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!!!   

It Really Wasn't About Blow Jobs

 Apparently I require a trigger warning.

Word came down from Blogger Central early yesterday afternoon.

This post was put behind a warning for readers because it contains sensitive content.

You can still read it.  Anyone can still read it.  But first

Your blog readers must acknowledge the warning before being able to read 
the post/blog.

Here's what that looks like:

Sensitive Content Warning

This post may contain sensitive content. In general, Google does not review nor do we endorse the content of this or any blog. For more information about our content policies, please visit the Blogger Community Guildelines.

I UNDERSTAND AND I WISH TO CONTINUE I do not wish to continue 

I started this Blawg in 2009.  And though it's always been hosted on Blogger, in all these years I'd never so much as glanced at Blogger's  "Community Guidelines."  But since I'd apparently violated them, I figured they were worth checking out.  So I looked and found the complete list of stuff that's verboten - or at least requires a warning: 

Adult Content, Child Sexual Abuse and Exploitation, Dangerous and Illegal Activities, Harassment, Bullying, and Threats, Hate Speech, Impersonation and Misrepresentation  of Identity, Malware and Similar Malicious Content, Misleading Content, Non-Consensual Explicit Imagery (NCEI), Personal and ConfidentialInformation, Phishing, Regulated Goods and Services, Spam, Violent Organizations andMovements, Unauthorized Images of Minors, Violence and Gore, Copyrigh

Hmmm. . . . Moi?   I went back and looked at the post. (Of course, I had first to affirm that I knew it was risky but that I was willing to take a chance.). I'd put it up in November, 2009.  So for almost 13 years it had been blissfully ignored.  But now, 

Your post . . . was flagged to us for review.

Wowsers!

Enough, I won't keep you in suspense any longer.  The post was captioned (still is, I should add), "Too Many Blow Jobs Spoil the Case."  It was about a Pennsylvania court that tossed out a case against a brothel owner and prostitute because the cops kept paying an informant (a disgruntled customer of that brothel who went to the cops to complain) to have sex there after they already had enough evidence to raid the place. (Yep, they paid the prostitute for providing the disgruntled guy with sexual services and paid the (previously) disgruntled buy for accepting the services of the prostitute.). Oh, and they had the whole thing taped and cops and disgruntled guy sat around the police station listening to the tapes and jerking off giggling.

Which of those guidelines did I violate?  I included no photos or diagrams.  No detailed descriptions of sexual acts Mr. Disgruntled enjoyed endured.  There were illegal activities, of course, but I'm pretty sure my references to what happened aren't what Blogger had in mind.

Blogger tells me I can revise the post and submit it for further review to see if it's no longer a threat to the republic.  What Blogger doesn't tell me is how someone stumbled across the post and was sufficiently horrified to demand that Blogger do something.  Or who I'd so offended.

Still, I can't help but wonder how long it will be, since a post with "Blow Jobs" in the title caught the censorious eye, until they catch the one called, "In Which I Get to Write the Word "Cunt" Even Though the Court Doesn't and for Which I Probably Won't Get Censured in Colorado But You Never Know."

Did I say all this was unnecessary?  Back in 2014, in another post, I provided my own trigger warning.  I repeat it here to suggest that Blogger might want to add it to their demands before letting people read my stuff:

Before you start reading this blog, know that it says all sorts of offensive shit.  I curse.  I talk about rape and murder and mayhem.  I talk about pornography.  There are pictures of people, real people, who live (sometimes lived) in the real world and did fucking rotten things like killing babies and raping relatives and strangers.  I wallow in the gutter.  

I don't much care about your sensibilities.  I wrote a whole post once about a lawyer who got punished for calling a judge a cunt.  The court didn't use the word.  i did.  Repeatedly.  Don't like it? Go away, motherfuckers.

 

 

• 
  

Because Our Eyes Are Imperfect

 Two things, seemingly unrelated except in time. 

1. I am reading the transcript from the trial where my client was sentenced to be killed.
2. The great French film director Jean-Luc Godard died.

But the mind works as it does.  And while the transcript contains no reference to Godard or any of his films or the French New Wave or much of anything else on its face relevant . . . . As I said, the mind works as it does.

Throughout the trial, the prosecutors play body cam video and surveillance camera video and the like.  And I'm reminded that as the jury watches those things on the Mondopad, which is essentially a giant video monitor, the video the jury sees, like the you see on any screen, is not actually what it appears.  There is on the monitor what's known as the refresh rate.  It's the speed (typically 60 Hz or 120 Hz) at which one picture on the screen is replaced by the next.  Because those speeds are way faster than the eye/brain can separate the images, what we see is continuous, is motion. 

But it's not.  It's a series of still images.  (I'm oversimplifying the technology, but not in way that changes the point here.)  So with film.  Not the kind of photographs that came from the sill cameras with the rolls of film that we took to the drugstore to have developed or that we stood in line in our uncomfortable dress clothes to have taken by the guy with the tripod and lights for the high school yearbook or the ones on old Wanted posters.

Those still pictures, capture a moment, a scene, something specific.  Perhaps blurred, subject to being doctored in the developing proceess or otherwise, but the camera sees something and makes an image of it.  What it saw is what you see.

Film is different.  What the film shows (and if you've ever looked at a movie real you know this) is a series of those pictures, played too fast for the eye to differentiate them as individual photographs.  What we see is not motion.  What we see is a series of still pictures. But the blur of them replaced so quickly that we can't differentiate. It's the illusion of motion.  

Which brings me to Godard who famously said, that while "photography is truth," film is something a little different.  it's truth "at 24 times a second."  And what he didn't say, but what follows, is that there are gaps. The camera, the film, misses what happens between those shots.  It's a series of truths, if you will, but not truth itself.

Addiction, Inhumanity, and New Teeth

 I have problems: I'm out of clean clothes, I cannot find my glasses, my English paper is late, and my pockets are not big enough for all the heroin I have.*

That's the first sentence of Keri Blakinger's gobsmackingly terrific memoir, Corrections in Ink.  And if you can read that sentence and not find yourself compelled to read on . . . well, you're a different person than I am.  Still, if you need more convincing, here's the last paragraph on that first page:

In a minute, there will be police, with questions and handcuffs.  By tomorrow, my scabby-faced mugshot will be all over the news as the Cornell student arrested with $150,000 of smack**. I will sober up to a sea of regrets.  My dirty clothes and late English paper -- one of the last assignments I need to graduate -- will be the least of my problems.

As that might suggest, Keri Blakinger is not the typical drug-dealer client we've all had.  Oh, sure, she was a serious drug addict, living on the streets, dealing and hooking for the cash to keep the drugs flowing, her arms so hopelessly covered in tracks that she was regularly a bloody mess shooting up between classes. But she was white, a straight A student at an ivy league college, from a comfortably middle-class family, a competitive figure skater who twice made it to the national finals.

That privilege makes a difference, of course, but there are limits even to that.  Blakinger spent a year or so in county jails, then another year in prison. And as she writes about her time on the streets, so she writes about her time in custody. There's some real, and maybe surprising, camaraderie among some of the inmates.  But mostly there are the random searches, the pretend discovery of contraband, the strip searches after a visit where the women are forced to pull out their tampons as part of the inspection.  And there's the woman who got raped and was, as punishment, sent to solitary.  Mostly three's the dehumanization. 

There's more to the story, though.  While in the county jail, she and one of the guards become friends.  After she's shipped to prison, he visits her.  While she's on parole, they live together.  No surprise that doesn't work out.  But other things do.  She talks Cornell into letting her back in (though not onto the campus - she has to finish her degree through off-campus classes), then graduates.  She gets a job with an Ithaca paper, then the New York Daily News.  She moves to Texas for a job with the Houston Chronicle where she breaks the story that the Texas prison system won't provide dentures for inmates with no teeth.  That story got national play. And TEXAS STARTED PROVIDING TEETH.  

Blakinger writes for the Marshall Project now.  She's a success, but she recognizes that some of it is luck, that a lot of it is due to her white, middle-class privilege.  Still, she made it.  Others she writes about, aren't so lucky.  And she's written this absolutely terrific book about it all.  It's about her, of course.  But it's also about a system infected with racism and violence and needless suffering.  And inhumanity.  Especially she says, inhumanity, which makes the rest possible.

And the futility, the small cruelties, the refusal to see us as fully human - it was not a flaw in the system.  It was the system.

----------------------
*In fact, the heroin was in a Tupperware container.

**Fake news!  It was really more like $50,000 worth

Donald Rumsfeld, 88, R.I.P.

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,

The ones we don't know. 

(From The Poetry of D.H. Rumsfeld, versification by Hart Seely)

Perhaps now he knows the unknown unknowns.  Or perhaps not.