It's an Accusation So It Must Be True

There is one and only one piece of evidence that it was Danny Brown who raped and murdered Bobbie Russell in December 1981. Her son, Jeffery, six-years old at the time, said it was.

Danny spent 19 years in prison.  Then the DNA came back.  Wasn't him.  It was, the DNA said, Sherman Preston.  That was no surprise since around that time Sherman was implicated in a number of related crimes - always acting alone.  In fact, by the time the DNA came back, he was serving a life sentence for a similar crime just a little bit earlier - a crime for which he was convicted in large part based on DNA.

Danny got out.  The prosecutor dismissed the charges.  Innocence triumphs.  It was a great day.

Except.

An investigator from the prosecutor's office had located Jeffery and went across the country to talk to him.  Now 27, he said now what he'd said then.  It was Danny he saw do that to his mom.  And Julia Bates, the elected prosecutor who'd gone into court to personally announce that she was dismissing the charges against Danny because no jury would find him guilty what with the DNA and all, maintained then and maintains now that Danny Brown in fact killed Bobbie Russell.

Because Jeffery.  Because Jeffery was 6 when it happened.  Because he was 7 when he testified. Because even though his testimony included things that obviously were not so, that were physically impossible (he claimed to see things on the other side of solid walls from where he was) he told the truth about seeing Danny do that to his mom.  Because, as she told Jennifer Feehan in the Toledo Blade five years ago when asked if she thought Danny was guilty

Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes.

"I do," she said. "I don't think little kids lie."

I thought then and think now that it was one of the stupidest things anyone has ever said.  Kids in fact lie all the time.  The dog ate my homework.  And of course, they're wrong a lot.  Even when they believe things.  (Again, Jeffery testified to several things that were demonstrably false, physically impossible.)  And that he still believes?  Sure.  That happens too.

The first time I wrote here about Danny's case, I told this true story:

Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.

Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.

Julie Bates, whatever else, is not stupid.  Yet "I don't think little kids lie."

What she meant, of course, is that she believes them when they accuse.

Which brings me, in my typical elliptical way, to my subject, Richard Beck's compelling but flawed new book, We Believe the Children: A Moral Panic in the 1980s.  

February 1984, KABC-TV News in Los Angeles included this breathless report on the investigation into allegations at the long-established, highly regarded McMartin Preschool:

Authorities now believe that at least sixty children were victimized. . . . [They] had been keeping a grotesque secret of being sexually abused and made to appear in pornographic films while in the preschools's care and of being forced to witness the mutilation and killing of animals to scare the kids into being silent.

Wow!  And then it turns out that the same things were happening at day cares and preschools across the country.  But worse.  Kids were being forced to eat body parts of murdered children.  Eyes were plucked out.  Satan worship.  Bodies buried in and around the facilities.

Hell of a story.  And, I should add, pretty much entirely bullshit.

Except everyone bought into it.  Police, prosecutors, juries.  Parents, god knows.  Doctors made up tests from which they could tell, tell for sure, that what was perfectly normal in a child was hard evidence of abuse.  Social workers and psychologists and psychiatrists and cops and parents coerced children into making up more and more outrageous stories.  

Sure there was no evidence.  The dead animals weren't found.  The missing and murdered children don't seem to have been missing or murdered.  The pornographic films (or the studios where they were made) weren't discovered.  The gouged out eyeballs and lopped off body parts don't seem actually to have been gouged or lopped.  But the press dutifully (and enthusiastically) reported as true.  And juries often believed.

Because like Julie Bates, nobody could believe that little kids would lie.  At least not about something really awful being done to them.   And after all, the more you had to threaten them for not telling or reward them for telling, the more obviously true the allegations.

It's that story, built around the McMartin fiasco that started it all, that frames Beck's book.  He's not the first to tell it, but he tells it well.  From the allegations to the investigation to the trials and then the unraveling as it became clear that the absence of evidence really wasn't evidence of guilt.

And as he tells the McMartin Preschool story, so Beck tells of the national hysteria that ensued. Because if the Golem came to LA in the guise of Peggy McMartin, it must be in a Long Island basement masked as the Friedmans and dressed as James Rud at the Valley Green Trailer court in Jordan, Minnesota, and in Niles, Michigan and Malden, Massachusetts and Chicago and. . . .

Good god!  These monsters were everywhere destroying the lives of our children.  And the evidence was, of course, that the children could be browbeaten into saying so.  And that, stunningly, all the real evidence - the films, the ritually slaughtered animals and children, the hidden tunnels, the lopped off limbs - none of it could be found.  How diabolical!  And how much that proved.

For its considerable strengths, We Believe the Children is not without its weakness.  

Trying to find an underlying cause, Beck turns to the woman's movement and the increasing role of women in society.  The religious right and social conservatives glommed onto the idea of evil daycare as a way of punishing women who'd abandon the role of housewife and take an actual job - forcing her children into the day care clutches of committed Satanists.  My god.  He may not be entirely wrong, but it's overly simplistic as most here's-the-cause explanations tend to be.  (As others have noted, Beck's evidence doesn't really support his argument.  Beck points to Gloria Steinem's financial contributions and Ms. magazine's 1993 cover story headline, "BELIEVE IT! Cult Ritual Abuse Exists. One Woman's Story.")

Nor is Beck's exploration of Freudian (and Freud's own) analysis and the psychiatric and psychological worlds' embrace of multiple personality disorder particularly convincing.  

But the story.  The panic, the ruined lives, the political careers made.  (Janet Reno, Clinton's Attorney General, rode to Washington on the back of Frank Fuster whose wife, Ileana, as part of her plea deal joined the chorus of accusers telling a jury about how Frank, wearing "a white sheet and a strange mask, . . . had sexually assaulted her with a crucifix" and forced her to abuse kids.)

If you think Salem and the witch trials, you're on the right track.  It's a connection Beck makes explicit in his introduction, though he downplays the horror of Salem noting that once the hysteria there ended, there were apologies and reparations.  The victims of the day care hysteria, on the other hand? Well, some have had their convictions overturned.  Others continue to rot in our prisons.  Then again, they killed a bunch of folks up in Salem, and apologies and reparations didn't really do them any good.

Perhaps oddly (or perhaps I'm just wishing that Beck would climb onto one of my own hobby horses), Beck doesn't do much looking at what we haven't learned. 

The Golem, after all, turns out not to have been in the witches of Salem.  They didn't exist.  Nor was the Golem in the preschool teachers and day care workers who didn't do a damn thing to the kids. (Nor, and I'm straying only slightly, was the Golem in the communists and fellow travelers, like President Eisenhower, who Joe McCarthy and his ilk took on in the late 40s and early 50s.)  No, the Golem was the witch hunters, the prosecutors (and cops and parents and media and your next door neighbors).   

And the Golem remains.  This is the lesson implicit in We the Children.  It's the Golem of uncritical belief in the monster under the bed.  The Satanist, cult-predator, child-care workers of the 50s who could only be stopped by locking them up forever - and the damage they caused, my god - are in this year's flavor those who ever considered a sex act outside the missionary position between spouses. And maybe even then.

From the sex offender registries to the hysteria surrounding campus sexual aggression (he looked at me without first obtaining permission) is but a small step.  Believe the children?  We believe the accusers.  Just ask Danny Brown.

--------------
My thanks to Public Affairs Books for providing me a copy of We Believe the Children  for this review.

Man Bites Dog

“It is very common for the teachers of the year, the championship coaches and the vanguards of education to be perpetrators,’ said Terri Miller, president of the national organization Stop Educator Sexual Abuse, Misconduct and Exploitation, who said such teachers wear “a mask of deception.”

That's from an article by Colleen Diskin in the Bergen Record.
It seems that last year's winner of the "Teacher of the Year" award for Essex County, New Jersey just got charged with multiple counts of sexual abuse of a 15-year-old boy in one of her honors classes. But, as Ron Popeil would say.  That's not all.

[She]* is not the first award-winning teacher to be accused of having a sexual relationship with a teenage student. In 2008, James Darden was sentenced to eight years in prison, after admitting to having a two-year sexual relationship with a student that started when she was 13. In 2005, Darden had won the prestigious Milken Family Foundation Educator Award and his arrest shocked the community at Thomas Jefferson Middle School in Teaneck, where he had been a beloved and popular teacher.

See, it's a trend of two in four years.  Which is how we get to Terri Miller who tells us that a large percentage of the very best "educators" are also child molesters.
A couple of years ago, I told this story.

Emily Webb. Age 7. Left at the wrong school bus stop.
She told the school bus driver it wasn't her stop. She wasn't supposed to get off there. It's not where her mother was waiting. Didn't matter. The driver made her get off the bus.She was scared, crying.
An older man, old enough to be her father, offered to "help."
She left with him.

Amazingly enough, that man turned out not to be a child molester. He did not abduct Emily, did not rape her, did not abuse her in any way.
Clearly a miracle.  Her parents certainly thought so.

Both shudder at the thought she could just as easily have encountered a predator.

That's what Diane Petryk told us in the Sunbury [Pennsylvania] Daily Item, though I added the italics.  And let's focus on that italicized point for just a moment.  Here's what Lenore Skenazy had to say.

Really? "Just as easily?" So it's a 50-50 split now, between predators and everybody else on the street? If one person's walking a dog, the next one is probably carrying some duct tape and chloroform?

Well, actually, no.  No more than it's "very common" for star teachers, coaches, and other educators to be molesting their charges.
Does it happen? Sure.  And the media covers it with a vengeance when it does.  Why? Because it's rare.
Here's a question to consider?  Should you keep your kids away from the best teachers because they're probably rapists?  Hell, should you keep your kids out of school because all the teachers are predators?  
Yes, it happens that children are sometimes molested by their teachers. And sometimes by their doctors and their dentists and the guy at the shoe store.  
And sometimes (really, far more often), by their priest or their uncle or mom or dad or the family friend.
And even that's not the norm.
Maybe the Essex County Teacher of the Year did what she's accused of.  Maybe not.  Apparently James Darden, Milken Family Foundation Educator Award winner did.  It happens, and I don't mean to make light of it.  Abuse scars, even when the scars aren't visible.
But it really isn't the norm, isn't even common.
A sense of proportion, you know.

Remember, Emily Webb, age 7, Left at the wrong school bus stop.
Made it home safely. 
 
-------------------
*In keeping with my new policy of not naming accused-but-not-convicted sex offenders and thereby ruining the lives of those presumed innocent, I refer to the woman accused in this case only as "she."  

Naming Names

Some people remember faces.  Some names.  I'm a face guy.

Introduce me to someone today and unless there's some compelling need for me to make notes of the name, I'll remember all sorts of things about her tomorrow, but probably not her name. Or his.

And so what?  Aside from a little social awkwardness, it mostly doesn't matter.

Words make a difference, of course, they matter.  (What else would I say?  I'm an old English professor fergodssake.)  But my subject here isn't generic words.  It's far more specific.  It's names.

Juliet called the question.

What's in a name? That which we call a rose
By any other name would smell as sweet.

Well, yeah.  But if you want other folks to know you're talking about roses it's probably better not to call them snap dragons.  Because names matter too.

Partly it's that names signal more than just identification, identity.  Who we are is tied up with what we're called.  (There are reasons many married women in this society choose not to adopt their husband's surname, just as there are reasons people elect to change their names.) And what we're called can be, well, names matter.

There are lawyers who fight tooth and nail to prevent their client from ever being called "defendant" because it suggests that they have some obligation to defend.  They don't, of course.  The entire burden is on the government to prove.

Occasionally a judge will actually grant a motion to prevent prosecutors from calling someone a "victim."  After all, there isn't a victim if there wasn't a crime.  And until the jury says there was a crime, there wasn't.  But if that person is called a "victim," then guilt is presupposed.

And of course, there's the whole thing about dignifying people with their names.  "Mr. Jones" is a mark of respect.  "Boy" is an insult.  "Nigger," at least from someone white, is worse.

There was a judge who could never remember anyone's name.  "Madam Prosecutor," he would call the prosecutor.  Mr. Defense Lawyer, he would call defense counsel.  "Mr. Defendant," he would call the defendant.  Everyone felt insulted until they understood it was his odd way of being polite.

All that is by way of introduction to a side issue in the Jerry Sandusky train wreck.  A side issue, but one that's generating a fair amount of attention.  Enough so that Arthur Brisbane, the "Public Editor" of the New York Times, decided to devote his column in today's paper to it.

THE NEW YORK TIMES generally does not publish the names of sex crime victims. But a Nov. 22 article about one boy in the Jerry Sandusky case at Penn State contained biographical details that effectively identified him for anyone who knows how to search the Web, according to critics and the boy’s lawyer.
Michael Boni, the lawyer for Victim 1, as the boy is known in the grand jury report, said The Times should have exercised greater restraint, adding, “These guys knew it would out the kid.”

Maybe. See, the major media (all of them) have that same general policy, subject to exceptions.  Why? Brisbane again.

[I]t is the fear of exposure that often discourages victims of sex crimes from reporting them in the first place. Dean Kilpatrick, an authority on sex crime victimization, told me that public exposure of victims in high-profile cases reinforces this fear.
“Most victims, based on the research, are very reluctant to report,” said Mr. Kilpatrick, a clinical psychologist at the Medical University of South Carolina and director of its National Crime Victims Center. When they are asked why they don’t report the crimes, he said, “some of the top concerns are: ‘I am afraid,’ ‘I don’t want other people to find out,’ ‘I am afraid that people will blame me for what happened.’ ” 

OK, a decent motive.  We want people who are victims of criminal assault, sexual or otherwise, to report it.  When we do things that embarrass them unnecessarily if they report, they're less likely to report.  That's logical, and it's a seemingly fair social policy determination on the part of the media.

Except it's only seemingly fair.  In fact, when you think about it for a bit, it's dangerous and, although it's easy to toss the term around in this era of Scope and Grope and indefinite detention based on government hunches and Steven Seagal joining Sheriff Joe in a tank attack on a cock-fighting tournament, unAmerican.

See, here's the thing. 

The people we're protecting, the people we're allowing to have their identities hidden so as to avoid the embarrassment of naming, those people aren't actually "victims of sex crimes."  They're people who claim to be victims of sex crimes.  They are accusers.  Maybe they're telling the truth, maybe not.

There's this other person, of course, who's deeply embarrassed, who's humiliated.  Who's shamed.  Who's reputation is trashed.  Who's understood to be guilty.  Before trial.

He's the one hiding his head during the perp walk.  Because, you know, he's a perp.  And we know that because he was accused by someone who's ashamed to say,

I accuse him.

Instead, there's this passive voice of condemnation.

He did something horrific to someone.

Or maybe not.

Legally not. Not unless the jury says so.  Unanimously.

But we (that's neither the royal we nor the plural for you and I, it's the collective we for the body public) don't give a shit about that.

J'Accuse.

So says Publius.

Hiding for shame.

Brisbane concludes his column this way.

In the case of Victim 1, the details concerning the auto accident and the boy’s athletics added human interest to the story, giving readers a deeper understanding of the boy. Was that reason enough to include them and put his privacy at risk? I don’t believe so. The traditional mandate to preserve privacy is there to protect sex crime victims — a broader social purpose that, in my mind, outweighs the transient benefits of a single human-interest story.

Got that.

The traditional mandate to preserve privacy is there to protect sex crime victims.

And the Times didn't protect, sufficiently, Sex Crime Victim Number 1.  Who might or might not actually be a sex crime victim.

I'm not interested in figuring out they identity of that person who claims to have been victimized.  What I'm damn sure of is that whoever that person is, Jerry Sandusky has far more reason to have had his identity concealed.

• To avoid the real shame of being an accused child rapist.
• To avoid the harassment that follows absolutely.
• To preserve, insofar as possible, the presumption of innocence.

Because it's what's supposed to be the American way.

Which of course we never really much honor except in the breach.

First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

Truth. Fairness. Transparency

I've been meaning for a few days now to write about the murder of Andrew Grant DeYoung by the State of Georgia last week.  

I don't know a thing about the crime of which he was convicted.  I don't know anything about him.  I had no plan to write about prosecutorial misconduct, competence of counsel, AEDPA, judicial integrity, any of that stuff.  What I intended to write about is the only thing of any consequence I know about his case.

They made a video of the execution.

Erica Goode in the New York Times:

The camera recorded his last words — “I’m sorry for everyone I’ve hurt” — and his eyes blinking as the drugs took effect. It registered his last breaths and the time of his death: 8:04 p.m.
For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.
But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see. In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.

It's no secret that we've turned executions from public spectacle - town square at high noon, thousands watching - into private one.  Just as it's no secret that we've done all we can to sanitize the murders.  We give the pretense of medicalization.  We eschew blood.  We favor the pretense of dignity and decorum.

And the video of Mr. DeYoung's killing?  It's to be kept under seal, by the court, with the intention that nobody will ever see it.

After Mr. DeYoung’s execution, the video was sealed and sent to a judge’s chambers for safekeeping, and Mr. Kammer [DeYoung's lawyer who convinced a judge to allow the recording], for one, said he hoped it stayed hidden. “It’s a horrible thing that Andrew DeYoung had to go through, and it’s not for the public to see that,” he said.
But Douglas Berman, a professor of law at Ohio State University who commented on the issue on his blog, Sentencing and Law Policy, said, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” Mr. Berman added, “Somewhere, somehow, at some point, this will become publicly accessible.”

Of course, Doug is right.  There's almost no chance that the video will forever remain secret.  Not in this YouTube world.  

Frankly, it shouldn't.  Not because there's any lesson to it.  By all accounts, DeYoung's murder looked entirely peaceful and calm, pleasant even.  The sort of death we might all like to have, though perhaps on our timetable rather than on the government's.

No, the video should be made public because there's little that the government can do to people that's more final.  We should, as I've said repeatedly here, admit what we're doing.  

Goode quotes Debby Denno, a professor at Fordham Law.

“Most of what we do in the criminal justice system in terms of punishment is something that is allegedly open to the public,” Ms. Denno said, “and this is the ultimate form of our process.” 

So it is.  And as I've said repeatedly here, if we're going to be in the business of killing people, if we think it's that important, we should be open and transparent about it.

That's roughly what I've been meaning to write for a few days now.  Somehow though, I never quite got around to it.  Then Nafissatou Diallo, the woman who claimed to have been sexually assaulted by Dominique Strauss-Kahn, held a press conference.  I had not intention of writing about that.  I still don't.

She's a documented liar who apparently hopes to profit off her allegations.  That doesn't make them true.  It also doesn't make them false.  It does make her a lousy witness and the legal case against him filled with more holes than a good emmentaler.  But really, I don't care.  

So why do I mention it?  Because of Clyde Haberman's City Room blog post, Lifting the Veil of Anonymity in Sex Assault Cases, in the on-line Times.  Haberman uses Diallo's outing of herself to talk about the how the US media mostly conceal the names of those women who claim to have been sexually assaulted.

Until this latest turn, major American news organizations had guarded her identity. Even though her name and picture appeared weeks ago in foreign media outlets, notably in France, American newspapers and television stations abided by a longstanding policy of not identifying those who say they have been sexually assaulted. That anonymity is not routinely offered victims of other crimes.

Haberman's discussion is really about whether the alleged victims of sexual assault - and women in general - benefit from the media's commitment to keep their identity secret.  In point of fact, though, that's absolutely the wrong question.  The right question is whether the alleged perpetrators of sexual assault are treated unfairly by what is really the media's presumption that any allegation of sexual misconduct must be true.  And must be treated as true from the moment it is made until forever, even if it turns out to be demonstrably false.

See, here's the thing.

The identity of the accused is a public record and often a media sensation.

• Kobe Bryant was accused.
• Ben Roethlisberger was accused.
• The Central Park five were accused.
• The Duke lacross players were accused.
• Congressman whoever was accused.
• Some former high school guidance counselor was accused.
• The guy down the street was accused.

They are all named.  Pictures in the paper.  Details of the accusation laid bare (sorry).  All as described by the "victim" whose identity is kept secret because she (almost always a she) has been harmed enough.  And because it's so important that accusations be made.

And we know she's a victim.  And we know she's been harmed enough.  Because he (almost always a he) did it, whatever exactly it was.  And we know he did it because she said so.  And nobody ever falsely accuses anyone of any sort of misconduct.

Oh, wait.  People do just that.

And then there's a new bunch of identified victims.  Who continue to suffer the obloquy of accusation.  Who continue to be treated as guilty.  They're the innocent accused.  But the dishonest accuser?  She (mostly she) continues to have the protection of anonymity because it's just so damned important that she feel safe to come forward and accuse someone innocent.

We in the criminal defense business know that this is all about the presumption of guilt.  And is another of the great lies in our business.

Which brings me to another bit of news.

Findings from a newly released study refute the claim that more than 100,000 of the nation’s registered sex offenders are missing and unaccounted for – a figure that has commonly appeared in statements from government officials, Congressional legislation and dozens of media accounts since 2003.  

The release of these findings coincides with the approaching July 27 deadline for states to comply with federal sex offender registration requirements set forth in the 2006 Adam Walsh Child Protection and Safety Act. As of July 18, only eight states have been deemed to have substantially implemented these requirements, and many have called for Congress to revisit key provisions in the law. The “100,000 missing” figure was repeatedly cited in the debates leading to the law’s passage and in its subsequent re-authorization hearings earlier this year.

Let's just focus on that for a moment.  Congress passes the Adam Walsh Act and pressures states to pass their own versions in order to help everyone keep track of those convicted of sex offenses.  Because 100,000 registered sex offenders can't be found, we need a law to ensure that more sex offenders will be required to register.  OK, that makes no sense.

But then our sex offender registration and notification laws have never made much sense.  They're about the pretense of good sense.  If we know that the guy down the street is a registered sex offender, we can keep the kiddies away from him.  You know, let them hang out with the parish priest.  (Ooops.)  Or Uncle Festus.  (Double ooops.)

And the guy down the street?  The one who urinated in public?  The one who had sex with his girlfriend when he was 19 and she was 15 and now they've been married for 25 years and have kids but can't live near a school or day care center or even a DQ.  And he can't get a job because he's a kiddie rapist for gods sake.  (Public urination being a well-known attribute of all kiddie rapists and of nobody else.) And he's the one we're watching out for?

But even then, and even if you think it's all about somehow tracking down that 100,000 (mostly) guys.  It turns out that it's a made up number with no relationship to reality.  But of course we don't care.

I was talking to a reporter yesterday about the Ohio Supreme Court's latest opinion finding part of our version of the Adam Walsh Act unconstitutional.  I told him about how the law doesn't achieve its end.  How it even makes things worse.  And along the way I offered this truth, which I'm nowhere near the first to observe.

It's always a mistake when they name a law after a child.

That's one truth.  Here's another.  Secrecy breeds dishonesty.  And here's yet another.  Getting it right matters.

Truth.  Fairness.  Transparency.

Which is what I called this post.

Rule of Law in Ohio

It was June last year when the Ohio Supreme Court put out its decision in State v. Bodyke holding that reclassification under the Adam Walsh Act was unconstitutional.  Today, they gave us the rest of the story, and it's good news again.

Probably some background is in order.

For years, convicted sex offenders in Ohio (and across the nation, for that matter, but that's a separate issue) were classified under some version of what was called Megan's Law as sexually oriented offender or habitual sexual offenders or sexual predators.  They were required to register with county sheriffs and in some cases to be subject to community notification of where they might be found.  The particular classification, fixed by judicial determination of the likelihood that the person would reoffend, controlled the onorousness and duration of registration and notification.

Then Ohio adopted its version of the Adam Walsh Act.  It changed the rules.

There were still three classifications with increasing degrees of onerousness, but they had no relationship to the likelihood of recidivism. More to the point here, Adam Walsh Act classifications were made retroactive.  Not only were they imposed on people who were convicted of offenses before the Act became law, they were also imposed on people who had been classified under Megan's Law.  The result:  some 26,000 people in Ohio who were already registered sex offenders as they had been classified under Megan's Law were suddenly reclassified under the Adam Walsh Act.  For the vast majority the reclassification made things worse.  Much worse.

In Bodyke, the Ohio Supremes said that the reclassification were unconstitutional.  Which should have settled things.

But the opinion seemed to leave some wiggle room about a subset of folks whose Megan's Law classifications were imposed not by a judge but by the county sheriff or, as the courts put it, "by operation of law."

Their situation would have been resolved if Bodyke had said that Adam Walsh was punitive.  If it was punitive, then it simply couldn't be applied to anyone whose offense occurred before the Act's effective date.  We'd made the argument.  The court ignored it.

Today though, in a 5-2 vote, they answered.  In State v. Williams the court said that Adam Walsh Act is punitive.

Really, it should have been self-evident.  But it should have been self-evident in 1998 when the Ohio Supremes decided that Megan's Law wasn't punitive.  It should have been self-evident in 2008 when the Ohio Supremes decided that a more onerous version of Megan's Law wasn't punitive.  And they should have said so last year in Bodyke.

Still, today they did.

Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive.

That's the Adam Walsh Act.  An honest recognition of what the General Assembly did.

Let's be clear.  Ohio can punish sex offenders pretty much as harshly as it wants as long as it doesn't order them executed.  At least, that's what the berobed ones at the US Supreme Court say.  What it can't do is punish them in new and exciting ways if the punishment wasn't authorized when they committed their crimes.  That's what the Ex Post Facto Clause of the US Constitution says.  And it's what, in somewhat different form, the Retroactivity Clause of the Ohio Constitution says.

The Williams court wisely skipped over the Ex Post Facto issue.  Williams  is based entirely on the Ohio Constitution.  And that's as it should be, for Ohio's Adam Walsh Act is quintessentially an Ohio mess.

There's a bottom line here that nothing to do with sex offenders or the Adam Walsh Act except as incidental actors.

The Columbus 7 (really, just the 5 of them who formed the majority) stepped back from the tough-on-crime, easy-to-say solution.  They engaged with the real world and spoke a basic truth.  Ohio's sex offender registration and notification law is in fact punishment.  What follows from that, and why Williams is far more important than just to those men and women it will help, is why I'm carrying on today.

Because it's a vote for the Rule of Law over the Law of Rule.

Are You Scared Enough Yet?

Emily Webb.  Age 7.  Left at the wrong school bus stop.

She told the school bus driver it wasn't her stop.  She wasn't supposed to get off there.  It's not where her mother was waiting.  Didn't matter.  The driver made her get off the bus.

She was scared, crying.

An older man, old enough to be her father, offered to "help."

She left with him.

You know the rest.

You've seen it a thousand times.

It's probably happened to people you know, but they don't talk about it.

She got home safely.

By some miracle the man wasn't a predator, wasn't a child rapist.

I know, you're thinking.  You're asking yourself these important questions.

How can that be?  What are the odds that a man on the street would not be a child rapist?

Her parents were amazed, too.

Both shudder at the thought she could just as easily have encountered a predator.

That's what Diane Petryk told us in the Sunbury [Pennsylvania] Daily Item, though I added the italics.  And let's focus on that italicized point for just a moment.  Here's what Lenore Skenazy had to say.

Really? "Just as easily?" So it's a 50-50 split now, between predators and everybody else on the street? If one person's walking a dog, the next one is probably carrying some duct tape and chloroform?

Well sure.  Isn't that how it works?

Actually, no.

Here's how it works.  Every day, millions of children are not molested by strangers.  Every day millions of children are not abducted.  Every day millions of children go out in public and return home safely even though their parents might blink or look away for a moment.

Everyone alive has not been murdered.

Even the children.

Even in bad neighborhoods.

Even when they live on the same block as drug dealers and prostitutes and people who watch pornography.

Even if they smoke cigarettes and drink alcohol.

Even if they blow a little dope.  Or pop some pills or shoot up.

Even when they live in nice middle or upper-middle class neighborhoods.

Even when they're white and cute.

Even when they do nothing wrong.

Sure, bad stuff, horrific stuff happens.  Children are kidnapped and held in basements and tortured and then killed.  But it's rare.  Really, really rare.

Doesn't mean parents shouldn't be careful.  Doesn't mean children shouldn't be taught to be careful.  But it does mean we should have some perspective.

Should the Webbs be upset about what the bus driver did to Emily?  You bet.  Should the driver be punished?  Maybe.  Should the school investigate?  You bet.  Should it happen again?  Of course not.

But Emily has now announced that she'll never ride a bus again.  And her father said he'll never let her.

Which is, as you might have figured out by now, an overreaction.

Because the truth is that Emily is more likely to be molested by a relative or family friend or the pastor or parish priest than she is by a stranger at a bus stop.

Emily Webb.  Age 7.  Safe at home.

Why the hell was this news?

Ohio: Where Good News Abounds

I was getting set to delve into the world of constitutional interpretation again.

The plan was to do some riff off of now-retired Supreme Court Justice David Souter's commencement speech at Harvard.  It's an impressive speech exploring just why the balls 'n' strikes model of judging and justicing (at least of constitutional judging and justicing) is necessarily nonsense and why, also, the idea that what he calls the "fair reading" model is equally hopeless.

I still want to do that.  Maybe tonight (ah, yes, another Friday night writing blog posts; you enjoy the weekend your way and I'll enjoy it mine) or tomorrow.

But the news cycle interrupts.

So it's time for a quick (I promise) dip into the criminal-law related waters of the Buckeye State (that's Ohio).  Three events.  Two at least something of a surprise.  Yesterday's first.

The Supreme Court of Ohio

On November 4 last year, the Ohio Supreme Court heard oral argument in four cases challenging in a variety of ways the retroactive application of Ohio's latest sex offender classification, registration, and notification law, the Adam Walsh Act.  (You can watch the arguments by following the links here.)

As relevant here, the AWA required that some 26,000 people who had judicially determined and imposed registration requirements would be reclassified by the state Attorney General under the new system.  The old system classified people based on a calculation about the likelihood they would be dangerous.  The more dangerous, the more attention would be paid and the greater focus.  The new system increased surveillance over everyone but abandoned the concern with prospective dangerousness.  The vast majority of those 26,000 had their classification categories and duties increased dramatically.  Thousands were moved from the least monitored to the most monitored - not because they were more dangerous (again, that was irrelevant) but because of what they had been convicted of.

Anyhow, today makes 7 months since the argument.  In the interim, the Chief Justice before whom we argued (disclosure, I was counsel and did the oral argument in the first of that morning's cases, State v. Bodyke) died suddenly.  And this is an election year in which one of the sitting justices is running against the newly appointed Chief Justice.  So we've been waiting.  And waiting.  And wondering if the court was going to order us to come back and argue them again after the election.

Now we know.  Yesterday, the court ruled in Bodyke, the first of those four cases.  Those 26,000 people were previously classified by judges.  The Attorney General, even acting on the legislature's command, cannot undo the acts of the judiciary.  The three branches of government can and should work together.  No branch, though, has the right to usurp the role of another.

26,000 people will return to their prior classifications.  We might have wished for a broader-based ruling, but this is an absolute win.  Not just for the 26,000 men and women (and their families) affected, but for all the people of Ohio.  Applying the new law to them is not only costly and unconstitutional, it actually makes us less safe, sapping attention and resources from where they can do good and directing them to where they serve no purpose.

Score One.

Governor Ted

A couple of weeks ago, I wrote about Richard Nields.  He was due to be murdered by the Ohio Department of Rehabilitation and Correction on June 10.  But the Parole Board voted 4-3 to recommend that the Governor commute his sentence to life without parole.  Three reasons.  One Ohio Supreme Court justice said that Nields' wasn't the sort of case the law should be applied to.  The federal appellate court that affirmed his death sentence said it wasn't the sort of case the law should be applied to.  And then there was Paul Shrode, the coroner who did the autopsy of the woman Nields killed, Patricia Newsome.  

Shrode testified at the trial, providing much of the evidence about how Newsome's murder was coldly calculated, evidence the prosecutor urged the jury to rely on, evidence it turns out that had no scientific basis whatsoever.  Shrode just lied about it. 

A week after the Parole Board issued its decision, Shrode was fired from his job as medical examiner for El Paso County, Texas.  Alicia Caldwell explained it this way in her story for the Dallas Morning News.

El Paso County's medical examiner was fired Monday following years of questions about his resume and qualifications.
Dr. Paul Shrode, who testified in an Ohio capital murder case where officials are now recommending the death sentence be overturned, was released from his job after a 3-1 vote by county commissioners, said commissioner Veronica Escobar.
Questions about Shrode's qualifications have swirled since he acknowledged in 2007 that he lied on his resume about having a law degree. Last year, the county was notified that Shrode was no longer eligible to become board certified in pathology, despite his claims of having received the certification years earlier, Escobar said.
"Cumulatively his own actions have made it so that it's hard for the community to have faith in Dr. Shrode and for me to have faith in Dr. Shrode," Escobar said after the vote.

So we've been waiting.  What would Ted do?  Frankly, I figured he'd let Nields die.  I mean, what the hell, who really cares, and there's an election coming up and, well, Ted hasn't exactly shown that he cares deeply about this stuff.

I guess I owe our Governor an apology.  Today he commuted the sentence to LWOP.  Richard Nields will live.  Ohio won't murder anyone this month.

Sorry for misjudging you, Ted.  

Except, there were all those other guys you let die.  And lots more are in the dock.  Many with real dates.
Score Two.

Lorain County

Her name is Nicole Diar.  She did or did not murder her 4-year-old son, Jacob.  She was sentenced to die in 2005.  Three years later, the Ohio Supremes sent her back to be resentenced.  Yesterday that was done.  Life without parole.
I've talked about LWOP before, never with joy.  It is, as I've said, a sentence of death in prison.  It's the removal of hope.  It's as ugly as can be.  Yet . . . . 
Kreig Brusnahan, one of her lawyers, put it this way.

It’s a difficult day for Ms. Diar and her family, but, given the choices we had, life without parole is certainly a better choice than the possibility of facing the death penalty.

Score Three.

Graham & Comstock & SCOTUS, Oh My!

I'd thought I might wait until tomorrow to offer first thoughts.  You know, let opinions float about in the mental ether for a day before I started blowing hard about them.

But hell, I'm a blogger and this is a blog so it's on to instant (more or less) punditry.

First the shorthand results:

• Graham v. Florida - 8th Amendment prohibits LWOP for any kid who doesn't kill (5-4, opinion by Kennedy); 8th Amendment prohibits LWOP for Graham, but maybe not for all kids who don't kill (Roberts concurring); don't be silly (Thomas, joined by Scalia and for the most part by Alito) (Alito briefly and alone explaining that Roberts is as off the tracks as Kennedy & Co, though he doesn't put it that way).
• US v. Comstock - Necessary and Proper Clause of the Constitution means Congress can do pretty much whatever it thinks is necessary and proper including, as relevant here, impose civil commitment on the mentally ill, sexually violent who have finished serving their federal prison terms and whom the states would obviously just let roam about raping and pillaging at will (7-2, opinions by Breyer [joined by Stevens, Ginsburg, Sotomayor, &; Roberts], Kennedy [the Clause doesn't really let Congress do just anything but this is within it 'cause gosh darn it somebody's got to do this, and if the states would just step up . . . .], & Alito [it's necessary for the federal government to ensure that people who commit federal crimes and don't get rehabilitated also don't get out even when their sentence is over, that's the whole point of the sentence: it's only the prison part that has to end just because the sentence does]); nonsense: that's necessary and proper to what's specifically authorized by the Constitution, and there's nothing in the Constitution that authorizes Congress to prevent random raping and pillaging as long as it doesn't cross state boarders - and maybe even it does (Thomas, mostly joined by Scalia).

OK, I probably haven't been totally fair in my descriptions - especially of Comstock - but the general idea is right.  And if you haven't picked up on it yet, I think Graham is clearly right and Comstock clearly wrong.

Let's start with some thought of how these decisions are supposed to be made.  Graham is an 8th Amendment case.  That Amendment says

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

Graham deals with the "cruel and unusual punishment" part.  There's been a lot of carping about it over the years from Scalia and Thomas, but the Court has accepted for decades now the plurality's statement in Trop v. Dulles.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. 

There are problems with that rule.  As a practical matter, Scalia is right that a punishment is cruel and unusual, at any moment merely because of the happenstance that five members of the Court happen to find sufficiently offensive to prohibit.  For all the blather and purported legal analysis that surround the Court's opinions, it really does come to that.  Of course, it always has.  And if plucking out the eyes (see Oedipus Rex and King Lear for two literary instances of eye destruction as a form of punishment, albeit not a judicial one) should happen to become something with which five members of the court are comfortable, then it will be constitutional.  (Though I suspect that if it were before the Court today, Scalia would find it unconstitutional while Thomas might well not.)

But it is the rule, and its repudiation doesn't really take us very far.  Even Thomas, the most strident voice for another rule, says that the 8th is intended to prohibit punishments intended to be torturous.  But how does one decide?  Oh, yeah.  By asking what's beyond the pale.  Which is pretty much what the "evolving standards" thing does.

So the question is whether LWOP for a non-homicide offense by a kid is beyond the pale.  Frankly, it seems to me an easy call.  I've taken a stab at answering it before, and I'm not going to repeat that whole thing here.  So here's the really short version: LWOP is death in prison.  It's the death penalty without the formal end being a murder.  We don't kill kids (Roper v. Simmons) and we don't kill for non-homicide (Kennedy v. Louisiana).  Kennedy explained it this way.  

[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis. 

But that's really too easy.  The reality is that we shouldn't be doing the functional - if not machined - equivalent of the death penalty for anyone.  Certainly not kids.

Is there no hope of redemption?  No chance of rehabilitation? No reason we'd wish to provide even a possibility?  Is our goal to provide hell?  (See the words over the gates of Hell, Dante's Commedia, Inferno 3.009: "Lasciate ogne speranza, voi ch'intrate," Abandon all hope, you who enter here.)

LWOP should be unconstitutional across the board. Certainly for kids and for those who don't kill.

And then there's Comstock.  Here the technical question is not whether the government should be allowed to lock people up forever because they might commit crimes if they are released.  If that question had been posed, I suspect the answer might have been different.  The question, however, was whether the Necessary and Proper Clause of Article I of the constitution.

The Congress hall have power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 

You can read that broadly or narrowly, which is pretty much how you can read every abstract statement.  Typically, the so-called liberals on the Court read the Necessary and Proper Clause broadly. From their perspective, Congress has the power to do pretty much whatever it wants unless there is something that specifically constrains it.  The so-called conservatives are inclined to read the Clause narrowly.  From their perspective, Congress can do nothing that isn't specifically authorized.*

The formal argument was whether the authorization to have federal crimes, which requires prisons to hold federal criminals, makes it necessary for the feds to ensure that prisoners who are released but dangerous will not be released upon states that aren't sufficiently interested in preventing the danger.  It strikes me as self-evident that the answer is "No."  The connection's too weak, too attenuated.  There are too many steps.  Of course, if you believe that the government exists to protect everyone from everything and can (or must) do whatever is possible to achieve that protection, you come to a different conclusion.

But you really don't need to be a government minimalist to say that Comstock reads the Clause too broadly.  The question is really what enumerated power cannot function if even a dangerous federal prisoner is released from custody.  The answer, of course, is that there's not a one.

It's about that simple.

Doug Berman and Scott Greenfield and I'm sure others note the mix of today's opinions.  Berman explores the political and PR implications.  Greenfield notes that the two, "taken together,  offer no coherent penal philosophy."  Sure enough.  But then, what would we expect from a court that itself has no coherent philosophy at all.

Justice Brennan used to speak of the Rule of Five.

With five votes, you can accomplish anything around here.

Yep.  It's not particularly powerful as a judicial philosophy, but yep.

 ______________

*Both groups, of course, are completely hypocritical about this.  Congress can do what they favor and cannot do what they oppose.  Jeffrey Toobin captures that hypocrisy nicely in this week's New Yorker.