They Finally Tested the Fucking DNA. Nobody Cares What It Shows.

So now what happens?

I'm talking about Doug Prade about whom I've written a couple of times before.  He's a former Akron cop.  In 1998 the jury said he was guilty of murdering his ex-wife, Margo.  Shooting her to death.  He said, always said, he didn't do it.  And then they tested the DNA.  Oh, sure, he had to fight his way to the Ohio Supreme Court, but by a 5-2 vote, they allowed him to try and convince the trial court to order it to be tested.  All he had to do was convince the court that a test might be outcome determinative.  Which he did.

See, before she died, she I suppose before the gun went off, she struggled.   In the struggle, the killer bit her in the arm.  Through her lab coat.  Bit her so hard that she bled, bled right through the coat.  And the killer would have left his DNA on the coat.  But back then, DNA testing wasn't sophisticated enough.  They found Margo's DNA, from her blood.  But that overwhelmed whatever else.  Except Now they can do more.  And after a court order (the state fought, er, tooth and nail to prevent testing the DNA because . . . .  Oh, yeah, because it might fuck up their case.

And so they did the new testing and they found not just Margo's DNA but also another person's.  A man's.  The killer's.  Don't know who that is, though.  The only thing they know is that it isn't Doug Prade's DNA.  Which means that Doug isn't the killer.

And Judge Judy Hunter cut him loose.  She wrote,

The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder. As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.

And of course, the state appealed.  Because the jury said he was guilty and just because the killer was maybe (probably? almost certainly?) someone else, well, that doesn't count.  Because sure, that male DNA could be from some contamination somewhere along the way.  So the court examined the trial court's decision to see if it was wholly irrational or arbitrary.  And concluded, that it was.  Because they weren't convinced.  (Which isn't the standard they claimed to have used, but what the hell.)

Having conducted a thorough review of the DNA results and the testimony interpreting those results, this Court cannot say with any degree of confidence that some of the DNA from the bite mark section belongs to Margo's killer, Likewise, we cannot say with absolute certainty that it does not. For almost 15 years, the bite mark section of Margo's lab coat has been preserved and has endured exhaustive sampling and testing in the hopes of discovering the true identity of Margo's killer. The only absolute conclusion that can be drawn from the DNA results, however, is that their true meaning will never be known. A definitive exclusion result has been obtained, but its worth is wholly questionable, Moreover, that exclusion result must be taken in context with all of the other "available admissible evidence" related to this case.

And so they undid the finding that he was innocent and ordered him back to prison.  Of course, Prade appealed.  And yesterday, by a vote of 4-3 and without any explanation from anyone, the Ohio Supreme Court refused to hear the case.  Which means? 

The state says, according to press reports, that it's over.  Prade was found guilty by the jury and then by the court of appeals.  Whether he's innocent is irrelevant.  Back to prison.  He'll be eligible for parole for the first time when he's 78 or 80.  If he lives that long.

His lawyers say he gets a new trial.  Because the court of appeals never addressed the question of whether he was entitled to that.  

And while they're squabbling about that?  He either does or doesn't go back to prison.  From which he's been out for about 18 months now.

Let's recap.

• Doug Prade, found guilty in 1998.  
• With new evidence found innocent in 2013.
• Found guilty in 2014 because after all the new evidence might or might prove he's innocent so he must be guilty.

Meanwhile, in Texas, Hank Skinner got the DNA tested and the trial court held a hearing.  The state, which had spent years fighting against the DNA testing, said the results proved Skinner was guilty. Skinner's lawyers said the tests showed he was innocent.  The judge carefully weighed the conflicting arguments, noting that the DNA results were largely inconsistent with the state's theory of the case, agreed with the state that some exculpatory evidence shouldn't come in.  And then said that Skinner was guilty and should be killed.

Skinner will be appealing.  And you know how well that's likely to go in the courts that already said there was no point in testing the DNA because he was guilty so there was no point in looking to see if he actually did it.

I've said before that Ohio wants to be Texas.  We've got a ways to go, but still.

It's About Damned Time

It's finally going to happen.  After years of fighting it, they conceded it should be done.

Until now, the State has opposed Skinner's request for DNA testing and argued to affirm the trial court's ruling on appeal.  Upon further consideration, the State believes that the interest of justice would best be served by DNA testing the evidence requested by Skinner and by testing additional items identified by the state.

Skinner is Hank, on death row in Texas for a crime he insists he did not commit. He's been trying to get testing done for years.  For years the state fought him.  No, they said.  It won't prove your innocence so why should we let you?  Besides, it's just a last-minute stall.  

Of course, they didn't claim it was a last-minute stall until he'd been seeking testing for over a decade.  Still, they wouldn't test and wouldn't test.  They fought him in state courts and federal courts and the United States Supreme Court.  We must not, they said, allow testing of the DNA.  It would be the end of the Republic. (OK, they didn't really say it would be the end of the Republic.  I made that part up.)

And then, Friday, that thing about "further consideration."

So what happened?

The evidence didn't change.  Whatever it was before is what it is now.

The potential test results didn't change.  They can still confirm guilt, exonerate, or be inconclusive.

Skinner still says he's innocent.

Texas still says he's guilty.

So? What did change?

Well, for one thing, it looked like they were going to lose the fight.   Brandi Grissom, for the Texas Tribune, explains.

The advisory comes a month after that hearing before the Texas Court of Criminal Appeals, in which the judges on the nine-member panel grilled attorneys for the state about their continued resistance to the testing even after a spate of DNA exonerations in Texas. In Texas, at least 45 inmates have been exonerated based on DNA evidence.

"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said at the May hearing.

When the Texas Court of Criminal Appeals looks like it's going to rule in favor of a condemned inmate, the state has to think about what it's doing.

And there's the continuing stench over the murder of the likely innocent (proved innocent except to those who don't believe the proof) Carlos DeLuna. And of course, Cameron Todd Willingham.  At some point, they start losing credibility when they say they can't make mistakes.

Which brings us, really, to what may be what really got them to change their tune.  The adventures of John Bradley.

Here, from an editorial in the Austin American-Statesman. 

For more than a decade, incumbent Williamson County District Attorney John Bradley was a formidable force locally and at the Legislature. With close ties to Gov. Rick Perry and a reputation that instilled respect as well as fear among defense attorneys, he was considered bullet proof politically.

Bradley, you'll recall, is that man chosen by Perry to torpedo the investigation of the non-arson fire for which Willingham was executed. And Bradley is the one who spent years arguing against testing the DNA that, when finally tested, proved that Michael Morton did not kill his wife, Christine.

But then, you see, just last week, the voters of Williamson County said they'd had enough.  The job of prosecutor, they said, isn't just to get convictions.  It's to try getting it right. 

And sometimes, at least sometimes, that means being willing to re-examine the evidence.  Even if it's at the request of someone who's been convicted and insists he's innocent and it can be checked and who knows.

Bradley was defeated in the Republican primary to hold onto his job as the elected DA. Which, and this was the point of Brandi Grissom's article, kind of put the fear, probably not of god, but certainly of the voters into the minds of prosecutors.  And maybe of the Attorney General.  Who undertook that "further consideration."

My repeated admonition has been,

Test the fucking DNA.

Maybe, just maybe, they're starting to get the hint.

And it's about damned time.

Baby Steps

When I posted at 12:35 this morning, I quoted from "The Love Song of J. Alfred Prufrock."

In a minute there is time
For decisions and revisions which a minute will reverse.

The thing about this business (one thing about it) is that you never know.  Who would have thought?  Frankly, not me.
I wrote

The Court of Criminal Appeals can grant a stay and order testing.

And to the surprise of, I suspect, almost everyone, they half did.  And, at least for the moment, it's the more important half.
Skinner Stay - CCA
That's a stay.  Not for DNA testing, but to give the court a chance to determine whether the DNA testing statute, amended in part "because of this case," should apply.  And how.
That is, the Court is going to decide whether to give Skinner the test.  And it'll keep him alive long enough for the decision.
Rob Owen, one of his lawyers, explained.

The Court of Criminal Appeals with its decision today, has ensured that Mr. Skinner's request for DNA testing will receive the thorough and serious consideration it deserves. We are grateful for the Court's action and look forward to the opportunity to make Mr. Skinner's case for DNA testing in that forum.

Sometimes, not always but sometimes, they do the right thing.
This is one of those times.
And though I don't say this often, I offer these words to the Judges of the Texas Court of Criminal Appeals.

Good job this time!

Of course, now they've got to order the testing.
But one thing at a time.

In the Room, the Women Come and Go/Talking of Michaelangelo

LET us go then, you and I,
When the evening is spread out against the sky
Like a patient etherized upon a table;
Let us go, through certain half-deserted streets,
The muttering retreats
Of restless nights in one-night cheap hotels
And sawdust restaurants with oyster-shells:
Streets that follow like a tedious argument
Of insidious intent
To lead you to an overwhelming question….
Oh, do not ask, “What is it?”
Let us go and make our visit.

It all happened near the end of the week.

• Judge Frost said he believes them.
• A nearly unanimous Ohio Supreme Court said they don't think any of it matters.
• Judge Emmert said he doesn't want to know, either.
• Dudley Sharp said he already knows, though much of what he knows is wrong.

And the days grew shorter.  And fewer.

I didn't want to write this post.  I've been resisting it, because one of the things everyone who pays even a little attention, and certainly everyone involved in it know is that you never really know what will happen. 

And indeed there will be time
For the yellow smoke that slides along the street,
Rubbing its back upon the window panes;
There will be time, there will be time
To prepare a face to meet the faces that you meet;
There will be time to murder and create,
And time for all the works and days of hands
That lift and drop a question on your plate;
Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions,
Before the taking of a toast and tea.

As I said, I didn't want to write this post.  I hoped I wouldn't have to.  And there is still time.

But it draws short.

On Friday, Judge Frost explained, that the State of Ohio seems to have got religion.

You'll recall that back in July, the judge explained that 

It is the policy of the State of Ohio that the State follows its written execution protocol,
except when it does not. This is nonsense.

More than just "nonsense."  Judge Frost said it violated the equal protection rights of Kenny Smith who was about to be executed.  And he called off the killing.  Now, several months later, and with a new protocol in place and Reginald Brooks due to be killed a week from Tuesday, the judge held several days of hearings and decided that he thinks they've come up with a system he can trust.  This time, he says, they seem to mean it.

This litigation has too often supported the inherent truth of the adage that those who
cannot learn from history are doomed to repeat it. With some caution, the Court today reaches the conclusion that the State of Ohio has apparently learned the lessons of its prior embarrassments and corrected its course in order to pursue court-ordered implementation of its latest written execution protocol.
. . .
After the Smith rebuke, it appears that the state officials involved have finally recognized that subject adherence to the protocol and too much discretion to depart from core provisions or safeguards are neither laudable nor constitutionally permissible approaches. Thus, “the perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol” appear to be relegated to the past, obviating the conclusion that Ohio’s execution practices offend the Constitution based on irrationality and disturb fundamental rights that the law bestows on every individual regardless of the depraved nature of his or her crimes.

Yeah, well, maybe.  Or maybe not.

And maybe we'll find out as the killings resume.  Which the Ohio Supremes seem to be just fine with.

Because on Friday, they refused three motions to stay the Brooks murder.

Brooks entry refusing stay

Which about covers it.

Should we hold off on killing him until we're sure he's competent to be executed as the Constitution requires?  No. Except Judge O'Donnell, and he alone, would wait for an appellate court to decide that one.

She we hold off on killing him until we've decided whether the evidence the state has just now revealed, after he's been in prison for getting on toward 30 years now entitles him to a new trial?  No, of course not.  O'Donnell doesn't think so, either.

Should we hold off on killing him while the commission established by this very court to figure out if we're doing the death penalty fairly and properly issues a report?  No.  Are you crazy?  Why would we do that?  Again, O'Donnell agrees with the rest of them.

Which puts it pretty squarely in the laps of the federal courts and Governor Kasich.  The Guv has proved himself surprisingly willing to not kill people over the last few months as he's commuted sentences and granted reprieves.  Perhaps I should be optimistic.  I'm not.

And indeed there will be time
To wonder, “Do I dare?” and, “Do I dare?”
Time to turn back and descend the stair,
With a bald spot in the middle of my hair—
(They will say: “How his hair is growing thin!”)
My morning coat, my collar mounting firmly to the chin,
My necktie rich and modest, but asserted by a simple pin—
(They will say: “But how his arms and legs are thin!”)
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse.

And then there's Texas.  Where it's looking more and more like it's up to the Governor who would be President.

The good people of the Lone Star State want to kill Hank Skinner on Wednesday.  At least, Lynn Switzer does.  Here's the very short version of the problem from Radley Balko at Huffington last week.  If they kill Skinner, he says,

[I]t may be the biggest travesty of justice in the modern death penalty area. That isn't necessarily because Skinner is innocent. He may be guilty. I don't know. The problem is that the state of Texas also doesn't know.

Well, yeah.  I've talked about Skinner a fair amount over the last couple of years.  There's this DNA he's been trying to have tested for the last 10 years.  For the last 10 years, the state has fought tooth and nail to prevent the testing.  He's been to the US Supreme Court over the damned DNA testing.  And he won his case.  The Texas Legislature f'rgodssake passed a law to ensure that he could get the DNA tested.  In response, DA Switzer asked the court to set a date to kill him.  Which it did.  This coming Wednesday.  This week, a Texas court said it didn't care about the new law.  No testing.  Let him die.

Dudley Sharp, a free-lance death penalty enthusiast, wrote in the Austin American-Statesman that Skinner is gaming the system with a last minute bid for a stay.  Of course, that bid has been going on for 10 years, and if they'd tested all the stuff back then, he'd either have been exonerated or killed years ago.  They refused.  It's not Skinner who's responsible for the delay.

And who's gaming what system?

Of course, Sharp makes clear that Skinner doesn't really want the DNA tested.  If only he'd ordered his lawyers at the time of the trial, they'd have had to test it, Sharp says.  Which isn't true.

Or he could have jumped up and demanded that the judge order the lawyers to test it, and of course the judge would have - or would have given him new, more compliant lawyers.

Anyone who does this work knows that ain't how it happens.  Sharp lives in a fantasy world, of course.  But then he's certain.  The details really don't matter.

Here's the truth.  If they'd tested the DNA 10 years ago, just like if they test it now, one of three things happens.

1. It proves Skinner is innocent.
2. It proves Skinner is guilty.
3. It proves to be inconclusive.

So now let's look at Texas and Lynn Switzer and why there's this unwillingness to test the DNA.

Is it because they're sure he's guilty and the DNA will prove it and it's been worth 10 years of legal wrangling and expense and bad publicity because they don't want proof that will lay public suspicions to rest but would rather have it look like they're callous and don't give a shit about killing a maybe innocent guy?

I don't think so.

Here's what I think, and it's the only even close-to-rational explanation:  They're afraid it will prove he didn't do it.  And then they've got a guy they've been calling a monster and trying to kill for about 16 years now and damn will they look foolish.  So better to trust the jury and kill him than take a chance.

Leonel Herrera said he was innocent and shouldn't be killed, but Texas was adamant.  In 1993, the Supreme Court said

Bah, humbug.  Let him die.

And Harry Blackmun dissented.

I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. See Colemanv. Thompson, 501 U. S. 722, 758-759 (1991) (dissenting opinion). See also Coleman v.Thompson, 504 U. S. 188, 189 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U. S., at 343-345 (opinion concurring in judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Perilously.

The Court of Criminal Appeals can grant a stay and order testing.  So can the governor.

Or they can, in effect, join Lynn Switzer on the hypodermic's plunger.

For I have known them all already, known them all:
Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;
I know the voices dying with a dying fall
Beneath the music from a farther room.
So how should I presume?
And I have known the eyes already, known them all—
The eyes that fix you in a formulated phrase,
And when I am formulated, sprawling on a pin,
When I am pinned and wriggling on the wall,
Then how should I begin
To spit out all the butt-ends of my days and ways?
And how should I presume?
And I have known the arms already, known them all—
Arms that are braceleted and white and bare
(But in the lamplight, downed with light brown hair!)
Is it perfume from a dress
That makes me so digress?
Arms that lie along a table, or wrap about a shawl.
And should I then presume?
And how should I begin? .      .      .      .      .      .      .      .
Shall I say, I have gone at dusk through narrow streets
And watched the smoke that rises from the pipes
Of lonely men in shirt-sleeves, leaning out of windows?…
I should have been a pair of ragged claws
Scuttling across the floors of silent seas. .      .      .      .      .      .      .      .
And the afternoon, the evening, sleeps so peacefully!
Smoothed by long fingers,
Asleep … tired … or it malingers,
Stretched on the floor, here beside you and me.
Should I, after tea and cakes and ices,
Have the strength to force the moment to its crisis?
But though I have wept and fasted, wept and prayed,
Though I have seen my head (grown slightly bald) brought in upon a platter,
I am no prophet—and here’s no great matter;
I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and snicker,
And in short, I was afraid.
And would it have been worth it, after all,
After the cups, the marmalade, the tea,
Among the porcelain, among some talk of you and me,
Would it have been worth while,
To have bitten off the matter with a smile,
To have squeezed the universe into a ball
To roll it toward some overwhelming question,
To say: “I am Lazarus, come from the dead,
Come back to tell you all, I shall tell you all”—
If one, settling a pillow by her head,
Should say: “That is not what I meant at all;
That is not it, at all.”
And would it have been worth it, after all,
Would it have been worth while,
After the sunsets and the dooryards and the sprinkled streets,
After the novels, after the teacups, after the skirts that trail along the floor—
And this, and so much more?—
It is impossible to say just what I mean!
But as if a magic lantern threw the nerves in patterns on a screen:
Would it have been worth while
If one, settling a pillow or throwing off a shawl,
And turning toward the window, should say:
“That is not it at all,
That is not what I meant, at all.” .      .      .      .      .      .      .      .
No! I am not Prince Hamlet, nor was meant to be;
Am an attendant lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous—
Almost, at times, the Fool.
I grow old … I grow old …
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind? Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.
I do not think that they will sing to me.
I have seen them riding seaward on the waves
Combing the white hair of the waves blown back
When the wind blows the water white and black.
We have lingered in the chambers of the sea
By sea-girls wreathed with seaweed red and brown
Till human voices wake us, and we drown.

From "The Love Song of J. Alfred Prufrock"        by T.S. Eliot

Next Verse, Same as the First

Really, it gets tiresome asking the same questions over and over again.

But then, nobody's ever come up with any reasonable answers.

It's been about six months since we last checked in on Hank Skinner. That was back in March when the Supreme Court decided (6-3) that he could sue in federal court to declare that the Texas statute that prohibited him from getting DNA testing was unconstitutional.  It didn't say he could get the DNA tested, didn't even say the Texas law was unconstitutional, just that he could try to convince a federal trial court that the law was unconstitutional (at least as applied to him).  And once he convinces the judge, then he can get Texas to give him the DNA to test and he can prove, he says, that he didn't kill Twila Busby and her two sons.

It's been more than a decade now that Skinner's been trying to get DNA tested.  At one point, Texas went along with it and agreed to test a bit of the stuff that was out there.

Heh.  That'll show him.  We'll test the DNA and it'll be him and there won't be no more of this bullshit claim that he didn't do it.  Yeah.  Fuck 'im.

So they tested, but gosh darn, it wasn't Skinner.

Sheeeeit.  Now what?  No more DNA testing.  That's f'r damn sure.

Which is what led to the Supreme Court case and all that.

OK, so now Skinner sits on death row in Texas waiting for the courts and then the test results and then an apology and the 80 grand a year that Texas law says goes to innocent guys who get convicted of crimes.  Except, you know, if that were all there were to this, I wouldn't be writing about it now.

There have, in fact, been some developments over the past six months.  Here's a short summary from David Protess writing at the Huffington Post (link removed).

As a federal magistrate in Texas considered the lawsuit that quickly followed, Skinner had another temporary stroke of good fortune. In May, the Texas legislature overwhelmingly passed a bill guaranteeing the right to post-conviction DNA testing, and in June Gov. Rick Perry signed it into law. The bill's sponsor publicly said that it was designed for cases like Skinner's and in memory of another prisoner, Tim Cole, who tragically died behind bars before DNA tests proved his innocence.
Suddenly, Skinner had two chances for justice: the federal lawsuit against the D.A. to gain access to the physical evidence in his case, and a new state law assuring the tests.

Except (you knew that was coming, didn't you?), that's not the whole story.  The rest of the story is that . . . .  Here's Protess again.  (This time I'm leaving the link in.)

What happened next defies imagination. A Texas judge, days before the new statute went into effect and the DNA motion was filed, set another execution date for Skinner: November 9th. That's right. Skinner is scheduled to die in a month -- while two judges continue to contemplate whether he can test the evidence that might clear him.
Under other circumstances, the courts would issue a stay of execution and allow both civil actions -- one authorized by the highest court in the land, the other by the state legislature -- to move forward. Unfortunately for Skinner, however, the U.S. magistrate almost certainly lacks the authority in a federal civil case to issue a stay of execution in Texas. How about the state court judge with the DNA motion on his desk? He happens to be the same judge who set Skinner's execution date for November 9th.

So just over a month.  Which is both plenty of time (the last time Texas tried to murder Skinner they were within an hour of getting it done when the Supreme Court stopped them) and no time at all.

My guess is that there'll be a stay.  But it's really no more than a guess.  Texas wants to kill Skinner.  And it damn sure doesn't want that DNA tested.

Which brings me back to where I started, with those questions I keep asking that nobody can seem to answer.  There are two of them.

1. Why not test the fucking DNA?
2. What are you afraid of?

Imagine for just a second that you're Lynn Switzer, the prosecutor.  (Of course, if Lynn's reading this, no leap of imagination should be necessary.)  You believe (at least I hope so), that Hank Skinner really killed those people so that his execution won't be what Harry Blackmun called "simple murder."  (It'll be a more complicated murder, but I digress.)  Because it's so damned obvious to you, you can't see the point in further DNA testing. OK, so you think it's silly.

• So what?
• Why not do it anyway?  (Remember, you won't even have to foot the bill.)
• Where's the harm?
• You get to look caring and responsible and extra-careful.  After all, you're planning to put someone to death.  And you can convince all those dewy-eyed skeptics out there that you were right and they were wrong.  (Take that, Gamso.)

Or maybe not.  Maybe you're not so sure.  Maybe you have doubts.  But after all, the jury said he did it.  And there's no absolute, incontrovertible proof he didn't.

• Break a few eggs.
• Who gives a shit about Hank Skinner anyway?
• Just a bunch of do-gooder, rabble-rousers and outside agitators and troublemakers like Gamso and we'll never shut him up no matter what.
• And there ain't no point in double checking because fuck, what do I care?
• One less piece of shit convict.

But, if they get the real proof, then what do we do?  We can't kill him if there's absolutely incontrovertible proof that he's the wrong guy.  Or maybe we can hide the results?  No, not in this case.  Never get away with it.

Let's take the questions one at a time.

Why not test the fucking DNA?  

There's absolutely no good reason.  There's no good reason not to test it in Skinner's case.  There was no good reason not to test it in Michael Morton's.  There is, I don't know how to say this delicately, there is NO GOOD REASON NOT TO TEST THE DNA.  

If it proves he's guilty, you've lost nothing.

If it proves he's innocent, you can save the life of an innocent guy.

If it's inconclusive, you're in the same position as you are now, but nobody can say you blew it off.

What are you afraid of?

There's only one possible answer.  You're afraid that Hank's innocent.  You're afraid that there's been a terrible mistake.  And you don't want to know.  But that means you'd rather kill an innocent guy than run the risk of learning you've got a killer out on the street.  Which makes you wholly unfit for office.

Or even for being a member of the human community.

Ah, you say, but the interests of finality.  What about finality?  There must be an end.

I'm hesitant to travel too far down that road since it leads rather directly to Die Endlösung.  

But look, death is as final as it gets.  And if Hank is factually innocent?  And you could have found out an acted?  But you didn't bother?

Executions are murder.  Executing the factually innocent, especially when you purposely choose not to find out, is a calculated cruelty beyond anything even vaguely civilized.  Maybe Die Endlösung wouldn't be so inappropriate at that.

What I Meant Isn't What You Think I Meant Unless You Think I Meant What I Meant

I've written so much about Hank Skinner's case, that I just assumed I'd be writing about the decision as soon as it came out.  Then the opinion came out yesterday and was so narrow and constrained - carefully explaining how what Skinner wanted (a chance to argue in federal court that the application of the Texas DNA testing law to his case violates his due process rights) did not run afoul of the Rooker-Feldman Doctrine (don't ask) and establishing that what Skinner wanted isn't actually to undo his conviction or sentence, so it's not a habeas issue - that it really didn't break much ground or lend itself to my brand of pontificating.  So I left it alone.

Except that there was this sentence Clarence Thomas wrote in dissent nagging at me.

The Court has recognized that §1983 does not reach to the full extent of its “broad language.”

Hmm.  Here's what § 1983 (that's Section 1983 of Title 42 of the US Code, by the way) says. 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Ok, that is pretty broad.  In plain English, what it says is that anyone whose rights under the US Constitution or federal law are violated by any state or local official can sue over the violation.  (There are some limitations, but narrow ones, on suing judges.)  But as Thomas didn't quite say, plain English is for losers.  And as he did say, the Court has consistently said that 1983 doesn't mean what it says.

Now, Thomas is one of those guys who believe that the words control (except, of course, when they don't) and that judges and justices don't have the right to ignore the laws as they are writ just 'cause they disapprove.  So you might think he would be getting set to say something about how the Court is out of line.  If you thought that, you'd be mistaken, seriously, profoundly mistaken.

In fact, the whole point of Thomas's dissent is that 1983 means even less of what it says than the majority thinks.  And the majority doesn't think it means much.

Oh, there have been and continue to be lots of successful 1983 actions.  People, in fact, bring those cases all the time.  And they win a fair percentage.  (They lose a fair percentage, too, of course, but that's a different issue.)  But as Thomas says, there's much that the courts don't allow to be covered.

That's worth saying again.

There's much that the courts don't allow to be covered.

It's not a secret conspiracy.  It's that some things . . . . Well, you just can't sue over them.  Or if you can, there are hurdles.  Or you can sue, but not through 1983.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

163 In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

Though as it happened (and this is long before there was a 1983), Marshall found that Marbury's rights were invaded but that he really couldn't sue over them.

It begins (for our purposes) with the Constitution.

The First Amendment says,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Justice Black famously declared that "'No law' means no law."  That's tautologically true, of course, but nobody with any authorizing power (including Black himself) really understood it that way.

And if the words of the Constitution don't mean what they say (and I'm not getting, here, into discussion of whether it includes stuff it doesn't say, like "there's at least some right to privacy"), then there's really no use expecting that the statutes will mean what they say.

And so, when you really get down to it, the question the Court chose to confront in Hank Skinner's case was how much the decision would matter.  Not to Skinner, of course.  To the courts.

Ginsburg (in the Court's opinion), took it head on.  (I'm omitting a footnote.)

Respondent Switzer and her amici forecast that a “vast expansion of federal jurisdiction . . . would ensue” were we to hold that Skinner’s complaint can be initiated under §1983. See Brief for National District Attorneys Association as Amicus Curiae 8. In particular, they predict a proliferation of federal civil actions “seeking postconviction discovery of evidence [and] other relief inescapably associated with the central questions of guilt or punishment.” Id., at 6. These fears, shared by the dissent, post, at 6.

And here's what Thomas wrote on the subject (footnote included).

Allowing Skinner to artfully plead an attack on state habeas procedures instead of an attack on state habeas results undercuts the restrictions Congress and this Court have placed on federal review of state convictions. See Osborne, supra, at ___ (ALITO, J., concurring) (slip op., at 3). To allege that the Texas courts erred in denying him relief on collateral review, Skinner could only file a federal habeas petition, with its accompanying procedural restrictions and deferential review. But a successful challenge to Texas’ collateral review procedures under §1983 would impeach the result of collateral review without complying with any of the restrictions for relief in federal habeas.
The majority contends that its decision will not “spillover to claims relying on Brady v. Maryland, 373 U. S. 83 (1963).” Ante, at 13; but cf. Osborne, supra, at ___–___ (ALITO, J., concurring) (slip op., at 3–5). In truth, the majority provides a roadmap for any unsuccessful state habeas petitioner to relitigate his claim under §1983: After state habeas is denied, file a §1983 suit challenging the state habeas process rather than the result. What prisoner would not avail himself of this additional bite at the apple?*
——————
*Nor is there any reason to believe that the Court’s holding will be cabined to collateral review procedures. The Court does not discuss whether a State’s direct review process may be subject to challenge under §1983, but it suggests no principled distinction between direct and collateral review. This risks transforming §1983 into a vehicle for direct criminal appeals. Cf. Heck v. Humphrey, 512 U. S. 477, 486 (1994). Just as any unsuccessful state habeas petitioner will now resort to §1983 and challenge state collateral review procedures, so, too, will unsuccessful appellants turn to §1983 to challenge the state appellate procedures.

See it's not about the law.  it's about the courts.  The issue is floodgates.  And the courts don't want to open them.  Never have.

In this case, a key to Spitzer's win is that he convinced the majority there wouldn't be a ton of new cases.  It may not be so easy for the next guy.

The next guy as it happens, is Abdullah Al-Kidd.  I wrote about his case last week.  The question involved Al-Kidd's right to sue John Ashcroft for violating his rights under the 4th Amendment.  Among the topics discussed at oral argument was just how many other cases there might be.  Lee Gelernt, Al-Kidd's lawyer, said "only a few hundred each year."  Roberts didn't see that as so few.

So every time the prosecutor elects not to call one of these witnesses for a variety of reasons, you would have a claim that this wasn't designed to elicit testimony?

Kennedy floated the idea of 4,000 a year.

No, said Gelernt.  Just a few hundred.

Neal Katyal picked up on the question in his rebuttal argument.

If I could start with the Chief Justice's point about the cost of these lawsuits and allowing them to proceed. My friend on the other side says, well, but this will be a small, rare case, an isolated example, but I don't think that's true. I think if you allow their motivation argument to -- to -- to pierce absolute immunity, you will have this in every case or near every case. 95 to 96 percent of Federal cases are resolved by plea agreements. So there isn't someone who is actually called at trial.  You could allege it in any of those cases.
And particularly when you lace on to that what my friend has said is a disturbing, quote, "national pattern of abuse" of the material witness statute, something which we --with which we vigorously disagree, but if you could add the fact that someone wasn't called on in a trial to that national pattern, then you'll be having these damages actions quite a bit of the time. Now he says don't worry, it will only be a few hundred of these lawsuits. Well, leaving apart the fact that that excludes immigration cases and excludes the States' cases, as Justice Kennedy said, a few hundred lawsuits just at the Federal level filed against the Attorney General?

It's not all (or always) about actually making work for the courts.  Nor does it always shut out cases.  Those are just easy instances.  Rather, it's a larger point to which I've alluded to a whole bunch of times.

Words matter, but they don't control.  The law means what it says except when it doesn't.  And we're not seers.

There's no certainty in this business.  Not in the Supreme Court of the United States and not at trial in your local municipal court or whatever the lowest level court of record is in your jurisdiction.  Any lawyer who makes a promise about what can be achieved is either deluded or lying.

We live in a world of best guesses.  And as I've said more than once - dismaying many young lawyers and law students and driving crazy many folks too smart to go to law school - the correct answer to every legal question is 

It depends.

What got me started here isn't that Clarence Thomas said that 1983 doesn't mean what it says.  It's that the proposition is so obvious that he doesn't even see why or how it's at odds with his judicial philosophy.  (Ditto Scalia, but he didn't join that dissent.)

From Through the Looking Glass

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  

Texas: It's a Whole Other Country

Before I go on to talk about Todd Willingham and Hank Skinner, I need to do one more quick note about the opinions in Billy Wayne Coble's case from Wednesday.
I say opinions, plural, because when I wrote about the Coble case (here) I focused on the majority opinion.  You know, the one that said Richard Coons is a fraud and his predictions of future dangerousness, predictions which have sent dozens to death row and at least a couple of those to death, are wholly worthless but that even so Billy Wayne should be killed.  What I didn't do was mention the concurrence which said, in essence,
Sure Coons makes it up.  But he's a psychiatrist and the fact that he has no basis for what he says doesn't matter.  He's a psychiatrist which means he has powers beyond those of mortal man.  And the defense never proved that his crystal ball gazing doesn't work.
OK, that's not how Sharon Keller (what, you thought it was someone other than she-who-falsely-believes-herself-to-have-been-vindicated) actually put it.  Here's what she said (footnotes omitted).

The evidence at trial—Dr. Coons testimony—shows that forensic psychiatry is a legitimate field, that predicting future dangerousness is within the scope of that field, and that using education and experience to assess future dangerousness is a proper application of the principles involved in the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic psychiatrist with a lengthy medical career.” But appellant did not introduce any “books, articles, journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr. Coons’s experience-based method of evaluating future dangerousness is inappropriate.

Except that the law really is clear that the proponent of the testimony (that's the State of Texas) has to prove it's reliable.  Coble's lawyers didn't have to prove it was bullshit.  Keller, gets it exactly backwards.  But then she had a real fear:  If fraud's like Coons are stopped, maybe Texas won't get to keep killing so many people.  

Damn, and after she shut the courthouse.

* * * * *

While Billy Wayne Coble moves one step closer to being killed by the powers that be in Texas, Todd Willingham, who was killed by those powers, is having his case reviewed by a court of inquiry headed by Texas District Judge Charlie Baird.  It's a special Texas procedure to determine if Willingham was innocent.

After delays, the hearing got underway Thursday and lasted, according to press reports, maybe three hours.  Two widely recognized experts in the science of fire and arson testified.  Gerald Hurst explained that it's not theoretically possible ever to rule arson out as the cause of a fire, John Schwartz, in the Times, reported.

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

After Hurst, the judge heard from John Lentini who

ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Baird was prepared to hear from the Governor, who ignored Hurst's analysis and signed off on Willingham's execution, from the current fire marshall, even from Willingham's wife who said the other day that Willingham confessed to her (something she's denied under oath on other occasions).  All declined to appear.

But wait.  Just as things drew to a close, a three-judge panel of the court of appeals in Austin ordered Baird not to rule.  The Navarro County District Attorney, intent on preventing the court of inquiry, convinced the court to call a temporary halt.

Arguments for why Baird should be allowed to rule are due October 20.

But really, there's not much to say.

It really is clear that there's simply no evidence Willingham set the fire that killed his children.  He may have been a terrible person (or not); he may not have cared that they died (or he may have); but one more time, in boldface, there's no evidence that he killed his kids.  None.

Of course, that won't mean anything to those who think death is all that matters.  Schwartz quotes our friend Kent Scheidegger on what will happen if Baird gets to rule and says Willingham was innocent.

“It’ll be trumpeted on the Death Penalty Information Center site,” he said, referring to a group that opposes capital punishment. “Nobody on the other side of the aisle is going to give it any credence.”

For they who believe, evidence only counts if it points to guilt.  

And you know, they've still got a flat earth and creationism and the Loch Ness monster.

* * * * *

Finally, up in Washington on Wednesday, the Supremes heard oral argument (transcript here) in Skinner v. Switzer.  Skinner is Hank Skinner.  He's the guy who wants Texas to let him have access to evidence to test it for DNA. Texas says no, we just have to kill you.

Here's Adam Liptak in the Times.

In the course of an hourlong argument at the Supreme Court on Wednesday about a death row inmate’s quest to test DNA evidence, the justices asked neither of the questions that people without legal training might have thought crucial: Why won’t Texas prosecutors consent to the testing? And could the results show that the inmate, Henry W. Skinner, is innocent of the triple murder that sent him to death row?

Actually, they did sort of ask the second of those questions.  And Rob Owen, who represents Skinner, sort of answered.  Of course Skinner hopes that DNA tests would show he was innocent.  It's just that those questions aren't up yet.  The immediate issue is whether Skinner has a right to ask the federal court to say that the Texas statute which says he can't get the material for testing is unconstitutional.  You might want to read that again.  Skinner's not asking the Supremes to order the testing.  He's not asking the Supremes to say that the Texas statute that says he can't get it is unconstitutional.  He's asking the Supremes to let him ask a lower federal court to decide whether the Texas statute is unconstitutional.

Back in March, Skinner came within an hour of being executed before the Court granted a stay.  Now, Anthony Kennedy wonders whether they should have.

Well, we don't grant a stay in order to decide a question. We grant a stay because of the likelihood of success on the merits. And that goes to the sentence. And now you are telling us that your attack doesn't go on the sentence. I don't see why we don't just lift the stay, under your own view of the case. 

When Kennedy is suggesting that the Court should drop the case and let your client be killed, that's a really bad sign.

* * * * *

Let's review:

• Billy Wayne Coble - Sentenced to die based on meaningless, unreliable evidence, but close enough for government work
• Cameron Todd Willingham - Executed for a crime there's no evidence occurred, but close enough for government work
• Hank Skinner - Trying to prove he's innocent but it looks like he may have no way of getting to court which he needs to do to get access to the evidence that, he says, would prove he's innocent.

It is alleged that when Davy Crockett was not reelected to Congress, he said

You can go to hell, and I'll go to Texas.  

He did.  He was killed there a couple of months later.

They do that in the Lone Star State.

Beating the Odds

If you do felony criminal law (from either side of the aisle) and I tell you the number is 6.17 quadrillion, you probably assume that I'm talking about DNA.  

The number will reflect just how unlikely it is that the DNA in the whatever left at the scene could have come from anyone other than the defendant.*  There are four things you need to know about that number.

1. It's from a profile.   That is, they didn't sequence the billions or whatever bits of stuff make up the DNA.  They sample and test particular spots on the DNA sequence.  That results in a profile.  And a profile is not a complete person.  
2. It's meaningful only if the sample wasn't contaminated, the testing was done right, the demographic base was properly established and the test results properly measured against that demographic base.
3. None of those things is as simple and free from mistake as the people in the lab coats would like you to believe.  Test results, for instance, may include bits of noise (think static on your car radio), but exactly what's noise and what's real is often subject to varied interpretation, which can lead to dramatically different results.
4. While it's true that there aren't anywhere near 6.17 quadrillion people in the world, that doesn't mean that there can't be another person whose DNA profile is the same.  Really unlikely?  Sure.  Impossible? No.  Goes back to the idea that the number comes from a profile.

I'm not saying that when the guy in the lab coat is probably wrong when he says the tests were run and there's just a 1 in 6.17 quadrillion chance that it's not from your guy. He's probably right.  And when the prosecutor tells the jury that they should think about those odds and the fact that there are just about 7 (or is it 8 now) billion people in the world and conclude that the defendant did it, she's likely to be not just persuasive but frankly correct.

Of course, DNA doesn't just convict.  It also exonerates.  There have now been over 250 people in this country freed after DNA testing revealed that they didn't commit the offenses of which they were convicted.  The Supreme Court, though, says that there's no constitutional right to post-conviction DNA testing.  And prosecutors routinely resist the effort.  (See here, for instance.)

The highest profile case out there right now is Hank Skinner's.  He's on death row, been trying for some years to get sophisticated testing done.  The state (Texas, of course) did some, and when it didn't implicate him, decided not to do any more.  Even though it could be done at no cost to the state.  Skinner's in the Supreme Court now (decision next year) on the question of what procedural avenue he has to pursue in order to try and get testing. 

But if prosecutors often not always, maybe not most of the time (it's hard to tell), but often fight efforts at post-conviction DNA testing (even though it sometimes proves they had the right guy), defense counsel aren't always enthusiastic about it pre-trial.  Radley Balko of The Agitator, this time writing at Slate.com and using Skinner's case as paradigm, says just cut to the chase and test everything.

There are times when neither the prosecution nor the defense is particularly interested in discovering the truth. That's where policy makers need to step in. In cases like Skinner's, they should establish a common-sense rule: When there is biological evidence at the crime scene, all of that evidence should be sent for DNA testing. No exceptions.
. . .
In District Attorney's Office for the 3^rd Judicial District v. Osborne, last year's case, Justice Alito argued in a concurring opinion that guilty people could refuse to request DNA testing at trial, then prolong the appeal process (and stave off execution) by requesting DNA testing afterward. To find a right to post-conviction testing in the Constitution's protection of due process, Justice Samuel Alito wrote in his concurrence, "would allow prisoners to play games with the criminal justice system."
That's precisely why the testing should be done before trial. Arguing over which evidence gets tested shouldn't be part of either side's strategy. The prosecution and the defense should begin knowing that all of the evidence has been tested or will be. For old cases like Skinner's, if there's significant doubt about the defendant's guilt that testing could resolve, legislators shouldn't wait for the courts—they should make sure themselves that testing is done. A typical DNA sample costs about $1,000 to analyze, with a usual turn-around time of about 30 days. Innocence Project spokesman Eric Ferrero told me that his organization on average pays about $8,500 per case for DNA testing, since most cases have multiple samples of evidence.

As a criminal defense lawyer, I'd rather have some control.  As a citizen, I think he's right.

What got me started on this, though, wasn't Balko's piece at Slate.  It was Walter Reaves of Texas and his discussion of what happened in Ohio last week.

It's about Stephen Myers.  That's the factually innocent Stephen Myers.

Ten years ago, there was a home invasion in Licking County.  Some DNA testing was done, but there was nobody to match it against.  Until last year when someone ran the cold case DNA and up popped Myers.  Oh, he didn't match the physical description of the guy, and he said he was innocent, but the numbers were good.  Only 1 in 1.6 million people would have the same DNA profile.  That's not the quadrillions we're used to seeing (though I once had a case with a client - convicted largely on other evidence - where the number came back 1 in 4), but it's still pretty good odds.  Enough, certainly, for an indictment.

Trial was scheduled to begin in May, and Myers' lawyer was intending to attack the sampling and testing and numbers.  But then something interesting happened.

The prosecutors got the trial delayed because they decided to do more testing.  You know, DNA testing is a whole lot more sophisticated now than it was 10 years ago.  A whole lot more.  And it turns out that Myers is excluded.  He cannot - as in not possible - have been the person whose DNA was profiled.  1 in 1.6 million be damned.

It's a fluke, an oddity, that the prosecutors decided to retest.  Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers.  When your client insists on his innocence, and after you've had a heart-to-heart about what testing might prove still wants it done, you should have it done.

Don't trust the prosecutor to do your homework for you - or, sadly, to give you the good news if she does.  Maybe.  But maybe not.  Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.

But there's another lesson in this, too.

Next time you're on a bus or a plane or a train or in a restaurant or movie theater or anywhere where there are a bunch of people, look around.  

You never know when your not-twin, the one whose DNA profile is the same as yours, might be in the crowd.  Despite the odds of 1 in 6.17 quadrillion.   Hell, it might be one of the jurors.

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

*In this way, we distinguish DNA from fingerprints, where the examiner will testify (and yes, I have the transcripts) that from his examination of the fingerprint and the latent print, it is absolutely certain and he cannot be wrong (not even 1 in 6.17 quadrillion times) that the accused and only the accused could have left that latent print.  (We know those examiners are sometimes wrong, but they apparently don't know it; alas, neither do jurors.)