The Valley of the Shadow of Death

Once more into the breach, dear friends.

Or maybe it should be

Third time's the charm.

Judge Frost today said that Ohio gets another chance.  He began with history.

“Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.” In re Ohio Execution Protocol Litig. (Lorraine), No. 2:11-cv-1016, 2012 WL 84548, at *1 (S.D. Ohio Jan. 11, 2012). Ohio has now come forward with yet another set of reforms to its practices that it assures this Court will remedy the state’s unconstitutional conduct.

He acknowledged he was dubious.

The Court is admittedly skeptical about Ohio’s ability to following through on its latest reforms. At the heart of these reforms is Ohio’s promise that newly implemented chain-of-command and documenting procedures and a renewed if not newfound commitment to conducting constitutional executions finally mean that the state can carry out executions in a constitutional manner.

And so it was death or moratorium.

Thus, the question before the Court is whether it should believe Ohio’s latest round of promises. If this Court cannot, then the end result is a stay of the Wiles execution based on analysis that will likely lead to a court-ordered moratorium on executions in Ohio. If this Court does believe Ohio, then the state can proceed to execute Wiles and this Court will soon learn whether it erred in believing Ohio once again and perhaps one time too many.

One more time, and I've talked about this repeatedly, Ohio has an execution protocol that Frost thinks is constitutionally adequate.  Not perfect, but adequate.  It was written by the Department of Rehabilitation and Correction, the same people who carry it out.  If they did what they claim they'd do, if they obeyed the procedures they developed and wrote down, he'd have had no problem letting the killings go forward.

But they don't obey, or at least they haven't.

And the failures - random, arbitrary, unpredictable - failures because all they care about is getting the guy dead - they turn a constitutional protocol into an unconstitutional practice.

So Judge Frost decided in July 2011.  And we had no killings for few months while the state figured out how to convince him that it would, in the future, do what it said it would do.

By November, they'd done it.  New protocol.  Promises of seriousness.  

We've learned our lesson.  No more fucking around.  See, we even wrote in safeguards.

Go forth then, the Judge said.  You may kill Reginald Brooks.  Which they did.

Defendants were now saying that they got the message that it mattered that their actions matched their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol. This Court also accepted that statement.

Frost wrote that in January.  In light of the Brooks killing.  Before the scheduled murder of Charles Lorraine.  Which he stopped.  The judge explained.

As set forth below, Defendants have once again fooled the Court. 

So we didn't kill Charles Lorraine in January or Michael Webb in February.  And for some reason there never was a scheduled murder in March.

And now. 

See, they've redone the protocol again.  New safeguards and double checks.  They've even practiced the safeguards (though they screwed some of them up).  And they've promised.  

Really, we mean it this time.

Oh, sure, they're defense was stupid.

Fairly characterized, Defendants’ reasoning amounts to “because we consistently act inconsistently in regards to the protocol, we cannot be regarded as intentionally treating any specific capital inmate differently from others similarly situated.” In other words, Defendants argue that overarching ineptness in applying the protocol provides a shield against the challenge that Ohio fails to apply its own protocol. This is the epitome of close enough for government
work. The extant question is whether such a disappointing approach is good enough for the Constitution.

Frost never answers that question, which is probably for the best.  But he thinks maybe they really can be trusted this time.  Or at least, Mark Wiles hasn't proved they can't.

The answer . . . turns on the burden involved. Wiles has the burden
of convincing this Court that Ohio cannot be trusted, even in light of the new facts presented to the Court. Because he has failed to meet that burden, with the evidence nearly if not completely equally balanced on whether this Court can trust Ohio, Ohio can proceed to fulfill its lawful duty to execute Wiles.

The murder is scheduled for 10 AM on April 18th.  The Parole Board signed off on it.  Governor Kasich is likely to do the same.

And then? Frost isn't exactly brimming with confidence.

            This Court is therefore willing to trust Ohio, just enough to permit the scheduled execution.
            The Court reaches this conclusion with some trepidation, given Ohio’s history of telling this Court what Defendants think they need to say in order to conduct executions (or in convincing themselves that things are fine enough when they are not) and then not following through on promised reforms.

There's another scheduled break in May.  That'll give Frost time to reconsider, yet again, before the planned murder of Abdul Awkal on June 6. 

Judge Frost Gives Ohio Another Chance, 4-4-12 Opinion

I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. UPDATED

High on the list of things I didn't plan to be writing about was Obama's world-class stupid claim on Saturday (see here) that courts have never found laws to be unconstitutional.

Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

They do it all the time.  Nothing new about that.  The power of judicial review is nowhere mentioned in the Constitution, but it was asserted forcefully in 1803 in Marbury v. Madison, and while various folks have carped about it and claimed it to be unconstitutional ever since, it's also well-entrenched, clearly-settled law that has been applied for now over 200 years.
Obama was not just wrong.  He was egregiously wrong.
But he's a politician and he was making a political argument, however ill conceived.  These things happen and we go on with our lives while the President takes a hit for being an idiot and lying to the American people and maybe prejudicing SCOTUS against the Affordable Care Act just to show him.  Bad move all around.  Ho hum.  Nothing to blog about there.
Except then the Judge Jerry Smith spoke up.
Smith sits on the 5th Circuit Court of Appeals, and was part of a panel yesterday hearing another of the numerous cases challenging the ACA, Physicians Hospital of America v. Kathleen Sibelius, Secretary.  And he was pissed.
Of course, he couldn't take it out on Obama.  So he took it out on the closest person he could get to, Dana Lydia Kaersvang, a lawyer with the Department of Justice who was there to defend the law, spanking her and demanding a note from Mom and Dad.  A long one.
Here it is, thanks to the Wall Street Journal blog which apparently had part of the oral argument (you can find it and listen here) transcribed.

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

Of course, it doesn't really matter to the Fifth Circuit's resolution of the case whether Kaersvang  believes in judicial review. Or whether Eric Holder does.  Or whether DOJ as an institution does. Or whether Obama does.  Smith's opening question is the sort that appellate judges too often ask that don't really matter.  It's a bit of pettiness of the sort appellate lawyers come to expect from time to time.  But the demand for a note?  That's simply abusive, an act of petty tyranny.
And at length? And with specifics?  What the fuck will they write?
Dear Judge Smith:

We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.

And so on for 3 typewritten pages?
Or perhaps this:

Dear Judge Smith:
Asking the Department of Justice of the United States of America to explain in detail and in three, single-spaced, typewritten pages (May we use a large font? And what size must the pages be?) to explain in detail why the decision of the Supreme Court of the United States in 1803 in Marbury v. Madison is a decision of the Supreme Court of the United States and is therefore the law of the United States of America unless it is someday overruled by another decision of the Supreme Court of the United States or by an amendment to the Constitution of the United States of America is a really good idea.
The Department of Justice of the United States of America believes that it is important to explain that the decision of the Supreme Court of the United States in 1803 in Marbury v. Madison is a decision of the Supreme Court of the United States and is therefore the law of the United States of America unless it is someday overruled by another decision of the Supreme Court of the United States or by an amendment to the Constitution of the United States of America.

And so on for 3 typewritten pages?
I mean, what the hell are they gonna say?  And why?
Judges get to abuse lawyers.  The power comes with the robe.  Ah but as Uncle Ben said in the movie,*

Which is maybe what Kaersvang should have said.  Respectfully.
On the other hand, Obama really should be forced to write on the blackboard 100 times.

 UPDATE

See, also, Ken's post at Popehat.
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*The comic book original is by the narrator, "[W]ith great power there must also come - great responsibility."  Of course, Stan Lee took the idea and modified the words only slightly from elsewhere.

On the Law of Unintended Consequences

When the Arizona legislature passed House Bill 2459 (awaiting signature), its members (or at least those who voted for it) probably didn't stew much about the fact that it's pretty clearly unconstitutional.  Instead, I imagine, they recognized a problem (in the age of the internet, it's possible to be nasty over the internet) and decided that something had to be done.  Here's what they did (and I'm quoting Scott Greenfield who in turn quotes first the bill and then Eugene Volokh).

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

It's grown tedious discussing what's wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you've committed a crime?  What a bunch of assholes. Oops, guilty.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else.

Of course, it's pretty much always a bad idea for legislators (and others with the power to enforce their will, I should add) to decide that they need to do something.  What happens, you see, is that something quickly becomes anything.  But anything typically achieves nothing.  Actually, that's not true.  Rather, the anything rarely achieves the desired result.  It does, however, achieve (typically) the wrong things.

I could carry on at length here about TSA as an example, but it's such an easy target, it hardly seems worth the typing.

There are the various versions of SORNA, the sex offender registration and notification acts.  They're designed to let everyone know where sex offenders who have paid their debt to society live so their houses can be burned down the neighbors can tell the children to play with Uncle Charlie or sign up to be altar boys instead.  SORNAs don't actually prevent sex offenses.  They just distract the cops from their real jobs.

There are the Stand Your Ground laws, too.  But really there's nothing much to add about the Trayvon Marting/George Zimmerman affair.  A young man is dead, seemingly for no good reason.  And while the rush to judgment (Zimmerman: Hero or Monster? You Make Up the Facts and the Law) is unseemly, it does seem pretty clear that if Zimmerman didn't have a gun, he wouldn't have shot Martin.  Whether he was secure in the shooting because he believed himself protected by the law is a completely different question.

And of course there was the law against crush videos.

But it's not just laws designed to address the big stuff we all fear daily.  (Remember the folks who thought it a miracle that the man who stopped to help a distressed child didn't abduct her and chain her in a basement for decades because that's what at least half of all men would have done.)

Really, it's just about every time they try to solve a perceived problem with the legal system.  Consider, if you will, marriage.  Forget the contentious stuff.  I'm not talking now about same-sex marriage or DOMA.  No, I'm talking about the horrible problem of people marrying their close relatives. It's illegal everywhere and a damned good thing because if you could legally marry a close relative why it's pretty clear that almost everyone would and then we'd all be living in what's stereotypically thought to be West Virginia.

Anyway, Ken Lammers in Virginia actually did what good lawyers do.  He read statutes and followed their language and discovered that . . . wait for it . . . 

It's illegal to marry in Virginia if you were ever divorced.

At least maybe.  They didn't mean to make it a crime.  And maybe nobody will get prosecuted for it.  But some cop on a morals crusade and the next thing you know the newlyweds are being strip searched at the local lockup.

I've quoted before the words of a fine judge who told me once that legislators should never be allowed to mess with criminal law.

They just fuck it up.

Life & Death & Life & Death & Life & Death &

I wanted to write about Tommy Arthur.  

The good people of Alabama, the Yellowhammer State, are eager to kill him for the murder of Troy Wicker back in 1982.  Of course, he might not have done it.  But hey, why let bother you?  It doesn't seem to bother them.

Here's the thing.

There's really only one significant bit of evidence against him.  Wicker's wife, Judy Wicker, says Arthur did it.  Of course, she didn't say that in her first 7 statements.  She didn't say it, in fact, until she was doing time for paying a hit man $90,000 to kill Troy. That's when the state offered to let her out early if she'd finger Arthur.  She took the deal.

Then there's Bobby Ray Gilbert.  He confessed to the killing under oath.  But they did some DNA testing and it didn't match, so the courts figured he was lying.  After all, if DNA doesn't put someone at the scene, he must be innocent.

Oh, wait.  DNA doesn't put Arthur at the scene, either.

Anyway, there's more to test and more sophisticated testing and it can be done and should be done and Alabama won't even have to pay.  But of course it refuses.

Because, you know, 

OK, I don't know why, either.

And so, after 25 years on the row, 70-year-old Tommy Arthur was marching toward his 5th execution date in the last 11 years.  A very real one.  March 29.

But it didn't happen.  What did happen is some terrific lawyering.  The 11th Circuit granted a stay, refused a motion to reconsider, and that was that.

Of course, it had nothing to do with the DNA, nothing to do with whether Arthur actually killed Troy Wicker.  Nobody much seems to care about that.  No, the stay was over lethal injection and the use of pentobarbital as the first drug in the three-drug sequence.

Still, now there's time.

And that means a chance.

Which is what I wanted write about.  And then the Ohio's Attorney General's office issued the Capital Crimes Annual Report.*

2011 Cap Crimes Annual Report Narrative and Covers (BSL)

It's not exactly bedtime reading, but it has it's own fascination.  There's a short "History of Ohio's Death Penalty," a review of the statutes, a bit on DNA and mental retardation, lists of who left the row and how.

But the meat of the thing is the "Case History Sheets," a page devoted to everyone who's been sentenced to die in Ohio with a "Summary of the Crime," a chart giving the dates of the standard procedural history of the case, and information about the current (as of Dec. 31, 2011) status of the case.  In 46 cases, that status is "executed by lethal injection."  In 22, it's "died of natural causes."** 

Of course, there's a certain bias to the thing.

Joe D'Ambrosio, exonerated, is almost certainly factually innocent. You wouldn't exactly get that impression from reading this "Summary of the Crime."

On 09/24/88, D'Ambrosio and two accomplices, Thomas Keenan and Edward Espinoza, murdered 19-year-old Anthony Klann at Doan's Creek in Cleveland. Mr. Klann was friends with a man the defendants were looking for because Keenan claimed the man stole his drugs. D'Ambrosio, Keenan and Espinoza kidnapped Mr. Klann at knifepoint, beat him with a baseball bat and stabbed him several times. Thomas Keenan also received a death sentence.

Then again, the state's never conceded error in D'Ambrosio's case.  Or, now that I think about it, in the case of anyone else they sent to the row.

Cause they're all guilty.

Even the innocent ones.

Which returns us to where we began.  With Tommy Arthur.  

Who's still alive.

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*The official publication date is Sunday, April 1, but it's available now, as you can tell since I'm embedding all 354 pages of it here.

**That's as of Dec. 31, 2011.  The number is up to 23 now, since 75-year-old Billy Sowell died earlier this week.

Obeying the Law

This is sort of about the Rule of Law trumping the Law of Rule.  I mean, yeah, that's what happened.  But really, this is about a court just saying that the law means what it says.  Which is no small thing.

I've observed before that executions in Ohio are, quite literally, criminal acts.  To carry out an execution is to cause the death of another purposely and with prior calculation and design, which is exactly the offense of Aggravated Murder as defined in our statutes.  (See here.)  I'm told that some states specifically add language to their murder statutes saying something like "without privilege to do so" or do something else to exempt from the criminal offense those who act under the authority of a court order.  That may or may not be true of some states.  It's emphatically not true of Ohio.

So our executioners are factually guilty of Aggravated Murder.

They're not legally guilty of it, of course.  That could only happen if they were prosecuted and found guilty.  It's just about inconceivable (not quite, since the ability to imagine the virtually unimaginable is boundless), of course, that the executioners would actually be prosecuted and found guilty for carrying out an execution, but that's not because the act is lawful.  It's just that those who run the legal system don't mind that particular illegality (and no jury in Scioto County would be inclined to convict even if some rogue prosecutor decided to indict and somehow convinced a grand jury to return that indictment.

All of which is kind of an introductory digression - but kind of not.
Another subject I've written about with some frequency is thiopental sodium, the traditional first drug in the three-drug sequence with which state murder by injection has mostly been performed.  I'm not going to bother with the links here, but for a quick recap, the drug sequence was a barbiturate anesthetic (thiopental), a muscle-relaxing paralytic (pancuronium bromide), and a heart-stopping salt (potassium chloride).
Thiopental was manufactured for sale in this country only by the pharmaceutical manufacturer Hospira.  And Hospira decided that it didn't really want to be in the killing business.  And its supply of a key ingredient in the manufacture dried up.  So there was no more.
Into the breach stepped Dream Pharma, a drug distributor working out of the back of the Elgone Driving Academy in London. 

Dream Pharma was happy to export supplies of thiopental to the US so that the killing could proceed.  The problem is that they weren't licensed to do that and the thiopental they had wasn't tested and approved by the FDA. Nor was thiopental that was smuggled imported from elsewhere.
Killings ensued, but so did raids by the DEA.
'Twas a mess.
And of course there were lawsuits.
Which is what brings me to where I began. That this is sort of about the Rule of Law trumping (for a change) the Law of Rule, but that it's really about a court just saying that the law means what it says.
The court is the United States District Court for the District of Columbia. The case is Beaty v. FDA.  What happened is this.
The plaintiffs (death row inmates from Arizona, California, and Tennessee) said that the FDA

acted contrary to law, in an arbitrary and capricious manner, and in abuse of their discretion when they allowed shipments of the misbranded and unapproved new drug thiopental to be imported into the U.S., and [asked for] a permanent injunction prohibiting the FDA from releasing any future shipments of unapproved foreign drugs into interstate commerce.

The FDA and the other government defendants didn't dispute that the thiopental was a "misbranded and unapproved new drug" under the Federal Food, Drug, and Cosmetic Act.  But they said they were exercising their discretion to ignore violations of the law because, well, why the hell not?  They were just killing bad guys.  In effect, the government said there was a death-penalty exception, an execution exception, to the law.
Enter the Honorable Richard J. Leon, who concluded - and really I hate to say this is shocking, but it is -

Thus, defendants have acted arbitrarily and capriciously, and have abused their discretion both by departing from FDA's own regulations and longstanding policies and by undermining the purpose of the FDCA.

Beaty v FDA 3-27-12 DCT Memo
Which is well and good, but tends to leave you saying, "So what?"  I mean, OK they did a bad.  Now what?
Oh!
Beaty v FDA 3-27-12 Order
Look, it's a little less than meets the eye.  Arizona has joined the growing ranks of states that no longer use thiopental.  Tennessee has, according to news reports, already turned over its smuggled imported supply of the drug to the feds.  And California - well, they don't actually kill anyone out there and god knows what system they'll use if they ever actually get back to it.
So it's not really the confiscation from those states.  It is, instead, the permanent "knock it off" order and the court-ordered return of supplies from any state that's got them.  And it's the recognition that the law means what it says. Even in capital cases.  Even when it's the death penalty.  Because there is no execution exception.
That is, of course, the Rule of Law.  As it should be.

The Revolution Returns

It is with great pleasure that I welcome Carol D and Public Defender Revolution back to the blogroll.  Her's is a terrific voice that was with us for all too short a time.  And now she's gracing us with a serialized novel.  I can't wait.

No Soup for Him

While I haven't been blogging, the death machine has been marching on.  We've killed 11 in the US so far this year, 5 this month alone.
Mississippi and Texas each have 3 of the 11, Arizona and Oklahoma 2 each.  Florida's murdered just one so far.
Here in the Buckeye State, our killings have been on hold since Judge Frost and then the 6th Circuit concluded that Ohio couldn't be trusted to obey the protocol it adopted, the protocol that Judge Frost and the 6th Circuit believed to be constitutional, the protocol that Ohio made up. We devised a constitutional system, they said, then refuse to follow it.  So Charles Lorraine wasn't killed in January, and Michael Webb wasn't killed in February, and there was always a scheduled March hiatus.
Which brings us to Mark Wiles, due to be murdered at the Southern Ohio Correctional Facility in Lucasville on April 18.
Maybe.
I mean, maybe they'll convince the judge (again), that they will follow their own rules.  Or maybe the 6th will believe them this time.  Or maybe SCOTUS will step in.  Or, of course, maybe they'll just hold off (as they did with Webb) while they try to think up something new - a protocol they like enough to obey, maybe.
But meanwhile, the gears of the death machine get greased and Mark Wiles moves a few steps closer.  Friday, the Parole Board said to kill him.
I've said before, and repeatedly (go search the archives), that executive clemency - whether pardon or commutation - isn't (or at least shouldn't be) about desert.  It's about mercy and grace.  It's not about the grantee but about the grantor.  Wiles understands that.  At his interview with the Parole Board, he was asked why he thought he deserved clemency.

Wiles responded that he was not sure that he is worthy of clemency.

Later, at the parole hearing, his lawyers told the Board the same thing.

Wiles has stated repeatedly to his counsel that he has no excuses for his actions and that he doesn't deserve clemency, but he wants to live and he knows that applying for clemency is the only way to receive it.

Wiles killed Mark Klima in August 1985.  He was tried less than six months later.  He's been on the row now for over 26 years. 
Oh, sure, he's been a good prisoner.  And sure he's accepted responsibility.  And sure he's accepted remorse.  It isn't enough.  He hasn't cured cancer.  He isn't factually innocent.

While Wiles does express remorse and admits to committing the offense, that remorse and acceptance of responsibility does not mitigate nor outweigh the brutal attack on a defenseless young man who was beaten and stabbed repeatedly in his own home.  Wiles' remorse, acceptance of responsibility and good institutional conduct do not equate toa substantial enough reason to recommend clemency.

Because even as Wiles gets it, the Parole Board doesn't.
Wiles Clemency