The Impending Execution of Thomas West

Thomas Paul West sits on death row awaiting execution by the people of Arizona on Tuesday, 19 July 2011.

Thomas West admits he killed Donald Bortle while burglarizing Bortle's home. The appellate court summaries are unnecessarily long, and I'll quote instead from the AP story I found at AZcentral.com. The story discusses West's appeal to the clemency board.

In West's petition to the board, defense attorney Dale Baich wrote that West does not deny killing Bortle and is extremely remorseful. He said West's father was verbally and physically abusive and that West was sexually abused by a teacher, a neighbor and a priest at various times in his childhood.

He said West also was recently diagnosed with post-traumatic stress disorder because of his past.

"These sexual predators forever scarred and changed him as a human being," Baich wrote. "Tom offers these facts not to excuse his crime, but to provide an explanation that puts his actions into context."

Prosecutors have said in court filings that West's past abuse "was irrelevant to the circumstances of the murder."

"West murdered Bortle in order to complete his burglary of Bortle's home," prosecutor Jonathan Bass wrote. "He severely beat Bortle's face with a blunt instrument, bound his hands and feet with a vacuum cleaner cord and lamp wire, and threw him in a closet, where he bled to death."

West reported having a vague memory of the crime, and said he "freaked out" when he saw Bortle appear in a hallway as he was robbing his home.

"I can't believe I did this, but I know I did," West said in March. "He did nothing to deserve this."

I don't doubt that West is guilty of the crime for which he is to die. I will therefore stand mute regarding the propriety of the death penalty in his case.

I will admit, however, that this one bothers me a bit more than usual. I'm not sure why. Perhaps it's because he seems sincerely remorseful. Perhaps it's because his crime, vile as it was, was not the worst of the worst. I can't quite put my finger on it.

It's not the first time I've had this feeling. A year ago I wrote extensively of An Unexpected Touch of Sympathy for Ronnie Lee Gardner.

I need to keep reminding myself to conserve my time and energy for those who are factually innocent.

Still ...

The Impending Exection of Kenneth Smith

Kenneth Smith sits on death row awaiting execution by the people of Ohio on 19 July 2011. He and his brother Randy Ray were convicted of killing Lewis and Ruth Ray. Both confessed to the murders. Items taken from the murder scene were found in their possession. Miscellaneous witnesses testified about the Smiths' plan to rob the Rays, and their later boasts that they had killed the Rays. There is no possibility that Kenneth Smith is factually innocent of the crime for which he is scheduled to die.

I provide the following summary of the case from Kenneth Smith's automatic pre-execution clemency hearing held on June 23, 2011. I quote from the section entitled Applicant's Statement.  I'll annotate as I see fit.

On June 7, 2011 an interview was conducted by six (6) Board Members with the applicant via videoconference from the Corrections Medical Center.

This isn't about the case, actually, but it's silly to write six (6). If the word "six" is clear, then there is no need to add the parenthetical (6). If the word six is not clear, then just use 6.

The applicant told the Board that he was truly sorry for his crimes and that he takes full responsibility for his actions that led to the deaths of Lewis and Ruth Ray. The applicant stated he is asking for clemency for his family, his kids and his church because his life has meaning to them. He is requesting clemency in the form of a commutation to life without parole. The applicant explained that he has two children, a son and a daughter, and one grandchild. He related that he has become a better person in the last 16 years, has stayed out of trouble, and has joined the Catholic Church where he is an active member.

The applicant explained that this offense occurred after a day of drinking and ingesting over 100 different pills. He was with friends and had tried to purchase marijuana but he was unable to do so. While he was at a local bar with his brother Randy Smith, the two began discussing their money problems. As they continued to drink whiskey, his brother suggested that they rob Lewis Ray in order to get money. The applicant stated he knew Lewis Ray had just acquired several saws that were being kept in his backyard under a tarp, and that instead of robbing them, they should go steal the saws so they could sell them to pay their bills.

There is evidence that Kenneth Smith carried a hammer as he approached and entered the premises of Lewis and Ruth Ray. There is also evidence that Kenneth Smith struck Lewis Ray at least 27 times with a hammer.The possession and use of this hammer indicates that Kenneth Smith is lying when he testifies that he intended only to steal some saws.

The two drove to Mr. Ray's home, but parked down the street. When they got to the house and opened the gate, a motion detector went off and alerted Mr. Ray. When Mr. Ray came to the door, applicant and Randy Smith went into the house. While the applicant and Mr. Ray were seated at the kitchen table they began to argue about a friend of the applicant who owed Mr. Ray money. The applicant stated Mr. Ray hit him with a coffee pot and the two began to struggle. The applicant then grabbed a hammer from nearby and hit Mr. Ray. The two were wrestling and the applicant stated he doesn't remember much after that.

Kenneth Smith remembers that the victim hit him with a coffee pot, but does not remember that he [Kenneth] sliced Lewis Ray's neck from ear to ear with a large knife.

Then next thing the applicant remembers is looking for Randy and finding him in the bedroom filling up a pillow case with property from the Rays.

At this point, Kenneth left the part out him instructing his brother to kill Ruth Ray, about his brother strangling her, and about him [Kenneth] kicking Ruth Ray's head in to make sure she was dead.

The two left the house and took the property to James Baker's house. James later took the property to his grandmother's house. The applicant admits he and his bother cleaned up, put the weapons, bloody clothing and victim's wallet into a bag and threw it all over a bridge.

The applicant stated that during his time in prison he has become a better person. He has maintained contact with his children through letters, but they have had limited in-person contact. He has also maintained contact with his younger siblings through letters and did write and recently received a letter from his brother Randy.

The applicant pointed out that he has blocked out a lot of the details of his offense. He admitted this is his coping mechanism as it was such a terrible crime. He also admitted that it is possible that the statements made at the time of the offense may be closer to the truth than what he remembers now. He believes he "had to block out the crime to live with myself' and he "created the story" to cope with what he had done.

I oppose the execution of any person who might be factually innocent of the crime for which they are scheduled to die. In cases where there is no chance of actual innocence, such as that of Kenneth Smith, I neither oppose not support the death penalty. Regarding the propriety of Kenneth Smith's execution, I stand mute.

Today I'm Ten Years Gone

The title of this post comes from a blog post by Byron Case. You may recognize Byron's name from the title of my first book.

I had never met or spoken with Byron when I began writing of his case. I choose to write about his trial because the case documents were available online from sites maintained by both his supporters and his detractors. I started writing with no opinion as to his guilt or innocence. I wanted the case to unfold before me as if I were a juror at his trial.

It was a naive thought.

While working on the book, I realized that a recorded phone call, instrumental to his conviction, had been seriously  mis-transcribed. The errors were always to the disadvantage of Byron. Always. I approached The Skeptical Spouse and explained my concern. She agreed that I had a moral obligation to contact his appellate attorney and reveal what I had discovered.

My impartiality had come to an abrupt end.

Byron's relationship with his attorney soon thereafter came to an end as his appeal was completed and submitted. I was too late, and I knew too little then to have any impact on that appeal. It was soon denied.

My relationship with Byron, on the other hand, was just beginning. We speak every other Sunday for 90 minutes, at prison long-distance rates. Each time, we talk about the next step in trying to free him from his wrongful conviction. We both know the odds are long, that years will pass before there is any chance at all.

Bryon has his own blog. He types his posts on his SX typewriter, which he says stands for "Sucks." He mails them to someone outside the walls, and that person sees they appear in his blog, The Pariah's Syntax.

In his bio, there on his blog, Byron describes himself as a writer, wrongfully imprisoned. The description is apt. He is indeed wrongfully imprisoned. He certainly can write. In fact, it's no longer a polite secret that The Skeptical Spouse prefers his writing to mine.

Last month, on the 11th day of June in 2011, Byron wrote of his ten year anniversary behind bars. It wasn't one of his cheerier posts. Allow me to quote just a bit of it.

Today I'm ten years gone. ... Three thousand six hundred and fifty-two days spent in the shadow of oppression, denied rudimentary comforts, and tortured by the threat that it will go on and on and on, to the end of me.

Not one of these days has passed without my thinking, This has to end. Something must make it right. I am obsessed with the idea that truth and justice will eventually be done, never mind the universe full of evidence to the contrary. ...

Everyone has a limit on what they can bear. The trick is rebounding from collapse with a sense of purpose. I like to think I keep purpose foremost on my mind. Every day I wake up dreaming of the end. Every day I wonder how I might bring it about. Every day I focus on freedom. Every day I imagine a future in which every damned day doesn't begin and end locked inside a concrete box. I'm not even angry anymore at my ex, Kelly, the pathetic character whose lies put me here -- Æsop taught us we can't begrudge the scorpion for stinging -- I just want back what was stolen. I just want the bad dream to be over. I just want to live.

I will speak with Byron again in 10 days. We will talk about our next step to reverse this wrong.

Cory Maye, In Light of New Evidence

Radley Balko has another nice article at The Huffington Post about Cory Maye's impending walk to freedom. In this one, Radley takes us inside the courtroom as the judge is finalizing the agreement between the prosecution and defense. This passage really caught my attention.

[Judge] Harrell then lays out the plea, and asks several times in several different ways if Maye understands and accepts the terms of the agreement. "Yes, sir," Maye says.

Harrell then turns to the prosecution to ask if they're still amenable to the plea. [District Attorney Hal] Kittrell then reads a statement that for Maye, his attorneys and his supporters is one of the more satisfying moments of the last 10 years. Kittrell says that the state's decision to agree to a lesser charge came not only in response to the decision from the Mississippi Supreme Court, but in light of "new evidence" that had come out in recent years.

DA Kittrell could have performed his task without adding the part about the new evidence that had come out in recent years. By adding it, he conceded that the State of Mississippi had, at a minimum, overcharged Cory Maye with capital murder. I give him credit for being an upright guy. As a society, we must be willing to admit when we have wrongfully convicted someone, and we must fight to free them. We should not fight blindly to keep the wrongfully convicted imprisoned, nor to see them executed.

DA Kittrell did not elaborate on exactly what new evidence had convinced them to free Cory Maye. His silence on the matter is both frustrating and tantalizing. It allows me to imagine that some of the original observations and insights I presented in my book played at least a small role in Cory's release. In no means do I want to detract from the real heroes in this saga. Radley Balko, Bob Evans, Abe Fortas, Ben Vernia, and numerous others working long pro bono hours deserve the real credit.

Though I sent unsolicited copies of my book to some of them, I have never spoken with any of them, or any of the family for that matter. I wrote my Cory Maye book as an outsider to the case, as I did my Willingham book. I relied extensively on information that others had uncovered, collected, and made public. Nonetheless, I believe I may have uncovered new, additional evidence of Cory Maye's innocence, as I did in Willingham's case.

From The Skeptical Juror and the Trial of Cory Maye, I offer the lead-in comment to the Notes section of my book.

Originality of This Work

Despite a heavy reliance on those who have worked on this case before me, this book is an original work completed independently of those just acknowledged. No one has yet presented the trial testimony in a format palatable to general readership. No one has deliberated the testimony by means of a fictional jury. No one has provided a comprehensive, alternate scenario for the events as portrayed by the State of Mississippi. Specifically, I am unaware that anyone else has publicly put forth the following possibilities:

That the raid may have been orchestrated primarily by Darryl Graves.

That Ron Jones met with Darryl Graves earlier in the day to discuss and plan the raid.

That Ron Jones and Darryl Graves may have together surveilled the duplex on Mary Street, and that the surveillance may have consisted of nothing more than a simple drive by.

That Darryl Graves may have remained behind at the Prentiss police department while Ron Jones led the raid, and that this behavior caused him to be unable to hear the three gunshots from within the Cory Maye apartment.

That Darrell Cooley may have never kicked or shouldered the front door to Cory Maye’s apartment.

That Ron Jones and Darryl Graves may have planned to enter through the rear door due to difficulties associated entering through the front door.

That Ron Jones may not have been wearing his bulletproof vest.

That Darrell Cooley’s testimony about removing Ron Jones’ vest may be contradicted by Ron Jones’ autopsy report.

That the clothing proffered by the State of Mississippi may improperly represent that worn by Ron Jones on the night of the shooting. More specifically that Ron Jones may not have been wearing a vest, and that had he been wearing a groin pad as shown in the proffer, he may not have suffered serious injury.

That Ron Jones may have entered the rear door of Cory Maye’s unit due to his unfamiliarity with the duplex and issues of left/right confusion.

That the confusion between Terrence Cooley and Phillip Allday at the back of the duplex may have stemmed from the realization that Ron Jones was about the enter the wrong apartment.

That Ron Jones may have used a battering ram to breach the rear door, and this use explains his failure to have his weapon drawn.

That the abrasions on Ron Jones’ fingers may have resulted from his use of the battering ram.

That the 35 degree left-to-right, front-to-rear track of the bullet within Ron Jones body may have resulted from the stance he assumed while using the battering ram.

That the fatal bullet may have traveled nearly parallel to the floor, or only slightly upward, and that it may have struck Ron Jones in the abdomen because he had not completely climbed the steps.

That Buddy McDowell may have had Dr. Hayne mark the entry wound on the finger-abrasion diagram to keep the entry-wound diagram from the jurors, and that he may have done so to keep the jurors from learning that the bullet could have changed its direction prior to entering Ron Jones’ body.

In the end, however, wrongful conviction work is not about those who fight to free the wrongfully convicted. It is about those people who we (as a society) have wrongfully put behind bars. As advocates, we frequently work from easy chairs, while sipping a cool beverage and yelling at the cat. If frustrated, we can go out and walk. When tired, we can sleep in a comfortable bed with someone we love. When nature calls we can relieve ourselves in private.

The quarter million Americans who are today wrongfully behind bars have no such simple freedoms.

A couple years ago, I worked successfully to keep our society (us) from adding one more to the quarter million. Now, every day, I work to free two whom we have already put inside. Every day I work to free Byron Case and Michael Ledford.

Maybe someday I will write something that will free one of them.

The Impending Walk To Freedom of Cory Maye

Sometimes I'm right, sometimes not so much. Regarding Cory Maye, my prediction was spot on.

I wrote of Cory Maye last year in The Skeptical Juror and The Trial of Cory Maye. I offer first the Prelude to that book, in its entirety:

“I got stopped one night. They said I had crack. I didn’t have anything. They hit me. Said they were taking me to jail. Mister Ron Jones showed up later. Asked me if I was okay, and told them not to take me in. He was a good guy. He was a good cop.” -- Resident of Prentiss, Mississippi

As are many rural areas in the country, the small town of Prentiss is suffering a surge in drug-related crime. According to Henry McCullum, Sheriff of Jefferson Davis County, drugs are now the major industry in an otherwise depressed economy. The steady supply of crack, marijuana, and meth enriches the few at the top, sustains those in the middle, and consumes those at the bottom. The illegal drug trade is our nation’s deadliest pyramid scheme.

Perhaps fifty percent of the male population in Jefferson Davis County will spend time in prison before reaching their twenty-first birthday, mostly for drug-related crimes. The homicide rate will exceed that of Detroit.

Unfortunately, the drug economy is but one constituent of the pall that hangs over the small town of Prentiss, and over the county named for the president of the Confederate States of America. The population of Prentiss is primarily white, as is the town’s five-man Police Department. The population of Jefferson Davis County is primarily black, as is the county’s five-man sheriff’s department. The issue of race is omnipresent.

Ron Jones has, for the last four years, worked to solve both the drug and race problems. He has earned the respect of those he serves and protects, regardless of skin color. Among the black community he is known as one of the good ones, perhaps the only good one. Among the drug community, he is known as the K-9 officer, the one with the drug-sniffing dog.

Now, in the waning hours of this first day after Christmas, Ron Jones is prepared to lead his motley team of officers into a darkened duplex to serve yet another search warrant for drugs. He is there based on the word of the town bigot that a large quantity of drugs is stashed inside.

As the rear door is breached, Ron is the first to enter. His announcement that he is a police officer, there to execute a search warrant, is interrupted by gunfire. Ron is struck in the abdomen, just below his vest.

“I’m hit,” he says, making his way back down the steps. The bullet has punctured his aorta. He will bleed to death within minutes.  He falls to his knees.

“Get me to the hospital, I’ve been hit.” He collapses to the ground.

“Good Lord, help.”

From the Postlude, I offered the following summary.

The night was cold and clear and calm. Conditions were ideal for sound transmission over a long distance. Had you been standing on the court house steps that night, when Cory Maye shot and killed Ron Jones, you might have been able to hear the gunshots from a mile distant. If you were inside the police station, you would have instead learned of the shooting over the police radio.

If you had rushed to the duplex, you could have arrived within minutes. Perhaps there, as you stood facing the yellow duplex on Mary Street, you would have seen Darrell Cooley and Stephen Jones struggling to lift the limp and seemingly lifeless body of Ron Jones into the back seat of a patrol car. Perhaps you would have seen Darryl Graves appear from somewhere to help them finish their desperate task. You might have then watched to patrol car race away, lights flashing, siren wailing, as if Ron's life depended on getting to the hospital quickly.

If you had walked to the back of the duplex and stood on the steps as Ron Jones had just minutes earlier, you might have heard an infant girl crying and screaming. At the instruction of the local law enforcement, she would remain unattended and uncomforted until her mother returned home from her night's work at the chicken processing plant.

Standing there, you might have also heard a scared and confused voice apologizing repeatedly, claiming he didn't know it was the police breaking through his door.

And had you laid there on the floor, in place of that scared and confused young man, you might have felt the boots of police officers who would vent their anger and their shame against a handcuffed citizen in their care.

The jury convicted Cory Maye of capital murder. The Court sentenced him to death. Now he will soon walk free. You could almost write today's headlines by quoting from the end of the book's Postlude.

Perhaps next year, a new trial for Cory Maye will take place in the Jefferson Davis County Courthouse on Columbia Avenue, right in the heart of Prentiss. If so, the local populace will divide again along racial lines, as they always have. The prosecution will attempt to exclude blacks from the jury and the defense will try to stop them from doing so. Everyone will behave outwardly, at least, as if race isn't an issue. In some regards, things will be as they have always been in Prentiss.

In the new trial, however, Cory Maye will be represented by a well-funded, well-prepared team of talented attorneys. The State of Mississippi, on the other hand, will attempt to hold together a bruised and battered prosecution theory that has been unraveling ever since Judge Eubanks passed sentence.

This time, Cory Maye's defense team will take the offense. The State of Mississippi will mount a vigorous fighting retreat. It's not clear either side will be able to secure a unanimous vote from the divided citizenry of Jefferson Davis County, Mississippi.

The two factions may instead elect to call a truce under terms that allow each side to claim victory. I predict the State of Mississippi will offer Cory Maye a sentence of time served in exchange for a guilty pleas to the crime of manslaughter. I predict Cory Maye will accept, and will walk free.

And I predict, sadly, that not much else will change in Prentiss, or Jefferson Davis County, or Mississippi.

I believe I may have, in my book, added some insight previously missed. I did provide unrequested copies to the legal firm representing Cory Maye. I am definitely not, however, responsible for Cory Maye's freedom. That credit falls to many other people, some of whom I mentioned in the Acknowledgements section of my book. I'll quote that here as well.

I learned of the case of Cory Maye from the writing of Radley Balko. Balko is an award-winning investigative journalist who writes of criminal justice and civil liberties issues. He is, as of this writing, a senior editor for Reason magazine. [He now writes for Huffington Post.] He writes routinely for Reason and his own blog, The Agitator. His work has been cited by the U.S. Supreme Court and excerpted by the Mississippi State Supreme Court. ... No one deserves more credit than Radley Balko for bringing the case of Cory Maye to public attention.

I acknowledge as well the law firm of Covington and Burling for their pro bono effort to secure an acquittal for Cory Maye. Within that firm, I note specifically  the work of Abe Pafford and Ben Vernia. Pafford learned of the Cory Maye case via the writing of Radley Balko and convinced his firm to assist in the case, despite his junior status. Ben Vernia argued the venue issue before the Mississippi Court of Appeals. The Court granted a new trial based on that issue and that issue alone. Vernia continues to represent Cory Maye even after forming the Vernia Law Firm, also of Washington D.C.

I acknowledge the work of the folks at Reason.com for their support of Radley Balko as he investigated the case of Cory Maye. I acknowlege them as well for their role in the development of the online documentary Mississippi Drug War Blues that so clearly presents the case of Cory Maye.

Also worthy of substantial credit is Bob Evans, Cory Maye's original appellate attorney. I mentioned him briefly but with unvarnished respect in the Postlude.

After the trial, Cory Maye's family fired Rhonda Cooper. Bob Evans, the original public defender in the case, took over as Maye's appellate counsel. The Prentiss Board of Alderman fired Evans for doing do. Bob Evans nonetheless continued to represent Cory Maye without hesitation or regret.

For a more conventional, after the fact discussion of Cory Maye's impending walk to freedom, see here, here, or here.