Sunday, December 7, 2014

Reportback and Thoughts on Next Steps by Ben Turk

This is Ben Turk's reportback.
    Over one hundred friends, family and comrades of Keith LaMar (aka Bomani Shakur) gathered in the 6th Circuit district court Tuesday afternoon. We counted 90 packed like sardines on the benches of a "capacity: 60" court room and at least 15 in the audio-only overflow room upstairs. We all came with two purposes: to bear witness, and to show support. Due to the egregious injustice of the US legal system, the condemned man is not allowed to hear the oral arguments of his appeal himself. So we showed up for him.

    Our goals were to show that Keith is not alone, and that his case is not one they can simply ignore. His life is not theirs to frivolously discard as they all too often do. We will defend it. Very few cases before the 6th circuit are decided in favor of the defendant, and oral arguments are often kept at a mere fifteen minutes per side. Keith's court appointed attorney got thirty minutes as did the state's lawyer looking to lynch him.

    I am not a lawyer and can only offer my inexpert impressions of what I witnessed. Court room notes, some analysis from people who better understand this arcane system, and full audio are available if you wanna get more in depth than I am able to here. In the meantime, these are my feelings, from my guts.

On our way to the courthouse.

    First impression: David Daughton, who argued in Keith's defense focused almost exclusively on discovery issues, and seemed to fight hard for them. There was some question whether he would put up a proper fight, which you can read in Keith's own words in his book Condemned and on I hope David would have made as strong an argument as he did even if he didn't have a packed spectator box behind him, but I don't know, and Keith is glad we were there, watching over David's shoulder.

    Second impression: the judges questioned David thoroughly. The discovery issue is about how prosecutors in Keith's original trial were required by precedent to provide any evidence that could be favorable or exculpatory to Keith's attorneys. This is called a “Brady” standard, named after the case where precedent was set, Brady v Maryland. By my understanding of common definitions of basic english, prosecutors clearly did not meet this standard. They had favorable evidence, they admitted having favorable evidence, and they released favorable evidence in other related trials, but still have not released it to Keith, even 20 years later.

  The only evidence they had against Keith was informant testimony, which they had acquired by threatening other prisoners with death and offering them freedom in exchange snitching on Keith. This kind of evidence is notoriously unreliable. Here is an article by Alice Lynd describing the problems with informant testimony, particularly in Lucasville cases. By the standard rules of the court, the prosecutors are required to share the sworn statements from these witnesses with Keith's defense attorneys, so they could follow up, interview and either find favorable witnesses or impeach liars. That's what Brady clearly says. They didn't do that, instead, they played a game, giving a list of summaries of the statements, and a separate list naming people who might have made the statements.
Blurry cell phone photo taken before they said no cameras.

    This mix and match game is unprecedented in the courts, it makes no sense, and its hard to see how it could possibly meet Brady requirements. Unfortunately, the whole point of lawyerdom is to create special privileged meanings of words so we can't count on common sense. The good news is, the judges and even Mr Maher, the lawyer arguing for the state don't seem to think this game was legit either. They all called it a "mix and match game" throughout the hearing, and the state's lawyer seemed downright embarrassed about it.

     The undisputed fact that the prosecutors played what Daughton described as a cruel game of dangling exculpatory evidence just out of defense counsel's reach is apparently not necessarily enough to win Keith a new trial. The judges, including Justice Clay- who we were glad to have on the case because he's an African American, a liberal, and he tends to support Brady claims- asked a lot of questions about why the defense attorneys didn't just play the state's game. He wanted to know why they failed to go get the evidence themselves, by re-interviewing everyone on the list and trying to match them with the statement summaries. Daughton wasn't on the case at the time, so it was hard for him to answer, other than to say they tried and didn't get anywhere, and more importantly they shouldn't have had to. There was also some speculation on whether the withheld evidence would have made a difference to the jury.

    David argued that these issues are irrelevant, the prosecutors simply and clearly violated Brady, and it is not up to prosecutors to determine what witnesses are credible or not. That ought to be up to the jury, who never had a chance to hear the evidence. When David sat down, I felt bewildered as to how the lower courts could possibly justify deciding against this position. By the time Maher was finished making his argument, I felt even more confident that we'd won this issue.

    It felt great to watch the Maher argue because he looked incredibly weak. First off, he avoided the Brady issue like a plague. He spent almost all his time arguing a technicality about "equitable tolling" which has something to do with the timing in which Keith's appeals were filed (Howard explains this at the end of this post). I'm not going to pretend to understand the different precedents and procedures they were arguing about, but just looking at it in terms of rhetoric and debate, Mr Maher lost his argument terribly.

     Right off the bat Ketheridge (a Bush appointed conservative) interrupted to say "one can hardly blame [the defense] for relying on existing precedent... when he filed it he had every reason to think under our own precedent that it was timely. Why should we penalize... somebody who relies on our precedents to think that their petition is timely?" You can skip to 24:30 in the audio file to hear the scumbag's evasive word jumble disaster of a response, complete with nervous gulps and shaky voice for yourself. Ketheridge interrupts again to say "that's a pretty tough standard, we expect people to follow our precedents and to say that they should have known that our precedent was gonna be tossed out before we did it, that's... isn't that asking an awful lot of a litigant?" Maher says "I agree one hundred percent" then goes on to delve into complex case law history that doesn't seem to answer or satisfy Ketheridge or the justices for another twenty minutes. 

  This part of the hearing was grotesquely absurd. This lawyer had the gall to stand in front of a packed room of people and argue that he gets to lynch our friend because the attorneys the state had appointed to file his appeal weren't psychic enough. It was despicable, but that's what state lawyers think they can get away with in our legal system, and apparently, they're correct often enough to think this is a viable argument. I know jailhouse lawyers who've argued their cases to the sixth circuit and beyond, doing it entirely alone through the mail and seeing the issues they raise discarded without a second thought. I wonder how often lawyers are able to make these flimsy arguments stick because no one from the general public is scrutinizing the proceedings.
    The best part is, Maher seemed to rely on this procedural argument because he knew he didn't have a leg to stand on with the Brady claims. Near the end of his 30 minutes, Clay asked him repeatedly if he was going to say anything about Brady. He did. He admitted that the mix and match game was “unfriendly.” At 46:35 Justice Rogers (another Bush appointee) asks, “so you obscured it, and then gave them to tools to undo your obscuring. Apart from whether or not that's a violation, why would you do that?” Again, the Maher gives a nonsensical mealy mouthed evasion, which Rogers interrupts to say "so you're not defending that." The Maher continues to stutter and dodge questions until he runs out of time. When he turned to sit down, we could see that he was ashen, face completely drained of color. The plastic water cup shook in his hand. I wish Keith could have been there to see that.

    Then the hearing was abruptly over. The Justices exited without comment. Everyone stood up and hugged each other. The feeling in the room was a feeling of victory. We made our way out of court, chatting and smiling at each other, and went to a local church, where we shared food and impressions of the hearing. Keith called in, thanked everyone and spoke not only on his case, but on the recent spate of police terrorism that has broken through the filter of mainstream media. He spoke of the need to unite and fight against white supremacy and state violence in America today.

     We joined his aunt Caroline in singing his favorite spiritual, Wade in the Water. Howard Tolley shared his analysis of what happened in court (a summary of which is here). We all talked about how to interpret what happened, and what to expect next. The crowd was very diverse and everyone seemed really glad for the opportunity to be together standing up for Keith.

    The struggle will continue. The Justices may take as long as a year and a half to write and render their decision. They will either grant a new trial, or send the case to the Ohio Supreme Court, who'll set an execution date. Either side will have the option to appeal their decision, first to an en banc panel of nine circuit court judges who may over-rule the decision of these three, then to the US Supreme Court- who are incredibly unlikely to hear the case (they only hear about 3% of petitions). Our hope is that the judges will decide in our favor and that the state will recognize their arguments are too weak to appeal. Beyond that, our hope is that the state recognizes they can't possibly bamboozle a new jury without using dirty tricks and just surrender the case, exonerating Keith. We'll see.

    Regardless of the outcome, we cannot afford to spend our time simply waiting for the judges' decision. We had a good turn out on Tuesday, a wide variety of people came out, friends and family members, black panthers, anarchists, quakers, many people from many walks of life. I believe that happened because this moment felt like a crisis, the looming execution date frightened people into action. The same thing happened with Troy Davis, with Mumia, with so many other prisoners. We need to go beyond crisis response. We need to recognize that every day Keith and the other survivors of the Lucasville Uprising spend in their solitary cells is a crisis, a deep destructive injustice that we must battle.

     While the judges draft their pronouncements and compare their decisions and dissents, we ought to keep fighting, we ought to call for amnesty. If we build enough strength, make enough noise, create enough pressure, we can bypass this gross and bizarre world of legal pretenses. We can demand that The State of Ohio itself finally take responsibility for the deaths that occurred inside their prison in April of 1993. They failed to run SOCF safely. Their institution fell so far from it's mission of "rehabilitation and correction" that they could not manage the disgraceful minumum standard of warehousing people. Amnesty and commuted sentences for every man who was unjustly scapegoated after the uprising is the minimum that Ohio can do to begin owning up to these failures.

    We cannot stop with Lucasville either. Keith's struggle is aligned with every struggle, his fate is tied up with the fate of every prisoner in Ohio. Overturning Keith's death sentence will not win his freedom from Ohio State Penitentiary. His shackles can only be removed by fighting not only this court case, but also the Ohio Adult Parole Authority (APA). When the uprising happened, Keith was doing a 14-to-life bid. If not for the uprising, he would have had multiple opportunities for parole by now, but given the uprising and Keith's committed struggle for freedom, the APA is very likely to hold a grudge and make him serve out his life sentence. If we let them, they will see him die behind bars.

    Fortunately, the APA should be easy to defeat. They are already fundamentally illegitimate and obsolete. In 1996, the Ohio legislature decided to get rid of the parole system for new prisoners. Anyone convicted after '96 does a flat sentence, with opportunities to reduce it by earning “good time.” This is generally a welcome change, prisoners hate the small-minded patronizing and often arbitrary parole board. The only problem is, anyone convicted before '96 falls under the “old law.” These prisoners, including Keith, need to go through the parole board, which now exists exclusively to assess and judge a finite and diminishing number of convictions from prior to 1996. Each time they grant a parole, they edge closer to total obsolescence. The APA's very existence is threatened by doing their job, so they have virtually ceased doing it. Almost no one has been paroled in the last ten years in Ohio.

   The Ohio legislature failed to anticipate this situation, because, like the rest of the American government, they cannot recognize the basic humanity of criminalized people and people of color. A number of Ohio prisoners and prisoner support organizations are fighting the parole board. Rather than simply waiting for the judges to catch up with our demands for justice, we should add the momentum we've generated for Keith to this struggle. If we remove this future block to Keith's liberation by making the 1996 law retroactive to all prisoners, we will also free hundreds of men being held in Ohio prisons against all reason and fairness.

    Beyond prisons, Keith drew attention in his statements at the church to the fact that police in Ohio are murdering Black kids with disturbing regularity. He supports the protests in Ferguson, Beaver Creek, Cleveland and everywhere. People around the state continue to organize against the cops who killed John Crawford and Tamir Rice. Throwing our energy into these struggles, confronting the systematic way black lives are devalued and discarded in this state, combining our momentum with their momentum could save many lives, beyond Keith's alone.

    There is no reason to go home, no reason to stop and wait for the justices' decision, and every reason to keep fighting, harder than ever. Until all are free!

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