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Editorial Errors

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Every day in newspapers across America, editorial writers express opinions that many of their readers disagree with.  That is necessarily how it must be, because editorials opine on controversial subjects, and any opinion one expresses on such a subject will meet with disagreement from many people.

The New York Times editorial page, however, repeatedly does something quite different.  In the process of expressing its monotonically Politically Correct opinions, the NYT regularly misleads its readers regarding the facts of the issue in question.  Yesterday's editorial on the Ferguson execution, noted earlier in Bill's post and mine, is an exemplar of how not to write an editorial.

For the actual facts and history of the case, as distinguished from NYT fiction, see the opinion of the U.S. Court of Appeals for the Eleventh Circuit.

NYT:  "Once again, a state is attempting to put to death a man who is clearly ineligible for execution under the Constitution."

The ineligibility in question here is mental competency to be executed.  Care to guess how many people have determined that Ferguson is competent, contrary to what the NYT thinks is "clear"?
1.  The Governor of Florida appointed a commission of three psychiatrists to determine Ferguson's competence.  They unanimously determined he is indeed competent based on a review of 34 years of records, a personal interview, and, very importantly, interviews with the correctional officers who have observed Ferguson in his daily living over the years.

2.  The Governor, after receiving this report, determined that Ferguson was competent and lifted the stay.

3.  The state trial judge issued a new stay, held a hearing, heard extensive testimony from experts on both sides, and decided that Ferguson had a rational understanding and was competent for execution.

4.  The state supreme court upheld that ruling 7-0.

That is twelve people, all agreeing that Ferguson is competent for execution.  Not a single dissent anywhere.  Anyone familiar with the Florida Supreme Court knows that it has its share of judges willing to lean in a defendant's favor in capital cases, yet not one thought Ferguson has a valid claim here.

So how does the NYT come to the conclusion that Ferguson is clearly ineligible for execution?  Do they just take what the defense lawyer feeds them and print it as fact?

When the case gets to federal habeas, the standard enacted by Congress takes hold.  The lower federal courts can correct clearly wrong state-court decisions, but they can't just substitute their judgment on debatable points for that of the state courts.  Only the U.S. Supreme Court, on direct review of the state judgment, can do that.

The NYT, however, says, "Once again, state and federal courts are ignoring uncontested facts by hiding behind the draperies of legal procedure."

For starters, there aren't any uncontested facts pointing to incompetence for execution.  Three psychiatrists, including two of the commissioners who thoroughly examined the case, concluded that Ferguson does not suffer from any major mental illness.  Although the state court found that Ferguson has schizophrenia, and that finding is binding in later proceedings, that does not transform a hotly contested fact to an uncontested one.

Second, nobody is ignoring the finding of schizophrenia.  That finding alone does not resolve the issue, and every court to consider the case from that point on has considered whether Ferguson's schizophrenia, assuming he really is schizophrenic, deprives him of the rational understanding required under Supreme Court precedent. 

The NYT's claim of "ignoring uncontested facts" is a flat-out falsehood.

NYT:  "He believes, among other things, that he is the 'Prince of God' and that he is being executed because he 'can control the sun.' "

The "Prince of God" business is one of the contested facts.  The only source for what Ferguson believes is what Ferguson himself says, and he may very well be malingering on this.  That belief is tangential in any event.  More important is whether he knows why he is being executed.

USCA11:  "The [commissioners'] report specifically mentioned that Ferguson acknowledged that he was going to be executed because of the murders he had committed and acknowledged that he would die as a result of the execution."

The NYT didn't bother to tell its readers that.  It directly contradicts their statement of a key fact.  Where did this "control the sun" business come from?  It is not mentioned in either the USCA11 opinion or the Florida Supreme Court opinion.  Instead of the facts found by the duly appointed commission, the NYT makes an unsupported assertion to the contrary.

NYT:  "The Florida Supreme Court found that he was competent to die, but only by applying a test for mental illness that the Supreme Court has explicitly rejected."

The Supreme Court has not "explicitly rejected" the test in question.  As carefully explained in the USCA11 majority opinion, the Panetti opinion elaborated on, rather than rejected, an earlier test.

NYT:  "A federal appeals court upheld the sentence, relying largely on a federal law that requires a significant degree of deference to state court rulings. Apparently it wasn't even enough that one of the federal court's judges found the test Florida applied to be 'patently incorrect.' " 

One judge of three thought the Florida court applied an incorrect standard.  The majority thought the state court applied the correct standard, when its opinion is considered as a whole.  The NYT has a problem with appellate courts deciding issues by majority vote?  It's been that way throughout our nation's history.

But wait.  Suppose the one judge the NYT cites decided the case alone.  Would that point to a different result?  Nope.

Having stated my concerns, and despite the Florida Supreme Court's acknowledgement that Ferguson is not malingering and that he suffers from mental illness, I agree that we must defer to the Florida Supreme Court's finding that "[t]here is no evidence that in his current mental state Ferguson believes himself unable to die or that he is being executed for any reason other than the murders he was convicted of in 1978." Id. (internal quotation marks omitted). I am therefore obliged to concur in the result.
So forget AEDPA.  Go back to the earlier rule, in force throughout the Warren Court era, that federal courts defer to state court findings of facts.  Taking the facts as found by the trial court and applying the law without any deference, Ferguson is competent, and the execution should go forward. 

That is the result no matter how you slice it.

The execution did go forward, and Ferguson was justly executed for murdering eight people, well aware of why he was being executed.  But you wouldn't know that from reading the New York Times editorial.


9 Comments

Bravo is exactly right.

Kent, I urge you to send this to the NYT and forcefully urge them to print it. It's simply devastating. Even the sleaziest defense lawyer would not file, much less expect to get away with, the grossly misleading and false statements in this editorial.

Your entry here makes me once again proud and grateful that you invited me to participate on this blog, which is nothing less than a refuge for the truth.

If any of our pro-defense readers such as decencyevolves (for one) have any defense whatever of the dishonesty of this editorial, I would love for them to post it. Somehow, I don't think we'll be hearing a lot.

FYI - I came here via Scott Johnson at Powerline.

Excellent evisceration of a typical NYT editorial. I must say though that I concur with the NYT that there is "something wrong" with our justice system. Specifically, that "something wrong" would be that it took 35 YEARS to execute a sentence imposed on a murderer of eight people!

Did I miss the 'Full Employment for Law School Graduates Act' when it passed Congress? A newly minted attorney assigned to this case at its onset would now be, at its conclusion, looking at retirement.

I would say that our representatives at both the State & Federal level should look into and correct this, but then I remember that 99% of politicians are lawyers.

Decencyevolves: We had this argument before Bill, back in October 2012. 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 physicians and psychologists, each of whom diagnosed him as schizophrenic and psychotic.

As I noted then, if Ferguson was as ill as these pleadings suggest, the message is 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 it's sad to me at least.

Ferguson stated to examiners that he was the immortal Prince of God and could not be killed and that he was being incarcerated because of a communist plot. In its decision denying relief, the Florida Supreme Court noted that 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. If Ferguson was not malingering, which is what the trial court concluded, this in fact is what Ferguson believed.

As the Florida Supreme Court made clear, the dividing line in the case was 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 disagreed).

It is appalling that Ferguson was executed under such circumstances, and the New York Times was correct in reaching that conclusion.

This case is a cariacature of itself. How it takes 34 years to figure out someone's relative sanity is beyond me. If I was in charge, I'd deploy resources towards executing people who committed crimes in the last 15 years which I think would produce better deterrent effects (solely my opinion).

Also, slightly off topic, being an avid fan of this blog, is there a mechanism to submit criminal cases for either Kent or Bill to comment on - a guy I played softball with in law school (this is my "law review") is now in Army JAG and just was on the prosecution on a murder case in Afghanistan, and being former Army officer I think the penalty is a bit harsh. I'd really like to know what some smart people think about it. Let me know. - Matt

Decencyevolves: When I wrote that last October, I didn't have the benefit of the more recent Court of Appeals opinion, which you linked to and which I just read. It is alot more circumspect than the Florida Supreme Court opinion I was citing to back then, which is a good thing.

The concurring opinion is correct in its assetion that the Florida Supreme Court was applying the wrong standard, and amici, including the National Association on Mental Illness and the ABA, have rightly argued before the Supreme Court that the Florida Supreme Court committed a serious error in concluding that “the Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it.” Ferguson v. State, 112 So. 3d at 1156 (emphasis added).

Matt,

If you want the opinion of smart people, you'll have to limit your questions to Kent. I'm just a dull-witted fascist. Just ask the commenters on Sentencing Law and Policy.

No, seriously, feel free to email me. I don't always have a lot of time, but I always enjoy hearing from you.

Decencyevolves --

"We had this argument before Bill, back in October 2012."

No we didn't, because the argument here is about the honesty of the NYT's editorial a couple of days ago.

On the merits of the case (which is related but different), I'll simply rest on the fact that, as execution loomed, Ferguson could not get a single vote on either the 11th Circuit on the Supreme Court. No Kagan. No Sotomayor. No Ginsburg. Maybe all 12 judges and Justices got it wrong, but I have my doubts.

Anyway, as to the subject of this thread: Do you think, in light of Kent's analysis, that the NYT editorial was even remotely honest?

Bill--You are right that we had a different conversation then than we are having now. I'd have to read the certiorari petition and opposition, rather than just the amicus briefs, to really tell you what I think about the merits of the NYT editorial, and those documents aren't as readily available. I will admit that the recent 11th Circuit opinions are written with care and reflect detailed analysis of the record. I can't know what flaws they contain, if any, without knowing more about the case than I do. Lawyers are, or at least should be, more cautious than editorial writers.

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