Merry Christmas

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.

CHRISTMAS LIGHTS 

Hi  Sweetheart,
   I am sorry about getting into an argument  about putting up the Christmas lights.
   I guess that  sometimes I feel like you are pushing me too hard when you want  something.
   I realize that I was wrong and I am  apologizing for being such a hard-headed guy.
   All I  want is for you to be happy and be able to enjoy the holiday season.      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 to go 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

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

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

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

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

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

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!

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

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

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

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?

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

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

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

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

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

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?

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

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

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

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...

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

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 policy of not prosecuting “trace” possession cases. If you were going to pursue those cases, how would your office handle the problem of having enough of a sample for defense attorneys to have re-tested? 

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

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

 I will be more than happy to run your answers in my blog, The Defense 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

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

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.