Turning the tables

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   ACLU‏Verified account @ACLU May 8
   
   Federal hate crimes laws were passed to correct the centuries of inaction and injustice that too often was the response to violence based on immutable traits and identities, including race, gender, religion, sexual orientation, gender identity, and disability.
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   ACLU‏Verified account @ACLU May 8
   
   There's no possible interpretation where being a law enforcement officer fits that definition. Congress should vote this down quickly and decisively.
   35 replies98 retweets316 likes
   
   
   
   
   
   

These tweets were posted by the ACLU on May 8, 2018 as a reaction to a Senate bill that would classify violence against police officers as a hate crime. Such a law already exists in Louisiana.

Apparently the irony of the situation was lost on the leadership of the ACLU as this is just the latest logical extension of the push for hate crime legislation over the years. I've written before on why hate crime legislation should be found unconstitutional and how it's just a bad idea.

For every offense that someone wishes to attach the label "hate crime," a criminal act was already committed. If a person yells out a racist epithet and then shoots and kills the target of his ire, he's looking at a murder charge. There is no reason to try to enhance the sentence because of what he said beforehand.

With the right in power, the state's backlash against Black Lives Matter is in full force. There are plenty of dog whistles - from Blue Lives Matter to US flags with a blue stripe to ribbons to support law enforcement - about our everyday lives. The next step is to make it a hate crime to attack a police officer.

Never mind that assaulting a police officer is already a more serious offense that assaulting someone on the street. Never mind that killing a police officer makes you eligible to get the needle. No. We need a law that we can use against folks who have the temerity to stand up against police brutality and racist killings.

And this is how you do it. You give the same people who cower under the table when faced with charging a police officer for killing an unarmed black man yet another charge they can use against a person accused of assaulting a police officer.

Happy Mother's Day

Leroy Harris will be spending Mother's Day with his mom today for the first time in 29 years.

Last November, Mr. Harris was released from a Connecticut prison after being exonerated of a sexual assault. Unfortunately he was forced to make a Hobson's choice between entering an Alford plea to the accompanying kidnapping and robbery cases or sitting in prison and waiting.

The sexual assault conviction went the way of the dinosaurs when DNA testing revealed exculpatory evidence that ruled him out as the attacker. An investigation by the Innocence Project also turned up evidence of prosecutorial misconduct.

Mr. Harris was given the choice to stand in front of a judge and plead guilty even though everyone - the defense, the prosecution and the judge - knew the plea was a legal fiction. Unfortunately the state still held some of the cards after the DNA test results came back. They had the option to retry the case which meant Mr.. Harris would have to sit behind bars awaiting a new trial - a new trial in which the state would not have some of its critical evidence admitted.

“Given the egregious misconduct that denied Mr. Harris a fair trial combined with the fact that the identification evidence presented against Mr. Harris would be inadmissible at trial today on due process grounds, it is deeply disappointing that he has been put in the untenable position of taking a plea to gain his freedom." -- Vanessa Potkin, Innocence Project

So, Mr. Harris took the deal and entered an Alford plea. Now he would be free and the state would keep its conviction.

But why did prosecutors insist on his pleading guilty before agreeing to his release from prison? He had served almost 30 years. Evidence turned up during post-conviction appeals clearly demonstrated that he was the victim of a wrongful conviction in the sexual assault case. It would stand to reason that if was innocent of the sexual assault that he would also be innocent of the kidnapping and robbery charges.

But prosecutors have a hard time letting cases go - even when they know it's the right thing to do. The often must be dragged kicking and screaming into court when faced with exculpatory evidence that they either failed to turn over or did their best to keep from being admitted into evidence.

Maybe it has something to do with a victim of wrongful conviction having the right to sue the state for compensation for the years and experiences that were taken away from him. But that money is paid out by the state under a statutory scheme, not the county in which he was convicted.

Maybe it has to do with the god complex some prosecutors possess. You know the ones - every conviction is the result of the jury doing the right thing and every acquittal is the result of the jury getting it wrong. These are the same prosecutors who fight every attempt to conduct DNA tests on untested biological material. The same prosecutors who raise their arms to the sky and ask the court when is enough enough?

For all of those who say cases like that of Mr. Harris show how the system works (albeit in a very imperfect manner), I would point out that there are other innocent men and women behind bars who can't turn to DNA testing or examples of prosecutorial misconduct to reverse their wrongful convictions. For every Leroy Harris there is another poor soul who is stuck in his own private hell because a jury just got it wrong.

Here's hoping that Leroy Harris and his mom have the greatest Mother's Day ever.

What goes around keeps going around

In our digital world, nothing really ever goes away. That off-hand comment you made on Twitter or that snarky remark you made on someone's Facebook page will remain there years after the fact - just waiting for someone to stumble across it at a most inopportune time.

Alfred Swinton knows all about the vapor trails in the ether.

You see, Mr. Swinton was the focus of a 2002 episode of Cold Case Files. In 2001, Mr. Swinton was convicted for the 1991 murder of Carla Terry. Her murder was one of 15 similar murders in the Hartford (CT) area in the late 80's and early 90's. Police worked the case for almost a decade before arrested Mr. Swinton with the help of a pair of forensic bite-mark analysts.

A judge tossed the initial indictment in 1991 because prosecutors presented no evidence that a bite mark said to be found on Ms. Terry's body was made at or near the time she was killed. Seven years later the state hooked up with an outfit called Image Content Technologies who claimed they had a software package that could scan old photographs and find previously unseen details. The state also hired forensic bite-mark voodoo salesman Gus Karazulas who took a plaster mold of Mr. Swinton's teeth and "bit" himself and then timed how long it took for the "bitemark" to change color.

Of course the judge let it in (since about the only time a judge exercises his or her power as gatekeeper of scientific evidence is in civil cases) and the jury lapped it up like a thirsty puppy. Mr. Swinton was convicted and sent to prison. In 2017, after spending 18 years behind bars, his conviction was vacated based on DNA testing of biological material that excluded Mr. Swinton as a suspect.

But even though a judge ruled that Mr. Swinton was wrongly convicted of the murder, reruns of the episode still air occasionally on cable television without any notification to viewers that Mr. Swinton was exonerated or that the forensic bite-mark evidence was garbage.

Today there are internet firms that compile mug shot photos of folks who were recently arrested and post them online. The posts remain available to the public even if the case is dismissed or the accused is found to be innocent. The only way to get the company to take down the posts is to pay them an extortion fee. Some prosecutors' offices tweet or post Facebook messages about arrests made - but there is never a post to indicate when the police (and prosecutors) got it wrong.

Shows like Cold Case Files and Forensic Files showcase fields of forensic science that have since been shown to be junk science but never update their shows with a disclaimer that a particular technique or field of inquiry has been shown to be unreliable or fraudulent or that a person featured on their show was later exonerated of the crime.

Still the digital detritus keeps floating in the ether, like the space junk that orbits our planet.

h/t Radley Balko

Burning man

Last week the State of Georgia murdered Robert Earl Butts, Jr.

Embed from Getty Images

Mr. Butts had been sentenced to death for his role in the killing of an off-duty prison guard in Milledgeville, Georgia when he was 18. The co-defendant, Marion Wilson, Jr., is still on death row.

Since Georgia can no longer obtain the drugs it needs to murder inmates, it turned to a compounding pharmacy to get the necessary (over)doses of pentobarbital. The drug was injected into Mr. Butts' body at approximately 9:42 pm. Mr. Butts made only one statement before he was pronounced dead at 9:58 pm.

As the drugs were injected into his body, Mr. Butts said "It burns, man."

Pentobarbital shouldn't burn. An overdose should cause a person to lose consciousness. Enough of an overdose would be lethal. The very fact that Mr. Butts felt a burning sensation during the execution means that the drug wasn't compounded properly.

As much as death penalty proponents say it shouldn't matter if the process causes the inmate to feel pain and discomfirt, it does matter. Supposedly the death penalty acts as a deterrent to others who might decide to commit a murder. It's not supposed to be an act of revenge.

A society is measured by the way it treats those who are least capable of taking care of themselves. It's also judged by how it treats those who have violated its laws.

The death penalty isn't on the books because it acts as a deterrent. We've been killing people en masse since the U.S. Supreme Court reversed itself and decided to allow states to go on killing again back in 1976, a mere 4 years after declaring it unconstitutional, and folks are still killing each other. No, the death penalty exists as a tool of social control. It is the epitome of legalized lynching.

Shining a light on judicial abuse

There's just something about putting on that black polyester robe that brings out the worst in some people. Broward County (FL) Judge Merrillee Ehrlich is just the latest example of black robe syndrome.



On April 15, 2018, the target of her ire was Sandra Faye Twiggs, a 59 year-old disabled defendant arrested on a misdemeanor charge. During the arraignment, Judge Ehrlich asked Ms. Twiggs some questions about the charge. When Ms. Twiggs tried to answer, Judge Ehrlich cut her off repeatedly and berated her.

When Ms. Twiggs complained about having problems breathing due to her COPD, Judge Ehrlich wasn't having any of it. And why was her attorney on video and not present in the courtroom? How does one exercise her right to counsel when the attorney isn't in the courtroom with her? Does the absence of attorneys have anything to do with the judge's belief that she can unload on defendants at will?

Ms. Twiggs were released from the county jail two days later on April 17. She died the next day.

Judge Ehrlich has since resigned from the bench without giving a reason why.

Just how out of the ordinary is what happened in that Broward County courtroom? How many defendants are yelled at by judges on a daily basis? How many defendants are treated in a callous manner without regard for their health or other issues?

The only reason we know about Judge Ehrlich's conniption fit is because the proceedings were recorded with a video camera. How much of this goes on across the country in courtrooms where recording equipment is banned?

I've seen judges berate defendants. The judges did so with impunity because they knew there was no record of the way in which they treated those accused of breaking the law. They knew that if it ever came to a head that deference would be shown to the person wearing the polyester robe long before it would ever be afforded to the defendant.

Allowing cameras unfettered access to the courtroom might not be the best idea, however. What about those folks sitting in the courtroom - accused of a crime but presumed innocent under the law? They have a right not to be photographed in the courtroom.

Then we have the open courts provisions in the Texas Constitution. A courtroom is supposed to remain open to the public - notwithstanding attempts by judges and bailiffs to remove those who aren't on the docket from the courtroom every morning and afternoon. Should we place a fixed mount camera in every courtroom focused on the bench and those standing before the court?

However we come down on those questions, it is undeniable that light is the great disinfectant. With the exception of "reality" television, the presence of a camera seems to make everyone behave just a little bit better and pay just a little more attention to social mores.

But for a camera, Judge Ehrlich would be free to continue her reign of abuse.

Execution Watch 4/25/2018

On Wednesday night the State of Texas will once again exercise its most coercive power...

ERICK DAVILA. Mr. Davila was ordered put to death after being convicted in the 2008 slayings in Fort Worth of a girl and her grandmother who were shot when he opened fire at a rival gang member whose home was the scene of a child's birthday party. Mr. Davila's appeal was heard by the US Supreme Court. His attorneys objected to the trial judge's instructions to the jury and argued that Mr. Davila did not intentionally kill the victims.

Mr. Davila's trial attorney objected to the judge's instruction to the jury regarding intent. The judge instructed the jury they could convict Mr. Davila if the only difference between what happened and what was intended was that a different person was hurt. The judge should have instructed the jury that the state needed to prove Mr. Davila intended to kill more than one person in order for the jury to convict for capital murder.

On direct appeal, Mr. Davila's appellate lawyer failed to raise the issue of the jury instruction. Mr. Davila argued that his appellate attorney was ineffective. The US Supreme Court, in a 5-4 vote, held that since there is no constitutional right to an attorney for post-conviction relief, Mr. Davila's claim of ineffective assistance was not sufficient "excuse a procedural default."

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, April 25, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Drugged driving in Tornado Alley

I saw a tweet on Twitter yesterday about a six-state initiative to cut down on drugged driving. This weekend in Arkansas, Kansas, Iowa, Missouri and Oklahoma, police will be "cracking" down on drugged driving in an initiative cleverly titled Driving High? Kiss Your License Goodbye.

There's just one little problem. While alcohol mixes with the blood in the lungs which allows the use of a breath test to estimate the amount of alcohol in a person's body, drugs don't.

With alcohol we can trace a curve showing the accumulation of alcohol in a person's body and we can calculate (or, as I prefer, guesstimate) the length of time it will take that person to eliminate the alcohol. We can't do that with drugs. Since marijuana is illegal, there has been no testing to determine accumulation or elimination rates.

Furthermore, with alcohol we can pick a concentration that demarcates the line between being intoxicated and not being intoxicated. We can quibble over the number but there is testing data available that shows the effect of higher levels of alcohol over time. No such luck with drugs.

I think I can visualize how this initiative is going to work. The police will conduct a traffic stop on anyone committing a minor traffic (or equipment) violation after hours. If the person has the odor of an alcoholic beverage on their breath it will become a DWI stop, complete with roadside sobriety tests and breath or blood tests at the scene or at the station. If the person doesn't have the odor of an alcoholic beverage on their breath it will become a drugged driving stop since there can't possibly be any other reason a motorist might be speeding, not using a turn signal or driving with a burned out tail light.

Those accused and arrested for drugged driving will have to wait weeks for the results of blood tests to come back. Prosecutors will then argue that the presence of inactive metabolites for any number of drugs are evidence that the motorist was under the influence of drugs at the time of driving. Little thought or consideration will be given to the fact that the inactive metabolites of many drugs find their ways to the body's fatty tissues where they stay, not bothering anyone or anything, for anywhere from three days to a month.

Prosecutors will also argue that the presence of prescription medications indicates the motorist was driving under the influence of drugs, too. Little consideration will be given to the actual concentration of the drug in the body or whether or not that concentration is lesser or greater than a therapeutic dosage. Prosecutors will argue that the presence of alcohol and any prescription medication is a clear sign of intoxication without regard for the actual chemistry of the substances involved.

But, hey, with strong Fourth Amendment protections and judges who take seriously their gatekeeper role when it comes to scientific evidence, there's nothing to worry about this weekend in Tornado Alley, is there?

h/t Marine Glisovic and Shane Ethridge

Judge sounds off on putting the brakes on the death penalty

Mike Fields, the presiding judge of Harris County's Criminal Court at Law No. 14, is a very complex character.

I've had disagreements with Judge Fields that I have documented in this blog. We've butted heads a couple of times in the courtroom. But we've also had nice little chats in chambers, on the sidewalk of my old neighborhood and at the bench. Hell, Judge Fields performed the marriage ceremony (in his courtroom) for my current wife and me.

For the longest time, Judge Fields was the only black judge in the misdemeanor courts. That changed when Darrell Jordan was elected to County Criminal Court at Law No. 16. If you remember back a little while, I wrote about Judge Fields backing out of the county's lawsuit to retain its unconstitutional and punitive misdemeanor bail schedule.

Now comes an editorial in the Houston Chronicle in which Judge Fields challenges the wisdom of those who want to speed up the death penalty in Texas.

Just for a moment, however, let’s forget about the exorbitant costs associated with killing a fellow human being. The very idea that a person, innocent of a capital crime, could be caused to sit on death row for any amount of time or, worse, wrongfully killed by our government, is offensive to our fundamental notions of liberty and justice. As celebrated English jurist Sir William Blackstone once said, “It is better that 10 guilty persons escape, than one innocent suffer.” Some of our founding fathers agreed. -- Hon. Mike Fields

In this piece, Judge Fields points out the number of times juries have gotten it wrong (that we are aware of) when it comes to death penalty cases. He also points out the role that the defense bar has played in this process. When no one else is standing up to defend the rights of the accused, it makes it so much easier to stick a needle in someone's arm and worry about whether the jury got it right later. Prosecutors have an ethical duty to see that justice is done - yet most district attorneys will fight tooth and nail to prevent an exoneration. In the mind of the prosecutor it is far more important to preserve the illusion that our criminal (in)justice system gets it right than it is to prevent an innocent man from being murdered by the hand of the state.

I've said it before and I will say it again multiple times before I die that our adversarial trial system isn't designed to determine the truth, it's designed to see which of two competing versions of reality a jury is willing to buy. And if we grease the wheels of the death penalty machine any more then we are going all-in on that notion.

There once was a lab analyst...

Oh the fun and games over at the Harris County Institute for Forensic Sciences never seem to stop. Last week a lab analyst was fired for not following proper lab procedure when testing a substance to determine if it was marijuana.

A lab analyst is supposed to perform both a chemical analysis as well as a microscopic analysis. Only after both tests have been run can the analyst record a positive result.

The analyst was discovered after the lab manager viewed high-resolution video of the analyst testing the substance.

It doesn't matter that when another analyst performed a microscopic analysis that the substance was found to be marijuana. The fired analyst "dry-labbed" the results which brings into question the results of any test performed by that analyst.

This episode points out (yet again) the difference between science and "forensic science."

Science is interested in answering the questions what? why? and how? A scientist observes a phenomenon and comes up with a hypothesis that answers one of the questions. The scientist then conducts experiments with the goal of disproving the hypothesis. If the experiments don't disprove the hypothesis then we may have a new theory. If the experiments disprove the hypothesis, then it's back to square one.

Science is replete with failures. In fact, it is through failures that we learn. Failures cause us to rethink our theories and to come up with new experiments. It's precisely because the failure rate is so high that scientific successes are celebrated as much as they are.

"Forensic science," on the other hand, isn't interested in discovering anything. The sole interest of the forensic scientist is to produce evidence that can be used by the state (or sometimes the defense) at trial. The junk science fields of dental recognition, tool mark analysis and bullet composition analysis, among others, came about because law enforcement needed ways to develop more evidence to support their arrest decisions.

They were allowed to proliferate because judges, who, for the most part, were not schooled in hard science, were appointed gatekeepers of scientific evidence. As a gatekeeper, the judge's role was to determine whether the offered scientific evidence should be admitted at trial. Unfortunately, most judges decided to let it all in and leave it up to the jury to determine what was junk and what wasn't.

The irony, of course, is that judges in civil matters, where money is at stake, tend to be much more strict in their decisions to allow, or disallow, scientific evidence to be presented than they are in criminal cases where the defendant's life is at stake. The results of this policy are illustrated by the large number of exonerations we have seen over the past decade or so. Juries across this country sent innocent men to prison (sometimes even death row) based on junk science that judges allowed into evidence.

So long as this divide exists between science and forensic science, we will continue to see more shenanigans in crime labs and more junk science presented to jurors.

Throwing away outs

This has been a busy week and I felt like talking about something other than the law today, so here we go. Last Saturday night I took my girls to go see the Astros play the Padres.  It was a defensive duel through nine innings that ended with the Astrols winning on one of the flukiest plays I've ever seen.

But what I wanted to talk about was what happened when the Padres were at bat in the top of the 5th innining in a scoreless game (played with a DH since it was in Houston). The lead-off hitter for the Padres reached second on a ground-rule double. Not bad - man on second, nobody out. The next batter laid down a bunt and moved the runner to third with one out. The runner on third took off toward home and was caught in a rundown when the third baseman fielded a grounder. The batter advanced to second. So, after a sacrifice and a groundout, San Diego was in the same situation they were in before with a man on second - but now there were two outs. Gerritt Cole struck out the next batter and the Astros were out of the inning.

The following day the Texas Longhorns were hosting the Baylor Bears. Going into the top of the 7th, Texas was leading 3-1. Baylor got the first two batters on base with nobody out. The next batter squared to bunt. He bunted up the third base line and the Longhorn third baseman threw out the lead runner at third. The next batter flew out. Baylor now found themselves in a familiar position - men on first and second, only this time there were two outs. After a wild pitch the Longhorns got the third out and escaped unscathed. Texas went on to win the game and sweep the series.

In both games teams made the decision to attempt to bunt a runner to third with nobody out. And in both instances they traded first and second with nobody out for first and second with two outs.

In both instances the manager were wrong.

As Billy Beane pointed out in Moneyball, outs are precious commodities for a baseball team. You only get 27 of them -- and then only three at a time. Throwing one away and getting nothing for it in return is a bad tactic - especially when we're talking about two games in which DH's were used.

I can understand a manager calling for a pitcher to lay down a bunt to advance a runner since the pitcher is extremely unlikely to get a hit, but when the pitchers aren't batting it makes little or no sense to send a batter into the box for the sole purpose of squaring up and laying down a bunt. In both games, it would have made infinitely more sense to send the batter to the plate to swing away.

Making it easier to kill

Ever eager to kill more inmates, the State of Texas has informed Attorney General Jeff Sessions that it still wishes to "opt-in" to a program that will tighten deadlines and make it harder for those on death row to contest their convictions.

Gov. Abbott wants Texas to qualify for Chapter 154 certification under the Antiterrorism and Effective Death Penalty Act passed in the aftermath of the bombing of the federal building in Oklahoma City. In order to qualify, the state must show that they have provided lawyers considered "good enough" during the state habeas period. If the state can meet that burden then federal habeas deadlines would be tightened.

Of course, as anyone who practices criminal law in Texas - or who keeps an eye on it - knows, local judges are very reluctant to authorize money for investigators, mental health professionals, mitigation specialists or any other experts when it comes to indigent defendants.

Combine that reluctance to spend money with the tradition of exculpatory evidence being withheld from the defense and you get a deadly combination.

According to Gov. Abbott, his concern is with the victims' families who have to endure years of waiting for the condemned to be murdered at the hand of the state. His lackeys have also said that opting in to Chapter 154 would cause federal judge to show more respect to state court decisions and would speed up the federal appeal process.

Oh yeah, and it would also shorten the time appellate attorneys have to sort out the mess left behind by the trial process. It would give them less time to find exculpatory evidence that wasn't handed over during the discovery process. It would give them less time to challenge the junk science that many of the state's "experts" have testified in favor of over the years.

If Texas were operating under Chapter 154 two innocent men, Anthony Graves and Alfred Dewayne Brown, would be six feet under the ground in cheap pine boxes and the public would never know just how badly the criminal (in)justice system failed.

That's really what this is all about. The shorter the window of challenging a conviction you have, the less likely it is that you're going to find what you're looking for. The shorter the window, the fewer exonerations you get. The shorter the window, the easier it is to spread the illusion that the criminal (in)justice system metes out justice equally. The shorter the window, the easier it is to spread the lie that innocent people don't get put to death.

Two cities. Two men. Two very different outcomes.

Cops aren't racists.
Every situation is different.
If you just follow orders, you won't get shot.
White folks get shot, too.

Wednesday afternoon in Brooklyn, police received three separate 911 calls about a man walking down the street pointing a metal object at people. When police arrived at the scene, they saw Saheed who met the description they were given. The man took what the police called a two-handed shooting stance with a metallic object in his hands.

Four officers fired on Mr. Vassell, striking him a total of ten times. None of the officers were wearing body cameras. He died at the hospital.

According to his father, Mr. Vassell was bi-polar and had been "sick " for some time. Other people who knew Mr. Vassell said he was well-known in the neighborhood and didn't bother anyone. One resident told a reporter that all the police officers in the neighborhood knew Mr. Vassell.

The metallic object in Mr. Vassell's hand was a shower head.

The officers never gave Mr. Vassell the opportunity to comply with their orders. They shot and killed another unarmed black man.

A week ago yesterday, in Louisville (KY), police responded to a domestic violence call. As police approached the door, Oscar Walters picked up an air rifle and pointed it at officers. Then he fired it, shattering the glass in the front door. After fleeing the house, Mr. Walters resisted arrest and refused to obey orders from the police.

Officers eventually tackled Mr. Walters, though one officer suffered a fractured wrist, arrested him and took him to jail.

Need I even point out that Mr. Walters was white?

Saheed Vassell was shot and killed for pointing a pipe at people on the street. The police never attempted to subdue him - and they never attempted to determine what he was holding in his hand. Mr. Walters shot at police, ran from them, resisted arrest - but is still alive.

Stephon Clark was standing in his backyard holding his cellphone when he was shot and killed by multiple bullets fired by police officers. Nikolas Cruz shot and killed 17 students in Parkland (FL) but was taken out alive.

The tangents running through these cases is clear and the longer we try to ignore it, the more killings we condone. It's very telling that NFL owners and wingnuts are more concerned with a man kneeling during the national anthem than they are at the scores of unarmed black men shot down by the police.

For all the pontificating by the right over the sanitized version of Martin Luther King, Jr. we are taught in school, his work was left undone when he was struck down by a sniper's rifle on April 4, 1968. We still live in a divided society with little sign it will change anytime soon.

A misconception of justice

One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.

Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.

And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.

If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.

The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.

MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.

Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).

It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.

I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.

Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.

When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.

That's not justice. It's retaliation.

Play ball!

In 1994, Antwinica Bridgeman disappeared after attending a party for her 20th birthday. Her body was found two weeks later by Nevest Colemen in the abandoned basement of the where he lived with his family. His mother called the police.

The police focused in on Mr. Coleman, a groundkeeper for the Chicago White Sox, and Darryl Fulton. There was no physical evidence linking either to the crime.

Both men eventually confessed after being questioned by police detectives with a history of allegations of misconduct and coerced confessions. Both men later recanted.

Despite the lack of physical evidence, the men were convicted in 1997 of raping and killing Ms. Bridgeman and were both sentenced to life in prison. Prosecutors sought the death penalty for Mr. Coleman, despite him having no criminal record. After a parade of character witnesses, including some from the White Sox, the jury declined to recommend execution.

On Monday, Mr. Coleman returned to his job as a groundskeeper at what is now called Guaranteed Rate Field on Chicago's South Side. He and Mr. Fulton were exonerated last November after DNA testing revealed the semen from a serial rapist on Ms. Bridgeman's underwear.

The exonerations are just two out of more than 160 from Cook County alone - a number that dwarfs most states.

Why wasn't the DNA tested back in 1997? Was it a decision by the defense not to have it tested or was it the prosecutor's decision? I don't know. If the defense chose not to have it tested, that would have been a justifiable decision attempting to maintain reasonable doubt. If the choice not to test was the state's, then there is little or no justification for it.

Whichever the case may be, once the DNA was tested two more names were added to the long list of men and women who have served decades behind bars for crimes they didn't commit.

We are kidding ourselves if we think our jury system is the best method to determine the truth of what really happened. The courtroom isn't so much the crucible for determining the truth as it is a theater of the absurd. Countless times juries have found people guilty on little or no evidence because they thought the prosecution had proven its case beyond a reasonable doubt only to find out that they were wrong. Regardless of how many times a prospective juror tells you they can presume your client innocent unless proven otherwise, their real attitude is that your client wouldn't be sitting next to you if he hadn't done something wrong. Add that to the courts and prosecutors telling jurors what beyond a reasonable doubt isn't (which serves to lower the state's burden of proof) and you have a recipe for false convictions.

And then there's the death penalty. Prosecutors sought it against Mr. Coleman. In an era in which the scab has been pulled off the criminal (in)justice system, it never ceases to amaze me how many folks still argue in favor of capital punishment. Ironically enough, a great many of those folks also fall into the camp of never believing what the government tells them.

Innocent people have been executed and innocent people have lost decades of their lives in prison because twelve people sitting in a box either failed to do their legal duty or just got it wrong. Mr. Coleman lost both of his parents while he was locked up for a crime he didn't commit and he missed watching his own children grow up. Nothing can ever make up for his losses.

h/t Dan Wetzel

Two cities. Two men. Two killings.

Stephon Clark and Danny Ray Thomas didn't know each other. They lived hundreds of miles apart. Mr. Clark lived in Sacramento and Mr. Thomas lived in Houston.

But they were both black and they were both killed at the hands of police officers.

Police in Sacramento suspected Mr. Clark of breaking into cars. Deputies in a helicopter said they spotted the a man who resembled the uspect in a backyard and that he appeared to be trying to break into the house. That man was Stephon Clark and that backyard was his backyard.

Police approached. They told Mr. Clark to raise his hands. He did. He then began moving toward the officers. Thinking the cell phone he held in his hand was a gun, officers fired more than 20 shots and then waited five minutes before seeing if Mr. Clark was alive.

He was unarmed. He was shot and killed in his own backyard because someone in a helicopter thought he resembled a person who had been breaking the windows of cars. He was murdered by police for a a crime - which even if he committed - didn't warrant the death penalty.

Danny Ray Thomas was wandering down Greens Road in northwest Houston with his pants down to his ankles, talking to himself and hitting cars with his fist as they passed by. A deputy sheriff saw what was happening, stopped and ordered Mr. Thomas to stand still. Mr. Thomas continued to walk toward the deputy who then shot and killed Mr. Thomas in the middle of the street.

The deputy claims that Mr. Thomas had something in his hand at the time of the encounter but no gun was found.

He was unarmed. He was shot and killed in the middle of the street because he was engaging in bizarre behavior. He was murdered by a sheriff's deputy for a crime that didn't warrant the death penalty.

I'm sure there will be people who will read this and argue that the police weren't to blame for these deaths. They will claim that both men placed themselves in danger by their actions.

But that's not even the point. The police aren't driving into predominantly white neighborhoods and shooting white people at the slightest provocation. If that were the case then the wingnuts and wealthy folks living in gated communities would be out in the streets rioting. But so long as the victims of these killings are black, apologists for the police will look for any little fact to justify a cop putting a bullet in an unarmed black man.

Who ever said Jim Crow was dead?

What accountability?

On July 5, 2016, Alton Sterling was murdered on the sidewalk in front of a convenience store in Baton Rouge, Louisiana. Everyone knew the name of the man who had shot and killed him.

Now, after 20 months and an exhaustive investigation by Louisiana Department of Justice (talk about your oxymorons), Blaine Salamoni will not be charged with killing Mr. Sterling.

Blaine Salamoni is a police officer with the Baton Rouge Police Department. On the evening of July 5, Officer Salamoni and his partner, Howie Lake II, were dispatched to the Triple S Food Mart where a person claimed that Mr. Sterling had threatened him with a gun. Within 20 seconds of arriving on the scene, Officer Salamoni pulled his weapon.

While Officer Howe subdued Mr. Sterling, Officer Salamoni fired six bullets into Mr. Sterling's body - killing him. The officers were cleared by the Department of Justice last July but were still waiting to find out if any charges would be filed against them.

State Attorney General Jeff Landry said that the process was a long one and that the decision was not made lightly.

Let's see. If the police witness a shooting or come across a scene shortly after a shooting, the person they suspect of the shooting is getting cuffed and driven to the county jail. The prosecutor will recommend that charges be filed and will tell all who will listen that he will let the criminal justice system run its course. But when that shooter is a cop then it takes months, if not years, to investigate all with the hope that some other event will distract public attention away from the shooting. Meanwhile the officer gets a paid vacation while the target of his ire is left lying on a slab in the morgue.

The process is designed to find a reason, any reason, NOT to charge the officer with a criminal offense. An ordinary citizen is rarely, if ever, given the same consideration.

Meanwhile the killling continues.

Alabama calls off execution

Doyle Lee Hamm, who survived Alabama's attempt to execute him last month, will not face another date with the executioner.

After last month's botched execution, in which medical personnel poked and stuck Mr. Hamm in the arms, legs and groin in a desperate attempt to find a vein into which they could pump a lethal dose of drugs before giving up the ghost, Mr. Hamm filed a civil rights lawsuit against the state.

This morning, Mr. Hamm and the State of Alabama reached an agreement by which a new execution date will not be set in exchange for Mr. Hamm dropping his lawsuit against the state.

For those not familiar with the case, Mr. Hamm is now 61 years old and has cancer. He was sentenced to death for the murder of hotel clerk Patrick Cunningham back in 1987. On February 22, 2018, Mr. Hamm was scheduled to be murdered by the state. For two-and-a-half hours medical personnel stuck him with needles in vain because his veins had deteriorated from chemotherapy treatments and from years of drug use.

Mr. Hamm wasn't the first inmate tortured by the state in an attempt to kill and he won't be the last. Luckily for him he had Columbia law professor Bernard Harcourt working tirelessly in his corner. May the next person in Mr. Hamm's position be so lucky.

See also:

Cooper, Stephen, "Fighting the death penalty with James Baldwin," Montgomery Advertiser (3/22/18)

Execution Watch: 03/27/2018

Tomorrow night the State of Texas will murder...

ROSENDO RODRIGUEZ, III. Mr. Rodriguez was condemned for the 2005 slaying of a pregnant woman in Lubbock. Before sentencing his mother and sister pleaded with the jury to spare his life. They described a childhood filled with physical and emotional abuse at the hands of his father. Mr. Rodriguez has alleged that his defense attorneys were inadequate at trial. He attended Texas Tech University and was a member of the U.S. Marine Corps Reserves. He also confessed to the killing of a 16 year old woman.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Tuesday, March 27, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Oklahoma to change its method of execution

In the never-ending saga of state's trying to find ways to kill inmates, the state of Oklahoma has announced that it will being using inert gas since it's no longer able to obtain the drugs it uses for lethal injection. As a result of their inability to obtain the drugs, Oklahoma has had an execution moratorium in effect since 2015.

According to Joe Allbaugh, the director of the Oklahoma Department of Corrections, his office will spend the next 90 to 120 days preparing the documents for the protocol. It would then be up to the Attorney General, Mike Hunter, to approve the protocol.

Last April the Oklahoma Death Penalty Review Commission issued a report calling for the moratorium to remain in place until such time as the state reformed its death penalty process. The commission also called for the use of a one-drug barbiturate for future executions.

Mr. Hunter is on board with inert gas as the agent of death. Use of inert gas would bypass the need for physicians to prescribe or administer lethal doses of drugs to inmates. The gas would also be easy to obtain. According to Mr. Hunter, a person who is exposed to an excessive amount of inert gas would experience fatigue, dizziness, loss of consciousness and then death. He claims the use of inert gas would be "the safest, best and most effective" way to kill inmates.

However, in its Guidelines for the Euthansia of Animals, the American Veterinary Medical Association says that the use of nitrogen for the killing of turkeys, chickens and pigs is effective but that it's not appropriate for other mammals. According to the AVMA, inert gases "create an anoxic environment that is distressing for some species."

No one from the state has ever conducted any kind of testing to determine how to deliver the lethal dose of nitrogen. Or whether it should be released gradually or all at one.

But that's not going to stop Oklahoma. Despite conducting very little research, the legislature passed a bill authorizing the use of nitrogen in executions. Why? Because it's available and it's cheap.

The problem with changing the method of execution from lethal injection to inert gas is that there's no effective means of testing the method. The other problem is that when methods are changed it's generally to make the death penalty more palatable for the public.

Regardless of how "humane" you want to make the mode of execution, the fact remains we are still talking about killing people in the name of the state. As we continue to see folks  exonerated on the basis of new evidence or prosecutorial misconduct, the notion that there are adequate safeguards in place to prevent an innocent man from being executed is naive.

See also:

Hager, Eli "Why Oklahoma plans to execute people with nitrogen," ABA Journal (March 16, 2018)

Captains (not so) courageous

Let me just say it now, politicians, by and large, are not the most courageous folks out there. In fact they are pretty downright cowardly because they are too scared of pissing off small groups of voters.

It's only once a politician decides (or, as you will see later, has it decided for them) to leave public office that they regain the ability to speak what they believe. We've seen it with Republican congressmen who wouldn't criticize Donald Trump until after they announced their retirement from office.

In Harris County right wing political organizations in the northwestern part of the county seem to rule the roost when it comes to primary elections. These groups publish "slates" of candidates for their wingnut readers to vote for. Most of these groups put their endorsement for sale to the highest bidder. Others "sell" their endorsement to the candidate that toes their line.

These newsletter endorsements are important for any budding Republican officeholder in Harris County since very few folks in the electorate have the slightest idea who any of the judicial candidates are - and most don't care so long as they have an R after their name on the ballot.

Jay Karahan has been the judge of Harris County Criminal Court at Law No. 8 since 2003. As a result of this month's primary election, he will no longer be a judge come January 1. Over the past 16 years he has been involved in primary and general electoral politics in Harris County. He knows how the game is played. And not once in the past 16 years has he stood up and complained about the way the Republicans decide who will represent them in the general election.

At least not until now.

In his guest column in Big Jolly Times (a local wingnut blog), Judge Karahan goes off on the backroom politics that determine who gets endorsed and who doesn't. He states in his piece that he wrote it long before he lost his primary election, but it never saw the light of day until after the smoke had cleared.

There is much merit in what he has to say and there is much to criticize about kingmakers who demand that judicial candidates kowtow to their right wing views instead of following the law. But why are we only seeing this after Judge Karahan has been retired by the wealthy whites up in the northwestern suburbs of Houston?

The outrage he feels is real, but it comes across as sour grapes after a defeat.

And now we have the story going around that Gov. Greg Abbott was opposed to the bathroom bill that wingut Republicans were pushing during the last legislative session. Funny how the guv'nor never came out and said he was against the bill. You see, that would have taken courage. That would have required going against the wingnuts and Teabaggers who dominate the Republican party in Texas. So Gov. Abbott apparently decided to keep it on the down low. But then, how would he explain placing the bill on the agenda for the special legislative session that summer. Something just isn't adding up.

If you want to be an agent for change, you have to be willing to stand up and be castigated for what you say. You have to be willing to go down in flames at the polls if that's the price to be paid for being true to yourself. Colin Kaepernick made a decision to protest against police violence and brutality. That decision cost him his career.

His decision to take that knee was courageous. Exposing the dirty underbelly of local politics after losing an election isn't.

Let them eat cake

There's a very strange law in Alabama that allows a sheriff to pocket the money not spent from the inmate food account. In other words, if a sheriff can feed the inmates in his jail for less than what he's given to spend, he gets to do whatever he wants to with the rest.

In Etowah County, inmates are lucky to get meat once a month or so. More often than not their meals consist of beans and vegetables.

Meanwhile the sheriff, Todd Entrekin, and his wife own properties worth almost two million dollars, including a $740,000 home in Orange Beach.

The good sheriff says he's just following the law and if people don't like it, they can go ask the legislature to change it.

“As you should be aware, Alabama law is clear as to my personal financial responsibilities in the feeding of inmates. Regardless of one’s opinion of this statute, until the legislature acts otherwise, the sheriff must follow the current law.” -- Todd Entrekin

This is nothing but old fashioned graft with the blessing of the legislature. Taxpayer money funds the inmate food accounts. That taxpayer money then finds its way directly into the pockets of a sheriff with an incentive to provide inmates with the least expensive meals possible. Sheriff Entrekin's claims that he has consulted with a nutritionist about the meals he serves doesn't change the analysis.

The fact that he wants us to believe that he is duty-bound to do what he's doing demonstrates either that Sheriff Entrekin is delusional or that he doesn't give a fuck about what happens to the people in the Etowah County Jail.

Over the past three years Sheriff Entrekin has pocketed more than $750,000 from the inmate food account. This is on top of his annual salary of $93,000. That's right, over the last three years he has made almost three times his salary by cutting inmate meals to the bone. Those figures alone should tell you all you need to know about the way things work down in Alabama.

There is no good reason that the person in charge of the jail should have a personal financial incentive to cut corners when it comes to feeding the inmates. There is no good reason why taxpayer money not spent on meals should end up in the sheriff's bank account.

As a postscript, the person who brought this to light was arrested and is now in the Etowah County Jail.

Did Georgia just murder an innocent man?

On Thursday night the State of Georgia likely executed a man who was innocent of the crime for which he was convicted.

Carlton Gary died after suffering a lethal overdose of compounded pentobarbital at the hands of the state.

In 1986, Mr. Gary was convicted of the 1977 murders and rapes of three elderly white women in Columbus, Georgia. He was suspected of seven murders and rapes during an 8-month period between September 1977 and April 1978. He was dubbed the Stocking Strangler.

One of the witnesses against him was 71 year-old Gertrude Miller who was raped in her house but someone survived the attempted strangling. She testified that Mr. Gary turned on the light in her bedroom while raping her and that allowed her to identify him. It turns out that in Ms. Miller's first account of the rape there was nothing said about the light being turned on. She told police she didn't know if her rapist was white or black. She later identified another man as her rapist before trial.

Even though he was not charged with the rape of Ms. Miller, then District Attorney, Bill Smith, told the jury that the same man had committed all seven rapes. He told the jury that the reason Mr. Gary was charged with only three of the murders is because there were only three houses in which his fingerprints were (supposedly) found. As it turned out, this was a very dubious claim.

However, when, years after his conviction, the sheets from Ms. Miller's bed were tested, the DNA recovered from those sheets was not a match for Mr. Gary. So, if we believe the state's theory of the case, either Carlton Gary wasn't the stocking strangler or the stocking strangler didn't rape Ms. Miller.

But that's okay, said the state. You see, Mr. Gary wasn't on trial for raping Ms. Miller so whether it was his semen on her sheets or not, it didn't prove his innocence.

Oh, but then there was that semen sample taken from the sheets of one of the women whom Mr. Gary was convicted of raping and murdering that had never been tested. But in 2010 it turns out that the lab analyst who was tasked with testing the sample to determine if it was a match to Mr. Gary's DNA did something that can only be described as bizarre. Using his own semen as a "control," he smeared it over the sample to be tested -- and the test equipment.

I don't know. Maybe he got off on forensic science and came all over the lab at the mere thought of testing such an important piece of evidence. Or maybe he didn't want it tested for whatever reason. Now I can think of a lot of ways to get around the sticky situation of having a sample that doesn't match the DNA specimen you want it to, but smearing your own semen over the slide is a new one to me.

Prior to that episode, in 2009, when Mr. Gary was first scheduled to be killed, his attorneys sought a court order to test biological evidence from the original trial only to be told by prosecutors that all such evidence had been destroyed because it was a biohazard. But that didn't exactly turn out to be true.

After the "discovery" of the evidence, the state fought tooth and nail to prevent it from being tested. And why might the state object to the testing of evidence? Maybe because they are more interested in maintaining a conviction that seeing to it that justice is done? Maybe because once that floodgate opens, there would be more convictions that could be questioned with DNA testing? Maybe because the courtroom isn't the crucible of the truth that we are taught in civics class.

I could also mention that footprints found outside the window of one of the victims were too small to be Mr. Gary's and that bite mark evidence found on one of the victims didn't match his teeth.

But none of this matters anymore, because the State of Georgia said fuck it, we're killing him anyway -- and so they did.

There is no greater tragedy in our criminal (in)justice system than executing an innocent man. It's happened before. It will happen again. And it very likely just happened in Georgia.