by Ben Turk
The state of Ohio is trying to kill my friend. On
October 21st, Keith LaMar, who I know as Bomani Shakur,
lost his final appeal to the United States Court of Appeals for the
Sixth Circuit. He's got ninety days from the 21st to
convince The US Supreme Court that his case should be part of the one
percent of cases they will hear. After that, the State of Ohio is
free to give him an execution date. While few of us are optimistic
about finding justice within the US Prison System, Bomani's friends
and family were actually struck by the Circuit Court's rejection of
Bomani's appeal.
Many of us went to
the courthouse last December to hear attorneys argue his case, and
the spectacle was absurd1.
The man pursuing Bomani's death, State's Attorney Stephen E Maher,
spent most of his time arguing a technicality about the timing in
which Bomani's state-appointed attorneys filed paperwork. He was
trying to claim that the lawyers should have anticipated coming
shifts in precedent and adapted their actions. We packed the
courthouse, overflowed it, and this man stood in front of us, a
hundred outraged and terrified people, and said he should get to kill
our loved one because Bomani's lawyers (who were appointed by the
state) didn't predict the future.
I believe Maher was
trying to build precedent. If the judges backed his side it might
establish soothsaying as an additional procedural hurdle that
litigants would need to surmount to advance their appeals (as though
there aren't enough already). Maher probably thought he could get
away with this because Bomani is one of the most notorious prisoners
in Ohio.
Bomani is on death
row because he was one of the 1,820 men the state of Ohio held
captive in their most notoriously unstable, overcrowded and dangerous
maximum security prison in April of 1993. The Southern Ohio
Correctional Facility, known as SOCF, or Lucasville was rife with
violence and corruption. It was run by Warden Arthur Tate who was a
zealous advocate of snitching and strict enforcement of petty and
dehumanizing rules. It was a powder keg, set to explode, and when it
did The State of Ohio went into a panic looking for prisoners to
blame for their failure to operate a stable and safe correctional
facility2.
There is so much
more that can be said about the uprising, but very little of it
pertains to Bomani's story, because he wanted nothing to do with it.
The spark that blew the powder keg that spring was a conflict between
the Muslim prisoners and the administration, a conflict Bomani had no
stake or interest in. He surrendered at the first opportunity, in the
middle of the first night3.
Yet, Bomani sits on
death row alongside the other prisoners framed after the uprising,
those who calmed the riot, managed the uprising, and negotiated the
surrender. Ohio has been emphatic about blaming these prisoners for
19934.
They built Ohio State Penitentiary (OSP) a new supermax prison for
Bomani and their other scapegoats, who they have held in solitary
confinement there and elsewhere for the last twenty-plus years. They
call Bomani the worst of the worst, and they can't wait to
exterminate him.
At the oral
arguments, we thought we were finally hearing a different story. We
thought the federal judges might have seen through the caricature
Ohio has painted of Bomani, even though they didn't see him. In Ohio
a condemned man is not allowed to witness the arguments that will
determine his fate. We thought hopeful thoughts because the judges
pretty much mocked State's Attorney Maher.
In 1993 Bomani was
tried in rural southern Ohio, by Judge Fred W Crow, who violated the
constitution by allowing prosecutors to withhold evidence from his
attorneys. On the pretext of protecting informant witnesses from
persecution, Judge Crow and prosecutor Mark Piepmeier created a
system of giving Bomani's lawyers two lists, a list of statements and
a list of names, without telling them who said what. Then they left
them with limited time and funds to go interview witnesses and
attempt to reconstruct the evidence.
This system is
highly irregular, probably never been used before, or since. At the
appeal, the Judges repeatedly described it as a “mix-and-match
game” and Circuit Judge John M Rogers was incredulous, he asked:
“...whether or not that's a violation, why would you do
that?” Maher had no good answers. He couldn't defend this action
and by the time he sat down, he was pale and shaking. You don't need
to be a debate coach to see that this man lost his arguments, so we
left court that day in December cautiously optimistic.
On August 18th,
after excruciating months of waiting for the Judges to write and
release their opinion, we received it. They'd rejected Bomani's
appeal, giving the go-ahead for his execution. Judges John Rogers,
Eric Clay, and Raymond Kethledge unanimously decided that, despite
Maher's inability to defend the lower court's actions, they would
decide in the State's favor. Rogers wrote the decision and the one
good thing we can say about it is that he didn't grant Maher the
litigants-must-be-psychic precedent he was seeking.
In 1996, President
Bill Clinton signed a law called the Antiterrorism and Effective Death Penalty Act,
which governs the circuit court's decision framework. In his
decision, Rogers offers three long, technical paragraphs on the
restrictions Clinton's law puts on Bomani's appeal. He ends with the
conclusion that “LaMar’s Brady claim fails because, even if
favorable evidence was suppressed, LaMar was not prejudiced5.”
In plain language, they're saying it doesn't matter that the
prosecutors hid evidence, because the evidence would not have changed
the jury's mind.
In Judge Crow's
courtroom, back in 1993, an all-white jury decided that Bomani was
guilty. Hundreds of people from the jury pool had signed petitions
demanding his and his co-defendants' execution before the trial even
started. The spectator box was empty throughout Bomani's trial, but
packed for his sentencing. Dozens of people came out to see him hang.
This was not a trial; it was a legal lynching, complete with the
enthusiastic racist mob.
So, ultimately, the
judges are probably right. Bomani never had a chance at trial. The
prosecutors could play mix-and-match. They could put a paranoid
schizophrenic on the stand, claiming that microscopic microchips in
his brain recorded everything that went down, and Bomani still would
have been found guilty. In fact, they did, and he was6.
But, the Sixth
Circuit isn't going to rubber-stamp the execution of a Black man on
the basis that he never had a chance in the racist climate of
southern Ohio. That would be far too honest. Their decision needs to
be based on legal facts and an examination of the evidence and
counter-evidence. So, the opinion started by retelling The Ohio
Supreme Court's summary of the case, which reads like the script for
a Quentin Tarantino exploitation film set in a maximum security
prison. The absurd story goes that when the uprising took off,
Bomani—who has never been affiliated with any gang or organization
of prisoners—spontaneously created a “death-squad” and
bargained with Muslim leadership to be allowed back out on the yard
if he killed a bunch of snitches. It goes on to detail the deaths, a
brutal litany of inconsistent speculations. This story is based
entirely on informant testimony. Physical evidence was not used to
secure convictions against Bomani or any of the death-sentenced
prisoners.
Under Clinton's
law, to win his case, Bomani needs to argue that prosecutors hid
evidence that would have exonerated him. He needs to write and back
up an alternative story of what actually happened in that
Tarantino-esque crime scene. This task is basically impossible,
because he was not there. He was out on the yard, waiting for a
chance to surrender. The task is made all the more difficult by the
fact that the State of Ohio still has not released all of the
evidence collected during their investigations, and that Bomani's
court-appointed attorneys refused to demand and present all of the
evidence they possibly could.
At a 2007
evidentiary hearing in Bomani's case, special prosecutor Mark
Piepmeier admitted to using an excessively narrow standard for
handing over evidence. Lawyers for the other death-sentenced
Lucasville uprising prisoners jumped on that opportunity to request
access to all the concealed evidence, and access was granted.
Bomani's own attorneys promised him they would do the same, but later
they inexplicably chose not to.
In what looks to me
like a fireable offense, Kate McGarry and David Daughton flatly
refused to follow their client's wishes. Bomani stopped speaking to
them, tried to fire them, and denounced their actions in his book,
Condemned. After this, they requested to withdraw from his
case before the oral arguments last December. Clay, Rogers and
Kethledge denied their request, forcing them to go forward
representing a client they were not on speaking terms with.
If I haven't
painted a bleak enough picture of how the criminal justice system
failed my friend yet, get ready, because it gets worse. This next
topic actually has me convinced that the system did not fail Bomani;
it is not going to kill him through negligence or accident. The State
of Ohio is going to kill Bomani by intentional design, with approval
and complicity of the Federal Courts. This is nothing but outright
murder.
In my opinion,
Bomani's strongest argument is that the people who testified against
him lied. They cooked up this preposterous story about one prisoner
with no gang affiliations spontaneously forming a death squad to go
around murdering snitches. They were coached and bribed into offering
such testimony. On page 24 of the Circuit Court's decision, the
judges address this issue. They recount the special privileges given
to witnesses who agreed to testify. The informant prisoners were
moved to Oakwood Correctional Facility where they were given things
like “extra visitation, food, and cigarettes.”
Judge Rogers calls
Bomani's best argument “meritless” because, “...for the special
treatment to provide a motive to lie, the witnesses must have known
about the special treatment beforehand.” It is true that prisoners
at Oakwood got special treatment. They got ice cream and much more
out-of-cell time than prisoners who didn't snitch. The place became
known as the “snitch academy” by prisoners across the state.
Rogers may be right when he assumes the witnesses weren't told about
the ice cream and cigarettes when they sat down with the prosecutors.
The thing is, the
ice cream and cigarettes are not what matters. These prisoners were
also given early paroles, reduced charges, and most importantly the
opportunity to escape Bomani's fate. Bomani himself was also offered
a deal and he refused it. There should be no question in the mind of
anyone who knows anything about how the American criminal justice
system works that snitches know they are getting something in
exchange for their testimony. If you have watched a police procedural
movie or TV show in the last twenty years, you very likely have seen
prosecutors offering plea deals in exchange for testimony.
Last year, the most
popular podcast in the country, a re-examination of a criminal
proceeding from 1999, reported for NPR by Sarah Koenig called Serial,
featured informant testimony prominently7.
Many people listened to that podcast because they enjoyed peeking in
on the life-and-death mystery of Adnan Syed's murder conviction and
possible exoneration. I'm sure many listeners came down on one side
or the other regarding Syed's innocence and they had a lot of fun
speculating. But one thing was never in question: the informant who
testified against Adnan was a liar, and he was afraid.
The same is true of
every witness who took the stand against Bomani. They knew that if
they didn't testify against him they would take his place facing the
death penalty. Forget ice cream at the snitch academy, these
prisoners were bargaining for their very lives, and there can be no
question that they knew those were the stakes.
This is true of
every Lucasville Uprising conviction. Staughton and Alice Lynd have
described several examples in great detail8.
One of the demands from the negotiated surrender that ended the
uprising was that SOCF stop using secret mailboxes where people can
leave anonymous tips against each other. Those mailboxes created a
culture where people would make up entire lies on others in order to
gain advantage or revenge for slights. Lying to get out of trouble,
to gain preferential treatment, and to harm others was a common part
of the inmate culture at SOCF. Frustration with this culture is what
motivated whoever killed the men in L block to do so in the first
place.
It is ridiculous
and insulting for a Federal Judge to talk about snitches not knowing
that they'd benefit from giving testimony. If Rogers' really doesn't
know that snitches understand and expect to gain from testimony, he
should be disbarred for utter ignorance of the criminal justice
system he presides over. This is common knowledge for lay people, of
course Rogers and his co-signers know it, so when they pretend they
don't, these federal judges are lying to us.
Their lie is an
important lie. It is the same lie that killed Troy Davis9,
the same lie that many prosecutors and judges depend upon to win or
uphold convictions. If federal judges were to set a precedent of
holding informant testimony—the least reliable but most easily
attainable form of evidence—to a higher level of scrutiny, they
would open the floodgates of prisoner appeals. Hundreds of thousands
of prisoners, guilty and innocent, whose conviction depended on
informant testimony would promptly clamor for retrial. The judges'
caseloads would multiply and soon become unmanageable.
Prosecutors would lose the tools that make their jobs so easy.
The personal
interests and daily routines of Judges Rogers, Clay, and Kethledge
are tied with State's Attorney Maher and even Bomani's lawyers as
well as many other court officials across this country. All of these
people's jobs will become much harder without the fiction of valid
informant testimony. This is why Bomani will die. Ultimately, the
State of Ohio and the US Government is going to kill my friend to
make their jobs easier.
Early on in my
friendship with Bomani he wrote an excellent essay called “Crime
and Punishment”10.
In this essay, which predates the Black Lives Matter movement, Bomani
reasons that he and so many others like him are in prison is because
the system thinks his life doesn't matter. They see him as
“superflous population,” as trash that needs to be disposed of.
He understood then, and still understands now, that what is happening
to him is happening to him because he was born into poverty: “...so
prisons – it must be understood – aren’t about controlling
crime and punishing those who commit it; they’re about controlling
the poor.”
For eleven days, in
April of 1993, during the Lucasville Uprising, it became clear to
everyone that Ohio's prison system was broken and needed to be fixed.
The ODRC went after Bomani and others to make sure the burden of
those fixes would fall onto the bodies of the prisoners, not on their
organization, not on their daily routines or career trajectories.
Bomani's decades in solitary confinement, along with hundreds of
others enduring years of isolation at OSP are the cost paid to allow
Ohio to continue addressing poverty with mass incarceration.
Likewise, if
justice were served in Bomani's case today, the legal system's
ability to win convictions on easily manufactured evidence would be
reduced, and its role in controlling poverty would be jeopardized.
The prison system needs informant testimony to efficiently dispose of
Black and Brown, poor and marginalized bodies. America itself depends
upon it. Without the human vacuum of the courts and prisons sucking
up surplus population, this country's grossly unequal and desperate
form of capitalism would falter. The government will have to address
the poverty that is built into capitalism in a way that doesn't put
the burden on Bomani's community. It will have to confront and push
back against the deeply entrenched demands and ideology of modern
capitalism. I think Rogers, Clay, and Kethledge decided in favor
Bomani's death because they do not believe the government can manage
this. They believe it will break. They are probably right.
That's why I'm
looking through this rapidly closing 90 day window (less than 75 days
left at the time of publishing) at a 1% shot at a supreme court writ
of cert. It's why all of Bomani's friends have been reaching out
to every death-penalty lawyer we can find to get him real
representation for that last ditch effort. It's why we're trying to
raise thousands of dollars for legal representation11.
When we stand with Bomani, we stand with every prisoner framed by
snitches, with every young man born into surplus population, with
every body sucked up into the prison system.
This isn't easy.
It's hard as hell to stare open-eyed into the corruption and
inhumanity of this system and beg it for mercy. We struggle and rail
against hopelessness. Visiting Bomani, crying with him, we also find
ways to laugh. If all of his and our time goes into chasing the
benevolence of a callous court he might as well be dead already, so
instead we assert and celebrate what life he has in that sterile
concrete-walled cage.
We're grasping at
straws and dreaming of miracles. We're remembering that they killed
Troy Davis even though Amnesty International asked them not to, even
though The Pope and Jimmy Carter had his back12.
We are daunted and depressed, but we're fighting.
I am writing this
to assert that we will keep fighting. If we cannot find strength in
those straws and false hopes, if the courts offer us nothing, if we
concede that they will take Bomani's life no matter what we do, we
can find strength in knowing that even losing this fight is a worthy
thing. As Bomani has said to me many times over the years: everybody
dies. We are all going to die some day. The question is not, how do
we not die, the question is: what are you going to do with your life?
We might not be
able to save Bomani from the judges and prosecutors, from the
government that decided before he was born that his life does not
matter, but that is not the only fight. The other fight is a fight we
can win, and that we have to win. Our fight can at least make them
talk honestly about what they do. We can defrock these judges, shame
these prosecutors, force them to admit that they are nothing but
butchers. The daily routine of their life amounts to continuing and
legitimizing an ideology that insists Black lives do not matter.
Fighting for Bomani is how I have chosen to make war with that
ideology. Telling his story is how we can warn every child born into
the situation Bomani was born into that in every branch and on every
level, the United States' Government is nothing but their enemy.
1For
a more in-depth description of court, please see my reportback and
linked statements here:
http://www.lucasvilleamnesty.org/2014/12/reportback-and-thoughts-on-next-steps.html
2For
a more involved summary of the Lucasville Uprising, including links
to detailed accounts, see:
http://www.lucasvilleamnesty.org/p/background.html
3Please
read Bomani's own account of his experience in Lucasville in 1993 in
his book Condemned. Available through KeithLaMar.org
4For
more information about this see Re-Examining Lucasville Essay 7:
http://www.lucasvilleamnesty.org/2012/12/re-examining-lucasville-uprising-essay-7.html
or The Shadow of Lucasville documentary film at:
http://darklittlesecretmovie.com/the-great-incarcerator-part-2-the-shadow-of-lucasville/
5See
the court's decision here:
http://law.justia.com/cases/federal/appellate-courts/ca6/11-3153/11-3153-2015-08-18.html
6See
the short documentary Condemned, here:
http://keithlamar.org/the_documentary_film.html
7http://serialpodcast.org/
9https://www.aclu.org/blog/speakeasy/i-am-troy-davis
10http://sfbayview.com/2011/12/crime-and-punishment/
11Please
donate here:
https://www.generosity.com/fundraisers/justice-for-keith-lamar
The tone and argumentation of this piece moves me deeply. To me, the description of the source of their tenacity and the reasons they persevere are right where it should be. a brilliant exposition of gratuitous violence as integral to white & class domination.
ReplyDeleteThe parts about the necessity of courts & prisons to absorb surplus populations points toward an excessiveness and gratuity that goes beyond a rational economic or governmental principle, and I think it's a pretty plain example of the libidinal anti-black violence discussed by the afro-pessimists. more here: http://www.metamute.org/editorial/articles/wanderings-slave-black-life-and-social-death