Friday, January 19, 2018

Can acting in a client's best interest violate the 14th Amendment?

On Wednesday the US Supreme Court heard a case out of Louisiana that raised the question of whether or not a lawyer can tell a jury his client is guilty - over his client's wishes.

Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.

Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.

Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.

At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.

Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.

Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.
“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” - Justice Sonia Sotomayor
At trial Mr. English repeatedly told the jury that Mr. McCoy was guilty of the murders. According to Mr. English, his goal was to get the jury to convict McCoy of the lesser charge of second-degree murder because he suffered from diminished mental capacity, thus sparing his life. Unfortunately for everyone involved, Mr. English was not up on the law in Louisiana (as if this should have surprised anyone). You see, in Louisiana you are only eligible for a diminished capacity defense if you have entered a plea of not guilty by reason of insanity. Oops.

In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.

On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.

But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?

What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.

What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.

I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?

See also:

Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)

Wednesday, January 17, 2018

Execution Watch: 1/18/2018

Tomorrow night the State of Texas looks to kill again...

ANTHONY SHORE. Condemned following his conviction in the murders of four females in the Houston area over a 9-year period, Shore was scheduled to be executed on October 18, 2017. However, his execution was stayed by a district court judge to allow time to investigate claims that a fellow death row inmate, Larry Swearingen, had tried to persuade Mr. Shore to confess to the crime for which Swearingen was sentenced to death. Swearingen, who was scheduled to be executed in November 2017, also received a stay.



Unless a stay is issued, Execution Watch will broadcast live:
Thursday, January 18, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Monday, January 15, 2018

Whitewashing MLK Day

I got quite the chuckle when I saw a link to a Fox News story in my Twitter feed decrying the "media" for politicizing Martin Luther King day. According to the sages at Fox, today is a day to celebrate national unity, not divisiveness.

That, my friends, is the biggest attempt to whitewash MLK day since national chain stores began running MLK day specials.

King is now revered among some on the right side of the spectrum because he preached non-violence - and because he's now dead. During the 1960's those on the right side of the political spectrum called him a rabble rouser, a Communist and an assortment of names I'm not going to print.

Dr. King's work wasn't about "national unity," it was about black folk in this country getting on equal footing with their oppressors. Dr. King was hated by white folk all around the country and particularly by those in the political establishment in the South.

Those on the right love to quote from Dr. King's Washington Mall speech in which he spoke about young black children and young white children living in a world of equal opportunity. What they never cared for was the struggle for those young black children to get to the same starting line as their white counterparts.

The right also doesn't want to talk about Dr. King's Poor Person Campaign, his work against the Vietnam War and his work with labor organizers in the South. Never forget that King was assassinated the day after speaking to a group of striking sanitation workers in Memphis.

What apparently has Fox all in a tizzy is this cover of The New Yorker magazine that depicts Dr. King also with Colin Kaepernick and Michael Bennett kneeling. Fox would like you to believe that Dr. King was a non-threatening black preacher who spoke in generalities about someday black and white folk being judged on their merits and not the color of their skin.

Fox would like you to forget about the protests. They would like you to forget about firefighters turning water hoses on peaceful protesters. They would like you to forget about police officers turning their dogs loose on peaceful protesters. They would like you to forget about police officers beating peaceful protesters on the Edmund Pettis Bridge. They would like you to forget about the struggle for black folks to vote. They would like you to forget that these events occurred in the 1960's. That's within our lifetime.

Dr. King's life wasn't about national unity. His life was about the struggle for equality. And struggle means protest. It means making those in power feel uncomfortable. It means asking difficult questions. And that's what the whitewashers are trying to hide.

Friday, January 12, 2018

When winning is the only thing

This month's cover story in Slate is about three prosecutors who kept pushing and refusing to give up the fight against men who were proven innocent. The stories and circumstances are all different but the story in each case is equally chilling.

In an adversarial system, both prosecutors and defense attorneys are trying to win their case. The theory (faulty at best) is that through the crucible of a trial, the facts will come out and a jury made up of local citizens will be able to determine whether or not a crime occurred.

Nice in theory - but that's not how it works in real life. In many cases of exoneration there are items with biological material that were never tested. In the end when this evidence was tested the results proved that someone else committed the crime. The items weren't tested in the original proceeding because the defense attorney would be taking a big gamble in having the tests carried out. Let's think about it, we all assume the worse case scenario for our clients. If there is a rag, or a shirt or some other item with blood or other bodily fluid on it, it's often better to hold up that evidence as an example of reasonable doubt. You see, jurors, the state didn't test it because they didn't want to know their theory of the case was wrong. If the defense attorney asks for the items to be tested and they don't exclude her client, now that's a serious problem.

Thanks to our modern day love fest with all things police, and the right-wing "Blue Lives Matter" campaign, jurors come into the courthouse believing that the police are all hard-working servants of the people who are honorable and would never coerce a confession or tamper with evidence. In truth, as we all know, once the police hone in on a suspect, everything they do is geared toward proving that person committed the crime - and if the evidence doesn't fit that model then it never gets mentioned.

As a result, innocent people get convicted. They get convicted of traffic offenses, they get convicted of petty crimes, they get convicted of heinous crimes.

These men and women serve years behind bars. Their lives are destroyed. Their families are torn apart. And then, if they get lucky, when evidence demonstrating their innocence is prevented, the courts and prosecutors continue to fight to keep them behind bars. It's almost as if admitting that a mistake was made would cause the entire system to collapse upon itself.

Of course I prefer to think that it would shine some light on the problems with our criminal (in)justice system. It would be a good thing for jurors to walk into the courthouse a little more skeptical than they are now.

But that's another story for another day.

While prosecutors and defense attorneys fight to win cases, the duty of the attorneys is different. The duty of a criminal defense attorney is to defend his or her client by all means possible. But a prosecutor has a different task. While the prosecutor's goal is to win, because of the power the state has to take away a person's life or liberty, the prosecutor must temper their goal to win with the duty to see that justice is done. And sometimes that duty means having to stand up and say we got it wrong this time.

That is a quality that the prosecutors mentioned in this article did not demonstrate. Their primary concern was to win, justice be damned.

Thursday, January 11, 2018

What has Jeff Sessions been smoking?

Why does the US government even care about marijuana? Every state in the country has its own laws regarding hippie lettuce - there is no need for the federal government to be involved.

Hasn't anyone in Washington ever heard of the 10th Amendment? Hasn't anyone learned about the concept of federalism?

Jeff Sessions is just the latest Republican officeholder to cast federalism aside when it doesn't suit his needs. His recent decision to reverse the Obama-era hands-off policy with regard to cannabis shows just how out of touch old, white wingnuts are - and just how hypocritical they are.

Voters in states across the country have decided that the existing chronic laws make little or no sense. There is a growing understanding that the happy grass is more akin to alcohol - a perfectly legal drug - than it is to cocaine and other narcotics. Many local jurisdictions have taken steps to decriminalize the possession of small amounts of weed by offering pretrial diversions or treating the offense like a traffic ticket.

As an aside, part of this change in attitude toward wacky tobacky has to do with the fact that the majority of users are white. And when upper income white folks find themselves inconvenienced in their indulgences, well, that's a problem.

Regardless of one's feelings about bud, I would hope that we could agree that there is no need for los federales to be involved in most drug prosecutions. States have laws governing the use and possession of various narcotics and illegal drugs. There is no need for the federal government to stick its nose in state criminal matters. It makes a whole lot more sense for these cases to be prosecuted in local jurisdictions.

But, as I have pointed out on countless occasions, the familiar conservative call for limited government generally only considers those circumstances when the government has issued regulations for the protection of workers or the environment. Conservatives, by and large, have been fine with the intrusion of the government into matters involving individuals.

One interesting unintended consequence of Mr. Sessions' desire to turn otherwise law-abiding citizens into criminals may be a larger push to not just decriminalize pot, but to legalize it instead. Already 29 states, comprising about 60% of the US population, have legalized marijuana in some form or another. Eight states have legalized the personal possession of grass.

There will be a backlash to Mr. Sessions' attempts to re-impose prohibition on the 420. There are plenty of Republican lawmakers at the state and national level who have come out in opposition to this new direction. Jeff Sessions is fighting a rear-guard action he can't win. He can only hope not to step in it too deeply.

See also: "Jeff Sessions helps the cause of legalizing pot," Chicago Tribune (1/10/18)

Tuesday, January 9, 2018

School board members acting like petulant children

This is how democracy works in this country.

The Vermillion Parish school board met to determine whether to give the school superintendant a raise. Ms. Deyshia Hargrave had the nerve to question the school board as to why they were giving the superintendant a raise when teachers hadn't had a raise in years.

In the meantime class sizes have increased along with the duties of the teachers.

Instead of answering Ms. Hargrave's questions, the presiding officer of the school board decided to have her removed from the meeting. The officer, who showed himself to be nothing more than a lackey for the administration, roughed up Ms. Hargrave before arresting her on charges of remaining when forbidden and resisting arrest.

School board meetings are supposed to be open to the public. Members of the public in attendance have the right to ask questions and make comments during portions of meeting. Now I understand that many school board members would prefer to make their decisions in private where they are away from the glare of the light and can avoid taking responsibility. But that isn't how it's supposed to work.

The school board in Vermillion Parish - just like many school boards across this country - showed where their priorities were. It's a whole lot easier to raise the superintendant's salary that it is to explain to the public that taxes need to be raised to pay for school improvements and teacher salary increases.

But what happened in Vermillion Parish was uncalled for. Yes, board members who favored the pay increase - and the superintendant himself - certainly didn't want to be questioned about it. They expected everyone in attendance to just go along with the proposal. But when your response to being questioned by not just a member of the public, but your own employee, is to have her dragged out of a meeting and arrested, you have shown yourselves to be incapable of leadership.

This video should be broadcast as part of a civics lesson on how not to govern.

H/T David Begnaud

See also "Louisiana teacher handcuffed forcibly after asking questions at board meeting," The Guardian (1/9/2018)

Monday, January 8, 2018

What will Cliven Bundy do next?

On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.

Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.

And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.

There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.

There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.

As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.

The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.

While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.

The Bundys fell in the former, most of our clients fall in the latter.

Sunday, December 24, 2017

Merry Christmas from the Bexar County Sheriff's Office

Kameron Prescott was a 6-year-old who lived in a trailer park in Shertz, Texas (just outside San Antonio). I use the word was because on the Friday before Christmas, deputies with the Bexar County Sheriff's Office killed Kameron while shooting en masse at a woman who was a suspect in a car theft.

Earlier in the day officers confronted the woman who was hidden in a closet. Supposedly she pointed a gun at officers and escaped their grasp. Officers conducted a manhunt and tracked the woman to the trailer park.

They opened fire with pistols and rifles when she attempted to break into the trailer in which Kameron lived. The woman was killed - but at least one bullet passed through the outer wall and struck Kameron in the abdomen. Kameron was declared dead after being taken to a hospital.

No gun was recovered from the woman who was the target of the officers' ire.

This incident brings a number of questions to mind. First, why were multiple officers opening fire at a woman in a residential area? Second, why were they firing at a person who had done nothing threatening at that point to police? Third, did no one ever stop to think that a stray bullet could penetrate the outer shell of a mobile home?

Of course the apologists for law enforcement will point out that the woman in question had pulled a gun on police earlier in the day. They will talk about how hard it is to be a cop and how they have to make split-second decisions and that it's not fair to second-guess their decisions.

To which I say - bullshit.

If white folks were being gunned down by police at the rate at which people of color are in this country, there would be riots in the streets of every suburb in America. It's because most people living in their little bubbles don't give a fuck if the police kill a person of color.

They may pipe up about what a tragedy it is that a young boy was killed but they won't think twice about the police shooting and killing a person who was suspected - but never convicted - of a criminal offense. They won't even think twice about the fact that car theft is a non-capital crime. They'll just spout off about how she brought it on herself by not co-operating with the police. Like that somehow justifies murder.

The next time you see a car with a sticker that says "Blue Lives Matter" or "Cops Lives Matter" take a look at the hue of the person driving the car. Those stickers are the "polite" way of saying that the person driving the car thinks it's okay for the police to kill people of color.

They might not be pulling the trigger, but they certainly don't have a problem with it. They are the same people who rail on constantly about what a bad person Colin Kaepernick is for protesting police violence during the playing of the anthem at NFL games. But race has nothing to do with that, does it now?

Meanwhile, no one will be charged with manslaughter or arrested. They might have a little paid vacation to "cool" down.

Kameron Prescott's family isn't so lucky. Nothing will ever fill the void caused by the acts of these officers. Thoughts and prayers will be nothing but an empty gesture made by a bunch of folks who want to appear to care.

This slaughter of innocents must come to an end.

Here is a link to the family's GoFundMe page to raise money for funeral expenses.

Saturday, December 23, 2017

You couldn't screw it up this bad if you tried (or could you?)

I have very mixed emotions about the dumpster fire that has become the Cliven Bundy trial. This week, US District Judge Gloria Navarro declared a mistrial after finding that government prosecutors had withheld potentially exculpatory evidence from defense attorneys. She will decide in February whether the government's case should be dismissed with prejudice.

Mr. Bundy and his band of merry men became famous when they resisted the government's effort to collect grazing fees back in 2014. For more than 20 years Mr. Bundy had been grazing his cattle on federal land in Nevada without paying grazing fees.

After an armed stand-off (sound familiar), government agents left with their tails between their legs and no money in their wallets. Los federales made no other attempts to collect the money owed to taxpayers.

Emboldened by his success, Mr. Bundy and his band of merrier men decided that Oregon would be the next front in his battle against the government. Mr. Bundy's group carried out a 41-day long armed occupation of the Malheur National Wildlife Refuge in support of Oregon ranchers sentenced to jail for setting fires on federal lands.

Now, before I go any further, it's time for a little digression. During the occupation, federal agents treated the Bundys with kid gloves. I shudder to think what the government's reaction would have been had the occupiers been black or brown or any color other than white.

Despite video evidence, e-mail messages, photos and Facebook posts, the government's case has crumbled because prosecutors failed to turn over surveillance footage, threat assessments and FBI reports - after first denying they ever existed. Even more disturbing is the admission (again, after initial denials) that prosecutors had recordings of another defendant's jailhouse conversations with his attorney.

Of course, for those of who work in the criminal (in)justice system, none of these revelations are all that surprising. What's generally more surprising is them coming to light.

As much as I hate to see armed wingnuts like Cliven Bundy and his bank of merry men running around free, I cannot stand by and try to justify the government's failure to disclose potentially exculpatory evidence to the defense. And that paints it just a little too sterile as prosecutors lied and misrepresented the truth to the Court. That's not a failure to disclose, that's a freaking ethics violation.

I don't think that Judge Navarro has any other choice but to dismiss the case outright next year due to prosecutorial misconduct.

The only question I'm left with is whether or not the government torpedoed its own case because it didn't want to make martyrs of the Bundys.

Friday, December 22, 2017

Just let the taxpayers pick up the tab

What a gig being a congressman must be. You can ogle, tickle, grope and otherwise sexually harass your staff and not pay a dime for it.

In fact, you can just hand the bill to the US taxpayers and they'll take care of it for you.

Although Blake Farenthold (R-Texas) continues to deny Lauren Greene's allegations of sexual harassment, he used money from an Office of Compliance account to pay an $84,000 settlement in the matter. Those funds came from taxpayers.

And lest you think I am unfairly singling out Mr. Farenthold for stealing taxpayer money to pay for his contemptible behavior, the Office of Compliance has paid out $199,000 to settle four sexual harassment matters since 2008.

The rules and requirements of the Office of Compliance have come under scrutiny after a handful sexual harassment complaints have been publicly lodged against congressmen, forcing some to resign and others not to seek reelection. The lack of transparency in the formal process has raised concerns over the ability of congressmen to quietly settle complaints without any real consequences. What we do know is: “the Treasury fund, which was created under the Congressional Accountability Act of 1995, has paid more than $17 million for 264 settlements and awards involving offices on Capitol Hill,” according to the [Washington] Post.

This is just another incident that highlights the bubble that members of Congress live and work in. Rarely are there any consequences for their behavior or actions that can't be hushed up and kept out of the public sphere.

Don't let the door smack you in the ass on your way out, Blake.

Friday, December 15, 2017

I vaguely remember something about motions and lemons from law school

Matthew Spencer Petersen was nominated by President Trump to be a federal district judge for the District of Columbia. He is currently the head of the Federal Election Committee, having been nominated for that post by President George W. Bush.

Prior to serving as head of the FEC, Mr. Petersen served as the Republican chief counsel to the Senate Committee on Rules and Administration. Prior to that he served as counsel for the Committee on House Administration. From 1999 until 2002 he practiced election and campaign finance law at Wiley Rein LLP in D.C.

It is interesting to note that Mr. Petersen has never tried a case before a jury. He has never tried a case to a verdict. He has never argued a motion in court. But that's not even the best part.

This week he was one of five nominees to go before the Senate Judiciary Committee for hearings on their nominations. Each senator was given a grand total of five minutes to ask the nominees questions on their qualifications to serve on the federal bench.

Senator John Kennedy (R-La.) made the most of his time. He asked Mr. Petersen a series of fairly innocuous questions about legal procedure that a judge would be expected to know. The result was, on the one hand, hilarious as a lawyer nominated for a judgeship tells a senator that he knows next to nothing about the law. On the other hand, it is quite disturbing to think that people who are as unqualified as Mr. Petersen could sit as a judge for life making decisions that affect everyday folks.

Here is the video. Have a great afternoon.

A special shout out to Sen. Sheldon Whitehouse (D.-RI) for posting this video on his Twitter feed.

On its way to the ash heap of history

For the second year in a row, the State of Texas murdered seven inmates. Last year marked the fewest executions in two decades, now that number has been duplicated.

But even though the number of executions has remained low for the past two years, Texas still led the nation in state-sponsored murder, outpacing the four killed in Arkansas. There have been a total of 30 executions across the country in 2017.

A number of factors account for this (encouraging) trend. The first is fewer people are being sentenced to die in Texas. That number has been dropping since Texas jurors were given the option of sentencing a defendant to life in prison without parole.

Legal challenges to the death penalty have also been more successful as the number of scheduled executions wanes. These challenges have ranged from attacks on junk science to the method of execution. Once drug suppliers began to restrict supplies of drugs needed in "lethal cocktails," states have had to draw up new drug protocols which have invited legal attack on Eighth Amendment grounds.

As the number of executions decreases, the population on death row has aged. Some inmates have "cheated" the executioner by dying in prison.

Attitudes toward the death penalty have also changed. Since 1995, support for the death penalty has dropped from 80% to 49%. While most whites support the death penalty, as the non-white share of the population increases, so do dissenting voices.

Bible thumpers, despite being told "thou shalt not kill," overwhelming support the right of the state to kill. And that, somehow, still makes them "pro-life" - whatever the hell that's supposed to mean.

Part of the reason behind this change of attitude has been the number of people sentenced to death who have been exonerated over the past dozen years or so. I think there is a growing realization that our trial process is flawed due to the sheer number of people who have been exonerated after having had a jury decide the state had proven its case beyond a reasonable doubt.

And that realization is what is most likely to kill off the death penalty in this country. The sheer number of exonerees tells us that innocent men have been murdered by the state in the past. And for a country that claims to follow the rule of law, one is too many.

As much as I would love to see the death penalty outlawed across the United States, I don't think that's likely to happen in the foreseeable future. However, I do think that the death penalty will go away on its own accord in my lifetime. It will be done away with by junk science, prosecutorial misconduct, lack of drugs and a growing belief that life without parole is more humane.

Thursday, December 14, 2017

He must have answered an ad on the internet

Call it hypocrisy.

Call it cognitive dissonance.

Call it political opportunism.

Call it whatever you like after Sen. Charles Grassley (R-Iowa) asked the White House to withdraw Brett Talley's nomination to be a U.S. District Judge in Alabama.

And he got his wish as either Mr. Talley or the White House withdrew his name from consideration for the bench.

If you remember, the American Bar Association rated Mr. Talley "unanimously unqualified" for the position after his testimony that he had never set foot in a federal courthouse in his capacity as a lawyer.

Despite the ranking from the A.B.A., the Senate Judiciary Committee, chaired by Sen. Grassley voted 11-9, along party lines, to approve Mr. Talley's nomination and to send it to the Senate for a confirmation vote. Which means that the very man who called on the White House to withdraw the nomination, voted for it in committee.

By the way, both John Cornyn and Ted Cruz voted in favor of the nomination despite the fact that Mr. Talley was not qualified to sit on the bench. But what the hell, boys? He has an R after his name and we need all the R's on the bench we can get, don't we?

Oh, what, pray tell, did Sen. Grassley discover that he didn't already know before voting to approve the nomination?

Was it the fact that he failed to disclose that his wife worked in the Office of the White House Counsel? Was it the fact that he was a ghost hunter? Was it something about his support of the KKK?

I find it hard to believe that in this day and age no one had any knowledge of these matters. I think it was only after they became public that some Republican senators decided they couldn't afford to vote in favor of his confirmation -- even though they voted to approve the nomination.

It is customary in the Senate for the senior senator of the President's party either to submit a name for nomination or to give his consent before a person is nominated. Sen. Richard Shelby, the senior Republican senator from Alabama, announced his opposition to the nomination when the wind started blowing a bit harder. At some point he, too, had to have gone along with the nomination.

While this matter is humorous in a way, it is also quite scary when you stop and realize that he was appointed for a lifetime post. While there are many judges of all political stripes appointed to the federal bench who are well-qualified to sit on the bench, there are some nominees who have no business getting near the inside of a federal courtroom.

Mr. Talley was one of those. Everyone involved in the process by which his name was put forward by the White House should be publicly shamed.

Wednesday, December 13, 2017

What happens when a law prof ventures outside the ivory tower

Over a year ago I wrote about the hornets nest that opened around Judge Aaron Persky in Santa Clara, California. You may recall that he presided over the trial of a Stanford swimmer accused of sexually assaulting an unconscious woman behind a dumpster.

The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.

Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.

As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.

Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?

The answer is he never did.

Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.

As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.

It's that simple.

The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.

It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.

When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.

The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.

Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.

Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.

Friday, December 8, 2017

DA asks Governor to grant clemency

Texas, like many other states in the South, has an unhealthy fascination with the Old Testatment's call for an eye for an eye. Well, to an extent. It's long been the case that an eye for an eye applied mainly to black defendants convicted of murder while white defendants convicted of murdering a black man seemed to escape Biblical wrath more often than not.

Texas even went above and beyond when the felony murder statute made any person involved in a felony offense where a person was murdered subject to being killed by the state.

Back in 1996, Jeff Wood got himself caught up in the maelstrom when he was convicted of murder of a convenience store clerk in Kerrville - even though he was sitting outside in the truck while his friend, Daniel Reneau, shot and killed the clerk.

The prosecutor in that case, Lucy Wilke, asked the jury to sentence Mr. Wood to death for his role in the murder. Now Ms. Wilke is the Kerr County District Attorney and has had a change of heart. So to have the police chief of Kerrville, David Knight, and State District Judge Keith Williams. They all signed a letter to Governor Greg Abbot asking him to grant Mr. Wood clemency and change his sentence to life in prison.

In 2016, Mr. Wood was scheduled to be murdered by the State of Texas. As his execution date approached there was an uproar in the state legislature - from both sides of the aisle - about the scheduled execution. There were also calls to change the law of parties to eliminate the provision allowing a jury to sentence a defendant to death if they thought he should have anticipated that a second felony might flow from the first.

Those efforts failed in the most recent legislative session.

While you might argue that any person who participates in a felony should be culpable for any murder that might occur during the commission of the felony, sticking a needle in the arm of someone who didn't pull the trigger is a bit of a reach.

Regardless of what you might think of Mr. Wood, he is not the person who made the decision to kill the clerk. He didn't intentionally or knowingly cause the death of Kriss Keeran.

Strapping Mr. Wood down on a gurney and pumping poison into his veins isn't going to bring anyone back. It's not going to ease anyone's pain. It will not fill the hole in anyone's life.

It would, instead, make everyone involved complicit in a disproportionate response to an unfortunate incident.

I think the reason that Republican members of the state legislature got behind the effort to halt the execution is they felt that killing a person who didn't pull the trigger would only give more ammunition to the those of us who want to see an end to the death penalty.

All eyes are now on Greg Abbot. But don't expect him to grant clemency. Mr. Abbot is a true believer who thinks it makes him look tough to order an execution carried out.

Wednesday, December 6, 2017

Let them eat cake

Yesterday the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about the baker who refused, on religious grounds, to bake a wedding cake for a same sex couple.

Amy Howe over at SCOTUSblog did an excellent analysis of yesterday's questioning from the Supremes. She believes the court will split (again) 5-4 in favor of the baker but wonders just how narrowly they will craft the opinion. She based her analysis on the change in tone of Justice Kennedy's questions from start to finish.

First, I must point out, once again, that religious belief is still the most popular justification for discrimination. Now I could go on and on quoting portions of the Bible in which Jesus preaches a message of equality and love and brotherhood. But I'm not.

Jack Phillips likes to call himself a christian. But he believes that the holy word gives him the right to discriminate against those whom he doesn't like. The latter day charlatans who preach that homosexuality is a sin worse than any other act like they are quoting the word of god when they launch into their hateful spiel. The only problem is the book they are quoting from has been translated countless times from multiple languages. There's no guarantee that the words they are quoting in 2017 are the same words written in the original texts.

But we digress.

The issue is whether a privately run business has the right to decide whom they wish to provide with services. This is different from the argument in the 1960's that private buses, trains, hotels and restaurants were public carriers. Mr. Phillips claims that forcing him to make a cake for a same sex wedding would somehow violate his right to free speech. I'm not really buying that one because food is not speech. Food is food and food is for eating.

Does requiring him to bake the cake violate his right to freedom of religion? As far as I can tell, no one is telling him what to believe or how to do it. However, would requiring him to bake the cake trample upon his right to the free exercise of his religion? That is a much closer question, I think.

What does it mean to exercise one's religion? Baking and selling cakes is a commercial enterprise, not a religious one. Maybe he says he's spreading the word of god by baking cakes - but is that exercising one's religion?

And what if in exercising that religion a person, or entity, intentionally discriminates against another based upon that person's race, sex, ethnicity, national origin or sexual orientation?

And, as an aside, at what point do we finally acknowledge that religion serves more to divide us than to unite us? White protestant churches were very prominent in the fight to preserve Jim Crow segregation in the South. All of the major protestant denominations split in the 19th century over the question of slavery.

Back in college I took a class on sociology and religion and our professor played for us a recording of an Emo Philips routine that I have looked for off and on for years -- and finally found it.

There are some serious issues that need to be addressed in this case. The Court must decide how much discrimination in private commercial enterprises is acceptable. If the Court decides it is acceptable then the Court must decide whether the enterprise wishing to discriminate must give a reason for its choice. If so, the Court must decide where to draw the line for a legally valid rationale for discrimination. Finally, the Court must decide which groups can be discriminated against for which reasons. It remains to be seen whether the Court will develop a balancing test to determine how large a community has to be in order to permit discrimination.

Regardless of the decision, the law of the land will most likely be determined by the vote of one justice - Anthony Kennedy. Not quite what the Founding Fathers had in mind, I daresay.

Monday, December 4, 2017

Ignorance is disgusting

Last week Donald Trump once again displayed his ignorance about how the criminal (in)justice system works in this country when he tweeted out that the verdict in the trial over Kate Steinle's murder was disgraceful. Attorney General Jeff Sessions opened his mouth and displayed his ignorance when he proclaimed that the murder was the result of San Francisco's status as a sanctuary city for immigrants.

Jose Ines Garcia Zarate was acquitted of the charge of murder in a month-long trial in San Francisco, though he was convicted of being a felon in possession of a firearm.

Now, I don't recall Mr. Trump expressing any outrage at jury verdicts in which police officers were acquitted for killing unarmed an unarmed black man. Quite the opposite, he was quite happy. We can all be angry at a jury for the decision they made but, unless you were in the jury, your view of the case can be quite warped.

Mr. Trump seemed upset that the jury was not told that Mr. Garcia Zarate had crossed the border illegally five times. Well, I've got news for you, Mr. President, such a fact is inadmissible in a murder trial. You see Mr. Garcia Zarate was tried for the specific offenses related to the death of Ms. Steinle and, therefore, the only evidence the jury heard was related to those offenses. You see, Mr. President, in this country (as flawed as our criminal (in)justice system is) we try folks on the evidence related to the crime with which they are charged.

Were the jury to have heard evidence regarding Mr. Garcia Zarate's immigration status they may have made a decision based on something other than the evidence regarding Ms. Steinle's death. They may have been asked to convict a man for murder for no other reason than he wasn't born in this country.

Now that would have been a disgusting verdict.

A jury doesn't hear all the evidence because some of it, sometimes a lot of it, isn't relevant to the case at hand. It is not uncommon for a jury to be excused from the courtroom while the attorneys argue over the admissibility of evidence before the judge. Those reading the newspaper or watching the news (or in attendance) are then made privy to information the jury never heard and will never consider.

The jury that heard the case wasn't trying to make any political statements. Their sole duty was to hear the evidence presented and to make a decision as to whether or not the government had proven their case(s) beyond a reasonable doubt. Just because a jury acquits a person doesn't mean they don't think a crime occurred. It means, instead, that they have more than a reasonable doubt, based on the evidence presented, that the government proved its case.

The jury's job isn't to convict someone - and it isn't to acquit someone. You may think a jury got it wrong, but that is how we decide cases the parties cannot work out on their own. And, in a murder case, sometimes the hardest thing to prove is that the actions of the defendant were intentional. And even though motive is not a required element of a murder case, the absence of a motive can raise reasonable doubt in the mind of a juror.

So, Mr. President, the jury's verdict wasn't disgusting. It was what it was. Using your bully pulpit to try to intimidate future jurors is disgusting.

And as for Mr. Sessions, you took an oath to uphold the Constitution and to seek justice. You're not happy with the verdict. Okay, I get that. However, threatening to file federal charges against Mr. Garcia Zarate is not seeking justice. It is called vindictiveness.

Wednesday, November 22, 2017

Yet another reason why it sucks to be poor

Nowhere in the warning does it say that the government could come and ask you to pay for your appointed lawyer's services.

Kelly Unterburger found that out the hard way. After being arrested in 2011 for possession of a controlled substance, Mr. Unterburger asked the court to appoint him an attorney because he was indigent. By the time his case was resolved in 2014 (he spent the entire time in jail), he was presented with a bill from Johnson County for almost $10,000.

The State of Texas allows counties to recoup the cost of appointed attorneys from defendants, provided they warn defendants that they will be held responsible for the fees.

Prior to September 1, the government had until sentencing to determine whether or not a defendant would be required to pay for his or her appointed attorney. That determination was made on a defendant's financial status up to that point. A new law makes it possible for counties to come back at any time during a defendant's sentence (whether he be in prison, jail or on probation) to re-evaluate the defendant's ability to pay the fees.

Hill County District Attorney Mark Pratt says the bill was designed to protect the interest of law-abiding citizens who are being asked to pay for counsel for indigent defendants.


The real purpose of the law is to coerce more indigent defendants to plead their cases early in the process in order not to run up high attorney fees. The new law serves to punish those who exercise their right to trial by jury in a criminal case.

This is part of a larger war on the poor that has been waged for decades in this country - and in this state. Most defendants are indigent to one degree or another. They spend months, if not years, in jail awaiting the resolution of their cases because of our for-profit bail bond system. Then, once the case is resolved they get hit with a bill for attorney fees.

Meanwhile the wheels of our criminal (in)justice system just keep a-chugging along.

Monday, November 20, 2017

Ohio botches another murder

This past Wednesday, the state of Ohio attempted to murder Alva Campbell, a 69 year-old who's been on death row since 1997. And, once again, they fucked it up.

On a walk-through of the execution conducted on Monday, prison nurses were unable  to find a functioning vein during a walk-through on Monday. And before I go any further let me say that I can't think of too many things that could be more cruel than making an inmate participate in a dry run of his own execution. The very fact they go through this charade should tell you everything you need to know about why state-sanctioned killing should be abolished.

But when it came time to murder Mr. Campbell, suddenly not one nurse could find a vein. They tried in both arms. They tried his leg. But they couldn't find a suitable vein to pump poison into Mr. Campbell's body.

As another aside, each one of the nurses who participated in either the walk-through or the actual execution attempt should be stripped of their licenses. I don't care how much you may want the money, aiding in the murder of another person is a violation of oath you took when you became a nurse.

After 45 minutes of agony the Director of the Ohio Department of Rehabilitation and Correction, Gary Mohr, called off the execution. My only question to Mr. Mohr is how come it took so long to realize you needed to call it off?

And, while I'm waiting for that answer, maybe someone can explain to me what greater purpose is served by executing an elderly man for a crime that took place 20 years ago.

Murdering an inmate is not a function of rehabilitation and it certainly has nothing to do with correcting behavior. Maybe Ohio should add "and Revenge" into the name of the department.

Gov. John Kasich, who had the opportunity to do the right thing, instead rescheduled the execution for June 5, 2019. Maybe he's thinking Mr. Campbell will make life easier for him and die between now and then.

I'm still waiting...

Friday, November 17, 2017

Fuck Troy Nehls and fuck you for voting for him

Yes, it's low-hanging fruit. But I've been under the weather the last couple of days and it's the best I can do.

I'm sure there are some folks down in Fort Bend County (once you cross the Brazos, you're in a whole different world) who are offended by the language. So fucking what.

I'm offended by police brutality, racism, the growing gap between the wealthy and the working class, war, Donald Trump and his band of wingnuts who take the flack for every stupid thing that comes out of his mouth.

Troy Nehls should know better. Should. But he doesn't because he comes out of the police culture which has become more of an us-against-them mentality as the old white guard tries desperately to cling on to power in a changing landscape. This is the man who is supposed to be the point of the spear for law enforcement in Fort Bend County and he doesn't even know the fucking law is. He might want to review the oath he took upon assuming office. When he says "jump" he expects folks to ask "how high?" and not "why?"

The prosecutor he spoke to who said she would be glad to prosecute the owner of the truck might want to spend the weekend boning up on Con Law, particularly First Amendment jurisprudence. Might be the only thing between her and disbarment.

Now, if this is the way Mr. Nehls overreacts to a situation in which someone expresses an unpopular (at least in the land across the Brazos) opinion, what kind of judgment would he show when the stakes get bigger?

But, in a world where "Blue Lives Matter" is code for "I don't give a shit how badly the police mistreat people of color," what else should we expect. It will never cease to amaze me how much the folks who claim they don't want big government are more than happy to have that same government poke its nose into the business of those who say or do something that is unpopular with the great white mass.

Wednesday, November 8, 2017

Execution Watch 11/8/2017

Tonight the killing machine strikes again...

RUBEN CARDENAS, a Mexican national, was convicted of murdering his cousin, a teenage girl from the border town of McAllen. Cardenas' conviction must be tossed, say Mexican authorities and his attorneys, because police violated Article 36(1)(b) of the Vienna Convention on Consular Rights when they failed to notify him of his right to contact the Mexican embassy after his arrest.

To read the Texas Court of Criminal Appeals' opinion, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, November 8, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Monday, November 6, 2017

Just kill him

Today the Supreme Court told the State of Alabama that it's okay to kill Vernon Madison, who was convicted of the 1985 murder of a police officer. While Mr. Madison is aware that he is being executed because he killed a police officer, Mr. Madison has no recollection of the murder due to a series of strokes he has suffered in prison.

Mr. Madison is 67 years old. He is legally blind. He cannot walk. And he is incontinent.

What is the point?

Other than he is black and we're talking about the Old Confederacy.

Justices Ginsburg, Breyer and Sotomayor wrote concurring opinions. Justice Ginsburg wrote that the question of whether a person who cannot remember their crime should be executed is a question that has never been addressed by the court. She also wrote that she thought the question deserved a "full hearing."

Justice Ginsburg, this was your chance. Just because the issue hasn't been raised before the Court before doesn't mean you have to vote with your colleagues to authorize a state to kill an elderly infirm man. You might as well just tell the victims of a mass shooting that your thoughts and prayers are with them and then move on to the next issue.

Justice Breyer pointed out that the execution of elderly prisoners is one that is likely to arise again and again going forward. He said he didn't think it prudent to develop rules for the execution of the elderly. Instead he wrote that we need to question the constitutionality of the death penalty.

Good for you, Justice Breyer. You had a chance to do just that and you passed. If you were serious about your qualms on the constitutionality of the death penalty you would dissent on every case upholding the death penalty and say why - just like Justices Marshall and Blackmun. But you didn't have the courage of your own convictions so you just went along with the majority.

Words are cheap. Especially when spoken by those in a position to act against an injustice. Killing Mr. Madison isn't bringing back a dead police officer. It isn't going to undo the trauma his ex-girlfriend went through. Killing Mr. Madison isn't about justice. It's about revenge. It's about a white power structure doing whatever it can to kill a black man.

And if you support the death penalty, that's what you are really supporting.

Thursday, October 12, 2017

Execution Watch 10/12/2017

Tonight the State of Texas will kill again...

ROBERT PRUETT, 38, has steadfastly claimed that others framed him in the 2002 killing of a corrections officer who was stabbed to death at a prison near Corpus Christi. An execution date in August 2016 was stayed by the Texas Court of Criminal Appeal. The new killing date was set after the appeals panel ruled that DNA testing would not have changed the outcome of his trial. He has been in prison since the age of 15, having been convicted of being an accomplice on a murder committed by his father.

For more information on Mr. Pruett and his case, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Thursday, October 12, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Monday, February 6, 2017

The bankruptcy of ideas

President Trump's nominee to the Supreme Court, Neil Gorsuch is a real throwback. Really a throwback.

He is a self-described "originalist" when it comes to interpreting the Constitution. In other words, in Mr. Gorsuch's reality, the words and phrases in the Constitution mean just what they meant back in the late 18th century.

Let's see. Back in the 1780's slavery was legal in the United States. Women didn't have the right to vote. There were no cars, there were no computers. The United States was a rural agrarian society. There was also a belief back in the early days of the Republic that the Bill of Rights only applied to the federal government - not to the individual states. There was also no such thing as judicial review by the Supreme Court until Chief Justice John Marshall went looking for a justification for his ruling in Marbury v. Madison and created it out of whole cloth.

Does this mean that a Justice Gorsuch would hold any warrantless search to be unconsitutional? Would he find that the NSA's data dumps to be illegal since computers weren't something contemplated by the Founding Fathers? Will warrentless searches of cars go away since there wasn't such a thing back in George Washington's days?

Will we return to the 18th century notion of an arrest instead of looking for any way possible to not call an arrest an arrest in order to keep evidence admissible?

Will the ruling in Citizen's United be cast upon the ash heap of history since the notion of the corporate person did not exist in 1789? And what about this quaint notion that campaign contributions are a form of free speech?

Does Mr. Gorsuch believe that every armed conflict the United States has entered since the end of World War II was illegal since there was no declaration of war from Congress?

Mr. Gorsuch's self-proclaimed judicial philosophy is completely vapid. It is but a fig leaf to cover a naked attempt to turn back constitutional protections of the accused, minorities and women. Now, as much as I disliked Antonin Scalia, he made some rulings in 4th Amendment cases that protected the rights of the accused. Of course those rulings were a small counterpoint to his rulings that favored the rights of the powerful over the rights of the powerless.

This bankrupt philosophy isn't a philosophy at all. It is merely a justification to carry out a libertarian agenda that will seek to unleash capitalism at its worst.

Tuesday, October 4, 2016

Execution Watch: 10/05/2016

Tomorrow night the State of Texas will return to its barbarous ways and fire up the killing machine for the first time in six months...

BARNEY FULLER, from Lovelady, Texas, was sentenced to death after he pleaded guilty to killing a couple who were his neighbors. At the time of the 2003 slayings, Fuller was awaiting trial on charges of making a terroristic threat against them. He was arrested at his home after a nearly nine-hour standoff with police.

For more information on Mr. Fuller and his case, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, October 5, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen