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.

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*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.

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*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.

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.