Sunday, November 27, 2022

Gratuitous Indeed.

 So, it seems I have a certain cachet.  Despite being mostly retired from the active practice of law (mostly though not quite entirely; "retiredish" is the term I've taken to since another lawyer used it to describe my current status"), and despite this blawg having assumed much the same posture for a few years now), Jack Marshall just referred to me as a "distinguished defense attorney blogger." Then, of course, he does his best to show that my opinions are claptrap.  But hey, I'm a DDAB!*

Yee! Haw! as they sometimes say in west Texas.  

Anyhow, Marshall's takedown led some anonymous guy to see what I'd actually written (thanks, Jack) and to ask how I'd respond.**  Ever obliging . . . .

Start with the instant recap:

Kevin Johnson's on death row in Missouri for the murder of Kirkwood, Mo. police officer William McEntee 17 years ago.  He has a very serious execution date of November 29.  Johnson was 19 when he murdered McEntee whom he blamed (justly or otherwise) for the death of his 12-year-old brother some two hours earlier.  Johnson's daugher Khorry Ramey was 2 at the time.  She's now 19, and both she and her dad want her to be a witness to his execution. But Missouri has a statute saying that execution witnesses must be at least 21.  She sued to delay the execution long enough to allow her to litigate the statute's application to her.  The judge just turned her down.  

Unless things change (always possible), Johnson will be executed Tuesday and Khorry won't be there to witness it.

OK, that's the legal background.

Now, my position, expressed as it often is, with snark and outrage and at least one use of the word "fuck" is that Khorry ought to be allowed to watch her father die.  Missouri didn't have to fight her lawsuit, and the judge didn't have to shut it down.  And they didn't need to.  But doing so, effectively shutting her out of the execution, were gratuitous acts of cruelty by the state and the judge.

Missouri could have done it by simply agreeing to delay the execution until she litigates her right to attend.  Regardless of whether they had a legal obligation to do that, they could have simply decided that in the interests of justice and human decency she should have the chance to make her case.  Hell, they could have pushed things on a fast track to get it all done quickly so they could get on with the killing.

And the court could have held that the the irreparable harm she would suffer missing the execution was sufficiently grave, and the 21-year cut off sufficiently arbitrary (at least as applied to her - Johnson's adult daughter), that her as-applied challenge to the law was worthy of a stay to litigate the damn thing.

I didn't parse the legal issues in my post, and I'm not really interested in parsing them here.  Nor, frankly, does Jack.  Here's his entire legal analysis:

With an opinion that is both reasonable and, frankly, obvious, the judge refused to order the emergency TRO, concluding as I did the second I learned about the case that she didn’t have a legal leg to stand on. The claim of “irreparable harm” from not being allowed to watch the father you barely knew be executed is particularly weak.

And, he adds, that

Judges holding to the letter of the law is neither cruel nor gratuitous. 

Which as an abstract observation is both unremarkable and uninteresting.  Of course judges should do that.  But judges asked to consider whether a law is unconstitutional don't get to resolve the question by saying, "but the law says that so it's OK."  To quote Dickens:

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot."

The point isn't that the judge had to grant the stay Khorry Ramey sought.  But he could have without clearly ignoring the law.  And the people of Missouri could have been good with that.  And all could done so have without just saying, "hey, whatever feels good to Gamso" or something.  When there are choices, when there are lives involved, compassion's not an evil.***

Jack believes in the death penalty.  I don't. He sees Johnson as solely responsible for the trauma his daughter will suffer.  After all (and Jack doesn't say this, but it's sort of implicit in the argument), he could have decided, before pulling the trigger and killing Officer McEntee that he could be sentenced to die for it and his daughter might want to view the execution and be denied by the Missouri statutes.  

But putting that analytical silliness aside (anyone who spends much time in the criminal trenches knows that people who commit crimes, especially violent ones, simply don't engage first in long-term cost-benefit analysis or, really, even briefly consider the legal consequences.  It's why you don't deter crime by making sentencing laws harsher), it's not Johnson who's responsible for denying his daughter the viewing.  

And, of course, Khorry could have chosen to litigate the legality of the statute's age limitation years ago on the assumption that her dad's execution would be pretty certain to occur at a time when she'd be an adult but not yet of age.

Sure.  Could have happened.

One more bit.  Jack takes me to task for suggesting that Johnson's race may have had something to do with how he ended up on death row.  Here's what we know.  A mixed race jury hung.  He was tried again by an all white jury and sentenced to die.  Do I know that the jury's racial composition was the reason for the difference?  No, not for sure.  Does it seem like that might be relevant given studies of mixed-race versus single-race juries (or even without those studies)?  Yeah.

Jack can disagree all he likes. 


*Marshall bestows the same honorific on Scott Greenfield, implicitly referencing his post on the same subject that mine riled him up about.

**This sort of thing was common back in the days of the active blawgosphere when bunches of lawyers would routinely discuss and debate (and sometimes eviscerate) issues and attitudes, and other blawg posts).  I kind of miss those days.

***As I explained elsewhere, the late Antonin Scalia disagreed.  


  1. Expecting Jack Marshall to actually address the Constitutional issues at play in any case is a fool's errand.

  2. While I agree generally that MO could have just let the daughter attend, and probably should have;

    1) The wheels of the legal system grind intolerably slowly, so it's really hard to argue that someone approaching the end of their appeals doesn't see it coming. It's unlikely that the defense thought they could eke out another two years so that she would be the required 21 years old, and lawyers working death row cases in death row states absolutely should know about restrictions like those. So while it's possible, I suppose, that no one had explained those restrictions to Khorry, I'm going to uncharitably suggest that someone probably did, and it's not unlikely that this is an 11th hour stalling tactic.

    2) Questioning whether the race of Johnson is material, I think, brutally misses the forest for the trees: Before going further Of course Johnson is guilty.

    The facts of this case seem relatively uncontroversial. Johnson, as a 19 year old adult, armed himself and sought out McEntee, who Johnson blamed (with reason, but really... That's not an excuse) for the death of his brother, said so out loud, and then shot him. Whether you agree with the death penalty or not, there are precious few fact patterns more clear cut than this. Might a white defendant have been treated more leniently by the system? I suppose it's possible, but unlikely... The system for better or worse, seems to take killing policemen more seriously than other murders.

    Might the race of the jury makeup skewed the verdict? Also maybe... But the question then is "Did we lift the floor or lower the ceiling?" If there was a racial component here, I think, and correct me if I'm wrong, but I think that the assumption is that white juries might be more willing to convict a black person that black people might be, and in marginal cases, that might actually be an issue, but in cases like this, that assumption ends up that black jurists might be more likely to nullify the law based on some kind of racial solidarity with the defendant. Again... Johnson was obviously guilty. So while someone who doesn't like the death penalty might see the jury nullification that was the hung jury as a positive, the reality is that while juries have the right to nullify, it's probably not good on the whole that they do.

  3. Regarding the actual legal issue, would there really have been any chance at all for Khorry's case? Is there any precedent for someone suing to change the rules on who gets to be present at the execution?