On Pissing Off the Powers That Be

The problem was that I knew about this obscure case.  It was unreported, which meant that back in the day it was tricky to find, and even among the unreported it was obscure.   But it was from my particular intermediate appellate court, and while it wasn't exactly on all fours with the case I had ("all fours" is lawyerspeak for "just the same as in every significant way"), it was close enough to use for an argument.

The thing is, it was a pure legal argument.  Follow your precedent, the argument would go, even though the precedent dealt with petty offenses and my client was looking at decades in the slammer. Fewer decades if I won, but decades still.  And unlike that other case, there was a dead guy in mine. And my guy had been convicted of getting him dead.

What I didn't have was a story.  I didn't have a way to make my client sympathetic or his sentence seem beyond the pale.  All I had was this pure legal argument.  Follow your precedent.

And there was this.  The precedent was dumb.  It was obviously wrong, legally wrong that is, when the court decided it some years earlier.  But the offenses were petty, the amount of time at issue was measured not in decades, not years, not even months.  It was a matter of a few days.  And the guy probably had a good story.  Which, as I say, I didn't have.

What I had was this cockamamie legal argument.  Follow your precedent to where you never thought it would take you.  Even though it's distasteful.  And even though the precedent is stupid and obviously wrong.

But it was the argument I had.  And so I stood up in court.  What I wondered was how I would lose. Would the court ignore the old case?  Distinguish it somehow?  Misrepresent a fact or two about the current case?  Overrule the old one?  Surely, they wouldn't follow it.  It made no sense then.  It made less now.  But it was what I had.  It's you're precedent, I said.  You're bound to follow it.

I won.  I convinced the court that they had to follow that old dumb case.  Rule of Law, by god.  It was almost enough to make me a believed in uppercase-L law.  Almost.

Naturally, the prosecutor asked the supreme court to hear the case.  Unfortunately they agreed.  And now I had nothing.  That court wouldn't be impressed by a silly precedent from a lower court.  And it had no obligation at all to follow it.  The system is that shit flows downhill, not up.  Lower courts are supposed to obey higher ones, not the other way around.

And so I was standing up in the well of the Supreme Court of Ohio, back when they were in the old courtroom in the office tower rather than in the Palace of Justice.  Back when the courtroom decor was crushed velvet in a color I called bordello red.  Back before they didn't broadcast the arguments and archive them on line for anyone to watch.  Which given how it was going to go, and how it did go, may have been for the best.

The prosecutor, who'd been opposing counsel in many of my cases, was better than I'd ever seen her.  Of course, she had a sensible argument:  What the lower court did was stupid and wrong.  Fix it.  Me, I just had to defend the dumb lower court decision.  Which I gamely did.  To no avail.

I lost.  Shit  I know these things happen.  I hadn't expected to win in the court of appeals.  I sure didn't expect to win in the supreme court.  But by god, I'd managed to convince myself that I was right.  And my client went from more decades to fewer to more again.

Fuck.

But the court didn't just screw my client.  It didn't just say that the court of appeals was wrong, wrong, wrong.  It did those things, of course, and then it went on to eviscerate a good law that the lower court had applied stupidly.

Which is a complicated way of saying that my good work led to the making of bad law.

Sigh.

It happens.  Anyone who spends much time in the appellate courts has the experience of making bad law.   Good law, too, of course.  I've managed that also.

* * * 

There's been some talk on our criminal defense listserv about an issue important to many of us that someone has coming up in a case.  "Don't make bad law," comes the admonition.  And of course, the lawyer with the issue hopes not to.  But sometimes.

* * *

Jamison Koehler tells this story this morning.

Last week I watched from the gallery as a young attorney got into an ugly argument with the judge. Who knows, the lawyer might have been right when it came to the substance. But everything else about it was wrong. You do not talk over the judge. And you do not pick fights that you are going to lose, particularly when you have your client standing there right next to you. Judges are people too, and they can have long memories. Watching the judge’s body language the next day when dealing with the same lawyer on a different matter confirmed for me everything I needed to know.

Jamison is exactly wrong.

Oh, he might be right in the detail. It may be that the lawyer was an asshole, picking a fight with a judge because by god he was right. Or to show off for the gallery hoping that someone out there would ask later for the business card of the lawyer with balls. Or because he spilled coffee on his tie that morning.

Or maybe he needed to make a record that the judge wasn't happy about. Maybe he needed to argue for that bond reduction and the judge just might have given in. Maybe, hell, I don't know.

But that's the point. And it's why Jamison is wrong. Because you don't in this business worry about how the judge will deal "the next day . . . with the same lawyer on a different matter." At least, not if it's a different case. It doesn't matter whether judges "have long memories."

Or prosecutors, for that matter. Or the cop you're cross-examining.

Oh, it's not that you want to be picking fights.  All things being equal, there's no profit in pissing people off - especially people you work with every day - just to show that you can.  But sometimes.

Because it's not about us.  And it's not about the next case.  Not ever.  It's about this case.  This client. Always.  Every single time.

Which means that sometimes, not always but sometimes, what you need to do today is at odds with tomorrow.  

That good relationship that helps you get good deals.  Cool.  But sometimes you have to toss it aside. Because the prosecutor hid the evidence or the judge is biased against your client.  And has to be called out.

And if that means the next guy gets screwed?

Once it a while, we're helpless.  And today's necessary fight will make tomorrow's bad law. Because the alternative is abandoning today's client for tomorrow's.  

Which we can never do.

One Here, None There

The story in today's Times begins this way.

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

It's a powerful story of a federal judge in Brooklyn (John Gleeson) committed to doing something about an absurdly harsh sentence he was forced by law to impose, the lawyer he appointed (Harlan J. Protass) to represent Holloway finding a couple of similar situations in Montana, and a US Attorney (Loretta E. Lynch) who bowed (one senses grudgingly) to decency.

What happened is that Holloway was charged with three carjackings over the space of several hours.  In each case, his co-defendant had a gun.  Because he went to trial and got convicted rather than cut a deal and plead guilty, those guns in the co-defendant's hands ended up costing him decades.  As mandated by Congress.  

Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

Anyway, Judge Gleason did some strong arming, the prosecutor agreed to vacating a couple of the carjackings, and Holloway will be sentenced today to time served and released to the custody of the New York State prisons where he'll be eligible for parole in about 9 months.

It's a good thing.  And I don't really want to sound grudging about a case where everyone did the right thing.  But you know

Here's the thing.  There are hundreds, probably thousands of men and women (mostly men) in state and federal prisons serving sentences that are, by any rational standard (as distinct from, say, the Otis/Scheidegger standard) absurdly long.  There are thousands of men and women who've had their lives ruined, who've lost their families (and functionally their lives), whose families have been torn apart because we've chosen to make everything a crime and to lock up as many people as possible for as long as we can possibly lock them up.  There are thousands of men and women we release on the street, denied an opportunity to get an education or housing or employment, but ordered to become productive members of society or go back into the slammer.

Judge Gleason is a fine judge who's done good things before and surely will again, but really there isn't much he can do except in individual cases.  Harlan Protass may be a great lawyer, but really there isn't much he can do except in individual cases. And then there's Loretta Lynch, about whom I know absolutely nothing but that in this one case she was pushed and shoved and finally did a truly decent thing she didn't have to do.

I have no reason to doubt Lynch's basic decency and sense of fairness.  But I have to notice that just as our clients are all better than the worst things they've done, so Ms. Lynch is probably nowhere near as noble as the best things she's done.  The judge, as I say, can really only act in individual cases.  Defense counsel can only act in individual cases.  The prosecutor, though, she gets to set (yes, within bounds and with some constraints, but nevertheless) policy.

So Good for Francois Holloway.  And good for it working out.  But he's just one guy.  Of the thousands. And thousands.  

Loretta Lynch could change office policy.  Congress could act.

One can hope.  

Hope, of course, is the thing with feathers.  As, it appears, were the dinosaurs.

Especially When It's Hard: Falling on One's Sword

I got a call today from a good lawyer hoping I could give him some advice.  He'd been appointed to do an appeal on behalf of a guy whose trial counsel was, to put it delicately, horrifically incompetent.  So bad that after he filed his brief in the court of appeals explaining just how and why the trial lawyer fucked up so badly that he didn't even reach the insanely low bar of constitutional effectiveness (hold a mirror to the lawyer's nose; if it fogs up, he was sufficiently competent), the prosecutor filed a brief saying agreeing that the lawyer was so bad that the client should get a new trial.

That is, frankly, unheard of.

But then, trial counsel (no newbie, by the way but a lawyer of long, albeit undistinguished standing) got hold of the client at the state run bars and breakfast.  Hey, he said, I'll file a motion asking the judge to cut you loose on probation if you'll just withdraw that appeal.  Hell, all you get from an appeal is a new trial.  I'm offering you a chance to get out now.  And you know, I won't even charge.

Of course, no guarantee, either.

Not surprisingly, the client was sore tempted.  Bird possibly in the hand or another trial - and maybe a plea to less time than he's doing.  Except, of course, it wasn't about the client.  it was about the lawyer who was damn sure he didn't want the court of appeals spitting out an opinion explaining that the client would have been better off represented by, say

I've written before about lawyers more concerned with themselves than with their clients.  Hell, I've had a whole series of posts I called "Selling Out the Client."  This guy's story would fit comfortably there. But been there and done that.

He's not the worst of the herd.  He's at least offering a free, potentially useful service in exchange for burying his failure. Anyway, I'm writing about him as a set up to talk about the other sort of lawyer. The kind who, when they fuck up* fess up.  Fall on their sword.

This guy, for instance.

 He's Steven O'Connor, and if the picture (from his LinkedIn page) is a little goofy, hey, he's from California.  And he's been practicing law since 1989.  And now

Rosalio Ahumada has the story in the Modesto Bee.

A defense attorney on Tuesday defied a judge by refusing to continue with the sanity phase of a Turlock murder trial. The judge was forced to suspend the trial and remove the attorney, who now faces court sanctions and discipline from the State Bar of California.
Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.
“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”

And the judge huffed and puffed and threatened.  And O'Connor stood his ground.  And the judge did find him in contempt.  And she is reporting him to the bar.

Read more here: http://www.modbee.com/2014/07/08/3429539/defense-attorney-threatens-to.html?sp=/99/1571/&ihp=1#storylink=cpy

Scott Greenfield notes that we can't tell from Ahumada's story just why O'Connor thought his trial phase representation incompetent or why he thought he could not be competent at the sanity phase. The answers likely matter - or they will - to his client, "Nicholas John Harris, who was found guilty last month of second-degree murder and arson in the stabbing death of Mark Anthony Henson."  And they may matter to the State bar.

They don't matter here.  O'Connor agreed to represent Harris.  For whatever reason, he did a terrible job.  Then he owned up to it.

It would have been simple enough to blow it off.  O'Connor could have showed up for the sanity hearing.  He could have done a great job or a mediocre one or something truly piss poor.  The likelihood is that it wouldn't have mattered - except maybe to Harris.  If the quality of his work were challenged on appeal, given the standards courts use, it almost surely would have been close enough for government work.

But O'Connor didn't.  He took the heat.  And what's pretty clearly a major hit to his career.

Because he understood that one thing, understood and acted on it.

It's never about us.  When we take that oath, we're saying that the client's interest comes first.  It comes before the vacation.  It comes before family and friends.  And it sure as hell comes before professional reputation.

We all know that.  O'Connor just lived it.  Which puts him in the pantheon.  And his career likely in the shitter.

Scott says he'd buy him a drink.

Even though he won’t be given any awards for his representation of Nicholas Harris, if I was out in Modesto, I would buy Steven O’Connor a drink. And I bet he could use one.

I would, too.  But I'm not there.  So I'll just hoist a glass in his honor.

Here's to you, Steve.  A lawyer with balls.  And integrity.

--------------------
* And really, we all do, to a greater or lesser extent, at one time or another.  We ask a horrifyingly stupid question.  We fail to ask a question we should have.  We miss a legal point - obvious or obscure that would have helped the client.  We give advice that turns out to be wrong.  We blow a deadline. Something.  Most of the time it doesn't change anything.  Often the fuck up can be cured.  But still.

Exemplary Behavioer

You've been a good father. You've been a good husband. You've been a good taxpaying citizen of the state of Missouri. That leads me to believe that you are a good and a changed man.

That's Mississippi County Associate Circuit Judge Terry Lynn Brown explaining why he was cutting Cornealius "Mike" Anderson loose.  Not putting him on parole.  Just giving him credit for time served for the 4,704 days between his conviction and his arrest. That's enough credit, enough days, to send him home.  At once.  

Which the judge did.

I told Anderson's story a month ago.  With my usual degree of snark and cynicism. He'd been convicted of armed robbery, sentenced to 13 years in prison.  But Missouri forget to tell him to turn himself in, forgot to come get him. So instead of going to prison and learning to be a competent criminal, he went and rehabilitated himself.  He started 3 businesses.  He paid taxes.  He got married.  He coached football.  He became, that is, a productive member of society.

Until Missouri remembered and sent a SWAT team to his home to arrest him while he was feeding breakfast to his three-year old.

Last month, I wrote this.

The right thing, the decent thing, the sensible thing, the humane thing, is for Missouri to say,

Gee, Anderson.  We're sorry.  We fucked up.  You've spent 13 years with a cloud hanging over your head, everyday knowing that your life could be totally fucked up in a moment.  Yet never trying to hide or escape.  You've demonstrated in that time that rehabilitation works.  You've become the sort of person we can be proud to have around.  Now, go back to your family and your life.  

Or, of course, Missouri can say,

OK Anderson.  We don't give a flying fuck about any of that shit.  Sure you're a fine guy now, but the asshole stuff you did 13 years ago requires that we treat you like pond scum, ruin your life and your family's, and learn that all we care about is pain and vengeance. Ain't no room for human decency here. This is about inflicting justice.  Bend over and spread 'em.

My bet, the smart money I thought, was on the second of those alternatives.  I admit, happily, that I was wrong.  Missouri, in the person of Judge Brown, chose door number 1. 

Apparently the AG won't object.  He issued a statement.

From the outset, I have proposed a solution that balances the seriousness of Mr. Anderson's crime with the mistake made by the criminal justice system and Mr. Anderson's lack of a criminal record over the past 13 years. Today's outcome appears to appropriately balance the facts as we understand them.

Missouri's got its problems.  But this one they did right.

Maybe He Meant It - UPDATED

When Tim McGinty ran for prosecutor in Cuyahoga County, he said he'd take a different approach to the death penalty.  No more would they just charge capital cases right and left.  No more pursuing death just to use the charges as bargaining chips.  Care, consideration, what's really appropriate.  That's what he said.

There was a fair amount of eye-rolling.

But the numbers are down.  McGinty's office has, in fact, brought far fewer capital indictments than his predecessor.

And now there's this.

Billy Slagle is next up for execution here in the Buckeye State.  They've got it planned for August 7.  He was sentenced to die for the brutal murder of Marie Anne Pope in 1986.  For almost 30 years now, prosecutors in Cuyahoga County have pushed for his death.

And now there's this headline to an AP story:

Prosecutor: Inmate Shouldn't BE Executed.

Which is pretty much extraordinary.  And something for which McGinty deserves serious praise.

I don't have the letter.  But here's the press release.

   McGinty Press Release by jmgamso


UPDATE

And here's what McGinty sent to the Parole Board

   McGinty to Parole Board by jmgamso

NumbersL 1338, 500, 2, 180

Of course, it's just a number.  You know, like 7 or 12 or 365 or 3.14159 or 714 or 56 or 511 or 186,000 or . . . .  And maybe you can figure out what those numbers all mean.  Because they're just numbers, too, though special ones.  Here are some others: 18, 21, 30, 50, 65, 100. That set has a certain resonance because they are a set that says something particular.

But others, like these two, well, they derive their meaning from context.

• 1,338
• 500

Here's the context.  Since executions resumed in this country with the January 1977 killing of Gary Gilmore in Utah, there have been 1,338 of them.  Last night it was Brian Davis in Oklahoma.  He was number 1,337.  This evening, Texas killed Kimberly Lagayle McCarthy.  The 13th woman executed in this era, number 1,338 overall.  And number 500 killed in Texas.  Which is, when you think even briefly about it, a hell of a lot of dead bodies.  No other state has killed more than 100 or so. 

So yeah, it's just a number.  But in its roundness, it maybe carries a bit of extra weight.  Maybe makes you stop and pause for a moment.  Not if you're Rick Perry, of course.  But maybe if you're wondering.

* * * * *

Now, the folks who think it's good that we're clearing up the backlog, killing off those folks who need killin', and generally being altogether responsible about it.  Maybe they should pause for a minute and consider Robert Bradley Miller of Oklahoma and Howard Michael Scheinberg of Florida.

No, they're not inmates on death row.  Never have been though some might suggest.

Miller and Scheinberg were prosecutors who tried cases that put people on death row.  No news there. Lots of prosecutors have done that.  That's how all those folks got on the row, after all.  But these two.

Let's start with Scheinberg.  He was engaged in the trial of Omar Loureiro.  On March 27, 2007, the jury returned a guilty verdict. On May 20, they said he should die.  Under Florida law, that's just a recommendation that the judge can accept or reject.  On August 24, then-Judge Ana Gardiner actually imposed a death sentence.  Ho hum.  That's what happens.  Except --

See, from March 23, that's 4 days before the jury came back with the guilty verdict, until August 24, Scheinberg and Gardiner were, how can I put this delicately?  Not quite sure.  Largely, that's because the Florida Supreme Court, ruling on the disciplinary case The Florida Bar v. Scheinberg is less than forthcoming.

I mean, I assume that Scheinberg and Gardiner were, as they don't actually say any more, canoodling, doing the nasty, making the beast with two backs, fucking their eyes out.  But I don't know that.  What I know is that during that 5 month period, 

Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages.

They weren't about Loureiro's case or any other case.  They weren't about bar committees or legal stuff of any sort.  They were, as the court says several times, "personal."  And secret.  Can't forget secret.  As in they didn't tell Loureiro's lawyer that while his motions were being ruled on and while the judge was deciding what to do, the judge and the prosecutor were shagging each other comatose at the No Tell Mo-Tel exchanging hundreds and hundreds of text and phone messages.  Which could lead to what the court describes as 

an appearance of impropriety in the case.

To which one says, 

No shit.

Cause when the judge and prosecutor are bopping each other every chance they get (enough with the cutesiness of pretending we don't know - either they were fucking like bunnies or getting each other off over the phone or (probably) both; any other explanation is altogether implausible given the court's delicate failure to explain.

Loureiro got a new trial.  Scheinberg got his ticket yanked for 2 years.

* * * * *

And then there's Miller.  He was the prosecutor in the 1993 cases against Yancy Lyndell Douglas and Paris LaPriest Powell.  They were co-defendants, charged and tried, two years apart, for the killing of Shauna Farrow and the wounding of Derrick Smith.  Both sent to death row where they lost round of litigation after round of litigation until a federal judge stepped in and reversed the death sentence because of Miller's "'egregious conduct' as prosecutor."

Which led to investigation which led to ethics charges which led to the Oklahoma Supreme Court and State ex rel. Oklahoma Bar Association v. Miller.  And while they hated to do it, and said, in essence, 

it was OK to lie and cheat back 20 years ago, so we aren't going to be as harsh as we might be

they just felt constrained.  Since despite some verbal gymnastics, the court did find that Miller

• abused the subpoena process to force witnesses to cooperate;
• failed to disclose evidence to the defense; and
• obstructed defense access to evidence.

The Bar Association had found more misconduct.  And the Bar Association recommended that Miller lose his license for a year and pay something over $61,000 in costs. But he was, after all, a prosecutor.  (No, that's not really what the court said.  It said this happened a long time ago when ethics standards weren't particularly rigid [you know, because it was OK for prosecutors to lie and cheat and ab use their power and hide evidence in the 1990s], and Miller had never been caught before and he did cooperate.)  So 180 days and $12,000 plus.  Which is not as much, but not chopped liver, either, as my mother really might have said.

And there were the two dissenters.  Judge Taylor wrote, and Judge Watt joined in, a short and pithy dissenting opinion.

Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

* * * * *

Which  brings me back to 500 and 1,338.

Here's what we know.  Prosecutors will lie and cheat and hide evidence to get convictions.  Especially where the stakes are high - and they're never higher than in death penalty cases.  And mostly, nearly always, they get away with it.  And it happened in Kimberly McCarthy's case.  And nobody much cared.

Hidden evidence is tough, because there's no obvious way to find it.  Misconduct of other sorts may be easier to find, but the legal question is always, "So what?"  Would it have changed the outcome in the case of this monster?  That's the way the courts ask it, since they've already concluded that the guy is guilty and doesn't deserve a break.

So most of the misconduct is ultimately whitewashed away.  And actual discipline of prosecutors for their misconduct is incredibly rare. Which is, of course, why they keep doing it.

* * * * *

About 25 years ago, a judge asked me if I was more in the "Due Process" or the "finality" side of criminal law.  You know, the cranky due process types all want the system to be fair.  

Getting the right guy?  Sure that matters.  But we're significantly the worse for it if we have to lie and cheat to do it.  The integrity of the system requires that the system act with integrity.  Which it all too often doesn't in these cases.

Something to think about as we think about those numbers.  And as we give some praise to Florida and a (grudging) Oklahoma.

So a rare nod to Oklahoma and Florida. 

Rehabilitation Isn't an Empty Word

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

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

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

Sigh.

It doesn't have to be that way.

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

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

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

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

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

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

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

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

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

at low risk of felony violence, arrest and absconding.

Sure.

But he's a vicious killer.

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

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

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

Noah Lazore 2010 interview & decision

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

Oh.

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

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

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

Noah Lazore 2012 interview & decision

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

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

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

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

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

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

Good for them.

Wanna come to Ohio, guys?

Oh, and Noah, good luck!

-----------------

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

If Only He'd Thought So 25 Years Ago

The lead detective on the case thinks he shouldn't be executed.  The prosecutor who tried the case thinks he shouldn't be executed. At least one member of the three-judge panel that tried him and sentenced him to death thinks he shouldn't be executed.

That's not the kind of think I get to write every day.  It's a man-bites-dog story, a set of facts unusual enough that it deserves special mention and ought to carry special weight.  As it happens, I wrote that paragraph a couple of weeks ago, on the day the Ohio Parole Board issued it's recommendation to Governor Kasich in the case of John Jeffrey Eley. By a vote of 5-3, they said Eley should be killed.

But Kasich hasn't yet decided, and Gary L. van Brocklin, the prosecutor who put Eley on the row, hasn't given up. 

From his letter to the editor in Saturday's Columbus Dispatch.

The prosecutor, Gary L. van Brocklin, 

This case has haunted me for more than 24 years. Eley does not deserve to die for what I believe was Green’s crime. But not for Green, Ishan Aydah would be alive today.
. . .
I fully support clemency for Eley because, for me, it is the right thing to do. When I wrote to the Ohio Parole Board expressing my views on clemency, it was extremely difficult to do. The easier thing for me would be to say nothing at all. However, sitting on the sidelines watching this man be executed is not something I am prepared to do.

Powerful stuff.

I hope the Governor listens.

And of course he's right.  It's hard for a prosecutor to concede that he was wrong.  It's hard for him admit that he tried to arrange the murder of a man who didn't deserve to be killed.

I hope the Governor understands how hard.

I'm pleased that van Brocklin has come to see his mistake.  I'm filled with praise for his coming forward.

I hope the Governor acts.

And yet.

As the elected prosecuting attorney for Mahoning County, I prosecuted John Jeffrey Eley in 1987 for the aggravated murder of Ishan Aydah. At that time, I felt the death penalty was the appropriate response, given the facts and circumstances of the murder.

Need I mention that those "facts and circumstances" haven't changed?

Need I mention that van Brocklin thought Green the more culpable one back then?

Need I mention that van Brocklin was prepared back then to take death off the table for Eley if he'd just testify against Green?

I don't want to talk about blood on his hands.  I don't want to condemn van Brocklin.  The man has done, is doing an uncommonly (and truly difficult) decent thing.  He really does deserve praise and credit.  

And yet.

Because really, nothing has changed. Except that John Jeffrey Eley has spent the past 25 years on death row.  And if something doesn't happen, he'll be strapped down to a table and shot full of pentobarbital with the intent and effect of killing him in 17 days.

It didn't have to dome to this.

And despite the praise and credit van Brocklin deserves (and he does) and that I'm honestly giving him (and I am), despite that, he bears a fair share of responsibility - not all of it, but a fair share - for where it is.

He's not alone of course.

The cops bear some responsibility - including the lead detective who now thinks Eley should live.

The three-judge panel bears more than a bit of responsibility - including Judge Economus who now thinks Eley should live.

Green bears plenty of responsibility.

So, of course, does Jeff Eley.  Had he not killed Ishan Aydah . . . . Well, there's no getting past that one.

But van Brocklin made a knowing, conscious decision.

At that time, I felt the death penalty was the appropriate response, given the facts and circumstances of the murder.

He can't escape that.

I hope the Governor acts.

Gary L. van Brocklin hopes so, too.  Good for him for doing the right thing.

Now. 

When it may be too late, though I sure hope the Governor will do the right thing, too.

And yet, you know, it didn't have to come to this.

Praise Where It's Due - But Still Plenty Cynical

OK, let's be honest.  My cynicism wasn't really on the verge of being shaken.

But really.  Even after the unanimous recommendation of the Parole Board.  Who'd a thunk?

I mean, Governor Ted granted and denied (mostly denied, of course, but that's not the point here) commutations seemingly at random.  And he was alleged to be secretly opposed to the death penalty.  (Or secretly a fan of it.  Depended on who you talked to.)

But you have to figure Kasich is an honest supporter - not the Shrub or his successor with the good hair, he-who-wants-to-be-President Perry, certainly - but an honest supporter.

And then, albeit with that unanimous recommendation for cover/support, he goes and does this.

Murphy Commutation

I mean, really.

When Joey isn't factually innocent. But just because it's the right thing to do.

And after commuting Kenneth Smith.

And granting reprieves (though perhaps at the request of the killers at the DRC or of the Attorney General, but still) to Brett Hartmann & Billy Slagle.

This time - not like last time as I explained  here - Doug Berman has it right.

I am not sure whether to be incredibly proud or deeply troubled that Ohio's Governor Kasich has now in the last three months made more profound and effective use of his state clemency authority in just the last three months than US President Barack Obama has in over the last three years.

So yeah, I'm still cynical.  But pleasantly surprised.

Keep it going John.  Reginald Brooks is set for November.  Do your stuff.

Innocence and Decency v. The Court and The Law

I want to tell you about this guy, Thomas Haynesworth.

Thomas Haynesworth

Oh, wait.  That was then.  1984.  Accused & convicted multiple rapist.  Sentenced to 84 years in the slammer.

Thomas Haynesworth

This is now.  Released from prison on parole.  Because he's innocent.

Let me repeat that.  An innocent guy.  A guy who didn't commit those rapes.  You could ask anyone.

You could ask, for instance, the prosecutors from the counties in Virginia where the rapes occurred.  You could ask, for instance, Kenneth Cuccinelli who's the Virginia Attorney General.

You could ask pretty much anyone who knows anything about the case.

With a single exception.

First the back story.  John Schwartz, in yesterday's Times, lays it out.

He was arrested on suspicion of having committed five rapes and assaults in his neighborhood, and was tried for four of them. He was convicted in three and sentenced to 84 years in prison.
DNA has since proved that he did not commit two of the rapes he was tried for. The DNA from those two cases pointed to another man, in prison for having committed multiple rapes in the same neighborhood that occurred after Mr. Haynesworth’s arrest. That man, Leon Davis, who identified himself to victims as “the Black Ninja,” is serving multiple life terms plus 100 years.
. . .
Mr. Haynesworth’s fight for freedom began in 2009, when the state’s department of forensic evidence tested the DNA from the first rape as part of a broad review of old case files. The results cleared Mr. Haynesworth of that rape, and he received an exoneration on that charge later that year. Mr. Haynesworth’s lawyers at the Mid-Atlantic Innocence Project and the Innocence Project in New York, along with private lawyers, filed legal papers for Mr. Haynesworth with the Court of Appeals of Virginia to get a writ of actual innocence on the remaining convictions. Subsequent testing of the DNA from the trial in which Mr. Haynesworth was acquitted eliminated him — and again implicated Mr. Davis. 

There's no DNA to test from the other rapes, but he passed a couple of polygraphs.  And the circumstantial evidence that Haynesworth is factually innocent is compelling.

You could ask pretty much anyone who knows anything about the case.

With a single exception.

He got released, back in March.  After serving 27 years of his 84 year sentence.  Not as in charges-dismissed released.  As in paroled-sex-offender released.  Because that's all the Parole Board could do.  Which means he's under a cloud. On parole.  

He is classified as a paroled sex offender, and has to appear on public registries of rapists and other sexual miscreants. He has to inform the authorities in order to move from one home to another, and even had to request permission to visit his nieces.
“I’m out, but still not totally free,” he said. “It puts a cloud over your life.” 

And so he wants exoneration.  An official declaration of his innocence.  Which seems like it should be easy, since you could, as I say, ask anyone.

With a single exception.

Now Mr. Haynesworth, 46, is asking for full exoneration on all of the rape convictions, although DNA from the other two cases is not available. But the circumstantial evidence supporting Mr. Haynesworth’s claims of innocence is so powerful that along with his own lawyers, the prosecutors from both jurisdictions where the rapes occurred support his efforts, as well as the attorney general for the commonwealth, Kenneth T. Cuccinelli.

But there's that single exception.

With no one arguing against exoneration, most judges would be expected to congratulate Mr. Haynesworth on his new life, perhaps with an apology as well, and send him into daylight and freedom. But in July, a three-judge panel of the Court of Appeals of Virginia said, in essence, “Not so fast.” The court called for additional briefs in the case, which will be heard again on Tuesday by all of the judges of the court. 

I need to pause here and tell you a bit about Haynesworth himself.  He is, it seems, a man of extraordinary decency and character.  A man who somehow didn't get chewed up and spit out as damaged goods during his 27 years (27 years!) in prison for crimes he didn't commit.

I've actually written about him before, back in March, when he was released.  Here's part of what I said.

Thomas Haynesworth doesn't hate the women who wrongly identified him as the man who raped them.  Oh, sure, he spent 27 years in prison on their mistaken say so (DNA indicates that the rapist was one Leon Davis), but he can't blame them he told Maria Glod for the Washington Post.

“They have been through a tragedy,” he said. “What happened to them shouldn’t have happened to them. I blame the person who did this, Mr. Davis.”

Haynesworth seems, once again because it bears repeating, a man of extraordinary decency, of generosity of spirit.  But he's slammed up against an implacable system.  The Virginia legislature crafted a mechanism for obtaining a writ of exoneration, and that's what he seeks.  The standard for that is supposed to be high.  But the court is asking whether Haynesworth needs to prove his innocence "conclusively."

As Cuccinelli says, that's a standard that's pretty much impossible to meet without DNA.  Anyway, it's not what the legislature intended.  The statute itself requires a showing that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”  

It's a common standard in criminal law, enormously difficult to satisfy, but not impossible.  And not the same as conclusive.

Haynesworth's problem is, on the one hand, peculiar to Virginia law since it turns on interpretation of a Virginia statute.  On the other hand, it's a problem the innocent face everywhere.  Proving the negative.  Made harder by the states' efforts to ensure it can't be done.

In a particularly arch footnote, Mr. Cuccinelli’s team added that since the state had disposed of the DNA evidence in the other cases, “it seems paradoxical to demand ‘conclusive’ evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence.” 

Evidence destroyed.  Evidence they won't let you test.  Evidence that's necessary to prove innocence but that's denied.

Because who really wants to know how we fucked up.  And how often.

Because there are all those other guys, just how many we don't know.  They're innocent, too.  But they don't have DNA.  And they don't have the prosecutors on their side.  Or their state's attorney general.  And even if they get released . . .  There's still that cloud that won't be lifted.  (See, for instance, Danny Brown.)

Regardless, Haynesworth is out of prison.  Schwartz says that he finds it "sweet."  And exonerated or not, he's got a job.  Working in Cuccinelli's office.

Which reminds me that along with Haynesworth's lawyers and the team from the Innocence Project who've worked on his case, and along with Haynesworth himself, there's some need to praise Cuccinelli, another guy who's doing the right thing.  At least this time.

Tomorrow, the court will be hearing Haynesworth's arguments.

Texas - Land of the Incompetent and the Free

This is Stanley Blackwell.  In December 1992, he was convicted of sexual assault of a child and sentenced to 10 years in prison.

He appealed, and lost in April 1995.  He was out on bond then, and tried to turn himself in.  Except they forgot to issue a warrant for his arrest and wouldn't take him into custody.  He tried again.  Same result.

Eventually, they issued that warrant, but nobody went after him.

In 2002, he tried again to get his conviction overturned by seeking a writ from the state courts.  Except he still wasn't in custody, so it was denied.

The Austin American-Statesman quotes Blackwell's lawyer, Trey Collins.

For years, he was living a normal life. He was never on the run.

They finally arrested him March.  More than 18 years after he was sentenced.

Wednesday, the Texas Court of Criminal Appeals, issued it's opinion.

Applicant also did not violate any conditions of his appellate bond and in fact tried to turn himself in twice and was turned away. Applicant was improperly out of custody on appeal bond through no fault of his own. He was not attempting to conceal himself, and the State made no efforts to secure Applicant so that he may begin to serve his sentence.

No misconduct on his part.  He tried to do the right thing and go to prison, but they'd lost his reservation.  Not his fault.

The opinion is all of 6 paragraphs.  Here's the most important one.

Relief is granted. Applicant is to receive time credit in this cause from the time the mandate issued in his appeal to the present. With the granting of this time credit, he has served this sentence in full and shall be immediately discharged from custody.

Did I mention this was the Texas Court of Criminal Appeals?

Did I mention that the decision was unanimous?

That even Killer Keller signed off on it?

There was a guy facing capital charges in Ohio.  While he was in jail waiting for his trial, they accidentally released him.  He tried to tell them it was a mistake, but they wouldn't listen.  They made him leave.  Made him.  So he left.  In time, he was arrested again and taken to trial.  The state said that his flight was evidence that he was guilty.

What flight?  They made him leave.  Made him. The Supreme Court of Ohio said it was fine.

He had too fled.

He's on death row.

Collins expects that Blackwell will be released in a couple of days.  Which isn't exactly "immediately," but it beats hell out 9 1/2 years from now.

And it's still Texas after all.

Lucky he wasn't in Ohio.