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August 5, 2013

Two sharp crime and punishment commentaries from Andrew Cohen

Andrew Cohen always has sharp and important things to say on a variety of legal and criminal justice issues. But today he is in especially strong form in these two potent commentaries appearing today via The Atlantic:

Though I am not sure I agree with everything that appears in both of these columns, I am sure that I appreciate the passion and forcefulness with which Andrew Cohen is writing on topics that call for considerably more attention than they are given by most of the media punditry.

August 5, 2013 at 11:04 PM | Permalink


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"I appreciate the passion and forcefulness with which Andrew Cohen is writing on topics that call for considerably more attention than they are given by most of the media punditry."

Actually, the most prominent of the media pundits, the New York Times, wrote an impassioned editorial blasting the (then impending) Ferguson execution. The editorial is here: http://www.nytimes.com/2013/08/05/opinion/florida-ignores-the-supreme-court.html

I don't know how to put it delicately, so I'll just say it straight out: The NYT's editorial may be the most dishonest piece I have read in a mainstream newspaper, ever. Kent Scheidegger utterly destroys it in an essay on Crime and Consequences. Kent's piece is here: http://www.crimeandconsequences.com/crimblog/2013/08/editorial-errors.html

If, after people have read Kent's analysis, I will be curious to see if any of our DP skeptics, including Doug, can possibly defend the editorial. It's just astounding that something so grossly misleading could appear in a major news outlet, on the editorial page or anywhere. If the NYT had a grain of integrity, tomorrow morning it would fire the person who wrote it.

Don't hold your breath.

Posted by: Bill Otis | Aug 6, 2013 12:21:50 AM

"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."

Op-eds repeatedly do this. There is nothing unique about "politically correct" (whatever that means; some places, it is conservative, some liberal) op-eds to "mislead" in some fashion. There are media analysis websites that show this.

"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?"

Editorials lean one way or the other. They are not simply news articles. They take certain information obtained somehow ("feed" is a rhetorical/editorial comment that is at best disputed) and determine the right position to take.

"Panetti opinion elaborated on, rather than rejected"

Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Alito join, dissenting argued "the Court imposes a new standard." But, maybe they are wrong. Wouldn't be the first time.

"The NYT has a problem with appellate courts deciding issues by majority vote?"

Not apparent they generally do. But, here, they thought given the death penalty context and all that since even one of the federal judges found it "patently incorrect," that there was enough in this case for the majority to decide differently.

BTW, note the NYT op-ed clearly says what he did. Anyway: "More important is whether he knows why he is being executed."

As Cohen notes, the USSC noted it will be unconstitutional if he is executed when "so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole" -- this is a factual issue and some experts that found it leans one way. They lost but op-ed writers get to make dissenting comments, just like federalist might get to say his piece after 6-3 or 7-2 or whatever opinions are made the other way.

Posted by: Joe | Aug 6, 2013 10:08:43 AM

Joe --

An editorial can take a point of view, sure. But a newspaper can be dishonest while taking a point of view, and the NYT editorial was dishonest, plain and simple. I'll give three examples.

First, the NYT states without reservation that Ferguson was "clearly ineligible" for execution. But, as the Times certainly knew, TWELVE people in a position to know had UNANIMOUSLY concluded that he was eligible. (Three psychiatrists appointed to examine him, the Governor, the state trial judge (after a hearing), and all seven judges of the Florida Supreme Court).

On that record -- none of which was revealed to readers -- the assertion that Ferguson was CLEARLY ineligible to be executed is a point-blank lie. There was absolutely nothing "clear" about his supposed ineligibility.

Second, the editorial says that Florida was ignoring "uncontested facts" showing that Ferguson was mentally incompetent. That too is a point-blank lie. The "facts" about his alleged incompetency were very much contested, and, indeed, the state won the contest.

The third example is probably the most appalling of the bunch. As Kent explains, starting off by quoting the NYT editorial's exact language:

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.' "...

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. ###

Well, Joe, when the NYT says that the execution was approved despite one judge's having "found the test Florida applied to be 'patently incorrect,'" -- but deep-sixes the fact that THAT SAME JUDGE AGREED THAT THE EXECUTION COULD INDEED PROPERLY GO FORWARD -- that is just breathtakingly dishonest.

The editorial could not possibly have been written by anyone with integrity or intellectual honesty. And you know it.

Posted by: Bill Otis | Aug 6, 2013 11:56:29 AM

Florida may ignore the Supreme Court.

1) The decisions do not meet Daubert criteria.

2) The definition of mental illness has a lot subjectivity.

3) The death penalty is not a punishment, nor is it covered by the Eighth Amendment. It is an expulsion, a form of incapacitation.

4) Mental illness is an aggravating factor in the real world, not a mitigating factor in the lawyer Twilight Zone world. It makes the person far more likely to hurt others, and to require death for safety.

5) If Federal thugs want to rescue the defendant, let them take him with them to a federal facility so he may kill federal workers.

Posted by: Supremacy Claus | Aug 6, 2013 1:48:28 PM

Joe --

No response to the three examples I gave of the rank dishonesty of the NYT editorial??

Posted by: Bill Otis | Aug 6, 2013 11:23:47 PM

[1] Being "clearly ineligible" is an opinion. If someone in 1899 said that "clearly" people have the right to ride on unsegregated streetcars, they could have done so, even if the USSC ruled otherwise.

[2] Certain facts were not uncontested. The debate was over what they meant.

[3] The NYT cited that judge on a limited point.

Duly noted, like some people who rail against the NY Post or some conservative leaning op-ed in NYC, you disagree with the merits of the op-ed. This need to rail against their "honesty" will likely only convince the convinced.

Posted by: Joe | Aug 7, 2013 10:38:05 AM

Bill Otis should comment again to taunt Doug Berman for not answering. Should be consistent.

Posted by: Joe | Aug 7, 2013 10:38:47 AM

Joe --

1. Asserting that Ferguson was "clearly ineligible" for execution, when ALL TWELVE people who had looked at it had determined the opposite -- and without ever letting on that those twelve people even existed, or had reached that determination -- is dishonest. It's one thing not to agree with the other side. It's another to conceal that there EVEN IS another side, and that it massively outnumbers your side.

2. The editorial did not say that "certain facts" were uncontested. It said that uncontested facts proved that Ferguson was insane. But they proved no such thing, and those that tended to support insanity were very much contested. So the NYT was lying. Where I come from, lying is dishonest.

3. The way the NYT cited the single judge would have led, and was designed to lead, any normal reader to think that the judge had filed a fierce and fiery dissent, and thus that there was a significant split of judicial opinion about the correct outcome of the case. But that was false. I was flabbergasted to find, when I read the opinion, that the judge had CONCURRED, not DISSENTED.

The NYT intentionally fabricated the appearance of a split panel opinion, and concealed the actual vote of the judge they cited. Is that your version of honesty?

That's a real question, not a rhetorical one. Is that your version of honesty?

P.S. It has nothing to do with whether I disagree with the merits of the editorial. It has everything to do with whether readers were being given anything approaching an honest account of the case. They weren't, as you can't possibly help knowing.

Posted by: Bill Otis | Aug 7, 2013 12:16:59 PM

Joe --

We always aim to please. Thus: Doug, pursuant to Joe's comment, you are hereby officially taunted for not answering.

Posted by: Bill Otis | Aug 7, 2013 12:21:30 PM

Bill, Joe should just cry uncle. You got him.

Posted by: federalist | Aug 7, 2013 9:26:02 PM

federalist --

Joe has a better solution than crying uncle: Disappear and hope the thread goes dead.

The editorial is just astounding. The person who wrote it knows it, too, and should be fired. But it'll never happen.

Posted by: Bill Otis | Aug 9, 2013 1:32:20 PM

Yep Bill. No matter what my flaws are--I will engage to the bitter end, and I always deal with the arguments.

Posted by: federalist | Aug 10, 2013 9:51:34 PM

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