Saturday, September 26, 2009

Do They Really Believe This Stuff?

I was in a waiting room across from the death house at the Southern Ohio Correctional Facility. My client had just been executed, killed by the state of Ohio. I hadn't represented him at trial, hadn't been the one, as we say in this business, to put him on the row. But I hadn't gotten him off, either. And now he was dead. I wasn't a witness to the killing, but I'd seen the body in the body bag wheeled out of the death house and into the hearse.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said
You did all you could
Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I'd tried my best and they appreciated that. And I said to each of them, "Thank you." Because what else can you say. But you know, there's no comfort in those words.

It's not that they're empty. They're meant sincerely, the motive is pure and the sentiment is all positive. But that's from the speaker.

At your end, when your client has just been murdered and you've been powerless to prevent it, the only answer is that if this is all I could do, then I'm not good enough. And if it wasn't all I could have done, then I'm neither good enough nor diligent enough.

Eventually, you either shrug it off and go on or you give in to the guilt and the agony. If it's the latter, you drink too much or take drugs or abuse your partner or your kids or (maybe it's and) you kill youself - another victim. If it's the former, you vow to be a better lawyer.

It's not just executions. Every case we don't win where we think we should, every fight that could have been won, every time we strap on the metaphorical gunbelt.

For days now, Norm Pattis has been agonizing on his blog (here and here and here, for example) about the murder case he's been trying.

As I say, I understand. All of us who've been there, understand. The cases are about the clients. But the agony is about us, too. Our adequacy, our skills, our competence.

If I've got the plot right, his client shot two women in his kitchen, one in the head at point-blank range. That woman died; the other lived. The claim was, as I understand it, self defense. The jury was out a long time. And there is now a partial verdict. The jury resolved the lesser offenses against his client. It hung on the murder and attempted murder.

Some might call that a win. After all, his client wasn't convicted. Norm is, I think, seeing it as not even a draw but a loss. (His take on it is here.) The agony and uncertainty continue for the client, for the family and friends of the deceased, for Norm. The State, he thinks, will want to try his client again.

Wait, the state's going to try him a second time for murder? Isn't that, well, unAmerican?

Norm bemoans this.
If the law was about justice, my client would not face another trial. We tell jurors that the presumption of innocence is a complete defense. We tell them, too, that the entire burden of proof is on the state. A verdict, we say, must be unanimous. Query: since the state failed in this case to win a conviction on murder, relying on a silly Sapphistic argument about "we women" and jealousy, why does it get to try the case again? If the answer is that the jury failed to make a unanimous finding of "Not Guilty" that sounds perilously close to imposing a silent burden of proof on my client.
He's right of course. It does seem an awful lot like saying the defendant has to convince 12 jurors that he's innocent. And if it were that, it would be unconstitutional. But strictly speaking that's not right. The state has to prove to 12 that he's guilty. It failed, just not badly enough to end the nightmare.

But wait, isn't there something exactly about this in the Constitution? There is, of course. It's the Double Jeopardy Clause, right there in the Fifth Amendment:
No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb
That's exactly what happens when you're tried a second time for the same crime, isn't it?

The answer, alas, is "No." Oh, that's not the sensible answer, not the answer of real people in the real world. Instead it's another of those legal fictions. As the Supreme Court said in Richardson v. United States (1984), looking back to United States v. Perez (1924),
The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.
When ordinary logic won't do, when they have to develop a new and special sort of logic, you know the rule they'll come up with makes no sense. Here's the rule: Even though the judge sent the first jury home, they then called a new jury and started over, the new trial is still the same trial.

OK, maybe there is a kind of goofy kind of almost sense to the idea that if the jury hasn't come back with a verdict, the process isn't over. But that takes us back to Norm's point. The government has the burden of convincing 12 people that the defendant is guilty beyond a reasonable doubt. Assuming the jurors capable of reason and people of good will earnestly attempting to do their job, the government failed. The inability of the jury to agree on guilt is, by ordinary logic rather than the special kind they make up for these things, pretty much incontrovertible evidence that the government didn't prove guilt beyond a reasonable doubt.

Except in the wholesale fantasy land of the legal system, that's how it should work, and how it would. It's what we'd expect. And it's what doesn't happen.

They say that law school is the place where you learn to "think like a lawyer." Still the White Queen managed to believe as many as six impossible things before breakfast even without that training.


  1. Interestingly, SCOTUS seemed this summer in Yeager v. U.S., 129 S.Ct. 2360 (U.S. 2009) finally to halfway recognize the illogic of saying that trying a defendant a second time after a hung jury doesn't violate Double Jeopardy. The majority wrote that Double Jeopardy interests are implicated "whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument's textual appeal, we have held that the second trial does not place the defendant in jeopardy 'twice.' . . . [W]e hold that the consideration of hung counts has no place in the issue-preclusion analysis. Indeed, if it were relevant, the fact that petitioner has already survived one trial should be a factor cutting in favor of, rather than against, applying a double jeopardy bar."

    This decision in Yeager is very important to me and a defendant I represented who's been sentenced after retrial to 45 years in prison, and whose conviction is now on appeal. As you can imagine, particularly in light of the result in the first trial where the jury acquitted on one count and hung on the other, this is one of those cases I rightly feel I could have and should have won. Although other factors were also in play, I was neither good enough nor diligent enough. It's not the kind of case I will ever live down. Fortunately, the grounds for reversal, particularly issue preclusion, are very strong.

  2. The majority acknowledges the "textual appeal" but not the actual logic of the argument.

    The two who might find the appeal (and even the logic) most attractive - but would vote the other way because neither is as committed to his avowed analytical method as he claims, both dissented. Scalia, the court's self-proclaimed originalist, says that the original understanding of the clause was that it would apply only to acquittals or convictions. And Thomas, the textualist, joins Scalia's dissent.

    In any event, there are exactly zero votes for the proposition that a hung jury means you can't be tried again.

    Good luck on the reversal.

  3. I should have clarified that it's not the dicta in Yeager that I quoted that's important to my client's appeal but its holding. I of course understand there's no indication from the Court that it's actually inclined to reverse Richardson; just some weak recognition of the Alice in Wonderland quality of the rule in Richardson that you point out. My client's appeal rests on the fact that when the jury acquitted my client for shooting one person it also necessarily decided that his shooting of another person one second earlier was not a crime.

  4. I'm obviously missing something. If Scalia says that the original deal was that the double jeopardy clause would apply only to aquittals and convictions, how is his unwillingness not to expand it to hung juries and other mistrials anything other than originalism?

  5. Joel, not your fault. I wasn't clear. You're right that Scalia is being originalistic (an awful word I just coined).

    My point, clumsily made, is that I'd have thought this might be one of those cases where Scalia's originalism would point toward saying the double jeopardy clause actually should mean/does mean no retrial after a hung jury but that he'd resist voting for that reading - perhaps on the principle of stare decisis, which he (unlike Thomas) seems to believe has some merit even when it leads to adhereing to constitutional precedents with which he doesn't agree.

  6. Mr. G. Thank you for supplying us with this heart warming Post and Congratulations are in order for winning the Best Criminal Lawblog Post of 2009.