The Nooses Tighten -- UPDATE

As I type this, it is a little after 1 in the morning in Ohio.  In just under 9 hours, Ron Phillips will be killed at the Southern Ohio Correctional Facility in Lucasville.

The killers will be a group of prison guards.  It's duty they've volunteered for.  They've chosen, for whatever reason, to kill a man for whom they hold no personal animus, a man who's done them no personal wrong.

Those guards won't be acting alone.  Killing Ron Phillips wasn't their idea, after all.  It was the prosecutor who decided he should be killed and the jurors who agreed.  The trial judge signed off on it.  So did appellate judges, justices of the Ohio Supreme Court, judges and justices in federal court. 

The Parole Board was cool with it.  So, it seems, is Governor Kasich who's skipping opening day at the state fair to oversee the murder.

It doesn't need to happen.  We've managed this long without killing him or anyone else.  No need to start up the pumps again.  Thing is, it's not about need.  It's desire.  They want to kill him.  Nothing personal of course.  Not for most of them.  It's calculated.  A dispassionate decision.

Oh, the courts could still call a halt.  So could the Governor who's received petitions with somewhere close to 100,000 signatures asking him to stop it.

I've been happily surprised before, but I don't think I will today.  

8 1/2 hours.

And then there's TaiChin Preyor.  He's got until Thursday.  A whole day left to contemplate his . . . .

The Texas Court of Criminal Appeals turned him down.  Not because they had to.  Because they could.  Here's the explanation.  

  Preyor Concurring Opinion by jmgamso on Scribd

Which is a long way of saying, 

We don't gotta.

Of course, that's just a fancy way of saying 

We don't wanna.

Which puts 'em in the same camp as all those folks up in Ohio.  Sure, we don't have to kill him.  But we actually want to.  Even though (here it comes again), he didn't do anything personally to us.  It just feels good.

You know, like the old Nike commercials.  

Just do it!

'Cause we can.

Judge Alcala dissented in a 33 page opinion (that Scribd doesn't seem to want to let me embed, so here's a link.

He doesn't disagree with the majority's cold-hearted legal calculus.  It's not that we have to grant him relief, he says.  

It's just that what they have to do isn't the whole thing.  It matters, too, what they ought to do.  It matters that they can grant relief.  And in this case . . . .

The extreme circumstances presented in this application include the essential abandonment by applicant’s initial habeas counsel, and the interloping by a foreign attorney without credentials to practice before this Court and in the absence of applicant’s informed consent to pursue habeas litigation for him as a non-attorney. This Court should stay this impending execution of applicant and file and set this case to consider overruling Graves. Assuming Graves is overruled, I would remand this case to the habeas court so as to permit this applicant, who has made a prima facie case that trial counsel performed ineffectively as to their investigation and presentation of mitigation evidence, a live hearing in the habeas court. Because this Court denies the motion to stay execution and permits this execution of applicant several days from now despite the egregious post-conviction errors in this case, I respectfully dissent.

It is, of course, a dissent.


  
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UPDATE -- In case you couldn't tell, I'm an idiot.  It's now a bit past noon, and I just realized that today is Tuesday, not Wednesday.

Ron Phillips is scheduled to be killed tomorrow, not today.  TaiChin Preyor on Thursday, not tomorrow.

So there's more time yet for something to happen.  I'm still not holding my breath.

And It's Wikipedia by a Noose

They plan to kill TaiChin Preyor Thursday.

It's not all that surprising.  We're talking Texas, after all.  And while executions are fewer these days than just a few years ago, well . . . .  We're talking Texas, after all.

Sometime after 4 in the morning on February 26, 2004, Preyor broke into the apartment of his, er, friend, Jami Takett, a drug dealer.  He went into her bedroom where he stabbed Jason Garza who got away and had neighbors call for help.

Then, according to the Texas Court of Criminal Appeals* he "stabbed Tackett numerous times and slashed her throat, severing her trachea, jugular vein, and carotid artery."

It was brutal.  But capital murders, all murders in fact, are.  There are no nice murders.  In any event: Texas, death sentence, death row.  Execution date set.  Execution date withdrawn.  And now, as I said, they're planning to kill him on Thursday.

Texas kills enough folks (Preyor would be number 543; no other state's total is close; though he'd be only the 6th in the Lone Star State this year) in enough iffy circumstances even for supporters of state killin' that I don't tend to spend any time focusing on the individual cases.  But this one is --

OK, look.  So his trial lawyers didn't notice, didn't investigate, didn't care, didn't do something to let his jury know about the horrific physical and sexual abuse inflicted on him as a kid by his own family.  Want an example?  Happy to oblige.

When he was 14, Preyor was admitted to the hospital and treated for two broken ankles and a broken hand. Seems he'd injured himself jumping from the fourth floor of his apartment building to escape his mother, who was chasing him with a knife.

Prosecutors, of course, described that family as "wonderful" and filled with "outstanding people."  Well, yeah, you wonder at them.  And they were outstanding in their awfulness.  But that's not what the prosecutors meant or the jury understood. Sigh.  

Capital trial lawyers who don't investigate their clients' backgrounds and don't present the jury with the all-too-common details that would curl their toes in horror are, sadly, if not quite the norm anymore, far too common.

But it's what happened later that moves Preyor's story from just another instance of what-the-hell-are-we-doing-killing-these-people to 

We're fucking doing what?  You're shitting me!

See, his mom might have abused the hell out of him, might have tried to kill him, even.  But that was -- how can I put this delicately? Got it. --  That was her job.  Wasn't the state's business to kill him.

And so, unhappy (and rightly so) with the representation her son had received, she decided to try hiring a lawyer.  Her first thought was Johnnie Cochran.  After all, he got OJ off.  Turned out he was dead.  Then there was some local guy who said he'd need 150 grand which was waaay more than she could raise.  But soon she heard about one Phillip Jefferson who'd allegedly won a murder case one time.    

She met with Jefferson.  He was, she said, "very well presented and groomed."  And he "talked about how impressive he was to juries."  Oh, and he'd take the case for $20,000.

Bingo!

Just one snag.   He said he was "retired," and while he'd come out of retirement if there was a hearing, in the meantime he'd work with Brandy Estelle - a Los Angeles attorney he knew.  She'd put her name on the papers, but he'd be the power behind the titular throne.  Oh, and don't mention my name to anyone, please.

And so. . . . 

Of course, it turns out that Jefferson's "retirement" was involuntary.  He'd been disbarred.  Brandy?  Hey, she was a real estate lawyer.  But what the hell.  If you can vet a contract for the sale of a home, surely you can fight a death sentence in Texas.  After all, you've got a computer.

Brandy had a computer all right.  And she used it to do absolutely first rate legal research.  After all, capital law is hard.  You want to do the best.  

You could go to seminars, work with the top folks (who are, by the way, remarkably willing to help in these cases).  You could do hours and hours and hours of research on one of the main legal databases, Lexis or Westlaw, read the cases, learn the field.  Or you could skip all that and go to the best of all sources to understand how to work the intricacies of Texas capital post-trial procedure while investigating the hell out of the case.

You could, that is, go to fucking Wikipedia.  Where you'd print out the article "Capital Punishment in Texas."

And, of course, you could bill the federal courts for the same work you were paid for by Preyor's mother.**

Even in capital cases, even in Texas, this is extraordinary.

"A pardon is an act of grace," wrote John Marshall in United States v. Wilson (1833).  And grace, as I've said here many times, is about the giver, not the receiver.  It's not about what's deserved but about what sort of people we are.

TaiChin Preyor is on death row.  Right now he doesn't need all the grace of a pardon.  A stay would do it. Or a reprieve.

Even though he's in Texas you'd think that might be within reach.  

At least, you could hope so.


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*  It's not altogether clear that the CCA summary of the crime and what Preyor did is accurate. Much, according to some later filings, is at best murky.  But that court's version is, for the moment at least, the "legal truth."

**  The information about Phillip Jefferson and Brandy Estelle is taken from various documents, including a supplemental clemency petition filed by Preyor's new attorneys on his behalf.