While the Supreme Court held that a state could not put a retarded person to death in Atkins v. Virginia, modesty, deference and an inexplicable reluctance to fully deal with the problem left a hole big enough to drive a redneck’s pickup through.  And so the Georgia Supreme Court did when it came time to decide whether Warren Hill should be executed.

Hill, who is nobody’s poster boy for innocence, received the death penalty for killing a fellow inmate while imprisoned for killing his girlfriend.  He’s also clinically retarded, meaning that he has an IQ of 70, and nobody disputes it.  But in Georgia, that’s not good enough to prove retardation.

As described by  Andrew Cohen in his Atlantic article describing the executions scheduled for the week ahead (no reason to read the part about Yokamon Hearn, as he was executed last Wednesday), Hill just wasn’t retarded enough:

An extensive evidentiary hearing was held. Even the state agreed that Hill met the “IQ criterion for the diagnosis of mental retardation.” Where the parties diverged, however, was on the issue of whether Hill’s cognitive failings were accompanied by what law and science call “impairments in adaptive functioning.”

But the court noted instead that Hill had exhibited a “consistent work ethic” and had “managed well enough, in a ‘functionally academic manner’ to handle financial transactions … while simultaneously sending monies to his family and contemporaneously maintaining his personal needs.” Hill even passed a military entrance exam. The court ruled that while Hill was demonstrably retarded, he had nonetheless not proven beyond a reasonable doubt that he was retarded enough to avoid execution. 

The distinction comes from a peculiarity in Georgia’s burden of proof, where the defendant is required to not only prove he’s retarded, but to do so beyond a reasonable doubt.  While Warren Hill was unquestionably retarded, it was merely by a preponderance of the evidence.  Close, but not good enough.

Georgia is the only state in the nation which requires the “reasonable doubt” standard in these cases — and the state supreme court proudly defended its standard. The majority wrote:

In view of the lack of national consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, we conclude that the Georgia General Assembly, the first legislative body to create such an exemption, was originally and now remains within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.

What this means isn’t exactly clear. How exactly does a person prove that he’s retarded beyond a reasonable doubt when the criterion is so wiggly as to suggest that anything less than constant drooling opens the possibility that maybe he’s not that retarded? No matter, as the Georgia Supreme Court concluded. It’s Hill’s problem to solve, even though nobody really doubts that he’s retarded.  From the 4-3 dissent:

Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded. Only if a mentally retarded person succeeds in proving their retardation beyond a reasonable doubt will his or her execution be halted.

One might wonder how exactly the theory behind the Rule of Lenity, that statutory ambiguity is resolved in favor of the defendant, since the Georgia statute shifting the burden to the defendant to prove retardation beyond a reasonable doubt suffers from the same infirmity as the burden at trial. It’s a really cool sounding standard, but so vague and ephemeral as to allow whatever outcome a person wants in even a moderately close case.  Essentially, the ability to walk without tripping seems sufficient to find a prisoner death-ready.

Granted, Hill’s crimes (like Hearn’s before him) aren’t likely to make proponents of the death penalty feel particularly badly about society’s loss.  But like Hearn, the parameters of the rules about who gets executed are tested by those who have done terrible things, rather than only the wrongly convicted or murderers for whom we have an affinity. 

The Supreme Court rightly held that we do not execute retarded people in America.  And, as the dissent wrote, Hill is “almost certainly mentally retarded.”  Even that doesn’t seem to adequately sum it up, as there is no question that he is mentally retarded, with the only question being whether he has proven beyond a reasonable doubt that  mentally retarded enough.

That it’s necessary to parse the details to this extent, where the slightest of distinctions are argued more on a rhetorical than factual basis, in order to explain away the obvious and put the mark of death on a defendant’s head is where capital punishment goes off the rails, even for those who aren’t at all concerned that it’s part of a seriously inadequate system. 

The divided Georgia Supreme Court concluded that the proof failed to meet a burden that itself goes beyond the burden found anywhere else in the United States.  The court’s decision prevailed by one vote, based on a standard that would allow for whatever decision met the judges’ personal sensibilities.  Even the prevailing judges saw this case as sitting on a razor’s edge.  No person should be executed when it cannot be said with absolute certainty and clarity that they do not fully satisfy the statutory criteria, even if you believe that people should be executed at all.

Most ironic is that Warren Hill passed the military entrance exam.  Perhaps his conduct would have earned him a medal, if for his work ethic if not his use of weapons.  That’s how thin the line can be.  And yet he’s not sufficiently retarded to be spared execution in Georgia.  Maybe no one is sufficiently retarded in Georgia.

It wasn’t just detainees who were tortured at Gitmo, but anything remotely resembling logic as well.   ProPublica reports that the government, in its finest Catch-22 reasoning, has taken the position that five detainees can’t utter words in their own defense at their military trials because their own words are “presumptively classified.”

Can the government declare anything a Guantanamo detainee does or says automatically classified?

That’s the question posed by two challenges to a government order declaring [1] “any and all statements” by the five detainees allegedly behind the 9/11 attacks “presumptively classified.” That includes their own accounts of their treatment, and even torture, at the hands of the U.S. government.

And it’s not just the detainees who need to shut their trap, but their lawyers:

The “presumptive classification” order extends to both detainees’ testimony and their discussions with their lawyers. In other words, anything said by a detainee, whether in court or to their counsel, will first need censors’ stamp of approval before it can become public.

Absurd? Not according to the government’s argument.

After all, it’s not like the detainees didn’t ask to be exposed to secret CIA torture methods.  Oh wait, they didn’t. So the argument is that the CIA tortured the detainees, and by dint of being tortured, a classified method (or is it an activity?), they are precluded from defending themselves.  Circular doesn’t get much better than this.

As for the lawyers, it’s not as if they didn’t sign off on keeping the government’s secrets secret.

Anyone involved in the case has to sign a “memorandum of understanding [24]” indicating their responsibility for access to classified information, as defined in the protective order. The defense needs to give warning when they plan to use classified information, and to submit any information they want unclassified to a government-appointed security officer for review.

In practice, according to Connell, this means lawyers have to get approval to use even their client’s birthdate, if the source for it is the detainee’s—presumptively classified—statement. The resulting difficulties for the defense, the motion maintains, violate attorney-client privilege and Sixth Amendment protections.

What can’t be ignored about such agreements is that they offer no alternative.  Much like the SAMs in the Lynne Stewart case, no one will make you sign off on them, but failure to do so means you don’t get to represent your client.  At the time a lawyer signs off, he has no clue what the impact will subsequently be since he has no idea what information will be involved.  Like a waiver of liability, you’re expected to agree first and find out what you’re agreeing to later. Great deal if you can get it, and the government can because it has the keys to the cell.

The ACLU is challenging the government’s position, which impacts not only the detainees in their ability to defend, but the media in its ability to report.  There is a 40 second delay in closed circuit transmission of proceeding to a media room, just in case government censors feel that something said is too classy for the media to hear.

The ACLU’s motion [7] takes issue with the idea that the government has declared detainees’ “personal knowledge of their detention and treatment in U.S. custody” classified. Their exposure to classified information was forced upon them [8], the ACLU states, in CIA detention and interrogation programs that are now outlawed.

The ACLU’s brief challenges [10] whether that authority could be extended “categorically to human beings under the government’s control.” [emphasis in original]. The ACLU also argues that the detainees were not in any kind of contractual relationship which would make them liable for the classified information they were exposed to.

Making this all the more Kafkaesque, while the detainees were in no “contractual relationship” with the government, unless some sort of agreement is deemed imputed by waterboarding, their lawyers are, having signed off on the memorandum of understanding.

On the one hand, it’s completely understandable that the government needs to protect our national security secrets, such as the particulars of how the CIA uses its special techniques to persuade enemy combatants to spill their guts, whether literally or figuratively.  After all, isn’t the nation entitled to do what it needs to do to protect our American way of life without making us lose sleep over its propriety?

But then, why bother with the charade of a trial if the lawyers defending the detainees are hogtied to begin with?  If the United States has no plan to allow the detainees to defend themselves, then the outcome is not only a foregone conclusion, but will make really lousy entertainment and won’t do much to keep American’s from flipping the dial to something really classy, like the Real Housewives of New Jersey.

Let me be clear that I have long been a huge fan of Mark Herrmann. I liked him when he was a blogger at Drug & Device Law with Jim Beck.  I loved the Curmudgeon’s Guide to Practicing Law.  And we’ve become blogging buddies, meaning that he sends me emails if not business. 

When Mark left Jones Day to go in-house, I figured I’d heard the last of him. After all, after your pulse drops below 27, death can’t be far behind.  Then he re-emerged in the most unlikely of places, Above the Law, where he did a column ominously named “Inside Straight.”  Questions about sexual preference quickly put to rest, Mark once again assumed the mantle of mentor for the unemployed yet arrogant readers of ATL, providing them with insight of which they were terminally unworthy.

And now it’s a book.

The book opens with a Foreward by the guy whose blogging career began by looking underneath the robes of the judiciary, hoping to find the next “judicial hottie,” David Lat.  It’s a surprisingly honest portrayal of the early days of what is certainly the most successful law blog, and a mini-history of how it has come from juvenile snark and scatological jokes to that plus columns by someone as worthy of your attention as Herrmann.

The Preface lapses into typical Herrmann humble, explaining the concept of the book.  This is critical, as this book reflects what I submit will be a new genre, converting the content of a blog into a book which, as Mark states, is an honest reflection of not only what appeared online, but which maintains the flavor of online discourse.

When Mark let me know that he was sending me a free review copy, he asked whether I thought his idea worked, whether he pulled it off.  Not only do I think he did, but he did so spectacularly.  This is the model for all future books based upon content created for the blogosphere.

The book consists of select ATL columns, slightly altered to deal with the differences in format (such as the obvious inability to include hot links on dead trees), reorganized so that things that go together, but appeared online at disparate times, make sense.  In fairness, I’m an avid reader of Mark’s column, and read most of this when it first appeared.  The test of true value is whether it’s still a good read the second time around.

Mark’s posts, much like the Curmudgeon’s Guide, offer thoughts and advice that can be read on two levels.  On the surface, they offer fairly basic thoughts that reflect sound judgment and seasoned experience, such as outside counsel hopefuls pitching for business aren’t going to get anywhere by telling why they’re exactly the same as everyone else.  On a deeper level, however, it’s a metaphor for the failure of legal marketing in general.  Most of Mark’s in-house observations remain true for all of us, from solo criminal defense lawyers to, well, who cares. Everybody.

But aside from his columns, this book goes where no book has gone before, and this is where it gets really interesting.  After each column, Mark includes a selection of comments that were actually left at ATL.  Now if you haven’t bothered with ATL, let me warn you. The comments are an exercise in which unemployed snot-nosed kid can outsnark the others. They’re sometimes funny, in the way that watching a Jackass movie is funny, but always offensive.

And Mark put them in his book.

Not every comment is included, and some of the most venal and abusive are omitted, but there is no shortage of comments ridiculing Mark and his writing.  I will never forget his inaugural column, producing such gems as:

Via Walter Olson at Overlawyered, the anonymous author of a  blog called  Raised on Hoecakes (which apparently is a name used in the deep south for pancakes and not an urban reference to prostitution) was searching for an image of a gavel to put in a post about law, recognizing that pictures of gavels make law posts more enlightening, when he stumbled across this National Highway Transportation Safety Administration poster:



He writes:

Cool, huh?

Only one problem: it isn’t true. Someone missed the memo telling judges to make arrests for DUI a resulting conviction 100% of the time.

According to Florida DMV records there were 33,625 DUI convictions in Florida in 2011. Of the 55,722 DUI tickets issued in Florida in 2011….

That’s a 60.3% conviction rate which means roughly 2 out of every 5 people cited for DUI are not convicted of that offense. That’s not even close to “being extinct.” Other states have roughly the same percentage of convictions.

We realize there is hyperbole in most advertising campaigns. When a fast food joint says they serve the “best hamburgers in the world!” there is a bit of “puffery” in their statement.

One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety.  The public’s trust, and the integrity of the judiciary, depend on it.  Without it, the courts are nothing, worthless.  When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons.  Our founding fathers were ingenious to provide the citizenry with an alternative to insurrection. 

“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erodes society’s confidence in a rule of law that evidently has no agreed-upon meaning,” write Scalia and Garner.

Posters like this don’t help either.  If it’s fine with the court to have the NHTSA announce that the fix is in and courts will no longer do their job, then there isn’t much reason for their continued existence. Is that really the message they want to send?

Sixteen years ago yesterday, TWA Flight 800 went down off the southern coast of Long Island.  The official explanation was that a fuel tank exploded. 

It’s not true.

I know because I was a witness, driving over the bridge from Westhampton to Dune Road with my daughter and her friend in the car, having just gotten them ice cream cones.  I saw what happened. At the time, I had no idea that the explosion was an airplane.

It appeared to me to be fireworks. I said to the girls, “look, someone is shooting off fireworks” and pointed to the sky. We continued over to drive. Shooting fireworks are fun enough to point out to children, but that’s about as far as it goes. As the emergency vehicles later swarmed Dune Road and the beach, I learned that it was TWA Flight 800.

I knew no one on the plane. I had no horse in the race. I saw what I saw.

I told the government. I was thanked for my cooperation, and never heard from anyone again.

There are others who saw what I saw.  Some people have theories about what happened. I do not. I offer no explanation.  A reporter friend once challenged me to explain away the government’s evidence to support what I saw. I declined. I have no interest in explaining away anything.

I saw what I saw.  Sixteen years later, I still saw what I saw.

When the Supreme Court botched the opportunity in  Connick v. Thompson to impose a duty on prosecutors to demonstrate a  passing competence, it enshrined ignorance of the law as the perfect excuse. Not for you or me, but for prosecutors.  Apparently, Steve Cooley, the Los Angeles District Attorney either didn’t get the memo or, more likely, is so filled with the hubris of office that it could be safely ignored.

You see, the admonition of the Supremes was that the prosecution had to adhere to the rule of Brady v. Maryland, to the extent such a rule could be discerned from Wild Bill Douglas’ modest proposal. Jamison Koehler puts it succinctly:

Brady v. Maryland, 373 U.S. 83 (1963), is a rule of fairness and minimum prosecutorial obligation, not a discovery rule. It requires the production of information, not specific documents. It covers any information that tends to cast doubt on the defendant’s guilt with respect to any essential element of any charged count; any physical evidence, testing or reports tending to make guilt less likely. It encompasses problems with making an ID and any information that tends to support an affirmative defense or that tends to case doubt on the admissibility of the government’s evidence.  Inconsistent statements by government witnesses are covered.  So is any information that relates to the potential health or physical impairment of any witness. The government must disclose any information relating to potential witness bias, including benefits received by a witness in exchange for his cooperation with the government.  It must also disclose any information related to a witness’ dishonesty or criminality and any instances of misconduct or abuse of authority by a police officer.

Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.

The suit alleges that far from assuring compliance with constitutional obligations, the Los Angeles County District Attorney’s Office policy, if followed, violates those obligations. In fact, it purports to require that line prosecutors violate the constitution.

Impeachment Evidence: The policy regulates the DA’s “Brady Alert” system, a database that collects information impeaching the credibility of law enforcement officers and government witnesses. The DA’s Office touts this system as assuring discovery compliance, but the lawsuit — and the attached Special Directive 10-06 — suggests that in fact it is a systematic justification for withholding discoverable impeachment evidence (that is, for you non-lawyers, evidence that can be used to question the credibility of a witness). For instance, as the suit alleges and the Special Directive shows, the DA’s Office only includes information about witness credibility if it believes that information is supported by “clear and convincing evidence” — a higher standard somewhere between preponderance of the evidence and beyond a reasonable doubt. But that’s not the law — a prosecutor doesn’t get to withhold impeachment evidence because he or she doesn’t credit it.

Materiality: The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial. But that’s not the standard for what prosecutors are obligated to turn over — it’s the appellate standard for determining when a discovery violation is so prejudicial as to require reversal of a conviction. Using that as the standard for what prosecutors should turn over is the equivalent of saying “you may withhold evidence if you can get away with it.”

At his family law marketing blog, Divorce Discourse,  Lee Rosen one-ups me on the digital snark-o-meter in advice for young lawyers starting their law practice.

She calls me and wants to talk about getting set up.

“Do you have any clients?” I ask.

“Not yet,” she says, “But I’ve got a plan, so I want to talk to you about making sure I’ve got everything covered when I get started,” she continues.

I explain that she needs one thing and only one thing right now. She asks what I mean.

“You need a phone,” I tell her.

She’s not satisfied. She wants to talk about office space, malpractice insurance, a laptop, and a website.

“Do you have a phone now?” I ask.

“Yes.”

“Then you’re good to go,” I tell her (I should just hang up at this point, but I’m a glutton for punishment).

Way back when, before there were non-practicing lawyers desperate to cash-in on the young lawyers who want to start their own practice by offering their consulting and marketing services with a lengthy list of all the critical things a lawyer absolutely needed, lawyers started practices.  They just did.

Lee is trying to make a point, even if some might prefer to quibble about details. He’s not saying that it’s a bad thing to have an office, a laptop, a website and especially malpractice insurance. He’s saying that these things are not prerequisites.

What Lee is saying is that what makes a practice is clients. Get clients and everything else follows. Why? Because it’s the clients who pay you legal fees, and it’s legal fees that pay for the office, a laptop, a website and especially malpractice insurance. 

But you do need a phone.  Without a phone, the client cannot contact you. If the client cannot contact you, you cannot make an appointment to meet whereat you can impress the client with your legal acumen, giving rise to the client’s retaining you with the payment of legal fees.  And as already known, these fees can be used for the purchase, lease or other acquisition of all the cool accoutrements of a solo practice.

This isn’t rocket science, though it’s been made to seem that way.  There are pre-printed lists of what a young lawyer needs to acquire.  There are hot debates over the amount of money a lawyer needs to have in the bank before starting up.  There is the critical issue of the logo.

If the issue were posed as a philosophical debate, it might be best put this way: does a lawyer with an office, a website and a logo, but no clients, have a law practice?  Does a lawyer with a client but not office, website or logo have a law practice?  The answer is self-evident.

Lee’s bigger point, however, isn’t philosophical at all.  It’s in counterpoise to the many voices informing lawyers that they cannot start a practice without having checked off the majority of the items on their laundry list.  Each item on the list costs money.  And as one wanders the aisles of Best Buy looking at the latest technological wonder without which an office cannot exist, the inchoate solo practitioner becomes increasingly poorer for the effort.

But, what about…

Office space? She can rent or borrow a conference room for her meetings.

Malpractice insurance? Until you have a client, you don’t need it. Once you’ve got a client, then take some of that money and buy it—it’s easy—they have really nice salespeople (I bet you can get them to buy you lunch). Plus, if you don’t have any assets, buying insurance might not even make sense yet.

Laptop? Get a client first. You can pick up a laptop at Best Buy in 20 minutes. Plus, you already have a laptop, right?

Website? Go get a client and stop worrying about the website. If you insist on building one, then do it with SquareSpace  while you’re watching TV one night.

A paralegal? You’re kidding, right?

A copier? You’ll find these located at FedEx stores and elsewhere. They’re just sitting there waiting for you.

Practice management system? What practice? Get a few dozen clients, and then you’ll have something to manage.

I could go on and on explaining why you don’t need to worry about all this stuff. Bottom line: you don’t need to worry about all this stuff.

While a very real issue was raised about the need for malpractice insurance by  Bruce Godfrey in the comments, as it’s not only for the benefit of the lawyer but for the security of the client, the point remains sound.  It’s a point that others, myself included, have tried to make before. You may want all the stuff on the laundry list.

You may feel more “real” if you have most of it.  But you don’t need it.  And when you aren’t generating revenue, and don’t have money to burn, focus on need rather than want, or desire, or cool, or any of the other factors that have somehow replaced reason in the minds of young lawyers.

Thirty years later, things will change to some extent, but in another way, they never change.  If anyone, one’s grasp of the critical distinction between want and need becomes more acute.  The financial demands increase beyond your wildest imagination, and every dollar thrown in the toilet on unnecessary stuff is a dollar that isn’t available for things that matter.  Sure, you reach a point of comfort where you have the luxury of buying whatever you want, but the culture of frugality lasts a lifetime, and will always serve you well.

There is, however, one crucial difference between Lee Rosen’s view and mine. HIs post shows an image of an iPhone.  While you may need a phone, any type will do.

Love guns or hate them, the issue is settled that a person has a fundamental right to possess a gun within his home for self-defense. And that right of self-defense means that when there’s a knock on a door in the middle of the night in a neighborhood that isn’t the safest in town, 26-year-old Andrew Lee Scott was fully within his right to answer the door with gun in hand.

And he lost his life for the exercise of a fundamental right.

From WESH.com in Orlando :

In  an op-ed in the paper which shall not be named (but continues to bill me three months after I canceled my subscription), Dan Markel and Eric Miller noted the imposition of punitive conditions as part of pre-trial release.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the  Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

Of course, they also note that pre-trial release conditions aren’t the sort of things defense lawyers tend to make a big stink about.

Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood.

In the first place, defendants are usually sufficiently thrilled to be free from custody as to be unwilling to do anything that risks alienating the judge or causing a change of heart. If it means they can’t toss back a cold one, it beats the hell out of the next 18 months in the alternative general population.

Moreover, few defendants with retained lawyers can afford to have them fight phantom battles over transient issues. And indigent defenders struggle for funds to provide basic defense, no less fight for relative trifles. And then there’s judicial paternalism, where kids who grow up to be lawyers who lick enough envelopes at the party HQ to become judges, think they’re imbued with such magnificent moral bearings as to dictate righteousness to the huddled masses.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

But the point, that the imposition of conditions that are either punitive, particularly when judges get imaginative and decide to ram their personal vision of morality or behavior modification down the throats of presumptively innocent defendants, or utterly without justification based on the facts of the case or concerns for safety of the community, is pervasive, is well taken. 

Indeed, under the broad discretionary provisions of the  Bail Reform Act of 1984, courts slough off the responsibility of determining the propriety of individual conditions to the pre-trial services officer, who then requires the released defendant to adhere to “standard conditions” that bear no legitimate connection to anything under the sun. For example, drug testing for defendants who are not accused of crimes relating to drugs and have absolutely nothing in their background to suggest drug use is common. It’s not that the defendant’s personal circumstances suggest any need for it, but it’s just what they do.  And, for obvious reasons, no rational defendant would risk a violation of pre-trial release by refusing, especially since they have no fear of passing with flying colors.

Naturally, Dan Markel caught flack for his position.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can’t speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren’t saying such restrictions on alcohol or curfew or drug treatment were never reasonably imposed. Rather we were concerned that they sometimes aren’t related to the crimes or the offenders but were still imposed.

I get the sense that Dan gets emails from different judges than I do.  Whether such conditions are truly “an important component” or fall under the banal “better safe than sorry” approach to pre-trial release, despite the statutory mandate that conditions be the least onerous possible within the framework of release, is impossible to tell without details (from both sides, by the way).  That said, it ignores the fact that such conditions are routine, and nobody makes a peep.

It’s the rare case when anyone bothers to give much thought to the conditions imposed for release. Usually, it’s the outlier case, where a defendant is ordered to take his wife to Red Lobster, that gives rise to a few laughs and some commentary. The other situation is the high profile case, such as George Zimmerman, raised by Dan in his op-ed.

Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This drew a  fascinating reaction from Hofstra lawprof Monroe Freeman, who peremptorily dismissed the motion by Zimmerman’s lawyer, Mark O’Mara, for recusal based on Judge Kenneth Lester’s “gratuitous” and “disparaging” remarks toward Zimmerman in deciding release.

The motion should be denied.  As the Supreme Court held in Liteky, the judge is supposed to form opinions based on the proceedings before him.

The  Liteky decision was a true gem, holding that neither personal bias nor prejudice gives rise to recusal unless it’s “wrongful or inappropriate.”  And this is the sort of blind judicial deference that gives judges the sense of omnipotence to require a defendant to write book reports as a condition of release.  So shut up, pee in the cup and be happy you’re not in the hole until we get around to trying you.

Rarely do three words capture the problem so clearly, and Andrew Cohen nails it with the phrase “ineffective assistance squared” from his Atlantic Monthly post.  And as a result, Texas is trying to put Yokamon Hearn to death this Wednesday.

The problem isn’t that Hearn is an innocent man. He’s not. The problem is that it’s defendants like Hearn who are placed squarely in the position of testing whether the legitimacy of the machine of death is running the way courts say it must if a constitutional death penalty can exist.  And while the machine is moving along as fast as it can for Yokamon Hearn, courtesy of the mechanics at the 5th Circuit Court of Appeals who manage to keep the gears grinding despite having refused to read the instruction manual, it’s clear that the machine is horribly broken.

At the penalty stage of Hearn’s trial, the prosecution did a bang up job of showing everything bad about the man they could dredge up.  The defense, on the other hand, couldn’t be bothered.

Yokamon’s jury learned about violence, more violence, a history of burglaries, and, in sharp contrast, exceedingly superficial and inaccurate mitigation during his sentencing proceedings. Yokamon’s lawyers were the reason the jury learned almost nothing about his life. They failed to conduct a minimally adequate investigation into Yokamon’s life history when, had they done so, they would have uncovered a wealth of compelling mitigating evidence, including:

1) evidence that Yokamon’s parents were severely impaired throughout his life;

2) that he was the victim of neglect at the hands of his parents;

3) that relatives who were portrayed at trial as unflinchingly committed and capable of caring for Yokamon were not so;

4) that he had a history of mental health problems, including suicidal ideations, as a young child and that his emotional problems stemmed from his parents’ inability to parent him;

5) that he was exposed to risk factors commonly associated with brain damage;

6) that Yokamon, in fact, suffered from brain damage;

7) that he exhibited severe impairments in day-to-day functioning consistent with brain dysfunction. [Numbers added for reference]

Maybe they were sleepy. Maybe they didn’t care. Maybe they were just lazy or sucked. Regardless, a life was on the line, and the representation was so fundamentally deficient as to be a farce. Had the defense done its job and present evidence in mitigation, there was certainly strong reason to believe that at least one juror would have concluded that Hearn didn’t deserve the death penalty.

Of course, the remedy for such outrageously deficient representation at the trial stage is competent representation in post-trial proceedings.  And that’s where the “ineffective assistance squared” comes in. After all, if the defendant was provided an incompetent defense at trial, why should his defense counsel be any less incompetent later.  And so Hearn got double burned.

As alarms go off everywhere but Texas, the Supreme Court’s ruling in Martinez v. Ryan last March likely comes to mind.  “Ha,” you exclaim. “But that’s covered,” since the Supremes held that capital defendants like Hearn shouldn’t be denied substantive review of ineffective assistance claims because of, well, ineffective assistance. Using that rarest of traits in Washington, logic, Justice Kennedy’s opinion expanded the right of habeas review  so that the defendant who would have otherwise lost his opportunity for review of ineffective assistance is not procedurally barred because of ineffective assistance. Scalia, naturally, dissented, because somebody has to take one for the team.

Unfortunately, the jurisdiction of the United States Supreme Court ends right about the Texas border, where the 5th Circuit has decided that Martinez may be fine for the United States, but has no place in the Republic of Texas.

What the 5th Circuit did, in Ibarra v. Thaler, was to interpret Martinez so narrowly as to make its holding inapplicable in virtually any other case. Even though the justices in Washington had created an exception to “protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel,” the 5th Circuit said that Texas’ appellate procedures vitiated the need for such an exception. Take a few minutes to try to read the Ibarra decision. Look at how hard the 5th Circuit’s majority had to twist to avoid the Supreme Court’s precedent — and to avoid giving Hearn the relief to which he is entitled.

No doubt the fine folks who despise activist judges will be marching on the circuit any day now with torches and pitchforks in hand.  Any day now, as long as it’s after this Wednesday, when Hearn is scheduled to be executed.  Of course, Texas Governor Rick Perry can fix the problem, since he so dearly wants to clean up the mess in Texas before putting its defendants to death. It’s a shame he keeps figuring out there’s a problem too late.

Even ardent supporters of the death penalty, despite its cost, or the fact that it fails to serve as a deterrent, are concerned that it be done properly. Usually, that means that people, like Cameron Todd Willingham, aren’t mistakenly put to death in a rush to beat revelations of innocence. But it’s the guilty, like Yokamon Hearn, whose cases test the ability to determine whether the machine works the way it’s supposed. to. That includes effective assistance of counsel at each stage, and courts that don’t shut its doors to make sure they never hear about the machine breaking down.

Wednesday.  After that, the discussion is purely academic, and another dead body will be buried in the killing fields of Texas justice.

Update:  The Fifth Circuit unanimously /files/66432-58232/certpetition.pdf”>done and served. Response is due 9 a.m.  The TL:dr argument: Ibarra Got It Wrong.

Update 3: The United States Supreme Court denied the stay and petition for a writ of certiorari on Wednesday, July 18, 2012. Yokamon Hearn will die.

H/T Kamikaze Kase