TAKING NOTE

We should take note when a good one passes. Dean Smith, the longtime coach of the University of North Carolina Tar Heel basketball team, was much beloved by basketball fans everywhere – he was a Hall of Fame coach of some of the greatest players ever, including Michael Jordan; an innovator with some of the most creative ideas the hard court has ever seen; and a man who made sure that 97% of his players graduated from college. But that was the tip of the iceberg.

Dean Smith integrated the Atlantic Coast Conference, at the time the most prominent league in the country. Charlie Scott, the first black player with a scholarship at UNC, had this to say about his coach: “Coach Smith never treated me like the first African-American to go to the University of North Carolina. It was all any person would want to be treated like — like everybody else.” He integrated more than just a basketball team, though; he helped a graduate student break the color line in an all-white neighborhood in Chapel Hill, and then broke bread at an all-white restaurant as well. He was also ahead of his time in protesting against the Vietnam War and nuclear proliferation, for equal treatment for women, and for LGBT rights. Years ahead.

But we wouldn’t be blogging about him if there wasn’t more. He took a stand against the death penalty when it was a highly unpopular position in North Carolina, and when Dean Smith took a stand he didn’t just mouth the words. He took his players to death row In Raleigh and to Angola Prison in Louisiana, and had them interact with the inmates. In 1998 he went with a delegation from People of Faith Against the Death Penalty to meet with then Governor Jim Hunt in a desperate attempt to save a mentally ill condemned man named John Noland. Pointing a finger at the governor, Smith called him a murderer – then he pointed at the others in the room and said, “And you’re a murderer, and you’re a murderer, and I’m a murderer.” He didn’t save Noland, who was executed two weeks later, but it didn’t stop him, either. “I really haven’t done much other than send a little money and talk to the governor and do some public-service announcements, so don’t make me out to be too much of a hero,” he said.

Dean Smith’s fight is not over, of course. But since his passing many have recalled his bravery, from the basketball court to the lunch counter to the governor’s office; and there is a sense that we are closer to his vision than we have ever been before. The good ones leave you feeling that way.

A Cartoon is Worth a Thousand Motions – In Memory of Tony Auth

Tony Auth, who died Sunday at the age of 72, was a good friend. He came to the Atlantic Center fundraiser, gave a great and (thankfully) short speech, posed for pictures and signed examples of his work. When death penalty-related news made the Philadelphia Inquirer, we could always count on a penetrating cartoon on the editorial page, followed by an autographed copy coming our way. We even have an as yet unpublished children’s book he illustrated sitting in a desk drawer in the office.

But while he was a good friend to the Atlantic Center, he was a great friend to those of us who seek reform of the criminal justice system and repeal of the death penalty. He was particularly insightful about what he labeled the lottery of capital punishment – he called it a “state-sponsored game of chance.” One memorable cartoon featured a wheel with the following choices: “plea bargain, bad lawyer, guilty but white, and innocent…so?” Another featured a defense lawyer dressed as a clown, explaining: “Your Honor, my client is on trial for his life…and he’s getting the best defense the system would pay for.” You could litigate for years and not sum up the issue so neatly.
Tony Auth Cartoon 1

Tony Auth Cartoon 2
Death penalty work is not all gloom and doom. Of course there is a huge amount of pain, from victims and clients and the general devastation of the crime itself. But there is much humor as well, even if it is of the gallows sort. How else can you deal with a lawyer who argues to a jury that an “eye for an eye” only applies to the killing of a pregnant woman, forgetting that his client was just convicted of killing a pregnant woman? Or one who prepares two years for a capital trial but forgets to ask his client how old he is, thus not realizing that he was under 18 at the time of the crime, and consequently not even eligible for the death penalty?

The other day Henry McCollum, declared innocent even by the prosecution, walked off of North Carolina’s death row after 30 years. But 20 years earlier, when his case was pending in the United States Supreme Court, Justice Scalia wrote that his case “cried out for punishment.” Now all we can think is, “God, what would Tony have done with all of this material?”

He will be greatly missed. And remembered.

Time to Stop Pretending

Let’s be clear about what we’re not saying. We’re not saying that certain combinations of drugs should be banned from execution protocols, though it is obvious the state is trying and failing to use some drugs in a way they were never designed to be used. We’re not saying that the state needs to come clean about the drugs they are using and where and how they obtained those drugs, though the government’s arrogant and absurd claim that they need to protect the pharmacies from undivulged (and imaginary?) threats is an insult to an informed public. And we’re not saying that the lethal injection protocol needs to be fine-tuned to avoid black market drugs and assure that professionals are in attendance in the killing chamber, though the three ring circus that passes for a state-mandated execution has brought shame to the United States.

We’re saying that the idea of a humane execution is like the idea of a safe drag race – no matter how well designed the cars are, and how safe the track, and how trained the drivers, crashes are going to happen. That’s what happened in Arizona yesterday afternoon, when a human being – Robert Rudolph Wood – crashed after one hour and fifty-seven minutes of suffocation. This is not a surprise. While we all know about Clayton Lockett in Oklahoma, and the more informed among us know about Dennis McGuire and Romell Broom and Joseph Clark in Ohio and Angel Diaz in Florida and Joseph Cannon in Texas and Tommie Smith in Indiana and Emmitt Foster in Missouri and who knows how many more, our courts (who are always the last to know or at least the last to admit that they know) are slowly coming around. Listen to the prescient Chief Judge Kozinski of the Ninth Circuit only two days ago: “Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful – like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality.”

But Chief Judge Kozinski goes on to complete the circle in blood – if drugs don’t work, and they don’t, let’s go back to something that does. “The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to the occasional mishaps. The firing squad strikes me as the most promising.” There is no sarcasm here, and surely no parody – Judge Kozinski is a well-known conservative thinker and long time supporter of the death penalty. “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all,” he concludes.

The judge is right, even when he’s wrong. We as a society cannot stomach the splatter from an execution carried out by the firing squad, any more than we can stomach a head falling into a bucket – the firing squad, the guillotine, hanging, they are all against our national ethos. And for one and only one reason: we are no longer comfortable with state-sanctioned killing. We cannot put lace on the pig, much as we might try. We are not going back to lining people up against the wall and shooting them, because we knew when we were doing it that it wasn’t right. And it isn’t right now. Just as lethal injection isn’t right now. It’s time to stop pretending it is.

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.    

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.

An Extreme Attack on the Right to Counsel

Mumia Abu Jamal can’t keep himself out of the news. 31 years after a death sentence was imposed on him for the killing of Officer Daniel Faulkner, three years after the Third Circuit Court of Appeals ordered a new sentencing, 2 ½ years after the Philadelphia District Attorney’s Office chose not to seek another death sentence against him, but rather to have him live the rest of his life in prison, Mr. Jamal got 756 hits in a Google news search this morning. The latest kerfuffle concerns one of his former lawyers, Debo Adegbile, who President Obama has nominated to head the Civil Rights Division of the Department of Justice. It seems that Mr. Adegbile’s association with the Legal Defense Fund, which successfully represented Mr. Jamal, disqualifies him from working for the Department of Justice. The Legal Defense Fund, of course, is the former legal arm of the NAACP, legendary for successful civil and human rights battles against segregation, discrimination and the death penalty. Could it really be that his work with such an organization would disqualify him from running the Civil Rights Division of the Department of Justice? Apparently yes.

Or so the usual suspects would have it. The National Fraternal Order of Police called his nomination “a thumb in the eye of our nation’s law enforcement.” The Major County Sheriff’s Association attributed the overturning of Mr. Jamal’s death sentence “to the manipulation of the justice system by the Legal Defense Fund.” The National Association of Police Organizations claimed that Adegbile’s efforts “led to the overturning of the just sentence Abu-Jamal received for murdering a valuable member of the law enforcement community.”

And then there was the Wall Street Journal op-ed by the not-so-odd couple of Republican Senator Pat Toomey and Democratic District Attorney Seth Williams. “Let there be no mistake,” they bravely proclaimed. “Our concern is not based on the fact that Mr. Adegbile acted as an attorney for a criminal defendant. The right to counsel is a fundamental part of America’s criminal justice system, and no lawyer should be faulted for the crimes of his clients.” Of course their op-ed was not a staunch defense of the right to counsel, as they quickly noted: “But it is one thing to provide legal representation and quite another to seize on a case and turn it into a political platform from which to launch an extreme attack on the justice system.”

So it seems appropriate and even necessary to take a closer look at the “extreme attack on the justice system” that led to a reduction from a death sentence to life in prison for Mumia Abu Jamal. The Third Circuit Court of Appeals, the second highest court in the land, found that Mr. Jamal’s jury was misinformed about how it should consider the evidence it was given. Not exactly an extreme attack on the justice system; or an extreme result, for that matter, given that Pennsylvania has seen more than 100 death sentences reversed.  And who were these judicial rebels who took the law into their own hands and created such havoc? The three judges were Ambro, Scirica, and Cowen, who combined had 59 years serving on the Third Circuit at the time of their decision in the Jamal case. The latter two, Judges Scirica and Cowen, were nominated by that legendary rabble-rouser, Ronald Reagan.

Which makes it all the more disappointing to hear that Senator Robert Casey, a Democrat and a man we would expect far more from, relented to the bombardment of irrational argument and pressure and announced his decision to vote against the nomination of Debo Adegbile. Taking a page from Toomey and Williams, Casey noted his “respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime.” Nonetheless, he went on, “Pennsylvanians and citizens across the country (must) have full confidence in their public representatives – both elected and appointed.” He released his decision to the media late Friday afternoon, so as to garner the minimum amount of press. It is this sort of courage that makes one proud to be a Pennsylvanian.

All is not lost, however. The Senate will still vote on the nomination this Tuesday, and even without the brave Mr. Casey there is a bare majority of Democrats in that august body. Assuming Mr. Adegbile doesn’t represent anyone else facing execution between now and then, he still has a chance to prevail.

The Beat Goes On

It would be easy to say that a perfect storm hit Philadelphia’s justice system yesterday – an extremely aggressive and often reversed prosecutor rolls over an inept defense attorney whose clients often seem to end up on death row, and then both of them run into the outraged federal judge who orders a new trial for the unjustly convicted accused after 20 years of wrongful incarceration. And indeed all of that happened yesterday – except that we wouldn’t call it a perfect storm, because a perfect storm implies that the factors making the storm rarely come together, and that would not be the case. The truth is that the James Dennis case is more like a routine summer shower than a perfect storm.

First let’s cover the facts: After a short trial and an even shorter penalty phase, James Dennis was sentenced to death for the brutal and pointless murder of Chedell Williams in 1991. The evidence against him was not strong, largely three very tentative eyewitness identifications and some clothes allegedly seized by the police and then “lost” by them before trial. Even the eyewitness testimony identifying Mr. Dennis suggested a reasonable doubt – the descriptions were almost uniformly of a man 5’9” or 5’10”, while Dennis is a very small 5’5”, 130 pounds. In addition, the Commonwealth failed to reveal that four other eyewitnesses did not identify Mr. Dennis at all.

And that wasn’t all the Commonwealth failed to reveal. There was a receipt given to the police by an alibi witness that somehow only turned up 10 years after trial. (Seth Williams, the present District Attorney of Philadelphia, complained that the Judge accepted a “newly concocted alibi defense,” but Mr. Williams has apparently never read the transcript of the trial or the opinion in the Dennis case, since the alibi defense was presented at trial.) The Commonwealth also buried a series of documents in which a witness presented compelling evidence that others committed the crime; that witness named names, provided corroborating evidence, and was taken by police on a drive-along to identify various relevant locations aimed at solving the crime. Yet these six documents were never revealed to the defense until Mr. Dennis had spent a decade on death row.

And what might the defense have done with all these documents? An effective defense team would have made a compelling case for innocence. But Mr. Dennis did not have an effective team; in fact, he barely had a lawyer. A competent lawyer would have interviewed all the eyewitnesses – had this lawyer done so, he would have learned that many of the witnesses had failed to identify Mr. Dennis, and that one had actually identified someone else. A competent lawyer would have prepared Mr. Dennis’s alibi witnesses, thus learning about the missing receipt that would have been strong corroboration. Mr. Dennis’s lawyer didn’t do any of these things – indeed, it is unclear what in fact this lawyer did do, other than appearing in court every day to collect his $400 per diem.

Once again the city of Philadelphia is embarrassed by its justice system. Ironically, its court administration believes that it has improved representation by hiking its fees a meager amount. But the same lawyers – not screened for merit, not trained for improvement – continue to receive appointments to our most serious murder cases. In fact, the lawyer in James Dennis’s case has been appointed to a very serious murder case going to trial in the near future in…Philadelphia.

It would be nice to think that our District Attorney, seeing reversals like this one over and over again, might form a real Wrongful Convictions Unit to examine past mistakes and rectify real injustices? Many District Attorney offices, in Dallas and Brooklyn and Manhattan and other jurisdictions, have done so. Instead Seth Williams doggedly defends the outrages of the past, accusing the judge in the Dennis case of accepting “slanted factual allegations.” 

And the beat goes on. It is easy to believe that things have improved, that we are not living in a time where such injustices could occur. In fact nothing at all has improved; and as sure as I’m typing this I am certain that similar injustices will be found 20 years from now, because we have done nothing to prevent them.