Slackoisie Want It, And Want It Now

Those disinclined to cast stones argue that the issues surrounding the Slackoisie in the workplace, or the courtroom, fall back on the old truism that every generation thinks the ones after it aren’t as good as they are.  But as Dan Hull and Stephanie West Allen discuss, the Slackoisie are different, and there’s a reason for it.


[T]ake a look at Stephanie West Allen’s post at her Idealawg entitled. “Are Gen Y kids harder to teach? Are Gen Y employees harder to manage?“. She highlights one part of the puzzle being discussed by John Dunford, a prominent British educator, who has suggested that English children currently in secondary school are “harder to teach” because they are so oriented to the Internet and television that success in school “cannot come fast enough”. In short, they require instant gratification.

The internet has changed everything, and no prior generation has been subject to anything like it.  From Dunford’s work:



Children are increasingly reluctant to put real effort into their studies because they expect success to be instant.

The attitude has apparently spread to A-level classes, where few teenagers read books other than those produced for the syllabus which tell them exactly what they need to know–and nothing more.

Research shows that young people spend an average of 1.7 hours per day online, 1.5 hours on games consoles and 2.7 hours watching TV, Dr Dunford added.

‘They live in a celebrity-dominated society where success appears to come instantly and without any real effort,’ he said. ‘It is difficult for teachers to compete. Success in learning just doesn’t come fast enough.’

But don’t we keep hearing that the Millennials simply care less about money, more about people?  They’re just not like those nasty, mercenary boomers, who will work themselves to death over the almighty dollar.  Not according to San Diego State University Psychology Professor Jean M. Twenge, whose study finds otherwise.  Twenge found that what Gen Y wants is easily summed up as more money for less work.  Put another way, lazy and greedy.



Striking differences emerged for valuing leisure. GenY was much more likely than previous generations to say they wanted a job with an easy pace and lots of vacation time, and less likely to want to work overtime. They also saw work as less central to their lives and were more likely to agree that “work is just making a living.” At the same time, they placed more importance on salary and status. In other words, the younger generation wants to have their cake (big salaries) and eat it too (work-life balance).

Press accounts often mention that GenY wants to help others and have a positive impact on society, but the study found no differences in preferences for jobs that helped others or were worthwhile to society — GenX’ers and Boomers embraced such values just as much when they were young. GenY supposedly want interesting and fulfilling jobs where they can make friends, but analyses showed that GenY actually values these things less than previous generations.
What’s that sound?  It’s teacups breaking.

So what exactly does the Slackoisie hope to accomplish when they take the reins?  Will the cash keep flowing as they sit there during their three hours of really hard work, two to three times a week, whining about how it’s not their fault? 

Unless your admiration for Neville Chamberlain knows no bounds, maybe you should rethink the afternoon ice cream parties as your primary HR recruitment and retention policy?  Enough of trying desperately to find ways to rationalize or enable the Slackoisie.  There is no substitute for hard work, and being a lawyer, even a half decent lawyer (if that’s all you aspire to be), is hard work.

A Name In Search Of A Law

Chelsea’s Law.  The law born of the horrible rape and murder of teenager, Chelsea King.  Surely, after what happened to her, Chelsea deserves a law named after her.  The only problem is that no one has figured out what that law should be.  But no matter, at least there’s a name, and that’s more than half the battle.

From NBC San Diego :



King’s parents, Brent and Kelly, are partnering with the state Assemblyman who represents them in Sacramento, Nathan Fletcher (R-75th District), who is already putting heat on corrections and parole administrators. He’s looking at a long menu of ideas for new legislation.

“Everything is on the table: longer prison sentences, a better system of probation, a strengthened one-strike provision, changes in our parole system, online reporting, GPS monitoring,” Fletcher told journalists at a news conference Tuesday in his Mira Mesa office.  “We will look at every single aspect.”
I’ve often decried ill-conceived and rushed laws devised to honor and remedy bizarre crimes, whether for their overbreadth, their failure to address the problem at hand or their failure to consider unintended consequences.  Often, as here, there is no reason for a law at all, but merely to have those who already have jobs to do, such as probation, do them better. 

Of course, the additional funding for more probation officers and great oversight will be spent on establishing the mechanics of whatever new law comes of this.  Or maybe it will just be used an excuse to get some harsher penalty on the books and pay to keep ten thousand people in jail because of one sick criminal. 

Maybe Assemblyman Nathan Fletcher really believes that this is a gap that must be filled, even if he has no idea what that gap is or what filler to pick.  But begging for a law to go with the name is unseemly.  As a lawmaker, should he have some idea of why he’s promoting a solution, or should he publicly ask for ideas?  Or does he not realize that there is no law that can stop every crime, every criminal, bent on harm, no matter how harsh, how severe we make the laws? 

It’s not that I can blame Chelsea King’s parents for wanting, no needing, to do something.  But it’s those who will use their grief, not to mention the horror they suffered, to gain some political currency.  Somewhere down the line, Chelsea King will be a pawn in a sick game to use this tragedy for ulterior purposes.  Somewhere down the line, the unintended will suffer for it.

I would like to be in a position to state that Chelsea’s Law is bad, but I can’t.  There is no law, no goal, no purpose.  There’s just a name of a dead child waiting to be used.  What a waste it would be if we had a tragedy like this and couldn’t use it.

H/T Kevin Forrester

Readers Mailbag, NYSACDL Edition

I’ve taken the NYSACDL to task lately (actually, for quite a while now), but this latest issue has generated a fair number of emails.  While the vast majority are from people I either know or who appreciate my shining some light on things that members would otherwise learn, I few have questioned both my information and motivation.


Greenfield:

Why do you hate the NYSACDL? If you think you could do a better job, why not work from the inside to improve it rather than lob bombs at those who are doing the hard work. 

First, I don’t hate the association.  I am amazingly disappointed in what’s become of the association, but my criticism of what is happening always includes my view of what I think should be happening. In other words, it’s a message, of what is going wrong as well as what the right thing to do would be.  That it’s taken as hatred by some shows either serious self-esteem issues (an endemic problem within the Board, by the way) or abject defensiveness. 

I worked long and hard from the inside of the association, as chair of the Amicus Committee (when there was a committee), director and vice president.  But the nature of the association changed over time, in some ways for the better but in more important ways for the worse.  When it reached the point that I, in good conscience, could not add my name to the actions of the board, I resigned. That’s what honorable people do when they find themselves unable to support something.

The NYSACDL, or some facsimile, is vitally necessary to the welfare of the private criminal defense bar, if it understood its mission and if its stewards had the courage of their convictions.  At the moment, they don’t even have convictions (no pun intended).  The association has been wandering around lost for years, and most of the board doesn’t even realize it.  They are either too busy patting themselves on the back, trying to figure out how they can further their personal ambition, to wonder why the association exists, or so moved by glorious platitudes that they refuse to recognize why it exists.

Should the NYSACDL somehow right itself, recognize its mission and serve its members, I will support the association vigorously.  Until then, I will say what’s wrong.  I can do that.  If the officers weren’t so afraid that I will spill their secrets and ruin their dreams of glory, they might call me the loyal opposition.  Instead, they just snipe at me behind my back.  I don’t mind. It’s what I expect of them.


Greenfield:

Regardless of who’s right about the NYSACDL, your attacks on the association are hurtful and mean-spirited.  You can disagree but still maintain a level of collegiality and decorum.

An interesting point.  I wish I felt that I could, but I don’t for a number of reasons.  First, I’ve tried to make many of the general points that are included in my posts in the past, but unless they were spelled out in excruciatingly clear, brutal language, they went right over people’s heads.  Nuance never played well.  Not only did they not get it, but they easily shrugged it off when it wasn’t strong enough to compel attention.  In other words, it’s all fine to maintain decorum provided you don’t mind it being easily ignored. 

As for collegiality, this has been one of the factors that has led to the downfall of the NYSACDL as a viable force for the criminal defense bar.  Everybody’s scared to death of offending anyone else, and even the slightest hint of wrong raised whines of hurt feelings, followed by denials, apologies, sobbing and acts of contrition.  Is it cowardice?  In part, but it’s also the desire to be perceived as good, nice and friendly by others in the bar, whether in the hopes of a referral or just the general desire to be liked.  It’s precluded, however, any real discussion of problems and any attempt to arrive at real answers.

As I was informed following the latest resolution, it was a victory of consensus.  Consensus.  That’s what the association believes is more important than right and wrong.  Making everybody happy, or more precisely, offending no one since very few end up happy, is the goal.  Whether they achieved that goal with a worthless resolution I don’t know, but they passed up, yet again, a chance to do the right thing by choosing consensus.  Mind you, appeasing 10% of the membership at the expense of 90% isn’t really consensus.

This wasn’t the NYSACDL of old.  It had guts.  The directors and officers fought like cats and dogs, and fought hard. Right and wrong mattered.  People were offended all the time, but they were tough enough to take it.  And the end result was that the association stood up for the private criminal defense bar, no apologies necessary. 

So if you want collegiality, and are prepared to give away the purpose of the association to achieve it, then you will find this board to your liking.  As for me, I’m happy to decry the blue wall of silence, and equally happy to call out the association when its hiding behind the pinstripe wall of silence.  When did criminal defense lawyers become so afraid, so fragile, that they can’t stand up to a challenge?  I’m terribly sorry that I’ve caused so many hard feelings, particularly because I like many of the individuals involved, but I refuse to be part of the teacup brigade or another grocery clerk for the association.  And if they hate me for not being collegial, so be it.  I can take the heat.  What I can’t take is the rampant fear of criticism


Greenfield,

Is it that bad?  Has the NYSACDL gone that far astray?  Can it survive?

Yes, yes and I don’t know.  Put aside the rhetoric and look at the nuts and bolts.  It runs some CLEs, but so do plenty of others. Some of the CLEs are decent, some pretty awful.  It does some amicus work, but mostly by riding the coattail of the NACDL.  It certainly isn’t leading the pack within New York State.  It throws a dinner to honor a prosecutor that loses money (though how much is unknown as they aren’t revealing numbers this year).  And it has a listserv that a very small proportion of the members use, and half of the users do so for self-promotion.  If this what you signed up for?  It this all you want out of an assocation?  Are excuses almost as good as accomplishments?

Whether it can survive is a financial matter. It’s on the balls of its heels financially, the Morgy dinner have been a disaster.  And yet, the board and officers learned nothing from the fact that members stayed away in droves.  The list of reasons why it might not survive is long, but there’s only one thing that will give it life, serving the nuts and bolts needs of the members. Instead, they think only of gaining and keeping members as a means of collecting money, not because members are the reason why there is an association in the first place.  That attitude is, and should be, the kiss of death.

And by the way,  if any officer or board member wants to find out what I’m up to, all they have to do is ask.  Instead, they send emails to each other whining about how mean I am to them and proving, yet again, that they don’t have the guts to stand up to the slightest criticism.  What a bunch of cowards.

The Best Job In The Courthouse Is Outside

Did you really think that it was all about selling hot dogs boiled in water from the men’s room?  Come on.  As a defendant’s family walks through the courthouse doors, wondering where to turn for trusted advice, who can be trusted more than the guy selling frankfurters?

The Houston Chron takes this dirty little secret public



Defendants heading to Houston’s criminal courthouse every morning can stop at Mark Lynch’s hot dog cart for a sandwich, cold drink, maybe even a shot at deferred adjudication.

Snacks and drinks may pay the rent, but for the past five years, Lynch has had another steady stream of revenue — signs advertising lawyers who “are in the courthouse this morning.”

“It’s a prime location,” Lynch said of the food cart-cum-billboard, a courthouse fixture since 1997. At capacity, the cart can support six signs at $350 to $375 a month. It rarely is full.
At $350 a month, that’s a lot of hot dogs.  And if you think this is just a Houston phenomenon, do you notice how many hot dog carts are around 100 Centre Street in Manhattan?  Is it because criminal defendants love hot dogs more than anyone else?

Of course, putting a sign up on the umbrella stand has its down side as well.  It’s as certain a way of letting the rest of your fellow lawyers know how desperate you are for business, and how low you’ll go to get it.  It’s, well, embarrassing.  Do you really want to broadcast to the world that you’re the sort of lawyer who does misdemeanors for $99?  But for those who do, and are unashamed of doing anything and everything to make a quick buck, it’s definitely a high exposure location.

Of course, there’s one point that the Chron missed in its article, an even dirtier little detail than paying to put your name on the hot dog cart.  With a bunch of signs competing for defendants, how is a defendant to tell which lawyer, amongst the various bottom feeders, he should select?  For this, they turn to the only person they can trust at the courthouse, the hot dog vendor.

Aha.  That’s where the big bucks come into play.  For an extra $50 per case, the hot dog guy whispers the secret answer into the ears of the hungry defendant.  It’s a dog eat dog business, you know.

For those of you who are busy spending big bucks trying to spam the internets to get your website on the first page of Google, or hiring newly minted experts to teach you how to twit your way to wealth and success, maybe you would do better to think with your stomach.  Have you ever wondered why the hot dog guys are always smiling?

Apologia For An Imperfect Sentence

Judge H. Lee Sarokin spent 17 years on the bench in the District of New Jersey and 3rd Circuit.  He then retired, moved to California and wrote a post at HuffPo.  Whenever a judge of his stature writes, it’s worth a read to understand better what’s happening in the mind behind the robe, and Judge Sarokin’s post offers much, and little.

The post appears to be motivated by the criticism of the courts for allowing John Gardner, accused of the rape and murder of Chelsea King, to go free.  Why, comes the followers of John Walsh, do they let these animals out?  After extolling the virtues of the presentence report provided federal judges, Judge Sarokin explains:


How does this happen? My experience has been solely in the federal courts, where few crimes involve acts of violence like murder and rape. But I suspect that most of the state courts operate in the same or similar fashion. First, let me assure you that it is nothing like the TV judges, who rap their gavel, impose sentence or render a decision in a flash and then say: “Next case.”

But sentencing is far from a science. One of the reasons sentencing guidelines were enacted was to reduce as much a possible the discrepancy based solely upon the predisposition of the sentencing judge — the tough sentencer v. the lenient sentencer. A sentence should not depend on which courtroom a defendant walks into. But the biography, the sentencing guidelines, the penalty standards based upon the crime committed, do not spew out a uniform sentence. A judge on sentencing day hears the arguments of counsel for and against incarceration and frequently statements of remorse from the defendant; sees the anger and hatred from the victim and/or the victim’s family; observes the parents, wife and children (many brought to the courtroom as infants) of the defendant, reads of the public’s cries for vengeance and punishment and the personal letters begging for leniency and attesting to the good character and good works of the defendant. We also think about rehabilitation and deterrence, although I understand that rehabilitation of sex offenders is unlikely, and we have no way of knowing whether the risk of punishment has any effect.

What’s remarkable about Judge Sarokin’s description is that he confirms our worst fears, that after a while, it’s all routine.  In a paragraph, he’s ably outlined the structure of any sentence, every sentence, as if it’s mere Kabuki theater and we’re merely playing our roles in the production.  Yet my sense is that this isn’t Judge Sarokin’s intention, to take what is likely the most significant moment in a person’s life, the moment of sentence, and turn it into a banal exercise.

But what’s missing from the description is what distinguishes one human being from another, one sentence from another.  Rather than offer insight, Judge Sarokin offers his apology.


We are not God, but we play God in these moments. The understandable public reaction in cases such as Chelsea King is to execute, forever incarcerate or medically disable persons who are likely to re-commit such terrible acts. Balancing the need to protect the public within the limits imposed by the law and the Constitution is an awesome task for a judge. We hope we get it right and avoid the horrific tragedy of families like those of Chelsea King, but sometimes we fail in that undertaking despite our best efforts or because of limits imposed by the law.
It was the peculiar wording of this paragraph that caught my eyes, and caused some concern.  On the one hand, there is “the need to protect the public.”  On the other, “the limited imposed by law and the Constitution.”  Is Judge Sarokin saying that they would do a much better job if it wasn’t for their hands being tied by law?  Is protecting the public the predominant interest vindicated at sentence?  Clearly, he makes no mention of any other factors set forth in 18 USC 3553(a).  Does that mean that they are subsumed in his “limits of the law?” 

What isn’t said here is how these “not God” creatures perform this “awesome task.”  It remains every bit as mysterious after reading Judge Sarokin’s post as before.  While noting “we hope we get it right” (us too) and “avoid the horrific tragedy of families like Chelsea King,” he neglects to mention the horrific tragedy of the families of the innocent, or those sentenced to draconian punishments because tough on crime is the tastiest flavor in Washington.  While the post is clearly driven by the questions raised in the Chelsea King murder, and ignores the detail that John Gardner has yet to be convicted of anything, it leaves the impression that the only concern on a federal judge’s mind is how to put someone away for as long as the “limits of the law” will allow.

From the perspective of anyone involves in the criminal justice system, Judge Sarokin’s position, that’s not easy to determine an appropriate sentence, is hardly news.  What is news is the depth of concern demonstrated when a sentenced prison re-offends, particularly when it’s a sex offender (who the judge specifically notes is unlikely to be rehabilitated).  No one can argue that this is, and should be, a concern.  But if that’s the only concern, and the only countervailing force is the limits of the law, Judge Sarokin reveals some very big problems in the mindset of the federal sentencing judge.

It’s Not How You Kill, But Who You Kill

While this isn’t going to shock anybody, the likelihood of being sentenced to death has been found to correlate with the status of the victim, according to new research by Scott Phillips, associate professor of sociology and criminology at University of Denver.  Via Medical News Today :

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

Naturally, the disparity in the application of the death penalty is further exacerbated by the race and status of the defendant as well, so that a poor single black accused of killing a married white with children and a job doesn’t stand a chance.

And where does a sociologist go to conduct such a study?  Well, science, like everyone else, employees the Willie Sutton method. They do to where the killings are:



“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999.
The capital of capital punishment.  That’s the sort of thing one puts on the signs leading to town, with one of those revolving “population” wheels so that it can be accurate 24/7.  Every locale needs something to generate local pride, and it is a catchy phrase.

The validity of the study, unfortunately, is suspect for the same reason that Harris County made the study viable.  It’s Harris County.  The study couldn’t have been conducted in Rochester or Boston, Atlanta or Santa Clara.  They don’t execute enough.  The data pool is way to shallow to make it worth the bus ticket to get there. 

But Harris County is another matter altogether.  In a mere 7 years, there were 504 death penalty cases.  Not exactly proof of general deterrence.  The problem is that as soon as you find a place with that many murders, that many capital cases, that many defendants being charged, convicted and sentenced to death, as compared with the rest of the United States, you’ve already got an anomaly.  There’s a reason Harris County is the capital of capital punishment, and it’s not because it’s working really well for them.

Oscar Wilde defined cynic as a person who knows the price of everything and the value of nothing.  In light of this study, that seems to be an awfully good description of the people of Harris County who think execution is a fine solution.

A while back, Mark Bennett, who happens to be a criminal defense lawyer in Harris County, explained to me, New York hick that I am, how the local temperament worked.  Some people just “needed killin’.”  That cuts both ways, applying both to the defendant who is charged with murder as well as the person who happened to be on the business end of a gun.  It appears that there’s an invisible scale, a big one, big enough to put a man on either side.  If the defendant is of higher status than the victim, a homeowner let’s say, while the victim is some nasty kid walking across his lawn, the balance tips in favor of the homeowner and should he pull out his shotgun and blow the kid’s head off, the homeowner wins.  The kid needed killin’.

No reason to go through the various permutations of relative status.  You get the point.  The only thing clear is that in Harris County, they can place a price on every head, but can’t grasp the idea that every human life has value.  It appears that Professor Phillips wasted his time studying Harris County, the capital of capital punishment.  He could have gotten the same result by reading Oscar Wilde.

From The Mouths of Kittens

Some readers may make the mistake of leaving a post up on their screen so that their kids may see it.  Bad move.  If they think too much about the law, they may never get over the trauma.  That said, this was the image this morning at Above the Law, a far better blog for young readers.  And it’s something your kids will not only enjoy, but may help them when the day comes…

kitty i can has lawyer.jpg
It’s never too early to teach your children well.

Dying To Get Out of Buffalo

What’s wrong with the Erie County Holding Center that people would rather kill themselves than remain there?  Since December, there have been 5 suicide attempts, three of which were successful.  That’s an extraordinary number, both for the number of people trying to commit suicide as well as the correctional facility’s inability to stop them.

The problem is that no one can say what the cause of this is, because the sheriff won’t let inspectors into the facility.  He tells the Buffalo News that he welcomes them, but then bars them from entry.  The inspectors were forced to get an emergency order from federal court to let them inside the facility. 

At the bottom of this appears to be the County Attorney, Cheryl Green, who is under fire all around:



Republicans and Democrats in the Legislature approved a statement, 11-4, imploring the sheriff, County Executive Chris Collins and County Attorney Cheryl A. Green to, among other things, open the jails to the suicide-prevention expert. So did Comptroller Mark C. Poloncarz, who repeated his call for Green to resign, saying she has given poor advice in the matter.

“It is time for the confrontational stance of this administration to end,” Poloncarz said, “and for the county to allow the federal and state governments complete and unfettered access to the jails to help the county address the issues and problems at each facility.”

What does Green think about the problems at the Holding Center?



The allegations have been vehemently denied by County Executive Chris Collins, Sheriff Timothy B. Howard and County Attorney Cheryl A. Green. Collins last October contended that the federal lawsuit is based on “hearsay and fictionalized events passed off as reality.”

Green said the federal government is trying to force the county to provide jail prisoners with “the amenities, conveniences and services of a good hotel.”

Maybe those really aren’t dead bodies, just fictionalized events passed off as suicides.

When our hinterlands correspondent, Kathleen Casey, first told me about the problems at the Holding Center, my first reaction was to pass it off as a joke; they’d rather be dead than in Buffalo.  But as the bodies began stacking up, this was clearly no laughing matter.

Green’s reaction, reminiscent of the old welfare queen argument against providing food to the starving, is designed to play the locals at a time when cupboards are bare and people are hurting.  The old lie that life in jails is better than that enjoyed by law-abiding, hard-working folk, got a lot of mileage when it came time to making sure that people held against their will, convicted of nothing, managed to live long enough to make it to court. 

The idea that state inspectors are unable to see what’s happening inside this facility is shocking.  That they would require a federal court order is incredible.  And what if the sheriff refuses to honor the order.  His people have guns.  The state inspectors don’t.  It clearly appears that something is horribly wrong in Erie County, and has been for quite a while.  It is unfathomable that they won’t let inspectors in.  It’s merely offensive that the County Attorney describes efforts to keep their inmates alive as “the amenities . . . of a good hotel.”  Maybe Green needs to stay at better hotels if she finds suicides that commonplace.

Defending The Skinner Conviction

When I received an email from the Skeptical Juror Project, imploring me to get behind the efforts to exonerate Hank Skinner.  The email informed me that he was factually innocent, but Texas was going to kill him anyway.  I knew nothing about Skinner, having somehow missed Radley Balko’s post at Reason about him.

The email told a saga that’s both hard to believe and easy to accept.  It told the story in detail:


Announcing it would do “whatever it took” to “shut up” those who doubted Mr. Skinner’s guilt, the State of Texas submitted fourteen pieces of evidence for post-conviction DNA testing. None on the results inculpated Mr. Skinner. To the contrary, the results either excluded him or were deemed “inconclusive.”

Notably, a hair found clutched in the victim’s hand, a hair declared by the district attorney prior to testing to have been grasped from the murderer as the victim struggled for her life, excluded Hank Skinner as the donor.

Without shame, the State quickly secreted other test results, particularly those for bloody and broken fingernail clippings and those for a rape kit. The fingernail clippings are especially significant because Hank Skinner had no fingernail scratches on his body. Nonetheless, the State refuses to reveal those results, the status of the testing, or the physical location of the evidence. Indeed, the State refuses to acknowledge even the existence of the evidence which, prior to testing, was well-kept and allegedly probative. The State’s behavior is particularly egregious since it announced with confidence beforehand that the testing would “put a few more nails in that man’s coffin.”

And finally, the State refuses to release for testing additional probative DNA evidence, though David Protess of the Medill Innocence Project has offered for more than a decade to fund it. Items which remain untested include a bloody knife and a bloody axe handle (the likely murder weapons), a bloody dish towel (found in a trash bag with a handprint from an unidentified third party), and a foreign windbreaker (contaminated with hairs, blood, and sweat.)

As Radley notes, the system takes pride in its work, and fights hard to make sure a conviction stays that way.  After all, it would present a terrible burden if we were forced to second guess every conviction, deal with the open issue, accommodate the demands for testing.  If we keep finding out the innocent are being convicted, people will lose faith in the system.  That would be a travesty, as faith in the system is paramount.  Without faith, we would feel awfully bad about executing people.  Some of us, at least.

What stands about Skinner’s case is the fact that it falls into that very narrow category of cases where DNA exists, can be tested, and can serve its purpose of providing far better proof than a facile theory or well-tuned argument.  When the state fights it, the DNA starts to emit an unpleasant odor that permeates the conviction.  Why fight it, Texas?  What are you afraid of?

I appreciate a good use of rhetoric as much as the next guy, and the state’s “nail in the coffin” language is particularly apropos.  It’s tough and manly, as one would expect from Texas.  But after the chest thumping, the tough guys of Texas have to put up or shut up.  Now they just look like a bunch of sissies, afraid of a little DNA.

Not knowing enough about Hank Skinner’s case, it’s impossible for me to come out and say that he’s an innocent man.  I haven’t a clue.  Even with the respect I have for Balko’s view, and he’s no doubt more familiar with the case having written about it and asserted that Texas is about to execute an innocent man, I hesitate to declare a position.

But I do not hesitate to state that the lawmen behind the Skinner execution are all hat and no cattle.  If you want to put a man to death, then allow the defendant to test the DNA.  Disclose the full results of whatever testing you’ve done.  As the email concluded:


With a robust and collective condemnation against the practice of executing factually exonerated individuals, the innocence community will help curtail the abuse of our government’s power to take from its citizenry their inalienable right to life.

They’re right about that.  Just because this is happening in Texas doesn’t mean that the rest of the nation doesn’t care.  Protecting your conviction isn’t a good enough reason to put an innocent man to death.  Even in Texas.  Let’s see if there’s anything under that big, macho, ten-gallon hat of yours before you push the plunger.