Let There Be Life

At the end of his term as Governor of Illinois, George Ryan emptied that state's death row.  In doing that, he followed the example of Winthrop Rockefeller in Arkansas and Tony Anaya in New Mexico.

On his last day as Governor of Ohio, Dick Celeste took ten men and women off death row.  So they rewrote the law to make sure nobody could do that again.

I have no idea whether Governor Ted would empty Ohio's death row if he had the power and thought he could without political consequences.  I've given up trying to figure out what he believes or if he believes anything.  Maybe he's a secret abolitionist.  Maybe he's a serious supporter who really does try to make careful choices.  Maybe he just flips coins in the air.

Beats me.

Here's what I know.  As his term as Governor draws to a close, and given what seems to be the state of Ohio law, Ted had only more death sentence on which he could act.  Sidney Cornwell was to be killed tomorrow morning.  Ted could commute the sentence or allow the murder.  The Parole Board said kill, but Ted's ignored the Board's recommendations before.  He saved the lives of John Spirko and Kevin Keith when the Board said to kill them.  He killed Jason Getsy when the Board said to save him.  So who knew.

Now we know.  This morning, Ted commuted Cornwell's sentence to death in prison.  It's no bagatelle, but it ain't killing.

Here's his official statement.

As a result of his conviction for aggravated murder, Mr. Sidney Cornwell is scheduled to be executed on November 16, 2010. I have completed a review of the circumstances surrounding his case to determine if executive clemency is warranted.

In making my determination, my staff and I have reviewed the judicial decisions regarding Mr. Cornwell's conviction, Mr. Cornwell's application for executive clemency and its appendix, and arguments presented for and against clemency at the Parole Board hearing. We also reviewed institutional records and letters received in the Governor's Office regarding this matter, the Parole Board's report and recommendation, and the exhibits presented at the Parole Board hearing.

There is absolutely no doubt that Mr. Cornwell is guilty of the crime of aggravated murder - and he has admitted that. The only question I am confronted with is whether the death penalty is appropriate in this case given the fact certain mitigating information was not available at the time the sentence was imposed.

Critical to that evaluation is the fact that in recent months, Mr. Cornwell was definitively diagnosed with a genetic disorder known as Klinefelter's syndrome. This condition, which impacts both the body and the mind of its sufferer, was unknown to the jury and judge responsible for determining Mr. Cornwell's sentence despite significant testimony and argument during Mr. Cornwell's trial regarding certain of his physical characteristics.

A jury deciding whether to recommend the imposition of the death penalty must unanimously make such a recommendation to the sentencing judge and the sentencing judge must determine that the death penalty is appropriate. If one juror, or the judge, had determined that the death penalty was not appropriate, Mr. Cornwell would instead have been sentenced to life in prison.

Once aware of the probable Klinefelter's diagnosis, one of three Sixth Circuit judges reviewing the case determined that the death penalty was not an appropriate sentence. After the Klinefelter's diagnosis was confirmed, one of eight parole board members determined that the death penalty was inappropriate in this case. In both instances, Mr. Cornwell's recent diagnosis was referenced as the basis of the dissent.

In Judge Moore's dissent, she stated, with respect to the question of whether a jury might have reacted differently when it recommended the death penalty had it known about Mr. Cornwell's disorder, that knowledge of such a diagnosis 'would have a reasonable probability of affecting the outcome of the penalty phase...'

The Parole Board Chair, dissenting from her colleagues' recommendation to deny clemency, cited three basic reasons for her recommendation: having a medical disorder is a strong mitigator and was not presented during the sentencing mitigation phase; a mitigation phase which would have centered on a genetic disorder would have caused the jury to have more sympathy as opposed to one which centered on a person who was portrayed by the prosecution as merely overweight and lazy by nature; and that Klinefelter's syndrome could have reduced Cornwell's overall culpability.

The fact is, there is a substantial possibility that had the jury or sentencing judge known about Mr. Cornwell's disorder, one or more of them would have found that the death penalty was inappropriate in this case, just as one of the Sixth Circuit judges did and as the Parole Board's Chair did.

Because the trial jury and sentencing judge did not have information at the time of sentencing about Mr. Cornwell's Klinefelter's syndrome, I have concluded that it would be inappropriate to proceed with the death penalty in this case. There can be no doubt that Mr. Cornwell's conduct still necessitates severe punishment. Accordingly, I have decided to commute his sentence to a term of life in prison without the possibility of parole.

Amen.

Truth To Power

It is 10:30, Tuesday morning, November 9, as I type these words.  Just under a week from now, at 10:00, Tuesday morning, November 16, the state of Ohio will begin (if all goes as it intends) to kill Sidney Cornwell.

As always, there are petitions sent to the Governor calling for commutation or clemency.  As always there will be letters to the Governor and faxes to the Governor and I suppose tweets to the Governor.  There will be letters to the editor.  And there will be vigils.  There will be one at Lucasville where the killing is done.  There will be others around the state.  More people will, in one or another of these fashions, make a public or semi-public statement condemning the killing than will publicly (or semi-publicly) endorse it.  Far more.  It's always that way.

And none of that will change anything in any obvious way.

Why then?  Is it naive hope that this time the Governor will listen?  Is it a fantasy that the media will suddenly come round?  Is it the truly vain expectation that the mass of the public (or the Governor or the Attorney General or the General Assembly or the Supreme Court) will suddenly have an epiphany and decide they've had enough of the enormity and call a halt?

I suppose for some.  All those who act do so, ultimately, for their own reasons.

But I think there's a larger point.

I wrote this, privately, for a friend who organizes vigils, a couple of months before I started this blog.  I'm doing very light editing, mostly catching typos and reformatting.

With every execution where they give numbers, it appears that there are hundreds, sometimes even thousands, of calls and cards and e-mails and petition signatures going to the Governor urging him to commute the sentence. The numbers urging him to let the condemned inmate die are in the double digits at most. Obviously, we don't change the outcome with those calls and cards and petitions.

Before every execution, and at the time of the execution, around Ohio people hold vigils in protest. The numbers have dwindled dramatically since Wilford Berry was killed, but the vigiling continues. And the killing keeps happening. Again, it is obvious that we aren’t changing the outcome.

But I think it’s vitally important to keep doing these things. In spite of the fact that they change nothing. In spite of the fact that the media pays less and less attention. In spite of the facts that the Governor doesn’t care and the Attorney General doesn’t care and the General Assembly doesn’t care and the Supreme Court of Ohio doesn’t care and maybe even that Ohioans don’t care.
I think it’s important for at least two reasons.
First, it’s important because these actions provide something to do. It may be ineffectual, but it engages people. It gets the juices flowing. It keeps folks involved. The alternative is, at least metaphorically, to stay home and watch American Idol. We all need that engagement. It’s our civic responsibility.
Second, and this is far more important, those actions are a public statement. Each of us who does one or another of those things, or all of them, each of us who acts, is saying, “No, you’re not doing this for me. I won’t support it. Not in my name. Not now. Not ever. This is wrong.” If we don’t do that, then the implicit message is that everyone agrees.
Edmund Burke is credited with saying (though no one seems able actually to find the quote in his work),

All that is required for the triumph of evil is that good men do nothing.

Martin Niemöller made the same point.

First they came for the Jews
And I did not speak out because I was not a Jew.

Then they came for the Communists
and I did not speak out because I was not a Communist.

Then they came for the trade unionists
and I did not speak out because I was not a trade unionist.

Then they came for me
and there was no one left to speak out for me.

Sometimes that speaking out is ineffectual. But we cannot let those (our) voices be silent simply because the powerful refuse to listen.

I thought of that message as I sent a note earlier this morning to a group of friends who will stand in lonely vigil on November 16 as Sidney Cornwell is killed.

It is a shame, I said, that you meet only to regret and mourn and wish things were otherwise.

One day, I hope to have the chance to join you in a party of rejoicing, in celebration of the abolition of this particular form of calculated murder.

Pete Seeger wrote "One Man's Hands."

One man's hands, can't tear a prison down,
Two men's hands, can't tear a prison down,
But when two and two and fifty make a million,
We will see, that day come 'round,
We will see that day come 'round.

Seven to One - But Those Votes Don't Count

Sidney Cornwell is 33 years old.  If the state of Ohio gets its way, he won't get to be 34.

It was 1996 in Youngstown, Ohio.  Cornwell was a self-described "enforcer" for the Crips.  On June 11, 1996, going after some Bloods and then, he says trying to throw a scare into them, he shot at a house. Three-year-old Jessica Ballew was killed, Donald Meadows, Sam Lagese, and Marilyn Conrad were wounded.  Just under a year later, on May 23, 1997, Cornwell was sentenced to be killed.

And so it proceeded, as these things do.
The sentencing jury heard that Cornwell, like the vast majority of the men on death row, came from a broken, abusive family and had no emotional support that wasn't counterproductive.  The jury heard that he was shy and lacking in self-confidence and that he was a fat child who underwent breast reduction surgery at 13 in hope that his classmates would then stop ridiculing him for his weight.  What the jury didn't learn is that those things were not personal choices based on laziness but a result of undiagnosed (and therefore untreated) testosterone deficiency and Klinefelter's Syndrome.

Thursday, the Parole Board issued its recommendation. Not surprisingly, they said he should be killed.  After all:

• He was a member of the Crips, and he did the shooting and killing.
• He isn't telling the truth when he says he didn't intend to kill the folks he shot at.
• Although his case has been reviewed by a number of courts, none of them reversed his death sentence.  [Of course, if any of them had, the Parole Board wouldn't be holding a hearing and making a recommendation about whether the sentence should be converted to a life sentence - it already would have happened.]
• Besides, the crime was awful.

So said 7 of the 8.  This time, though, there was a dissent for life.

• I concur with the dissent in the Sixth Circuit's opinion and the conclusion that "a diagnosis of Klinefelter Syndrome would have a reasonable probability of affecting the outcome of the penalty phase and rendering the state-court finding of no prejudice objectively unreasonable because (1) having a genetic disorder is itself a strong mitigator and was a subject not addressed at the penalty phase, (2) a mitigation case centered on a genetic disorder, as opposed to an overweight individual who is lazy by nature would induce much more sympathy from the jury, and (3) Klinefelter Syndrome could indeed reduce Cornwell's blameworthiness, something that the weight-based evidence did not accomplish."
• Cornwell's diagnosis of Klinefelter's Syndrome is evidence that the jury was not aware of or presented with.  I cannot conclude that it would have made no difference to the outcome of the penalty phase, as it seems reasonably probable that a juror may have viewed Cornwell, and the other mitigation evidence presented, in a more favorable light.  This evidence is significant enough to question the reliability of the outcome of the penalty phase and conclude that the exercise of executive clemency is warranted.

That came from Cynthia Mausser, Chair of the Parole Board.  And of course she's right.  Genetic defects are different - not just different in degree, but different in kind - from moral failings.  Juries know that.
Still, no one else joined her in calling for a life sentence.
On the other hand, none of their votes really count.  The only one that does belongs to Governor Ted.  He's rejected the Board's recommendation before.  Still, I'm not optimistic.
The killing is scheduled for November 16.
He's got just over three weeks.
Cornwell, too, I'm afraid.