11/11: 11 a.m.

Eleventh of November.  Eleven in the morning. 1918.  That's when the armistice ending the fighting in the War to End All Wars went into effect. Not the end of the war.  That wouldn't come until the Treaty of Versailles, more than seven months later, on June 28, 1919.  So not the end of the war, but the end of the killing.  No small thing that.

Eleventh of November.  Eleven in the morning. 1919.  Five and a half months after the treaty, but one year to the minute after the armistice took effect. One year to the minute after the end of the killing.  That's when King George V declared Armistice Day and called for two minutes of silence.   We celebrated that day on this side of the pond, too.

A day to remember the dead certainly.  But as the name Armistice Day connotes, it's a day to celebrate peace.

Or, it was.

Because, as Karen Zraick explained in yesterday's Times, "In 1953, Alvin J. King of Emporia, Kan., proposed changing the name of the holiday to Veterans Day, to recognize veterans from all wars and conflicts."

And so it would be.  We no longer celebrate Arfmistice Day on November 11.  We give November 11 to honor the vets: Veterans Day.

As Zraick points out, Memorial Day is to recognize those who died.  Veterans Day is for them too, but equally for the all the rest.

But what of the Armistice? What of the peace - not the peace of desolation, of the desert,* of John McCrae's graves amid the poppies,** but the peace of quiet of calm.  The peace we'd vainly hoped would come after the War to End All Wars.  Or the next one.  Or the one after that.  The peace where we say, collectively, universally,

NO MORE

I really am all for Veterans Day.  They deserve it.  But damn, we sure as hell need to get Armistice Day back.

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*From Tacitus we take the sometime truism, "They make a desolation [sometimes translated as "desert"] and call it peace."  Though it's perhaps worth noting that Tacitus himself was quoting Calgus who was referring to the Romans.  

**

In Flanders Fields
by John McCrae

In Flanders' fields the poppies blow
Between the crosses, row on row,
That mark our place: and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders' fields.

Take up our quarrel with the foe;
To you from failing hands we throw
The torch; be yours to hold it high,
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders' Fields.

Executioners

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy

That's Section 2903.01(A) of the Ohio Revised Code setting forth the elements of one form of the crime of aggravated murder.   Anyone who is found guilty of doing that faces a minimum of 20 years in prison.  

If the person is also found guilty of what we call a "death specification" (the death specs are set forth in R.C. 2929.04(A)) the person can receive the death penalty. If that happens, and if the sentence is carried out, the prison guards who perform the execution will, of course, have 

purposely, and with prior calculation and design, cause[d] the death of another.

Which, of course, would seem to allow them to be sentenced to prison for a minimum of 20 years and maybe to be sentenced to be killed.

I've made that point before, just as I've pointed out that there's no exception in the law - at least none in either the Ohio Revised Code or in Ohio's case law - for doing the killing at the direction of a judge or a panel of judges.  

As I've also said, ain't nobody gonna get charged with aggravated murder (with or without death specs) for carrying out a court authorized execution.

I've lso pointed out, from time to time, that a substantial number of executions - both in Ohio and elsewhere - are botched, screwed up.  They take too long.  Things go wrong.  Flames shoot out of the head of the guy in the electric chair.  Prison guards have trouble sticking a needle in a vein to inject the lethal drugs.  The drugs don't actually provide the theoretically authorized painless killing. The hanging goes wrong and instead of a quick neck snap the victim dangles choking or gets decapitated.  Sometimes the execution fails completely and the person doesn't die.

And either the powers that be swear, despite the evidence, that nothing went wrong or they promise to double check their protocols and practice better and make sure it won't happen again.

Ho hum

And then I was reading The Faithful Executioner: Life, Death, Honor and Shame in the Turbulent Sixteenth Century, by Joel F. Harrington, history prof at Vanderbilt University.  It's the story of Meister Frantz Schmidt who for some 45 years, from 1573 to 1618, most as the official executioner (and also torturer, by the way) of Nurenberg.  Meister Schmidt was an interesting guy, a second generation executioner who wanted nothing more than to be relieved of the social and legal ostracism that came with the job.  

Of course, executions were public spectacles in those days.  And while Schmidt was apparently really good at what he did, other executioners were not so competent.  You know, they sometimes botched the job, didn't kill smoothly and easily, screwed up somehow.  Harrington quote a report on the 1641 effort by Valentin Deuser to cut off the head of Margaretha Voglin, "an extremely beautiful person of nineteen years" and, oh, a child murderer.  

She was in sorry shape, "ill and weak."  She had to be carried to the chair for her beheading.  Before getting the job done, Deuser apparently stalked around her, waving his sword.  He accidentally hit a bit of wood, sliced a chunk of skin off her head, and knocked her out of the chair. And

since he hadn't hurt her body and she fell so bravely, [the crowd] asked that she be released.

Nope.  Deuser grabbed her, put her back on the chair, took another swipe at her neck, nicked her that time, again knocking her off the chair.  And while she pleaded, "shouting, "Aiee, God, have mercy!" he

hacked and cut at her head on the ground, for which cruel butchery and shameful execution [he] was surrounded by people who would have stoned him to death had nto archers present come to his aid and protected him from the people.

Deuser was arrested and then fired from his job.  But apparently he was not the only screw up.  As Harrington explains,

Mishaps leading to mob violence and lynch justice jeopardized the core message of religious redemption and state authority.  In some German towns and executioner was permitted three strikes (really) before being being grabbed by the crowd and forced to die in place of the poor sinner.

In his concurring opinion in Furman v. Georgia, Supreme Court Justice Thurgood Marshall floated an idea that's become known as the "Marshall Hypothesis."  He thought that 

people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.

It's been suggested that one way to effect the hypothesis - and then end executions - would be to make them public again.  Looking at the responses to botched executions in renaissance Germany, suggests Marshall may have been on to something.

A Moment of Remembrance

September 15, 1963. 

Sixty years ago today.

Birmingham, Alabama, USA

These girls

This church

You know, this one

Here they are again

Sixty years ago today.

Tree of . . . Life (?)

Article after article, op-ed after op-ed tells us that the Jewish community is torn, that the Torah and the Jewish tradition and the rabbis can't all agree.  Which is a problem if you're looking for a authority.  Me, I'm just a capital defense lawyer with a blawg who hasn't written much in recent years.

* * * * *

Folks who know me, as well as those who don't but have read this blawg even occasionally, know I am an abolitionist.  An opponent of the death penalty.

Also I am Jewish by birth and was raised Jewish.  I'm an atheist, but still. 

I lived in Pittsburgh for five years.  I went to college there.  I lived in Squirrel Hill where the Tree of Life synagogue is located.  I have family and good friends there.  I visit fairly often.  I was there recently, drove past Tree of Life.  One night I had dinner at a friend's home.  He's Jewish, lives around the corner from Tree of Life, walks past it every day, has friends who worship there, feels the trauma.  

Those things may be relevant.  

So Robert Bowers.  Killer.  Anti-semite.  Apparently unrepentent.

An article, I think in the Pittsburgh Post Gazette, quoted a Pittsburgher, possibly a survivor of the shootings at Tree of Life, but possibly just someone from the community (I didn't save the article, and it was a few weeks ago), said "I oppose the death penalty absolutely in all circumstances" except for Robert Bowers."  Which I pretty much understand.  Because as Stalin is reputed to have said, 

The death of one person is a tragedy.  The death of millions is a statistic.

And when it's personal. . . .   You know, it's what Michael Dukakis got wrong.

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when he should have said 

I'd want to tear that person limb from limb, but . . . .

The other day,  family was in town and my brother-in-law, asked what I thought about the the death sentence Bowers got, said that he read someone who said something like, 

You can't forgive someone who doesn't ask for forgiveness and show remorse.

And so I quoted the Stalin line and referenced Dukakis and added that forgiveness was really beside the point.

I said that there were all sorts of good policy reasons to oppose the death penalty.  I talked of slippery slopes and how why not Stalin and Hitler and Pol Pot - and then maybe Robert Bowers and then maybe the next guy, because just how awful and evil is awful or evil enough. But I told the truth, which is that there are probably folks who deserve killing, and we can argue about who they are, but that's the quibble not the answer. *

So what I said, finally, is what I've said before in this blawg, which is that in some circles I'm recognized as an atheist who believes deeply in mercy and grace.  And that they aren't about whether they're deserved.  They're about us, who give it (or don't).  

That it's not whether Robert Bowers deserves killing but about whether we deserve to kill him.

Nobody mentioned that line about him who is without sin.  But the atheist was reminded that he sounded very Christian.

Amen.

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

*The story, attributed to most every wag of the 20th Century; I like to think it was George Bernard Shaw:

"Madame," Shaw said to the elegant matron, "would you sleep with me for a million pounds?"
"I suppose so," she replied.
"Then, would you sleep with me for 10 pounds?"
"Certainly not.  What sort of woman do you think I am?"
"We've established that," Shaw answered.  "Now we're haggling over the price."

Gratuitous Indeed.

 So, it seems I have a certain cachet.  Despite being mostly retired from the active practice of law (mostly though not quite entirely; "retiredish" is the term I've taken to since another lawyer used it to describe my current status"), and despite this blawg having assumed much the same posture for a few years now), Jack Marshall just referred to me as a "distinguished defense attorney blogger." Then, of course, he does his best to show that my opinions are claptrap.  But hey, I'm a DDAB!*

Yee! Haw! as they sometimes say in west Texas.  

Anyhow, Marshall's takedown led some anonymous guy to see what I'd actually written (thanks, Jack) and to ask how I'd respond.**  Ever obliging . . . .

Start with the instant recap:

Kevin Johnson's on death row in Missouri for the murder of Kirkwood, Mo. police officer William McEntee 17 years ago.  He has a very serious execution date of November 29.  Johnson was 19 when he murdered McEntee whom he blamed (justly or otherwise) for the death of his 12-year-old brother some two hours earlier.  Johnson's daugher Khorry Ramey was 2 at the time.  She's now 19, and both she and her dad want her to be a witness to his execution. But Missouri has a statute saying that execution witnesses must be at least 21.  She sued to delay the execution long enough to allow her to litigate the statute's application to her.  The judge just turned her down.  

Unless things change (always possible), Johnson will be executed Tuesday and Khorry won't be there to witness it.

OK, that's the legal background.

Now, my position, expressed as it often is, with snark and outrage and at least one use of the word "fuck" is that Khorry ought to be allowed to watch her father die.  Missouri didn't have to fight her lawsuit, and the judge didn't have to shut it down.  And they didn't need to.  But doing so, effectively shutting her out of the execution, were gratuitous acts of cruelty by the state and the judge.

Missouri could have done it by simply agreeing to delay the execution until she litigates her right to attend.  Regardless of whether they had a legal obligation to do that, they could have simply decided that in the interests of justice and human decency she should have the chance to make her case.  Hell, they could have pushed things on a fast track to get it all done quickly so they could get on with the killing.

And the court could have held that the the irreparable harm she would suffer missing the execution was sufficiently grave, and the 21-year cut off sufficiently arbitrary (at least as applied to her - Johnson's adult daughter), that her as-applied challenge to the law was worthy of a stay to litigate the damn thing.

I didn't parse the legal issues in my post, and I'm not really interested in parsing them here.  Nor, frankly, does Jack.  Here's his entire legal analysis:

With an opinion that is both reasonable and, frankly, obvious, the judge refused to order the emergency TRO, concluding as I did the second I learned about the case that she didn’t have a legal leg to stand on. The claim of “irreparable harm” from not being allowed to watch the father you barely knew be executed is particularly weak.

And, he adds, that

Judges holding to the letter of the law is neither cruel nor gratuitous. 

Which as an abstract observation is both unremarkable and uninteresting.  Of course judges should do that.  But judges asked to consider whether a law is unconstitutional don't get to resolve the question by saying, "but the law says that so it's OK."  To quote Dickens:

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot."

The point isn't that the judge had to grant the stay Khorry Ramey sought.  But he could have without clearly ignoring the law.  And the people of Missouri could have been good with that.  And all could done so have without just saying, "hey, whatever feels good to Gamso" or something.  When there are choices, when there are lives involved, compassion's not an evil.***

Jack believes in the death penalty.  I don't. He sees Johnson as solely responsible for the trauma his daughter will suffer.  After all (and Jack doesn't say this, but it's sort of implicit in the argument), he could have decided, before pulling the trigger and killing Officer McEntee that he could be sentenced to die for it and his daughter might want to view the execution and be denied by the Missouri statutes.  

But putting that analytical silliness aside (anyone who spends much time in the criminal trenches knows that people who commit crimes, especially violent ones, simply don't engage first in long-term cost-benefit analysis or, really, even briefly consider the legal consequences.  It's why you don't deter crime by making sentencing laws harsher), it's not Johnson who's responsible for denying his daughter the viewing.  

And, of course, Khorry could have chosen to litigate the legality of the statute's age limitation years ago on the assumption that her dad's execution would be pretty certain to occur at a time when she'd be an adult but not yet of age.

Sure.  Could have happened.

One more bit.  Jack takes me to task for suggesting that Johnson's race may have had something to do with how he ended up on death row.  Here's what we know.  A mixed race jury hung.  He was tried again by an all white jury and sentenced to die.  Do I know that the jury's racial composition was the reason for the difference?  No, not for sure.  Does it seem like that might be relevant given studies of mixed-race versus single-race juries (or even without those studies)?  Yeah.

Jack can disagree all he likes. 

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

*Marshall bestows the same honorific on Scott Greenfield, implicitly referencing his post on the same subject that mine riled him up about.

**This sort of thing was common back in the days of the active blawgosphere when bunches of lawyers would routinely discuss and debate (and sometimes eviscerate) issues and attitudes, and other blawg posts).  I kind of miss those days.

***As I explained elsewhere, the late Antonin Scalia disagreed.  

Gratuitously Cruel and Unusual

 July 5, 2005.  Kirkwood, Missouri.  Police executing a search warrant.  Joseph Long, 12 years old, suffers a seizure and collapses to the floor..  Police stepped over him - repeatedly.  Failed to offer him help.  Refused to let his mother in the house to help him.  Joseph Long died.  Kevin Johnson, Long's older brother, stood by helplessly.

Two hours later,  two hours after Joseph Long died, police, including officer William McEntee, returned to the neighborhood after reports of fireworks.  It was McEntee's second visit that night as he'd been part of the search time.  Johnson, still and understandably distraught, saw him. "You killed my brother."

Then Johnson shot him.  Multiple times.

As you might imagine, Johnson being black and facing an all white jury for killing a cop, Johnson ended up on death row.  The good people of the State of Missouri plan to kill him next Tuesday.  Ho hum.  Shit happens.  Especially (but really not exclusively) to black guys caught up in the Missouri Criminal Justice System.  

OK, nothing new here.  The usual voices (mine is one, but you knew that if knew me or you'd been here before) oppose the execution for all the usual reasons - both the general ones about the death penalty in general and the specific ones about the facts and background of this case.  To date, they've had no effect.  The courts so far have all signed off on the killing, the governor is unmoved.  Unless something breaks, always a possibility with several days to go, they'll strap him down and kill him next week.

But see, there's something else.  Really, someone else: Kevin Johnson's daughter, Khorry Ramey.  She's 19 years old now.  Nineteen.  That's the same age her dad was 17 years ago when he watched his kid brother died and then killed Officer McEntee.  Johnson wants her to be there.  More importantly, she wants to be there.  Needs to be there.  To watch ti happen.  To say good-bye in the most intimate and personal way she can.  

To help her, somehow, this victim of the state's killing machine, deal with the trauma those good people of the State of Missouri are inflicting on her by killing her dad for the trauma he . . . . OK, you, know the drill.

Anyhow, here's the thing.  Missouri has a statute, Revised Code Section 546.740 saying who can watch when it kills someone:

546.740.  Execution, witnesses. — The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.

It's that last clause,"no person under twenty-one years of age," which Khorry Ramey being 19 and all, just doesn't qualify.  

And so Missouri said no.  And so Khorry Ramey sued.  And so, Missouri could have said to the court,"OK, in the interests of common decency and since we're already committed to a course that will certainly damage the kid maybe we can just let it slide and agree that, as applied to Johnson's kid this is unconstitutional."  And the court would have said, "Dandy.  Khorry wins.  Case dismissed.  Let's eat some leftover turkey."

It could have done that.  It would have been the decent thing to do.  It would have been fair and just and morally right.

Of course, that's not what happened.  Today, the Honorable Brian C. Wimes of the United States District Court for the Western District of Missouri, Central Division (let's make this as wordy as possible) issued his opinion.  Missouri wins.  Oh, sure, 

Plaintiff alleges she will suffer harm that is “real, palpable, and devastating,” and no remedy is available at law to compensate her for the emotional harm she will incur if she is barred from attending her father’s execution. (Doc. #8). The Court does not discount these allegations of emotional harm and does not dispute they are irreparable, both in a personal sense and a legal sense.

But tough noogies.  And fuck you.

Strictly speaking, it's not cruel and unusual punishment because it's not punishment at all.  But this is a blawg, not a court.  And what the prison system and the good people of the State of Missouri and the Honorable Wimes are doing is sure cruel, and damn well ought to be unusual. And, oh yeah, gratuitous.

Thanksgiving

 It is Thanksgiving night.  Thanksgiving has long been my favorite holiday.  

I am, as I have been since around 11 yesterday morning when I tested positive, self-isolating in the basement. My younger son and his husband, are self-isolating in the second and third bedrooms. My wife, who appears uninfected and tests negative, remains free to wander but is, nevertheless, effectively isolated from the rest of us. 

My older son and his wife flew in Tuesday for the holiday.  They left for a hotel last night and flew back home today.  My cousin, whom none of us have seen for three years, flew in yesterday morning and flew out again in the evening.  She never made it to the house.  (The first positive test came while she and I were standing by the carousel waiting for her luggage.) My sister-in-law and her husband are not, after all, driving in to spend tomorrow with us.

The turkey remains, as it has been, in the refrigerator, waiting to be cooked.  Perhaps on Saturday I'll have the energy.

This is not, as you probably gathered, the holiday we'd been looking forward to.  We'd imagined hours of good food and wine and talk.  We got zip.

And did I mention that two weeks ago we had the Kevorkian the veterinarian come to our home to send our beloved pooch to her eternal rest.  We have her ashes and a pawprint and a lock of her hair.  It's not the same thing.

And yet.

I expect to recover fully.  I began the Paxlovid regimen this morning; we've all been fully vaccinated and the younger isolatees are both otherwise strong and healthy.  And while the world may be going to hell (wars, earthquakes, mass shootings, climate change, the former guy), our little corners, our daily lives the lives of our friends and loved ones, remain largely unaffected.  It is, perhaps, selfish to be thankful at a time like this.  Yet I am.  We are.

Despite the death penalty and something of an upturn in killings over the last few weeks, Ohio has not executed anyone since July 2018, and while we've got folks with dates through 2026, it seems unlikely that we'll be back in the business anytime soon - if at all.  It appears that in this now pretty-clearly-red state there is bipartisan support for abolition.

In so many ways, it could be so much worse.

So yes, I'm thankful.  I got to spend a day with all the kids and an hour or so with my cousin.  I have friends and community and better health than I deserve even with Covid.

Happy Thanksgiving!!!