Inverting Blackstone

It's called the "Blackstone Ratio" after William Blackstone who said it was

better that ten guilty persons escape, than that one innocent suffer.

It is a lovely idea.  One we pay homage to while patting ourselves on the back about the wonders of our Beyond a Reasonable Doubt standard of proof for a criminal conviction.  And one we don't mention as we issue a celebratory oopsie when we release a wrongfully convicted, innocent person and claim it shows how well the system works.

It's also a fantasy.  For all the noble assertions - reaching back into history centuries before Blackstone and up to the present in academic discourse and jurisprudential ideal* - we don't really believe it.  Ask your neighbors.  Ask your co-workers.  Unless they happen to be criminal defense lawyers, and maybe even then, they'll look at you as if you're a lunatic.

Still, we aspire.  At least, we did.

* * * * *

Enter the American Law Institute.** Institutionally respected (and influential, which is more important), the ALI consists of some 4,000 academics, lawyers, and judges (invitation only, please) who among other things drafts "Model" laws that tend to be adopted, with only slight variation, around the country.  In particular, ALI is responsible for the Model Penal Code.  Taught in law schools, what the Model Penal Code suggests as, er, model, states commonly adopt as law.  

Of course, ALI has to keep tweaking the MPC.  That's good, since it allows them to amend stuff that turns out to have deplorable consequences.  And it gives them a chance to add new crimes since, for instance, we didn't have cyberhacking in the old days.  (I don't actually know whether the MPC includes cyberhacking as a crime.  Nor, frankly, do I care enough to see if the answer is available somewhere that isn't behind their paywall.)  Of course, the tweaking also keeps them in business, and like every institution, ALI is deeply concerned with maintaining its relevance - and income.

But then . . . 

So for the past few years, ALI has been working on a new version (they call it an "updated" version of 

Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.

But what is it, exactly, that made the old version unreliable? Probably bunches of stuff. It turns out that in the old version unless there was force or some form of coercion it was not a crime for sex "between professionals (mental health providers, lawyers, executives, etc.) and those under their supervision or in their care." You know for a doctor to have sex with a patient or a lawyer with a client or the CEO with the company's VP for handcuff design or whatever. Ooooh. Damn. Actually, in the regulated professions, that's pretty much a no no anyway. You could lose your license. Not enough punishment, though, since you couldn't also lose your freedom.

And of course the tweaking cranks up the sentences.  Because in 1962 we didn't think all sex offenses deserved LWOP followed by lifetime registration and matches on the front lawn to make it easier to burn down the registrant's home.

But I'm quibbling and ignoring the real news which is the criminal law adoption of Mattress Girl as a mascot for the new crime.  Elizabeth Nolan Brown at Hit and Run:

To this aim, ALI proposes establishing the new crime of sexual intercourse without consent, a misdemeanor, which takes place when a person "knowingly or recklessly has, or enables another person to have, sexual intercourse with a person who at the time of the act of sexual intercourse has not given consent to that act." (This is, of course, absent any sort of force, coercion, or indication the victim protested/resisted, which would remain felonies.) It would also expand the definition of criminal sexual contact to include any unconsented to contact with any body part if the perpetrator intended the touch amorously or lustfully.

How does that work, exactly?  Here's the explanation in a way-too-long excerpt from a memorandum opposing the draft recommendations by some 70 members of ALI (edited slightly for comprehensibility).  It begins with a hypothetical.

A and B are on a date and walking down the street. A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. B does nothing, but six months later files a criminal complaint. A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).
How can this be? The draft explains:

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

The offense arises because A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).
The draft purports to preserve mens rea as an element of the offense, but that is no comfort because it is proven with barely an effort from the prosecutor: “A, When walking down the street side by side with your date, you knew, or knew of the risk, that B had not expressed prior positive agreement that you could reach out and hold B’s hand, didn’t you? In fact, that’s exactly why you were “timid” about it, right?”
Of course, A does not have to testify but A will have great need to testify because of the shifting of the evidentiary burden that is caused by the “positive agreement” standard. Note that A is still guilty even if they were both wearing gloves. Section 213.0(5) (“clothed or unclothed”)
Consider the same couple, but now B responds to the criminal hand-holding by pausing to kiss A on the cheek. A remains guilty since there is no mechanism for retroactive consent, but now B is also guilty because A has not expressed prior positive agreement for this particular escalation. Under this scenario, the actions of both A and B would satisfy the elements of the offenses. Thus, they would be adjudicated as sex offenders, would be required in many states to register as such and would suffer the other collateral consequences of conviction for a sex offense.

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

Ain't life grand.

OK, that's ridiculous. And fortunately there's no prosecutor who would proffer charges like that. Except that they would.  Plead to hand holding and we'll drop the more serious groping charges. Hey, it's just a little thing.  A kiss is just a kiss.

But here's the nub.  None of it is an accident.  The drafters understood, announced up front that they didn't care about snaring the innocent as long as they upped the odds of catching the guilty.

[T]he appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition. (Discussion Draft No. 2, Substantive Material, at 53).

Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will—just as inevitably—entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.2(2) reflects the judgment that the harms that arise under the latter standard present far greater reason for concern. (Id.).

Ah, yes.  Better that ten innocent persons suffer, than that one innocent escape.

Hear that creaking sound?  It's Blackstone turning over in his grave.








-------------------
*See Alexander Volokh's "n Guilty Men."
** The ALI's self definition:

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.

Consequence

You've got to make them lose to make them learn.

That was Cathy Cook, arguing in the Supreme Court of Ohio about what it would take to get prosecutors to stop cheating, lying, hiding evidence in capital cases.  Instead, what the court did, routinely, was admonish.

Bad prosecutor.  Don't do that again.  Be aware, one of these days if you keep it up we'll reverse a conviction.

Empty threats.  No consequence.  No change in behavior.  The prosecutors were righteous, after all. They weren't breaking the rules in order to convict the factually innocent.  They were taking bad guys off the street.  No need for the niceties.  

So yeah, undoing some of those convictions based on prosecutor misconduct might achieve something - especially if the courts really had balls and said that they couldn't try the defendants again - even if the prosecutors said that they were bad dudes who'd done bad stuff.  Make 'em lose and maybe they'd learn.

Or maybe not.  Because really, the cops'll just bust the guys so they can do it again.  Or maybe the cops'll shoot next time and save everyone the bother.  I mean, they can do that with pretty much no consequence to them even without much in the way of justification.  See Michael Brown and Eric Garner and Tamir Rice and Freddie Gray and . . . .  Well, just look at Michael Brelo who was, after all, acquitted.*

Rick Horowitz suggests a different approach to the cops, making them have personal liability insurance for their police behavior (link removed).  

The most important component of this proposal is that if an individual is unable to obtain the insurance, they are unable to work as a law enforcement officer. Period. No ifs, ands, or buts. No workarounds.
This final part of the proposal provides a beautiful means of weeding people out of the force who should never be on the force in the first place. Let insurance company actuaries help clean things up. Individual insurance companies can develop their own means of deciding who to insure, and who not to insure. After all, assessing and deciding on what is acceptable risk is what they do.  

There's an elegance to Rick's proposal I like.  But it doesn't help us with the self-righteous prosecutors who'll do whatever it takes - and damned the rules.  After all, what's the risk to them.  Oh, sure, maybe some chewing out from a panel.  Embarrassing, but.  Ho hum.

And so, in the spirit of, here's something you don't see every day, I bring you to the Lone Star State where, you may recall, Anthony Graves spent 18 years in prison, 16 of them in solitary, 12 of them on death row, for a mass murder (6 members of a family, including 4 children) he didn't commit.  

How'd that happen?  Meet Charles J. Sebesta, Jr., the man who put him there.

He's the prosecutor who put on perjured testimony.

• Who didn't tell the defense - or the jury - that Robert Carter, a co-defendant and the key witness against Graves, admitted the night before his testimony that he committed the crime alone and that Graves had nothing to do with it.  
• Who had others testify that Carter had been consistent with his story implicating Graves knowing that their testimony was false.  
• Who had Carter himself give the false testimony on the witness stand.
• Who arranged for threats to prosecute Graves' alibi witness for capital murder if she testified, accurately, that he was with her and elsewhere at the time of the killings.

And who, oh yeah, there is a point to this, just got disbarred.

Prosecutors like to say that the bad guys need to learn there are consequence to them when they commit crimes.  Frankly, most of our clients don't understand those connections.  They've generally lived lives that haven't lent themselves to a clear understanding of cost-benefit analysis.  

But Sebesta?  He'd been preaching it for years.

Rule of Law for a change.

  Sebesta Judgment of Disbarment

------------------
*Yes, I know that the Rice and Gray cases are still pending.

Five More.

Early in the morning on November 19, 1984, Chevette Denise Brown shot Herbert Rowan in the back of the head.  She did it, she testified at David Sneed's trial in 1986, at his direction.  On July 30 of that year, a few months shy of two years after Rowan's murder, Sneed was sentenced to die.*

He's been languishing on death row ever since.  As the row was moved from Lucasville to Mansfield. As it was moved from Mansfield to Youngstown.  As it was moved from Youngstown to Chillicothe. He's been there.  In a couple of months, it will be 29 years.

Monday morning, the Supreme Court of Ohio, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set an execution date.  August 1, 2018.  a bit over three years from now.  When he'll have been on the row 32 years and 2 days.

They also said that James O'Neal has been hanging around long enough (though nowhere near as long as Sneed).  He was sentenced December 11, 1995.  He's now scheduled to be killed October 10, 2018.

And Elwood Jones, sentenced January 9, 1997.  Set to be killed 22 years to the day after that, January 9, 2019.

And Tim Hoffner and Archie Dixon.**  Co-defendants from Toledo.  Tried separately, both sentenced to die.  Tim on June 1, 1995.  Archie November 22.  They plan to kill Archie March 20, 2019, Tim May 29 that year.  

Do the math.  The Supreme Court of Ohio just ordered Tim Hoffner to be killed 4 years from now. He is, if my math is right, the 23rd person in Ohio with an execution date.  First up is Ron Phillips next January.  And on and on.  23 men.  Over not quite 3 1/2 years.  Beginning in about 7 months.

Will it happen?  Almost surely not to all of them.  At least, not on that schedule.  And of course, maybe to none.

In a few hours, the court is going to hear argument in the case of Romell Broom.  He's the guy they tried mightily to kill a few years ago.  But failed.  The question is whether they get to try again.  We'll have their answer in a few months.  Then, it's safe to assume, the US Supreme Court will be invited to review the Ohio court's decision.    

Broom was sentenced to die on October 16, 1985.  If he's ever executed it likely won't be until sometime in the 2020s.  He was 28 when he was sentenced to be killed.  He turned 59 last week. He'll be over 65, a senior citizen, by the time they kill him.  If they do.

I get tired of saying that while I can recognize injustice, I don't know what justice is.  But I know that whatever it is, it isn't languishing for decades on death row only to be, finally, either killed or resentenced to life.  Or even released.  And it sure as hell isn't being told, as Tim Hoffner just was, that you have exactly 3 years and 355 days before you're to be killed.  By mean yet unknown. Because who the fuck knows how well be killing people, if we still are, in 4 years.

No, there's no justice here.

And yet, you want to do it faster?

Consider Joe D'Ambrosio, who spent 22 years on the row before a court finally determined that the prosecutor's lies and cheats had put a factually innocent guy in prison.  And scheduled him to die.  Great victory for the system that we didn't kill that innocent man.  And Joe, frankly, is a pretty remarkable guy now.

But speed it up?  Joe's dead.  And he's not alone.  

You want to kill them, but you want them to have something that's at least got the appearance of a fair trial?  And you want to give them some opportunity to show that the jury got it wrong?  That they're actually innocent?  Then, sorry, it's gonna take time.  Years.  And then more.

But then, when you finally get around to killing Ishmaa'eel, it turns out that the 25-year-old you sentenced, the 23-year-old guy who told Chevette Denise Brown to shoot Herbert Rowan, is going to be a 57 year old when you kill him.  Not the same person.  Maybe a good guy now.  Maybe not.  But at 57 he ain't who he was at 25.

Or Dzhokar Tsarnaev, who was or wasn't under his brother's influence when he participated in setting bombs at the Boston Marathon.  And who, if he ever actually gets killed by the government, won't be that kid who was sitting in the courtroom during the trial.  He'll be middle-aged.  Or older.  And regardless of who he was that day in Boston, he'll sure be someone different by the time he's killed. If he is.

But see, if the guy we kill isn't the guy we sentenced (same body, different person - years do that to everyone), then what, exactly, are we doing?  And how readily we can see through the fiction that this is anything other than cankered vengeance.  

If we're willing to look.


------------------
*Sneed now goes by Muhammad Khaaleeq Ishmaa'eel, though the Ohio Supreme Court apparently doesn't recognize the change of name.
**Disclosure: I represented Archie in an interlocutory appeal and then on direct appeal after his conviction and death sentence.  

Two Down; Thousands To Go

It was September last year when a judge in North Carolina declared Henry Lee McCollum and Leon Brown innocent of the horrific rape and murder of 11-year-old Sabrina Buie.  I wrote about it at the time, quoting Scalia explaining why Lee McCollum ought to be killed (without actually hearing his appeal).  He wrote that an 

11-year-old girl [was] raped by four men and then killed by stuffing her panties down her throat.

And I noted that he barely touched the surface.  I quoted the North Carolina Supreme Court.

An autopsy was performed upon the body of Sabrina Buie. Linear abrasions on her back and buttocks revealed a pattern indicating that the body had been dragged over a rough surface. There was a tear or laceration deep within the victim's vagina and a tear or laceration in her anal canal. Petechial hemorrhaging, characterized as the bursting of small blood vessels caused by pressure, was observed in the victim's eyes. Similar hemorrhaging caused by a pressure mechanism was also observed in the heart and lungs. The brain appeared slightly swollen due to a lack of oxygen.
A stick and pair of panties were wedged in the victim's throat, completely obstructing the airway. Dr. Deborah Radisch, Chief Assistant Medical Examiner for the State of North Carolina, testified that the victim died of asphyxiation.

But mostly I wrote about how, after 30 years in prison/on death row, McCollum and Brown were exonerated, declared innocent by a judge.  

I wrote about how Johnson Britt, the current prosecutor in Robeson County, joined defense counsel in urging the judge to declare the half brothers innocent. About how DNA, finally tested,* pointed to a neighbor - who'd committed a similar crime.

And I wrote about how Joe Freeman Britt,** the now-retired prosecutor who got the two innocent men convicted and sentenced to die, insists that they're guilty. Because who you gonna believe, fucking science which happens to exonerate them and point to a nearby guy who's doing life for a similar rape-murder a month after Sabrina Buie's?  Or the coerced, inconsistent, promptly recanted confessions of a pair of teen-aged half brothers with mental disabilities?

But mostly I wrote about 30 years.  And about how this thing called "criminal justice" which freed the now-middle-aged men bears no real relationship to justice.  Whatever justice might be.

It's been about nine months now.  And of course it's been a struggle.  Had they been freed by the North Carolina's Innocence Inquiry Commission, they'd have been eligible to collect $750,000 each. Small compensation for 30 years but certainly helpful for getting started again in the outside world. But no, they were declared innocent by a judge.  So fuck 'em.  Hey, we gave each of them $45 on the way out the door.  Isn't that enough?

Craig Jarvis in the Raleigh News and Observer.

Since being freed from prison last year, the men have been living with their sister in Fayetteville, where she has been struggling to pay rent and utilities on her home. The death penalty center established a fund to help them survive.
Because they had been freed by a judge, and not on a declaration of innocence by the Innocence Inquiry Commission, McCollum and Brown could not collect compensation. To do so, they needed a pardon from the governor.

Which he's now done.  After nine months.  Per the press release.

Governor Pat McCrory signed official pardons of innocence for Henry McCollum and Leon Brown today. The governor announced his decision to pardon the brothers yesterday after a thorough and comprehensive review by the Office of Executive Clemency, the governor's legal team and the Clemency Committee.

Because you want to be damned sure before tapping into the treasury.  And really, after 30 years, what's another nine months?  (And counting, since there are still some hoops to jump through before getting the checks come in.)

I don't mean to sound churlish, and good for the Governor to finally do the right thing.  And certainly good for Henry Lee McCollum and Leon Brown (who didn't attend the press conference at which McCrory expressed his deepest sympathy to the family of Sabrina Buie - but offered no sympathy at all to the men who lost 30 years of their lives).  But you know, it all raises some questions.

I quoted Scalia above and in that earlier blog post.  His point was that what Henry Lee McCollum did was so horrific that being executed is just a walk in the park by comparison.  Of course he should die. 

Now, I don't imagine that Scalia is so cold-blooded that he favors killing innocent people even in revenge for the most appalling crimes.  But then, McCollum and Brown weren't executed.  So it's all good.

And hell, they'll even get the big bucks now.
But just how many eggs do you break to make that omelet?  How close to a killing do you have to come before it's a problem?  

It's not just the men and women on the row.  They're the ones who get attention, who have lawyers (and yes, I've been one of them) working for decades on their cases with little or no remuneration. But there are the LWOP folks, too.  And the ones doing a term of years.

Our system, any system, is going to make mistakes.  We're going to kill some number of factually innocent people.  We're going to lock up for a very long time some number of factually innocent people.  We're going to lock up for lesser periods some number of factually innocent people.  We're going to destroy lives that shouldn't be destroyed.

All that's a given.  At some level, it's unavoidable.  We won't, we can't catch all the mistakes.  And we need some system.

But death mistakes are irreversible.  And possible mistakes that we aren't eager to review are, frankly, inexcusable.

Yet our system says no.  Our system says finality.  Our system says we review for procedure not accuracy.  Our system says that it's better to throw away the key, hell, throw away the life, than to find out.  

Because who really gives a shit.  Because if they didn't do that, they probably did something.  And because

Well, because.

"Today we put the past behind us with not just a clear conscience, but a clear name, committed to living a good life and doing God's work,” half-brothers Leon Brown and Henry McCollum said in a statement released by their lawyer, Patrick Megaro.
Brown and McCollum have awaited the pardon, which allows them to collect compensation for their wrongful imprisonment, since pardon applications were received by McCrory on Sept. 15.
“We pray that justice will again prevail and the real murderer is punished justly for his crimes, and we also pray for the victim's family that they find justice and peace,” the statement said.

30 years.  And they take the high road.

Like I said, good for them.  But there are all those others.

And nobody, really, gives enough of a damn to find out.
------------------
*I keep asking, often in all caps to indicate shouting, WHY DON'T THEY JUST TEST THE FUCKING DNA?  And of course, the answer is always, ultimately they same - they don't really want to know. 
**Not related to Johnson according to most reports, a "distant relative" per Alan Blinder in the Times.

Another Reason I Sit on the Defense Side of the Courtroom

When you spend any significant amount of time in the trenches of criminal law you come not to expect much.  

The cops hate your clients.  The prosecutors hate your clients.  The judges hate your clients.  The legislators and executives hate your clients.  The voters hate your clients, too, which makes it both easy and mandatory for the cops, prosecutors, judges, legislators, and executives to keep hating your clients.  And because you stand up for your clients, well, they all hate you, too.  

Represent someone charged with rape?  That must mean you think rape is a good thing.  Ditto for murder.

Sigh.

Still, and despite the earned cynicism, you maintain that at some basic level they're not all Nancy Grace or Bill Otis.  And my buddy who used to work with him assures me that even Bill doesn't actually believe that it would be a good thing to execute the factually innocent.

But there's the problem of evil. ("There's so much of it," said a judge once explaining why she'd decided not to retire.)  And the need to punish.  And then punish more.  And then punish more.

And more and more and more.  Because . . . . Well, because they're all evil.

And, of course, because punishing them makes us feel better.  (At least, it makes Bill and Nancy and Thane Rosenbaum and Robert Blecker feel better.)  Which I suppose I understand even if I find no satisfaction in the infliction of pain.

But there are times.

I've written before about the sentences that cannot be served.  Ariel Castro's 1,000 years, for instance. Of course, he took his own life within days, but to what end, really, impose a sentence beyond possibility?  What's the function of a sentence that extends beyond death?  We will not, in fact, store the cadaver in prison.  Why would we?  And what would be the point if we did?

Which brings me, at last, where I've been going.  Alan Johnson, in yesterday's Columbus Dispatch.

State prison officials want to give judges the authority to release inmates who are brain-dead or suffering from severe dementia — and costing taxpayers lots of money in the process.
Ohio prisons chief Gary Mohr asked state legislators on Thursday to tweak state law as he testified about his agency’s 2016-17 budget before a House subcommittee. The state spends nearly $190 million a year on inmates’ medical care, which it is required by law to provide.
The state is paying about $1 million every two years for medical care just for 58 severely ill inmates serving mandatory sentences, many of whom don’t even know they are in prison, said Stuart Hudson, chief of medical services for the Ohio Department of Rehabilitation and Correction. Judges can release inmates for medical reasons, but not those who are serving mandatory sentences.
Mohr wants legislators to modify the law to allow judicial medical release in mandatory-sentence cases as recommended by the department.

Understand, please, exactly what Gary's asking.  He doesn't want a law that will require the release of any prisoner who just happens to be "brain-dead or suffering from severe dementia."  He's asking for a law that will all the prison system to suggest that some particular prisoner maybe should be maybe be released because he's fucking brain dead or so far gone that he has no idea where he is or why or what is happening.  Who is unable to feed himself because he has no longer got any fucking idea how.  Or why.  A suggestion to a judge who would get to make the final call.

This guy here, your Honor.  He's brain dead.  Flatlining on the brain scan.  In the outside we'd pull the plug.  Whaddya say?

And the judge, who runs for election and needs votes from the Grace-Otis-Rosenbaum-Blecker crowd, might well say 

He's an asshole.  Let him rot.

Or maybe not.

But really, is it so much to ask?  

Oh, wait, you thought it would involve letting vicious brain-dead people serving life terms out.   No, no.  

The release would have to be approved by a judge and would not cover inmates serving life or capital-punishment sentences.

Whew, I feel safer now.  Soft-hearted prison officials wouldn't get to suggest that soft-on-crime judges might want to consider letting brain-dead lifers out.  And of course we won't let out so they can die folks we intend to kill.

So, you know, nobody opposes this, right?  Save money, no risk to the public, nothing really likely to happen.  What's not to like?

Ah, you haven't checked in with the Ohio Prosecuting Attorney's Association.  Alan Johnson has.

The Ohio Prosecuting Attorneys Association opposes the change, arguing that inmates still need to be punished despite their medical infirmities.   

Notice that they're not talking deterrence.  They're not talking about the value that used to be attached to sticking the heads of the executed on posts on the way into the cities.  There was a message in that about what awaited those who offended the king.  But there's no message here.  The prosecutors weren't talking about sending messages, about lessons to be learned.  Keeping the brain dead in prison was punishment.  Necessary punishment, pure and simple.

To which there's an obvious rejoinder.

“When someone is brain-dead, I don’t know they feel they are being punished,” Mohr responded.

Thing is, and what Mohr apparently doesn't get, is that to the haters, to the prosecutors in particular, punishment isn't about the bad guys getting theirs.  It's about getting to give it.  It's about punishing. 

About the infliction, not the receipt.

Which tells you pretty much all you need to know. 

When They're Hit Over the Head with a Sledgehammer

So Johnny Baca gets a new trial.  

And the Riverside County District Attorney gets yet another chance, a third, to try and prove that Baca killed a couple of people.  

This time, perhaps, the prosecutors won't knowingly suborn perjury.  Which they did last time.

This time, perhaps, a prosecutor won't himself commit perjury.  Which happened last time.

This time, perhaps they'll do it right.  Which hasn't happened before.  And, of course, might not happen this time, either.  Becvause they really want to convict Johnny Baca.  And you gotta think that if the evidence was really good, they might have just relied on it.

So maybe the evidence sucks.  And maybe this time, maybe, it'll turn out that Johnny Baca is acquitted.  Except really, why would we imagine they'd do any better, do it right, this third time?

* * * * *

If you haven't been following along, this is an update to a post from 10 days ago.  Then the subject was how Judges Alex Kozinski, Kim Wardlow, and William Fletcher tore into Deputy California Attorney General Kevin Vienna for trying to defend Baca's conviction after the prosecutors suborned perjury and committed perjury to obtain it.

Don't make us write an opinion calling out the crooks by name, they said.  Take a week and work this out, they said.  Get back to us, they said.  If you need more time, just let us know.

And by the way, those guys should be up on criminal charges.  And have their law licenses yanked.

At the end of the week, Vienna let them know.  He needed more time.  Two more weeks, please. And the court said, sure.  

And so, on January 29, exactly two weeks later,

  Baca v. California

To which the panel said "sure."  And granted a conditional writ ordering Baca's release if he doesn't get a new trial.  Which, according to Maura Dolan in the LA Times, they'll do.

Of course, they don't concede they did anything wrong.  Oh sure, Deputy DA Paul Vinegard put a snitch on the stand who lied.  He said, as snitches often do, that he was just a public spirited criminal who sought no favors and received none for coming to court and testifying against Baca.  Which was a lie.  And sure, Vinegard then put his fellow Deputy DA, Robert Spira, on the stand who lied.  Spira said that the snitch told the truth.

But hey, these things happen.  Vinegard told Dolan that he believed the lies, so he did nothing wrong. And Spira, Vinegard said, certainly didn't lie.  He just testified to things that he knew weren't true. No flies on us.  Which is basically what the new DA in Riverside County said.

Mike Hestrin, Riverside County's newly elected district attorney, did not concede that the prosecutors' "misconduct" was intentional.

Accidental lies by everyone, you know.  Like when they meant to say that the snitch's testimony was bought and paid for, and that he'd just perjured himself and would be promptly prosecuted and ladies and gentlemen of the jury don't believe that.  But by an honest mistake they said

The snitch's word is gospel.

Just an oopsie.

Though Hestrin did say that his office would investigate the prosecutors' actions.  Though he didn't say that the investigation would actually lead to anything other than a medal for fine work.

Oh, and he promised to retry Baca.

Sigh.

Anyhow, they get to try again.  Not Vinegard.  He's retired.  Not Spira.  He's retired.  (The damn case has been going on for 20 years now.)

The California Way: Perjury with Impunity

I've talked before about how the courts mostly just blow it off when the prosecutor commits misconduct.  Maybe he says improper things during closing argument.  Maybe he asks questions he knows he can't ask hoping to get away with it.  Maybe she hides exculpatory evidence or denies that the snitch got a deal when of course he did.

The courts may acknowledge the error.  They admonish the prosecutor to go forth and sin no more. But by god, the sumbitch they were after was guilty, so fuck it.  No remedy.

Which was how it came to pass (and I've told this story before) that I was sitting in the Ohio Supreme Court one day, waiting for my case to be called for oral argument, when I heard Cathy Cook explaining to the court that they'd admonished the prosecutor in her case repeatedly, told him that sometime there'd be a consequence if he kept up the misconduct.  Which he did.  And Cathy said,

You've got to make them lose to make them learn.

Which the court didn't do. 

It was a great line.  (I wrote it down as soon as I heard it.)  I keep quoting it because it's . . . . Well, the thing is, it isn't really right.  Making them lose isn't enough.

One time there was an illegal search of a car.  Cops turned up a whole lot of drugs.  The trial court let it in, the client entered a plea.  I took up the appeal and convinced the court of appeals that the drugs should have been suppressed.  Good job.  The client walked.  The Fourth Amendment got a brief reprieve.

A friend called to congratulate me.  But "Hey," she asked, "did they give him back the drugs?" She was joking.  But she had a point.

What was the consequence?  Some guy who was driving a shitload of drugs on I-75 from wherever to wherever, a mule who was just trying to pick up a few bucks, didn't have to spend the next couple of decades in state custody.  But the drugs were off the street (which the authorities seem to believe is important) and the cop got to go out again and roust someone else.

Made 'em lose?  Yeah.  Made 'em learn?  Not so much.

Which brings me to California, La La Land, home of dreams.  And the home base of the nation's largest federal appellate court, the 9th Circuit.  The story, though, starts in the state court where Johnny Baca was on trial for murder.  Sidney Powell, writing in the New York Observer, tells the story.

This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue [v. Illinois], which holds that prosecutors cannot put on perjured testimony, much less lie themselves.
. . .
In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or a jailhouse “snitch.”
. . .
In Mr. Baca’s case, Deputy District Attorney Robert Spira first prosecuted Mr. Melendez. Melendez went to prison and became a “snitch.” Then prosecutors turned to prosecute Mr. Baca.
Prosecutor Spira took the stand at the trial of the next defendant, Mr. Baca, to discuss Mr. Melendez’s plea deal. Prosecutor Spira testified that Mr. Melendez did not get any consideration in exchange for testifying against Baca. The California Court of Appeal found this to be untrue. Deputy District Attorney Paul Vinegrad was the prosecuting attorney in Mr. Baca’s case who put on Mr. Melendez and his fellow prosecutor Mr. Spira as witnesses against Mr. Baca.
A magistrate and the California Court of Appeal found that California deputy district attorney Spira lied under oath, testifying against a criminal defendant and in support of a lying “jailhouse snitch” who was placed on the witness stand in apparent subornation of perjury. Making matters worse, the California Attorney General fought “tooth and nail” to keep the transcript of the relevant hearing from the California Court of Appeal.

The case made its way to federal district court where the judge agreed that the prosecutor had suborned perjury and that another prosecutor actually took the stand and perjured himself.  That's clearly improper, but it got Baca no relief.  

Because, you know, what difference would it have made?  By god, the sumbitch they were after was guilty, so fuck it.

Gotta make 'em lose to make 'em learn.

Or maybe, just maybe make it personal.  

Baca lost in the district court and took his case to the court of appeals.  Two weeks ago, they had oral argument.  Baca's lawyer, Patrick Hennessey, Jr., made his pitch.  Then Supervising Deputy Attorney General Kevin Vienna got up.

Three judges sit on the panel.  Kim Wardlaw, William Fletcher, and Alex Kozinski (presiding). None of them are happy.  For 20 minutes or so they tear into Vienna. 

• Was the prosecutor who perjured himself prosecuted?
• Was the prosecutor disciplined?
• Was the prosecutor investigated?
• What about the prosecutor who suborned perjury?
• Is this business as usual for California prosecutors?  Does the lying bother them?  Does it bother the attorney general?  No investigation there, either, huh?
• Do any of you give a rat's ass about this?
• And your office fought tooth and nail to keep evidence that you lied away from the California court of appeals.  Why?
• And what the fuck is wrong with you, and your office, and the state's prosecutors?

Well, he says, after this case is over I'm going to suggest that someone should maybe look into it.

Kozinski cuts to the chase.  Why have you waited?  Go, 48 hours.

Oh, and we'll hold off on submitting this case for 1 week (he's since gotten leave to take 2 more weeks) while your office and Baca's lawyer work out something that'll make Baca's lawyer happy. Or we're gonna name names.

And really, you should get going on yanking their licenses.  And prosecuting them for perjury.

Because making 'em lose is part of it.  But making 'em know that they, personally, are being held responsible, they they, personally, will suffer consequences.  

Had Baca's lawyers done what the prosecutor did, they'd have been charged with felonies in a hearbeat.  And their licenses would have been yanked just as fast.  But, of course, the prosecutors represent goodness and light.

But this one time.  

Watch the video.  The intro is what it is.  The fireworks start when Vienna gets up, at minute 16. They don't let up until the very end.  

The Bestest System Around

I started to write this as a comment at Hercules and the Umpire, the blog of Judge Richard Kopf.  But it was getting long and circuitous, discursive and digressive and I figured the hell with it.  I'd just make it a post here.

It's a response to the Judge's response to pieces by Judges Rakoff and Kane on plea bargaining and the innocent and how federal judges should take a more active role in plea bargaining to assure that innocent people don't just plead guilty.  Here's the heart of what Judge Kopf has to say.

1. Rakoff and Kane both claim that studies show that somewhere between 2 and 8 percent of people convicted of crimes are factually innocent.  Although they don't cite their sources, so it's impossible to know where those figures come from or what they're based on, they don't apply to federal courts because in federal courts innocent people never get convicted.
2. In our very effective adversary system judges should be eforcing the rules but staying out of the adversarial process, which includes plea bargaining.

Maybe. 

Let's start by acknowledging that Kopf actually has no idea what percentage of factually innocent people end up getting convicted in federal court.  Not in federal court generally.  Not in his court.  He may know how few convictions are overturned based on factual innocence, but that doesn't answer the question since factual innocence is rarely a meaningful avenue of post-trial litigation regardless of whether it's real.  He may know that people who plead guilty acknowledge that they are guilty, but that doesn't mean they actually are.  He may know that when people plead guilty, the government has significant evidence against them, but that doesn't mean it's all true.  He may know that when juries return guilty verdicts, it's because they were convinced beyond a reasonable doubt by the evidence. But we know that the evidence is only as good as what's presented and what the jury ends up believing.  Prosecutors, even federal ones, hide evidence sometimes.  They rely on unreliable evidence claiming it's iron clad.  Defense counsel are sometimes inept, sometimes without adequate resources, sometimes just wrongheaded.  And juries can just get it wrong.

Judge Kopf doesn't know.  Neither do I.  Neither do you.

People plead guilty because the risk of trial is too great.  They plead guilty because they have a lawyer who hasn't the balls to go to trial.  They plead guilty because they've been told that if they don't, the government's going to go after someone they care about enough to protect.  They plead guilty because their scared or they're misinformed about what might happen at trial or they just want to get it over with.

And yes, sometimes they plead guilty because they are in fact guilty and want to take responsibility for what they did.

And all that is true in federal court where the FBI and the DEA and the NSA and the SEC fed the evidence to the AUSA and they're all noble and brave and true and . . . .

Excuse me.  

There is, often, a greater degree of professionalism and competence in federal court than in state court.  But bullshit is bullshit and there ain't no guarantees.  Just ask Ted Stevens. 

And, as I've suggested before here, there's guilt and there's guilt (just as there's innocence and there's innocence).  And if Harvey Silverglate is right and everyone commits three federal felonies a day, then there's a sense in which (a) there are no innocents, except maybe of the particular offense at issue, and (b) many of the folks who are factually guilty are by any fair measure innocent of any wrongdoing.  Which would completely fuck up the numbers if we actually knew what the numbers were.

That much said, I'm going to venture a guess.  There's a significant percentage of factually innocent people who are convicted of crimes.  Sometimes by juries.  Sometimes at bench trials.  Sometimes by plea.  Whatever that percentage, it's too high.  It's higher in some courts than others.  It's higher for some offenses than others.  

My gut, my experience, and the data I've seen all suggest to me that the innocent-convicted fall at the ends of the spectrum.

Relatively minor offenses draw guilty pleas because they end things quickly and there's just not enough at stake (and not enough financial incentive for lawyers) to try the cases.  Defendants in custody want to get out rather than sit in the local hoosegow waiting for a trial.  Defendants out on bond want to get it over with rather than waste more and more time showing up in court for pre-trial hearings where all that happens is that they're told to come back another time.  Enough! they say.  Let me plead and get it over with.  Truth be damned.

At the other end, the risks of trial are so great (execution, LWOP, 500 years) that a plea to almost anything less is worth it.  Truth be damned.  And if the case goes to trial?  These are the cases where the cops make up evidence, where the confessions are false, where the evidence is hidden.  Because the press.  And the voters.  And by god something must be done and someone must pay.  As they said to Clarence Brandley down in Texas, "Since you're the nigger, you're elected."   

Which, of course, doesn't mean that the wrong guy is convicted (though Brandley was, and spent 9 years on death row).  Or executed (but Todd Willingham and Carlos deLuna and coming soon to a neighborhood near you).

And we know the errors in rape cases.  But of course there are rapes.

And judges are no better at knowing what evidence the prosecutor is hiding or the cops have planted than anyone else is.  If anything, they're typically more credulous than juries.

But what to do?

I'll offer some thoughts later this week.

On Legal Education and the Execution and Exoneration of George Stinney, Jr.

For days now I've been meaning to write about the would-be lawyers who claim to be so emotionally wrought over the news that they can't handle law school exams.  And the law schools that find their students' emotional stress over the news sufficient basis to delay exams or grant continuances.  

And the idiot student who thinks that its a mistake to view the students who claim to be too wrought to take exams as being too wrought to take exams.  Rather, they're deeply passionate activists who understand that practicing law will have nothing to do with law but everything to do with making the world a better place which can only be done by activism and that any demand that law school have something to do with law is at odds with legal education which should be about demonstrating.  Or something.

And then there's Harvard law professor Jennie Suk who mourns the fact that law students are insisting that they shouldn't have to learn about parts of the criminal law that deal with crimes of sorts that might upset them, and that, in fact, law schools should probably stop teaching those things and only teach about criminal law as it involves crimes that make everyone happy.  And the misguided members of the law faculty who think that's fine or are too wrought themselves by the risk of offending that they agree.

As I say, I've been meaning to write about those things.  

But I've got an actual job with clients I need to represent - some of whom are said to have done things that are upsetting and some of whom face sentences that horrify me - and with deadlines I have to meet no matter how much I'd rather be out in the street with the folks who are upset about Michael Brown and Eric Garner and Tamir Rice and the fact that Ohio's lethal injection secrecy bill (which its proponents claim is nothing of the sort since it's just about, uh, keeping information regarding lethal injection secret) just made it though both houses of the General Assembly and the Gov will sign it and then they can kill Ron Phillips in February.

Points to make:  
If it's true that the law students are too wrought to take exams or go to class, they're not cut out to be lawyers.  If instead they're too committed to being lawyers who believe that lawyering has nothing to do with actually doing legal work, they should take up some other line of work.  (If it's all bullshit and they're just making up excuses to get continuances and are actually selling them to professors, they're maybe cut out only to be unethical lawyers, which is a somewhat different problem.)

If it's true that law students believe they shouldn't have to learn about parts of the law that don't make them happy and that, in fact, law schools shouldn't teach parts of the law that aren't cheery because it's just too upsetting - well, see the prior bullet point, they're not cut out to be lawyers.  And if it's true that their gutless professors are caving to their demands, well, they're proving the old adage that "those who can't do, teach." But of course, they're also refusing to teach, which leads to the new adage (don't write in, I know) "those who can't do or teach should take up another line of work."

George J. Stinney, Jr.

And then it turns out that George Stinney, Jr., who was executed by the good people of South Carolina in 1944, when he was 14, for a crime he maybe didn't commit, just had his conviction vacated.

It's not, the judge explained, that Stinney was factually innocent.  No, it's that it was all so unfair.  Black kid in small, deeply racist town in the racist South coerced into confession by tough white cops, confession that may have been unreliable; trial counsel who didn't do shit for his client; trial and conviction and death sentence all before an all-white jury in a process that took less than a day.  Less than three months between the murder and the execution. 

Said Judge Carmen Mullen

The extraordinary circumstances discussed herein simply do not apply in most cases.  

Which is true if the extraordinary circumstances are that Stinney was 14. If, though, she was referring to systemic racial issues and coerced confessions and incompetent or unwilling lawyers and rapid trials and . . . . If she referred to those things, she was either horribly misinformed or delusional or lying. 

It's terrible what was done to Stinney. And it's no doubt a comfort to his family and supporters to have his conviction vacated. But the reality is that however much Stinney's execution was wrong (and it was) and however much vacating his conviction rights an injustice (which it does), it falls on me to ask whether the energy and resources that have gone into the fight for Stinney might have been better spent on behalf of those awaiting his fate today.

And whether the real point, that Stinney's case isn't at all unusual except for his age, is where the real focus should be.

Of course, if the real point is that we still kill people we shouldn't and that our systems aren't really much better today than they were in South Carolina in 1944, then it's just depressing.

It'll be important to ensure that law students don't learn any of that and that they aren't trained to fight for clients better than Stinney's lawyer did. You know, too fucking stressful.

Sigh.

Buyer's Remorse: Another Body in a Body Bag

On Halloweeen, the jury returned its verdicts.  Shawn Ford, Jr., should be killed for beating Margaret Schobert to death with a sledgehammer, they said.  He should spend every day of the rest of his natural life in prison for killing Margaret's husband, Jeffrey, the same way.  They're both death sentences, of course. The difference is that for Margaret, the jury said not only that Ford die in prison, but that he should be killed there.*

One of these days, Judge Tom Parker will sentence Ford.  He has no choice of sentence involving Jeffrey.  He's required to do what the jury said: LWOP, death in prison.  He does have a choice in the other case:  Death, LWOP, 30 years of actual time in prison and then a theoretical chance of parole, or 25 years of actual time before a theoretical chance of parole.

Of the hundreds of jury death recommendations in Ohio, only 8 times have judges rejected the recommendation and imposed a version of a life sentence.  I wouldn't put any money on this being number 9.

All that is, ultimately, a digression from what I want to talk about.

Ohio law says that those verdicts must be unanimous.  And they were.  The 12 jurors who earlier found Ford guilty deliberated again and then unanimously agreed that he should be killed for Margaret's death and spend the rest of his natural life in prison for Jeffrey's.  All 12 signed both verdict forms.  The judge polled them.  All 12 agreed that they intended what they signed.**

Except.

One of the things we know about capital juries, even capital juries that eventually decide to kill, is that at first, there are almost always votes for life, even if only one or two.  When the jury returns a death verdict, it's because those one or two lifers eventually gave way.  Because it's tough.  And part of what we need to do as trial lawyers is empower those jurors, give them the tools and the strength to stand up to the rest.  Because all it takes is one, finally, who won't cave.

There isn't supposed to be any caving, of course.  Jury deliberations are supposed to be, well, deliberate.  Reasoned and rational.  Tote boards adding and subtracting.  Balance beams for weighing.  This much on one side, that much on the other.  Jurors are told not to vote for the majority "just to be congenial." 

But it's not congeniality that screws with the verdicts.  it's hostility.  The jury room is contentious, argumentative.  It can get ugly.  Nigger.  Honky.  Fucking cunt.  Shithead.  There have been assaults. 

I didn't want to find him guilty, a juror told us in a case I handled on appeal.  And then I didn't want to vote for death.  But she did.  She found him guilty.  She voted for death.  The law says, basically, so be it.  Jurors can't recant their verdicts once they've been accepted.   Finality, after all.

So it was in Shawn Ford's case.  Phil Trexler in the Akron Beacon-Journal.

A juror who agreed that Shawn Ford Jr. should be executed for the killing of a New Franklin woman now says others on the panel intimidated her over two days of contentious deliberations and she never believed a death sentence was warranted.

Never believed.  Never wanted it.  Voted for it anyway.

“I didn’t want the death penalty at all,” she said. “I fought for hours. I had one juror get in my face saying, ‘I can’t believe you wouldn’t give this kid the death penalty. What’s wrong with you, something’s wrong with you.’
“Yes, [I was intimidated]. It was rough. It was hard. And I’m still not at peace that a death sentence was handed down … I don’t feel a death sentence is right for Shawn. He needs help, not a needle in the arm.”

No, I don't imagine she is at peace.  She said she held the verdict form for 20 minutes, unable to sign it even after she agreed to.  But she did.  Sign.  Death.

And when the jury was polled? 

“I hesitated to say yes,” she said. “I wanted to say no, but I couldn’t. I was looking down. I was shaking. I couldn’t even control myself. But I said yes.”

She caved

[b]ecause of how awful they were. . . . They were screaming at me.

The law, our law, says the jury must be unanimous.  They said they were.  That's enough for the law.

Enough, even if it's a lie. Truth, that elusive thing?  It doesn't matter.  It's all about magic words. Signatures in ink on a verdict form.  Saying "yes" to a question nobody really understands.

After the verdicts were read and the courtroom cleared, the juror said she found herself back with the others in their deliberation room. She said some hugged and others laughed while she wept looking out a window.
“I was furious with them at the end. I couldn’t even look at them in the eyes. I wanted to get the hell out of there,” she said. “I didn’t say a word to anyone. I flung my juror [badge] on the table. One lady who works for the judge said, ‘It’s OK.’
“And I said, ‘No, it’s not OK.’ I said, ‘We’re putting another body in a body bag.’ ”

-----------------
*Yes, I know, and I assume the jurors knew, that For cannot serve both those sentences.  One keeps him in prison until he dies of natural causes.  The other arranges his murder.  If he is killed for Margaret's murder, he won't have served the sentence for Jeffrey's.  If he serves the sentence for Jeffrey's, he won't have served what the jury urged for Margaret's.  Nobody said the criminal law makes sense.

**Actually, each of the 12 was asked, "Are these your verdicts?"  And each said "Yes."  I've often wondered if jurors asked that question really know that what it means is "Do you agree that this is the verdict you think is correct?"  I"m pretty sure the answer is that they don't.