Sunday, June 16, 2013

With All Speed

They called it the "Timely Justice Act" though it'd be more honestly called the "Kill 'em and Get on with It Act."  Fast and Furious, to steal a term from another bad idea.  But legislators know that a noble sounding name can obscure a wealth of sins (think USA Patriot Act), and that if you call things what they are you run the grave political risk of too much honesty.  (Honesty, not integrity.  Integrity's something quite different though the risks are sometimes the same for a politician.)

Regardless of name, it's now the law in the Sunshine State since Rick Scott, the governor-who-would-be-elected-again, signed it into law on Friday.  The aim of the thing is to get the folks on Florida's death row killed faster.  Mary Ellen Klas, in the Miami Herald, explains how it works.
The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.
Florida has just over 400 folks on death row.* (It's exonerated 24 - the most of any state - we'll get back to that fact.) Klas reports that Scott's people say that "at least 13 of the 400-plus have have completed the basic litigation track and "his office has already started the clock on the clemency review."

Which means, at least potentially, a lot of bodies piling up in a short time.  You know, Texas.  
Yee! Haw!
Now, if you believe the death penalty is a good thing, and if you believe that we don't make mistakes legal, factual, or moral (or if you believe that it doesn't matter whether we kill the wrong people as long as we kill at least some of the right ones (better that 10 innocent people should be executed than that one bad guy should get to live out his days until natural death in prison) or if you figure that we catch all the mistakes right away, then I suppose you're OK with this.

I mean, it's not like they're pushing things along (however it looks).  Just ask Scott.
Read more here:
In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”
See.  And you thought this was about something other than bad people like me.  Stalling the system.  I mean, if we'd just recognize that there's a need to act fast so our clients could get killed sooner.  Instead we dilly and dally and run the shot clock.  Sigh.

So let's get back (as I promised) to those 24 exonerees.  Yeah, I know that the kill-'em-now folks say they aren't all factually innocent.  But pretty much everyone agrees that at least a couple are, so let's just go with the generic fact.  Klas again.

Opponents warn that the accelerated clock will diminish the opportunity to exonerate anyone on Death Row who has been wrongly convicted, reduce the opportunity to challenge convictions because of ineffective counsel, and produce a “bloodbath” of executions in the next month.

Read more here:
OK, so maybe not all in the next month.
But [Scott's general counsel, Pete] Antonacci, who has overseen the governor’s death penalty review, disagrees. The clemency provision was added at his request and that clemency investigations typically take from four months to a year, after which the governor and Cabinet serving as the clemency board must decides whether to commute a sentence or move forward with the death warrant. But, he acknowledged, the 13 inmates now undergoing the review “will be done within the next year.’’

Read more here:
So maybe it'll take a year to kill all 13.  That's still territory no state but Texas inhabits.
In any event, the bloodbath is only part of the story.  It takes time for the innocent to demonstrate it.  And a run through a clemency proceeding . . . . I mean, it's not like the court of appeals looks at what happened at trial and goes
Zowie! The jury obviously got it wrong as did the police and prosecutors.  This is the wrong guy as any dimwit who sat through the trial can see.
That's not the way it works.

The way it works is that years later someone stumbles across the fact that the real killer had confessed to the police and given a DNA sample which careful testing implicates him on and it turns out that there's a video of the guy on death row for the crime ordering lobster bisque at a diner in Maine just 20 minutes after the killing in Tallahassee but the police hid all those things.  Or the prosecutor did.

Or maybe fifteen years after the crime some journalist gets a stick up his butt about the case because he's researching something else and notices that a virtually identically weird crime occurred in Oklahoma six months after the guy on the row was locked up in prison in Florida and starts to do some digging and 
HOLY SHIT.  They're planning to kill the wrong guy.
But then there's years of investigation and legal wrangling and. . . .

Or there's Frank Lee Smith.  Who spent 14 years on death row in Florida for the vicious rape and murder of an eight-year-old girl in her home.  Her mother and a couple of neighbors gave identifications that led to Smith as the rapist-killer.  And Mom identified him from the witness stand.  And the case looked pretty good and the defense of Not Guilty by Reason of Insanity went nowhere (as those defenses typically do).  So Smith went to death row where, as I said, he spent 14 years before he
Died of cancer.
And it was another 5 years before the DNA revealed that it wasn't he who raped and killed the child.

But of course, if you're good with this.  If you don't care that a few innocent guys get executed as long as some guilty ones do.  If you believe that the factually innocent are stalling in their efforts to prove their innocence because it's so cool being on the row and they just need an incentive to move it along so they can get back to their lives.  If you . . . .

Fuck.  If you're in that camp you have your own rationalizations.  Or maybe you just don't believe anything I have to say because I'm one of those dillydallying defense lawyers who just wants to release killers onto the streets so they can rape and murder your children and mine.

Which is, of course, nonsense.

When the Supreme Court decided Brown v. Board of Education, it ordered desegregation with "all deliberate speed."  The segregating states focused on "deliberate" which they figured meant they could wait until the voyages of the Starship Enterprise a few hundred years into the future.  

Speed?  For equal justice under law? For constitutional obligation?  For human decency?

It is to laugh.
Which they didn't quite say, but might as well have.

But it's about what they say down in Florida when they think about being deliberate on executions.  

For that, it's all about the speed.

*DPIC's fact sheet says 413. Klas says 404. It makes a difference to those 9 folks, but not to this post.


  1. It may not allow for perfection, but the fact is if you are going to have a death penalty at all, this type of law is necessary. At present, the death penalty is meaningless.

    Furthermore, in terms of showing innocence, I think the courts do at least take the process a little more seriously when a real death is on the line. If everyone just thinks in the back of his mind, "Well if the defendant is really innocent, then maybe in ten years he can prove it," the court runs a little more carelessly. You talk about the death row inmates who are later exonerated. How many life inmates are exonerated? I suspect not as many. No one really cares about them.

  2. When I moved to Ohio from Texas I was struck by the fact that the Texas Court of Criminal Appeals seemed to take death cases more seriously than the Ohio Supreme Court did. Perhaps, I thought, it was because they seemed real in Texas where they were actually killing people while here in Ohio it was all theoretical.

    Then Ohio started executing people. No change in the court. Texas, on the other hand, stopped taking the case seriously. The conclusion: The reality of executions has nothing to do with how the courts view these cases.

    Life inmates get exonerated, too. The difference isn't that the courts don't care as much, it's that they don't have the teams of lawyers and activists working on their cases until they die.

    And if the only way to have a meaningful death penalty is to ensure that you can't be sure, then maybe even retentionists should think again.

  3. Florida: The 83% error rate in "exoneration" claims.

    4 of the 24 "exonerated" may be innocent, as found in 2 studies by a Florida state agency, the Florida Commission on Capital Cases.

    It is no surprise that the 24 "exonerated" claim comes from the deceptive Death Penalty Information Center..

    This represents a terrible case of media deception, as the Florida media has known the real numbers since 2002 (updated 2011) but refuses to use them, instead, pushing the well known DPIC deception of the 23/24 "exonerated". That is how bad it has gotten.

    From page 5 (2002 study) and page 7 (2011 study):

    "The guilt of only four defendants was subsequently doubted by the prosecuting office or the Governor and Cabinet members: Freddie Lee Pitts and Wilbert Lee were pardoned by Governor Askew and the Cabinet, citing substantial doubt of their guilt, Frank Lee Smith died before the results of DNA testing excluded him as the perpetrator of the sexual assault, and the State chose not to retry James Richardson due to newly discovered evidence and the suspicion of another perpetrator."

    "doubted", not confirmed.

    a) Case Histories: A Review of 24 Individuals Released from Death Row (2002), FLORIDA COMMISSION ON CAPITAL CASES, Locke Burt, Chairman, June 20, 2002, Revised: September 10, 2002

    b) TRULY INNOCENT?: A Review of 23 Case Histories of Inmates Released from Florida‘s Death Row Since 1973, Commission on Capital Cases, The Florida Legislature, Roger R. Maas, Executive Director, May 13, 2011

    Both from:

    The Innocent Frauds: Standard Anti Death Penalty Strategy