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This week, a federal court vacated a death sentence for Mr. Johnny Bennett, a man I’ve met. I met him accidentally, when I was trying to visit another death row inmate with a similar name. He was a large, tall African-American, and I was expecting a smaller white guy. I apologized for the confusion — he had to be shackled to be escorted to the visitation room — but he smiled easily when we shook hands, said it happened often, and that he was glad to get a little fresh air on the walk over. I liked him.

As with many inmates, he was a likable guy on first impression. I didn’t know about his crime, or whether he’d actually committed it, but I doubted he’d gotten a fair trial, just because most don’t. South Carolina, like other states, has a hard time giving someone a fair trial when they’re accused of murder. At one point recently, I saw a statistic that 70% of death sentences in South Carolina were being overturned, many by South Carolina’s own reviewing courts.

But this one got through that state gauntlet. In 2000, an all-white jury voted for the death penalty, after what the federal court later described as “repeated direct and indirect references to race made or elicited by Solicitor [Prosecutor Donald V. (“Donnie”)] Myers and vigorous objections by defense counsel, who argued that the prosecutor was intentionally injecting race into the trial.”

Prosecutors are human and they like to win; many of them will cross lines if no one calls them on it. Trial judges are supposed to be referees who keeps trials fair. In this case, the trial judge made several odd rulings and statements, including, in response to a statement about the race of a guard that Mr. Bennett had had a relationship with, “[W]hen somebody says blonde, I don’t necessarily see a white woman.” In closing arguments, Myers “made repeated references to Mr. Bennett’s size (6’7”, 300 pounds)” and referred to him as “King Kong on a bad day,” a “monster,” a “caveman,” and a “beast of burden.” And remember, this happened here in the 21st century.

The prosecutor (Myers) is still in office, though after his recent DUI charge, he has said he will not seek re-election.

Mr. Bennett’s post-conviction lawyer later asked one of the jurors why he thought Mr. Bennett had killed the victim. The juror’s response was, “because he was just a dumb nigger.” That juror testified at a hearing that he was not prejudiced and that race had played no part in his decision to impose the death penalty.

In 2006, just ten years ago (as in “not ancient Southern history”), the South Carolina Supreme Court said it was fine to execute Mr. Bennett despite all this successful race-baiting, because there was no evidence that the juror was prejudiced at the time that Mr. Bennett’s sentence was imposed. I suppose he thought the juror’s racism was a recent development. This, despite the juror’s testimony, after apologizing for “saying that word,” that “that was just the way I felt about it.”

The defense attorney did what he could, but he couldn’t prevent the prosecutor deliberately injecting race into the trial. The prosecutor should not have done it. The trial judge should not have allowed it. The state supreme court should not have let it stand. They all did. It had to get to federal court before anyone saw a problem.

Mr. Bennett has been incarcerated since his indictment in 1993 – that’s 23 years, mostly on death row — and he still hasn’t had a fair trial. I congratulate him and his lawyers on getting him another chance at one. But good luck.

Some takeaways:
1. Our criminal justice system is not post-racial. To fix this broken system, we’ll need some folks with defense-side experience on the state and federal benches, including the US Supreme Court. We can’t rely on prosecutors and trial judges to make sure trials are fair.
2. Our elected state appeals court judges take some ridiculous positions to avoid overturning a death sentence. We can’t rely on them to ensure that the trials they’re reviewing were fair.
3. We need the federal courts doing their job of reviewing what happens in state courts.

[This is a really long post.  Here’s the short version:  The criminal justice system is broken.  See, e.g., exonerations.  We need a Supreme Court justice who understands that, or it will only get worse.]

I Know My Dream Won’t Come True, But

I understand the focus on ideology and appointing Supreme Court justices from somewhere other than Harvard and Yale, but I’m more focused on a different kind of balance. Here’s my case that Obama should appoint a defense attorney, to SCOTUS:

Hundreds of American people have recently been exonerated after serving years or decades for wrongful convictions. If we’re willing to look, this shines light on problems in the criminal justice system. Recent exonerations show that some things we thought were reliable just aren’t: confessions, eyewitness memory, and forensics.

Most of us have at least one family member or friend’s kid that we can imagine arrested. Please try to picture that young man while you read this. Let’s call him “your kid” for brevity, even though he’s officially a young adult.

Your kid has some fundamental and constitutional rights designed to keep the prosecution from railroading a conviction. For example, he has a fourth amendment protection against unreasonable search and seizure. Unfortunately, SCOTUS has made this almost meaningless. Look up “stop and frisk,” “exigent circumstances,” or “civil forfeiture.”

During interrogation, law enforcement can lie to your kid. They can tell him they have evidence and witnesses they don’t have. They can pretend to be on his side. They can and will tell him it will be better for him if he confesses (which isn’t true). They can make him believe that they can prove his guilt, even if he’s innocent, which leads many innocent people to plead guilty. What would your innocent kid do if offered a deal for five years when he’s told that if he takes it to court, he’d likely get many times that sentence (which can be true)? Estimates are that 95% of criminal convictions are based on plea bargains, not trials.

Well, maybe an attorney would be helpful here. Your kid has a fifth AND sixth amendment right to an attorney, but even if that attorney is standing outside the interrogation room, she won’t see your kid unless he is “unequivocal” in his demand for one. SCOTUS says that saying, “I think I need an attorney” is not enough. Savvy criminals know this; innocent or inexperienced suspects don’t.

Justice Scalia infamously (well, among defense attorneys anyway) said that the Constitution doesn’t prohibit executing an innocent man as long as he’s had a fair trial. And by fair, SCOTUS meant that the trial met some minimal standards.

But then, SCOTUS also said that many an UNfair trial is constitutional, as long as it gets the right outcome. Your kid’s attorney can sleep through the trial or be drunk, or the prosecutor can withhold exculpatory evidence, or the judge can make the wrong calls, but the courts can (and do) say those things don’t matter because your kid was guilty (which they know based on this unfair trial).

So, a wrongful conviction doesn’t matter as long as the trial was minimally fair AND a trial that wasn’t even minimally fair doesn’t matter as long as it convicted the right guy. That’s the system these days. It’s a conviction machine. And that’s fine with SCOTUS.

And, by the way, the appeals courts don’t look at whether your kid was guilty. They are only concerned with whether the rules were followed. That’s their job. And if the rules weren’t followed but your kid’s attorney didn’t object at the precise time in the precise way or didn’t renew those objections at the critical moment, those “issues” are considered “waived” by your kid. And you can’t “take it all the way to the Supreme Court!” They don’t have to listen to your kid’s problems, and they won’t unless the case raises broadly important legal issues, which it won’t.

So, fair trial? Here are some things that SCOTUS considers fair: 1.) “snitch” testimony by someone who is in jail and hoping for a lesser sentence, who testifies to having heard your kid confess. 2.) felony murder, which is being fully guilty of the actual murder someone else committed, even if there was no plan to kill anyone and your kid had no knowledge of the weapon. 3.) A death sentence for felony murder, even if the actual killer got a lesser sentence. 4.) “Experts” whose “scientific” testimony is bunk, e.g., psychiatrists who make a living testifying that defendants they’ve never met are truly the worst of the worst and will definitely kill again if not given capital punishment. 5.) The absurdity of telling normal human beings on the jury to “disregard” inadmissible and horribly biasing evidence or statements that “somehow” got in anyway. 6.) Prosecutors using their discretion to throw the book at someone who refuses to testify against someone else. There’s more.

It’s common knowledge that being in our prisons makes people worse, not better. We give mentally ill inmates years of solitary confinement. Prison systems put up countless barriers to maintaining good relationships with family, friends, faith communities, etc., or anything that would be good for inmates – because punishment – even though the vast majority will get out one day.

Your kid won’t get parole if he shows no remorse, so if he’s innocent and refuses to lie, he’ll never get parole. A federal court recently ruled that NC’s parole system for juveniles is unconstitutional because it offers them “no meaningful opportunity” to show that they’ve matured and become good citizens. But I expect our legislature to just tweak it, and the courts will go back to locking up children for the rest of their lives, because as long as they do the minimum, that’s fine with SCOTUS. SCOTUS sets the constitutional floor.

And even if some higher court down the line discovers that, say, the prosecutor was guilty of misconduct in your kid’s case, there will be no consequences for that prosecutor, who may well be a judge by then. There are plenty of good prosecutors – we have one here – but the incentives are all wrong: the prosecutors who get more convictions get re-elected and get appointed to the bench.

And if your innocent kid gets exonerated but can’t get the governor to grant a rare “pardon of innocence,” there will be no compensation by NC for all the years spent wrongfully incarcerated.

If your kid is incarcerated for a long time, he’ll have a tough re-adjustment to the free world, and it’s not just those amusing technology advances. No one will want to hire him or rent to him, at least until he’s proved himself, which is difficult to do without a job or place to live. The stigma of being a “felon” will stay with him, no matter how hard he works to “re-enter” society well. His debt will never be paid. I wonder how this will come out.

You may think your kid will never need a defense attorney because in your family, you don’t commit crimes. If you think this, you’re probably white. Nearly thirty years ago, SCOTUS acknowledged that racism in the system is “inevitable.” And of course it is, because it exists in our communities, so it exists in our juries. SCOTUS says it’s okay to execute people under this system.

It’s not so much about the race of the defendant these days. The statistics show us over and over that the death penalty is imposed many times more often when the victim is white. As a society, we just care more about white people being killed. Death is also imposed more often when the jury is all-white. But your kid won’t be allowed to bring that evidence or other statistical evidence of racism – say, in a community or prosecutor’s office – into court here in NC.

Defense attorneys protect the constitutional rights of accused people. There is no one on the High Court who has ever been a criminal defense attorney. The criminal justice system is off the rails from start to finish, and SCOTUS needs to make justice more just. We need the defense-side perspective and voice if we’re to have any hope of a fair and reliable criminal justice system.

And BTW, I’d pick Bryan Stevenson.

 

 

 

 

 

 

Debating a friend of mine made me ask myself how we might figure out who is right?  His position is basically, if you are black and a white person treats you badly, you can’t prove that’s racism — maybe the white guy is just a jerk to everyone.

Today, one Confederate flag comes down.  Here’s one reason that matters.

 

[Here are some of my Southern credentials, in case you care: one ancestor was a City Engineer in Columbia a generation after the Civil War, who partnered with one of the architects of the South Carolina Statehouse over which that flag has flown for fifty years. Both of my parents grew up in small Southern towns, themselves raised by parents who grew up in the South, and so on back through the generations on both sides. Several generations of LaMottes were born, lived, and died in Columbia. There are many things about the South that I love and I live here now, although some say Asheville doesn’t count.]

 

The flag is part of a legacy in multiple ways. One legacy is what I’m calling the “It doesn’t matter . . .” legacy.

 

During slavery, white Americans said, “We have a right to own slaves and to be free of federal interference, and it doesn’t matter what effect being sold as property, being abused like beasts, being dehumanized has on African Americans. Black pain doesn’t matter. It doesn’t matter what people of conviction elsewhere, or even other Southerners, think about it. It doesn’t matter whether it tears the country apart.” The law and the authorities endorsed this position.

 

During Reconstruction and Jim Crow, white Americans said, “We have a right to protect our way of life and protect ourselves, and it doesn’t matter what effects the KKK, the terrorism of lynching, and convict leasing systems have on African Americans.” Black pain doesn’t matter. It doesn’t matter what people of conviction elsewhere or in the South think about it. And the law and the authorities endorsed this position.

 

During the Civil Rights Era, white Southerners said, “We have a right to live in the nicer neighborhoods by ourselves, go to the better schools by ourselves, patronize restaurants and motels by ourselves, and it doesn’t matter how African-Americans are held down and humiliated. Black pain just doesn’t matter. It doesn’t matter how others see this.” And the law and authorities endorsed this position.

 

In these days, and not just in the South, we have racist drug policies, and are over-incarcerating young black men. In our names, law enforcement officers are militarizing and over-using force in neighborhoods of color. The killer of a white person is many times more likely to get the death penalty than one who kills a black person. And white voices are saying, “Our streets and our officers must be safe at any cost, and it doesn’t matter how this affects African Americans.” Black pain just doesn’t matter. And the law and the authorities endorse this position.

 

This week, many white Southerners are saying, “The Confederate flag stands for heritage, not hate.” OK, maybe it’s not hate on your part, but it is part of this continuing legacy of indifference to the pain of African Americans. It’s still, “We have a right, and black pain doesn’t matter.” It is, “We have a right to define the flag’s meaning, and it doesn’t matter that what it means to African Americans is that they stand in a legacy of pain and injustice that continues to this day, and that it is not some few racists but the government itself that proudly flies it. It doesn’t matter that the rest of the world sees it this way, as well. Our rights and perspectives are the only ones that matter.”

 

Today, that flag comes down, despite vocal resistance by some white Southerners. No, it doesn’t solve everything, and that flag will continue to fly high from personal vehicles and yards (free speech). But from now on, the government itself won’t fly it. At least this week, the law and the authorities in a southern state acknowledged black pain and did the right thing – on their own, without a federal act or Supreme Court interference – and that matters a great deal.

Just having the death penalty as an option has costs, even when we don’t impose it.

We’re locking up lots of people who will eventually get out.

In the wake of multiple killings of unarmed black men by police, our public discourse has moved from Denial to what I call the “Bad Apple” phase.

If we’re going to find real and lasting solutions, we’re going to have to move the conversation forward into the next phase, in which we can have honest conversations about the patterns and systemic forces at work.

What I’m suggesting here is the tiniest step we can take in that direction, but I think it’s necessary one.  And it’s something we can all do as we consume news and have discussions, which is to pay attention to the narratives in which we and others operate.

In capital cases, there is a rule that people who can’t impose the death penalty can’t sit on the jury.   This rule was established when opposition to the death penalty was an outlier position, so disqualifying opponents seemed like no big deal.

For the last couple of decades, however, opposition to the death penalty has been steadily rising.  More and more people are disqualified.

Do you see where this is heading?

Here’s a 2-minute video:

 

In the last couple of weeks, I’ve had no time to comment on the interesting things in the news.  So, catching up a bit here.

Prosecutors will seek the death penalty against the man accused of Chapel Hill, NC shootings of three Muslim students.

This means the State will be looking for jurors who are sympathetic to Muslims but are also pro-death penalty.

Does anyone else think that will be an interesting group?

Death penalty appeals are enormously expensive and take years if not decades.  They frustrate the victim’s family, witnesses, law enforcement, and prosecutors. And for what? They don’t ensure that we got it right.

An inmate usually cannot appeal on the basis that he is innocent.  Appeals are based on errors.  One might think that convicting the innocent is, by definition, error. One would be wrong.

In a jury trial, the jury decides which witnesses are telling the truth and who did what.  They do this in secret deliberations.  If their conclusion is wrong, that can’t be fixed unless there is also a legal error.  Legal errors include a judge ruling contrary to law, a prosecutor hiding evidence, or a defense attorney failing to provide minimal representation.

Even if there is such an error, the inmate usually must also show that, without it, the jury would likely have reached a different verdict, an argument that is difficult to win, since no one knows how they reached the first one.  In many cases, errors exist but don’t legally matter.

We have the idea that these appeal courts go through the case again, making sure the jury made the right decision. Not so.