Monday, September 17, 2018

Hardly Solomonic

In 2002, Jeffrey Havard was charged with the killing of a 6-month-old baby. The state alleged it was a clear case of shaken baby syndrome. Mr. Havard insisted he had accidentally dropped the infant.

At trial, Dr. Stephen Hayne testified that Chloe Madison Britt had clearly been shaken to death. He compared the injuries to those one would receive in a car crash or from a fall from a significant height.

If that name sounds familiar it's because he was the subject of Radley Balko's excellent book The Cadaver King and the Country Dentist (click here for my review). Dr. Hayne made his bones in Mississippi by claiming to have performed an obscene number of autopsies and giving police and prosecutors what they needed in order to obtain convictions.

This case was no exception.

Mr. Havard was found guilty and was sentenced to death. However, on Friday, Mr. Havard's motion for new trial was partially granted by Adams County Circuit Judge Forrest Johnson (a former prosecutor also mentioned in Mr. Balko's book). Judge Johnson stated that the evidence presented at the hearing wasn't sufficient for him to question the validity of the jury's verdict but, it caused him to question whether the death sentence was appropriate. As a result, Mr. Havard was removed from death row and a new punishment trial was ordered.

Last year Dr. Hayne had a change of heart. He testified at a hearing on Mr. Havard's motion for new trial and changed his opinion. He now says that the injuries to Chloe that he observed could have been generated from a short fall if the baby fell on its head.

In 2009 the American Academy of Pediatrics recommended that the use of the term shaken baby syndrome be stopped and replaced with the term abusive head trauma. This was in response to a series of studies that discredited the diagnosis.

Renowned pathologist Michael Baden reviewed the evidence and came to the conclusion that the baby's injuries were the result of a fall on her head and not from being shaken to death.

This case raises some important questions, however. While it is good that Mr. Havard's death sentence was vacated because of the testimony at the hearing on the motion for new trial, it is confounding that the original conviction wasn't vacated as well.

The state's chief witness has recanted his original testimony. He changed his theory from the baby being shaken to death to the baby dying of injuries suffered in a fall. Shaking a baby to death is clearly an intentional or knowing act -- that is murder. However, dropping a baby isn't evidence of a deliberate act. If Judge Johnson believes a death sentence is inappropriate, how does he square that with leaving the conviction in place?

It's almost as if the judge is somehow considering the change in Dr. Haynes' testimony as more of a mitigating factor. And that's just plain wrong. When the state's chief medical witness changes his opinion of the cause of death, that casts doubt upon the jury's verdict regarding Mr. Havard's guilt. Take away that medical opinion and you are left without a single witness who can testify that Mr. Havard shook the baby to death.

The only reason I can surmise for Judge Johnson's actions is that he's afraid that other convictions based on the theory of shaken baby syndrome could be placed in jeopardy if Dr. Hayne testified on behalf of the state. Maybe he's right.

But it doesn't fucking matter. Judge Johnson's job was to make a decision in this specific case based upon the evidence presented at a hearing on a motion for new trial. It was not his concern whether any other convictions could be challenged on the same grounds.

Judge Johnson's half-assed ruling just goes to show that he's more interested in politics than he is in justice.

Friday, September 14, 2018

Let's have some smoke with that whitewash

Oh, and you just thought the drama surrounding the killing of Botha Shem Jean by an off-duty Dallas police officer was over. How wrong you were.

In an ongoing attempt to justify the unjustifiable, the Dallas police obtained a search warrant to look for evidence of drugs -- in Mr. Jean's apartment. That's right. Instead of treating Amber Guyger as any other defendant charged with killing someone, the police went to a judge and obtained a search warrant -- signed by a judge -- giving them permission to search Mr. Jean's apartment for drugs. A judge had to read the affidavit and agree that there was probable cause to believe evidence of a crime would be found in Mr. Jean's apartment -- and that said evidence was relevant to the investigation of his murder.

And, of course, once the cops found some marijuana in the apartment, the media were alerted and the stories began popping up around the state that weed had been found in Mr. Jean's apartment.

Now let's step back for just a second here. Any marijuana - or any other illegal items - found in Mr. Jean's apartment are completely irrelevant to the investigation of the killing because Ms. Guyger said the lights were out in the apartment when she entered it and shot and killed Mr. Jean.

She wasn't carrying out a raid. She wasn't executing a search warrant. According to her story she walked into the wrong apartment and shot Mr. Jean thinking he was an intruder in her apartment. Besides, the possession of small amounts of marijuana is a misdemeanor -- it's not a capital offense.

The point in obtaining the warrant was to gather "evidence" that would make Mr. Jean look like a criminal in the public's mind. Suddenly he goes from innocent victim to a black drug user or dealer. Now the cops and prosecutors will point out every time they are asked to comment that illegal drugs were found in Mr. Jean's apartment in an attempt to divert attention away from the facts that an unarmed black man was shot and killed in his own apartment by an off-duty cop.

Such a tactic will also divert the public's attention from the fact that Ms. Guyger was allowed to leave the scene and was free to discard or destroy any evidence of the crime. We will never know if she was under the influence of drugs or alcohol because any evidence of intoxication has already been pissed, sweated and breathed away. I'm sure the cops and the District Attorney would be more than happy if the public would quit paying attention to the ridiculous story Ms. Guyger told investigators and that was subsequently used in the arrest warrant.

No matter what smokescreens the Dallas police erect, never forget that Mr. Jean was in his own apartment minding his own business when a cop entered, barked orders at him and shot him to death.

The only good thing to come from this situation is the public's realization that the police will go to whatever lengths they need in order to cover up for one of their own.

And people still don't understand why Colin Kaepernick knelt.

Wednesday, September 12, 2018

Whitewashing a police shooting in Dallas

Did y'all hear the one about the off-duty cop who walked into the wrong apartment and then accidentally shot the person who actually lived there? How about the part where she wasn't arrested afterward and was free to go back to her place? And what about the arrest affidavit that was just a retelling of her story?

Hysterical, isn't it?

Amber Guyger is a four-year veteran of the Dallas Police Department. On the evening of September 6 she supposedly returned home to her apartment in the Southside Flats. Somehow she ended up on the wrong floor and inside the apartment of Botham Shem Jean. She claims that she inserted her key (which contained an electronic chip) into the lock of the apartment door but the door was ajar. She entered. When she heard someone she yelled at them to stop and then she fired her gun and killed Mr. Jean.

The story is beyond absurd. How did she end up on the wrong floor? She lived there. She knew what floor she was on when she exited the parking garage. Her claim that the door to Mr. Jean's apartment was ajar doesn't hold any water, either. According to the affidavit, when she pushed open the door the lights in the apartment were off. She claims she turned on the lights after shooting Mr. Jean.

So we are to believe that she got confused, went to the wrong floor and then stuck her key in the door of the wrong apartment. Please. Apartment doors have numbers on them. The apartment was in an interior hallway. She claims the lights in the apartment were out and that she heard someone stirring about. Really? Someone's going to leave their door ajar in the middle of the night and rummage around their own apartment in the dark?

Not buying it, Ms. Guyger.

But at least your buddies on the police force did. They let you go home without slapping cuffs on your wrists and taking you in. They allowed whatever substances were in your body to be eliminated before anyone had a chance to make an official observation. Then they bring in the Texas Rangers for cover who draft an arrest affidavit that is nothing but a rehash of your own bullshit story.

After being taken to jail, Ms. Guyger was able to post a $300,000 bond -- meaning someone had to plop down at least $30,000.

And just why does the arrest warrant mention that they police were looking around Mr. Jean's apartment for narcotics? Is it time to paint the victim of a police shooting as a criminal so that white folk can brush their hands of the matter and go on to their white bread world?

Now just imagine had Ms. Guyger not been a police officer. Would she have been allowed to go home? No, she would have been arrested. They certainly wouldn't have been given two or three days to destroy any incriminating evidence. Would the police ask her for her account of what happened and then use that account in their arrest warrant? No, an investigating officer would have noted the facts and would have drawn his or her own conclusions.

In the end it likely doesn't matter because the DA - or whoever presents the case - will tell a grand jury the "facts" as related by Ms. Guyger and will then nod, wink and tell the grand jury to do what they think is right - which is code for no-bill this fucker as quickly and quietly as possible.

Meanwhile Mr. Jean is dead and his family and friends will be left to mourn a life that was taken without reason and without repercussion.

Tuesday, September 11, 2018

Just spitballing here

Had a very interesting conversation with a relatively new prosecutor yesterday. We were discussing a case on the trial docket and he was suggesting my client consider a pretrial intervention. I told him I had some questions about the legitimacy of the stop that ended in my client's arrest. He told me he thought the stop was okay and that, should my client be convicted, that she would get a longer sentence than the 12 months she'd be in the pretrial diversion program.

Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.

What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.

Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.

But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?

Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?

I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.

There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.

These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.

Friday, September 7, 2018

Judge finds that City destroyed evidence in jail litigation

Quick. What is the worst thing you can do when you are the defendant in a multi-million dollar lawsuit alleging you held people in jail for longer than 48 hours before letting them see a magistrate?

If you answered "destroy evidence of your violations," you are correct!

US District Judge Kenneth M. Hoyt entered a finding last week that the City of Houston destroyed evidence. The city is fighting a lawsuit that alleges people were subjected to warrantless arrests and held in the city jail for more than 48 hours before being taken before a magistrate to determine whether there was probable cause to hold them.

The evidence in question was wiped from the computer hard drives of top HPD officials.

City officials blame the problem on the bottleneck in the county jail that prevented detainees in the city jail from being transported to the county facility. But, nonetheless, the order from the court told officials that people arrested without a warrant were to be taken before a magistrate within 48 hours or they were to be released.

In issuing his order, Judge Hoyt isn't accusing the city of deliberating destroying evidence in order to gain an advantage at trial, but the order does mean that a jury will receive an instruction that they are to infer that the city deliberately destroyed evidence, that the city knowingly held people for more than 48 hours without seeing a magistrate and that the city acted with deliberate indifference to the fact they were violating people's constitutional rights.

That, my friends, is a killer instruction in a civil case. It's a way of a judge telling the defendant that it might be time to work out a settlement because the verdict could be messy.

There are two things that stick out about this ruling. The first is that it was made in the first place. Anyone who has practiced law knows that evidence gets destroyed, lost or misplaced - and not necessarily by design. The hard part is trying to prove it happened. If you never had the evidence in your hands or you never saw the evidence beforehand, it can be damn near impossible to prove it ever existed.

Generally one finds out about the loss of evidence because someone involved in, or with knowledge of the destruction, comes forward. Sometimes you find out that evidence in your case has been destroyed or lost because of testimony in an unrelated case in which evidence was lost or destroyed.

In this case I would speculate that either someone inside the police department came forward and told someone involved in the lawsuit about wiping the hard drives or someone on the plaintiff's side already had copies of documents that were later destroyed and put two and two together when the city didn't produce the documents during discovery. But, again, I'm just guessing.

The second thing that sticks out about the ruling is just how rare it is for a court to issue such a ruling. If the evidence was destroyed for innocent reasons or if the evidence was just lost, a court will not issue the instruction. In order to issue the instruction the court must find that the party that lost or destroyed the evidence had a legal duty to preserve it, whether the loss or destruction of the evidence breached that duty and whether the breach harmed the other party.

Now it looks like taxpayers are going to be the ones paying for the actions of the police department.

Someone has an awful lot of 'splaining to do about this one.

Thursday, September 6, 2018

Money to burn

In its never-ending quest to make prisons as inhospitable as it can (just because it can), the State of Texas spent $7 million fighting a lawsuit over the installation of air conditioning at a prison unit near College Station, Texas. Inmates filed the suit in 2014 arguing that the conditions in the prison during the summer violated the 8th Amendment's prohibition on cruel and unusual punishment.

The inmate suit pointed out that 23 inmates had died of heat stroke since 1998 including 10 who died during a heat wave in 2011.

Currently about 75% of prison housing units in Texas lack air conditioning.

The state wasn't having any of it. An expert hired by the Texas Department of Criminal Justice estimated that it would cost $20 million to install a/c at the prison. After a federal judge told Texas that the conditions were unconstitutional, the cost to install the a/c suddenly fell to a mere $11 million.

Under pressure to settle the case, lest the damages spiral out of control, TDCJ revised its estimate to install a/c down to $4 million. The estimate had come in so low that TDCJ has asked the legislature for more money to install a/c at a unit housing developmentally challenged inmates.

So, to recap, the geniuses running this state spent around $7 million dollars to defend a lawsuit when it only would have cost about $4 million to install the air conditioning system. Why was the state fighting the suit in the first place? Why would you spend almost three times as much to defend a lawsuit as it would cost to do what was asked of you?

This is fiscal responsibility for conservatives in Texas. We would rather spend a shitload of money so we don't set a precedent by doing the right thing. Then, when a loss is damn near guaranteed, we'll concede that we lied from the get go about the cost and we'll do the work.

So, Greg Abbott, what have you to say for yourself? What other uses were there for $11 million?

So, Dan Patrick, what have you to say for yourself? You're the one who's supposed to be the fiscal conservative, yet you set $11 million on fire to prove a point. You were a blowhard when you were the sports anchor at KHOU (and how I wish I could find footage of the time you painted yourself blue for an Oilers playoff game) and you're still a fucking blowhard today.

So, Ken Paxton, what have you to say for yourself? I understand it can be difficult to do your job when you're constantly fending off indictments and ethics charges, but surely a wingnut like yourself can't condone the waste of $11 million.

And, more importantly, why do we have prisons units in this state not equipped with air conditioning? What purpose does that serve? The men and women in these units are still human. They may have done things we find repugnant, but they still deserve to be treated better than animals. Making life as hard as possible for inmates does nothing for them when they are released back into society. But, hey, the inmates don't have a powerful lobby so we'll just make life hell for them until they file a lawsuit against us.

You think we'd know better by now.

Wednesday, August 29, 2018

Internal investigation? What internal investigation?

In 2015, the family of Darryl Mount, Jr., filed a wrongful death lawsuit against the city of Saratoga Springs, NY, then Public Safety commissioner Christian Mathiesen and seven police officers, including the police chief, Gregory Veitch.

In August 2013 Mr. Mount was running from the police in downtown Saratoga Springs when police approached him after seeing him assault his girlfriend outside of a bar. He ended up at the bottom of a 19 foot scaffold with injuries that would prove to be fatal. He was taken to the hospital in a coma from which he never awoke.

Chief Veitch and Mr. Mathiesen denied there was any validity to the family's claims that the injuries had been inflicted by the police. In fact, Chief Veitch told the public that the department's own internal investigation concluded that there had been no police misconduct.

So far the tale is unremarkable. A black man dies in an encounter with the police. The police conduct an internal investigation. No one crosses the thin blue line and the officers in question are cleared. The DA's office is put on notice that the ball's in their court now.

The only problem is, there was never an internal police investigation conducted to determine whether there were any acts of police misconduct that night. There was a police investigation conducted - to determine whether Mr. Mount should be charged with attempted assault, disorderly conduct and resisting arrest.

We know there was no internal investigation conducted into the incident because Chief Veitch admitted that he lied to the press in a sworn deposition taken pursuant to the wrongful death suit. The lawsuit also turned up an e-mail in which Chief Veitch said it was important to give he public the impression that the police department was concerned with the allegations - even though they weren't.

When asked why he didn't conduct an investigation, Chief Veitch claimed it was because no one had alleged any incident of police misconduct. That is, except for family members at the hospital who made the allegations to Det. Tim Sicko. Det. Sicko, in turn, relayed the allegations to Chief Veitch.

Chief Veitch, despite his department's own General Order Section 25, failed to conduct an internal affairs review within 45 days of the allegations. Famed forensic pathologist Dr. Cyril Wecht reviewed the medical records, X-rays and photographs and came to the conclusion that Mr. Mount's injuries were more consistent with being beaten than falling from a scaffold. The forensic medical examiner used by local police, Dr. Michael Sikirica, issued a report supporting the police department's claims of no misconduct after reviewing statements from various witnesses and medical records - he never reviewed the photographs of Mr. Mount's injuries nor the actual X-rays or CAT scans.

This case illustrates why some type of external review board is necessary for investigating allegations of police misconduct. Any such board must have subpoena power to compel the production of witnesses and documents. The system in Saratoga Springs didn't fail. It did exactly what it was supposed to do - provide cover for the police. Only this time we got a peak behind the curtain.

h/t Scott Greenfield

Friday, August 24, 2018

Death, prayers and hypocrisy

After every school shooting the Republicans, the wingnuts and gun freaks yell from the tops of the tallest buildings that now is not the time for politics. They tell us that we should wait until the grieving parents have buried their children before we begin any policy discussions. They will argue about the definition of an assault rifle. They will ask what specific new law do you propose. They will argue that we don't need new laws, we just need to enforce the laws that are already on the books.

Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.

Then something else hits the news cycle and everyone moves on to the next crisis.

After every mass shooting the Republicans, the wingnuts and the gun freaks yell from the tops of the tallest buildings that now is not the time for politics. They tell us we should wait until the grieving families have buried their loved ones before we can begin any policy discussions. They will argue about the definition of an assault rifle. They will ask what specific new law do you propose. They will argue that we don't need new laws, we just need to enforce the laws that are already on the books.

Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.

And nothing ever happens because we, as a nation, have said that we're okay with mass shootings and that the deaths of school children are no big deal because we really, really, really want to be able to play with our guns.

But after a white middle-class girl from Iowa is found dead and a person here without our government's possession confesses to the murder, now is the time for the Republicans, the wingnuts and racists of all stripes to use this girl's murder to score political points in efforts to restrict immigration from non-white non-Europeans.

Now is the time to wave the bloody flag of a white girl killed by a dark-skinned man to incite hatred and fear in support of a president's racist policies.

Let's forget that the vast majority of murders and other violent crimes are committed by people who were born in this country. Let's forget about the fact that the government long turned a blind eye on illegal immigration because industries needed a cheap work force that would do jobs that citizens didn't want.

I find it utterly repulsive that the same folks who put off talking about gun issues while the bodies are still warm have no problem using the death of Mollie Tibbetts for political purposes. By now, however, hypocrisy on the right shouldn't be a surprise to anyone.

Tuesday, August 21, 2018

When all else fails, purge the voter rolls

One thing about the Trump era is that Republicans don't have to even pretend they aren't racial motives behind more restrictive voting laws and procedures.

The latest example is in southern Georgia. Randolph County is 61% black - double the statewide average. The Randolph County Board of Supervisors voted last week to close down 75% of the polling stations in Randolph County.

The Board will argue that they are making the move for financial reasons but that excuse doesn't hold any water because the real effect is to close as many polling stations in the black sections of the county as possible in order to aid Republican office seekers. If it costs more than the county wishes to pay to keep the stations open there is a perfectly fair solution -- raise the filing fee for running for office.

With the US Supreme Court's gutting of the Voting Rights Act, white Republicans have been knocking each other down to see who can pass the more restrictive voting laws and who can make it more difficult for the poor and minorities to vote. And the reason is clear -- as I've pointed out before, the old white power structure knows that due to demographic changes, its days of holding power are limited and they are doing everything they can to prolong the inevitable.

As white America showed that it is not afraid to vote for an outwardly racist candidate for president, these moves are to be expected. Those who vote Republican are supporting these efforts whether they wish to admit it or not. It would appear that no Republican candidate running for office has the guts to challenge the overt bigotry of Donald Trump and his administration. Their silence is affirmation of their support.

And, lest you think these shenanigans are used only in the Deep South, it's going on in Houston, too.  Residents of the Third Ward, a mostly black area of Houston just east of downtown, received letters from the County's voter registrar, Ann Harris Bennett, informing them that they had but 30 days to return a letter confirming their address to her office in order to avoid being removed from the voter rolls. The letters were sent out to folks who hadn't moved and who had been living at their current address for years.

“If you do not respond at all to this notice, your registration will be canceled if you have not confirmed your address either by completing the response form or confirming your address when voting before November 30 following the second general election for state and county officers that occurs after the date the confirmation notice is mailed.”

The letters were the result of challenges made by Republicans to voters in predominately minority parts of Houston. You see, Republican candidates will win the majority of votes in the suburbs since most of the residents moved away from Houston to get away from darker skinned folks. But elections in Harris County center on the turnout within the city limits of Houston. If there is a large turnout in the city, it will cancel out the Republican voters in the suburbs. And Republicans are anticipating that will be the case come November.

Friday, August 17, 2018

Goodbye, Aretha

In memory of Aretha Franklin, here's a couple of tunes guaranteed to make you happy today. Enjoy.

Thursday, August 16, 2018

A senseless death in the Harris County Jail

Debora Ann Lyons is the second inmate in the Harris County Jail to commit suicide in the last month. Ms. Lyons, who was taken into custody on July 22, 2018, hung herself on Tuesday night.

Ms. Lyons was arrested on misdemeanor theft charge. However, based upon her prior convictions, she was charged with a felony. Now, as an aside, I understand why the legislature allows prosecutors to enhance some offenses based upon prior convictions. The theory being that if you've been in trouble once or twice for the same offense the punishment needs to be a bit more severe. But, this doesn't work out so well on petty thefts.

I've had a client before who was charged with shoplifting toiletries from a drug store. What he did warranted no more than a Class B charge. But, since he had multiple theft convictions in the past, that little misdemeanor theft ended up landing him in district court with a felony charge. And I don't care how tough on crime you are, charging someone with felony theft over less than $100 worth of toiletries doesn't serve anyone's interests. Prison should be reserved for those who have done heinous crimes, sending someone to prison for petty theft is a waste of resources.

On the date she was charged, bail was set at $1,500. Ms. Lyons didn't have that kind of money -- but because the felony courts still rely on a piece of paper to determine how to set bond, that number was written down on a piece of paper without regard to Ms. Lyons' ability to pay.

Sound familiar?

It should.

This is the system which 14 Republican misdemeanor judges in Harris County are fighting to keep in place. Thus far they have spent over $6 million of taxpayer's money to defend a cash bail system that is unconstitutional. If US District Judge Lee Rosenthal's order applied to the district courts, Ms. Lyons would have been eligible for release on a PR bond within 48 hours of her arrest. Instead she sat in jail for nearly a month before she took her life.

The ultimate irony, of course, is that she was granted a PR bond on Wednesday -- the day after she hung herself.

So, even though this case was filed in district court as a felony, I still would like to hear one of the Republican misdemeanor judges defend the old system. It's the old system that killed Ms. Lyons. The last time I checked, the penalty for theft in Texas wasn't death.

It should come as no surprise to anyone that the 14 Republican misdemeanor judges who are fighting bail reform are all white. If you know anything about Harris County you also know that the vast majority of the people affected by bail reform aren't white. Racism, you see, plays real well out in the suburbs where the Republicans pick up most of their votes. And for all the talk you will hear from those judges, they aren't fighting bail reform to protect the public -- they are fighting it because the old system gave the state coercive power over minority defendants who couldn't afford to post bond. They were forced to plead guilty in order to get out of jail.

And, if they happened to get in trouble later, those convictions came back to bite them in the ass as their new cases were enhanced.

Ms. Lyons died because Harris County is doing everything it can to preserve a coercive system to force the poor to plead guilty regardless of the facts of their cases so they can get on with their lives.

In case you've forgotten the names of the judges who are fighting to preserve an unconstitutional system, here they are again:

  • Paula Goodhart, County Criminal Court at Law No. 1
  • Bill Harmon, County Criminal Court at Law No. 2
  • Natalie Fleming, County Criminal Court at Law No. 3
  • John Clinton, County Criminal Court at Law No. 4
  • Margaret Harris, County Criminal Court at Law No. 5
  • Larry Standley, County Criminal Court at Law No. 6
  • Pam Derbyshire, County Criminal Court at Law No. 7
  • Jay Karahan, County Criminal Court at Law No. 8
  • Analia Wilkerson, County Criminal Court at Law No. 9
  • Dan Spjut, County Criminal Court at Law No. 10
  • Diane Bull, County Criminal Court at Law No. 11
  • Robin Brown, County Criminal Court at Law No. 12
  • Don Smyth, County Criminal Court at Law No. 13
  • Jean Spradling, County Criminal Court at Law No. 15

The next time you see any of these judges, ask them why they are defending an unconstitutional cash bail system. Ask them why they are opposed to bail being set in a timely matter based upon the defendant's ability to pay. Ask them why they are wasting your tax dollars fighting bail reform.

Ask them why they haven't joined Judge Darrell Jordan and Judge Mike Fields on the other side of the coin.

Debora Ann Lyons was no angel. But she was someone's daughter. She was someone's mother. She had a family and she had friends. And she damn well didn't deserve to die in the Harris County Jail.

Tuesday, August 14, 2018

A death in Nebraska and a governor out for bloodlust

Just how badly does Pete Ricketts want to kill people?

Enough that the Nebraska governor and his father spent $300,000 of their own money for a petition drive to put the death penalty on the ballot in 2018 after the state legislature voted to abolish it in May of 2015 (they even overrode the governor's veto).

Bound and determined to kill people, the governor vowed to execute as many inmates as possible before the deadline and even to kill inmates in defiance of the new law. It does seem a bit odd for a governor who swore to uphold the laws of the state tell all who will listen that he will ignore the law if he doesn't like it.

Currently Nebraska has ten inmates on death row and hasn't carried out an execution since 1997. So why on earth is Gov. Ricketts so hung up on the death penalty?

It certainly has nothing to do with deterrence or punishment or anything else to do with the criminal (in)justice system. There hasn't been an execution carried out in 20 years -- there doesn't appear to be any groundswell of support for killing inmates.

Until today, that is. Carey Dean Moore was executed this morning. He is the first inmate to be executed using a lethal cocktail containing fentanyl.

The execution was carried out when a panel of three federal judges denied drug maker Fresenius Kabi's request for a stay due to their concerns that Nebraska acquired the drugs for the execution (two of which were Fresenius Kabi believes were drugs they made) through back channels.

While Fresenius Kabi has not taken a stand on the death penalty, they only sell to suppliers who sign an agreement not to sell to federal or state correctional facilities. Nebraska has refused to release the name of the supplier who only agreed to sell the state one dose of the drugs.

For proponents of the death penalty such as Gov. Ricketts, it isn't about strapping an inmate to a gurney and injecting him with poison. It's about control. It's about having the power to make a life-or-death decision.

Ironically enough you see politicians like Gov. Ricketts try to justify their support of the death penalty with the bible. His position is at odds with Pope Francis who called the death penalty an attack on the dignity of the person. All of the governor's arguments (as well as all of the protestant supporters in the US) are based on the Old Testament. Sure, he will tell you he's pro-life and for the criminalization of abortion without once questioning the consistency of his beliefs.

But that's because it's not about what's supposedly written in a book that has been translated from multiple languages over the centuries and then edited to have a more "modern" appeal. That's just a rationalization.

So tell us, Gov. Ricketts, why the fuck is it so important for Nebraska to kill people?

Monday, August 13, 2018

Former judge sanctioned for jailing a rape victim

On December 8, 2014, Jenny Doe (her real name may be found in court records but I choose not to publish it), was called to testify in the rape trial of Keith Hendricks in the 176th District Court in Harris County. Mr. Hendricks was on trial for raping Jane Doe.

While on the stand testifying at trial, Ms. Doe had a mental breakdown (she had been diagnosed with bipolar disorder). Fearing that his witness wouldn't show up to testify again, the prosecutor, Nicolas Socias, asked the judge, Stacy Bond, to issue an attachment and to order Ms. Doe taken into custody.

The judge set her bond at $10,000. That's right, Jenny hadn't been charged with a crime yet she was being held behind bars because she couldn't post a $10,000 bond.

Ms. Doe was first taken to the hospital to be checked out -- she was then booked into the Harris County Jail. Making matters even worse, someone at the jail fucked up and entered that she was charged with felony sexual assault. Because no one at the jail knew she was being held as a witness, she was placed in the general population. While in jail she got into at least one fight with an inmate. She was later charged with assaulting a guard, though that case was later dismissed.

Jenny was not called back to the stand until January 11, 2015. Let that just sink in for a bit. Here we have the victim of a sexual assault who was taken into custody and held against her will for over a month because she had a mental breakdown on the stand. And even though she testified on the 11th, she was held for an additional three days before being released.

Texas law does permit the court to order a witness taken into custody if the state issuing the subpoena has reason to believe that a witness residing in the county is on the verge of moving out of the county or if an out-of-county witness failed to appear when subpoenaed.

Neither of those conditions were met in this case. Jenny resided outside Harris County and appeared without being subpoenaed. Mr. Socias might have been worried about her not coming back to testify after her breakdown -- but that didn't justify his request to have her attached. It certainly didn't warrant her being held in jail for over a month.

Now Stacy Bond, who is running for the bench in the 185th, has been sanctioned with a public admonition for violating the Code of Judicial Conduct.

Ms. Bond's excuse is she was mistaken in signing a badly worded application for a bench warrant. The application would have been filled out by the prosecutor, Mr. Socias.

You would think that the least the judge could have done was read the application before signing off on it. Actually you would think the judge might have consulted Section 24 of the Texas Code of Criminal Procedure to see whether the action was warranted. At the very least you would have expected a judge to show just the slightest bit of compassion to a witness who was having a very bad day. But, hell, once you decide to treat those accused of crime as garbage, it's not a far walk to treat everyone like that.

Ms. Bond is running as a Republican in the upcoming election. I'm sure that many Republican voters in the suburbs don't give a flying fuck what Ms. Bond did on the bench in the past. The only criterion for their vote is that the candidate have an "R" after their name.

This is the problem with electing judges. No one outside the courthouse knows who the candidates are. No one outside the courthouse has any idea what type of attorney or judge a candidate is. No one outside the courthouse knows what goes on behind the scenes. And this is why we end up with some judges in Texas who aren't capable of walking and chewing gum at the same time.

(Yes, Galveston County, I'm talking about the mindless wingnuts on the mainland who voted straight-ticket Republican and ushered in the strange world of Christopher Dupuy, the single most unqualified person I've ever seen on the bench.)

Of course appointing judges brings about an entirely different set of problems that can be just as bad as electing them.

Ms. Bond doesn't deserve to sit on the bench anymore. I just hope this public reprimand resonates with voters in the 'burbs when they go to cast their ballots in November.

Friday, August 10, 2018

Sotomayor's scathing rebuke

Yesterday afternoon the US Supreme Court decided that the 8th Amendment is merely a useless appendage and denied Billy Ray Irick's request for a stay of execution.

But Justice Sonia Sotomayor wasn't having any of it. In her dissent she pointed out all of the problems with using midazolam as the first drug in a lethal cocktail. She wrote that the drug will cause Mr. Irick to feel the sensation of drowning, suffocating and being burned alive. She referred to the testimony given in Tennessee's recent trial over the legality of the three drug cocktail. She pointed out that once the paralytic takes effect, no one will know whether or not Mr. Irick is suffering because he will be unable to move and unable to speak.

She also referred to the absurdity of the Glossip decision's holding that the condemned inmate must not only present evidence that the state's selected method of execution is cruel but must also propose an alternative method to killing himself.

But she saved the best for last:

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding him behind a veneer of paralysis. I cannot in good conscience join this "rush to execute" without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Unfortunately I think we long ago accepted barbarism in this country.

Thursday, August 9, 2018

Torture in Tennessee

Today the state of Tennessee is set to murder inmate Billy Ray Irick using a lethal injection cocktail using midazolam, vecuronium bromide and potassium chloride.

Midazolam is a sedative that will supposedly  render Mr. Irick unconscious. Vecuronium bromide is a paralytic that would prevent Mr. Irick from making any movements. Potassium chloride is the drug that will stop Mr. Irick's heart - and leave him dead on the gurney.

The question, however, is whether or not midazolam is an effective sedative for purposes of executing inmates. As has been seen in botched executions in Florida, Ohio, Arizona and Oklahoma, midazolam has led to excruciating pain for inmates and even aborted executions.

In 2013 William Happ was executed in Florida using midazolam. Witness accounts state that he remained conscious longer than usual and made more body movements after losing consciousness than normal.

In 2014 Dennis McGuire was executed in Ohio using midazolam. After being administered the drug, Mr. McGuire clenched his fists, gasped and struggled to breathe.

That same year Clayton Lockett died in Oklahoma after being administered midazolam. The drugs didn't kill him and the execution was called off abruptly in midstream. Mr. Lockett then died of cardiac arrest that night.

Still later that year Joseph Wood was executed in Arizona using midazolam. It took over two hours for Mr. Wood to die and one reporter said that Mr. Wood gasped for air more than 640 times.

There is no proof that midazolam is the appropriate drug for use in killing inmates. Inmates awaiting execution in Tennessee filed suit against the state arguing that the lethal cocktail would violate their 8th Amendment right to protection from cruel and unusual punishment. The argument is that the paralytic will render the inmate incapable of letting anyone know he is undergoing extreme pain during the process. For those watching from the gallery there would be no way to know if anything was going awry in the process.

During the court proceedings a pathologist called by the plaintiff's testified that he reviewed autopsies on 32 inmates who were executed. In 27 of those cases, the pathologist performing the autopsy found signs of pulmonary edema meaning the inmates had suffered respiratory distress during the executions.

The court in Tennessee, however, denied the plaintiffs' request for relief on the grounds that while they may or may not have proven that the new drug protocol was cruel or unusual, they didn't provide the state with a viable alternative to kill themselves.

That's right. The U.S. Supreme Court held in Glossip v. Gross, if you're challenging the constitutionality of a drug protocol for executions, you have to give the state an alternative method of taking your life.

Now we can sidestep the absurdity of that test for purposes of this argument. If a state wishes to carry out executions, that state must come up with a protocol for killing inmates that doesn't run afoul of the 8th Amendment. If evidence is brought forth that the protocol in question amounted to torture, then it's the state's responsibility to draw up a new protocol. To place the burden on those awaiting execution to draw up a protocol for their own death is about as Kafkaesque as you can get.

It's also a cop out from a court that doesn't want to dirty its hands in death penalty litigation. I know that many folks out there couldn't care less about whether an inmate suffers during an execution because they are focused on the pain and suffering he or she caused by killing someone else. To them I would point out that the purpose of our criminal (in)justice system isn't to obtain revenge. The purpose is to rehabilitate as many folks as we can and release them back into society to become productive citizens - those who can't be rehabilitated are then kept behind bars so they can't harm anyone else.

In many cases of death row inmates we are also talking about men who did stupid and/or despicable things when they were in their 20's and who have sat behind bars, in isolation, for two decades or more. To believe that they are the same people now that they were when the committed their crimes is pure fantasy.

There is no place in civilized society for this barbarism.

Wednesday, August 8, 2018

Fighting for injustice

Once again the Republican misdemeanor judges in Harris County have their panties in a wad. And, once again, it has to do with a federal judge telling them that the little bail bond scheme they followed for years is unconstitutional and must be changed.

The judges are upset because US District Judge Lee Rosenthal's revised order will force the county to release certain non-violent offenders within a certain time period. The judges claim this will endanger the public's safety.

Bullshit. What it will do is remove the coercive power the state had on criminal defendants to force them to plead guilty to crimes they didn't commit.

The way Harris County operated for years was to follow a bail bond schedule that didn't take the defendant's financial circumstances into effect when setting bail. The only things that mattered were the type of offense and whether the defendant had any prior convictions. Bond was set automatically by a piece of paper and thousands of folks were held in custody until they resolved their cases -- usually by pleading guilty in a mass plea for time served or some other token sentence.

Prosecutors got their convictions. Judges got cases off their dockets. And since those accused of criminal acts don't have an effective lobby - no one gave a fuck.

Anyone who has spent any time in this racket knows that it is a hell of a lot easier to fight one's case if one is not behind bars. When you're behind bars you're not working, not earning money, not seeing your family and all you can do is think about how many more days this hell is going to last.

When you're out on bond you can work and earn money. You sleep in your own bed. You see your friends and family. You can speak with you attorney face to face without a thick sheet of plexiglass between you. You're also not under the pressure to resolve the case quickly because you are able to resume your normal life.

And the misdemeanor judges in Harris County hate this. They hate the fact that defendants out on bond are able to fight their cases. They hate the fact that the state doesn't have the same coercive hold on them as they do on the defendants in the jumpsuits.

Well, let's be straight about one thing. It's unfair to lump all of the misdemeanor judges into the same pile. Darrell Jordan, a Democrat, and Michael Fields, a Republican, aren't part of the ongoing lawsuit. I don't think it's a coincidence that they are the only two black judges on the misdemeanor bench in Harris County.

Most of the defendants in the misdemeanor courts are black and Latino. These are the folks that conservative white voters in the suburbs have been taught to hate. As anyone who understands Harris County politics knows, Republican candidates rely on those suburban voters to get elected because they don't have a chance within the Houston city limits.

The judges who continue to spend our tax money to defend an unconstitutional bail bond system are spreading fear and hatred among their suburban supporters in a desperate measure to build up some sort of support for Republican candidates in what could very easily be a bloodbath for the wingnuts.

The Republican judges (minus Judge Fields) are furiously blowing on their dog whistles. And they are doing it, not to maintain public safety, but to maintain a criminal (in)justice system that targets the poor and those with dark skin.

And for those keeping tabs, the current bill for fighting the lawsuit is $6.6 million. How's that for financial responsibility?

Wednesday, August 1, 2018

We're not gonna take it

You might remember the name Darryl Fulton from an earlier blog post about his return to his grounds keeping job for the Chicago White Sox after being exonerated of a murder for which he spent over two decades behind bars.

Adding insult to injury, on two separate occasions, Chase Bank in Chicago refused to accept his deposit of a check for $169,876.00 paid to him by the State of Illinois for taking 23 years of his life.

The first time he tried to deposit the check, the bank refused to accept it because it hadn't been endorsed by his attorney -- even though the only payee on the check was Mr. Fulton. The second time he tried to deposit the check the bank refused to accept it because Mr. Fulton had signed the check over the attorney's name. The bank did say it could deposit the check into the lawyer's account, however.

While acknowledging that the check should have been accepted and deposited the first time Mr. Fulton presented it, bank officials refused to say whether or not the color of Mr. Fulton's skin had anything to do with the bank's reluctance to accept the check.

According to Mr. Fulton's attorney, the bank never offered to accept the check for deposit.

So it's not enough that Mr. Fulton was held in custody during the pendency of his case because he couldn't bond out. It's not enough that prosecutors obtained a conviction after not conducting DNA testing on an item because it didn't fit in the police narrative. It's not enough that the state fought tooth and nail to prevent the evidence from being tested, all in the name of honoring the jury's (wrong) verdict. Now he can't even deposit the meager check he received from the state to compensate him for his lost life.

One can only wonder whether Chase makes white executives go through such hoops in order to deposit a large check. Or is that experience reserved for black men with large checks to deposit?

Tuesday, July 31, 2018

AG calls for a task force for a return to segregation

For anyone who isn't a wingnut or a complete moron, Attorney General Jeff Session's announcement of a religious liberty task force stands as another milepost on the road back to the era of Jim Crow.

Mr. Sessions claims that the purpose of this task force is to protect religious groups from persecution, except, of course, those who pray to a different god in a different way than the white folks down at the Baptist or Methodist congregations.

Religion still stands as one of the last vestiges of public segregation - even more so than suburban school districts.

The real purpose of the task force has nothing to do with protecting those who choose to pray in their own way. The real purpose is to allow groups and organizations to discriminate against those with whom they disagree under the cover of law.

Catholic hospitals and dioceses don't want to provide contraceptive coverage for their female employees because it shocks their religious sensibilities. But these same religious leaders have no problem proclaiming their support for the latest US bombing raid on a non-white country.

Hobby Lobby didn't want to provide contraceptive coverage for their female employees because god told them it was bad. But that didn't stop executives in the company from smuggling religious artifacts out of the Middle East.

A cake shop owner didn't want to bake a cake for a same-sex wedding and he hid behind his hateful religious beliefs. When pressed, he believed in what a preacher told him was meant by a text that had been translated umpteen times from various sources.

The god-fearing hypocrites at protestant churches across the country voted en masse for a man who boasted of degrading women and looking at teenage girls in states of undress. They voted for a man who has been married three times - each time to a woman he had an affair with while married to someone else.

This cry to protect religious freedom can be seen for what it is by anyone who wants to open their eyes and look around them. We are flooded with religious messages by politicians, school officials, sports organizations, government leaders and even our own money.

The real mission of Mr. Session's task force is to provide cover for those who wish to discriminate against gays, foreigners, blacks, non-English speakers and anyone else who doesn't fit into the mold of 1950's America.

Thursday, July 26, 2018

Houston's white elephant

One of the casualties of Hurricane Harvey was the Harris County Criminal Justice Center - a 20-story white elephant that has had a laundry list of problems since it opened less than 20 years ago.

Now comes word that it is going to cost some $86 million to repair and upgrade the building before it can be re-opened to the public. But, as a colleague pointed out this morning on Twitter, no bids have gone out for the repair work and the idea that the jobs can be bid out and completed in less than 2 years seems a little bit absurd.

The design of the building and the placement of offices and courtrooms never made much sense to anyone who has spent any amount of time inside the courthouse. The building has long been plagued with long lines at security and at the elevators as well as maintenance issues with those same elevators. Stairwells - necessary in case the building needed to be evacuated - were located behind closed doors and out of reach for anyone other than court staff or attorneys.

And while I understand that it is cheaper to build upward in Houston rather than outward, the basic design of a skyscraper and the functionality of a courthouse aren't congruent.

But these concerns are ignored because there is no viable constituency for a new courthouse. The taxpayers don't want to spend any additional money building a new courthouse for the benefit of criminal defendants. Unless they find themselves inside the building, they have no clue how useless it is.

So now for at least the next year-and-a-half (and likely a lot longer), misdemeanor courts will continue to be doubled up in the decrepit old Family Law Center while defendants who can't post bond will sit and wait for even longer in the county jail for their day in court. And that day will only get bumped back further and further when you consider that there is one trial court for every four misdemeanor courts. You do the math. Attorneys and defendants will continue to have to depend on two elevators to service 7 floors and 17 courts.

The felony courts will continue their uneasy alliance with the family courts in the Civil Courthouse where the elevators are proving to be as inadequate as those in the old criminal courthouse.

Attorneys and defendants will continue having to deal with split dockets in multiple courthouses and the inherent delays.

And good luck figuring out where the hell the district clerks or prosecutors are since they are spread over multiple office buildings throughout the city.

This is the living embodiment of insanity -- doing the same thing over and over again thinking it will somehow come out different this one time.

See also:

"Proposal for problem-plagued criminal justice center: Start Over," Chris Tritico, Houston Chronicle (10/16/17)

Wednesday, July 25, 2018

Blood spatter backlash

Before we begin, let us never forget that the foremost ethical duty of a prosecutor is to see that justice is done (whatever that means), not to obtain convictions.

Adam Sibley, the Bosque County District Attorney, is the latest prosecutor in a high-profile case involving flawed forensic evidence to have to make a choice to do what's right or what's necessary to maintain a conviction.

Joe Bryan, a high school principal in Clifton, Texas, was charged with murdering his wife, an elementary school teacher, back in 1985. Mr. Bryan steadfastly claimed he was at a conference in Austin at the time of the killing.

But with the help of some voodoo, I mean, blood spatter analysis, by a police detective who barely understood the principals of the so-called forensic science, Mr. Bryan was convicted. Despite the fact he had but 40 hours training in the discipline, Robert Thorman took the stand and testified that the blood found on a flashlight in the trunk of Mr. Bryan's car showed evidence of back spatter which, according to Mr. Thorman, was a telltale sign that the flashlight was used in a close range shooting.

Let's forget for a second that no one ever tied the flashlight to the murder. Let's further forget that the blood found on the flashlight was Type O which is found in approximately half the population. And let's not forget that no DNA testing was conducted on the blood specks found on the flashlight.

Last Friday, Celestina Rossi, a crime scene investigator for the Montgomery County (Texas) Sheriff's Office Crime Lab, testified before the Texas Forensic Science Commission and testified that Mr. Thorman's testimony was "egregiously wrong" in the Bryan case.

Ms. Rossi spent some 60 hours researching the case and concluded that Mr. Thorman "misstated scientific concepts, used flawed methodology and incorrectly interpreted evidence." She said Mr. Thorman's analysis was not scientifically accurate and could not be supported by any published data.

Driving another nail into the state's coffin, Ms. Rossi testified that the back spatter Mr. Thorman testified indicated the flashlight was used in the murder wasn't back spatter at all and that there was no evidence that the flashlight had been present at the murder scene.

Another problem for the state was a state crime lab technician by the name of Patricia Almanza who was allowed to give opinions during direct examination that exceeded the scope of her expertise.

Mr. Bryan's attorneys have been seeking to have DNA testing performed on the untested evidence for years. In 2017 a court ruled that the items were to be tested. Mr. Sibley appealed that decision.

And why would Mr. Sibley do everything in his power to block that testing? Simple. He wants to maintain the conviction and doesn't care who or what gets in his way. He will stand up on a table and shout to the rafters that it's about finality and respecting a jury's verdict - but that's bullshit.

Mr. Sibley, and most prosecutors, don't get their ethical duty. A defense attorney, by contrast, has no ethical duty but to provide a vigorous defense for his client and maintain his confidences. That's a lot different that seeing that justice is done.

If Mr. Sibley were really interested in seeing that justice is done, he would withdraw his appeal and allow the items to be tested. If the tests confirm that Mr. Bryan is the killer, so be it, but, if they don't, then someone got away with murder and walked around free for more than 30 years. Is that justice?

Next month, Mr. Bryan's attorneys will argue in an evidentiary hearing for a new trial for their client. The presiding judge will then send his recommendation to the Court of Criminal Appeals which will be the final arbiter.

Tuesday, July 24, 2018

Trying to throw a little shade around

In 2014, attorneys for three death row inmates filed open records requests with the State of Texas seeking to find the source of the drugs used for executing inmates. Then Attorney General Greg Abbott (now governor) decided that the state could withhold that information because the suppliers faced actual harm if their identities were revealed. Interestingly enough, on three previous occasions, Mr. Abbott determined the information was public.

Texas, in its ongoing quest to continue murdering inmates in god's name, fought like a cornered cat to keep the names of the pharmacies secret. They lost at the district court level. They lost at the Court of Appeals. And in June they lost at the State Supreme Court.

But has that stopped the state from continuing to withhold the information? Not a chance. The state filed a motion for rehearing last week.

Both Texas and Arizona are embroiled in litigation over whether the identities of pharmacies that provide drugs for lethal injections should be made public. The state argues that this is a guerrilla tactic from death penalty opponents to shut down the supply of drugs available to states for murdering inmates. They argue that the publicity that would rain down on such a pharmacy would make them think twice before supplying drugs for to the state.

The Republican led state legislature agreed and passed a law in 2015 that shielded the names of the suppliers from the public. Now I could go on for a while about how ironic it is that a bunch of bible-thumping christian conservatives are doing everything they can to make it easier for the state to violate one of their sacred commandments -- but that would just be picking the low-hanging fruit.

Instead we can talk about why the state wants to keep that information secret. First, however, we have to return to 2014 since the law passed by the legislature in 2015 was not retroactive. Once drug suppliers decided not to sell their drugs to states for the purpose of executing inmates, the states had two choices. The first was to "extend" the expiration date of the drugs on hand -- having no idea whether or not the drugs would be as effective after the manufacturer's expiration date. The second was to find compounding pharmacies that would manufacture the drug specifically for the state.

Since the drugs are made at the pharmacy, there is no way to test whether or not they are effective, how potent they are or if they carry any side effects. But what if that's not what was taking place? What if the purpose of shielding the names of the pharmacies is to keep the drug companies from finding out that the pharmacists are selling the manufacturers' drugs under veil of secrecy?

Sure, the compounding pharmacies would get a lot of bad publicity for supplying the drugs to the state -- but in some cases, customers would have no choice but to go to that pharmacy for their drugs. But if a manufacturer cut that pharmacy off from its supply of drugs, the pharmacy would have no choice but to stop providing drugs to the state.

I'm not saying this is what's actually happening - only that it might explain the state's doggedness in the fight.

The bigger issue, however, is the notion that elected officials run this state in our name. We have a right to know what's being done in our name. If the state wants to keep killing inmates, fine, but let's not try to be shady or secretive about it. And if a pharmacy is willing to play footsy with the state's killing machine, then the owner of the pharmacy needs to stand up and own it. His or her customers have a right to know if their pharmacist is aiding in the murder of inmates.

Texas Solicitor General Scott Keller is correct. Death penalty opponents have put pressure on manufacturers to cut off the supply of drugs needed to kill inmates. The belief is that a majority of Americans would be appalled if we went back to electrocuting, suffocating, hanging or shooting inmates. Such a course would run the death penalty right back into a confrontation with the Eighth Amendments ban on cruel and unusual punishment.

And death penalty advocates know that day is coming.

Thursday, July 19, 2018

Fun with the lexicon

President Donny has done a lot of highly questionable things but, at least according to the Constitution, treason is not one of them.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Let's break it down, shall we.

According to the definition of treason found in Article III, Section 3, one commits treason if one levies war against the US. Levy means to "enlist someone for military service." In other words, to levy war against the US would be to raise troops to fight against the US. Thus, everyone involved with the secessionist movement and the Confederate government committed treason.

The next part of the definition is "adhering to their enemies." Adhere means "to believe in and follow the practices of."  Enemy means "a hostile nation or its armed forces...especially in time of war."

The first thing we need to look at is whether Russia is a hostile nation. From 1945 until the collapse of the Soviet Union in 1989, the Soviets were considered an enemy of the US. They were considered an enemy because they stood for the destruction of capitalism. Let's make no bones about this - the Cold War was never about expanding freedom or democracy or any of the other things our government told us. The Cold War was about making the world "safe" for capitalism.

During the Cold War era the US overthrew, orchestrated the overthrow of or funded the overthrow of countless democratically elected governments that espoused socialist ideas.

Since the fall of the Soviet Union, Russia has been as much of an ally as anything else. Sure, the Russian government flexes its muscle at times when dealing with some of its former allied states and republics (but just look at US foreign policy in Central America)., but both states are for the expansion of capitalism.

Aside from that, the US and Russia are not at war with one another. The US and Russia are not in a state of armed conflict with each other. I know we like to throw the word war around like its cheap candy, but there is nothing resembling armed conflict between our nations.

So, before we throw around terms like treason, maybe we should make sure we know what that term means. Otherwise it makes you look like a raving lunatic. Donald Trump is a lot of things, but traitor isn't one of them.

Tuesday, July 17, 2018

Execution Watch: 7/17/2018

It's Tuesday night and Texas is looking to kill again...

CHRISTOPHER YOUNG. Mr. Young was sentenced to death in 2006 for the murder of a San Antonio convenience store owner. His lawyers said religious discrimination occurred during jury selection when a black woman was ruled ineligible to serve because she belongs to a church that has a prison ministry. The victim's son has asked the state to spare Mr. Young's life. Mr. Young's attorneys urged Gov. Abbott to halt the execution to consider their allegations that race was a factor in the refusal to grant Mr. Young clemency. They said a white man with a situation similar to Mr. Young's was recently spared (Click here to read about Thomas Whitaker's case). The Texas Board of Pardons and Paroles turned down Mr. Young's request for clemency.

Just like in the case of Thomas Whitaker, a relative of the victim, in this case his son, has asked the state not to kill. However, in Mr. Whitaker's case, the Board voted unanimously to grant clemency and the governor agreed. The difference? Thomas Whitaker is white and Christopher Young is black.

In defending the Board's decision not to grant clemency in Mr. Young's case, Assistant AG Stephen Hoffman points out that Mr. Young pulled the trigger in his case while Mr. Whitaker merely set the murders in motion. This raises a couple of other questions. First, should we be killing folks who took part in a murder but didn't actually pull the trigger? Second, what's worse: pulling the trigger or hiring someone else to do it?

This case does illustrate a unique aspect of criminal law. When the alleged victim or victim's family wants the defendant punished a certain way (jail instead of probation, for instance), the DA is only too quick to cut off negotiations because of the opposition. But, when the alleged victim or victim's family doesn't want the defendant punished harshly -- or sometimes, not at all -- the DA is quick to point out that he or she represents the State, not the victim. Go figure.



Unless a stay is issued, Execution Watch will broadcast live:
Tuesday, July 17, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Thursday, July 12, 2018

Nevada execution halted over drugs

It would appear to the outside viewer that Nevada has just been caught with its pants down.

Nevada was looking to be the first state to murder an inmate using the synthetic opioid fentanyl. What they didn't count on was the manufacturer of midazolam, Alvgoen, filing suit to halt the execution because the state had used deception to obtain midazolam.

The execution was halted by Clark County District Judge Elizabeth Gonzalez.

Alvogen has been very vocal in its opposition to the use of its drugs in executions. The state obtained midazolam after its stocks of diazepam expired. And, just to demonstrate that its acquisition of midazolam was no fluke, last year Nevada refused to return unused doses of fentanyl and diazepam to Pfizer on request.

Alvogen claims in its lawsuit that Nevada got its hands on the drug illegally "despite and clear and unambiguous prior warning" that the company did not want its drug used for executions. What does it say when a state is only too willing to lie, cheat and steal to obtain a drug? Officials did this believing there was no way their actions would become known to the public. 

This marks only the second time a drug manufacturer has filed suit to prevent one of its drugs from being used in an execution. The first suit, filed in Arkansas, failed.

But the larger problem is whether or not the various toxic cocktails states have chosen to use (largely because of drug manufacturer objections to the use of their drugs in killing people), are, for lack of a better term, humane.

The Nevada legislature approved a cocktail involving midazolam, fentanyl and the paralytic agent, cisatracurium. At a hearing last November, a district court judge told the state they could use midazolam and fentanyl, but not cistracurium. The concern is that cistracurium induces paralyis in the inmate and would mask any pain he was feeling as he suffocated. Of course there is also the issue of whether fentanyl is an appropriate drug since it has never been used in an execution.

And then there's midazolam. If you recall the botched executions in Ohio and Oklahoma you will remember that midazolam was the drug of choice. Inmates strapped to the gurney have complained about a burning sensation after being injected with the drug.

But, back to Nevada for a second. After the district court ruling, the state appealed to the State Supreme Court which held - on procedural grounds, not pharmacological grounds, that the state was free to use the three-drug cocktail approved by the legislature.

It never ceases to amaze me the number of states who will do whatever it takes to kill inmates in the name of the people. The death penalty is slowly grinding to a halt. Soon there will come a day when there are no drugs available and no pharmacists are willing to play footsy with the state-sponsored killing machine.

I just hope everyone can see the hypocrisy for what it is.

Wednesday, July 11, 2018

I think that just about covers it

I can't recall if I've ever recommended Phoebe Judge's excellent podcast Criminal. If you haven't listened, you should give it a try. Every episode deals with someone who did something wrong, was the victim of something wrong or finds themselves somewhere in the middle.

The latest episode is one of the funniest things I've heard in a while. It's about Mark Roberts, a painter from Liverpool, who has attended some of the world's biggest sporting events, took his clothes off and ran around the field.