Friday, November 16, 2018

Walking that fine line

On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.

Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.

After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.

In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.

In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself  by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.

Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.

Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.

On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.

The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.

The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.

The case was remanded for a new trial.

But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.

It is sometimes a very fine ledge we walk across.

Wednesday, November 14, 2018

Mississippi's still burning

While things have changed with regard to race relations in many parts of the south -- it's nice to see that Mississippi has decided to hold on to its reputation as the worst state in the country for African-Americans.

My dad was born and raised in a small town in northern Mississippi. His parents were still using the N word until they died. One of my most vivid images of that town was one afternoon back in the 1970's when a little black girl squatted and peed on the sidewalk on the town square because none of the shopkeepers would let her in to use the restroom. Let that sink in for a moment.

Now we have two new images out of the Magnolia State that only serve to confirm that white supremacy is alive and well in the Deep South.

First we have a voter in Olive Branch (who supposedly is a nurse at a hospital in Memphis) wearing a shirt that depicts a confederate flag with a noose in front and the slogan "Mississippi Justice." Early claims that he was a poll worker seem to have been proven not to be true.

Then we have one of Mississippi's senators, Cindy Hyde-Smith, telling a crowd that she would sit in the front row of a public hanging if cattle rancher Colin Hutchinson invited her. She claims this was a joke to show how much she appreciated his support but, but the only folks buying that excuse are wingnuts wearing MAGA hats. The governor, Phil Bryant, of course had nothing to say since he doesn't want to piss off his white supremacist supporters.

There is a reason that Republican office holders refuse to make statements on the record about these events. It's because a large part of their base hold the same beliefs. Under Richard Nixon's "Southern Strategy" the Republican party recruited conservative Democrats (the same ones who fought to keep Jim Crow in place) to join the party. Thus the party of Lincoln went from fighting the evils of slavery to fighting for the preservation of discrimination.

So, for all of y'all who want to blame black folks for simmering racial tensions due to police violence and overt racist behavior, here are Exhibits 1 and 2 as to why you don't know what you're talking about.

Tuesday, November 13, 2018

Execution Watch: 11/14/2018

On Wednesday night, the State of Texas will murder again...

ROBERT RAMOS. The Mexican national, who suffers from mental illness, is to be executed a quarter-century after his conviction. He was found guilty of killing his wife and two youngest children in the Rio Grande Valley in 1992. His attorneys argued that Mr. Ramos was brain-damaged. They also said his execution would violate an international treaty requiring foreign nationals to be told, at the time of arrest, that they may contact their government for legal help.

During the punishment phase of his trial, Mr. Ramos' attorneys didn't cross-examine any of the state's witnesses, offered no evidence of their own and never asked the jury to spare his life.

Over 15 years ago, the World Court found that the United States had violated the rights of 54 death row inmates who were never informed of their right to consult their government for legal help. The World Court determined that each of the inmates deserved to have their cases reviewed. The U.S. Supreme Court, acting under the ideology of American exceptionalism, told the World Court to fuck off and wiped its hands of the matter.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, November 14, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

See also:

Blakinger, Keri. "Mexican national scheduled for execution in Texas despite claims of treaty violations," Houston Chronicle (Sept. 1, 2018).

Monday, November 12, 2018

Fine! I'm going to take my ball and go home!

Two juvenile judges in Harris County accounted for one out of every five commitments in the state.  Glenn Devlin and John Phillips, both of whom were voted out of office last week, sent 199 kids, 96% of whom were children of color, to state juvenile detention facilities in 2017.

As much as I'd like to think that the voters' decision to oust them from their seats was related in some way to the wholesale warehousing of poor African-American and Latino youth, I know they were just the "victims" of the blue wave that washed over Harris County.

But (soon-to-be-ex) Judge Devlin upped the ante when he released the majority of juveniles who appeared before him after they answered "No" to his question of whether they would kill anyone if he released them. Now I'm certain that most of the kids in question should have been released to their parents' custody in the first place given Judge Devlin's proclivities, but his actions in court were those of a petulant child who had a toy taken away from him.

And in the civil courthouse, another soon-to-be-former judge, Charley Prine, decided he would go the petty route after being voted out of office. It seems that the judge-elect, Angela Graves-Harrington, in the 246th District Court approached the judge to ask about the transition process. Instead of being graceful in defeat, Judge Prine told her to get out of his courtroom and threatened to charge her with trespassing if she returned. Perhaps someone needs to let Judge Prine know that the courtroom in question doesn't belong to him but belongs, instead, to the residents of Harris County.

These are two examples of the fine jurists Republican voters are lamenting because they lost an election. There are two of the judges who lost their job because voters took the easy way out (according to many soon-to-be-ex Republican officeholders) and cast straight ticket votes. These are two of the fine judges, according to Republicans, who lost their jobs as a consequence of partisan elections.

Needless to say, neither judge had any comment when questioned.

Make of that what you will.

Wednesday, November 7, 2018

The aftermath

The blue wave hit Harris County (and even our suburban neighbors to the southwest) yesterday. The Democrats swept every county-wide seat, including all of the county civil and criminal benches, the family court benches, the juvenile court benches and every district court bench up for election.

Today should be an interesting day at the courthouse.

Yesterday's results will likely mean an end to the county's lawsuit to fight bail reform. If you'll recall, 14 of the 15 Republican judges were fighting to preserve a system by which poor defendants were coerced into pleading guilty in order to get out of jail. Only Darrell Jordan and Mike Fields, the two African-American judges in the misdemeanor courts, chose the honorable route.

I am sure we will hear quite a bit from a couple of the ousted judges about how much of a revolving door the courts have become since US District Judge Lee Rosenthal issued her ruling. When you hear it, just remember the source.

The judges fighting the lawsuit have cost Harris County over $6 million so far. But, hey, they are all white Republicans and it wasn't their money they were spending.

And, yes, there were some good judges who will be stepping down at the end of the year. But so fucking what? Not one of them was elected because the folks of Harris County thought they were or would be excellent jurists. Not one of them was elected because they presented voters with a vision of how the courts should operate. They took their seats on the bench because they happened to have an R after their name in an election in which the Republican at the top of the ballot won in Harris County.

For every one of these good judges, there was plenty of jetsam and flotsam. As imperfect as our system of selecting judges is in Texas, it certainly beats any of the alternatives. Party affiliations cut down on corruption in the general election because candidates don't have to raise large sums of money (in fact, a judicial candidate doesn't need to spend a dime after winning the primary because he or she will get about the same percentage of the vote as the candidate at the top of the ballot for their party).

I don't think there is anyone who seriously thinks a better system would be to allow the governor to appoint judges who would stand for periodic retention elections.

Good luck to the new judges and may y'all be lamented as good judges done wrong should the pendulum swing back to the right.

Tuesday, November 6, 2018

Louisiana looks to shed vestige of Jim Crow

In 48 states it takes a unanimous vote from a jury to convict a person accused of committing a criminal act. And, if you think about it, that makes sense given the burden of proof placed upon the state in a criminal trial. Oregon is the only other state that does not require a unanimous verdict -- unless the defendant is charged with murder.

Today in Louisiana, voters will be asked to decide if Louisiana wishes to join the vast majority of states in requiring a unanimous jury vote for a conviction; or if the Pelican State wishes to preserve one of the last overt tools of the Jim Crow era. Louisiana is the only state in which a defendant can be sentenced to life in prison on less than a unanimous verdict.

The so-called "split jury" was written into the Louisiana constitution in 1898 when a constitutional convention was called after the end of Reconstruction.
"It put into place a number of measures in order to — this is a quote from the convention itself — 'to maintain the supremacy of the white race.'"
-- Andrea Armstrong, Professor, Loyola University
The driving force behind the provision was to preserve a system of unpaid labor for white landowners. At the time of the convention, Louisiana had a policy of leasing out convicts for private businesses. The split-jury provision preserved the pool of free labor and made it easier for the state to convict and imprison black men.

The state Attorney General and local prosecutors are opposed to the constitutional amendment because it would make it harder for them to obtain convictions and it would take away some of their leverage when it comes time to plea bargaining. Of course, local prosecutors claim that they just want an efficient criminal (in)justice system and they don't want to have to worry about the time and expense involved in re-trials.

Well, tough shit, Mr. Prosecutor. You are doing your best to defend a system that denies millions of people due process. You are defending a system that is a hold-over from the days of Jim Crow and that was enacted specifically to keep a thumb on black people.

The coalition behind the ballot measure has made for very strange bedfellows with the measure passing the Republican-controlled state legislature with a better than 2/3 majority. George Soros and the Koch brothers have also put their money behind the measure.

If you live in Louisiana and haven't yet voted, please vote Yes on 2.

Monday, November 5, 2018

To what depths will they plunge?

There were a number of things I was thinking of writing about today, but when I saw this flyer in my mailbox there was no way I couldn't write about it.

Stan Stanart is the Harris County Clerk. He is a very inconsequential man. He is nothing more than a hack with an R after his name who was fortunate enough to run in an off-year election in which white republican voters from the suburbs voted en masse because they had a problem with a black man living in the White House.

The front of this mailer reads "EMERGENCY NOTICE." It is designed to look like an official piece of mail - it even has a generic seal with a lone star to hint at the seal of his office.

My favorite line is that democratic turnout has exceeded that of prior years. Let's be honest, there is no way to know that because no one has counted the votes as of yet. While it's a very good bet that the democratic turnout within the city has been high, there is no way to verify that claim (unless ol' Stan's been peeking at the results).

Mr. Stanart tells the old white ladies that voter protections are in danger if he loses the election. He warns that there could be voter fraud, intimidation and lack of transparency if a democrat wins the race for County Clerk.

Now this is where republican candidates such as Mr. Stanart try to spin reality on its head. The only voter intimidation going on in Harris County right now are photo ID requirements that are reminiscent of the poll tax. For instance, his office insists on denying college students the right to vote with their student IDs but folks can use their concealed handgun license as a form of ID to get a ballot.

The ad is misleading. It is designed to stoke fear. And, most importantly, Mr. Stanart is lying.

That is all.