Thursday, June 30, 2011

Overheard at an ALR hearing

I overheard this exchange at an ALR hearing the other morning. We all got a good laugh - even the attorney who asked the question.

Attorney: "3:30 a.m., that's a time when people are usually asleep?"

Officer: "Yes. Or intoxicated."

Celebrating the Declaration of Independence

Join HCCLA for a live reading of the Declaration of Independence on Friday, July 1, 2011 at 11am outside the doors of the Harris County Criminal (In)justice Center at 1201 Franklin Street.

Robb Fickman (aka The Czar) organized a live reading last year and new TCDLA President Gary Trichter has asked defense attorneys across the state to conduct live readings at the courthouse this year.

Come join HCCLA for the continuation of a new tradition.

Wednesday, June 29, 2011

Texas looks to cut teacher pay

"Those damn teachers. They're the ones causing all our problems here in the Lone Star State. They just make too much money. We've got to do something to keep them from bleeding us dry."

Maybe that's not exactly what came out of the mouth of State Rep. Rob Eissler (R-The Woodlands) but it's probably pretty close to what he was thinking. Mr. Eissler is celebrating the passage of a proposal by the Texas House of Representatives that will allow school districts to cut teacher pay.

I would say it's quite ironic given that Mr. Eissler spent 18 years as a trustee of the Conroe Independent School District before pimping himself out running for the state legislature; but on his campaign website, Mr. Eissler wanted everyone to know that he was a fiscal conservative who was out to "reform" education.

He and the rest of the Republican cabal running the State Capitol have decided that it is more important not to raise taxes and not to touch the state's "rainy day fund" than it is to pay teachers for the thankless work they do on a daily basis.

I understand the pressure to balance the state's budget in a time when revenues are falling, but providing an education for our children is an investment in Texas' future and no one seems to have given much thought to the number of experienced teachers who have finally had enough of the abuse, scorn and low pay and have left the profession. Sure, the budget might be balanced today - but what happens ten years down the road? What happens when our youth aren't prepared for college or for the workplace after graduating from high school?

Or do Mr. Eissler and his colleagues even care? Are they willing to trade our future for votes in the next election - or is their goal the destruction of public education in Texas?

Tuesday, June 28, 2011

Anatomy of a traffic stop

What follows is the Twitter feed from Arizona Cardinals defensive lineman Darnell Dockett after he was stopped by police.
I don't know why the police always messing w/me I'm never gonna let them search my car with out a search warrant! No matter what!
Police sitting here waiting on back up cuz I told them YOU NOT SEARCHING MY CAR! PERIOD! & now I'm sitting here! Owell I aint got shit 2 do!
There R 3police cars and they are talking! I don't see A search warrant they won't see inside this escalade! I got all day hope they don't!
Police said "do you mind if we look around in your Vehicle?" I said I sure DO! He said "I'm gonna call back up" I said u wanna use my phone?
I think they (POLICE) going to get a search warrant cuz they sitting here looking like fools waiting on something!
These COPS really think I'm stupid they playing good cop bad cop! BOY STOOOOP! I'm not falling for that! NO SIR YOU WILL NOT LOOK IN MY CAR!
This cop just ask me how tall R u & where R U from! I'm bout to ask him can I go across the street to POPEYS while we sitting here waiting!
I been sitting here for a HOUR 1cop by the driver window, 2talking at the car! And the 1by the window being friendly! Like wtf?
I asked the cop why he pulled me over he said I was speeding I said BULLSHIT! But give me the ticket that's when he asked to search my car!
So you gonna lie and say I'm speeding then you wanna search my car! Get the F*ck ouutta here! Better go get a warrant *turns up radio*
OK so now I think they letting me Go cop just brought my DL's and registration! Yeah I'm bout to be out this MOFO!
No ticket and I didn't get punk by PO-PO today now I'm off to my 2nd work out! Police aint searchig my sh*t with no warrant "holla at me"!

I don't know the circumstances surrounding the stop and I don't care about the circumstances surrounding the stop. The police had a hunch. Maybe there was some justification behind and maybe it was because Mr. Dockett is a black man driving a nice car late at night.

Whatever it was it goes to show that when the police ask for consent to search a car it's because they know they don't have probable cause to search it. The police count on motorists being intimidated into consenting to the search - and that's what usually happens.

Mr. Dockett knew better. He knew he was under no obligation to allow the police to search the car absent a warrant (or his arrest). He stood his ground and nothing came of it. And since the police didn't even bother to issue him a citation for speeding - you have to wonder about the basis for the stop in the first place.

You know if the police hate it when someone videotapes them going about their business that it must be driving them crazy that Mr. Dockett live-tweeted the stop. Now the Twitter world knows that it's okay to say no to the police.

The more of a light we cast on this behavior the less likely we are to encounter it. But it takes someone willing to stand up and say no. Thank you, Mr. Dockett, for having the courage to do just that.

Enough is enough? Apparently not yet.

By now nothing should shock us when it comes to TSA and the willingness of the American public to allow their rights and dignity to be thrown in the trash like a used paper towel.

In Florida over the weekend, TSA thugs security personnel requested that a 95 year-old woman, confined to a wheelchair, remove her adult diaper. The woman, suffering from leukemia and weighing just a tad over 100 pounds was taken to a glassed-in area and subjected to a pat down by TSA thugs security personnel. Feeling something "suspicious" on the elderly woman's leg, TSA thugs security personnel took her to a private room and notified the woman's daughter that she would have to remove her diaper because it was soiled. 

The TSA released a statement Sunday defending its agents' actions at the Northwest Florida Regional Airport.
"While every person and item must be screened before entering the secure boarding area, TSA works with passengers to resolve security alarms in a respectful and sensitive manner," the federal agency said. "We have reviewed the circumstances involving this screening and determined that our officers acted professionally and according to proper procedure."

After taking off her mother's diaper, both the daughter and her mother were both asked to submit to pat downs -- which, of course, they did. But why?  

Jean Weber told CNN's Fredricka Whitfield on Sunday that the security officers may have been procedurally correct, but she still does not believe they were justified, especially given her mother's frail condition.
"If this is your procedure -- which I do understand -- I also feel that your procedure needs to be changed," she said.
Weber said the two were traveling June 18 from northwest Florida to Michigan, so her mother could move in with relatives before eventually going to an assisted living facility.

Why was it so important to get on that plane that a grown woman would subject her mother to that level of humiliation? Why do people continue to play this game with the TSA? At what point will the American public take a stand and say that enough is enough?

It continues to amaze me that people just accept that this is the way that it is and don't question the reason behind the police state tactics at our nation's airports. It riles folks up to read about the child who was groped patted down by TSA thugs security personnel. It makes people mad when TSA thugs security personnel take away an object from a mentally retarded man. It makes our skin crawl when a 95 year-old woman is humiliated in the name of air travel.

But no one questions the reason for the complete lack of sense and respect our government shows for its citizens at airports.

Does it make you feel safer that you've kissed away your right to be left alone by the state? Does it make you feel safer that you've gladly handed over your dignity to a person wearing a TSA badge that isn't qualified to work for the police department?

We have become a nation of complainers. We like to sit on our couches or behind our desks and complain about the latest humiliation we were "forced" to endure because we didn't have the courage to take a stand and say enough is enough.

Monday, June 27, 2011

Avoiding confrontation 101

Last Thursday I wrote about what the Supreme Court had to say about confrontation and scientific reports in the Bullcoming opinion. The Court's decision does not mean, however, that the only person who can testify about the results of a lab report is the analyst who authored it.

In Bullcoming, the lab report included observations about the condition of the blood tubes and the procedures followed in testing the blood sample. The analyst who testified (not the author of the report) was not asked whether he had developed an independent opinion of the underlying test.

First let's assume that the report does not contain any personal observations of the analyst but consists merely of the results of the test. In that case, another analyst can testify as to the results of the test - but not to the manner in which the test was conducted. Whether such a scenario actually affords a defendant the opportunity to confront the witnesses against him is another story, however.

Now let's say that the analyst's supervisor had observed the analyst conduct the blood test. Then let's say that, just as in Bullcoming, the analyst was not called to testify. The supervisor could have testified to the contents of the report that he observed.

Now let's assume the other analyst conducted a second test on the blood sample. If the results of his test and the result of the test referenced in the lab report were consistent, the other analyst could have testified to his independent opinion about whether the driver was intoxicated at the time of the test (or driving).

Finally, let's not forget that the original analyst was on unpaid leave for an undisclosed infraction at the time of trial. The defendant was entitled to explore the reason for his being placed on leave as it might be relevant as to the trustworthiness of his testimony or the test results.

As a colleague of mine pointed out last week, the Court's opinion in this matter - particularly Justice Sotomayor's concurring opinion - is a primer in how the state can get lab reports (or at least the results of lab tests) into evidence in the absence of the analyst who either conducted the tests or wrote the report.

So while the Bullcoming decision is a victory for the right of confrontation, it's also a blueprint for the state in how to get around it.

Saturday, June 25, 2011

You're not going to believe this, but...

Dennis Olivier is a police officer with the Katy Independent School District Police Department (and don't even get me started on the absurdity of school districts having police departments) whose life was fairly uneventful until  earlier this month.

On June 8, 2011, Officer Olivier walked down the driveway to his pickup truck and noticed that a fishing tackle box loaded with an assortment of illegal drugs was missing. He could find no signs of forced entry and surmised he may have left his truck unlocked.

Why, you might ask, did Officer Olivier have an assortment of illegal drugs in his truck that would make a rock star proud? It seems that Officer Olivier is part of a K-9 unit (his partner, of course, being a dog) and the tackle box contained the samples used to train the dog.

The police report indicates the white tackle box with individual plastic bags of drugs was stolen, including: 
  • 6.5-grams of cocaine
  • 6.6-grams of heroin
  • 4.2-grams of methamphetamine
  • 6.4-grams of marijuana
  • An extra baggie of 30-grams of marijuana
  • 3 or 4 prescription pills

To add a further wrinkle to this sordid tale, Officer Olivier told investigators that the drugs were stolen sometime between June 4 (the date he took the drugs out of his patrol car and put them in his truck) and the day he discovered them missing.

The obvious question is why would he put the drugs in his truck in the first place? Wouldn't they have been safer in the trunk of his patrol car? Why did he leave the drugs in his truck for (at least) four days before checking to see they were still there?

Narcotics officers with another police department said the amount of drugs taken is consistent with K-9 training, but the drug-laden training kits are rarely stolen because they are usually carefully guarded and they don't look valuable.   They're also usually stored inside a police car, which is a much less likely target for burglars.

I have no idea whether or not Officer Olivier is telling the truth about the fate of the drugs. I find his story to be very amusing. I also find it very hard to believe.

These are the highly trained professionals that prosecutors parade in front of juries to testify as to how our clients consented to a search or that they smelled the "distinctive" odor of (fill-in-the-blank) drug. These are the men and women wearing badges and carrying guns that tell juries the dog really did signal that there were drugs in the car or that the defendant wasn't walking on the sidewalk when he was stopped.

There's something about Officer Olivier's story that just doesn't add up. I'm not going to speculate as to what happened to the drugs or as to whether or not the officer is telling a fib. I will say, however, that, at best, Officer Olivier acted negligently and, at worst, criminally.

Just think about the snickers you'd get if you tried to sell that story to a prosecutor.

H/T Stephen Dean

Friday, June 24, 2011

Mourning the loss of the Fourth Amendment

Mr. Alex Kozinksi, the chief judge of the Ninth Circuit Court of Appeals and his law clerk, Stephanie Grace, penned an article on Axis of Logic mourning the death of the Fourth Amendment (which also seems to be an ongoing theme here).
“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”
As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.
When did the Fourth Amendment die, you ask?
Judge Kozinski's thesis is that we are to blame for the death of the right to be left alone by our own actions of convenience. We have eroded our reasonable right to privacy by using cellphones that track our movements -- either through the use of GPS or from cell tower signals.

Through our enrollment in supermarket loyalty programs we have created a trail of purchases that los federales have access to through the use of subpoenas. Our increased use of debit cards creates electronic records of our purchases.
If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.
As I have written before, we have handed over some of our right to be left alone on a silver platter in the name of "security." We have allowed courthouses to become fortresses rather than buildings where people seek justice. We have restricted access to the people's buildings - erecting metal detectors and placing armed guards in the lobby of the state capitol building in Austin.

But there's more to the story than that. While we have certainly contributed to the demise of the Fourth Amendment by waiving our reasonable expectation of privacy in electronic communications and the like, the police, judges and legislators are the ones who struck the death blow.

Once upon a time it meant something that warrantless searches were unreasonable. Once upon a time the requirement of probable cause prevented the long arm of the state from intruding upon its citizens. But, just as if you place a frog in a pot of cold water and gradually heat it up, the frog will sit there and die without knowing what happened, we have stood and watched as the courts attacked the right to be left alone at the margins.

Terry stops. Searches incident to arrest. Protective sweeps. Exigent circumstances.The PATRIOT Act.  Implied consent. No Refusal weekends. Little by little. Bit by bit. By the time anyone caught on to what was happening, it was too late. Before you knew it, the Fourth Amendment lay dying on the ground, streams of blood trailing behind.

The Fourth Amendment died the death of a thousand cuts.

Buddy, can you spare some time?

Recently a member of the Harris County defense bar penned an article taking a critical look at public defenders' offices. And, somewhat predictably, those employed by the Public Defender's Office were up in arms about the perception that indigent defendants might not be getting the legal representation they deserve.

Clay Conrad wrote that public defenders are too overworked to provide the level of representation called for. Mr. Conrad points out that the main problem facing public defenders is caseloads that are too heavy.
Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are "pied out" without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.
Per ABA Guidelines, attorneys should not handle more than 150 felonies a year. But what does it mean to handle that many felony cases a year? That works out to three felony cases a week -- each and every week. Assuming a 40-hour work week, that means just 13 hours per case. That thirteen hours includes court time, jail visits, witness interviews, research and motion drafting. It doesn't take into account trial prep and trying cases. It also doesn't take into account meetings, continuing education, lunch, vacation and sick time.

Does that sound like enough time to handle a case adequately?

The lack of time to work a case puts pressure on everyone to dispose of other cases as quickly as possible. Which cases just get the "once over" and which cases get further work? How are those decisions made? Whose lives are affected because there aren't enough hours in the day?
But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

I know many of the lawyers in the Harris County Public Defenders' Office and they are very good at what they do. They care and they want to make a difference. But idealism and energy can't make up for lack of time and money.

What happens when Harris County decides it's time to cut the budget? Indigent defendants aren't a large voting bloc in Harris County. Trim a little here. Cut a little there. At some point the ABA Guidelines will be tossed aside in the name of keeping the operation within its allotted budget. At some point there will be pressure to "work out" more cases in order to keep costs down.

It's hard to serve two masters.

Thursday, June 23, 2011

Odds and ends

Perry signs bill compensating Anthony Graves

Gov. Rick Perry signed a bill on Tuesday authorizing the state to pay Anthony Graves $1.4 million in compensation for spending 18 years in prison for a murder he did not commit. In 2006, the 5th Circuit Court of Appeals reversed Mr. Graves' conviction. As there was no finding of actual innocence, the State Comptroller refused to compensate Mr. Graves for his years behind bars.

I guess, Ms. Combs, that it's somehow Mr. Graves' fault that he was arrested, charged and convicted despite the prosecutor's knowledge that the state's star witness recanted the night before trial.

God knows the state has more important things to spend money on -- such as the more than $10,000 a month the state is spending for the house the fair-haired one is renting while the Governor's Mansion is renovated.

Is ATS blackmailing the City of Houston?

ATS, the operator of the red light cameras in Houston, has issued a letter to the city saying that all will be forgiven if the city turns the cameras back on by August 1. If the city chooses to honor the will of the voters, the city may be on the hook for up to $20 million for breach of contract.

The city attorney, David Feldman, made the odd statement that statistics indicate an increase in accidents at intersections since the cameras were turned off after last November's referendum. Of course, Mr. Feldman has never let the facts get in the way of his pronouncements.

We're about to see where Mayor Annise Parker stands when she must decide between money and the will of the populace. I'm not holding my breath.

Author, author

David Bullcoming was arrested for driving while intoxicated after being involved in an automobile accident in Farmington, New Mexico. The driver of the other car noted that Mr. Bullcoming smelled of alcohol and had his wife call the police. Mr. Bullcoming left the scene but was stopped shortly thereafter. The arresting officer said he failed the roadside exercises and placed him under arrest.

After Mr. Bullcoming decided not to blow into the breath test machine, police obtained a search warrant allowing for a forcible blood draw. That blood specimen was tested by the New Mexico Department of Health's Scientific Laboratory Division (SLD). Curtis Caylor tested the sample which had an alcohol concentration of 0.21 grams per 100 milliliters, and wrote a report in which he certified that the test was conducted properly. As a result, Mr. Bullcoming was charged with aggravated DWI (BAC over 0.16).

At trial the prosecutor announced that Mr. Caylor would not be testifying because he had been placed on unpaid leave and that another analyst would testify as to the test result. Defense counsel objected on the grounds that Mr. Bullcoming's right to confront the analyst who conducted the test was being violated. The trial court didn't see it that way, overruled his objection and allowed the lab report into evidence as a business record.

On appeal the New Mexico Supreme Court ruled that Mr. Bullcoming's confrontation rights under Crawford weren't denied because Mr. Caylor was just the person who wrote down the test result. The Court held that the analyst called to testify was also an expert in gas chromatography and was qualified to testify as to the results of the test.

The US Supreme Court took the case to determine whether or not the state can introduce a lab report that is testimonial in nature through the testimony of an analyst who neither conducted the test nor authored the report.

The answer is no.

As a rule, if an out-of-court statement is testi­monial  in  nature, it may not be introduced against the accused at trial unless the witness who made the state­ment is unavailable and the accused has had a prior op­portunity to confront that witness.   Because the New Mexico Supreme Court permitted the testimonial state­ment of one witness,  i.e., Caylor, to enter into evidence through the in-court testimony of a second person,  i.e., Razatos, we reverse that court’s judgment.  -- Bullcoming v. New Mexico, 564 US ___ (2011)

In making its decision, the Court looked at the contents of the report written by Mr. Caylor. The report contained more than just a test result. The report indicated the steps Mr. Caylor took in testing the sample. The report indicated the condition of the sample before the test was conducted. Since the report contained information that only the person conducting the test could know, Mr. Bullcoming had the right to confront the analyst was conducted the test. Denying Mr. Bullcoming the opportunity to cross examine Mr. Caylor deprived Mr. Bullcoming of his right of confrontation under the Sixth Amendment.

The Court also shot down New Mexico's argument that the lab report was nontestimonial.

A document created solely for an “evidentiary pur­pose,”  Melendez-Diaz  clarified, made in aid of a police investigation, ranks as testimonial. -- Bullcoming

Lab reports are not just business records, they are testimonial documents and defendants have the right under Crawford and Melendez-Diaz to confront the authors of the lab reports. The failure of the state to make the analysts available is a violation of a criminal defendant's rights under the Sixth Amendment.

Handing over your rights on a silver platter

FBI crime figures show the rate of crime in the United States has been falling over the last 20 years - with a sharp drop-off since 2008. The BBC took a look at ten theories as to why this is happening despite the recession.

One of the theories is that law enforcement has been policing smarter over the last two decades. As an example, the BBC points to the problem of auto theft in Laredo, Texas. Just google "auto theft laredo" and you'll find out that Laredo was the worst city for auto theft.

That is until the police came up with a new plan to combat the auto thieves.

Car owners in Laredo can register their license plate numbers with the police. The license plate numbers are then entered into a database. Having this information at their fingertips allowed police officers to stop those cars late at night to confirm they weren't stolen.

Just take a second to let that sink in.

The police in Laredo, Texas are free to stop any car whose license plate number comes up in the database if its being driving around late at night. No reasonable suspicion needed. No probable cause to worry about. In the name of security, Laredo found a way to eliminate the Fourth Amendment altogether.

An officer could be sitting behind a car at a light and run the license plate on a whim. Now he can pull over the driver to make sure the car wasn't stolen. But what's that? The owner has the smell of an alcoholic beverage on his breath. So what if there was no probable cause to make the traffic stop - the officer relied on his community caretaking powers and now he's got a DWI on his hands.

Hey, but at least the car wasn't stolen.

Wednesday, June 22, 2011

A welcome respite

Asleep on the watch

So Texas state senator Dan Patrick (R-Houston) is a poseur after all.

Governor Goodhair has decided to take up the reins for everyone opposed to groping at the airport. So what if los federales are threatening to cancel flights in and out of Texas as a result. The fair-haired one has found an issue that's dear to the hearts of libertarians everywhere.

I applaud Gov. Perry for his stand against the groping fingers of the TSA but I also wonder why his sudden love of personal freedom and privacy doesn't extend to anyone outside an airport. At least we have a choice whether we wish to subject ourselves to the groping hands or X-ray eyes of airport security. We don't have a choice when confronted by a police officer on the side of the road.

Rep. David Simpson, R-Longview, sent a letter to Perry on Sunday urging him to defend the "privacy, dignity and constitutional rights of our citizens."
Where's the hue and cry for an end to the legal fiction of informed consent? Where's the outrage over the violations of the Fourth Amendment in the procurement of search warrants for blood? How about the coercive effects of "No Refusal" Weekends?

It's quite ironic that the law and order set has their panties in a wad over airport security considering TSA's license to grope was the result of the right wing's assault on the Fourth Amendment following 9/11. No one on the right seemed to mind the erosion of privacy at the airport while Bush the Younger sat in Washington torturing the English language. Would this even be an issue had it begun under W's watch?

Few folks on the right have raised any concerns about the steady erosion of the Fourth Amendment over the last 50 years. Maybe it was because that Fourth Amendment was for those who ran afoul of the law. As long as it was affecting them it didn't matter how intrusive the long arm of the law became. But guess what? Shredding the Fourth Amendment for those accused of criminal conduct allowed the state to take away everyone's right to be left alone.

Mental retardation is no match against the Texas death machine

Last night the State of Texas murdered Milton Mathis. Mr. Mathis killed two of his friends inside a crack house and shot another person who is now paralyzed from the waist down.

Mr. Mathis also had an IQ of 62 - a result that suggests he was mentally retarded. At the time of his conviction the US Supreme Court had not yet held that executing the mentally retarded was a violation of the Eighth Amendment. He was granted a hearing at which the judge made the determination that he was not retarded.

The murder of Mr. Mathis does not bring back anyone from the dead. It does not cure anyone's paralysis. It does nothing to ease the pain of knowing your loved ones aren't coming home.

All it means is one more person is dead and one more family is grieving.

Tuesday, June 21, 2011

The nanny state and the goldfish

First they set their sights on Happy Meals. Next up was circumcision. Now the city of San Francisco has decided that goldfish are a blight upon humanity. The San Francisco Animal Control and Welfare Commission has proposed that city supervisors ban the sale of goldfish in the city because aquarium fish are "mass bred" under "inhumane" conditions.


"Most fish in aquariums are either mass bred" under inhumane conditions "or taken from the wild," commission member Philip Gerrie said. That leads to "devastation of tropical fish from places like Southeast Asia," he said.

Millions of children learn to care for animals by raising goldfish. When I was a strapping young lad each of us in our family had a goldfish. We had to feed the fish and keep the water clean. Of course they all eventually died -- though none more spectacularly than my youngest brother's fish who got sick and was eaten by his bowl mate.

Fish are the ultimate urban pet. You don't have to walk them. You don't have to clean up after them. They don't soil the carpet. They don't get fur all over the furniture. They're pretty to look at - especially salt water fish - and you can customize your tank to your heart's content.

The fish don't have to search for food. They don't have to worry about predators. They just have to swim around all day and provide a pleasant backdrop for whatever else is going on inside the house.

The City by the Bay has rapidly become a symbol of the "nanny state" on steroids. People have to, at some level, be left to their own devices to function. The citizenry has a right to be left alone by the ever expanding reach of the state. Not every perceived wrong can be "fixed" by government fiat.

Like every other major city in the United States, San Francisco is confronted with unemployment, crime, pollution, traffic congestion, poverty, drug and alcohol addiction and a host of other problems. But instead of looking at ways to alleviate human suffering, the do-gooders in San Francisco are taking up the cause of goldfish.

I guess it's much easier to deal with pseudo-issues like rousting fish from the sea than it is with the very real problems that confront our society on a daily basis.

US Constitution ratified 223 years ago today

And speaking of the Constitution...

On this date in 1788, New Hampshire became the ninth state to ratify the U.S. Constitution which, per Article VII, made the new blueprint for governing the country binding.

After being ratified by eight states, the fight for the Constitution became bogged down as delegates in New Hampshire and Virginia were split down the middle and delegates in New York were solidly against ratification. The so-called "Massachusetts Compromise" carried the day in New Hampshire.

The compromise was to ratify the Constitution now and amend it later.

The rest, as they say, is history.

Will anyone stand up for the Constitution?

The Congress shall have the power to lay and collect taxes, duties, posts and excises, to pay the debts and provide for the common defense and general welfare of the United States... 
The Congress shall have the power to declare war... 
-- United States Constitution, Article I, Section 8
Last week, ten members of Congress filed suit in federal court seeking an injunction against President Obama's intervention in Libya.

Their action comes about 61 years late. Congress sat on its hands in 1950 when President Truman sent American troops to fight in Korea. The president didn't seek a declaration of war and Congress obliged him by doing nothing.

Then President Eisenhower thought it would be a grand idea to send American "military advisors" to Vietnam to get involved in a messy little domestic dispute that turned into a nasty civil war. No one in Congress raised their voice as more "advisors" were sent to Southeast Asia. The American presence escalated under President Kennedy to a chorus of silence from Congress.

Then came the "incident" in the Gulf of Tonkin. President Johnson decided it was time to send in more troops. Congress passed something called the Gulf of Tonkin Resolution by which they formally ceded their constitutional duty to declare war.

Under President Nixon the war became the military equivalent of Uncle Remus' tar baby. Just like Brer Rabbit got himself stuck in that little ol' ball of tar, the American military found itself in a war it couldn't win. Congress finally got around to asking themselves if it might be a good idea to declare war considering the number of troops on the ground in Vietnam.

But alas, Congress couldn't bring itself to actually doing its job. They passed a little something called the War Powers Act that was as clear a breach of the Constitution as anything that came through the nation's Capitol. The imperial presidency was now complete.

Presidents Reagan, Bush (the Elder), Clinton and Bush (the Younger) all sent young Americans into harm's way without so much as a peep from Congress -- unless someone thought they could wrangle some votes in the next election by appearing to have a backbone.

And now, 70 years after the last time Congress declared war on anyone, some members of Congress have decided that enough is enough and are challenging the president's ability to send troops into war without the authorization of Congress.

One might argue, however, that the doctrine of laches would defeat any attempt by Congress to regain a power that they have failed to exercise since 1941. Allow someone to do a certain thing over and over without raising a stink about it and a court is likely to decide that you were just fine with what that certain someone was doing. There's also that little sticking point known as the separation of powers. Does a federal court have the power to issue an injunction preventing the president from doing anything?

And that brings me to another question -- if Congress controls the purse strings of the federal government, why don't they just vote not to fund any military operation in Libya? If Congress were to challenge a president when it comes to sending our young people to war, maybe, just maybe, we might see the US involved in fewer conflicts overseas.

Of course if Congress were to call a vote on blocking funding of the military intervention, then some folks up in Washington would actually have to take a meaningful stand and put their butts on the line. Does anyone in Congress have the guts to stand up to the president and demand that Congress' power to declare war be observed?

While I can think of a couple of folks who might be so inclined, for the most part, our legislators in Washington sold their souls a long time ago for the almighty campaign contribution. You see, if you take a principled stand you're bound to piss someone off and since very few politicians have the courage to stand for their convictions, Congress' power to declare war will continue to be honored more in the breach than in the observance.

Monday, June 20, 2011

Execution Watch 6/21/11

This comes to us from Execution Watch...

When he arrived in prison, Milton Mathis scored 62 on an IQ test, well below the threshold of 70 that is a widely accepted indication of retardation. The Supreme Court has banned as cruel and unusual the execution of people who are mentally retarded. Mathis's claims of retardation have never been heard in a federal court. Nonetheless, Texas intends to put him to death Tuesday by lethal injection. Unless a stay is issued, Execution Watch will broadcast live coverage of the execution and Mathis's case.

See details below or click here


MILTON MATHIS, 32, He cheated death in 2005 through a stay of execution. Six years later, he received a new date despite the fact that motions alleging he is mentally retarded have never been heard in federal court. The U.S. Supreme Court turned down an appeal in February 2011. His attorneys continued to petition for a hearing on evidence that he is retarded and therefore ineligible for execution. The Houston native was convicted in the 1998 shooting deaths of two men in Fort Bend County. More background at > Backpage.


June 21, 2011, 6 PM Central Time -- unless a stay is issued
Houston area: KPFT 90.1 FM; Galveston, TX, 89.5; Huntsville, TX, 89.7
Worldwide: > Listen

Perry signs HB 1199 into law

On Friday, Governor Rick Perry signed HB 1199 into law. As of September 1, 2011, it will be a Class A misdemeanor if a motorist is arrested for driving while intoxicated and a breath or blood test shows an alcohol concentration of 0.15 or higher.

The new law does not provide how long after the stop the breath or blood specimen must be tested or obtained. The new law does not take into account whether the motorist is in the absorption or elimination phase at the time of the test. The new law does not explain why an arbitrary alcohol level was selected as the line of demarcation between Class A and Class B misdemeanor DWI.

Prior to the passage of HB 1199, the seriousness of a drunk driving charge depended upon whether the defendant had a prior conviction for DWI or whether anyone had been seriously injured or killed as a result of an accident with the defendant. Now we're going to determine the seriousness of the charge based on a chemical test alone. This is a very bad precedent.

This new law will put more pressure on judges to sign off on faulty blood warrants when motorists exercise their right to refuse to submit a breath sample. This new law will put more pressure on local authorities to make "No Refusal" Weekends the rule rather than the exception.

Maybe the real purpose is to scare motorists away from challenging their cases before a jury. Cases with high test scores and good videos are prime candidates for trial -- asking the jury whether they are more inclined to believe what they see (the video) or what they hear (the breath test result). Come September, these motorists will be confronted with the choice of going to trial on a Class A misdemeanor or taking the state's offer of a Class B on cases with high test scores.

That's the ticket for the State of Texas - got questions with the pseudo-science behind the breath test machine? Just legislate the questions away by waving a larger stick.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:
When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 
If everyone simply refused to comply with those conditions, what would happen?
Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

Sunday, June 19, 2011

Making learning fun

Yesterday I found myself taking my oldest to a birthday party for one of her classmates. I know, I know, a birthday party for a seven year-old - how exciting. How on earth did you get stuck with that gig.

Not yesterday. It was a mad scientist party and the guest attraction was Jon Bartell of Science Quest in Houston. Through some really crazy experiments and a host of critters, Mr. Bartell showed a roomful of kids just how much fun science can be. From cannons made with breath freshener to crushing cans to sending the kids up and back on a hovercraft, Mr. Bartell made science come alive for both the kids and the parents.

We have dumbed down and taken the fun out of so much at school -- all in the name of getting kids ready for standardized tests. What ever happened to teaching children to think and make their own discoveries? What ever happened to hands-on experiments? What ever happened to having kids who wanted to be at school?

Thank you, Mr. Bartell, for reminding us that learning can be fun.

Saturday, June 18, 2011

The return of the red light camera?

On Friday, US District Judge Lynn Hughes ruled that last November's ballot initiative to repeal Houston's red light camera ordinance was invalid.

The court held that the referendum was held after the time limit to repeal city ordinances had expired.

Mayor Annise Parker said she will consult with her lapdog, city attorney David Feldman, about the city's next move. With budget shortfalls to deal with, it's a pretty good bet that the city is going to do everything it can to get the cameras rolling once again.

“We lost on the issue of the validity of the charter amendment, so what the court is saying, okay city, now decide what you’re going to do with the contract. We need to decide how we’re going to move forward, and what position we’re going to take with the contract in light of the fact he’s declared the charter amendment invalid.’’ -- David Feldman

Judge Hughes' ruling does raise a question or two. First, if the ballot initiative was invalid because the time for repealing the ordinance had passed, why did election officials certify the initiative on the ballot?  If this is an argument the city is raising for the first time, why didn't city officials challenge the placement of the initiative on the ballot last November? Why was a federal court issuing a ruling regarding a city ordinance?

I understand why the matter was in federal court. ATS, the manufacturer of the red light camera system was suing the City of Houston for breach of contract over the city's cancellation of the contract as a result of the referendum. It would appear that there was never an adversarial relationship between the company and the city and that the purpose of the litigation was to void the result of the referendum.

The question still remains however? Why was Judge Hughes making a ruling about a local ballot initiative? The only question before the court was whether the city had breached its contract with ATS - not why the city cancelled the contract. The reason behind the city's decision had nothing to do with whether or not the city breached any contract.

Judge Hughes had no reason to enter any ruling regarding the ballot initiative. By doing so he involved himself in a dispute that is a local, not a federal, matter.

Friday, June 17, 2011

Time for a little rain dance

According to the SciGuy over at the Houston Chronicle, there is hope here in Houston for some of that wet stuff falling from the sky.

Eric Berger, the Chronicle's science blogger notes that it has been a record 144 days since (Bush) Intercontinental Airport recorded as much as a half-inch of rain. The previous record was 93 days.

Fred Schmude at ImpactWeather says that conditions seem to be ripe for rain next Wednesday through the weekend. Over at the Weather Channel, they are predicting rain beginning next Tuesday.

We average about 53 inches of rain a year. The average rainfall for June is 6.25 inches. To date, Houston has received 7 inches of rain this year - a third of what we typically average.

Juror sentenced for using Facebook during trial

Joanne Fraill of Manchester, England (probably a Man U. fan), found out the hard way that Facebook and jury duty don't mix well.

On Thursday, Ms. Fraill was sentenced to eight months in prison after being found in contempt of court. It would seem that, while serving on the jury, Ms. Fraill "friended" -- and the use of that word as a verb should itself be a criminal act -- one Jamie Stewart, a defendant in a felony drug case, on Facebook. While the jury was deliberating, Ms. Fraill made contact with Ms. Stewart and discussed the case with her. She even provided Ms. Stewart with details of the jury's deliberations.
Sentencing Fraill, Lord Judge said in a written ruling: "Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial."
Interestingly enough, the shenanigans occurred after the jury had informed the court that it was deadlocked. The court then gave the jury the option of deciding the case by a majority vote, rather than a unanimous vote.

Ms. Stewart, who was acquitted, was given a suspended sentence for her role in the online communications.

The widespread use of Facebook and Twitter (and other social media sites) is straining this artificial construct we call the trial. Unless we are going to sequester every jury in every case, someone is going to do a little "research" on the internet about the case. It may be pulling up maps of the scene of an accident. It may be looking at the online profiles of the attorneys involved. Someone might look for the defendant on Facebook or Twitter. Someone's going to go to Google to find out about the breath test machine or DNA testing or some other field of forensic (pseudo-)science.

The information they find might be helpful to the defense. It might be harmful to the defense. It won't, however, be subject to cross-examination. It won't be subject to relevancy or hearsay objections.

Most of us won't have to worry about it too much because most of our trials last no more than a day or two and none of the details of the case ever make it to the local paper.

But one thing is certain - technology has (once again) outpaced our legal constructions and conventions. I don't know what the answer is. Jurors may say they won't do any research outside the courtroom -- but jurors also state they won't allow their own biases to prevent them from being fair (even after they've admitted they will hold it against your client if she doesn't take the stand in her own defense).

Murder in Huntsville

The State of Texas murdered Lee Taylor yesterday. They did their best to sanitize the sordid affair - calling it an execution and using a lethal injection of drugs designed to help people, not kill them.

Mr. Taylor wasn't a good person. He did what the state accused him of doing. He killed another inmate. The state called it murder. Mr. Taylor called it self-defense.

The State of Texas killed Mr. Taylor on Thursday night. The State acted intentionally and knowingly when it strapped Mr. Taylor onto a gurney in Huntsville. The medical professionals in attendance acted intentionally and knowingly when they inserted the IV into Mr. Taylor's arm. They acted intentionally and knowingly when they allowed the drug to flow into his veins. They acted intentionally and knowingly when they violated the oath they took to do no harm.

Killing Mr. Taylor didn't bring back Donta Green. Killing Mr. Taylor didn't undo what happened at the Telford Unit back in 1999. Killing Mr. Taylor did nothing more than allow the State of Texas to show its hubris in believing that it, and it alone, has the moral authority to take another person's life.

Thursday, June 16, 2011

More thoughts on HB 1199

Yesterday I wrote about HB 1199 which would make it a Class A misdemeanor in Texas to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. There were a couple of additional points I wanted to make in regards to this ill-conceived piece of legislation.

First, did the authors of the bill, Rep. Pete Gallego (D-Alpine) and Rep. Trey Martinez Fischer (D-San Antonio), give any consideration as to how the new law would be enforced? Does this bill mean that any DWI case in which there was a breath or blood test over 0.15 is to be filed as a Class A misdemeanor? Or does it mean that the high test is an enhancement for punishment? Does it mean that the jury must make an affirmative finding that the defendant's alcohol concentration was over 0.15?

On the other hand, maybe the bill will provide ammunition for those who would require a jury not only to be unanimous as to whether a motorist was intoxicated, but also unanimous as to the theory of intoxication. Would defense attorneys look to argue the accuracy of the breath test machine not only on low test cases but also on cases in which the breath test was 0.15 or higher?

Second, the bill provides yet another disincentive for a motorist to submit to a breath or blood test. Unless, of course, the next step is to make breath or blood tests mandatory in drunk driving cases. And what of the disparity in sentencing? You may have a case with particularly bad facts in which a motorist refused to submit to a test and is charged with a Class B misdemeanor while another case may have decent facts but the motorists blew over a 0.15 and is charged with a Class A. Where's the justice in that scenario? The second driver did just what the state wanted him to do and he gets the worst of it.

HB 1199 is a bad piece of legislation that leaves us with more questions than answers.

Update: High Court grants stay of Texas execution

John Balentine, who was scheduled to be murdered by the State of Texas on Wednesday night, received a last minute reprieve from the U.S. Supreme Court about an hour before his scheduled execution.

The Court granted the stay so that it could review Mr. Balentine's claim that he was afforded ineffective assistance of counsel during his trial and during the early stages of the appeal process. The stay follows the Court's decision last week to review an Arizona case in which the question of whether a person convicted of a crime is entitled to effective representation during the early stages of the appeals process.

The US Constitution guarantees the right of a criminal defendant to be represented by counsel through trial. Courts have long held that the same right does not apply to defendants seeking appellate relief. We are all entitled to our day in court -- but if we don't like the result we're not entitled to appeal, unless we can afford to pay for it.

While I find it unlikely that the Supreme Court would extend the right to counsel to the appellate process, I wouldn't be completely shocked if the Court extended the right to competent counsel to persons appealing convictions of capital crimes.

Wednesday, June 15, 2011

Execution Watch 6/15/11

This comes to us from Execution Watch...

Texas plans to put to death two men this week: John Balentine Wednesday and Lee Taylor Thursday. Back-to-back executions are far from rare in the state that has carried out one-third of all U.S. executions since 1976, earning it the nickname of death penalty capital of the Western world.

News coverage and analysis of each execution will be broadcast live on Execution Watch at 6 p.m. Central Time by Pacifica station KPFT FM 90.1 Houston, and streamed at > "Listen" ... Spread the word.

The U.S. Supreme Court turned down appeals from both prisoners. Balentine argued his attorneys were ineffective because they failed to give the jury mitigating evidence of his troubled childhood. Taylor claimed his death sentence was improperly obtained because prosecutors told the jury about a murder for which he was convicted when he was a juvenile and ineligible for the death penalty.

Each man will be taken from his cell on death row, handcuffed and chained, then driven from Livingston to the death house in Huntville. The state will execute the men by injecting them with massive doses of drugs normally used to save lives. 

Click here for previews of both shows:

Yet another assault on motorists

On May 30, 2011, the Texas Legislature sent HB 1199 to the governor, it having passed both houses. Under Texas law, the governor may sign a bill into law, veto a bill or allow it become law by letting it sit on his desk for ten days. Since the regular legislative session ended before the expiration of the ten days, the bill must sit for twenty days before it can become law without the governor's signature.

That means that June 19, 2011 is the day on which the Abdallah Khader Act will become law in the Lone Star State. Now, first of all, if a bill is named after a person, you know it can't be good for anyone charged with a crime since Rule No. 1 of lawmaking is that bad facts make bad laws.

Abdallah Khader just turned five. When he was two, his parents' car was rear-ended by a man alleged to have had an alcohol concentration three times the legal limit. Abdallah has been in a vegetative state ever since.

It's a tragedy. There are no two ways about it. But there are people who are injured and killed by motorists who aren't intoxicated. There are people who are injured and killed by motorists with alcohol concentrations just over the legal limit.

HB 1199 won't do anything to bring Abdallah out of his coma. HB 1199 won't do anything to prevent another accident. What HB 1199 will do is subject motorists to more severe punishment even if there is no accident and no injuries.

If HB 1199 becomes law it will become a Class A misdemeanor, with a maximum punishment of up to one year in jail, to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. That's right - not at the time of driving, but at the time of the test. The problem with that is that it's not against the law to have an alcohol concentration of greater than .08 unless you are driving at the time. And why 0.15? That's less than twice the legal limit. What relationship does that have with the sad case of Abdallah Khader?

Current law requires the state to prove that a motorist's alcohol concentration was over the legal limit at the time of driving. This means we must sit through an exercise in pseudo-science known as retrograde extrapolation where the state's "expert" testifies that a person's BAC was a certain level at the time of driving based solely on the BAC at the time of the test and the length of time that passed between the time of the stop and the time of the test.

The state needn't concern itself with such details as the weight or sex of the motorist. Never mind the make up of the motorist's blood. No need to concern yourself with what the motorist last had to eat or whether he's in the elimination or absorption phase. Who cares what that particular person's ratio of breath to blood is? Just give the state's "expert" a calculator, a BAC and two times and voila, proof of intoxication.

Now the legislature wants to make it even easier for the state.

HB 1199 is yet another reason a motorist should never submit voluntarily to a breath or blood test. The next step in the state's assault on our rights is to "criminalize" a breath or blood test refusal.

I'm just curious why the fair-haired one hasn't signed this one into law as part of his campaign to show America just how tough on crime he is.

Tuesday, June 14, 2011

Courthouses in the Garden of Good and Evil

On our way back from South Carolina last week we made a stop in Savannah to take in a few of the sights of the city.

Since my oldest daughter is now a Brownie, we took a tour of the Juliette Low birthplace. She was the founder of the Girl Scouts. Ms. Low was quite the interesting character I must say. My oldest was excited. She got a pin and a patch for her uniform.

Then it was off to one of Savannah's many squares for a picnic lunch. While eating I noticed a building across the way. The sign said it was the Chatham County Courthouse. I had to investigate further. As it turned out, however, this courthouse, built in 1889, was only the administrative courthouse.

It seems the 1889 courthouse is a magnet for design students who are interested in the arch in front. The interior walls have slabs of Georgia marble on them. I would imagine the old courtroom used for commissioner's court was quite the sight back in the day.

On the other side of the square is the federal courthouse.

This is a picture taken from the back showing the clock tower.

The guard at the administrative courthouse told me that the actual courthouse was located a couple of blocks up the road - so it was time for a hike.

And, of course, in a city known for its stately architecture and love of history, this travesty is the working courthouse.

Monday, June 13, 2011

What twisted webs we weave

In the end all you have is your name and your credibility. Once you've besmirched those two things, you have nothing left.

The internet, the blogosphere, the 24-hour news cycle and satellite and cable television have made it easier to obtain information -- but they've also made it easier deceive the public.

Thanks to the miracles of the internet, I was able to time the release of blog posts while I was on Edisto Island in South Carolina last week. Not knowing when I'd get the chance to update the blog I wrote a week's worth of pieces in the days before we set out.

Tom MacMaster, a 40-year old American student studying in Scotland, used the internet to perpetuate a hoax. I'm sure it didn't start out that way. He created an online persona that he used to comment on other blogs about the situation in the Middle East. This online persona, in his words, then took on a life of its own. He developed a back story of a half-American, half-Syrian lesbian struggling to come to grips with culture, religion and sex.

First came a Facebook page then came the blog. Then it all snowballed.

Journalists, academics, activists and others began following the saga of Amina Arraf. No one questioned whether she was a real person. No one questioned whether the events depicted in the blog even occurred. I mean, it's the Internet -- why wouldn't it be true?

Then Ms. Arraf was tossed in the clink. An online campaign protesting her arrest and demanding her release was born. Newspapers, both print and on-line, ran articles about her detention.Then someone decided to do a little fact-checking.

The gig was soon up.

Was Mr. MacMaster right or wrong? I don't know. He "misled" people who followed his tale of Amina online. But how does that differ from any work of fiction you pick off the shelf or any television drama you sit down to watch? He never asked for money. He never asked for anything. He created a story that people followed because they found it interesting.

Now Mr. MacMaster is a pariah. There are a lot of journalists and other so-called experts who have egg on their faces because they took what they read on the internet as the truth. Mr. MacMaster has apologized for the hoax -- my guess is he's more sorry he got "caught" than he is for creating the story.

Has he harmed the cause of those seeking change in the Middle East? Does this mean that journalists might begin checking their facts before publishing stories? Will we begin taking what we see on the internet with a healthy grain of salt?

In the meantime, Mr. MacMaster walks away with both his name and credibility sullied.

Saturday, June 11, 2011

The politics of exclusion

"Lord, I know that I always said that I'd never involve you in a baseball game. It always seemed silly. I mean, You got enough to do." -- Billy Chapel, For Love of the Game
*     *     *     *     *
"And more importantly, we're going to have to pray. We're going to have to do this prayerfully so that it's not by might nor by strength but by His power that this country will be turned back to Him. That's what we're going to do."  -- Ralph Reed, founder of the Faith and Freedom Coalition
We all know that the wingnuts think God is a rock-ribbed, card-carrying conservative. I would think that, if such a being exists, that it has more important things to worry about than who wins a freaking election. I also find it quite arrogant (or maybe ignorant) for one group to proclaim that God is their God and no one else's.

Who's to say Ralph's crew of bible-thumping believers is right? Is Mr. Reed implying that anyone who doesn't support his agenda is not a true Christian? Is he implying that anyone who doesn't support his agenda doesn't believe in, or worship, God (in whatever name or form)?

What about Catholics and Jews and Muslims and Buddhists?

What about anyone who believes differently?

And what about Jesus's warning that it isn't our place to judge others?

And where does Mr. Reed place compassion, understanding and tolerance in the great pantheon of virtues?

Or does religion have nothing to do with this at all? Are Mr. Reed and his fellow travelers just using religion as a cover to organize a political movement? Karl Marx referred to religion as the opiate of the masses. Religion has long been used to quell the masses by promising them a brighter tomorrow once this miserable life is over.

This is a nation founded on religious freedom. The dour Pilgrims left England because they didn't want the King and Queen telling them how to worship. This nation was built on the backs of immigrants who brought their religions and their beliefs with them to America. The current nativist movement conveniently forgets that few of us were born here. We all came from somewhere else.

Friday, June 10, 2011

We're what you call experts

Here's secret footage of  forensic lab techs conducting a controlled experiment.

H/T The Czar

Thursday, June 9, 2011

Is it time to call a cease fire in the war on drugs?

According to the Global Commission on Drug Policy, the worldwide war on drugs has been an abject failure. As nations have strengthened drug laws and ratcheted up the penalties for possession and manufacture, use of marijuana, cocaine and opiates has increased.

The reality is that drug addiction is a medical issue, not a penal issue. So long as governments treat users and addicts as criminals, the problem will never fade into oblivion. The US approach to drugs is the equivalent of trying to blast a mosquito with a shotgun.

"Political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won," the report said. 
Instead of punishing users who the report says "do no harm to others," the commission argues that governments should end criminalisation of drug use, experiment with legal models that would undermine organised crime syndicates and offer health and treatment services for drug-users.

All you have to do is look to our south to see that what we're doing now isn't working. Mexico has become a no-man's land with drug kingpins fighting to maintain their share of the market in the face of military attacks.

Harris County is having to ship pretrial detainees to outlying counties because the jail is packed to the gills with nonviolent drug offenders who need treatment, not prosecution.

We have drug courts that conspire to deprive defendants of their constitutional protections in the name of "team work." I'm sorry, but an adversarial system that doles out punishment is not the proper vehicle for treating addiction.

The report of the Global Commission calls for governments to stop treating drug use as a criminal issue and to being looking at it from a public health standpoint.
Offer health and treatment services to those in need. Ensure that a variety of treatment modalities are available, including not just methadone and buprenorphine treatment but also the heroin-assisted treatment programs that have proven successful in many European countries and Canada. Implement syringe access and other harm reduction measures that have proven effective in reducing transmission of HIV and other blood-borne infections as well as fatal overdoses. Respect the human rights of people who use drugs. Abolish abusive practices carried out in the name of treatment – such as forced detention, forced labor, and physical or psychological abuse – that contravene human rights standards and norms or that remove the right to self-determination...
Begin the transformation of the globaldrug prohibition regime. Replace drug policies and strategies driven by ideology and political convenience with fiscally responsible policies and strategies grounded in science, health, security and human rights – and adopt appropriate criteria for their evaluation. Review the scheduling of drugs that has resulted in obvious anomalies like the flawed categorization of cannabis, coca leaf and MDMA. Ensure that the international conventions are interpreted and/or revised to accommodate robust experimentation with harm reduction, decriminalization and legal regulatory policies.
 Sure, there's a political agenda here -- but the idea is sound. The notion of treating the disease rather than the symptom is one that not too many legislators appreciate. It doesn't lend itself to soundbites. It doesn't lend itself to campaign slogans. It's probably not the message that's going to get you re-elected.

The Committee calls on nations to adopt the following principles when dealing with drug addiction:
1. Drug policies must be based on solid empirical and scientific evidence. The primary measure of success should be the reduction of harm to the health, security and welfare of individuals and society.
2. Drug policies must be based on human rights and public health principles. We should end the stigmatization and marginalization of people who use certain drugs and those involved in the lower levels of cultivation, production and distribution, and treat people dependent on drugs as patients,not criminals.
3. The development and implementation of drug policies should be a global shared responsibility, but also needs to take into consideration diverse political, social and cultural realities. Policies should respect the rights and needs of people affected by production, trafficking and consumption, as explicitly acknowledged in the 1988 Convention on Drug Trafficking.
4. Drug policies must be pursued in a comprehensive manner, involving families, schools, public health specialists, development practitioners and civil society leaders, in partnership with law enforcement agencies and other relevant governmental bodies.

Or we can continue down the same flawed path we've been travelling for decades.

Maybe we should just adopt Kissinger's Vietnam exit strategy. Claim victory and get the hell out of Dodge.

More fun with science

Here's a document from the Southwestern Institute of Forensic Sciences in Dallas regarding an interesting finding on a proficiency test.

According to the supplier of the serology proficiency test (SERI), the test slide in question contained seminal fluid but no sperm cells. However, the lab tech said her test came back positive for both. The supervisor of forensic biology, Dr. Stacy McDonald, reran the test and claimed she, too, found a single sperm cell on the slide.

Now that raises an interesting conundrum - was the test supplier mistaken in what was on that particular slide or was the lab contaminated? Did SWIFS cover up an incorrect result on a proficiency exam? If SWIFS did cover up the test result, what was the source of the sperm cell on the test slide? If there was a contamination issue at the lab, when was it discovered? And what was done to resolve the problem? Were defense attorneys made aware of contamination issues at the lab?

According to this document, SWIFS did not implement an investigation to determine the source of the contamination. If there was no cover up, why didn't SWIFS notify SERI of the contamination of the slide in question?

CAR 06-006 FBU Proficiency Test Discrepancy

Sure, it was just a proficiency exam. But what if this had been an evidential sample in a criminal case? What if someone's life hung in the balance? How much confidence would you place in the lab?