The Circle Game

A little more than two years ago, I wrote an op-ed that appeared in the Philadelphia Inquirer. http://articles.philly.com/2012-04-05/news/31294488_1_death-penalty-cases-death-penalty-jury-questionnaire. The piece discussed two distinct but overlapping issues: the atrocious and inept defense of a young man named Derrick White, and the Philadelphia court administration’s refusal to address the crisis in indigent capital representation. The op-ed concluded with the not-so-bold prediction that those facing capital punishment “will continue to be sent to death row until, years later, appellate courts overturn their sentences. This is the well-worn path of most of Philadelphia’s capital cases.” For Derrick White, the path was shorter than usual.

This was a case where no pretrial motions were filed, no capital voir dire was conducted, no jury questionnaire was employed; and the defense expert called in the sentencing phase did not think that Mr. White, barely twenty at the time of the crime and with a history of being passed from foster home to foster home due to the substance abuse problems of his parents, had any real mitigation to tell the jury about. The jury quickly returned a death sentence. But it did not take long for our courts to realize that Mr. White had not been accorded the rights guaranteed him by the Constitution – indeed, he hadn’t been given the due process we might normally expect when fighting a traffic ticket. A little more than a year after going to death row, Derrick White was back in the trial court – the Commonwealth had agreed to a hearing on “clear ineffectiveness of counsel at penalty phase.” Last week, and again without opposition from the Commonwealth, Mr. White was granted a new sentencing.

Let’s take a second to understand what has happened here. Ordinarily a case is appealed to the Pennsylvania Supreme Court, where briefs are filed by both sides, arguments are heard, and a decision rendered. If the conviction and sentence are upheld, the case moves into post-conviction, where a close examination of the quality of the defense is undertaken. This ordinarily takes years. In the White case, the incompetence of the defense was so apparent that…they skipped all of the formalities and just decided to do the sentencing again. Now, sometime in the future, another jury will be brought together. The defendant, his family, and his witnesses will appear again, as will the Commonwealth’s witnesses and the victim’s family. The process will rewind and start over. As people used to say before the Republicans tried to defund public transportation, this is no way to run a railroad.

It goes without saying – though of course I will say it anyway – that the White case is emblematic of all that is wrong with the death penalty in Philadelphia. But it would be wrong to blame all of the moving parts. The District Attorney’s Office surely did the right thing in agreeing to a new sentencing, and the Pennsylvania Supreme Court seems to have recognized almost immediately how substandard the defense was. The fault lies in one place – the abject refusal of court administrators to take the necessary steps to prepare and resource a capital defense team to do it right the first time.

Even now, after the White case has shown us exactly how not to proceed, irony abounds. Although it seems safe to say that a new sentencing might have been granted for any number of reasons, the case was specifically reversed because the defense failed to properly pursue Mr. White’s youth as a mitigating circumstance. White’s new attorney is the same lawyer who, several years ago, failed to realize that his own client was under 18 years old at the time of the crime, and thus not eligible for the death penalty. As Joni Mitchell once said, the painted ponies go up and down. And until we make some necessary changes, we’ll continue to be captive to the carousel.    

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What Happened in Oklahoma (guest blog for ACLU PA)

The number one rule of the internet is never read the comments. If you broke this rule over the last week, you might have seen the following in relation to the botched execution of Clayton Lockett in Oklahoma:

1)    “if his lawyers were so concerned about the execution method failing perhaps they should have considered shooting him then burying him alive. it (sic) worked for his victim.”

2)    “I will do it for free ….I won’t use a single tax payer dollar…Drop him off and come back in 5 minutes to pick up his body ….I am scared to think of the links (sic) I would go to if that were my family member..”

3)    “Get a rope.”

In short, these are the folks who believe that our community should act just like the murderers we condemn. It’s enough to make you remember the penetrating question asked by that greatest and most imaginary of West Wing occupants, Jed Bartlet: “These people don’t vote, do they?” More on that in a minute. What’s important to keep in mind is that “these people” aren’t us – for the overwhelming majority in this country, the events of the past weeks in Oklahoma were horrifying in their unpredictability, their arrogance, and their outcome. Let’s take the concepts one at a time.

If there is a single word that must be included in the description of a constitutionally satisfactory execution, it is predictable. And yet Oklahoma authorities went to extremes to guarantee that anything might happen: they used an untested combination of drugs, they refused to reveal where they had been obtained, and they fought all efforts by the defense to find out how the drugs had been made. (And Oklahoma is far from alone in this effort – in Georgia, a law is now in place declaring all information about lethal injection a “confidential state secret.” Texas, where the next execution in the United States is scheduled for May 13th, has also recently reversed course and now maintains that the details of the killing protocol are not the condemned man’s business.) When anything can happen, eventually it will.

The Oklahoma courts struggled with this regime of secrecy. They also struggled to decide whether the state supreme court or the court of criminal appeals had jurisdiction over the issue, a strange circumstance indeed considering the fact that the state has conducted well more than 100 executions in the modern era. After spending a week acting like petulant children fighting over the portions of dessert, the Oklahoma Supreme Court eventually stayed Lockett’s execution, along with a second execution scheduled shortly thereafter, that of Charles Warner. This infuriated every other branch of the Oklahoma government. First, the state attorney general asked the Supreme Court to reconsider. When the Court quickly rejected the request, Governor Mary Fallin issued an executive order declaring that she could overrule the Supreme Court, and announced that the executions would take place two hours apart on the night of April 29th. While her authority to do so was being questioned by every law professor in the United States, a member of the Oklahoma legislature drafted a resolution to impeach the justices of the Oklahoma Supreme Court who had ordered the stay of the execution. That’s when the Court caved, dissolved its stay, and allowed the executions to proceed. As the old song goes, it doesn’t take a weatherman to know which way the wind is blowing.

The night of April 29th won’t soon be forgotten by the witnesses to Clayton Lockett’s execution. Seven minutes into the execution, prison officials checked to see if Mr. Lockett was unconscious – “I’m not,” Lockett said. Three minutes later, he was declared unconscious; six minutes after that, Lockett said “man” and tried to lift himself off the gurney. All the while Lockett’s body had been writhing, his mouth twitching. 16 minutes after the execution began, a prison official stated, “We are going to lower the blinds temporarily,” a phrase that Andrew Cohen of The Atlantic aptly noted might serve as an epitaph for the entire sequence of events that had led to this debacle. http://www.theatlantic.com/national/archive/2014/04/Oklahoma/361414/. Lockett’s execution was then stayed by the state officials who were present, but he died of a heart attack 30 minutes later. As the lawyer for Warner described it, he was “tortured to death.” Another lawyer called the execution a “human science experiment.” As for Charles Warner, his execution has been delayed for several weeks while Oklahoma conducts an investigation into what went wrong. Governor Fallin has already gotten the investigation off to a bad start by assigning the inquiry to the state’s public safety commissioner, who answers directly to…Governor Fallin.

What we are left with is the specter of government secrecy in our most public of government spectacles, the subversion of the rule of law by elected state officials, and the horror of an execution that would have been condemned had it occurred before our constitution was even written. At the very least, the events in Oklahoma should be yet one more reason for hesitation in Pennsylvania – indeed, two days after the botched execution, all of the candidates in the democratic primary for governor announced their support for a moratorium on the death penalty. And as to that first question: do “these people” vote? It’s not really the right question. As an old client of mine liked to say, one thing is for sure and two things are for certain – we had better vote. Because the community gets the government it deserves, and we surely deserve better than what the Oklahoma government has delivered.