DEATH PENALTY SCREED - PART III

So Jason Getsy is now dead. His last words, according to the Youngstown Vindicator, were words of apology to the family of his victim:

“To Chuck and Nancy Serafino and your loved ones, for all the pain that I have caused you, it is my earnest prayer that God grant you peace,” Getsy said before the lethal injection that ended his life. “I’m sorry. It is a little word, I know, but it’s true.”

To which Chuck Serafino said it's not enough.

“It’s too little, too late,” Chuck Serafino told reporters afterward. “He’s been asked a number of times to tell the truth, and he has not.... I wrote to him, asked for the truth. He lied then, he lied to the parole board. To this day, he has never taken responsibility for what he did.”

Look, nobody downplays the crime. Nobody disputes the pain of the Serafino family. But they really can't have it both ways. If the only way they'll get peace (or you think they will) is to have an apology freely given a significant length of time before death, then the execution, even if it's accompanied by an apology and acceptance of responsibility, won't bring peace.

So no peace. No real satisfaction. None of that so-called "closure." Just another killing with new friends and people who care left to suffer a loss.

Are we a better people now? A better nation? Rommell Broom is still up next.

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And then there's Troy Davis (I know, I know, I talked about these same things yesterday).

Doug Berman quotes from a story from Time on the SCOTUS decision to remand. These are the last two paragraphs (which Berman quotes):

The court's August eruption highlights once again the fundamental screwiness of America's death penalty. In the marble halls of our rational humanity, we demand absolute clarity and justice. As one of the many judges who has reviewed Davis' case puts it, "I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based."

But most murders don't happen in the precincts of the rational or the just. They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

Interesting paragraphs, those. The first raises profound legal questions and includes a forceful attack on either our society or on at least two members of the United States Supreme Court. The second points to a separate but deeply troubling problem. Here, in order.

"[M]arble halls of . . . rational humanity" is a lovely phrase, suggesting legislatures and courtrooms and all the trappings of an elaborate Constitutional and legal framework. The image is echoed by the quote from the unnamed Judge.

I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based.

But it's an empty phrase. As the words of Justice Scalia (joined by Justice Thomas) in dissent from the Court's order in the case make clear, it is very far from clear that the execution of a factually innocent person would be any sort of violation of the Constitution, "atrocious" or otherwise. Are we, then, not a civilized society? Or is that judge simply wrong?

The late Harry Blackmun wrote, in dissent, in Herrera v. Collins

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. . . . I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. . . . 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.

(I've omitted citations.) Justice Blackmun wrote those words for himself alone. No other Justice signed on to that portion of his opinion, just as no other justice joined him in his passionate renunciation of the death penalty in Callins v. James:

From this day forward, I no longer shall tinker with the machinery of death.

Who are we, then, really? And what are we?

Those "marble halls" are balanced, in David von Drehle's final paragraph, echoing Raymond Chandler's vision of "these mean streets."

But most murders don't happen in the precincts of the rational or the just. They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

And isn't that key? On Berman's blog, I posted a comment, pointing out what follows.

We really can't, most of the time, have any real confidence that we're making the right judgment about who should or should not be killed without either ignoring reality or deluding ourselves about it. And regardless of the percentages and no matter how many protections we build in, if we kill enough people, we'll make mistakes, get it wrong some of the time.

For some of us, that's a sufficient basis by itself to oppose the death penalty in all cases, regardless of what other arguments for or against we may accept. For others, while the occasional death of an innocent or undeserving person may be a shame, it is an acceptable price to ensure that some who are guilty and deserving will be executed.

And oughtn't we, as a society and if we're serious about this, admit that truth and then either abandon the quest to execute or acknowledge that sure enough, by whatever measure, is good enough?

You see, that's finally the thing. I'm as opposed to the death penalty for the guilty as I am for the innocent. It's wrong, regardless. But if we care about getting it right, if we care about killing only the guilty or the deserving (whoever they may be), if want executions to be more than random happenings untethered from reality except that a bunch of jurors once thought it apt in some case that they may or may not have gotten right, if the details matter, if close enough for government work isn't close enough for this sort of government work, then it's hopeless, whether you endorse the death penalty in the abstract or not. And if you don't buy that, if you're willing to take the omelet approach which requires breaking a few eggs, if killing Troy Davis or Jason Getsy is so important that it doesn't matter whether it's appropriate to kill those particular guys, then we should admit that, too.

This isn't about the Constitution. It's not about civilization (whatever that might be). It's about acknowledging a truth. We can't be sure. And if we're going to kill anyway, we really should admit that we don't care about being sure.

When we face that, maybe we'll back off. Or maybe not. And won't either of those decisions say something about who we really are as a people?

Capital Case News

Three death penalty updates:

Troy Davis gets his day in court.

The Supreme Court, in a surprising, unusual, confused, and contentious move sent the Troy Davis case to the district court. The district court

should receive testimony and make findings of factas to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

There's been nothing quite like this in 50 years. Or maybe ever.

The quick back story: Davis was convicted and sentenced to die for the 1989 murder of Savannah, Georgia police officer Mark MacPhail. Davis concedes he was there but denies that he shot MacPhail. There were 9 key witnesses against him at trial. Seven have now recanted their testimony. Significant evidence points to one of the two who have not recanted as the actual killer. As his execution date approached, Davis filed a habeas corpus petition directly with the 11th Circuit Court of Appeals presenting a claim of actual innocence not tied to any other constitutional violation. The circuit court rejected the petition and Davis asked the Supreme Court to hear it.

The Court's order transferring the case to the district court for a hearing is, to say the least, peculiar, and for at least the following reasons:

1. It's not at all clear what standard the court is to use in determining whether Davis makes a sufficient showing, and the Court gives no guidance.
2. It's not at all clear what the court is to do if Davis does make a sufficient showing, and the Court gives no guidance.
3. If AEDPA controls, the district court may grant relief on an innocence claim only if controlling Supreme Court precedent says that executing the factually innocent is a constitutional violation, and the Court has never said that (though at one time or another five members of the Court - though not the current court - have said that).
4. It is not clear whether AEDPA controls. Justice Scalia says that it clearly does; Justice Stevens disputes that. The Court doesn't even hint at a resolution of that question.
5. Or maybe AEDPA contains an unwritten innocence exception. Justice Stevens thinks it does; Justice Scalia is quite sure it does not. The Court does not even hint at a resolution of that question.
6. Or maybe, if AEDPA doesn't contain an unwritten innocence exception, then AEDPA is unconstitutional. Or maybe not.
7. Presumably, it took five votes to issue the order. Now Justice Sotomayor did not participate in the decision and did not vote. Justice Scalia dissented, joined by Justice Thomas. Justice Stevens concurred, joined by Justices Breyer and Ginsburg. Nobody who knows what the Chief Justice or Justices Kennedy or Alito did is talking. And whatever they did, and for whatever reasons, has not been made public.

It's a glorious ruling for decency and fairness and justice and against the wanton infliction of death. But it's a damn curious one for the law.

Oh, and there's this. According to the AP story on what the Court did today,

State officials welcomed the ruling.

"Hopefully, this hearing will resolve the doubts about the verdict handed down by the Chatham County jury 18 years ago," Georgia Attorney General Thurbert Baker said in a statement.

Gee, if they were so eager for a full hearing of the evidence, they could have endorsed the effort to get a hearing rather than opposed it.

The Order and Justice Stevens' concurring opinion are here. Justice Scalia's dissent is here. Other documents in the case are linked about 40% of the way down this page.

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Jason Getsy will almost surely be killed tomorrow morning.

Friday afternoon, Governor Strickland issued his decision denying clemency to Jason Getsy after the Parole Board recommended it. In what passes for the substantive part of the decision, the Governor said

Substantial attention has been focused on the different sentences imposed upon Mr. Getsy and his co-defendant, Mr. Santine. Mr. Getsy and Mr. Santine had different roles in the murder. The fact that Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy’s sentence. Mr. Getsy’s sentence was based on his conduct and based upon our review, which included consideration of the differing Santine and Getsy sentences, I do not believe executive clemency is warranted.

Of course, the Parole Board didn't say that Getsy should live just because Santine got life. It said that the disparity was inequitable because Santine was more culpable. Maybe the Governor doesn't think that matters. In fact, Ohio law says that degree of culpability is a mitigating factor for juries to consider. It certainly seems to lurk around not the edges but the dead center of what frairness is all about.

But hey, we're just talking life and death here.

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Killer Keller goes on trial.

Meanwhile, in San Antonio, Texas, trial began in the judicial misconduct case of Sharon Keller, Chief Judge of the Texas Court of Criminal Appeals. You remember Killer Keller, as she's known. She's the one who wouldn't keep the courthouse open for Michael Wayne Richard to file a last minute motion for a stay of his execution, a motion which almost certainly would have led to a stay (albeit not from Keller's Kourt).

You can get all the background you might want from Grits for Breakfast. The Austin American-Statesman is providing live blogging of the trial. Surprises and tension already in day 1.

Getsy, the courts, the Governor

Jason Getsy is set to be killed by the State of Ohio Tuesday morning. The Governor can't make up his mind on whether to grant clemency. Ohio's lethal injection protocol continues under attack. And a panel of the Sixth Circuit just issued an opinion the entire panel thinks is wrong.

The issue is Getsy's lethal injection claim. In an earlier decision, the court said that you have to sue over lethal injection no later than two years after your case has been affirmed on direct appeal. Getsy, like many others, filed long after that, and as a consequence, the district court dismissed his case. On appeal, he argued that the court was wrong and his case should be heard.

What the panel said is that (1) the 6th Circuit has spoken; (2) you fail the test and don't have circumstances that make an exception to it; (3) the rule is terrible, but we can't change it. Judge Merritt dissented and will explain why later.

It really is up to the Governor now.

ODDS & ENDS

Time for another miscellany.

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Crime is down, and nobody seems to know why. At least, that's the thesis of an article in last Sunday's New York Times.

Of course, everyone takes credit. So Jon Corzine, Governor of New Jersey and well behind in the polls in his bid to win another term this November, is touting the wonders of his crime fighting efforts as the key to a dramatic decrease in violent crime - especially homicides - in the state since 2007. Maybe he's right and entitled to take credit. But if crime is down across the nation, maybe it's just coincidence? Or maybe . . . .

Ah, the hell with it.

One note though about New Jersey. Since it legislatively abolished the death penalty at the end of 2007, homicides are down. I'm not suggesting a causal relationship, but I am suggesting (nay, I'm insisting), that the Garden State's becoming the first state to legislatively abolish the death penalty in half a century certainly didn't lead to an increase in homicides.

OK, one more thought on New Jersey. Violent crime may be down, but corruption, it seems, at least if that massive federal bust reflects reality, is rampant. Here's exhaustive coverage from the Newark Star-Ledger. And here, courtesy of the Times, are the criminal complaints against three of the principles.

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As reported in this story in the Winston-Salem Journal, North Carolina is on the verge of enacting a Racial Justice Act. A spokesman for the Governor indicates that she is likely to sign the bill which has passed both houses of the legislature. If she does sign it, North Carolina will join Kentucky as the only states pemitting challenges to the death penalty based on statistical evidence of racial bias.

The Journal reports that opponents claim the bill would

set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.

Let's think about that for a minute. Here's the claim: If we look at general trends rather than particular cases, we'll discover that the system is so heavily racially biased that nobody will believe we're innocent of bias in any particular case. We can't have that.

Actually, that's roughly what the U.S. Supreme Court said in McCleskey v. Kemp: We accept that statistical data demonstrates that the death penalty is applied in a racist way, but if we decided it mattered, then we'd have to call the whole criminal justice system into question, and we just aren't willing to do that.

But, it seems, North Carolina is likely to do the first step. Here's hoping the Governor Perdue signs the bill and that the courts then have the guts to actually apply it fairly.

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Sharon Keller, "Killer Keller" as she's known around Texas, is Chief Judge of the Texas Court of Criminal Appeals. She goes on trial/media circus August 17 in San Antonio for a variety of forms of judicial misconduct arising from her refusal to keep the courthouse open to permit a last minute filing by Michael Wayne Richard which, it's pretty much clear, would have prevented his execution.

You can get all the background you might want through the links at this Grits for Breakfast post.

Thanks to Mark Bennett, We've seen Keller's written response to the charges against her. As Bennett points out, she complains that she's being forced to hire her own lawyer for her defense. She believes she's entitled to have the state pay for the lawyer of her choice at the fee of his choice. As Bennett also notes, in the same post, Keller claims that applying the Texas Constitution to her would violate the Texas Constitution.

That might lead to a "Huh?" were Keller not so consistently willing to put reason aside in order to favor her own goals. She is, after all, the one who explained, in the context of Roy Criner's case where the DNA exonerated him, that finality trumps innocence. She told Frontline, "At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. "

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We're still waiting for Strickland to decide whether to commute Jason Getsy's death sentence. As I wrote a couple of weeks ago, the parole board said he should. But the Trumbull C0unty Prosecutor is mounting a vigorous effort to convince Strickland to let the aggravated murder of Getsy go forward. (Story here.)

In the meantime, Rommell Broom, who's scheduled to be killed in September, got a big win in the 8th District Court of Appeals. The court said that he can use the public records that he received back in 1994, when it was lawful for him to get that information, to try to prove that if he'd been able to get that information before trial, he'd likely not have been sentenced to die.

What took him so long? you might well ask. The answer is that for years the courts have been telling him that he can't use evidence that the police basically hid from him to prove he shouldn't have been sentenced to die because, well, he just shouldn't.

After all, if people on death row could use the information police had to prove they shouldn't be there, we might have to reopen all these old cases. There'd just be no end to the confusion and uncertainty. Once you're convicted, that should be it. Oh, and you shouldn't be able to get to that stuff before you're convicted, either. Roughly speaking, that's what the Ohio Supreme Court said in 1994 in State ex rel. Steckman v. Jackson, overruling it's 1990 decision, State ex rel. Clark v. Toledo (Sorry, can't find a free copy of either on line, though Steckman should be out there.)

It's good news for Broom, and it's an important decision. Naturally, the state intends to appeal.

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I noted the other day that Kenya has just commuted the sentences of the 400 or so people on death row there. An AP report says that China is to begin using the death penalty "less often and for only the most serious criminal cases." On the other hand, Iran just had a mass execution of 24 bringing to at least 219 the number that nation has executed so far this year.

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And the beat goes on.

All in proportion

Under Ohio's death penalty law, every death sentence must be reviewed by the Supreme Court of Ohio (and in cases where the crime occurred before January 1, 1995, also by the court of appeals) to determine, among other things,

whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.

It's like the Miller Analogies Test. You remember, A is B as C is to ___.

A few years ago, I was talking to a friend of mine from Texas who said that we were lucky up here in Ohio. In Texas, they'd been fighting for years to get proportionality review into the law. I said we'd been trying to get it, too.

See, Ohio courts have conducted that review hundreds of times. They have never found a death sentence disproportionate. The reason is evident when you look at how they do it.

They refuse to consider cases where a death sentence was not sought or where it was rejected. Those cases, the Supreme Court declared (in State v. Steffen - sorry, I don't have a link to a free copy), are obviously not similar, because if they were, the person would have been sentenced to die.

So the question is never "Why this guy?" Rather the question is, "Did the legislature allow death for this guy?" And that means no death sentence that's otherwise legal can be disproportionate. The question prohibits a finding of disproportion.

Which brings us to Jason Getsy.

He's on death row in Ohio. He has a very real execution date of August 18. And yesterday, by a 5-2 vote, the Parole Board recommended that the Governor grant him clemency and commute his sentence to life without parole. The Board's opinion makes clear that proportionality was the key issue.

Unlike the Justices of the Ohio Supreme Court, a majority of the Parole Board thought what happened to Getsy's co-defendants, all of whom got life sentences, was relevant, and that while he may have been one of the most culpable, he didn't act alone and wasn't more culpable than another who got life. As the Board's report (available here) explains the majority position,

In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants.

That's a consideration that the two dissenter's rejected.

There has been much discussion by the courts and this Board regarding proportionality review and disparate sentencing. "Proportionality, as defined by the Supreme Court, evaluates a particulr defendant's culpability for his crime in relation to the punishment that he has received."

There you have it.

Either you ask if the sentence proportional to itself, a tautological question which provides its own positive answer and guarantees that the statutory obligation to review sentences for proportionality will be a sham, or you ask a real question.

This time, the Parole Board got it right. Now it's up to Governor Strickland.