Monday, November 9, 2015
In Defense of Keith LaMar
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
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
11Please donate here: https://www.generosity.com/fundraisers/justice-for-keith-lamar