Valuable But Annoying

The purpose of this book is not to make the case for or against abolition. . . . The foremost goal of the book is to determine whether the Supreme Court has achieved its goal of reserving the death penalty for the wors[t] offenders.

Those are the first and last sentences of the last paragraph of the introduction to Kenneth Williams's valuable but annoying new book, Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence. 

It's not giving anything much away to tell you that his answer is that it has not.

Part of the reason, a part Williams knows but doesn't acknowledge but that is a fundamental feature of how our legal system operates (this much in both theory and practice) and what the Court does (again in both theory and practice), is that the Court neither tried to achieve that goal nor could have  achieved it if it were so inclined.

Within strictures that the Court finds (or doesn't find) on any given day, it's the legislatures (state and federal) that determine what death penalty law will be and which offenses will make folks eligible.

It's not just murder.  As a very find lawyer I knew in Texas used to explain when picking a capital jury, "It's murder plus."  In Ohio, that plus is one of 10 specifications.

(1) The offense was the assassination of the president of the United States or a person in line of succession to the presidency, the governor or lieutenant governor of this state, the president-elect or vice president-elect of the United States, the governor-elect or lieutenant governor-elect of this state, or a candidate for any of the offices described in this division. For purposes of this division, a person is a candidate if the person has been nominated for election according to law, if the person has filed a petition or petitions according to law to have the person’s name placed on the ballot in a primary or general election, or if the person campaigns as a write-in candidate in a primary or general election.
(2) The offense was committed for hire.
(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.
(4) The offense was committed while the offender was under detention or while the offender was at large after having broken detention. As used in division (A)(4) of this section, “detention” has the same meaning as in section 2921.01 of the Revised Code, except that detention does not include hospitalization, institutionalization, or confinement in a mental health facility or mental retardation and developmentally disabled facility unless at the time of the commission of the offense either of the following circumstances apply:
(a) The offender was in the facility as a result of being charged with a violation of a section of the Revised Code.
(b) The offender was under detention as a result of being convicted of or pleading guilty to a violation of a section of the Revised Code.
(5) Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.
(6) The victim of the offense was a law enforcement officer, as defined in section 2911.01 of the Revised Code, whom the offender had reasonable cause to know or knew to be a law enforcement officer as so defined, and either the victim, at the time of the commission of the offense, was engaged in the victim’s duties, or it was the offender’s specific purpose to kill a law enforcement officer as so defined.
(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.
(8) The victim of the aggravated murder was a witness to an offense who was purposely killed to prevent the victim’s testimony in any criminal proceeding and the aggravated murder was not committed during the commission, attempted commission, or flight immediately after the commission or attempted commission of the offense to which the victim was a witness, or the victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation for the victim’s testimony in any criminal proceeding.
(9) The offender, in the commission of the offense, purposefully caused the death of another who was under thirteen years of age at the time of the commission of the offense, and either the offender was the principal offender in the commission of the offense or, if not the principal offender, committed the offense with prior calculation and design.
(10) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit terrorism.

Are those offenses the worst of the worst? Are they equally bad? What about if the offense was committed for fun and involved slowly torturing someone to death?  Ooops.  Not eligible unless one of the 10 specs applies.

So is Ohio's list the right one?  Could we ever all agree (not necessarily on whether there should be a death penalty - just on whether this or that offense is the worst possible?  The Court could say (and has said) that some offenses don't qualify.  It doesn't have the authority, really, it doesn't, to say, "Here's the list, guys."

And it certainly doesn't have the authority (or even the ability) to force prosecutors or grand juries or whatever system in your state to pursue a death penalty trial of every person who's the worst of the worst.  Nor can it get juries to always rule correctly.

It just can't do those things.  It can't do them systemically and it can't do them as a practical matter since it resolves cases one at a time, making rules - but even the rules are, at least to some extent, fact-bound and case-specific.  And since it can't do them, it can't ensure that the death penalty will be "reserv[ed]" for the worst of the worst, for those "most deserving of death."

That's not to say that the berobed ones at 1st Street, NE, in DC wouldn't like to see the death penalty reserved for those folks.  At least some of them would.  Hell, Harry Blackmun's explanation of why he concluded after more than 20 years on the Court that the death penalty is unconstitutional is basically just that.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

I'm laboring this because it points toward one of the two reasons why the book is annoying.  (I'll get to why the book is valuable in a bit, and to the second reason it's annoying after that.)  It pretends to be what it isn't and pretends to do what it can't.

It's not just theory and the system, either.

Consider this.  The first substantive chapter is about ineffective assistance of counsel.  Now, the truth is that a large percentage (and no, I don't know what the percentage is) of those who end up on death row were represented inadequately at trial.  Sometimes that's because counsel was lazy, incompetent, distracted, racist, asleep, conflicted, vicious . . . . I could go on. Sometimes it's because counsel was denied the time or resources to do the job adequately.  Sometimes it's all of that.  And sometimes maybe most of the time, maybe almost all of the time, those people would not have been sentenced to die were it not for those problems.

That's a serious flaw in our system, and one that the Court cannot remedy.  It can make the test for ineffective assistance easier to meet, but it can't prevent ineffective assistance.  It can make rules easing the burdens that must be met to obtain resources, but it can't make the states actually provide those resources.  And as a practical matter, it can't (and wouldn't if it could) scrupulously review every death sentence to try to correct those failings.

BUT, and this is really the point, none of that will guarantee that only those deserving of death (assuming the category could even be identified) will actually be sentenced to die.  Because there's too much that's ultimately random - including what those 12 people in the jury box will choose to believe.

Or consider the chapter on methods of execution.  Imagine that we found a killing method that is, every time and without exception, wholly quick and painless.  Would that have any bearing on whether it was applied to the right folks?  (The answer, if you're wondering, is that it would not.)

So we have this book with a declared goal, one repeatedly announced by the way, that it cannot and really does not even pretend to be able to meet.

Nor is it's asserted agnosticism about the death penalty supported by what's inside.

Take innocence. Please.

As I've said more than once, we're always looking for the incontestably dead innocent guy.  We've got a whole bunch of likely ones, but absolute, incontestable, definitively, no question about it, we killed the wrong guy?  Not yet.

Bear with me as I mention Cameron Todd Willingham.  Let me be clear about this if I haven't been before.

1. I think he didn't do it.
2. There's no credible evidence he did it.
3. The bulk of the credible evidence suggests that he didn't, that it was a horrible accident.
4. But he could have done it anyway.

Life is mostly like that. So are our innocence cases.  Unless you just believe.  Williams says that there are two sure, absolutely proved innocent but executed guys: Willingham and Ruben Cantu.  Like Willingham, Cantu has strong claims of innocence.  Like Willingham, it's possible that he did it.

You lose points, Williams loses points, when he turns likelihood into fact.

OK, so all that's annoying.

But the book is valuable anyway.

Williams is a law prof at the South Texas College of Law.  And he's done a remarkably good job of satisfying not his stated goal but his subtitle's claim in a short, understandable-for-the-layman, book.

An Analysis of the Supreme Court's Death Penalty Jurisprudence

Chapter by chapter he takes on how SCOTUS has dealt (and mostly failed to deal with) the capital law.  Along with those discussions of ineffective assistance, of innocence, and of execution technology, he takes the reader on a tour of the Court's evolving shifting rulings on race, on mental illness (a category in which he includes mental retardation, which will surely trouble many advocates, but the subject has to fit in somewhere, and that's probably as good a place as any), and on international law.  And he runs through the peculiarities of capital trial and post-trial procedures.  (He misses important and dangerous developments in habeas law from early in 2011, which is surprising given how up-to-date the book is, but there you have it.)

Finally, he talks about judges and why they are reluctant to overturn death sentences.  (Curiously he explains that no abolitionist can become a judge and then explains why those judges who are abolitionists don't always vote against death sentences.)

All this is important stuff.  And it's lucid, which is no small thing (especially from a law professor writing for a serious academic publisher.

If you're a lawyer who does death penalty work seriously you probably know all of this.  If you're an abolition activist, you might not know all the details, but the general outline won't contain any surprises.

For the general reader, on the other hand, I think this is probably a terrific resource.  It's informative, lucid, generally reliable.  (Though that missing word not in the second line on page 81 is a serious problem.)

Oh, sure, it's boring.  Keeping the book semi-scholarly and quite short means that Williams doesn't really tell stories (and the ones he tells get very short shrift).  Jack Webb went a long way reciting "just the facts."  Williams doesn't garner the same sort of drive reciting just the holdings.  But boring has its uses, too.  Because it makes clear that this is the everyday.  It's the norm.

We'll never agree, of course, on who is "most deserving of death."  Hell, that's a moral question - and an ethical one.  It involves peering into the human heart.  It's way beyond what law can do.

Really, the argument is a sham.  But if Williams's stated goal is specifically not be to make the case for abolition, he does a pretty good job of making much of the practical case for it.  The system he reveals is simply and necessarily unfair.  It's both ragged and rigged, and you won't find five people on the Court who are sufficiently bothered by that to change it in any fundamental way.  At least, not any time soon.

Williams makes that clear.  Which makes Most Deserving of Death? an important book.

OK, the last annoyance.  Remember my reference to the missing not on page 81.  That's just the grossest example.  The book is seriously in need of a copy editor.  Typos, clumsy and misleading phrasing, overstatements contradicted on the next page.

Look, I don't proofread this blawg, but despite the fact that the internet is forever, the blawg is really ephemera.  Williams has a serious scholarly press behind him that charges library rates for its books.  (Amazon has it priced at $99.95.)  They can and should do better.

And one more.  There are three supportive blurbs from law professors on the back cover. Two of those folks are thanked in the acknowledgements for reading the manuscript and making suggestions.

His mother probably has nice things to say about the book, too, though I notice he didn't thank her.

DISCLOSURE

I solicited, and through the generosity of the publisher received, a free copy for review.

Kill 'Em While We Can

They must be worried.

How else to account for it?

723 men and women on the row.  Just 13 executions.  It's been over 6 years since the last one.

But suddenly . . .

They must be worried.

How else to account for it?

They've spent years litigating around the margins, insisting that they can save the three-drug sequence the judge says is unconstitutional rather than switching to a one-drug scheme he says is likely fine.

But suddenly . . .

They must be worried.

How else to account for it?

Governor no-longer-Moonbeam Brown said just three-days after that they should consider switching to the one-drug method.

And suddenly . . .

They must be worried.

How else to account for it?

Because suddenly . . .

Kent Scheidegger, who may or may be worried himself, explains.

The legal theory in this motion is, in part, the same as in CJLF's petition for writ of mandate, noted in this post.  The California Department of Corrections and Rehabilitation has a duty to execute these sentences.  While that department has broad discretion on the specifics, continuing to litigate the enjoined three-drug protocol for years after the federal court has given the go-ahead to resume executions with a one-drug protocol is an abuse of that discretion.

Because they must be worried.

Which is why, suddenly . . .

Dan Whitcomb for Reuters:

Los Angeles prosecutors asked a judge on Wednesday to order the execution of two condemned killers using a single drug for lethal injections, a move intended to end a 6-year hold on the death penalty in California over the method used by the state.

The move comes days after Democratic Governor Jerry Brown told prison officials to consider using the single-drug execution protocol, and ahead of a November ballot measure that seeks to repeal capital punishment in the state.

Maybe it's just me, but the tea leaves here suggest that they're really scared abolition will pass.  And they won't get to kill all those folks.

 

Pay No Attention to the Court Behind the Curtain

The image they want us to have, really, they do, is of nine berobed men and women deep in thought, carefully analyzing and parsing, picking apart arguments for logic and coherence, deeply, intensely, completely committed to ensuring that the republic will not only endure but that it will be THE REPUBLIC, the one the framers envisioned.

They have strong views about matters of public policy, but they set them aside every time and decide with dispassion and disinterest.  Getting it right is all that matters, preferences be damned.

Wrapped in their self-importance and power (Newt thinks they should be ignored, but Newt lost; Jackson did ignore them, but Jackson's dead), cadavered in their marbled edifice, these graduates of Harvard and Yale (9 out 9 attended law school at one or the other) probably believe it themselves.

Even when it's an obvious lie.  (See, for instance, Bush v. Gore.)

Oh, it's not unusual for one to call the others out in a dissent.  Scalia does it with some regularity.  Thurgood Marshall did it in memorably and with careful and substantive analysis in Payne v. Tennessee. He began this way.

Power, not reason, is the new currency of this Court's decisionmaking. . . . Neither the law nor the facts . . . underwent any change in the last four years. Only the personnel of this Court did.

But even then they all go out for drinks and cigars, smug in their integrity.

They pride themselves in working in a building that has, etched in its facade,

EQUAL JUSTICE UNDER LAW

Surely a noble ideal.

And there it is, expressed right over the main entrance. 

You know, the one they turned into an exit only.  Equal justice under law on the way out.

And now the ultimate admission.  That rich courtroom, surprisingly intimate, filled with lawyers and tourists and those who just want to be in the presence.  

It's a prop.

I'd call it a Hollywood set, but they actually built those things on the studio back lots.

No, this is theater.  Grand guignol.  

The Supreme Court building was constructed in 1935.  Seventy years later, a chunk of the marble facade fell off and crashed into the plaza.  In a burst of humanity, and despite the fact that the Constitution was silent on the subject, nobody was injured.  Still, it was a sign.

The damn thing is crumbling.

So they put up protective netting and hired experts and read briefs and held oral argument examined and considered and concluded that they had to do a massive repair job.

It begins next week and will take about 21 months, they announced in a press release.

The project will require the erection of scaffolding on the west side of the building.  The scaffolding and ongoing conservation work will be concealed by a scrim that will mimic the Court’s architecture.

So they're hanging a curtain. With a painting of the front of the court.  Or maybe a photo.

And don't worry about getting in past the scaffolding and the curtain.  Remember, the front door is a sham anyway.  The public, like all good supplicants, has to use the servant's entrance on the side.

Because EQUAL JUSTICE UNDER LAW is, after all, just a phrase.

At the scotusblog, Lyle Denniston (hat tip for this news, by the way) poses the facetious question.

Which is the real Supreme Court?

The proper question is whether there is such a thing or it's all just a bit of showmanship.  Smoke and mirrors.

Concurring in Brown v. Allen, Justice Jackson explained.

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

Pull back the curtain - or hang it - and that becomes especially clear.

Pro Fucko Publico

[M]ore people are struggling financially; more people need legal services to cope with foreclosures, evictions and credit and employment problems that could push them into long-term poverty; and state and federal financing for legal services has plunged.

So writes Anne Barnard in the Times.  She's right. 

And it's not just those civil cases where people need lawyers but have no formal right to them.  The criminally accused have a right to counsel guaranteed by the Sixth Amendment to the Constitution, but that right is too often barely met if at all.

We're a nation vastly overlawyered with thousands of new lawyers each year, many of them saddled with nearly insurmountable debt and no jobs.  Yet there's a deep and ever-increasing pool of folks who desperately need but cannot obtain legal services.

There's something wrong with this picture.

Courts encourage lawyers to take on cases pro bono to help out.  Bar associations encourage lawyers to take on cases pro bono to help out.  The big law firms have pro bono departments to help out.  And, of course, lots of lawyers take cases pro bono because it's the right thing to do.* 

Here and there around the country there's a mandatory pro bono program of one sort or another. And in many places (Barnard mentions New Jersey and we've previously encountered New Orleans but it happens in many places and many ways), lawyers are sometimes conscripted for cases.

But it's not nearly enough.

Enter New York's Chief Judge Jonathan Lippman who made it public yesterday.  As Barnard reports, beginning in 2013,

The approximately 10,000 lawyers who apply to the New York State Bar each year will have to demonstrate that they have performed 50 hours of pro bono work to be admitted, Chief Judge Jonathan Lippman said. He said the move was intended to provide about a half-million hours of badly needed legal services to those with urgent problems, like foreclosure and domestic violence.

Carolyn Elefant says this is terrible.

There’s so much wrong with this proposal that I scarcely know where to start. But given that law students are graduating deeply in debt, shouldn’t they focus on paying work – even if it’s at a Starbucks or pizza parlor – rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

I'm a bit confused by that last sentence but she's on to something.  Lippman says it's just a week, but when you have no money and no prospects, well

And I'd note the irony that the requirement that the 1% perform pro bono (because the 99% don't do enough of it ) was announced on a day when the Occupiers were marching and clamoring.  Carolyn didn't make that particular observation, but she did note the broader irony.

As a New York licensed lawyer myself, I am outraged and offended that wealthy lawyers are passing the buck to those just starting out.

But it was in response to a comment by Karen Eichman that Carolyn got to the real point.  Eichman wrote:

What kind of pro-bono work is a new graduate required to perform in order to obtain admission? I would think they cannot do pro-bono legal work, as doing so would be practicing law without a license.

To which Carolyn responded:

Good point. Maybe NY thinks that the poor don't need licensed lawyers.

Pshaw. 

The already licensed will happily ensure that the unwashed unlicensed lawyers do the work of licensed lawyers brilliantly, carefully overseeing the half million hours a year performed by those 10,000 would-be lawyers.  The Times makes that clear in an editorial.

 Like many states, New York allows law students to perform legal work under the supervision of faculty members or legal services groups.

You'll excuse me if I'm not sanguine.

Look, there's a desperate need for lawyers to provide legal assistance to the poor.  It's a need that we, as a society, are demonstrably unwilling to meet if it requires actual resources.  It's a need that we, as lawyers, are either incapable or unwilling to meet.  

It's a need for lawyers, for people who know what they're doing (one wishes all lawyers did), for people who care about what they're doing (one wishes all lawyers did), and for people who are, well, lawyers.

Pro bono publico  is Latin.

It means, "For the public good."

Which is sometimes expressed, though not, as it happens by Marie Antoinette, as "Let them eat cake."

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

*There is, of course, a PR element to all (or at least much) of this, too, of course: See, lawyers aren't sleazy.  We're noble.  Look at all we do for the needy.  And you think we're only out to line our pockets.  Hah!  We'd starve ourselves for the public good.

We, the People

• Death on the installment plan.
• Slow death.
• Death penalty light.
• Death in prison.

That's the alternative sentence.  You know, life without the possibility of parole.  LWOP (pronounced EL-wahp).

It is, as I've said repeatedly (here and here, for instance), a horrible sentence. Not so much because it is, in fact though not name, a death sentence (the word life in the name is really something between euphemism and oxymoron).  But because it's a sentence of hopelessness, of rejection.

We don't care.
We can't be bothered.
Just rot.

And yet.

When Connecticut abolished the death penalty (see here and here, signed by the Governor Wednesday), it didn't just replace it with LWOP, it replaced it with enhanced LWOP.

• Solitary confinement.
• Release from cell no more than two hours a day.
• Cell searches every two days.
• No contact visits.
• Movement to a new cell every 90 days.
• Forever.
• Until death.

They'd probably have added a requirement of eternal damnation if they could have figured out how to enforce it.

And yet.

California is on the cusp.  Abolition will be on the ballot there in November, and it just might pass.

To be replaced, of course, by LWOP.

If California dumps the death penalty this November, abolitionists will probably dance in the streets. But they shouldn’t, because the state would be abandoning one terrible idea only to replace it with another.

That's David Dow, Cullen Professor of Law at the University of Houston, author of The Autobiography of an Execution (reviewed here), writing in the Daily Beast.  He explains.

. . . Life without parole is as dehumanizing as death itself, and in some ways it is even worse.

On the plus side, LWOP saves lives, but that’s about it. In every other way it’s a nightmare: It gives up on everyone, regardless of whether they exhibit any capacity for growth and change; it robs people of hope; it exaggerates the risk to society of releasing convicted murderers; and it turns prisons into geriatric wards, with inmates rolling around in taxpayer-funded wheelchairs carrying oxygen canisters in their laps.

Forget the geriatric ward thing for the moment and concentrate on the giving up part.

There are those who should probably never get out.

From the LA Times earlier this month.

In rejecting freedom for Charles Manson, a California parole board Wednesday said they were swayed in part by comments he made to prison psychologists.

 John Peck, a member of the parole panel, quoted from the statements.

"'I'm special. I'm not like the average inmate,'" Peck said, according to the Associated Press. "'I have spent my life in prison. I have put five people in the grave. I am a very dangerous man.'"

Well, then, OK. If he's still too dangerous to put on the street, don't put him on the street. Makes perfect sense (though our competence to make those judgments is kinda iffy).

But it doesn't require LWOP.  Which isn't Manson's sentence.

And see, that's the thing.

I've said repeatedly that clemency isn't about them, it's about us.  (No links, look it up for yourself. I've linked to myself enough in this post.)  So is this. About us.

Who are we?  And who do we want to be?

If it's about vengeance, if we're about vengeance, if all we want is to inflict suffering, then sure.

Back to gnawing to death by rats in Yankee Stadium.  (OK, one more link to earlier posts - here, for instance.)

But maybe we're better than that.  Or at least, maybe we should try to be.

I mean, there's that 8th Amendment thing about cruel and unusual punishment.  And maybe that bit from Leviticus 19 about loving one's neighbor as oneself - even the neighbors you don't like all that much.

Lincoln offered this.

We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

Which LWOP surely denies. Denies even in possibility. Or desire.

So Dante, noting the signpost over the gate in the first book of the Commedia.

Lasciate ogne speranza voi ch'intrate.
Abandon hope, all ye who enter here.

And, of course, those who rule that place.  Which is Marlowe.

                  for where we are is hell
And where hell is, there must we ever be. 

And yet. 

I rejoice at what Connecticut did.  Not because it's perfect.  Far from it.  Very far.  But because it's something.  Because for those of us who toil (whether full-time or just occasionally) in the fields of abolition and capital defense, saving a life no small thing.

So while Dow's right, that in some ways LWOP may be worse, it's not killing.

One enormity down.  Which is a helluva step, when you think about it.

There are, as I write this, 723 men and women on death row in California. 723 lives.

More, one assumes, by election day.

So yes, I'll rejoice.

Though maybe mournfully.

Who We Are And What We Do Yet Again

There's death penalty news to discuss at length:

• Racial justice for Marcus Robinson in North Carolina.
• Clemency for Daniel Greene in Georgia.
• Scheduling a hearing on Gary Haugen's effort to reinstate his execution date in Oregon.
• The murder of Mark Wiles here in Ohio to restart our execution engine after six months.

There are developments in other cases:

• George Will says LWOP for kids is always wrong.*
• Judge Kimba Wood dismisses the prosecution of Julian Heicklen for exercising his first amendment rights passing out leaflets telling people that jurors have both the power and the constitutional right to refuse to convict criminal defendants of laws they believe unjust (opinion here).
• Tarek Mehanna is sentenced to serve 17 years in prison for exercising his first amendment rights aiding terrorists for arguing that killing innocent civilians is a bad idea and translating a tract about jihad because he did those things with an impure heart.

Those are all important things, things worth discussing at length.

And then there's Trayvon Martin and George Zimmerman.  Which is masses of outrage fueled by near total lack of information except that Martin is dead and Zimmerman shot him. Which tells us nothing about why or what the circumstances, physical and psychological, were.

Of course, there's plenty of rumor and innuendo and media exploitation.  But none of us actually know anything.

Someone on NPR the other day said that we won't know what happened until the jury returns its verdict, but that's wrong, too.  First, of course, there may never be a jury verdict. The charges may be dismissed. Zimmerman might plead to something. The next tsunami might make it all moot.  (There are other possibilities, too, legal and otherwise.) But even if there is a verdict, that won't tell us what happened. It will tell us what the jury chose to believe or not to believe beyond a reasonable doubt.  Which may or may not have a clear relationship to what occurred that night.

And then there's George Zimmerman's apology. Did he mean it?  Who knows? Scott Greenfield gave as good an explanation as anyone of why he likely did it and why it made sense strategically.  Beyond that, really, who cares?

The answer, it turns out, is that a whole lot of people do.  Here's what one of them said.

. . . First, I think it was crafted and, frankly, I have disdain for a lawyer who takes this tactic (even if it is a good one and helps his client). It's completely self-serving and disgraceful and hurtful to the parents. They don't want to hear that he's sorry for the loss of their son, they want to hear that he is sorry for murdering their son.
. . .
The other thing that REALLY ticks me off about this is the defense line of questioning "do you have any evidence to contradict" Zimmerman's version? Of course not you a$wipes, Zimmerman killed the other evidence by shooting Trayvon dead. It is such a mean-spirited line of questioning that has little to do with justice and more to do with getting their client off.
There is a right way to do criminal defense and a wrong way (ethically speaking). This case and the Casey Anthony case are prime examples of the wrong way IMHO. . . .

That the author of those words (and I haven't taken them out of context; the ellipses are omissions of things wholly irrelevant here), is a lawyer (albeit not a criminal defense lawyer) is a total embarrassment to the legal profession.  Because he has no idea what we do or how it works.

I'm not talking a sleazebag like the Fish.  Or like David Martin (here, for instance) who first convinced himself, before trial, that his probably innocent client was guilty and then chose to share that insight with the world so we could all join him in feeling good about his client's execution.  There are bad lawyers out there.  Grossly unethical ones.  Ones who turn on their clients or sleep through their trials or sell them out.  Ones too lazy to bother or just in it to gauge a buck and who gives a shit.  They're a problem, but a different sort.

This guy, the one who wrote that screed I quoted above.  I have no reason to think he's like that.  He may be a fine person and a committed advocate for his clients.  But he's completely missed the point of his legal education.

Because he thinks that criminal defense lawyers aren't doing their job properly, they're doing it the "wrong way" when their work "has little to do with justice and more to do with getting their client off."

Good god.

We've been down this path before, with the would-be criminal defense lawyer who figured her moral compass needed to be switched from moral to sleazeoid before entering her chosen profession.  (I hope she reconsidered after the firestorm of invective against her inanity, though I don't know.)  But she, at least, wasn't a lawyer.  This guy is.  And 

He

Just

Doesn't

Get

It.

And if he doesn't, I figure it's probably necessary to lay it out one more time.

We can't lie.

We can't encourage anyone else to lie.

We can't destroy evidence.

But we must, within the ethical rules of the profession, do what we can to get the best possible result for the client - which means, if it's possible, getting the client off.

Even if the client is factually guilty.

Which, of course, we can never really know.

And which doesn't matter to us.

Our job is to defend.

It is emphatically not to seek justice unless justice is defined as "trying to get even guilty clients off," which is a weirdly unlikely definition of the term.

Beyond that, the right way to do criminal defense is to bust your ass working for whatever's in the client's best interest.  

Even if it pisses off the family of person who shouldn't have been killed.

And even if it's mean spirited.

And even if it's not nice.

And even if the client is guilty.

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*He wrote, in a paragraph too good not to quote in full:

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner's "potential to attain a mature understanding of his own humanity." Which seems, in a word -- actually, three words -- "cruel and unusual."

In Our Culture But Not in Our Genetic Code

“Freedom demands a certain risk,” David Shipler wrote last year in The Rights of the People: How Our Search for Safety Invades Our Liberties. It’s a risk, he argued, we are too rarely prepared to take. To make that point Shipler examined breaches in what he called the physical boundary between the individual and the state, guarded by the Fourth Amendment. But Shipler was after more.  He knew that the Fourth wasn't the only Amendment jeopardized by the insistence that safety and security were more important than liberty. So he knew from the start that the "landscape [was] too vast."  So The Rights of the People was just the first volume.

The second volume is Rights at Risk: The Limits of Liberty in Modern America. It's out now, and it's as powerful as the first. This time Shipler focuses his attention on the First, Fifth and Sixth Amendments

Shipler understands the value of a good story, and he tells lots of them. He talks about the Chicago police torturing often innocent suspects to extract confessions from them and send them to prison or better yet (from the point of view of the cops) to the gurney.  And he reports on torture from wherever it was that John Yoo said it was cool for federal agents to waterboard Khalid Sheikh Mohammed because torture isn't really torture unless you're dead at the end and, besides, he was a bad guy and safety and security and who gives a shit about those sorts of niceties anyhow?  Oh, and he looked funny.

In his chapter on false confessions (what? you don't think they happen?), he notes that some two hundred people confessed to kidnapping the Lindbergh baby, and tells how the Central Park Five were essentially gulled into confessing to the rape of jogger Trisha Meili, a rape they didn’t commit.  And then he talks about the Reid technique, a manipulative method of interrogation that has a great track record for getting the innocent to admit guilt.

Clarence Earl Gideon

He begins a chapter on the rights to counsel and especially to effective assistance with the tale of Anthony Ray Hinton who’s been on Alabama’s death row for some 26 years since his trial counsel hired as a firearms expert “a one-eyed retired engineer who couldn’t operate a comparison microscope [and] had jurors laughing in ridicule.” And of course he talks about Gideon.

But it's not just the path breaking cases, the ones that make the headlines. It’s the ordinary, the quotidian. The path is worn now, but ill-tended. It buckles. It gets overgrown with weeds. You can follow the trail, but you may trip and stumble. And you're apt to ask why bother because it's just there and doesn't look all that much different from the surrounding terrain. Because these things really do happen every day. Maybe there's a lawyer, but barely because he's asleep, which is maybe dramatic enough to get noticed (see here, for instance), though sadly it happens often enough that the press often doesn't bother covering it and the courts too often blow it off).  And maybe there was a confession to what he didn't do and maybe he was convicted (or not or got really lucky and had the charges dismissed or really really lucky (following a run of awful luck) and got post-conviction exoneration. Or not.

Mary Beth and John Tinker

So while Shipler tells us about the famous (at least to lawyers and their hangers on), there are the others. Along with Gideon and Mary Beth Tinker, he speaks of people you’ve likely never heard of: Clemente Zavaleta and Mohammed Maddy and Barry Reingold, for instance. Theirs are the more typical stories of ordinary men and women. Some committed crimes. Some offended sensibility. Some seem to have been random victims of happenstance.

Of course, stories are not proof, and Shipler knows better than to pretend they are. Instead, he uses the stories to animate the argument, to provide the examples that show not only what can happen but what does. They are tied to the executive, legislative, and judicial decisions that spawned them. And their very ordinariness is part of the point.

Shipler makes that explicit when talking about the oppressive caseloads and lack of resources facing too many public defenders and appointed counsel.

The problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process.

It’s not, after all, that in the aftermath of 9/11Shrub told Ashcroft that he hated the Fourth Amendment and wanted it ignored. (Really, that's not what he said.)  It’s that W simply didn’t consider the Bill of Rights when he said, “Make sure this never happens again.” The effect on the Fourth Amendment was consequential, but not precisely intentional. Similarly, when the courts allow police like Detective Tom McKenna, “to use guile and ruse," they probably expected (if they gave it even a moment's thought) that he’d do that (“and we do,” he added). But it's unlikely that expected that he'd use them to get false confessions from the Central Park Five. The courts were just thinking, if they were thinking at all, about how to get the bad guys.

The erosion of civil liberty is gradual, a slow eating away at our rights, a point Shipler makes nowhere more clearly than in his chapter on free speech and press in schools. Justice Fortas gave us  sweeping words in Tinker.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But they give way when a high school student in Connecticut called her school principal and the superintendent “douchbags” and was punished by being denied the chance to run for senior class secretary. Then-mere-Judge, not-yet-Justice Sotomayor was part of the unanimous Second Circuit panel that ruled against her.

Shipler’s is, ultimately, an exhortation. 

The Bill of Rights is in our culture but not in our genetic code. . . . [Unless] taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

And then, as he doesn't quite say, it dies.

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Thanks to the National Association of Criminal Defense Lawyers for sending me a review copy of Rights at Risk.  A version of this review will appear in The Champion, NACDL's monthly magazine, sometime this summer.

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