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 Heard
Enough Yet?
First Published: Nov 2004
Last Update:
Nov 2004
Author: David Seth Michaels
Read enough depressed, disappointed columns about the election (http://www.buzzflash.com/contributors/04/11/con04489.html
)? Read enough responses to those columns to try to find a silver lining
to the results (
http://www.michaelmoore.com/ )? Looked at the map of the United States of
Canada (
http://www.kenlayne.com/2004/11/jesusland.html)? Read about stealing the
election (http://www.tompaine.com/articles/kerry_won_.php
)? The Internet is marvelous: it allows us completely to exhaust ourselves in
discursive thinking. But it doesn't lead us directly to making new, strategic
choices about how to end state killing. It goes round and round and round. If
anything, it seems to direct our focus to all of the leaks and failures and
disappointments in our previous approaches. Now's not the time to give up in
despair. It's time to stop, notice the breath, get focused, and then in
determination and peace to get up and get moving.
With Justice Rehnquist ill and not sitting in Court this week, there's a real
possiblity that Bush will pick 3 or 4 Supreme Court justices in the next 4
years. The democrats have enough votes to fillibuster successfully. The bigger
question is whether nominations of Justices like Bush's favorites, Scalia and
Thomas, will be successfully fought. Got a lot of faith in congressional
democrats? I don't. Faith in Harry Reed? Are you kidding? Arlen Spector? Not
since Watergate. Let's just assume that the Supreme Court will be more pro
death penalty when all is said and done. And that the jurisprudence of getting
death penalty appeals heard on their Constitutional merits will be all the
more convoluted and unapproachable.
Thanks to Karl Keys for the following quote about this. Here's Judge Merrit of
the 6th Circuit Court of Appeals concurring in Carpenter v. Edwards, 2004 U.S.
App. LEXIS 22951 (6th Cir 10/28/2004) and discussing the current obstacles to
review of death penalty cases on their merits:
In this case, Justices Breyer and Stevens concurred in the result reached by
the majority of the Court but pointed out that "the complexity of this Court's
habeas corpus jurisprudence" means that "few lawyers, let alone unrepresented
state prisoners, will readily understand it." Edwards v. Carpenter, 529 US.
446, 454, 146 L. Ed. 2d 518, 120 S. Ct. 1587 (2000). They were referring to
the forfeiture or "door-closing" rules erected by Congress and the Court.
Those rules have become so complex that, as in the present case, it often
takes years of litigation and long days of research, writing and argumentation
by lawyers and judges before a case concludes. Once we cut through the layers
of forfeiture rules (exhaustion of remedies, procedural default, cause [*20]
and prejudice, ineffective assistance of counsel, adequate state ground,
etc.), the case on the merits of the constitutional question usually becomes
fairly simple. That is the case here. The bottom line is that the prisoner
entered a guilty plea in order to avoid the death penalty, and the state
prosecutor himself rather than sworn witnesses stated a factual basis for the
entry of the plea. There is no federal constitutional prohibition forbidding a
state trial court from establishing a factual basis in this way. This case
would have been over years ago if we could have simply gotten to this question
in the beginning. As Justices Breyer and Stevens observed, the forfeiture
rules are no longer "comprehensible" but rather have become "difficult
puzzles," id. at 458, that foreclose a rational and efficient procedure for
deciding habeas cases. Time-wise and justice-wise, we would be much better off
if we could just get to the merits, as in the days of Fay v. Noia, 372 U.S.
391 at 438, and Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745
(1963). (Emphasis added).
What this means in the simplest terms is that when 4 more years of judicial
appointments have been made by Bush and the Republican Congress, the Supreme
Court, the Courts of Appeals, and the US District Courts are all going to be
even more hostile to review of death penalty judgments. Does that mean we
should give up on the courts? Of course not. As the Dalai Lama has said,
"Never give up. No matter what is going on never give up. Develop the heart.
To much energy in your country is spent in developing the mind instead of the
heart. Develop the heart." What this means in practical terms is that we need
to understand that the initial battles, in the trial courts and on direct
appeal to the State Supreme Courts, are going to become even more and
more important, and that more emphasis has to be put on those battles. Each
judicial step after the direct appeal to the highest court in a state is going
to be more and more and more fruitless. More and more difficult. Less and less
likely to result in a new trial or a reduced sentence. So now, instead of
putting emphasis on the final appeals, we need to look at how we can put
emphasis on the trial and the intial appeals to state courts. We need to look
hard at preservation of claims at trial and at existing state grounds for
reversal of convictions. We need to back up or take over from beleaguered
state trial counsel. If we're going to fight in the courts, and I think we
have to, we need to fight harder and more effectively in state courts. Hoping
the Supreme Court or the US Courts of Appeals will now be overturning many
death penalty sentences is just a recipe for death.
New York and New Jersey are inspirations in this area. New York has no death
penalty because the highest Court has stricken down the statute and the
legislature feels the heat from the populace not to "fix" the problem too
quickly. New Jersey effectively has a moratorium because of the state courts
and the need to conduct an appropriate administrative proceeding before an
execution can be held.
We also need to turn up the grass roots activism so that there is a change of
view in jurors and in the electorate. As a former community organizer, I know
that this can happen over time. We need to continue to talk about this issue
and we need to spread out the number of people we reach. We need each of us to
do that, patiently, resolutely, and continually. I know from personal
experience in Alabama and Mississippi that it's possible to change peoples'
minds about this kind of issue. What it takes is willingness on our parts to
work for that. In the words of Hamlet, "The willingness is all."
It's not obvious to me what else to do to bring about abolition of state
killing. So, as I frequently do, I ask each of you to pause your busy life for
just a moment or two, focus briefly on your breath, and see what thoughts
arise as to what you can do to help in this circumstance. It might be that you
say a prayer, or make a donation to an abolition organization ( www.cuadp.org),
or forward this email, or call friends, or talk to your family and co-workers.
It might be that you offer incense or a prayer or light a candle. It might be
that you write a letter to the editor or an Op-Ed piece. You might speak up in
your church, synagogue, mosque or temple. You might have some other inspired
idea. You might stand in a vigil. You might register to vote and then actually
vote. All of your actions, all of your thoughts move us toward ending state
killing.
I'm sure that it's your actions and thoughts and prayers that have helped to
find ways to spare lives and to discourage prosecutors from seeking death. You
know how to continue to do this. As I've said numerous times before, it is
your attention, your prayers, your thoughts, your letters and discussions,
your affirmation of the value of all lives that saves lives. It is the
personal things you have chosen to do that saves these lives: I trust that it
is your creating a culture that feels the preciousness of all lives that will
spare all of the lives on death row and bring an end to state killing in part
by bringing feelings of the value of all lives to jurors.
May all beings refrain from killing and prevent others from killing. May all
beings affirm the preciousness of every life. May all beings have happiness
and the causes of happiness. May all beings be free from suffering and the
causes of suffering. May all beings be free from hatred and attachment. May
all beings have equanimity, so that they have neither too much grasping nor
too much aversion, so that they may dwell in the sacred space of each moment.
May all beings have comfort, healing, health, abundant love, prosperity, joy
and delight. May all beings have peace. May all beings awaken. May all beings
realize their enlightenment. May all beings have the spiritual bliss that is
beyond suffering and is untouched by sorrow. Om gate gate paragate parasamgate
bodhi svaha. Vamos, vamos, vamos mas alla, vamos a la otra orilla, !Illuminacion!
!Gozo! peace, david
About the Author:
David Seth Michaels
PO Box 96
1028 Route 203 at Beale Road
Spencertown, New York 12165
Tel.: (518) 392-9150
Fax: (518) 392-9130
Web: www.davidseth.com
e: davidseth@davidseth.com
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