Thursday, July 5, 2018

The contradictions of July 4

Okay, I know, it's a day late. But you try getting in front of the computer with a houseful of kids wanting to watch YouTube and Netflix.

With thanks to many folks on Twitter who posted links to this, here is Frederick Douglass' "What to the Slave is the 4th of July" delivered on July 4, 1852 in Rochester, NY.

Never forget that black men fought for the Union in the Civil War and fought in both World War I and World War II and they call came home to a world in which they were treated as second-class citizens.

We live in a world in which unarmed black men are shot down with impunity by the police but the President of the United States calls a black man taking a knee in peaceful protest an SOB.

Mr. President, Friends and Fellow Citizens:
He who could address this audience without a quailing sensation, has stronger nerves than I have. I do not remember ever to have appeared as a speaker before any assembly more shrinkingly, nor with greater distrust of my ability, than I do this day. A feeling has crept over me, quite unfavorable to the exercise of my limited powers of speech. The task before me is one which requires much previous thought and study for its proper performance. I know that apologies of this sort are generally considered flat and unmeaning. I trust, however, that mine will not be so considered. Should I seem at ease, my appearance would much misrepresent me. The little experience I have had in addressing public meetings, in country schoolhouses, avails me nothing on the present occasion.
The papers and placards say, that I am to deliver a 4th [of] July oration. This certainly sounds large, and out of the common way, for it is true that I have often had the privilege to speak in this beautiful Hall, and to address many who now honor me with their presence. But neither their familiar faces, nor the perfect gage I think I have of Corinthian Hall, seems to free me from embarrassment.
The fact is, ladies and gentlemen, the distance between this platform and the slave plantation, from which I escaped, is considerable — and the difficulties to be overcome in getting from the latter to the former, are by no means slight. That I am here to-day is, to me, a matter of astonishment as well as of gratitude. You will not, therefore, be surprised, if in what I have to say I evince no elaborate preparation, nor grace my speech with any high sounding exordium. With little experience and with less learning, I have been able to throw my thoughts hastily and imperfectly together; and trusting to your patient and generous indulgence, I will proceed to lay them before you.
This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act, and that day. This celebration also marks the beginning of another year of your national life; and reminds you that the Republic of America is now 76 years old. I am glad, fellow-citizens, that your nation is so young. Seventy-six years, though a good old age for a man, is but a mere speck in the life of a nation. Three score years and ten is the allotted time for individual men; but nations number their years by thousands. According to this fact, you are, even now, only in the beginning of your national career, still lingering in the period of childhood. I repeat, I am glad this is so. There is hope in the thought, and hope is much needed, under the dark clouds which lower above the horizon. The eye of the reformer is met with angry flashes, portending disastrous times; but his heart may well beat lighter at the thought that America is young, and that she is still in the impressible stage of her existence. May he not hope that high lessons of wisdom, of justice and of truth, will yet give direction to her destiny? Were the nation older, the patriot’s heart might be sadder, and the reformer’s brow heavier. Its future might be shrouded in gloom, and the hope of its prophets go out in sorrow. There is consolation in the thought that America is young. Great streams are not easily turned from channels, worn deep in the course of ages. They may sometimes rise in quiet and stately majesty, and inundate the land, refreshing and fertilizing the earth with their mysterious properties. They may also rise in wrath and fury, and bear away, on their angry waves, the accumulated wealth of years of toil and hardship. They, however, gradually flow back to the same old channel, and flow on as serenely as ever. But, while the river may not be turned aside, it may dry up, and leave nothing behind but the withered branch, and the unsightly rock, to howl in the abyss-sweeping wind, the sad tale of departed glory. As with rivers so with nations.
Fellow-citizens, I shall not presume to dwell at length on the associations that cluster about this day. The simple story of it is that, 76 years ago, the people of this country were British subjects. The style and title of your “sovereign people” (in which you now glory) was not then born. You were under the British Crown. Your fathers esteemed the English Government as the home government; and England as the fatherland. This home government, you know, although a considerable distance from your home, did, in the exercise of its parental prerogatives, impose upon its colonial children, such restraints, burdens and limitations, as, in its mature judgment, it deemed wise, right and proper.
But, your fathers, who had not adopted the fashionable idea of this day, of the infallibility of government, and the absolute character of its acts, presumed to differ from the home government in respect to the wisdom and the justice of some of those burdens and restraints. They went so far in their excitement as to pronounce the measures of government unjust, unreasonable, and oppressive, and altogether such as ought not to be quietly submitted to. I scarcely need say, fellow-citizens, that my opinion of those measures fully accords with that of your fathers. Such a declaration of agreement on my part would not be worth much to anybody. It would, certainly, prove nothing, as to what part I might have taken, had I lived during the great controversy of 1776. To say now that America was right, and England wrong, is exceedingly easy. Everybody can say it; the dastard, not less than the noble brave, can flippantly discant on the tyranny of England towards the American Colonies. It is fashionable to do so; but there was a time when to pronounce against England, and in favor of the cause of the colonies, tried men’s souls. They who did so were accounted in their day, plotters of mischief, agitators and rebels, dangerous men. To side with the right, against the wrong, with the weak against the strong, and with the oppressed against the oppressor! here lies the merit, and the one which, of all others, seems unfashionable in our day. The cause of liberty may be stabbed by the men who glory in the deeds of your fathers. But, to proceed.
Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.
As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.
The madness of this course, we believe, is admitted now, even by England; but we fear the lesson is wholly lost on our present ruler.
Oppression makes a wise man mad. Your fathers were wise men, and if they did not go mad, they became restive under this treatment. They felt themselves the victims of grievous wrongs, wholly incurable in their colonial capacity. With brave men there is always a remedy for oppression. Just here, the idea of a total separation of the colonies from the crown was born! It was a startling idea, much more so, than we, at this distance of time, regard it. The timid and the prudent (as has been intimated) of that day, were, of course, shocked and alarmed by it.
Such people lived then, had lived before, and will, probably, ever have a place on this planet; and their course, in respect to any great change, (no matter how great the good to be attained, or the wrong to be redressed by it), may be calculated with as much precision as can be the course of the stars. They hate all changes, but silver, gold and copper change! Of this sort of change they are always strongly in favor.
These people were called Tories in the days of your fathers; and the appellation, probably, conveyed the same idea that is meant by a more modern, though a somewhat less euphonious term, which we often find in our papers, applied to some of our old politicians.
Their opposition to the then dangerous thought was earnest and powerful; but, amid all their terror and affrighted vociferations against it, the alarming and revolutionary idea moved on, and the country with it.
On the 2d of July, 1776, the old Continental Congress, to the dismay of the lovers of ease, and the worshipers of property, clothed that dreadful idea with all the authority of national sanction. They did so in the form of a resolution; and as we seldom hit upon resolutions, drawn up in our day whose transparency is at all equal to this, it may refresh your minds and help my story if I read it. “Resolved, That these united colonies are, and of right, ought to be free and Independent States; that they are absolved from all allegiance to the British Crown; and that all political connection between them and the State of Great Britain is, and ought to be, dissolved.”
Citizens, your fathers made good that resolution. They succeeded; and to-day you reap the fruits of their success. The freedom gained is yours; and you, therefore, may properly celebrate this anniversary. The 4th of July is the first great fact in your nation’s history — the very ring-bolt in the chain of your yet undeveloped destiny.
Pride and patriotism, not less than gratitude, prompt you to celebrate and to hold it in perpetual remembrance. I have said that the Declaration of Independence is the ring-bolt to the chain of your nation’s destiny; so, indeed, I regard it. The principles contained in that instrument are saving principles. Stand by those principles, be true to them on all occasions, in all places, against all foes, and at whatever cost.
From the round top of your ship of state, dark and threatening clouds may be seen. Heavy billows, like mountains in the distance, disclose to the leeward huge forms of flinty rocks! That bolt drawn, that chain broken, and all is lost. Cling to this day — cling to it, and to its principles, with the grasp of a storm-tossed mariner to a spar at midnight.
The coming into being of a nation, in any circumstances, is an interesting event. But, besides general considerations, there were peculiar circumstances which make the advent of this republic an event of special attractiveness.
The whole scene, as I look back to it, was simple, dignified and sublime.
The population of the country, at the time, stood at the insignificant number of three millions. The country was poor in the munitions of war. The population was weak and scattered, and the country a wilderness unsubdued. There were then no means of concert and combination, such as exist now. Neither steam nor lightning had then been reduced to order and discipline. From the Potomac to the Delaware was a journey of many days. Under these, and innumerable other disadvantages, your fathers declared for liberty and independence and triumphed.
Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.
They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.
They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final;” not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times.
How circumspect, exact and proportionate were all their movements! How unlike the politicians of an hour! Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defense. Mark them!
Fully appreciating the hardship to be encountered, firmly believing in the right of their cause, honorably inviting the scrutiny of an on-looking world, reverently appealing to heaven to attest their sincerity, soundly comprehending the solemn responsibility they were about to assume, wisely measuring the terrible odds against them, your fathers, the fathers of this republic, did, most deliberately, under the inspiration of a glorious patriotism, and with a sublime faith in the great principles of justice and freedom, lay deep the corner-stone of the national superstructure, which has risen and still rises in grandeur around you.
Of this fundamental work, this day is the anniversary. Our eyes are met with demonstrations of joyous enthusiasm. Banners and pennants wave exultingly on the breeze. The din of business, too, is hushed. Even Mammon seems to have quitted his grasp on this day. The ear-piercing fife and the stirring drum unite their accents with the ascending peal of a thousand church bells. Prayers are made, hymns are sung, and sermons are preached in honor of this day; while the quick martial tramp of a great and multitudinous nation, echoed back by all the hills, valleys and mountains of a vast continent, bespeak the occasion one of thrilling and universal interest — a nation’s jubilee.
Friends and citizens, I need not enter further into the causes which led to this anniversary. Many of you understand them better than I do. You could instruct me in regard to them. That is a branch of knowledge in which you feel, perhaps, a much deeper interest than your speaker. The causes which led to the separation of the colonies from the British crown have never lacked for a tongue. They have all been taught in your common schools, narrated at your firesides, unfolded from your pulpits, and thundered from your legislative halls, and are as familiar to you as household words. They form the staple of your national poetry and eloquence.
I remember, also, that, as a people, Americans are remarkably familiar with all facts which make in their own favor. This is esteemed by some as a national trait — perhaps a national weakness. It is a fact, that whatever makes for the wealth or for the reputation of Americans, and can be had cheap! will be found by Americans. I shall not be charged with slandering Americans, if I say I think the American side of any question may be safely left in American hands.
I leave, therefore, the great deeds of your fathers to other gentlemen whose claim to have been regularly descended will be less likely to be disputed than mine!
My business, if I have any here to-day, is with the present. The accepted time with God and his cause is the ever-living now.
Trust no future, however pleasant,
Let the dead past bury its dead;
Act, act in the living present,
Heart within, and God overhead.
We have to do with the past only as we can make it useful to the present and to the future. To all inspiring motives, to noble deeds which can be gained from the past, we are welcome. But now is the time, the important time. Your fathers have lived, died, and have done their work, and have done much of it well. You live and must die, and you must do your work. You have no right to enjoy a child’s share in the labor of your fathers, unless your children are to be blest by your labors. You have no right to wear out and waste the hard-earned fame of your fathers to cover your indolence. Sydney Smith tells us that men seldom eulogize the wisdom and virtues of their fathers, but to excuse some folly or wickedness of their own. This truth is not a doubtful one. There are illustrations of it near and remote, ancient and modern. It was fashionable, hundreds of years ago, for the children of Jacob to boast, we have “Abraham to our father,” when they had long lost Abraham’s faith and spirit. That people contented themselves under the shadow of Abraham’s great name, while they repudiated the deeds which made his name great. Need I remind you that a similar thing is being done all over this country to-day? Need I tell you that the Jews are not the only people who built the tombs of the prophets, and garnished the sepulchres of the righteous? Washington could not die till he had broken the chains of his slaves. Yet his monument is built up by the price of human blood, and the traders in the bodies and souls of men shout — “We have Washington to our father.” — Alas! that it should be so; yet so it is.
The evil that men do, lives after them, The good is oft-interred with their bones.
Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak here to-day? What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?
Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions! Then would my task be light, and my burden easy and delightful. For who is there so cold, that a nation’s sympathy could not warm him? Who so obdurate and dead to the claims of gratitude, that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish, that would not give his voice to swell the hallelujahs of a nation’s jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that, the dumb might eloquently speak, and the “lame man leap as an hart.”
But, such is not the state of the case. I say it with a sad sense of the disparity between us. I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. — The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me, by asking me to speak to-day? If so, there is a parallel to your conduct. And let me warn you that it is dangerous to copy the example of a nation whose crimes, lowering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrecoverable ruin! I can to-day take up the plaintive lament of a peeled and woe-smitten people!
“By the rivers of Babylon, there we sat down. Yea! we wept when we remembered Zion. We hanged our harps upon the willows in the midst thereof. For there, they that carried us away captive, required of us a song; and they who wasted us required of us mirth, saying, Sing us one of the songs of Zion. How can we sing the Lord’s song in a strange land? If I forget thee, O Jerusalem, let my right hand forget her cunning. If I do not remember thee, let my tongue cleave to the roof of my mouth.”
Fellow-citizens; above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, “may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!” To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world. My subject, then fellow-citizens, is AMERICAN SLAVERY. I shall see, this day, and its popular characteristics, from the slave’s point of view. Standing, there, identified with the American bondman, making his wrongs mine, I do not hesitate to declare, with all my soul, that the character and conduct of this nation never looked blacker to me than on this 4th of July! Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity which is outraged, in the name of liberty which is fettered, in the name of the constitution and the Bible, which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery — the great sin and shame of America! “I will not equivocate; I will not excuse;” I will use the severest language I can command; and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, or who is not at heart a slaveholder, shall not confess to be right and just.
But I fancy I hear some one of my audience say, it is just in this circumstance that you and your brother abolitionists fail to make a favorable impression on the public mind. Would you argue more, and denounce less, would you persuade more, and rebuke less, your cause would be much more likely to succeed. But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? Must I undertake to prove that the slave is a man? That point is conceded already. Nobody doubts it. The slaveholders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. There are seventy-two crimes in the State of Virginia, which, if committed by a black man, (no matter how ignorant he be), subject him to the punishment of death; while only two of the same crimes will subject a white man to the like punishment. What is this but the acknowledgement that the slave is a moral, intellectual and responsible being? The manhood of the slave is conceded. It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws, in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, then will I argue with you that the slave is a man!
For the present, it is enough to affirm the equal manhood of the Negro race. Is it not astonishing that, while we are ploughing, planting and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, silver and gold; that, while we are reading, writing and cyphering, acting as clerks, merchants and secretaries, having among us lawyers, doctors, ministers, poets, authors, editors, orators and teachers; that, while we are engaged in all manner of enterprises common to other men, digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hill-side, living, moving, acting, thinking, planning, living in families as husbands, wives and children, and, above all, confessing and worshipping the Christian’s God, and looking hopefully for life and immortality beyond the grave, we are called upon to prove that we are men!
Would you have me argue that man is entitled to liberty? that he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for Republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to be understood? How should I look to-day, in the presence of Americans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively, and positively, negatively, and affirmatively. To do so, would be to make myself ridiculous, and to offer an insult to your understanding. — There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him.
What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employments for my time and strength than such arguments would imply.
What, then, remains to be argued? Is it that slavery is not divine; that God did not establish it; that our doctors of divinity are mistaken? There is blasphemy in the thought. That which is inhuman, cannot be divine! Who can reason on such a proposition? They that can, may; I cannot. The time for such argument is passed.
At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.
Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.
Take the American slave-trade, which, we are told by the papers, is especially prosperous just now. Ex-Senator Benton tells us that the price of men was never higher than now. He mentions the fact to show that slavery is in no danger. This trade is one of the peculiarities of American institutions. It is carried on in all the large towns and cities in one-half of this confederacy; and millions are pocketed every year, by dealers in this horrid traffic. In several states, this trade is a chief source of wealth. It is called (in contradistinction to the foreign slave-trade) “the internal slave trade.” It is, probably, called so, too, in order to divert from it the horror with which the foreign slave-trade is contemplated. That trade has long since been denounced by this government, as piracy. It has been denounced with burning words, from the high places of the nation, as an execrable traffic. To arrest it, to put an end to it, this nation keeps a squadron, at immense cost, on the coast of Africa. Everywhere, in this country, it is safe to speak of this foreign slave-trade, as a most inhuman traffic, opposed alike to the laws of God and of man. The duty to extirpate and destroy it, is admitted even by our DOCTORS OF DIVINITY. In order to put an end to it, some of these last have consented that their colored brethren (nominally free) should leave this country, and establish themselves on the western coast of Africa! It is, however, a notable fact that, while so much execration is poured out by Americans upon those engaged in the foreign slave-trade, the men engaged in the slave-trade between the states pass without condemnation, and their business is deemed honorable.
Behold the practical operation of this internal slave-trade, the American slave-trade, sustained by American politics and America religion. Here you will see men and women reared like swine for the market. You know what is a swine-drover? I will show you a man-drover. They inhabit all our Southern States. They perambulate the country, and crowd the highways of the nation, with droves of human stock. You will see one of these human flesh-jobbers, armed with pistol, whip and bowie-knife, driving a company of a hundred men, women, and children, from the Potomac to the slave market at New Orleans. These wretched people are to be sold singly, or in lots, to suit purchasers. They are food for the cotton-field, and the deadly sugar-mill. Mark the sad procession, as it moves wearily along, and the inhuman wretch who drives them. Hear his savage yells and his blood-chilling oaths, as he hurries on his affrighted captives! There, see the old man, with locks thinned and gray. Cast one glance, if you please, upon that young mother, whose shoulders are bare to the scorching sun, her briny tears falling on the brow of the babe in her arms. See, too, that girl of thirteen, weeping, yes! weeping, as she thinks of the mother from whom she has been torn! The drove moves tardily. Heat and sorrow have nearly consumed their strength; suddenly you hear a quick snap, like the discharge of a rifle; the fetters clank, and the chain rattles simultaneously; your ears are saluted with a scream, that seems to have torn its way to the center of your soul! The crack you heard, was the sound of the slave-whip; the scream you heard, was from the woman you saw with the babe. Her speed had faltered under the weight of her child and her chains! that gash on her shoulder tells her to move on. Follow the drove to New Orleans. Attend the auction; see men examined like horses; see the forms of women rudely and brutally exposed to the shocking gaze of American slave-buyers. See this drove sold and separated forever; and never forget the deep, sad sobs that arose from that scattered multitude. Tell me citizens, WHERE, under the sun, you can witness a spectacle more fiendish and shocking. Yet this is but a glance at the American slave-trade, as it exists, at this moment, in the ruling part of the United States.
I was born amid such sights and scenes. To me the American slave-trade is a terrible reality. When a child, my soul was often pierced with a sense of its horrors. I lived on Philpot Street, Fell’s Point, Baltimore, and have watched from the wharves, the slave ships in the Basin, anchored from the shore, with their cargoes of human flesh, waiting for favorable winds to waft them down the Chesapeake. There was, at that time, a grand slave mart kept at the head of Pratt Street, by Austin Woldfolk. His agents were sent into every town and county in Maryland, announcing their arrival, through the papers, and on flaming “hand-bills,” headed CASH FOR NEGROES. These men were generally well dressed men, and very captivating in their manners. Ever ready to drink, to treat, and to gamble. The fate of many a slave has depended upon the turn of a single card; and many a child has been snatched from the arms of its mother by bargains arranged in a state of brutal drunkenness.
The flesh-mongers gather up their victims by dozens, and drive them, chained, to the general depot at Baltimore. When a sufficient number have been collected here, a ship is chartered, for the purpose of conveying the forlorn crew to Mobile, or to New Orleans. From the slave prison to the ship, they are usually driven in the darkness of night; for since the antislavery agitation, a certain caution is observed.
In the deep still darkness of midnight, I have been often aroused by the dead heavy footsteps, and the piteous cries of the chained gangs that passed our door. The anguish of my boyish heart was intense; and I was often consoled, when speaking to my mistress in the morning, to hear her say that the custom was very wicked; that she hated to hear the rattle of the chains, and the heart-rending cries. I was glad to find one who sympathized with me in my horror.
Fellow-citizens, this murderous traffic is, to-day, in active operation in this boasted republic. In the solitude of my spirit, I see clouds of dust raised on the highways of the South; I see the bleeding footsteps; I hear the doleful wail of fettered humanity, on the way to the slave-markets, where the victims are to be sold like horses, sheep, and swine, knocked off to the highest bidder. There I see the tenderest ties ruthlessly broken, to gratify the lust, caprice and rapacity of the buyers and sellers of men. My soul sickens at the sight.
Is this the land your Fathers loved,
The freedom which they toiled to win?
Is this the earth whereon they moved?
Are these the graves they slumber in?
But a still more inhuman, disgraceful, and scandalous state of things remains to be presented. By an act of the American Congress, not yet two years old, slavery has been nationalized in its most horrible and revolting form. By that act, Mason and Dixon’s line has been obliterated; New York has become as Virginia; and the power to hold, hunt, and sell men, women, and children as slaves remains no longer a mere state institution, but is now an institution of the whole United States. The power is co-extensive with the Star-Spangled Banner and American Christianity. Where these go, may also go the merciless slave-hunter. Where these are, man is not sacred. He is a bird for the sportsman’s gun. By that most foul and fiendish of all human decrees, the liberty and person of every man are put in peril. Your broad republican domain is hunting ground for men. Not for thieves and robbers, enemies of society, merely, but for men guilty of no crime. Your lawmakers have commanded all good citizens to engage in this hellish sport. Your President, your Secretary of State, our lords, nobles, and ecclesiastics, enforce, as a duty you owe to your free and glorious country, and to your God, that you do this accursed thing. Not fewer than forty Americans have, within the past two years, been hunted down and, without a moment’s warning, hurried away in chains, and consigned to slavery and excruciating torture. Some of these have had wives and children, dependent on them for bread; but of this, no account was made. The right of the hunter to his prey stands superior to the right of marriage, and to all rights in this republic, the rights of God included! For black men there are neither law, justice, humanity, not religion. The Fugitive Slave Law makes mercy to them a crime; and bribes the judge who tries them. An American judge gets ten dollars for every victim he consigns to slavery, and five, when he fails to do so. The oath of any two villains is sufficient, under this hell-black enactment, to send the most pious and exemplary black man into the remorseless jaws of slavery! His own testimony is nothing. He can bring no witnesses for himself. The minister of American justice is bound by the law to hear but one side; and that side, is the side of the oppressor. Let this damning fact be perpetually told. Let it be thundered around the world, that, in tyrant-killing, king-hating, people-loving, democratic, Christian America, the seats of justice are filled with judges, who hold their offices under an open and palpable bribe, and are bound, in deciding in the case of a man’s liberty, hear only his accusers!
In glaring violation of justice, in shameless disregard of the forms of administering law, in cunning arrangement to entrap the defenseless, and in diabolical intent, this Fugitive Slave Law stands alone in the annals of tyrannical legislation. I doubt if there be another nation on the globe, having the brass and the baseness to put such a law on the statute-book. If any man in this assembly thinks differently from me in this matter, and feels able to disprove my statements, I will gladly confront him at any suitable time and place he may select.
I take this law to be one of the grossest infringements of Christian Liberty, and, if the churches and ministers of our country were not stupidly blind, or most wickedly indifferent, they, too, would so regard it.
At the very moment that they are thanking God for the enjoyment of civil and religious liberty, and for the right to worship God according to the dictates of their own consciences, they are utterly silent in respect to a law which robs religion of its chief significance, and makes it utterly worthless to a world lying in wickedness. Did this law concern the “mint, anise, and cumin” — abridge the right to sing psalms, to partake of the sacrament, or to engage in any of the ceremonies of religion, it would be smitten by the thunder of a thousand pulpits. A general shout would go up from the church, demanding repeal, repeal, instant repeal! — And it would go hard with that politician who presumed to solicit the votes of the people without inscribing this motto on his banner. Further, if this demand were not complied with, another Scotland would be added to the history of religious liberty, and the stern old Covenanters would be thrown into the shade. A John Knox would be seen at every church door, and heard from every pulpit, and Fillmore would have no more quarter than was shown by Knox, to the beautiful, but treacherous queen Mary of Scotland. The fact that the church of our country, (with fractional exceptions), does not esteem “the Fugitive Slave Law” as a declaration of war against religious liberty, implies that that church regards religion simply as a form of worship, an empty ceremony, and not a vital principle, requiring active benevolence, justice, love and good will towards man. It esteems sacrifice above mercy; psalm-singing above right doing; solemn meetings above practical righteousness. A worship that can be conducted by persons who refuse to give shelter to the houseless, to give bread to the hungry, clothing to the naked, and who enjoin obedience to a law forbidding these acts of mercy, is a curse, not a blessing to mankind. The Bible addresses all such persons as “scribes, Pharisees, hypocrites, who pay tithe of mint, anise, and cumin, and have omitted the weightier matters of the law, judgment, mercy and faith.”
But the church of this country is not only indifferent to the wrongs of the slave, it actually takes sides with the oppressors. It has made itself the bulwark of American slavery, and the shield of American slave-hunters. Many of its most eloquent Divines. who stand as the very lights of the church, have shamelessly given the sanction of religion and the Bible to the whole slave system. They have taught that man may, properly, be a slave; that the relation of master and slave is ordained of God; that to send back an escaped bondman to his master is clearly the duty of all the followers of the Lord Jesus Christ; and this horrible blasphemy is palmed off upon the world for Christianity.
For my part, I would say, welcome infidelity! welcome atheism! welcome anything! in preference to the gospel, as preached by those Divines! They convert the very name of religion into an engine of tyranny, and barbarous cruelty, and serve to confirm more infidels, in this age, than all the infidel writings of Thomas Paine, Voltaire, and Bolingbroke, put together, have done! These ministers make religion a cold and flinty-hearted thing, having neither principles of right action, nor bowels of compassion. They strip the love of God of its beauty, and leave the throng of religion a huge, horrible, repulsive form. It is a religion for oppressors, tyrants, man-stealers, and thugs. It is not that “pure and undefiled religion” which is from above, and which is “first pure, then peaceable, easy to be entreated, full of mercy and good fruits, without partiality, and without hypocrisy.” But a religion which favors the rich against the poor; which exalts the proud above the humble; which divides mankind into two classes, tyrants and slaves; which says to the man in chains, stay there; and to the oppressor, oppress on; it is a religion which may be professed and enjoyed by all the robbers and enslavers of mankind; it makes God a respecter of persons, denies his fatherhood of the race, and tramples in the dust the great truth of the brotherhood of man. All this we affirm to be true of the popular church, and the popular worship of our land and nation — a religion, a church, and a worship which, on the authority of inspired wisdom, we pronounce to be an abomination in the sight of God. In the language of Isaiah, the American church might be well addressed, “Bring no more vain ablations; incense is an abomination unto me: the new moons and Sabbaths, the calling of assemblies, I cannot away with; it is iniquity even the solemn meeting. Your new moons and your appointed feasts my soul hateth. They are a trouble to me; I am weary to bear them; and when ye spread forth your hands I will hide mine eyes from you. Yea! when ye make many prayers, I will not hear. YOUR HANDS ARE FULL OF BLOOD; cease to do evil, learn to do well; seek judgment; relieve the oppressed; judge for the fatherless; plead for the widow.”
The American church is guilty, when viewed in connection with what it is doing to uphold slavery; but it is superlatively guilty when viewed in connection with its ability to abolish slavery. The sin of which it is guilty is one of omission as well as of commission. Albert Barnes but uttered what the common sense of every man at all observant of the actual state of the case will receive as truth, when he declared that “There is no power out of the church that could sustain slavery an hour, if it were not sustained in it.”
Let the religious press, the pulpit, the Sunday school, the conference meeting, the great ecclesiastical, missionary, Bible and tract associations of the land array their immense powers against slavery and slave-holding; and the whole system of crime and blood would be scattered to the winds; and that they do not do this involves them in the most awful responsibility of which the mind can conceive.
In prosecuting the anti-slavery enterprise, we have been asked to spare the church, to spare the ministry; but how, we ask, could such a thing be done? We are met on the threshold of our efforts for the redemption of the slave, by the church and ministry of the country, in battle arrayed against us; and we are compelled to fight or flee. From what quarter, I beg to know, has proceeded a fire so deadly upon our ranks, during the last two years, as from the Northern pulpit? As the champions of oppressors, the chosen men of American theology have appeared — men, honored for their so-called piety, and their real learning. The Lords of Buffalo, the Springs of New York, the Lathrops of Auburn, the Coxes and Spencers of Brooklyn, the Gannets and Sharps of Boston, the Deweys of Washington, and other great religious lights of the land have, in utter denial of the authority of Him by whom they professed to be called to the ministry, deliberately taught us, against the example or the Hebrews and against the remonstrance of the Apostles, they teach that we ought to obey man’s law before the law of God.
My spirit wearies of such blasphemy; and how such men can be supported, as the “standing types and representatives of Jesus Christ,” is a mystery which I leave others to penetrate. In speaking of the American church, however, let it be distinctly understood that I mean the great mass of the religious organizations of our land. There are exceptions, and I thank God that there are. Noble men may be found, scattered all over these Northern States, of whom Henry Ward Beecher of Brooklyn, Samuel J. May of Syracuse, and my esteemed friend (Rev. R. R. Raymond) on the platform, are shining examples; and let me say further, that upon these men lies the duty to inspire our ranks with high religious faith and zeal, and to cheer us on in the great mission of the slave’s redemption from his chains.
One is struck with the difference between the attitude of the American church towards the anti-slavery movement, and that occupied by the churches in England towards a similar movement in that country. There, the church, true to its mission of ameliorating, elevating, and improving the condition of mankind, came forward promptly, bound up the wounds of the West Indian slave, and restored him to his liberty. There, the question of emancipation was a high religious question. It was demanded, in the name of humanity, and according to the law of the living God. The Sharps, the Clarksons, the Wilberforces, the Buxtons, and Burchells and the Knibbs, were alike famous for their piety, and for their philanthropy. The anti-slavery movement there was not an anti-church movement, for the reason that the church took its full share in prosecuting that movement: and the anti-slavery movement in this country will cease to be an anti-church movement, when the church of this country shall assume a favorable, instead of a hostile position towards that movement. Americans! your republican politics, not less than your republican religion, are flagrantly inconsistent. You boast of your love of liberty, your superior civilization, and your pure Christianity, while the whole political power of the nation (as embodied in the two great political parties), is solemnly pledged to support and perpetuate the enslavement of three millions of your countrymen. You hurl your anathemas at the crowned headed tyrants of Russia and Austria, and pride yourselves on your Democratic institutions, while you yourselves consent to be the mere tools and body-guards of the tyrants of Virginia and Carolina. You invite to your shores fugitives of oppression from abroad, honor them with banquets, greet them with ovations, cheer them, toast them, salute them, protect them, and pour out your money to them like water; but the fugitives from your own land you advertise, hunt, arrest, shoot and kill. You glory in your refinement and your universal education yet you maintain a system as barbarous and dreadful as ever stained the character of a nation — a system begun in avarice, supported in pride, and perpetuated in cruelty. You shed tears over fallen Hungary, and make the sad story of her wrongs the theme of your poets, statesmen and orators, till your gallant sons are ready to fly to arms to vindicate her cause against her oppressors; but, in regard to the ten thousand wrongs of the American slave, you would enforce the strictest silence, and would hail him as an enemy of the nation who dares to make those wrongs the subject of public discourse! You are all on fire at the mention of liberty for France or for Ireland; but are as cold as an iceberg at the thought of liberty for the enslaved of America. You discourse eloquently on the dignity of labor; yet, you sustain a system which, in its very essence, casts a stigma upon labor. You can bare your bosom to the storm of British artillery to throw off a threepenny tax on tea; and yet wring the last hard-earned farthing from the grasp of the black laborers of your country. You profess to believe “that, of one blood, God made all nations of men to dwell on the face of all the earth,” and hath commanded all men, everywhere to love one another; yet you notoriously hate, (and glory in your hatred), all men whose skins are not colored like your own. You declare, before the world, and are understood by the world to declare, that you “hold these truths to be self evident, that all men are created equal; and are endowed by their Creator with certain inalienable rights; and that, among these are, life, liberty, and the pursuit of happiness;” and yet, you hold securely, in a bondage which, according to your own Thomas Jefferson, “is worse than ages of that which your fathers rose in rebellion to oppose,” a seventh part of the inhabitants of your country.
Fellow-citizens! I will not enlarge further on your national inconsistencies. The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretence, and your Christianity as a lie. It destroys your moral power abroad; it corrupts your politicians at home. It saps the foundation of religion; it makes your name a hissing, and a bye-word to a mocking earth. It is the antagonistic force in your government, the only thing that seriously disturbs and endangers your Union. It fetters your progress; it is the enemy of improvement, the deadly foe of education; it fosters pride; it breeds insolence; it promotes vice; it shelters crime; it is a curse to the earth that supports it; and yet, you cling to it, as if it were the sheet anchor of all your hopes. Oh! be warned! be warned! a horrible reptile is coiled up in your nation’s bosom; the venomous creature is nursing at the tender breast of your youthful republic; for the love of God, tear away, and fling from you the hideous monster, and let the weight of twenty millions crush and destroy it forever!
But it is answered in reply to all this, that precisely what I have now denounced is, in fact, guaranteed and sanctioned by the Constitution of the United States; that the right to hold and to hunt slaves is a part of that Constitution framed by the illustrious Fathers of this Republic.
Then, I dare to affirm, notwithstanding all I have said before, your fathers stooped, basely stooped
To palter with us in a double sense:
And keep the word of promise to the ear,
But break it to the heart.
And instead of being the honest men I have before declared them to be, they were the veriest imposters that ever practiced on mankind. This is the inevitable conclusion, and from it there is no escape. But I differ from those who charge this baseness on the framers of the Constitution of the United States. It is a slander upon their memory, at least, so I believe. There is not time now to argue the constitutional question at length — nor have I the ability to discuss it as it ought to be discussed. The subject has been handled with masterly power by Lysander Spooner, Esq., by William Goodell, by Samuel E. Sewall, Esq., and last, though not least, by Gerritt Smith, Esq. These gentlemen have, as I think, fully and clearly vindicated the Constitution from any design to support slavery for an hour.
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a track of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman. Ex-Vice-President Dallas tells us that the Constitution is an object to which no American mind can be too attentive, and no American heart too devoted. He further says, the Constitution, in its words, is plain and intelligible, and is meant for the home-bred, unsophisticated understandings of our fellow-citizens. Senator Berrien tell us that the Constitution is the fundamental law, that which controls all others. The charter of our liberties, which every citizen has a personal interest in understanding thoroughly. The testimony of Senator Breese, Lewis Cass, and many others that might be named, who are everywhere esteemed as sound lawyers, so regard the constitution. I take it, therefore, that it is not presumption in a private citizen to form an opinion of that instrument.
Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.
I have detained my audience entirely too long already. At some future period I will gladly avail myself of an opportunity to give this subject a full and fair discussion.
Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work the downfall of slavery. “The arm of the Lord is not shortened,” and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic, are distinctly heard on the other. The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, “Let there be Light,” has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen, in contrast with nature. Africa must rise and put on her yet unwoven garment. “Ethiopia shall stretch out her hand unto God.” In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:
God speed the year of jubilee
The wide world o’er
When from their galling chains set free,
Th’ oppress’d shall vilely bend the knee,
And wear the yoke of tyranny
Like brutes no more.
That year will come, and freedom’s reign,
To man his plundered fights again
Restore.
God speed the day when human blood
Shall cease to flow!
In every clime be understood,
The claims of human brotherhood,
And each return for evil, good,
Not blow for blow;
That day will come all feuds to end.
And change into a faithful friend
Each foe.
God speed the hour, the glorious hour,
When none on earth
Shall exercise a lordly power,
Nor in a tyrant’s presence cower;
But all to manhood’s stature tower,
By equal birth!
That hour will come, to each, to all,
And from his prison-house, the thrall
Go forth.
Until that year, day, hour, arrive,
With head, and heart, and hand I’ll strive,
To break the rod, and rend the gyve,
The spoiler of his prey deprive —
So witness Heaven!
And never from my chosen post,
Whate’er the peril or the cost,
Be driven.

Source: Frederick Douglass: Selected Speeches and Writings, ed. Philip S. Foner (Chicago: Lawrence Hill, 1999), 188-206.

Tuesday, June 26, 2018

Execution Watch: 6/27/2018

On Wednesday night the State of Texas will kill again...

DANNY BIBLE. Convicted and sentenced to death in the ice-pick slaying of a Houston woman in 1979. The crime went unsolved for 20 years. Bible’s appellate attorneys argued that Bible’s execution would serve no purpose, since he is no longer a threat to society. He is suffering from Parkinson’s and is confined to a wheelchair. A prison van taking him to death row in 2003 crashed, disabling him, killing a corrections officer and killing the driver of another vehicle. If Bible is granted a stay, the show will be happily canceled.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, June 27, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Sunday, June 24, 2018

Some light reading for a Sunday morning

Here are a few non-law related articles I've come across recently that I found quite interesting...

First, you've heard at least one of your relatives, classmates or co-workers comment that all Asian people look alike. If we take a look at how well people can identify folks of different races or ethnic groups, there is more than a little truth in the statement. We know, for instance, that a white witness is less likely to pick the differences out among a lineup of black or Latino males than a bunch of white guys.

In  preparing for their World Cup opener, the South Korean team tried an experiment to see just how well white folk (Swedes, for instance) could tell the difference among Korean soccer players by switching numbers in their World Cup warm-up games.

Back when I was in high school, ESPN was still undergoing birthing pains. If you watched the channel's update in the morning to see what was on during the rest of the day you could feel their pain, too. From tractor pulls to Aussie Rules Football to lumberjack contests and everything in between -- except for live sporting events from the NFL, NBA, MLB or NCAA.

Back in the early 80's I was a big boxing fan. ESPN teamed up with the ever-corrupt Top Rank, Inc. (headed by Bob Arum - who only looked honest when sitting next to his main competitor, Don King). They put together a live weekly boxing show called Top Rank Boxing that featured a bunch of up-and-comers and soup cans. One of the most popular fighters was a New Jersey middleweight names Bobby Czyz. His career didn't quite work out as expected. Here is the story of how boxing chews up and spits out fighters.

I'm no Aggie, but I'll be one of the first to admit that Johnny Football was one hell of a college quarterback. I still remember sitting on my brother's sofa that Saturday afternoon when A&M dealt a beatdown to Alabama in Tuscaloosa. Damn, could that kid ball.

Unfortunately, being coddled all his life because of his talent didn't do Johnny Manziel any favors in the maturity department. His career in the NFL never got off the ground because he couldn't stay out of trouble - and without a silver-haired coach or big money boosters to shield him, his foibles played out on ESPN and TMZ on a regular basis. I think his decision to leave college early was one of the worst decisions he could have made -- he needed some more time to mature before going off on his own.

Johnny Football hit rock bottom and now he's trying to climb out of the hole he dug one step at a time. Here's a look at his most recent comeback. And, just as I wanted Vince Young to return to the big stage, I hope Johnny makes a return one day. Kids with that much talent deserve a shot.

Friday, June 22, 2018

Changing times, changing minds

On Thursday, the US Supreme Court handed down its long-awaited decision in the Wayfair case. In its opinion, the Court held that the physical presence rule instituted under National Bellas Hess in 1967 and affirmed in Quill in 1992 was out of date and was no longer to be used to determine whether a company had sufficient minimum contacts with a state. The ruling will allow states to require online companies with no physical presence in the state to collect and remit sales tax revenue from customers.

But what, you ask, does that have to do with criminal law or anything else discussed on this blog? The answer is the substance of the case has absolutely nothing to do with anything covered in this space. What is interesting, however, is that a fairly long-standing precedent was overturned by a 5-4 vote with two justices voting to overturn the precedent they had previously voted to retain.

I think when we think of the US Supreme Court we envisage nine wise folk wearing black robes and issuing proclamations about the law with all weight of a papal bull. But that's not how it works.

In law school we have the concept of stare decisis pounded into our brains at every turn. The practice of law is really the practice of finding precedent to support your position and fitting the facts into a framework laid out by the court. The court's role is to make its ruling as narrow as possible so as to fit the new ruling into the patchwork of precedent.

What we generally see in a case is a slight shift in the application of the law justified by some little fact that makes this particular case different than the cases that came before it. That way precedent is honored and narrow exceptions are made.

But in Wayfair two judges changed their minds. It wasn't that the fact patterns were different. Unlike many opinions in which the court makes an exception to existing precedent, the opinion didn't get into the game of distinguishing fact patterns and why this one particular fact, or facts, made the difference. Instead the opinion spoke of changed times and changed minds.

Thus the edicts passed down from the Supreme Court aren't infallible and they aren't written in stone. They are subject to change. The minds of the justices are subject to change. And what the law is and isn't might hinge on the shifting sands of one justice's mind.

And if you don't like the rulings a particular justice makes, rest assured, one day he or she will not be sitting up behind the desk wearing a black robe. Someone else, someone with a different opinion, may be sitting up there in his or her stead. The makeup of the court will change as will its reputation.

Maybe there is still some hope out there for the Fourth Amendment.

Wednesday, June 20, 2018

Protecting the kids, Georgia style

This past week the Georgia Supreme Court did itself proud as it declared that being placed on a child abuse registry without notice isn't a punitive measure, that it doesn't deprive anyone of a liberty interest and that due process just doesn't apply when we're doing something to protect the kids.

Georgia maintains a child abuse registry and limits access to government agencies, law enforcement and childcare facilities. The general public does not have access to the database.

One can be placed on the registry if an investigator with the Georgia Department of Human Services, Division of Family and Children Services (DFCS) substantiates an allegation. To substantiate an allegation, the allegation must be confirmed by a preponderance of the evidence. The abuse investigator then files a report and the person's name is added to the registry. The person then receives a notice from the state and has 10 days to appeal the decision before an administrative law judge.

Now I will concede that being placed on the Georgia child abuse registry isn't the same as being placed on a sex offenders' registry since the database isn't available to the general public, but, it's never a good thing to have your name added to any list the government is compiling for allegedly doing something wrong.

And the Georgia Supreme Court showed how out of touch with reality they are when they decided that being placed on such a registry doesn't deprive an individual of a liberty interest. The court wasn't concerned with anyone being defamed by the state nor were they concerned with any possible legal consequences down the road. If you can't show that you have been affected negatively by being added to the registry, then too bad.

But the bigger issue here is the process by which it happens. The state doesn't have to notify an individual that they are being added to the registry - the state just has to provide notice after the fact. The person being added to the list isn't entitled to cross-examine the accuser nor to put on an evidence before being added to the registry. He only has the right to appeal the decision after his name has been added.

Now it's time for you to decide if this notice is sufficient to inform a person of what they are accused of or if it's just a vague piece of mumbo-jumbo.
You were substantiated on as a result of K.S. maltreator exposed the child to inappropriate sexual contact which resulted in the maltreator inappropriately touched and dry humped her in the residence of the legal guardian.
The Georgia Supreme Court found that this constituted sufficient notice. It is grammatically incorrect and the sentence (if you can call it that) borders on incomprehensible.

It's much easier to win a trial as defendant than it is to win on appeal. At trial every presumption is supposed to go to the defendant (of course we know that is often just a fiction we tell ourselves), on appeal every presumption goes to the side that won at trial.

In the case of the Georgia child abuse registry, all it takes to find your name on it is for an investigator to find the alleged victim has moved the ball past the 50-yard line -- without the other side being heard. In addition, in the scenario at hand, we have an investigator (a member of the executive branch) being tasked with making what would appear to be a judicial decision by determining whether or not the allegation was "proven" by a preponderance of the evidence.

But the Georgia Supreme Court wasn't having any of that. They decided that administrative agencies can make quasi-judicial decisions in the course of implementing the law. The court said the use of the term "preponderance of the evidence" didn't make the investigator's job a judicial function because those words just give guidance to the department.

Most troubling, though, was the court's finding that not providing notice before being added to the registry doesn't violate a person's right to due process. The court decided that since there is a procedure in place for a person to appeal the decision that sending a letter with a vague description of what the person was accused of is sufficient to pass muster with the 14th Amendment.

This decision shows just how far a court is willing to go "to protect the kids."

h/t Andrew Fleishman



Monday, June 18, 2018

The problem with proving the unknown

In an article for The Intercept last week, Jordan Smith hit upon the ultimate problem with prosecutorial misconduct -- proving it is damn near impossible with imperfect information.

Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.
When it was his turn to speak, [Shannon] Edmonds applauded [Stacey] Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.
As Ms. Smith points out in her article, the problem with using an analysis of Court of Criminal Appeals opinions as the basis for your thesis is that most instances of prosectutorial misconduct don't make it up the chain for a variety of reasons.

The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.

While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.

In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.

The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.

Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.

If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?

Wednesday, June 13, 2018

Harris County Chief Public Defender under fire

Alex Brunin is the Chief Public Defender for Harris County. His clientele consists of those who haven't the money to hire an attorney to defend themselves in criminal court.

He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.

The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.

As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.

His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.

Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.

Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.

Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.

But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.

If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.

After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.

And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.

Monday, June 11, 2018

Removing the mask

For years libertarians have described their philosophy in terms of allowing people to do as they wish so long as they don't infringe upon the rights of others to do the same. The less public face of their movement was to allow businesses to operate with as little government intervention as possible in order to maximize their profits.

So, while the one hand called for the freedom of individuals to have sex with whomever they wanted, to do recreational drugs in their homes and to be left alone by the nosy neighbors, the other hand called for an end to unionization, worker safety, environmental protection and the minimum wage. But, surprisingly enough, no one raised their voice about the price of a product reflecting its true cost.

Let me explain, gasoline is sold fairly cheaply compared to what it really costs society (but believe me, I'm none too happy to see that price edging upward whenever I have to fill up the tank). The price we pay at the pump doesn't take into account the cost of operating military bases in other countries in order to ensure the oil flows from the ground into tankers and into US ports. The price doesn't include the damage to the environment caused by extractive industry.

The libertarians aren't losing any sleep over this failure of the market. They don't care about the environmental damage because "the environment" isn't private property; therefore it's free to pollute to your heart's extent. Think of Adam Smith and the tragedy of the commons. And the libertarians are more than happy to use your tax dollars to fund the military occupation of other countries so long as it means the flow of oil continues uninterrupted.

Libertarians have always puffed their chests out proudly with their veneration and love for "the market." They have long preached the gospel of the unfettered market. Throw anything up against the wall - be it a good, a service, an idea - and the marketplace will sort it out and determine which goods, services and ideas are winners and which are losers. The idea was that the more stuff you put out there, the more options everyone had to choose from.

But now, as racism has become more acceptable with Donald Trump in the White House, the true face of libertarianism is making itself seen. Michelle Ray, who goes by the handle @GaltsGirl (an Ayn Rand reference for those of y'all not familiar with libertarian deities), thinks private businesses should be free to discriminate on the basis of race, sex, sexual orientation, religion or whatever other criteria they wish to use.

Don't look at me. I think a privately owned business should be able to discriminate for any reason at all. And then to deal with the market reaction to such discrimination.

I don't think I'm going out on a limb when I say that I doubt Ms. Ray spent her formative years in the American South in the 1950's and 60's. I'm also going to guess that Ms. Ray is white - again, not too much of a leap. According to Ms. Ray's philosophy, segregated schools, housing, restaurants, bus lines, trains, water fountains and restrooms are fine. If folks aren't happy with such discrimination, they are free to take their business elsewhere. Does she not understand history? Does she not understand that racial discrimination existed because the majority of (white) people were in favor of it?

So, in conclusion, I'd like to thank Ms. Ray -- and all those folks who liked her post - for speaking up and showing the world what libertarianism is really all about.

Saturday, June 9, 2018

Goodbye, Anthony

Reading about the death of Anthony Bourdain yesterday made me sad. I remember when his show No Reservations came out. It was a fascinating mix of food and culture. I could not get enough of it.

Back in December 2008 I wrote a short blog piece about how every little piece of knowledge you acquire makes you realize there is so much more to know. That piece was inspired by a quote from Bourdain's show about his trip up Macchu Pichu.

There are some things that have changed since that piece was published and there are some things I would change if I were to write it again. But, this article is one of the first things I thought about when I heard that he had died.

If you are suffering from depression, please don't be afraid to talk to someone about it. Your friends are your friends regardless. If you know someone who suffers from depression, reach out to them. Let them know you're there. The world is a better place when we look out for each other.

This is for you, Anthony. May we continue to realize how little we know about the universe in which we live...

The More I Know, The Less I Know

The other night I was watching Anthony Bourdain trekking through Peru and he made a comment (I'm sorry but I don't know who said it first) that the more he learned, the less he knew.  

At first it sounded quite paradoxical, but then, as I thought about it, it began to make sense.  When we are born we know nothing, our world is the six inches in front of us; but, as we absorb all that we come into contact with, our world expands.  

As a child we are the center of our own universes.  Everything outside is a mere abstraction.  But the more knowledge we absorb the more we come to understand that we are but a small piece in a much larger mosaic.

The same dynamic continues as we move into adulthood.  Seven years ago my (now)wife and I spent the holidays backpacking through Spain.  In those two-and-a-half weeks I learned a lot about Spain, her traditions and her history, but I also learned a lot about myself, my relationship with my wife and my country.  Things kind of fell into perspective as I sat in a church that was built before the pilgrims landed in the Americas for midnight mass.

As a criminal defense attorney I find the more I learn about DWI law, the breath test machine, police coordination tests, jury selection and closing argument, the less I know.  Every new door I open up reveals another.

Strive to know less.

Friday, June 8, 2018

Let the beatings continue

For those of y'all who live in Donald Trump's fantasy world, this is the reality of why Colin Kaepernick took a knee during the playing of the national anthem.

This is the reason that organizations such as Black Lives Matter exist.

This is the reality that people of color find themselves in in this country.

This is what those promoting the inherently racist line of Blue Lives Matter would like you to forget.



What was this man's crime, you ask? The police were called to an apartment complex in Phoenix on a domestic violence call. The man in the video had nothing to do with the alleged incident. Even though he wasn't involved in the incident, he cooperated with the police. He leaned against a wall. He allowed officers to frisk him. He answered questions. But when he was asked to sit against the far wall and he just squatted, that's when the police had enough and assaulted him.

If you think this same shit doesn't occur all over this country then you are either blind, ignorant or a racist.

So the next time you hear Donald Trump, or some other windbag, throw shade on black athletes who protest peacefully during the playing of the national anthem, just remember this video.

And one other little thing, instead of being arrested and charged with assault, the officers involved are on a paid vacation.

h/t Stefania Okolie

Thursday, June 7, 2018

Update: Mob rule

The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.

There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.

In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.

Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?

The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.

One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.

Wednesday, June 6, 2018

Narrowly missing the point

nar·row
ˈnerō/
adjective
  1. 1.
    (especially of something that is considerably longer or higher than it is wide) of small width.
    "he made his way down the narrow road"
    synonyms:small, tapered, tapering, narrowing; More
  2. 2.
    limited in extent, amount, or scope; restricted.
    "his ability to get good results within narrow constraints of money and manpower"
    synonyms:limited, restricted, circumscribed, small, inadequate, insufficient, deficient
    "a narrow range of products"

Who knew that the word narrowly was so difficult to understand?

On Monday the US Supreme Court issued its ruling in the Masterpiece case -- otherwise known as the dude who refused to make a wedding cake for a gay couple case. In a 7-2 decision, the Court decided to punt the case down the road rather than deciding the case on its merits.

The media reported that the case was "narrowly" decided. Of course those who supported Jack Phillips' decision not to bake a cake for the gay wedding questioned how a 7-2 decision could be considered narrow. I would suspect that John Cornyn and Ted Cruz knew what "narrowly" deciding a case meant while they were sending out tweets in support of the decision claiming a victory for religion.

And, as an aside, if there was any doubt among y'all that the Republican Party stands for bigotry, hatred and discrimination, look no further than the officeholders who tweeted out about the decision and the words they used.

Anyone who paid attention in government class knows that the Supreme Court will always look to craft their opinion in a case as narrowly as possible since it is up to Congress to pass bills and the President to sign them into law. The purpose of judicial review (at least according to John Marshall) is to determine whether the application of a law is constitutional. The only time the Court strikes down a law itself as being unconstitutional is if there is no application of the law that can pass scrutiny.

This is the reason why lawyers will spend hours researching case law to find ways to distinguish the fact pattern in their case from existing precedent. If you can distinguish your case enough from those already decided by the court, you might just get the result you're looking for. And, in the same vein, it's why the lawyers on the other side will look for ways to pigeonhole the fact pattern in the case to an existing decision. As Tony D'Amato told his football team in Any Given Sunday, it's a game of inches.

In Masterpiece, the Court did not strike down the Colorado law Mr. Phillips was challenging. That would have been a broad decision - regardless of which way the Court leaned. In order to avoid having to make that decision, the Court looked at the application of the law in question and decided that the manner in which the hearing was held violated Mr. Phillips' right to freedom of religion (or, as I prefer, his right to use religion as a justification for discriminating against a group of people).

The Court wasn't happy that the commission who decided that Mr. Phillips violated the law seemed to be a bit hostile to his religious beliefs. Now, call me crazy, but if you're going to use religion as your defense to a claim that you discriminated against a couple because they were gay, then I think your religious beliefs are fair game in a hearing.

The funniest part of the right's celebrating the Court's ruling is that what the Court really did was instruct Colorado on the proper way to enforce their anti-discrimination statute. Let's think about this for a minute. The Court didn't declare the statute unconstitutional. The Court didn't say that forcing the baker to bake a cake for the gay couple infringed upon his religious beliefs. What the Court said was that the commission needed to conduct the hearing in a religion-neutral tone.

In other words, the next time the commission has to conduct such a hearing, the commission should let the baker give his reason for refusing to bake the cake. Then, instead of launching off into a speech as to how religion has long been used to justify racism, hatred, discrimination and violence, the commission should just ask him whether or not there was any other reason for him to refuse to bake the cake other than his belief that homosexuality was a sin.

If he were to say no, the commission could then vote and issue a ruling that he violated the statute in refusing to bake the cake. Based on Monday's decision, that would be upheld.

Of course the most amusing part of the opinion was Justice Gorsuch losing the plot and trying to explain what was a wedding cake and what wasn't and why it mattered.

Tuesday, June 5, 2018

Who wants an independent judiciary anyway?

Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.

The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.

She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.

Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.
In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.

Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.

Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.

But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.

The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.

Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.
The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.
“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”

We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.

Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.

The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.

Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.

Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.

Monday, June 4, 2018

The problem with a property-based Fourth Amendment analysis

One fine day Ryan Collins went out riding a distinctive orange and black motorcycle. I'm going to assume that the weather was fine and the traffic was fairly light because he was cruising around at speeds approaching 140 mph.

While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.

Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway.  Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.

Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.

Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.

The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.

The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.

Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.

Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.

While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.

And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"

Monday, May 28, 2018

Bargaining with the devil

Corey Williams is a free man.

He spent 20 years in the Angola prison in Louisiana for a murder he didn't commit. Back in 1998, Mr. Williams was a developmentally challenged 16-year-old when Jarvis Griffin, a pizza delivery man, was shot and killed while delivering a pizza to a home in Shreveport.

Witnesses reported seeing some older men taking money and pizzas from Mr. Griffin. Those same witnesses said that Mr. Williams left the house empty-handed. Fingerprints on the murder weapon belonged to someone else and blood was found on the clothing of another suspect. There was no physical evidence linking Mr. Williams to the crime.

He was found by police hiding under a sheet at his grandmother's house. He denied killing Mr. Griffin but later, after hours of interrogation, changed his story. His confession lacked corroborating details.

Mr. Williams was convicted of the murder and sentenced to die. That death sentence was overturned by a district judge in 2004 because of Mr. Williams' mental disabilities.

Meanwhile, prosecutors had recordings of witness statements in which police indicated they believed that Mr. Williams was being framed for the murder. Dale Cox, the former Caddo Parish district attorney, argued in 2015 that he didn't have to turn over the recordings because defense attorneys hadn't proven that the recordings were exculpatory.

In the end, 44 former prosecutors and Justice Department officials signed a brief in support of Mr. Williams' claims before the US Supreme Court.

The appeal will never be heard because last week Mr. Williams agreed to plead guilty to manslaughter and obstruction of justice. The murder conviction was vacated and he was sentenced to time served.

On the one hand, we should be happy because an innocent man is now free; on the other hand, he shouldn't have had to agree to a plea deal to gain his freedom. Prosecutors played fast and loose with the rules and didn't hand over evidence that should have been disclosed prior to trial. Of course Mr. Williams couldn't prove anything on the recordings was exculpatory because he hadn't been allowed to listen to the recordings.

This is the problem with Brady material. The evidence is in the possession of the folks who are trying to convict the accused. The defense rarely knows what the state has in its possession if prosecutors decline to disclose it. As an aside, in Harris County (and the surrounding counties), prosecutors have open file policies of varying degrees - though it doesn't stop some evidence from being withheld.

Mr. Williams was forced to plead guilty because of the fear that his appeal would be denied. He was forced to plead in order to gain his freedom so that prosecutors could still point to a conviction in his case and so that the state wouldn't have to compensate him for the time he was locked up.

That was wrong. Once the whole story emerged in this case, the District Attorney should have asked a judge to vacate the conviction and order Mr. Williams freed. But even when the facts and law are on the side of the defendant, the state has the power.

Saturday, May 26, 2018

Perverting history

As is to be expected in this era of forced patriotism and blind support of the military, NASCAR has forgotten what Memorial Day is supposed to be about. This weekend, NASCAR competitors will run with tires that say "Support Our Troops" instead of "Eagle." However, since this is all about the advertising, they will still say "Goodyear."

Need I remind anyone that the point of Memorial Day is to remember those who have fallen in service to their country (or corporate overlords as the case may be), not to go all RAH! RAH! for the military.

Memorial Day began as Decoration Day in the late-1860's -- a day to remember those who died in the Union cause during the Civil War. It remained a day of remembrance for the Civil War up until the time the US got involved in World War I - a war fought among European colonial powers. It became a federal holiday in 1971.

But, as they say in wrestling, going all pro-military is cheap heat for NASCAR and its reactionary supporters. And to further pervert the original meaning of the day, I guarantee you that there will be confederate flags on poles and t-shirts all around Charlotte Motor Speedway.

Of course, in fairness, Major League Baseball isn't much better in "celebrating" Memorial Day by having teams wear uniforms with camouflage script.

Friday, May 25, 2018

A false idol?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  -- 2nd Amendment

In the wake of the latest school shooting, I must ask, once again, why is the 2nd Amendment considered so sacrosanct?

The 1st Amendment states that "Congress shall make no law... abridging the freedom of speech." Subsequent constitutional jurisprudence extended this prohibition to the states under the 14th Amendment.

Yet we have plenty of laws that restrict the right to free speech. If you threaten to cause bodily harm to another you have committed a criminal act. If you spread a falsehood about another person you have committed a tort. During World War I you could be arrested if you dared to speak out against the war effort.

The 4th Amendment is supposed to protect us from unreasonable search and seizure. That language was interpreted by the courts to mean the police had to have a warrant to search you, your belongings or your property. As I've said many times before, the 4th Amendment has had so many exceptions cut out of it that it resembles a piece of swiss cheese. In almost every one of those decisions, the Supreme Court created an exception so they wouldn't have to overturn a conviction.

The 5th Amendment says you cannot be compelled to be a witness against yourself. In the context of a DWI case, your refusal to consent to field sobriety exercises or to a breath test can be used as evidence of your guilt at trial. Courts have also done their part in narrowly defining what could be considered testimony, saying an arrest isn't an arrest when it suits the police or prosecution and what the magic words are that a suspect has to utter to preserve his right to remain silent.

For most of our history, the 2nd Amendment was viewed in the context of its first clause, the so-called "militia clause." It wasn't until the late 1970's that the NRA (which supported strengthening gun control measures after the Black Panthers started carrying guns), began touting the 2nd Amendment as an individual right. In fact, the first case that struck down a gun control measure was the Heller case in 2008.

Is the abridged version of the 2nd Amendment held up for adulation more than any of the other amendments because it's not protecting a right of the citizen accused? Does that someone make it more worthy than the others?

The notion that one amendment is sacrosanct while the others are all malleable flies in the face of this country's jurisprudence. It even flies in the face of laws currently on the books. It's against the law for a convicted felon to own a firearm. It's against the law for a person convicted of domestic violence to possess a firearm.

Now I'm not going to sit here and say that stricter gun control measures could have prevented any of the recent school shootings. I also agree with the sentiment that making something illegal doesn't make it go away. But we don't repeal murder laws because folks keep killing each other. I do believe that we need to figure out what it is at the core of our national psyche that makes us the killing machines that we are. We are, at our core, a sick group of people and until we find a cure for the illness, the shootings will continue.

But we need to get past this (recent) notion that the 2nd Amendment is somehow more important than the others. Until then the shootings will continue.


Wednesday, May 23, 2018

Texas fights to make it harder to vote

The State of Texas will do everything it can to make it harder for residents to register to vote. And by now it should be obvious, even to the most dyed-in-the-wool Trumpkin that these efforts are designed to restrict the number of Texans who are able to exercise their right to vote.

The latest salvo is a ruling from US District Judge Orlando Garcia who told the state it had 45 days to create an online system to allow folks to register to vote when renewing their driver's license online. The current system directs people to the Secretary of State's website and instructs them to print out an application and mail it to their local county clerk's office. Judge Garcia said that system is not in compliance with federal law.

It is not known what argument Attorney General Ken Paxton will make in support of the state's current system - other than telling the judge that the only way the GOP will continue to dominate state electoral politics is to keep the blacks and browns from voting as much.

And, when given the opportunity to propose a fix, state officials looked at each other and just shrugged their shoulders.

The demographics of this state are changing rapidly and the old, white power structure knows that the only way for them to maintain their power in this state is to do everything in their power to restrict the right to vote. And that's what this is all about. It has nothing to do with the Republican bogey-man of voter fraud. It's all about manipulating the system in such a way so that the minority exercise more electoral power than the majority.

Tuesday, May 22, 2018

Book review: The Cadaver King and the Country Dentist

I just finished an excellent book from Radley Balko and Tucker Carrington Sunday night as the storm raged around us. And by excellent I, of course, mean a book that got me so angry I wanted to hurl my phone across the room. The book is The Cadaver King and the The Country Dentist.


While the book focuses on Steven Hayne and Mark West, the book serves as a warning to all those out there who think judges in criminal courts are doing a good job of keeping junk science out of the courtroom. If you represent plaintiffs with claims against insurance companies and large corporations, then the judges act as stern gatekeepers of scientific evidence - doing all they can to exclude any scientific evidence that might cause someone to have to write a big check. But, when the actual lives of people are at stake, judges are only too willing to allow in any junk science sponsored by the State. Any problems with the testing or methodology, of course, goes to the weight of the evidence and not its admissibility.

Mr. Hayne was a forensic pathologist - at least that's what he called himself. Coroners throughout Mississippi were only too happy to farm out autopsies to him since he would do everything in his power to bend his findings to confirm what the police believed. By his own admission he would perform up to five autopsies a day - day after day after day. He gave expert opinions in fields in which he had no formal training or certification. And even after he was discredited, Mississippi prosecutors and the Attorney General still defended his opinions against attack on appeal.

Mr. West was a local dentist who passed himself off, with the help of compliant judges across the state, as an expert in multiple fields including bite mark analysis, tool mark comparison as well as others. Even after being caught on film jamming casts of mouths onto the skin of deceased victims, judges continued to allow him to testify.

Thanks to the testimony of these two, as well as the win-at-all-costs mentality of small town prosecutors, Mr. Hayne and Mr. West were responsible for sending two innocent men to death row -- Levon Brooks and Kennedy Brewer. And then, even after the evidence that convicted the men was discredited, prosecutors fought like hell to keep the two men behind bars.

One point the authors emphasize in the closing chapter of the book is something that we as trial lawyers need to sit down and digest. According to the US Supreme Court's Daubert ruling, scientific evidence can be admitted to court if the court finds the science is generally accepted. But what makes a field of scientific inquiry "generally accepted?" In the legal field we are looking for answers right now, but science isn't concerned with a timeline. Science is concerned with getting it right - regardless of how long the process takes. Just because some piece of scientific evidence is deemed to be generally accepted now, a few years down the road we may learn that the entire inquiry was flawed. What happens to those men and women sitting in prison based upon that evidence? And at what point does a field of inquiry cease to be generally accepted? Is it when the first critical analysis is published? The second? And how are we - and more importantly, our clients, to know?

The other big issue they touch on is the very nature of forensic science. Unlike so-called "pure science," forensic science is developed specifically for use in the legal system. There's no rigor of peer review. Frequently articles are published in magazines aimed at law enforcement or others in that field of inquiry in journals that don't require articles to be peer-reviewed. Is it no wonder, then, that fields of inquiry such as bullet composition, bite mark analysis, blood spatter analysis, tool mark identification and others have been shown to be nothing more than junk science?

Saturday, May 19, 2018

Just win, baby

Chris Del Conte, the new athletic director at the University of Texas, has been making the rounds trying to drum up financial support for a renovation of the south end zone area and football offices.

He has talked about the need to improve the "game day atmosphere" at Texas football games in an effort to combat falling attendance. He has proposed closing off San Jacinto Street and turning it into a game day festival. He has suggested having concerts before and after games in the parking lot of the LBJ Library just north of the stadium. He has moved both the band and student sections for the upcoming season.

But here's the dirty little secret, Chris. None of the peripheral stuff matters. A festival in front of the stadium won't help the situation. A concert up the street from the stadium won't matter, either.

When Texas was competing for national championships and conference championships, no one ever said a word about how boring things were outside the stadium and before the games. No one cared. The team was winning - and that made the game day atmosphere special. If you want to improve the game day atmosphere - put a winning product on the field.

Over the last five years UT has been a .500 team. That's pathetic. It's so pathetic that some folks are willing to give their left nut for an 8-win season in 2018.

That's right - for an 8-win season.

I'm a season ticket holder. I drive up to Austin four or five times a season. My kids love going - they don't care about the final score. They like hanging out on campus and stopping at Buc-cee's in Bastrop.

Texas hasn't had a good team since the 2009 squad that lost to Alabama in the title game after Colt McCoy was injured in the first quarter. It gets harder and harder to justify the expense of buying tickets and driving up to Austin after every loss.

I don't care what's going on around the stadium before the game. We're just as likely to go bowling at the Texas Union before the game as we are to go to the Alumni center or wander around campus or up and down the Drag.

Chris and his staff need to remember that it's a lot cheaper to sit on the couch with a cooler full of beer and watch Texas lose than it is to make the trek to Austin. That's the difference between winning and losing.

Thursday, May 17, 2018

Same as it ever was

Now that the US Supreme Court has declared the Professional and Amateur Sports Protection Act unconstitutional and paved the way for legalized sports wagering across the country, yet more folks will make money at the expense of college athletes.

I'm not going to rehash the holding of the court because that heavy lifting has already been done. My focus is, instead, on the continued exploitation of college athletes under the guise of amateurism. This quaint notion goes back to 19th century England. The upper class decided their children were too soft from generations of sloth and so they encouraged their children to take up sports. In order to protect their precious snowflakes from the dirty masses, they came up with the idea of amateurism - a concept that allowed those who had the means not to have to work, to compete in athletic competitions with other like-minded souls. This notion extended to the relatively new sport of college football.

Before World War II, college was largely restricted to the children of the wealthy. That began to change after the war with the GI Bill which made college affordable for those who had served in the military. In the 60's - and into the 70's - colleges in the south were finally integrating both their student bodies and their athletic teams. The awarding of athletic scholarships suddenly made a college education for poor and black families.

All of this was well and good while college football remained a regional sport. When I grew up in the 70's and 80's, you were lucky to get three or four college games a Saturday. You would get a nationally televised game on ABC (and mayble a regional one, too). You might get a Notre Dame game and, if you were lucky, a syndicated game of the week. Let's just say the money wasn't exactly rolling into the coffers in those days.

In the 80's many colleges filed suit against the NCAA arguing that its television policies were hurting its members. The schools - and conferences - won the right to negotiate their own television contracts. You also had the birth of ESPN - and ESPN needed programming to fill its schedule.

Suddenly there was an explosion of television money in college sports.We went from a couple of live games a week to somewhere between one and two dozen games every Saturday. Networks paid increasing amounts of money for the rights to broadcast those games and the schools began making money.

Then there was the NCAA Men's Basketball Tournament. It began marketing itself as March Madness. The field expanded from 32 to 48 to 64 to 68 teams. CBS and Turner pay billions of dollars to televise the games.

Coaches were the first to reap the rewards of television money. Network and advertising executives took their cut. Video game makers created games and made millions off of college athletics. Sporting apparel companies made money selling jerseys and shirts. But the players saw none of it.

Now with sports betting legalized, sports books, casinos and racetracks across the country are gearing up to meet the expected demand. They are all ready to get their cut out of legal betting on college football and basketball games. The NCAA is talking about charging firms who take bets on college sports a fee to pay for increased monitoring of the sport.

But no one is talking about the players getting a piece of the pie. Gaming executives will get theirs. State treasuries will get theirs. Networks and ad agencies will get theirs. The NCAA will get theirs.

Yet once again the athletes will serve as nothing more than the vessel for money passing from one hand to another. Life down on the plantation will continue same as it ever was.




Tuesday, May 15, 2018

Execution Watch: 5/16/2018

On Wednesday night Texas looks to kill again...

JUAN CASTILLO, 37. Sent to death row for his role in a 2003 lovers' lane slaying in San Antonio. A string of death dates were called off in 2017, for everything from Hurricane Harvey to a witness who recanted.


The capital murder case against Mr. Castillo relied upon the testimony of Mr. Castillo's cellmate in the Bexar County Jail, Gerardo Guttierez, who later signed an affidavit admitting that he lied about Mr. Castillo's alleged confession. There was no physical evidence tying Mr. Castillo to the crime.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, May 16, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: