Well, He Kinda Pardoned Her

FIRST ANECDOTE

Several decades ago, I was invited to a meeting to help figure out how to prioritize and then advance the goals of an anti-death penalty organization.  

Should we, the group's conveners asked, be focusing on the risk and evil of executing the factually innocent? It seemed a simple question.  On the one hand, the answer was obvious. Of course factually innocent people shouldn't be executed; nobody disagrees with that.  But might that focus lead folks to adopt a simple carve out:  

Sure, save those folks.  But of course that acknowledges that we can feel good about killing the guilty ones.

SECOND ANECDOTE

Another time, a prosecutor and I were guest debaters in a law school class on the death penalty.  Who, the question arose, ought the death penalty be for?  

Well, we both agreed, the idea is that it should be reserved for the worst of the worst who did the worst things.  But, I said, how can you tell?  Where's the margin?  Oh, c'mon said the prosecutor.  It's easy.  Hitler,  Stalin.  Pol Pot.  Yeah, I said.  But you wanted the death penalty against my client who killed the clerk while robbing a carryout.  He wasn't Hitler.  Didn't kill millions.  What's the stopping point?  And that's if you think it's OK to be in the execution business in the first place.

THIRD ANECDOTE

Guy on death row, not my client, days before he's due to be executed, tries to commit suicide.  Guards find him in his cell.  He's rushed off to emergency medical care and then the prison hospital.  Why for godssake?  Hell, they want him dead don't they.  He's just helping them along.  But no the sentence isn't death, it's execution.  The government's job isn't to let him die.  It's to kill him.  And if we have to save his life so that we can kill him, well, that's just how it goes.

FOURTH ANECDOTE

Another client: 22 years old.  Got his conviction and death penalty vacated, he's sent back for a new trial.  The problem is that he is, and is incontestably, factually guilty.  And at the new trial they'll bring in evidence of another person he killed.  Goes to trial it's a sure thing he'll get another death sentence.  But he's offered a deal:  Plead guilty and accept a sentence of life without the possibility of parole.  You'll die in prison, but we won't kill you.  No, he says.  No. No. No.  

We argue with him for weeks.  Take the deal.  You'll be in general population which is less restrictive, less harsh, than being on death row.  And it's not like the one end will be fast and peaceful.  In the end, he takes the deal.

In this business, that sentence, Death in Prison but not killed there by agents of the government, is a win.

. . . . . . .

This business of deciding who should live and who should die.  This business of killing people in our name.  This business of insisting that the proper way of dealing with the worst of the worst who did the worst things, of pretending we can figure out who they are and never accidentally misidentify someone who's only nearly the worst of the worst, or who, frankly, we just don't like because he (it's almost always a he) is black or brown or yellow or has an ugly tattoo or if it's a woman wore transparent thongs and slept with people for money, and besides all that think about the drugs, and at trial had a  shitty lawyer who couldn't be bothered or . . . . 

Look, the system sucks.  And it's efforts, even the serious ones, to do better are hopeless and doomed to failure.  And that's if you're OK with the morality of the thing.

. . . . . . . 

All of which, 

well, probably I should tell you first about Tommy Lee Walker who was killed in the electric chair by the good people of the State of Texas on the 12th of May, 1956.  Walker, a 21-year-old Black man, was tried and convicted of raping and murdering Venice Parker, a young white woman.  He had a rock solid alibi, but hey, that was Dallas County, Texas, he was Black, she was White, and . . . .  

Or maybe I should tell you about Francis DeSales Grayson, Frank Hairston Jr., Howard Hairston, James Luther Hairston, Joe Henry Hampton, Booker T. Millner, and John Clabon Taylor, young Black men convicted of raping and beating Ruby Stroud Floyd, a young white woman in Martinsville, Virginia in 1949.  Six trials (2 were tried together) and six death sentences.  Four executions February 2, 1951, the other three February 5

Or maybe?  Nah, you don't need another of these stories.  You know how they go.  But here's what you need to know:  On August 31, 2021, Virginia's Governor, Ralph Northam, formally pardoned the Martinsville 7.  This year, on January 21, the Dallas County Commissioner's Court unanimously adopted a resolution exonerating Tommy Lee Walker.  None of these folks were brought back, but their actions made clear that what was done to them - not just the executions but the arrests and trials - were travesties of justice

ALL OF WHICH is a prelude to the news today from across the pond.

Again, I have to take you back.  This time to Easter Sunday, April 10, 1955, that was the day Ruth Ellis shot and killed her lover, David Blakely.  She never denied it.  As she said on the witness stand, "[W]hen I shot him, I intended to kill him."

Ellis was, by all accounts, no saint.  But Blakely was worse.  He physically and mentally abused her.  When she was pregnant, he punched her in the stomach, causing a miscarriage.  But murder was murder, guilty was guilty, and mitigation didn't count.  Ellis was sentenced to death.  On July 13, 1955, she was hanged at Holloway Prison in London, the last woman to be executed in England.

But now, and here's where I've been heading with this, King Charles has granted her a pardon.  Sort of.

Per the BBC:

On Wednesday in the House of Commons, Labour MP Pam Cox asked Lammy for the pardon on behalf of her grandchildren, who were watching proceedings from the public gallery.

She said: "Her case serves as a haunting reminder of a time when our justice system ignored the realities of domestic abuse and coercive control.

"In the decades since, members of Ruth's family and supporters have campaigned unwaveringly for her to receive a posthumous pardon.

"Will the deputy prime minister agree with me that their courageous campaign, and the terrible lessons of Ruth's case, must strengthen the government's resolve to free women from devastating cycles of abuse?"

Lammy responded: "I have the honour to say that His Majesty the King has accepted our advice to grant Ruth Ellis a conditional pardon, the last woman to be hanged in the United Kingdom.

Hold on.  A "conditional pardon"?  What the fuck is that?  Oh, right.  The execution is off.  She's now sentenced to spend the rest of her life - which was ended by the crown some 70 plus ears ago - in prison.  Not execution, but death in prison.  Sort of makes you feel all giddy.

But as I said, it's not death.  So it's a win.

Fuck.

Bernie Goetz Is Not the Subject of This Post (though when I've finished the book I might review it here)

So this retired criminal defense lawyer is sitting in his recliner one summer evening in Phoenix, Arizona (10 pm temperature a nippy 92 after a high today 106) reading Fear and Fury, which if you're old enough to remember and even if you aren't is a book about Bernie Goetz and the shootings and the aftermath and well, I haven't finished it so I'm not sure just where it will end up, though the subtitle Is "The Reagan Eighties, the Bernie Goetz Shootings, and the Rebirth of White Rage." 

Anyway, I'm reading this book (yes, I'm that retired criminal defense lawyer, which I figure you really didn't need me to tell you) and suddenly there's this guy, a lawyer, name of Scott Greenfield being quoted. And I know Scott.  And I have some vague recollection that he had something to do with one of Goetz's victims.  So I check the footnotes to see if he'd been interviewed by Heather Ann Thompson.  And no, he hadn't been. The quotes came not from an interview but from a blog post, "Remembering Troy," on Simple Justice which I'm sure I read 8 plus years ago when Scott posted it.  

And, even if I hadn't read it then, I [re?]read it now.  Because that's what we did back in the day, read each other's blawgs and commented on them and argued about them and with each other and damn I miss that, though I'm partly to blame my own blawg (this one) being essentially fallow now.

But I'm writing this both to let Scott know in case he doesn't that he's quoted in the book.  And to remind myself that what we write (and wrote) has some life and significance at least occasionally beyond our little stables of readers. And, finally, as a reminder to myself that I'd really like to get back at doing this regularly.  

Except that being retired takes up so damn much time.

Until They Are Dead

 Back in the day, when I was writing this blawg on a regular basis, I wrote often about lethal injection.  (You can click the link on the "Labels" section at the top right if you want to bury yourself in those posts.). I thought I knew quite a lot about it:

• how the drugs were basically unavailable
• how the states went out of their way to ensure that nobody could know what they were doing or who in particular was doing whatever it was they were doing
• how whoever those secret folks were who were doing whatever it was they were doing were often grossly incompetent and unable to do whatever it was
• how . . . . 

You get the idea.

Hell, I'd talked with experts.  I'd read the books.  I followed all the litigation.  I'd even gotten a court to declare that the Buckeye State's method of killing by injection was unconstitutional and had to be changed.*

And I followed the sad saga of lethal injection as it got screwed up over and over, as it tortured and tortured and failed to live up to the promise that it would, as the Ohio statute mandated, "quickly and painlessly cause death."**  So, as I said, I thought I knew quite a lot about it. And about how screwed up it was.

Boy was I ever wrong.  

Corinna Barrett Lain, a law prof at the University of Richmond, makes it clear in her new and powerful and frankly terrific book, Secrets of the Killing State: The Untold Story of Lethal Injection.  

Lain has scoured the country, pored over the protocols (when she could find them), studied the cases, reviewed the autopsies, spoken to the litigators and the experts [disclosure: not me, though my case is footnoted a couple of times], read the books and articles, listened to the folks who invented lethal injection, those who oversaw and those who performed and those who witnessed it.  

And, not incidentally, she looked closely at the folks on the gurneys.  She heard (OK read about) their choking and their gasping, their twitching and their reaching and their clutching their fists and their desperate but futile efforts to get a breath or get up off the table. Or even to advise the incompetents about how to get a needle into them, or just how to get it done.  She examined their last words.

She's done, that is, a deeply thorough and exhaustive exegesis of how and why it's totally and beyond repair fucked up.  And how the states that kill don't really give a rats ass about any of that because all they want to do is ensure that the guy (it's almost always a guy) ends up dead.  And then they'll declare that all went according to plan and smoothly and kindly, quietly and peacefully - and humanely forgodssake - despite all the evidence to the contrary.

And finally there's this, from her Epilogue:

This project has offered (insisted upon even) a front row seat to who these people are.  Many, too many to count, found redemption on death row, and prayed to their Lord and Savior, Yahweh or Allah, as they died, some after starting prison ministries.  As Saul became Paul, so it is for many on death row.  Others were just deeply broken people, desperate to go back to their younger selves and warn them to stop before it was tragically too late.  Over and over, this was a theme in the last statements I read.  A few went out defiantly, but very few.  For the vast majority of these prisoners, it was evident that the person who committed that terrible crime just wasn't there anymore.

(Endnote citation to the biblical story of Saul becoming Paul omitted)

Yeah.

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

*The state ignored violated that order, and a couple of months later an appellate court declared that it wasn't a real order anyway and so didn't count.

**That's from Section 2949.22(a) of the Ohio Revised Code.

Today in History

Today is Juneteenth, the newest, most recently enacted federal holiday.  That's the date in 1865 when federal troops arrived in Galveston, Texas, with the news that slavery was over.  

But dates are tricky things.  And as we rightly celebrate liberty and freedom today, so, if you know me, you know there's also a dark side to the day.

June 19, 1953, 72 years ago. Julius and Ethel Rosenberg, convicted of spying for the Soviet Union, including providing secrets of the atom bomb, were executed.  Strapped in the electric chair at Sing Sing prison in New York.  Killed by our government, in our names, on our behalf.

Some say they didn't do it.  There's pretty overwhelming evidence that Ethel really didn't. And that the government knew it.

But, you know, dead is dead. Evidence and innocence be damned.

 Oh, maybe it's better to remember them this way.

Uncle Fred and the Texas Bar

Decades ago, back probably when I was a baby lawyer, the Texas Bar Journal (the, er, literary arm of THE STATE BAR OF TEXAS to which every Lone Star State lawyer must belong) announced that it was looking for contributions from members who might take positions that, you know, THE [stodgy] STATE BAR OF TEXAS (did I mention that every Texas lawyer is required to be a member?) might not absolutely favor.*

So I wrote this piece called something like "Uncle Fred in Court."  My thesis, simply, was that since it was allowed (not favored, but allowed) for folks who weren't lawyers to represent themselves in court, to go pro se, they really ought to be able to have, say, their Uncle Fred, who also wasn't a lawyer but they figured was a lot smarter than they were.  Sure, they ought to have a lawyer (preferably a competent one, but THE STATE BAR OF TEXAS didn't really make too much of a fuss about that once someone got licensed)******

I made, as I recall, a pretty substantial argument filled with warnings and risks and legal problems and qualifiers and whatnot.  It's even possible I favored the idea.  It's even possible that, if I could now read what I wrote then I might favor the idea.  Or maybe not.  I don't have a copy of what I wrote and the Texas Bar Journal, that, er, literary arm of THE STATE BAR OF TEXAS, never even acknowledged receiving it, certainly didn't publish it.  And never again solicited potentially controversial articles from its members.

Anyway, as I noted in footnote ****** (yes, numbers or another system would have been easier for you and for me but I'm enjoying the silliness here), it's the ABA that accredits law school.  Has been for decades and decades.  And just as the no-longer-red-haired guy (you've noticed that, too, haven't you?) has declared that the ABA won't be vetting the qualifications of his judicial nominees any longer, so there's discussion of getting it out of the business of accrediting law schools - which makes it, really, an accreditor of the vast majority of lawyers in the Good Old USA.

Which brings me back to the Texas Bar Journal, the, er, literary arm of THE STATE BAR OF TEXAS.  I got my copy of trhe latest issue yesterday, and I saw this 

ORDER INVITING COMMENTS ON THE LAW SCHOOL ACCREDITATION COMPONENT OF TEXAS'S BAR ADMISSION REQUIREMENTS

And yes, that's how it appeared, all in caps and boldfaced.  

I won't bother you with the full "Whereas" and "Order" parts (also in boldface and the latter ion all caps).  But here's the meet:

Until 1983, the Supreme Court of Texas (which actually does the licensing of Texas lawyers) decided for itself which law schools would be accredited (though it didn't use that word).  In 1983, it gave that job to the ABA.  But now, it's rethinking that and asking folks (Texas lawyers only, I imagine) for "feedback" on (1) "whether to reduce or end the Rules' reliance on the ABA" and (2) what the hell to do if it decides to dump the ABA.  (Yeah, it phrases that second issue more delicately, but I know what they mean.) 

Naturally, Texas could do nothing, just keep things the way they are.  

Then again, there's history.  (Note the past rearing its ugly head again.) As I wrote in a comment on Greenfield's post (see footnote ****** for the link),

Historically (if I understand correctly), there were two routes to becoming a lawyer: (1) Attend law school; (2) “Read for the bar” which basically meant intern with a lawyer for a considerable period of time and then take an exam. The people who did one, didn’t trust the competence of the ones who did the other. So the system compromised by requiring both law school and the bar exam.

It’s my understanding that as in one or two states degree from an unaccredited law school may allow someone to take the bar exam and practice in that state, so there may be a state or two that allows reading for the bar (with some sort of oversight I expect) and then an exam with no law school at all.

Texas could do some of that.  Allow for non-accredited law schools.  Dump the law school requirement altogether and just rely on the bar exam.  

Or, of course, it could just say that Uncle Fred can represent his nephew in court.

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

*Have you noticed that this is the third of my Lazarus, back-from-the-dead posts and they all take on things from the past, which as I quoted Faulkner about, is never past.**

**And see how I'm trying to put the digressions here into footnotes?***

***At least the footnotes that deal with the past - and that are, themselves self-referential and surely of no interest to anyone but me, if even to me.

****OK, you can return to the regular programming at the top of the page now.*****

*****God, this is why blawging used to be such fun.  Or not.

******Wait, this one's substantive.  Getting licensed meant graduating from an accredited law school and then passing the bar exam.  And law schools are accredited by the American Bar Association which may or may not be as stuffy as it was back in the day but has certainly become more controversial (and probably less stuffy, but I haven't been a member for several decades now so I don't really feel competent to address that and frankly don't much care.  Anyway, see Greenfield's post from Tuesday about ABA accreditation which is kind of what got me thinking about this stuff and then - well read on at the top of the page.

 

The Past. It's Always the Past.

"The past," Faulkner famously said, is never dead.  It's not even past."

So when this blawg returned two days ago from what certainly seemed the dead, it was a Faulknerian return hearkening to and including (resurrecting, if you will - and I will even if you won't) it's own past as well as . . . . Feh, you get the point.

But it wasn't just here, not just me.  For my blawg's resurrection reminded Greenfield of what this blawgging world used to be.  It was fun and lively and, frankly (I really do believe this) important.  We wrote because we had things to say, things to get off our collective and individual chests.  We challenged, squabbled, supported, disagreed.  And it was worth it.  Day after day.

And posting, and then Greenfield, made me remember, made me feel the loss.  And so, maybe I'm back.  Just maybe.

As it happens (and that was all kind of a digression, so really you could have skipped over it), in my more-or-less retirement out here in Phoenix where the sun don't seem ever to stop shining, I'm in a couple of book groups.  This month, the discussion for one of them will be about David Enrich's new book: Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.  

Enrich details how folks with a lot of money (and some without a whole lot who are often bankrolled by folks who do), want to and try with some success to undermine the First Amendment's protections of free inquiry and reporting.

Look, the basic idea, as the folks at One First Street in DC (that's the Supreme  Court) have made clear over the decades, the First Amendment protects even falsehoods about public figures as long as they're not reported with actual malice.  And actual malice doesn't mean that the speakers/writers doesn't like the person about whom the falsehood is offered but, rather, that they either knew it wasn't so and said it anyway or were recklessly indifferent to the question, that they didn't exercise even minimal care to try and get it right.

That's the standard SCOTUS adopted some 61 years ago in New York Times v. Sullivan.  And despite some grumbling by Clarence Thomas and Neil Gorsuch who think it should be jettisoned, it remains the standard for libel.  

Though he does, like so many, get the claim Holmes asserted wrong,* Enrich generally gets stuff right.  And his book serves as a powerful reminder of just why Sullivan is so damn important, why, therefore, so many folks on the right and on the left would like to junk it, and how essential it is that we the people fight back.

Anyway, as I was reading the book, I realized that I'm almost certainly (and here we go again, because the past is never dead) the only person in the book group who's ever been sued for libel.  Rakofsky v. the Internet (or, as it's technically named, Rakofsky v. the Washington Post, et al. I, of course, am one of the 73 in that "et al" or as we sometimes referred to ourselves collectively, "The Rakofsky 74."

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

* Enrich claims the rule Holmes set forth is that "you can't say fire in a crowded theater."  Tim Walz, among countless others, repeated that rule in his VP debate with J.D.  What Holmes actually said in Schenck v. United States was far more nuanced (and is still not the law today - if it ever was):  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 

In Memoriam

 It's getting on to 14 years since I wrote about Sonny Jacobs and Peter Pringle.  I teared up when I wrote that post and suggested that you, my faithful readers might do that also.  I just read it again, and teared up again.  Of course, I'm easy.  But still.

It's a bit more than a year and a half since I last posted anything here - not because I didn't have things to say but because . . . . Damned if I know.  I just haven't.  (Greenfield, how do you keep doing it day after day and year after year?)

Why now, you may wonder?  Why today? It's about death.

See, I'm old.  What goes with being old is knowing too many people who are ill, too many people who've died.  And given decades of work defending folks who were charged with, convicted of, very bad things, many of whom were sentenced to be killed by the minions of the state - and too many of whom were killed by those minions - death is something that . . .  . Well as Jodi Ernst stupidly (if accurately) said, we're all gonna die one of these days.

And so it is that Peter Pringle died a couple of years ago, though if I knew that it didn't register.  But when I learned that Sunny died in a house fire this morning, it sent me back.  And as I said, it sent me crying.  And made me take up the computer and write this.

Go back then, and read the original post if you will.  (No need to search, here's the link:  https://gamso-forthedefense.blogspot.com/2011/11/in-galway-bay-love-story.html)

And I want to add this picture from the NY Times article I cited and quoted then, a picture which, for some reason, I apparently didn't include back then.

Rest in peace Sunny, and Peter too.