Tuesday, July 26, 2011

Truth. Fairness. Transparency

I've been meaning for a few days now to write about the murder of Andrew Grant DeYoung by the State of Georgia last week.  
I don't know a thing about the crime of which he was convicted.  I don't know anything about him.  I had no plan to write about prosecutorial misconduct, competence of counsel, AEDPA, judicial integrity, any of that stuff.  What I intended to write about is the only thing of any consequence I know about his case.
They made a video of the execution.
Erica Goode in the New York Times:
The camera recorded his last words — “I’m sorry for everyone I’ve hurt” — and his eyes blinking as the drugs took effect. It registered his last breaths and the time of his death: 8:04 p.m.
For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.
But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see. In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.
It's no secret that we've turned executions from public spectacle - town square at high noon, thousands watching - into private one.  Just as it's no secret that we've done all we can to sanitize the murders.  We give the pretense of medicalization.  We eschew blood.  We favor the pretense of dignity and decorum.
And the video of Mr. DeYoung's killing?  It's to be kept under seal, by the court, with the intention that nobody will ever see it.
After Mr. DeYoung’s execution, the video was sealed and sent to a judge’s chambers for safekeeping, and Mr. Kammer [DeYoung's lawyer who convinced a judge to allow the recording], for one, said he hoped it stayed hidden. “It’s a horrible thing that Andrew DeYoung had to go through, and it’s not for the public to see that,” he said.
But Douglas Berman, a professor of law at Ohio State University who commented on the issue on his blog, Sentencing and Law Policy, said, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” Mr. Berman added, “Somewhere, somehow, at some point, this will become publicly accessible.”
Of course, Doug is right.  There's almost no chance that the video will forever remain secret.  Not in this YouTube world.  
Frankly, it shouldn't.  Not because there's any lesson to it.  By all accounts, DeYoung's murder looked entirely peaceful and calm, pleasant even.  The sort of death we might all like to have, though perhaps on our timetable rather than on the government's.
No, the video should be made public because there's little that the government can do to people that's more final.  We should, as I've said repeatedly here, admit what we're doing.  
Goode quotes Debby Denno, a professor at Fordham Law.
“Most of what we do in the criminal justice system in terms of punishment is something that is allegedly open to the public,” Ms. Denno said, “and this is the ultimate form of our process.” 
So it is.  And as I've said repeatedly here, if we're going to be in the business of killing people, if we think it's that important, we should be open and transparent about it.
That's roughly what I've been meaning to write for a few days now.  Somehow though, I never quite got around to it.  Then Nafissatou Diallo, the woman who claimed to have been sexually assaulted by Dominique Strauss-Kahn, held a press conference.  I had not intention of writing about that.  I still don't.
She's a documented liar who apparently hopes to profit off her allegations.  That doesn't make them true.  It also doesn't make them false.  It does make her a lousy witness and the legal case against him filled with more holes than a good emmentaler.  But really, I don't care.  
So why do I mention it?  Because of Clyde Haberman's City Room blog post, Lifting the Veil of Anonymity in Sex Assault Cases, in the on-line Times.  Haberman uses Diallo's outing of herself to talk about the how the US media mostly conceal the names of those women who claim to have been sexually assaulted.
Until this latest turn, major American news organizations had guarded her identity. Even though her name and picture appeared weeks ago in foreign media outlets, notably in France, American newspapers and television stations abided by a longstanding policy of not identifying those who say they have been sexually assaulted. That anonymity is not routinely offered victims of other crimes.
Haberman's discussion is really about whether the alleged victims of sexual assault - and women in general - benefit from the media's commitment to keep their identity secret.  In point of fact, though, that's absolutely the wrong question.  The right question is whether the alleged perpetrators of sexual assault are treated unfairly by what is really the media's presumption that any allegation of sexual misconduct must be true.  And must be treated as true from the moment it is made until forever, even if it turns out to be demonstrably false.
See, here's the thing.
The identity of the accused is a public record and often a media sensation.
  • Kobe Bryant was accused.
  • Ben Roethlisberger was accused.
  • The Central Park five were accused.
  • The Duke lacross players were accused.
  • Congressman whoever was accused.
  • Some former high school guidance counselor was accused.
  • The guy down the street was accused.
They are all named.  Pictures in the paper.  Details of the accusation laid bare (sorry).  All as described by the "victim" whose identity is kept secret because she (almost always a she) has been harmed enough.  And because it's so important that accusations be made.
And we know she's a victim.  And we know she's been harmed enough.  Because he (almost always a he) did it, whatever exactly it was.  And we know he did it because she said so.  And nobody ever falsely accuses anyone of any sort of misconduct.
Oh, wait.  People do just that.
And then there's a new bunch of identified victims.  Who continue to suffer the obloquy of accusation.  Who continue to be treated as guilty.  They're the innocent accused.  But the dishonest accuser?  She (mostly she) continues to have the protection of anonymity because it's just so damned important that she feel safe to come forward and accuse someone innocent.
We in the criminal defense business know that this is all about the presumption of guilt.  And is another of the great lies in our business.
Which brings me to another bit of news.
Findings from a newly released study refute the claim that more than 100,000 of the nation’s registered sex offenders are missing and unaccounted for – a figure that has commonly appeared in statements from government officials, Congressional legislation and dozens of media accounts since 2003.  

The release of these findings coincides with the approaching July 27 deadline for states to comply with federal sex offender registration requirements set forth in the 2006 Adam Walsh Child Protection and Safety Act. As of July 18, only eight states have been deemed to have substantially implemented these requirements, and many have called for Congress to revisit key provisions in the law. The “100,000 missing” figure was repeatedly cited in the debates leading to the law’s passage and in its subsequent re-authorization hearings earlier this year.
Let's just focus on that for a moment.  Congress passes the Adam Walsh Act and pressures states to pass their own versions in order to help everyone keep track of those convicted of sex offenses.  Because 100,000 registered sex offenders can't be found, we need a law to ensure that more sex offenders will be required to register.  OK, that makes no sense.
But then our sex offender registration and notification laws have never made much sense.  They're about the pretense of good sense.  If we know that the guy down the street is a registered sex offender, we can keep the kiddies away from him.  You know, let them hang out with the parish priest.  (Ooops.)  Or Uncle Festus.  (Double ooops.)
And the guy down the street?  The one who urinated in public?  The one who had sex with his girlfriend when he was 19 and she was 15 and now they've been married for 25 years and have kids but can't live near a school or day care center or even a DQ.  And he can't get a job because he's a kiddie rapist for gods sake.  (Public urination being a well-known attribute of all kiddie rapists and of nobody else.) And he's the one we're watching out for?
But even then, and even if you think it's all about somehow tracking down that 100,000 (mostly) guys.  It turns out that it's a made up number with no relationship to reality.  But of course we don't care.
I was talking to a reporter yesterday about the Ohio Supreme Court's latest opinion finding part of our version of the Adam Walsh Act unconstitutional.  I told him about how the law doesn't achieve its end.  How it even makes things worse.  And along the way I offered this truth, which I'm nowhere near the first to observe.
It's always a mistake when they name a law after a child.
That's one truth.  Here's another.  Secrecy breeds dishonesty.  And here's yet another.  Getting it right matters.
Truth.  Fairness.  Transparency.
Which is what I called this post.

1 comment:

  1. First, I agree completely that executions should be filmed and broadcasted. If we don't have the stomach for it maybe we should listen to ourselves, especially since we don't listen much to you. I mean, I do. But I'm just an anonymous scold.

    Second, the bit about the press and naming rape victims. If you have ever wondered about how far the press is willing to go to be a lapdog to law enforcement, I know of a case where the cops charged a young woman with serious crimes after raping her. The evidence supporting the charges they brought was coordinated fabrication and perjury.

    This all came out and was never actually contested. The local press ignored all that, though, and with respect to the rape allegations they named the victim - because she had been charged with some other crimes by the police - and never named the perpetrator. In other words, the reverse of the usual editorial "policy", because in this instance the perpetrators were the police.

    And what little press coverage the episode did receive was buried in the part of the local rag that no one reads.

    Now to me this proves that the editorial policies have nothing to do with rape, per se. They have to do with a calculus that applies across the board, that the function of the press is to help the government spread its message, whatever that message might be. In the context of criminal prosecutions, obtaining rape convictions can be difficult, so the press obliges prosecutors by creating the victim "aura" and behaving protectively toward the complainant, keeping her identity secret, even as they showcase and vilify the accused rapist. The prosecutors and police like this help from the press and give them ever more stories.

    But as soon as the government's agenda flips, the editorial policy goes out the window with nary a mention of the apparent inconsistency, because it's not really inconsistent if you understand the real reason for the policy in the first place: it has nothing to do with rape victims, and everything to do with reinforcing the legitimacy of government actions, especially the government's criminal prosecutions.

    There is a permissible range of dissent, of course, but anything that calls the legitimacy of government conduct into question is beyond the pale and not acknowledged. Particularly if it is actually demonstrated with solid evidence.
    The more likely such things are to be true, the less likely it is to see the light of day in the mainstream press.

    The press coverage of the Casey Anthony trial in Florida illustrates the same point.