They come all the time, the emails from some lame website trying to get me to show interest in some lame post so that I’ll link to it.  It used to be sham 100 top criminal law blogs, with a badge that linked back to the offending site, but even the dopiest bloggers finally figured out that they didn’t win a prize. (A lot of bruised egos were scattered across the blawgosphere).

So now it’s this:

I came across your site as I was searching sites related to an article I wrote called ” 7 Ways to Interrogate Using Electricity ” posted on my blog  I thought I would reach back out to you to let you know about the article and to see if you would be willing to share it with your site’s readers.

Thank you in advance for your consideration!

Katherine Tworsey

The focus here is the use of electricity in interrogation; some of the methods mentioned here also qualify as means of torture, while others spark controversy over just what constitutes torture.

Have you really come to this in your desperate quest for links on the internet?

1. The Electric Chair – Since 1890, when the electric chair was first used for capital punishment, the threat of its use has served as an interrogation ploy.
   
2. White Noise – White noise, produced electronically, is basically a combination of all sound frequencies and is used to disorient a subject.
   
3. Car Battery and Jumper Cables – A favorite of film makers, this is what the Police Inspector used on Jamal, in Slumdog Millionaire, and has also been called the “Jack Bauer (24) Technique”. This type of interrogation is assailed on many fronts, including that of effectiveness; a subject may give false answers just to please the interrogator and to stop the torture.
   
4. Hypothermia – A prisoner is literally chilled to the bone in a refrigerated room, while being constantly doused with cold water. This is one of the methods approved for C.I.A. And military use in “enhanced interrogations”, and it was utilized at Abu Ghraib and Guantanamo.
   
5. Light Control – Lighting, often hot and harsh, is used to upset the body rhythms of a detainee, disrupting usual day/night cycles, and weakening resistance. Old-school movie detectives were especially fond of sticking desk lamps into the faces of their prisoners.
   
6. Audio and Video Recording – As well as serving documentary purposes, recordings can be reviewed to check for consistency in witness accounts; sometimes to jog the memory of a subject, and sometimes to catch lies and misstatements. Polygraph tests have been used by the police since 1924.
   
7. Computers – Computers allow interrogators to almost instantly check the veracity of a subject’s story, from GPS information to personal data that can be verified on the Internet.

Despite the cries of locals, the conviction of Jerome Jay Ersland for the murder of 16-year-old Antwun “Speedy” Parker following the attempted robbery of a pharmacy seemed the proper result.  But conviction for murder does not, by some weird definition, demand the max.

A judge Monday refused to cut any time off the life term of a pharmacist convicted of murder for fatally shooting a robber.

“It’s injustice of a monumental proportion,” Jerome Jay Ersland, 59, said after his formal sentencing.

His lead defense attorney, Irven Box, asked that Ersland be given probation for life. Oklahoma County District Judge Ray C. Elliott refused, saying he saw no reason to suspend any of the sentence.

Ersland may have intentionally caused the death of Parker without legal justification, but it’s not as if he roamed the streets of Oklahoma City in search of a teenager to murder, or was prepared to kill another human being in the course of a robbery, putting his financial interests above the life of another.  He may have been very, very wrong, but in the scheme of murders, it can get far, far worse. 

While I’m unfamiliar with the specifics of the Oklahoma sentencing regimen for murder, there appears to be ample room to take into account both the nature of the crime as well as the nature of the criminal.  If the judge saw no reason to suspend any of the sentence, then he had his eyes closed tight.  The reasons are clear.

There are people who murder children for fun, for nothing, out of unexplainable random hatred and cruelty.  Save the most severe sentence for them.  Distinguish the undisputed fact that this murder, and murder it was, came about because Parker and his cohort came into Ersland’s pharmacy with a gun to rob it, and he defended but went too far.  Ersland was wrong, but not so wrong, so evil in his failure to stop when the threat ended, that his conduct demanded that he die in prison.

And what of the man before the court?

Ersland was known as a hard worker at the pharmacy and was well liked by most customers there. Twice divorced, he lived in Chickasha with a pet dog he named after Winston Churchill, the British leader during World War II.

He played music for a church in Chickasha and collected guns for a hobby. He served in both the U.S. Army and U.S. Air Force and had never been arrested before the robbery.

The case revealed he also had a deceptive side. His first account of the shooting was contradicted by recordings from the drugstore’s security cameras. His claim to police and others of being in combat in Iraq during the first Gulf War was contradicted by his military records.

His claim of having a broken inoperable back was contradicted by X-rays taken at the jail.

While no mention is made of any consideration of Ersland’s mental state, everything about this case smacks of some degree of mental illness.  Not enough to render him incompetent to stand trial, but sufficient to suggest he functioned with diminished capacity for the purpose of mitigating his blameworthiness.

Often, a defendant doesn’t want to assert that he suffers from any psychological impairment.  He wants to be a normal, even a hero, and the suggestion that there’s something awry in his brain is so patently offensive that he refuses to allow it to be ascertained or argued.  Maybe his lawyer didn’t see it.  Clearly, the judge didn’t.

But this brief history has all the hallmarks of something very wrong happening in his thought processes.  Even if Ersland was against it, his lawyer should have, at minimum, had him evaluated to determine his competency to make the decision to refuse to raise it as an argument, to determine whether there was something that might save him from dying in prison.  Whatever ego, if that was the problem, stopped Ersland from ascertaining whether he was impaired will dissipate in the quiet of his prison cell, where he will spend the rest of his life.

People have a very difficult time distinguishing between the validity of a guilty verdict, especially for a crime as serious as murder, and the need to impose a disproportionately harsh sentence.  Heck, people are all too happy to urge the death penalty for jaywalking, every criminal being inherently unworthy of the level of thought and consideration necessary to impose a sentence no more harsh than is necessary to serve the legitimate purposes of sentence.

That the wailing of locals that Ersland should not have been convicted of the murder of Parker may have pushed the judge to be less feeling, less caring, less thoughtful, is wrong as well.  The judge may have viewed his sentence as a means of showing support for the verdict, his approval of the efforts of the jury that reached this unpopular conviction.  If so, then the court abused its power.  Sentences aren’t tools to react to public outrage, whether it’s for or against a verdict.  Sending a message only related to the deterrent effect of a sentence, not to some extraneous political statement.

At 59, Ersland has many years of life ahead of him.  Whether the popular cries will push the governor to commute his sentence is hardly clear, and hardly a given.  Popular outrage will die down as people get back to caring about the things that truly matter, themselves.  The governor may act if he see votes in support of a re-election effort, of not to curry favor with tough-on-crime proponents or the police.  Depending on a politician to take a principled stand is risky business.

Yet Jerome Ersland, the murderer, deserves a sentence appropriate to the crime and the criminal.  It appears he got neither. 

When the handsome profile filled my television screen this morning, it struck me as familiar.  Holy smokes, it was Jonathan Turley, lead counsel for the polygamists in that wacky TV show, Sister Wives!

It took all of about ten minutes from the start of debate over gay marriage for opponents to note that if men are allowed to marry men, then what about polygamists.  The problem then, as now, is they had a point.  Once the underpinnings of marriage are cut loose from the one male/one female construct, why not polygamy.  And the story of Kody Brown and his three wives makes for a compelling argument.

At Criminal Defense, Brian Tannebaum wrote about the complicity of lawyers, our quivering silence in the face of an opportunity to educate others, if not our direct contribution to making people dumber for our having opened our mouth, about trials that capture the public interest.

But if ordinary trench lawyers have failed to fulfill this duty, or even contributed to the publics’ worse understanding, we’re nothing compared to HLN’s Nancy Grace.  If we deserve a slap, what punishment is possibly harsh enough for a woman who has single-handedly made every person worse for having heard her shrill, nasty, ignorant voice?

From the AP :

“I feel like I owe the nation community service for having hired her and put her on television,” said Steve Brill, founder of the now-defunct Court TV. “She’s a monster.”

Grace’s audience of nearly 3 million people that night was also a personal high. She brings the same in-your-face opinionated approach to legal news that several Fox News Channel and MSNBC personalities bring to politics, and viewers strongly endorsed it. Yet her assertion that the Anthony jury was “kooky” and post-verdict statement that “the devil is dancing tonight” seemed over the top even by Grace standards, offering fresh material for both those who cheer her advocacy and others who find her overbearing.

The characterization is wrong, completely off-target.  That Grace pretends to be knowledgeable, referring to her ten years as a prosecutor (ending long ago when her improprieties came to the fore) and her hyperbolic claims of being the toughest one in America, too meaningless to call out with lawyer-like specificity, does not make her either a legal advocate or overbearing. 

Nancy Grace spews stupidity.  It oozes from her mouth, her eyes, her sneer.  She feeds the deepest anger and hatred of people who aspire to pass third grade history by making the sort of vapid arguments that appeal to those for whom thinking is akin to death.

ABC’s Terry Moran on “Nightline” asked Grace if some of what she does could be perceived as unethical.

“The day that it is unethical to care about the murder of a 2-year-old little girl who ends up duct-taped and thrown into a swamp is the day that I, too, will retire and rue the justice system,” she said.

And yet ABC put her on air every morning during the Casey Anthony trial as their legal analyst.  Her counterpoint was Danny Abrams, a post for which he was both  ill-suited by his own beliefs, lack of experience and lack of fortitude to face the Tasmanian Devil.  Danny wants to be the voice of reason, to the extent he reflects reason, in juxtaposition to Grace’s raging insanity.  It didn’t work.

There is no hope, none, that the powers that control the airwaves will, in a pang of conscience, pull this woman off the air.

HLN, the former CNN Headline News, struck gold by following Grace’s interest in the Anthony case and giving full coverage to the trial. Years ago that would have been a niche for Court TV, but that network was converted to TruTV and largely shows flashy nonfiction programming.

HLN isn’t letting go until every ounce of interest is squeezed from the case. Its executives largely scrapped the network’s weekend schedule to run nearly wall-to-wall Anthony material, much of it hosted by Grace.

HLN’s chief, Scot Safon, has no duty to educate the public.  The ethical obligations of lawyers don’t apply to a television network’s duty to raise viewership and increase commercial revenue.  The crazier the noise, the more eyeballs it attracts. And the happier HLN is with its wailing shrew.  So what if she makes no sense at all, reflects nothing remotely resembling legal analysis and is just plain wrong.

But Nancy Grace’s refusal to adhere to the obligations of a lawyer is unethical.  She may not be stoppable on TV, where the demand for eyeballs consumes any interest in accuracy or ethics, but how is it that she still holds her ticket from Georgia?  How is it that the rules that apply to lawyers have no hold on Grace’s tongue?

What if Nancy Grace was constrained to air her views as a disbarred lawyer?  Would the big networks still give her the platform to spew on national television?  Would those for whom knee-jerk, ignorant emotionalism remain as enthralled with their heroine who bolsters their moral authority to believe whatever they want, reason be damned? 

Certainly, ABC’s producers can make the decision to put Nancy Grace on Good Morning America in place of a credible voice, regardless of whether she remains a lawyer, and let her be shown as an utter fool blowing kisses to Mike Nifong while condemning the innocent lacrosse players.  Television is under no obligation to concern itself with truth and accuracy.

One of the jurors in the Anthony case, Elizabeth Ford, told ABC News that the 51-year-old Grace was not fit for television.

Yet no one at ABC cared. And there’s no indication that they ever will.

But we are lawyers.  Even in Georgia, we are lawyers.  We need not continue to put our imprimatur of legitimacy on this woman who, more so than any other of recent vintage, has made America more ignorant about the law.  Or is the Georgia bar so enthralled with her drawl that they would never pull the ticket from their favorite daughter, exempt from the ethical obligations that apply to the rest of us?

Louisville criminal defense lawyer Keith Kamenish must be pretty darned good, as it seems like everybody wants his representation.  LaJuante “B.B.” Jackson wanted Kamenish to defend him on drug charges, and Kamenish did, getting Jackson out on bail. 

That’s how it came to be that Jackson was sitting on his front porch on August 19, 2005, when someone put 36 bullets into Jackson’s head. Kamenish’s stained business card was found in Jackson’s wallet.

A fellow named Dion Neal is one of two defendants accused of the murder.  And wouldn’t you know it, but Neal wanted Kamenish to be his lawyer as well.  The guy must be good.  The government, however, saw an issue. From the Louisville Courier-Journal :

The government says the practice is unseemly — and just plain wrong — because the lawyer would have an irreconcilable conflict between guarding the confidences of his dead former client and zealously defending his new one.

In an interview and in court papers, Kamenish said he represented Jackson only briefly and never gleaned any confidential information from him, which he would be barred from using in Neal’s defense.

It’s unclear how often this situation arises, but it’s a situation that I faced a while back.  After a very nice meeting with some fellows in need of a murder defense, the name of the dead guy was mentioned, and it turned out to be a young man I knew all too well.  Lest there be any confusion, the fellows in need of a murder defense were fully capable of paying the freight.

I demurred.  The government’s argument is correct; it was unseemly.

While it wasn’t completely clear that the defense of the murder charge would create a conflict with the duty owed a client, even a dead client, the potential was undeniable and overwhelming. What if, during the course of trial, something was alleged about the poor victim that my knowledge, no matter how narrow or broad, could dispel?  I couldn’t ignore my duty to keep the victim’s confidences, but I couldn’t ignore my duty to defend my current client.  The situation had enormous potential for conflict, even though it had yet to manifest.

Clearly, this inchoate concern flies in the face of modern views on ethics and representation.  The internet tells lawyers that no paying client should ever be turned away, that no ethical conflict should ever stand in the way of earning a living.  As I’ve been informed dozens, no hundreds, of time, things are different now.  Lawyers are entitled to make money, and arcane niceties like ethics are for dinosaurs. 

“The prosecutors are right in raising this issue,” said Monroe Freedman, a law professor at Hofstra University and the author of “Understanding Lawyer Ethics.”

Sure, he’s a lawprof and gets a paycheck.  What does he care about paying scoring a new case so he can pay back student loans.

Several practicing lawyers, including prominent Kentucky criminal defense advocates William Johnson and James Shuffett, as well as Miami attorney Neal Sonnett, a former president of the National Association of Criminal Lawyers, said they would never undertake such a representation because of the inevitable questions.

“Will the lawyer be less aggressive out of loyalty or affection for the deceased?” Sonnett asked. “Will the lawyer use the former client’s confidences as a part of the defense, or avoid doing so, even when it might help the client’s case?”

Sonnett doesn’t need to scrounge “leads” on the internet, and clearly doesn’t get it.  Time for the old men to fade away so the new kids in town can get that new BMW.  Who can be saddled with the burdens of client confidences when there’s money to be made on a case. 

At a time when the word for budding lawyers is that they are entitled of necessity to use any resource available, without regard for truth, intergrity or ethics, to turn that frown upside down and make themselves into a star, the idea of turning away a murder defense seems inconceivable. 

It’s not hard to make the arguments that the relationship was trivial, and that no confidences came out.  After all, the only person who could disagree is dead, and it’s not like Kamenish is getting any more business from Jackson.  Concern for Jackson’s confidences is so backward looking, when Kelly offers the future, meaning payment of future fees.  And really, isn’t the payment of fees what lawyering is all about?

It’s completely understandable that Kamenish wants to take the case.  He just can’t.  Despite the heresy of this statement, criminal defense lawyers cannot ignore the potential conflict of trading off the confidences of one client against the duty to defend another just because there is money to be made.  Painful at it may be, sometimes you just have to follow Nancy Reagan’s advice.

Contrary to all the voices proclaiming entitlement to make money, what allows us, as lawyers, to hold the trust of a client is our competence combined with our overarching ethical responsibilities.  And sometimes, those responsibilities compel us to walk away. 

H/T Bad Lawyer

When the  Indiana Supreme Court decided that Brenda Moore had indeed committed the crime of being drunk in public by riding shotgun in a car driven by her sober friend, a thousand public service announcements about designated drivers turned sour.  Orin Kerr succinctly explained the deal:

A drunken passenger in a car that is pulled over for a traffic violation is guilty of public intoxication, on the ground that “established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute. ”

Under the principle of the venerable case of Martin v. State, 31 Ala. App. 334, 12 So.2d 427 (1944) — taught in nearly every 1L criminal law course — I would think this makes a critical difference: An officer can’t force a drunken person to be in “public” and then arrest the person for being drunk in public. As the Martin court put it:

[A] voluntary appearance is presupposed [by the statute]. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.

I would think the same principle applies when the defendant was forcibly stopped along the highway.

Moore was a passenger in a car driven by her brother’s friend, stopped for having its license plate light out. The driver, it turned out, didn’t have a valid drivers license, and the passenger, Moore, was in no shape to take the wheel.  As the police did the car stop routine, they noticed:

that the defendant had red, glassy, bloodshot eyes and slurred speech; she needed to lean against the car for balance; and she admitted that she had been drinking that night. She admitted, “I couldn’t walk. So I couldn’t have driven.”

It happens, on occasion, that a person will be drunk in a place other than their home. And this, according to the Indiana Supremes, constitutes a crime, even if only a B misdemeanor.  As crazy as this decision seems, certain commenters to Orin’s post noted that this is something of a time honored tradition in Indiana (and perhaps elsewhere).  In one comment, “Kilroy” wrote:

As a former deputy prosecutor in Indiana, I saw many arrests for PI for passengers in cars. These were usually the result of people either being rude and belligerent or just a lack of other options since officer had a drunk driver to arrest and couldn’t find a ride home for the drunk passenger. I never had a problem with the arrest and felt that charges fit; however, I never entered a single conviction for a drunk passenger. Something called prosecutorial discretion was always used. 

Shortly after, another commenter, “Smooth, Like a Rhapsody,” agreed:

I am, like Kilroy, a former DPA in Indiana. I don’t see the problem with the arrest or the theory behind the arrest. I was not aware of that this defendant had been victorious with our Court of Appeals.

“Public” means “public”. The car, or bus, or horse that is transporting the defendant is doing so in “public”. Yes, that means that everyone who is drunk in a bar is technically breaking the law. And, yes, even a drunk person who calls a cab could, theoretically, be arrested for P.I. And, yes, some cops are even underhanded enough to try to lure householders out of their homes during an incident so that the P.I. statute attaches.

But like Kilroy says, there is cop discretion and prosecutor discretion. I do not see the net benefit to a more narrowly drawn statute.

If you want to drink in public—that’s fine; if you want to get drunk, stay home.

These comments demonstrate the mindset of our guardians.  Apart from the silliness of the law, that a person in a car is in public, or that a person who has engaged in no conduct beyond sitting in a seat in a drunken condition, are engage in a crime, there is a far more nefarious solution to the use of bad law:  

Trust the guardians to exercise their discretion.

That the court held Moore’s conduct to constitute a crime is one issue, an issue that flies in the face of many basic precepts, ranging from Orin’s voluntariness argument to the criminalization of a condition without conduct, to the basic question of why drunkenness without harm should be anybody’s business at all.  The former prosecutors see no issues at all.  The law is what it is, and it’s good.  As Rhapsody says, if you want to get drunk, stay home, a simple, black and white vision of life.

But Kilroy’s reaction, that while it is a crime in itself to sit in a state of drunkenness, it’s really an excuse for a cop to pay back a person for being “rude or belligerent.” There’s no regret or excuse; this is how agents of the government should use a law to summarily punish someone for behaving disrespectfully.  This is the “official explanation” for the cop smacking the drunk for not being sufficiently compliant.  And this is fine with these former prosecutors.

What comes through loudly and clearly is that the law, that thing we spend so much time discussing and arguing about, that thing for which courts exists and upon which robed people are supposed to deliberate, has an underbelly of sufficient vagueness to use as a weapon by those in authority to smack down those who annoy them.  But it’s not viewed by those who are given the power and discretion to “do justice” as a problem:

I never had a problem with the arrest and felt that charges fit; however, I never entered a single conviction for a drunk passenger. Something called prosecutorial discretion was always used. 

The saving grace of this underbelly of the accepted and acceptable practice of police using the law to teach people to be sufficiently obsequious: prosecutorial discretion.  They, in their personal vision of mercy, will deem the “lesson” sufficient that once the noncompliant drunk has spent the night in the tank, they will dismiss the charge.  The prosecutor has decided that the punishment is sufficient.

For those of us who sit on the opposite side of the courtroom, who wonder with such frequency how cops and prosecutors rationalize their use of the law to teach us their personal lesson on how we are to behave in their majestic presence, about how we must comply with their commands or pay the price, these comments provide enormous insight. 

Unfiltered, they express the belief that cops and prosecutors are entitled to manipulate the law to control us, that we deserve whatever they give us.  And that it’s all good because some self-righteous, punk kid prosecutor has deigned himself the purveyor of mercy once we’ve been sufficiently beaten down to appreciate that we must obey them or suffer.

When punk prosecutors switch sides, the usually come to realize how misguided their belief is, that their personal vision of obedience is not entitled to the force of law, and that there is no excuse, no rationale, that allows them to use the law to vindicate their smug sense of propriety.  Some of these prosecutors don’t switch sides, however, but go into some other niche of the law and carry their ideas with them forever.

And then there are the prosecutors who hold these views who go on to wear the robes.  It’s not that they don’t realize that there is an underbelly to the law where it is abused to control those people who don’t accept their duty to obey authority.  It’s that they, like these commenters, don’t believe it to be a problem.  After all, when we’ve learned our lesson, they, in their vast mercy, will decide we’ve suffered enough. 

When 28-year-old Ikenna Njoku walked into JP Morgan Chase to get his check cashed, he was probably feeling pretty good.  He had bought a house and qualified for the first time home buyer’s rebate, both the sort of things that make a guy feel like he’s getting somewhere, accomplishing something with his life.  Njoku had a lawn to mow, and he was happy to do it.

The tax rebate check was supposed to be direct deposited into his Chase account, but there was a problem.

Njoku signed up to have the rebate deposited directly into his Chase Bank account. But when the IRS rebate arrived, there was a problem.  Chase had closed Njoku’s account because of overdrawn checks in the past. The bank deducted $600 to cover what he owed them and mailed him a cashier’s check for the difference–$8,463.21.

But when Njoku showed up at the Chase branch near his house intending to cash the check, he was in for a nasty surprise.

The check had Njoku’s name and address on it and was issued by JP Morgan Chase. But the Chase Customer Banker who handles large checks at the Auburn branch was immediately suspicious.

“I was embarrassed,” Njoku said. “She asked me what I did for a living. Asked me where I got the check from, looked me up and down—like ‘you just bought a house in Auburn, really?’ She didn’t believe that,” he said.

The Customer Banker said the check looked fake, so she took it, along with Njoku’s driver license and credit card, and called Bank Support.

But when Njoku arrived, it wasn’t the money that was waiting for him.

“They just threw me in jail; they called the police and said this guy has a fraudulent check,” Njoku said.

Auburn police arrested him for forgery – a felony crime.

Yes, they took him the jail. This was on a Thursday. The bank realized the next day that they had made a mistake, and called the police detective working the case to let her know. Unfortunately, “it was her day off” (!!), so the guy stayed in jail all weekend. He also lost his job for failing to show up for work. While he was in jail, Chase had his car towed from their parking lot. Because Chase had his money (the cashier’s check was his savings from a closed-out account), he couldn’t afford the impound fees. And because the check was seized as evidence, it took weeks to get it back, during which his car was sold then at auction.

“This is a very unfortunate and unusual situation,” wrote Darcy Donahoe-Wilmot of Chase Public Relations. “We apologize to Mr. Njoku and deeply regret what happened to him. We are working quickly to understand all the details so we can reach a fair resolution.

Of the many “issues” arising in the context of criminal law, none bears the scrutiny of execution.  While there is suffering for mistakes in every aspect of the law, and certainly in every aspect of the criminal law, there is no going back after a life is taken.  And so the grand “we,” lawyers, society, courts, treat it with a degree of solemnity and seriousness that’s given nothing else.

Or not.

Via Jeff Gamso, a decision by Southern District of Ohio Judge Gregory Frost cuts to the chase:

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.

Thoroughly parsing the opinion for its revelation that the State of Ohio takes its death protocols very seriously, unless there’s an impediment such as the unavailability of drugs, a hole in their racket or the sun’s in their eyes, in which case they just do something else, whatever they happen to come up with at any moment.

Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures. No inference is required to reach this conclusion, much less the stacking of inference upon inference. Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion. These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines. Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy.

More words than needed to state what became obvious, and indisputable, to Judge Frost, that the state does whatever it has to do to execute people.  They put on a show to pretend there is a formal protocol of the sort that will pass constitutional muster, to appease the nine in Washington who allow the show to go on, but the reality is that it’s nothing more than a show.  Ultimately, the only thing that matter is that, at the end of the show, there’s a dead body.

So what, you say?  That’s what the executioners in Ohio say too, so you’re not alone.  After all, there’s a paper that says somebody gets executed, and as long as the guy is dead by the end of the show, what different does it make if a few lines are ad-libbed?  Dead is dead.

A death warrant cannot trump the Constitution.

That latter document is not an inconvenience to be worked around or ignored. It is the most fundamental expression of the principles, rights, and obligations that define this country, and no governmental actor should ever disregard its dictates and prescriptions in this or any other context to fulfill any sense of perceived duty. It is wholly lawful to execute capital inmates. It is wholly unlawful to even attempt to do so in a manner that violates the Constitution.

The irony appears not to be lost on Judge Frost, that those putting another human being to death for violating the law are violating the law themselves.  But Judge Frost’s words put us on a very dangerous and slippery slope.

That latter document is not an inconvenience to be worked around or ignored.

We don’t get to the point of execution by accident, but by a process fraught with pretense at a thousand points.  And even when execution may not be the end result, the same holds true.  A few facile words, like “furtive gestures” or “totality of the circumstances,” allows law enforcement, prosecutors and eventually courts to leap over the details of that “latter document” and pursue conviction and sentence.  We do it all the time.  They do it all the time.  And we don’t fret too much about it.

“The ends justify the means” is a apt expression of how we get from a chance encounter on the street to a prison cell, or a gurney.  There was nothing to stop judges over the past couple of centuries plus from holding the requirements and safeguards of the Constitution to mean what they say, but thousands upon thousands of decisions hold otherwise. 

There are the big decisions, such as the ones that allow death to be imposed, but there are also the multitude of decisions in little cases, that no one ever hears about and never make a big splash, where almost by whim monumental holes are filled with a judicial shrug.  A judge, faced with the unpleasant business of conflicting testimony, where an agent mouths the routine words that allow the prosecution to proceed and the evidence to come in, is forced to make a choice. 

Does he “go with the flow,” or decide to take an unpopular stand, make the case an issue and call the agents out?  Every work day, a thousand times a day, a judge just lets it pass, knowing that he’s just condemned another person to the hell of prosecution, conviction and sentence despite that “fundamental expression of the principles, rights, and obligations that define this country.”

As it spills out of Judge Frost’s decision on the death penalty, where scrutiny (albeit invariably far greater post hoc than while the process proceeds in the first place, where so many improprieties could have been avoided if anybody gave a damn before the verdict was pronounced) is at its highest, one can’t help but recognize that the rest of the legal system is replete with a Constitution viewed as an inconvenience to be worked around or ignored. 

In the quiet and majesty of courtrooms and chambers, judges make the decision to not do what Judge Frost did here, to make a big stink about the reality that the practical application of our Constitution is all about letting things slide, going with the odds that the state is right and the defendant is guilty, and saying the magic words that allow case after case to slide around the Constitution.

Perhaps Judge Frost’s decision tells us that this system does work?  After all, he’s called out the state for making a sham of its protocols.  He wouldn’t accept that nod and wink of the executioners, that it’s really no big deal, since the guy who is supposed to end up dead ends up dead.  Then again, ignoring the Constitution isn’t enough of an issue to command a decision like this until it reaches to the point of dead bodies. 

Whether the judiciary, even Judge Frost, will decide that it’s time to start taking the Constitution seriously in other cases, to risk upsetting the system by not smoothing the path to conviction by circumventing that most inconvenient of documents, is the question faced in every case.  But if they can’t get death right, there is no chance they would care enough to get it right otherwise.

When President John F. Kennedy announced in 1961 that America would put a man on the moon within ten years, it began a commitment to the future that drove us to create innovation which carried us to great heights and banal depths.  And with the last flight of the space shuttle, it’s over.  And we have given up.

The monies spent on military operations in foreign lands in the name of jingoism is unavailable for schools or healthcare.  The cost of air conditioning tents in Iraq would cover NASA’s budget for a year, but it’s a false comparison since we would never deny the Americans in harm’s way basic comforts.  Nor should we.  But if this country hadn’t gotten caught up in Cheney-esque compulsion to prove our might in the first place, perhaps things might have gone differently. 

No matter, the money spent is gone.  The debt remains.  The accomplishment dubious at best.  Even if it turns out, viewed in retrospect 50 years from now, that our wars around the world served a purpose, other purposes were neglected in the process.  Guns and butter, rarely mentioned anymore, can’t be ignored.

But the most significant thing represented by the last shuttle mission is America’s abdication of concern with our future.  To the extent something as self-serving as American Exceptionalism exists, it does so because of our drive to find the future, to dream big and achieve our dreams.  We have no dreams anymore.

We are consumed by surviving today’s banal existence.  We have nothing left in the tank to achieve anything more.

The lovers of technology hold dear to shiny gadgets like the iPad in the belief that they are the future.  They are toys, which suck money out of the pockets of those least able to afford toys and give back nothing.  Do you really think a great future exists because we can check our emails anywhere, or watch television shows we missed while we were twitting to each other?  Yes, it’s a marvel of modern technology, but it won’t give us Mr. Fusion, and if it didn’t work by touching a screen, few Americans would be able to enjoy their shiny new toy as they sit on the couch and get fat.

We have no goals.  As a society, we think we’ve accomplished something by putting out a fire, never considering that at best we’re stagnant.  At worst, we fool ourselves, as the first isn’t really out but just left smoldering, waiting for someone else to shoulder the burden of putting it out later.

We’re a nation of big shots, every one of us too important to get our hands dirty doing hard work, or suffering personal sacrifice to achieve a future goal.  We are easily played by emotional appeals that distract us from hard realities, the ones the require some small amount of thought.  We’re a nation of marketers, liars who string together meaningless words and pretend that by making stuff up we can somehow slip past the mess all around us without contributing anything of substance, without actually doing anything that will achieve a needed goal.  We can only hope the next guy doesn’t notice that we just got away with a fast one.

The space program was only partially about space, though the vast unknown around us offered the potential to survive the damage we do to our own planet because we’re too lazy to pick up our own garbage, and too enamored of our shiny toys to worry about where to put the nuclear waste.  As long as it’s not in our backyard, we just don’t care. 

The space program gave us a wealth of opportunity along the way, as scientists and engineers created things that could be used to create more things to solve previously unsolvable problems.  There was a time when Mr. Fusion might have been a reality someday, instead of oil from the mideast.  You remember oil from the mideast, the stuff we needed to free ourselves from a couple of years ago, until we lost interest and sat back down on the couch to play with our iPad?

There are still people who have the knowledge and interest to create a future out of the mess that swirls around us today, but the death of the space program reflects our nation’s decision to look backward rather than forward.  We have been seduced by the shiny toys, and they are good enough to make us forget that we are doing nothing as a society to invest in our future.

Enjoy your iPad 5.  There may not be many new toys on the horizon because the drive that brought us this far is gone.  We’re too cheap to pay the price of innovation, and we’re too lazy and preoccupied with our transitory self-interest to put in the effort necessary to change.  There will be a few tweaks to our shiny toys, which will be touted as wonders and snapped up at exorbitant prices by young people spending their daddy’s money, so that they can sit on their couches and eat Cheetos while surfing youtube.

Is this enough of a future for you?  Do you not realize that you’ve bet the farm that some kid in Cambridge or Palo Alto, with no help from you, is going to come up with some truly incredible brainstorm that will create an industry, revitalize America, drive our economy in a direction that we can’t conceive of today?

You better hope that kid is out there, doing what you’re too lazy and self-centered to do. You better hope that he’s been given an adequate education. You better hope he’s not autistic. You better hope he wasn’t killed by a police officer or gang.  Or you can just sit on the couch and play with your iPad and pretend that’s good enough for your future.

With the growth of video, it’s become undeniable that police excess, both large and small, is a sadly regular occurrence.  But that doesn’t mean that citizen’s are behaving well either, and indeed, as this video, via Turley , demonstrates, sometimes the person taking the video behaves so poorly that it’s nearly impossible to feel much sympathy.

Now, a video has been released of a Jonesboro, Arkansas man who arrested after filming police conduct a search of a neighbor’s vehicle and body. The video was taken last year.

The man is heard yelling “Nazis” and accusing the police of violating the 4th Amendment.

Police officers then confront the man for calling them Nazis and demand his identification. They then threaten him with a variety of possible charges from disturbing the peace to disorderly conduct to obstruction. Since when is it a crime to swear at officers?

Of course, it’s not a crime to call police officers names, or curse at them, particularly when the loudmouth is doing so from his own front yard.  And yet, it seems abundantly clear that the name-caller was looking for a fight, whether deliberately trying to incite the situation or merely jumping the gun.

This case got worse before it got better and Harden’s lawyer, Donn Mixon, filled me in on the details.

After cops entered Harden’s garage without a warrant; after they demanded ID for a non-crime (criticizing a police officer); after they arguably committed a battery of Harden by grabbing his camera; after they arrested him — then they searched his garage and found a handgun. Harden was charged with being a felon in possession of a weapon. Two problems: 1) He has no felony record (despite Jonesboro police efforts to smear him by saying he’d once been mentioned as a potential suspect in a burglary) 2) he has a permit to carry a weapon.

Harden was held 24 hours before police discovered they’d filed an erroneous charge. But the disorderly conduct charge still pended. Finally, the city attorney’s office said they’d drop the charge, in return for a waiver that Harden not sue over his handling. Harden’s no choirboy. But the law couldn’t be clearer. Shouting at a police officer isn’t a trumped-up crime like disorderly conduct or obstructing government operations, not even if you call a cop a Nazi.

For a guy inclined to call police officers “nazis” for doing their job, he responded with somewhat surprising passivity to the unwarranted charges and detention by agreeing to waive any rights he had in exchange for dropping the criminal charges.  Of course, if there was no basis for his arrest, and he has committed no crime, then dismissal of the charges against Harden provided no consideration for his agreement not to sue.  Kinda cowardly on Harden’s part, in contrast to his big mouth before he was arrested.

One of the hardest things for a cop to do, though they are taught this during their training, and are often called upon to exercise sound discretion, is to not lose their cool when someone says something mean or nasty to them.  It doesn’t make the person calling names any less a moron, but it’s just not a crime. 

Of course, that’s one of the points of many of these videos, that police frequently find it impossible to let things go, to ignore name-calling, to recognize that contempt of cop is not a crime.  Even the biggest jerk among us is allowed to be a jerk without fear of arrest or, as is too often the case, a good beating.

Clearly, the police were wrong to approach and arrest Harden.  Equally clearly, Harden is jackass, and in America, people are allowed to be jackasses.  And that’s how rights are tested.