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On being far away

For Ollie


I sit here with my books and tea
while you are there, dying.

I have been so blessed
by encouragement in this late blooming
but especially yours.
You -- who stood with two other uniformed women in a sea of men,
Engineers at Harvard-MIT when it just wasn’t done --
were proud of me.

Which one are you in this picture, Ollie?
The TALL one! you say
from somewhere around my chest.
Are you getting good grades?  I knew you would.

You’ve stopped eating.
This week, I’ll take my car to the shop on Elmira Road.
The only thing I know about Elmira
is that you lived there long ago
with Chris, whom I also loved.
Maybe that’s where Paul was born,
in that eye-rolling story about “Oh you pregnant women always . . .”

Today your faithful Paul is driving to be with you.
I hope you wait for him.

Last month,
I couldn’t tell whether you heard me
But you gripped the hospital bed
With both hands tight in front of you,
Holding on.
I said, Wow, Ollie, are you going to make it
until I graduate?  I never thought.
But you have hung on until I was safe,
graduation in sight, employed.

You who --
bent and nearly blind and deaf --
and would!
shoo a bull from your corn
with a broom,
believed I could do this,
have seen me through.
When your words failed,
just grinning to see me.

Such a gift.

I will miss thee sorely, Friend.


Winter Walk

I'm haunted by the fact that this is my last semester, and with trying to figure out what that tastes like. Stopping to notice things more.  Savor.  That's good.

Spending lots of shower time giving imaginary talks, begging my unemployed fellow students to be extra-kind to themselves.  Do one hard thing in the job department--and no more--every day.  Take the money and time and energy you will waste with various self-destructive or useless activities, and do or get something that will nourish you. Marshall all the people who think you're amazing and get them to stand by for when you feel low, to show you how they see you.

Don't hang around with people who are negative.  It's easy to be cynical, and some people think it's cool, but it's toxic.  Would you rather tear things down or build things?

Do your best to take nothing personally.  It's really not about you.  Really.

Do your best to avoid complaining and blaming.  You don't have the spare time and energy for that.

Keep trying to get clear about what you want, job-wise.  Keep stepping back to the big principles, rather than the specific jobs.  If you know it when you see it, your enthusiasm will show through.  If you just need a paycheck and that's your whole reason for applying, that will show, too.

Of course, there's fear and the need for income.  But don't focus on them. They can be in the car but don't let them drive.  You're building your life here, making choices daily about who you want to be, how you want to live.  In large part, you create your own reality.  Keep the big picture in mind while you do the little steps.



Got the semester finished.  We're in exam mode around here, but I only have one to take this time around.   I don't really need the nearly two weeks to prepare, so I am spending the week working on a death penalty project at school, analyzing and entering data about cases.  Kinda fun.  (I know, I know)

Then I'll study and take an exam (15th).   Not fun.

THEN I'll hop on a plane and go do some mitigation investigation in a SC case for a few days -- more fun!

All the while, trying to get myself a job for afterward.  I've got some really interesting irons in the fire -- no one's actually offered me anything yet, but there are cool possibilities at places that haven't yet turned me down!  =)

I know it's strange to talk about death penalty work as fun, but parts of it are for me.  (There are other parts, too.)  I enjoy talking to people in investigations.  I like it that people trust me.  I enjoy trying to figure out what the data say.  I enjoy trying to craft a persuasive argument.  Most of the time these things also scare me, and the consequences of the inevitable failures are rough.  How rough, over the long term, we'll have to wait and see.

But this work really pulls me.  The intellectual challenge, the sense of making a difference to someone who just wants someone who will try.  The long shot at making a difference in the system itself.  And there are bonuses, like the great people I get to work with.

All around me, meanwhile, are a bunch of smart almost-lawyers, many of whom have no job yet either, and they're really scared.  I'm not worried about not having a job because public interest jobs are posted when they become available.  It's not time to panic yet.  It's not like not having a "law firm" job, if that's what you want.  If every single thing that really interests me falls through, I'll figure something out.  I'll either land on my feet, or pick myself up, dust off, and try to find another way to get there.

One reason I know this is that I've done it before.  Unlike the vast majority of my classmates, I have all this life experience that tells me that, yeah, bad things happen, but they're often not the ones you worry about, and anyway you get through it.  There is no disaster here.  And no fairy tale, either.  You'll get your heart broken some no matter what you do, but mostly it's just life and problems and figuring things out, and in between, a lot to be grateful for.

And anyway, it doesn't help to worry and complain and blame.   It took me a long time to see that, but really, it doesn't.

But the main thing is this sense that I've found the Right work, and that means I can somehow put a little more weight down on the notion that it will all work out somehow.

I often think I want to turn this blog into some kind of daily encouragement for all the people in my life who feel kind of scared and lost.

But then something triggers me on the death penalty, and I go right back to arguing about it.  <sigh>

a response to "mine's not breathing but he gets to?"

There's news this morning of a verdict and non-death sentence in a shooting in Texas.  One member of the victim's family is quoted as saying, "[H]e should have got the death penalty.  Mine's not breathing but he gets to?"

So that deserves a response.  Actually, two responses.

I understand the family's desire for the worst possible punishment.  I do.

1.  But that's exactly why we don't let victims'  families decide punishment.  Families are rightly grieving and raging.  They are not cool-headed.  They can't possibly see things from both sides, as juries are required to do.  They would so often (not always, but so often) choose to inflict as much suffering as possible on the defendant.  But creating suffering is not the goal of the justice system.  And the jury is not a stand-in for the family-- it's a stand-in for society.

2.  By this kind of eye-for-eye reasoning, there is no room for mitigation.  If A murders B, then the circumstances don't matter.  Well, maybe they matter in the case of clear self-defense or some other justification.

But does nothing the victim did matter?  Does a shooting by a terrified (but not threatened at that very moment) domestic violence victim deserve the same punishment as a kidnap/rape/torture/murder?

How about mental illness as a factor?

Is there nothing in D's past that matters?  Constant and vicious childhood sexual abuse beginning when he was 3?  Never psychologically recovering from heroic military service?

Our criminal justice system says these things matter.  The jury is required to consider all the things that make the crime worse (the aggravating factors) and all the things that mitigate.

There is a huge misconception about mitigating factors.  Someone will always begin to screech that being abused as a child does not excuse the defendant's behavior.  Of course, that's not what mitigating evidence does.  There are certain things that excuse or justify a killing, like accident, self-defense, etc., but those are different.  Once the judge or jury gets to the sentencing decision, they've already decided that the killing is not excused or justified.

Mitigation is based on the idea that culpability--guilt-- is not binary.  It's a continuum.  Even if someone is guilty, he can be more guilty or less guilty.

Here's an example:  D hangs around and waits for V to leave the bar and shoots and kills him from behind a dumpster.  Planned, premeditated killing.  Not an accident, not self-defense.  He's guilty of murder, no question.

Is it obvious what the sentence should be?  The loss to V's family is the same, no matter what else was going on, so on the eye-for-eye basis, the analysis stops here.  But should it?

Does it make any difference if D just discovered V was molesting D's 12-year-old child?  D is not excused.  He murdered V.  He should have let the criminal justice system handle this.  Maybe he's wrong about the molestation.  In any case, death is not society's punishment for child molesters.  He was wrong to take justice into his own hands.

But we get it.  V's murder is still wrong, still illegal, but we can find some empathy for D.  There will be punishment but not the same punishment as we give to another murderer.  It's murder, but each murder is different.

That's the bottom line.  That's why we have juries.

hard things to prove

withheld evidence:

The morning news says that Texas overturned Roderick Newton's death sentence:
The Texas Court of Criminal Appeals tossed out the capital murder conviction after it agreed with a Dallas judge who found prosecutors in his 2000 trial withheld evidence that could affect the outcome of his case.

I'd just like to point out how difficult that is to accomplish.

Prosecutors have all the investigative power (police, state bureaus of investigation, etc.), so they generally have all the evidence.  They are required to turn over "exculpatory" (good for the defense) evidence to the defense team.

But what's exculpatory?  There's a big grey area.

And who gets to decide?  The prosecutors.  Prosecutors look at evidence differently from defenders, so even prosecutors with high integrity inadvertently withhold evidence that the defense might see as exculpatory.  And yes, some prosecutors forget that they are supposed to "seek justice," and just do what they need to do to win.

But in any case, was the defense diligent about requesting the evidence?

And does the evidence have to be admissible in court?

Is it exculpatory when it doesn't really show anything itself, but is a clue to other things.

So whether the evidence meets the definition of exculpatory is one thing.

There's also the problem of discovering that the prosecution withheld it.  Not easy.  The prosecution may not have even had the evidence.  It could be that some other agency that is considered part of the "prosecution team" withheld it from the prosecutor, intentionally or not.  This happens sometimes when police investigators fail to turn over evidence from their investigations.  If you think I'm making that up, I'll give you a close-to-home example.

But no need, that's what happened in Newton's case.  The police failed to turn over a statement by Newton's co-defendant (who got 10 years, hello?) that contradicted the co-D's trial testimony.  [This kind of testimony warrants its own blog post.]

The defense team didn't discover it -- the prosecution did, and turned it over.  This says a lot about the prosecutor's integrity, but it also shows how hard it is for the defense team to find the evidence.

But let's say a defender discovers some clearly withheld and clearly exculpatory evidence.  She has to convince the judge of that, again not easy.  And then what is sometimes the hardest part:  she has to convince the judge that it is "material in the sense that it undermines confidence in the trial."  So, the judge (who is often a former prosecutor) can say, "Yes, well, the evidence was withheld, but there was all this other evidence, so it wouldn't have made any difference."

Even if she wins this one, she then has to win when the state appeals, as it did in this case.  [I'm not sure why the state appealed the Dallas judge's decision when it agreed that he did not get a fair trial.]

So getting Newton's sentence overturned was more of an accomplishment than it appears at first glance.

mental retardation:

The article also mentions the possibility that Newton is mentally retarded (a phrase the court still uses).  If he is, then he is exempt from execution.   But that's another thing that's harder to prove than it might appear.

Courts have very specific definitions of mental retardation, most involving not only IQ score of 70 or below, but also evidence of onset before age 18, and significant limitations in adaptive skills.

Of course, the state will fight back on this, presenting any available evidence that the defendant was not severely limited.  I know of one case in which the state pointed to the fact that the defendant was a father.  (Really?  sex requires intelligence?).  The state may also think the defendant is "malingering" and try to convince the judge of that.  He's motivated to get a low score, so is he trying to do so?

Many people raised in poor school districts never had IQ tests in school, so the onset is hard to prove.  Sometimes a teacher can be found who will testify that the defendant was "slow" or in special ed,  and sometimes the court will accept that kind of evidence.

Anyway,  it's more complicated than it looks.