Thursday, February 20, 2020


           It is a bit after 10 at night.  I am sitting at the desk in my room in a cancer ward.  I am incredibly lucky. 
            A bit over two months ago, I was taken to the emergency room.  I had nearly collapsed in the kitchen of a church where I was chopping ham, helping folks from a church in a richer parish prepare a free meal for the area’s residents.  The consensus was that I should go to the emergency room. 
            Triage.  Tests.  “Your hemoglobin is dangerously low.”  Admitted to the hospital.  Five units of blood over the next 24 hours or so.  More time, more tests.  Taken from this suburban branch of the hospital to the main campus.  More time, more tests.  Nearly discharged – but now, “Off to the cancer center.  You have acute myeloid leukemia.”
            I am confined, in total, for a month: mid-December to mid-January.  The chemotherapy worked.  I was in complete remission.  The trick now is to keep it that way, to prevent a recurrence.  Which is why, on this Thursday night, I am once again in the cancer center, where I’ve been now since Monday night – getting more chemo.  Sigh.
I expect to be discharged Saturday afternoon.  Home again, home again, jiggity jig.  And then, a few weeks later, back once more.  And once more.  And once more. Sigh.
But as I said, I am incredibly lucky. 
* * * * *
            I’ve resisted writing this, not because any of it is a secret.  The tale is widely known among friends, colleagues, family, some not-quite-strangers.  And whoever those folks might have told.  My wife and I have lists of people to whom we send e-mail updates every few weeks if there’s something new to report. 
            But a blast out to the Googleverse?  To the Blawgoshpere?  I’ve been resistant.  It’s too personal.  Too much about me for me to want to share it with the world. 
            So why now? Why tonight from this desk in this cancer ward?  For reasons I don’t exactly understand – and perhaps I should have waited until I do, but well, I didn’t – it has to do with the murder tonight of 58-year-old NicholasSutton by the good people of the State of Tennessee.

             Sutton’d been on death row for just under 34 years.  Sent there for the killing of Carl Estep while serving a life sentences for three other killings.  In 1979, when he was 19, Sutton murdered his grandmother.  Two years later he entered guilty pleas to two second degree murders.  That history isn’t pretty, but most of them aren’t.  Despite the 167 exonerations of those who’d been sentenced to die, and despite the virtual certainty that some of the 1516 men and women we’ve killed since 1977 have been factually innocent, the truth is that most did kill, some more than once, some in horrific ways. 
            And yet. 
            Look, if you’ve read much of this blog before, you know that the folks who end up on death row are, with the rarest of exceptions, severely damaged.  They have backgrounds that would curl your toenails.  They have serious mental illness.  They're intellectually disabled.  And you know that, like Nicholas Sutton, the folks we kill have been on death row for years, often decades.  The men and women we kill are no longer the ones we sentenced to die.  
          And so it is that Nicholas Sutton, killer of four, saved the lives of three corrections officers while he was on death row.  And so it is that an unusual collection of folks urged the governor and the courts to commute his death sentence. And so it is that the governor and the courts said no.  
          And Nicholas Sutton was murdered tonight, killed in the name of the good people of Tennessee, not by lethal injection which he figured would be too painful, but by the electric chair, which we know is likely to be horrifically painful.  But his choice.
* * * * * 
            As I  said, I'm incredibly lucky. 
          Not so much Nicholas Sutton.  He got to decide whether to die on the gurney or in the chair.  
           I got to decide whether to die at all.  (A doctor told me, after reading me all the potential risks that I did not have to sign the informed consent that would allow them to give me chemotherapy, "but if you don't sign, you'll die."  I signed.)
* * * * *
          Nicholas Sutton.  May he rest in peace.

Wednesday, August 14, 2019

"huddled masses . . . wretched refuse . . . homeless, tempest tost"

"Send these,"  it says. 

You might think it's a bad idea, but for the record:

The New Colossus
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Image result for statue of liberty

Friday, August 10, 2018

we have stopped being a civilized nation

Shortly before 8 Thursday night, Bily Ray Irick died.  He was killed by prison guards in revenge for the rape and murder of 7-year-old Paula Dyer 32 years ago.

Earlier on Thursday, and without addressing the merits of his requests, the Supreme Court denied the last effort to stop or delay the killing.  Sonia Sotomayor dissented.  

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent. 

Saturday, June 16, 2018

May 6, 1986.  Warren, Ohio.  Raymond and Doris Montgomery.  He 77, she 80.  Both dead.  Stabbed to death in their home.

Later that day, Charles Lorraine confessed to killing and robbing the couple.  Then he went to a bar and, with some of the money he took, bought drinks for some friends. It was his last day of freedom.  He was 19 years old then.  He'll be 52 in October.

December 9, 1986, seven months and three days after the killings, Lorraine was sentenced to be killed.  He's been on death row ever since:  32 years, 1 month, and 10 days as I type this just after midnight the morning of June 16.

I don't know Charles Lorraine.  I never represented him.  I don't know much about him.  I do know this.  It's been 32 years, 1 month, and 10 days.  He was 19 then.  He'll be 52 in October.

Oh, and I know this.  Yesterday morning, the Ohio Supreme Court, without dissent, granted the motion of the Trumbull County Prosecutor and set a date for Lorraine to be killed:  March 15, 2023.  
Nearly 5 years from now.  More than 36 years from the day he was sentenced to die.  Nearly 37 years from the date of the killings.

Let's do that again.

  • March 15, 2023.  
  • Nearly 5 years from now.  
  • More than 36 years from the day he was sentenced to die.  
  • Nearly 37 years from the date of the killings.

And I do know that I'm pretty much a broken record here, but I gotta say it:  Even if you believe in the death penalty, even if you believe that it can be morally justified or (and?) that it discourages murder.  Even if you think it's a damn good idea as a matter of principle.  Even if all that.
36 fucking years?
My god.  What's the point?  And who, exactly, are we killing?  I mean, whatever else, the Charles Lorraine of today is not the Charles Lorraine who murdered Doris and Raymond Montgomery on May 6, 1986, not the Charles Lorraine who was sentenced to die on December 9 of that year.  36, nearly 37 years, they make a difference.  Who we were is not who we are.

And who we'll kill is not who we sentenced to die.

Really, it's enough.    

Doris and Raymond Montgomery
Charles Lorrine

Thursday, May 17, 2018

What is truth, said jesting Pilate

Back in 2010, Times columnist Nicholas Kristoff had an op-ed about Kevin Cooper, a black man on death row in California for stabbing four people to death and leaving for dead a fifth who somehow survived and said the killing was done by 3 white guys. Kristoff's op-ed grew out of a dissenting opinion by 9th Circuit Judge William Fletcher in Cooper v. Brown, arguing that Cooper was likely factually innocent, had been framed by the cops, and that the courts and prosecutors and government authorities were at least passively complicit.

As Fletcher's dissent was a jumping off point for Kristoff, so his op-ed was a jumping off point for a blog post I wrote.

Today, in the Times on-line and I think set for a print version in the Sunday paper, Kristoff has a lengthy follow-up, detailing his own investigation. It's powerful. Well worth reading for justice gone awry and for the active unwillingness​ of those sometime Democratic heroes Jerry Brown and Kamala Harris to just take the smallest of steps - allowing the DNA testing to go forward. The testing that might well show it wasn't Cooper - which seems pretty likely, but who knows.

As I've regularly said here,


But Jerry Brown (yeah, that Jerry Brown, the former Governor Moonbeam, the present Governor Old-Liberal-Icon) won't allow it. And Kamala Harris, once California Attorney General, now Senator Harris - she (like Jerry when he was California's AG) just wants the conviction affirmed and Cooper to stay in prison forever unless he's killed and damned with any DNA testing.

It's worth noting how Kristoff explains his continuing passion for the case:
It’s obvious to you by now that this is not a usual column — I’m not sure The Times has ever published a column of this length — so why am I exploring the case with such passion? I became interested primarily because Fletcher and other respected federal appeals judges had said he was framed. That just doesn’t happen.
I’m also haunted by something else. In 2000, I proposed reporting a lengthy piece about doubts about the conviction of Cameron Willingham, who was then on death row in Texas for the arson murder of his three children. An editor talked me out of it, and I never did write about Willingham, who was executed in 2004. Since then, growing evidence has emerged that he was innocent, and perhaps it’s partly to atone for my earlier failure that I’ve taken up Cooper’s case.​Which does sort of make the point that Cooper's not the only one. That death row, and really all our prisons (and our jails, too, but that's a different story), have significant numbers of folks in them who are likely to be innocent.
Wholly, factually, innocent. Wrong guy.*  Or, even, crime didn't happen.**

All of that ​​is quite an extraordinary explanation from a Times columnist, I think.

And he follows it up with the plaint of everyone who recognizes that we're supposed to have a system of something like justice - whatever exactly that might be.
Maybe in the grand scheme of things, the fate of one man on death row doesn’t seem so important; innumerable people die tragically every day. Yet we aspire to be a nation where we are all equal before the law, and if we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.
Governor Brown, if you’re reading this, I understand that you may believe that Cooper is guilty. But other smart people, including federal judges and law school deans, believe him innocent. So how can you possibly execute him without even allowing advanced DNA testing, at the defense’s expense, to resolve the doubt? What’s your argument for refusing to allow testing? ​
Though Kristoff doesn't say it this way, testing will lead to one of three conclusions:
  1. Cooper's guilty, in which everyone can go home and rest assured.
  2. Cooper's an innocent guy we wanted to kill, in which case we can try and find the real killer and, by the way, do what we can to make sure we don't keep doing shit like this and also try to make some small amends to Cooper for his wrongful decades on death row.
  3. Can't really tell shit. In which case, we'll at least have tried.
So what's the harm? What, exactly, are they scared of?  Don't we want the truth?

Oh, yeah, I forgot.

*In which case, of course, the right guy is presumably still out there on the streets.
**The likelihood in Willingham's case.  The fire was probably not arson but an electrical fire from bad wiring.

Tuesday, April 17, 2018

Ya Think?

In fact, if the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes— and often harsher than the punishment for felonies. And not only are “punitive civil sanctions . . . rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.” Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L. J. 1795, 1798 (1992) (emphasis added). Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.
Sessions v. Dimaya, Gorsuch concurring.