Court to weigh in on warrantless blood draws

A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys or conceals any record, document or thing with intent to impair its verity, legibility or availability as evidence in the investigation or official proceeding.
-- Texas Penal Code, Sec. 37.09

Just what does it mean to destroy evidence? The Texas statute would appear to mean a person has to do something with the knowledge that the evidence is wanted by the authorities. It requires a deliberate act on the part of the person being charged.

It doesn't, however, follow that involuntary bodily functions are a means of destroying evidence.

But somehow our police officers, prosecutors and legislators seem to be of the opinion that one can destroy evidence without intending to do so. And now it's time for the Nine in Robes to make the call.

Back in 2010, Tyler McNeely was stopped for exceeding the speed limit by 11 mph near Cape Girardeau, Missouri. The officer reported that Mr. McNeely did a poor job on the roadside calisthenics. He then had the gall to refuse to provide a blood sample.

That didn't sit too well with the Officer Winder who took him to a hospital and ordered a forcible blood draw. Of course the result indicated that Mr. McNeely was quite a bit over the legal limit.

At trial the state argued that it didn't matter that Officer Winder neglected to obtain a warrant to draw Mr. McNeely's blood because if he didn't, Mr. McNeely would destroy the evidence of his intoxication.  The trial judge wasn't buying it and neither were the judges on Missouri's supreme court.

The state is arguing that the natural elimination of alcohol in the body is an exigent circumstance as defined by the Supreme Court in a 1966 case - a case that typically created an exception to a long-standing precedent that turned the meaning of the Fourth Amendment on its ear.

If the police want to strap a suspect down and jab a needle in his arm, the very least they should do is obtain a warrant from a judge authorizing the infringement upon the suspect's rights. Of course they should also be required to submit an affidavit that actually lays out clearly articulated facts that would lead one to the conclusion that the suspect may have been intoxicated. But that might be asking for too much.

As much as I would prefer to see the Court to proclaim that warrantless blood draws in DWI cases are an unconstitutional infringement upon the public's protections under the Fourth Amendment. That's not what I think we'll get, however. What's more likely is the Court deciding that there were no exigent circumstances in Mr. McNeely's case and then laying out some examples of what might constitute exigent circumstances in a DWI case.

The end result will be an even more tangled mess of the Fourth Amendment and an expansion of the power of the state over the individual.

A few odds and ends

I was in trial all day yesterday so here are a few bits and pieces you might find interesting...

Democracy Now! is broadcasting a special expanded presidential debate tonight. After the question is asked, the debate will be paused so that Green Party candidate Jill Stein and Justice Party candidate Rocky Anderson can have equal time to respond. Coverage begins at 7:30pm central time.

If you don't have a radio station that carries Democracy Now!, here's a link to Houston's own community radio station, KPFT.

Two prosecutors with the Galveston County District Attorney's Office are former prosecutors this morning. Reese Campbell was terminated and Jon Hall resigned. The two are alleged to have committed acts of prosecutorial misconduct.

I have worked with Mr. Campbell for years down on the island and I never had any issues with his handling of any cases. However, it is good to see that District Attorney Jack Roady isn't going to put up with his prosecutors taking shortcuts and withholding evidence.

Harris County opened a felony mental health court yesterday that will seek to place mentally ill defendants on probation instead of behind bars. The court has been operating informally since May. There are currently 45 defendants on probation with room for another 35.

This is a mixed bag. On the one hand it's a step in the right direction that someone has decided locking up the mentally ill isn't a good use of resource. On the other hand, the criminal (in)justice system is not the best device  to dispense care for the mentally ill.

Dry labbing it, baby

Science.

Chemistry.

Laboratory.

When you see or hear those words you think of folks with advanced degrees wearing smocks and goggles huddled over test tubes or microscopes looking for the next big breakthrough.

We are taught that science is value-free. In other words, science is about what can be tested and proved or disproved through the scientific method. You make an observation. You think up a hypothesis, or theory to explain what you saw. You design tests to disprove your hypothesis. If the hypothesis cannot be disproved, then a new scientific theory emerges.

Science doesn't care about your political views. It doesn't care about your religious beliefs. it doesn't care about your agenda. It doesn't care who funds the lab. It doesn't care where you come from, where you live or where you went to school. It doesn't care about the consequences (be they good or bad) of your experiments.

Science only cares about that which can be observed and tested. The answer is what the answer is - regardless of what you were hoping it would be.

At least that's what we're taught to believe.

Annie Dookhan thought differently. She wanted to get ahead. So she worked hard. She performed more tests than any other analysts at the Hinton State Laboratory in Jamaica Plain, Massachusetts. Over the course of nine years she performed some 60,000 tests in 34,000 cases.

But that's not the whole story. You see, Ms. Dookhan was creative in her methods. She dry-labbed samples (eyeballing them instead of testing them with a color-changing chemical). She forged her colleagues initials on lab reports. She calibrated machines used by other analysts. She removed evidence from the lab. And she intentionally contaminated evidence to confirm her fraud.

It is unknown just how many people are in prison or on supervision because of her actions. It is also unknown how many defense attorneys advised their clients to plead guilty in the face of lab reports instead of fighting their cases.

Ms. Dookhan worked for a state lab that did work for law enforcement agencies until she resigned back in March. She worked for a lab that believed its job was to support law enforcement in prosecuting suspected wrong-doers. She worked in a lab that was accredited by the American Society of Crime Lab Directors/Laboratory Accreditation Board. She worked in a lab in which no one questioned how she was conducting an average of 18 tests a day, 365 days a year.

No one questioned her because this was "science." No one questioned her because no one wanted to believe that someone in the crime lab would fake it like there was no tomorrow. No one questioned her because too many defense attorneys are either scared to challenge scientific evidence or have no clue how to do it. No one questioned her because the judges who presided over the courts just blindly accepted the word of the government "scientist."

For all of this, Ms. Dookhan was charged with two counts of obstruction of justice and one count of pretending to hold a degree. Yep, that's it. Thousands of people whose convictions are now under a cloud of suspicion and she's looking at a couple of misdemeanor charges. The state couldn't even bring itself to charge her with perjury for lying in lab reports she knew were likely to be used in court.

I don't think I'm going out on a limb here when I tell y'all that this is far from an isolated event. I would even argue that it's to be expected whenever you have a lab that is operated for the benefit of law enforcement. The pressure is not to conduct good science, the pressure is to assist the state in the prosecution of alleged crimes. These labs are hardly independent.

The solution is to take the labs out of the hands of law enforcement and to change their mission statements to say the purpose of the lab is to test, in a reliable and accurate manner, items that might be evidence in a criminal prosecution - whether those items be supplied by prosecutors, the police or defense attorneys.

So long as law enforcement agencies pull the strings in these crime labs, analysts will always face a conflict of interest when it comes to the practice of good science versus assisting the prosecutor.

Judge halts execution over drug questions

The State of California had its heart set on murdering Albert Greenwood Brown, Jr. last Thursday. Mr. Brown was on death row since 1982 for the rape and murder of a 15-year-old girl.

California set Thursday as the latest deadline to kill Mr. Brown because the state's supply of thiopental sodium was about to hit its expiration date. Oops. And with the drug in short supply, Humira (the drug maker) estimates it wouldn't be until the end of the first quarter of 2013 before a new batch would be available.

But last Tuesday, US District Judge Jeremy Fogel said not so fast. Judge Fogel told state officials that he didn't have enough time to review the procedures under which California planned to murder Mr. Brown. The concern was whether or not the three drug lethal cocktail amounted to cruel punishment.

The question is whether the thiopental sodium would render an inmate fully unconscious prior to the injection of the second and third drugs in the cocktail. The problem arises because there is no way to test whether or not the protocol works as advertised.

For those of y'all not familiar with the three drug protocol, the first drug (thiopental sodium) is an anesthetic that is supposed to put the inmate to sleep. The second drug causes paralysis and the third drug stops the heart. But what if the first drug doesn't do its job? Once the second drug kicks in there is no way to tell whether or not the inmate is fully unconscious. And, should he not be, he would suffer agonizing pain as his lungs stop working and his heart is stopped.

There is also a lack of personnel qualified to determine whether the thiopental sodium is working properly in the death house.

The solution for some states was to move to yet another untested protocol - the one drug cocktail as used in Texas. Instead of putting the inmate to sleep, paralyzing him and stopping his heart; the new method is to subject him to a lethal overdose of pentobarbital.

But the mode of execution is just window dressing. It doesn't matter whether you pump drugs into an inmate's arm or whether you send a massive jolt electricity through him. It doesn't matter whether you strap him down and drop cyanide into a bowl of gas or whether you sit him down in front of a firing squad. Murder is murder - no matter what you call it or how you do it.

No, the men who populate death row are not choirboys. They committed heinous acts and caused pain to countless families. But strapping them down and killing them doesn't solve anything. All it does is bring our society down to the level of savages.

It's time to stop it.

Come on, baby, (don't) drive my car

Just this week the California legislature passed a bill that will allow driverless cars on the state's roadways by 2015. Proponents claim the new cars, equipped with sensors out the wazoo, will be safer than the ones driven by humans.

But, assuming the DMV drafts rules regulating driverless cars by 2015, as the bill callls for, the concept raises some interesting questions. For instance, could the operator of a driverless car be charged with driving while intoxicated? Will the presence of driverless cars cause the state to redefine what it means to operate a car? Might the existence of driverless cars actually encourage folks to go out and drink too much knowing that they can just sit in the car, push start and kick back until they reach their driveway?

And, since I feel the need to burst a bubble or two along the way, just how much trust would you be willing to place in the technology operating the car? Computers and smart phones crash at the most inopportune times. DVRs go on the fritz. The microwave decides not to work anymore. Are you willing to sit in that seat and watch the world go by while giving up all control of the car?

And who ends up being liable in the event of an accident? Is it the person sitting behind the wheel? Is it the manufacturer of the car? Is it the manufacturer of the sensors?

In the meantime, enjoy a little Gary Numan...

A fool and his money are soon parted

At what point is someone a victim of a scam rather than just a sucker?

Lori Stilley of Delran, New Jersey, posted on Facebook that she had bladder cancer and no medical insurance in February of 2011. A couple of months later she noted that her condition had worsened. People started making donations.

They donated money. They donated meals. They even paid for her wedding.

But in November, when she posted that her condition was improving, those same folks started to get a bit suspicious.

And, according to local prosecutors, they had reason to be suspicious. Ms. Stilley is now facing felony charges of theft by deception.

But did she steal from her supporters of just separate fools from their money? Did she even commit a crime?

Are the car companies guilty of theft by deception when they advertise a car getting a certain number of miles per gallon when, under normal driving conditions, it doesn't even come close? And what if that car doesn't get you the pretty girl or what if that warranty doesn't actually cover anything for 100,000 miles?

And what of the countless other products advertised on television that never quite live up to the hype? The cleaner that doesn't clean as deeply as they told you? The knives that can't cut through shoe leather and then carve a turkey? The processed foods that lead to heart disease, hypertension and obesity?

What about professional sports teams, like the Houston Astros, who hold themselves out to be a major league team? Those folks sitting behind homeplate or down the first base line are paying a pretty price to see a club that would struggle in Triple-A ball.

What about your kid's school fundraiser? How much of that $16 you're shelling out for cookie dough is actually going to the school? What about the wrapping paper, the candy bars or whatever else they're peddling during the year?

How about that charity that spends more than half the money it raises on expenses? Were you deceived into believing that every penny went to support a good cause?

What Ms. Stilley allegedly did was, as our friends across the pond would say, not good cricket. But was it illegal? No one made anyone shell out their hard-earned money because of a posting on Facebook. Is it her fault that some folks are such suckers that they won't even bother to verify who they're giving the money to?

Presumably the folks that gave Ms. Stilley money did so because it made them feel better. It made them feel like they were helping out someone who needed the help. They received a psychic reward from voluntarily parting themselves from their money. Finding out Ms. Stilley didn't have cancer didn't cause them to lose that feeling - it just made them feel like suckers for handing their money away.

What Ms. Stilley did was low and she should be ashamed of herself. But should she really go to jail for it? I'm not so certain.

One night in Hudspeth County

Rusty Fleming wants all you budding country and rock stars to know that they don't much care for drugs down in the Valley in Hudspeth County.

Willie Nelson and Snoop Dog found that out. And now Fiona Apple knows.

But this isn't about celebs with pot in their tour buses being nabbed by those eagle-eyed officers of the Hudspeth County Sheriff's Office. Nope, this is about that little thing we call the presumption of innocence.

Fiona Apple was performing in Houston the other night. While on stage she let the audience know what she thought of the hospitality she was shown down in Hudspeth County. Let's just say she wasn't altogether impressed with the accommodations.

That's where our friend, Mr. Fleming, comes in. He's not the sheriff. He's not the officer who took down the once famous pop star. Mr. Fleming is the public information officer for the department. He's a glorified P.R. man.

And he wasn't too happy with what Ms. Apple had to say the other night. He was so out of sorts he penned an e-mail to express his feelings.

First, Honey, I’m already more famous than you, I don't need your help. However, it would appear that you need mine.... 

Two weeks ago nobody in the country cared about what you had to say, -- now that you’ve been arrested it appears your entire career has been jump-started. Don’t worry Sweetie, I won't bill you... 

Next, have you ever heard of Snoop, Willie or Armand Hammer? Maybe if you would read something besides your own press releases, you would have known BEFORE you got here, that if you come to Texas with dope, the cops will take your DOPE away and put YOU in jail 

Even though you and I only met briefly in the hallway, I don't know you but I'm sure you're an awesome and talented young woman and even though I'm not a fan of yours, I am sure there are thousands of them out there, and I’m sure that they would just as soon you get this all behind you and let you go back to what you do best—so my last piece of advice is simple "just shut-up and sing." 

Sincerely
Rusty Fleming

Not so fast there, Mr. Fleming. Yes, Ms. Apple was arrested and charged with possession of marijuana (well, technically marihuana, since no one in the legislature knows how to spell) and hashish. Yes, the dope was found on her tour bus. But that's about all we know.

Ms. Apple is innocent unless the state can prove her guilt beyond all reasonable doubt. There are plenty of folks arrested for possession of marijuana every day in Texas that see their cases dismissed or hear two word verdicts from juries.

Besides, Mr. Fleming, the last time I checked we have this little thing called the First Amendment that protects our right to say anything we damn well please - no matter how much it pisses off those in authority. And so, if Ms. Apple wants to get up on stage every night and tell the audience what an awful experience she had in Hudspeth County, good for her.

Of course the one thing no one's talking about is the junk science surrounding drug-sniffing dogs. Their handlers will claim that the dog will alert them by sitting, barking, rolling, jumping and anything else a dog does on a regular basis. We all know that the handlers can make those dogs do whatever they want them to.

Ms. Apple's tour bus was stopped at a border crossing and the dogs were brought out to sniff around it. It was a drug dog's supposed "hit" that got the police entre into the bus where they found the goodies. And that raises another issue about the continued erosion of the Fourth Amendment.

Let's see, the police can't use a thermal imaging device to peek inside a home to see if someone's growing marijuana with the aid of heat lamps but they can run a dog around the outside of your car to see if the dog can "smell" some wacky tobacky. And when that dog scratches his back or licks his balls we'll call it probable cause to search the vehicle.

Hmm. Tour bus for a rock star? Do you supposed that there just might be something illicit in that coach? We'll just call out the dog and tug on his collar a bit. That ought to do it. No judge down here is going to question it.

Hudspeth County is but a microcosm of what's wrong with our criminal (in)justice system. And, just so no one thinks I'm picking on a rural county in the Valley - what happened down there the other day happens in every county across the country on a regular basis.

Update: Fourth time is not the charm

Last night the State of Texas murdered Cleve "Sarge" Foster.

Sarge Foster was an army recruiter and Sheldon Ward was one of the young men he recruited. They became friends and were living together in a motel in Fort Worth back in 2002. One night at a bar, Mr. Foster met Mary Pal. Later that night Ms. Pal was shot and her body dumped in a ditch.

Foster and Ward were charged and convicted, in separate trials, of Ms. Pal's murder. Mr. Ward was convicted for pulling the trigger and Mr. Foster was convicted under Texas' law of parties. The two men were sentenced to death under the theory that Ms. Pal was killed during the commission of a felony - either kidnapping or sexual assault. While there was evidence that Ms. Pal had had sex with both men, the only evidence of a kidnapping came from Mr. Ward's mouth.

Earlier in the day, the US Supreme Court rejected Mr. Foster's request for a stay on the grounds that his representation at trial was so deficient that his case should be reviewed. While the three female justices voted to stay the execution, the six male justices declined.

There were only three people who knew for certain what happened that night back in 2002. But Ms. Pal was murdered and Mr. Ward died in prison from cancer. I have no idea what happened that night. But, if we're going to reserve the death penalty for the worst of the worst - then killing the man who didn't commit the murder is senseless. The law of parties has no business in a capital case - particularly a death penalty case.

So where is Rick Perry and his call for limited government now? Or does that just apply when we're talking about spending money on those less fortunate than ourselves or about regulating businesses?

Once again the state has killed. And once again killing an inmate did nothing to bring anyone back to life. It did nothing to fill the hole in anyone's life. It did nothing to relieve the pain and loss. It's just another dead body chalked up to the might of the state.

Gingrich is right about this

Yes, Newt Gingrich is a wingnut of the highest order. But, as I have stated before, sometimes the man makes sense.

In this era in which politicians try to outdo each other in who can be tougher on crime and when you wouldn't know from the ads whether you're listening to candidates for county sheriff or judge, Mr. Gingrich brings a little bit of sanity back to the discussion.

And, yes, I know just how bizarre that sounds.

We did some dumb things as teenagers that might have caused a lot of harm. You probably did, too. Fortunately, we didn’t hurt anyone too badly, but we cringe now at how clueless we were about the possible consequences of what we did. 

Teenagers often don’t make very good decisions. Our laws take this into account in many ways: We don’t let young people drink until they are 21, and they can’t sign contracts, vote or serve on juries until they are 18. 

But there is one area in which we ignore teens’ youth and impulsiveness: our criminal laws. Our laws often ignore the difference between adults and teens, and some youngsters are sentenced to life in prison without parole (LWOP). Despite urban legends to the contrary, this law has no exceptions: A teen sentenced to LWOP will die in prison as an old man or woman. No exceptions for good behavior, no exceptions period. No hope.

In an editorial in the San Diego Union-Tribune, Mr. Gingrich and his like-minded colleague, Pat Nolan, demonstrate that those Right on Crime guys can come up with some new ideas that actually make sense.

Leave it to the right wingers to realize that locking someone up in a cell for the rest of their life for something they did as a teenager isn't the best of ideas. Maybe they can afford to look at crime and punishment in a realistic manner because they have their conservative stripes. Maybe it's because Gingrich isn't running for office anymore and can afford to say what he thinks. Whatever the reason, the fact remains that he is right.

When we lock up our youth to spend the rest of their days in prison we are writing off a generation. We are telling kids that they aren't worth our time and effort. Just think of the things you did when you were a teenager. Some of them were quite stupid. And what might have happened if things worked out just a bit differently? Could you have been the one at the defense table looking at spending the rest of your days in a cell?

Too bad this isn't part of our national conversation this fall. It might be quite revealing.

H/T Doug Berman (Sentencing Law and Policy)

Police kill double-amputee over a pen

He lost his right leg and right arm when he was hit by a train. He was confined to a wheelchair. He lived in a group home. He had some mental issues - some serious mental issues.

He got upset early the other morning because his caregiver wouldn't give him a cigarette. Naturally when he got upset someone called the police. And that's where things went wrong. Bad wrong.

Brian Claunch was waving a pen when the police arrived. Instead of determining whether Mr. Claunch was in need of medical attention the police escalated the situation and, when it was all over, Mr. Claunch was dead - in his wheelchair. Holding a pen.

It was bad enough when officers in Montgomery County managed to shoot a paraplegic to death in the cab of his truck, but it would appear that the good men of the Houston Police Department couldn't allow themselves to be outdone by their colleagues to the north.

I understand that the first rule of policing is to make it home safely at the end of the shift. But I also understand that a man waving a pen in a wheelchair is not a target worthy of hot lead in his chest.

The officer who killed Mr. Claunch claimed he was worried about his partner's safety. Really? Let's see. Mr. Claunch was missing an arm. He was waving a pen in one hand. His only hand. Just how was anyone in any danger?

The mind just wanders aimlessly trying to get a head around just what was going on in that home on Saturday morning. Whoever called 911 was aware that Mr. Claunch was emotionally disturbed. The caller was aware that he needed help - not a bullet.

The police are not equipped to handled mentally disturbed individuals. Nothing good ever comes of it. The mission of the police is to fight, and prevent, crime, not to provide mental health care. The police are used to be in charge. When an officer asks you to jump, the correct response is not why.

But, time and time again, the police find themselves dealing with someone who isn't in his or her right mind. A person who isn't going to ask how high; a person who either doesn't understand the question or has no way of answering it in a way that an officer wants.

These situations invariably end with someone being tased or shot because the officers involved were woefully unprepared or untrained to deal with the situation.

It's not Mr. Claunch's fault his brain isn't wired like ours. But he needed treatment and counseling, not the death penalty.

What ever happened to an apple on the desk?

Teachers at my daughters' school wrote down items they needed on paper cut-outs shaped like apples and attached them to a tree. Now I'm sitting on the couch watching Storage Wars and staring at two paper sacks filled with items such as ziplock bags, kleenex, adhesive hooks and the like.

Thank you, Rick Perry. For all your talk about lowering taxes you have succeeded in shifting more of the burden of public education on the public without anyone the wiser.

Seems there was a day when public education was viewed as a benefit to society at large. That is, until the libertarians, Ayn Rand worshipers and other wingnuts came into positions of power and influence in the 1980's. All of a sudden public education became the bogeyman for the evils of big government.

Thus began the assault on universal public education.

And, when the Texas economy began to bottom out, the first casualty was public education. School districts were required to lay off teachers and increase class sizes to meet budgetary demands. So here we are, reduced to parents providing items that should have been provided by the school.

Execution Watch: 9/24/12

The wheels of the death machine in Texas keep rolling along...

ON TUESDAY NIGHT, TEXAS PLANS TO EXECUTE:

CLEVE "SARGE" FOSTER. This is Texas' fourth attempt to put to death the former Army recruiter who has consistently claimed innocence of the murder for which he was condemned. The state's past three execution attempts, all in 2011, were turned back by the courts. Mr. Foster and another man were convicted in 2004 of killing a woman in Fort Worth a decade ago. Co-defendant Sheldon Ward died of brain cancer in prison in 2010.

For more information on Mr. Foster, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Tuesday, September 25, 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 Iron Lady

Update: Texas kills again

Thou shalt not kill.
-- Sixth Commandment

There it is. There isn't any grey to it. There's no listing of exceptions to the rule. It is, as we would say in law school, black letter law.

It doesn't say except in the case of war or because someone killed someone else. It doesn't say except in the case that someone worships a different god or espouses a different political ideology. It doesn't say except if someone looks different or speaks differently.It doesn't say except in case of revenge.

And yet the god-fearing Christians who are worried about the gay couple down the street walking down the aisle and who call doctors who perform abortions murderers have absolutely no compunction about the state strapping a person down and injecting them with a lethal dose of drugs.

Robert Harris was the eighth Texas inmate murdered by the state last night. There is no question he did what he was accused of doing. There's no question that his actions caused five families a lot of grief and robbed them of loved ones.

But killing Mr. Harris doesn't undo what he did. It doesn't bring anyone back from the grave. It doesn't heal the pain nor fill the hole.

And so another inmate is dead and the sixth commandment is ignored once again. Praise the Lord and pass the pentobarbital.

When the chickens come home to roost

Back in 2003, Abu Omar, an Egyptian cleric living in Italy, was kidnapped, flown back to Egypt and tortured. The kidnappers were 23 Americans, all but one were CIA agents. The Americans did their deed with the assistance of five Italian intelligence agents.

Because kidnapping and torture sound like bad things, the US government coined the term extraordinary rendition to refer to the practice of kidnapping foreign nationals and shipping them to secret prisons where they would be held incommunicado and tortured around the clock.

The big, bad arrogant Americans figured they could do whatever the fuck they wanted to, regardless of where they were because they were, well, Americans, and this was President Bush's War on Everything Terrorism.

But apparently someone forgot to send a copy of that memo to the Italians who weren't altogether happy that US agents were running roughshod on Italian soil. Despite pressure from both Washington, and Rome, prosecutors in Milan carried on with the case and the 23 Americans were all convicted in absentia in November 2009.

Now, almost three years later, the highest appellate court in Italy has upheld the convictions - and urged the prosecution of the Italian intelligence agents for their roles in the kidnapping of Mr. Omar.

The convictions are largely symbolic as the Italians have never sought to extradite the Americans - not that the American government would ever allow its agents to be extradited to another country to face criminal charges for their conduct. That's what we do to them.

Just imagine the furor, if you will, that would arise should a foreign government kidnap an American citizen off the streets of some town over here and take them halfway around the world to face criminal charges for some act carried out under cloak of national security. Imagine the reaction if a former US president was ever indicted, arrested and brought before another country's court to face charges of crimes against humanity.

Yet we have no problem kidnapping people in other countries and taking them somewhere where representatives of our government torture, humiliate and shame them for no other reason than they can.

I say good that something decided to grow a backbone and stand up to the inhumane and illegal practices of the US government. If our leaders and representatives thought they could be arrested and charged with crimes against humanity somewhere else in the world, maybe, just maybe, they might think twice before acting like a bunch of thugs for whom the law doesn't apply.

Execution Watch: 9/20/12

The wheels of the death machine in Texas keep rolling along...

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

ROBERT HARRIS. The 40-year-old Lubbock native was condemned following his conviction for two of five shooting deaths during a March 20, 2000 robbery at a Dallas-area car wash. He had been fired from his job there several days earlier. Attorneys for Harris say he is mentally impaired and therefore ineligible for execution under Supreme Court guidelines, an argument rejected in March by a federal appeals court. His lawyer, Lydia Brandt, said she would take the appeal to the Supreme Court.

For more information on Mr. Harris, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Thursday, September 20, 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.

A little smoke and mirrors, please

All of the outrage in the Muslim world over an internet movie has nothing at all to do with folks being pissed off about someone taking potshots at Mohammed. It's a nice pretext and it's a good way to get the people fired up. But that's just the sideshow.

What better way to distract the common folk from their everyday misery and deprivation than to set a few fires and chant "Death to America!"

The last time I checked, a movie never killed anyone but, over in Syria, Bashir al-Assad has been killing his fellow Muslims like it was going out of style. Where are the protests across the Middle East about the killing machine in Damascus?

If the punishment for theft is having your hand cut off - what's the punishment for ordering the murder of thousands of fellow Muslims? Um, wait a second, we can't have folks thinking about that. What can we do to distract them?

Oh, the power of religion. That opiate of the masses.

Running a candidate who was in the business of exporting American jobs and stripping down companies to fill his bank account?

Running a candidate who's looking for ways to lower the tax burden on the wealthiest Americans while forcing lower income folks to shoulder more of the burden?

Running a candidate who thinks health care is a business, not a right?

Just wave that Bible around and tell everyone who'll listen that your opponent's not a god-fearing Christian and you just might be able to distract folks from what you're really about.

Religion is just a sideshow. Get people to accept it on faith without asking questions and you've got yourself a compliant army willing to put blinders on and march in formation at your beck and call. Tell them their reward for suffering is a(n) (after)life in paradise and watch them ignore the class distinctions and social stratification around them. Tell them that to kill is a sin - but only if the one of the other end is also a believer - and they'll be lining up to go to war.

But I digress. Now what was I writing about?

Punting time

As far as crimes go, setting an eight-year old boy afire falls toward the end of the spectrum of the worst of the worst. But what do you do when the alleged culprit is only 13? What do you do when the victim dies 14 years later from complications due to being set on fire?

You can't charge the culprit as a juvenile because the juvenile courts no longer have jurisdiction over him. But can you charge him as an adult because of his age when the victim died?

At the time of the incident state law allowed for juveniles as young as 14 to be certified to be tried as adults. Now the Supremes have said it's okay to try a ten-year old as an adult.

Yes, now that Donald Collins is an adult he understands the consequences of setting a person on fire. He's old enough to appreciate the nature of the crime. But we can't transfer that maturity to the time he committed the crime.

Our juvenile courts were set up because someone realized that children aren't as mature as adults and that the punishments meted out to adults weren't appropriate for a child. Yes, it sometimes meant that someone might walk away with a much lighter sentence for the same criminal act as an adult. There is no question that a person is just as dead whether his killer is a juvenile or an adult. There is no question that the family of the victim suffers the same loss regardless of the age of the killer. And no punishment can ever heal the loss.

Up in Montgomery County the County Attorney asked Attorney General Greg Abbott whether or not prosecutors could charge Donald Collins as an adult for the murder of Robbie Middleton. The county attorney, David Walker, was concerned that Mr. Collins would claim that trying him as an adult for the murder would violate the Constitution's ban on ex post facto laws.

Much to Mr. Walker's dismay, however, the Attorney General decided that "[a] county or district attorney's determination regarding the initiation of further proceedings falls within in the scope of prosecutorial discretion." In other words, Mr. Abbott punted.

Abbott Opinion No. 967

Of course that's just what Montgomery County officials did, too. They were hoping that Mr. Abbott would bail them out of having to make the call. If the AG said they couldn't do it, well, they had their political cover. They could call a press conference and announce that, but for the Attorney General, they would prosecute Mr. Collins as an adult. Or, if the AG told them it was okay, they could look like they were tough on crime by formally filing charges.

But now Mr. Walker and the Montgomery County District Attorney, Bret Ligon, are going to have to make the decision themselves.

As badly as Mr. Walker and Mr. Ligon want to do something, there is nothing they can do in this matter. It doesn't matter that Mr. Collins is an adult now. It doesn't matter that Mr. Collins has spent time in the penitentiary for his actions as an adult. The fact remains that he was still a child when he committed the crime and a child's brain doesn't work like the brain of an adult.

Sometimes there's nothing you can do. Unfortunately, it's situations like this that lead to bad laws and ill-advised opinions.

Priorities, priorities

He further considered whether the prosecution of the defendant in furtherance of the protection of the rights of others was “necessary in a democratic society”, and proportionate to the legitimate aim pursued. It had been convincingly shown that the conviction of Connolly was necessary in a democratic society. 

The defendant’s right to express her views about abortion did not justify the distress and anxiety that she intended to cause those who received the photographs. Of particular significance was the fact that those who worked in the three pharmacies were not targeted because they were in a position to influence a public debate on abortion. 

-- Connolly v. Director of Public Prosecutions [2007]  EWHC 237 (Admin)

On March 6, 2012, six British soldiers were killed in Afghanistan by an improvised explosive device. Apparently not everyone in England showed the proper level of commiseration.

Azhar Ahmed posted his thoughts on his Facebook page. More than a few folks were a bit upset when he wrote that "all soldiers should die and go to hell" two days after the attack.

In the face of criticism, Mr. Ahmed apologized for his comment and thought the matter was over with. Boy, was he wrong. For you see, over there across the pond, it's illegal to send a "grossly offensive" message whatever the hell that is.

Mr. Ahmed told the court he realized the message he posted was unacceptable but he denied that it was grossly offensive. The judge told him that his comments were both derogatory and inflammatory. The court then convicted Mr. Ahmed of the offense of causing someone to get their panties in a wad.

So fucking what if someone thought his comment was insensitive and inflammatory? I happen to find war to be grossly offensive. The use of unmanned drones to drop bombs out of the sky on unsuspecting civilians is inflammatory. The use of weaponry to kill those with whom one disagrees is inflammatory. Holding suspected enemy combatants incommunicado indefinitely and torturing them is highly inflammatory.

But will anyone ever be held responsible for the war crimes committed in our name in Afghanistan? I'm sure that George W. Bush and Barack Obama will live out the rest of their days without fear of being arrested and hauled before the international criminal court. But Mr. Ahmed, on the other hand, will live out the rest of his days with a criminal record because he spoke his mind.

He didn't kill anyone. He didn't drop a bomb indiscriminately. He didn't torture anyone. But he's the one in the dock.

Dem bones

I've lived in and around Houston all my life. Now Houston will never be a tourist destination like Austin and San Antonio are. Folks come to Houston for business and to see family. And that's fine for me.

Houston's lack of zoning has created a plethora of eclectic neighborhoods inside, and outside, the Loop. My office is smack dab in the middle of one of the most famous - The Heights.

But one thing about Houston disturbs me. We have very little sense of history here. It it's old, it's in danger of being knocked down by a developer. The rush to build cookie-cutter loft apartments, McMansions and trendy shopping areas spells doom for historic properties in and around this city.

Currently the Texas Department of Transportation (TxDOT) is overseeing construction of a river of concrete that will connect the Katy Freeway and the Northwest Freeway out in the far west reaches of Harris County. You see, it's not enough that we built a loop around the city. And it's not enough that we built a toll road surrounding that loop. Now we seem to have the need to build yet another ring road even further out. All in the name of making it easier for developers to convince folks to leave the city for the suburbs.

Of course the solution to the traffic mess in Houston has never been to find a better way of moving people around; it's always been about pouring more concrete and creating ever larger flood dangers where the bayous converge near the Ship Channel.

Well, in the course of pouring all this concrete, workers found some old bones. It turns out that they had dug up a 2,000 year old burial ground. Then they dug up another burial ground estimated to be 9,000 years old. Just think about those numbers for a second.

The Harris County Historical Society (talk about a fish out of water) thought it might be a good idea to do a bit more research on these burial grounds before filling them with concrete. You know, they just might be of some sort of historical import. Not that that mattered to the developers or TxDOT. They just wanted to know how long it would take to move the bones so they could get back to pouring concrete.

And so, back in July, they filed a lawsuit asking the court to let them dig up the bones and move them so they could get back to the very serious work of pouring more concrete. The case landed in Judge Reece Rondon's court. Before being appointed to the bench, Judge Rondon worked for Andrews Kurth (a big white shoe corporate firm) and for Reliant Energy (a bunch of rotten scoundrels Houston's primary electricity provider). In other words, he came from the same world as the developers.

I guess I don't need to tell you how Judge Rondon ruled in this case, do I? If you know anything about Houston, you know the HCHS never stood a chance. And, sure enough, Judge Rondon ruled for the developers and told the world that pouring more concrete is far more important than studying the history of this little part of the earth we call home.

There is far more to the world than building roads and developing cookie-cutter subdivisions with no trees and all of three floor plans. In the overall scheme of things, I would argue that building a road is a tad less important than studying prehistoric burial grounds. But if you think you're going to convince the powers that be in Houston of that, you might as well just beat your head against the roadbed.

Picking and choosing

"Yes, my witness was charged with forgery when she was nineteen years old. She pled guilty and was placed on probation. She did her time. But does that mean she's lying now? 

"She made a mistake when she was a teenager. Who among us hasn't made a mistake when you were a teenager? 

"But just because she made a mistake are we going to hold that against her and say that she can't be trusted to tell the truth?"

Okay, it's not quite a word-for-word quote of a closing argument I heard yesterday. It's pretty close and it certainly captures the point the attorney was making.

I agree with the sentiment. Too often we look at a person's criminal history and we make a decision right then and there as to what kind of a person he or she is. Sometimes you're right and sometimes you're woefully wrong.

More importantly, however, is the fact that that conviction will stick with her for the rest of her life. She will always be a convicted criminal. She will always have that conviction for a crime of dishonesty. That is one thing that can never be undone.

It's a common problem for our clients. The prosecutor pulls the priors and, with only having read one version of what happened, discounts anything the defendant says. The prosecutor doesn't care about the defendant's account because she knows that he has had multiple run-ins with the law in the past.

So you might be surprised that the words above didn't come from the mouth of a defense attorney. They came from the mouth of the prosecutor. And the witness she was talking about was the complaining witness in a rape case.

So, even though that same prosecutor won't believe a word that comes out of your client's mouth because of his prior convictions, she'll beg a jury to disregard that forgery conviction and believe every word that comes out of the witness' mouth.

It's all just part of the game.

Uncovering an agent provacateur

The other day my colleague and fellow National Lawyer Guild member Greg Gladden was interviewed by Amy Goodman on Democracy Now! The story was about the infiltration of the Occupy movement by an undercover Austin police officer.

Here is the interview video...



Greg Gladden did an incredible job in this case. He was able to uncover the infiltration of the group and had the guts to take it before the judge. And he did this pro bono.

My hat's off to you, Greg, for a job very well done.

The Harris County squeeze play

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office. 

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.

Anything about those numbers strike you as wrong?

In this country we are supposed to be presumed innocent unless the state can prove otherwise. In this country, and in this state, bail is not to be used in a punitive manner. The purpose of bail is to ensure that defendants show up on their scheduled court dates.

Whenever 2/3 of the folks sitting in your jail haven't been convicted of anything, you've got a problem. A very serious problem. And, should Murray Newman's BFF, Mike Anderson, take over the 6th floor at 1201 Franklin, the problem will only get worse.

There is no reason that any first-time offender charged with a non-violent offense, such as driving while intoxicated, possession of marijuana or theft should be held pending someone posting bond. They should be released on personal bonds.

You want to know why Harris County ships prisoners to other jails in Texas and Louisiana? Just take a second look at those numbers. And, if Mike Anderson does what he says he's going to do (always a tough bet when dealing with a politician), someone is going to be asking the voters of Harris County to cough up a bunch of dough to build (yet) another jail.

Oh, but we have direct filing in Harris County, apologists will say. We have a bond schedule. Folks can get bonded out at any time relatively quickly. But those who can't get caught up in the Harris County squeeze. They will sit in jail until their first court appearance. The prosecutor will make an offer that will get them out fairly soon. The court-appointed attorney is only too eager to please his masters and encourages his "clients" to plead before he investigates the case.

The result? Young people walking around with criminal records that will follow them for the rest of their lives.

"I do think some of it is attributable to Harris County's process of direct filing, which means a lot of people can bond out before a magistrate can see them. If they don't bond out, they go to court within 24 to 72 hours, and they can plead out. So they no longer need a bond if their case is disposed of." -- Carol Oeller, Director of Harris County Pretrial Services

And I bet she even said it with a straight face. That's right. We don't need to discuss these personal bonds because if someone can't afford to post bail they can plead out on the chain in misdemeanor court. We're not in the business of justice at the Criminal (In)justice Center, we're in the business of making sausage.

Judges are opposed to personal bonds. State District Judge Michael McSpadden doesn't like them because he's worried defendants might find something better to do that go to court. Well, at least that's what he says in public. And I'm not just singling out Judge McSpadden (he just happened to be the one quoted in the article). The real reason the judges don't want personal bonds is because it will reduce the volume of quick pleas in their courts.

We all know that it's easier to fight a case when your client isn't behind bars. It also takes away some of the state's leverage when trying to coerce pleas. The robed ones know that if more personal bonds were granted, there would be fewer mass pleas every morning and more cases being carried on their docket.

And then there's the bonding companies.

Michael Kubosh, of Kubosh Bail Bonding, said PR bonds are a threat to public safety because those who don't appear in court are not tracked down. 

"A pretrial release bond has a high recidivism (rate), because anytime you get something for nothing that's how you treat it. It doesn't seem important to you," Kubosh said.

Of course Mr. Kubosh doesn't want to see a rash of personal bonds. They aren't good for his business. The bonding companies are the big beneficiaries of the way we do things in Harris County. A dearth of personal bonds means families have less leverage with bonding companies when trying to get their loved ones out of the county jail.

I would like to stand on my soapbox and tell you that the system is broken and needs to be repaired. But that wouldn't be the truth. You see, the system is working just as it was designed to. That's the real tragedy.

Montana judge strikes down death penalty

Montana State District Judge Jeffrey Sherlock didn't like what he saw. It wasn't that he was questioning the constitutionality of the death penalty. What he didn't like were the procedures used by the state to murder inmates.

The Montana state legislator passed a statute that defined just how the state would carry out its lethal injection protocol. The legislature called for the use of a two-drug cocktail. Unfortunately, the state was using a three-drug cocktail, instead. Judge Sherlock questioned whether the three-drug cocktail increased the margin for error.

Then there was the little matter of the warden deciding whether the inmate was unconscious before injecting the lethal drug. A warden without medical training or experience deciding whether or not the drugs are doing what they are supposed to do. What could possibly go wrong with that scenario?

Oh, and why not add that the warden isn't required to have any training in proper intravenous procedure?

According to Judge Sherlock, the deviation between the official state protocol and the manner in which the Department of Corrections operated created "a substantial risk of serious harm."

I don't think we're ever going to see a repeat of Furman in which the US Supreme Court declared the death penalty unconstitutional. We're long past the argument that the use of the death penalty is "unusual."

But what I think we may see over the horizon are more and more successful attacks against the procedures used by states to murder their inmates. At some point the cost of defending death penalty protocols against legal challenge will be greater than the perceived utility of jabbing a needle in someone's arm and pumping them full of poison.

Most politicians don't have the backbone or moral courage to stand up and tell the public that killing inmates doesn't do any good. But they may be able to tell voters that keeping the death penalty on the books is costing the state millions to defend. And maybe that's the way to abolish the barbarism.

A very dark day

We must never forget that dark day. September 11 should always be in our consciousness.

For it was on September 11, 1973 that our government orchestrated the assassination of Chilean President Salvador Allende and the coup that put one of the century's most brutal dictators, General Augusto Pinochet, in power.

Mr. Allende's "crime" was not catering to the whims of the corporations and international capitalists who saw Chile as a money-making machine. Mr. Allende came to office promising to raise the living standards of the Chilean people.

Well the Nixon administration certainly couldn't have that kind of thinking in this hemisphere. And so the CIA did what the CIA did best - it brought about the collapse of a popular government that threatened the profits of the transnational corporations. We did it in Iran. We did it in Honduras.

We tried to do it in Cuba but still the Cubans thumb their noses at Washington.

Under Pinochet's rule (with the assistance of our government), thousands of people were rounded up and murdered for opposing the military dictatorship. But did Gen. Pinochet ever pay for his crimes. Was he ever held accountable for his crimes?

No.

A Spanish judge tried to bring Mr. Pinochet to justice but that was quashed. Judge Baltasar Garzon ordered Pinochet arrested on more than one occasion. But Mr. Pinochet's lawyers argued that he was immune from prosecution as a former head of state.

Maybe one day that argument won't hold any water and all of those responsible for war crimes and crimes against humanity will be held accountable. I would imagine that George W. Bush and President Obama have their fingers crossed that that day never arrives.