Wednesday, August 24, 2011

Here, There, Everywhere

When I don't post for a week, I feel inundated.
So, from around the State and around the nation.
I. Ohio
There's the new murder protocol issued by the Ohio Department of Rehabilitation and Correction.  In July, you'll recall, Judge Frost halted the killing of Kenneth Smith because the murder process was, in practice, altogether arbitrary.  They made it up as they went along.  As he said in the first paragraph of his opinion,
It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not.  This is nonsense.
So Smith got a stay and then Brett Hartman got a reprieve until November next year.  But enough, as they say, is enough.  Billy Slagle is to be murdered on September 20 and the state wants to get it done.  So there's this new protocol.  It's got a number of differences from the last version that are pretty clearly intended to satisfy the Judge including specifically four things that it says they won't vary from.  Of course, if you don't trust them to follow the policy, the fact that the policy says it will be followed - at least as to four particulars - doesn't really mean much.  Then again, they can distinguish the stuff that they say they mean from the things that they say they don't mean.
Huh?  The stuff they say they don't mean?  What are you talking about, Gamso?  Oh, this part.
The Warden shall ask the prisoner if he has any last words.  If the prisoner has a last statement, he will be allowed to make it while the witnesses are present in the adjacent viewing rooms, and are able to see him and hear him via microphone.
a.    There shall generally be no restriction on the content of the prisoner's statement and no unreasonable restriction on the duration of the prisoner's last statement.
b.    The Warden may impose reasonable restrictions on the content and length of the statement.  The Warden may also terminate a statement that he or she believes is intentionally offensive to the witnesses.
The policy giveth and the policy taketh away.
The last words stuff hasn't been part of Frost's concern.  He's interested in the killing itself. Whether he'll find the new scheme sufficiently credible should be determined after a hearing in September.  
Meanwhile, in 
II. Arkansas
Damien Echols, Jason Baldwin, and Jessie Misskelley, are the West Memphis Three.  And now they're  free.  The DNA doesn't match.  The confessions suck.  The jurors (at least in Echols's case) considered improper evidence.
The whole thing was a house of cards that's been teetering from the beginning.
It was 1993.  Three 8-year-old cub scouts were murdered in what prosecutors called a satanic ritual.  The investigation focused on Echols and the others pretty much to the exclusion of other possibilities.  Then there were the supposed and the shoddy confessions.  And no testable DNA.  And well, there were three dead kids and someone had to pay.
Echols has been on death row since the 1994.  The others were sentenced to life.
Finally.  Finally.
Free at last.
Not, however, exonerated by any legal definition despite the lack of evidence.
Each of them entered a guilty plea.  To murder.  In exchange for a sentence of time served and 10 years probation.  And while declaring they didn't do it.  And they still hope to clear their names.
They'll have to wait, though, if they want pardons.  From the Arkansas News.
Gov. Mike Beebe said today he does not intend to pardon three men who were released from prison last week after serving 18 years in the deaths of three West Memphis second-graders.
“I don’t consider pardons until the entire sentence has been completed,” Beebe told reporters. “They still have, as I understand it, a sentence to be completed.”
Damien Echols, Jason Baldwin and Jason Misskelley were convicted of capital murder in the 1993 killings, with Echols receiving the death penalty and Baldwin and Misskelley receiving life sentences. On Friday, a Craighead County circuit judge vacated their sentences, allowed them to plead guilty to reduced murder charges and sentenced them to time served, plus 10 years of probation.
Beebe said today he would not consider pardoning the men before their probation is completed “unless there was compelling evidence that somebody else was actually responsible.”
Supporters of the men commonly known as the West Memphis Three have said their focus has shifted from the freeing the three to clearing their names and obtaining pardons for them.
Because, you know, there's no good evidence that they did it, but gee, as long as we don't know who did might as well keep thinking it's them.
Which brings us to 
III. Texas
From the Texas Tribune, via Grits, we learn about the latest on Michael Morton who was convicted of murdering his wife, Christine.  From the Tribune.
Morton's wife, Christine, was killed in their home in 1986. At trial, prosecutors argued that the then 32 year-old Morton beat his wife to death when she said she was too tired to have sex with him after they came home from celebrating his birthday. Morton was sentenced to life in prison but has always maintained his innocence, saying an intruder committed the crime after he left for work early the next morning.
OK, see, here's the thing.  Morton's been trying to get DNA tested for years.  The county prosecutor, John Bradley, the guy who derailed the investigation into whether Cameron Todd Willingham was innocent because who'd really care if Texas killed an innocent guy, opposed the testing.  More, he actually tried to get the DNA evidence destroyed so it couldn't be tested.  In fact, he thinks that should be done all the time.
From Grits (links from his post).
The real murderer might have been identified six years ago if Mr. Bradley hadn't fought DNA testing tooth and nail. Indeed, as regular Grits readers know, Bradley would likely have preferred DNA evidence had been destroyed outright to avoid exactly this outcome. In a now redacted string on the prosecutors' user forum (which Grits saved and uploaded here), Bradley advocated seeking DNA destruction as part of plea agreements on the grounds that "Innocence ... has proven to trump most anything." "A better approach," he said, "might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest." That stance was one of the reasons Texas senators criticized the Williamson DA before rejecting his confirmation this spring as chair of the Forensic Science Commission.
But a court ordered the DNA tested.
The results revealed that commingled with Christine Morton’s hair, sweat and blood on the bandana was the DNA of a man who was not Michael Morton.
Damn.  Just what Bradley worries people might find.  Compelling evidence that they convicted the wrong guy.
Actually, it's more than just the DNA. There's also the exculpatory evidence that Bradley hid. 
In addition to the DNA evidence, Raley [Morton's lawyer] said Bradley fought to keep under wraps a sheriff's department interview with Morton's mother-in-law conducted days after the 1986 murder in which she said the couple's young son had witnessed the crime. She said her grandson, 3 years old at the time, told her that a man who was "not Daddy" killed his mother. Raley also questioned whether the trial judge at the time had ever seen the document.
So Bradley hides some evidence, wants to destroy other evidence, because it might all show that the guy he convicted was innocent and that's not acceptable.  The problem isn't the making a mistake.  The problem is the finding out.  And then damn, the innocent guy wants to do something about it.
Sharon Keller, as we know, believes that finality is the key.   She's the one who explained to Frontline that
We can't give new trials to everyone who establishes, after conviction, that they might be innocent.
Once they're convicted, it's irrelevant if they're innocent and the actual guilty person is still out there.
For a contrast, we turn to the Equality State
IV. Wyoming
From Kaitlyn McAvoy in the Pindale Roundup.
Convicted murderer Troy D. Willoughby has been granted a new trial, according to Ninth District Court Judge Timothy C. Day’s order filed Tuesday.

Willoughby was found guilty in January 2010 for the June 21,1984 murder of Lisa Miles Ehlers and sentenced to life in prison. His trial took place in the District Courtroom in Pinedale.

Day cited misconduct of the murder case investigators, who withheld favorable evidence from Willoughby’s defense during his 2010 jury trial, as reason for granting a new trial.

Day said investigators did not want Willoughby and his defense team to ever discover the evidence because they believed it “was so favorable” and supported Willoughby’s alibi.

Sublette County Attorney Neal Stelting told the Roundup Wednesday, Day’s decision was “no surprise,” and it would not be appealed.
Got that?  Oh, they hid the evidence that Willoughby was innocent.  But now that it's out and that there was a hearing on a new trial motion, they're not pretending it's meaningless, not disputing that Willoughby should get a new trial.
Hid the evidence?  Did I say "hid"?  Maybe buried would be better.  But there's no disputing that they did.  Or why.
Day includes quotes from those tapes in his order for a new trial. On one of the tapes, Gehlhausen [a detective] asks Hanson or Ketterhagen [investigators] (not specified in Day’s order) why the prosecution did not turn over the 1984 incident report to Willoughby’s defense.

Hanson or Ketterhagen responded, “’s exculpatory and so we did not give it up.”

The tapes also revealed the murder case investigators were apparently worried about their fingerprints being on the 1984 incident report, but they “decided to just ‘keep our mouths shut’ and ‘just let it ride’ because ‘they may not even find it,’” Day’s order states.

“If [the defense] finds out that we know, that it’s exculpatory, and… he’s gonna (expletive) walk,” Hanson or Ketterhagen said on the tapes, according to Day’s order.
We don't hear much from Wyoming.  They don't have a whole lot of people.  They've got one guy on death row and have had one execution (Mark Hopkinson, in 1992).
But they've got a judge who doesn't mince words.
Nor, of course, does Judge Posner, who made that clear in a brief opinion in a federal case from 
V. Illinois
In 1993, Charles Robertson was convicted of growing marijuana.  It makes sense.  If you like to blow dope it's cheaper to grow your own than to buy.  And you can get kind of an unlimited supply.  Admittedly, though, his supply back then was substantial.  It wasn't just a little pot in a window box.  He was convicted of growing 228 plants.  Sentenced to 10 years in prison and 8 more of suprevised release.  Matt Kaiser tells what happened next.
Shortly before his supervised release was to end, he was charged with growing marijuana plants. He went before the same judge for sentencing on the new marijuana plant charge that he had before.
The district court was unhappy to see Mr. Robertson again.
He sentenced Mr. Robertson on his new charge to 30 months in prison (I assume based on the number of plants he was growing). Then he turned to sentencing for the supervised release violation.
Sentencing on a supervised release violation is always tricky. The person being sentenced has already been before the judge. He’s already gotten a second chance, and he’s blown it. He’s asking, often, for a second second chance. It can be a tough sell.
The guidelines suggest that a sentence of 12 to 18 months would be appropriate. The district court imposed a sentence of 34 months.
The district judge asked Mr. Robertson why he was still growing marijuana after spending eight years in prison. Mr. Robertson replied that “he just liked the way the plant looked” and that he “liked to smoke it.” The district court suggested that, perhaps, he could take up “growing gardenias.”
Robertson appealed.  The court of appeals reversed that 34 month sentence.  Really, Judge Posner wrote, the district judge needed to explain that sentence.  Here's Kaiser, quoting Posner (the italics are Posner's).
Noting that a judge sentencing a person for a supervised release gets the largest possible amount of deference from an appeals court, Judge Posner held that the district court did not provide enough explanation of its sentence.
As Judge Posner said,
We cannot brush off the appeal on the ground that of course the district judge knows the statutory sentencing factors and the relevant Guideline provisions and so he must have had a good reason for imposing a sentence almost twice as long as the maximum recommended by the Sentencing Commission (34 months versus 18 months). If that response to his appeal were proper, a judge would never have to give a reason for a sentence that was within the sentencing range set by Congress. Anyway what a busy judge knows is not always present to his mind.
And here's Kaiser's comment (link deleted).
Clearly, the district court judge should have explained his sentence. One of the central values of a reasoned process in our courts is that the providing of reasons for a judges action is what gives them legitimacy. It’s the inverse of the silence we foist on to defendants. Yet Mr. Anderson didn’t get the benefit of that reasoned explanation.
Which is lovely.  One might wish it were true in Ohio, say in the Sixth Appellate District, where the court has said that any sentence within statutory range is proper and consistent with other sentences within that range and that there's no reason ever to look beyond that.  No explanation needed.  None wanted.  God bless us every one.

H/t on the Wyoming story to Tina.

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