The Defense Rests

Graffiti, courthouse style

2012-02-01T09:00:00.000-06:00

Handiwork of an unknown artist on the 2nd floor of the Harris County Criminal (In)justice Center.

Runaway grand jury closes up shop

2012-02-01T08:00:00.001-06:00

Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.

The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.

Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.

What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?

Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.

Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.

I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.

As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.

So, go on, there's nothing to see here.

The fishbowl

2012-01-31T09:00:00.000-06:00

If you're into social media and designing applications (and helping los federales to spy on the citizenry), the FBI has the perfect free-lance job opportunity for you.

How would you like to design an app that could search social media sites such as Facebook, YouTube, Flickr and Twitter and allow users to compile information on domestic and international terrorism?

The FBI's Strategic Information and Operations Center (SOIC) posted its "Social Media Application" market research request onto the web on 19 January, and it was subsequently flagged up by New Scientist magazine.

The document says: "Social media has become a primary source of intelligence because it has become the premier first response to key events and the primal alert to possible developing situations."

It says the application should collect "open source" information and have the ability to:

Provide an automated search and scrape capability of social networks including Facebook and Twitter.
Allow users to create new keyword searches.
Display different levels of threats as alerts on maps, possibly using colour coding to distinguish priority. Google Maps 3D and Yahoo Maps are listed among the "preferred" mapping options.
Plot a wide range of domestic and global terror data.
Immediately translate foreign language tweets into English.

Sure, when you post something online it's out there for the whole world to see. But, so many of these social network sites function more like a cocktail party or a backyard bbq. You and your circle of (mostly) virtual friends chat and comment about this or that - until your eye is drawn to the next shiny object.

What has happened to our right to be left alone? As Scott Greenfield points out, on the internet you don't know if you're talking to a dog -- or a terrorist, or at least someone los federales have their eyes on. How does it feel to know you might just get dragged into an investigation? How does it feel to know that you might find yourself under suspicion because of a tweet?

Of course you know that everything changed on 9/11. Now we're all under suspicion. Now the government needs to be able to monitor all our communications lest someone say something that might be a little bit controversial. The same tools that we have hailed for making our world smaller and allowing us to connect with more people are being used to keep an eye on us.

How does it feel to be the fish?

Coming and going

2012-01-31T08:00:00.001-06:00

Sign outside the Inmate Processing Center on Commerce Street in Downtown Houston.

Everywhere else downtown, the parking meters are turned off by 6pm every evening and all day on Sunday. But not at the jail.

They'll screw you coming... and going.

The Peter Principle in action

2012-01-30T09:00:00.000-06:00

Citgroup. Bank of America. AIG. General Motors. Ally. Chrysler. Chrysler Financial.

What do all of these companies have in common? (Ally, for those of y'all who haven't seen the annoying commericals was created by the spinoff of GMAC from General Motors.)

The seven companies listed above were the largest recipients of the bailout funds doled out by the federal government as the economy came crashing down. As part of the bailout, executive compensation at the firms was limited to $500,000. Citigroup and Bank of America have since repaid their loans and are free to pay their executives whatever the hell they want to.

Kenneth Feinberg was named the special master whose duties included overseeing executive compensation at the bailed out companies. Under pressure from the Treasury Department and the New York Federal Reserve Bank, Mr. Feinberg gave the official thumbs-up to the wholesale obliteration of the compensation limit according to an audit from the inspector general for the Trouble Asset Relief Program (TARP).

One of the worst offenders was AIG whose collapse was caused by its sale of unregulated credit default swaps. After handing the company over $180 billion, the taxpayers still own 70% of AIG. Now, keep in mind that the executives we're talking about are the folks who sat in the captain's chair as they drove their companies over the cliff in 2008.

The companies begged and pleaded with Mr. Feinberg (and had their friends in Washington and New York do more cajoling) to ignore the limit on compensation because, otherwise, the executives might just leave the companies and look for work elsewhere.

To which I say, so fucking what? Would you want to retain the people that drove your company into the ground? As an example, Robert Benmosch is the CEO of AIG. In 2008 Mr. Feinberg authorized a $10.5 million compensation package for Mr. Benmosch. For what? Under his leadership AIG's stock was worth less than the paper it was printed on. But that wasn't all. The following year Mr. Benmosch found himself the recipient of another $10.5 million in compensation while 17 of the company's 22 top employees received between $3 million and $7.6 million in compensation.

And they were rewarded for what? Getting down on their knees and begging the government to give them taxpayer money to keep their doors open? They shouldn't have been rewarded. They should have been kicked to the curb and left to fend for themselves.

Instead the men responsible, in large part, for the economic meltdown continue to sit in the lap of luxury on the taxpayer's dime. If executive compensation is meant to be a reward for steering the company to higher profitability then the opposite must also be true. Meanwhile the federal government just doesn't seem to be able to scrape the money together to help homeowners stave off the repo men.

The moral must be that if you screw something up, screw it up royally - otherwise you'll just find yourself on the unemployment line.

H/T Democracy Now!

Chasing down SEO rabbitholes

2012-01-30T08:00:00.001-06:00

This is probably the most amazing blogs Ive study inside of a really extended time. The level of information in here is stunning!

That was the comment. It was submitted by someone named "Bose." The piss poor grammar and spamishness sparked my curiosity. Who was the spammer?

There wasn't much to go on when I clicked on Bose's blogspot user profile. Just a link to something called ArticleCity(dot)com. And just what is ArticleCity, you may ask. It's your "one-stop" shop for free articles to put in your online newsletter or e-mail spam.

Welcome to ArticleCity(dot)com - your one-stop source for free articles. Do you need content to add to your web site? Or articles for use on your opt-in newsletters and e-zines? ArticleCity.com maintains a huge collection of articles on a wide variety subjects.

So I scrolled down to the legal articles and found one about when you need to hire a DUI lawyer. The article was a tangled mess of poor grammar and viewpoints. Here's an excerpt:

DUI (Driving under the influence) of alcohol or drugs is considered to be a serious offense as it is the greatest cause of criminal injury and death. The drugs that are taken into account include tranquilizers, opiates, amphetamines, cocaine and marijuana. When the driver has a blood alcohol level of 0.08% or higher then in that case that person is guilty of the offense. Drivers who drink and drive not only put their life in danger but also of the people around them. They think that after drinking they can control their driving without caring about the consequences like they might get caught by the police or they might get involved in an accident. They also have to face severe legal consequences such as their license may be suspended or they might be placed in jail and fined substantial fees.

We are then told that if you are arrested for DUI then you will need a lawyer who's "highly experienced and skilled," "highly skilled and efficient," "expert," "qualified," , "reliable," "right" and "proficient." I think he got in all the SEO-friendly keywords in that paragraph.

Our author ends with this caution:

Some lawyers offer free consultation to their clients. An initial consultation with your DUI lawyer helps you in deciding whether you want to work with them or not. Ensure the upfront fee and payment options. Therefore in order to save yourself from such kind of punishments it is advisable not to indulge in these type of things as it might be considered a crime and in case if you get involved in this type of situation then hiring an expert DUI lawyer can be the best solution.

Now we can all nitpick the article to death but that would be like shooting fish in a barrel. The article was written by someone named Sukhmannjot who provided a link in the author box to the Abreu Law Firm in Miami.

Abreu law firm Attorney Miami able to handle Criminal Lawyer Miami cases in either state or federal court.

I don't know if our friend Sukmannjot is an employee of the Abreu Law Firm or if he just works for some SEO company that posts spam comments and poorly written articles on websites. Whichever the case may be, I would suggest that Mr. Abreu keep closer tabs on those he uses to market his firm.

Pressure builds on judge to step down

2012-01-29T09:00:00.000-06:00

Well, what do you know, Christopher Dupuy is back in the news.

If you don't know, Mr. Dupuy is the judge in County Court at Law No. 3 in Galveston County. At the time he was running for the bench the State Bar had placed him on probation for violating ethics rules. The seat he ran for was held by the judge in the divorce case filed by his now ex-wife. His platform was a bizarre assortment of right-wing positions that would have made any wingnut proud. He sits on the bench because Galveston County voters in the north end of the county blindly selected the straight ticket option for the Republicans.

SUSPENSIONS On Oct. 9, 2009, Christopher Dupuy [#24003931], 38, of League City, accepted a six-month, fully probated suspension effective Oct. 9, 2009. An evidentiary panel of the District 5 Grievance Committee found that Dupuy’s professional websites contained statements that omitted facts necessary to make the statements considered as a whole not materially misleading. Also, Dupuy’s advertisement in a telephone directory did not conspicuously publish the name of at least one lawyer responsible for the content of such advertisement, and did not disclose the geographic location, by city or town, of Dupuy’s principal office. Dupuy failed to file the telephone directory advertisement with the State Bar Advertising Review Committee.

Dupuy violated Rules 7.02(a)(1) and (a) (2); 7.04(b), (c), and (j); and 7.07(b). He agreed to pay $2,500 in attorney’s fees and costs.

-- Texas Bar Journal, January 2010

If you've ever had the "pleasure" of practicing in Judge Dupuy's court you know what an interesting experience it is. I had a case in which the prosecutor and I submitted an agreed motion for new trial. When I handed him the motion, the judge looked at me and asked what he was supposed to do with it. I told him it was an agreed motion and that he should sign it. He took it under advisement and made up wait for 45 minutes while he went back in his chambers and did God knows what before returning to the bench.

In his latest misadventure, Mr. Dupuy was fined $7,500 by a judge for improperly trying to remove a judge who was hearing a malpractice case against him filed by a former client. The $7,500 fine is in addition to an $1,800 levy ordered against him for failing to appear at a deposition in that case. David Bryant, a Houston attorney handling the suit, told the Houston Chronicle he thought he'd have to attach Mr. Dupuy's bank account in order to get the money.

Dupuy is also under investigation by the Galveston County District Attorney's Office for allegedly lying about his residency on the application he filed to run for the bench.

The situation is so bad that the Galveston Daily News is calling for Dupuy to resign from the bench.

The man is not qualified to sit on the bench. The unethical manner in which he ran his practice. Sleeping with an attorney practicing in his court. Lying on his application to run for office. The unprofessional way in which he conducts business in his courtroom.

The folks in Galveston County who voted straight ticket Republican got exactly what they deserved.

Transcript of DuPuy hearing

How much is a life worth?

2012-01-28T09:00:00.000-06:00

On November 19, 2005, in the Iraqi city of Haditha, a bomb went off and killed an American soldier, Lance Corporal Miguel Terrazas. In the aftermath of the explosion, an Iraqi cabdriver and four teenagers were shot and killed by US troops under orders of Sgt. Frank Wuterich.

Upon arriving at the scene, Lt. William T. Kallop ordered the troops to seize a house from which he believed shots were being fired. The marines stormed the house and killed 19 unarmed civilians, including seven women and children, through the use of rifles and grenades.

The original story was that the dead were part of a group of Iraqis who opened fire on the Americans. But questions were asked when the dead were found wearing their nightclothes.

But when witnesses were asked to recount the events of that day, a startlingly different picture emerged. Tim McGirk of Time Magazine broke the story in March 2006. The account of 9-year-old Eman Waleed is harrowing:

"We heard a big noise that woke us all up," she recalls two months later. "Then we did what we always do when there's an explosion: my father goes into his room with the Koran and prays that the family will be spared any harm." Eman says the rest of the family—her mother, grandfather, grandmother, two brothers, two aunts and two uncles—gathered in the living room. According to military officials familiar with the investigation, the Marines say they came under fire from the direction of the Waleed house immediately after being hit by the ied. A group of Marines headed toward the house. Eman says she "heard a lot of shooting, so none of us went outside. Besides, it was very early, and we were all wearing our nightclothes." When the Marines entered the house, they were shouting in English. "First, they went into my father's room, where he was reading the Koran," she claims, "and we heard shots." According to Eman, the Marines then entered the living room. "I couldn't see their faces very well—only their guns sticking into the doorway. I watched them shoot my grandfather, first in the chest and then in the head. Then they killed my granny." She claims the troops started firing toward the corner of the room where she and her younger brother Abdul Rahman, 8, were hiding; the other adults shielded the children from the bullets but died in the process. Eman says her leg was hit by a piece of metal and Abdul Rahman was shot near his shoulder. "We were lying there, bleeding, and it hurt so much. Afterward, some Iraqi soldiers came. They carried us in their arms. I was crying, shouting 'Why did you do this to our family?' And one Iraqi soldier tells me, 'We didn't do it. The Americans did.'"

Eight marines, including Sgt. Wuterich, were charged with murder and dereliction of duty. The cases almost immediately began to fall apart with military investigators recommending that charges against the soldiers be dismissed or reduced to just dereliction of duty. The investigation uncovered instances that the defendants had destroyed or withheld evidence.

Of the eight, one was acquitted and charges against six others were dismissed. In the last case, Sgt. Wuterich pled guilty to negligent dereliction of duty. The manslaughter and assault charges were dismissed. As punishment, Sgt. Wuterich was demoted to private.

And so the question remains, what's an Iraqi life worth? According to the military court, one American life was worth the lives of 24 Iraqis; but the lives of those Iraqis was only worth a loss of rank.

I do think Sgt. Wuterich was being made something of a scapegoat in this affair. He, after all, wasn't the one who ordered the marines to storm the houses. But no one ever went after Lt. Kallop. As a result we have 24 dead civilians who were killed as the result of a war without purpose entered into by President Bush.

War isn't about fighter jets and targeted bombs. It isn't about smart bombs and surgical strikes. War is about death and destruction. Collateral damage is just a sanitized why of saying "We fucked up."

For more background, see:

"Investigating the Haditha Killings," NPR

Working blind

2012-01-27T09:00:00.000-06:00

Ask any scientist and she'll tell you that the best result from an experiment is often the one that disproves the hypothesis being tested. Why? Because such a result means there are more questions to ask - and more knowledge to be gained.

According to the scientific method, we first develop a hypothesis, then we conduct experiments. We observe the data obtained and compare the results to our hypothesis. If the data contradicts the hypothesis we must change our hypothesis. That, you see, is the recipe for scientific breakthroughs.

But such a scenario is anathema in a crime lab.

The last thing the police want is an inconclusive test. Analysts know this. Their supervisors know this. The people funding the lab know this.

And so the "forensic scientists" at crime labs across the country are made part of the criminal investigation. They are given the task of proving a link between the test result and the suspect. And, as many results are subject to interpretation, there is an inherent bias to be found.

Grits for Breakfast referenced an article in The Economist that when forensic scientists are given too much "contextual information," test results can be subject to a "cognitive bias."

As Grits points out medical trials work because the doctors conducting them don't know who's receiving the actual treatment and who's receiving the placebo - and neither do the test subjects. Without that knowledge there is no pressure (whether real or imagined) to make the results fit the desired outcome.

In the criminal (in)justice context, however, the forensic scientists, or lab technicians, running the test are told they are testing something that came from the suspect. They are told what that person is suspected of doing. They are told they're part of the team. Their mission, in other words, is to provide the evidence the government needs to obtain a conviction.

They are neither neutral nor unbiased. Just think what role that ideology played in the expansion of forensic analysis into the analysis of tire tracks and foot prints. Fingerprints and bite marks. Ballistics and lead analysis. Arson investigations.

If we are going to call these glorified lab techs "forensic scientists," then we should at least expect them to play by the same rules other scientists follow. It's the least we should demand when people's lives are on the line.

For a few votes more

2012-01-27T08:00:00.001-06:00

This week the French Senate approved a bill that would make it a crime to deny that the Turks committed genocide against Armenians during World War I. Anyone denying it was genocide could face jail and a fine of up to $58,000.

The rise of the Thought Police in the United States is troubling enough - but to make it a crime to disagree with what someone else says goes beyond anything we could imagine on this side of the pond.

Maybe it was genocide. Maybe it wasn't. That, ultimately, is a question for the historians to answer. But to criminalize a point of view makes a mockery of scholarship. It also makes a mockery of the French justice system.

According to the BBC, there are half-a-million French citizens of Armenian descent. Did the party of President Sarkozy pass the bill in order to curry favor with those voters? Was the criminalization of thought the price to pay for a few more votes? What does that say about the state of politics in France?

Maybe the politicians in France have forgotten the words of the Declaration of the Rights of Men written during the heyday of the French Revolution.

Article 4 states:

Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the rights of each man has no limits except those that secure the enjoyment of these same rights to the other members of society. These limits can be determined only by law.

Article 5 states:

The law has only the rights to forbid such actions as are injurious to society. Nothing can be forbidden that is not interdicted by the law, and no one can be constrained to do that which it does not order.

Can someone explain to me how the exercise of speech can "injure" another. Sure, you might disagree with what I say, but my words are just that - words. They have no more power than you allow them to have. It is quite a stretch to conclude that denying the Turks committed genocide against Armenians a century ago is injurious.

Likewise, disagreeing with a statement is not injurious to society. It is through the exchange of different, and sometimes contradictory, ideas that our knowledge of the world increases. To criminalize such a disagreement will serve only to chill speech and scholarship.

How ironic that the French gave us the Statute of Liberty.

Update: Let loose the killing machine

2012-01-27T07:00:00.000-06:00

The State of Texas got back into the business of murdering people last night with the first state-sponsored killing of the year.

Rodrigo Hernandez, who was convicted of the 1994 murder of Susan Verstegen, was executed after the US Supreme Court denied his request for a stay on Thursday afternoon.

Mr. Hernandez wasn't a good guy. But his death doesn't undo what he did. His death doesn't bring back Ms. Verstegen. Her son will wake up tomorrow, but she will still be dead.

On the other hand, the Supremes denied the state the opportunity to murder Donald Newbury on February 1. Mr. Newbury was one of seven men who escaped from prison and robbed a Dallas area store, where a police officer was killed. Mr. Newbury was sentenced to die, despite the fact he was not the murderer.

Texas is the only state that permits the execution of a person who only played a supporting role in a murder.

What's in a name?

2012-01-26T09:00:00.000-06:00

It's not enough that Jim Crane is moving the Houston Astros from their home in the National League over to the American League. Nope. Now he's even looking to change the team's name.

Change the uniforms? Okay. They've worn the white, the pinstripes and the red for a decade now. It's probably time for a change. I'd love to see an homage to the tequila sunrise uniforms of the early 80's.

But changing the name of the team? This isn't what we signed up for. We already know we're destined to watch the Astros struggle to avoid another 100-loss season in 2012. We know that Crane isn't going to spend any money to improve the team this year. In fact, if he could find a way to deal away the few remaining high-priced players he has, he'd do it in a heartbeat.

But to change the team's name. That's a whole different story. Maybe he figures if he changes the colors and the name that he can fool the fans into thinking it's a new team. Maybe then the fans won't be upset that the team is mired at the bottom of the standings. As long as Crane's making money from TV and merchandise sales, it's all good.

Jim, baseball is all about tradition. It's about fathers taking their sons and daughters to Opening Day every year. It's about sitting in the bleachers on the 4th of July. The numbers always mattered in baseball because the game didn't change. Why do fans continue to buy tickets to see a team that stinks year after year? It's because it's baseball.

Now we're less than a month until pitchers and catchers report. The time of year when every fan of every team deludes themselves into thinking that this could be the year. Reality will set in pretty quickly here in Houston and changing the name on the front of the jerseys won't do a thing to change that.

Dirty rotten scoundrels

2012-01-26T08:00:00.001-06:00

If you want to see your tax dollars at work, you need to check out Michael McKnight's piece on SI.com about the point shaving scheme at the University of San Diego.

Now, before I go any further I must say that sports are entertainment. Yes, a sporting event is the ultimate reality show but, in the end, the game is meant to entertain. Fans have a multitude of entertainment options and sports must compete with restaurants, clubs, the movie theater or the myriad of other things you can spend your hard-earned dollars on.

To this day I don't understand why los federales are interested in alleged point shaving schemes in college sports. The only people who get hurt are the folks who end up betting on the wrong side. We're not talking about throwing games, we're talking about missing a shot here and there or turning the ball over to keep the game within the spread.

Let me repeat, the only folks getting "hurt" are bettors, bookies and the casinos.

As Mr. McKnight points out, the key figure in the alleged scheme was a bookie named Steve Goria. Mr. Goria became the apple in the eyes of los federales when he was stopped at the border with a whole lot of cash - and a map to the pot capital of Northern California. Operation Hookshot was soon born.

The star of the sting was a confidential informant who was looking at a 10-20 year stretch in federal prison for a variety of drug crimes. He was only too willing to help out.

Just to make things more interesting, the informant is represented by the same attorney, Nicholas DePento, who represented Mr. Goria when he was stopped at the border in 2008. That raises questions of whether or not Mr. DePento violated his duty to his former client when he arranged for his current client to become the government's tool.

But the question is whether or not the FBI manufactured this alleged scheme. Did their informant drive the action or was he merely the means of discovering what was going on down by the ocean? Did the FBI stumble onto the scheme when they nabbed Mr. Goria at the border or did they manufacture it?

The evidence compiled by SI.com doesn't seem to indicate that, with the possible exception of one game in 2010, that there was any unusual betting patterns on USD games while the scheme was supposedly going on. And trust me, USD is such a small school that any suspicious bets would be detected quite easily.

What was the point in the investigation? Who benefits from it? And does it make anyone feel better knowing that the key government witness is a convicted felon who is facing a decade or more in prison?

And does it make sense for the government to go around creating criminal acts when there is more than enough real crime going on? If they wanted to go after some folks, why not take a look at the shenanigans in the mortgage-lending industry that helped bring down the economy?

The importance in the story, however, is in laying bare the ways in which our government schemes to entrap people in criminal enterprises. When you lie down with the pigs, you're bound to get dirty.

Execution Watch 1/26/2012

2012-01-25T13:00:00.000-06:00

The Texas killing machine is back in business.

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

RODRIGO HERNANDEZ. Convicted in the murder of a Frito-Lay saleswoman, his appeal was rejected in 2008 by the Texas Court of Criminal Appeals. The seven-year gap from Hernandez' 2004 conviction to the 2011 announcement of his execution date was relatively short. Typically a person sentenced to death spends at least 10 years going through the appeals process.

For more information on Mr. Hernandez, click here.

RADIOPROGRAM PREVIEW
EXECUTIONWATCH
"Unlessa stay is issued, we'll broadcast ..."
Thursday,Jan. 26, 2012, 6-7 PM CT
KPFTHouston 90.1 FM, HD-3
Listenonline: www.executionwatch.org > Listen

You can find more information on Execution Watch's Facebook page.

Does more of the same make any sense?

2012-01-25T09:00:00.000-06:00

I heard portions of a Mitt Romney speech the other morning in which he urged folks to vote for him to put an end to the health care bill signed by President Obama.

Mr. Romney said that the American people didn't want bureaucrats in Washington making health care decisions for them. He said what we needed were more market-based solutions.

Really?

Just tell me, how many people walk around telling others how much they love their health insurance provider? Is it really better for your health care decisions to be made by executives whose job it is to maximize profits? Does it make sense for those decisions to be taken out of the hands of your doctor and placed in the hands of someone sitting in an office who has never seen you?

How has the market done with allocating health care to the American people? Does reducing benefits, raising premiums and denying coverage benefit anyone other than the health insurance executives and shareholders?

And, Mr. Romney, do you have any idea just how much health coverage costs these days? Just how do you plan on ensuring that folks can carry their own insurance with them from job to job?

The health care debate is the perfect example of the perversion of the New(est) Right. If you're not happy with the current state of health care, the solution isn't for the government to step in; the solution is even more of the same.

Does that really make any sense?

Not quite so open

2012-01-25T08:00:00.000-06:00

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.

-- Texas Constitution, Art. 1, Sec. 13

Apparently that provision doesn't apply whenever a criminal court overbooks itself and sets so many cases on the docket there aren't enough seats in the courtroom for all of the defendants.

Sit in any Harris County misdemeanor court at docket call and you will hear the bailiff tell you to leave the courtroom if you aren't on the docket. Well, I hate to break it to you, but the public has a right to be in that courtroom. It is, after all, the people's court (thanks, Judge Criss).

The problem isn't mom or dad or husband or wife or boyfriend or girlfriend being there to support their loved one. The problem is requiring defendants to continue showing up in court for multiple settings when there is no need for the defendant to be there.

If it's a so-called "non-issue" setting on a criminal case, the only person who's presence is required is the attorney. Nothing's going to happen. The prosecutor may make an offer. The defense attorney may make a counter-offer, but that's it. Maybe the defense attorney files a motion or two. No reason for the defendant to be in court for the ceremonial exchange of paper.

A defendant's presence is necessary on the initial arraignment setting. After that, there's no need for the defendant to be present until the case is set for trial or to enter a plea. Requiring their presence only clogs the courthouse and puts pressure on defendants to plead out their cases because of the inconvenience of coming to the courthouse.

Hey, kids, get out of my yard!

2012-01-24T09:00:00.000-06:00

Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.

On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.

Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.

On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.

In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that it was an addition to the analysis.

Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.

In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).

Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.

Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.

What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?

From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.

For more analysis, please see:

"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)

"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)

Book review: Pity the Billionaire

2012-01-24T08:00:00.000-06:00

During the depths of the Great Depression capitalism faced its greatest challenge. The unfettered free market of the Gilded Age crashed and brought the economy of the United States (and western Europe) to its knees.

In response to the demands of the people, President Franklin Roosevelt pumped money into the economy to build schools, bridges, parks and buildings. We saw the creation of social security and unemployment compensation. Farmers formed organizations to prevent farms from being foreclosed upon. Banking reforms were enacted to prevent another banking crisis.

The Keynesian model of "priming the pump" during bad times prevailed until the late 1970's when the OPEC oil embargo threatened to bring the US economy to its knees once again. The stagnation of the Carter era paved the way for Ronald Reagan and his religion of free markets.

Over the ensuing 30 years, the reforms of the New Deal were gradually unwound and those who worshiped at the Altar of the Invisible Hand exported their ideology around the world.

And, for a time, everything seemed perfectly okay. Incomes were rising. Profits were rising. Land values were skyrocketing. CEO's were deified. And the free marketeers continued to preach their gospel of limited government interference with the economy.

But that all changed in 2008.

One investment bank after another bit the dust. The derivatives based upon collateralized debt obligations (sub-prime mortgages) tanked. The holders of these bonds found out they were toxic. The government didn't regulate the creation and sale of this instruments. That would have been interfering with the invisible hand of the market.

Banks failed. The housing market tanked. Credit dried up. Workers lost their jobs. People lost their homes. President Bush and his crew had no idea what was going on. They had no clue how to fix it.

President Bush pushed through the first bailout through Congress. While many folks were trying to figure out how to get their lives back on track, the federal government was handing out money to the folks who brought the whole system crashing down. The public was outraged.

But this time things were different. There was little rage against the free market ideology that caused the entire pyramid to collapse. What we saw instead was the rise of a protest movement of folks who called for even less government involvement in the economy. It was the great Republican reawakening. A movement that defied logic.

In his latest book, Pity the Billionaire: The Hard-Times Swindle and the Unlikely Comeback of the Right, Thomas Frank takes an in-depth look at how the New(est) Right created a protest movement in favor of even more laissez-faire economic policy.

The Right took the themes of Great Depression protests and flipped them inside out then sold their vision of free market capitalism to those who were upset that the government was handing out money to the people responsible for the Great Recession. Suddenly the problem wasn't the lack of government oversight, the problem was too much oversight. The problem wasn't the marketing of toxic securities and unregulated financial instruments (such as credit default swaps), the problem was that people and firms weren't allowed to fail.

Mr. Frank also has harsh words for President Obama and the Democrats. Once upon a time the Democratic Party was the party of the working class and the disenfranchised. That all changed in the 1980's when moderates and conservatives took over the party and got into bed with Wall Street. Without an effective check, the free marketeers led the country to the edge of the cliff and into the sea below.

The New(est) Right has, without a doubt, pulled off the biggest swindle in history.

The growing inequality

2012-01-23T08:00:00.000-06:00

So what's the big freaking deal about the 1%? Just what exact share of the national income do the top 1% of wealthy Americans bring in?

The answer may surprise you.

The Paris School of Economics has compiled a database of the world's top incomes. You can pull up information from 26 nations around the world from the early 1900's up through 2008.

In the United States, the top 1% of income earners pulled in 15.4% of the nation's income in 2001. That share rose to 17.7% in 2008 (slightly down from 2007 as a result of the Great Recession). But that's just the proverbial tip of the iceberg.

In that same period, the top 0.5% of income earners increased their share of the national income from 11.7% to 13.8% while the top 0.1% of earners saw their share go from 6.3% to 7.8%.

Now just take a second to let those numbers sink in. In 2008, almost 18 cents out of every dollar earned went to the wealthiest 1% of the U.S. population; almost 14 cents went to the top half of the top one percent and almost eight cents went to the top .01% of the population.

Income inequality in the US is now at about the same level as it was before World War I. And we call that progress.

The numbers are astounding and give us a portrait of the growing inequality in this country.

Piling on

2012-01-22T09:00:00.000-06:00

I'm no expert on maritime law. In fact, I know next to nothing about it. I know that if someone is injured on a ship out in the water the Jones Act comes into play and cost of litigation increases. I also know that the field is so specialized that there are some firms that handle nothing but litigation against cruise ships.

Having said that, though, there are some things that are quite odd about the goings-on surrounding the Costa Concordia mishap.

Typically in an accident case involving a commercial truck, the owner of the truck keeps the driver on the payroll. The company also avoids blaming the driver for the accident knowing that any such accusations will only come back to haunt it during litigation. They want to keep the driver happy because they know if they cut him loose he will only be too happy to discuss the litany of safety violations committed by his employer with the plaintiff's attorney. Now, after the litigation is resolved, all bets are off.

I found it odd that Costa Cruises, the owner of the cruise ship, would come out publicly and blame the accident on the captain, Francesco Schettino. The company can't distance themselves from Mr. Schettino. If they want to blame the accident on his negligence, they are setting themselves up for claims of negligent entrustment, negligent training and negligent oversight. (Of course I have no idea whether these are even valid causes of action in whatever court these suits will eventually be heard.) They are also just asking for someone to look into other incidents in which cruise ships were taken off course.

I don't know what happened last Friday aboard that ship. I'm certain it was a harrowing experience for everyone on board. I understand Mr. Schettino is human and subject to the same emotions as everyone else. Maybe everything is his fault. But the actions of Costa Cruises are peculiar and I do wonder what purpose they were meant to serve.

This bud's for you, or maybe it isn't

2012-01-21T09:00:00.000-06:00

Outside the United States soccer is the sport of the working class. Tales of violence at soccer matches around the world are legendary. Violence used to be a problem at soccer matches in Brazil. That is, until the government banned the sale of alcohol at soccer stadiums in 2003.

The measure seemed logical. Rowdy, passionate fans and alcohol don't make the best of combinations. The ban has had limited success since there is no ban on the consumption of alcohol outside the stadiums.

FIFA, the ~~corrupt~~ governing body of world soccer, awarded the 2014 World Cup to Brazil. But now there are problems.

The Brazilians wanted to set aside some discounted tickets for students and seniors. FIFA didn't like that idea as it would reduce the filthy lucre that Sepp Blatter and his cohorts can take back home to Europe. But the biggest dispute has to do with alcohol.

Budweiser, maker of ~~piss water~~ beer, is a big (shall we say huge) sponsor of the World Cup. And, as a major sponsor, carries a bit of weight. It seems that the folks out in St. Louis (or wherever the company is headquartered after its sale) aren't too terribly happy about the prospect of no alcohol sales at the stadiums across Brazil. And Mr. Blatter, always happy to get down on his knees and do the bidding of FIFA's sponsors, has informed the Brazilian government that there will be beer sales at World Cup venues - Brazilian laws be damned.

Now once upon a time sport was just that - sport. Now it is a business and the actual sporting event is but a marketing device for any corporation that wishes to peddle its products to the viewers. It is beyond absurd that FIFA is demanding that the Brazilians serve alcohol at World Cup venues.

Now I understand the network and cable folks view sports as the ultimate reality show. I also know that there are quite a few universities that are more than happy to let the broadcasters tell them when and where to play. But that doesn't make it right.

I hope the Brazilian government holds its ground and refuses to sell out for a beermaker. But I'm also fairly certain that that is exactly what will happen. And what message does that send to the Brazilian people? And what message does that send to other multinational corporations who don't like the laws in a particular country?

FIFA and Budweiser knew the rules before the tournament was awarded to Brazil. They need to learn to live with it. After all, it's all about the (beautiful) game.

The power of the mind

2012-01-20T13:00:00.000-06:00

Yesterday in Houston, a federal grand jury indicted four white men accused of beating an African-American man at a bus stop. The defendants allegedly used racial epithets while beating him.

The four men are charged under the Matthew Shepherd and James Byrd, Jr. Hate Crimes Prevention Act and face up to 10 years in prison for what they said while assaulting someone.

They have already been charged with assault in Harris County and will face up to a year in the county jail if convicted. But apparently that's not enough.

It's not enough that they are facing state prosecution for their acts. Nope. We need to bring the power of los federales down on them. But not for the acts they allegedly committed. They need to be punished because of what they thought while committing their crimes.

And that's the problem. We are all free to think what we wish - at least we're supposed to be. We are all free to hold our own opinions. Some of our thoughts and some of our opinions may be distasteful to others. So what. Our thoughts should never be the basis of a criminal charge.

The only thought that matters is whether you meant to do what you did.

The only crime mentioned in the U.S. Constitution is treason. The states had their own criminal laws. The Supreme Court was to hear cases involving disputes among the states or between individuals residing in different states or disputes involving the United States and another country. The Founding Fathers never intended to use the federal courts to resolve local criminal matters.

Hate is an awful emotion. Hate makes people do stupid things. But there is no good reason to make it a crime to hate someone. The four men in Houston allegedly assaulted another man. If proven, that's a crime.

Sure, maybe the alleged victim thinks a year in the county jail isn't enough. Well, it's not up to him. The state legislature (the voice of the people, or so the textbooks say) has decided that one year in the county jail is sufficient punishment for beating someone up.

A prosecutor friend of mine told a jury during the punishment phase of a trial that punishment has three purposes. The first is to punish the offender. The second is to rehabilitate the offender. The third is to act as a deterrent to others. Nowhere in there does it say that that the purpose of punishment is to avenge the victim.

It's wrong that these men are now facing up to 10 years in prison because of the words they allegedly uttered. Do the math - that's one year for an assault and nine years for what they said and thought.

If you can make it a crime to hate someone, how much further down the road do you need to go to make it a crime to have other thoughts that someone deems unworthy?

Proving a negative

2012-01-20T08:00:00.000-06:00

In a comment to a recent post ("A little shifting of the burden"), Adam Poole referenced a provision of the Texas Code of Criminal Procedure that states a judge shall submit the question of the defendant's guilt or innocence to the jury prior to final argument (Art. 37.07(2)(a)).

He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.

In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."

As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.

Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.

But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?

And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.

If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.

But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.

The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.

When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.

Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.

Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.

In pursuit of limited government

2012-01-19T08:00:00.000-06:00

Where are the voices calling for limited government when we need them?

Where are the voices of the teabaggers, libertarians and wingnuts when it comes to the overpolicing of America?

Last week Jack Abercia resigned his post as Harris County Constable for Precinct One in the face of a federal indictment on corruption charges. As it turns out, all eight Harris County Constables are being investigated in one fashion or another by the County Attorney's Office.

But why do we even have constables anymore? They are a relic from another time. We already have the Harris County Sheriff's Office, the Houston Police Department, the Metropolitan Transit Authority Police Department, the Port of Houston Police, the University of Texas Police Department, the University of Houston Police Department, police departments in all of the little bedroom communities within the city limits of Houston and those in the county, and of the school districts in the county.

Why is it that the proponents of limited government are nowhere to be heard when the issue of overpolicing arises? Why is it that they have nothing to say when the power of the government is used to infringe upon the freedom and liberty of the citizenry and not the corporations?

There is no need for this level of policing in Harris County. Duplicate functions need to be eliminated. If we are going to keep a constable's office in Harris County, the sole function of the office should be to serve process and subpoenas. But we have a Sheriff's Office. The bailiffs in every court (other than JP courts and municipal courts) are sheriff's deputies. Deputy sheriffs serve subpoenas in criminal proceedings.

There is no further justification for constables in these modern times, unless they are going to be employees of the justice of the peace courts and process servers. There are more than enough paramilitary units patrolling this county as it is.

Chicago mayor seeks to quell dissenting voices

2012-01-18T09:00:00.000-06:00

Up in the Windy City, Mayor Rahm Emanuel is preparing to host both a NATO summit and the G8 summit. And, since we're living in a dangerous world, new security measures are a must.

Mr. Emanuel wants to spend money on the summits without first getting approval from the City Council. He wants local police to be empowered to deputize out-of-state law enforcement officers and he wants to be able to restrict the times and locations of protests.

He claimed the requested measures would be temporary - to shut down protesters while the world's eyes were on Chicago. But, like most "temporary" government measures, the changes would have been permanent. The police want more power to deal with any possible scenario - no matter how far-fetched it might be.

Here's an idea, Mr. Emanuel, why not allow Chicago to be a shining beacon of just what the First Amendment means. You chose to have these summits come to your city; in other words, you invited the problems you foresee. Let the world see just how much the right to assemble and voice your grievances means to Americans.

The greatest threat to democracy, Mr. Mayor, is intolerance of differing opinions. Sure, free speech can be ugly. It can be rude. It can be inconvenient. But the people's dissent serves as a check on government. Instead of being afraid of what protesters might say and do while the world is watching, embrace this celebration of the Bill of Rights.

People have died in the streets of Cairo, Damascus and other cities throughout the Arab world over the last year because the authoritarian regimes would not tolerate dissent. In this country we have witnessed the orderly handing over of power for more than two centuries because dissenting opinions are not only tolerated, but encouraged.

Petty tyrants must be in control of everything. Differing opinions must not be tolerated. A true democrat embraces the cacophony of voices and celebrates the people's right to be heard.

School's in session

2012-01-18T08:00:00.000-06:00

There are many ways to poison a jury pool.

Prosecutors can tweet the names of people arrested for DWI or post their photos on Facebook. Prosecutors can castigate jurors after an acquittal and give them information the judge ruled inadmissible at trial. Prosecutors can leak information to reporters about high-profile cases.

But the Dallas County District Attorney's Office has come up with an ingenuous way to poison potential jurors. It's called the Citizen Prosecutor Academy. It's an "intensive" ten-week course offered in both the spring and fall twice a week to teach citizens how the system ~~malfunctions~~ "works."

"Unless an individual has served on a jury or unfortunately been a victim of a crime, the average citizen simply does not know how the system works," said Dallas County District Attorney Craig Watkins . "Last fall, we were approached by James Tate, a graduate student in the Master of Public Policy program at the University of Texas at Dallas, about starting a Citizen Prosecutor Academy in Dallas County. Mr. Tate had participated in a similar program in another county and after he shared his experience with us we were inspired to create our own academy. The curriculum is being developed by a diverse team of seasoned prosecutors, so we are optimistic it will be a success. Our primary goal is for participants to graduate from the program with a realistic and informed perspective of the inner workings of the district attorney's office that we hope they will share with others."

A "realistic and informed perspective" of how the DA's Office works? Really?

The mission of the Dallas County District Attorney’s Citizen Prosecutor Academy is to enable Dallas County residents to be exposed to the numerous procedures within the Dallas County District Attorney’s Office. This will provide Dallas County residents the opportunity to engage in open dialogue with prosecutors and leaders in the community, and discover the practices and methods of the judicial process. Our goal is to inform citizens who will share their experience with neighbors, friends, and family in their communities.

Now I will give Mr. Watkins his just due. His office has been at the forefront of exonerating wrongly convicted inmates through the use of DNA testing. In fact, since 2001, there have been more DNA exonerations out of Dallas County (21) than out of any other county in the country.

But, back to the indoctrination course...

According to the press release:

Each week, participants will hear from guest speakers including assistant district attorneys within various divisions/units of the DA's office, and other key personnel in Dallas County's criminal justice system.

There's nothing in the press release about speakers from the criminal defense bar. Now, maybe that was just an oversight. Maybe "other key personnel" refers to criminal defense lawyers. But I doubt it.

I'm sure the folks who sign up for the academy won't hear much about illegal and repressive bond conditions, the abuses indigent defendants face in the courts, how junk science is used to obtain convictions or the ways in which Brady material is either hidden or never disclosed.

Vultures and thieves

2012-01-17T09:00:00.000-06:00

Mitt Romney is a "vulture capitalist."

Mitt Romney "made a lot of money while people were going broke."

The allegations were that Mr. Romney's firm Bain Capital bought up struggling companies, laid off workers and sold what remained for a profit. The allegations were that Mr. Romney profited off the backs of the workers he fired.

But isn't that part of the destructive cycle of capitalism? Aren't the strong companies supposed to survive and thrive while the weaker ones fall by the wayside? Isn't that what competition is all about?

Were these the attacks of the Democrats? Were these the words of President Obama? What about the occupiers? Trade unionists? Commies? Athiests?

No.

Those were the words of Mr. Romney's fellow Republicans - Gov. Goodhair and the Newt.

You just have to love the irony of it all. Two candidates who worship at the altar of the free market railing against another candidate because he is too much of a capitalist. Of course the Newt has since backtracked on his statements because, well, he's a politician and that's what they do. Mr. Perry, on the other hand, hasn't yet figured out what irony even means.

Here is the Newt's paean to capitalism:

The price of due process

2012-01-17T08:00:00.000-06:00

Out in the hinterlands of Texas, near the Red River, is a place called Jack County. A total of about 8800 folks call Jack County home. Of course there is a local constabulary patrolling the (largely) empty roads of Jack County. Maybe they're looking for terrorists, drug dealers and liberals. They are most assuredly looking for speeders.

The folks in the JP's office are more than happy to let you know just how much it will cost you to get through Jack County as quickly as possible.

As with any place else in the Lone Star State, you can choose to have your ticket dismissed after completing a driver safety course or a probationary period, along with the payment of a ~~bribe~~ court fee. If you're the daring sort, you can even challenge the ticket in court.

And the court's minions will allow you to exercise your constitutional right to due process for the posting of a $200 appearance bond.

What a bargain!

What a farce.

Now I would imagine that most of the folks who receive a traffic citation in Jack County are just passing through (as quickly as possible, no doubt). And I can't think of too many good reasons to drive back up there to contest a traffic ticket. I would assume that the court collects quite a few pretty pennies from folks who just want to get their case dismissed without the hassle of fighting it.

But to charge someone $200 to exercise their right to a trial by jury in a criminal case is not only ridiculous - it's unconstitutional. Nowhere in the U.S. Constitution does it state that the people have a right to due process if they can afford it. Nowhere in the Texas Constitution does it state you only get to exercise your right to due process if you can afford to post a bond.

The entire purpose of the appearance bond is to discourage the few people who are willing to stand up and challenge a speeding ticket. It should be no surprise that it's a justice of the peace court imposing such a rule. The criminal (in)justice system is replete with examples of judges at the bottom of the food chain acting like tyrants.

Sure, defendants in county and district court have to post bonds to get out of jail -- well, if you're a defendant in county or district court you've been charged with an offense that carries the possibility of confinement. Hell, you were handcuffed and carted off to the county jail.

But you aren't subject to confinement if you're found guilty of speeding. When the officer asks you to sign the ticket you are making a promise to appear in court. The requirement of an appearance bond to exercise your right to hold the state to its burden only serves as a restriction on the due process rights of motorists in Jack County.

Violation Sheet

Our "colorblind" society

2012-01-16T09:00:00.000-06:00

Here's a little more food for thought on MLK Day.

According to Ohio State University law professor Michelle Alexander, in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, there are more African-Americans under the control of the criminal (in)justice system - whether in jail, prison, parole or probation - than were enslaved in 1850.

There are also more African-American men disenfranchised as the result of felony convictions than were disenfranchised in 1870.

Something has to change.

H/T Amy Goodman, Democracy Now!

MLK Day 2012

2012-01-16T08:00:00.000-06:00

Martin Luther King patterned his nonviolent approach to the fight for civil rights after Gandhi's campaign of nonviolence against the British in India. But how far does King's approach advance without Malcolm X's militant views?

Desegregating lunch counters and buses were symbolic moves that relied upon officials in the south being embarrassed by the the pictures being seen across the nation. The fight for political power struck at the very heart of Dixie.

Rev. King's tactics were radical, but it took the fear of revolution in the streets for the powers that be to finally realize that the Constitution applied to everyone. Without the fear of violence, would the politicians have reacted the way they did?

Rev. King and Malcolm X were two sides of the same coin. Their tactics may have differed. Their motivations may have differed. Their goals, however, were similar.

Update: Born to run

2012-01-15T10:20:00.000-06:00

This year's Houston Marathon didn't quite go as planned. My day ended after just a mile-and-a-half with a bum knee. I knew my knee was a bit sketchy beforehand but I had hoped to muddle my though 26.2 miles this morning and deal with the consequences later.

Unfortunately, the pain got to be too much going over the viaduct and once I stopped at the first water station there was no hope of getting back up to speed.

I did see some behind-the-scenes things at the race this morning that I've never had the opportunity to see before (and hope I never see again).

I'd like to thank the officer on Hardy just past the first water stop for his help. He called back to race control to let them know there was an injured runner who needed a ride back to the GRB. I never did get his name, but, thanks.

Thanks also to the crew in the "sag wagon" who took me back downtown. I had to wait until the entire field had passed before they picked me up so I saw crews cleaning up the water cups from the street and picking up discarded clothing.

On the way back we saw crews taking down the banners and gates around the various start lines.

I also want to send a special shout out to the medical crew at the GRB. It sucked having to abandon the race but they were all chipper and upbeat. Since it was so early they also weren't very busy so I was treated like royalty. I must have had at least two doctors a couple of aides and a few other support folks helping me out.

It certainly wasn't the way I had envisioned today going but, it certainly could have been worse. At least I'm physically able to run a marathon and I'm fortunate enough to live in a city that has a thriving running culture and the resources to put on a great race.

Born to run

2012-01-15T09:00:00.000-06:00

As y'all read this drinking your morning coffee and holding your doughnut, I'll be taking my annual tour of Houston by foot with some 20,000 of my closest friends and neighbors. So, enjoy your relaxing morning - and save some doughnuts for me.

Marathon Course Map

Review: First Week In

2012-01-14T09:00:00.000-06:00

Having a bad day? Things just not going well? Get into an argument with your spouse or significant other? Kids getting on your nerves? Just feeling bad about how life is treating you?

Have no fear. No matter how bad your day is, it can't possibly compare to the folks you'll meet on First Week In, the new reality show on Discovery.

First Week In follows three people through their last few minutes of freedom and into the world behind bars. For those who have never been in jail or known anyone who spent time in jail it's an eye-opener. For those of us who live in that world it's more a game of Name that Defendant.

The premier episode introduced us to a guy who was picked up, along with his "girlfriend" for pimping and pandering at a local hot sheet establishment. Let this be a lesson to anyone thinking about picking up a meth habit -- it's not a good idea. It makes you stupid.

Now he took advantage of the free room and board offered by Orange County and (at least tried to) wean himself off the drugs and his destructive relationship.

He was young, naive (bordering on stupid) and completely unaware of the world around him.

Our second guest was a man from Tulsa who was charged with assaulting his wife (I'm fairly sure alcohol was involved). He was bound and determined to get bonded out but found out, the hard way, that family friends aren't necessarily the ones who'll bond you out.

Up until he was served with the protective order he was having a hard time getting his head around the fact that his wife hadn't come to see him in jail. Methinks there was a little bit more to his story than he was letting on.

He was in a state of denial and panic. He's the guy who just shouldn't have been charged with anything because he really, really didn't do it.

Our third contestant was charged with kidnapping and rape. He didn't do it - at least that's what he keeps telling us. He learned a valuable lesson his first day in -- the same rules apply to everyone wearing the jumpsuit, whether you claim you're innocent or not.

He walked in with an attitude and thought he was smarter than the rest of the room. Of course the police got it wrong and no one's stories matched up and that's just not how it really happened.

So, if you're having a shitty day, punch up First Week In on the DVR and watch your life get better while you just sit there on the couch. I guarantee you'll feel better afterward.

Not jumping high enough

2012-01-14T08:00:00.001-06:00

And why would a group of U.S. Marines urinate on the bodies of dead Taliban fighters? For the same reason cops beat people who don't jump high enough.

Because they can.

Maybe you think it's okay because the dead were Taliban soldiers. Terrorists even.

But that makes as little sense as saying it's okay for the police to beat up a person arrested on suspicion of murder or rape or driving while intoxicated.

Were there just a few bad apples in the squad? Was it a lack of supervision or adequate training? Was it the very culture of war?

I don't know. But the same questions apply whenever we see footage of police brutality. I don't mind telling y'all that I think it has more to do with the culture of the organization than it does with a couple of cops (or soldiers) acting like thugs.

Of course you could say that it doesn't matter anyway because they were dead. Just remember that it cuts both ways. What would be your gut reaction if you saw video of someone else desecrating the bodies of dead American youth sacrificed for the greater good of American politicians and U.S. corporations?

Crime lab loses federal funding

2012-01-13T09:00:00.000-06:00

The honeymoon for Sam Houston State's Regional Crime Lab in The Woodlands is now over.

The lab was opened with the help of a federal grant and the understanding that the lab would become self-sufficient after three years. Owing to the iron law of budgeting (he who holds the iron makes the budget), that three year window ended about two years early.

The lab had charged Montgomery County, its largest customer, $200 for every drug or alcohol test in DWI cases. Without the funding from the feds, MoCo will pay $386 for alcohol tests and $290 for drug tests. Due to the increasing costs of operating the lab, all controlled substance evidence tests will be handled by the DPS. The switch will increase the wait time for test results.

But how to pay for the increased cost of testing is the question. The original idea was that MoCo would pay for the tests through sentencing fees for those who plead guilty or are convicted at trial. But that only covered about 3% of the cost. MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

In the meantime, however, defendants in MoCo will have to wait longer for lab results to come back in drug cases as it can take up to nine months for the DPS lab to release test results. In the meantime that's nine months of missing work to take yourself to court (if you're on bond) or (if you can't make bond) the prospect of sitting in a cell for nine months waiting to fight a case.

Some of the lessons from MoCo's crime lab are obvious. First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime.

It's all about the kids... really?

2012-01-13T08:00:00.000-06:00

As Scott Greenfield likes to point out -- it's all about the kids.

According to an article from the Associate Press, a little more than a third of the people who committed sex offenses against juveniles are, themselves, juveniles. And, since it's all about the kids, these juveniles are now required, in many instances, to register as sex offenders.

What purpose does that serve? What purpose is served by requiring a teenager to register as a sex offender for life? What's that going to do for his education prospects? What's that going to do for his future employment prospects?

All we're doing is guaranteeing he will fail in life. And if he can't get his education, and if he can't find a job, then what's he going to do? If it's all about the kids, what about the kids whose lives are being destroyed before they've even begun?

But you can't reduce that to a soundbite. You can't reduce it to a slogan. It would take some actual thought to understand the irreparable harm we're doing - and no one in the state legislature is willing to do that. God forbid someone criticize them as being soft on crime or coddling child molesters. Mustn't take that risk.

So we force them to register as sex offenders for life.

Mark Chaffin, a professor at the University of Oklahoma, was the co-author of a 2009 report for the Juvenile Justice Bulletin entitled "Juveniles who commit sex offenses against minors." In that report the authors noted that the vast (I might even say "overwhelming") majority of juveniles who committed sexual offenses against minors are never charged with another sex offense.

Similarly, clinical data point to variability in risk for future sex offending as an adult. Multiple short- and long-term clinical followup studies of juvenile sex offenders consistently demonstrate that a large majority (about 85–95 percent) of sex-offending youth have no arrests or reports for future sex crimes. When previously sex-offending youth do have future arrests, they are far more likely to be for nonsexual crimes such as property or drug offenses than for sex crimes. These empirical findings contrast with popular thought and widely publicized anecdotal cases that disproportionately portray incidences of sex crime recidivism. Nevertheless, a small number of sex-offending youth are at elevated risk to progress to adult sex offenses. To identify those who are more likely to progress to future offending, researchers have developed actuarial risk assessment tools that have demonstrated some predictive validity; efforts to refine these tools are underway.

Citations omitted.

Once again I ask the question, what purpose is served by requiring these juveniles to register as sex offenders for life? More importantly, why hasn't anyone in power thought about the long-term implications of sex offender registration?

It doesn't take courage to stand up in front of an audience and announce that you're tough on crime. It doesn't take courage to stand up and tell them that "it's all about the kids." It does take courage, however, to take the time to explain why we need to think about the consequences of the laws we pass today. It does take courage to stand up to stop the madness.

That is one thing sadly lacking in Austin.

Happy Birthday, Guantanamo

2012-01-12T08:00:00.001-06:00

Where were you ten years ago? What were you doing? Who were you hanging out with? What changes in your life have you seen over the last ten years? Who's died? Who's been born?

Think back to January 2002.

That's when President Bush opened Guantanamo Bay in Cuba as a prison for detainees in the War Against ~~Something~~ Terror. That's when he decided to hold those detainees indefinitely without charges, without bail, without trial.

That's when President Bush said fuck the Constitution. And that's when our representatives and senators in Washington forgot all about that oath everyone took to uphold the laws of the United States.

Sure, it's a dangerous world out there. We all know that. But it's been a dangerous fucking world ever since man first decided to walk upright and venture out of caves.

It was a dangerous world long before 9/11. A good deal of that danger we brought about ourselves by meddling in the affairs of other countries.

Just how safer do you feel knowing that your government has been holding people in prison for a decade without ever bringing them to court? Without ever presenting the evidence it claims to hold against them?

Constantly changing security alerts. Scope and grope at the airport. War in Afghanistan. Feeling safer yet?

So, happy birthday, Guantanamo.

Exporting a bad idea

2012-01-11T08:00:00.000-06:00

Even the Chief Justice of the Texas Supreme Court, Wallace Jefferson, thinks issuing Class C citations to students for "disrupting class" is a bad idea.

According to this article from the Guardian, Judge Jefferson thinks introducing children to the criminal (in)justice system is helping drive them to jail. Even the US Attorney General, Eric Holder, thinks it's a bad idea.

It appears that the British government is looking to take cues from the Lone Star State in dealing with juveniles. Crispin Blunt, the UK's justice minister, toured juvenile courts and detention centers in Texas this fall on a fact-finding mission.

Emulating the way in which Texas handles its school disciplinary issues will only succeed in introducing more young people to the criminal (in)justice system. The most common citation issued to students in Texas is "disrupting class." Can you imagine a more nebulous term? What constitutes a disruption serious enough to warrant charging a student with a criminal offense?

Do we really need to make kids miss class to attend court because they spoke out of turn? Because they made an inappropriate joke? Because they insulted another student? Because they took too long coming back from a potty break?

And what are the leaders of the Texas State Teachers Association took no position on the issue when the legislature last debated it. The head of the union said that most of his members are in favor of issuing criminal citations to students.

And what message is that sending? The job of our schools is to educate our youth, not to socialize them in the workings of the criminal (in)justice system. Those who support the current law, and those who take no position, are doing our children a grave injustice.

Instead of looking for excuses to enter people into the criminal (in)justice system, we should be looking for ways to keep them out.

A little shifting of the burden

2012-01-10T08:00:00.000-06:00

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

Words to live by

2012-01-07T08:00:00.000-06:00

I caught this on Moonshiners the other night. Jesse, the Virginia ABC agent was driving around talking about the moonshiner that got away...

"The bad guys gotta be lucky all the time. I only got to be lucky one time."

How true. How very true.

Crisis? What crisis?

2012-01-06T09:00:00.000-06:00

Yesterday my colleague Murray Newman serenaded us with word that there was a serious shortage of grand juries in Harris County because Pat Lykos and her minions dropped the ball.

Murray seemed quite concerned that someone the lack of indictments make cause the sun not to rise or cause solar flares or even cause the hole in the ozone layer to get bigger.

My response? So freaking what?

So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?

We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.

A safer place to live

2012-01-06T08:00:00.000-06:00

In 2006, there were 377 recorded murders in Houston. In 2011 that number dropped to 198 - the lowest per capita number since the early 1960's. The number of violent crimes in the city also declined. Interestingly enough, at the same time the murder rate dropped over 26% from 2010, the economy tanked.

Maybe there's not the relationship we thought between economic conditions and crime. What else might account for the change?

Surely it must be the deterrent effect of the death penalty. That's what the law and order types tell us. You remember the stanza - you let the state kill enough people and the rest of the riff raff will get the message that it just isn't okay to go around killing people.

Only that's not it, either. According to the Texas Execution Information Center, the number of inmates on death row has decreased over the last ten years. Texas murdered fewer inmates in 2011 than in any year since 1996.

I have no idea what accounts for the drop in the city's murder rate. I'm sure there are folks who are combing through data trying to come up with some theory to explain it. For all I know the drought caused the drop. Maybe people throughout the city were more worried about how to maintain some semblance of green in their yards than they were about offing someone who happened to be in the wrong place at the wrong time.

A little undue influence

2012-01-05T08:00:00.000-06:00

The big political story Wednesday was Mitt Romney's "victory" in the Iowa caucuses. But with only 24.6% of the delegates, that means 75.4% of the delegates wanted someone other than Mr. Romney. The big winners would seem to be Rick Santorum who picked up 24.5% of the delegates and Ron Paul who garnered 21.4%.

Let's face it, Mr. Santorum is nobody compared to the machine the Romney operates. Romney spent enough money in Iowa to fund a Third World dictatorship while Mr. Santorum spent just a little over a million dollars. At the same time, Ron Paul, whose views are, shall we say, just a bit out of the Republican mainstream, came in a strong third.

I'm not interested in the fact that Mr. Romney beat Mr. Santorum by all of 8 delegates. I'm more interested in how he won by only 8 delegates.

And just why does Iowa get such disproportionate influence when it comes to picking a president? It's not like Iowa is in any way representative of the nation's population.

Iowa is 61% urban while the US is 82% urban.

Iowa is 91.3% white while the US is 63.7% white.

African-Americans make up only 2.9% of the Iowa population versus 12.2% of the US population.

And it's not like New Hampshire is any more representative.

And that's the way the syndicate rolls

2012-01-04T08:00:00.000-06:00

I'm currently in trial down on the island and my brain is fairly fried by the time I sit down to work after putting my girls down for the night. I had a picture of the sun setting over Galveston Bay that I was going to run but, for some reason, my phone has decided not to make that photo available at this time. Ditto for the shot of sunset over Pearland (admittedly not as cool).

Some night in the upcoming week, LSU and Alabama will play (once again) in the "national championship" game staged by the B(owl) C(artel) S(yndicate). Now, if memory serves me right, LSU already beat Alabama this season. And, it seems to me, that game took place in Tuscaloosa.

So what happens if Alabama wins the rematch? Does that make them the best team in the country all of a sudden? Wouldn't LSU have an argument that nothing's been decided? Isn't a loss at home worse than a loss at a neutral site? And what about that little detail that Alabama not only wasn't good enough to win their conference, they weren't even good enough to win their division.

Meanwhile, Oklahoma State beat Stanford the other night in the desert. Oklahoma State beat more ranked teams this season than Alabama. Oklahoma State beat more teams with a winning record than Alabama. Oklahoma State didn't play a lower division team in order to pad their record this season - Alabama did.

What was the difference between the two teams this year? First, Alabama lost at home to LSU while Oklahoma State lost on the road against Iowa State just a couple of days after the coach of the women's basketball team, and one of his assistants, were killed in a plane crash. Think that might've played a role in how a bunch of teenagers played that night in Ames? Second, Alabama began the season ranked higher than Oklahoma State. That was an advantage that the Cowboys could never overcome.

And that brings me to my final point - it's ridiculous that a preseason poll can determine who plays for the national championship at season's end. The voters decide where to rank a team based on how well they played the year before and how well the voter thinks they might play this season. This is college football - not the NFL - and teams undergo drastic change from season to season. Alabama's team this year was a different team than last year's Crimson Tide; and the same applies to Oklahoma State. But this faulty logic is now the basis for Alabama getting an undeserved invite to play LSU while Oklahoma State can only watch.

Book Review: When Capitalism Hits the Fan

2012-01-02T08:00:00.000-06:00

Richard D. Wolff is an economist. Only he's not your father's economist. Dr. Wolff doesn't buy into neo-classical economic orthodoxy. He's proud to proclaim himself a Marxist and he shines the light on the inherent contradictions embedded in capitalism. His new book Capitalism Hits the Fan is a critical analysis of the American economy as it headed into the last recession.

I was listening to excerpts from one of Mitt Romney's stump speeches on NPR the other day and he spoke of how we needed to "modernize" the economy. He wants us to repeal laws and regulations promoting worker safety. He wants to make the labor force "more flexible." He wants to make it easier for companies to pick up and move and leave thousands of folks without work.

How is that modernizing our economy? Mr. Romney, and the offstage chorus of neo-classical economists, want to return to an era when the government stayed out of the labor market. He wants to return to an era in which folks were thankful just to have work and were willing to put up with anything in order to keep that paycheck coming.

As to the bromide that the market knows best - how did that work with the property bubble? What about the high tech bubble? What about the meltdown caused by the sale of derivatives? If the markets were the most efficient method of allocating resources we wouldn't have long-term structural unemployment or millions of Americans without basic health care coverage.

Richard Wolff's is a voice that should be heard. His writing and analysis is a welcome relief from those who espouse rolling back the status quo. Maybe the answer isn't just tinkering with what we've got. Maybe the solution is a complete restructuring.

Bad ideas (still) never die

2011-12-30T17:02:00.001-06:00

Douglas Berman at Sentencing Law and Policy uncovered this article in the Fort Worth Star-Telegram detailing the Tarrant County District Attorney's plan to humiliate those motorists arrested for driving while intoxicated over the New Year's weekend.

Since DA Joe Shannon is into recycling (bad) old ideas from other parts of the state - I thought I would recycle a post I wrote back in December 2009 after the Montgomery County DA's Office thought it would be a terrific idea to post the names of those arrested for driving while intoxicated on Twitter.

When will these clowns grasp the concept that a person is presumed innocent unless the state can prove each and every element of the criminal offense beyond all reasonable doubt? It really isn't that hard to get it.

Here's the updated post. Have a safe holiday weekend and remember that the easiest way to avoid a DWI this weekend is not to drive if you've been drinking.

The ~~Montgomery~~ Tarrant County District Attorney's Office has found a new way to humiliate those unfortunate motorists who have been arrested on suspicion of driving while intoxicated -- they are posting their names on ~~Twitter~~ the DA's website.

~~Assistant~~ District Attorney ~~Warren Diepraam~~ Joe Shannon ~~said~~ believes that the public humiliation should act as a deterrent to others who might get behind the wheel after drinking.

Nevermind that being arrested is a very different thing than being convicted and that a person who's been arrested is still innocent unless proven guilty. And of course the police never make wrongful arrests. ~~And of all people, Montgomery County DA Brett Ligon should know better -- after all, he used to be a criminal defense attorney~~.

My question is should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will Mr. ~~Diepraam~~ Shannon offer a public apology on ~~Twitter~~ the DA's website as well? Even more important, will a person filing for an expunction in ~~Montgomery~~ Tarrant County need to serve ~~Twitter~~ the ISP hosting the DA's website and other social networking sites, or will the judge sign an order requiring the DA's Office to notify those sites to remove all reference to the arrest of that individual?

From a field of nightmares to a field of dreams

2011-12-30T08:00:00.000-06:00

As we wind down the old year and get ready to crank up the new one, the people in Afghanistan are still trying to extricate themselves from the nightmare that was the Taliban regime. And part of that transformation is taking place inside a soccer stadium.

Ghazi Stadium in Kabul is to be the home of the Afghanistan national soccer team.

During the days of the Taliban, Ghazi Stadium was where the regime carried out public executions.

Daud, 40, a driver who only wanted to give his first name, was at the stadium in 1999 when he witnessed the execution of a woman called Zarmeena, who was accused of killing her husband.

Dressed in a blue burqa, she was made to kneel on the field.

"The Taliban got the Kalashnikov, put it behind her head and shot her two times. She fell down on the ground," Daud said. "The crowd went very quiet. It was a strange and dangerous atmosphere. People were shocked and scared. Sometimes I remember that woman — I even dream about it."

But he said he hoped that the stadium, once dirty and littered with bullets, now would be a symbol of hope in the country

"Now the stadium is 100 percent changed," he said.

Sports can divide us, but they can also bring us together. Although the reopening of the stadium is more symbolic than tangible, it is a sign that normalcy may be returning to the country.

Play ball!

Book review: Deadly Spin

2011-12-29T08:00:00.000-06:00

Wendell Potter was the chief PR flak for CIGNA until May 2008 when he walked away. He helped coordinate the health insurance industry's response to the Clinton health care initiative. He was the point man at CIGNA when Michael Moore released his health care expose Sicko. He helped craft the message that the health insurance industry wasn't part of the problem - they were part of the solution.

Now Mr. Potter is a crusader against the ways in which the health insurance industry has restricted and limited coverage for millions of Americans - while at the same time raking in huge profits.

His book, Deadly Spin, is an insider's account of how the health insurance industry works. It's also a tutorial in how to set up public relations campaigns - including the use of so-called "astroturf" groups; that is, groups that appear to be organized on a grass roots basis that are actually fronts for whatever industry is trying to protect its turf.

Mr. Potter thinks that public relations can be a useful, and beneficial tool, when used correctly. He believes that the health insurance industry, and its allies, misused the public's trust and bastardized ethical PR principles in its quest to attain higher profits.

The practices he denounces in the health care industry are the same tactics used in other industries facing regulation. Whether we're talking the soft drink industry, nuclear energy industry, coal industry or any industry facing scrutiny due to concerns over global warming -- the tactics are all the same. Read the book and you'll have more questions anytime you see an ad promoting an industry or decrying increased regulation.

I do think that Mr. Potter is a bit too Pollyann-ish with his belief that PR is a higher calling than just shilling for a company. The entire point of PR is to create an image in the public's eye that your client is a good neighbor, that your client is concerned about the well being of the entire community. Your job is to insulate that client when the shit hits the fan - which it inevitably will at some point.

There are no absolute truths in the PR world. Everything is a shade of grey and the job of the PR flak is to make certain that his client looks good in that shade.

Outsourcing Ron Paul

2011-12-28T13:00:00.000-06:00

As my fellow blawgers Eric Turkewitz, Mark Bennett and the one wearing the mitre hat like to remind us - outsource your marketing, outsource your reputation and ethics.

Ron Paul is (once again) learning this lesson the hard way as words written in the Ron Paul Report back in the late 1980's and early 1990's are coming back to haunt the GOP presidential candidate. You see Mr. Paul didn't write the material in his newsletter, it was written by someone else and Mr. Paul (allegedly) didn't read it before it was released.

Just a little something to think about.

The slowing down of the death machine

2011-12-28T08:00:00.000-06:00

Has the worm turned?

According to Ashby Jones of the Wall Street Journal, the number of new death sentences handed down in the United States is at its lowest level in 35 years. In 2011, there were 78 death sentences pronounced, a decrease of 30% from 2010, and a steep decline from the 224 death sentences handed down in 2000.

There were 43 executions carried out in the US this year, down from 46 in 2010 and from 85 in 2000.

Public support for the death penalty is also dropping. In 1994, 80% of the populace was in favor of state-sponsored killings. That number dropped to 69% in 2007 and to 61% today.

What accounts for the drop?

Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation attributes it to a drop in violent crime. According to the FBI, the number of violent crimes has dropped 35% over the past 20 years. Doug Berman a professor at Ohio State University (and of Sentencing Law and Policy) thinks the decrease is due to the extreme costs associated with death penalty cases.

The Urban Institute conducted a study in Maryland in 2008 and found that a "successful" death penalty prosecution (I would assume that's a euphemism for "conviction") cost taxpayers an average of $3 million while a non-death capital prosecution ran a tab of $1.1 million.

Then there are the lingering concerns that innocent people could be executed. The state of Illinois has abolished the death penalty over concerns that innocent people were on death row. Oregon has imposed a moratorium on executions. New York, New Jersey and New Mexico have all repealed their death penalty statutes.

While cost may influence politicians to reconsider the efficacy of strapping a person to a gurney and injecting poison into their veins, the larger concern to most folks is the possibility that the courts got in a wrong in a given case. While death penalty supporters point to recent exonerations as proof that the system works, most of us recognize that with every death row inmate who is exonerated we have further evidence that our criminal (in)justice system is broken.

Faulty and unreliable eyewitness testimony, junk science, perjury and the weakening of the presumption of innocence have put innocent men and women behind bars. Junk science killed Cameron Willingham. Faulty and unreliable eyewitness testimony killed Troy Davis.

It's time to make the death penalty history.

Rule of law? What rule of law?

2011-12-27T08:00:00.000-06:00

As we approach the end of the year, the World Justice Project has released its Rule of Law Index for 2011. The index is a ranking of 66 nations based on their adherence to the rule of law.

As used by the World Justice Project, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
» The government and its officials and agents are accountable under the law.
» The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
» The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
» Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the communities they serve.

The nine factors considered by the WJP in determining how much a nation adhered to the rule of law are:

Limited government powers
Absence of corruption
Order and security
Fundamental rights
Open government
Regulatory enforcement
Access to civil justice
Effective criminal justice
Informal justice

Limited government powers looks at the "extent to which those who govern are subject to law." In other words, are those in power held legally accountable for their actions?

Absence of corruption would appear to be fairly self-explanatory.

Order and security look at "how well the society assures the security of persons and property."

Fundamental rights looks at the degree to which the government protects fundamental human rights.

Open government looks to the degree to which the law is "comprehensible and its meaning sufficiently clear, publicized and explained to the general public in plain language..." while regulatory enforcement asks how well regulations are "implemented and enforced."

Access to civil justice "requires that the system be affordable, effective, impartial and culturally competent." Effective criminal justice looks to whether the criminal justice system operates impartially while protecting the rights of the accused and accuser.

Informal justice is a measure of "traditional" methods of resolving disputes such as tribal or religious courts and community-based systems.

The data was gathered by use of a general population poll using a sample of 1,000 people in three cities per country (the U.S. was represented by New York, Los Angeles and Chicago); and by a questionnaire sent to "in-country practitioners and academics with expertise in civil and commercial law, criminal justice, labor law and public health."

The United States is grouped together with Canada and Western Europe. Of the twelve nations that make up that group, the U.S. ranked near the bottom, while Sweden and Norway ranked near the top in most categories. This despite our deep seated belief that our nation was founded on the rule of law.

Here are the numbers:

1. Limited government powers... 10th of 12
2. Absence of corruption... 10th of 12
3. Order and security...6th of 12
4. Fundamental rights... 11th of 12
5. Open government... 8th of 12
6. Regulatory enforcement...9th of 12
7. Access to civil justice... 11th of 12
8. Effective criminal justice... 11th of 12

It must also be noted that, when compared with the 66 nations as a whole, the United States ranked in the teens in just about every category; ranging from 12th in open government to 21st in access to civil justice.

Most of the nations in the North America/Western Europe group had poor scores when it came to access to civil justice. Anyone who has ever had to sue someone - or been sued - can attest to the expense involved in getting a case before the court.

The report noted that "there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts."

For a nation that prides itself on its adherence to the rule of law, the results of the survey are surprising. Over the last 40-50 years we have seen our nation devolve into one in which the power and elite are given free passes for criminal conduct while the poor and those without power are made to pay the price for their transgressions.

It's time we return to the day when no man was above the law.

Television show DUI perpetuates the lie

2011-12-26T09:00:00.000-06:00

I finally got around to watching an episode of TLC's new reality show DUI the other night. For those of y'all not familiar with the show, it follows the stories of two people arrested for driving under the influence - from traffic stop to the end of the case.

The first episode introduced us to Cierra and Jimmy, two folks unfortunate enough to find themselves cuffed and stuffed into the the back seat of a police car. Cierra was accused of drinking and driving while Jimmy was accused of driving while high on the hippy lettuce.

Of course we had to ride along with police officers out looking for drunk drivers. Up in Oklahoma it appears that sobriety checkpoints are okey-dokey (so much for the 4th Amendment north of the Red River). A long line of cars sat on the shoulder of a highway in Tulsa as officers approached each car.

Following Cierra we live the nightmare of being arrested and carted off to jail. Answering questions asked by a hostile police officer. The humiliation of being searched and photographed. Calling her mom to get bailed out.

The show ends with both Cierra and Jimmy pleading out their cases - on what appeared to be their first court date. No questioning the legality of the stop. No questioning the validity of the roadside coordination exercises. No challenging any of the evidence. Just walking up, pleading guilty and walking away.

I guess that's the message the cops and producers want to send out - if you're arrested, you must be guilty. We even have both of our stars confessing before the camera.

Jimmy was excited because he got an 18-month deferral, meaning the case would be dismissed if he completed his probation and he could keep it off his record. Of course, since Jimmy was dumb enough to sign the release there is no undoing his arrest and conviction.

Somehow I doubt we'll be getting too many folks on DUI walking out with dismissal forms. A 30-minute time frame with two cases doesn't give much time to discuss much of substance. We'll get to hear each week from an officer telling us that DWI is the worst possible offense a person can commit. We'll see people acting contrite and telling us how the experience changed their lives. But we won't see anyone challenging the evidence. We won't see anyone fighting their case. We won't see anyone who was convicted on the opinion testimony of a police officer. We certainly won't see anyone being acquitted by a jury.

DUI is propaganda. Its purpose is to pound the notion that if someone's arrested they must be guilty into the skulls of its viewers. The goal is to poison the jury pool across the country.

What we really need is a show in which we see officers lying on the witness stand. A show in which we see officers making questionable arrest decisions. A show in which we see the shortcomings of the state's breath test machine. A show in which we see how the Constitution has been subverted in the name of making our streets safer. But that'll never sell.

This Old Courthouse: Harris County edition

2011-12-26T08:00:00.000-06:00

Sadly one of the lasting legacies of Houston is our propensity to tear down anything that's older than we can remember. Developers in this town aren't too fond of old historic properties (the famous Shamrock Hotel below is Exhibit A).

In 1910 a courthouse was built in downtown Houston to house the civil and criminal courts. By 1940 they ran out of room and began looking for additional space. In 1954, a new criminal courthouse was built across the street (now the juvenile courthouse). In 1999 a new criminal courthouse was built and just a few years ago a new civil courthouse was erected. The 1910 courthouse was left without a tenant.

But someone had a pretty damn good idea. Why not restore the old courthouse to its original splendor? Why not move the 1st and 14th Courts of Appeals from their generic quarters at South Texas College of Law and put them in the old courthouse?

While I was in law school I worked as a clerk for a civil firm. I spent a good deal of time the old courthouse (before the new one opened). It was, in a word, ugly. There were a few hidden gems but, for the most part, all the cool stuff had been sheetrocked over.

The results of the renovations are stunning. The courthouse was built in 1909-1910. It was designed by Charles Erwin Barglebaugh in the Classical Revival style. As part of the renovations, the entrance was returned to the 2nd floor and marble was put back on the walls.

The view from the northeast.

Here's a closer look at the facade along San Jacinto.

These stairs lead to the new entrance on the 2nd floor. The 1st floor takes you into the tunnel system.

Looking up at the rotunda. This picture doesn't give it justice.

And looking down from up high. This shot gives you a good idea of just how much marble was used in the project.

This is the view from the balcony of one of the Courts of Appeal (I'm sorry, it's been a while and I didn't make a note of which court I was in). I think balconies in courthouses are awesome.

We joke from time to time about how badly the government screws up construction and renovation projects. Well, this time they got it right. The 1910 Courthouse is a work of art.

Merry Christmas

2011-12-23T08:00:00.000-06:00

In the spirit of the holidays, I thought I'd run this e-mail my dad sent me a few days ago.

In the meantime... go spend some time with your family and friends, relax with a good book, run around in the backyard with your kids or just sit back and recharge your batteries.

CHRISTMASLIGHTS

Hi Sweetheart,
  I am sorry about getting into an argument about putting up the Christmaslights.
  I guess that sometimes I feel like you are pushing me too hard when youwant something.
  I realize that I was wrong and I am apologizing for being such ahard-headed guy.
  All I want is for you to be happy and be able to enjoy the holidayseason.    Nothing brightens the Christmas spirit like Christmas lights!
  I took the time to hang the lights for you today and now I will be off togo hunting.
  Again, I am very sorry for the way I acted yesterday.
  I'll be home later.
  Love you.

EU to ban export of execution drugs

2011-12-22T09:00:00.001-06:00

States wishing to murder inmates in the US will now have a harder time restocking their medicine cabinets with lethal drugs thanks to the European Union.

The European Commission said Tuesday it would strengthen export controls on the sale of sodium thiopental, a sedative used as part of a lethal injection combination, as well as other drugs that could be used for executions. The commission said it wanted to "prevent their use for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment."

The immediate effect will be to cut off the supply of so-called "short and medium acting anesthetics." That means no more pentobarbital or sodium thiopental will be shipped to prison officials.

Some states have been stockpiling the lethal drugs in the face of export controls imposed by other countries and licensing agreements required by manufacturers. Of course prisons have been able to purchase the drugs through back channels - even though that would appear to violate federal laws that make it illegal to sell a drug for "off label" purposes.

The alternative for states is to use other drugs as part of the lethal cocktail, but such a move would precipitate new legal challenges under the Eighth Amendment.

The death penalty is an anachronism whose time has come and gone. Whether it is abolished by statute, court decision or the realities of the modern-day marketplace, the state-sponsored killing of inmates is dying a slow, lingering death.

Book review: With Liberty and Justice for Some

2011-12-22T08:00:00.000-06:00

In his book, With Liberty and Justice for Some, Glenn Greenwald blows hole in the myth that ours is a nation in which the rule of law is sacrosanct. From high crimes in the White House to fraud in the financial sector to our two-tiered justice system, the rule of law seems a quaint reminder of the long distant past.

Richard Nixon obstructed justice. Richard Nixon was part of a conspiracy to commit a felony. Richard Nixon should have faced not only impeachment, but indictment, for his acts while in the White House. But Gerald Ford didn't see it that way and pardoned the disgraced former president before the criminal (in)justice system could get its hands on him. Mr. Ford told the public that we needed to look forward rather than backward.

Just try telling that to a prosecutor or judge the next time you appear in court with your client accused of committing a crime (in the past). How far do you think that'll get you?

Oh, but the legacy of Gerald Ford lives on.

You remember the Iran-Contra affair, don't you? You remember how under Ronald Reagan a secret structure was erected that sold weapons to Iran and then took the proceeds and funnel them to the right-wing paramilitaries fighting the Sandanista government in Nicaragua? You remember that the Congress had outlawed the funding of the contras? You remember that little concept called checks and balances - where the President asks Congress for money and Congress decides how much to give and for what?

The scheme was patently illegal and Mr. Reagan was complicit. Yet what did George Bush (the elder) do once Reagan's underlings started getting indicted? That's right, he pardoned them. He shielded his former boss from the scrutiny of prosecutors.

Fast forward to the presidential campaign in 2008. Then-senator Barack Obama exclaimed that he would never immunize the giant telecoms for their role in carrying out President Bush's (the younger) illegal domestic spying plan. He also stated that those responsible for the gross violations of human rights carried out in the aftermath of 9/11 should be brought to justice. But, once the nomination was sewn up, Mr. Obama voted to immunize the telecoms; and, once ensconced in the Oval Office, Mr. Obama blocked any efforts by Congress or the Justice Department to investigate President Bush and his minions for torture and other violations of international law. Why? Because it was more important to look forward than backward.

The President of the United States has the duty to see that the laws of the nation are enforced. He also has an obligation to follow those laws. The idea is that no one, not even the president, is above the law. That's what the whole concept of the rule of law boils down to.

But, in these United States, if you sit in the Oval Office, if you run a major financial corporation or if you have money, power and influence, you are above the law. And that's the ultimate betrayal of the principles upon which this country was formed.

Police attack protesters in San Antonio

2011-12-21T09:00:00.000-06:00

The Alamo? Forget about it.

Police in San Antonio shut down the Occupy! protest in HemisFair park on Monday, arresting at least five protesters and hitting a legal observer with a patrol car.

Unlike protesters in other cities, the protesters in San Antonio complied with the demands of the police and the city during the occupation, which began on October 6.

But, citing the default explanation - unsanitary conditions - the police gave protesters 15 minutes notice on Monday before shutting down the camp. Steven Baum, commander of the park police, first said protesters were being evicted because they violated the city's no camping ordinance, but later said the city had to prepare the park for a New Year's Eve celebration.

Baum said the group was asked to relocate so that preparations can be made for "Celebrate San Antonio", the city's annual New Year's Eve bash.

"We have the fencing coming in today," he said. "We have other operations that are going to come in to build up toward the celebration."

Meanwhile, Carlos Villalobos, a legal observer with the National Lawyer Guild from Houston, was struck by a police car. Officers on the scene refused to call for help, identify the officer driving the car or take a report. Park police chief William McManus denied Mr. Villalobos had been struck and claimed that he had thrown himself in front of the police car.

Mr. Villalobos was transported by friends to a local San Antonio hospital for treatment.

The use heavy-handed police tactics on nonviolent protesters is an abomination. That local governments go along with, and sanction, the use of violence on the part of police is criminal. We may have the First Amendment to protect us, but the price of dissent is certainly not free. Just ask protesters in New York, Oakland, Los Angeles, Philadelphia, San Antonio, Houston...

A demotion

2011-12-21T08:00:00.001-06:00

Now, lest anyone think I'm biased with regard to the unmitigated disaster known as the HPD breath alcohol testing van (BAT van) program, I am now giving the Harris County District Attorney's Office a little equal time.

This is a statement from the DA's Office dated November 8, 2011 addressing concerns raised about the program:

To the citizens of Harris County,

As many of you know, there have been several news stories regarding the Houston Police Department’s Breath Alcohol Testing (BAT) vans, the evidence they provide, the technicians who perform the work and the Harris County District Attorney’s Office (HCDAO).

A technician, who is a former employee of the HPD crime lab and supervised the BAT van testing, testified on July 27 and 28 that she believed it is possible that the breath tests conducted by the HPD BAT vans could be problematic.

August 4, representatives of the HCDAO notified the Scientific Director at the Texas Department of Public Safety—the authority that develops rules and regulations and provides training and laboratory support to local, state and federal authorities for breath alcohol testing throughout the state—of her claims.

August 11, in a meeting between HCDAO and the technician she stated that she could not verify the accuracy of results of an intoxilyzer instrument that had previously experienced overheating in a HPD BAT van. She said that she could not testify to the accuracy of such intoxilyzer results because this issue had never before been scientifically tested.

August 12, the HCDAO issued a Brady Notice to attorneys to inform them of the potentially exculpatory, or mitigating, evidence raised by the technician and to not allow any HPD BAT van cases to be resolved unless the defendant is made aware of the technician’s comments.

Additionally on August 12, the Harris County District Attorney’s Office requested that the Texas Department of Public Safety’s Breath Alcohol Laboratory conduct scientific tests on the HPD BAT van and the intoxilyzer instruments.

August 23, representatives from the Harris County District Attorney’s Office met again with the technician. At this interview the technician said she believed that all breath tests conducted by the HPD BAT vans dating from summer 2009 - present were suspect because she believed HPD BAT vans were an unsuitable testing location. August 24, the HCDAO distributed a second Brady notice to attorneys alerting them to the technician’s comments.

The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations .

October 28, a DWI jury trial was held in a County Criminal Court where evidence was presented in open court about the reliability and accuracy of the HPD BAT vans. The defense presented their position on the reliability of the HPD BAT van instruments. After hearing all the evidence, the jury returned a verdict of guilty.

It is our duty to see that justice is done and to protect the lives, property and rights of our citizens. We respect the rule of law and strive to always do the right thing.

The "technician" referred to is Amanda Culbertson, the former technical supervisor in the HPD crime lab. The statement from Ms. Lykos' office is an interesting exercise in the use of language. Ms. Culbertson is a technician, but the DPS personnel who conducted tests on the breath test machines are scientists.

However, prior to Ms. Culbertson's leaving the crime lab, prosecutors delighted in touting Ms. Culbertson's professional qualifications. She was the scientist in charge of maintaining the machines. According to the Texas Department of Public Safety, she was a forensic scientist. Before a breath test result could be entered into evidence, Ms. Culbertson had to testify that the machine was working properly and that it was reliable.

Now that she's raising concerns over the reliability of the testing program she is a mere technician. According to the Collins English Dictionary, a technician is "a person employed in a laboratory... or scientific establishment to do practical work." In other words, a mere button pusher.

So, in recent weeks we've been told that HPD isn't trustworthy and that the person who maintains the breath test machines is doing "practical" work. Any more gems for us, Ms. Lykos?

Don't let the distractions fool you

2011-12-20T13:30:00.000-06:00

State District Judge Susan Brown has decided not to compel Assistant Harris County District Attorney Rachel Palmer to answer questions from a grand jury investigating HPD's trouble BATmobile program. The decision means that the special prosecutors in charge of the investigation can either offer Ms. Palmer immunity to testify or proceed without her testimony.

As my colleague Mark Bennett so eloquently wrote the other day, if Ms. Palmer were going to testify, that testimony would be immunized, either by act of the special prosecutor or through the Fifth Amendment's prohibition on forced self-incrimination.

Jim Mount, one of the special prosecutors, should grant Ms. Palmer immunity in exchange for her testimony. That will put Ms. Palmer in the position of either testifying or risking being jailed for contempt.

The question still remains whether Ms. Palmer was protecting her own backside or trying to protect someone higher up the food chain at 1201 Franklin.

Ms. Palmer's grand conspiracy theory from Monday's proceedings may give us a hint at the answer. On Monday, during a hearing on her motion to recuse Judge Brown, Ms. Palmer claimed that Judge Susan Brown, her husband, Judge Marc Brown and special prosecutor Stephen St. Martin were engaged in a conspiracy to unseat Harris County DA Pat Lykos. As an aside, Ms. Palmer is married to local GOP bigwig Don Hooper.

Ms. Palmer, and the cabal in the DA's office, want you to believe that the entire investigation is politically motivated. They want to distract your attention from the ways in which prosecutors in Harris County violated the Constitution and the due process rights of people charged with driving while intoxicated. They don't want you to focus on the junk science behind the breath test machine. They don't want you to pay attention to Brady violations. They certainly don't want you to think about state experts committing perjury on the stand when testifying as to the reliability of the breath test machines in the vans.

Perhaps someone on the sixth floor of the Harris County Criminal (In)justice Center needs a refresher course in the special ethical responsibilities of a prosecutor - namely, to see that justice is done.

Mr. Bluebird on my shoulder

2011-12-20T09:00:00.000-06:00

A little birdie mentioned that a certain judge in Galveston County may be getting a particularly nasty Christmas present this year.

Off with her head!

2011-12-20T08:00:00.000-06:00

The Salem witch trials live on... in Saudi Arabia.

On Monday, Saudi authorities beheaded a woman who had been convicted of practicing witchcraft. Her crime, apparently, was bilking people out of money promising she could cure their ills.

According to Amnesty International, sorcery is not a capital crime, but some conservative clerics have urged that the penalty be death in order to discourage others from practicing. According to the BBC, the woman's conviction was upheld by Saudi Arabia's highest court. But that still doesn't explain why she was executed.

It is a fundamental tenet under the rule of law that the accused be made aware of both the charges levied against her and the possible range of punishment. A court isn't free to set its own range - it must adhere to the statutory scheme. Obviously if the death penalty is levied for a non-capital crime, the rule of law has been cast aside. And, without the rule of law, we are left with a bunch of thugs ruling by force.

Yet we continue to send millions of dollars a year to the Saudi regime so that it can continue to put folks to death for minor crimes on the whim of a handful of clerics. Executing someone for the crime of theft - and that's all this was, religious mumbo-jumbo aside - is both cruel and unusual and should be condemned.

Along the same lines, the Chinese government just murdered a South African national caught with three kilos of methamphetamine back in 2008. In China, drug trafficking is a capital crime - the Chinese execute more drug traffickers in a year than the rest of the world kills for all other crimes.

Drug abuse is a scourge. Those suffering from addiction harm themselves, their families and those around them. But drug traffickers are fungible. So long as there is a demand, there will be a supply.

Taking a person's life is the ultimate sanction that a state can impose on any individual. It is the antithesis of limited government. It solves nothing. It doesn't bring anyone back or put the genie back in the bottle.

It's just an exercise in control. It's the way the state reminds you just who's really in charge.

This Old Courthouse - Williamson County edition

2011-12-19T08:00:00.000-06:00

I had occasion recently to travel up to Georgetown, Texas to handle a criminal matter for a long-time client of mine. I thought I'd take the opportunity to snap some photos of the courthouse.

For those of y'all who aren't familiar with the area, Williamson County is just north of Travis County. The two largest cities are Round Rock (home of the Express) and Georgetown (the county seat). Georgetown is also the home of Southwestern University. Williamson County is also the home of John Bradley (you remember him, he's the person Gov. Perry appointed to derail the state forensic science commission from investigating the evidence used to convict Cameron Willingham).

This is the front of the criminal courthouse as you walk up MLK. I was quite disappointed when I saw it was built in the generic-office style. The landscaping was nice, though.

This is the front door. But for that, you'd never know it was a courthouse.

This is the hallway on the second floor. I think you could land a small plane in there.

But this is the real treasure of Williamson County - the old civil courthouse. It was built in 1911 in the beaux-arts style. Charles H. Page was the architect. In 2005 the courthouse was restored to the way it appeared in 1911.

Here's a look up through the trees.

Feds call for ban on cell phone use

2011-12-17T09:00:00.000-06:00

In the wake of a deadly accident involving two school buses, a pickup truck and a tractor-trailer in Missouri last year, the National Transportation Safety Board has called for a ban on the use of cell phones by drivers. The ban would affect both hand-held and hands-free phones and is more stringent than most state bans on the use of electronic devices while driving.

In the last few years the board has investigated a commuter rail accident that killed 25 people in California in which the train engineer was texting; a fatal marine accident in Philadelphia in which a tugboat pilot was talking on his cellphone and using a laptop; and a Northwest Airlines flight that flew more than 100 miles past its destination because both pilots were working on their laptops.

It's probably not a bad idea. My wife likes to tell me that women can multitask while men can't (I then respond that I'd rather be doing one thing well than a bunch of things half-assed, but that's a discussion for another day). The truth of the matter is that there is more than enough stuff in a car to distract us from the task at hand. Whether it be adjusting the radio or CD player, checking out the GPS, turning the a/c up, adjusting the side mirrors, shifting gears, talking to your passenger or trying to keep the kids in the back seat from killing each other, it's hard to keep your focus on the road in front of you. And then you have to keep an eye on the other motorists, watch out for people coming out of parking lots and look to see what color the traffic light is.

All it takes is a split second for your pleasant afternoon drive to turn into a nightmare - and that's without any alcohol being added to the mix.

While I don't think this is a matter for los federales, it is an issue that should be considered by the states. To date, 35 states have banned (to some degree) texting while driving. Now whether that includes updating your Facebook status or tweeting, I don't know.

According to the NTSB, about 1 in 100 drivers is texting, surfing the internet or otherwise using an electronic device while driving. They know this because they stake out intersections and count the number of drivers using their phones while driving.

So, be careful out there and leave the phone in the seat unless it's an emergency.

Now let's see what the Mythbusters discovered when they compared distracted driving with drunk driving...

Part One: Control

Part Two: Distracted driving

Part Three: Drunk driving

I'll have a fifth, please

2011-12-16T09:00:00.001-06:00

On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.

The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.

Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?

And how might her answering questions incriminate her?

Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?

However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.

I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?

See also:

"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)

Should DWI be a capital crime?

2011-12-16T08:00:00.000-06:00

Douglas Berman over at Sentencing Law and Policy seemed quite upset that motorists in Texas continued to get behind the wheel of a car after drinking. He couldn't understand why, even with No Refusal weekends popping up all across the state, we insist on drinking and driving.

His suggestion was to make a drunk drivers involved in accidents in which another person is killed eligible for the death penalty. Whoa! There's crazy and then there's driving the bus over the cliff. Mr. Berman is driving the bus.

In Texas you are eligible for the needle if you kill a police officer or a prison guard. You are eligible for the needle if you kill someone during the commission of certain felony offenses (kidnapping, robbery, sexual assault, burglary or arson - among others). You are eligible for the needle if someone paid you to kill another person. You are also eligible if you kill more than one person or a child under the age of ~~six~~ ten (thanks, Amy).

In each instance, the defendant must have committed the murder - or the underlying felony offense - with the proper mental state. You remember, that whole bad act + bad thought = crime.

Now Mr. Berman is correct that some DWIs are prosecuted as felonies. If you are driving while intoxicated with a child under the age of 15 in the car - that's a state jail felony (if you're not from Texas, don't ask). Rack up two DWI convictions and your next will land you in felony court as well.

But here's where Mr. Berman's idea fails - there is no culpable mental state for driving while intoxicated. The theory is that an intoxicated person cannot form the necessary mental state to commit a felony offense. And, if you think about the definition of intoxication in Texas, it makes sense.

Texas defines intoxication as the loss of the normal use of one's mental or physical faculties by the introduction of alcohol into the body. Well, if you've lost the normal use of your mental faculties, you are incapable of intentionally or knowingly committing any other act. That's why when someone is killed in a wreck involving an alleged drunk driver, the defendant is charged with intoxication manslaughter, not murder.

One thing we don't know from the data Mr. Berman is viewing is how many of those deaths in 2010 were the result of the drunk driver's negligence. As perverse as it sounds, it's quite plausible that the drunk driver was not at fault for the accident. I would also argue that it's possible that the increased number of deaths resulting from drunk driving has more to do with increased detection through the use of mandatory blood draws in fatality accidents in which intoxication is suspected.

I don't know whether Mr. Berman was being extreme in order to generate discussion or whether he actually feels that way; either way, as a civilized society we should be looking for ways to reduce the number of people our government kills, not increasing it.

'Tis the season to give

2011-12-15T09:00:00.000-06:00

If you're planning on drinking and driving over the holidays, you might seriously think twice. More and more counties will be conducing No Refusal weekends over the holidays.

The popularity of the initiative is no surprise given that most no-test drunk driving trials are a coin flip proposition. Add in a number on a piece of paper and, suddenly, the success rate for the prosecution soars. That number can be scary.

The attraction for law enforcement and prosecutors is that blood evidence is a powerful tool in front of juries. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90 percent of drunk-driving cases, said Houston police Capt. Carl Driskell, who works in the traffic enforcement division.

And often, lawyers say, defendants faced with blood evidence admit their guilt and don't bother with a trial. "If it bleeds, it pleads," said Fort Worth prosecutor Richard Alpert.

But, it's only a number.

Blood tests are conducted by unbiased scientists wearing white lab coats. They're performed by employees of law enforcement agencies. The very people who are trying to convict your client are the ones performing the tests.

Just think about that for a second. Think about that before you walk your client up to the bench to plead out the case. You don't accept the officer's opinion that your client was intoxicated. You don't accept the premise that the coordination exercises he performed at the scene are conclusive proof of anything. But you will accept a number on a piece of paper signed by a lab technician in the employ of the crime lab or the DPS as proof positive that your client is up a creek without a paddle.

You realize they didn't even test the blood itself?

What? You didn't know that? Remember all that talk about Henry's Law with the alcohol jar attached to the back of the breath test machine? Remember that machine supposedly measured the amount of alcohol vapor in your client's breath? It was an approximation of an indirect measurement.

Guess what. That's all a blood test is. After they mix a bunch of chemicals and salt into the blood sample, the lab tech takes out a sample of... air. That's what's being sent through that fancy gas chromatograph. Not blood - air. It's as much an indirect measurement as a breath test.

Prosecutors around the state push for No Refusal weekends because they know that most defense attorneys will crumble when they see the number. Put the state to its burden. Force the prosecutor to explain to a jury how the machine works. It's only a number.

Shooting the messenger

2011-12-15T08:00:00.001-06:00

Bradley Manning is not a criminal.

He should be praised for shining a light on the underhanded dealings of our government. Instead, he's facing a court martial.

The material he provided to Wikileaks didn't endanger the lives of any Americans. But it sure as hell did embarrass the government. Through his actions he exposed the ways in which the United States government lied both to the American people and its allies.

The cables and correspondence documented the ways in which our government committed war crimes and violated international law. Our government armed repressive governments world wide and turned a blind eye when the weapons were turned on their own people. Our government bombed civilian targets. Our government tortured detainees who have never been charged with a crime.

We condemn those around the world who act in the very manner our government acted.

Sure, it's a dangerous world out there - it's always been a dangerous world - but that doesn't excuse our leaders from breaking the law. Ronald Reagan, George Bush (the elder), Bill Clinton, George W. Bush and Barack Obama are all complicit in atrocities committed against the poor and powerless. Yet none of them will ever be called before the people to answer for their crimes.

Grand jury subpoenas top county officials in DWI probe

2011-12-14T09:00:00.000-06:00

Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...

The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.

First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.

Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.

The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.

Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.

Eyes in the sky

2011-12-14T08:00:00.000-06:00

Law enforcement officials in North Dakota are the first in the nation to admit to using unmanned Predator drones to conduct surveillance flights. The aircraft are able to fly two miles overhead for hours at a time, allowing police a better opportunity to spy on folks - even without a warrant - without being detected.

A helicopter flying overhead is easily detectable. The helicopter has to fly low enough for those on board to see the target of their curiosity. The sound of the engine is more than enough to alert folks that there are spying eyes in the sky. The same holds true for police airplanes - they are noisy and easy to spot.

The unmanned drones allow the police to monitor a location for hours at a time with no warning to those on the ground below.

What's the big deal, you might ask. If I'm not doing anything untoward in my backyard, why should I care if the cops are flying two miles overhead with cameras and sensors pointed toward me?

It has to do with the way in which "unreasonable" has been defined and redefined over the years. The Founding Fathers were pretty clear in what they meant in the Fourth Amendment - if the police didn't have a warrant, the search was unreasonable. But, over the years, the courts have rendered that term damn near meaningless. In the name of security and efficiency, what was once patently unreasonable has now become the norm.

There were no airplanes or helicopters, much less unmanned drones, back in the late eighteenth century. The authors of the Bill of Rights had no inkling of what the Wright Brothers would do at Kitty Hawk. They had no idea what exotic technology we would have at our fingertips in the early twenty-first century.

Any tool that allows the state to snoop on what you're doing behind closed doors (or a gate) is yet another way for the state to deprive you of your right to be left alone. It is another fundamental assault of the notion of limited government - of course you'll never hear Rick Perry, Newt Gingrich or any of the other wingnuts decry the use of the technology.

Less and less of what we do every day is private. The state has no business snooping on its citizens. If they think someone's up to something no good, convince and judge and get a warrant.

In the meantime... smile, you might just be on candid camera.

Two more Occupy! encampments shut down

2011-12-13T08:00:00.000-06:00

Encampments in Boston and San Francisco were the latest targets for police raids in the ongoing fight to shut down the Occupy! protesters across the country.

Boston Mayor Thomas Menino, who ordered the encampment shut down, did offer this doublespeak when questioned:

"In the interest of public safety, ultimately we had to act. We did so with patience and respect. I also want to recognize the people of Occupancy, Occupy Boston, they shined a much needed light, still needed, on the growing economic inequality in this country. In the end, they also acted with restraint. I thank them for that."

That seems the equivalent of saying "Goodbye, and don't let the door hit you," as you slam it shut.

In San Francisco, the cat-and-mouse game between protesters and police continued when the newest encampment was raided on Sunday morning.

What else could have gone wrong?

2011-12-12T09:00:00.000-06:00

Yes, Ronald Ray, the state does bear the burden of proving your client guilty beyond all reasonable doubt. You are correct, sir, in your assertion that your client is presumed innocent unless the prosecution can meet its burden.

But to have your client convicted of an armed robbery while he was behind bars as a guest of Harris County is beyond comprehension. As Mark Bennett wrote,

This is what generally happens when the defense relies on the presumption of innocence: the government proves the defendant guilty. So unfair!

And that's exactly what happened.

Mr. Ray never bothered to investigate his client's case. A simple check of the District Clerk's website would have indicated that his client had been in jail at the time of the alleged offense. Hell, your client could have told you he was in jail.

It's shameful that your client's father is the one who found out his son was incarcerated at the very moment that someone else claimed he was robbing a store.

My colleague, Jackie Carpenter, has her own take on the matter. She even included a photograph of Mr. Ray and "Rev." Johnny Jeremiah. For those of you who don't practice in Harris County, the "good reverend" is quite the notorious case runner. I don't know how much the family paid Mr. Ray - and I don't know how much Mr. Ray paid Mr. Jeremiah for the referral - but it was hardly worth it now, was it?

After an agreed motion for new trial was granted and the charges dropped by the state, State District Judge Mark Kent Ellis told everyone present that he was dismayed by what had happened.

"It boggles the mind that neither side knew about this during trial," Ellis said. "Both sides in this case were spectacularly incompetent."

It doesn't matter what the prospective jurors tell you during voir dire. It doesn't matter when they nod their heads when the judge tells them that the defendant is innocent and that he has no burden of proof. Forget about the jury instruction that tells the jurors the presumption of innocence alone is enough to acquit the defendant.

Your client did something. Otherwise he wouldn't be sitting at that table with you in front of the judge. Whether you like it or not you've got to overcome that presumption. To base your entire trial strategy on the presumption of innocence is, at best, naive and, at worst, incompetent.

Coogs done in by a weasel

2011-12-12T08:00:00.000-06:00

Kevin Sumlin is the latest weasel coach in college football. While his charges, the University of Houston Cougars, were preparing to play in (perhaps) the biggest game in school history, Mr. Sumlin was working on his exit strategy from Cullen Boulevard.

The Cougars had just completed the first perfect season in school history and were hosting the Southern Mississippi Golden Eagles for the C-USA championship. One more win and a trip to lucrative BCS bowl beckoned.

And then the unthinkable happened. The Cougars were blown out in a game in which they were heavily favored. The win sent the Cougars tumbling to a second-tier New Year's Day bowl in Dallas. Instead of millions pouring into the school's coffers, UH will be lucky to break even.

While the players are taught to play to the final whistle and to never give up on the ball, Mr. Sumlin had no problem quitting on his team and hooking up with Texas A&M, who had just fired their football coach after losing to Texas on Thanksgiving night.

In the days following the Cougars' loss, I kept waiting to hear the announcement that Mr. Sumlin was taking his talents elsewhere. I even had a conversation with a friend of a friend who works at UH and he was thinking the same thing. There is little doubt in my mind that Texas A&M already knew that Mr. Sumlin would accept the coaching job when they fired Mike Sherman -- after all, the Ags had been forced to settle on Mr. Sherman after prospective coaches quit answering their phones when Dennis Francione was fired.

You can't serve two masters, Mr. Sumlin. You had a job to do - and while you were supposedly doing it you were working on your next job. You owed it to your players to lead them onto the field against Southern Miss. Only you were thinking about yourself - placing yourself above the team.

You are a weasel, Kevin Sumlin.

Moonshining

2011-12-10T09:00:00.000-06:00

I think I found a new favorite show - Moonshiners on Discovery.

Tim, the protagonist, is the chief of the volunteer fire department and a moonshiner. The cameras follow him as he prepares his operation for moonshine season in the Appalachians.On the other side you have Jesse, an agent with Virginia's alcohol beverage control who's trying to shut down the moonshiners. Jesse and his fellow officers are concerned because the state isn't getting their pound of flesh from the folks distilling whiskey deep in the woods.

And, since Jesse's a cop, he believes that moonshine is a gateway drug into the world of violent crime. I get the feeling that they teach that at the police academy.

It's a fascinating look at a whole different lifestyle.

On secret prisons and shredding the Constitution

2011-12-09T09:00:00.000-06:00

It would appear that the CIA has been operating a secret prison in Bucharest since the days of the Shrub administration.

The prison was used to hold and torture people suspected of terrorism. After the discovery of the basement prison, both US and Romanian officials denied its existence.

Is this what we have become? The US is supposed to be a place where the rule of law is supreme. A place where the Constitution and the Bill of Rights sets limits on what the government can and cannot do. A place where all men are equally presumed innocent before a jury.

But, in the name of security, our government has subverted the Constitution and has declared that the needs of the state outweigh the rights of the individual. Secret prisons. Indefinite detention. Military tribunals.

Is nobody willing to stand up in defense of the Constitution?

The only purpose of having secret prisons is to deny suspects the rights afforded to all of us. You don't need an attorney - all you need is a towel over your head and a steady stream of water. So fucking what if the use of torture against prisoners is outlawed - who the hell knows anyone's there?

I'm fairly certain that a good chunk of the populace doesn't care. They're terrorists - who cares what happens to them. Far too many people buy into the national security state. Far too many people are willing to cede their civil liberties for the illusory promise that the government can keep us safe.

The existence of these secret prisons should bother you. Hell, it should infuriate you. Our government has taken what's left of the Bill of Rights and run it through the shredder. When our government authorizes the torture of an inmate or a detainee or a terrorism suspect (whatever words you wish to use), our government is authorizing the use of torture against you and against me.

Our democracy is only as strong as the laws that constrain the absolute power of the state. There is no check on that power when the government operates in secret. There is no check on that power when the existence of a prison is hidden and denied.

If you don't stand up and demand that our government respect the rule of law, then who's going to stand up when they come for you?

Now, about that separation of powers thing...

2011-12-09T08:00:00.000-06:00

I have spent thirty years in law enforcement in Harris County as a prosecutor and District Court judge.

So begins the campaign rhetoric on Harris County District Attorney-wannabe Mike Anderson's website. I find it interesting that he lumps working as a prosecutor and a judge into law enforcement.

Especially since they're not the same.

Law enforcement is part of the executive branch - the police enforce the laws. The District Attorney's Office is part of the executive branch. The DA's job is to enforce the laws by prosecuting those accused of breaking the law.

But judges aren't supposed to be part of law enforcement. Judges are part of the judicial branch. The job of a judge isn't to enforce the law, the job of a judge is to interpret the law and to preside as a neutral and detached referee at trial. The judiciary is supposed to act as a check on the power of both the executive and legislative branches.

Mike Anderson, like too many men and women sitting on the bench today, confused his role. He thought himself a prosecutor in a black robe (or, as Mark Bennett would say "dress"). He refers to himself as a "strong law and order judge." That, of course, means that he came down on the side of law enforcement, ignoring the "testilying" that takes place on witness stands throughout the Harris County Criminal (In)justice Center on a daily basis. That means he ignored allegations of police brutality and racial profiling.

If you're a prosecutor there's nothing wrong with that. Prosecutors are advocates. But, if you're a judge, that attitude indicates an abdication of power.

Mike Anderson never left the Harris County District Attorney's Office - he just transferred to a different division.

A couple of questions for Mike Anderson, please

2011-12-08T09:00:00.000-06:00

Okay, Murray, I took a look at Mike Anderson's website. I had to because I had a couple of questions for the prospective District Attorney that I thought needed answering, so I e-mailed him:

Mr. Anderson,
I understand that you are opposed to the current DA’s policyof not prosecuting “trace” possession cases. If you were going to pursue thosecases, how would your office handle the problem of having enough of a samplefor defense attorneys to have re-tested?

Additionally, if these cases are to be prosecuted, wherewould you find the beds and the money to house the additional inmates?

Furthermore, as the “War on Drugs” has largely been afailure, how will locking someone up help that person to get over their drugaddiction?

I will be more than happy to run your answers in my blog, TheDefense Rests, unedited. I look forward to your response.

It's easy to offer criticism of another's approach to any problem, it's much harder to formulate a proposed solution. I would like to hear Mr. Anderson's ideas on how to handle residue cases. I would like to hear that he's thought beyond the knee-jerk "lock 'em all up!" approach.

KPFT presents Greg Palast - tonight

2011-12-08T08:00:00.000-06:00

Greg Palast, the author of Vultures' Picnic and The Best Democracy Money Can Buy will be appearing tonight at a fundraiser for local public radio station KPFT. The presentation is at Fondren Hall at St. Paul's United Methodist Church located at 5501 Main Street in Houston. Admission is $10 and the show begins at 7pm.

The cost of thinking outside the box

2011-12-07T09:00:00.000-06:00

I'm no fan of Pat Lykos.

Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.

But there are a couple of areas in which Ms. Lykos got it right.

Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.

Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.

"No one respects law enforcement more than I do, but they're wrong about this. I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs." - State District Judge Michael McSpadden

There are far too many folks in the Harris County Jail on possession cases. There are far too many folks in the penitentiary on possession cases. Most of these people are addicts. Locking them up in jail does no one any good. The addicts aren't receiving the treatment they need and there's no room in the inn for those who really need to be put away.

No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.

Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?

Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.

Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.

Limited government? What's that?

2011-12-07T08:00:00.000-06:00

So, Mr. Limited Government, what should we do about the budget shortfall in Texas?

Cut funding for public education, you say. Really? Is that the best option we can come up with? You want to lay off teachers and ease up on class sizes? What kind of message does that send out?

How about reducing the amount the taxpayers spend on security details for the governor when he's not conducting state business? You know, set an example.

In September 2011, Gov. Rick Perry spent almost $400,000 on security details traveling around the country sticking his foot in his mouth and coming in below "Other" in the polls. Since his reelection in 2010, Gov. Goodhair has racked up more than $750,000 in security expenses for his travels outside the Lone Star State.

If Gov. Perry is willing to be so hypocritical when it comes to spending your money, just what the hell do you think you're in store for if he makes it to the White House? He is more than happy to spend your money chasing a pipe dream but he can't be bothered to find money to restore funding to public schools.

So, Gov. Perry, why don't you take a few minutes and explain to us your vision for limited government?

P.S. I understand how you might need to wait for your speechwriters and press people to stop by and drop off your talking points because God knows it's hard work making George W. look like a genius.

In the eye of Newt

2011-12-06T09:00:00.000-06:00

Back in December of last year I wrote a post about a conservative group that recognizes the current right wing mantra of "lock 'em all up," isn't working. The name of the group was Right on Crime. And who is one of the people behind Right on Crime?

If you guessed Newt Gingrich, you are correct.

Only, as the law profs over at Sentencing Law and Policy point out, you'd never know it from the campaign rhetoric.

From the Right on Crime website is a reprint of an editorial written by Mr. Gingrich and Mark Earley about how to cut down on recidivism. I'll include some of the highlights.

If two-thirds of public school students dropped out, or two-thirds of all bridges built collapsed within three years, would citizens tolerate it? The people of Georgia would never stand for that kind of failure. But that is exactly what is happening all across the U.S. in our prison systems.

Last year, some 20,000 people were released from Georgia’s prisons to re-enter our communities. If trends of the past decade continue, two-thirds of them will be rearrested within three years. That failure rate is a clear and present threat to public safety.

Not only is this revolving door a threat to public safety, but it results in an increasing burden on each and every taxpayer.

What those on the right don't seem to realize is that if you want to lock someone up and throw away the key, someone's got to foot the bill. Either you have to spend more money to run the state or you have to find the funds from someone else's basket.

Just as a student’s success isn’t measured by his entrance into high school but by his graduation, and a bridge’s value isn’t measured by its completion but by its long-term reliability, celebrating taking criminals off the street with little thought to their imminent return to society is foolhardy.

The key to public safety and fiscal sanity is not just getting dangerous people off the streets but also making sure that men and women who eventually leave prison have changed and can stay crime-free on the outside.

Another thing the right wingnuts don't seem to think about is what to do with folks once they get out of prison. You can't just turn them back out on the street because they are virtually unemployable due to their criminal record. If you don't offer some type of assistance they will be forced to return to a life of crime just to survive.

Now, of course, the editorial then morphs into an advertisement for (yet another) religion-based organization with its hands out asking the state for funds.

But, aside from the plug, at least someone on the right of the political spectrum is looking beyond mere campaign rhetoric and actually asking how might a problem be solved. I may not care for Mr. Gingrich's politics in general, but, I do applaud his willingness to think outside the box when it comes to the problems in our criminal (in)justice system.

Fight the clutter!

2011-12-06T08:00:00.001-06:00

I know my desk is in there somewhere...

Maybe not quite that bad, but I think it's time for another good cleaning of the ol' office.

Book review: Vulture's Picnic

2011-12-05T08:00:00.000-06:00

Prince William Sound. Southern Louisiana. The Gulf of Mexico. The Caspian Sea. Ecuador. Nigeria.

In his latest book, Vultures Picnic: In Pursuit of Petroleum, Pigs, Pirates and High Finance Carnivores, investigative journalist Greg Palast takes us on a frenzied world tour of the damage wreaked by the oil companies and financial speculators (or thieves, as the case may be).

From Houston to New Orleans to Alaska to Liberia to Switzerland, Mr. Palast does as Woodward and Bernstein were told to do in All the President's Men - follow the money.

What follows is a tale of how transnational capital has decimated the lives of the poor across the planet. The oil companies polluted the people and the environment and the vultures of high finance have swooped in and forced foreign governments to kowtow to the will of their corporate overseers. The result of his investigation will open your eyes and make you think twice about what you think you know.

You'll recall that after the Exxon Valdez ran aground that folks cut up their Exxon credit cards, dipped them in oil and mailed them back. My wife refuses to go to an Exxon station to this day. But guess who was really at fault for the disaster in Prince William Sound. Not Exxon. BP - you know the company that portrays itself as green as a hemp-wearing tree hugger - was in charge of the terminal at Valdez. BP was in charge of ensuring that the clean up equipment was there. But guess what? There was no clean up equipment. But, for the good of the Seven Sisters, Exxon bent over and grabbed its ankles.

After the Transocean disaster in the Gulf, it was BP's turn to grin and bear it. But the boys in green weren't the ones making the decisions out there. All of the sisters were supposed to have a plan in place just in case a deep water well went to hell - and, as you know by now, there was no plan.

But what you probably didn't know is that the Transocean disaster wasn't BP's first rodeo. Out in the Caspian Sea, BP used a nitrogen-concrete blend to seal a well and, let's just say that didn't work out so well. But we're sold the line that what happened out in the Gulf was an accident. Once, my friends, is an accident. Twice is a pattern.

And, if you have trouble staying awake late at night, just read the section on the backup diesel generators at nuclear plants around the world. Here's a hint... Mother Nature wasn't to blame for the meltdown at Fukushima.

Saturday morning run

2011-12-03T09:00:00.000-06:00

While y'all are reading this, I'll be running 31 miles through the woods at Huntsville State Park. Have a great day!

First they came for the (alleged) terrorists...

2011-12-02T08:00:00.000-06:00

On Tuesday the U.S. Senate had the opportunity to put the rule of law ahead of fear-mongering and politics -- and failed spectacularly.

By a vote of 61-37 the Senate defeated an amendment to the defense appropriations bill that would remove three troubling provisions that have raised the spectre of a presidential veto. The bill, if passed, would allow the U.S. to hold those suspected of involvement with terrorism - including US citizens - indefinitely without charge. In other words, forget about that American concept of innocent unless proven guilty; if los federales suspect you're involved in terrorism, you are guilty unless you can prove otherwise.

The bill would also require civilian law enforcement to turn over anyone suspected of terrorist activities into military custody. The bill would also place further restrictions on the transfer of detainees at Guantanamo who were cleared of all charges.

Holding a suspect indefinitely without bringing charges makes a complete mockery out of our criminal (in)justice system. Without being informed of the specific charges against him, an inmate can't muster a legal defense and his right to a speedy trial is taken away. The very notion of indefinite detention should make us all shudder - but it won't. After all, who's going to raise a stink about someone accused of plotting to blow up a building? He's not a person, he's a terrorist. He has no rights.

But once you've demonized one group of defendants, it makes it easier to demonize the next group. And who will that be? And who will stand up to challenge the state then?

Liberty is a funny creature. We all have the right to be left alone by our government. But, at the same time, that means we can't be protected from every possible threat out there. It's a trade-off we make. The more freedom and liberty you have, the less security you get. And vice versa.

What's more important to you?

When we allow the government to take away our rights - no matter how tangentially - we are allowing the fox into the hen house. There will always be a rationale. C'mon, these are really, really bad people.

It's happened to the Fourth Amendment. Where once we were protected against unreasonable search and seizure, today it's little more than a piece of paper. In the name of security and efficiency we have allowed one of our most important freedoms to be whittled away to nothing.

Today it's suspected terrorists. Who will it be tomorrow?

You gotta blame someone

2011-12-01T08:00:00.000-06:00

Last March protesters took to the streets of Bahrain demanding a voice in the governance of the oil-rich kingdom. Imagine that - in this day and age of democracy busting out all over, we have the vestiges of an era in which someone grabbed a bigger stick and declared himself to be king. How could that cause any problems?

As is wont to happen when an authoritarian regime is challenged, the security forces (providing security for whom?) were whipped into a frenzy and went into a murderous rampage against their own citizens. Now let's just think about that for a moment. Armed personnel (thugs?) in the employ of the government are ordered to beat, maim, intimidate and kill anyone who dare speak out against the regime. The same regime that puts on its smiley face and tells the people to be patient - that reform is in the works.

Nope. Wrong answer. What we have is a government that has lost all legitimacy. Once a regime turns its armed forces on its own citizenry, it has lost whatever moral authority it may have had in the first place. And any member of the security forces (or police or army or whatever the hell you want to call the thugs) that follows an order to turn his weapon on a fellow citizen is guilty of a crime.

But there's more. You see the Bahraini government decided that it wasn't enough to beat, maim and kills its own citizens. After all, the victims who were still breathing had to get medical treatment somewhere. With all apologies to Shakespeare, the king decided the first thing he needed to do was kill the doctors.

Punish the doctors, that's right. Forget about the dead and the wounded. Forget about the army pointing its weapons at the people it's supposed to protect (well, that's what we're told the military and police do - in reality their job is to protect the chosen few.)

Twenty doctors, nurses and medics were convicted of inciting the people to overthrow the government and were sentenced to between five and 15 years in prison. Forget about the soldiers that shot, maimed and killed their fellow citizens - they went back to their barracks and got some commendation or ribbon to pin to their uniforms. But the medics who did what doctors do got the whip.

Maybe some of the medics wanted to see the government overthrown. Maybe some were part of the protests. Who cares? They were tried and convicted for tending to the wounded and trying to save their lives. They were punished for treating the citizens who were injured at the hands of their own government.

Bowing to international pressure (and to an international panel's report that found "abuses" in the government's crackdown on protesters -- I guess you could call killing protesters to be abusive. I prefer to call it murder), the medics were retried on Monday.

Maybe the regime tries to make nice and hope everything blows over. But you can't unring the bell. And, no matter how hard you scrub, you can't wash away the blood on your hands.

Surprise! Surprise! Surprise!

2011-11-30T14:19:00.001-06:00

What a shock. The day after the local police unions announce they will not endorse current Harris County DA Pat Lykos in the upcoming election, former judge Mike Anderson announces his entry in the race.

Let the games begin...

Police evict Occupy! protesters in LA and Philly

2011-11-30T09:11:00.001-06:00

The violent crackdown on Occupy! protesters across the country continued in the early hours of this morning as police in Los Angeles and Philadelphia attacked nonviolent protesters.

Officers dressed in riot gear did their job of protecting and serving their corporate masters by storming through the encampments wielding batons and tearing down tents and other structures. The lasting images of these protests will be peace officers attacking citizens for exercising their First Amendment rights of free speech and petitioning the government to address their grievances.

Over the years the police have been used to break up strikes and attack civil rights protesters and anti-war activists. Police brutality is not the work of a few "bad apples," it is part and parcel of the culture of law enforcement in this country.

Scenes from the police raid in Los Angeles.

Philadelphia police clear encampment.

Spamming for dollars

2011-11-30T08:00:00.000-06:00

I received ~~some spam~~ an unsolicited e-mail in my inbox the other day from someone named J. Connor Alexander wanting to write blog posts for me. According to the e-mail, Mr. Alexander has experience writing "snappy" SEO-friendly blogposts and would be more than happy to do the same for me.

Funny, though, that his resume makes no mention of any marketing or SEO jobs.

He also wrote...

In the short time I’ve worked in the legal community I’ve come to understand just how important internet referrals can be to a firm’s bottom line. I’ve seen firsthand several firms start and then tire of their efforts to create and sustain a blog. In short order the business of running the firm invariably takes precedence over the blog. As a result, updates become sporadic and the firm’s web presence diminishes. That’s where I hope to come in. I’d love to see to it that every day/week/month you have a new, engaging, topical, search engine optimized post waiting to be published.

How short a time you may ask? How about he graduated from law school this past May. According to his resume he worked one summer as a clerk during law school and two summers as an undergrad. But in that time he's made these startling discoveries. Hmm. I wonder if Brian Tannebaum would like to take a run at him.

Of course when I googled the good Mr. Alexander I found a blog - that hadn't been updated in nearly a year. Is that the kind of hard work and dedication I should expect from him?

The two blog posts he submitted as samples of his work were, how shall I say, pure drek. They read as though they had been taken straight out of a newspaper article and offered no insight - just a regurgitation of someone else's work. He did, however, make sure he included the dreaded call to action paragraph and tried to fit in those precious key search terms whenever possible. The sad thing is he claims the posts were actually published in someone's blog. Egads.

But, then, I'm just a criminal defense attorney - what the hell do I know about this fancy marketing stuff he's trying to sell? I do know that blogs written solely for SEO or marketing purposes are doomed to failure. There's only so many ways you can cram your own key search terms into a blog post. With nothing else to say, what's the freaking point in pounding away at a computer keyboard when you could be playing Angry Birds?

In short, Mr. Alexander, I think I will have to turn down your offer of assistance. You see, I don't crank out blogposts crammed full of key search terms. I don't regurgitate articles in the local newspaper. I write about what I care about and what I find interesting.

So, good luck with your search, I'm sure you'll find some willing ~~victims~~ ~~suckers~~ attorneys willing to part with their cash for the promise of internet gold.

Speaking for those without a voice

2011-11-29T08:00:00.000-06:00

The latest targets of the government's move to shut down the Occupy! protesters are Los Angeles and Philadelphia. In LA, Mayor Antonio Villaraigosa ordered protesters to leave their encampment in front of city hall at 12:01 a.m. Monday morning. Philadelphia mayor Michael Nutter ordered protesters to vacate their encampment by 5:00 p.m. Sunday evening.

As of this posting no one has been forcibly removed from the encampments though some protesters did leave in order to avoid being arrested or having their belongings confiscated.

In both LA and Philly, the mayors have stated that the plazas in front of their respective city halls are scheduled to undergo renovations.

But this isn't about renovating plazas or taking down tents. This is an assault on our First Amendment right to assemble peacefully and air our grievances. The Occupy! protesters aren't camping out. The tents themselves are an expression of speech.

Think that's ridiculous? Well, how about corporate interests arguing before the Supreme Court that making campaign contributions is an expression of speech and that curtailing the ability of corporations to make campaign contributions is a restriction of their First Amendment rights?

A corporation is not a person - and never has been. The rationale for forming a corporation was to limit the owners' liability in case something went wrong. A corporation is incapable of speaking. That's left to directors, officers and shareholders. A corporation can't vote. That's the duty of the directors, officers, shareholders and employees.

Our government is based on the rule of the people. That's you, me and everyone we come into contact with on a daily basis. But, what is has become is a tool of the corporate interests. Our representatives in Washington don't ask themselves what the effect of any given legislation will be on the ordinary folks living in their district - they ask themselves how that legislation will affect the corporate interests back home.

So while corporations bundle up their contributions and buy their congressmen, ordinary folks are left to wonder why their voices aren't heard. Why their concerns aren't addressed. Why no one in Washington seems to give a damn about their lot in life.

They don't have a seat at the table. They don't have a ticket to get into the room. All they can do is camp outside and make their presence known.

And it's because of the money.

Book review: Deadly Monopolies

2011-11-28T08:00:00.000-06:00

I just finished reading medical ethicist Harriet Washington's latest book Deadly Monopolies, a look into the world of the pharmaceutical industry.

Back in the good ol' days, universities and hospitals were the breeding grounds for new medicines. Researchers collaborated in order to find ways to fight common disease. Most new discoveries weren't patented because the research dollars came from the federal government.

That all changed in 1980 with the Bayh-Dole Act that allowed corporations, universities and hospitals to patent their discoveries even if the funding to conduct the research came from US taxpayers. At that moment, medical research ceased to be a race to find the cure and became, instead, a race to lock in profits. When that is factored in along with a newfound ability to patent genes, cell lines and other biological material, big pharmaceutical companies stood to make vast fortunes.

Along the way the concept of "informed consent" was cast aside as it was a hindrance to labs, hospitals and drug companies testing their wares on the public. So much for ethical considerations - we have money to print.

In the United States, hospitals across the country subjected patients to trials involving artificial blood. No one asked these patients if they wanted to participate in the study - if they happened to be taken to the right emergency room in the right city, they received the artificial blood.

The attempt may have been noble - as may have been the trials involving substitutes for saline solution for patients who suffered a traumatic injury in the field - but the method was not. The people who received the artificial blood were never consulted to determine if they minded being guinea pigs. They were never informed of the possible risks involved in pumping the artificial blood into their bodies.

In Africa the drug companies conducted trials of drugs to fight the scourge of AIDS. But there was a catch. In trying to determine how effective the new drugs were in fighting AIDS, the control group in the trial was given a placebo. That's right - some in the study were condemned to die while others received a chance to live.

In this country a test conducted under that dynamic would never be allowed. In order to test the effectiveness of a new treatment, the control group needs to receive the currently accepted standard of care. This gives researchers the ability to compare the effectiveness of the varied treatments. Under no circumstances should a person be allowed to die because he's been given a placebo.

Researchers argued that the trials were ethical because the current accepted standard of care in Africa for AIDS was no treatment at all. And, of course, none of the test subjects were ever told they might be given a placebo rather that the real drug.

If you're not irritated enough at the high cost of health care and prescription medications, after you read Deadly Monopolies, you will be.

Just win, baby

2011-11-25T10:00:00.000-06:00

The Longhorns win the final installment of the Lone Star Shootout. And forever's an awfully long time.

Texas Fight, Texas Fight,
And it's goodbye to A&M.
Texas Fight, Texas Fight,
And we'll put over one more win.
Texas Fight, Texas Fight,
For it's Texas that we love best.
Hail, Hail, The gang's all here,
And it's good-bye to all the rest!

(YELL)

Yea Orange! Yea White!
Yea Longhorns! Fight! Fight! Fight!
Texas Fight! Texas Fight,
Yea Texas Fight!
Texas Fight! Texas Fight,
Yea Texas Fight!

As for the Aggies... they'll be going from the 'Horns younger brother to the SEC's little b----.

Fighting authority

2011-11-25T09:00:00.000-06:00

'nuff said.

Happy Turkey Day

2011-11-24T09:00:00.000-06:00

Now that I'm in a charitable mood, I thought I'd give a bit of thanks to everyone who drops by The Defense Rests on a regular (or semi-regular) basis. I hope it gives you something to ponder, to debate and to laugh at occasionally.

I'd also like to thank my fellow bloggers for the work they do and the effort they put into their efforts. If you don't already, please take a look at some of the other writers on my blogroll.

Meanwhile I'll be out on the back patio smoking a turkey over oak and pecan and trying to forget that I'm scheduled to be in trial on Monday.

May you all have a relaxing day with family and friends and forget about a little of the shit we have to deal with on a daily basis.

$o much for tradition

2011-11-23T09:00:00.000-06:00

So tomorrow marks the end of an era. Tomorrow is the last time the Longhorns and Aggies will play in the foreseeable future.

You see, Texas A&M, that university that prides itself on "tradition," decided to walk away from the Big 12 and join the SEC beginning in 2012. For those of y'all like me, who grew up watching the old Southwest Conference, it's hard to comprehend. The Aggies are walking away from tradition for a few dollars more. The joke will be on them when the bills for sending the women's soccer team to South Carolina or the baseball team to Florida on a regular basis.

The SEC sold the Ags a bill of goods. Let's be real, there aren't any kids from Georgia or Tennessee or Alabama who are clamoring to move to College Station to play football. What the SEC wanted was unfettered access to Texas recruits. Currently the only SEC school that does much recruiting in Texas is LSU - but they're practically family.

When the Big 12 damn near imploded a year ago, A&M was one of the schools that benefited the most as the exit fees paid by Colorado and Nebraska found their way into the coffers in Austin, College Station, Norman and Stillwater. A&M signed off on that deal knowing full well that UT was going to launch the Longhorn Network. So, using the LHN as an excuse for leaving for the SEC is a canard the A&M administration figured their loyal followers wouldn't question.

And now the nation's third longest rivalry is coming to an end. And it sucks. I grew up with this game. Often times Thanksgiving dinner was scheduled around it. Before my oldest daughter was born I took my wife up to Austin to watch the game. My oldest daughter's been to Kyle Field twice to watch the 'Horns beat the Ags.

Here's hoping the 'Horns send the Ags running off with their tails between their legs.

Hook 'em!

A river runs dry

2011-11-23T08:00:00.000-06:00

Here's an idea of just how bad the drought has been in Texas this year. This is a picture I took the other day of the Navidad River as I was driving down to Jackson County. The red grass in the picture is where the water used to be. The river has been reduced to a stream.

The Navidad River bottom is also the home of the Wild Man of the Navidad.

Blawgroll

2011-11-22T09:00:00.000-06:00

From the Char Bar in scenic downtown Houston on a warm November Monday afternoon...

It was a veritable blawgroll in the unofficial haunts of the Harris County Criminal Lawyers Association. In the back row we've got Murray Newman, Franklin Bynum, Mark Bennett, Marvin Lewis, Jr. and Jackie Carpenter. In front it's yours truly, Mirriam Seddiq and one of the newest members of the Texas Bar, Jessica Day.

I'd like to buy a vowel, please

2011-11-22T08:00:00.000-06:00

If you're going to carve your name in the wet concrete for all posterity -- you might want to get the spelling right.

Standing by and twiddling their thumbs

2011-11-21T09:53:00.001-06:00

The atrocities committed by UC-Davis police have been covered excellently by more than a few of my colleagues. The entire incident seems almost surreal and worthy of condemnation.

With the news that two of the officers have been suspended, my only question is whether they were suspended for what they did or for bringing embarrassment upon the department. But for video, would these men have faced any sanction at all?

The arrogance of, Lt. John Pike, the cop who waved the cannister above his head before unloading, makes my stomach turn. None of those kids deserved to get that shit sprayed in their face. They were just sitting there blocking a sidewalk.

Were these officers just "rotten apples?" Or are they the face of the police? Are the police here to protect and serve or are they here to make sure that the have-nots don't get out of line? Is it their job to prevent chaos from breaking out or is it their job to quell dissent by whatever means necessary?

I can tell you that what happened at UC-Davis is not some isolated incident. It just happened to be performed in front of a bunch of kids armed with smart phones and an internet connection. What happens when the cameras aren't rolling? What happens when it's the word of the cop versus the word of the person he arrested for (fill-in-the-blank)?

What makes it worse is that no one stopped him from unleashing the pepper spray into the faces of those kids. Not one other officer had the guts to stand up and do the right thing. They just stood and watched.

That's the scary part.

See also:

"The kids on your baseball team," Simple Justice (Nov. 20, 2011)
"UC Davis: perfectly reasonable, completely wrong," Simple Justice (Nov. 20, 2011)
"UC Davis: sauce for the gander," Defending People (Nov. 20, 2011)
"Because the proper response to 'jump' is 'how high': The UC Davis edition," Gamso for the Defense (Nov. 20, 2011)
"It's time for a national conversation on law enforcement," Criminal Defense Blog (Nov. 20, 2011)

Do as I say, not as I do

2011-11-21T09:00:00.000-06:00

So, you want to take advantage of some information you obtained as a result of your position to make some money in the stock market? Some information that ordinary members of the public are privy to?

If you work in the private sector, just pack your toothbrush if you do because los federales will throw the book at you. Nevermind that markets operate on imperfect information and those who make money do so because they're able to take advantage of the information gap.

We can't have corporate executives taking advantage of their inside information to turn a buck on Wall Street, can we? Putting their own financial interest above that of the company they were hired to run - that just won't do.

But, if you are a sitting member of Congress, by all means, trade away. Gather up all the information you can at that subcommittee meeting. Take notes when that guy from Treasury gives you a briefing. Figure out who's going to win, and who's going to lose, under the terms of that proposed bill.

It's all okay.

After all, the rules that apply to the rest of us don't apply to the 535 men and women in Congress. Or, if they do, they sure as hell aren't applied the same way.

Take insider trading, for instance. There is no statute that makes trading on inside information illegal. Rather, when los federales charge someone with securities fraud, the allegation is generally either that the defendant breached a duty to the source of the information or to the person he traded with.

Of course congressmen have a duty, too. It's a fiduciary duty to act in the best interest of the United States of America - not in the best interests of the representative from some little town in Iowa. But when congressmen trade on the basis of information they've received solely because they're in Congress, they are violating that duty.

Now, thanks to a recent piece on 60 Minutes, the tide is turning. With congressional popularity at an all-time low, there really was no other choice. Now, for the first time since legislation was introduced in 2006, Congress looks to be on the verge of passing legislation that will ban members from trading on information obtained through their role as congressmen.

It is what it is

2011-11-21T08:00:00.000-06:00

So which is it?

Is it $10 in the morning...

...or is it $5?

This is the kind of crap people going to the municipal courthouse to fight traffic tickets have to deal with.