Smoke Rising

And now he's dead.

They killed him just as he insisted they should.  The way he wanted them to.  This is the punishment I want you to give me, that I insist you give me.  I'm a very bad man, so do what I want.

And since he's a very bad man, he got his way.

He smiled to the room full of witnesses as soon as he stepped into the execution chamber and winked at his spiritual advisor, who was sitting in the crowd. He gave a thumbs up as he sat in the chair.

Eight minutes later,

with fists partially clinched and smoke rising from his body,

Robert Gleason was dead.  His last words:

Well, I hope Percy ain’t going to  wet the sponge. Put me on the highway to Jackson and call my Irish buddies. Pog mo thoin. God bless.

The Irishman from Lowell, Massachusetts, killed in the electric chair in Jarratt, Virginia. 

As he insisted.  As he wanted.

Thumbs up and fists clenched.  Smoke rising.

Feel better?

------------------
Inset quotes are from coverage by Michael Owens at TriCities.com.

It's So Much Easier To Kill than Be Competent

So it looks like Robert Gleason will finally get his wish.

He wants his lower right leg to be shaved and also his head.  He wants to have a metal cap strapped onto his head and an electrode strapped to the shaved part of his leg.  He wants to have a strap across his chest and a couple more holding down his arms.  And then he wants some designated killer to flip a switch or press a button or whatever they do there in the Old Dominion State in order to get the electricity flowing.

He could have chosen to be tied down to a gurney or a table or whatever they use and have the killers pump poison into him, but he figures that'll hurt more.  So the chair it is.  His choice.

Just as it's been his choice to be killed.  

I'm not going to write at length about the stories.  I've parsed them in some detail here and here and here.

Gleason was doing LWOP in maximum security for the May 8, 2007 murder of Michael Kent Jamerson when, on May 8, 2009* he killed Harvey Watson, his cellmate.  He'd begged the guards to move Watson, but they wouldn't.  So while the guards were off abusing some prisoner or masturbating or shooting dice or maybe betting on how long it would take or whatever, they screwed up the count and didn't notice that Watson had been bound, gagged, beaten and strangled until 15 hours later.  And then when he was going to be tried he insisted on a plea and begged for death warning everyone that if they didn't order him killed, he'd choose to kill again.

Gleason was due to be sentenced on August 31, 2010.  But just to make sure, to prove that he'd carry out his threat, on July 28 he slipped torn strips of a towel through a chain-link-fenced wall of an exercise cage at the Mother State's supermax prison and strangle Aaron Alexander Cooper who was exercising in the next cage.  Despite security camera and a watchtower, Cooper was dead for an hour before anyone apparently noticed.  Since, I suppose, the prison guards who should have been watching were apparently off abusing some other prisoners or masturbating or shooting dice or maybe betting on how long it would take Cooper to die.

And now it's Gleason's time. 

Not that long as these things go, but this is Virginia where the timeline tends to be particularly swift and of course it gets helped along when the guy they want to kill insists that he wants to be killed.  And that if they take their time, he''ll keep killing.

While the guards keep abusing some prisoner or masturbating or shooting dice or maybe betting on how long it will take the next guy to die or whatever.

They're going to kill him Wednesday.  The judge said he won't stop it.  The governor said he won't stop it. Gleason, of course, doesn't want them to stop it.

One of Gleason's former lawyers says that Gleason once told him he didn't want to die.  Maybe.  But he's told an awful lot of people, including judges and jurors, and as recently as last week, that he wants to be killed.

I suppose it will happen.  Unless the prison guards are too busy abusing some prisoner or masturbating or shooting dice or maybe betting on how long it will take to remember to pull the switch.

Because here's the dirty secret nobody's talking about.  If the prison guards at Virginia's maximum and supermaximum prisons actually did their jobs, Harvey Watson and Aaron Cooper would never have been murdered.  And Gleason would be punished in a way he didn't want - by serving out his sentence of death in prison.

According to Sarah Favot, in the Lowell Sun (Gleason's from Lowell), his family has already arranged for a paid obit in the Sun on Thursday.

Gleason's best attribute was the love he had for his family, according to the obituary. Gleason will leave behind four children and two grandchildren.

What the obit presumably won't say is that he'll also leave behind a couple of dead men because the people of the Commonwealth of Virginia would rather be in the business of killing people like Gleason than of running their prisons competently.

--------------------
*Really, two years to the day later.

Enough Already

Down at Chillicothe Thursday morning, they'll be killing Donald Palmer.  He says he's OK with that.

"I killed Mr. Sponhaltz and I killed Mr. Vargo and I deserve to die for it," Palmer, 47, said.

That was during an interview with Fred Connors of The Intelligencer/Wheeling News-Register last week, and it's the headline, too.
Palmer Says, 'I deserve to die."
Except, if you read the article, you've got to wonder just what he means.  I'm not doubting his remorse.  He accepts responsibility for the killings, says he was out of control on drugs and alcohol and out of touch with god (who'd apparently have saved the lives of his victims if she had a better relationship with Palmer, but that's just my atheist snark seeping in), but he was at fault, he alone is responsible, and he's truly sorry. Which may be true.

He talked at length during the hour-long interview about his victims and their loved ones but asked that his apologies not be published until after his death.
"I don't want (my apologies) to be cheapened or be seen as a ploy to somehow stop what's going to happen," he said. "I'm not trying to forgive my way out of this. I'm not."

And I have no reason not to take him at his word (though I notice that Connors didn't honor his request).
But there's also this.

Palmer said he did not ask for clemency because he does not want to spend the rest of his life in prison.
"I mean, either way is a death sentence in prison," he said. "I don't want to sit around and wait for forever to come down. I'm just at the end of this. I'm tired. I want it to be known that it's OK that I am being executed.

Enough, after all, is enough.

Palmer said he has known his execution date for 14 months.
Asked how he is dealing with knowing the exact date and time he is going to die, Palmer said, "I've been dealing with it since day one. I didn't know that I had more than five years coming. Then 10 years went by. And then 15 years went by. And then 20 years. ... By the time 20 years go by, I was ready to die. I'm just ready."

Just get it over with.
And there's this from Aaron Marshall in the Plain Dealer.

Palmer, who freely admits to killing Charles Sponhaltz and Steven Vargo after a traffic accident on a rural country road in what he calls his "postal moment," said he hopes Ohioans realize that he will be executed in their names.
"The citizens need to understand this is being done on their behalf. They should know that," said the inmate, who spoke calmly and quickly, shackled at the legs and arms in his prison-issue clothes. "This thing is something that should be on the ballot and people should vote with their conscience."
Told that the number of inmates being sentenced to death is shrinking in Ohio, the born-again Palmer attributed it to the spiritual beliefs of Ohioans. "I hope people are going to have some consciousness about what is happening," he said. 

Which doesn't exactly sound like the statement of someone who favors his execution because it's the right thing.
Palmer hopes his execution will make a point about how executions are wrong.  And he's so damn tired of living in prison and doesn't want to be there for another whoknowshowmany years and then die of natural causes or something.
Enough is enough.
Just get it the hell over with.
Let me die.
(As, by the way, he tried to kill himself a couple of months before he killed Sponhaltz and Vargo.)
And when his last thoughts (regardless of his last words) are
Finally. At last. Thank you.
Then we can no that we've inflicted an appropriate punishment, done the most severe thing we could do to him.
We've granted his last request and made him happy.
Look, I get it that most of those charged with capital offenses that they actually committed don't want to be murdered by the government.  Hell, I make a portion of my living fighting to help them avoid the executioner.  And I'm opposed to the death penalty always and ever, in every case, for all sorts of reasons.
But in the case of volunteers, whether they're fully sane and competent or crazy as bedbugs, there's something wrong beyond the moral and policy questions.  The fundamental idea is simply at odds with killing in those cases.  Really, if there's anyone we shouldn't kill as punishment, in revenge, in retribution, to deter others, whatever the reason, it's the people who want the state's help committing suicide.
I mean, when we kill them, there's really no explanation other than that we're doing it for sport.

All Power to the Condemned

I'm an atheist, but I've written a lot about mercy, which I sometimes call "an act of grace," in this blog.  That's OK.  Mercy doesn't require a deity.  Nor does grace.  They're gifts, things to be granted.

They're about the giver, not the recipient, I say.

They have nothing to do with desert, I say.

They can't be earned, I say.

And although I don't exactly say it often enough, though I maybe haven't precisely said it here at all, they ennoble those who give them.

I need to talk here about John Kitzhaber, about Timothy Alexander who mostly agrees with him, and with Gary Haugen who disagrees vehemently.

I need to talk about grace and mercy and, sadly, about the law (though maybe this time it's Law with the uppercase L).  And I need to talk about the Rule of Law and the Law of Rule and about who's in charge here.

None of these things are new to this blawg (except Timothy Alexander, and he's just a functionary really, though a vital one in this case, and one of a sort we see either too often or not often enough, depending on the day and on your point of view).

Let me begin with Kitzhaber and Haugen - two men about whom I've written before.  Here they are, Kitzhaber on the left for esthetic not political reasons.

They are, intertwined, inescapably bound together. Maybe the right image is of them holding hands and swaying in a macabre tango. Perhaps it's a tug of war, yanking ends not of a simple rope but of a noose. Really, I don't know that there's a need to get the imagery just right until it's time for the funeral elegy. Or the paean to life.

 

John Kitzhaber is the Governor of Oregon.  Gary Haugen is on death row there.  

Haugen was scheduled to be killed until Kitzhaber stepped in.  He'd overseen executions before but says he will not do it again.  Nobody, he says, will be executed here as long as I am Governor.  Our law sucks.  We only kill volunteers, which is insane.  I'm giving him a reprieve until I am no longer Governor.  In the meantime, maybe the legislature will fix this abomination. 

Haugen will have none of that.  He wants to be killed. Insists on being killed.  You can't keep me alive, dammit, he says.  I have rights.  I demand to be killed.  Now. And I have a right to be killed.  You want to give me a reprieve.  I refuse it.  I spit it out.  Fuck you.

As I say, I've written about this apache dance (I'm still working on the imagery) before.  (See here and here.) 

Naturally, they're now in court, have been for a bit.

Kitzhaber says he has an absolute right, under Oregon law, to grant a reprieve.  It's his call.  Haugen has no say.  Haugen says that's bullshit.  Kitzhaber can grant all he wants, but I have to accept before it counts, and I don't. 

And so we come to the functionary, the Honorable Timothy P. Alexander, Senior Circuit Judge sitting in the Circuit Court of the State of Oregon for the Third Judicial District.  (Can't find a picture for you of someone who's definitely he.)  Yesterday, he issued his decision.  It's an unenthusiastic but ringing endorsement of Haugen's right to make Oregon murder him.

The unenthusiastic part is dicta, the filler that judges toss into their opinions.  Technically, dicta is whatever in a court's opinion isn't a formal holding.  (This is the rule and here's how it is to be applied.) Sometimes it's important, has real legal or political or even practical consequence.  Other times it's blather.  Occasionally, it's the words of a judge bemoaning that messy obligation to obey the Law (uppercase) even if he hates it.  It's that last thing Alexander was doing when he wrote this.

I have been personally involved with death penalty litigation for more than 40 years, acting as prosecuting attorney, defense attorney, appellate attorney, and trial judge. My decision in this declaratory judgment case is not intended to be a criticism of Governor Kitzhaber or the views he has expressed in his statement accompanying the reprieve he has offered to Mr. Haugen. In fact, I agree with many of the concerns expressed by the governor, and share his hope that the legislature will be receptive to modifying and improving Oregon laws regarding sentencing for Aggravated Murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever results in executions.

However, consistent with the resolution of every other case, I am required to set aside my personal views and decide t his case on its merits and the law.

You know from that "however" at the beginning of the second paragraph I quoted how this is going to turn out.

Here's the short of it.  Governors have absolute authority to grant mercy, short term as in reprieves or permanently as in commutations.  And the people to whom they grant that mercy have the absolute right to say 

Fuck no.  I ain't taking it.

And to make that stick.

Mercy, it seems (and it turns out that this used to be the position of the US Supreme Court on the constitutional power of the President, too, but it is no longer), is not so much a grant of grace but an offer of a contract.  Perhaps subject to negotiation.  That's Oregon Law, or at least it is until higher Oregon courts speak to it.  The Law in your jurisdiction (or mine) may vary.

So here we have a judge forcing himself to adhere to the Rule of Law and ignore his predilections.  Good for him.  That's what we want judges to do.

And what he concludes is that the Rule of Law, the rule that gives the Governor absolute authority to grant mercy, is actually trumped by the power to refuse it.  So that, in Oregon at least, mercy isn't about the giver at all.  It's about the willingness of the grantee.

That's not mercy as I understand it.  It's certainly not the heritage of the divine right of kings.  Nor is it any religious conception I'm aware of.

God:  Welcome to the Kingdom of Heaven.
Dead Guy: Fuck no.  I'm not staying and you can't make me.
God: Actually, I can.

Except in Oregon.

Where the inmate gets to choose his punishment.

And where the right to suicide by prison guard is, at least for the moment, inviolate.

Haugen v Kitzhaber 1st ruling

Murder Me Now

I've taken to calling it "Death in Prison," but whether it's called that or the psychologically wrenching "Life Without Hope" or the legalistic "Life Without the Possibility of Parole" or the acronym "LWOP" doesn't matter.  It's horrific.  For many folks it's worse than the death penalty.

It lingers forever.  World without end.  Pain everlasting.

Some, not all, maybe not most but some, say they'd prefer death.

Kill me now.

They're often called "volunteers," and they raise what are for some thorny issues.

When they're being sentenced, during their mitigation hearings, sometimes even from the moment of arrest, they demand death.

• Kill me, or I'll kill again.
• Kill me, I'm a monster.
• Kill me, I deserve it.

That's one sort of thing.  Try to force the issue.  But if the point of sentencing is punishment or retribution or deterrence or anything other than killing for its own sake - and in the killing fields of the U.S. we like at least to pretend there is, then there's a complicating subtext to those demands.

• Kill me, it's the choice I prefer.
• Kill me, it's the penalty I want.
• Kill me, it will make me happy.

And when the guy (it's almost always a guy) has been sitting on death row for god knows how long and festering in his own feces and maybe he's gone completely bonkers what with 23 hour/day lockdown isolation and not having seen natural light or felt a fresh breeze or whatever for maybe a decade or two and being told you'll die on Thursday and maybe even being led to the gurney before learning that some court just granted a stay as a sick joke and maybe that's happened more than once (depending, of course, on the state and the institution and the particular case).  And so he says,

Basta!
Enough!
Get it over with.
Hell, you're gonna kill me anyway sooner or later.
So do it now.
Please.
I beg you.

What then.

It's suicidal, of course, and that raises it's own issues.

Is suicide ever moral?

Is suicide ever the choice of a competent person.

Can death be a rational choice?

Can life ever be that bad?

And what of the killers?

Carrying out a punishment raises one set of moral questions.  The law in most states, in the federal system, in the military allows state murder in some cases.  Assisted suicide doesn't have that same broad legal approval.  Assuming, of course, that it's not the same as state murder.

Carol J. Williams writing in the Los Angeles Times.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

Despairing of the isolation and monotony of San Quentin's rooftop fortress for the purportedly doomed, Stanley earlier this year stepped up his campaign for a date with the executioner by offering to solve the cold case of his third wife's disappearance 31 years ago — by disclosing where he buried her body.

When bartering failed to secure him a death warrant, he offered himself up as the test case for resuming the three-drug lethal injections, which had been suspended for six years and remain under judicial review.

"I am willing to be the experimental guy to see whether or not they work," Stanley, 66 and ailing, said in a statement to The Times. "Assuming I can't get lethal injection because of the injunction on the chemicals, I am willing to accept the gas chamber. I understand the gas chamber is available and I insist on getting a date."

Well, that calls the question.

So does this from the Statesman Journal.

Death-row inmate Gary Haugen ripped Gov. John Kitzhaber on Friday for blocking his scheduled Dec. 6 execution.In a telephone interview with the Statesman Journal, Haugen mocked Kitzhaber for not having the guts to carry out the execution.
"I feel he's a paper cowboy," he said. "He couldn't pull the trigger."
The 49-year-old, twice-convicted murderer said he plans to consult with attorneys about possible legal action to fight the temporary reprieve issued Tuesday by the governor.
"I'm going to have to get with some serious legal experts and figure out really if he can do this," Haugen said. "I think there's got to be some constitutional violations. Man, this is definitely cruel and unusual punishment. You don't bring a guy to the table twice and then just stop it."

Some folks on death row commit suicide.

Whatever the moral or legal standing of the act, they do it themselves.

Others try to commit suicide and fail.  They get patched up and returned to the row - or in odder cases almost directly to the murder chamber.

Maybe they're competent to make the decision they do.  Maybe not.  But it implicates nobody.

Volunteers are different. They implicate everyone:

• The killers.
• The lawyers who support their efforts.
• The lawyers who oppose their efforts.
• The psychologists on both sides.
• The judges.
• The prosecutors.
• Maybe the jurors.

And those who stand on the sidelines cheering or crying.

After reproducing a chunk of the Williams article about Stanley, Doug Berman asked one of the relevant questions.

If one is eager to torture (psychologically and physically) a condemned murderer by denying him the opportunity to end his LWOP suffering, I suppose it makes sense not to honor his wish to die.  But is there a truly humane reason to refuse such a request to end LWOP suffering if the condemned murderer has no reasonable basis to hope for any eventual freedom from harsh imprisonment?

But it's only one of the questions, and really, it's the wrong one.

Because the request isn't, not ever,

Go away and let me die.

These folks aren't saying

Give me some pills and leave me in peace.

They aren't the one's slitting their wrists with their fingernails or fashioning nooses out of prison jumpsuits or smashing their heads into the wall repeatedly in the hope of breaking it open.  As I say, there are suicides and attempted suicides on death row.  Allowing them to act, unimpeded, may or may not be humane.  But it's not what we're talking about.

We're talking about the ones who are asking us to kill them.

Not, I want to kill myself, but I want you to kill me.

Which is something very different.

Judge Brad Zell and Miguel de Cervantes

We've seen it before.  (Here, for instance.)

The request demand to be executed.

I will kill again if you don't kill me.  I promise.

They're not just death penalty volunteers.  They're not just saying

• I deserve to die for what I did, or
• I'd rather die than have a life sentence, or
• I'd like to commit suicide, but I'm either too incompetent or too scared.

No.  Oh, maybe they say those things, but it's much more.  They're actively courting the desire to be murdered.  So committed are they to it, so passionate about it, that they are prepared to kill again.  And again.  And again.  Until the state gives them the satisfaction of killing them.

If they got a sexual charge out of it (and who knows?) we might call it an extreme form of masochism.

This time it was in South Dakota and the guy who wants to be murdered is Eric Robert.  He entered a guilty plea to the murder of Ronald Edward "RJ" Johnson, a corrections officer at the South Dakota State Prison, during an escape attempt.  Robert was serving an 80 year sentence for kidnapping.

And he wasn't done.  The judge, Brad Zell, wrote in his sentencing opinion:

Robert has expressed on numerous occasions the fact that he has already killed a correctional officer and in less than a moment, he can and/or will do the same if given the opportunity. Robert expressed a similar state of mind to the Court on September 16, 2011, during his change of plea hearing when he indicated that his plan on April 12, 2011, involved killing as many correctional officers as it took to free himself from his oppressors or to be killed in the process of freeing himself. Robert provided under oath that he attempted to bait a guard to get close enough to him during the end of his foiled escape attempt so he could grab his gun to continue killing. Robert further told the Court that he would have killed anyone in the way of his escape during the April 12, 2011, escape attempt. Robert also stated that he would most likely in the future hurt and/or kill anyone who would oppress him from his freedom. Robert expressed that in his state of mind no one was a "human being" in the war he believe needed to be waged against his oppression.

As Doug Berman wrote,

I have long thought that murders of officers by inmates already serving life terms while trying to escape present the most compelling of all cases for the death penalty, in part because merely imposing another life sentence functionally means the inmate will suffer no additional punishment for the murder and in part because the inmate would then also have no reason not to again try to escape and kill in the process (unless we are prepared to allow prison officials to torture the inmate instead of executing him).  In this case, not only has the defendant killed as part of an escape attempt, he is stating directly that he will do so again if he is not sentenced to death.

Well, sure, maybe.  Except no.

Robert's a lousy example because he mucks it all up by wanting the state to kill him.

So much for that "no additional punishment for the murder part."  Give him what he wants and it isn't additional punishment, it's a reward.

And he's prepared to bully the system into giving it to him.  That threat:

I will kill again if you don't kill me.  I promise.

Do we bow to it?  Supposedly, we don't negotiate with terrorists.  Zell understood that and tried to get around it.

The Court understands Robert's wishes. The Court has found no authority to support a person's wishing to die constitutes an aggravating circumstance. It does not. If the Court would fmd such wish a circumstance, the ·Court would be assisting Robert in his suicide wish. There can be many circumstances in our society where a person for a number of valid reasons wishes to die. South Dakota law, however, does not recognize assisted suicide as a legal justification for death. Thus, this Court will not consider Robert's wish to be put to death as an aggravating circumstance for considering the death penalty.

Easy enough for Zell to say.  Helluva lot harder to do.

And at some level, the result is a sham.

Don't be pleased with this death sentence.  You're getting it as punishment, not as reward.  So it won't be the same thing.  Even if it's identical.

The great Argentine writer Jorge Luis Borges wrote of a novelist who set out to write Don Quixote ("Pierre Menard Author of the Quixote").

He did not want to compose another Quixote —which is easy— but the Quixote itself. Needless to say, he never contemplated a mechanical transcription of the original; he did not propose to copy it. His admirable intention was to produce a few pages which would coincide—word for word and line for line—with those of Miguel de Cervantes. 

Borges compares brief passages from Cervantes and Menard, word for word identical, yet altogether different.

The contrast in style is also vivid. The archaic style of Menard—quite foreign, after all—suffers from a certain affectation. Not so that of his forerunner, who handles with ease the current Spanish of his time. 

As Pierre Menard, so Judge Zell. He imposes the sentence Robert wants, but it is Zell's sentence, not Robert's.  It is the sentence imposed, not the sentence desired.  Except Borges was intentionally writing fiction.

Berman's also wrong, as is Zell, in thinking that there's no alternative way of ensuring the safety of others.  Robert will kill again.  He's assured everyone of that.  The only way to stop him is to kill him.

We know better.  Death doesn't stop Freddie Krueger.  Friday the 13th Part 11 is coming to a theater near you. Hannible Lector will escape.

The Golem cannot be stopped.

But wait.  That's all fiction, too.

Run the prison competently, and Robert won't have the chance.  Isolate him as needed.  He's vicious, not a thaumaturge.

Berman's real question doesn't depend on Robert of course.  He asks how we punish those who are getting the most sever punishment we can give if we don't have a more severe punishment to offer.  The problem is that they're all like Robert, failing to comport neatly with the generic issue.  Every case is unique.  Every one.  The question Berman asks ignores that.

People on death row have killed, too.  If death is all we can do, they can't be punished, either. So maybe death isn't much of a deterrent after all.

And maybe punishment isn't really the answer.

And maybe we continue to do this backwards.

South Dakota, by the way, has three men on death row (Robert will be number four.).  They've executed one person, Elijah Page, in 2007.

Crazy Is As Crazy Does

[A]nyone who lives in a house for two years with the rotting remains of his murder victims must have a mental problem.

John Parker, lawyer for Anthony Sowell, during closing arguments today according to AP

You might think that's self-evident and that there's really no arguing the point - at least if living in that house was a voluntary act, which it was.  You, of course, are not a prosecutor trying to ensure that Anthony Sowell gets sentenced to be killed.

Assistant prosecutor Pinkey Carr said Sowell deserves to die for his crimes and responded to the comments about his mental condition by saying: “He’s crazy like a fox. He’s evil.”

Then Carr

reminded jurors of Sowell’s comment to arresting officers when he said, “I just want to die.”
She seized on that and urged jurors to make it come true “because it’s what he wants. He wants to die.”

Just think about that for a moment.  Put aside the fact that it's not a legal basis for imposing the death penalty.*  Just think about the claim.  The reason Sowell should be sentenced to die is that it will make him happy.

There's punishment for you.

As I keep saying at these sorts of times, I don't know Anthony Sowell.  I've never met the guy.  I've never represented him.  All I know is what I read in the paper.  From that, it seems pretty clear that Sowell doesn't actually want to be sentenced to die.  Which makes Carr's urging to the jury not just disingenuous but dishonest.  

Still, all of this tells us something about what goes on in these cases.

• Start with a guy who may or may not be legally insane but is obviously crazy.
• Deny that he's any crazier than anyone else. (Sure, we'd all live with those dead bodies; hell, it's a mark of sanity to have killed them all.)
• Insist that his enormity requires that he suffer extreme punishment.
• Emphasize that the jurors can feel good about sentencing him to die because he wants that sentence so it won't be punishment at all.
• Remember that helping someone die who wants to die is assisted suicide which is illegal in Ohio.
• Remember that an Ohio execution is the felony offense of aggravated murder.
• Remember that everyone who assists or encourages the commission of aggravated murder is guilty of that offense.
• Remember that every prosecutor, juror, and judge who signs off on a death sentence has, then, committed aggravated murder (or attempted aggravated murder if the guy doesn't happen to get executed for some reason) although nobody will ever bring charges.

And try to figure out if any of this makes even a little bit of sense.

The jury returns in the morning to deliberate some more.

------------------

*Under Ohio law, the death penalty may be imposed only when the statutory aggravating circumstances that the jury found to be proved beyond a reasonable doubt are found beyond a reasonable doubt to outweigh any mitigating factors.  That Sowell might have wanted to be killed is not an aggravator, not something that can be even a small part of the reason to find that he should be sentenced to die.

What Would Kevorkian Think?

So Jack Kevorkian is dead, and not by his own hand.

There's much to say about him, much that's interesting and intriguing.  A good biography would read, in many respects, like an absurdist novel.

• Mad scientist becomes hero/villain social activist.  
• Media fascinated.
• Tabloids go crazy.
• Goes to prison.
• Changes, in many respects, American culture.

I can see the movie now.

But that's not what I want to talk about.  I want to talk about the death penalty.

Jack Kevorkian influenced that, too.

Put aside his interest in organ harvesting and the widely accepted view that his assisted suicide machines might be 8th Amendment friendly.  The connection between assisted suicide (any kind of suicide, really) and executions makes the government uncomfortable.  We don't do that, you understand, officials say with straight faces while insisting that the folks on death row who voluntarily give up their appeals must be permitted to be killed as they wish.

It's not assisted suicide, because they're not committing suicide.  They're being killed at our insistance - but on our schedule.  Though with their willingness and support.

If they try to commit suicide, after all, we'll stop them if we can, fix them up, and then kill them ourselves.  If we accepted suicide, we'd just let them die.

So no, they can't kill themselves.  They can't even help.  We have to do it all.

And if they want it, too?  Well, that's just a coincidence.

Certainly, they deserve the dignity of being allowed to choose not to fight, to choose to support the sentence, to ask the jury for it, to oppose judicial intervention.  That's their right as humans.

But they don't have the right to kill themselves.

Only we have the right to kill.

Their only right is to be killed.  By our hand.

Something's wrong with this picture.

WWKD?

What's a Lawyer To Do?

Most decisions are left to the lawyers.

Oh, they're supposed to consult with the client on important stuff and take the clients' views into consideration.  But there are very few things where the clients have final say.  Here's the complete list for criminal cases.

• What plea to enter.
• Whether to testify.
• Whether to waive a jury.

Whether to waive time?  Whether to present an alibi?  Which witnesses to call?  What questions to ask them? Clients can make suggestions but the ultimate decisions belong to the lawyers.  (Lots of courts won't allow a time waiver without a client's explicit approval, but there's case law making clear that the lawyer has the authority to waive time even over the client's objection.)

The other thing the client gets to decide is

All that is set out in Rule 1.2 of the ABA's Model Rules of Professional Conduct.

Rule 1.2: Scope of Representation and Allocation of Authority between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Ohio's Rule (see here) is identical in substance, though slightly different in organization.

Most of the time, these principles don't present a problem. 

• Client typically wants to go home rather than jail or prison, and if not that, then to serve as little time as possible.  Lawyer wants to try and make that happen. 
• Client and lawyer agree, after discussion at least, about whether client should testify.
• Client and lawyer agree, after discussion, about whether client should change the plea to guilty or no contest or should, instead, go to trial.
• Client and lawyer agree, after discussion, about whether to waive a jury.
• Client and lawyer have no real disagreement about substantive tactics.

That's not to say there isn't buyer's remorse about those decisions after the jury says guilty or the judge pronounces sentence or after some years in the custody of state corrections officials, but that's not a problem with who decides what or how, it's a problem with unsatisfying outcomes.
But if the rules don't present a problem most of the time, they absolutely do some of the time.
There are those clients who, for whatever reasons, just want to plead guilty.  Do the time.  Maybe their guilt is overwhelming.  Maybe they find living in prison with imposed rules and constant restriction easier than living on the outside.  Maybe they're nuts (which is a separate problem).  And there are the clients who will not follow the lawyer's advice no matter what.

• I'm going to testify.  I don't care about all the bad shit that will come in.  Once I tell my story, the jury will have to find me not guilty.
• I'm going to trial.  I know you keep telling me that I'll be found guilty, but god assures me the jury will understand the truty.
• I can't admit to raping that little child, no matter what.
• Sure you say I'll probably win at trial, and if I don't that the judge will probably only give me 2 or 3 years, and I know I'm innocent, but I can't do 10 years and the prosecutor's offering me 4, so I'm taking it.

Those things happen.  We may argue, wheedle, bring in family or another lawyer to help convince the client we're right (or do none of those things), but we know that the client decides and really, we go home at the end of the day.  We've done our best to help the client make the smart choice.  That's really all we can do.  We hate it.  But we go on.
Except sometimes.
Because sometimes we find ourselves representing people who want what we abhor.
I'm not talking about representing racists or pedophiles or nazis or communists or terrorists or drunk drivers or whatever most turns your stomach or strikes terror in your soul.  We can represent them without advocating their principles.  (Notice Model Rule 1.2(b), above.)
No, I'm talking about the folks who choose as the goal of their legal representation what we hate.  I'm talking about, most recently, this guy.

His name is Denny Obermiller, and if you can believe the evidence (which he insisted his lawyers not challenge), he killed his grandparents and then raped his grandmother's body.  (Or maybe he raped her before he killed her; the news stories, and maybe the evidence, are vague on the order of events.)  He was arrested and apparently confessed.  Facing capital charges in Cuyahoga County (Cleveland), he appeared before a three-judge panel in January, to fire his appointed lawyers, plead guilty, and ask to be executed according to Leila Atassi of the Plain Dealer.

But Judges Shirley Strickland Saffold, Timothy McGinty and John Sutula spent about a half-hour peppering Obermiller with questions, trying to determine whether he understood the gravity of his decision and if he was qualified to handle his own case.
And eventually, Obermiller buckled and withdrew his request to represent himself.
"Even if you keep these people here, they still only do what I tell them to do," Obermiller argued. "So I don't understand the point of all these questions. As a matter of fact, at this point they can stay. I really don't care."

The next day, he entered the plea.
Atassi had the follow-up on Friday.

Either desperate to avoid a lifetime behind bars or fraught with guilt for strangling his grandparents and raping his grandmother -- Denny Obermiller welcomed a death sentence.
A panel of three Cuyahoga County Common Pleas Judges granted his wish Friday, sentencing Obermiller, 29, to die by lethal injection.
Obermiller stared vacantly, as the judges' delivered their decision. His former girlfriend, Gina Mikluscak, blotted tears from her cheeks and wept silently in the back of the courtroom.
Obermiller, who earlier in his trial had tried to hasten his fate by pleading guilty, indicated that he would not seek an appeal.
The surly defendant, having recently lashed out at Judges Shirley Strickland Saffold, John Sutula and Timothy McGinty -- calling them idiots for asking repetitive questions and prolonging the inevitable -- took one last jab at the bench before his case concluded.
He was annoyed by the formality of having to sign a paper acknowledging that he understood his responsibility to report as a sex offender should he ever be released from prison even though he had already been sentenced to death. Obermiller refused to sign.
The judges then asked his attorneys Kevin Spellacy and James McDonnell to indicate their client's refusal on the form and sign it themselves. But they also declined to sign the sheet, and after several minutes of discussion between the judges and attorneys, Obermiller finally relented.
Beside his signature, however, he added, "Go (expletive) yourselfs." (sic)

Actually, that "would not seek an appeal" thing isn't in the cards.  We've been down this road before in Ohio.  (Obermiller isn't our first volunteer.)  And the Ohio Supremes have made absolutely clear that every death sentence will be reviewed by them.  Obermiller can try to ensure that no issues except those regarding his sentence are raised on appeal, but he can't avoid an appeal altogether.
Obermiller's story is the occasion for my writing this, but as I said, he's not the first.  There are a whole lot of what get called "volunteers" out there:  Men who choose not to fight the charges or not to fight the death penalty or not to fight the killing itself.
Gary Gilmore set the table for the rest.  Herman Ashworth provided the occasion for the Ohio Supreme Court to establish some rules.  

Gary Gilmore

Herman Ashworth

And of course, there are all sorts of reasons.  For some, it probably is the sort of reasoned (if not reasonable) response Atassi offered as possible motives for Obermiller.  Either he didn't want to spend decades in prison or he was so racked with guilt that he thought death what he deserved.  Or maybe he's just still trying to jerk the system around.  Or maybe he's just crazy.  Or suicidal.  (He wouldn't be the first person to commit a murder in the hope of getting executed because he wanted to kill himself but didn't have the gumption.) Or, who the hell knows.
We don't know, of course.  We can't.
New ones keep coming, and every one, whether not wanting to fight at trial or at sentencing or on appeal or in the last days, every one has lawyers scrambling to figure out what to do.  And to live with their choices.
What do we do with these guys?  What do the lawyers do?  How do you represent someone whose goal for the representation is for you to assist the state in getting him killed?  Just what is your professional obligation?  Your personal one?

Today's was the last column from Randy Cohen, The Ethicist, in the New York Times Magazine, so we can't ask him for advice.  And this seems beyond Dear Abby's comfort level.
And while we can listen to what the courts say, and while we can maybe call up local ethics counsel, and while we can certainly refuse an appointment or seek permission to withdraw, none of that really responds to the deep and deeply personal issues.  What do I do when my client's goal is to lose the case?  What do I do when my client's demand is that I help the state kill him?
Maybe the client is legally competent and sane, even, as they say in some contexts, of sound mind.  These still aren't assisted suicides in the Kevorkian sense.  And no matter what the courts say or even the psychologists, they aren't ever freely chosen suicides.
And yet.
I've long since staked out the position that the interests of the client come first.  And I believe that.  And I believe that ultimately the client must determine his or her interests.
And yet.
For this one I offer no proscription.  I have no guidance.
It's personal how we deal with it, what we do.  And probably it's case by case.
And OK, there's this.
When you're client, for whom you are sworn to advocate, tells you to help him get murdered, when that happens, there is no rule.
Fuck Rule 1.2
And pass the bottle.

Kill Me Now or Kill Me Later - Part 2

Let's assume he did it.

Gleason

Here's the background.  Robert Gleason, Jr. is serving a life sentence for murder.   While in prison he killed his cellmate, Harvey Watson.  The Commonwealth of Virginia charged him with capital murder.  His lawyers worked out a plea deal so he fired them and entered a guilty plea.  He insists that he be put to death.  He threatened to kill again unless he was sentenced to die.  (You can read more about it, including my take on the story here.)

While the judge considers that, Gleason is sitting in the Red Onion State Prison, Virginia's supermax.  And now, it seems, he's done it again.  This time it was Aaron Alexander Cooper, another inmate at Red Onion.

Dena Potter, writing for AP gives some details.

Cooper died Wednesday in the recreation yard for inmates housed in segregation at the maximum security Red Onion State Prison in southwestern Virginia. Elkins is awaiting a report from the medical examiner on Monday, but he said authorities believe Cooper was strangled.
Authorities are trying to figure out how it could have happened, because each inmate is placed in a separate, small caged-in area for recreation. Elkins said authorities believe Cooper was strangled with a piece of clothing, towel or bed sheet that was somehow reached through the chain link fence that separates the inmates on the recreation yard.

Let's think about that.  Gleason is in his exercise cage.  With guards watching (or supposed to be watching), he managed to slip the bedsheet he had with him (Huh?  He had a sheet?) or maybe it was a towel, through the cage slits and got it around Cooper's neck and strangled him.  While the guards just watched.  Maybe he turned himself (and his sheet/towel) invisible?  Maybe he dematerialized from his cage and rematerialized in Cooper's?  ("But Captain, the transporter's been acting up again?"  "I'll take my chances.  Beam me over, Scotty.")  Maybe the guards unlocked the cages so Gleason and Cooper could be together.

I don't know.

Still, let's assume he did it.

What do we do now.

The man wants to die.  He doesn't want to commit suicide. He wants to be killed by the Commonwealth of Virginia.  He insists that if they don't kill him, he'll keep killing.  He's apparently serious about the threat and Virginia is too incompetent to stop him.

So the issue is posed:

We do what he wants, or he keeps killing until we do?

Isn't that the essence of terrorism?  And don't we have a rule that says you don't give terrorists what they want because it just encourages more?  And anyway, why should we give him the satisfaction?  He wants to die.  We want to punish him.  Shouldn't that mean keeping him alive?

So there's the choice:  Killing him might save lives.  Killing him means the terrorists win.

I've got it.

Run the damn prison competently.

Kill Me Now or Kill Me Later: But, Please, Kill Me

Robert Gleason wants to die.

More precisely, he wants to be killed.  By the Commonwealth of Virginia.  This is, sort of, his story.

Gleason, an inmate at Wallens Ridge State Prison was in prison, serving a life sentence for murder when he got a new cellmate, Harvey Watson.  Watson was annoying.  Really, seriously annoying.  Gleason begged the prison authorities to move Watson.  Dena Potter, writing for the AP, tells the story:

For seven days, Robert Gleason Jr. begged correctional officers and counselors at Wallens Ridge State Prison to move his new cellmate. The constant singing, screaming and obnoxious behavior were too much, and Gleason knew he was ready to snap.
On the eighth day -- May 8, 2009 -- correctional officers found Harvey Gray Watson Jr., 63, bound, gagged, beaten and strangled. His death went unnoticed for 15 hours because correctional officers had not followed proper procedure for inmate head counts at the high-security prison in Southwest Virginia.

We'll ignore for the moment the failures of the prison guards since there's nothing Potter's report to suggest that they actually contributed to Watson's death.  But we'll be coming back to them, so remember that they seriously screwed up.

Anyway, Gleason was arrested and charged with capital murder.  Lawyers were appointed, motions were filed.  Last month, while his lawyers were trying to work out a deal to spare him the death penalty (they actually did work out the deal), Gleason fired them.  Then he entered a guilty plea.  

And he's asked for death, promised not to appeal if he gets it.  Actually, he did more than ask.  He's made it a threat.

Kill me or I'll kill again.

He doesn't say he can't control himself.  He told the prosecutor he has no remorse, but he also says he deserves death.

"I did this. I deserve it," he said. "That man, he didn't deserve to die. . . .  He needed help."

So he threatens to kill again.  (And I suppose, again and again, until Virginia kills him.)

What do you do under these circumstances?  Gleason's now at Virginia's supermax prison.  If it's like other supermax places, he's single-celled, confined 23 hours a day, never in the presence of anyone - including the guards - without being bound and shackled.  Ah, but there's that threat.

Ultimately, Gleason's trying to control the process, just as tried to control (and finally did, though in a different way) the situation with Watson.

Watson's sister, Barbara McLeod of Longmont, Colo., said Gleason should be forced to spend the rest of his life in prison with no privileges.
"He doesn't deserve to be able to control his own destiny at this point. He doesn't deserve to have his death on the conscience of the state of Virginia," she said.

Which seems right.  Ah, but there's that threat.
Which brings us back to the incompetent guards. 
How does Gleason make good on his threat if Virginia does a competent job of keeping him in custody?  Remember, single-celled, confined 23 hours a day, never in the presence of anyone - including the guards - without being bound and shackled.  How's he going to kill?  Or is Virginia unable actually to run its most secure prison's so that they're, well, secure?
This is Gleason, not Houdini.
I don't know what will happen.  I don't know Virginia law.   I haven't spoken with anyone who has an interest in the case.  What I know is that Virginia can ensure that the threat is empty.  Or it can bow to his threats and desires and say that Gleason gets to decide how he should be punished.  There are those who claim that the death penalty is a deterrent.  For Gleason, it seems to be a goal.

Who's in charge, anyway?  Who should be?

Sentencing is scheduled for August 31.