Binary Justice

Wrongful conviction work is a binary endeavor. Either the person wrongfully convicted is freed or he is not. It's of little consolation to say "We'll, we gave it a good shot."

Any success story is a result of years of enormous effort by dedicated, talented, selfless people almost always working pro bono. And should they ever succeed, the State is apt to say "It just proves the system works."

I have enormous respect for those few people who have ever managed to help free someone wrongfully convicted. I have enormous respect for those many people who helped free Cory Maye. Cory Maye has walked free, as I predicted he would.

Radley Balko has pictures at his site. You could do a lot worse than spend some time checking out his blog.

The Impending Execution of Andrew Grant DeYoung

Andrew Grant DeYoung sits on death row awaiting execution on 20 July by the people of Georgia. He was convicted of murdering his family. I offer the following case summary from the 11th Circuit Court decsion in DeYoung v. Schofield.

On June 14, 1993, DeYoung murdered his parents, Kathryn and Gary DeYoung, and his fourteen-year-old sister Sarah DeYoung. DeYoung planned the murders with David Hagerty. DeYoung told Hagerty he wanted to kill his family to get money to start a business. 

DeYoung and Hagerty planned to kill DeYoung’s parents, his sister Sarah, and his sixteen-year-old brother Nathan by slashing their throats and then to set fire to the family’s home to cover up the evidence. On the night of the murders, DeYoung went upstairs, where his parents and sister were sleeping, and sent Hagerty to Nathan’s downstairs bedroom. 

DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As DeYoung struggled with his father, DeYoung’s sister Sarah came to the doorway of their parents’ bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan. 

Nathan heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window ... 

Instead of setting the house on fire, DeYoung and Hagerty searched for Nathan. Meanwhile, Nathan fled to his neighbor Keith Harmon’s home. Nathan returned minutes later to the DeYoung house with Harmon, who brought a gun. Harmon saw DeYoung in the driveway and called out to him, but DeYoung fled. Harmon had been the DeYoungs’ neighbor for about five years at the time of the murders. Harmon knew DeYoung and his siblings, and Nathan was a close friend of Harmon’s stepson. 

Police arrived and found Gary, Kathryn, and Sarah DeYoung’s bodies. Sarah had scores of stab, cutting, and slash wounds on her neck, back, chest, arms, and hands. The wounds to the back of Sarah’s neck overlapped so much it was impossible to count them. There were at least seventeen wounds on Sarah’s back, several of which had prominent hilt marks. The blood spatter patterns indicated Sarah was on the ground while most injuries were inflicted. 

Kathryn DeYoung, like Sarah, had many stab wounds and cuts on her neck, back, and torso. Among them were a seven-inch-long cutting wound on her thigh and a five-inch-deep stab wound on her back that penetrated into her chest and completely severed her aorta. One wound in her neck cut all the way through her trachea and also severed her left carotid artery and left external jugular vein. Kathryn had wounds going across her chest and wrapping around her right side, consistent with being attacked while lying down and rolling away from her attacker. 

Gary DeYoung suffered numerous wounds to his face and upper torso. He had a cut over his right eyebrow ridge, a deep stab wound in front of his right ear that fractured his jaw, stab wounds in his upper arm and neck, and numerous stab wounds to his chest. Gary also had two wounds on his right thigh, a six-inch-deep wound on his back, and a large chopping-type wound on his right biceps. 

Several hours after the murders, DeYoung returned home. Police noticed “scratches and abrasions present on his face, neck, hands and right arm.” At the police station, DeYoung gave a statement, later played at his trial, in which he told police he had spent the night at Hagerty’s house and denied involvement in the murders. Id. DeYoung said he went for a two-hour walk in the middle of the night and got the injuries when he fell down. 

The police interviewed Hagerty, who admitted participating in the crimes. Hagerty led police to evidence, including a footlocker and box he had helped DeYoung hide three days earlier, a knife consistent with the victims’ wounds, and a hand-drawn map showing the route to the DeYoungs’ home. The footlocker contained, among other things, personal notebooks written in DeYoung’s handwriting, articles or books with DeYoung’s name on them, and the hand-drawn map. The box contained materials for making pipe bombs. 

DeYoung and Hagerty were arrested and charged with the three murders. Hagerty pled guilty and received three concurrent life sentences. DeYoung pled not guilty.

DeYoung's defense seemed to be based on diminished capacity rather than actual innocence. I find no evidence that Andrew Grant DeYoung did not commit the crimes for which he is scheduled to die. I find no interest group arguing that DeYoung may be factually innocent. I find no report that even Andrew Grant DeYoung himself claims not to have killed his family.

I oppose the execution of people who might be factually guilty of the crime for which they are to die. If it is absolutely clear the person is factually guilty, I neither support nor oppose the death sentence. In those cases, I stand mute.

In the case of Andrew Grant DeYoung of Georgia, I stand mute.

ADDENDUM: The court has postponed DeYoung's execution by one day, until 21 July.

ERRATUM: As per the comment to this post, I have corrected DeYoung's name from Grant DeYoung in my last three paragraphs to Andrew Grant DeYoung.

A Million Bees Stinging My Face

Mark Stroman sits on death row awaiting execution by the people of Texas. There is no doubt he is guilty of cold blooded, wanton murder. He admits to his crimes. I will therefore not oppose his execution. Nor will I support it. I will stand mute.

Frequently when I describe the details of the crime, I rely on an opinion from an appellate court. Here, in this case, I rely entirely on the words of Raisuddin Bhuiuian, a great American.

My name is Rais. I was born in Bangladesh. I came to the United States to fulfill my lifelong dream to pursue higher education and to experience the American Dream. But within a short time my life was completely changed due to one single incident. The lesson I learned from that incident transformed my life and motivated me to educate people against hate crime.

It was Friday 12:30pm, September 21, 2001. A man with a gun entered the gas station where I was working. He asked me -

“Where are you from?"

The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunglasses and a baseball cap, and aimed the gun directly at my face as I stood over the gas station register. “Excuse me?” I asked. As soon as I spoke I felt the sensation of a million bees stinging my face, and then heard an explosion. Images of my mother, my father, my siblings and my fiancé appeared before my eyes, and then, a graveyard. I didn’t know if I were still alive. I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, “Mom!” The gunman was still standing there. I thought, “If I don’t pretend I’m dead, he’ll shoot me again.”

This was not a robbery but it was a hate crime. It was just after the tragedy of the World Trade Center on September 11th. The man with the gun was Mark Stroman, a white supremacist, and he was in the middle of a shooting rampage to express his anger towards those of Middle Eastern descent. He shot and killed Waqar Hasan, a man from Pakistan, on September 15; he shot me, a man from Bangladesh, on September 21, 2001, and shot and killed Vasudev Patel, a man from India, on October 4. All the victims were shot while working at gas stations and convenience stores in Dallas.

This incident changed my life, and has helped me to realize that hate doesn’t bring a peaceful solution to any situation. Hate only brings fear, misery, resentment and disaster into human lives. It creates obstacles to healthy human growth, which, in turn, diminishes society as a whole. Mark Stroman’s hate only brought more pain and suffering to an already mourning nation.

For his actions, he was found guilty on April 4, 2002 in the death of Mr. Patel, with a scheduled execution date of July 20th, 2011.

I am requesting that Mark Stroman’s death penalty be commuted to life in prison with no parole. There are three reasons I feel this way. The first is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The second reason is because of what I believe as a Muslim, which is that human lives are precious and that no one has the right to take another human’s life. In my faith, forgiveness is the best policy and Islam doesn’t allow for hate and killing. And, finally, I seek solace for the wives and children of Mr. Hasan and Mr. Patel, who are also victims in this tragedy. Executing Stroman is not what they want, either. They have already suffered so much; it will only cause more suffering if he is executed.

The other victims in this tragedy are Mark Stroman’s children. Not only have the Hasan and Patel children lost their fathers, but, if executed, Stroman’s children will lose their father also. I forgave Mark Stroman many years ago. In fact, I have never hated him. I never hated America for what happened to me. I believe he was ignorant, and not capable of distinguishing between right and wrong, otherwise he wouldn’t have done what he did. I think about him waiting in a cell to be executed, and can feel the pain of how ignorance can be driven by such hate, and cause somebody like him to murder two completely innocent people.

I believe that by sparing his life, we will give Mr. Stroman a chance to realize, through time and maturity, that hate doesn’t bring a peaceful solution to any situation. Perhaps, if given the opportunity, it might generate such a positive influence on him that he may want to become a spokesperson against hate crime.

I strongly believe that there are important reasons why God spared my life. I feel driven to bring an awareness of hate crimes to others. Hate crimes of ALL types. To educate those who may be as ignorant as Mark Stroman, and raise a consciousness among people that hating others can never bring lasting peace and satisfaction.

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.