Wednesday, July 19, 2017

After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched and described what the witnesses saw.
Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

Monday, June 19, 2017

A Terrorist by Any Other Name

What’s in a name? that which we call a rose
By any other name would smell as sweet.
The names are the problem, Juliet says. Romeo, after all, is wonderful. The trouble is that he's a Montague, hated for that alone by her family, the Capulets.

Names, words themselves, matter. They have power.

Consider the god of Genesis. For him (that sui generis god is surely male) god the word, logos (λόγος), calls forth the thing.
And God said, Let there be light: and there was light.
Want a more quotidian example?  

Michelle Carter was just convicted of involuntary manslaughter for sending her boyfriend, Conrad Roy III, text messages urging him to kill himself - which he did.

In the Washington Post, Tung Yin has an op-ed discussing the difficulty of determining when a killing is terrorism rather than murder.  It was easy, he says, in decades past when terrorists routinely announced their motives.  Now, not so much.  

While Yin concedes that 
As far as the prosecutions go, perhaps it doesn’t matter whether reporters and ordinary Americans regard a perpetrator as a terrorist or as a mass murderer.
It clearly matters to him a great deal.  He never does say why, though perhaps it's because he's a law prof specializing in, according to a biographical note accompanying his op-ed, "national security law and terrorism." 

But to what end, exactly?

Call it murder.  The victims are just as dead.  The killers can get whatever satisfaction they get from killing bunches of people.  But really, there's nothing special.  Nothing to see here.

Just another mass murder.

Doesn't have the same cachet, does it?  Hard to find quite the same sense of nobility?  Maybe harder to convince someone to do it. 

Just a thought.  Because words matter.

Sunday, June 18, 2017

Government Work

Hey, maybe he didn't do it.  But close enough for government work.

It's the story of too many folks on death row.  Too many folks in prison.  Too many charged and convicted where . . . .

OK, let me be both careful and honest about this.  I don't know how many factually innocent folks - ones who just flat out didn't do it (whatever the it may be) are charged with and convicted of crimes.  I don't know how many pay the traffic tickets they shouldn't have gotten or how many are doing a few years in stir or how many are awaiting a trip to the gurney.  Or how many have been executed.

I don't know.  Neither do you.  Neither does anyone else despite studies and analysis and careful estimates and wishful thinking and blind guesswork.  Nobody knows.  

What we know is that whatever the number, it's too many.  Every one is a failure of one or more parts of the system.  Every one is a mistake.  Some of those mistakes are more tragic than others.  Some have deadly serious consequences:

  • Innocent people locked up forever.
  • Innocent people killed.
  • Lives ruined.
  • Families destroyed.
  • Guilty people left free.
  • Some to pillage, rape, murder again.

But every one a mistake.  Every one a failure of our system of so-called justice.

Nicholas Kristof in today's Times tells the story of one likely candidate.  (Kristof's written about him before; so have I.)  This guy.
Kevin Cooper's on death row in California for four brutal murders in 1983.  There's a better than even chance he was framed for the killings that put him there.   Despite a lot of concern - and some outright vituperation - expressed by a number of judges, by some media, and by plenty of do-gooders, nobody with the power actually to do something has seemed to show much interest.

I mean, hell.  The guy was convicted by jury of 12.  And we haven't gotten around to killing him yet, despite his having spent more than three decades on death row.  What more can you ask for?

Oh, yeah.  You can ask for new and more definitive DNA testing.  

You know, the stuff that can maybe answer the question of whether he's the wrong guy.  Or, of course, maybe not.  If they'd do the testing, there are three possibilities.

  • It'll pretty conclusively show he didn't do it - and just maybe who did.
  • It'll pretty conclusively show that he did just what he was convicted of, showing that this is a case where things actually worked right.
  • It'll be inconclusive and leave things about where they are now, but with another stone turned.

Is any of those a bad thing?  Is there something to fear?  Is there any good reason why they won't just


Yeah.  I couldn't think of a reason, either.

Close enough for government work?

Looks like it is.

Saturday, June 17, 2017

Conflating Guilt

You know Cosby's guilty.  You just know it.  But the jury hung!?

What is it that the jury did't get?  How could they have been so confused? 

And that cop in Minnesota, Jeronimo Yanez.  The one who killed Philando Castile who's girlfriend caught it all on video.  Acquitted?  

Gimme a break.

I mean, we know.  We just fuckin' know. 

Which is, kinda, the problem.  Sorta.  In part.

Greenfield explains today why Cosby may not actually be guilty.*  But, well, Scott only touches on a part of it.  Because guilt is complicated.  As is innocence.

I've talked about these things at length before (here for instance).  I'm going to try doing it simply, now.

So -- 


By which you mean exactly, what, Grasshopper?

Legal?  Cosby will be legally guilty only if and when a jury says they are convinced that the prosecutor proved beyond a reasonable doubt each of the elements of the offense as set forth in the Pennsylvania criminal code.  Legal guilt is, essentially, a question of what the jury says it believes based on the evidence presented.

Factual?  Cosby will be factually guilty of violating that law, whatever the prosecutor does or does not prove to the satisfaction of the jury, if he in fact did each of the elements of the offense as set forth in the Pennsylvania criminal code.  The jury may or may not reach a verdict (OK, this jury didn't actually reach a verdict at all, but that's a quibble) that conforms to factual guilt.  That's why factual and legal guilt aren't the same thing.

Moral?  The fucking SOB is a pig who ought to be strung up by his fingernails.  Sometimes moral guilt equates with factual or legal guilt.  Sometimes not.  Nobody said life is fair.  And nobody says that we're all going to make the same moral judgements.  You know, life sucks.

Biblical?  We're all children of original sin, if you believe that shit.  Ain't none of who isn't guilty. Sigh.

Which brings us to



Legal?  Unless and until a jury says he's guilty, he's legally innocent.  Wholly and completely. Without exception.  Which has, of course, nothing beyond vain hope and some degree of luck and coincidence, to do with 

Factual?  As in, he did not in fact do each and every one of the things the statutes set out as elements of the offense.  Which may or may not match up with 

Moral?  Is what he did subject to moral opprobrium?  Kinda depends on whose morals you look at, I imagine.  

Biblical?  Is he saved?  God'll sort it out.  If she's so inclined.  And exists.


*And with the hung jury he is, at least for now, wholly and completely innocent - in a way.  (Keep reading the damn post to learn the way.

Tuesday, April 25, 2017

The Theory of Our Constitution

Back in the 1950s, Bob Hope used to tell this joke.
An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded."It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."
* * * * *
We begin at the beginning, with the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Justice Black looked at those words and famously said, "No law means no law."

I suppose he may have said that at one time or another, but the actual quote is from a concurring opinion in Smith v. California. It's worth quoting the whole passage.
I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge.
Oddly, Floyd Abrams doesn't quote that passage in The Soul of the First Amendment, his new book about the speech and press protections of the First Amendment. 

Nor does he quote Holmes, dissenting in Abrams v. United States:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
But if Abrams doesn't quote Black or Holmes in this brief book, he channels them.

Here, he says, is how it works in the United States under the First Amendment.  At least, how it works now and how it has generally worked since somewhere in the middle of the last century. 

Speech is protected.  The press is protected.

The government doesn't get to tell you what you can say and what you can't.  The government doesn't get to decide who can speak and who can't.  The government can't prevent people from saying offensive things.  It doesn't get to decide that the New York Times can have a voice but Breitbart can't.  

Or the other way around.

It's legal - offensive and hateful and stupid, but legal - to spout racist claptrap and insist that the Holocaust didn't happen, and it's too damn bad.

Truth is an absolute defense to defamation.

And corporations?  They really can spend their money on advertising to try and influence elections.

You may not like it.  You may prefer the greater privacy protections in Europe.  You may prefer to prevent speech you consider hateful.  You may think Citizens United was the worst, most wrong-headed decision the Supreme Court ever issued.  

And you may believe with every fiber of your being that Berkeley should prevent Ann Coulter from speaking there and that if Berkeley lets her in it would be proper to fire bomb the auditorium in order to shut her voice down.  Ulrich Baer, you may insist, is right when he claims in the Times that the remedy for bad speech is to stifle it, that it's only those who don't intuitively understand the harm of speech who believe that the remedy for bad speech is more speech.

But that's not our system.  Our system, as Abrams makes clear, is unique in rejecting every one of those things.  With the narrowest of exceptions (and still too many, some of us would argue), Hugo Black was right.  No law means no law.  The "spirit of the First Amendment," he says, is "its anticensorial soul." 

You're free to insist that he's wrong, of course, or that he should be.  You can speak out against free speech and the First Amendment as much as you like.  The First Amendment gives you that right. Maybe it would be better otherwise.  They think so everywhere else in the world, and maybe they're on to something.

Or maybe not.  Floyd Abrams thinks not.  Abrams is 80 years old.  He's been litigating these cases for decades.  And winning them.  

In The Soul of the First Amendment he tells the story of how "no law" came to mean something close to "no law."  He shows how it is that our approach to free speech really is unique.  And he explains, argues, why he thinks it's a good thing.

There are, of course, serious questions.  That you can speak doesn't necessarily mean that you should. In the book's final chapter he explores how "free speech should be responsibly exercised."  That's not a legal question, of course, and "[t]he First Amendment provides no answer to this question.  It never does."

My thanks to Yale University Press for sending me a copy for this review.

Tuesday, April 4, 2017

How Far We've Fallen

Let's start the way Laura Kipnis does:
Lately I've been thinking that future generations will look back on the recent upheavals in sexual culture on American campuses and see officially sanctioned hysteria.  They'll wonder how supposedly rational people could have succumbed so easily to collective paranoia, jus as we look back on previous such outbreaks (Salem, McCarthyism, the Satanic ritual abuse preschool trials of the 1980s) with condescension and bemusement. They'll wonder how the federal government got into the moral panic business, tossing constitutional rights out the window in an ill-conceived effort to protect women students from a rapidly growing catalogue of sexual bogeymen.  They'll wonder why anyone would have described any of this as feminism when it's so blatantly paternalistic, or a "political correctness" when sexual paranoia doesn't have any predictable political valence.  (Neither does sexual hypocrisy.) Restoring the most fettered versions of traditional femininity through the back door is backlash, not progress.
Unwanted Advances: Sexual Paranoia Comes to Campus is a terrific book.  It's a takedown of how
Title IX is used on college campuses to (all-too-often) punish men and infantalize women.  More, it's to roll back feminism (you know, equality) in favor of "captivity narratives and fair tales about endangered damsels."

Sexual agency?  Nah.  That was so 20th Century.  Today's women on campus are helpless wimps. Their tales of sexual predation, even when contradicted by the evidence they present, believed.  Or so Laura Kipnis argues, and argues convincingly, the campus culture - as applied by Title IX administrators and enthusiastically adopted by at least some women - insists.

At the same time, of course, those same helpless women are throwing themselves into situations where they are likely to be . . . .  Well, risk is (or at least used to be) part of growing up, of what college was about.  Make mistakes but learn from them.  And know the difference between the silly and the depraved.

Kipnis is a professor at Northwestern, and much of her book is about the trials of Peter Ludlow, once an internationally renowned philosophy professor.  Kipnis had rare access to the complete record of his cases and his own evidence.  She uses it to devastating effect to show that while in the context of 2012 on campus his judgment may not always have been wise (things he did would have been unexceptionable 10 years earlier), he was a victim of an extensive, extraordinarily expensive, witch hunt, that left him at least comparatively broke and living in Mexico.

And there's her own case.  Kipnis had written an article, "Sexual Paranoia Strikes Academe,"
for the Chronicle of Higher Education, a weekly read mostly by college faculty and administrators. And, it seems, by at least some students at Northwestern who held a protest march against her.  And then brought charges against her under Title IX for sexual harassment and creating a chilling atmosphere by, I suppose, not being sufficiently deferential to the prevailing view that all men on campus - students and faculty both - are sexual predators and all women are, QED, prey.  

Of course, Kipnis then wrote another article for the Chronicle: "My Title IX Inquisition."  She is, you see, a trouble maker - and not to be trifled with.

OK, I said this is a terrific book, and I meant that.  But it's important to add that all her details have to be taken on faith.

She tells stories of other Title IX outrages both to, well, outrage and to indicate that it's not just Northwestern and not just she and Ludlow.  But there's no attribution, no documentation.  Just how widespread is the problem?  She declares, but we pretty much have to take her on faith.  (I do; enough stories seep into the public domain; but still.)

And while she's devastating in the critique of the cases against Ludlow, well, she's seen the thousands of text messages and thousands of pages of documentation.  But we see only the snippets that make her point.  It's what we in the criminal defense biz do during closing argument.  
You can't believe he's guilty.  You heard the witness.  When they spoke to the police at the time they said it was noon and he was wearing a red shirt.  In a follow-up report it was 7 a.m. and the shirt was blue.  Now, on the witness stand, it was nighttime and the shirt was entirely hidden by a coat. Reasonable doubt?  At least.  They can't keep their story straight.
Which is fine until the prosecutor gets up on rebuttal and reminds the jurors that the crime was on videotape and they saw the tape.

Is there a smoking video somewhere in the evidence against Ludlow?  I doubt it.  I believe Kipnis. But you do kind of have to take her word for it.  

In the last analysis, though, Unwanted Advances isn't about Title IX abuses.  That's the frame.  It's about a culture, and its danger.
All this being said, as I weigh the evidence in my own inner courtroom, I can understand why the university had to jettison Ludlow.  Personally, I don't think he abused his power. The problem was that he didn't share the conception of power in vogue in academic precincts. . . . Yes, Ludlow was guilty -- though not of what the university charged him with. His crime was thinking that women over the age of consent have sexual agency, which has lately become a heretical view, despite once being a crucial feminist position.  Of course the community had to expel him.  That's what you do with heretics.

My thanks to Harper Collins for making a copy of the book available to me.

Sunday, March 26, 2017

Where it All Went Wrong - Kinda

I've been trying to figure out just why I found Michael D. Cicchini's deconstruction of the case(s) against Steven Avery so annoying.  

It's not that he says anything that's particularly wrong about how criminal law and procedure actually work (and don't).*  And it's not that Convicting Avery: The Bizarre Laws and Broken System Behind Making a Murderer is a polemic.  I mean, it is a polemic, but I'm OK with that.  Hell, half of what I write here is polemic.

And on the whole taking the book seriously won't make anyone stupider.  It's not bad.  It's just annoying.  And I think I've figured out why.

Go back to Mencken and what he wrote in "The Divine Afflatus" (1917).
Explanations exist; they have existed for all time; there is always a well-known solution to every human problem - neat, plausible, and wrong.
If you don't go for Mencken, try Trump.
Nobody knew that health care could be so complicated.
It's just not that neat.  Not that simple.  

Sure, a show up is a terrible way for the cops to get an identification if they want to be sure they're identifying the right person.  And one bad ID tends to taint the next, which combine to taint the next even further.

And yeah, police are very good at getting people to waive their right to silence.  (And the courts are enthusiastic partners in the effort.  I mean, really, you can't invoke your right to silence simply by refusing to speak.  You have to announce that you are invoking.  You must, that is, speak in order to remain silent.  Welcome to OZ - or perhaps Catch 22.)  And of course, what you say will be held against you.  

And yeah, cops tell stretchers on the witness stand.  All the time.  (Of course, so does nearly everyone else - mostly on total trivia. The first lie every witness tells is swearing to tell the truth, but it's particularly pernicious when the cops do it.  Their lies don't tend to be trivia.

So yeah, all of that.

But it's not all even.  And it's simply worthless to be equally outraged about everything.   Maybe the cases against Avery were/are that bad and the cops simply decided to frame him.  It happens.  Not often, but it happens.  

Except that I'm not convinced.  

There's a tunnel vision to law enforcement - cops and prosecutors both.  Once they've figured out what they think happened, they focus only on proving it.  There's little room for reconsideration or doubt.  They're not in the business of second guessing.  And they too often decide what happened by looking at the evidence through the lens of what they'd like to find.

So give them a reason to hate Steve Avery and it's no surprise that they'll find themselves readily convinced that he killed even if the evidence is less than compelling.  (And it's not as far fetched as Cicchini makes it sound.  Often the simplest explanation is the right one.  Even smart people do stupid things.)

As I said, it's annoying.  Cicchini doesn't understand (or pretends he doesn't) nuance.  His world (at least as presented in Convicting Avery) is black and white.  The real world isn't. Which is perhaps why I don't come away from the book convinced that Steve Avery was framed.  Though it seems pretty clear that he's not guilty beyond a reasonable doubt - and maybe not at all.

There's lots wrong with the way police and prosecutors pursue cases.  And maybe Avery's is a model of error and bad judgment and bad law and misconduct.  Maybe it's the grossest miscarriage of justice ever. 

Or maybe it was an excuse for a book that's not wrong exactly, not a bad book certainly, but just - well - annoying.  

I am grateful to the publisher for providing me with a copy.

*CAVEAT:  I'm one of the apparently very few people who didn't watch Making a Murderer, and I don't know the particulars of Wisconsin law or procedure, so I can't actually vouch for the factual accuracy of that stuff.