Brett Hartman Gets Stay of Execution

From a joint statement by Attorney General Cordray and Prosecutor Sherri Bevan Walsh:

We are in the process of reviewing the decision of the Sixth Circuit Court of Appeals. A stay has been temporarily granted by the Sixth Circuit and will remain in effect until the U.S. Supreme Court issues its opinion in District Attorney's Office for the Third Judicial District v. Osborne. Based upon today's order, the execution of Brett Hartman will not go forward on Tuesday, April 7.

The SCOTUSWiki page for the Osborne case is here. The issue is whether a defendant has a due process right to examine the state's evidence using updated technology post-conviction. There's a secondary issue the Court may reach which is -- sit down for this -- whether a person has a due process right to have a conviction overturned based on being actually innocent without any allegation of trial error. I'll try to come back to that one in a later post, but yes it is as jacked up as it sounds.

Hartman has been arguing for the right to retest evidence from the scene. On appeal to the Ohio Supreme Court he argued for limited testing basically to rule out an inconsistency between his story and the physical evidence. The claimed right to retest as described by the paper is more extensive -- basically retesting everything even though he pretty much admitted that he was in the victim's apartment so that physical evidence putting him there isn't a big surprise. The Supreme Court opinion, by the way, is available on this Brett Hartman Is Innocent site. As the opinion demonstrates, the evidence against him is actually quite overwhelming.

I don't know where the Supreme Court will come out on Osborne, so it's dicey to say when Hartman's planned execution will get back on track. By coincidence, this makes two consecutive Summit County defendants who got a stay pending a Supreme Court decision. The first, Richard Wade Cooey, has subsequently been put to death.

Why the Y Bridge?

Since Team Recall has put the decision to spend stimulus money on fencing around the Y Bridge, it's worth contemplating the decision to go with that particular project. First off, Grumpy Abe does some well taken grumping about the ABJ's coverage last Friday (toward the bottom of his post.) But regardless of whether the paper laid a sufficient foundation for "some call it wasteful" then, it's certainly the case that people are doing so now.

The comments in Ohio dot com track the usual criticisms of suicide fencing on bridges -- that it's not worth the money, that people would just find another way to do the deed. (Of course, this being the ohiodotcom comments section, they go way beyond that to the "just let them kill themselves" "why are we coddling these losers" and "Mayor Don's just doing this to keep his job." Vernon Dursley thinks these people need to find their souls. But then no one accused Plusquellec of driving anyone to jump off the bridge so probably we should just thank God for tender mercies.)

I'm all for rigorous cost-benefit analysis of public safety measures which the discussion of the Y Bridge is lacking. That is to say, can we spend $ 1.6 million where it would prevent more than (at most) one or two deaths a year. But contrary to the gripes of the comment trolls, there is evidence to suggest that fencing highly visible suicide bridges does prevent suicide. Studies (summarized here) indicate that fencing does stop suicides on bridges, without leading to increased suicides on other sites or by other means. Other studies indicate that would-be suicides who are "rescued" rarely continue to attempt.

Then there is the copycat effect. Suicide researchers worry that high-profile suicides that get reported in the media prompt rashes of other attempts. Someone doing the big splat off the Y Bridge will inevitably get media attention that they wouldn't by downing a pile of pills or monoxiding their garage.

Finally, preventing public suicide from a place like a well-travelled bridge also prevents untold psychological trauma on potential witnesses -- either of the leap above or the crater below.

Again, this is not to say that preventing suicides on the Y Bridge is the best use of the money. And running under all of this are questions about how the project fits with the stimulus program. It may well be that fencing the bridge is a particularly "shovel-ready" project.

Regardless, the evidence indicates that fencing the bridge will indeed save lives. We shouldn't pretend it's a trivial waste just because it fits with someone's favored political narrative.

For my three or four readers who are also Whedonverse fans, sad news. Angel fan favorite Andy Hallett who starred as Lorne, The Little Demon Who Cried Apocalypse, has died at 33. Details on Eonline. (H/t Whedonesque) For those of you who understand, a tribute:



Yes, I believe I would choose that shade of green.

Push Polling for the Akron Mayor Recall: Field Report and Call for Comments

Commenter Eric announced that he got what sounded like a push poll call supporting the mayor recall campaign to which Warner Mendenhall is so generously donating his time. I got the call today which, along with some research on the internets, raises questions.

The call is entirely robo. Caller ID says it is "Voter Alerts," originating from area code 402 (eastern Nebraska, including Omaha). The call starts with a doth-protest intro claiming it is a poll like those seen on CNN and ABC News. Never heard anything like it. You are prompted to press one if you want to take the poll.

Next comes a standard poll question: "If the recall vote were held tomorrow, would you vote to recall the mayor?" One for "no," two for "yes." I pressed one.

Next you get what appears to be a rotating series of push-poll slams. Eric says he got one blaming the Mayor for the city's economic problems and claiming the recall election will cost only a dollar per citizen. A commenter on Ohio dot com says the call blamed gang activity on the Mayor.

Mine was approximately as follows: "If you heard that tax money will be spent installing fencing on the Y bridge while high-priority projects go untouched, would that change your vote?" Um, no. And it doesn't change my opinion of the recall effort so much as deepen my pre-existing contempt.

Once again I pick 1 over 2. The call concludes by cheerily assuring me that I've participated in an "independent poll." Whatever else it is, it's not a poll. The "poll" offers one follow up question pushing in one direction with many variables and dubious accuracy. No pollster worth a mention on CNN would construct a question that shoddy.

I wish I had kept a note on the robo-call service Team Recall used for Warner's robo-calls announcing the organizing meetings. It was something generically like "Voter Alerts." The name itself defies effective Googling, though I did find a complaint on a Do Not Call message board suggesting that some dirty trickster nuisance calls aimed against the Obama campaign bore the same name (scroll to the bottom of the page).

At some point we will get expense reports from the recall campaign and can check if they have directly paid for the push poll. In the meantime, it's clear that someone acting in the the name of cleaning up the city is engaging in some grungy tactics.

UPDATES: First off, I originally intended to make a call for reports from readers, which a couple regular readers have been kind enough to supply already. It looks like the economy and the number of "active gang members" were the two in circulation prior to the Y Bridge fencing announcement that hit the papers Friday.

One commenter says that he's received more than one of these. If we needed proof that Team Recall is push polling, we need no more than multiple "poll" calls to the same number.

Also David from Buckeye State asks aloud if anyone has audio. Good question. If they try to hit me again I'll work it. The best bet if you see Voter Alerts on the Caller ID is to let the machine pick up, then answer. If you get such a thing in a digital file, I'd like to hear it too.

Weekend Randomness

So how it's been going down is like this. I get enough school and writing work out of the way to back to the blog, put up a couple posts of varying quality and things start to hum. Then (this winter anyway) I get sick. For whatever reason, I just don't have it in me to blog sick.

So now it's get-back-in-the-game time. So here it is, your moment of ten:

1. John Coltrane – “Naima”
2. Modest Mouse – “The World at Large”
3. Pixies – “UMass”
   
4. New Pornographers – “All the Things That Go to Make Heaven and Earth”
5. Pat Metheny – “Distance”
6. Gillian Welch – “My First Lover”
7. Lucinda Williams – “Jackson”
8. Ramones – “Blitzkrieg Bop”
9. Elvis Costello – “Alison”
10. David Ball – “Blowin’ Smoke”

Between Lucinda's love-weary voice and the mournful dobro accompaniment and lying-to-myself lyric, "Jackson" is one of the most wonderfully tragically sad songs ever recorded. Check it out.

Anti-Recall Site Launches.

Citizens for Akron, the official political committee countering Warner Mendenhall's recall effort err the entirely spontaneous grassroots recall effort that Warner Mendenhall is selflessly donating his time to launched their website today. They are still building it as it launches, so if you get a "site offline" message, just hit refresh.

From an online tech perspective, they are doing this thing mostly right. The site launch was announced via Facebook message. On launch the site includes a support form that allows users to sign up for emails or texts. There's also the now de riguer feature that allows people to create "accounts" though at this point it's unclear what one would do with an account. (Though to their credit, they haven't tagged it "MyCitizensforAkron.")

And of course lots of info. At this point the site content is tilted toward what a cool guy Plusquellec is and arguments that a recall at this stage is a dumb idea. The tough choice for the organizers will be whether to counter the accusations leveled by the recall folks. The site promises itself to be a work in progress and so will be worth watching.

Warner Mendenhall Grasps at Straws

Akron News Now has begun what they promise will be a continuing series on the back-and-forth between Warner Mendenhall and, apparently, anyone who works for the city of Akron but doesn't carry a union card. The first report concerns an email statement Mendenhall sent out about his lawsuit against the city's speed zone cameras:

The fight over Akron's method of catching speeders through the use of cameras attached to some traffic lights continues, but now it's being woven into the fight to oust Akron's mayor from office. The case is now pending in the 6th Circuit Court Of Appeals, where judges routinely mandate conference calls to determine if cases will move forward. That happened in the traffic cam case as well, but Attorney Warner Mendenhall says the city wasted time and money by not having Akron City Council present for the talks.

"It's mandatory for the decision makers to be present when we're in a mediation and the city did not meet the requirements of that rule," said Mendenhall.

* * *

Mendenhall's allegation, in an email sent to the media, that it was a "waste of thousands of dollars worth of attorney time" is raised because he says that the session could not possibly be productive if city council - the client - wasn't present to consider any offers that might be made.

This is all curious to me because I've been on a Sixth Circuit mediation call without my client and my opposing counsel -- in general even more of a self righteous hysteric than Mendenhall -- didn't say boo about it.

Let's break all this down, one issue at a time. First off, the Sixth Circuit's mediation rule:

The court may direct the attorneys - and, when appropriate, the parties - to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceeding or implementing any settlement agreement.

So, presence isn't required unless specifically ordered by the court. The attorneys do need to know what settlement authority they have. Mendenhall claims in the audio interview linked on ANN that the city attorneys didn't do that, citing as evidence that they didn't tell Council about the conference call.

That as may be, but attorneys serving public boards don't tell clients about every step in litigation, just the ones they need to know about. In a lawsuit that is purely about the legality of city actions (which is to say, not about money damages) the chances of a settlement are remote and the attorney and the clien board generally understand that their posture is not to settle but to get a legal opinion from the court and go forward from there.

Which brings up the second issue: The settlement that Mendenhall is talking about appears to be entirely hypothetical. Throughout the interview he never mentions making a settlement offer. It seems unlikely that, having gone through the trial court proceedings, the parties could suddenly come up with some consent decree that would make the litigation go away. The litigation exists to get a court opinion.

Finally, there's the matter of "thousands of dollars worth of attorney time" he alleges were wasted. Thousands of dollars? Not on the city side. I'm confident that city attorneys aren't pulling down that kind of coin. As for Mendenhall, if he spent more than an hour total on this call, he's a fool. The call takes maybe fifteen minutes and that's if the attorneys are particularly chatty. Prep is no more than a review of the file. And I'm quite confident that an hour of Mr. Mendenhall's time won't result in a four figure bill.

Once again, Warner Mendenhall could be an effective critic of the administration. Instead he stamps his feet and carries on about every little thing, making even his decent points look silly.

Disclosure One: The city attorney quoted in the story is a family friend, and Warner Mendenhall . . . isn't.

Disclosure Two: I agree that speed cameras need to comport with basic requirements of due process. That said, last Thursday some idiot flew past my daughter's school during pick up at what had to be forty, minimum. So I'm OK with the city finding innovative ways to enforce speed zones around schools.

Pho's Akron Pages: Insufficiently Subversive

A friend returned from a business trip to China with a gift: a screen shot my blogger from inside the PRC:
He says that my blog is entirely accessible on the state-sponsored internet there. Kinda cool to think of people (OK, a white guy I've known twenty years) reading the blog in China. On the other hand it means that my blog hasn't done anything to alert the Chinese censors, much less piss them off.

Need to work on that.

State Recoverydotcom Sites: How Blue They Are.

Researching yesterday's post about state recoverydotgov sites, I was curious about whether there is any pattern to party affiliation and putting up such a site. Since SocialGovernment proprietor Alexander Muir has already done a bunch of the legwork on the state sites, I asked him about it in his comments section. His project isn't about party quibbles so he politely declined to name the trend but did offer some useful resources.

Namely two maps. One from Recoverydotgov's national office showing which states have their own websites:


And one showing party affiliations of governors:

And he invited me to reach my own conclusions. Which would be that of the 16 states that have put up websites, only one - Missouri - none has a Republican governor.*

Republicans opposing the stimulus package was a principled stand. With all the cleavages on social issues and foreign policy, the one constant in Republican thought are the convictions that government spending is bad and tax cuts are the only effective economic strategy. I didn't say it was a sensible stand, but it is a principled one.

But while voting against stimulus may have been principled, petty acts of defiance to undermine it are not. The Obama administration has included transparency provisions in the stimulus legislation and is encouraging states to use tools on the internet to effectuate that transparency. Republican governors may think spending-based stimulus is a bad idea, but unless they are Limbaugh pods, they should want the money to be spent on actual things, rather than wasted. Democratic governors are trying to use the internet to that end; Republicans by and large are not.

And it's not just the admittedly chimeric goals of transparency and public participation they may be thwarting. There's also work to be done to protect their citizens. For example, Ohio Attorney General Richard Cordray has launched a public information campaign warning homeowners to beware of scam artists pretending to be part of another (Republican hated) Obama initiative, the housing market stabilization plan. It will be interesting to see how many Republican states fail to take that common-sense step.

Republican state officials who pretend the Obama initiatives have nothing to do with them don't simply serve the Limbaugh "hope he fails" agenda, they also misserve their constituents.

*Edited thanks to Anthony in comments.

Anti-Recall Group Hitting the Internets

Citizens for Akron, the political committee that will oppose the recall effort that is now gathering signatures, has established at least the beginnings of a web presence. A website is currently sporting a placeholder page admonishing visitors "Don't sign it" with a promise of more to come and the official disclosure tag.

A less official Facebook group has now launched -- within the last day or so I would guess from the growth rate. It has gone from 16 members to over seventy just today. Unlike the website, it doesn't have the disclosure/treasurer notice and in fact Jeff Fusco is no where to be seen.

Little to no info on either so far, but the race is just beginning.

Watching Ohio's Recovery.Gov

Like a number of states, Ohio has set up a state version of the Obama administration's Recovery.gov, offer the promise of Web 2.o interactivity with the stimulus bill. The website/blog SocialGovernment offers an assessment of various state efforts, opining that Illinois has the best. Ohio's isn't metnioned (Ohio has yet to merit a mention on SocGov, generally btw), but Ohio's appears close to on par with the apparently gold standard Illinois site.

The reviewer/blogger Alexander Muir on SocGov graded Illinois highly on "interactivity" -- the website tools that allow users to communicate with the government recovery workers. Ohio has two of the same tools as Illinois -- a form for submitting proposals and another for submitting questions generally. I'd give Ohio extra points for including a feedback/question form on the FAQ page with the promise to post answers to questions submitted. An FAQ based on Questions that are actually Asked Frequently is in itself a welcome throwback.

As Muir notes, the real test will be online transparency as projects are selected and shovels start digging. I'm particularly interested in seeing how much of the decision-making process we will see online. And as is true with pretty much any website, it looks good when shiny and new, but the real test is whether the web team can keep it updated and fresh.

H/t to Governing Mags' 13th Floor blog.

My Latest Gig

Finally I can announce that as of last Wednesday I will have a biweekly column in the Akron Legal News. This has been in the works for some time, then the launch caught me napping. Anyway, I have a pretty free hand to write about law-related topics that interest me. The masthead for the column appears a right.

Unfortunately, the paper doesn't currently post online, so no linkage. Also unfortunately, to make this happen I am selling my pieces outright to the paper, so I can't post them here at the risk of plagiarizing myself. Probably I'll at least let you know what I've written about and maybe include a graf or two. Last week's piece was an intro to me and what I will be doing with the column -- nothing you haven't heard already.

The whole writing thing has been stalled lately for obvious reasons. Hopefully this will keep me in the game for a while until the economy eases.