Welcome to the wild west

Welcome to the wild, wild West. This week the U.S. government offered a $10 million bounty for Hafiz Saeed, the founder of a Pakistani militant group who is believed to be responsible for the 2008 massacre in Mumbai, India that left 166 people, including six Americans, dead.

Keep in mind that Mr. Saeed has not been found guilty of being the man behind the massacre. There may very well be compelling evidence that he, or his organization, carried out the killing spree. But, as any of us who have worked in the courtroom know, just because the prosecution has evidence doesn't mean they can prove anything.

We are supposed to be a nation of laws. And those laws protect the people against the over-reaching arm of the state. The same laws that protect you and I from the oppressive power of the state, also protect those whom might not be so popular. Just as you and I are free (supposedly) from unreasonable search and seizure, so is the person accused of burglary, drug possession or driving while intoxicated.

We all have the right to due process. We have the right to have our cases heard before a jury of our peers - and those rights apply whether you are a citizen or not. If you are brought before the bench in a criminal courtroom in America, the Bill of Rights protects you whether you were born here or not.

What has the American government so worked up is the fact that while the crime occurred in India, the alleged mastermind is in Pakistan - outside the jurisdiction of either the Indian or American authorities. And if Pakistan won't pick Mr. Saeed up on an Indian warrant, well, there's just so much you can do.

By placing a bounty on Mr. Saeed's head, the American government is just asking for someone to put a bullet in Mr. Saeed. And doing that would deprive Mr. Saeed of his right to due process. For you see, if our government is posting the bounty that means our government wants him. And, if our government wants Mr. Saeed, then our government must afford him the same right to due process that we all have.

I'm no expert on Indian law. I have no idea what guarantees the accused has under their laws. If India wanted to post a bounty on Mr. Saeed, they could have done so and I don't know whether I'd have much to say about the matter.

But we're the ones who set up the new lottery in Pakistan. I can see the marketing line now - "What would you do with $10 million?" How many people will put themselves in harm's way for the pot of gold at the end of the rainbow?

If the U.S. really wants Mr. Saeed brought to trial to answer for his alleged misdeeds, just put pressure on the Pakistani government. The U.S. pumps millions of dollars into Pakistani coffers every year. But that won't happen. That would require a backbone. That would require someone to put the choice before the Pakistani government in stark terms.

Nope. It's much easier to put up a "Wanted: Dead or Alive" poster and forget about all that rule of law stuff.

Sunday morning roundup

Life is getting harder for troubled Galveston County District Clerk Jason Murray after his latest arrests for DWI and threatening to kill his wife. I'm not here to pass judgment on Mr. Murray but I think it's time he stepped down from his job as District Clerk so that he can address the demons with which he's been dealing. This man's life is spiraling out of control and the last thing he needs is the weight of elective office on his shoulders.

Public officials are walking on needles down in Galveston County after Commissioner's Court approved District Attorney Jack Roady's request for funds to hire a special prosecutor and investigator this week. No word on who the target of Mr. Roady's affections is but my guess is that it's someone at the courthouse.

If you're sitting around staring at your State Bar of Texas ballot trying to figure out who to vote for, might I (and Murray Newman) suggest Kimberly Samman? For far too long the State Bar has been the purview of the white shoe firms, Ms. Samman is a criminal defense attorney and she understands how criminal defense attorneys and solo practitioners operate.

And finally, God bless rain delays.

At the ol' ball game

It's time for the Boys of Summer. I'll be at the yard tonight for Opening Day. Enjoy.



Harry singing "Take Me Out to the Ballgame" at Wrigley.



Bobby Thomson's "Shot Heard 'Round the World."



Bill Mazeroski's walk-off blast against the Yankees in Game 7 of the 1960 World Series.



Chris Burke's 18th inning home run to win the wild card series against the Braves.



Hammerin' Hank becomes the King.

Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver's license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver's license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer's report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court's ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn't make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana's case that set the stage for the Supremes to decide the legislature didn't mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer's report wasn't necessary as the administrative law judge had the officer's sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called "paper case"), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

Prison officials fight disclosure of drug stockpiles

Somewhere along the line, the Texas Department of Criminal Justice seems to have forgotten that the government is supposed to serve the people - not the other way around.

Back in December an American reporter with a British newspaper, Ed Pilkington, filed a public information request with TCDJ inquiring about the stocks of lethal drugs in the state's medicine cabinet. Instead of providing the information as requested, Patricia Fleming, TCDJ's general counsel, claimed that releasing the information could endanger the vendors of the lethal drugs the State of Texas goes to for its fix.

Ms. Fleming claimed that the British anti-death penalty group Reprieve might mount a campaign of terror against any company that manufactured or supplied the drugs to the state. She likened anti-death penalty activists to prison gangs.

Likening Reprieve's campaigns to those of violent prison gangs, the brief written by TDCJ Assistant General Counsel Patricia Fleming asserts that releasing information "creates a substantial risk of physical harm to our supplier. ... It is not a question of if, but when, Reprieve's unrestrained harassment will escalate into violence..."

What Ms. Fleming refers to as "unrestrained harassment," others would call questioning authority. Why should the state be so defensive about its use of the death penalty? Gov. Rick Perry tried to pave the road to the White House with the bodies of inmates whose executions he's presided over. Is it because those who run the state's death machine see the writing on the wall?

Ms. Fleming doesn't seem to understand that the people of Texas are her boss. Whether she wants the information released or not is of little consequence. It is our tax money that is used to purchase the lethal drugs the state pumps into the arms of inmates in order to murder them.

Joseph Larsen, a lawyer for the Freedom of Information Foundation of Texas, said Pilkington's questions go to the "heart of how effectively TDCJ performs its official functions." 

"The whole idea behind the Texas Public Information Act is that the governmental bodies do not get to control the information that underlies political discussion," he said. "Specifically, the governmental body does not even get to ask why a requestor wants certain information. How then can a governmental body base its argument for withholding on what use it anticipates will be made of the information if released?"

The TCDJ is using this phantom threat to cover up one of two possibilities - either the state is running dangerously low on lethal drugs and is scrambling to find another drug that can pass constitutional muster or the state has a healthy supply of the drugs that have been purchased from a vendor who is deliberately violating the drug manufacturer's licensing agreement.

The very fact that the government agency in charge of killing inmates is trying to hide information on its stockpile of lethal drugs from the public is very troubling. What else aren't you being told? Do the drugs work as advertised? Or do inmates die a painful death while lying on a gurney paralyzed? And don't hold your breath that Attorney General Greg Abbott is going to order TCDJ to release the information - his track record is doing his best to prevent government agencies from having to release information to the public.

How's that for limited government?

If TDCJ officials can't be open and forthcoming when it comes to their stockpile of lethal drugs, then they sure as hell have no business pumping poison into the veins of inmates.

Just another day at the office for Michael Reichert

I haven't yet decided whether to laugh at this video or to throw sharp objects at my monitor. Radley Balko posted this video on his blog at the Huffington Post of a couple of guys on their way home to Ohio after attending a Star Trek convention in St. Louis. Their trip home took them through the town of Collinsville, Illinois  where they had the pleasure of meeting Officer Michael Reichert.



Officer Reichert got a little itch up his ass that Terrence Huff and his passenger were carrying drugs in their car. After stopping Mr. Huff for allegedly weaving he proceeded to detain the two for far longer than was necessary for a routine traffic stop. Based on his passenger's "nervousness," Officer Reichert decided that Mr. Huff was carrying something illegal.

Officer Reichert continually tries to bait Mr. Huff into coughing up marijuana by telling him he wasn't interested in any drugs that were for "personal use." Of course you know as well as I do that Officer Reichert wasn't about to let Mr. Huff continue on through the Land of Lincoln with any dope in the car.

Unfortunately, what happened to Mr. Huff isn't an outlier. This goes on every day across this country. They get away with it because it's hard to prove a negative. The police manufacture probable cause to stop motorists around the clock. The most common in Houston is not using a turn signal when changing lanes or turning. Nevermind the fact that few drivers use their turn signals during the day; at 2am after the bars close, not signaling that lane change is a ticket to the jailhouse.

In order to justify tossing a car, an officer will say one or more occupants appeared nervous or that the stories of where they were going didn't match up. Officers will claim reasonable suspicion because a motorist is carrying a large amount of cash - or not carrying any cash. Somehow driving on a US highway gives an officer reason to believe someone is carrying contraband.

And never forget the ways in which officers can manipulate dogs to signal whatever it is they want. I once had an officer claim that his drug dog would sit, bark, scratch, lay down or jump whenever he sensed drugs. The last time I checked, Sgt. Bruss, that just about encompasses everything a dog does - whether it detects something or not.

For those of y'all who still cling to the naive belief that the police don't lie (that is, judges and prosecutors), just listen to what Officer Reichert says and watch what he does. I guarantee you've seen it before. Maybe next time you'll look at it a little differently.

Bend over, please

On Monday, in a 5-4 decision that was to be expected, the United States Supreme Court announced that it is subservient to jail guards in importance. So much for that separation of powers and checks and balances you learned about in government class.

As Scott Greenfield pointed out yesterday, Justice Anthony Kennedy informed the public that the Supreme Court is "in no position to second guess the judgments of corrections officers..." This is the same Court that has told school districts to admit all students regardless of race, the same Court that has told states they cannot kill an inmate if they can't follow their own protocols, the same Court that has told legislators that their latest law is unconstitutional. But, despite that, this Court feels the need to show deference to the guards at the county jail.

And, because the Supreme Court feels it cannot substitute its judgment for the judgment of a jail guard, anyone arrested for any offense, no matter how trivial, is now fair game for one of the most humiliating things a person can be subjected to - a strip search. Make no bones about it, getting arrested is one of the worst experiences a person can go through. Feeling the cuffs lock against the wrists, being forced into the back of a squad car, having to beg a friend or relative to post a bond.

The majority of arrests are for non-violent offenses. There's not much danger of a motorist arrested for driving while intoxicated shoving a weapon or dope up their butt in the few seconds before the officer comes to the window. The person arrested on an outstanding traffic warrant is not likely to be hiding any contraband in a body cavity. Yet, in the name of not missing the chance to humiliate anyone under arrest, the Supremes have declared that the jail guard can order those folks to strip, bend over and spread their cheeks.

It's bad enough watching the Supreme Court blindly accept a police officer's rationale for why he decided to infringe upon the bad guy's Fourth Amendment rights. It's obvious that the members of the Court are out of touch with what really goes on in the streets and parking lots of this country.

But what else should we expect from a government that says it's okay for the airport equivalent of mall cops to scope and grope people who want to board a plane? If it's okay for Joe Businessman then it's okay for the person who got pulled over after having a couple of drinks. It's all a downward spiral and we're just waiting to see who can make it to the bottom first.

Of course this decision certainly makes waiting on the Supremes' proclamation on the Affordable Health Care Act an interesting exercise. If the Court is going to defer to jail guards when it comes to strip searching everyone who's brought against their will into the county jail, how on earth will they justify striking down the individual mandate to purchase health insurance?

The jail guards aren't elected officials. Hell, some of them are fresh out of the academy. They haven't a clue as to what's constitutional or why. But, dammit, they know more about jail than the justices on the Supreme Court.

A cynic might say that the Supremes decided on the outcome of the case and then scrambled to figure out a rationale. And, it would appear that the only rationale the five in the majority could come up with was deferring to the experience of the jailers.

Nothing short of pathetic.

More limited government, Perry-style

That champion of limited government, Rick Perry (he of limited intellect), racked up more than $1.7 million in travel expenses related to his inept presidential campaign. That tab, to be paid by Mr. Perry's campaign chest, includes air fare, lodging, food, rental cars and baggage.

In addition to his travel expenses (most of which were completely unrelated to his job as governor), Mr. Perry ran up a bill of $2.1 million for his security detail between August 2011 and February 2012. We, on the other, hand are on the hook for the security detail. The bill is to be paid by the state's highway fund which is replenished through the state's gas tax and car registration fees.

So, the next time you fill up at the pump and cringe as the sales amount spins toward infinity, you can thank Gov. Goodhair.

On a similar vein, Gov. Perry "retired" in January but will continue to serve as governor and collect a yearly pension of roughly $92,000 to go along with his salary of $150,000. Of course the fair-haired one justifies his double-dipping on the grounds that his years of military service and public service plus his age qualify him to receive a pension. I guess we can forget about that pesky little fact that he's still working.

Gov. Perry is the typical conservative politician who will preach about personal responsibility and limited government out on the campaign trail but, when behind closed doors, will stick his fingers into every cookie jar he can find. Mr. Perry's disastrous presidential campaign had nothing to do with governing the State of Texas but we're all being taxed to fund his Quixotic quest while school districts are laying off teachers across the state due to cuts in education funding. He and his buddies in Austin seek to cut funding for any program that offers benefits to the poor and yet Mr. Perry double-dips so he can pocket an extra $92,000 a year.

DA drops case against blogger

Barbara Nichols got her panties in a wad. Ms. Nichols called the local police. The local police chief, Kenneth Cook, called the District Attorney's Office. The DA's Office gave the police chief the thumbs up. The local police arrested a blogger. The DA charged the blogger with online impersonation. The DA then realized he would end up with a bunch of egg on his face so he reversed course.

Allan Batchelor is the man behind Island Drumz, a blog about the goings-on in the enclave of Clear Lake Shores in Galveston County. Some of his posts deal with politics. Some of the rhetoric can get heated. Apparently Mr. Batchelor had some unflattering things to say about Ms. Nichols, the wife of city council candidate John Nichols. According to Ms. Nichols, Mr. Batchelor posted a comment with her address asking people to send her spam and viruses.

Here is what the fuss was all about. Since the incident, Mr. Batchelor removed Ms. Nichols' email address from the post.

Let’s jump back to my distribution list for a minute. How many of you got an email from Barbara today? I offer you my most sincere apologies. That is an old chili invitation list that somehow ended up on Barb’s computer. I asked her last year to please do not broadcast emails out in the open like that but I can see my plea for your privacy fell on deaf ears. Looks like she is practicing being an elected official. Mrs. Nichols, __________ I hope you get all the SPAM you deserve. You obviously have no concern for our privacy so I will wish the PC virus demons from hell on your inbox. I hope the rest of you have let Barb know you wish her well.

Section 33.07 of the Texas Penal Code defines the elements of online impersonation. We know Mr. Batchelor was charged with an offense of 33.07(b) because he was charged with a Class A misdemeanor, according to his account of his time in jail. Of course the immediate problem with charging Mr. Batchelor with online impersonation is, well, he made no attempt to give the impression that he was Ms. Nichols.

A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
(1)  without obtaining the other person's consent;
(2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
(3)  with the intent to harm or defraud any person.

All of this over a city council race in a little pimple of town that no one outside of Clear Lake Shores has ever heard of (except for me since I once represented a man accused of cursing out a waitress at the local IHOP. The municipal court is housed in a restaurant/community center and the "judge's chambers" are the kitchen.).

Publishing Ms. Nichols' e-mail address probably wasn't the smartest thing Mr. Batchelor could have done - but it certainly wasn't the worst. I'm sure there are plenty of folks in Clear Lake Shores who knew Ms. Nichols' e-mail address from the broadcast e-mails she sent out.

But to charge a man with a criminal offense because the wife of a city council candidate was offended is beyond absurd. It reflects poorly on the police chief who either had nothing better to do or wasn't smart enough to figure out it was a bad idea. It reflects poorly on the Galveston County DA's Office who authorized the filing of the charges for a case it could never hope to prosecute.

H/T Grits for Breakfast

Book review: Beautiful Souls - Saying no, breaking ranks and heeding the voice of conscience in dark times

What makes someone stand up and say no when they see something going on that isn't right? What is it that motivates that one person to do something that no one else is willing to do?

Eyal Press attempts to answer those questions in his latest book, Beautiful Souls. In it, Mr. Press takes a look at four ordinary people who did what they thought was the right thing to do despite the costs. First there's Paul Gruninger, a Swiss police commander, who defied orders and helped Jews escape from the Nazi purges in Austria. Then there's Aleksander Jevtic, a Serb who saved the lives of Croats during the war in Eastern Slavonia. We meet Avner Wishnitzer, an Israeli soldier who refused to serve in the occupied territories. Finally, there's Leyla Wydler who helped bring down R. Allen Stanford.

There's no real common theme among the four people profiled in Mr. Press's book. Each of them were very different and they did the things they did for different reasons. Mr. Gruninger disobeyed orders (and ruined his career) because he dealt with the Jews fleeing Austria in person. To him the issue wasn't abstract. These were people who were in fear for their lives.

Mr. Jevtic is an easy-going bear of a man who lived in a predominantly Croat town. His girlfriend was a Croat. When the Serbian army came and took the men of the town into custody he was asked to pick out the Serbs. Instead, he pointed to the Croats that he knew (or knew of) and identified them by Serbian names he made up. For Mr. Jevtic it wasn't a political issue. These were his neighbors and it didn't matter to him whether they were Serbian or Croatian.

Mr. Wishnitzer grew up on a kibbutz and dreamed of being in the Israeli army. He grew up with the lore that the Israelis were inhabiting an island among a sea of people who wanted to destroy them. He grew up with the notion that the Palestinians were somehow less deserving of freedom. His attitude changed when he went to the Occupied Territories and saw how the people there were treated. The reality was such a shock that he, along with a dozen or so other soldiers, signed a petition that they would not serve in the Occupied Territories. They were unceremoniously dumped from the army. Mr. Wishnitzer couldn't just follow orders and do that which he found wrong. He believed it was his duty, as a soldier, to stand up and say no.

Ms. Wydler just wanted to invest people's money. She had been quite successful doing so and when she got the offer from Stanford's company, she took it. She believed in what she did and she held herself to a high ethical standard. But while her coworkers were selling their clients CD's in Stanford's bank in Antigua by the bucketful she became suspicious. The interest rates and the returns didn't make any sense. CD's are conservative investments. She knew that the only instruments that paid high returns did so because of the risk involved. She was so convinced something was wrong that she complained to the SEC (who did nothing for almost eight years). In the meantime, Ms. Wydler lost her job, her book of business and had to repay a hiring bonus she received just to keep her broker's license. She was no muckraker, she was a true believer who found that her trust had been misplaced.

Beautiful Souls is a fascinating look at the lives of four ordinary people who did something extraordinary. They had the courage to take a stand.

Searching for a reason (any reason)...

Of course something had to be done. There was a fight. There were the police. We can't possibly expect the police to climb back in their cars and leave without making the trip worth it, can we? I mean, it's not their fault the fight was over before they got there.

So the police did what the police do. They lined up a bunch of students at Pershing Middle School against a wall and searched them. I'm guessing this wouldn't have happened at Bellaire High or Memorial High. For, you see, the students who were searched at Pershing were black.

And, since they were black, you just know someone had to be carrying a weapon. Or drugs. Or something else kids aren't supposed to be walking around with. Oh, wait, none of the kids had anything illegal on them. Fancy that.

I guess down on the southwest side of town we don't concern ourselves with such archaic concepts as reasonable suspicion or probable cause. Just line 'em up and search 'em. If we find something we'll fill in the blanks on our report.

Somewhere along the line we've forgotten what kids do. Kids get into fights. It happens. It happened when I was in school, it happened when my dad was in school and it'll happen while my girls are in school. But this is about more than schools overreacting and using law enforcement to handle their disciplinary matters. Now we've added race to the mix.

There was no reason to line those kids up against a wall. There was no reason to search them. Standing around and watching a fight (if that's what the kids were doing) isn't a crime. There's nothing about the act of standing around that should elicit reasonable suspicion from the folks who carry guns and drive cars with noisemakers and strobe lights on them. Nothing, that is, except for the fact that the kids were black.

We've seen the statistics from the NYPD's stop and frisk program. We know that the vast majority of the folks subjected to being groped by the police were black and latino.

If you think that a black teenager living in the Third Ward or the Fifth Ward or in Southwest Houston has the same right to be left alone by the police as a white guy living in River Oaks, Memorial or the Heights, well, you're sadly delusional.

It doesn't raise any suspicions if the police see a couple of white guys chatting on the sidewalk or in a parking lot. But, change their skin color and there's a whole world of difference.

And what message are we sending our young people? You want them to believe we're living in a colorblind society where we are all treated equally under the law? If that's what you want, then explain to me how subjecting black teens to being searched by the police without cause promotes that message?

And who is the genius that thought this was a good idea? Someone had to suggest it. At least one of those officers had no qualms about searching the kids without reason. At least one of those officers thought he was doing his duty in serving the people of Houston by subjecting those kids to a search.

This (not so) old courthouse: Fort Bend County edition

This is the new Fort Bend County Courthouse. While there's nothing special about the outside appearance of the building (other than the fact it looks like a high school), it's the inside of the courthouse that's spectacular. The courtrooms are loaded with the latest shiny gadgets and appointments.

But, for all the exterior's generic qualities, it's still a damn sight better than the old William Travis building which was built in the 70's Government-style (otherwise known as "we don't give a shit what it looks like, it's just a damn building").

But nowhere near as nice a sight as the old courthouse. Built in 1909 in the Classical Revival style, the old courthouse is a study in elegance. While nowhere near as functional as it needed to be, it still had charm and grace.

Just ask Mirabeau Lamar, he'll set you straight.

Sunday morning roundup

Here are a few items from the week to chew over on a Sunday morning...

Galveston County District Clerk Jason Murray just flipped himself from the frying pan right into the fire. Back in December, Mr. Murray was charged with assaulting his wife after a Christmas party sponsored by the Harris County Criminal Lawyers Association. He pled guilty and was placed on probation for two years. On Tuesday afternoon Mr. Murray was arrested by League City police and charged with driving while intoxicated after getting into two minor accidents.

Houston City Council member Helena Brown has wasted no time in building her reputation as a right wing nut. First she made her mark by tabling spending items sponsored by other council members and now she's accused a fellow wingnut of being a communist for opposing Entergy's request for a rate hike for city residents living in Kingwood.

Japan executed two men earlier this week - by hanging. Inmates sentenced to death are not told when they are scheduled to be killed, leaving them to worry about whether any day could be their last. Worse still, families are told about the execution until after the fact.

NPR played the "What If?" game the other day and asked how the Lone Star State would fare as a republic once again.

And finally, while television networks love to elevate the owners of professional sports teams as demi-gods, there are a few who don't attend every game. But, were you aware that the owner of the Seattle Mariners has never seen a Mariners game in person in the twenty years he's owned the team?

The shredder

There I stood at the counter on the 4th floor of the Montgomery County Courthouse Annex waiting to speak to a probate clerk about some paperwork I needed to file. Then I heard the noise.

It was coming from behind a door to my right. It was loud. It sounded like whatever was making the noise wanted to come through the wall. I probably should have been scared - but I wasn't. Maybe it was that false bravado from watching too many episodes of Man v. Wild and Survivorman.

I asked the clerk what the noise was. She told me, quite matter-of-factly, that it was the shredder and that someone was in there shredding papers. I asked her if anyone had checked in to make sure the shredder wasn't now the shreddee. I had visions of the clerk feeding paper into the machine and it grabbing her and shoving her through the blades.

I swear I could hear it shouting "Feed me!" from that closet. The clerk asked me if I wanted to take a look - but that false bravado had been replaced by my survival instinct and I declined. I took my file-stamped copy of my pleading and left the clerk's office without once looking back.

Getting carried away by the mob

I think we can all agree that the death of Trayvon Martin was a tragedy that could have been prevented. We know that George Zimmerman shot and killed Mr. Martin back on February 26 in a gated community in Sanford, Florida.

But beyond that we don't know much at all. There are only two people who know what happened that night and, unfortunately, one of them is dead. Did Mr. Zimmerman act in self-defense? Maybe he did and maybe he didn't. Did Mr. Martin play any role in escalating the situation? Maybe he did and maybe he didn't. Was Mr. Martin shot because he was a black teen in a predominantly white neighborhood? Maybe he was and maybe he wasn't. Did the police give Mr. Zimmerman a pass because Mr. Martin was black? Maybe they did and maybe they didn't. Did the district attorney's office refuse to accept charges against Mr. Zimmerman? Maybe, maybe not.

Rallies have been held across the country demanding that the police arrest Mr. Zimmerman and charge him with manslaughter. On a local defense attorney listserv plenty of folks have lent their voices to the shouts of the mob.

The mob doesn't act reasonably. The mob doesn't think logically. The mob feeds on its own rage.

Now it's time to step back, take a deep breath and clear our minds.

I don't know everything that happened on the night of February 26. I know that Mr. Zimmerman called the police to report a suspicious person and that the police told Mr. Zimmerman not to follow him.

I deal with folks who get arrested all the time. Getting arrested is not cheap. You've got to arrange bail. You've got to hire an attorney. If the police towed your car, you've got to pay the storage fee to get it back. You've also got to deal with missed time from work.

Sure, that pales in comparison with being dead.

The police came out that night and investigated the shooting. The case was referred to the district attorney to determine whether charges would be filed. Mr. Zimmerman was then allowed to leave the scene without being arrested.

In the next couple of weeks the case will be presented to a grand jury. The grand jury system was created to protect the privacy of people accused of breaking the law. The grand jury meets in secret, considers the evidence presented and then decides whether or not to indict the good citizen. If they chose not to issue an indictment, the citizen accused was free to go on with his life without anyone knowing what happened.

So here's an idea. Let's all just sit and let a grand jury consider the evidence the district attorney presents. Let the grand jurors deliberate and determine whether they think there is enough evidence to proceed to trial. If they indict Mr. Zimmerman, then the police can go and arrest him and allow him to have his day in court.

Whether we like it or not, Mr. Zimmerman is innocent unless proven otherwise. That presumption protects the unpopular as much as it protects the popular. In fact, our system was designed to protect the unpopular.

Let's not get carried away by the mob.

Book review: The End of Money

Well, not necessarily the end of money as a concept. What David Wolman is pushing for is the end of physical money. His new book The End of Money takes us on a voyage from the creation of money through its evolution to digital dollars on such sites as PayPal and Google Wallet.

Mr. Wolman's thesis is that the need for a physical representation of money has long since passed. Money, after all, isn't a thing - it's a relationship. Those green pieces of paper in your pocket or in your wallet are nothing more than green pieces of paper after all. The only value to that paper is the belief we all share that they are exchangeable for a good or service. The dollar isn't worth anything in and of itself - it's only worth what one person is willing to exchange for it. And that relationship has nothing to do with paper currency and coins.

Mr. Wolman puts forth a few ideas regarding the detrimental effects of physical currency - but before you take this to mean that he wants to go back to the gold standard, forget it. As Mr. Wolman points out, the only reason that gold became the de facto currency was its relative scarcity and the fact that it didn't rot.

According to Mr. Wolman, physical currency imposes a tax on the poor, both in this country and around the world. The poor around the world will hoard currency either because there are no banks or because they don't trust the banks. This puts their savings in danger if there is a flood or fire or if someone breaks into their home. He tells us about Sonu Kumar who is a merchant in India. Whenever he wanted to give his parents money he would have to travel two days each direction and leave someone to keep an eye on his stash at home. Highly inefficient.

Now, thanks to a smart phone app, he can go to a pharmacy, give the pharmacist the money and, with a few taps on the keyboard, the money is deposited into his bank account. He no longer has to carry cash around and his parents can access the money with their smart phones.

And let's not forget the patrons of the biggest loan sharks around - the cash checkers and payday loan operators. Because these folks operate on a cash basis they are forced to pay usurious rates to convert their paychecks into currency. With digital money, the middlemen would be cut out of the equation.

Mr. Wolman also regales us with the tales of counterfeiters - including the massive North Korean operation that nets them enough "hard currency" to purchase weaponry abroad. As an aside, I recently tried a case down in Galveston in which my client was accused of counterfeiting $100 bills by bleaching $5 bills and running them through a printer. The Secret Service agent involved hinted that North Korea was seriously involved in forgery but refused to go into detail because, you know, it was a state secret or related to national security or because no one upstairs told him anymore than that.

Governments spend an incredible amount of money trying to prevent counterfeiters from using yesterday's tools of the trade. They spend their time (and our money) installing so many security features that no one can remember them all - everything from red and blue fibers to security threads to micro-printing to big portraits to funky fonts.

But one argument that he makes is particularly disturbing. He spends a good deal of time pointing out how cash allows folks to remain anonymous and that it prevents governments from tracking would-be terrorists. Well, excuse me, Mr. Wolman, there is no good reason that the government should have a digital trail of where our money goes. It's bad enough they can track my movements (and my wife's) through our toll tags and that I accept payment through PayPal and SquareUp.

No matter how dangerous a world it is out there, we do have a right to be left alone by the government. And for that reason alone, physical currency is a good thing.

There is one more little detail that concerns me regarding doing away with currency - and that is the inherent flaws with technology. For anyone who has lived through a damaging storm and its effect on electrical grids, telephone lines and cell phone reception, the notion that all of my money may be inaccessible because the technology can't function is problematic. And what of the people that can't afford smart phones or a calling plan?

The End of Money will make you think about money in a different way. Whether you will yearn for a purely digital economy is another issue altogether.

Update: Texas kills again (and again and again)

Rick Perry can put another notch in his belt and his wingnut supporters can whoop even louder the next time he brags about how many people he's killed.

Jesse Hernandez was convicted of a heinous crime. He killed a baby. His actions ruined a family. There is no excuse. There is no way to get around the fact of what he did.

But it doesn't mean the State of Texas was justified in committing another murder.

It's easy to stand up to challenge the death penalty when the man strapped up to the gurney is innocent - or if there's enough doubt to raise serious questions about the proceedings that got him to that point. It's much harder to raise your voice against the death penalty when the man strapped to the gurney committed a horrible crime.

I would hope that at some point in the near future we, as a society, can get over our bloodlust for Old Testament revenge. What separates us from the other animals on this planet is our ability to think and reason. But when it comes to state-sponsored murder, we retreat back to our caves and our fires.

The murder of Mr. Hernandez did not magically bring anyone back to life. His death did not fill the hole that child's mother will live with the rest of her days. It didn't erase the memory of that tragic event.

It was just another killing. It was one killing too many.

We'd never sacrifice freedom for security, would we?

Was Mohammed Merah part of a global al-Qaeda conspiracy to subvert the west or was he a nut job with a firearm? Since he was shot dead by French police last week in Toulouse we will never know the real answer to that question.

However, being that there's an election brewing in France, French President Nicolas Sarkozy has wasted no time proclaiming that Mr. Merah was but the first wave of Islamic terrorists coming to bring down the Republic. And, as is par for the course when confronting such a dangerous threat, the first thing the state must do is clamp down on the civil liberties and freedoms of the citizenry. I mean, let's be real, we mustn't allow the public to say and do things that might be disagreeable to the "right-thinking" citizens of France.

Mr. Sarkozy has proposed that the government make it a crime for an individual to consult a website that promotes terrorism or racism or hatred. Such restrictions are nothing new in France. It is against the law in France to promote racial hatred or to deny the Holocaust (and don't forget speech denying that the Turks committed genocide against the Armenians).

Who defines what promoting terrorism is? It may be trite, but one man's terrorist is another man's freedom fighter. Must one consult with the French Foreign Ministry before surfing the web to make certain you aren't clicking through to a website promoting rebellion against some French-supported government on the other side of the world?

What would this restriction mean for students and scholars? Will the French police compile a list of websites that are off-limits to the citizenry? And how would anyone know who visited the website? You might be able to narrow it down to a computer or a small wireless network, but without a confession how would you prove that Jacques clicked through to the al-Qaeda website or took a look at the al-Qaeda Twitter feed (what, you mean the SEO folks haven't gotten through to Osama bin Laden's successor about getting them on the first page)?

Mr. Sarkozy would also make it illegal for people to travel abroad for "terrorist indoctrination." And just what the hell does that even mean? The only difference between a peaceful protester and a terrorist, after all, is someone with a little more firepower than a rock. Again, would Mr. Sarkozy only throw those folks in jail who didn't consult with the government about whom it's alright to protest against? And how would that work for French soldiers training under a foreign flag in another country battling an internal rebellion (or whatever the hell is going on in Afghanistan)?

He also proposes banning "militant Muslim preachers" from entering the country. I guess that means it's okay for militant Christian and Jewish religious leaders to spout their right-wing theories across the French countryside. And what makes a preacher "militant?" Would that be someone who is uncompromising, who raises his voice or someone whose view of the world differs from the government's "official" version?

Mr. Sarkozy, I don't know how to break this to you, but you just can't stop the flow of information anymore. The internet, satellite television and radio and cell phones have pretty much made that the modern-day equivalent of tilting at windmills. I get the fact you're losing at the polls and that you need something, anything, to get people's minds off of how little you've accomplished. Sowing the seeds of hate and fear is a time-honored political tactic. Hell, George W. Bush practically wrote the 4th Amendment out of existence in the post-9/11 hysteria.

Farewell to an old friend

Back in July of 1995 I found a car on a Honda lot in Conroe with only 15 miles on the odometer. I wanted a 5-speed with a good engine and wider tires. The Civic EX had a 1.6 liter V-TEC engine, wide tires and a sunroof. At the time the sunroof was a nice little gadget but nothing that I really cared about.

Now, almost 16 years later my little Honda has over 277,000 miles on it. The sunroof motor went out a few years ago - but, after a bizarre incident on the Gulf Freeway, I picked up a used unit from a junkyard and was able to enjoy driving with the roof open once again.

For the last year or so I've had problems with the engine getting too hot. My mechanic couldn't figure it out so I tinkered with it and kept adding water along the way. About a month ago the head gasket split and I had to park the car. Unfortunately an undrivable 16-year-old car doesn't have a lot of trade-in value. So I decided to donate the car to the local public television channel (KUHT).

Today I watched as my old car was towed away. Yes, it's just a bunch of metal, plastic and rubber. But, damn, was the bucket of parts fun over the years.

So long, old friend.

Plea = Pressure > Urge to fight

Yesterday a client of mine got a lesson in how the criminal (in)justice system in Harris County operates. As a condition of his bond, my client is required to submit to a random urinalysis as well as a mandatory urinalysis after court. He must also pay a monthly fee. Interestingly enough (but not at all surprising), even though he is, in essence, on probation, he will receive no credit for it should he be convicted or plead guilty.

What's more troubling for my client is the time off from work he's having to take in order to fight his case. He is in fear of losing his job if he has to continue to take time off to attend court. A short reset didn't help matters any.

He is under pressure to resolve this case but the only way it's going to get resolved in the near future is if he enters a plea.

I told him that this is how things work in Harris County. The judges require meaningless resets as a way of pressuring defendants to plead guilty so they don't lose their jobs. The idea is that at some point the pressures from work will overcome the urge to fight the case.

This is one of the reasons such a high percentage of cases in Harris County result in plea bargain agreements. Rarely is it about whether a person did what he was accused of doing, more often it's about trying to get on with one's life and keep one's job.

For those unfortunate enough not to be able to post bond, it's all about trying to get out of jail as quickly as possible. With judges refusing to grant personal bonds, defendants in custody will leap at an offer of time served - regardless of the consequences of that plea. And too many attorneys are more than willing to participate in this charade of justice in order to remain on the gravy train.

Once a defendant has been arraigned or indicted, there is no need for him to be present in the courtroom unless he is entering a plea or going to trial. Continuing to require defendants, who, by the way, are presumed innocent, to appear in court for needless settings only serves to make a mockery of our legal system.

Working in a data mine

So you think there's such a thing as a reasonable expectation of privacy anymore? If you do, James Bamford has some news for you.

In the current issue of Wired magazine, Mr. Bamford explores the new data mining facility being constructed by the NSA in a Utah desert and the world's fastest supercomputer housed in the Smokey Mountains in Tennessee. He also paints a haunting picture of just how much information our own government is collecting on its own citizens.

But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.” 

In its never-ending quest to keep us safe from some unnamed enemy, the government has instituted a program by which the NSA is intercepting every telephone call, email, internet search, e-purchase and toll tag receipt in an attempt to data map the entire United States.


The facility being built in the Utah desert will be five times the size of the US Capitol. Its warehouses will store an ungodly amount of raw data that its supercomputers will sift through for patterns that will allow the NSA to decrypt encrypted messages and attempt to predict what the supposed terrorists will be up to next.

Of course the NSA's track record has been pretty abysmal. Despite their budget and high tech goodies, the NSA failed to predict either of the attacks on the World Trade Center, the attack on the USS Cole or the bombings of embassies in East Africa. But, what the hell, let's give them a few more billion dollars and lift the ban on domestic spying and see what they can do.

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy. 

Through agreements with AT&T and Verizon, the NSA collects data at switches across the United States. A special thanks should be due to all the iPhone and iPad users for their contribution to domestic spying.

The data mining raises questions about the fate of the Fourth Amendment as such an operation will render the reasonable expectation of privacy test all but moot. Los federales will be recording your phone calls, text messages and e-mails. The only safe avenues of communication will be face-to-face and by the old fashioned letter. If you know your communications are being captured, you can't say with a straight face that your expectation of privacy was reasonable.

More disturbing is the effect on lawyer-client confidentiality. Your phone calls with your client will be sitting in a database somewhere in Utah along with your email correspondence. And don't forget that supposedly secure remote teleconferencing you've been using. The all-knowing eye in the sky knows all.

You wanted the government to keep you safe from any potential danger anywhere in the world, no matter how remote or unlikely. Now you've got it. You traded your freedom for security. How does it feel? Somewhere along the line we've forgotten that the government is supposed to work for us. Instead, we have a government that's spying on us.

As Billy Joel once sang "This is what you wanted ain't you proud? / 'Cause everybody loves you now."

Execution Watch 3/28/2012

The state that carries out more executions than any other state is ready to kill again...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

JESSE HERNANDEZ. Mr. Hernandez was convicted in the 2001 beating death of a 10-month-old boy he was babysitting in West Dallas. Police linked Hernandez to the slaying through traces of his DNA mixed with the boy's blood on a pillowcase and an article of clothing.

For more information on Mr. Hernandez, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ..."Wednesday, March 28, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: www.executionwatch.org >; Listen


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

The economics of choice

Today the U.S. Supreme Court will hear the second day of oral arguments regarding the constitutionality of the individual mandate provision of President Obama's health care reform legislation. The question being posed is whether the government can require a citizen to purchase health care coverage under penalty of a financial penalty.

Now even those who don't like the legislation don't want folks with pre-existing conditions to be discriminated against by the for-profit health care insurers.

But here's the rub (and I have yet to hear Mr. Romney or Mr. Santorum explain just how they plan to get around this little bump in the road). If you forbid the insurers from denying coverage based on pre-existing conditions without everyone purchasing coverage you will end up with what's called negative selection. In other words, there will be an influx of new enrollees suffering from pre-existing conditions. Without an proportional increase in the number of healthy folks, the cost of coverage for everyone will increase because there are fewer healthy bodies in the pool.

The only way to prevent negative selection is to create a mechanism by which more people who aren't suffering from pre-existing conditions enter the pool of insureds. And the only way to do this is to mandate that everyone purchase coverage either through their employer or privately.

This is the problem Congress created by continuing to rely on employer-based health insurance issued by for-profit companies. A for-profit insurer will always be intent on reducing the amount per premium dollar being spent on actual health care. The lower that percentage, the higher the return for management and for investors. But, while Mr. Santorum and Mr. Romney will harp on the thought of a government bureaucrat making your health care decisions for you, you won't hear a peep from them about profit-maximizing corporate managers doing that very thing.

But is the individual mandate constitutional? Well, let's think about that. Our state government requires that anyone driving a car carry a minimum level of liability insurance. The state requires that we wear a seatbelt if we're riding in a car. The state requires that our children ride in car seats until a certain age. And let's not forget that the federal government forced states to raise the drinking age and lower the speed limit (back in the 70's) under penalty of losing highway construction funds.

I have no idea how the Supremes are going to rule but, should the Court strike down the individual mandate, the entire health care plan goes down in flames. And, if that happens, the only beneficiaries are the insurance companies.

Yes, it's going to cost some people more money to purchase health care coverage. But we all end up footing the bill when an uninsured person receives medical treatment - either through higher taxes to fund public hospitals or through increased fees at private hospitals to cover the charity care.

This is a paid political announcement...

Murray, Murray, Murray.

Sometimes it appears that my colleague, and friend, Murray Newman, still wishes he were at 1201 Franklin Street infringing upon the liberty of our fellow citizens. Here of late Murray seems to be on a crusade to send Mike Anderson to the 6th floor of the Criminal (In)justice Center and to help smooth the path for more prosecutors to transfer to the judicial branch of the Harris County DA's Office (See here, here and here.)

While there is plenty to castigate Pat Lykos about, Murray is using Ms. Lykos' decision not to prosecute so-called trace cases as his ammunition. And that, quite frankly, has me just a little bit befuddled.

Why on earth would a criminal defense attorney want the state to prosecute more trace cases? Why would a criminal defense lawyer want to see more people arrested, booked into jail and forced to post bond when there isn't enough dope to retest? Why would a defense attorney want to make it easier for the state (and the judges) to line up defendants "on the chain" for mass pleas that make a mockery out of our legal system?

I get it, Murray, you really don't like Ms. Lykos. But for the election of 2008, you might still be working as an assistant district attorney. Ms. Lykos came into office and purged 1201 Franklin of as many supporters of Kelly Siegler as she could. Murray was one of the prosecutors swept up in that.

I'm sure Murray would like to see some of his friends sitting on the bench - not because there might be some undue influence - but because it's nice to see your friends and colleagues succeed. But Murray, there are more than enough black-robed prosecutors in the criminal courthouse as it is. The last thing we need are more former prosecutors without any experience on the other side of the well sitting on the bench thinking they're part of the law enforcement team.

That's the kind of crap that gives us judges who are more than willing to sit by a fax machine when the police want to run a No Refusal Weekend and wait for fill-in-the-blank affidavits to come it so they can blindly rubber stamp them in the name of public safety. It's the mentality that gives us the spectacle of the mass plea and the fiction that an attorney can adequately represent a citizen accused in the ten minutes it takes to read the police report and ask the prosecutor for time served.

I, for one, don't give a damn about who gets the cushy jobs under Pat Lykos. As far as I'm concerned, when you take a government job you take it understanding that your boss is a political figure who serves at the whim of the electorate. If Jim Leitner chose to prostitute himself out to Ms. Lykos, so be it. Hey, why a criminal defense attorney would want to be a district attorney is beyond me (and, judging by what's happened up in Montgomery County, not a very desirable situation).

Pat Lykos is a known commodity. She's willing to experiment. Some of her ideas are good (trace case policy) and others are illegal (DIVERT), but she's not afraid of innovation. Mike Anderson is campaigning to take us back to the past (sorry, Mike, been there, done that). Zack Fertitta is the wild card - the defense attorney who wants to be a prosecutor. God only knows where that will go.

The one thing I know is that my job will be the same come next January as it is now - regardless of who's sitting behind that big desk on the 6th floor.

A big deal

Michael Aigen is a business litigator for Lakey Hershman, LLP up in Dallas. I don't know Mr. Aigen, but based on his profiles on Rising Stars he should be rewarded for doing something that a lot of lawyers can't do - not take himself too seriously.

Here is the blurb from his profile in the 2012 edition:

Michael. Aigen is an ordained minister and one of the founding partners of Lackey Hershman, LLP. Although Michael's a licensed attorney  in Texas,  he is more  known  for  his accomplishments as a dungeon  master (DM) in Advanced Dungeons  & Dragons. His in-depth knowledge of the Monster Manual  combined  with deft handling of polyhedral dice has earned him a reputation as a demanding but just  DM. Recently, he has built on this experience and developed  a cult following as a LARP game master, where he has enjoyed being  outside.

But wait, there's more. Here is the blurb from 2011:

Michael Aigen is one of the founding partners of Lackey Hershman, LLP, a national complex commercial litigation firm. He has first-chaired jury trials in state and federal court and argued before the United States Court of Appeals for the Fifth Circuit and the Dallas Court of Appeals. He is kind of a big deal. People know him. He is very important. He has many leather-bound books and his apartment smells of rich mahogany.

And, lest you think I'm just pulling your leg about his profiles in Rising Stars, here's his photo from Lackey Hershman's website.

Congratulations, Michael, you are a big deal!