Billy Slagle and the tragedy of death

Billy Slagle, when all is said and done, will cut the most tragic figure. His story is ripe for a Shakespearean tragedy 1 or at the very least a documentary with a most somber soundtrack. Consider the evidence:

1. He was sentenced to death for a crime he committed at 18, when there was no option for LWPOR 2

2. The chief prosecutor for Ohio, Ted McGinty, recommended to the parole board that he shouldn’t be executed, which is pretty extraordinary.

3. In yet another surprising twist, given that parole boards and Governors usually do whatever prosecutors tell them to, both the board and the Governor’s office rejected his plea for clemency and continued on with the death sentence.

4. Three days before his scheduled execution, early Sunday morning, Slagle said “enough” and hung himself. 44 years old, having spent the last 26 years in jail, he took his own way out.

5. And then this. This that will just break your heart. This, this missive of reprieve that arrives too late or never arrives. This message of hope that, but for a series of harmless and innocuous actions would’ve gotten there in time, but didn’t.

Parallel Construction: the government lies

[Update: Oh, look. There's more. "NSA handing over non-terror intelligence.]

Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.

And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

Go on…

In war, everyone loses something

[P]recisely at the point when you begin to develop a conscience, you must find yourself at war with your society.

James Baldwin, “A Talk to Teachers“, 1963. War is many things, none of them good. This job, this fight, this battle to protect and preserve and to traige, is war 1.

Sure, nobody dies 2, but there is much loss and there is much lost. The hallmarks are there: the thousand yard-stare; the separation from reality; the perverse sense of humor; the paranoia; the anger, so much the anger.

War has casualties. Ask my friend and fellow public defender and blogger Daniel Partain, who loves to quote Hawkeye from M*A*S*H. After 13 years, he’s walking away from the calling for good 3. Daniel’s journey to this point reads like a script for a movie about the struggles of an indigent defender:

Just like the ocean slowly ebbs away the coastline, so did being a public defender to my well-being. I made poor decisions regarding my health, both physical and mental, and I suffered for it. However, a day came where I realized that I needed to take better care of myself, and I started to alter some of my lifestyle choices. While my physical health improved, the diminution of the joy that I had in being a public defender continued to fade away from me. Without warning or great fanfare, one day I woke up, and I started viewing being a public defender as a job, and not as a calling. My viewpoint about being a public defender had become like one of Hawkeye’s rants from MASH about the disdain for being in the Korean War. However, I am my father’s son; I am my mother’s son; I refused to quit. I told myself that I was letting the stress get the better of me, and that I can persevere. For a while, it worked. I was able to carry on, and be the dutiful advocate for my clients. Yet, I knew that I needed a change.

Daniel’s story isn’t unique. Every public defender office and system throughout the country has tales to tell of similar people. Those that “lost it”, or “had a nervous breakdown” and couldn’t handle the work anymore. Those who had to be shifted around into less stressful positions because the job got hold of them and gave them the beating of their life.

Sometimes I wonder, here on this blog and out loud in real life, why we do this. The pay isn’t spectacular – even 30 year veterans who are supervisors make less than first year associates fresh out of law school do at big firms; the day to day drudgery of the work is overwhelming; the rewards are fleeting and far between; the accolades non-existent. Some get shot at, some stabbed, some stalked, some threatened and spat upon – literally and figuratively- and mocked and ridiculed and not always by our clients.

To do this job right is to do this job all the time. There is always something to be done. But you can’t do it 24/7. And that brings guilt. Because every minute I’m at home watching True Blood is a minute less spent on a client sitting in jail. But you can’t do it all the time. So you do it most of the time. It’s in your head. It percolates. You become anesthetized. The three bullet wounds to the head aren’t a tragedy, they’re a fact. The little boy who claims to have been anally raped isn’t a horror, it’s a problem 4.

You take a part of your brain, add a part of your soul and mix in a healthy heaping of emotions and you lock them away. The alternative is to render yourself unable to function.

It’s a war alright. A war against a system that’s eating itself without realizing. A war against a society that is full of so much hate that it is blind to the devastation it is causing to itself. A war against those that purport to exercise their better judgment for me. A war against a machinery that sees people as cattle, to be branded with the mark and shepherded into dark corners, ignored and forgotten.

It is a war that cannot be won.

And for what? Is it worth it? Are the six months I shaved off the offer because I worked till 7:30pm or because I spotted a legal argument worth any of that? Maybe yes. Because it’s 6 months less that someone needs to spend in those hell-holes we call “correctional facilities”.

Or is it the principle of the thing? Is it the ideal. The ‘one for all, all for one’. “My rights are your rights.”

And if it is the principle that drives you, then be prepared for the anger. Because there are no principles that the establishment won’t run over, leaving us on the sidelines, helpless.

Trial courts and prosecutors are in the conviction business. Appellate courts are in the affirmation business. We are in the triage business. You don’t care unless it happens to you. No one is in the rights business.

But for now, it goes on. Monday morning comes and there are people clamoring for attention. There are deals to be struck and clients to placate. There are lunches to miss and jails to visit and a mountain of stress waiting to strap itself back onto your back. It is both a job and a calling. For Daniel, it stopped being the latter. He walked away. Others may not have that courage. As for me, it sates for now, but how long is now?

Footnotes:

Free after 17 years

Late yesterday afternoon, 4 men walked out of the New Haven, CT criminal courthouse, free men for the first time in 17 years. Earlier in the day, they got to stand in court and hear the judge say that all charges against them were dismissed.

17 years ago, Sean Adams, Darcus Henry, Carlos Ashe and Johnny Johnson were charged with, tried and convicted of the murder of one Jason Smith and the shooting of Andre Clark. They all were sentenced to prison terms of over 75 years.

The main evidence against them at trial was the testimony of Andre Clark. Andre Clark, however, was himself the defendant in several other criminal charges. Prior to the Adams’ trial (I’m going to use Adams as shorthand for all the rest), Clark had pled guilty in that same New Haven courthouse and instead of facing 35-38 years in jail, had entered into an agreement that would cap his sentence at 4 years, with a right to argue for less in exchange for his testimony against Adams.

Clark testified against Adams. Under intense cross-examination, Clark denied that he had pled guilty, or had any deal with the prosecutor or had any expectation of leniency in exchange for testifying. In other words, he flat out lied. No prosecutor uttered a word to correct him.

It’s not like even with Clark, the State’s case was strong. From the Supreme Court opinion reversing their convictions [PDF]:

Finally, the fact that the evidence against the petitioner was hardly overwhelming is borne out by the  apparent difficulty that the jury had in deciding the case. The jury deliberated for ten days before reaching a verdict on the petitioner’s charges. Moreover, the jury could not reach a unanimous verdict on any of the charges against two of the petitioner’s three codefendants, resulting in a mistrial as to them, and before reaching its guilty verdicts as to the petitioner and Henry, the jury requested that the testimony of Ogman, Andre, and Charles Clark be read back. Although not necessarily dispositive of the issue of the strength of  the state’s evidence, the foregoing considerations support the conclusion that the jury viewed the case as a  relatively close one.

Prosecutors have an independent an affirmative duty under Brady v. Maryland to disclose biases that witnesses might have if it could lead to their impeachment on the witness stand. A plea agreement for a significantly favorable sentence in exchange for testimony in another trial certainly qualifies as such. If there was any doubt that he received favorable treatment, it was dispelled at his own sentencing:

Although the court originally set sentencing for February 19, 1999, Andre was  not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December  14, 1996 shooting, including the petitioner’s trial.At  Andre’s sentencing hearing, [the prosecutor] recommended that the court vacate Andre’s pleas on two of the charges  and impose an unconditional discharge on the third charge. In support of this request, [he] observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. . . . He’s been enormously cooperative.’’

But here, there were two prosecutors: one prosecuting Adams and one prosecuting Clark. They set up a sort of “firewall” between themselves, agreeing not to talk to each other about the other’s case. So when Clark testified at Adams’ trial that he had no agreement, that prosecutor didn’t actually know if that was untrue.

But that’s not good enough, said the Supreme Court – and the State agreed on appeal:

Of course, as the respondent now concedes, the state certainly did have a duty to disclose  Andre’s plea agreement, no less than it had a duty to correct Andre’s false testimony denying its existence, because the prospect of a lenient sentence gave Andre an incentive to curry favor with the state and the sentencing judge, an incentive that the petitioner and his codefendants were entitled to explore on cross-examination. See, e.g., State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010) (‘‘[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence’’ [internal quotation marks  omitted]); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir. 1980)  (‘‘[u]nquestionably, agreements . . . to reward testimony by consideration create an incentive on the witness’ part to testify favorably to the [s]tate  and the existence of such an understanding is important for purposes of  impeachment’’)

Having found that there was a Constitutional violation and that the evidence was material to the trial, the Supreme Court had no choice but to vacate the convictions and return the matters to the trial court.

And that’s where we started, as did Adams and his co-defendants. And now they’re back. To start a new life; maybe a different life.

“I’m overcome with joy,” said Johnson’s mom, Gloria, after hugging her son.

“Justice finally prevailed,” declared Adams. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.” He held onto his daughter as he moved through the crowd. “Finally, I get to be with her,” he said. “She was born while I was in jail.”

Darcus Henry has two 14-year-old sons, both of whose lives he’s missed out on.  “I feel like justice is served,” said Henry as he hugged Darcus, Jr.

Alaska bans plea bargaining

Well, it’s happened. Glenn Reynolds and Michelle Alexander are going to get their wish. Alaska – for the second time in the last 35 years – has banned plea bargaining.

Straight up. No deals. No agreements on sentencing. Done, with the swift stroke of the pen of their Department of Law 1. Prosecutors can negotiate charges, but in any case that is a sexual felony or involves domestic violence, they no longer have to discretion to agree upon a sentence in advance.

Essentially, they’re going to charge – or overcharge – and leave the sentencing up to the judge. Welcome to a world of “open pleas” 2.

How does this come about? As with all “great” ideas, it comes about with a horrific rape and murder by a guy who got out of jail earlier than he should have.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple — Touch Chea and Sorn Sreap — in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman.  Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

Well, I mean, if you put it that way. And so:

A new policy from the state Department of Law, effective immediately, instructs state prosecutors to stop negotiating sentencing terms in plea bargains for crimes like homicide, sexual assault, and other major felonies.

I have entirely mixed feelings about this. On one hand, I want to see if this experiment will work. On the other, I’m petrified that there are many people in Alaska who’re about to get fucked.

The system works as it currently does because there has to be a balance. While the defendant can always dangle the threat of trial, it’s usually a hollow one, because the potential for punishment after a guilty verdict – and it’s almost always a guilty verdict – is tremendous. You can bluff only up to a point. Pleas are entered to avoid that excessive punishment and to cut a bargain, essentially.

So what was the problem in Alaska?

Judges can now decide what sentence is fitting during hearings that make more information available to them: victim and witness statements, police reports and other information previously not known to the court.  While judges could always request the information and reject plea deals, Niesje Steinkruger — a retired Superior Court judge from Fairbanks — says that it rarely happened under the old rules.

She describes the absence of information previously presented to judges as troubling.  “When a plea is taken, usually all the judge has in front of her is a pretty thin file that only has the charging document, the complaint or the indictment,” Steinkruger said. “Judges do not have police reports. Judges do not have information from the victim, unless the victim has written a letter or is in the courtroom and provides information to the judge.”

Still not seeing it. What do defense lawyers say?

James Christie, an Anchorage defense lawyer, says the changes are beneficial even for lawyers who are intent on minimizing time served by clients. Christie says he supports the change because it puts an unbiased mediator in charge of decision-making, instead of biased defense lawyers and prosecutors.  “I would much rather have sentencing narrowly tailored in each individual case by an impartial judge than I would have the conditions crafted by somebody who has a dog in the fight, which typically are the prosecutors,” Christie said.

Let’s keep in mind that the prosecutors’ office has revoked the policy of plea bargaining. They’re not revoking it because their prosecutors were too harsh and they felt bad for defendants. it’s probably being revoked because it was too lenient and some guy got out and killed someone and they don’t want to be blamed ever again. This is not a policy change designed to benefit defendants. If it were, it wouldn’t be implemented.

So, you think you’re going to do better with judges? Judges who are almost certainly former prosecutors? Judges who’ve been watching his policy change and thinking oh, now you want us to put our necks on the line?

Defendants typically get higher sentences after “open pleas”. If it weren’t the case, wouldn’t that be the prevalent method of resolution of cases?

When you’re negotiating a plea – at least here in CT, for serious cases – the judge is almost always involved. In order to maintain a semblance of credibility, the prosecutor needs to make a “reasonable” offer: one that isn’t too far outside the norm of sentences for similar crimes and defendants. The judge “mediates” or negotiates and usually isn’t too far from either number.

With an open plea, however, the prosecutor is free to ask for the maximum in each case. And why wouldn’t they? it’s open season. And when faced with the choice of two recommendations: the harshest sentence from the prosecutor and the most lenient from the defendant, where do you think the judge will end up?

Almost everyone quoted in the news reports acknowledges that this change will place a greater burden on the resources of the judicial system in Alaska. So, in a time when the defenders of the accused are already overburdened and overworked, and indigent defense systems are crumbling and the injustices in the criminal system are racking up and sprouting up under the spotlight, Alaska has found the one remaining way to make it even harder for defendants to get individualized justice. You think having to hold a sentencing hearing in every single serious felony case is going to free up time for defenders to work on more cases?

If none of this convinces you, let’s go back to the last time Alaska tried this. It banned plea bargaining in 1975, before the ban eroded and plea bargaining was back in use by 1990. But in 1978, the ban was called “successful”. What do you mean by successful? I’m glad you asked:

[...] the length of prison terms for violent crimes had increased 50 percent; terms for felony sentences rose 200 percent for white-collar crimes and 300 percent for drug violations.

Oh. I see. Success means more people getting fucked and put in jail. You can’t rely on an “unbiased mediator” when the system within which the mediator operates is rigged against the defendant. Such faith presumes that the system is inherently fair. Anyone who has spent a minute observing the system can attest to the falsity of that presumption.

There seem to be some legitimate problems with the way criminal cases are handled in Alaska. Eliminating plea bargaining will only add another.

 

In these times

It is good to recall, from time to time:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.

How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Irwin v. Dowd, Justice Frankfurter, concurring.

CT legislature wants to “look” at self-defense laws

Well, it’s officially happened. The knee has been jerked and the members of the State legislature want to “look” at self-defense laws, so as “to make sure that a situation like the deadly shooting of Florida teenager Trayvon Martin can’t happen in Connecticut.”

I don’t even know what that means. Can someone explain that to me? If “situation” refers to the shooting of a black teen, that already happens. If “situation” refers to anyone being shot, that already happens. If “situation” refers to a jury finding that one citizen acted in self-defense when in reasonable fear of imminent death or serious physical injury, that already happens.

Oh. What you mean is your narrative, which is “unarmed innocent black teen gets jumped by aggressive over-eager wannabe cop white guy, who then starts to get beaten so he shoots and kills said teen who was only acting in self-defense”?

That? You want to legislate that specific scenario?

Yeah, that’s already covered. Again, by self-defense.

While we can sit here and argue all day whether “stand your ground” was part of the case or not, the bottom line is this: CT imposes a duty to retreat in a public place if you can do so with complete safety. Florida doesn’t. Which means, already, that CT’s self-defense law is stricter than Florida’s.