Tri-State Roundup

KANSAS

The Judiciary Committee of the Kansas Senate voted 7-4 to send a death penalty repeal bill to the floor for consideration by the full senate. If enacted (reports say that's unlikely), the bill would change the law effective July 1 so that what are now crimes punishable by death would, instead, be punished by life without the possibility of parole.

Of the seven who voted to send the bill to the Senate floor, five are Republicans and two are Democrats. That's the sort of alignment you won't be seeing in Washington on anything much.

According to Prime Buzz, a blog from the Kansas City Star, one of the Democrats is David Haley.

Haley, a longtime death penalty critic, noted that today is Kansas Day, the 149th anniversary of Kansas joining the union as a free state.

"I'm reminded of What Kansas is, and what we stand for," he said. "We have values in this chamber, and as a state, that I hope we live up to."

If Kansas were to repeal the law, it would join New Jersey and New Mexico in having done so legislatively. Like those states, Kansas has a comparatively small death row and hasn't actually executed anyone in decades. Still, the law is specifically written so that it would not affect the 10 men currently on death row. Can't do any favors for the capitally sentenced.

TEXAS

As Kansas moves, however fitfully, toward abolition, Texas buries its head deeper in the sand.

The Forensic Science Commission met today and did nothing for a number of hours except get jerked around by Governor Perry's hand-picked chair, John Bradley. The Innocence Project ran a live stream of the meeting on its web site. Alas, it seems that they haven't made it available for later replay, but Scott Henson at Grits did a great job live blogging.

As we learned the other day, the meeting was about procedure rather than substance. Bradley crafted a batch of rules for the Committee, sent them to members last night, and pretty much rammed them through over the course of several hours today. No cases got discussed - certainly not Cameron Todd Willingham's. And Bradley's "rules" seem designed to ensure that few cases will ever be examined by the Committee - which is, of course, the point.

OHIO

Mark Brown's execution draws ever closer.

The Ohio Supreme Court has not decided whether to grant a stay. The Governor has not announced whether he'll give clemency (don't hold your breath on that one). Judge Frost said that Brown could join the pending lethal injection case. He didn't say whether he'd issue a stay of execution.

What's the Rush?

Tomorrow, January 28, it will be 16 years since Hayder Al-Turk and Isam Salman were murdered at the Midway Market.

At 10 a.m. on February 4, just over 7 1/2 days from now, the State of Ohio intends to murder Mark Brown for having killed Salman. There's just one problem. It looks like he didn't do it.

Here's what we know. Shortly after the killings Brown and Allen "Boonie" Thomas were arrested for the killings.

Boonie got a plea deal. His charges were reduced from aggravated murder to obstruction of justice and tampering with evidence. He wasn't obligated to testify, and he didn't. He was sentenced to serve at least six months in the custody of the Department of Youth Services, but that sentence was suspended, he was put on probation and allowed to serve that in California, altogether out of the way. He'd been there for over a year when Brown went on trial for killing Al-Turk and Salman.

At Brown's trial, Marcus Clark and Myzelle Arrington, two juveniles, testified that Brown was alone in the store when both Al-Turk and Salman were killed. Brown, who admitted killing Al-Turk from the time he was arrested but who always denied killing Salman, was convicted of murdering both of them.

The way Ohio law works, Brown was separately sentenced for each murder. He got life for the killing of Al-Turk. He got death for Salman's murder.

After that, it was the usual run of things. Appeals failed. Post-conviction hearings failed. Habeas failed. Except that there was this curious thing nobody ever followed up on. Arrignton recanted. He said he lied on the witness stand.

Finally, and alas just recently, Brown's latest set of lawyers saw Arrington's letter recanting his testimony. They asked for a new trial. And you know, once you start down that road, things happen. The prosecutor's office turned up a letter from Arrington, from back in 1995, asking for special treatment in exchange for his testimony. They should have given that letter to Brown's counsel then. The finally did in December. Then, just this month, Clark recanted his testimony.

There was a hearing. The judge took testimony from Arrington and Clark, but refused to hear testimony that would have shown why their recantations were credible. Without the testimony the judge refused to hear, he decided that he wouldn't believe the recantations. Brown appealed.

But you see, he's supposed to be killed in just under eight days. That's not enough time for a fair review. In December, before the hearing, Brown's lawyers asked the Ohio Supreme Court for a stay so that he could prove he was innocent. They renewed and supplemented that request today. The state, of course, is opposed.

Brown is set to be murdered in just under 8 days for the Murder of Isam Salman, a man who, it looks like, he didn't kill.

You might think it's worth taking the time to be sure. You might think that getting him dead is less important than making sure we don't kill him for a crime he didn't commit. Of course, what you might think doesn't count.

Unless you happen to be a Supreme Court justice. Or the Governor.

Third Try on the Cult of Celebrity

I've obviously struck a nerve.

I'm taking one more shot at this, and then I'll just let the commentators have at it (and thank you, by the way, for reading and commenting - even if it's to tell me that I'm full of shit).

Mumia's not an empty celebrity, not a mere celebrity. But he is a celebrity. Like it or not, he gets far more attention than the overwhelming number of folks on death row in the U.S., and it isn't because his case is so much more outrageous.

Same for Troy Davis and Kenneth Foster and probably a couple of dozen others, by the way. Each of the small number of men and women who get international campaigns mounted on their behalf because they're articulate or attractive or caught the attention of someone or some group who gathered the time and money and organization and worked tirelessly on their behalf.

More power to them.

But don't tell me they aren't celebrities. They are. The particular attention they garner, that's garnered for them, the sheer quantity, virtually defines celebrity.

I'm not saying they should be ignored or that their supporters should stop. (Frankly, I'm not telling anyone what to do.) I'm not saying they do no good. They do. Sometimes the attention even saves, or helps save, their lives.

What I'm saying, simply, is that there are some 3,279 men and women on death row in the United States. Probably fewer than 100 - whatever the number it's a small percentage - have any sort of significant public or media attention. Their lawyers (if they have lawyers and if the lawyers are any good) struggle to find the resources they need to mount anything beyond the most cursory defense.

(In one case, I asked a federal court for the money for arson investigator since there was at least some question of whether my client actually committed arson. The judge said no. The state's arson investigators said it was arson, so mine would agree, so there was no point. That's how it really works, folks.)

I'm not suggesting that Mumia or his supporters don't care about that. I'm not suggesting that they aren't using his star power on behalf of all the condemned. I'm not criticizing anyone.

I'm just noting that, for instance, when the judge in Ohio yesterday declared that he didn't believe that the witnesses against Mark Brown who recanted their testimony and, therefore, saw no reason to do anything to prevent or delay Brown's execution 2 weeks from today, it didn't make the New York Times or CNN or Le Monde.

Pretty much nobody noticed. Pretty much nobody cares about Mark Brown, or even knows who he is.

I don't represent Brown, never have. I have no particular stake in his case. But he's the next guy up. Not just in Ohio, but in the U.S. And right now he needs all the help he can get. So does Alabama's Robert Bryant Melson due two weeks later. So did the guys in December. And all the rest of the ones you haven't heard of.

Mumia'd like to save them. So would his supporters. So would I.

But one way to help try to save them is to notice them. The focus on celebrity, makes it harder in some ways. The big trees obscure the shrubs. How many people know which is the ninth tallest mountain in the world? The seventh brightest star in the sky?

The focus on celebrity as a means of saving the ordinary folks is a hope for deus ex machina, and it rarely works that way.

The celebrities have powerful voices - hell, that's partly how they become celebrities. They address a big picture which needs to be addressed, but they model a false one.

Again, most of the men and women on the row aren't altogether innocent. Most aren't articulate, most aren't saintly. Most have nothing much to recommend them except that they are human. To take just a bit of a speech from Shylock:

I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die?

And so they are, those men and women on the row.

It used to be (I'm going back 10 or more years now, I think) that the on-line abolitionists engaged in constant, too often mean-spirited debate about the proper arguments to be used in advocating for abolition. You must argue religion, some said. No, you must deny religion. You must argue only morality. No, ignore morality and argue only innocence. Or only cost.

I was part of the cadre saying there was no single right approach. You argue whatever will move this or that audience. What matters is ending the killing and saving the lives, not insisting that those things should only be done by a world that shares a single motivation for it. "Let a hundred flowers bloom," I said, quoting Mao and looking to the announced idea if not the down and dirty reality.

I was wary then of the cult of celebrity and I'm wary of it now. I don't want to stop Mumia and his supporters. I just want to spread the energy about. To Mark Brown, to Robert Bryant Melson, to the 3278 other individuals, each of whom shares collective reasons, but also has individual ones, why he or she ought not be murdered by the government.

So I guess the charge that mine is an old point is right.

Mumia, Jesus, and Bortella Philisten

An anonymous commentator was put off by my comments about Mumia.

I don't understand the anti-Mumia resentment. Seems more grounded in hostility to his supporters than anything else. I have worked on behalf of many people on death row, not really on Mumia's, but I respect and admire his supporters and their efforts. They should keep up the good work.

I started to write a responsive comment, but decided to do this instead.

I suppose I wasn't as clear as I might have been.

I'm neither anti-Mumia, nor anti-his supporters. I have enormous respect for both. They're articulate, passionate. They raise important issues of race, class, and social justice. Of course they should keep up their work.

But I'm troubled that the cult of celebrity drowns out the cases of those less charismatic. They, those without charisma, without followings, are after all the vast majority. Singularity, exceptionalism, can be rallying points. But they can also be distractions.

Give us the resources and energy that have been pumped into Mumia's case over the past 28 years or so and see what we can do for numbers of others. I don't mean that exactly the way it may sound. But why him? Or, more precisely, why not, say, Bortella Philisten? He's also on Pennsylvania's death row, also for the killing of a police officer. He's been there for about 15 years now.

Do you know anything about the case? Probably not. Ever heard of him before? Probably not. Are the international forces of nobility out marching and rallying on his behalf? Probably not.

Did he get a fair trial? Probably not. Is there evidence that he might be innocent? I have no idea, but it wouldn't shock me. Why aren't the glamorous folks out there holding fund-raisers for him?

I just pulled Philisten's name off a list. I don't believe I've ever heard of him before, either. And that's the point.

I'm not suggesting, have not suggested, that Mumia doesn't deserve attention. But so do all the others. Philisten and Ohio's Mark Brown and the rest. All of them. Mumia's no more important than they.

Jesus was not the only one the Romans crucified just then. But the only one of the others we know is Barabas - who received clemency. And for that Jesus preached about social justice, his celebrity took root a whole lot more than his message. And, of course, he and the others (except Barabas) were executed.

I don't mean to denigrate Jesus, either. But look at all the anonymous others who got killed while the focus was on him. Then ask:

What would he do?

Death Row Celebrity

I've always been wary of death-row celebrities.

I'm talking Mumia Abu-Jamal, and if you don't know the tale, well, here is the very short version.

Daniel Faulkner, a Philadelphia police officer was shot and killed in December 1981. Mumia, a part-time cab driver, radio journalist, Black Panther Party member, and general pain in the ass was convicted of the killing and sentenced to die.

Because the trial was so ostentatiously unfair, and because Mumia himself is so damned articulate, and because he insists on his innocence and there's a fair amount of evidence to support that claim, he's become an international cause célèbre, the most famous person on death row.

His supporters, and there are many, insist he was railroaded. Many have resolved the case for themselves: He's innocent, they proclaim.

But his detractors, including the government, the cops, and the Faulkner family, insist that he is guilty and should have been killed years ago.

Mumia's been litigating this mess for close to 30 years now, through loss after loss. And then, in March 2008, the Third Circuit affirmed his conviction but said his sentencing was unconstitutional and needed to be redone. Everyone was unhappy. Mumia's supporters insisted he should have had his conviction reversed. After all, he was innocent. And his trial was unfair. His detractors were livid that he might not be killed. So both sides asked the Supreme Court to hear the case.

In April last year, the Court refused to hear Mumia's appeal. No new trial. But still, there was that life rather than death sentence. Where there's life there's hope. Who knew what might happen down the road.

Of course, the state had appealed the reversal of the death sentence. But the Court didn't act. The state's appeal languished. And languished. And languished. For nearly a year.

There was another case, out of Ohio, raising a similar similar sentencing issue, Smith v. Spisak. As with the jurors at Mumia's trial, the jurors at Frank Spisak's trial were not told that they did not have to agree unanimously about the existence of mitigating factors before they could be weighed in favor of life. Like the Third Circuit in Mumia's case, the Sixth Circuit reversed Spisak's death sentence. Just as Pennsylvania appealed the circuit court's decision in Mumia's case, so Ohio appealed the circuit court's decision in Spisak's.

Last week, Spisak lost. Today, the Supremes vacated the Third Circuit's decision in Mumia's case and sent it back for reconsideration in light of Spisak.

Another day, another loss.

According to the Death Penalty Information Center, which keeps careful records, there are today 3279 men and women (mostly men) on death row in this country. Mumia Abu-Jamal is just one of them, one of 225 in Pennsylvania. Most of them have cases in process in one or another court. And the decisions in those cases, especially the sort of look-at-it-again we're-not-even-bothering-with-an-opinion decision the Court issued today in Mumia's case, get almost no attention outside the local jurisdiction.

The decision in Mumia's case will be noted around the world.

Like I say, I've always been wary of death-row celebrity.

Their supporters ("fan club" is the term Kent Scheidegger used for Mumia's yesterday; one sometimes hears "groupies") claim innocence because they believe all exculpatory evidence and disbelieve all inculpatory. They insist somehow on heroic status. They trumpet too much. And if the case goes south (see Roger Coleman, for instance) it just provides ammunition for the retentionists.

Besides, celebrities are a distraction. Let's be honest about this for a minute.

The vast majority of the people on death row (and nobody knows the percentage) did something at least close to what they are there for. They killed someone. It wasn't justifiable by any reasonable calculus we might use. And there's nothing heroic about them.

They're sad cases: inarticulate, often nearly illiterate, frequently mentally ill, too often still with mental retardation. They were victims as children of physical abuse, sexual abuse, psychological abuse. They are, in the words of Ohio's Chief Justice Moyer (alas in dissent) describing one of my former clients, "destined for disaster."

They are the disposable children of disposable families. The dross, the waste

They are - even the smart, talented ones, the ones who love and are loved - they are all damaged goods by the time they get to the row, certainly after they've been there for a while.

These are our clients, those of us who do this work.

Mumia, Stanley "Tookie" Williams, Karla Faye Tucker, Shaka Sankofa: these are the oddities. They suck the energy from the movement. Their exceptionalism belies the reality of the rest. And as Tookie, Karla Faye, and Shaka learned all too well, exceptionalism doesn't save them either. And it doesn't end the killing.

So I've been wary of death-row celebrity.

And yet, Mumia's loss (and it seems clear that death is now for him the almost inevitable outcome) resonates. Not more than the others. Not with the personal force of the loss of one of my own clients or the client of a friend. But in other ways.

His voice has been an affront to the system. His supporters particularly committed to a political struggle on behalf of the dispossessed and downtrodden. He's been the figurehead of a social movement that's larger than death row. That's his weakness as an icon, but his strength, too.

When I was in college, earnest young socialists would come to town, spend the night in my living room writing manifestos and then go to the mills and try to organize the unionized workers. They expected great support. They routinely got the shit beaten out of them by those they saw as their natural allies. Socialist theory goes only so far before it butts up against the stark reality of workers who don't see the world as class struggle.

And so it is for Mumia and his supporters.

They have truths to tell. Big ones about racist society and power and corruption. Smaller ones about unfair trials and cursory rather than substantive judicial review. And questionable ones about, say, factual innocence.

Those are important truths, all of them. But they end up getting muddled around the question of innocence.

Death row is a symptom of social failure. But it's a lousy proxy for it.

Mumia's is a powerful voice crying out against injustice. But he's also just another of the men on the row who ought not be murdered by the government.

There are 3,278 others just like him. Except without the fan club.

Save Mumia. By all means, save him.

But the next man with an execution date (February 4) is Mark Brown, here in Ohio. Nobody much has heard of him. Two of the witnesses against him have recanted their testimony. Yet you see no international outcry. There are no headlines in London or Paris or Rome. Archbishop Tutu hasn't spoken. Bianc Jagger hasn't appeared. The Pope hasn't weighed in.

Save Mumia. But save Mark Brown first.