Thursday, June 25, 2015

A Tale of Two Pities

The Supreme Court is wending its way to the end of its current Term. A season of furious and prodigious writing by the Justices is closing out a longer campaign of furious writing and oral argument by advocates. In my career, I have been closely involved in presenting cases to the Supreme Court on behalf of numerous clients, and have assisted other attorneys in their cases before the Court as well. There is no aspect of the practice of law in which the legal air is more rarefied.

Cases before the Court cover the spectrum of human interactions.

Decisions in some cases come down to disputes over the technical language of arcane, sometimes ancient, statutes. Such cases often calling for consideration of highly technical, perhaps even uninteresting topics. Others, the Bush vs. Gore dispute from the Florida election contest in 2000 comes to mind, are "torn from the headlines," hardly arcane, and yet may still depend on technical questions of language and law.  Because a principal role the Court fulfills has to do with insuring uniformity in the application of federal law throughout the federal courts of the United States, an unsurprisingly large number of cases involve disputes over federal statutory and constitutional language.

The Court has issued a decision in one of those many cases, Brumfield v. Cain. In Brumfield, a death row inmate won review of his claim that his developmental ability should have been given consideration in the review of his death sentence. The Supreme Court, by a majority, ruled in Brumfield's favor, and his case will now be sent back down for further consideration of the evidence regarding his claimed developmental disability. If his claims succeed, his death sentence would be set aside.

Brumfield's plea to the Supreme Court follows his conviction for a horrendous murder, his death sentence, appellate review by state courts of conviction and sentence, and hearings before a federal trial court and a federal appeals court on his petition for relief under a federal habeas corpus statute.

The First Pity, The One Beyond Doubt:

Brumfield shot and killed an off-duty law enforcement officer while she was escorting a store manager making a bank deposit. His victim, Corporal Betty Smothers, was not only a 14-year veteran of the Baton Rouge Police Department, she also worked a second job as security for a local grocery store. Corporal Smothers' second job helped to support her family.  Following a long shift at the BRPD, Corporal Smothers reported for her security job. At the end of the evening, as was the practice, she drove the assistant store manager to the bank to make the nightly deposit.

When the assistant manager leaned out of the passenger door to deposit the store's funds, she heard the cocking of a gun. Brumfield and an accomplice, Henri Broadway, began firing. Between them they fired a dozen times at the women. Corporal Smothers was shot in the arm, chest and head, and died. The assistant store manager, with eleven entrance and exit wounds, survived, and managed to take control of the police cruiser, drive it to a nearby convenience store and get aid.

Corporal Smothers left behind a family, including young children.

The Pity to be Decided:

Now, Brumfield has, literally, won a new day in court. That new day in court will assume his guilty culpability for the brutal murder of Corporal Smothers, leaving her children orphans. When his case returns to the lower court from the Supreme Court, Brumfield will be given the chance to prove that executing him for his heinous acts would be "cruel and unusual punishment" because he possessed, he claims, inadequate mental development.

His story may well warrant pity. The parts that might warrant pity have nothing to do with the night he gunned down a mom, the night he fired multiple rounds at two women, the night he was out thugging with an accomplice. Brumfield, after all, claimed that it was cruel and inhuman to put him to death because of his mental capacity.

There was evidence in the record that
  • he had been born prematurely at a very low birth weight
  • he had been taken out of school in the fifth grade and hospitalized due to his behavior, 
  • he suffered a seizure. 
  • something had gone wrong during his mother's pregnancy
  • he had “slower responses than normal babies,” 
  • he had been placed in special classes in school 
  • he had been placed multiple mental health facilities, 
  • he had been prescribed anti psychotics and sedatives. 
That meaning of these episodes and characteristics were not lost on experts along the way in Brumfield's life. One expert testified that, in his records, questions were raised about his intellectual functions, and suggesting that he probably had a learning disability related to some type of slowness in motor development, some type of physiological problem. Another expert, who had tested Brumfield, concluded that he had borderline general level of intelligence. That expert explained that Brumfield’s low birth weight had put him at risk of potential neurological trauma, and that the medications given to Brumfield as a child were generally reserved for “severe cases.

Now, as the Supreme Court majority construes the "Cruel and Unusual Punishment" Clause of the Eighth Amendment, it would violate the Clause to inflict capital punishment on a person with an intellectual disability. Brumfield's case will now return to the lower courts, which had previously concluded that the evidence above did not suffice to show that the death penalty could not be imposed. The Court's majority answered the question in the affirmative and said, essentially, to the federal trial court that will hear his habeas case, the evidence that he has offered is of the kind that can establish the essentials of habeas petition under federal law.

Triumphing over Pity

Now, the fact is, there is another part to this Tale of Two Pities. If Justice Thomas had not written a dissent from the Court's decision, we might not ever know about this other part to the story. Recall the slain police officer, Betty Smothers? Corporal Smothers, when she was murdered, was working a second job to support her family. So, in dying, she left behind children. And that part of the tale should be told too. It is a story of grit, determination, caring, compassion, strength, and inspiration. It is the story of her son, Warrick Dunn.

Here's Justice Thomas's take on Brumfield's plea for mercy:
Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of Corporal Smothers’ children following her murder. Most widely known is that of Warrick. Though he had turned 18 just two days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. In his view, it “was up to [him] to make sure that everybody grew up to be somebody.” []
To that end, Warrick led by example, becoming a star running back at Florida State University and then in the National Football League (NFL). During his time at Florida State, he set records on the field while coping with the loss of his mother. []. Though separated from his family in Louisiana, he called his brothers and sisters regularly, sought parenting advice from his coach, and returned home when he could. [].
He kept his mother’s pearl earrings, stained with her blood from the night she was murdered, in a box on his dresser. []. After four years at Florida State, Dunn was drafted by the Tampa Bay Buccaneers. Concerned that some of his siblings were struggling in Baton Rouge, he moved the three youngest into his home in Tampa Bay. []. Although the strain of playing for the Buccaneers and raising his family weighed on him, he “accepted it as [his] responsibility . . . to make sure they stayed on the right path.” [].
While balancing football and family, Dunn still found time for others. He started Homes for the Holidays, a charitable organization that decorates and fully furnishes—down to the toothbrush—homes obtained by single mothers through first-time homeowner assistance programs. Dunn was inspired by his own mother, who spent years working toward the purchase of a home for her family, but, thanks to Brumfield, did not live to reach her goal. [].
Dunn’s contributions did not end there. After joining the Atlanta Falcons in 2002, he expanded the reach of Homes for the Holidays, []; traveled overseas to visit our Armed Forces, []; led an effort to raise money from the NFL to help respond to the tragic effects of Hurricane Katrina, []; and became a founding member of Athletes for Hope, an organization dedicated to helping athletes find and pursue charitable opportunities, []. Following his retirement from professional football in 2008, Dunn launched two more charitable organizations in honor of his mother: Betty’s Hope, a mobile bereavement program that offers no-cost grief counseling services to children in the Baton Rouge area, and Homes for Service, a program dedicated to helping service members, police officers, and firefighters achieve home ownership. As Dunn once remarked, “I knew that was what my mother would have been most proud of: not my records, not my awards, but the way I used my worldly success to give something back.” [].
Justice Thomas, of course, uses Warrick Dunn's inspiring story to contrast environments and outcomes, those of Warrick Dunn, who was fatherless all his life, and who was orphaned at Brumfield's hand, with the piteous tale of Brumfield's gestation, birth, childhood and education.

Thomas's choice makes a lot of sense. Absent dad, bereft of the family matriarch, a teen suddenly inherits substantial responsibility, while still having his own sorrowful path to trod. Yet, no excuses offered, he digs into life and makes from the mud and muck of it the bricks to build a better future for himself, for his siblings, and for the lives of the many folks touched by his charitable endeavors and his inspirational story.

From his dissent, we can be sure that Thomas, as a Justice, is unconcerned with the sentence of death imposed on Brumfield, even in light of the best version of his sad story as told by the majority. Thomas, I think, is hewing the line as a constitutional originalist. He understands that the basis on which the challenges to death sentencing are raised do not satisfy the written words of the Cruel and Unusual Punishments Clause. That approach warrants the respect of those who understand that our best security lies in a Constitution of fixed and determined meaning, rather than one that changes in meaning based on the idiosyncrasies of particular justices.

As for me, I am okay with the possibility that Brumfield may be spared execution. Don't mistake my trepidation, however, with that arrogant presumption that I am better at deciding outcomes than the God of the Bible, whose Word confirms that "whoever sheds man's blood, by man his blood should be said." I do not doubt -- at the level of principles -- that God endows governments with authority to inflict capital punishment. Instead, I have grave reservations about the "justice" in our system of justice. My reservations begin with realizing that our system of "justice" countenanced the butchery of abortion as a legal right.

I also have serious doubts about the means by which the Court has come to its current holdings on the Cruel and Unusual Punishments Clause.

Thomas Jefferson long ago warned us that the federal judiciary were a "corps of miners and sappers" continuously at work undermining the Constitution. He also worried about the essential framework of liberty in circumstances where justices of the Court treated the Constitution as a thing of wax to be molded by their hands, rather than a document of fixed, defined meaning.

The fact is, two hundred years ago, a hundred years ago, Brumfield would have been tried and would have been executed and the Justices of the Supreme Court would likely have never known his name. His execution would have taken place without any serious argument that his execution in particular (as opposed to the idea of capital punishment at all) was "cruel and unusual." That he has a new day in court on the sentence of death reflects the sorrowful reality that our Constitution has become, and is, as Jefferson's feared, the waxy toy of imperious justices.