<< Ferguson Execution | Main | Another condescending LA Times editorial >>


How the Law Becomes a Joke

| 13 Comments
Remember bell bottom jeans and love beads?  Many here won't.  Kent and I do.  So does John Errol Ferguson, a spree killer who did it because he enjoyed it.  He killed at least eight people in 1977 and 1978.  No sane person doubts his guilt.

For 34 years, that's T-H-I-R-T-Y  F-O-U-R, he's been gaming the system.  He gamed it again this week.  This time, he has discovered that he's crazy.  Or so his lawyer says.  Of course his lawyer knows there will be no consequences if he's lying about it, because "I'm just trying to keep the state from killing my client," have become the magic words that insulate capital defense lawyers from the normal requirements of honest behavior.  

On Monday, a federal district court granted a stay.  Earlier today, it was dissolved by a panel of the Eleventh Circuit.  It's now back on again, apparently because of the Circuit's en banc vote.  The state of Florida says it's going to the Supreme Court. The story is here.

What can I say?  A system incapable of executing an unquestionably guilty, sadistic mass killer after more than three decades of every dragged-out procedural dipsy-doodle on the face of the planet makes a mockery of victims, itself, and the rule of law.

UPDATE:  I see that Kent had a part of the story before I got to it.  What we now know, I think, is that defense counsel must have started the ball rolling all over again. Last I looked, the Eleventh Circuit does not reverse the Supreme Court in the same lawsuit.

[Editor's Note:  See also follow-up post here. -- KS]

13 Comments

// On Monday, a federal district court granted a stay. Earlier today, it was dissolved by a panel of the Eleventh Circuit. It's now back on again, apparently because of the Circuit's en banc vote. //

I don't understand. Why did this "stay" happen? Ferguson's newly developed or expressed messianic complex? So, it would have been permissible to execute Ferguson 20 or more years ago--as far as his religio-mental state--but no longer?
~~Adamakis

The SCOTUS has held that a person cannot be executed if he is too far gone mentally to understand why. Ferguson's lawyer apparently is claiming that his client believes he's a prince of God, or some such thing, and can't be killed.

One has to wonder how it came to pass that these mental difficulties developed just as the execution date was hoving into view. The whole thing smells like a con job, but in the world of capital defense, what else is new?

This is decencyevolves. Yes, that is in fact what Ferguson believes, and as the Florida Supreme Court noted in its decision denying relief, the trial court found that “Ferguson does have a diagnosed mental illness, paranoid schizophrenia.” Ferguson v. Florida, Slip Op. at 4. The court further noted that “the trial court specifically found that Ferguson suffers from mental illness and rejected the State’s argument that Ferguson malingers.” Slip Op. at 4. You may think you know better than the trial court that sentenced Ferguson to death and heard the evidence presented, but I doubt it.

To have a mental illness is hardly the same thing as being unable to understand why you are being punished. Nice try, though.

But I'll go you one further, just so you'll have some red meat. This guy has managed to game the system for 34 years. If, during all that time, he has become mentally dilapidated, that's just too bad. His legally meritless delays -- the conviction and sentence have, after all, been affirmed, right? -- are, in my view, a constructive waiver of any right he would not have accumulated but for such meritless delays. It's a feckless system that allows litigants to invent rights for themselves by their own dallying. Can you name any other compartment of the law in which that is allowed to happen?

The dividing line in the case is between having awareness of his execution (which the trial court held he had) and having a rational understanding of it (which his attorneys argued Panetti v. Quarterman requires, although the Florida Supreme Court disagrees). If you think you are the immortal Prince of God and can't be killed, you may be aware of your planned execution, but you lack a rational understanding of it. The state court is convinced Ferguson is not malingering, which I find more convincing than your speculation based on the length of time he has been on death row. You are untroubled by the execution of individuals who are seriously mentally ill. I wonder for example, what you would think of the execution of Andre Thomas:
http://crimeblog.dallasnews.com/2009/01/texas-death-row-inmate-plucks.html/

I think we are a better society because the Supreme Court decided, in its 7 to 2 decision in Ford v. Wainwright, that it disagreed with you. Justice Marshall noted correctly that "The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded 'savage and inhuman.'" In this instance, I don't think 400 years of Anglo-American jurisprudence is wrong.

You're still missing my main two points. The first is that Ferguson can full well believe that he is "the immortal Prince of God and can't be killed," and still understand that he is being punished for killing others. It is the answer to that specific question -- Why am I being punished? -- that the condemned must understand, and there is no sensible reason to think that Ferguson doesn't understand that he's being punished because of his murders.

The second point is that it would take a very unserious system to allow defendant-precipitated delay to derail an otherwise valid sentence. If Ferguson actually cannot any longer understand why he's being punished, he has reached that state only because of his own insistence on pursuing meritless challanges over the course of three freakin' decades. It is settled law that a party cannot gain from his own misbehavior. A reasonable number of post-conviction challenges could be considered acceptable behavior, but dragging it out with manufactured procedural nonsense for THIRTY FOUR YEARS is exactly the sort of nuisance behavior from which a litigant should not be able to benefit.

Finally, I would note that your invocation of centuries of Anglo-American jurisprudence is very much a sometime thing. When that tradition produces an outcome you like, we must bow to it. When it produces an outcome you don't like, such as approval of the death penalty as a general matter, we must regard it as merely the mistaken belch of barbarianism.

"But this excuse ought not to be restrained to that length, to which our coroner's juries are apt to carry it...as if every man, who acts contrary to reason, had no reason at all...The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter, to form a legal excuse.

And therefore if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man."

(180 Cal. App. 2d 898: 4 Blackstone's Commentaries, (1778))

Ferguson also apparently believes that he is being incarcerated because of a communist plot, so how much he understands of the reasons for his execution is open to doubt, but we will set that aside for a moment.

Over the course of his appeals, Ferguson's arguments had sufficient merit that they resulted in the overturning of his first death sentence and compelled a retrial. Apart from that, all you or I really know is that the challenge to his resentencing wasn't successful. Appealing a sentence isn't misbehavior, even for litigants of whom you disapprove.

If your point is that you and I both like precedents and authority when they support us and dislike it when they don't, I am shocked that two lawyers would feel that way, aren't you?

No, appealing a sentence isn't misbehavior, but raising the kitchen sink for three decades is. Your attempt to palm off a gargantuan delay like that as necessary is preposterous on its face.

As for what he claims he believes: I can imagine few things easier than saying your conviction was the result of a plot. Not only is it easy, it hardly differentiates this guy from the mass of hoodlums who are locked up, who believe (with your eager cheerleading to assist them) that it's the behavior of others, and not their own, that is the cause of their problems. That criminals delude themselves about why they're being punished is standard issue at this point. It's unfortunate, but not a mental disease.

Now please do enlighten me: Are centuries of Anglo-American jurisprudence to be honored or not? If, as you implied quite directly earlier they are, then you should stop dishonoring them with your ahistorical, stubborn attitude about capital punishment.

Commentary is better when it's informed. Your statement "For 34 years, that's T-H-I-R-T-Y F-O-U-R, he's been gaming the system. He gamed it again this week. This time, he has discovered that he's crazy. Or so his lawyer says" is proof of that.

As noted in a motion filed in support of his habeas petition in 1995, Ferguson was suffering from visual hallucinations in 1965; was found to have paranoid schizophrenia in 1971; was held incompetent to stand trial in 1971; and again in 1973, 1974 and 1975; was found not guilty by reason of insanity for a robbery in 1975; was involuntarily committed to a mental hospital in that same year; and was again found not guilty by reason of insanity separate charges in 1976. From 1965 to 1976, Ferguson was examined on eleven different occasions by seven different phsyicians and psychologists, each of whom diagnosed him as schizophrenic and psychotic. You may be itching to have the state kill him anyway and view his habeas attorneys at Hogan and Hartson, Chief Justice Robert's former firm, as some kind of low lifes, but sometimes knowing the facts before you opine is a good thing.

I probably wouldn't call myself decencyevolves if I didn't agree with the idea, as expressed in Trop v. Dulles, that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." For example, I'm glad that grand larceny, the theft of goods worth more than 12 pence, isn't still a capital crime, as it was in 18th century England. But then, reasonable minds can differ.

The reason you call yourself "decencyevolves" is that you want to appropriate the notion that only you and those who agree with you are decent. Those in dissent are indecent. Let's not beat around the bush about it.

It's all the evidence needed of your version of "decency" that you're happy to go through the medical reports on the downtrodden Mr. Ferguson, but neglect to so much as mention that he lustily killed eight people. Your world of "decency" is such that, literally, they altogether disappear. And your version of an "informed" comment appears to be one that supplies mucho information about the killer, while pretending there was no killing.

Perhaps you would be "informed" enough now to give us, not just the medical reports on Ferguson, but the autopsy reports on the deceased at his hands. In addition to that, perhaps you would also want to be "informed" enough to describe the mental state of each victim as he/she lay dying.

One at a time, if you please.

You really know nothing about me. I understand the almost inconceivable loss of the victims, the instinct for vengeance and the understandable outrage at the horrible consequences of Mr. Ferguson's acts. What is also sad to me about this saga (but not to you apparently) is the possibility that your headline may be correct in ways you didn't conceive of.

Mr. Ferguson's pleadings, which were signed by Hogan partner E. Barrett Prettyman, Jr., suggest that the law became a joke when Ferguson was tried while incompetent and found sane while insane. He may well be executed while incompetent because the jury, the trial court, reviewing courts, and the Governor wouldn't honestly assess Ferguson's mental state, because there are just too many bodies, and just too much suffering.

Moreover, if Ferguson is as ill as these pleadings suggest, the message would be that we don't try and convict the insane, and we don't execute them, unless we are so offended by their actions that we no longer care what their mental state is. Our principles and laws are dispensible if we are sufficiently outraged. This despite the fact that the Supreme Court rightly denounced execution of the incompetent in Ford as "mindless vengeance." 477 U.S. at 410. It's human nature I suppose, but its sad to me at least.

I don't know enough facts to say for certain. I do know one thing though. To suggest, as you did, that this is an eleventh hour invention by unscrupulous attorneys is both incorrect and unfair.

You really know nothing about me. I understand the almost inconceivable loss of the victims, the instinct for vengeance and the understandable outrage at the horrible consequences of Mr. Ferguson's acts. What is also sad to me about this saga (but not to you apparently) is the possibility that your headline may be correct in ways you didn't conceive of.

Mr. Ferguson's pleadings, which were signed by Hogan partner E. Barrett Prettyman, Jr., suggest that the law became a joke when Ferguson was tried while incompetent and found sane while insane. He may well be executed while incompetent because the jury, the trial court, reviewing courts, and the Governor wouldn't honestly assess Ferguson's mental state, because there are just too many bodies, and just too much suffering.

Moreover, if Ferguson is as ill as these pleadings suggest, the message would be that we don't try and convict the insane, and we don't execute them, unless we are so offended by their actions that we no longer care what their mental state is. Our principles and laws are dispensible if we are sufficiently outraged. This despite the fact that the Supreme Court rightly denounced execution of the incompetent in Ford as "mindless vengeance." 477 U.S. at 410. It's human nature I suppose, but its sad to me at least.

I don't know enough facts to say for certain. I do know one thing though. To suggest, as you did, that this is an eleventh hour invention by unscrupulous attorneys is both incorrect and unfair.

Leave a comment

Monthly Archives