Mourning Again

The e-mail from the Supreme Court came minutes before 10 last night.

Please see the attached orders of the Court denying Darryl Durr's petitions for a writ of certiorari and applications for stay.

There were slight differences in case captions and docket numbers. On all the parts that mattered, though, the three attached orders were identical. The orders are stark, spare. There's no blood visibly spilled on them or gushing forth from them, whichever image is more accurate. Just a few numbers, a case caption, a single sentence. Here's the one on which I was counsel of record.
Cert Denied
You stare for a while. You think about co-counsel and wish you were together. You think about Darryl. Mostly, you're numb. Or maybe not. Maybe you smash something. Or you have a drink. Or an illegal drug. Maybe you hug your spouse and your kids. Maybe you cry. Maybe you do all those things. We all react to death differently.

Of course, this isn't just death. The typing may or may not have been calm, the actual killing when it happens in a couple of hours may or may not be peaceful, but there's no going gently into this good night.

This is murder. Planned. Cold. Calculated.

At ten o'clock this morning a bunch of guys at the Southern Ohio Correctional Facility in Lucasville will bring Darryl Durr from a holding cell to the death house. They will strap him to a table. They will kill him.

I hate the death penalty. I am unalterably, implacably opposed to it. In all places. At all times.

But it's different when it's my client. It's personal. Like everyone else, I struggle to name the seven dwarfs. I can't tell you, off the top of my head, the names of all the five men who were murdered by the several states during March. But I can name the five guys I've represented who have been killed by their governments in my name:

• Michael Lee McBride
• Richard Fox
• James Filiaggi
• Gregory Bryant-Bey
• Abdullah Sharif Kaazim Mahdi

I never met McBride or Fox, and my name never went on McBride's case. I just worked on their cases with their lawyers. But they're mine. Some I represented only years before they were killed. Filiaggi was my client to the end. Doesn't matter. They're all mine. Those sorts of distinctions, some of them anyway, blur. They are my clients. They were my lives to try saving. I failed.

I didn't put any of them on the row, but I didn't get them off, either.

Darryl Durr isn't on that list because he's still alive as I type this. And Governor Ted can always change his mind until he no longer can. He won't, of course, but he can. Here's what he said.

As a result of his conviction for aggravated murder, Mr. Darryl Durr is scheduled to be executed on April 20, 2010 at 10 a.m. I have completed a review of the circumstances surrounding his case to determine if executive clemency is warranted.

In conducting this evaluation, my staff and I reviewed the record of proceedings and the evidence presented in Mr. Durr?s case, the judicial decisions regarding Mr. Durr's conviction, and arguments presented for and against clemency at the Parole Board hearing regarding his application for executive clemency. We have also reviewed institutional records and letters received in the Governor's Office regarding this matter. And we have reviewed the unanimous recommendation against clemency forwarded to me by the Ohio Parole Board on October 8, 2009, along with the exhibits presented at the Parole Board's hearing, letters received by the Parole Board regarding Mr. Durr's case, and materials submitted to the Governor's Office by Mr. Durr's counsel after the Parole Board made its recommendation.

Based on this review, I concur with the Parole Board recommendation on this matter.

The blood will be on his hands more surely than it was on Darryl's since, after all, Darryl might not have done it. And if there's proof of that, we won't ever know it because the state and the courts won't let us test the last item that might have DNA.

But Ted's aren't the words of a man who's likely to lose much sleep over what he did yesterday. His are the words of a politician. They say, implicitly, that signing off on a murder is like signing off on, oh, say a "friendly wager" with Michigan's Governor Granholm.

Granholm and Strickland have agreed that the governor whose state has the higher percentage of Census forms returned by mail by Earth Day, April 22 will donate a specimen of its state tree to the state with the lower rate of return. The tree exchange will take place on Arbor Day, April 30, and the governor receiving the tree will have it planted in a spot of his or her choosing. A photo of the governor and the tree will be publicly released.

Michigan's state tree is the White Pine and Ohio?s state tree is the Ohio Buckeye.

You know, that decision of whether to make the bet over a tree or, say, a flower bed, must have been a toughie. Like deciding about whether a life should be saved.

I've never met Darryl Durr. I've had the honor, the privilege, of fighting for his life for just a week. There are others who've fought for him longer, who've worked with him over the years, who've gotten to know him, who'll mourn for the Darryl they knew. And I don't want to make myself sound like a martyr.

I do post-trial capital work willingly, knowing what might end up happening, what does sometimes happen. Yet I do it anyway. For the fight. Because it's hard. Because someone has to. Because sometimes we do save the life. And because I'm one of those folks who can do it and then get up the next day and do it again.

By the end of the day, there will have been 13 executions in the United States this year. Florida, Louisiana, and Virginia will each have murdered one. Texas will have killed five. Here in Ohio, we'll be up to four. We have seven more scheduled this year.

In a few hours, they'll murder Darryl Durr.

Next is Michael Beuke. His murder is scheduled for May 13.

My Mother Taught Me Not To Do That

Yesterday we had oral argument in federal district court in Darryl Durr's DNA case.

Actually, the DNA isn't the issue in federal court any more than it is for Hank Skinner right now at SCOTUS. The issue is whether Ohio law should provide review of the truly sloppy and ill-considered opinion denying Durr the right to DNA testing of the necklace when it provides that review for prisoners in his position who aren't on death row.

I laid it all out, explained it carefully to the judge. Then it was the turn of the lawyer from the Attorney General's office.

I'm going to refrain from talking about the substance of what he said. I want to talk about his manner.

For nearly the entire time he spoke, he shook his finger at the judge.

As if berating the judge.

Which seems like really bad form.

We're still waiting for a ruling from the judge.

The necklace still might reveal something.

Darryl Durr still sits on death row.

Ohio still plans to kill him on Tuesday.

Back to the DNA

See, there's this necklace. It was found on the neck of the body of Angel Vincent who, it seems, was strangled to death. Next Tuesday, the state of Ohio plans to murder Darryl Durr for Vincent's murder. Durr wants the necklace tested for DNA. It may exculpate him. It may identify the actual killer. Ohio refuses.

Last week, I explained that a prisoner in Ohio whose statutory request for DNA testing is denied in the trial court has an automatic right to appeal that denial. Unless the prisoner is on death row.

The prisoner on death row has a right to ask permission to appeal.

Darryl Durr did. The courts said "No."

Today, Durr filed a lawsuit asking that the statute be declared unconstitutional, that the necklace be tested, and that his execution be stayed so that those things can be done. (Disclosure: I'm one of the several attorneys on the case, though not lead counsel.) Links to the ACLU press release and major case documents are here.

More news as it develops.

Innocence Yet Again

I've talked about innocence far more than I like. But if I'm going to toil in the field of criminal defense blawgging with an emphasis on the death penalty, it's hard to avoid.

The problem with innocence, though, is like the problem with guilt. The words are slippery. Just what sort of "innocence" are we speaking of? Factual? Legal? Moral? Spiritual? Are we involved in ontology or omphaloskepsis? (There is a difference.) Same for guilt.

OJ is legally innocent of the murder of Nicole and of Ron Goldman. That's the result of the criminal trial. But he is legally responsible for their deaths. That's the result of the civil trial. Try explaining that to the man or woman on the street, and then ask if it makes any sense.

In fact, and I get tired of saying this, criminal trials are not about factual guilt or innocence. (Though we hope their verdicts will reflect it.) They're about proof as presented through a set of procedures and rules developed and refined over centuries and subject to almost daily modification at the whim of judges, justices, and legislators.

Take the case of the already executed Cameron Todd Willingham. (I'm not going to rehash it all here or even set out links to the 15 posts I've given that label. [It'll be 16 once I post this.] There's a link to all of them on the right.) He did or did not murder his children. Despite the claims of the surviving arson investigator who testified that there was a fire set and of Willingham's trial lawyer who's sure he was guilty, who was sure of it at the time, and who wants the world to know it, there's simply no credible evidence that Willingham killed anyone. Which doesn't mean he didn't, but goes a long way toward proving that.

(A brief digression. Grits reports that John Bradley, who's the head of the Texas Forensic Science Commission and was seemingly appointed to whitewash the Willingham case, now seems poised to do just that. Stay tuned.)

Then there's Hank Skinner (Again, you can find the links yourself). He's still on death row as opposed to having been executed thanks to some great, creative lawyering. Did he actually do the things the jury said he did? Damned if I know. Is that relevant to questions of guilt or innocence? Depends on the questions.

The Death Penalty Information Center maintains a list of those exonerated from death row, what it calls "The Innocence List."

For Inclusion on DPIC's Innocence List:

Defendants must have been convicted, sentenced to death and subsequently either-

a) their conviction was overturned AND

i) they were acquitted at re-trial or
ii) all charges were dropped

b) they were given an absolute pardon by the governor based on new evidence of innocence.

That's it. Notice that nowhere in that explanation is the claim that being on the list means a person is not factually responsible for the acts at issue. (Though, certainly, maybe most are innocent in that way.) Rather, they are on the list because the law has so declared them and in the case of gubernatorial pardons there is some "evidence of innocence."

And so we come to the sad case of Timothy Hennis. In 1985, in Fayettevill North Carolina, Kathryn Eastburn was raped and she and her two young daughters were murdered. Hennis was convicted of the crimes and sentenced to die. Tried and convicted of rape and murder from 1985, the North Carolina Supreme Court ordered a new trial. In 1989, he was acquitted, found not guilty. That's exoneration. Legal innocence.

Hennis qualified under (a)(1) for inclusion on the list of exonerated persons. And there he remained. Until Thursday of last week when he was found guilty of the crimes in a military court. (Don't try to understand how this is possible given that pesky double jeopardy prohibition in the constitution. I've talked about that before, most recently here.)

Kent Scheidegger cackled.

This is the smoking gun that proves what we have been saying all along. The so-called innocence list is nothing of the sort.
. . .

We have known all along that the "innocence list" claim was a lie. Now we have official proof, beyond a reasonable doubt.

The Times balances Scheidegger's claim with Dick Dieter's explanation.

In an interview, Mr. Scheidegger said that the Hennis case showed the stark difference between a jury’s not finding guilt beyond a reasonable doubt and actual proof of innocence. In the Hennis case, he said, “we have proof that he was a guilty murderer who got away with it, and yet he was on the innocence list.”

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.

Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

Paul Cassell, writing at The Volokh Conspiracy, has a slightly different take. DPIC deceived him.

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit. If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

You see, if DPIC is going to have what they call an "Innocence List," they need to do more than explain how it's derived. They have to make sure that Professor Cassell reads and understands the explanation. That's a tough job. You can lead a horse to water and all that.

Then there's Bill Otis whose post I'm reproducing in it's entirety:

Inspired by, but not a report of, the Hennis case and the commentary thereupon, and in appreciation of so many other indignant DPIC stories of "the innocent."

Innocent (archaic) -- Didn't do it.

Innocent (modern) -- Not as "innocent as a newborn babe" but kind of innocent, not in the woden, old fashioned sense, but in the sense that the "alleged" killer was, you know, abused 30 years ago by his long-dead step-father, leading to his inability to form criminal intent notwithstanding that he stabbed the victims 20 or 40 times or something; and which step-father his lawyer would have found out about but for his sleeping through pre-trial preparation, not to mention the trial, leading to reversal for ineffective assistance. So, you see, he was, to the more sophisticated among us, innocent. See also "exonerated."

Innocence list -- A compilation of people who either (a) did it, or (b) didn't do it, not that it matters that much, since the whole point is to conflate the two, so long as much of the media can be relied upon to portray the list as consisting only of (b). See also Roger Keith Coleman, who never made the innocence list but served the same purpose despite his now quietly conceded abject guilt.

As Greenfield notes, this is all about the definition of innocent, which is kind of where I began and which allows for a difference between legal and factual innocence. Scott explains in his just slightly snarky way:

Cassell wants to know how these people can be called "innocent". Because this is the United States of America, and in the United States of America, everyone who is not convicted is innocent. Actually, truly, really, 110% innocent.

Absolutely.

Neither Cassell nor Scheidegger is really as stupid or as inattentive as I'm making them sound (or as Greenfield does) by throwing their own words back at them. They're making rhetorical points by deliberately misreading DPIC's use of "innocence" just as DPIC chooses to the call it's list of the exonerated an "Innocence List" for rhetorical purposes.

But words matter, and DPIC at least has the integrity to define its words and explain its list. Don't like that list? Fine. Make your own. Hell, make a list of everyone you think is guilty who still isn't behind bars or strapped to the gurney. Be careful, though, to define your terms out in the open.

But while they're compiling the lists, there's still the question of Hank Skinner's DNA.

Bill Otis asserts the importance of DNA testing and took me to task for saying that he thought it shouldn't be done. That claim doesn't seem to be echoed in a demand that Texas allow that testing for Skinner (or Ohio for Darryl Durr). I don't notice Scheidegger or Cassell demanding it, either. Neither Scalia nor Thomas, the two justices who are on record as saying that the Constitution isn't concerned with conviction of the innocent but think governors will surely save any that come close, seem to have demanded the testing, either.

(I'll be happy to redact from that paragraph the name of any of those folks who've demanded that Texas allow DNA testing for Skinner or Ohio for Durr. I can't find it.)

Because really, if we're going to discuss hypocrisy and the abuse of rhetoric, there's no shortage.

And regardless of whether Hennis is one of them, there have been factually innocent folk sentenced to death. And whether Scheidegger or Otis or Cassell or Scalia or Thomas or your next door neighbor wants to believe it, it's damned likely some have been executed. And it's a mathematical certainty that if we kill enough people, some will be innocent. Factually.

If that's OK with them, let them say so. Then they can decide about who needs to apologize to whom. If it's not OK, then what happens?

And let's get at the DNA.

The Nays of Ohio

In its continuing effort to be Texas, the Supreme Court of Ohio issued two decisions Monday.

Let's go back. Down in Texas, Hank Skinner sits on death row. He wants DNA tested because it should prove him innocent. Texas (which doesn't have to try to be like Texas) refuses because it should prove him innocent. OK, they don't say that's why. Actually, they don't offer any reason why. They just refuse. If Texas had its way, Hank would have been killed two weeks ago. Hank's alive because the buttinsky's at the U.S. Supreme Court said Texas couldn't kill him until we (they? SCOTUS) decided whether to hear his case about whether he should be allowed to pursue a lawsuit that would, if successful, require the DNA to be tested. There's a ton of stuff in the blawgs about the case. Bennett even made the mechanics understandable.

Here in Ohio, Darryl Durr sits on death row. He wants DNA tested in the hope that it will prove him innocent - or at least provide some support for that claim. (The tests that have been conducted provide no support for innocence or guilt.) Ohio refuses because, well, Texas would have said no.

OK, that's not really why. The judge held a hearing and decided that Durr didn't meet the statutory standards for forcing the DNA to be tested. He appealed. Except, see, what he really did was ask to appeal.

A prisoner facing death in Ohio has no right to appeal denial of DNA testing. He may ask the Ohio Supreme Court to hear an appeal, but they don't have to let him proceed. A prisoner with any other sentence, by contrast, has a right to appeal. You get that, right. We offer less legal review of a request for DNA testing by a person facing execution than for the same request by any other inmate. If that strikes you as deeply offensive, join the club.

So here's Darryl Durr. On death row. Due to be murdered in two weeks. He asked the Ohio Supremes to grant him a stay. He asked them to hear the appeal from the denial of DNA testing. Monday the court spoke.

Nope.

And nope.

On to Washington, I suppose.

Darryl Durr. On death row. Due to be executed in two weeks. April 20. 10:00 a.m.

There's something left to test. And it just might be exculpatory.

WWTD: What would Texas Do?