Gratuitously Cruel and Unusual

 July 5, 2005.  Kirkwood, Missouri.  Police executing a search warrant.  Joseph Long, 12 years old, suffers a seizure and collapses to the floor..  Police stepped over him - repeatedly.  Failed to offer him help.  Refused to let his mother in the house to help him.  Joseph Long died.  Kevin Johnson, Long's older brother, stood by helplessly.

Two hours later,  two hours after Joseph Long died, police, including officer William McEntee, returned to the neighborhood after reports of fireworks.  It was McEntee's second visit that night as he'd been part of the search time.  Johnson, still and understandably distraught, saw him. "You killed my brother."

Then Johnson shot him.  Multiple times.

As you might imagine, Johnson being black and facing an all white jury for killing a cop, Johnson ended up on death row.  The good people of the State of Missouri plan to kill him next Tuesday.  Ho hum.  Shit happens.  Especially (but really not exclusively) to black guys caught up in the Missouri Criminal Justice System.  

OK, nothing new here.  The usual voices (mine is one, but you knew that if knew me or you'd been here before) oppose the execution for all the usual reasons - both the general ones about the death penalty in general and the specific ones about the facts and background of this case.  To date, they've had no effect.  The courts so far have all signed off on the killing, the governor is unmoved.  Unless something breaks, always a possibility with several days to go, they'll strap him down and kill him next week.

But see, there's something else.  Really, someone else: Kevin Johnson's daughter, Khorry Ramey.  She's 19 years old now.  Nineteen.  That's the same age her dad was 17 years ago when he watched his kid brother died and then killed Officer McEntee.  Johnson wants her to be there.  More importantly, she wants to be there.  Needs to be there.  To watch ti happen.  To say good-bye in the most intimate and personal way she can.  

To help her, somehow, this victim of the state's killing machine, deal with the trauma those good people of the State of Missouri are inflicting on her by killing her dad for the trauma he . . . . OK, you, know the drill.

Anyhow, here's the thing.  Missouri has a statute, Revised Code Section 546.740 saying who can watch when it kills someone:

546.740.  Execution, witnesses. — The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.

It's that last clause,"no person under twenty-one years of age," which Khorry Ramey being 19 and all, just doesn't qualify.  

And so Missouri said no.  And so Khorry Ramey sued.  And so, Missouri could have said to the court,"OK, in the interests of common decency and since we're already committed to a course that will certainly damage the kid maybe we can just let it slide and agree that, as applied to Johnson's kid this is unconstitutional."  And the court would have said, "Dandy.  Khorry wins.  Case dismissed.  Let's eat some leftover turkey."

It could have done that.  It would have been the decent thing to do.  It would have been fair and just and morally right.

Of course, that's not what happened.  Today, the Honorable Brian C. Wimes of the United States District Court for the Western District of Missouri, Central Division (let's make this as wordy as possible) issued his opinion.  Missouri wins.  Oh, sure, 

Plaintiff alleges she will suffer harm that is “real, palpable, and devastating,” and no remedy is available at law to compensate her for the emotional harm she will incur if she is barred from attending her father’s execution. (Doc. #8). The Court does not discount these allegations of emotional harm and does not dispute they are irreparable, both in a personal sense and a legal sense.

But tough noogies.  And fuck you.

Strictly speaking, it's not cruel and unusual punishment because it's not punishment at all.  But this is a blawg, not a court.  And what the prison system and the good people of the State of Missouri and the Honorable Wimes are doing is sure cruel, and damn well ought to be unusual. And, oh yeah, gratuitous.

They Can Say It But They Can't: Muting the Voices

So now we have a ruling.  

It's the sort of thing that can be parsed and parsed and parsed again.  A split the baby ruling.

It's Colorado and the case of Edward Montour who, you may recall, is facing trial for the murder of Eric Autobee.  Montour was in prison at the time for murder.  Autobee was a prison guard.  The district attorney's pushing for death and trying, desperately, to keep Autobee's parents (Bob and Lois Autobee) away from the jury.  Because they don't want Montour sentenced to death.  Nor, they say, would their son have wanted that.

The jury can't know, said DA George Brauchler.  Juries can only be told about how the killer is evil and destroyed the parents' lives.  Victims aren't allowed to express compassion.  Which is bullshit, but this is the US of A so a judge gets to decide.

And like I said, we have a ruling.

 It's the sort of thing that can be parsed and parsed and parsed again.  A split the baby ruling.

• The Autobees can testify. (Take that Brauchler).
• The Autobees cannot say that they oppose the death penalty for Montour.  (Take that Autobees.)
• The Autobees can talk about how the death of their son devastated them.  (You go Brauchler.)
• The Autobees can talk about how the death of his killer might devaste them.  (You go Autobees.)

Maybe.  Then again, maybe not.  

Here's the key language.

Thus, the Autobees may testify about the emotional impact of a death sentence or a life sentence, so long as the evidence is within the confines ofC.R.S. § 18-1.3-1201(1)(b). However, the Autobees will not be allowed to testify about what sentence the jury should impose. 

Which could mean (we're talking Legal here, not English) just about anything.

Meanwhile the DA is asking either to exclude 11 defense witnesses or to delay the trial.  

Oh, and it turns out that Montour maybe shouldn't have been in prison in the first place because he hadn't killed anyone.  Although the prior killing is part of what made him eligible for death.

Really, you can't make this shit up.

  Order re P-146 D-434 [2014-02-26] by cbsradionews

h/t Gideon

Maybe You Will Finally Hear Us

Eric Autobee

That's Eric Autobee.  Yesterday was the eleventh anniversary of his death.  Had he lived, he would now be 34, which means he was 23 when Edward Montour murdered him in the kitchen at Limon Correctional Facility in Colorado on October 18, 2002.

Montour was doing death in prison, life without the possibility of parole, for killing his 11-month-old daughter.  Autobee was a prison guard, as his father had been.

Montour pleaded guilty to the murder.  He was sentenced to die.  In 2007 the Colorado Supreme Court vacated the death sentence and sent him back to be resentenced.  Earlier this year, Montour was allowed to withdraw his guilty plea.  Trial is pending.  George Brauchler, the District Attorney, has been pushing for a new death sentence.  Bob and Lola Autobee, Eric's father and mother, have been pushing back.

Our family is suffering, and only you can help. We are not suffering due to the delay of Mr. Montour's execution. We are suffering because for 11 years you and your predecessors have tied this case up in court for your autonomous desire to pursue the death penalty against Mr. Montour. Enough is enough.

That's from an open letter they wrote to Brauchler asking him to let it go.  The problem isn't Montour any more.

All the while, it is our understanding that Mr. Montour will likely accept a plea to be imprisoned for the rest of his life in a maximum security unit without the possibility of parole In the meantime, our family sits without any resolution or finality, suffering so that our son's image and identity can continue to be used by you, not because you love our son like we do, but because you have greater political ambitions to obtain a death penalty verdict.

Of course, if they ran the prison properly.

Mr. Montour has become the scapegoat for the continuing failures of the Colorado Department of Corrections to both properly medicate Mr. Montour for his well-known mental health disabilities and to create a safe environment for the inmates and guards (like my son, a fellow guard). Unfortunately, nothing has changed since the death of our son 11 years ago. This is evidenced by the death of another guard, Mary Ricard. The death penalty is not a deterrent for inmates, if it was, Mary Ricard would be alive.

The solution to stop the assaults and killings in prisons is not the threat or imposition of the death penalty. The solution is to commit resources and energy spent in pursuing the death penalty to assisting the government in managing the mental health needs of the inmates, and at the same time, managing the safety of the prisons. We know firsthand this is a problem. I, like my son, was a prison guard and I toured the prison kitchen where my son died. This is where the work should be done - not only in honor of our son, and Mary Clements, but also in honor of Tom Clements.

That's how you honor the memory.  By doing what you can to create a better, safer place.  By not seeking political advantage.

What Mr. Montour did was wrong, but you should know that our son would not agree with killing the person responsible for his death. That is not the legacy he would have wanted. 

I don't know what Brauchler will do.  But I know what the Autobee's will.

At the trial, our family will take the stand to tell the jury that sentencing him to death is only shoving the real issues that caused our son's death under the rug, and that there are better ways to resolve Mr. Montour's case.

Prosecutors like to talk about the victims.  They like to parade before the judges and the juries and the cameras weeping mothers and fathers and children bemoaning their loss and insisting that the killer is monster who should be exterminated.  It's all about them.  All about the victims.  Do it for them.  Do it for the children.

Then along comes someone who doesn't want vengeance, who understands that peace doesn't come from more killing, that there is no closure.  Those people are ignored.  They're shoved under a rug.  Victim's offices don't work with them, don't invite them to address the court or the jury.  Prosecutors don't return their calls. 

They aren't real victims.  They couldn't have loved their child or they'd want to make another mother weep in similar pain. 

Which is not merely bullshit but deeply offensive, cruel bullshit victimizing survivors for political gain, to put another notch on the gunbelt.   

If you refuse to consider our wishes, as the victims of our son's death, then we respectfully request that you not use our son's name, images of him or our family, or any references to his (great) character during any stage of the case. If you do, it will only be to advance your interests and attempt to get an emotional verdict from the jury. We do not approve of this tactic and neither would our son.

The Autobees are not the first to speak out this way, not the first to find some peace in forgiveness rather than hate.  (Nor are they the first I've written about; see some posts collected here, though there are some others in that mix, too).  But they've been doing it for 11 years.  And for 11 years they've been ignored.

We have not been heard for 11 years and believe this is the best way to honor our great son on the anniversary of his death. Maybe you will finally hear us.

Sadly, I fear not.

h/t Bob W

   Bob Autobee Open Letter to Brauchler 10-16-13

Rhode Island, New York & Nebraska

You remember Jason Pleau and the squabble between the Feds - who wanted to kill him until they changed their mind once they actually had the chance - and Rhode Island who fought the feds so that Pleau could be sentenced to death in prison and then lost the fight but got what it wanted anyway once the Feds proved that they had the bigger dick and acknowledged that it was all about power and that they were just toying with little Rhodie and really didn't give a shit about killing Pleau.  ("As flies to wanton boys, are we to the gods./They kill us for their sport," says blinded Gloucester to his son Edgar who's playing a madman.  King Lear, Act IV, Scene i.)

* * * * * * *

It's less contentious in upstate New York.  

David Renz was on electronic monitoring, wearing an ankle bracelet, awaiting trial in federal court on child pornography charges, when he escaped from the monitoring, abducted school librarian Lori Bresnahan along with a 10-year-old girl from a mall parking lot, took them to a remote spot where he raped the girl and murdered Bresnahan.  In July, he entered guilty pleas to the rape and murder in state court and agreed to a sentence of death in prison.  But as John O'Brien at Syracuse.com explained, there was a catch.

But under that agreement, he would be allowed to withdraw his guilty plea if federal prosecutors decide the case was death-penalty eligible.

Because, you know, they can.

The actual call gets made by Eric Holder.  He has to personally sign off on it before the Feds can go after a death sentence.  But there are committees and the opportunity to make a pitch for why they shouldn't do it.  O'Brien explains.

The Federal Public Defenders Office gave a 60-page letter to federal prosecutors arguing against certifying the case as death-penalty eligible, according to Federal Public Defender Lisa Peebles.

Among the arguments was that the federal government's motive should not be revenge, she said.

Revenge, you know, because it was the Feds who didn't object to him being on electronic monitoring, so they feel, er, burned.

The Syracuse federal probation office has come under fire over the case. Probation officers ignored 46 signals from Renz's monitor before the murder. One officer was fired and another demoted as a result of an investigation into the handling of the case.

But just because Renz committed crimes while under federal supervision shouldn't justify it becoming a capital offense, Peebles said.

And there's that the families of the victims don't want the death penalty. 

Renz is scheduled to be sentenced to death in prison January 10.  Unless Eric Holder decides he wants to try killing him in revenge.  In which case, the prosecutor will calmly turn him over.  No Lincoln Chaffee he.

You want to try and kill him?  Be my guest.

* * * * * * *

New York has no death penalty.  Nebraska does, though they don't use it much.  They've executed three people there, one each in 1994, 1996, and 1997.  That's it.  They have 11 on the row now.  Joseph Paul Franklin is one of them.

Franklin was a serious hater, a white supremacist.  Maybe he still is.  I don't know.  What I know is that Nebraska plans to kill him on November 20.  And that Larry Flynt doesn't want them to.

Larry Flynt?  The Hustler guy?  Yep.  Him.  He took to the pages of the Hollywood Reporter to explain. It's worth a lengthy excerpt.

On March 6, 1978, as I stood on the steps of the Georgia courthouse where I was fighting obscenity charges, a series of gunshots rang out. I remember nothing that happened after that until I woke up in the intensive care unit. The damage to my central nervous system was severe, and it took several weeks before doctors could stabilize me. From then on, I was paralyzed from the waist down, and have been confined to a wheelchair ever since.

Years later, a white supremacist named Joseph Paul Franklin was arrested for shooting and killing an interracial couple. He soon began confessing to other crimes, and that’s when he admitted to having shot me. He said he'd targeted me because of a photo spread I ran in Hustler magazine featuring a black man and a white woman. He had bombed several synagogues. He had shot Vernon Jordan Jr., the civil rights activist. He hated blacks, he hated Jews, he hated all minorities. He went around the country committing all these crimes. I think somebody had to have been financing him, but nothing ever turned up on who that somebody may have been.

In all the years since the shooting, I have never come face-to-face with Franklin. I would love an hour in a room with him and a pair of wire-cutters and pliers, so I could inflict the same damage on him that he inflicted on me. But, I do not want to kill him, nor do I want to see him die.

Which cuts to the chase. Vengeance? Sure, Flynt wants to get even, to inflict pain. But it's personal.  And it's not killing.

Franklin has been sentenced by the Missouri Supreme Court to death by legal injection on Nov. 20. I have every reason to be overjoyed with this decision, but I am not. I have had many years in this wheelchair to think about this very topic. As I see it, the sole motivating factor behind the death penalty is vengeance, not justice, and I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself.

We'll see by November 20 how Nebraska responds.

The Other Victims

Bud Welch did something extraordinary.

Bud's daughter was killed in the bombing of the Murrah Federal Building in Oklahoma City.  Then, a couple of years later, he saw a picture of Tim McVeigh's father, Bill, and realized that they were both parents.  So Bud traveled across the country, some 2,000 miles, from Oklahoma City to near Buffalo,  New York, to meet with the father of the man whose son killed his daughter.  He met with Tim McVeigh's sister, Jennifer, too.

They sat around a kitchen table, the three of them.  Stephanie Salter tells what happened next.

``When I got ready to leave, Jennifer hugged me and then she just took to sobbing,'' Welch said by phone from Oklahoma City. ``I put my hands on her cheeks and held her face and said, `Honey, the three of us are in this together for the rest of our lives. We can make the most of it if we choose. I don't want your brother to die, and I'll do what I can to help.'''

This isn't another of my posts about forgiveness or a to-some-surprising voice against the death penalty and for mercy, though I could quote Bud Welch for days on those subjects (and if you get a chance to hear him speak, you should jump at it).  Really, it's not.  This isn't a post about Bud Welch at all.

This is a post about Bill McVeigh.  And about Jennifer.  It's a post about the unrecognized victims of criminal acts.  It's a post about love and loss.  See, Bill McVeigh lost his son Tim and Jennifer lost her brother Tim just as surely as Bud Welch lost his daughter Julie.  They were all victims of what happened that day.

Greg Toppo, writing in today's USA Today, puts it simply.

Americans are mourning along with victims' families in the wake of the Aurora movie theater shootings. But what should our feelings be toward the family of James Holmes, the shooting suspect?

Experts who study shooting rampages and killing sprees say we should mourn for them too.

"We have lots of sympathy for the families of the victims, as we should," said Northeastern University criminologist James Alan Fox, "but we generally don't have much sympathy at all for the family of the perpetrators — whether their loved one is dead or alive."

I've known parents who rejected their children because of what they did.  And I've known parents who cry every day over the loss of their child to the state.  And sure, maybe the kid was responsible for what he did.  And maybe Mom and Dad weren't ideal parents.  But they love their children.  Even wen they reject, they feel the pain and the loss.

The Oklahoma City memorial doesn't recognize Bill or Jennifer.  They'll do something in Aurora, Colorado, too.  And if James Holmes turns out as alleged to be the one who did those things (and if not he, someone else), there won't be a mention of the family that loves him, that mourns for what he did, and for their own loss, whatever punishment is inflicted on him.

I understand why the families of the killers are left out of the memorials.

Victims also, they're worth a tear sometime, too.

Even the bad parents love their kids and mourn their loss.

One extra tear now and again from the rest of us, one more moment of silence, one spare thought.

Really, it shouldn't be too much to ask.

More Voices: If I don’t forgive him, God don’t forgive me. WITH UPDATE

Curtis Jackson

As I begin writing this, Henry Jackson, Jr., "Curtis" to those who know or blog about him, has roughly two and one half hours, that's about 150 minutes, until the good people of Mississippi tie him down to a table and kill him.

It was November 1, 1990, when Curtis cut some telephone lines and entered a home to take money from the safe he knew was there.  By the time he left, he'd killed four children ranging from 2 to 5 years old, stabbed them to death.  He'd stabbed another so severely that she was paralyzed for the rest of her life.  She recently died. He tied up an adult woman and stabbed her repeatedly in the neck, twisting the knife.  She pretended to be dead.

It was a monstrous crime.

Did I mention that the children were his nieces and nephews, the woman was one of his sisters and the home was his mother's (she was in church at the time)?

As I said, a monstrous crime.

For which Curtis is to be killed at 6 p.m.  About 140 minutes from now.

Thing is, the family, the victim and the survivors, they want to stop the killing.  Keep him in prison, forever.  But no more killing.

From the AP.

Regina Jackson told The Associated Press that she was meeting with Gov. Phil Bryant on Monday and would plead for her brother’s life. She also wrote Bryant a letter last month asking for a reprieve, saying she doesn’t want her brother to get out of prison and that she “just can’t take any more killing.”
“As a mother who lost two babies, all I’m asking is that you not make me go through the killing of my brother,” she wrote.
She told the AP in a telephone interview that she has forgiven her brother over the years. “If they kill him, they’re doing the same thing that he did. The dying is going to have to stop somewhere.”

Governor Bryant can listen.  If not to Regina, then maybe to her sister, Glenda who also lost two children to Curtis's bloody rampage.  With her husband Andrew Kuyoro, Glenda sent Bryant a letter asking him to spare Curtis.

The couple said they have tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won’t if he dies.
“We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don’t put our family through this horrible execution,” the Kuyoros wrote. “We are not asking you to take pity on Curtis, we’re asking you to show US mercy. We have been through enough.”

Then there's Martha Jackson, Curtis's mother, who was in church when her home became a charnel house. She's forgiven Curtis, she said. 

If I don’t forgive him, God don’t forgive me.

As best I can tell, Governor Bryant has not yet spoken.

130 minutes to go.

UPDATE

The Governor denied clemency.

"I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law. One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children,” Bryant said. “However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed. My thoughts and prayers are with the victims and their loved ones." 

I can't speak for "the victims and their loved ones," but they've spoken for themselves.  Rather than Governor Bryant's "thoughts and prayers," they wanted him to keep their son and brother alive.

I Will Relive All the Pain All Over Again

Lynn Elliott

David Alan Gore

David Alan Gore was 29 on July 26, 1983 when he and his cousin Fred Waterfield picked up Lynn Elliott and Regan Martin who were hitchhiking their way to Wabasso Beach, Florida.  Instead of taking them to the beach, though, they put handcuffs on them and drove them to Gore's parent's house where they raped them.  Gore shot Elliott, then 17, to death while she was trying to escape.  14-year-old Martin survived.

Elliott wasn't the first woman he killed.  Here's Melissa Holsman in the Treasure Coast Palm.

On the eve of his death penalty trial for the 1983 abduction, rape and murder of a Vero Beach High School senior, David Alan Gore told authorities what they had long suspected: Lynn Elliott, 17, wasn’t his first killing.
She was his sixth, Gore, then 29, confessed to prosecutors in November 1983.
Gore, 58, admitted killing six women in Indian River County between 1981 and 1983. Most were sexually assaulted, some were tortured and others were dismembered and buried in hidden graves in citrus groves west of Vero Beach.

Waterfield is doing life.  Gore is doing life, too, but not for Elliott's killing.  For that, he's to be executed at 6 tomorrow evening by the people of the Sunshine State.  (Yeah, his lawyers are still filing stuff, but you probably shouldn't hold your breath waiting for some court to issue a stay.)

And execution in Florida isn't exactly big news around the country.  After all, they've killed 72 men and women there beginning with John Spenkelink in 1979.  Hell, Gore won't even be the first this year.  That was Robert Waterhouse, murdered on February 15.

So there's nothing special about Gore.  A brutal serial rapist and murderer.  Just another guy on the row.  His death will be, the 73rd execution in Florida, and number 1,290 since Gary Gilmore restarted executions in 1977.

But this post isn't about Gore.  Nor is it about Elliott.  He probably can't be saved.  She, surely, cannot be resurrected.  Nor can Gore's other victims.  "Shit," as testimony indicated that one of my former clients said while watching a news story on TV about a murder he'd recently committed, "happens."  And really and sadly, it can't be undone.

But then there's this special series on Gore and his crimes and the upcoming killing in Treasure Coast Palm.  And in particular, there are the stories of the others, those who are still around.  Family and victims. 

Consider Lynn's parents.  Russ Lemmon talked to them.

Jeanne Elliott says her stress level has gone up considerably since Feb. 28, the day Gov. Rick Scott signed Gore's death warrant.
That's not the case with her ex-husband, Carl Elliott.
"The closer it gets, the better I feel," he said.
. . .
They both plan on being in the front row for Thursday's execution.

Their son, Jason, may or may not be a witness, but he's thrilled for his parents.

"I'm looking forward to it for my parents," he said. "It's great that it's happening, but more so for them."

Then there's Martin, the one who survived.

Lee Martin also plans to witness the execution. She is the mother of Regan Martin, who was abducted with Lynn Elliott but survived the ordeal.
Regan Martin, now 43, is married with two kids and living in Georgia.
"I know that I am not going to witness the execution. I really don't want to see his face again," Regan Martin said. "My husband will be going in my place and of course my mother will be there.

And so it goes.  Lemmon spoke with the families the 6 women Gore killed and quoted them all on their plans and enthusiasm for the upcoming festivities.

He didn't speak to Gore's family, though.  Or at least he didn't report what they might have had to say.  My guess is that they aren't quite as enthusiastic as they are set to join all those others in losing a child/brother/father/uncle/spouse.  But then, we don't count them as victims.

We do, though, count Angela Hommell.  It was back in 1976 that Gore and Waterfield took turns raping her at gunpoint after she tried to get them to help with a pair of flat tires.  Melissa Holsman tells the rest.

Angela Hommell

What she believed was a friendly ride to work nearly turned deadly, she said, after the men took turns raping her while pointing a gun at her head, court documents state.
In 1984 sworn depositions, Gore admitted he and Waterfield devised a ploy to pretend to threaten her with a gun, as part of a plot to rape her.
"After I pulled out the gun, he was keeping the game going, that's when I told him 'Fred let's don't play anymore. Let's go ahead and do what we're going to do,' " Gore recalled during an October 1984 deposition.
He said he had a "snub nose" .22 caliber handgun.
They agreed to let Hommell go, he said, after she promised not to tell anyone what they had done to her. But at a hospital that night, she reported the incident and Gore and Waterfield were briefly jailed before being released. Both men claimed their sex with Hommell was consensual and they were never charged with a crime.

It's that last line.  Never charged with a crime.  Hommell figures that if they'd been prosecuted for her kidnapping and rape, they'd have been in prison and therefore the crime spree that included the death of Lynn Elliott, well, it just wouldn't have happened.   Maybe, maybe not.  But if she couldn't stop the other killings, maybe she can stop this one.

"I am writing to you to ask for clemency and/or a (stay) of execution for Dave Gore," Hommell wrote state officials in March. "I believe if they (Gore and Waterfield) would have been prosecuted for the rape against me they would have gone to jail and not be able to go on the killing spree that they did. I am not going to feel closure and/or justice for me if Dave is killed. Not in my name. . . . I am asking as a victim of Dave (and Fred) to stay the execution and give him life without the possibility of parole," she wrote. "If you do not stay the execution, April 12 will be a horrible day for me and I will relive all the pain all over again."

She told Holsman.

"I don't believe in the death penalty. I'm Roman Catholic and in Germany we think the death penalty is barbaric. . . . If he does get killed on (April) 12, that's going to be a bad day for me, or any day therefore, you know."

Rev. Bill Carmody, pastor at St. Dominic's Catholic Church in Colorado Springs, has counseled Hommell for a decade or so.  He knows she's serious.

"The reason she's doing it is to give David Gore one last shot at life," Carmody said. "In spite what he did to her, she's still going to fight for his life, which I find amazing."

Nobody's quite saying it, at least the Treasure Coast Palm doesn't say it, but killing Gore won't bring anyone back.  The dead stay dead.  There'll just be one more dead person.

Who will likely be mourned. 

And whose death will revictimize Angela Hommell.  Who's really suffered enough.

As I keep saying, it's not about him.  It's about us.

I should note that in 15 minutes the Connecticut House of Representatives will begin debating abolition.  And then there'll be a vote.  And it will just be up to the Governor, who says he'll sign.

That won't change anything for Gore, of course, or for the Elliotts or Regan Martin.  Or for Angela Hommell.

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.

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.

What Lesson Do You Want To Teach Your Children?

Mark Stroman

Rais Bhuiyan

The guy on the right is Mark Stroman, and the Great State of Texas plans to murder him on Wednesday.

This post is not about him, except incidentally.

The guy on the left is Rais Bhuiyan.

This post is pretty much about him.

On September 21, 2001, the guy on the right shot the guy on the left in the face, hoping to kill him.  Just as he'd killed Waqar Hasan on September 15 and as he would kill Vasudev Patel on October 4 of that year.  His death sentence is for the murder of Patel.  It was a hate crime.  All three shootings were.  Stroman, a white supremacist, was targeting men he believed to be of middle eastern descent in revenge for the September 11 acts of terrorism. 

Except Bhuiyan didn't die.  And in the last few months, he's undertaken a truly daunting task.

He's trying to save Stroman's life.

I wrote about Bhuiyan's astounding capacity for forgiveness back in May.  That post was occasioned by a press conference at which Bhuiyan announced his efforts.  It will be no surprise to anyone, I don't think, to learn that so far Bhuiyan has not succeeded.  As I said, Texas intends to murder Stroman on Wednesday.  It still intends to.

But where press conferences and a website and a fair amount of publicity (and a lonesome blawgger in Ohio) haven't achieved anything what can you do.

Bhuiyan wants to meet with Stroman.  Stroman wants to meet with Bhuiyan.  They both want to engage in a process of mediation leading, perhaps, to reconciliation.  The Texas Department of Criminal Juistice (the state prison folks) have a mediation program in place for violent criminals and their victims.  Just as soon as Stroman's legal efforts to avert his execution next week, the TDCJ can begin deciding whether to allow mediation for the two of them which could begin as soon as 5 or 6 months after Stroman is dead.

Oh, that won't work.

Texas, of course, like Ohio, like other states, like the feds, is deeply committed to ensuring the rights of crime victims.  Their voices will be heard.  Their needs will be met.  They will be offered support and comfort and help.  As long as they seek vengeance.  The rights of victims don't extend to seeking mercy.  At least, not so far.

Bhuiyan's rights have been violated and are being violated.  He wants Stroman's execution stopped so that they can engage in mediation.  Wednesday he filed a lawsuit.  He explained why in an op-ed for the Austin American-Statesman.

I love the great state of Texas, but it makes me mad that some of the state's elected and appointed officials want to kill Mark. He shot and tried to kill me, yet I have never wanted him to die. The family members of Mark's other victims support my personal battle to stop his execution.
So why do some of the state's elected and appointed officials think we should execute him? In whose name is this going to happen?
That is why I am taking Gov. Rick Perry to court.  Perry decreed that April 10-16 would be Victims' Rights Week. "I encourage all Texans," he said, "to join in this effort by learning more about victims' rights and supporting victims of crime whenever possible. We can help our fellow Texans on the road to recovery with compassion and respect."As a victim of a "hate crime," I had hoped to see a little of that compassion and respect. The Texas Victims' Bill of Rights says I am entitled to dignity. I have been bitterly disappointed by the legal process, which only causes me more suffering. Nobody told me what was happening at the trial; the prosecutors told the jury, "This man needs to die."
Why? Mark Stroman is no saint, but he is not the man who shot me. I met a lady recently who described to me how Mark had saved her 78-year-old mother's life; even today he writes to her every week, helping to encourage her out of her suicidal depression.
I have no recollection whatsoever of ever being asked if I wanted the death penalty; I have never been allowed mediation with Mark, which would help me to understand my ordeal, and recover from it. Instead, the state officials want to kill my attacker. It may buy them votes, but it will only cause me more pain.

You'll notice that it's not just Bhuiyan.  The spouses and children of Hasan and Patel fully support what he's doing.  The government of Texas, at least so far, not so much.

Bhuiyan says that he was raised in a loving, supportive family that stressed forgiveness.  

Only then can you heal.

Stroman's family took a different approach.

When he was a kid, about the kindest thing his mother told him was that she was $50 short on aborting him. His stepfather ordered him to hate people who were different, and beat him every time he refused to get into a fight.

Each clearly learned something from home.  Which brings Bhuiyan to his final thought.

I guess my question, governor, is what lesson do you want to teach your children?

Bhuiyan v Perry

I wish I could say that I expect the Texas courts to side with Bhuiyan.

J'accuse (Ooops)

Dominique Strauss-Kahn did or did not sexually assault a maid at the Sofitel in New York City.

That is, of course, true of everyone.  You, my readers, each of you individually or even as a gang, did or did not sexually assault a maid at the Sofitel in New York City.

Ah, but you weren't accused.  You weren't publicly vilified, forced out of your high prestige job, removed as a powerful and plausible candidate to become the next president of France.

You weren't locked up.  You weren't denied bail.  You weren't confined to house arrest.  You weren't forced to find new digs because the neighbors were horrified at the presence of someone

• so vile
• so horrid
• so dangerous
• so damned accused.

May 16, Artie McConnell, Assistant District Attorney, in open court.

The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with.
. . .
She made outcries to multiple witnesses immediately after the incident, both to hotel staff and law enforcement. She was then taken to the hospital and was given a full sexual assault forensic examination. The observations and findings during that exam corroborate her accounts.

May 19, Artie McConnell, Assistant District Attorney, in open court.

The victim was given a complete and expert forensic examination and the findings from that examination are consistent with her account. The Crime Scene Unit processed the hotel room and the scene, and while those scientific tests have not been completed, the preliminary indications are that forensic evidence that supports the victim’s version of events may be found.

Jim Dwyer, William K. Rashbaum, & John Eligon, today's New York Times

Although forensic tests found unambiguous evidence of a sexual encounter between Mr. Strauss-Kahn, a French politician, and the woman, prosecutors now do not believe much of what the accuser has told them about the circumstances or about herself.
Since her initial allegation on May 14, the accuser has repeatedly lied, one of the law enforcement officials said.

And now?  Eligon, again, in the Times on line.

Dominique Strauss-Kahn was released from house arrest on Friday as the sexual assault case against him moved one step closer to dismissal after prosecutors told a Manhattan judge that they had serious problems with the case.
Prosecutors acknowledged that there were significant credibility issues with the hotel housekeeper who accused Mr. Strauss-Kahn of trying to rape her in May. In a brief hearing at State Supreme Court in Manhattan, prosecutors did not oppose his release; the judge then freed Mr. Strauss-Kahn on his own recognizance.

So what happened in that hotel room?  I don't know.  You don't know.  Artie McConnell doesn't know and neither do the guys from the Times.

Here's what I know.

She claimed to be a victim and was, therefore, believed. Because victims never falsely accuse.  Which is generally true if you think about it - it's only people who aren't victims who falsely accuse.  And who are they?  Oh, they're people who claim to be victims but aren't.

They're the ones who ruin lives with a word, hiding behind the cloak of anonymity we choose to give anyone who claims to be a victim because we've made this determination as a society.

It's better that one guilty person be convicted than that 10 innocent ones be freed.

Wait.  Hang on a second.  Isn't that supposed to be the other way around?

Better that 10 guilty persons be freed than that one innocent person be convicted.

Bah, that's second grade civics.  That's law school.  That's Blackstone and hundreds of years of Anglo-American jurisprudence.  That's those guys with beards and robes who wandered through the desert for 40 years after the flood and then the followers of some crank who got crucified after running the money lenders out of the temple.  That's, my god save us, foreign law.

We will hear now that the system works.  That the prosecutors are carefully examining and evaluating and won't go forward unless they really believe he's guilty and can prove it.

But that's bullshit.  Because you can't give it back.  You can't undo the damage.

Dominique Strauss-Kahn did or did not sexually assault a maid at the Sofitel in New York City.

So what happened in that hotel room?  I don't know.  You don't know.  Artie McConnell doesn't know and neither do the guys from the Times.

It's not that it doesn't matter.  It's not that if Strauss-Kahn did those things of which he's accused he should walk free.  It's not about cutting breaks for rapists or other malefactors.

It's about a presumption of innocence.  It's about not blindly accepting whatever accusers say. It's about starting with doubt rather than (if you'll excuse the word, but it's exactly the right one) conviction.

Monday is July 4, Independence Day, when we celebrate the spirit of revolution as the fertilizer of the tree of liberty.  (Which is kind of a lousy metaphor, but what the hell.) It's the day when we look at the document which emphatically does not say

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. And that when someone is accused of bad stuff all the rest of that crap doesn't count. 

Jefferson knew better.