Friday, September 30, 2011

Peeing in the pool

"Well I just can't believe you bunch of ignoramuses just voted to find that piece of shit defendant not guilty! Would y'all have voted the same way if I told you all the stuff the judge said I couldn't? Do y'all want to know just what this little SOB has done in the past?"

Okay, that's probably not how it goes down. It's more subtle than that. The prosecutor, still bothered that a jury acquitted a defendant, wants them to know what a bad decision they actually made. He wants them to know that there's a whole lot of stuff that mean ol' judge wouldn't let him talk about. So he lets loose with a tasty morsel of two.


You bet.

Why would he do that?

Because he knows that the jurors have family, friends, neighbors and co-workers. He knows those jurors are going to talk about the case once it's over. He knows those jurors are going to tell everyone to be wary because they won't be getting the whole story. In short, he's doing his best to poison a little bitty piece of that jury pool.

In Wednesday's Houston Chronicle, Houston appellate attorney Brian Wice fired a shot across the bow of the Harris County District Attorney's Office when he publicly castigated the prosecutors who decided to pee in the pool after a famed Houston doctor, Michael Brown, was acquitted of assaulting his wife. 

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about "the real Michael Brown." In a matter of moments, and over DeGuerin's objection, the prosecutor tainted the jury with the details surrounding Brown's plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown's character and reputation - the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.
Simply put, in my opinion the prosecutor's comments crossed the line on both a personal and professional level. A former high-ranking member of the Committee for Lawyer Discipline said she thought these remarks violated State Bar Disciplinary Rule 3.06, which prohibits any lawyer from making any post-verdict comments to a juror "calculated merely to harass or embarrass the juror or to influence his actions in future jury service." By informing the jury about evidence that was clearly inadmissible in a thinly veiled attempt to make the jury feel badly about its verdict, the prosecutor's comments were calculated to influence not just the 12 folks who had acquitted Brown, but any of their friends with whom they might share the prosecutor's remarks, and who might find themselves on juries in the future.

There is little doubt what the prosecutor was attempting to do - and what he was attempting to do was unethical. He was caught red-handed standing in the yellow end of the pool.

Mr. Wice could have called out the prosecutor by name - but he chose not to. He was upset about what happened after the verdict was read and he voiced his displeasure in an op/ed piece. He was not interested in humiliating or embarrassing a prosecutor.

But it didn't take long for Nathan Hennigan, our antagonist, to make himself known.
I am the "out of line" prosecutor. My name is Nathan Hennigan. Wice didn't want to call me by name, but I feel a necessity to respond, as most don't know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn't a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from "Who Framed Roger Rabbit." Uncanny. What happened in the jury room is as follows...Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.
It's a shame that Mr. Hennigan couldn't have shown the same class that Mr. Wice did. Instead of a reasoned defense of his actions, Mr. Hennigan chose to resort to name-calling. He couldn't defend his actions so he attacked those who spoke against him. Mr. Hennigan is a true believer and he has gulped down the koolaid on the 6th floor of the Harris County Criminal (In)justice Center.

My colleague, Murray Newman, weighed in on Mr. Wice's op/ed piece yesterday. I like Murray. He's a good guy. I'd buy him a beer (or even give him one of my home-brewed brown or English ales). But Murray still has a place in his heart for the DA's office. I think there are times he loses a little bit of perspective -- and this one of them.

Mr. Wice pointed out a problem that we have been dealing with for years. It's a practice that's been allowed to continue because we haven't stood up and fought to change it. Jury members are exposed to the bias of the state from the minute they enter the Jury Assembly Room. Bailiffs make comments that cast aspersions on the defense. Judges conduct a voir dire that, in some cases, comes right out of the prosecutor's manual.  The citizen accused is not called by his name during the proceedings, he is labeled as "the defendant" in an attempt to dehumanize him. And then prosecutors do their bit after the verdict.

It all adds up to chipping away at the very presumption of innocence -- the only presumption you are allowed to make in a criminal courtroom. I don't know if Mr. Hennigan had "malice aforethought" before he spoke to the jurors. I don't know Mr. Hennigan. From what I've been told he's a nice guy. And I'm sure he is.

But just because he's a nice guy doesn't mean that he didn't do anything wrong.

We're at such a disadvantage from the beginning that the last thing we can afford to do is to allow the state to poison the jury pool any further. That's what Mr. Hennigan did. And that's what we've got to stop.

See also:

"A sore loser" Simple Justice (Sept. 29, 2011)

Thursday, September 29, 2011

Got Jesus?

Would you rather sit on a pew or sit in jail?

That's the choice being offered in the town of Bay Minette, Alabama for those accused of non-violent misdemeanors (let's forget, for a minute, the absurdity of putting someone convicted of a non-violent misdemeanor in jail). In exchange for attending church on a weekly basis, a defendant can have his or her case dismissed.

I thought Judge Clinton here in Houston had a goofy idea when he offered to reduce community service hours in exchange for reading a Christian how-to book. That was nothing.

The police chief sees nothing odd about the program. He doesn't think it violates the First Amendment because no one is forcing folks to take part and participants can pick the church of their choice. He thinks it's a good idea. And it saves the city the $75 it would cost to house an inmate per day.

I'm all for alternative methods of sentencing and rehabilitating folks. Just locking them up in the county jail (or the state pen) ain't working. Giving someone an alternative to their destructive behavior can't help being a step in the right direction.

But church? Religion has been used for centuries as a tool of manipulating the masses. Tell people that their lives aren't going well because God isn't happy is a masterful way to getting them to tune out the inequities in our daily lives and not question authority. Religion has been used to justify murder, homophobia and sexual abuse.

The charlatans who parade in front of the television cameras live high on the hog as they press their congregants to give up more and more of their hard-earned income because "God will give it back ten-fold!" Just look who's living in the McMansion an driving the Mercedes.

And what about that whole First Amendment thing? You know, the little provision that Congress shall make no law respecting the establishment of a religion. The Fourteenth Amendment applied those prohibitions to the states.

Offering to dismiss a case if a person attends church every week for a year discriminates against non-Christians and athiests. It violates the very spirit of equal protection under the law. Enacting such a policy confers additional benefits on those who share the religious belief of the judge.

Is the city getting a cut of the tithes?

Wednesday, September 28, 2011

And that train keeps a-rolling...

The State of Florida is set to murder Manuel Valle this afternoon using pentobarbital as part of its lethal drug cocktail. This despite calls from the manufacturer of the drug that its use in executions could subject the inmate to extreme pain and suffering.

Staffen Schuberg is the president of Lundbeck who makes pentobarbital under the name Nembutal. He has written two letters to Rick Scott, the governor of Florida, protesting the use of the drug.
"The use of pentobarbital outside of the approved labelling has not been established. As such Lundbeck cannot assure the safety and efficacy profiles in such instances." -- Staffen Schuberg
What could be more damning that the manufacturer of a drug telling someone not to use it because it hasn't been approved for that use? States have been scrambling to find new ways to kill inmates ever since the US supplier of sodium thiopental, Hospira, quit supplying states with the drug as a way of protesting its use in the murder of inmates.
Deborah Denno, an expert in the death penalty at Fordham university law school, said the intervention by the manufacturer itself of Nembutal in writing to the Florida governor took opposition to use of the drug to a whole new level. "I don't know how you could cast more doubt on the use of a drug than when you have the condemnation of it by its own maker."
Pentobarbital is used to put family pets to sleep but its use as a component in a lethal drug cocktail has never been tested.

It might be that the best way to put an end to the death penalty is for drug manufacturers and suppliers who don't want to be associated with the state's killing machine to require purchasers of the drugs to sign end-user license agreements that the drug will not be used in executions and that the drug will not be sold to any other entity to use in executions.

The ball is now in your court, Mr. Schuberg. What are you going to do now?

Hold the pickles, hold the lettuce...

"I think it's sad that our elected and appointed leaders are wasting their time talking about menus on death row when we have important issues like potential innocence and the validity of the entire death-penalty system that desperately need to be looked at." -- Elizabeth Stein, producer of KPFT-FM's Execution Watch.
Texas State Senator John Whitmire (D-Houston), always looking for some good press, has decided that death row inmates in Texas should no longer get to request a special final meal. What got Mr. Whitmire's panties in a wad, you might ask.

Well, it seems that Mr. Lawrence Brewer, whom the State of Texas murdered the same night that Georgia executed an innocent man, made an unusual request for his final meal and then didn't finish it.
In addition to the steaks, the omelet and fried okra, Brewer asked for a triple-meat bacon cheeseburger, three fajitas, one pound of barbecue and a half loaf of white bread, pizza meat lover's special, one pint of "homemade vanilla" Blue Bell ice cream, one slab of peanut butter fudge with crushed peanuts and three root beers.
That was the last straw for Mr. Whitmire who then declared that if the head of the prison system didn't end the practice immediately that he would introduce legislation in the next session to eliminate the practice. Brad Livingston, having no backbone, only asked "how high?"

Was he upset about the cost? About the items chosen? Who knows. Brian Price, a former inmate who prepared many a last meal, has offered to provide the condemned man his final meal at no cost to the state. For some reason Mr. Whitmire doesn't think allowing a man to choose his final meal is the least the state can do if they intend to kill him.

And if it's the cost that's got Mr. Whitmire jumping up and down like a lunatic, what about the $2.3 million average price tag for a death penalty case in Texas (three times the cost of locking someone up for life)? Where's the outrage over that bill? If he's interested in saving the state some money - why not abolish the death penalty?

Nope. Not going to happen. To abolish capital punishment would mean taking a principled stand on an unpopular issue because it's the right thing to do. Cancelling the last meal request for a condemned man is a public relations gesture he can use to whip up the masses.

Tuesday, September 27, 2011

Like father, like son

Sometimes things happen and you can't even begin to get your head around them. Sunday was one of those days.

Sunday afternoon my wife, daughters and I attended a birthday party of one of my youngest's good friends (the mother was a very good friend of my wife's). While we are sitting around the house waiting for the party to begin, my wife's friend's father-in-law gives me this really nasty look. A few minutes later I took a loaf of bread over to the table where he was sitting so he could make a sandwich.

Then it was Twilight Zone time.

He wanted to go outside and talk. So he, his sons and I went outside and then he launched into a nasty, hate-filled diatribe about why he didn't like my wife or I. It went on forever. He cursed, pointed his finger in my face and called me every name he could think of. It was the most bizarre thing I've ever witnessed.

His son (my wife's friend's husband) told his father to calm down but never told him that his diatribe was inappropriate. It was like he was scared to stop his father from making a fool of himself.

Then what really set him off even more was when I told him in a calm voice that I hadn't raised my voice, I hadn't made any threats and I hadn't cursed at him. The fact that I wouldn't lower myself to his level just ate at him. And then, when I had listened to his vile tantrum he refused to apologize for his behavior and refused to shake my hand.

I was born in Texas and I supposed I will die here as well. I was raised to treat women with respect. I was raised not to insult another man's wife or girlfriend. I was raised to shake another man's hand when it was extended. I was also raised that the ignorant resort to threats of violence because they can't make a logical argument to support their point.

I couldn't believe what I had just been a part of. I was angry. But, as I thought about, I was no longer mad at the man - instead, I pitied him. I felt pity for a man who has allowed hate and bitterness to consume him. I felt pity for a man who embarrassed himself in front of his own son the way that he had just done. I felt pity for a man whose own son was scared to prevent him from making a fool out of himself.

Afterward, my wife's friend apologized to me for what had happened. Interestingly enough, her husband, never said a word. Somehow, it didn't surprise me.

What makes a man allow himself to be consumed by hate and bitterness? I don't know the answer. My view  is that life is too damn short to walk around angry. You can choose to be consumed by all of the perceived slights you face day after day -- or you can left them roll off your back like water off a duck. The only lasting image I will have of the incident is his son, a grown man, standing off to the side, too scared to stop his father from humiliating himself. The best he could do was tell his father to calm down -- not to stop, not that his behavior was beyond inappropriate, but to calm down.

And that was the most telling thing of all.

Are you ready for some futbol?

Oh, once again our Saturdays are filling with rushing from field to field across the west side of Houston for soccer.

I love the sight of those fields as the sun rises on Saturday morning. It's quiet. It's peaceful. In just a couple of hours, however, chaos will reign as the wee weekend warriors take the pitch.

This season marks my fifth year coaching the little ones. I watched with great pride as my oldest daughter took the field in the afternoon. I coached her the first three years she played and it's amazing the player she has become. My little one has been dribbling a soccer ball since she was two and has mastered the drills we go over in practice.  But when it comes to game time she's a bit shy and scared at the prospect of a sideline full of parents watching the game.

I've told her just to focus on the ball, the other players and me and to ignore everything else around her. But I know for some that's easier said than done. She'll be there by the end of the season - I just know it.

For all of the headaches involved in organizing registration, placing kids on teams and dealing with parents upset about whose team their child is on, these next eight weeks are pure gold. All of the stress is worth it when you look into the smiling face of a child happy to be wearing a uniform and chasing a ball around the pitch.

Friday, September 23, 2011

What goes up, must come down

You just can't mess with those laws of physics.

Sometime tonight or in the early morning hours of tomorrow a satellite is going to fall to earth. Scientists believe it will fall somewhere between 57 degrees N and 57 degrees S of the equator -- encompassing most of the populated areas of earth. The debris path is likely to be about 500 miles long.

According to Aerospace Corp., the satellite will  crash to earth somewhere along either the blue or yellow lines. So, here's hoping it doesn't hit you.

This graph is a depiction of the amount of junk orbiting the earth. The exponential growth in space junk over the past 10 years is astounding. Not only have we turned the earth into a giant landfill - we are rapidly turning the space around earth into a giant junkyard.

Now go and enjoy a little Blood Sweat &Tears:

Scientists facing charges after failing to predict earthquake

How would you like to be put on trial because your prediction was wrong?

Six scientists and a former government official find themselves on trial in Italy charged with manslaughter because they failed to predict an earthquake in L'Aquila in 2009. Prosecutors allege the defendants made a "falsely reassuring statement" that there was no danger of a large earthquake after a series of small tremors.

The seven individuals were members of the Serious Risks Commission that was formed after the region had been hit with hundreds of minor tremors in the months leading up to the deadly earthquake. The commission included a physicist, a geophysicist and two scientists who specialized in studying earthquakes.

The prosecution is the most absurd example I've come across of a society's need to blame someone when a tragic event occurs. No one could have predicted that the earthquake would strike when it did. With months and months of seismic activity, there was no way to make a prediction as to what day the big one would hit.
"Detailed scientific research has told us that each earthquake displays almost unique characteristics, preceded by foreshocks or small tremors, whereas others occur without warning. There simply are no rules to utilise in order to predict earthquakes." -- Dr Dan Faulkner, senior lecturer in rock mechanics at the University of Liverpool.
Early warning systems in Taiwan, Japan and Mexico may only be able to provide about 30 seconds notice of an earthquake - hardly time to do anything other than brace oneself.

It's bad enough when federal prosecutors in this country charge men and women with crimes for conduct that isn't in the least bit criminal, it's preposterous to threaten someone with jail because they were unable to predict a natural occurrence.

Does this mean the local weatherman could be sued because he failed to predict the severity of this year's drought in Texas?

Thursday, September 22, 2011

HPD officers disciplined for role in cover up

The other shoe fell on Tuesday as seven police officers, including an assistant chief, were disciplined for their role in attempting to cover-up an accident involving an HPD officer whose blood alcohol concentration was more than twice the legal limit.

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On April 13, 2011, Houston Police Department Sergeant Ruben Trejo collided with a private school bus while driving to work in the afternoon. A blood test showed Mr. Trejo had an alcohol concentration of .203.

According to accounts, officers covered up open bottles of alcohol in Mr. Trejo's vehicle and threatened to arrest anyone taking pictures of the scene.

This same behavior by non-peace officers would have resulted in criminal charges being filed. But for uniformed police officers attempting to cover up a crime by a fellow officer, the punishment ranges from a slap on the wrist to a day without pay.

I would have posted a copy of the accident report except that HPD accident reports are no longer available for download on

What a difference 12 hours makes

Looking down from the 11th floor of the Harris County Criminal (In)justice Center.

In case you're not familiar with downtown Houston, the silver car stopped at the stop light and the dark car approaching him are both headed the wrong way on a one-way street. It was 9:00 in the morning and it's doubtful that alcohol was involved. It's far more likely that the driver of the silver car wasn't familiar with the layout of the streets in downtown Houston and didn't notice the one-way sign at the previous intersection. The dark colored car was obviously following the silver car (I say obviously because I was up there watching the events unfold).

And then there's this story from the Houston Chronicle about a mishap involving two HPD cars during a demonstration on their test track Tuesday morning. Five Chinese law enforcement dignitaries (whatever they are) were injured in the accident. Apparently the HPD spokesman couldn't go into further detail about the accident due to security concerns about HPD driving techniques. I'm curious as to whether he was able to tell the media that without a hint of irony in his voice.

Now, had the first incident occurred after dark, it's likely that a roving HPD officer (provided he wasn't crashing his squad car) would see driving the wrong way on a one-way street as a sign of intoxication. Had the second incident occurred with two civilian drivers at night, it could very well turn into a DWI investigation if the officer notices the fateful "strong odor of an alcoholic beverage" on the breath of one of the drivers.

Same event. Different context. One merits a traffic ticket. The other an arrest.

A tale of two executions

Two men were murdered last night.

One was killed under the watchful eye of people around the country and around the world. The other was killed with nary a soul watching.

The State of Georgia murdered an innocent man. The State of Texas killed a guilty man.

By now we all know the tragic story of Troy Davis. Last night we watched as the killing hour drew near and gasped when the execution was put on hold. We were hopeful that justice would prevail and that new questions would be raised about who killed Mark MacPhail in Savannah back in 1989. We sat in stunned silence as word came down that the U.S. Supreme Court denied Mr. Davis' request for a stay of execution and we watched in horror as Mr. Davis was murdered.

But in the Piney Woods of Texas, Lawrence Brewer was also a victim of the death machine. Mr. Brewer wasn't a nice person. He was a convicted felon. He was a member of a KKK-like group. He participated in the beating and murder of James Byrd in Jasper, Texas - a crime that sickened the public. He had exhausted his appeals and went to his death with a tear in his eye.

It's easy to be sympathetic to the cause of Troy Davis. There is nothing that betrays our sense of justice more than the state-sponsored murder of an innocent man. But let's face it, the vast majority of inmates on death row across this country are guilty. It's harder t mobilize the masses to fight to save the life of a murderer.

The State of Georgia wasn't justified in killing Troy Davis. Yes, a jury convicted him of Mr. MacPhail's murder. But there was no physical evidence linking Mr. Davis to the murder. The murder weapon was never recovered. Seven of the nine non-law enforcement witnesses recanted their trial testimony. Yet neither the Georgia Board of Pardons and Parole nor the Georgia Supreme Court nor the U.S. Supreme Court thought that was enough to raise enough doubt to halt the execution.

We accept a legal system in which the Nine Wearing Robes can change the established law of the land with just five votes, precedence and stare decisis be damned. But we can't accept that juries might get it wrong or that witnesses might reconsider their testimony.

Those of us who stand beside criminal defendants also know that few of our clients are innocent. For most of our clients, it's more a question of whether the prosecutor can prove the allegations. We fight just as hard for the person who admits guilt as we do for the person who proclaims his innocence. That's what the Constitution requires. It's through fighting for the most unworthy and unloved clients that we fortify the rights enshrined in the Bill of Rights.

It's in fighting to save the life of Lawrence Russell that our fight to abolish the death penalty will succeed. It's when we convince the public that state-sponsored murder is the most tyrannical act a government can carry out.

I'm saddened by the deaths of Mr. Davis and Mr. Russell. I'm angry about it. I will take that anger and channel it. I will channel it the next time I stand in front of a jury asking them to find my client not guilty. I will channel it the next time I reject a plea offer from the state. I will channel it the next time I go before a judge and demand that a case be dismissed.

It's time to get back to work.

Wednesday, September 21, 2011

Democracy Now! live coverage of the murder of Troy Davis

Democracy Now!’s Amy Goodman will host a 2-hour live special broadcast on Wednesday, September 21 from 6pm to 8pm EDT from outside the prison in Jackson, Georgia, where Troy Anthony Davis is scheduled to be executed at 7pm EDT.

Davis was convicted in 1989 of killing of off-duty white police officer, Mark MacPhail. Since then, seven of the nine non-police witnesses who fingered Davis have recanted their testimony, and there is no physical evidence that ties Davis to the crime scene.

Video of the special broadcast will be live-streamed from 6pm to 8pmEDT at

The special can also be watched on Free Speech TV (Channel 9415, onDISH Network and Channel 348 on DirectTV), and on Link TV (Ch. 375 on DirecTV).

Audio of the special broadcast will be carried by Pacifica radio. Check your local sister station or affiliate to see if they plan to carry it.

Please encourage your local radio and TV station to air the program. It is free for any radio or TV station to air. (Email for more information.)

If you would like to embed the Democracy Now! Livestream player to post on your website, please visit

Visit the Democracy Now! archive for all of these video reports, which include the complete transcripts:

What's the point?

To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. -- Texas Code of Criminal Procedure Art. 17.40(a)
The other day I was sitting in court when the judge called up everyone making their first appearance. He had the prosecutor read the probable cause statement. On every DWI case he asked the prosecutor whether there was an accident or a breath test.

The first defendant was a young man (I'm guessing he was in his 20's, but as I'm getting older, my ability to guess ages is in rapid decline). There was no accident in his case - but there was a breath test. A breath test of .000. The arresting officer suspected he was under the influence of something other than alcohol so a drug recognition evaluation (more voodoo science for another day) was performed. Apparently our hero had taken a central nervous system depressant or two.

The judge order the young man to install an ignition interlock device in his car.

I found it to be quite odd - as did the attorney sitting next to me. It's not like an ignition interlock is going to detect the presence of CNS depressants (other than alcohol) in one's breath. If this young man had a problem, it certainly didn't appear to be with alcohol.

A couple of minutes later we had DRE number two on the morning. Again we had a breath test well under the legal limit. And, again, the judge ordered the defendant to install an ignition interlock device on her car.

The law says a judge shall order an ignition interlock device as a condition of bond for a defendant who has at least one prior conviction for driving while intoxicated. The law also says that a judge may order an ignition interlock device as a condition of bail in a case with a breath or blood test over .15.

So what's going on here? Ordering the installation of an ignition interlock when a person clearly was not intoxicated by consuming alcohol makes little or no sense. It certainly doesn't do anything to enhance the safety of the community.

All it appears to do is line the pockets of the companies that distribute, install and maintain the devices. I do wonder where that money goes.

Execution Watch: 9/21/11

Texas plans to put to death Lawrence Russell Brewer Wednesday for his role in the murder of James Byrd in Jasper, Texas. Execution Watch will be there.


LAWRENCE RUSSELL BREWER. One of three mean convicted in the infamous East Texas slaying in which three white men chained James Byrd, a 49-year-old black man, to the back of a pickup truck and dragged him to death on a country road near Jasper. The 1998 case shocked the nation for its brutality. Fall partner John William King is on death row, awaiting an appeal. Another co-defendant, Shawn Berry, received life in prison. The trials of the three men cost Jasper County $1.02 million, leading to a 6.7 percent increase in property taxes. More background at


Unless a stay is issued, we'll broadcast on ...
Sept. 21, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: > Listen

Update: High court stays Foster execution

The State of Texas was once again foiled in its attempts to murder Cleve "Sarge" Foster when the U.S. Supreme Court issued a last minute stay -- the third time the court has stayed his execution this year.

While the Court did not give a reason for the stay, Mr. Foster's appeal involved claims of ineffective assistance of counsel.

This is the second time in the past week the Supremes granted stay of execution in a Texas case. In both cases, the target of the state's ire was an accomplice convicted of murder via the law of parties.

Should a state be permitted to execute a person convicted of murder who didn't commit the crime? Is that the question the high court is asking in these two cases? If we're going to allow states to continue to murder people in the name of law and order, shouldn't we make certain that those who face the death penalty are the actual killers?

I have no problem with a person being convicted of murder through the law of parties. But I have a big problem with using the law of parties to condemn a man for a murder committed by someone else. If the Eighth Amendment prohibits the execution of a person for any other crime than murder, it should also prohibit the killing of a person who didn't actually commit the murder.

CORRECTION: My mistake as to the facts behind to two stays of execution granted to Texas inmates in the past week. The other stay was granted to Duane Buck whose case was tainted by the testimony of an expert called by Mr. Buck's attorney who testified that black men are more likely to commit future crimes than white men.

Please forgive me, it was my birthday, I was excited and got carried away. I still stand by my argument that there is no justification for the state to take the life of a person whose conviction was obtained through the law of parties.

Tuesday, September 20, 2011

Update: Will Georgia murder Troy Davis?


The State of Georgia has no problem murdering an innocent man.

The Georgia Board of Pardons and Parole gave a thumbs down to Troy Davis' request for clemency today - despite overwhelming evidence that the wrong man is on death row.

How, might you ask, is this possible? How could five men and women be blind to seven of the nine witnesses recanting their trial testimony? How could five men and women be so certain when the murder weapon was never recovered? When there was no forensic evidence?

Radley Balko has an idea. Here is the makeup of the board who decided Mr. Davis' fate:
Gale Buckner, a former Georgia Bureau of Investigation agent . . . . Robert Keller, the ex-chair of a Georgia prosecutors group . . . James Donald, the former head of the Georgia Department of Corrections, Albert Murray, who led the state’s juvenile justice program, and Terry Barnard, a former Republican state lawmaker.
Jeff Gamso has a problem with it. So does Mr. Popehat himself.

So we have former prosecutors and ex-cops on the panel that decides whether or not to grant clemency. As Mr. Gamso pointed out so eloquently - what other answer did you expect? The deck is stacked, man. Mr. Davis never stood a prayer.

The hatted one offers a modest proposal - let's have someone from the defense on the panel. How about someone from the outside of the criminal (in)justice system? I don't know if it would make a difference, but as it stands, the panel is nothing more than a rubber stamp for law enforcement. And, since the victim was a police officer, someone has to pay the price.

Maybe this is what the mantra of limited government is all about - limiting the rights of the accused and limiting their access to justice.

Execution Watch: 9/20/11

Texas plans to put to death Cleve "Sarge" Foster Tuesday for his participation in a crime in which another man admitted to killing someone. Execution Watch will be there.


CLEVE "SARGE" FOSTER. This is the third execution date set for Foster, who was convicted of participating in a 2002 crime in Tarrant County in which another man has admitted committing a murder. The US Supreme Court granted Foster a last-minute stay of execution in January, later rejecting his appeal. Foster was then set to be executed in April when the Supreme Court issued a second stay to consider his request for a rehearing. In May the high court decided not to take up that motion. More background at


Unless a stay is issued, we'll broadcast on ...
Sept. 20, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: > Listen

Will Georgia murder an innocent man?

Troy Davis' life rests in the hands of the four men and one woman who make up Georgia's Board of Pardons and Parole. They will make a decision today that will either result in life or death. A thumbs up and the life of an innocent man is spared. A thumbs down and the State of Georgia will be guilty of murder.

It has been pointed out endlessly that all but two witnesses from Mr. Davis' trial have recanted their testimony that Mr. Davis was the man who shot Savannah (GA) police officer Mark MacPhail in 1989. One of the two clinging to their story is the man whom Mr. Davis has steadfastly claimed pulled the trigger.

The gun was never recovered.

There were no forensics.

Just the eyewitness testimony of nine people.

Nine people asked to remember what happened in the blink of an eye. Nine people asked to testify, in detail, about the chaos unfolding around them. Nine people who were "reminded" by the prosecutors and police many times over that Mr. Davis was the bad guy.

The taking of a life by the state is the single most intrusive act the government can perform. It is the ultimate punishment. You can take away a man's money. You can take away his time. But when you take his life - he ceases to exist.

If there is ever a time to err on the side of caution, it is when we're talking about the murder of a person by the state. What could be more cruel that taking the life of an innocent man in the name of "finality?"

As I have stated many times here (and will state many more times to come), killing Troy Davis will not bring Mark MacPhail back to life. Killing Troy Davis won't fill the void in the MacPhail family. Killing Troy Davis will only mean that Mr. MacPhail's killer will never be brought to justice.

It's time to do the right thing. The only question is whether or not four men and one woman in Georgia have the strength to do it.

See also:

"Troy Davis to learn execution fate as protests continue in Georgia," The Guardian (Sept. 19, 2011)
"Thumbs up/thumbs down," Gamso for the Defense (Sept. 18, 2011)
"It's not cruel or unusual to execute an innocent man," The Defense Rests (Oct. 15, 2008)

Monday, September 19, 2011

Welfare: Rick Perry-style

It would appear that our local leader of the limited government movement, Gov. Rick Perry, has a bit of 'splaining to do over the travel and security bills taxpayers have been asked to pick up.

At the same time Rick Perry and his minions slashed state spending on education, forcing local districts to lay off teachers, the fair-haired one has racked up over a quarter million dollars in travel expenses. We have paid for security for Perry and his family while on vacation in the Bahamas. We have paid for security for his wife's trips to Amsterdam, Madrid and New York - what official business the wife of the governor can have overseas is beyond me as the Constitution forbids states from entering into treaties with other countries.

We've also paid for security so that Rick Perry could promote his book in New York, California, Las Vegas and Washington. Excuse me, but wasn't that book written on the state's time? If we're paying for the promotional tour, shouldn't the state reap the revenue the book generates?

And how ironic is it that his book, Fed Up!, is an anti-Washington diatribe while Mr. Perry stumps the country begging for votes and greenbacks to become the next president?

There is not another candidate that can top Rick Perry for hypocrisy in the election preseason. First he suggests that Texas should secede from the United States -- then he announces he's running for the White House. Then, at the same time he's telling the citizens of Texas they must be prepared to make sacrifices, he orders the DPS to provide security for family vacations and trips having nothing to do with the running of the state.

Of the course the tea-baggers and wingnuts don't care. Intellectual consistency has never been a problem with either group. They will blindly raise the flag without a care as to what's going on behind the curtain.

Hey, if at first you don't secede, try running for president.

Friday, September 16, 2011

Update: Perry's death party delayed

Last night the US Supreme Court put a halt to the State of Texas' attempt to murder Duane Buck. The issue is whether the punishment phase of Mr. Buck's trial was tainted by testimony from the state's expert witness, Dr. Walter Quijano, that a black man was more likely to be a future threat than a white man.

Then Texas Attorney General John Cornyn (now a US Senator) urged that Mr. Buck and five other inmates sentenced to death receive new punishment trials as a result of Dr. Quijano's testimony. The other five men received new punishment trials and were all sentenced to die (again). For some reason, Mr. Buck was not afforded the same treatment.

Thursday afternoon, Judge Denise Collins (the original trial judge) rejected a request by the prosecutor who tried the case, Ms. Linda Geffen, to take whatever action she could to halt the scheduled murder.

Rick Perry, who's never come across an execution he didn't like, has repeatedly rejected requests to halt the execution. The fair-haired one is more concerned with scoring votes from white Republicans who support the state-sponsored murder of anyone who isn't white.

Thursday, September 15, 2011

Creative thinking in public education?

Possession means actual care, custody, control of management. 
-- Texas Controlled Substances Act Sec. 481.002(38)
Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.


I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Wednesday, September 14, 2011

Execution Watch: 9/15/2011

Texas plans to put to death Duane Buck Thursday for murdering his ex-girlfriend and her friend in Houston. Execution Watch will be there.


DUANE BUCK. Convicted in the 1995 homicide of his ex-girlfriend and her male friend in Houston. Buck was on parole for a cocaine delivery conviction at the time. Witnesses said Buck came to his ex-girlfriend's apartment late one night, kicked in the door, argued with her and others, then left after retrieving some of his possessions. He returned a few hours later with a gun, fatally shooting his ex-girlfriend and her male friend. More background at


Unless a stay is issued, we'll broadcast on ...
Sept. 15, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: > Listen

See also:

"Did race play an improper role in Duane Buck's death sentence?" WSJ Law Blog (Sept. 8, 2011)
"Duane Buck prosecutor urges clemencyTexas Tribune (Sept. 12, 2011)
"Pardons board rejects Buck's bid to avoid execution" Houston Chronicle (Sept. 13, 2011)
"From Warren McCleskey to Duane Buck" Gamso for the Defense (Sept. 13, 2011)
"Lest you thought they'd care: Duane Buck part II" Gamso for the Defense (Sept. 13, 2011)

Adventures on the island

I was down on the island the other afternoon to visit a client in the Galveston County Jail. Now for anyone who's ever been down there to visit clients in jail, you know that it's a lot less hassle than trying to see a client in the Harris County Jail (well, except for the drive).

I checked in at the front desk and the officer on duty took my driver's license and bar card. He handed me a visitor's badge. He asked me if I had a cellphone and I told him it was stashed in my car (a colleague of mine had his disappear while he was in the back meeting with a client so I refuse to take mine inside). He then asked me if I had any keys.

I told him I did and he asked me for them. I asked him why (figuring I was going to hear a tale of how some inmate was caught with a set of keys). He replied that some attorneys had left the jail without returning their visitor's badge.

Um, Einstein, how about you just not return the driver's license and bar card until you've got your badge back in your hand?

Update: You are about to witness a murder

On Tuesday night the State of Texas murdered Steven Michael Woods. Mr. Woods was convicted of the 2001 murders of Ronald Whitehead and Bethena Brosz. But Mr. Woods wasn't the man who killed Mr. Whitehead and Ms. Brosz. Marcus Rhodes was the man who pulled the trigger.

Despite that fact, Mr. Woods was convicted and sentenced to die while Mr. Rhodes plead guilty and received a life sentence. Under Texas' law of parties, Mr. Woods was considered just as liable for the murders as Mr. Rhodes.

While conceptually the law of parties makes sense, when applied to a murder case it rarely results in justice. There is something fundamentally unjust that Mr. Woods is dead while the man who actually pulled the trigger is sitting in a prison cell - alive.
"You're not about to witness an execution. You are about to witness a murder," -- Steven Michael Woods
If we are going to insist on killing inmates, we should at least draw the line at killing inmates who actually took another life. While Mr. Woods is hardly innocent, he certainly didn't deserve to be strapped down to a gurney and injected with a lethal combination of drugs.

What could be more cruel than the state-sanctioned murder of a man who did not take the life of another? I am deeply troubled by what happened last night in Huntsville. I'm angry. Gov. Rick Perry had the opportunity to do the right thing and commute Mr. Woods' sentence to life without parole - but the fair-haired one is more concerned with conning voters around the country and fueling a campaign with the blood of others.

I can't decide if Rick Perry isn't troubled with the number of people he has allowed to be killed because he is too simple-minded to understand it or because he's a sociopath.

The ultimate sanction by the state is the taking of a life. That act by itself is the greatest intrusion the government can make in the lives of its citizens. If the Bill of Rights is to mean anything, what happened in Texas on Tuesday night must not be allowed to happen again anywhere else.

Click here to download Execution Watch.

Tuesday, September 13, 2011

Execution Watch 9/13/2011

Texas plans to put to death Steven Michael Woods Wednesday for his role in a double homicide in Dallas. Execution Watch will be there.


STEVEN MICHAEL WOODS. After Woods was convicted and sentenced to death in a double homicide outside Dallas, a co-defendant admitted to killing the couple, saying Woods was present but did not participate in the slayings. The co-defendant received a life sentence. Woods' death sentence was allowed to stand under the law of parties. Texas is the only state in which the law of parties permits the death penalty for those convicted of participating in a crime involving a murder -- even if someone else committed the murder and receives a lesser punishment. More background at


Unless a stay is issued, we'll broadcast on ...
Sept. 13, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: > Listen

Responding to the responders

What follows is a comment that was posted in response to my post on September 11. As is my policy, if someone is going to take the time to register or to sign their name to a comment, I will run it - provided it isn't spam. The author of this comment apparently didn't believe me and submitted it three times over the course of the day. I'm terribly sorry I didn't approve it sooner, but I was with my wife's family which was still mourning the loss of her father.
Using today of all days to (accurately) describe the choking out of our civil liberties is like picking the moment before climax to hand your husband a breath mint or to ask your wife how long it has been since she shaved her legs. Bad timing. Very bad timing. 
And why is it "bad timing?" The tragedy on 9/11 was used by those in power as a justification for their assault on the Bill of Rights. If I'm such a bad person for pointing that out, what does that say about George W. Bush and his cronies who launched their war on freedom on the backs of those who died in New York, Washington, DC and Pennsylvania?

"Patriotic hoo-hah?" Why is today more significant?
It was the moment in modern American history when the nation began to understand what the world is like for many other people. It was the moment when we lost our global sense of safety. We couldn't ward off this danger by not going out at night or carrying pepper spray or a firearm. It was always the reality, but it was when the perception "bubble" burst.
Ever since the first Persian Gulf war we have been subjected to propaganda that we must "support our troops" regardless of our feelings about their mission. I've never bought into that. The entire movement to "support our troops" was nothing more than a political ploy to brainwash the public into buying into the government's illegal war.
All of the contrived patriotic fervor associated with 9/11 is a tool to paint those that oppose the government's assault on our freedom as being anti-American. It is designed to foster a culture of blind acceptance of the sound bites spewed by politicians and those waging war on the Bill of Rights.
There were hours of unanswered calls to loved ones, not knowing if they were okay, incinerated, or gasping for breath as they were crushed to death under tons of rubble. We watched people jump to their death on television. 
No one deserves that. To say that the hundreds of first responders and civilians that died got their "comeuppance" in the same post that you say to pray for them is the same hypocritical double talk in which the government engages. More importantly, it is cruel.
I never said the police officers and firemen who rushed into the towers got their comeuppance. What I said was that a nation whose government had thrown its power around without regard to the consequences got a taste of the wanton destruction it had rained down on other parts of the world.
You do not know who has and who hasn't shed tears for the tragic loss of human life in other parts of the world. To state that no one has is a sad and inaccurate portrayal of the American people.
It might be a sad portrayal - but it is far from inaccurate. Just this past week we got to see the spectacle of people cheering the fact that under Rick Perry's watch, the State of Texas has murdered over 240 men and women -- and we know that at least one of them, Cameron Willingham, was innocent.
Not everyone has a law degree, the technical savvy to know how to blog, or even an understanding of today's technology. It is hard to understand the complexities of the socio-political status. Just because people are not as educated and well-read as you are does not mean their hearts do not ache for tragedies all over the world, even if they do not understand the role the U.S. has played in them.
Many of those same people have begun to understand the philosophy of "Live free or die" and are trying to figure out how to put it into action.
If that were true we wouldn't have people cheering on the government as it has emasculated the Fourth Amendment. If that were true the public never would have accepted what goes on in airports across this country. If that were true the citizens of the United States would have stood up and called for the release of the detainees in Guantanamo who were held for years without being charged with a crime. If that were true the people would be up in arms at the notion that those accused of being responsible for the attacks would be tried in military courts behind closed doors rather than in a public courtroom.
You and your family will not be pulled from your home tonight and tortured and killed for your anti-government post. (In other parts of the world you may be.) If you were, people would revolt. It is not as sophisticated as you wish people were--but it is in the American psyche that civil liberties are paramount.
How I wish that were so, but too many of our fellow Americans have decided that they would rather sacrifice their civil liberties, and the civil liberties of those around them, in exchange for an empty promise of security from the government.
Tomorrow, I will return to my typical criticism of my government and their policies. I will promote the importance of keeping government in check and fighting on every front to restore and preserve the unique liberties that Americans have. 
Today, I will remember and honor. I will remember the people on United 93 who facing their own deaths, diverted the plane away from the intended target. I will remember those that were lost and the survivors that were left behind. I will honor the men and women that selflessly ran into a crumbling nightmare.
Let us never forget that a young man is more likely to be beaten or killed by the police that he is to die in a terrorist attack. Let us not forget that the police have stood by and watched as people fighting for civil rights were murdered across the South. Don't forget that in Alabama, firefighters turned their hoses on women and children who were protesting peacefully.
The police have long been used as a tool of aggression against those seeking to challenge the "order" of society. 9/11 doesn't change that.
Look on the bright side. People who have/are dealing with the pain of that day, regardless of what it is for them, will be drinking today. They will get in their cars to drive home. They will be arrested.
It's good for business.
I will remain vigilant against all assaults on our civil liberties and freedom - regardless of what day it is.

I'll take a little cheese with my whine, please

Now, if I might be permitted the indulgence of a little whine...

I coach youth soccer. This is the fifth year I've coached a team of kids six years old or under. I am also the soccer commissioner at the church my daughters attend. I volunteer my time to get the fields ready to play, to run registration and to organize teams (14 this season).

The past few weeks I have been attempting to run a law practice, be a good husband to a wife who watched her father die and get things ready for the upcoming soccer season.

Along the way I have to deal with parents who want their little angels on the same team with their BFF's. I have to deal with coaches who aren't willing to split teams up in order to field enough teams to ensure kids have adequate playing time. I have to recruit parents to volunteer a couple of hours a week so we have enough coaches for the teams. And I have to arrange practice times so that we don't end up with two teams on the same field at the same time.

When I was a kid playing soccer we didn't request whose team we wanted to be on. We signed up and were assigned to a team. You might know some of the kids on the team and you might not know others. In the end you made some new friends.

The first year my oldest daughter played she knew one other kid on her team. She made friends with the other kids and has been playing soccer with some of them for the past three years. She did fine. She never complained that so-and-so wasn't on her team. She just went out and played.

But apparently the notion that kids can play with other kids they don't know and, not only survive, but make new friends, is a bit out there for some parents today. They get upset if their child isn't on the same team as their best friend or their classmates. They get upset if the guy down the street isn't the coach. It would be one thing if it were just a couple of parents - that I could handle with ease. But no. It seems that everyone walks around thinking the entire program needs to revolve around them and their kid's need to play only with their friends or classmates.

How does such behavior do any of the kids any good? When they go to school they will be placed in classes at random. They won't get to sit next to their best friend. Heaven forbid they have to sit next to someone who's different than they are.

Athletics, like school, is as much about socialization as it is anything else. Sure, by the end of the year the kids will have developed just a little bit more as soccer players. But they will also have developed a better sense of sportsmanship and what it means to be on a team. And, at this early age, that's far more important that whether their team wins or not.

Everyone wants their kids to live in an antiseptic bubble. Well, guess what. The world ain't like that. Kids scrape their knees, they fall off their bike, they get dirty, they get scared. And, through it all, they mature and learn how to cope with adversity and disappointment. They learn to rely on their own intuition and skill.

I guess we could baby them all and let them grow up to become little lemmings that just accept it when the government decides it's time to take away another freedom in the name of greater security. And you wondered what ever happened to the Fourth Amendment.

Monday, September 12, 2011

Looking at the death penalty county-by-county

Robert J. Smith, a visiting professor at the DePaul University College of Law has taken the analysis of death sentences across the country to an entirely new level. He authored a paper that will be in an upcoming issue of the Boston University Law Review tracking death sentences by county.

While Texas has a reputation for lining 'em up and mowing 'em down, the reality is that 220 of the 254 counties in Texas issued no death sentences between 2004-2009. Over that period, 19 counties imposed a death sentence only one time. Of the remaining 15 counties that imposed more than one death sentence over that period, only four counties sentenced defendants to die at a rate of more than one a year.

For anyone practicing in Harris County, these results should not come as a surprise. According to Professor Smith's research, these are the four counties that lead the state in death sentences:

  • Harris (26)
  • Bexar (10)
  • Tarrant (10)
  • Dallas (8)

Texas isn't even the leader in ordering the murder of its own citizens. Los Angeles County imposed more death sentences (33) in 2009 that the entire state of Texas. Maricopa (AZ) County imposed more death sentences (37) that the entire state of Alabama.

Professor Smith's research shows that 10% of the nation's counties account for every death sentence issued between 2004-2009. Less than 1% of the nation's counties sentenced, on average, more than one person a year to death - accounting for 50% of all death sentences. Thirteen counties average more than two new death sentences a year - they accounted for 29% of all death sentences.
It is also important to track executions at the county level. The strongest remaining rationale for the continued Eight Amendment validity of capital punishment is its retributive effects; however, if counties sentence people to death that the states do not execute then the retributive function of the death penalty is diminished because the act of execution is not realized. -- Robert J. Smith, "The Geography of the Death Penalty and its Ramifications"
If we look at the number of executions carried out, however, Texas is far and away the leader in the number of state-sponsored murders committed between 2004-2009 with 134 executions, accounting for 45% of the executions carried out during that period. The State of Ohio was a distant second with 25 executions, accounting for 8% of the total.

If we look at the "efficiency" of the state killing machine, only four counties across the nation saw more than one of their death sentences carried out (on average) each year. Those counties are:

  • Harris (42)
  • Dallas (13)
  • Bexas (12)
  • Tarrant (11)

Here's one other little nugget to think about, in Florida, a jury can sentence a person to death by a majority vote of the jurors while Alabama only requires that 10 jurors agree to death in order to impose the death penalty. Alabama and Florida also permit judges to overrule jury recommendations and impose a death sentence anyway.

The death penalty is applied arbitrarily and capriciously. It doesn't undo the deed that led everyone to the courtroom. It only serves to give politicians and judges a platform to declare that they are tough on crime.

Sunday, September 11, 2011

Never forget (the hype)

We have a fascination for numbers and anniversaries in this nation of ours. Today is the tenth anniversary of the attacks on 9/11. Of course it would be impossible to forget with all the patriotic hoo-hah and frenzy around us. But what makes today any more significant than yesterday - or tomorrow?

In time I'm sure stores will promote Patriot Day sales where you can get an additional 15% off that appliance purchase.

The real legacy of 9/11 isn't the lives lost that day, however. The real legacy is the shredding of the Bill of Rights that has continued unabated through today. The PATRIOT Act. Expanded wiretapping authority. Holding detainees indefinitely without charges. Torture. Metal detectors at municipal and small town courthouses. Scope and grope.

We, the people, have gladly acceded to the demands of the government to give up our freedoms in exchange for some nebulous concept called security. Let's be real for a second, those who wish to do harm to others have always found, and will always find, a way to carry out their acts. We don't live in a bubble.

My freedom is more important to me than worrying about that tiny chance that something bad is going to happen. The world didn't suddenly become more dangerous on September 12, 2001. The world has always been a dangerous place. What happened on that day is the great superpower that threw its weight around all over the world got its comeuppance.

Our government has been responsible for thousands of deaths around the world through our policies and warmongering. No one shed a tear for the innocents who were murdered in Korea, Vietnam, Central America or the Middle East when it was our soldiers or allies doing the killing.

So say a prayer for the men and women who died that day. Remember the sacrifice the police officers and firefighters who rushed into the buildings made. But don't forget the assault on our personal liberties that was "justified" by the events of that day.

Friday, September 9, 2011

A life well lived

My wife lost her father this week. He had been sick for a while so his death wasn't entirely unexpected. Three months ago he suffered when the doctor called a spinal stroke - a blood clot pinched off his spinal cord and left him paralyzed from the chest down.

My father-in-law was an active man. He drove in Houston traffic. He walked on the treadmill every day. He helped babysit our daughters.

Robert Van Fossen grew up in the Great White North. In 1941 he enlisted in the Canadian Air Force. He traveled from Saskatchewan to the east coast of Canada for training. He was scheduled to be deployed as a navigator flying over Europe.

My wife's future mother hopped on a train and rode halfway across Canada to marry him before he shipped out to Europe. As it turned out, the plane they were supposed to fly across the Atlantic crashed before they left. So, instead of flying to Europe, my father-in-law patrolled Canada's Atlantic coast during the war. I can't help but think that his wife was quite pleased about the change in plans.

Robert Van Fossen was a very smart man. He was detail-oriented. If he was telling you a story, it was a good idea to make sure you had someplace to sit - because you were going to be there for a while. He was also a man who was very dedicated to his family.

The last three months have been rough on everyone. There's no joy in watching a loved one deteriorate before your eyes knowing there's nothing you can do. While there is an air of sadness, there is also a sense of relief that his suffering is over.

Farewell, Robert Van Fossen. You will be missed.

Cheering on the state death machine

That's right. You heard the audience cheer when Brian Williams stated how many inmates have been murdered by the State of Texas. You heard a group of right wing Republicans preaching the virtues of limited government cheer because the state carried out 234 murders under Rick Perry's "watch."

Limited government means the citizenry has the right to be left alone. What could possibly violate the principle more than arming the state with the tools to kill its own citizens?

And, even more to the point, Rick Perry knows he sat and allowed an innocent man to be killed by the apparatus of the state when he refused to halt the murder of Cameron Willingham. Rick Perry knows he allowed an innocent man to be killed in the name of Texas and his appointment of Williamson County D.A. John Bradley to emasculate the state forensic science committee is evidence of his guilty mind.

Rick Perry calls himself a Christian yet he gladly boasts about the number of people killed by the state while he's been in Austin. And the sickest part is that folks in the audience cheered him for doing it.

Rick Perry isn't in favor of limited government. Rick Perry wishes to extend the power of the state to meddle in our lives. Rick Perry wants to give the state more authority to intrude upon our right to be left alone.

Thursday, September 8, 2011

A salute to fallen warriors

The Harris County Criminal Lawyers Association will honor its fallen warriors this morning at 11:00 a.m. in the Trial Ready Room on the 7th floor of the Harris County Criminal (In)justice Center.

The Honorable Michael T. McSpadden, the presiding judge of the 209th Judicial District Court will speak and past HCCLA President Robb Fickman will read the names being added to the plaque.

Here are the names of those who will be honored for fighting to defend the Constitution and the rights of the accused:

Frank Alvarez, Jr.
Frank Briscoe
Charles C. Cates
John R. Coe
John L. Denninger
Thomas Barker "Tody" Dupont
Rosemary Garza
William Hatten
Marguerite Hudig
Phil Jenkins
Stuart Kinard
Benjamin Levy
Miron Love
Robert Most
Joe Roach, Jr.
Jose Rojo
Felix Salazar
Don Shipley
Robert J. Sussman
Bob Tarrant
David A. Wills