Praise Where It's Due - But Still Plenty Cynical

OK, let's be honest.  My cynicism wasn't really on the verge of being shaken.

But really.  Even after the unanimous recommendation of the Parole Board.  Who'd a thunk?

I mean, Governor Ted granted and denied (mostly denied, of course, but that's not the point here) commutations seemingly at random.  And he was alleged to be secretly opposed to the death penalty.  (Or secretly a fan of it.  Depended on who you talked to.)

But you have to figure Kasich is an honest supporter - not the Shrub or his successor with the good hair, he-who-wants-to-be-President Perry, certainly - but an honest supporter.

And then, albeit with that unanimous recommendation for cover/support, he goes and does this.

Murphy Commutation

I mean, really.

When Joey isn't factually innocent. But just because it's the right thing to do.

And after commuting Kenneth Smith.

And granting reprieves (though perhaps at the request of the killers at the DRC or of the Attorney General, but still) to Brett Hartmann & Billy Slagle.

This time - not like last time as I explained  here - Doug Berman has it right.

I am not sure whether to be incredibly proud or deeply troubled that Ohio's Governor Kasich has now in the last three months made more profound and effective use of his state clemency authority in just the last three months than US President Barack Obama has in over the last three years.

So yeah, I'm still cynical.  But pleasantly surprised.

Keep it going John.  Reginald Brooks is set for November.  Do your stuff.

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.

Let Us Now Praise Governor Ted

There's a subject line I didn't think I'd be writing this month.

But this afternoon, Governor Ted Strickland (I'm praising him, so I use his full name) commuted Kevin Keith's death sentence.  Rejecting the unanimous recommendation of the Parole Board.  Here's the official statement his office released.

"Kevin Keith was convicted, by a jury, of callously murdering three people-including a four-year old child-and shooting three others, including two young children.  Since the time of his arrest more than 16 years ago, Mr. Keith has maintained his innocence, insisting that someone else committed the murders.

"Mr. Keith's conviction has been repeatedly reviewed and upheld by Ohio and federal courts at the trial and appellate level.  The Ohio Parole Board recommended against clemency in this case.  There is evidence which links him to the crimes that, while circumstantial, is not otherwise well explained.  It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not.

"Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it.  In particular, Mr. Keith's conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised.  I also find the absence of a full investigation of other credible suspects troubling.

"Clearly, the careful exercise of a governor's executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted.  Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether.  But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts.  That would be unfortunate--this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court.  Under these circumstances, I cannot allow Mr. Keith to be executed.  I have decided, at this time, to commute Mr. Keith's sentence to life in prison without the possibility of parole.  Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

So, it's LWOP until further notice.  But with the possibility of further notice.
Damn. 

And maybe it's less of a fluke than it seems to me.  As Alan Johnson writes in the Columbus Dispatch,

It was the second time in the last three murder cases set for execution that the governor spared the life of the convicted killer. He spared the life of Richard Nields in June, but allowed Roderick Davie to be executed in August.

It was also the second time Strickland rebuffed the parole board's recommendation in a capital case. He allowed the execution of Jason Getsy to go forward in August 2009 even though the board voted to spare his life.

I may have to start respecting the guy.

Now What? It's Up to Ted

When a man's partner is killed he's supposed to do something about it. It doesn't matter what you thought of him. He was your partner and you're supposed to do something about it.

Sam Spade in Dashiell Hammett's The Maltese Falcon (and also in the John Huston film).

Anything approaching the change that came over his features I have never seen before, and hope never to see again. Oh, I wasn't touched. I was fascinated. It was as though a veil had been rent. I saw on that ivory face the expression of sombre pride, of ruthless power, of craven terror -- of an intense and hopeless despair. Did he live his life again in every detail of desire, temptation, and surrender during that supreme moment of complete knowledge? He cried in a whisper at some image, at some vision -- he cried out twice, a cry that was no more than a breath:
"The horror! The horror!"
I blew the candle out and left the cabin. The pilgrims were dining in the mess-room, and I took my place opposite the manager, who lifted his eyes to give me a questioning glance, which I successfully ignored. He leaned back, serene, with that peculiar smile of his sealing the unexpressed depths of his meanness. A continuous shower of small flies streamed upon the lamp, upon the cloth, upon our hands and faces. Suddenly the manager's boy put his insolent black head in the doorway, and said in a tone of scathing contempt:
"Mistah Kurtz -- he dead."

Joseph Conrad, Heart of Darkness.

I represented a guy some years ago after he had been convicted of murder entirely on the testimony of one witness, a co-defendant, who had, repeatedly (there's no disagreement about this) told the police lies about what happened.  Take away his testimony, and there's nothing else.  Nothing, even, to indicate my client was on the continent (let alone at the scene) at the time of the murder.

In fact, the co-D told police some 16 different versions of what led to the shooting, implicating my client only in version 13.  (There was actually a version 17, again implicating my client, that he told on the witness stand.)  Somewhere around version 8 or 9, the co-D conceded that he had participated in the crime.  By the time my client's name came up, the co-D was claiming that he shot the victim first but that my client (at the co-D's direction) finished the victim off.

I wasn't there.  I don't know what happened at the shooting.  What I know is that no fair and rational juror should have been able to conclude that my client was guilty beyond a reasonable doubt.  But the jury did find him guilty.  And the court of appeals (which is where I came in) deferred to their view of the evidence.

The victim in that case was a 13-year old boy.  As far as the evidence went, and I have no reason to doubt it, he'd done nothing to either of these guys.  Just an innocent kid in the wrong place at the wrong time.

But see, someone was dead.  A young boy.  An innocent.  It was heartbreaking.  (It didn't help much that trial counsel broke down in tears during closing argument while holding up a picture of the victim.)  Someone had to pay for that death, and the co-D was getting off easy for rolling on my client.

See, we call it the "justice system," and "justice" apparently cries out for someone to blame.  Juries? Well, they're supposed to do something about it.

I mean, that's not the theory.  The theory is juries as a dispassionate check on government excess.  But really, they're too often the anguished voices joining with Kurtz.  The horror!  The horror!

I never represented Kevin Keith.  I don't know exactly what happened in Bucyrus that evening in February 1994.  Frankly, I don't much care.  It's not that I'm being callous, it's that the details no longer matter.

But if the details don't matter at this point, the broader picture does.  Six people were shot.  Three were children.  Three, including one of the children, died.  On September 15, the State of Ohio intends to murder Kevin Keith in response.

Oh, there's one other thing that matters.  A lot.

The case is a mess.

Keith has a compelling alibi.  Eyewitnesses who are sure now that the killer was he were unsure or were clear at the time it was not.  There is substantial evidence pointing to a third person, Rodney Melton, as the killer, some of which police and prosecutors concealed from trial counsel.  What physical evidence there is, points as readily to the other potential killer as to Keith.  Trial counsel rushed the case and did, frankly, a lousy job.  I could go on, but I won't because, once again, the details don't really matter.  The sum of it is that there's plenty of evidence indicating Keith didn't do it.  There's evidence indicating Melton did.

What matters is that the case was a mess when it was tried and it's a mess now.

Still.

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.

Last week was the hearing before the Parole Board.  Keith asked for a pardon.  The state asked that he be killed.  There's not much middle ground there.

Set him free!
Off with his head!

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.  The Parole Board spoke today.  They said he should be killed.

So this is what it comes to.

Eight respectable citizens.  Responsible.  Reliable.  Chosen to be fair.  They heard all of that.  And they said to kill him.

But six people were shot.  Three died.  Kevin Keith was convicted of the killings.

Forget the new evidence.  Forget the hidden evidence.  Forget the shoddy defense.  Forget Rodney Melton.  The jury said he should die.  The Board agreed.

In an assertion of actual innocence, we believe that considerable deference should be afforded the findings of the jury and trial court as well as subsequent appellate and post-conviction reviews.

Oh, sure.  The jury didn't get all the evidence.  The trial court didn't get all the evidence.  None of the appellate or post-conviction reviews heard all the evidence.

So what.  Six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  Isn't that enough?  We've got someone to throw against the wall.

Except, in the last analysis, it's not up to them.  It's up to Governor Ted.  He's said that he finds some things about the case "troubling."  Me too.  But, well, will that matter?

After all six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  And it is an election year.  And the horror! The horror!  And well, when someone dies, you're supposed to do something about it?

But

The thing is, Sam Spade wasn't willing to take the fall for Brigid O'Shaughnessey.  He figured she might get out in 20 years.  And he'd be waiting for her.  Because it wasn't just any old something he was supposed to do.  It was the right thing.

The Ohio Public Defender released a statement in response to the Parole Board's ruling.

The Governor’s ultimate responsibility is to ensure that no human being is executed in Ohio absent absolute certainty. In Kevin Keith’s case, too many questions remain unanswered, and his execution should not proceed as planned.

The Parole Board's own recitation of facts and brief findings cannot avoid facts pointing to the existence of doubt about Mr. Keith's guilt. For example, the Parole Board found that the lineup used to identify Mr. Keith for this crime was "arguably suggestive," and recognized that the "science of measuring the extent to which an event is 'encoded' into memory is imprecise." The Parole Board also noted the there was no "biological evidence linking Keith to the crime." Unfortunately, however, the Parole Board gave "considerable deference" to the jury and courts in making its recommendation. But it is undisputed that no court or jury has ever considered the entirety of the new evidence that raises serious questions about Mr. Keith’s guilt.

They went on.  Read it yourself.

I've asked the question before, and I'm sadly sure I'll ask it again:  Do we care?  Does it matter?

Six people were shot, three of them children.  Three of the victims died, including one of the children.  That's a horrible thing.  It's inexcusable.  Something really should be done.

The question is what.  The answer, and really, it's beyond sensible argument, is that we don't add to the tragedy.  We shouldn't kill at all, but if we're going to (and this is Ohio, so we are), we need to be damn sure we're killing the right people.  This time we can't be.

I don't know what happened in Bucyrus that night in February 1994.  Neither does any member of the Parole Board.  Neither does Governor Ted.

How sure is sure enough?  However sure that is, we're not there.  Not even close.

But the horror! The horror!

Except the real horror?

That's in getting it wrong, Ted.

That's in getting it wrong.

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.