Barry Graham: Illusory Flowers in an Empty Sky

The Arizona Republic has a thorough report that includes an explanation of the options:

• The high court could refuse to hear the case, and then the state would have to seek a new death warrant.
• The court could decide to hear the case and determine that Cook’s conviction and sentence stand. Once again, the state would have to request a new death warrant.
• The court could send the case back to the state for a new trial or a new sentencing trial to choose between a life or death sentence.The U.S. Supreme Court could also decide to revisit the drug issue.

Whatever happens, Cook is unlikely to be executed before autumn.

Duane Belcher

Last Thursday morning, at around 11.40, four people came out of the staff entrance to a government building in downtown Phoenix. They talked and laughed as they walked to the parking lot, then got in their cars and went their ways.

They had spent the morning deciding to kill someone.

Ellen Kirschbaum, Marilyn Wilkens, Jack LaSota and Ellen Stenson are members of the Arizona Board of Executive Clemency. Along with their chairman, Duane Belcher, they had held a clemency hearing for Daniel Wayne Cook, who will die tomorrow morning. Cook’s attorneys had requested that instead of death he should be sentenced to life in prison without parole.

Belcher had visited Cook at Florence prison the previous week, at Cook’s request, and when Belcher said, early in the meeting, “There’s no end to what the board can recommend,” I thought it a sign that there might be a recommendation for clemency, even though I had no doubt that Governor Jan Brewer would veto it if there were.

Cook addressed the meeting by phone. One of his attorneys, Robin Konrad, stated that what he had to say was in his own words and had not been written for him by anyone else. Then Cook spoke with a strong voice and a polite manner. What he said can be read here.

The murders Cook committed - one of his two victims was only 16 - were so monstrous that the judge who sentenced him to death said he “almost relished” passing the sentence. Although the crime was unusually heinous, there is another, equally unusual, fact: Cook had no prior record of violence, and has not behaved violently even once in the decades he has spent in prison since then.

The witnesses called by the Federal Public Defenders explained why.

What he did to his victims had been done to him as a child. As a young adult, he had tried to do it to himself, and was in and out of Kingman hospital following suicide attempts and self-mutilation.

As a small child, he was beaten and burned. His grandparents made him eat his own vomit, and made him have sex with his sister while they watched. His mother beat him and then had sex with him to console him. He spent two years in a boys’ home, where he was repeatedly raped, by staff and other boys.

Forensic psychiatrist Donna Schwartz-Watts said that Cook suffers from post-traumatic stress disorder, organic brain damage, borderline personality traits and substance abuse. She said, “I am amazed at the number of traumas that this man has experienced in his life, all of which have been corroborated… I have been a forensic psychiatrist for 22 years, and this is quite horrific.”

She described Cook as “articulate and intelligent,” and said he was so sensitive and so afraid of being abandoned that he would self-mutilate if his social worker went on vacation for a week.

Cook’s mental health problems weren’t disclosed at his trial, at which he represented himself when he found out that his lawyer was drunk and incompetent. Nor was his childhood abuse disclosed. He didn’t disclose it when he was in mental hospitals before his crime. Schwartz-Watts said this recalcitrance was typical of people who had been traumatized.

Another of Cook’s attorneys, Michael Meehan, described himself as a Republican, a supporter of John McCain, and “not opposed to the death penalty.” He said he had never testified at a clemency hearing before, and never expected to again, but that he had decided to represent Cook because he believed his case was a miscarriage of justice. He said that the judge had pre-judged Cook, declaring that he wanted to sentence him to death before hearing any evidence.

Testimony was read from a corrections officer who said that Cook “would be fine living in a structured environment,” i.e. prison.

The board was reminded that Eric Larsen, the prosecutor in the case, has said that he would not have sought the death penalty had he known about Cook’s past - so it is certain that had this information been offered at trial, Cook would not - could not - have been sentenced to death.

For the state, Matt Smith argued that Cook chose to represent himself, against the advice of the judge, and so it was his own fault that he hadn’t introduced mitigation at his trial. His argument seemed to be that a person with Cook’s mental health problems and lack of education should have been able to represent himself like an experienced lawyer. That was all Smith had, so for the rest of his time at the microphone he described the cruel details of what Cook did to his victims. He remarked that Cook’s accomplice , who got out of prison five years ago, “probably” ought to be on death row as well, but that the deal the state had done to get him to testify against Cook was “a necessary evil.”

A statement was read from the father of Cook’s 16-year-old victim, asking that clemency be denied.

When it came time to vote, Jack LaSota said that letters written to an ex-girlfriend shortly before the murders convinced him that Cook wasn’t mentally ill at the time. He added that Cook was obviously no longer the person he had been when he committed the murders. “He has become a much better man,” he said, then voted to kill Cook anyway.

Belcher, Kirschbaum and Wilkens voted with LaSota. Stenson said that she wasn’t convinced by the mitigation arguments, but that she thought it best to err on the side of caution, and so she voted for clemency.

Dale Baich, head of the Capital Habeas Unit, then requested a stay of execution because an argument concerning the legality of a drug being used for executions was still being litigated. This time, LaSota was in favor of a stay, but he was outvoted by the other board members.

And then it was over.

I left quickly, and went to the staff entrance at the back of the building. I planned to wait for the board members to come out, and I was going to ask Stenson why she had voted against a stay of execution if she favored clemency, and I was going to ask LaSota why he had voted to kill someone whom he acknowledged was no longer the brute he had been when he committed his crime two decades ago. I was going to ask them, but when LaSota, Stenson, Wilkens and Kirschbaum came out, laughing and chatting on their way to lunch, I was somehow more horrified by that than I had been when I had listened to the details of Cook’s childhood, and of what he did to his victims. I stood there, unable to speak, until they were gone.

Dale Baich

Yesterday, Dale Baich, who runs the Capital Habeas Unit of the  Federal Public Defender’s Office in Phoenix, was named Abolitionist of the Year by the Coalition of Arizonans to Abolish the Death Penalty.

Rather than accept the award for himself, Baich said he would accept it on behalf of all the staff of the Capital Habeas Unit. “The people who really deserve the honor and recognition… are the dedicated and hard-working men and women who I work with every day, some of whom are here… Their dedication and commitment to the challenges our clients face is beyond anything I have witnessed as a professional.”

He added that abolition of the death penalty would be “a marathon, not a sprint.”

Just before attending the award luncheon in Florence, Baich visited Daniel Wayne Cook, who will be executed on Tuesday. “He asked me to pass along these words: Keep fighting real hard. Let’s get rid of capital punishment once and for all. Thank you for all you do. Kiss life on the lips.”

Here’s a short piece I wrote about Baich, published in Phoenix New Times in 1998.

He features prominently in this piece, published in Flaunt in 2008.

“We’re going to use our automatic weapons if we have to, and I’m tired of my deputies having to chase these people and I’m sure the air posse will be able to spot these guys running as they do constantly from us,” Arpaio said.

Read the rest.

So, Arpaio intends to have vigilantes use automatic weapons against people who are already risking their lives walking through the desert in order to get jobs that most Americans don’t want.

Johnny Porno by Charlie Stella (Stark House, paperback, $15.95) This is the first book I’ve read by Charlie Stella, and I’m still in shock over how good it is. Actually, I take that back - it’s not good, it’s great. It’s one of the best novels I’ve ever read. There isn’t one page that’s less than great. It doesn’t have a single flaw.

If that sounds extravagant, read the book and see for yourself. It’s as if Elmore Leonard had written Dostoevsky’s novels. Set in New York City in the early 1970s, it’s the story of a working class man down on his luck who takes a job delivering copies of the just-released-and-banned movie Deep Throat to mobbed-up movie theaters. It’s the story of an entire culture, with a large cast of characters, but (unlike the books of Dostoevsky) it never gets confusing or rambling. It’s suspenseful, violent, sexy, funny and true.

The protagonist is a fan of the George V. Higgins novel The Friends of Eddie Coyle, so I assume that Charlie Stella is too. That is my favorite novel, and I think Johnny Porno might be its equal, which is something I’ve never said about any other book.

This picture shows Jeremy Morlock, one of the U.S. soldiers who killed Afghan civilians for sport, with one of his victims.

Rolling Stone has the story and the pictures.