All Power to the Condemned

I'm an atheist, but I've written a lot about mercy, which I sometimes call "an act of grace," in this blog.  That's OK.  Mercy doesn't require a deity.  Nor does grace.  They're gifts, things to be granted.

They're about the giver, not the recipient, I say.

They have nothing to do with desert, I say.

They can't be earned, I say.

And although I don't exactly say it often enough, though I maybe haven't precisely said it here at all, they ennoble those who give them.

I need to talk here about John Kitzhaber, about Timothy Alexander who mostly agrees with him, and with Gary Haugen who disagrees vehemently.

I need to talk about grace and mercy and, sadly, about the law (though maybe this time it's Law with the uppercase L).  And I need to talk about the Rule of Law and the Law of Rule and about who's in charge here.

None of these things are new to this blawg (except Timothy Alexander, and he's just a functionary really, though a vital one in this case, and one of a sort we see either too often or not often enough, depending on the day and on your point of view).

Let me begin with Kitzhaber and Haugen - two men about whom I've written before.  Here they are, Kitzhaber on the left for esthetic not political reasons.

They are, intertwined, inescapably bound together. Maybe the right image is of them holding hands and swaying in a macabre tango. Perhaps it's a tug of war, yanking ends not of a simple rope but of a noose. Really, I don't know that there's a need to get the imagery just right until it's time for the funeral elegy. Or the paean to life.

 

John Kitzhaber is the Governor of Oregon.  Gary Haugen is on death row there.  

Haugen was scheduled to be killed until Kitzhaber stepped in.  He'd overseen executions before but says he will not do it again.  Nobody, he says, will be executed here as long as I am Governor.  Our law sucks.  We only kill volunteers, which is insane.  I'm giving him a reprieve until I am no longer Governor.  In the meantime, maybe the legislature will fix this abomination. 

Haugen will have none of that.  He wants to be killed. Insists on being killed.  You can't keep me alive, dammit, he says.  I have rights.  I demand to be killed.  Now. And I have a right to be killed.  You want to give me a reprieve.  I refuse it.  I spit it out.  Fuck you.

As I say, I've written about this apache dance (I'm still working on the imagery) before.  (See here and here.) 

Naturally, they're now in court, have been for a bit.

Kitzhaber says he has an absolute right, under Oregon law, to grant a reprieve.  It's his call.  Haugen has no say.  Haugen says that's bullshit.  Kitzhaber can grant all he wants, but I have to accept before it counts, and I don't. 

And so we come to the functionary, the Honorable Timothy P. Alexander, Senior Circuit Judge sitting in the Circuit Court of the State of Oregon for the Third Judicial District.  (Can't find a picture for you of someone who's definitely he.)  Yesterday, he issued his decision.  It's an unenthusiastic but ringing endorsement of Haugen's right to make Oregon murder him.

The unenthusiastic part is dicta, the filler that judges toss into their opinions.  Technically, dicta is whatever in a court's opinion isn't a formal holding.  (This is the rule and here's how it is to be applied.) Sometimes it's important, has real legal or political or even practical consequence.  Other times it's blather.  Occasionally, it's the words of a judge bemoaning that messy obligation to obey the Law (uppercase) even if he hates it.  It's that last thing Alexander was doing when he wrote this.

I have been personally involved with death penalty litigation for more than 40 years, acting as prosecuting attorney, defense attorney, appellate attorney, and trial judge. My decision in this declaratory judgment case is not intended to be a criticism of Governor Kitzhaber or the views he has expressed in his statement accompanying the reprieve he has offered to Mr. Haugen. In fact, I agree with many of the concerns expressed by the governor, and share his hope that the legislature will be receptive to modifying and improving Oregon laws regarding sentencing for Aggravated Murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever results in executions.

However, consistent with the resolution of every other case, I am required to set aside my personal views and decide t his case on its merits and the law.

You know from that "however" at the beginning of the second paragraph I quoted how this is going to turn out.

Here's the short of it.  Governors have absolute authority to grant mercy, short term as in reprieves or permanently as in commutations.  And the people to whom they grant that mercy have the absolute right to say 

Fuck no.  I ain't taking it.

And to make that stick.

Mercy, it seems (and it turns out that this used to be the position of the US Supreme Court on the constitutional power of the President, too, but it is no longer), is not so much a grant of grace but an offer of a contract.  Perhaps subject to negotiation.  That's Oregon Law, or at least it is until higher Oregon courts speak to it.  The Law in your jurisdiction (or mine) may vary.

So here we have a judge forcing himself to adhere to the Rule of Law and ignore his predilections.  Good for him.  That's what we want judges to do.

And what he concludes is that the Rule of Law, the rule that gives the Governor absolute authority to grant mercy, is actually trumped by the power to refuse it.  So that, in Oregon at least, mercy isn't about the giver at all.  It's about the willingness of the grantee.

That's not mercy as I understand it.  It's certainly not the heritage of the divine right of kings.  Nor is it any religious conception I'm aware of.

God:  Welcome to the Kingdom of Heaven.
Dead Guy: Fuck no.  I'm not staying and you can't make me.
God: Actually, I can.

Except in Oregon.

Where the inmate gets to choose his punishment.

And where the right to suicide by prison guard is, at least for the moment, inviolate.

Haugen v Kitzhaber 1st ruling

Rehabilitation Isn't an Empty Word

The last post was about the prosecutor who's bound and determined to keep Doug Pride in prison for a murder he didn't commit.

Year after year she argued that he shouldn't be allowed to test the evidence that could prove him innocent.  After the Ohio Supreme Court agreed to hear the case and ruled in Pride's favor she still managed to drag it out.  But ultimately, the testing was done.  Not him.

And not good enough for the prosecutor.  After all, the jury said he was guilty.  Why should it matter that they were wrong?  Just because the evidence proves it? Because the science makes it clear?  So what if the jury didn't know?  What difference should that make?

Sigh.

It doesn't have to be that way.

I've written about prosecutors doing the right thing before.  Most recently, there was Gary van Brocklin who put Jeff Eley on death row and then, with a powerful letter in the Columbus Dispatch, helped convince Governor Kasich to override the Parole Board's recommendation and grant him clemency.*

Then there was AUSA Jesse Barrett who looked at the evidence, determined that he'd charged an innocent man with a crime, and promptly moved to have the charges dismissed.

And Nicole Habersang who tried, with less than raging success, to dismiss the charges against Virgil Richardson because they were bullshit but the judge said that the interests of justice required the  continued prosecution of a man the state believed innocent.

And there were the prosecutors in Pinal and Yavapai Counties who bravely (really, I mean that) condemned Joe 'n' Andy's abuse of power in Maricopa.

And really, there are others.  Lots in the scheme of things.  For instance, there's John Piasecki and Derek Champagne from Franklin County, New York.

It was Piasecki who prosecuted Noah Lazore in 1976.  John Caher gave some details in the New York Law Journal just over a week ago.

Records show that Lazore, a Mohawk Indian, committed a grisly throat-slashing/multiple stabbing murder during a robbery at Akwesasne, a reservation in Northern New York and southern Canada, where both he and his 69-year-old victim lived.
Lazore pleaded guilty to second-degree murder and then-Franklin County Judge Ellsworth Lawrence imposed a sentence of 20 years to life, five years less than the maximum. The defendant had no prior felony conviction and was a 16-year-old high school dropout and alcoholic who had largely been raised by an older sister until she was killed by a drunken driver, records show.

Lazore was first eligible for parole in 1996.  Denied.  Denied again in 1998, 2000, 2002, 2004, 2006, 2008, and 2010.  Really, it's not surprising.  Vicious killers don't routinely get released, regardless of what the public believes.

But Lazore's an interesting case.  He got his GED while in prison.  And two associate's degrees.  And a BA with honors.  He has a spotty institutional record if you look at all 36 years he's been in prison, but he's not been in any trouble since 2007, and that time his punishment for the infraction was suspended. He's successfully completed programs in substance abuse and aggression control and has learned several trades.  A required risk analysis shows him 

at low risk of felony violence, arrest and absconding.

Sure.

But he's a vicious killer.

Which brings me back to Piasecki.  See, in 2002 - and every two years since - the guy who put Lazore in prison for life has written the Parole Board urging his release.  Caher again.

Piasecki started supporting Lazore's parole bid in 2002, when he sent a letter to the board saying it is "evident that Mr. Lazore has used his period of incarceration as productively as could possibly be done."
He noted in a letter to the board that at the time of the crime the inmate was "16 years of age, clearly immature, with a history of substance abuse who grew up in a reservation environment which at the time was on the lower end of the Third World."
Every two years, Piasecki sends a letter to the parole board urging Lazore's release. And every two years, he is rejected.
Piasecki can't figure it out.
"The guy has paid his debt to society," Piasecki who now has a private practice in Malone, said in an interview. He said he has no idea why Lazore has repeatedly been denied parole.
In his most recent letter on Lazore's behalf, Piasecki noted that the Akwesasne community is "ready, willing and able to receive Noah Lazore and to integrate him" into the reservation society.
Piasecki said Lazore can be an asset to his American Indian community, offering "the benefits of his experience to discourage vulnerable individuals from pursuing activity outside the boundaries of the law by providing active, affirmative guidance and counseling."

Somehow, when the parole panel looked at Lazore in 2010 . . .  well, here's the interview and decision, though you can skip ahead if you like to where I quote the bottom line.

Noah Lazore 2010 interview & decision

After a careful review of your record, your personal interview, and due deiberation, it is the determination of this Panel that if released at this time there is a reasonable probability that you would not live at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community and will so deprecate the seriousness of the crime as to undermine respect for the law.

Oh.

This year, there was another letter.  Derek Champagne has been Franklin County District Attorney for 14 years.  Caher:

"I pulled the file," Champagne said. "I went through the whole file. I had my staff look at the file. We went through everything we have from the commission of the crime. It was a brutal crime, but so much has been developed and so much information has come out about the [adolescent brain]. He has gotten every degree and done every single thing he can. I was convinced that perhaps he is an appropriate candidate to be paroled into the community, to give him a chance."
In a letter to the parole board, Champagne cited "Lazore's significant academic, vocational and therapeutic successes."

There were only two people on the panel that interviewed in July this year, and they couldn't agree about what to do with him.  So there's no decision, just a transcript of the interview.

Noah Lazore 2012 interview & decision

In New York, a tie means a do-over. So on July 31, a full panel interviewed Lazore again.  And voted 2-1 to grant parole.  The interview and decision doesn't seem to be on-line yet, but Caher has the news.

After a two-commissioner panel split last month on whether to release Lazore, he was granted a new interview on July 31 before commissioners Ellen Alexander, Christina Hernandez and Michael Hagler. Alexander and Hernandez voted for release and Hagler dissented in a determination released yesterday. Lazore is slated for release once officials conduct a field investigation and approve a place for him to live. Lazore, a Mohawk Indian who committed the crime when he was 16, has expressed an intent to return to the Akwesasne reservation in northern New York/southern Canada.

Let's give credit, a lot of credit, to Piasecki and Champagne.  They didn't have to do it.  They chose to.

Not because he's innocent, not because they made a mistake back in '76.  He's not.  Piasecki didn't.

No, it's because at 53 Noah Lazore isn't the same person he was at 16. Because he took all those classes and did all that work. Because he's an honors graduate of the State University of New York at New Palz. 

And because, dammit, it was the right thing for a present and a former prosecutor to do.  You know, act with integrity.  Seek justice (whatever it might be).

Good for them.

Wanna come to Ohio, guys?

Oh, and Noah, good luck!

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*Thinking about it now, I was less charitable to van Brocklin than I should have been.  Yes, it would have been better had he not gone after Eley as he did.  But he had the integrity and strength of character to reconsider, and then he took a strong stand.  Good for him.

But the Jury Said He Was Guilty

It's not something to be proud of, but there's always a bit of schadenfreude for criminal defense lawyers when a cop gets busted, convicted, and sent to the big house.*

So when the jury found Douglas Prade guilty of aggravated murder for killing his ex-wife, Margo, a physician, . . . well, you know, he was a captain in the Akron Police Department and as we know, cops get away with murder.  But not this time.  He's doing life.  Been in the state pen for almost 14 years now.  He's 66 now.  He'll be 78 when he has his first hearing before the parole board (yes, first, there's likely to be a second or third before he gets parole) in July 2024.

So a small if slightly embarrassed inward grin.  Yeah, inflict a little justice on the cops for a change.

The thing is, life has a way of biting you on the ass when you're feeling just a bit too smug.

Doug Prade knows a thing or two about that, I'd imagine.  What with him probably being factually innocent and all.

Of course, it's the DNA.  You know, the stuff the state spent years saying shouldn't be tested because it was, back in 1998, and no DNA implicated Doug.  In fact, the only relevant DNA was Margo's.

Let me back up a second and tell a piece of the story.

Margo was shot in her van in a parking lot, but there was a struggle. The Ohio Supreme Court, in an opinion from May 2010, explained.

During the attack, Dr. Prade apparently tried to defend herself by using her arm to push the killer away. The killer bit her arm through two layers of clothing—her lab coat and her blouse— and left a bite mark on her arm.

The state's DNA expert said that the lab coat over the bite mark was

the best possible source of DNA evidence as to her killer's identity.

And so it was done.  DNA from the lab coat was tested back in 1998.  As I said, Margo's, from her blood.

The thing is that DNA technology keeps improving.  In 1998, finding a second and substantially lesser donor of DNA in a spot covered with Margo's blood would have been just about impossible.  And, of course, none was found.  

Obviously, the lack of Doug's DNA complicated the state's case, but there was other evidence.  One expert said the bite mark might (or might not) have been made by his teeth.  Another expert said it definitely was.  (His expert said it could not have been his teeth.  And he was maybe at the scene (or maybe not).  And there was life insurance and a divorce and . . . . Anyway, the jury said he did it.

Doug said he was innocent, and for 8 years or so has been pushing for more sophisticated, more discriminating DNA testing.  It will, he's argued, show not just that I didn't bite her (and therefore was not the killer) but that someone else did.

For years the state said no.  He shouldn't be allowed to prove his innocence that way.  And the courts agreed right up until that 2010 decision by the Ohio Supreme Court which told the lower courts to reconsider.

Which they did.

And now.  Here's Mike Wagner in the Columbus Dispatch.

The DNA testing, conducted by DNA Diagnostics Center of Fairfield, north of Cincinnati, focused on the lab coat Margo was wearing during the attack and specifically a bite mark left by her killer. Testing results released today found male DNA present within the bite mark but it didn’t match Prade. 

Let's recap.  Killer bit Margo through her lab coat. If there's DNA from someone other than Margo on that spot of the lab coat, it's the killer's. Testing of that spot reveals Margo's DNA and the DNA of some guy who isn't Doug. 

Which means Doug didn't do it.
As in 

He's innocent!

Though not to hear the prosecutor tell it.  Oh, wait, never mind, the Columbus Dispatch hasn't been approved as a toady for prosecutors, so they can't get a quote.

Mary Ann Kovach, chief counsel for the Summit County prosecutors office, was reached by the Dispatch but said she couldn’t comment until the newspaper was cleared through her office’s public relations’ director.

Really though, it's too late.  They've already taken a stand.

But in a brief responding to the DNA tests prosecutors say the results don’t prove Prade’s innocence and point to other evidence presented at trial that should uphold his conviction.
“The state stands by the jurors’ verdict,” the brief states. “A fundamental premise of our criminal trial system is that the jury is the lie detector.”

Get that?  Their expert says that if there's DNA at that spot, it's the killer's.  There's DNA at that spot. But since it isn't Doug's DNA, it's irrelevant say the prosecutors.  The only evidence that would count is evidence that he's guilty.  

Why?

Because the jury said he was guilty.  And right or wrong, that's what counts.

Facts? Actual innocence? Who cares?

So now we have the answer to the question I've asked repeatedly in this blawg.  And in courtrooms, too (though there I've skipped the profanity).

Q:  Why not test the fucking DNA?
A:  Why not? Because it might prove he's innocent, and since the jury said he's guilty, proof that he's innocent is irrelevant.

Which is stupid and mean spirited and venal and . . . .

I'd like to add that it's unAmerican.  But given how hard so many prosecutors fight to make sure DNA doesn't get tested, I'm not sure that's right.

The old and not very funny joke is that any prosecutor can convict a guilty defendant but that it takes real talent to convict an innocent one.

Sadly, we learn every day that it isn't so.  It's easy to convict the innocent.

What's hard is preventing them from trying to prove that's what happened.

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* Except, of course, for those lawyers involved in the cop's defense.  There's never any pleasure in having your client hauled off in shackles.

Death Penalty Screed Part V - Aurora, Colorado

Kent Scheidegger says he hasn't yet decided for sure.

Although I very much doubt that his mental defense will be sufficiently compelling to make the death penalty not the appropriate sentence, I would still want to see it before deciding.

Scheidegger's co-blogger at Crime and Consequences, Bill Otis, on the other hand, has made up his mind.

A society unable or unwilling to recognize this man as having earned a trip out of this world is a society that no longer cares about the basic rules of civilized life (or its own safety, for that matter).

A Rasmussen poll concludes that 66% of the population thinks that whoever shot all those people watching The Dark Knight in Aurora, Colorado should get the death penalty, though Rasmussen didn't ask about alternatives and we know that the percentage favoring killing is always much higher when none are offered.

Regardless, that 66% includes Steven Hernandez who told TMZ that he's "heartsick and angry" over the murder of his sister, Rebecca Wingo.  So he wants the shooter to get the death penalty but to live a long time waiting for it.  None of that justice delayed is justice denied stuff for him.

I want to see him sentenced to death and I hope he sits in jail many years waiting to die.

On the other hand, Pierce O'Farrill, who was himself shot three times, has already forgiven and doesn't want the shooter to get death.

None of this (with maybe the exception of Scheidegger's restraint, but good for him) is particularly surprising. 

The press tracks down people who have opinions, and people who have opinions track down the press.  Those who generally favor the death penalty are, understandably, drawn to it in the case of a mass murderer.  Those who don't think the government should kill oppose it.  Really, there's some surprise in O'Farrill getting a forum for his view, but the press is always willing to listen to someone just emerging from surgery.

But then there's Jonah Goldberg who can't seem to find anyone to debate.

Death penalty opponents are fairly mercenary about when to express their outrage. When questions of guilt can be muddied in the media; when the facts are old and hard to look up; when the witnesses are dead; when statistics can be deployed to buttress the charge of institutional racism: These are just a few of the times when opponents loudly insist the death penalty must go.
But when the murderer is white or racist or his crimes so incomprehensibly ugly, the anti-death-penalty crowd stays silent. It’s the smart play. If your long-term goal is to abolish the death penalty, you want to pick your cases carefully.

So, he says, the debate won't happen because abolitionists won't engage.

It won’t happen in part because nobody on the Sunday talk shows wants to debate the death penalty when the case for it is strong.

They like cases that “raise troubling questions about the legitimacy of the death penalty,” not cases that affirm the legitimacy of the death penalty.

But it also won’t happen because death penalty opponents understand that when the murderer is unsympathetic, the wise course is to hold your tongue until the climate improves.

I don't know who Goldberg thinks is afraid to speak up.  I'm not.

I'll take Goldberg on. I'll happily debate with him the death penalty even for whoever shot all those people.  

Oh, I won't exactly take up the gauntlet Jonah's tossed down.  He wants opponents of the death penalty to explain why James Holmes, if he happens to be sane and evil, "deserves to live."  Explain, he demands,

why the inequities of the criminal justice system require his life be spared.

I won't do that.

I won't explain why the specifics of James Holmes (if it's he) or the particulars of the life of some as-yet-unidentified, and to me wholly unknown person demonstrate the inappropriateness of death in this particular case.

That's a silly debate.  Neither he nor I knows anything about the shooter except some media gossip.  And he's already loaded the dice declaring that the debate must be over someone who is assumed to be fully responsible for his actions without allowing the possibility that nobody is.

Really, that's all beside the point.

Killing James Holmes or whoever isn't wrong because of the details of James Holmes (or whoever), though those details might be a separate reason why killing him is wrong.  Nor is it wrong to kill him because he would be a victim of the randomness and arbitrariness of the death penalty. In fact, he would.  But that's not because of him in particular.  It's because what Potter Stewart said forty years ago in Furman remains true today.

[D]eath sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.

The death penalty is random and arbitrary.  It is beset by caprice and racism and classism.  Those things are true even when the guy who draws the short straw happens, in some cosmic sense, to deserve it.  It's no less capricious to kill him just because a system that wasn't arbitrary might (or might not, since we haven't ever seen such a system, and since we can't truly conceive one, we'll never really know) have found him worthy of death.

It's not that I run from those debates in a case like this.  It's that they're beside the point.

I have no idea whether in cosmic terms the person who shot up the theater, killed 12, injured dozens more, and terrorized still others deserves to lose his life.  I don't dispute that it's possible. I'll concede that there may be folks who deserve killing.

And I suppose that if there were someone who knew it all.  Someone who knew every genetic fact and how it operated (not just the ones we can agree on, all of them) and all facts of nurture and background.  Someone who knew every fragment of mental health and how it happened.  Someone who understood motivation perfectly.  If there were such a person who also happened to be infallible in judgment and wisdom.  You know, if there were God, the omniscient, omnipotent, omnibenevolent, unique creator of the universe, if that God were to specifically declare that the Aurora shooter deserved to die, well, then, I suppose we'd know.

Absent that, and whatever Jonah Goldberg might choose to believe, we're absent that, it's a crap shoot.  Maybe he's right that the killer deserves to die.  Maybe not.  Neither he nor I nor anyone else has all information conceivably relevant to the question.  None of us could have all that information.  And none of us has perfect judgment.

And of course we're all better than the worst things we've done.  And I'm sorry, but doing an evil act does not make the doer an evil person.

So we don't know.  And we can't know.

He'll kill based on odds.

I won't.

Because we could be wrong.  Even if we don't think so.

Besides, whether the Aurora shooter deserves to die is only one part of the equation.  The other part is whether, even if he does, we should kill him.  Ought it be us? 

There's nothing new here.  I've said it over and over in this blawg.  The death penalty isn't about the guy we're killing.  He's just its victim.  It's about us.  The killers.

Of course, the alternative isn't that he goes home in a couple of weeks.  it's that he spend the remainder of his life in prison. Without hope.  Without recourse. Death in prison.  Just not murder in our names.

And, I should add, in the names of those he killed.  There's a way to be remembered. In honor of those we loved and lost, we commit murder. I think not.

A couple of years ago, in April 2010, I wrote this.

I've talked before about the Ohio aggravated murder statute. Aggravated murder is our only capital offense. There are a number of forms of aggravated murder, and it only gets to the death penalty if you also add a specification, but here's the first form of the offense: No person shall purposely take the life of another with prior calculation and design. OK, so on Tuesday, some prison guards took Darryl Durr from a holding cell to the death house at the Southern Ohio Correctional Facility. They strapped him down to a table. They stuck needles in his arms. Then they pumped him full of a barbiturate (sodium thiopentol) until he was dead. That is, they purposely took the life of another with prior calculation and design. Me? I don't think anyone has the right to do that.

Even to people who deserve killing. If you can figure out who they might be.

I'm not a Christian, but I think Jesus was on my side.

[1] Jesus went unto the mount of Olives.
[2] And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them.
[3] And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,
[4] They say unto him, Master, this woman was taken in adultery, in the very act.
[5] Now Moses in the law commanded us, that such should be stoned: but what sayest thou?
[6] This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.
[7] So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
[8] And again he stooped down, and wrote on the ground.
[9] And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.

John 8:1-9