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.  

Saturday, January 28, 2017

The New Colossus

How naïve he'd been, thought the Optician.  How naïve.  Because there would always be greater sorrow, deeper and more unfathomable than any of us could ever imagine.

Emma Jane Kirby, The Optician of Lampedusa.
* * * * *
Nobody's ever accused me of being a glass-half-full kind of guy.

Years ago, at a meeting to determine whether an organization should or should not embrace a particular and potentially problematic position (the details don't matter here), the chair asked everyone to say what they brought to the table.  

I'm good with crunching data, said one.  I can design a web page, said another.  Someone liked to canvass.  Others could raise funds or organize demonstrations or arrange mailings or write press releases or whatever.  When it was my turn I said,
I bring cynicism.
And so I'm known, at least in some circles.

Obama talked a good game, but mostly he figured that if you just explained things calmly, everyone would get it and sign on.  

Come, let us reason together.

People liked him.  His popularity is great.  His party lost power, more and more during his presidency.  Then all of it as he asked for Hillary to be elected to protect his legacy.  Calm.  Rational.

Come, let us reason together.

You saw how that worked.

Yesterday was Holocaust Memorial Day.  Donald Trump issued a statement.
It is with a heavy heart and somber mind that we remember and honor the victims, survivors, heroes of the Holocaust. It is impossible to fully fathom the depravity and horror inflicted on innocent people by Nazi terror.
Yet, we know that in the darkest hours of humanity, light shines the brightest. As we remember those who died, we are deeply grateful to those who risked their lives to save the innocent.
In the name of the perished, I pledge to do everything in my power throughout my Presidency, and my life, to ensure that the forces of evil never again defeat the powers of good. Together, we will make love and tolerance prevalent throughout the world.
No mention of 6 million Jews there, pointed out many reminding us (some specifically, some only by allusion) of apparently (though he denied it) anti-semitic tweets during the campaign and of the anti-semitism of the alt-right folks he sometimes channels.  Of course, the Nazi's committed genocide against the Roma, too.  And he didn't mention them, either.

But it's the other part, that 
pledge to do everything in my power . . . to . . . make love and tolerance prevalent throughout the world
That's the part that interests me.  Not in and of itself, of course.  It's all pretty much standard political mouthing.  Nice words with little or no substantive content.

But at the same time, on the same day, Trump did provide some substantive content.  On the day he claimed to think of the 
depravity and horror inflicted on innocent people
on the day that he would
remember and honor the victims, survivors, heroes
on that day, he shut the border to victims, survivors, heroes, who didn't happen to share a particular sort of racial religious purity - at least if they came from a particular subset of the countries (not from those with whom he does business, as more than one wag has pointed out) from whence come "radical Islamic terrorists."

* * * * *

In October 2013 a boat carrying somewhere over 400 refugees, mostly Eritreans, capsized as it was nearing its goal, the island of Lampedusa.  366 or so drowned.   The details are horrific.  A small group of friends, eight of them, sailing out from Lampedusa for a late season pleasure trip, heard the screams from across the water.  

They didn't know what those sounds were, seagulls perhaps.  But they went to investigate.  And there were desperate people in the water, trying not to drown.  They managed, heroically though they reject the designation, to save some 47.  Plucked from the sea.  55 on a boat designed to hold 10.  It was an amazing effort.  

But, 47 is not 400.  

Among the rescuers was Lampedusa's lone optician, Carmine Menna.  It is his story, with his permission, that BBC Radio 4 reporter Emma Jane Kirby turned not into a novel but a parable.  The Optician of LampedusaTold from his point of view, though he's never named, just referred to as "the Optician," an ordinary man, everyman.  He knew, of course, of refugees and that some didn't make it. Lampedusa is a small island, but a goal for many because of its location.  But knowledge doesn't necessarily inspire action. He was, after all, an optician, not a lifeguard.

But when they come upon Thrust into the position where he could act, had to act.

Before their small craft came, the 8 rescuers are told, another boat came by and ignored the desperate men and women and children.  Let them drown.   The woman whose body was found recovered (this is true) clutching her newborn baby, still joined by umbilical cord to the child.

There are, you see, fine (and not so fine words).  And our history welcoming (or too often not welcoming) those who would come to our shores (or those who were here first) rarely matches those fine words of Emma Lazarus inscribed on the Statue of Liberty.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
It was 1882 when Chester Arthur signed the Chinese Exclusion Act.  Roosevelt did not open our doors to the Jews fleeing the Nazis.   Obama's administration set records for the most people deported.

It is said that when Lincoln met Harriet Beecher Stowe, author of Uncle Tom's Cabin, he said, "So you're the little lady who started this big war."  Because the story. 

Because reason isn't enough.  Because knowledge is too often abstract.  Because as Stalin is said to have observed to Averill Harriman, "The death of a million is a statistic."  On the other hand, as the first part of that Stalin quote goes, "The death of one man is a tragedy."

Our President doesn't read books so he surely won't read The Optician of Lampedusa. Damned shame.  He should.  You should.  

Consider it an act of rebellion.

Wednesday, December 14, 2016

Lies, Damn Lies, and the Law

Some true stories:

  • A judge told me (off the record) that when it comes down to it, he finds cops more credible than lay witnesses.

  • Another judge told me (off the record) that if it had been a DUI he'd have granted the defendant's motion and dismissed the case, but the charge was aggravated murder so he denied the motion.

  • Another judge told me (off the record) that the three-judge panel trying the death penalty case dismissed the death specifications after finding they were proved but before the sentencing phase of the trial and imposed a life sentence because "we knew if the case had gone forward we would have sentenced him to die."

  • The Texas Court of Criminal Appeals explained that it was denying the pro se defendant relief because he'd filed his documents the wrong way, but if he did it right - and they told him how to do it - they'd grant relief.  He followed instructions.  They denied relief.

* * *
None of this, except possibly for the specific examples, is new to anyone who's been in the trenches for a bit.  If we were ever naive enough to believe, we've learned otherwise.  It's why I so often say, to the frustration and irritation of law students and new lawyers that I don't believe in The Law, that thing they teach in the law schools that comes with the upper case L.  I believe, of course, in law. That's the thing that bites you on the ass when you think The Law is on your side.

* * *
We have in Ohio executions scheduled, with real, serious execution dates, through September 2020, which, if you're mathematically challenged, is nearly four years from now.  That's 23 men who know when they're supposed to be killed.  They've run through all standard process, both state and federal. Sometimes more than once.  It's pretty much a certainty that some of them (no, I don't know which, nobody does) will not in fact be killed as scheduled, because there's all sorts of things outside standard process that can happen.  But those dates are real.

In the last week, the Supreme Court of Ohio scheduled executions in two more cases:  For November 2020 and March 2021.  Those dates are not serious. The court sets an execution date when it denies direct appeal and affirms a death sentence.  But it's consistently followed the rule that everyone is entitled to at least one full round of state review.  So it grants motions to stay those dates.  Doesn't mean those two men won't ever be executed.  But it won't happen on the current schedule.  Those men each have more years to go.

In fact, trial judges are supposed to set execution dates when they impose death sentences.  The Supreme Court then vacates those dates so it has time to hear and affirm the death sentences and set its own first set of fictitious dates.

* * *
It's not exactly that it's a game. And not exactly that it's dishonest.  It's partly the Law of Rule rather than the Rule of Law.  Partly it's power.  Partly it's fear. And sometimes what's actually supposed to happen does, which gives too many people false expectations about next week.

Really, it's something like a legal fiction.  We pretend, because it's what keeps the system - and for better or worse the system is all we have - operating.

But you do kinda have to wonder.

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.