Sunday, March 30, 2014

Death Row Inmates Challenging Lethal Injections

       Tommy Lynn Sells, a self-confessed serial killer on Texas’s death row, wants the state to tell him about the drugs it plans to use to put him on death on Thursday [April 3]. Two lower courts moved to grant his request, but the Texas Supreme Court decided late last week [March 28] that Sells’ interest in a humane execution may be outweighed by the state’s interest in protecting the confidentiality and safety of the companies that supply lethal injection drugs.
       Sells and a second Texas death row inmate, Ramiro Hernandez, are among condemned prisoners in several states waging uphill legal fights against state authorities over the drugs planned for use in lethal injection executions. Death penalty states are in a bind because one of the drugs formerly used in lethal injections, sodium pentothal, is no longer available.
      States have scrambled for a substitute and, according to death penalty critics and lawyers for death row inmates, resorted to drugs of unproven efficacy and put up walls of secrecy to try to hide the problems. “The states are more secret than they’ve ever been,” Deborah Denno, a law professor at Fordham University in New York and a leading authority on methods of execution, remarked to The New York Times’s Adam Liptak.
       Many death penalty supporters may see the inmates’ pleas for a “safe” method of execution as yet another tactic to delay or even avoid their death sentences —and an illogical argument at that. But lethal injection became the nearly universal method of execution in the United States over the past three decades because it came to be seen as the most humane of putting the condemned inmate to death.
      Admittedly, murderers such as Sells show no such solicitude for their victims, but that failing is what distinguishes them from the rest of us. It is not too much to ask that courts make sure that lethal injections, as carried out, are the humane executions they are supposed to be.
      Lethal injections typically proceed with administration of three drugs in sequence: sodium pentothal (also known as sodium thiopental) to render the inmate unconscious; pancuronium bromide, a neuromuscular paralyzing agent, to stop the inmate from breathing; and potassium chloride to induce cardiac arrest and thus death. But sodium pentothal is no longer available because the former U.S. supplier no longer makes it and European companies refuse to provide it for executions.
       As Liptak related in his “Sidebar” column [March 11], reports of executions carried out in two states in January indicate that the substitute drugs used left the inmates conscious and in agonizing pain as the procedure continued. An Oklahoma inmate was heard to say, “I feel my whole body burning.” An Ohio inmate was described by a reporter witness to have struggled, gasped for air, and choked for 10 minutes before succumbing.
       Oklahoma is among the states refusing to tell inmates about the drugs now being used. A trial court judge ruled last week [March 26] that the law prohibiting release of that information violates inmates’ due process rights. A judge in Tennessee, ruling in January in a similar suit, ordered the state to turn over the information requested; the ruling is on appeal. In Texas, Sells had won rulings from a lower court judge and an intermediate appellate court before the state supreme court intervened on Friday to block the release pending further consideration.
       The issue reached the U.S. Supreme Court earlier this year in a plea by a Missouri death row inmate, Michael Taylor, seeking the identities of the physician, pharmacy, and laboratory who prescribed, compounded, and tested the drugs to be used for his execution. The Eighth U.S. Circuit Court of Appeals on Jan. 24 flatly rejected the plea in an en banc decision, In re Lombardi. Writing in The Atlantic, legal affairs commentator Andrew Cohen aptly called the ruling “terrible” from either a First Amendment or Eighth Amendment perspective.  A month later, the Supreme Court refused on Feb. 25 to grant a stay of execution, but three justices —Ginsburg, Sotomayor, and Kagan — dissented, citing the dissenting Eighth Circuit judges. Taylor was executed later that day.
       Among the issues confronting inmates in these cases is an earlier Supreme Court decision, Baze v. Rees (2008), that rejected a challenge to lethal injection protocols brought by Kentucky inmates. States are citing Chief Justice Roberts’s plurality opinion in the case as requiring inmates that challenge an execution procedure to propose a valid procedure themselves. Lawyers for inmates argue that is an absurd requirement that would put them in an ethical conflict with their clients.
       Two more cases raising these issues are already at the Supreme Court, as Liptak noted. In Sepulvado v. Jindal, 13-892, Louisiana death row inmate Christopher Sepulvado is claiming a due process right to “timely notice of the method by which he will be executed.” Sepulvado’s plea was to be conferenced by the justices on Friday; a decision whether to hear the case could come on Monday [March 31]. A second Missouri case, Zink v. Lombardi, 13-8435, is scheduled for conference this week.
       For the most part, the Roberts Court majority has shown little sympathy for death penalty challenges. They may turn these pleas aside too, but at a cost to the public’s seeming decision that executions be carried out according to modern views of common humanity.

Sunday, March 23, 2014

Supreme Court's Obsession With Secrecy

       Supreme Court Justice Antonin Scalia was apparently in full Scaliaesque mode when he spoke to the Georgia State Bar this month [March 14] on constitutional originalism. Scalia “ranted and ranted” that the Constitution grants no right to abortion or same-sex marriage, according to one of those in the audience. News accounts quoted Scalia as describing the idea of a “living Constitution” as “idiocy.”
       These days, many people interested in the issue might reflexively log on to You Tube to look for a video of Scalia’s remarks. But don’t bother. In accepting the speaking invitation, Scalia imposed his customary ground rule: no cameras, no tape recording. So you’ll just have to rely on the brief news coverage of the speech or on second-hand accounts like the sharp critique delivered by Eric Segall, a law professor at Georgia State University in Atlanta who helped organize the event.
       Scalia’s ground rule is one of a dozen or so Supreme Court practices that severely limit information for the public about the nation’s highest court and the nine life-tenured justices who serve on it. As Dahlia Lithwick, Supreme Court correspondent for Slate puts it, the court is “completely unknown and unknowable to 99 percent of the public.”
       Lithwick and Segall were among the participants in an hour-long indictment of the court’s obsession with secrecy held last week [March 21] at New York University’s Washington Center. The event was cosponsored by the Reporters Committee for Freedom of the Press and the newly organized Coalition for Court Transparency, an amalgam of press organizations and legal advocacy groups.
       The program came against the backdrop of a renewed push to get the justices to let cameras into the courtroom for Supreme Court arguments. That issue has been percolating for at least 30 years, with no sign the court is likely to change its mind. To the contrary, the only minds being changed are those of new justices, including Sonia Sotomayor and Elena Kagan. Both were open to the idea during their confirmation hearings but have been voicing doubts since joining the court.
       The court’s obsession with secrecy, however, goes much further. As one inexplicable example, most of the justices do not announce their speaking schedules or release the text of public speeches. Justice Anthony M. Kennedy was the keynote speaker at the American Bar Association’s annual convention in August, but you won’t find the text on the Supreme Court web site under “Speeches.”
       Segall finds it similarly inexplicable that the court does not announce the votes of the justices when it decides whether to review a case from a lower court. It takes four votes to grant certiorari, but the votes in individual cases are disclosed only in the handful of cases each year when one or more of the justices issue a public dissent from the court’s refusal to take up a case.
       The justices are just as opaque in regard to recusals. None of the justices issues an explanation when he or she steps aside in a case. The public is left to guess whether the reason is some financial interest, a familial conflict, or something else. And any efforts to look for financial conflicts in the justices’ financial disclosure forms collides with the limited accessibility of the forms, which are available only in person in Washington, not on line.
       The court is somewhat proud of its web site, relaunched with various improvements a couple of years ago. But there’s not that much to brag about. Decisions are now available on line almost as soon as they are announced, and argument transcripts are posted within hours. But, despite the recent requirement for petitions and briefs to be filed electronically, these are not automatically posted on the court’s web site itself. The best sources for briefs at the Supreme Court are private entities: the ABA and the utterly invaluable SCOTUSblog.
       William Jay, a lawyer and an ex-Scalia clerk, noted one practice that only Supreme Court advocates would notice: the justices’ occasional research outside the record in the case. Jay noted that when the court outlawed the death penalty for juvenile offenders, Kennedy cited in his majority opinion data gathered after briefing and arguments were completed. The parties had no notice of the extra-record research and, obviously, no opportunity to comment.
       Of all the various issues, the question of cameras in the courtroom is easiest to raise in public. High courts in other nations allow video coverage — for example, Brazil, Canada, and the United Kingdom — with no apparent adverse effect. Justices have long warned of the risk of “showboating” by lawyers, but Sonja West, a law professor at the University of Georgia, notes that they are now raising a paternalistic fear that the public simply would not understand what was going on.
       A court answerable to the public could not get away with so many violations of transparency or such attitudes. Segall proposes a radical step to get the court’s attention. He wants Congress to refuse to fund the court until the justices improve their information practices. Congress is unlikely to go that far, so any major changes are likely to have to wait until a generation of post-Internet justices accustomed to instant transparency move into the Marble Palace at One First Street.

Sunday, March 16, 2014

Time for CIA to Confess or Be Judged on Torture

       Confession may be good for the soul, but apparently not for the Central Intelligence Agency. Nearly eight years after the supposed end of the CIA’s “enhanced interrogation techniques” era, the agency is resisting coming clean about what it did. And it is blocking the Senate Intelligence Committee from releasing its own report on the now repudiated torture-like practices.
       This is the real import of the she said/he said dispute that erupted last week [March 11] between the CIA and Sen. Diane Feinstein, the California Democrat who has long been a friend of the CIA as chairman of the Senate Intelligence Committee. In an astonishing 15-minute floor speech, Feinstein charged that the CIA had illegally — indeed, unconstitutionally — spied on the Intelligence Committee as it prepared what has been described as a harshly critical report.
       Brennan fired back in a matter of hours with a denial of sorts. “When the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong,” he said in a passage added to a previously scheduled speech.
       Setting aside the details of this dispute for a moment, here is the most important passage from Feinstein’s speech. The Intelligence Committee’s preliminary report on the CIA’s interrogation practices, conducted by two staffers and completed shortly after Feinstein became chairman of the committee in 2009, was, in her word, “chilling.”
      “The interrogations and the conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us,” Feinstein declared. Put differently: the CIA lied to us, and we are the Congress of the United States.
       That preliminary report persuaded the committee to approve, on a bipartisan 14-1 vote, a full investigation of the CIA’s role in interrogation techniques that include practices long considered to be torture, such as waterboarding, sleep deprivation and prolonged stress positions. Nearly five years later, the report — described as 6,300 pages long — is still awaiting release.
      The hold-up is at the CIA, which is reviewing the report ostensibly to guard against disclosure of any legitimately classified information (think: intelligence sources and methods). But one need not be a reflexive cynic to suspect that the agency is sitting on the report for more substantive reasons.
      The further news from Feinstein’s speech is that the CIA itself came to very critical conclusions about its conduct in an internal review commissioned by Leon Panetta in 2009 when he was CIA director. As Feinstein put it, “the Internal Panetta Review had documented at least some of the very same troubling matters already uncovered by the committee staff.”
      The committee’s access to the Panetta review is at the heart of the dispute that Feinstein aired — she says reluctantly on the Senate floor. Committee staffers found the review among the mass of documents the CIA provided using search tools also provided by the agency, according to Feinstein’s account. She acknowledges that she does not know whether the review was provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.
      Regardless, Feinstein insists the committee staffers did nothing wrong in uncovering the Panetta review. But Robert Eatinger, then the agency’s acting general counsel, thought otherwise. He went so far as to refer the matter to the Justice Department for a possible criminal prosecution. And, it would seem, he must have authorized the search of the committee’s computers in January that drove Feinstein first to complain and then, with no apology forthcoming, to take to the Senate floor.
      Eatinger, unnamed in Feinstein’s speech but readily identified from public records, has no clean hands in this dispute. The career CIA lawyer is named more than 1,600 times, often unfavorably, in the Intelligence Committee’s still unreleased study.
      As Feinstein explained, this was not the first access dispute between the committee and the CIA. Back in 2010, the committee staff discovered that the CIA had removed various documents from those it had previously made available. When Feinstein complained, the agency said it was done at the White House’s orders. But the White House denied issuing any such direction, Feinstein said.
      In a credibility contest, anyone who knows the CIA’s history will readily decide whether Feinstein or the agency is most likely to be lying. “The CIA doesn’t do that sort of thing,” former CIA lawyer John Rizzo declared last week on WAMU’s Diane Rehm Show [March 13]. It fell to David Corn, Washington bureau chief of The Nation, to recall for listeners that the CIA indeed lied in the 1970s about Chile and in the 1980s about Iran-contra.
      For observant Catholics, confession — “Forgive me, Father, for I have sinned” — is the key to absolution: “Te absolvo.” Rather than confessing, the CIA is now disputing some of the conclusions in the Senate committee’s unreleased study even though, according to Feinstein, some of them “are clearly acknowledged in the CIA’s own Internal Panetta Review.”
      The time has come for this controversy to be put to rest and, as Feinstein stressed, “to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.” If it cannot confess, the least the CIA can do is get out of the way for the Senate to render its judgment.

Sunday, March 9, 2014

Senate's Shameful Vote on Civil Rights Nominee

       John Adams expected to be criticized when he decided to represent the British soldiers accused of murder for the killings of five colonists in the Boston Massacre in 1770. But he took on their case as defense lawyer because he thought it important as a matter of justice. And he won the acquittals of all of the defendants except for two who were convicted only of the lesser offense of manslaughter.
       Three months after the end of the trial, Adams, then 35, was elected to Massachusetts’ colonial legislature, starting a career that eventually took him to the U.S. presidency. And reflecting on the Boston Massacre trial after his presidency, he described his role it as “one of the most gallant, generous, manly and disinterested Actions of my whole Life.”
       In present-day United States, a lawyer who represented a criminal defendant in a high-profile case would have no chance whatsoever later to be elected president. Indeed, to judge from last week’s shameful vote in the U.S. Senate, a lawyer with even tangential involvement in representing a high-profile defendant cannot even win confirmation to a subcabinet post in the Justice Department.
       Debo Adegbile, President Obama’s nominee to head the Justice Department’s civil rights division, went down to defeat in the Senate last week [March 5] at the hands of a solid Republican bloc and seven cowardly Democrats. The reason: Adegbile’s relatively minimal role in defending the rights of the convicted killer of a Philadelphia policeman.
      The real loser was not Adegbile, however, but a basic principle of American justice. Lawyers must be willing to take on unpopular clients if justice is to be served — and ought to be rewarded, not punished, as long as they stay within the bounds of ethical legal advocacy.
       On paper, Adegbile clearly had the qualifications for the position, including 12 years with the NAACP Legal Defense Fund, the venerable civil rights organization once headed by Thurgood Marshall. Adegbile joined the Legal Defense Fund in 2001, after seven years as an associate with New York City firms, and eventually rose to become acting president in 2012.
       Adegbile believed in and advocated any number of controversial legal positions in his tenure. He was a fervent advocate of race-based admissions policies to ensure diversity in higher education. He was also a strong defender of the federal Voting Rights Act, arguing unsuccessfully to uphold the act as written before the U.S. Supreme Court two years ago.
       Those positions earned Adegbile critics and opponents, but they were not what led to the Senate’s 47-52 vote that killed his nomination. Instead, Adegbile fell victim to his role in LDF’s work in behalf of a high-profile — many would say notorious — death row inmate: Mumia Abu-Jamal. Abu-Jamal was convicted of murder and sentenced to death in 1982 for the fatal shooting of Philadelphia police officer Daniel Faulkner after Faulkner had stopped Abu-Jamal’s younger brother for a traffic citation.
       In 30 years on death row, Abu-Jamal became a celebrated author and commentator, sharply critical of prison conditions and the criminal justice system. He also protested his innocence and challenged the conviction and sentence on various constitutional grounds. Eventually, the federal appeals court in Philadelphia threw out the death sentence in 2011 because of improper jury instructions that wrongly limited jurors’ discretion to consider mitigating circumstances; rather than seek a new death penalty hearing, prosecutors accepted the decision to reduce Abu-Jamal’s sentence to life imprisonment.
       The Legal Defense Fund had begun working on Abu-Jamal before Adegbile joined the organization. Adegbile’s sole personal involvement with the case was to contribute to an amicus brief at the Supreme Court on claims of racial discrimination in jury selection. The court in 2010 rejected those arguments, but sent the jury instruction issue back to the federal appeals court, where LDF directly represented Abu-Jamal.
       Adegbile’s limited role in the case made him persona non grata to the Fraternal Order of Police and other law enforcement groups. Adegbile defended his role in his testimony before the Senate Judiciary Committee, but in the hyperpartisan atmosphere on Capitol Hill Republicans predictably joined in lock-step opposition to the nomination. With a Democratic majority, however, the committee on Feb. 6 sent the nomination to the floor on a 10-8 party-line vote.
      With the Senate’s new rules allowing a simple majority to end a filibuster, Adegbile seemed assured of confirmation. On the floor, however, seven Democrats joined Republicans in blocking an up-or-down vote. Two of the seven are from blue states: Pennsylvania’s Bob Casey and Delaware’s Chris Coons. Five others represent red states: Joe Donnolly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.Va.), Mark Pryor (Ark.), and John Walsh (Mont.).
       Casey, the first of the Democrats to oppose the nomination, evidently capitulated to the strong feelings in Pennsylvania about Abu-Jamal’s case, which he said had left “open wounds” in the state. Coons, who voted as a Judiciary Committee member to send the nomination to the floor, explained his decision to turn on the nomination in a tortuous statement that acknowledged Adegbile’s qualifications but worried about the “visceral opposition” he would face from law enforcement if confirmed.
       For lawyers with thoughts of public service, the lesson is clear: Steer clear of cases that can be used against you later on. Gallant service to justice may have worked for John Adams, but not today.

Sunday, March 2, 2014

Clarence Thomas’s Disrespecting Silence

      Malcolm Stewart, a veteran of the U.S. solicitor general’s office, was already in trouble defending the federal law against corporations’ political spending on TV ads when Chief Justice John G. Roberts Jr. hit him with a gotcha question. Could the government prevent a corporation, the chief justice asked, from publishing a book just because it included a single sentence endorsing a political candidate?
       When Stewart said yes back on March 24, 2009, the court’s conservatives flinched. Later, in conference, Justice Anthony M. Kennedy Jr. — who had started the colloquy — apparently used Stewart’s answer to help argue for what eventually emerged in Citizens United v. Federal Election Commission (2010) as a broader-than-expected ruling freeing corporations from any limits on political spending.
       So much for the argument that oral argument does not matter at the Supreme Court. In many cases, the justices might rule pretty much the same way if they decided cases solely on the basis of briefs without oral argument. But Citizens United is only one — but surely the most dramatic — example of cases in which oral argument, prompted by the justices’ questions from the bench, has shaped the court’s eventual decision.
      Surely that explains why eight of the justices actively participate in oral argument. But not Clarence Thomas, who has now gone eight full years since his last question from the bench (Holmes v. South Carolina, Feb. 22, 2006). Jeffrey Toobin, the outspoken CNN legal analyst and staff writer for The New Yorker, marked the anniversary with a post on the magazine’s web site provocatively entitled “Clarence Thomas’s Disgraceful Silence” [Feb. 21].
      Thomas’s behavior on the bench, Toobin wrote in the opening paragraph, “has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” Toobin went on to describe Thomas, now 65, as “grayer” and “heavier” than when he came to the court 22 years ago and to accuse the justice of distraction and inattention during arguments.
      Supreme Court watchers from across the ideological spectrum piled on — not on Thomas, but on Toobin. “Disgraceful,” wrote a pseudonymous blogger on Erick Erickson’s conservative web site Red State. “There is no good argument” for calling Thomas a disgrace, wrote the liberal-leaning University of California-Irvine law professor Rick Hasen on his Election Law Blog. In the Los Angeles Times, centrist editorial writer Michael McGough opined that Toobin “doesn’t make much of a case for outrage over [Thomas’s] admittedly odd behavior.”
      In fact, Toobin hurt his case by a factual inaccuracy: Thomas does pay attention during arguments, as University of Baltimore law professor Garrett Epps pointed out in a tweet. Thomas can be seen on the bench asking pages for law books and occasionally talking with seatmates Breyer to his right or Scalia to his left. The hyperbolic headline also detracts from Toobin’s credibility, whether it was his or an editor’s.
      Toobin also misdirected his argument by contending that the benefit of the justices’ questions is the information and insights the public gets about the justices’ thinking. On that point, it is true, as Adam Liptak wrote in The New York Times [Feb. 25], that “the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.”
      Yet the work of the Supreme Court is also done in oral argument – in engaging with lawyers from opposing sides on the facts and the law at issue and the implications of a possible ruling one way or the other. Thus, for better or worse, Citizens United could have been a narrower ruling if Kennedy and Roberts had not pressed the beleaguered Stewart on how far the government’s argument could be extended. And courtroom watchers can recall any number of instances when justices will ask a lawyer, in all seriousness, for advice on how to write the eventual opinion.
       Thomas’s silence disrespects this part of the judicial process. He has explained his silence in the past by saying that he wants to hear more from the lawyers. But lawyers are told that oral argument is their one best shot to address a justice’s questions about their case. Thomas denies lawyers this opportunity. Perhaps that is because, as he has said about the justices generally, that he has his mind pretty much made up before the arguments begin.
       The court’s credibility, however, depends on the legal fiction that the justices’ minds are not completely made up until the case is submitted. Thomas is hiding the ball by giving lawyers no clue as to his thinking about a case until they see how he voted when the decision comes out.
      Sometimes, Thomas has a very distinctive to approach to a case. When the court struck down a California law prohibiting violent video games for minors, Thomas argued in a lone dissent that minors have no First Amendment rights whatsoever (Brown v. Entertainment Merchants Association, 2011). If Thomas had that thought before oral argument, it would have been beneficial to say it out loud and hear the lawyers’ responses.
      To be clear, Supreme Court oral arguments do not lack for questions from the justices. But Thomas’s willful silence is, if not a disgrace, at least a disservice — and one that gives no respect to the black-robed role he plays.