the statutes so provided.
It is further ordered that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that said warden shall make due return thereof to the Clerk of the Court of Common Pleas of Lucas County.

2001-0524. State v. Brown.
Mahoning App. No. 96 CA 56. On motion to set execution date. Motion granted. It is ordered that appellant’s sentence be carried into execution by the Warden of the Southern Ohio Correctional Facility or, in his absence, by the Deputy Warden on Thursday, February 4, 2010, in accordance with the statutes so provided.
It is further ordered that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that said warden shall make due return thereof to the Clerk of the Court of Common Pleas of Mahoning County.

Maybe it doesn't matter too much how you phrase an order to kill. I think it does, though. There's that phrase we use about "cold-blooded killing" - the act of a lizard, not even a mammal. It suggests a mathematical calculus rather than any human feeling. If we have to think about it, feel about it, it might be harder. So here are seven folks, not wearing their robes when they meet to make these decisions. They sit around a table, I imagine, and ask what to do with this or that one. They look at a name, at a calendar. They are distant from it.

They've never seen the person whose life they're ending. Some, I think, have never been in a room with a person who's been sentenced to die. Others have imposed the sentence, spoken the words, "until you are dead." I know, from having heard her do it, that at least one would omit the trational (traditional at least in books and movies) end to a death sentence, "May God have mercy on your soul."

She surely don't have the dispensing power to order that mercy, and frankly, I don't believe in God, but still, it seemed awfully cold.

But maybe when you're ordering an aggravated murder, well, maybe that's not a time to be emotional. Ohio law, after all, says that the sentence should be determined by a rational analysis of whether aggravating circumstances (which don't include things like how the killing was committed) outweigh mitigating factors. Justice is to be both blind and insensate.

And so the death sentence becomes a kind of contract killing, although perhaps not one for profit. Today's announcement certainly is a form of multiple killing. Think of it as a course of conduct specification which, under Ohio law, makes an aggravated murder death eligible.

And may God (if she's out there) have mercy on ther souls. And on ours.