Wednesday, November 15, 2017

On Victims and Killers and Survivors. On Life and Death. On Forgiveness. - UPDATE

Lexington, Kentucky.  April.  2015.  An apartment complex.  Salahuddin Jitmoud delivering a pizza. 

Well, not exactly.  Exactly, Jitmoud was delivering his life (so the cops and courts said) to 3 men who were looking to rob pizza delivery guys.  He was 22-years old.

I don't know who actually killed Jitmoud.  Apparently the actual killer hasn't been indicted.  But Alexander Relford, according to the prosecutor (via Marwa Ettagouri at the Washington Post), "set up the robbery, he provided the knife, he tampered with evidence."  And there's the fuck-you factor.
[H]e is the one who ate the pizza afterward.
Relford got 31 years.  

  • Complicity in murder.
  • Complicity in robbery.
  • Attempted tampering with evidence.

He'll be out when he's 55.

In the criminal courts, that's little more than business as usual.  

What's not is what Abdul-Munim Sombat Jitmoud did.  He's the father of Salahuddin Jitmoud.  The kid who was murdered for his pocket change and a pizza.  He's the one who gives the lie to pretty much everything the haters want you to hear.


A Brief Digression

The case involved a shooting.  There were two victims - one intended, one an innocent bystander.  (Shit happens when bullets fly.)    

Wait, did I say there were two victims?  Only sort of.  Oh, the defendant was separately charged for each shooting.  And there's no question they were both shot (one in the leg, the other in the hand).  But the accidental victim of the gunshot?  She couldn't identify anyone as a shooter.  All she knew, all she could tell the cops was that the guy who shot her wore a red hoodie.

But the defendant didn't have a red hoodie. 

The detective said, testified under oath, that she wouldn't cooperate.  All she'd tell us about the shooter, the detective said, is that he wore a red hoodie.  And since she wouldn't cooperate, the detective said, she wasn't an "actual victim."  

Really.  That was the testimony.

End Digression

You hear that Muslims are terrorists.  The President tells you that thousands cheered in the streets in New Jersey as they watched the World Trade Center collapse.  They say it's all about hate.

Talk to Abdul-Munim Sombat Jitmoud.  Whose son was killed for a few bucks and a pizza.  Ask him.  Or just note his words, from the witness stand, at the sentencing of Alexander Relford who was at the least complicit in the murder of his son.  
Forgiveness is the greatest gift of charity in Islam. . . . I don't blame you, I blame the Devil, who misguided you to do such a horrible crime.  
There are things you rarely see in court.  
Teary-eyed after the father's gesture, Fayette County Circuit Judge Kimberly Bunnell called for a break in the hearing.
And then, after court resumed, after Relford apologized, after that.
Then the father and the convict hugged, Relford wiping his face with tissues as Jitmoud wrapped his arms around the 24-year-old.
In a couple of hours, the good people of the State of Ohio will be putting Alva Campbell to death.  It's pretty clear it won't go well. The nurses who examined his arms for the execution team said his veins can't support the needles. He'll be struggling his way to the death house with his walker.  I assume he'll still be wearing his colostomy bag.   They're giving him a special pillow so he won't have trouble breathing while they kill him.  (Yes, you read that right.) 

His will be the 56th state-sponsored murder in Ohio since we got back in the killin' business in 1999.  We've got folks lined up and set to go until well into 2022.

As I said, Relford will get out when he's 55

UPDATE

Execution failed.  They couldn't find a vein.  They're going to try again, another time, if they can manage to keep him alive until then.  It'll get easier, of course, 69-year-old, terminally-ill men routinely have their veins get bigger and sturdier over time.

I can't help but note that Ohio is now the only state to have failed even once to complete an execution since the bungled electrocution of Willie Francis in 1946.  And we've now failed twice.


Sunday, November 12, 2017

What? You Thought the System Got It Right?

Danny Brown did not kill Bobbie Russell.  

That's settled in the minds of just about everyone except her son, whose memory of his mother's murder is false, and the Lucas County Prosecutor who agreed to cut Danny loose after he spent 19 years in prison and dismiss the case against him but who still believes him guilty and would love to charge him and convict him again.

Despite the DNA that pretty conclusively indicates that Bobbie Russell was killed (and, not incidentally, raped) by Sherman Preston.  Alone.

Cameron Todd Willingham didn't set the fire that killed his kids.  Which Rick Perry basically knew when he signed off of Willingham's execution.  

Joe D'Ambrosio did not kill Anthony Klann, though he did spend 22 years on death row before he was exonerated.  And the state?  Well, you know the story.

And Ricky Jackson.  We'll get  back to him.

There are, of course, others.  The list of the wrongfully convicted isn't just a list of folks who didn't kill.  There are the ones who didn't rape, who didn't rob, who didn't burglarize, who didn't bear false witness or pray to graven images or . . . .  (OK, maybe the graven images thing.)

If you've been paying attention, you know that's true.  (As you do if you've been reading this blog, I should add in a self-glorifying moment.)  The question, of course, is how it happens.  And the corollary is what can be done about it.

Enter Mark Godsey, Daniel P. and Judith L. Carmichael Professor of Law and Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law.  And now author of Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.

Mark was at one time, as the subtitle says, a prosecutor.  Not just any old kind.  He was one of that special breed, an Assistant United States Attorney in New York.  That's big stuff, and he was, as he tells us, quite full of himself and the honor and glory and nobility of his job.  Rooting out bad guys and locking 'em up.

He tells us about how he'd brainstorm with his fellow-AUSA's to as they'd cook up cockamamie theories to explain away evidence (say, coerced confessions) that was wholly inconsistent with the guilt of those they so righteously prosecuted.

He tells us that he, well, he didn't exactly cheat.  But he didn't go out of his way to challenge the potential bullshit that was presented to him.  And he didn't notice - didn't let himself notice, really, that a whole lot of what they did in building cases and selling juries on them was grounded in a set of convictions about infallibility that bore no relationship to demonstrable fact.

This isn't exactly news, though it was to Mark until he found himself coerced into running the Kentucky Innocence Project for a year.  And oops.  

The first chapter of his book is called "Eye Opener," and it's where he describes that epiphany.

As for the rest, he takes on the usual suspects.

  • Confirmation bias
  • Faulty memory
  • Coerced confessions
  • Inaccurate eyewitness identification
  • Bullshit forensics
  • Tunnel Vision

All this, he explains, leads to factually innocent folk getting convicted of crime despite the best efforts of everyone to do the right thing.

The academics have shown this, of course.  They've done the studies that demonstrate how false memories can be created, that eyewitness identification isn't particularly reliable, that nobody - not cops, not prosecutors, and certainly not judges or jurors - is particularly good at figuring out when someone is telling the truth or when someone is lying. 

And then there's the explanation.  That's the confirmation bias and the tunnel vision.  It's the group-think of police and prosecutors.  It's built into the human condition.  There's science for that, too.

And the studies, the science, all of it, is backed (often fronted) with stories of exonerations fought, exonerations won, and exonerations still pending resolution.  Here's a case, he says.  Look how the ID was bad!  Look at how the cops coerced the confession!  Look at how they implanted a memory or just got the witness to correct the memory to comport with the evidence! 

It's storytelling not because a story proves the point but because it illustrates the point.  And amid the tens of stories he tells, there's particular focus on a few.  

Most frequently, it's the case of Steve Avery from Making a Murderer.  It makes sense.  Many readers will know the story already.  And it serves to illustrate many of his points.  Clarence Elkins and Dean Gillespie get special treatment too because, well, Mark and the Ohio Innocence Project freed them.  

None of this is particularly new.  Along with untold numbers of books and articles addressing individual horror stories of the innocent convicted and sometimes (but not always) exonerated, academics and others have been churning out books on this with regularity.  In the last few years alone there've been Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent, David Harris's Failed Evidence: Why Law Enforcement Resists Science.  And those are just a few I've reviewed here.

The perspectives vary.  They don't all tell the same stories.  But they all make the same points.  The system is flawed.  And while it can't be perfected, there are things that can be done to improve it.  Not surprisingly, they all recommend essentially the same things.

  • Videotape confessions
  • Abandon the Reid technique of interrogation
  • Sequential, double-blind administered lineups with immediate declaration of degree of certainty
  • Remove crime labs from the control of police and prosecutors

All much easier said than done.  Because - and here's the point of Mark's anecdotes - the participants in the system simply don't recognize that there's a problem. 

See, and here's the weakness - of Mark's book and, frankly, the others.  They are, all of them, too trusting.  Oh, sure, there are a few of those so-called "bad apples."  But really, police and prosecutors and judges all really do want to the right thing.  If you could just make them see . . . .

Which is much of why Blind Injustice begins and ends with Ricky Jackson, another of Mark's clients at the Ohio Innocence Project.

Jackson's story is powerful.  In 1975, he, Wiley Bridgeman, and Kwame Ajamu were convicted of murder in Cleveland.  Sent to death row.  Convicted based on a lie.  A 12-year-old kid coerced by the cops into fingering the three of them.  Freed after 39 years when the kid recanted.  
39 FUCKING YEARS.
Because the cops got the kid to lie.

What's striking, though, is not the lie.  Not the wrongful conviction.  Not even the eventual exoneration.  See, they had the hearing.  The kid, now in his 40s, testified about how he was coerced.  How he lied.  How the lie ruined his life.  And how, finally, he came to tell the truth.  When all the testimony was over, they all broke for lunch.  Closing arguments, the judge said, after we eat.
     When we returned to the courtroom at the predetermined time, the prosecutors and the judge were nowhere to be seen.  After thrty more minutes passed, there was still no sign of the prosecutors or the judge.  We sad in the courtroom and waited, confused and exceedingly nervous.
     After about forty-five minutes of waiting, the courtroom doors swung open and Mary and her team of prosecutors entered the courtroom.  With them was the elected prosecutor -- the head of the office.  They entered the courtroom at the same time that the judge entered through his private door behind the bench, as if their entrances had been orchestrated.  The prosecutors walked straight up to the bench and said something to the effect of "We agree that Ricky Jackson is innocent and that a terrible injustice has occurred in this case.  We are dismissing all the charges and agreeing that he may be set free."
     In all my years of doing postconviction innocence work, I have never been so shocked.
OK, as Mark says, that doesn't happen.  Prosecutors typically fight exonerations tooth and nail.  But, the very oddity of what happened in Ricky Jackson's case - put up against all the stories of prosecutors who never concede - gives the lie to the assurance that prosecutors and cops and judges are all acting with good faith something like 99% of the time.

Oh, I'm not saying that they set out to frame people, to convict those they know are factually innocent.  It happens, but the frequency of that is I imagine vanishingly small.  Rather, they blind themselves and then they cheat - and they know damn well that they're blinding themselves and cheating - because that's how they make squishy cases better and good cases great. 

There's a reason we have the word testilying for what cops routinely do on the witness stand.  And the larger truth (one Mark mentions almost in passing) is that we let them get away with it.  Police aren't punished even on the rare occasions they're caught cheating.  Partly that's because they have qualified immunity.  Partly it's because they have powerful unions.  Prosecutors don't suffer for their misconduct.  Partly that's because they have absolute immunity.*  And because the legal disciplinary folks give them a pass.  Why?  Mostly it's because we - the rest of us- just don't care.  They're catching bad guys, after all.

Remember, the theory of our system is innocent unless proved guilty.  If we mean it, we have to take seriously the idea that the proof should be reliable.

Blind Injustice is worth the read.  Give a copy to your favorite prosecutor.  And maybe to your neighbor.


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*Mark says that they, like cops, have qualified immunity.  He knows better.

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My thanks to Mark and the University of California Press for providing me with a copy for this review.

Saturday, November 4, 2017

Just Look at Them and Sigh

It was April 2, 1997, just over 20 years ago.  A sheriff's deputy was taking Alva Campbell from jail to the courthouse where he was set to be arraigned on a charge of aggravated robbery.

But Campbell broke away, stole the deputy's pistol, and ran off.  Charles Dials was driving by in his pickup.  Campbell stopped the truck, jumped in at gunpoint, and drover around with Dials in the passenger seat for a few hours.  Then he had Dials get down on the floor and shot him twice in the head.  (It wasn't Campbell's first killing.  He'd been paroled five years earlier after serving 20 years on a first degree murder conviction.)

Campbell drove around some more, stole another car, though that driver escaped.  He tried unsuccessfully to steal another car, again the driver escaped.  Police caught him hiding in a tree.  He surrendered and confessed.

He's been on death row since 1998.  The State of Ohio plans to kill him on November 15.

I could tell you about his childhood of physical and sexual abuse (even the prosecutor concedes it was terrible).  I could tell you that he's remorseful now, that he claims he's changed, that he sees the world differently than he did before.  I could tell you that he's had a pretty good disciplinary record in prison.  I could . . . .  

Ah, the hell with it.  You know all that.

What I want to consider, want you to consider, is whether Alva Campbell should now, in under two weeks, die for what he did to Charles Dials.  Die for that, because there's no question he'll die (we all do).  And there's no question he'll die in prison.  The question, as always, is the mechanism of death.

And on that point, and in this case, it's worth looking for a bit at Alva Campbell today.  That's 69-year-old Alva Campbell. 

He moves with a walker.  That's a colostomy bag on his hip.  He gets four breathing treatments a day to keep him going.  And he may have lung cancer.  

They plan to strap him to a table, but he won't be lying down.  That's too hard on his body, so he'll be propped up somehow, sitting.  

And then they're gonna stick needles in his veins and pump poison --

Oh, wait.  They can't do that.  

See, Ohio's fucked up so many executions because our prison guards aren't really competent to do this shit.  So we have some special procedures to make sure the killin' will go well.  For instance, we have nurses assess his veins to be sure that they guards can get the needles in and set.  But damn.  They report that Campbell's veins aren't up to the task.  And, of course, he's allergic to the first drug they're using.

His lawyers suggested death by firing squad.  (Bad veins aren't an issue for death by bullet.)  But of course that's not a legal method of killin' here in the Buckeye State, and who knows if the General Assembly would actually pass a law or if Governor Kasich would sign it.  Anyway, the judge said no.

And so, here's the question.

What, exactly is the point?  

Alva Campbell's gonna die soon.  He says his doctors have told him he has 6 months to a year.  Sure, that's longer than a week and a half, but not all that much longer.  And it's not like he's livin' high on the hog.  His life, what there is of it, pretty much sucks.

A few weeks ago, the Parole Board held it's clemency hearing for Campbell.  

Then they voted 11-1 against recommending clemency.  Clemency was not, the eleven said, in "the interests of justice."*  Sure he had an horrific background, but he has a "disturbing propensity to engage in extreme and senseless violence."**  The one disagreed, pointing to that horrific background. 

So, now that the Board has spoken, Governor Kasich can do what he wants.***  Which brings me back around.

See, the plan is to kill Alva Campbell not because he deserves to die.  But because he deserves to be killed.  

Because it's important that he not be allowed to die of natural causes or any way other than by drugs lawfully administered by prison guards.  Natural causes?  Feh.  That's God or Nature or just the way things go.  Suicide?  Can't allow that.  Those other options would cheat the hangman, deny the good people of Ohio the vengence justice they deserve to inflict. 

And so the old man with the colostomy bag on his hip, with four treatments a day so he can breathe, with veins that can't support the needles they'll be using to push the drugs . . . .

Aw, fuck it.
Dear Governor Kasich:
Please just let Alva Campbell die in his own, and quickly approaching, good time.  It's too late to teach him a lesson.  And killing the old, rapidly failing guy won't teach anyone else, either.  Except, maybe, that we can be as cold-hearted now as he was then.  And that we should be.
Just deserts, and all.
Teach your children well.  Of course, that's not exactly the lesson Crosby, Still, Nash, & Young had in mind.  






-----------
* Whatever those "interests" may be.  The Board didn't explain.  It never does.  Presumably they're kind of like Justice Stewart's obscenity: known when seen but inexplicable.

** Or at least he did.

*** A Board recommendation one way or another is a legal requirement in Ohio before the Governor can grant clemency, but the Gov has no obligation to follow the recommendation.  Mostly, they do, of course.  It's good to let the Board take the heat one way or the other.  But Ted Strickland commuted a sentence when the Board said not to and refused to commute one when the Board said he should.

Saturday, September 30, 2017

Did Kellyanne Conway murder Melissa Trotter?

It's been a while, years in fact, since I've written about Larry Swearingen who did not kill Melissa Trotter.  That's the same Larry Swearingen the good people of the State of Texas intend to kill on November 16 for the murder of Melissa Trotter.  The same Melissa Trotter Larry Swearingen did not kill.

Sigh.

Let's do this in three parts.

Part I:  Larry Swearingen was in police custody when Melissa Trotter was elsewhere getting killed.   That seems incontestable.  

The Texas courts don't care.  The prosecutors don't care.  After all, there's all that circumstantial evidence and junk science that points to him.  Therefore he's guilty.  Proof that he's innocent would be, I don't know . . . . 

Wait, I got it.
Alternative Facts.
Cool.  Let's blame the killing on Kellanne Conway.  I don't know where she was at the time.

Anyhow, whoever killed Melissa Trotter, it wasn't Larry Swearingen.

But, again, the courts don't care.  The prosecutors don't care.  And Texas plans to kill him on November 16.

Part II:  As I've said from time to time in the context of more than one allegedly bad guy
TEST THE FUCKING DNA!
But of course they won't.  Well, that's not quite right.  They've tested some.  To the surprise of pretty much nobody who paid attention to Part I, 
IT AIN'T HIS.
Which is, of course, not of any particular interest to the courts or the prosecutors.  Who don't care.

There's more stuff that can be tested, really, stuff that should be tested.  The trial court (the Texas trial court!) has a couple of times now ordered the testing under the Texas post-trial DNA testing statute. Of course, the prosecutor appealed, because -- we'll get to that.  And the Texas Court of Criminal Appeals said "No."
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT IN A CAB!
YOU MAY NOT TEST IT IN A LAB!
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT, THAT WE SAY!
Oh, and in particular, if testing were to be allowed, the DNA could not be run against the existing DNA databases to see if it matched a person who might have killed Melissa Trotter.  Say, someone who understands and hides behind alternative facts.  Say, Kellyanne Conway.

Nah!
No testing, no checking.
But the court is cool with killingLarry Swearingen November 16 for the murder of Melissa Trotter whom he did not kill.

Part III:  Which brings me to the prosecutor and the reason he doesn't want the testing done - though he'd love to have it done.  Just as long as he can be assured that the testing will be irrelevant.  Jordan Smith, at The Intercept
The problem is with the way the statute is written, says Bill Delmore, chief of the Montgomery County DA’s Legal Services Bureau, which handles the office’s appeals. In deciding whether a defendant is eligible for DNA testing, a judge is required to find that exculpatory results would likely change the outcome of the defendant’s trial. That’s exactly what Case found each time he granted Swearingen’s request. But Delmore says his office is unwilling to accept that possibility. “I would never, ever agree — never, ever agree — that the presence of a third party’s DNA on some random piece of evidence in this case establishes that Larry Swearingen is innocent. That is ridiculous,” he said.
What the DA’s office wants is to be able to conduct testing without ever having to acknowledge that the results might change the original conviction. “If you told me that all the other evidence had somebody else’s DNA on it, then I’d say, well, [that person] must’ve done this with Larry Swearingen,” Delmore said. “It’s really hard for me to imagine DNA evidence in this case that would actually, in my mind, exonerate Swearingen.”
See, the problem is that the evidence might matter.  Oh, sure, it would just get a hearing.  But damn, then someone would have to consider . . . .
Still, Delmore is adamant that he and his boss Ligon are not opposed to DNA testing, per se. “We’ve always been willing to do the testing, but we’re not willing to do it under the constraints that this stupid statute puts on us.”
Besides, they probably like Kellyanne Conway.

Or maybe it was Sean Spicer.

OK, I'll come clean.  I don't think it was Kellyanne Conway.  She probably wasn't there, either.

Friday, September 29, 2017

Selling a Cramped Originalism

I make my living in the courts.  My job (and yes, I'm oversimplifying like crazy; live with it) is convincing judges* that they should do what I want them to do, decide the way I want them to decide.  Doesn't matter if I'm right.  What matters is that I win.

The best, most logical argument in the world ain't worth shit if the judge doesn't buy it.  Arrant nonsense that the judge accepts?  BINGO! 

It's a real world business this lawyering thing.  And so, and I know this will make some lawprofs cry, day-to-day and case-by-case I don't really care how we should understand/interpret/analyze/whatever the Constitution.  

In the scheme of things, though, it matters.  A constitutional republic (and pretty much everyone agrees that's what we have) can take many forms, even framed by the broad outline of our Constitution.  The republic Clarence Thomas thinks we have (or ought to have if we understood and applied the Constitution properly - i.e., as he does) is a very different place than the one that, say, Stephen Breyer imagines.  And neither looks all that much like . . . well, maybe like yours.

Which brings me to Ilan Wurman's mistitled A Debt Against the Living: An Introduction to Originalism.**  Mistitled because it's not an introduction at all it's an argument.  

Wurman isn't interested in explaining how originalism actually operates.  He doesn't say what it looks like in practice.  There's no particular vision of the republic here beyond the claim that an originalist republic would have a lot smaller federal government than ours.  

Instead of an introduction to originalism, Wurman's is an argument for originalism.  The book, he says, 
aims to arm the reader with basic arguments about the legitimacy of Constitution and our Founding, and to explain the relevance of these arguments to modern debates over constitutional interpretation.  It argues that the Constitution does form a debt against us - against the living generation - that compels us to continue to obey and abide by it today. It then argues that originalism, the idea that the Constitution should be interpreted as it was originally understood by the Framers who wrote it and the public that ratified it, is the only method of constitutional interpretation that faithfully discharges this debt.
Maybe.  But before I get to the carping, let me lay it out.  It works, roughly, like this.

First, there's what's virtually a given for Wurman:  Of course we should understand the Constitution as it was understood by those who wrote and ratified it.  Any other approach is understanding a lie. After all, when the Constitution says that the President must be at least 35 years old, if we think 40 is better and treat 40 as the rule . . . .  (That's not his example; his example involves fried chicken seasoned with "pepper to taste" but a preference for rosemary.)  

Well, sure.  But that's not a different way of reading or applying the Constitution.  That's rejecting the Constitution.  It's not the originalist's bogeyman of the "living Constitution."  It's just a new rule with no pretense to being an understanding or interpretation or even application of the Constitution.  And while there are certainly those who'd chuck out the Constitution we have in favor of whatever, they aren't the plausible opposition.

Everyone who matters in this debate believes in the Constitution.  The disagreement is in how to apply it.  Wurman's claim is that we should apply the "original public meaning," how it was understood at the time.  Not particularly by the folks who wrote it.  And not by the folks who adopted it.  But by . . . well, by the public (whoever they are).  And we can know how the public understood it by studying what Madison said in the Federalist Papers (not so much what Hamilton said, perhaps because he understood the Constitution differently than Madison).  And also by looking at what prominent folks thought it meant.  

All of which strikes me as . . . .  Well, Brennan spoke of the hubris of imagining that we can tell how the Framers would have viewed issues arising today that were beyond possibility in 1781.  And others have pointed out that Judges and Justices (and lawyers for godssake) are not historians.  But of course that doesn't mean they shouldn't try or that they can't come close.

So sure, Wurman says, we apply the Constitution as it was understood from the get go because that's what we do.  Not particularly satisfying, but there it is.

And now that we know how to interpret the Constitution, the question is whether we should bother. And of course we should.  Because "We the people" (or at least the white male property owners) adopted it.  And because it's a good thing - despite all the ways it's a bad thing.  And because, well, sure.  Which is about as non-controversial as it gets except for those folks who'd just toss it aside - and really, that's not who Wurman's talking to - or even who I am.

OK, so originalism is good and the Constitution is good.  And other approaches, hey they're malleable.  This week's flavor may not be next weeks.  They're just preferences and politics.  Which isn't nonsense, but Wurman blows the other folks off pretty quickly.

In any event, having now convinced you (Wurman seems to think), the only real question is whether originalism supports Brown v. Board of Education.  If originalism would accept separate but equal schools, then even if it's the only proper way to read the Constitution, it should be abandoned.  Shockingly, Wurman think originalism and Brown are a match made in heaven.  And he explains why.  Maybe you buy it, maybe you don't.  Most originalists do, he says, though he acknowledges that some don't. And, although he doesn't say it, I take it that the folks who don't, since they're originalists, also don't think the Brown test is all that significant.

The problem with Wurman's originalism is that it's cramped.***  Because it was to be a government of limited powers, if it isn't explicitly allowed, it must be forbidden.  (Except, of course, when he wants to stretch a point to get a result he wants - which he is mostly how he gets to originalism endorsing Brown.)  

But there's another way that, if the term weren't taken, you could also call originalism.  Ask what's the Constitution trying to achieve.  How, within its scope and framework, understanding it's lexical terms broadly rather than narrowly, do we get there?

Consider the Fourth Amendment: 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And I get it that the Constitution doesn't say anything about an exclusionary rule for violations.  Wurman says that, therefore, originalist understanding would abolish the exclusionary rule.  But the exclusionary rule exists because without it the Fourth Amendment is no more than aspirational (we're remarkably close to that these days, but that's a different post).  If the Amendment is to be effected, the rule is a necessity.  So it's not part of the document and pretty clearly it wasn't part of the "original public understanding."  But effecting the Fourth Amendment requires it.  Which seems to me, but not to Wurman, the right test.

A Debt Against the Living is short.  It's mostly lucid.  You don't have to be a scholar, not even a lawyer I don't think, to get his argument.  But it's glib.  Too often trimming a bush  and declaring the forest cleared.  

On the other hand, based on the blurbs from some respectable and prominent originalists who seem to think the book brilliant, maybe the problem is that I'm not sufficiently of the choir to which he's preaching.
 
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*Juries, too, but less often and in any case they aren't relevant to where I'm going with this.
**The title is taken from a letter James Madison wrote to Thomas Jefferson.
***Wurman acknowledges that there's a strain of originalism that reads the Constitution more broadly than he does.  Having acknowledged the fact, he then pretty much ignores it.
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My thanks to Cambridge University Press for sending me a copy to review.

Saturday, September 23, 2017

The Innocence Commission and the Innocent Man

October 1987.  Nine at night.  Hickory, North Carolina, an hour or so west of Charlotte, they called it Little Berlin.   Carrie Eliot, widowed just under a year, 69 years old, five foot nothing on a good day, widowed, living alone.  

A man forced his way in.  "I want you. . . . I like older women. . . . They don't mess around."

He raped her.  First in the living room.  then the bedroom.

A neighbor, paid $1,000 for the tip, told police it was Willie Grimes.  Carrie Elliot, whose description didn't match Willie, picked him from a photo spread.  Then she identified him in court.  

Willie testified. He'd gone to the police station voluntarily.  Had no idea what they wanted.  They hadn't let him go. And now here he was. And damn, he never raped that woman.  Or anyone else, for that matter.

You know what happened next.  Nice white lady.  Black guy.  She says it's him. He says nope. There's no DNA.  No forensics.  Just she said.  And he denied.

Willie J. Grimes was sentenced to spend the rest of his life in prison.

* * * * *

It's not giving anything away to say that Willie Grimes didn't do it.  The title of Benjamin Rachlin's book, Ghost of the Innocent Man: A True Story of Trial and Redemption, makes that clear.

And if you read the flap on the dust jacket, you'll realize that the title tells only half the story. Rachlin's book is as much about Willie's "relentless champion, Christine Mumma, a cofounder of North Carolina's Innocence Inquiry Commission," as it is about Willie.  That's its strength - and its weakness.


Here's Willie.  He knows he's innocent.  His family and friends know he's innocent.  His lawyer fully believes he's innocent.  But the jury didn't buy it and the judge didn't buy it and the appellate courts don't buy it and . . . .  Damn.

The guy is shuffled from prison to prison.  He has menial jobs (there are no other sorts in prison) but makes the best of them.  He tries to stay out of trouble.  He wishes his lawyer would get back to him with what's happening - or even what isn't happening.

He'd probably have been paroled, but that required rehabilitation, which required accepting responsibility for raping Carrie Elliott.  And he couldn't do that, of course, because he hadn't raped her.

Christine Mumma was a juror in the capital case of one James McDowell.  She voted for death, but really . . . .  A few years later she went to law school. First thing she did when she got there was look up the guy she'd condemned. He hadn't been killed. In fact, he was off the row.  New lawyers got his sentence reduced to life.
She felt strangely relieved he'd never been executed.  Even a criminal like McDowell deserved a better attorney than he'd had.
After law school, after one thing and another, she ended up clerking for I. Beverly Lake, chief justice of the state supreme court.  She noticed that some of the criminal cases were incompetently tried.  Maybe the guys were guilty, maybe not.  But if they were innocent . . . . No, that never happened.  But shit.

She talked to Lake who told her what she probably knew anyway.  "Guilt wasn't a question his court considered.  That had been addressed already, at trial. . . . A judge didn't overrule jurors based on his own subjective opinion."  But you know, and they knew, that some folks behind bars were being proved innocent.  So it seemed it did happen.

Meanwhile, Willie, who was innocent but without proof, sat in prison.  In time he converted.  He became a Jehovah's Witness.  

And Christine got to working with a small clinic at UNC's law school.  And then she got Lake involved and others.  And they put together a committee to try to figure out how to make convicting innocent people harder.  

Willie's case eventually made it to Christine's file cabinet.  Where it sat because while it seemed pretty clear that his was a good innocence case, there wasn't the evidence to help him.  There just wasn't anything she could do.

And then she dragged that commission kicking and screaming into actually trying to figure out how to get North Carolina to make a serious effort to undo past wrongful convictions.  

Which eventually led (as you learned from the dust jacket) to North Carolina's Innocence Inquiry Commission.  Which is something extraordinary.*

And as you might imagine, after, years and years and false starts and dead ends.  YIPPEE!  The NCII gets its second exoneration.  And it's Willie.

And it's all very cool.

Rachlin tells the stories in alternating chapters until the end when they merge.  It's an effective narrative technique, and he tells the stories well.  That's especially true as he reports on the rape and what passes for an investigation and the trial.  And it's true as he follow's Christine's efforts to create something new in North Carolina.  And it's true when the strands come together at the end.

But the day to day of Willie's life in prison.  All 24 years of it.  Too often not so much.  It's not surprising.  It's hard to make the quotidian - even the prison quotidian - fascinating.  There are moments, but they don't tend to get developed.  An then there's another visit from his Jehovah's Witness teachers.

I'm carping, and probably shouldn't.  It's not how I'd have told the story.  But that's not the test.

So let's go with this.  You know, if you're among the people who read this blawg, that the legal system fucks up more than its fair share of the time.  Too damn many factually innocent folks are in prison - often leaving the actual criminals to prey on others.  Willie Grimes's story of innocence eventually recognized is, in that sense, nothing much new.  

By itself, it's one of those long New Yorker articles.  But it's not by itself.  it's connected to Christine Mumma's effort to do something not just for him but for a conception of justice.  That's something to write home about.  

It's something, too, to read a book about.  Ghost of the Innocent Man is that book.


----------------
* And unique.  There are, scattered around the country in various prosecutors' offices, conviction integrity units.  Some of which actually seem to function - though others pretty clearly don't.  But no other state has an actual, statutory Commission and a procedure for locating and exonerating.



Friday, August 25, 2017

No Winners

There is so much about which to cry.

Charlottesville



Barcelona



Syria  



We might quote Tacitus.
They make a desolation and call it peace.
It's easy to hate in response.

Other things are hard.  Hard to draw strength and inspiration from the horror.



Harder still, the act of grace.

http://www.bbc.com/news/av/world-europe-41056859/barcelona-attack-father-of-youngest-victim-hugs-imam

Which makes me cry, too.