The Deserving

It's been decades since I underlined or wrote in the margins of books, really dating back to some point when I was in college and began instead writing notes on bits of paper and stuffing them into the binding.  These days I use sticky arrows reaching out beyond the edges of the page pointing to what I'd once have underlined and post-it notes to take the place of marginalia.  That's all personal preference for keeping books in pristine condition.  

And, of course, it's a moral obligation when I'm dealing with borrowed books whether from friends or, more often, libraries.  

Either way, when I've finished the book, I'll review the notes and marked passages to decide whether to keep them in place if I'm going to hang onto the book, or, if the book is borrowed or going to be passed on to a friend or colleague, whether to copy and save them.  Mostly they get tossed.  Helpful for focus when reading and sometimes reviewing, but not demanding to be kept in perpetuity.  Except sometimes.  Like now.

Which brings me to Elizabeth Vartkessian.  She's a mitigation specialist.  She works with lawyers in (mostly) death penalty cases digging out everything there is to discover about the history and background of the accused or, often, the already condemned and his (mostly his) family and circumstances.  Going back generations.  She'll spend hours and hours - over the course of years or even decades, getting to know and connect with the guy (again, it's mostly guys) and his parents and siblings and classmates and teachers and counselors and prison guards and . . .  basically with anyone and everyone who might have something, anythinbg she can learn about not just what he (there's that mostly correct pronoun again) did but about who and what and why and how and from where and . . . .

The idea is to be able to show the jury or a court or a parole board or governor (or President) why despite having done something awful, there's value in the person - enough value to prevent - or reverse - a death sentence.  

To advance that work, Vartkessian founded Advancing Real Change, Inc. which is described this way on its website (advancechange.org):

We unearth the true histories of people accused of crimes and share their stories with decision-makers to foster empathy and understanding. We aim to take what we learn through this work—mitigation investigation—and uplift those experiences to reshape and rebuild social systems so that communities and individuals may truly flourish. Our vision is the transformation of the criminal legal system and all social systems into systems that deliver true justice.

.  . . . . . .

Vartkessian is, as I suppose is obvious from what she does, opposed to the death penalty.  If you somehow didn't know it before, you certainly would after reading her quite amazing and wonderful new book, The Deserving: What the Lives of the Condemned Reveal About American Justice.

Start with me.  I'm known in some circles, as the atheist who believes deeply in mercy and grace.  Mercy is not something earned, I say, it's something given.  And grace, like mercy, is about the giver, not the given.* (Or maybe sometimes both, but don't quibble.)

And there's Sister Helen Prejean who says (and who, as it happens, wrote the Foreword to Vartkessian's book where she in fact repeats it though phrased a bit differently),  "We're all better than the worst thing we've ever done."**

And so Vartkessian tells us (with an assist from my post-its):

[W]e cannot incarcerate our way out of violent crime. (p. 18)

William's words hung in my mind.  Have a good life.  His lawyer would, and so would I.  We would have those lives simply because we were lucky enough to be born to parents whom society valued more.  It wasn't fair.  (p. 109)

American culture[***] considers inhumane treatment part of the punishment.  We take freedom, but we also take a person's humanity.  And by allowing ourselves to treat others as something less than human, we take the humanity of everyone involved in the enterprise of housing the incarcerated. (p. 191)

It's about us, not them. (post-it)

So many moments in a life when, had the focus been genuine care and concern, the scales might have balanced differently.  That wasn't something I knew until I started working with people who had killed; how grace and love did more to transform a person than anything.  Genuine human conncection- authentic, messy, hard - is the most powerful and restorative force in human existence. (pp. 205-206)

Wes caused a great deal of suffering.  He also gave a tremendous amount of love.  When we take a life, we take the whole life, including the good, which exists in every single human being and just needs the right conditions to emerge. (p. 214)

[T][he criminal legal system cannot deliver an end to suffering.  But we cvould have build a society that prevent it in the first place. (p. 221)

I could go on.  Hell, I could quote the whole book (though I suppose I could also get sued for copyright infringement).  Instead, I urge you to read it.

Those of us who toil in the trenches of criminal defense - and especially death penalty defense - know all of this.  But the reminders, the stories Vartkessian tells, the reminders that we must care, that it takes a village and we're all in it together, and yeah, the tears she jerks, they make it worth our reading.

And, really, others should read it too.  To learn.  To understand.  To grow they're own compassion.

You know.  Mercy and grace, about the giver, not the given.

The Deserving?  It's all of us.

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*That's from one of the post-its I put in the book.

**She doesn't add my corollary,  "We're all worse than the best thing we've ever done."  But it's her quote and the point she regularly, and rightly, wants to make.  (Another post-it I stuck in the book, by the way.)

***As opposed, she points out, to Scandanavien culture.

For a Chance To Chat

It was February 1997 when Doug Gissendaner was found stabbed repeatedly, murdered, in a remote wooded area of Georgia, about a mile from where his car was recovered.

He'd been missing for a week.

Gregory Owen pleaded guilty to the murder. But he was, according to the prosecutors, just the instrument.  All he did was kill.  The, er, mastermind was Kelly Gissendaner, Doug's wife.  She and Owen were having an affair.  He wanted her to divorce Doug.  She wanted Owen to kill him.  

Greg's doing life.  Kelly's on death row.  She's to be killed today.  She'll be the first woman in Georgia to be executed in 70 years.

This isn't about her.  It's about her daughter, Kayla, who was 7 at the time.  Kate Brumback in the Washington Times quotes a letter she wrote to the Parole Board.

My father’s death was extremely painful for many people, but I’ve recently concluded that in many ways I was the person who was most impacted by his murder. 

Her father's death was, she said,

the most painful experience of my life.

She wrote in the letter about her bitterness and anger.  She wrote about how she wanted no contact with her mother.  Which you've gotta say is hardly surprising.  

But she, and her brother Dakota who also wrote, talked about how that has, over the years, changed. They have, in Brumback's words, formed meaningful relationships with her now.  Kayla:

The impact of losing my mother would be devastating. I can’t fathom losing another parent. 

Years ago, I listened as members of a capital jury explained how it is that they'd decided against sentencing a woman to death for ordering the contract killing of her husband.  In that case, their children had testified against their mother, had talked to the jury about how what she'd done had destroyed their lives.

And yet the jury voted for life.  Not because the mother didn't deserve to be killed, they said.  Not because of anything about her.  But because, finally, those jurors concluded, that someday the kids might want to know just why their mother had their father killed.  Someday, those jurors concluded,  
her children might want to ask their mother about it.  Someday, those jurors concluded, her children might just want to talk with their mother.  

If she were dead, they wouldn't have that chance.

Kayla and Dakota Gissendaner would understand. 

The Sixth Circuit, By Vote of 2-1, Demonstrates That It Doesn't Believe Ohio Law Applies in Ohio

it is a peculiar provision of Ohio's death penalty law that what's referred to as the "nature and circumstances of the offense" are relevant considerations only if they weigh in favor of life rather than death.

If you favored the death penalty and were designing a death penalty law (as a bunch of legislators - including one who is now a justice on the Ohio Supreme Coury - did back in 1981) you'd do it the other way around.  If the crime is particularly horrific, say if the person getting killed is slowly tortured to death or burned at the stake or eviscerated while alive or something, that would go into the hopper as another reason to weigh in favor of putting the killer to death. But in Ohio, those things don't count unless evisceration or torture makes the crime and the criminal less worthy of execution.

Like I say, it's peculiar.  But it's what the statute written in 1981 says, and it's absolutely what the Supreme Court of Ohio said in 1996 in a case called State v. Wogenstahl:

Therefore, R.C. 2929.04(B) clearly mandates that the nature and circumstances of the offense may only be "weighed" against the R.C. 2929.04(A) specifications of aggravating circumstances the defendant was found guilty of committing.

(The boldface in that quote is mine, added for emphasis.)

Now Wogenstahl, and that rule specifically, are definitively the law in Ohio.  Except that the federal courts don't believe it.  The 6th Circuit, the federal appellate court that covers Ohio, has made that clear for a while, refusing even to acknowledge the existence of Wogenstahl.  Which brings me to Archie Dixon.*

This morning, in its decision in Dixon v. Houk, the 6th Circuit affirmed the district court's decision to deny Archie relief.  It's OK, the panel said by a vote of 2-1 the State of Ohio can go ahead and kill Archie for the murder of Chris Hammer.  Sure, the trial judge wrongly kept mitigating evidence out.  But hey, we don't care.

 Here's how it happened (and you can glean only some of this from the opinion).  Archie's trial lawyers had four things they wanted to tell the jury in mitigation.  They also had two reports about Archie, one from a psychologist and one from a mitigation investigator.  They could have called those folks, introduced their information into evidece, but they decided they didn't want to do that.  Just those four things.  

Then the trial judge said that they couldn't tell the jury three of the four things they wanted the jury to know.  Instead of reconsidering the decision not to use the information from the reports (now that their 3/4 of their 4-fact mitigation was shot down), they went just with the one thing the judge had said he'd allow.  The Ohio Supreme Court said that they should have been allowed to tell the jury about one of the things the judge forbid, but also said it wouldn't have mattered so the hell with it.  And those reports the Ohio Supreme Court refused to consider and the 6th Circuit wrongly said were never presented to the state courts?  Well, but nobody tried to put them before the jury.

Anyhow, the 6th Circuit said, it wouldn't have mattered.

On the other hand, mounds of aggravating evidence were presented at trial,which easily outweighed the value of Dixon’s scant mitigating factors. He brutally beat Hammer, attempted to break his neck, bound him to a ladder, drove him into a wooded area, allowed him to smoke a cigarette and say a prayer, and then buried him alive. The details of the kidnaping, robbery, and murder easily outweigh any effect that the evidence offered by Dixon would have had on the jury.

In other words, the crime was so bad, the nature and circumstances of the offense so horrific, that --

WAIT A MINUTE - THAT SHIT'S ONLY RELEVANT IF IT MAKES A DEATH SENTENCE LESS APPROPRIATE.  YOU FOLKS ARE PUTTING IT ON THE WRONG SIDE OF THE SCALE.

Well, yeah.  It's only sensible.  The worse the crime, the more horrible, the more death is appropriate.

BUT THAT'S NOT OHIO LAW!!!  THAT'S EXACTLY WRONG!!!

To which the 6th Circuit, without ever acknowledging that it has Ohio law wrong, says simply, 

Kill him.

Which might make sense.  But isn't the law.

Oh, wait.  It is.  Not Ohio law, of course.  It's the 6th Circuit's law, which they say is what Ohio law must be even if it's not.  Because the 6th Circuit can do that.

Law of Rule.

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*I need to be careful here.  I represented Archie for many years, and I don't want to let that cloud my judgment, nor do I want to write anything that hangs on or comes to me from my representation.  But there's a point that I want to make and Archie's case is the perfect vehicle for it.

When a trial judge suppressed his statements to the police (a detective testified that they didn't give him his Miranda rights because they were afraid if they told him he had a right to refuse to speak with them he would refuse to speak with them), the state appealed, and the judge appointed me to defend his decision.  (The court of appeals twisted the law and the facts in order to reverse and declare that the statement was admissible.)  After Archie was sentenced to die, the trial judge (not the same one who suppressed the statements), appointed me to appeal his conviction and sentence, which I did in the court of appeals and then in the Ohio Supreme Court and then in a petition for writ of certiorari to the U.S. Supreme Court. 

And a Little Child Shall Lead Them - Unless the Judge Won't Let Her

A Connecticut judge will hold a hearing later this month to determine whether a 9-year-old girl can testify about her father -- who has called a "monster" in newspaper headlines -- in an effort to save him from being sentenced to death. 

So reports Anne-Marie Dorning for ABC News.   Which raises the basic question:

What the fuck?

It's maybe relevant that the father here is Joshua Komisarjevsky who, along with Steven Hayes, raped and pillaged and burned and killed in the home invasion of the Petit family.  No, really it isn't relevant who the father is except that by all accounts he loved his daughter.  

OK, the kid is 9.  In Ohio, that would mean that the judge ought to determine whether she's competent to testify.  That's because of Ohio Evidence Rule 601 which says 

Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

The Ohio Supreme Court said that to decide whether a child is competent to be a witness, the judge must hold a hearing and then consider

(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. 

I'm not a Connecticut lawyer and don't know whether Connecticut has a similar rule.  But whether it does or not, the girl's competence apparently isn't the issue the judge will be taking up. Instead, the judge will be trying to decide, or so it appears from Dorning's report, whether letting her testify will be in the child's best interest.

An attorney hired to represent the girl, Raymond M Hassett, would not say whether or not he is in favor of the girl testifying, although he has submitted a motion to quash the subpoena. But Hassett told reporters outside the courtroom today that they "shouldn't read too much into that" because he would "leave it up to the court to weigh all the factors."
Those factors would no doubt include the psychological impact on the girl of testifying and the type of questions she would have to answer. Blue is expected to hear testimony from a mental health professional during the closed door session on Nov. 14.
. . .
A number of studies have been done on the effects of testifying in a trial on children. "Criminal court testimony is associated with fear and anxiety for a substantial subset of children," according to a study done in the 1990's at University of California, Davis. "The adversarial, formal, and possibly even hostile court environment during a hearing and especially a trial is a source of a child witnesses' fear and distress."

The law is, at least formally, solicitous of what it grandly refers to as "the best interests of the child."  (That's the law, not necessarily judges, as anyone who's seen the horrible video of a judge beating his 16-year-old daughter, like Mark Bennett I couldn't watch the whole thing, can attest.)  And I suppose it might be hard on a 9-year old girl to get on the witness stand, look at a dozen jurors and a courtroom filled with haters and reporters and Dr. Avenging-Angel Petit and they all think her dad is, well, monster is probably too positive a term, and say to them 

Please don't kill my daddy.

Sure that might be tough on the kid. Dorning reports that

[a]lthough it is becoming more common for children to testify in court, it is almost unheard of for a child to testify in a death penalty sentencing hearing. 

Almost, perhaps.  But not unheard of.  We did it in a case about 10 years ago, though only after serious debate and with great care.  It's the sort of thing that can easily backfire.  If the jury thinks it's a cheap trick at the expense of the kid, that's just one more reason to think the father deserves to die.  On the other hand, it can be, and was in the case where we did it, incredibly moving testimony.

But all of that is, ultimately, beside the point.

Here's the point.  Komisarjevsky has a right, an absolute right, to provide the jury with any evidence relevant to whether the death penalty is appropriate in his case.  As the Supreme Court explained in Lockett v. Ohio, at a capital sentencing proceeding, the defendant must be allowed to present and the jury allowed to consider

as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

And of course the Sixth Amendment assures him the right

to have compulsory process for obtaining witnesses in his favor

Really, there's no question that the law allows him to call the child as a witness.

But what about what's good for the child?  Doesn't that matter?  What about this story reported by Dorning?

In 2001, in Los Angeles, four children were called by a prosecutor to testify against their father, Marco Barrera, who had been convicted of killing several of his other children. The situation caused outrage among child advocates.

Yeah?  What about it?

First, the prosecutor doesn't have a constitutional right to put on whatever evidence it might like that the guy should be killed.  Second, and really this shouldn't be hard to grasp, there's a difference between asking a child to urge the jury to save her father's life and asking it to kill her father.  Damn right that those advocates were outraged.

But even if they'd be outraged by Komisarjevsky calling his daughter, it shouldn't matter.  The law really is clear that he has a right to do it.

I said before that I'm not a Connecticut lawyer.  I also have no inside information about the defense strategy.  And I haven't read any of the filings in the case.  I don't know, except what I can glean from the press reports, why the judge has called for a hearing, what's on his mind, or what issues have been raised regarding the child's possible testimony.  What I know is that the law on the subject is remarkably clear.

Komisarjevsky's aunt testified that his execution "would not be good for his daughter."  

And so I have to tell you about Brian and Barbara Siler and their son Nathan and the Honorable Jeffrey Runyan.

In 2001, Brian Siler brutally murdered his estranged wife Barbara.  During the investigation of the crime, police took statements from the couple's three-year-old son Nathan.  

an officer testified to those statements at trial, and they pretty much assured Brian's conviction of aggravated murder with death specifications.  The jury said Siler should die, but Judge Jeffrey Runyan thought otherwise. 

In sentencing Siler to death in prison (LWOP), the judge explained in thorough and moving detail, why the aggravating circumstance did not outweigh the mitigating factors and how it is that a death sentence would disserve the memory of Barbara Siler.

Then he said this.

The final and determinative mitigating factor is Nathan Siler. Nathan is the one party here who bears no responsibility whatsoever for his mother's death.
The court must inquire objectively what sentence is in the innocent Nathan's best interests?
At some point in his future, Nathan will undoubtedly begin to blame himself for his mother's death. Is there something I could have done, he will say. That's human nature. But there is nothing young Nathan could possibly have done to save his mother.
Now young Nathan's words through the testimony of an officer have convicted his father. But today this court stands between young Nathan and the thought that he has caused his father's death as well. That would be a result of this case that is unthinkable.