Tuesday, November 25, 2008

Today's misleading headline of the day

From the Hamilton Pulse Journal: "Convicted killer may walk free"

That's the headline. Now when I read a headline like that, I expect that the news article is about how some guy was recently found guilty of murder, but through some weird technicality, is going to walk free without spending any time in prison for murder. Correct me if you think that's an unreasonable presumption.

However, that's not at all what the story is about. It's about a guy who was sentenced in 1984 to die for a murder he committed in 1983. A murder he committed while on parole for stabbing his wife to death in 1970. The guy is a double-murderer who committed his second murder while on parole for the first!

Regardless, it's a crime that happened 25 years ago. So how is he going to "walk free?"

Well in 1988, the Ohio Supreme Court ruled that the three-judge panel (which heard the case in lieu of a jury... three-judge panels must hear any bench trial in a capital case) misapplied the law in Ohio and considered criminal acts as aggravating factors (reasons to sentence Davis to death) things that the Ohio legislature did not specifically permit a sentencing court to consider as an aggravating factor. Because the court found four mitigation factors against death but five aggravating factors (including the ones not authorized by the death penalty statute), the Ohio Supreme Court remanded the case to the trial court for a proper sentencing. However, despite the prior improper death penalty sentence, the Ohio Supreme Court specifically permitted the trial court to still consider a death penalty sentence on remand.

In January 2007, a federal court found that the trial court, during the resentencing, failed to admit into evidence that should have considered as mitigating circumstances against the death penalty and again remanded the case to the trial court for yet another resentencing in which the death penalty could be considered.

Under the law as it existed in 1983 (which is what Davis must be resentenced under), he can either be sentenced to death, life with the possibility of parole in thirty years, or life with the
possibility of parole in twenty years.

And that's how the paper concludes that this twice-convicted killer could, theoretically "walk free." Since he's already served twenty-five years in prison, the trial court, on the third bite of the apple, give him the minimium sentence possible and the guy could be released on parole at his earliest opportunity. Only under that specific scenerio can anyone legitimately claim that multiple murderer could "walk free." He walks free after serving his sentences and being released on parole based on a positive recommendation that he be released by the Ohio Parole Board. A highly improbable event for a guy who committed murder while on parole.

And yet, that didn't keep the headline writers in the local paper from panicing or Butler County Prosecutor Robin Piper for fearmongering:

"It is a very important case," said Butler County Prosecutor Robin Piper. "It's
scary important, because this man could conceivable be released if he is given
one of the life options."

The Sicilian from "The Princess Bride" had a better understanding of the inconceivable as Piper understands the term conceivable.

Would it be theoretically possible? Sure, Ohio law at the time allowed for someone who committed aggravated murder in 1983 to possibly be released by now if the Adult Parole Board felt it prudent. However, that ignores the fact that Ohio's laws even then only created the possibility of parole, it did not require it. And even under 1983 Ohio law, guys who committed murder while on parole don't then get released on parole, especially on the earliest possible moment.

There are plenty of valid reasons to argue that the State of Ohio should be allowed to stick a needle in Von Clark Davis' arm and pump him with a cocktail of drugs until he is dead. Lord knows it would be a more merciful death than he's ever given either of his victims. However, the mere fact that he could, in theory, be released on parole at some point unless he's sentenced to death has to be the oddest argument I've ever seen for a death penalty in a particular case.

It sure as heck doesn't justify the headline. A more accurate headline would be "Twenty-five years after murder, Ohio trial court has still failed to adhere to Ohio's death penalty law in capital murder case." Or, "County Prosecutor believes Ohio Parole Board might release twice convicted murderer."

However, where's the real journalism in this story? Where does a reporter ask the real question: how likely is it that this guy would ever really be released on parole? He's 62 now; he was 37 at the time of his last offense. Why would the county prosecutor make such a ridiculous claim? (Other than lower the expectations he'll know he'll beat, only then to trump his "major" victory when the court... shock.... sentencing the guy to death again. Pumping drama in a story that lacks it.) Why no focus on the fact that this guy has been sent to death row twice for the same crime only to have the courts later reject his sentence as being legally invalid both times? Does anyone honestly believe that a twice convicted murder, who committed his last crime while on parole, would be released again? How many defendants who have the kind of record as Davis has are sentenced to the statutory minimum sentence and serve the statutory minimum amount of time after committing their last crime while on parole? Has anyone ever gotten that kind of treatment?

Let me answer that question. No, nobody knowledgeable about the law honestly believes that this guy is going to "walk free" unless he's sentenced to death again. And that's just an example of how tradition media fails in its coverage on reporting on the law more often than not.

The idea that this guy would be released on parole would be laughable if it weren't been made as an argument to kill him as an acceptable alternative.

Tuesday, August 12, 2008

Thanks for visiting, Dave Hickman

One week since the re-launch, and this site has already been visited by none other than Progressive blogger pest Dave Hickman- the man who believes he's better than every other blogger there is, even though nobody listens to him.

Dave, I'm not going to post your abusive comment because I don't have to. This isn't a forum for you. If you want a forum to express your childish taunts and rants, start your own blog. This is mine, and I chose what comments do and do not get published.

Another reason I didn't post your comment is that it simply isn't true. For the record, I've been offered to administer BSB every time its changed administrators. I've turned it down because I don't have the time or technical expertise the job requires. I still have front page posting privileges and even posted today. That's as far as I've have ever asked to go with BSB.

And, frankly, I don't know why you hate me so much. All I've ever disagreed with you about was your contention that '06 Green Party gubernatorial candidate Bob Fritkas was a threat to Congressman Strickland for the progressive, urban vote, thus allowing Blackwell to potentionally take the African-American vote. I said it was nonsense, and you called me a racist for it.

And, yet, history proved me entirely right. Fraudbuster Bob (who lied about the Governor having the power to block the nationalization of the Ohio National Guard for use in Iraq), had the worst showing of anyone on the ballot. The Liberterian candidate for governor got twice as many votes as your candidate did.

Since then, I've largely ignored you. To date, I'm the only Ohio blogger who has reported about the defects in electronic voting in Butler County which led Secretary of State Brunner to find a serious flaws in electronic voting. And yet, I'm chided because I'm not a "stolen election" guy.

BWAHAHA all you want, Dave. Nobody listens to you. Oh, and if you don't like this blog, don't read it. I could care less if anyone does. That's the point of it.

I've done nothing to you, Dave. Nothing at all, but disagree with you about a third-party candidate for Governor. And I was right. You've yet to acknowledge that. Regardless, I've done nothing to deserve your "attention." Just go away.

-The Management

P.S.- Comments are welcome to this site so long as they actually related to the topic of the posts. I will not let personal attacks or mindless ridiculing remarks be posted here. I will not stifle respectful and thoughtful dissent, only ridicule. I trust you all can tell the difference between the two.

Monday, August 11, 2008

Unstoppable constitutional right meets immovable political object

Nobody likes criminals. Well, maybe mystery writers. Security system salespeople. Gun manufactures (for the same reasons as the security system.)

You'll never find a politican running on a soft on crime platform. You'll never have a politican suggest that we need to reduce the criminal penalities for crime. If there's an inequity found in the system (such as the sentencing difference between crack cocaine and powder cocaine), then the result is to increase the less harsh result to remove the "inequity."

This wasn't always so. There was a group of politicians, long since gone, realized that there was no area where government regularly places enormous restraints on liberty than in the criminal justice system. But they also realized that people accused of crimes are politically vunerable group. So, they enshrined the most imporant protections in our Constitution, so that they would be almost impossible to be eroded by the political will.

And that is why the Founding Fathers, those bleeding hearts of liberty, enshrined the right of counsel in the Sixth Amendment to the United States Constitution. If only the Framers had the mindset to mandate that the right of counsel in defense was equal to the public resources dedicated to seek the person's incarceration.

In Ohio, indigent defendants can receive their legal counsel from one of two methods. The first is that the County can establish a Public Defender Office where the county employees salaried attorneys solely to serve as defense counsel for indigent defendants. The other is that court can have a list of private attorneys who can be appointed to represent you at a reduced costs (in most areas roughly $40 an hour for out of court to $50/hr. for in-court legal work.) Oh, and there's a cap to how many hours your attorney can charge under this second system. In Butler County, it works out that your court-appointed attorney can spend less than a full work week on your case. Which is great, unless your case goes to trial (which normally takes at least two to three days.)

Ohio law requires that if a county has a Public Defender Office, then it must appropriate as many resources as it does for the county prosecutor's office. So, what the political consequence of this mandated equity? You guess it. Most counties don't have a Public Defender's Office (which I could write a separate post on the problems with them as well.

Lately, two Butler Common Plea judges have criticized the current private appointed system in the county. They have complained that the current system is too expensive, that some of the 50-odd attorneys on the list are inefficient and padding the billing leading to waste and taxpayer fraud leading to criminal investigations and bar complaints. Right now, one attorney has a pending indictment for billing for work other attorneys did (she reportedly left the country for Mexico before she was indicted.)

So the judges (elected officials), want to create a hybrid system. They want to fire all but fourteen of the court-appointed attorneys. Assign two defense attorneys per judge, and pay those attorneys a salary as opposed the hourly rate. The judges claim that this new system will (somehow) save money from the current system and that these 14 attorneys (who will handle over one hundred felony cases a year) will still have time for a part-time private practice despite handling the same number of cases currently managed by over fifty attorneys. Not surprisingly, the Butler County Bar Association has expressed concerns about this plan and expressed downright skepticism about the judges' claimed savings and benefits.

Surprisingly, the local paper, the Hamilton Pulse-Journal, seemed to see right through this proposal for the politics it is. I was impressed with the paper's understanding of this issue:

Butler County's seven common pleas judges say the current system of providing defense attorneys for indigent clients is too expensive, is often abused by attorneys who overbill the county, is inefficient and is just plain "broken." Currently public defenders for felony cases are appointed from a list of about 50 attorneys who are paid $50 an hour for courtroom work and $40 an hour for work outside the courtroom — at an annual cost of about $1.1 million to the county.

Judges Michael Sage and Keith Spaeth are pitching a plan to commissioners for reducing the costs — to about $700,000 annually — and reducing the number of attorneys appointed by the county. Their plan calls for only 14 defense attorneys to be hired on a part-time basis — each earning an annual salary of $46,000 — and to be assigned to specific courtrooms. In other words, each judge would have two public defenders assigned to his court, serving the clients who need legal representation.

Ohio Public Defender Tim Young and Greg Howard, president of the Butler County Bar Association, have criticized the plan on a few points with which we tend to agree:
• Young contends that public defenders' loyalty will be with the judge for whom they effectively work, not with their clients. "If an attorney is handpicked by a judge to service all of the cases in front of the judge, and if the attorney is compensated through a contract approved by the judge, and if the attorney's continued employment is conditioned upon the judge's satisfaction with the attorney, there is more than a fair chance that the attorney will be in a position, whether intended or not, that loyalties will be compromised between the judge and client," he said in a letter to county leaders recently. We think he's correct.
• Howard, in noting that the proposed system "would not provide effective representation for the indigent population of Butler County," said the 14 attorneys would be spread too thin. (The 14 "part-time" defense attorneys will be permitted to continue their private practices on the side. To which cases do you think they will devote the most time and energy?)
• Howard also notes that the judges will not be able to hire the "14 best attorneys on the (current list) ... They're also going to get ones they don't want, that don't have the experience, and they'll have the same problems they're experiencing now." In other words, it's likely indigent clients will wind up being represented by less successful (and presumably less skilled) attorneys who need the work.

That hardly seems fair in a county that already spends twice as much on a Prosecutor's Office.

As they make their decision, county commissioners need to consider the right of an individual — innocent until proven guilty — to receive a fair trial, with legal representation that is not inherently overmatched by the prosecution. The judges' proposal seems to stack the deck against the clients, and in favor of one that's merely easier for the judges to manage.

We understand that judges are trying to avoid the creation of an official public defender's office — by suggesting this "hybrid" plan — but we think commissioners should give thought to whether the time has come to establish such an office. Certainly the current economic times aren't right for adding expenses, but the judges' proposal appears as flawed as the current system.


As much as we appreciate the efforts of the judges and commissioners to control expenses and be good stewards of the taxpayers' money, the bottom line in this discussion must always be providing the best possible and affordable legal representation for those who cannot afford their own attorneys. If the current system is broken, then let's fix it — but not at the expense of those awaiting trial and counting on a fair shake from the county's judicial system.

It's not easy to write that a person who is accused of a felony should have as much in taxpayer resrouces dedicated to his defense if he cannot afford his own counsel than being used for his prosecution. Most papers wouldn't have the courage to point out the obvious: that without the parties on equal footing, a fair trial cannot be had.

Kudos to the Pulse-Journal's editorial board. You would have made our Founding Fathers proud.

Monday, August 04, 2008

The pathology of the criminal legal mind

Nowhere has the disciplines of psychology and the law been more deeply and unhealthily wed together than in criminal law. From the first law that attempted to separate the consequence between an avoidable tragic accident to a cold-blooded plan, society has become an attempt to unlock the criminal mind with a taxinomical approach to label every sin with its own statute. Incidentially, anyone who complains about hate crimes statutes because it bans "thought crimes" hasn't apparently given much thought from the difference between murder and involuntary manslaughter.

Our sexual predator statutes are entirely based on an unquestionable faith that psychiatry can determine within a reasonable degree of scientific certainty which sexual offenders are likely to reoffend and which ones aren't. But that's a topic for perhaps a later post.

Perhaps someday, the criminal jurist will put itself on the couch and realize just how insane the state of criminal law can be.

Imagine that you are accused of murder and are facing the possibility of life in prison without parole. Imagine that you are told if you go to trial, the State will insist on the maximum penalty, but if you plead guilty they'll agree to a life sentence which allows for the possibility of parole. You don't have an education beyond high school. You are indigent and have a court-appointed attorney who advises you to take the deal as it's the only likely chance you could ever see life outside at prison again.

Now you are given a form to sign in which to make your plea. Both the form and the judge accepting the plea tell you if you are ever released on parole, you'll be on parole for five years and if you violate the terms of your parole you could be sentenced for up to nine months in prison. Based on that representation, you agree to waive all of your constitutional rights, including the right to require the State to prove your guilty beyond a reasonable doubt, the right to a jury trial, your right confront the witnesses against you, the right to compel the testimony of any witness in your favor, the right to object to the admissibility of the evidence, the right to be represented by counsel, the right to appeal your case, and your right to be silent.

You are sentenced to prison. You later learn that if you are ever released on parole, you will face a lifetime of being on parole and that if you ever violate the terms of your parole, you can face re-incarceration for the rest of your life, instead of up to nine months as your judge told you.

Do you believe that such an error would mean that your decision to waive your rights and plea guilty was a voluntary, knowing, and intelligent decision?

If you're a three-member minority of the Ohio Supreme Court, the answer is tragically yes, your plea is knowingly and intelligent even given the mistaken information provided by the Court when you made your plea. In the Ohio Supreme Court's recent decision in State v. Clark, 2008-Ohio-3748, this three-member minority held that since the Court correctly informed the Defendant as to what the maximum sentence would be and informed him of the constitutional rights he was waiving, the erroneous information was not a prejudicial issue to render the Defendant's plea invalid, but instead should still be considered a knowing and intelligent decision.

What did the four-member majority rule? Well that such an erroneous instruction to a Defendant as to the full consequences of his pleas may have been prejudicial (i.e.- he may not have plead had he had accurate information), but the majority did not vacate the Defendant's plea. Instead, it remanded it to the trial court to determine if the court's erroneous information prejudiced the Defendant in making his plea.

But before I get into the insanity of that, let me point this out. The majority opinion actually advises Ohio's trial judges that they could potentially avoid the risk of this particular error by simply avoiding to inform Defendants as to the consequences of their plea might have as it relates to parole and possibilities penalities for violating their parole. This judicial wisdom comes from no other than the United States Supreme Court in the case of Hill v. Lockhart (1985), 474 U.S. 52, 56, where the highest Court in the land ruled that Defendant need not be told of the consequences of his plea may have on becoming eligible (if it all) for early release under parole and the possible consequences for violating the parole. Such information is not necessary to make a plea, apparently, knowingly or intelligently.

But let's take a look at the real insanity of the majority. Besides chastising the trial court for trying to inform the Defendant about how his plea may make him eligible for parole and what parole would mean, the Ohio Supreme Court held that his case should be remanded because the mistaken information might have prejudiced the Defendant's decison to enter the plea. But the court's confidence in mind reading is so strong, that it remanded it to the trial court so that it can determine if the erroneous information prejudiced the Defendant into making his decision.

Think about that. A guy who is charged with aggravated murder and is facing the possibility of life without parole if he goes to trial, has appealed his plea all the way to the Ohio Supreme Court because he says that his plea was not knowing and intelligent because of the obvious mistaken information the Defendant was given by the trial court judge-- someone the Defendant obvious had reason to believe was giving him accurate legal information about the consequences of his plea.

If the Defendant's sentence was vacated, he is back facing trial or trying to reach a new plea agreement. Why would the Defendant give the State the opportunity to possibly sentence the Defendant to life without parole, appeal his case to the highest court in the State, if he himself didn't believe that the erronous information affected his decision to make such a plea?

And why does the Ohio Supreme Court believe that the trial court can better judge whether the Defendant was prejudiced into the Defendant's decision to plea than the Defendant's own determination that the erroneous information lead to him to make a plea he might not have entered if he had correct information. Can one truly make a knowing and intelligent decision with faulty information? Unfortunately, we were one vote away from that being the law of Ohio.

But the majority's decision is as dysfunctional for it suggests that a person can make a knowingly and intelligent waiver of their constitutional rights if the person is given less information about the consequences of such a waiver and that a Defendant would actually appeal a decision to vacate his guilty plea over an issue that he truly didn't believe prejudiced his decision to waive his rights.

And that is why criminal jurisprudence needs to put itself on the couch and under the microscope just as often as it put the criminal mind.


This is where it all began. This is where I first began to blog. Sometimes, you have to back to the beginning, to remember where it was you wanted to go in the first place.

It's been a year and nine months since I've posted here. This site has been dead, and yet, I find myself compelled to come back here, as if there is unfinished business here. As if this site was more an unfinished work rather than a monument to a blogging past.

I left here to go to BSB because my writing became focused on the '06 elections, and its traffic gave me an audience I never had on my own. But in so doing, I found the scope of my writing became more and more limited the bigger the audiences were. "Modern Esquire, " the guy who wanted to write about life, the law, and politics, became "Modern Pundit," yet another white guy writing about politics.

Nobody grew to hate your posts more than I did, until the Clinton-Obama primary wars came. And I never understood how powerful a mob the cyber world could be until I saw it turn on me. The one who was once listened to, linked to, and generally respected quickly became the object of scorn and ridicule for no other sin than whispering the name "Clinton."

I hated the Spring. I hated the petty attacks. But most of all, I hated myself for becoming part of it all. I hated my writing and the pettiness of it all as much as the "message" of the people I responded to. And I thought about walking away, and to a large degree I have. Family, the law, and life came back into balance, and I remembered that I was just as happy in the real world as I ever was in this.

And now I'm back here, staring at this site nobody ever sees anymore. And I remember what it was like two years ago. When I just wrote. And without thinking, I felt compelled to write this post.

Maybe I don't need to blog every story, every hour, every day, or ever again. And suddenly, I realize what went wrong. I went onto BSB to be heard as M.E.; but I came here to be me. All this time, I thought I had to choose between the two. But nobody ever told me I had to chose. Nor do I have to choose, either.

So, now, I realize what I can do. I can continue to be heard on BSB, and I can come here to be me.

So, I can continue to write about politics at BSB when it suits me. But I can still come here for everything else. To write about the other passions such as the law. And maybe nobody will read it here. And that's fine with me, because nobody was reading this anyways.

I came here to shout into the void; I didn't expect an answer. Progress is cyclical, and sometimes you have to go back where you started to make the next evolution.

Welcome back.