Saturday, December 3, 2016

Better Angels My Ass

Lincoln, at his first inaugural, spoke of healing of the nation's wounds.
We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.
He was hoping to head off civil war.  It didn't work.  The war came.

And it was bloody and it was awful and it ended up, well, kind of back where we started.  Slavery abolished, sure.  But equality?  Real equality?  Nah.  And certainly not amity.

So much for the better angels of our nature.

We've come a long way since then, of course, mostly leaving the bloodshed behind.  But let's not kid ourselves.  Remember Oklahoma City?

And, of course.

Because whatever lip service we pay

Or as The Youngbloods put it 

Because our real American value, the one we demonstrate rather than pontificate, is rather different.

So it's no surprise, really, that when the opportunity presents itself we cheer the killing and condemn those who would . . . .

You know what happened.  

At Ohio State the other day a guy purposely drove into a crowd of people, injuring at least one, then jumped out of his car and began knifing people.  Until a campus cop shot him dead. 

I'm not interested in the cop or the shooting.  I'm not interested in the now-dead guy.  I'm interested in Stephanie Clemons Thompson, assistant director of residence life at Ohio State.  At least, she still is as I write this.  That's the Stephanie Clemons Thompson who posted on facebook
Abdul Razak Ali Artan was a BUCKEYE, a member of our family.  If you think it is okay to celebrate his death and/or share a photo of his dead body and I see it in my timeline I will unfriend you.  I pray you find compassion for his life, as troubled as it clearly was.  Think of the pain he must have been in to feel that his actions were the only solution.  We must come together in this time of tragedy. #BuckeyeStrong #BlackLivesMatter #SayHisName
And, naturally, by Thursday afternoon more than 900 people had signed a petition calling for her to be fired.

Because as true Americans and patriots (and Buckeyes it seems) it is important that we remember to hate and never to show compassion for those who do wrong.

Well, maybe it's OK to not hate once a year.

Tuesday, November 29, 2016

This Won't End Well

It is too often true in the trenches of criminal defense that if our clients were good at making decisions they wouldn't be our clients.

Case in point:  Dylan Roof.  

Charged with killing 9 African Americans at the Emanuel African Methodist Episcopal Church in Charleston, S.C.  His motive, they say, was to start a race war.  It was, they say, an act of terrorism.  Regardless of what additional names you give to the murder, regardless of the motive, it was an horrific crime.

Bad decision to do that? Certainly.  Bad decision to hate that much (and that way)?  Certainly.  Bad decision to have that picture taken?  Certainly.

Anyhow, he's facing (you know this and I've written about it several times) capital trials in both federal and state court.

They began selecting the jury this morning in the federal trial.  From a pool of 512 (down from 747 who filled out questionnaires, which is down from the 3,000 who were originally summoned), they'll get down to a dozen jurors and 6 alternates.  It's a slow process under the best of circumstances.  So slow that testimony likely won't begin until January (so the reporters are saying), perhaps just a few days before the trial in state court is set to start.  (The state trial will be delayed.)

Of course, one thing might speed it up a bit.

Just before they started with the jurors this morning, the judge granted Roof's request to represent himself.  This is the same judge who just held a two-day, closed-door hearing on whether Roof was competent to stand trial - a lesser degree of competence, the Supreme Court says.  But, and with some reluctance (judges hate pro se defendants; their lack of legal training and acculturation makes them unpredictable and tends to complicate the trial), the judge warned Roof he was probably making a serious mistake and then gave him the green light.

Which he wanted because, you know, he knows better how to convince the . . . .  Aw, the hell with the snark.  You know the old saying.
Anyone who has himself for a lawyer has a fool for a client.
Jennifer Berry Hawes in the Post and Courier, wondered why Roof would want to represent himself.
Defendants typically seek to represent themselves in capital cases for three reasons, said Charleston attorney Chris Adams, who specializes in federal court defenses, including death penalty cases, and is secretary of the National Association of Criminal Defense Lawyers.
"They don’t have faith in their legal team, they want to die, or they want to conceal their mental illness," Adams said. "In this case, Mr. Roof had a great defense team, so I don’t think there would be any sane reason to not trust them."
No "sane reason" not to trust them.  Well, yeah.  But then ordinary sanity and the competence to stand trial or represent oneself aren't the same thing (as Chris well knows).  And trust?  Hell, the same government that wants to murder Roof is paying his lawyers to try and save his life.  It's not hard to see why he might have some trust issues.*

But as Chris rejects the trust thing, he offers another guess.
Instead, Adams figured that Roof "wants suicide by jury" to conceal mental health issues. "Since it is doubtful Mr. Roof will present his own case for life, the hearing becomes a charade as jurors are denied the information that is critical to their decision," added Adams, who isn't involved in the case.
But that doesn't seem quite right, either.  The record, such as it is, does not suggest that Roof wants to be murdered by prison personnel.  He has, after all, consistently offered to plead guilty if the governments would just take execution off the table and sentence him to death by incarceration.

But if not the suicide by jury part, the rest (perhaps with variation) seems plausible: He wants to be sure that nobody will hear mitigation evidence he'd rather conceal.  Maybe it's about his mental health.  Maybe it's about his mother.  Maybe it's about how he's been abused.  

Or maybe it's that he wants to be able to tell the jury that he did it and he's glad and fuck those niggers.  Heil!  Besides, it's federal court and Donald Trump can grant him a pardon, so what the hell.

Back when he was blogging at Hercules and the Umpire, Judge Kopf posted this picture of a sullen Dylan Roof with the lead in, "let me show you what evil looks like."

I'm more struck by this picture of a seriously fucked-up and pathetic kid.  Just the sort who'd want to keep his truths to himself.

But monster or not, evil or just pitiable in his self-absorbed mania, if he keeps representing himself, you can be pretty sure what the verdict will be.

The Lynch can be proud that she got a death sentence in an even-more-than-usual unfair fight.

*No, I'm not saying they're legitimate.  But they're things that every lawyer who takes court-appointments and every public defender has to deal with from time to time.

Monday, November 28, 2016

There's No Business Like Justice Business

He's competent.  

That is, and per the statutory language, he is able "to understand the nature and consequences of the proceedings against him [and] to assist properly in his defense."

So says the judge.  The guy was evaluated and the judge held a hearing (on more than one day, no less! Wowsers!).  

They begin picking a jury today.

Oh, sorry.  This is Dylan Roof.  The guy who they say walked into the Emanuel African Methodist Episcopal Church in Charleston, S.C. and blew away nine people because, they say, the people were African-American and because, they also say, Roof did it in order to start a race war.

Which is how it happens that a federal judge is going to oversee a capital trial for young Mr. Roof. Because Loretta Lynch want him to get executed by the feds.

Not for killing nine people (which is a lot, but nowhere near the record).  Not for killing them purposely.  Not for killing them during a Bible study or while they were in Church.  None of that.

Loretta Lynch wants the feds to kill him because his heart wasn't pure when he killed.  His motive was bad.  (As opposed to the noble motives that might drive other folks to kill nine people in church? OK, I'm probably not being altogether fair.  No, actually I am.  It is that stupid.)

Of course, the representatives of the good people of South Carolina also want to kill Roof.  Next-in-line to be UN Ambassador Nicky Haley was for it from day one.  The prosecutor took longer to sign on, but she was for it, too.  Still the feds get first shot at finding 12 jurors who'll look at Roof and say - as one judge put it in explaining why as a member of a three-judge panel he once voted against death -


Anyway, and as the Times reported, amid the rush to kill, what with all that enthusiasm and jockeying for first, er, shot at ordering up a gurney by the feds and the Southern Carolinians, it turns out that the representatives of the people don't really give a rat's ass what the people think.  Of course, that's always true in capital cases to the extent that we kick the folks who don't believe in killin' off the jury. What's being ignored here are the voices of the families of the murdered and the survivors.

There's a big movement for so-called "victim's rights."  They're enshrined in various state constitutions.  Paul Cassell's made a career advocating for them.  Politicians are enthusiastic. I mean, who can oppose treating those whose lives are destroyed by criminal acts with dignity and respect - with honoring and guaranteeing their needs.

Needs that won't much be helped by years of appeals and arguments and guaranteeing that Roof's hate is repeatedly front and center.  Needs that won't be helped by more hate and more killing.  Of a guy who's game to plead guilty and spend the rest of his life in prison - which will happen anyway, the only real question being how his life will be ordered to end.

And then there's the thing about not returning hate for hate and killing for killing.

Ah, but that's without the posturing.  Because hate.  Because victim's rights only count when the victims cry out for vengeance.  

The show begins today.

And see Scott Greenfield from yesterday.

Saturday, November 26, 2016

And Now Fidel

I find myself writing this post, extending it, on a regular basis.

Osama bin Laden
Muamaar Qaddafi
Antonin Scalia

The Reviled.  The villains.  The evildoers.  

Scalia's different, of course, because there were also those who (and I'm speaking metaphorically here, but still) worshipped him.  Oh, wait.  That doesn't make him different at all - except that the metaphorical worshippers are here, in the USA, wandering among us unashamed, unafraid to show their faces (except in the communities where they are).  For the others, for bin Laden and Qaddafi, the worshipers were elsewhere - or if here, were incognito.  A distinction without a difference, as they say.*

So maybe Ted Bundy.  I've written this a few times:
When Ted Bundy was killed, Time reported that
some 200 bloodthirsty revelers gathered outside the penitentiary in Starke, Fla., for a ghoulish celebration. They lit sparklers, cheered and waved signs reading BURN, BUNDY, BURN and ROAST IN PEACE.
Hard to think that many folks worshipped/honored him - though he had, by all accounts, some mighty charisma.

Anyway, now it's Castro.  And while the reports of mourning in Cuba and rejoicing in Miami may be overblown, the principle is ultimately the same.  

A man is dead.  Think of what he did and its effects (positive, negative, chocolate, vanilla, rare or well done) and praise or condemn him.  But he's dead.  

Maybe the world is, in some sense, better off without him.  But really, not.  Without his consequence, pershaps.  But him?  He was just a man.  Who did things - good, bad, indifferent.  He liked baseball. He advanced literacy.  He crushed dissent.  He gave speeches that were way too long.  Sigh.

And now he's dead.  And I'm really sorry but that's nothing to cheer about.

* Yes, I understand that Scalia wasn't killed (give it up, conspiracy theoriest), which is another difference.  

Thursday, November 24, 2016

Happy Thanksgiving. Really.

Dinner is over here in the For the Defense household.  

We are fortunate.  Lots of good food (too much, really) for the carnivores and the vegetarians. Enough good wine for those who indulge and no sneering at those who choose to abstain.  The conversation was rich and warm.  No hostility here where we all share a general set of attitudes - though with enough variation in focus and detail to keep it interesting.  

Despite the dogs' best efforts, they didn't manage to prevent the meal from being cooked.  I only cut myself once.  

Thanksgiving is actually my favorite holiday.  Family and friends and food without the trappings of one or another religion and without patriotic hoopla.  It's not that I'm inherently opposed to holidays with those things, but for once we have one that's just about the pleasure of being together and sharing in a meal.

And of course thanks.  As I said, we are fortunate.  Many are not.  Not enough food - ever. Pestilence. War.  Real, justified fear of what tomorrow, or next week, or next year will bring.   

There are children who are being abused, abandoned, trafficked.  There are kids living on the streets, grubbing meals from dumpsters, dealing meth, cooking meth, doing meth.  Some will die.  Some will kill - intentionally or accidentally.  Some will become my clients.

I have clients who are doing time.  Some who are facing death.  I get to go home at night.  I got to share this day and this dinner with family.  Some of them . . . .

And you?  

Put aside your differences for the day.  Remember why you come together.  It's not so you can fight.  It's because, at some level, you care for each other.

Argue about it tomorrow.

Over at Simple Justice, Scott posted Alice's Restaurant.

If two bloggers do it, it's a movement.  Listen and sing along.

Wednesday, November 9, 2016

Thought for the Day

Whatever your view of the candidates or the election, whatever you might imagine/hope/fear, it's probably a good time to recall the words of Irving Younger (quoting Oliver Cromwell) in the very first issue of the Georgetown Journal of Legal Ethics:
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say. 

Sunday, November 6, 2016

The Lawyer's Story of Himself and the Innocent Guy He Helped Get Off Death Row

I nearly tossed the book aside at the first sentence.

Wait, I'll get back to that.

Instead, start with this.  Alfred Dewayne Brown did not shoot and kill (actually he neither shot nor killed) Charles Clark, a police officer during a robbery of the ACE Cash Express on South Loop in Houston in April 2003.  He wasn't even there.  Which didn't stop them from trying him for the killing and putting him on death row.

It was the usual stuff.  Eyewitness IDs that weren't worth much.  A witness coerced by the cops and the prosecutors into telling them what they wanted to hear rather than what she knew to be true. Crucial evidence corroborating Brown's story (and giving the lie to the lie the cops and prosecutors coerced) discovered and then hidden by the cops and prosecutors.  And then discovered largely by chance by diligent post-trial investigation.

And it was the unusual stuff.  A reporter who sunk her teeth into the case.  A later prosecutor who acknowledged the significance of the evidence. A trial court judge who accepted evidence of innocence and figured it mattered.  The Court of Criminal Appeals that finally, finally, after sitting on the case for nearly a year and a half, granted a new trial.  

And a prosecutor who then dismissed the charges.  

Cool.  Great stuff.  Good for Brown.  Good for Texas not killing another innocent guy.

It's a feel-good story.  Good for Brian W. Stolarz who worked on Brown's case for several years, cared deeply for Brown, and now has a book about it.  The one I nearly tossed aside at the first sentence.  

I knew Alfred Dewayne Brown was stone-cold innocent the moment I met him.
As it happens, of course, Stolarz was right.  But despite his "more than functional 'bullshit meter'" that makes his gut more reliable than a polygraph (so he says), he knew no such thing.  He may have believed it with all his heart.  But that ain't the same as knowledge.  And if he's either lying or delusional on the first page. . . .

Of course, he also claims to have essentially proved Brown innocent, though in fact it was other lawyers, after he was off the case, who turned up the crucial evidence and then used it to free Brown.
As I said, the story of how Brown got railroad onto death row for a crime he had nothing to do with and then, with diligent lawyering and more than a soupçon of luck, got off the row and then freed is pretty good.  

Told well, it'd make a terrific long-form magazine article in, say, Texas Monthly.  As one of perhaps several examples showing the numerous ways wrongful convictions happen, it could be part of a terrific book.

As part of Stolarz's solipsistic . . . .

OK, maybe I'm not being altogether fair.  Not altogether.  

The book isn't just about Brown's case.  It's also about Stolarz and how he's just so devoted to Brown's case that . . . .  

Look, there's good stuff in the book.  But, well, I kept wanting to toss it aside.  Really, I kept wanting to throw it at the wall.

Stolarz is opposed to the death penalty.  He's a Catholic, and that informs his opposition.  He says that if we're going to have it, we should do all sorts of things (yes, he details some) to reduce the likelihood that we'll kill innocent folks.  

He's particularly appalled that Antonin Scalia did not think the Constitution prohibited the execution of an innocent person who had all the process due.  And Scalia claimed to be a Catholic!  As if he should have shared Stolarz's understanding of Catholic doctrine and that understanding should have controlled his understanding of the Constitution.  (Not that I think Scalia was right, you understand. But there is no such thing as a proper Catholic interpretation of the Constitution.  It ain't a religious document.) 

Hell, even the subtitle's dishonest.  That "Race against Time" suggesting that execution was imminent.  It wasn't.  The years Stolarz worked on the case, and on through the granting of a new trial, they were all in the Texas courts.  This wasn't the heroic, last-minute work you hear about.

Last Thursday, the U.S. Supreme Court asked Alabama to hold off the execution of Tommy Arthur for two hours so the Justices could decide whether to issue a stay.  (They did.)  Now that's last minute work.  Getting that stay was a race against time (or something, the metaphor doesn't really make much sense).  

Brown? His case hadn't entered the federal system.  He had at least a couple more years of litigation before he had a serious execution date.  

There's just too much wrong.  Stolarz gets facts wrong.* He gets the law wrong.**  He wrongly says that if he hadn't agreed to take the case up Brown would have been executed.*** 

I imagine Brian Stolarz is a nice guy.  I'd like to think that he'd have worked as hard for Brown and cared as deeply about what happened to him if his spidey sense had told him that Brown was guilty as sin.  I'd like to think that.  I really would like to.

I really wanted to like Grace and Justice on Death Row.   I really did want to.

*Dr. Quijano, who testified that Duane Buck was likely to commit future acts of criminal violence because he was black, was not a prosecution witness in that case.  He was a defense witness.

**When they meet with the prosecutor to set out evidence Brown was innocent, he wondered if she would "take the step of letting Dewayne go" or if they'd have to go to court. No need to wonder.  The prosecutor has no magic wand that can undo convictions.  Only courts can do that.

***He doesn't claim to have single-handedly saved the day.  It's just that without him . . . .

* * * *

Thanks to Skyhorse Publishing for providing me a copy of the book to review.