Execution Watch: 8/21/2019

Texas cranks up the death machine again on Wednesday night...

LARRY SWEARINGEN, condemned in the December 1988 slaying of a woman last seen on the campus of Montgomery Community College. The execution date is the sixth one Mr. Swearingen has received; the courts granted him stays of execution for the previous dates. He has steadfastly proclaimed his innocence and protested the lack of physical evidence linking him to the murder. Court-ordered DNA testing, some completed as late as 2019, has been inconclusive. Mr. Swearingen has challenged the use of questionable science in evidence presented at trial.

When asked how he squares his pro-life stance when it comes to banning abortion to his enthusiastic embrace of the death penalty, Texas Governor Greg Abbott hadn't the slightest clue what to say.

See also:

Blakinger, Keri, "'Death row inmate Larry Swearingen denied clemency before Wednesday execution," Houston Chronicle (8/19/2019)

Davies, David, "How 'Body Ranch' research impacts the appeal of a Texas death row inmate," Texas Public Radio (8/19/2019)

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Wednesday, August 21, 2019, 6-7 PM Central Time

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

http://executionwatch.org > Listen

Update: Execution put on hold

Today a federal district judge granted Dexter Johnson's request for a stay of execution - but not because of claims of brain damage and intellectual disability. The court stayed the execution so that federal public defender Jeremy Schepers can continue his investigation into whether or not Mr. Johnson's appellate attorney, Patrick McCann was ineffective.

For the time being, Mr. McCann and Mr. Shepers are both representing Mr. Johnson. The court will decide later whether to schedule a hearing to determine whether Mr. McCann should be removed from the case.

The stay could still be overturned by the 5th Circuit Court of Appeals.

Execution Watch: 5/2/2019

On Thursday night Texas will murder again...

DEXTER JOHNSON, condemned for the slaying of a couple in 2006 during a carjacking committed in Houston with four accomplices. Mr. Johnson has fought his conviction during his time on death row, filing appeals based on ineffective assistance of counsel, racial bias, intellectual disability, brain damage and his long history of schizophrenia and psychotic breaks.

On April 29, 2019, the Court of Criminal Appeals denied Mr. Johnson's request for a stay on the grounds that executing an intellectually disabled person is a violation of the Eighth and Fourteenth Amendments.

At what point is one suffering from brain damage culpable for his bad acts? If a person's brain doesn't function normally, should that person be held accountable for his actions? It's a question, quite frankly, that the criminal (in)justice system isn't equipped to handle. As I have said in the past, a trial is not an arena to determine the truth. It is, instead, a performance of competing narratives with jurors being asked which one they accept. There is no room for the grey area of intellectual capacity.

As an aside, I know Mr. Johnson's former appellate attorney, Pat McCann. Pat is one of the finest lawyers I know. I find the allegations against him hard to believe.

See also:

Marloff, Sarah, "Death Watch: Was Dexter Johnson condemned by his own attorney?" Austin Chronicle (4/26/19)

Blakinger, Keri, "'I can't forgive till you're dead': Execution set for brain-damaged Texas man behind four killings," San Antonio Express-News (12/6/18)

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Thursday, May 2, 2019, 6-7 PM Central Time

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http://executionwatch.org > Listen

In the name of god, I discriminate against you

If you listen to Republicans such as Lt. Gov. Dan Patrick, Senate Bill 17 provides relief for those occupational holders who have sincere religious beliefs. Of course, getting past the fact that back in the day Mr. Patrick, when he was the sports director at KHOU in Houston, once painted himself blue on television, is a little bit difficult.

For the rest of us, Senate Bill 17 would allow license holders to discriminate against members of the public whose lifestyles offend their sincerely held religious beliefs.

This bill is aimed specifically at the LGBT community in Texas and it would legalize discrimination on the basis of religious belief. No word on whether a license holder who attends a white nationalist church would be able to refuse service to African-American or Latino customers if it offended his religious beliefs.

It's no surprise that the sponsor of the bill is from a most rural area of the state around Lubbock. In many ways, once you get too far west of I-35, you enter a land that time forgot.

Once again we see religion used as a justification for discrimination. I'm sure there are those of y'all who will tell me it's an abuse of religion to use it for hate and discrimination. I would beg to differ. 

Religion serves two purposes: first, it serves to justify the existing order as somehow ordained by god; second, it serves to divide the masses so that those in power can maintain their grip on power. 

As to the first point, all you have to do is listen to the charlatans standing in the pulpit telling their followers that their suffering is proof of god's existence and love. The point is to distract the masses from the underlying forces that keep them poor. You feed someone enough of this suffer on earth and live high on the hog in heaven and they will start to believe it. They won't question the relationship between capital and labor. They will resist scientifically-based arguments regarding the harm we are doing to the planet because they have been sold on the notion that man is the shepherd of the planet and it's all in god's hands.

As to the second point, all you have to do is look at the history of war on this planet. Religious difference has long been the justification for bloodshed and it will continue to be. The Catholic church went to war against native peoples in its never-ending quest for gold and material wealth. The protestants led the charge against the native peoples in this country in search of cheap land and resources. Major denominations split in the mid 1800's over the question of slavery. The Southern Baptist Convention owes its existence to its biblical defense of slavery. And let's not forget that white churches fought against the end of Jim Crow in the last century. Then there are the white, evangelical churches in the suburbs and rural areas who encouraged their members to vote for a racist man whose on his third marriage and paid off a porn star he was sleeping with.

Now we have companies such as Hobby Lobby who don't want to provide contraceptive coverage to their employees and justify their refusal with a call to religion. We have bakers who justify their refusal to bake cakes for gay customers on their religious beliefs. And now we will have more service companies in Texas who won't even try to hide their bigotry as they wave a bible at customers they don't wish to serve.

This is not a minority misusing religion to serve their own ends - this is the logical outcome for a society whose founders were religious extremists who left England so they would be free to impose their will on others.

A look into junk science

On the way home from the office the other night I caught the current episode of the Murderish podcast - "Lime Street Fire." The episode concerns an arson investigation in Jacksonville. Jami Rice also covered the Cameron Todd Willingham case earlier this year.

The episode is important because it looks at the evolution of arson investigation. As anyone who has looked into arson cases knows, most of the knowledge an arson investigator has is what has been passed down over the years. There are a number of old saws they pull out of the bag such as pour pattern and v-pattern which they use to peg arson as a cause of a fire.

This case is remarkable because fire experts were brought in to conduct tests to determine whether (1) whether these pour-patterns or v-patterns had any real meaning and (2) whether the fire could have started the way the suspect said it did.

The results were astounding. The investigators found an identical home to the one that burned, set it up just like the home that got burned (down to the brand of furniture) and set it on fire -- not once, but twice. What they found was that the presence of v-patterns had nothing to do with where a fire was started and many so-called pour patterns were the result of flashover.

This episode also illustrates the problem with the introduction of new "forensic sciences" in criminal cases. Over on the civil side judges have no problem deeming scientific evidence inadmissible after Daubert  and Frye hearings. In the criminal courts, however, judges have never been all that keen on performing their gatekeeper roles with regard to scientific evidence.

For far too long the state has been able to introduce so-called scientific evidence without regard as to whether the new science has been thoroughly tested. We've seen bullet alloy analysis, tire track analysis, bite mark analysis and arson investigation, just to name a few, that have all been debunked for the junk they were. It is frightening that judges seem to be more concerned with saving insurance companies money than they do in protecting the rights of criminal defendants.

Execution Watch: 3/28/2019

On Thursday night the Texas killing machine fires up again...

PATRICK MURPHY, convicted under the Texas law of parties, which allows prosecutors to charge a person linked with a murder as if they, too, had pulled the trigger. He was in a group of convicts that in 2000 made the biggest prison escape in Texas history. They broke into a Dallas-area store on Christmas Eve to steal guns. An Irving police officer was shot to death when he responded to a silent alarm. The other escapees said Murphy was the lookout and had no part in the shooting itself. The only other group member still on death row was Randy Halprin. The show will include Execution Watch’s 20-minute interview with Murphy, taped the previous week on death row.

The case raises questions about the law of parties and whether a person who participated in an event in which a person was murdered - but didn't fire a shot - should be considered just as liable for the murder as the man, or men, who pulled the trigger. If we are going to condone the killing of prisoners at the hand of the state, should we draw the line at the people who actually did the killing?

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EXECUTION WATCH

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

Thursday, March 28, 2019, 6-7 PM Central Time

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Execution Watch: 2/28/2019

Tomorrow night the State of Texas will murder once again...

BILLY COBLE, 70. One of the oldest people on death row, he was sentenced to death for the 1989 murders of his estranged wife's parents and brother in Axtell. The brother was a Waco police officer. On appear, Mr. Coble asserted that his trial was tainted by perjured testimony, an unfair venue and junk science.

The death sentence was thrown out in 2007 because the Fifth Circuit Court of Appeals held that the trial judge erred in instructing the jury. A new sentencing hearing was held in 2008 and featured the testimony of Dr. Richard Coons who predicted that Mr. Coble would be a danger to those around him - even in prison. The only problem was Mr. Coble had no disciplinary reports after 18 years on death row. Dr. Coons later admitted that there was no peer-reviewed science behind his predictions and that he had his own methodology that he followed.

The state also relied on the testimony of prison investigator A.P. Merillat who regaled the jury with tales of how dangerous Texas prisons could be. He was later found to be an unreliable witness.

In 2010 the Court of Criminal Appeals agreed that the testimony of Dr. Coons and Mr. Merillat should not have been allowed, but upheld the sentence due to the harmless error doctrine.

See: "Texas is Planning an Execution Based on Fraudulent Testimony," ACLU, February 26, 2019, by Brian Stull

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Thursday, February 28, 2019, 6-7 PM Central Time

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http://executionwatch.org > Listen

Addendum to a botched drug raid

Here is a link to the actual warrant for the botched drug raid. The article states that the warrant had been uplifted to Scribd, but when you check the link you will find that the warrant has been removed from the site. I guess there is a limit to Art Acevedo's transparency when the shit hits the fan.

According to the Houston Chronicle, the police seized 18 grams of marijuana and 1.5 grams of cocaine from the house. That's right, a little more than half-an-ounce of weed and little powder.

So here's my question, did the police kick in the wrong door or did they just flat out lie in the warrant application? It's one or the other.

What say you, Joe Gamaldi?

Anatomy of a botched drug raid

Last month five officers from the Houston Police Department were injured - four were shot - in a drug raid gone incredibly wrong. At the time we were barraged with statements from HPD that the police raided the house, shot the dogs and killed the residents, Donald Tuttle and Rhogena Nicholas, because a confidential informant told them the couple had heroin and guns in the house.

Joe Gamaldi, the head of the local police union, claimed the police had targets on their backs and that he was sick and tired of people claiming the police were the bad guys. He even threatened to keep tabs on those who criticized the police. Woo-hoo! Over here, Joe!

The local media - never ones to look too deeply into any story involving the police - ate it up. The local media never once questioned the reliability of the informant or the rationale behind a "dynamic" entry.

But there was a problem. There was no heroin in the house. There was a small amount of marijuana and cocaine. There were rifles and shotguns, but there was no evidence that they were obtained illegally.

Neighbors and relatives told anyone who would listen that neither Mr. Tuttle nor Ms. Nicholas were involved in the drug trade. Neither had any convictions for drug activity. Neither had any convictions for violent behavior.

Police Chief Art Acevedo (doing his best to play a prevent defense) told the media that police had received a tip from an anonymous called that there were guns and heroin inside the house. Police then sent their informant into the house to get some heroin. They claim he came out with the drug and a tale the house was a veritable Wal-Mart of heroin.

If anyone knows how this shit works in Houston, it should come as no surprise that the officers went to a judge in the municipal courthouse (where the primary business of the day is traffic court) to find a judge who would sign the warrant without asking any pesky questions about probable cause or the need for a "no-knock" warrant. Needless to say, they found a very pliant judge on Lubbock Street.

Since the jump-out boys were from narcotics, no one was wearing bodycams at the time of the raid. I get it. The last thing the police want the public to see is just how much of a shit show these raids turn into.

And now an unnamed officer involved in the raid has been relieved of duty pending an investigation into the botched raid.

For those of y'all keeping score on this, the search warrant said the police believed that heroin and handguns would be found in the house. Neither were.

If anyone out there has any delusion that the police follow a rigid procedure in obtaining evidence, drafting a warrant application and discussing with a judge why the warrant needs to be served, you may now put your glasses back on and witness just how this process works.

In reality the warrant applications filed by the police - and prosecutors - are fill-in-the-blank cookie-cutter forms where the affiant cuts and pastes the basis of his suspicion. This suspicion can rarely be backed up by anything resembling articulable facts. These affidavits are presented to judges who preside over traffic courts who sign them without raising any questions.

The result is what happened in Houston last month. This should be Exhibit A in a lesson as to why the war on drugs has been an abject failure.

See also:

Blakinger, Keri, et al. "Houston police officer connected to deadly raid, shootout relieved of duty," Houston Chronicle (2/8/2019)

Reigstad, Leif, "A no-knock raid in Houston led to deaths and police injuries. Should police rethink the process?" Texas Monthly (2/12019)

Blakinger, Keri and Stephen Tucker Paulson, "Police identify powder recovered in deadly drug raid" Houston Chronicle 2/2/2019)

Execution Watch: 1/30/2019

Tonight the Texas killing machine is back in action...

ROBERT JENNINGS. Sentenced to death for the 1988 shooting of a Houston Police vice officer at an adult bookstore, Mr. Jennings was on parole at the time of the killing. Witnesses said the vice officer was arresting a bookstore clerk for showing movies without a license. Just then, Mr. Jennings walked in with the intention of robbing the place, saw the officer and opened fire. Mr. Jennings' attorneys questioned, among other things, whether proper instructions were given to the jury during the punishment phase of the trial.

See: "Houston cop killer gets execution date for 1988 slaying," Houston Chronicle, July 31, 2018 by Keri Blakinger

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Wednesday, January 30, 2019, 6-7 PM Central Time

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

http://executionwatch.org > Listen

The state of MLK Day 2019

On this MLK Day, perhaps it's time we took a step back and re-examine some issues. First, to all the Republicans and other conservatives that love taking phrases from King's speeches and writings out of context to promote their own political philosophy -- stop it! When Mike Pence gets up and quotes MLK and then goes into a tirade as to why a wall on the southern border is needed, he is being more than intellectually dishonest.

For those of y'all too young to remember, conservatives (regardless of their party affiliation) were strongly opposed to Dr. King's message. They were opposed to the black students who sat down at lunch counters across the South. That was rabble rousing, they would say. They disapproved of marches and protests. They blamed it on those damn radicals. They fought school desegregation and found new ways to perpetuate it in the suburbs thanks to white flight. Mainstream liberals went off the rails when Dr. King came out against the Vietnam War.

To have someone as reprehensible as Mike Pence whitewashing the words of Dr. King makes me sick. To use the words as a justification for a program that would promote further discrimination against Latinos angers me.

But all the white conservatives will pipe up about non-violence - even though the police continue to shoot unarmed black men and women across this country. They will talk about our colorblind society - even though we have a criminal (in)justice system that discriminates against the poor and people of color.

And, at the same time, they will continue to support the NFL's blackballing of Colin Kaepernick for the outrageous "sin" of protesting against police violence against black folk. His protest was peaceful. Yet somehow he can't find a spot as a quarterback even while teams are signing players who can't hold a candle to his achievements or potential.

The entire discussion around Colin Kaepernick distills the issues Martin Luther King, Jr., brought to the nation's forefront. Kaepernick did exactly what conservatives want - he protested peacefully. But that wasn't enough. You see, it's not the type of protest that conservatives care about -- it's who's protesting. Colin Kaepernick's biggest "sin" was being black and taking a stand.

Thanks to the climate of hatred whipped up by political leaders in the 50's and 60's, Dr. King was struck down by an assassin's bullet at the age of 39. He was silenced because he spoke out.

And sadly, because we live in a country that worships capitalism and consumerism like religions, his memory has been largely commodified and used as a reason for yet another sale.

Update: Court stays Milam execution

On Monday, the Court of Criminal Appeals stayed the execution of Blaine Milam. The Court granted the stay due to questions on about the reliability of bite mark evidence and to determine whether Mr. Milam's intellectual disability makes him ineligible for execution.

Monday's stay is the first since death penalty opponent Elsa Alcala left the bench. Her replacement, the newly elected Michelle Slaughter, along with Sharon "Killer" Keller and Kevin Yeary, voted against the stay.

Somehow it's no surprise that Judge Slaughter, whose only apparent qualification for the Court would seem to be the R after her name, has already cozied up to Judge Keller who is best known for closing the clerk's office to prevent an appeal from being filed in a death penalty case. Judge Slaughter's claim to fame is being required to take a class on the ethical use of social media after she commented about an ongoing case on social media. A mistrial was declared and the defendant was later acquitted.

Execution Watch 1/15/2019

On Tuesday night, the State of Texas will take another life...

BLAINE MILAM. Was he in drug-induced psychosis when a child died during a so-called exorcism Mr. Milam was involved in? That's what his lawyers say, but they have yet to convince a court that he shouldn't be put to death, and that's what the state intends to do. The appellate attorneys raised claims of prosecutorial misconduct, as well as bad lawyering. They said his trial attorneys failed to present evidence of Mr. Milam's meth habit and his drug-altered state of mind at the time of the slaying. The information might have led to a lesser sentence. Mr. Milam's girlfriend, the mother of the victim, is serving a sentence of life without parole.

See: "Rusk County man convicted in 2008 beating death of infant gets execution date," Longview News-Journal, 9/12/2018

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Tuesday, January 15, 2019, 6-7 PM Central Time

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http://executionwatch.org > Listen

Throwing in the towel (finally)

Now it's over.

Yesterday the lawsuit filed by the former Republican misdemeanor judges was dismissed on a motion filed by the 15 incoming Democratic judges. Judge Darrell Jordan was never a part of the original lawsuit - he was later joined in his opposition by Mike Fields, the former judge in Court 14.

The dismissal of the suit means that Harris County elected officials will stop wasting taxpayer money defending an unconstitutional bail system. The outgoing judges fought tooth and nail to walk back US District Judge Lee Rosenthal's order. They knew that the leverage the courts had over indigent defendants was based on a bail system designed to keep them behind bars.

Under the old rules the county magistrates (who preside over probable cause hearings at the jail) would take out a chart, look up the offense, check for priors and then find the corresponding bail amount. Never once did the magistrate bother to ask if the defendant could afford bail. Not once did the magistrate bother to ask what amount, if any, could the defendant afford. The defendants weren't represented by counsel and had no idea they could ask for a personal bond (not that any of the magistrates would have given anyone such a bond).

This system insured that indigent defendants would jump at the opportunity to dispose of their cases for a guilty plea and time served. Court-appointed counsel were only too willing to go along with this charade of justice - lest they piss off the court that was paying them.

The result was a plea mill. Defendants would be led into the courtroom like a chain gang and would stand in front of the judge. The judge would spend no more than a minute or two on each case and the chain gang would be led back into the holdover.

This system guaranteed convictions for prosecutors, fewer pending cases for the judges and convictions for the defendants.

Those days are now in the past. Defendants who couldn't afford to post bond in the past will now be released on personal bonds and will be able to assist in their defense. They will be able to sleep in their own beds, see their families and go to their jobs.

No longer will a misdemeanor defendant have to make that agonizing decision on whether to fight his case or cop a plea to get out of jail.

A tip of my hat to the new judges who made this happen.

Junk science and guns

Are the ejector marks from a handgun unique?

How many handguns would you have to fire in order to make that conclusion?

The Bureau of Alcohol, Tobacco, Firearms and Explosives would like you to believe the answer to the first question is yes and that the answer to the second question is irrelevant.

Back in 1999 the BATFE (known then as the ATF) created the National Integrated Ballistics Information Network (NIBIN), a database of high resolution images of bullet casings. The database was used by forensic examiners to testify at trial regarding the likelihood of a particular gun being used in a crime. Thanks to the Department of Justice, local police departments now have access to the database for use in investigating gun crimes.

But has anyone bothered to verify that the assumption that every gun leaves a unique mark on a bullet casing accurate?

This is the problem we run into with every new "forensic tool" created by law enforcement. We've seen it with tire tread analysis, bullet composition, bite mark evidence, and others. A forensic "scientist" comes up with a theory - and without checking it using the scientific method - declares that this new tool will allow the police to catch the bad guys.

But what tends to happen is the police take whatever "evidence" they uncover and use it subjectively to create a narrative that their leading suspect is the bad guy - even if it leads them in the completely wrong direction.

If you've read The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington then you know where I'm headed. If you haven't read it, then stop what you're doing right now and get the book. In many investigations the police hone in on the person they think is the most likely culprit - often on little more than a hunch. They look for evidence that points to their suspect and ignore evidence that contradicts their narrative (one of the reasons that Brady material is withheld from defense attorneys). And if the narrative makes little or no sense, they bring in a forensic examiner who will gladly resort to pseudo-scientific methods to create evidence pinning the blame on the guy the police were looking at in the first place.

Just think about it, soon the local authorities will take a bullet casing and will compare the marks on it to the NIBIN database. As soon as the algorithm matches the bullet casing the police recovered with an image in the database, the police will go after the owner of that gun -- never once questioning the assumption that no other gun would leave the same mark.

In 2013 a Mississippi man's life was spared hours before his scheduled execution after the FBI said experts had overstated the science. In a note sent to the district attorney in that case, the bureau clarified that "the science regarding firearms examinations does not permit examiner testimony that a specific gun fired a specific bullet to the exclusion of all other guns in the world."

Should the case go to trial the court, which long ago ceded its gatekeeping role with regard to scientific evidence will allow the gun examiner to testify to the unique characteristics of the ejector marks without once questioning whether there is any science behind the assertion. Of course this might work out differently in civil court where judges are only too happy to exclude any new scientific evidence that might result in insurance companies having to pay off claims.

Every new forensic tool (for lack of a better phrase) wants to portray itself as some type of a "fngerprint" since we have all bought into the assumption that our fingerprints are unique. While fingerprints and DNA profiles may very well be unique to an individual, there is little or no evidence that anything else is. Tire treads and shoe soles might have unique wear patterns, but the surface in which the imprint is left and the means by which that imprint is transferred to the surface make the analysis anything but precise.

Just remember what they say about assumptions.

Think long and hard about that second drink

Beginning yesterday, the State of Utah has enacted the strictest drunk driving laws in the country. From this day forward, anyone who causes the death of another by operating their car in a negligent manner with a blood alcohol concentration of .05 or higher will be charged with felony vehicular manslaughter.

Now I'm not going to sit here and tell you that it's okay to get drunk and go driving around town. I think that is something that we can all agree is a bad thing to do. But I do think we need to think of the consequences of lowering BAC levels and ramping up punishments.

If we look at things in a vacuum then we know that someone with any alcohol in their system is going to be impaired to one degree or another. But then we need to look at some other factors. What about the person talking on their cell phone or texting or tweeting or fiddling with the radio or talking with a passenger? What about that driver who is driving on very little sleep and is having trouble keeping their eyes open?

Distracted driving is far more prevalent that drunk driving in this country. And we see it every day on the highway or on the streets.

An alcohol concentration of .05 can be achieved by as little as two glasses or wine or two drinks with dinner. For most folks that's not even enough to get a buzz. Do you really want to move toward lowering the legal limit to that range?

Think of the number of folks you see running red lights, driving too fast, moving in and out of lanes, swerving and driving the wrong way during daylight hours. Do you really believe that each and every one of those folks are intoxicated?  But if those folks cause a fatality accident, they won't be subject to nearly the harsh punishment that a person who had two glasses of wine in his system would be.

And that just isn't right. It's an example of politicians picking the low-hanging fruit while looking for an issue to run on. Not everyone lives in a major city with public transportation options or Uber or the like. Not everyone reacts to alcohol in the same manner. We all know folks who are done for the evening after their second drink. But should everyone be judged on the same scale?

Finally, do we really need to look for new ways to charge folks with felony offenses? Are we trying to put more folks under government supervision?

The current batch of pseudo-scientific roadside exercises were devised back when the per se limit in most states was .10. NHTSA then declared - without conducting new research that the tests were good at predicting who had a BAC of greater than .08. What's the game now, Utah? If someone passes the tests are you then going to require a test to determine if their BAC is .05 or greater? If so, why even bother using the roadside exercises in the first place?

Yes, there are horrific accidents every day across this country caused by drivers who are well above the legal limit. Those are the cases that appear on the news. It's important to remember, however, that the vast majority of DWI arrests are based on speeding, failing to signal a lane change, weaving and other minor traffic offenses.

Utah's new DWI law is but the latest example of a solution searching for a problem.

Merry Christmas

As you listen to this, just remember that the best way to avoid a drunk driving conviction is not to drive if you' ve been drinking. So, if you're out having a good time over the next week, use a designated driver, use Uber, call a cab or call a friend.

Something to think about

I know I've mentioned the Small Town Murder podcast on here once or twice over the last year. Did I mention that thanks to a friend of mine, attorneys who attended the live show in Houston this past October received CLE credit from the State Bar? Easiest two hours of credit ever.

The show is a riot to listen to and James does a hell of a job researching the cases they cover. I listened to an episode from a couple of weeks back the other day and heard something I've never heard before on the show.

Generally after they make fun of the small town the case is set in, and the murderer, they cover the appeals process which usually ends with the defendant being sent to prison for a long stretch. Not so with the episode entitled Yes, No, I Don't Know... in Oskaloosa, Kansas. The story contains a twist at the end which you probably won't see coming.

*** SPOILER ALERT ***


Floyd Bledsoe, who had been convicted of the murder of 14-year-old Camille Arfmann was released from prison after serving 15 years for a murder his brother, Fred Bledsoe, committed. Mr. Bledsoe was released after the Midwest Innocence Project had DNA testing performed on semen found in the victim's body. Testing revealed that Ms. Arfmann had been raped by Fred Bledsoe. Two weeks later, Fred Bledsoe was found dead - his death was ruled a suicide. Fred Bledsoe left three suicide notes including one in which he confessed to the rape and murder of Ms. Arfmann. He claimed he was told to keep his mouth shut by the prosecutor after confessing to the crime.

That revelation brings a somber end to the story that makes you really think about the way our criminal (in)justice system works and what protections we have in place to protect the wrongly accused.

What I'm listening to

Keri Blakinger is a reporter with the Houston Chronicle. She is one of the best writers at the paper and has done some very good work with death penalty issues.

Mr. Blakinger is also a convicted felon who spent time in prison on a drug case up in New York. Her story is quite amazing and inspirational. It also gives her a bit more insight when reporting on prison and jail issues.

I urge y'all to listen to Terry Gross' interview with Ms. Blakinger on Fresh Air and to check out her Twitter feed.

Court allows execution to proceed after receiving evidence of prosecutorial misconduct

Last Tuesday night the State of Texas murdered Alvin Braziel - despite the fact prosecutors admitted, hours before the scheduled execution that they had committed prosecutorial misconduct during the trial.

Nevertheless the Court of Criminal Appeals stepped aside and allowed the execution to proceed - once again demonstrating why the men and women who sit on that court are called Judges and not Justices.

Tom D'Amore and George West were the prosecutors who tried the case. Mr. D'Amore contacted Mr. Braziel's attorneys the night before the scheduled execution and told them that Mr. West had deliberately provoked a reaction from the victim's wife by showing her an autopsy picture of her dead husband. When Mr. Braziel asked for a mistrial after her outburst, the court denied the request after Mr. West assured the court that he had not intended for the outburst to occur.

Mr. Braziel's attorneys petitioned the trial court to call off the execution. The court said it would if they were sent a sworn statement from Mr. West. However, even after receiving the sworn statement, the trial court tossed it in the trash and washed its hands of the matter. His attorneys filed a similar request with the Court of Criminal Appeals at 5pm stating that this information only came to them the night before.

"It is axiomatic that a death sentence is irreversible and no one could reasonably believe that it should be carried out with such serious allegations of possible prosecutorial misconduct pending." -- Judge Elsa Alcala

Over dissents from Judges Elsa Alcala and Scott Walker, the Court of Criminal Appeals declared that it didn't care that a mistrial should have been declared and refused to halt the execution.

After he was strapped down to the gurney in the death house, Mr. Braziel apologized to the victim's widow for killing her husband.

This was never a case about mistaken identity or wrongful conviction. Mr. Braziel raped a woman and killed her husband. But when the Court of Criminal Appeals says that it couldn't care less if the state committed prosecutorial misconduct at trial, the Court is saying that it has little interest in guaranteeing a fair trial for those accused of criminal conduct.

It is entirely possible, and very probable, that a second trial would have produced a similar result. In fact I would be surprised if a second jury didn't convict Mr. Braziel and sentence him to death as well.  If the widow's outburst hadn't occurred it's also very likely that the verdict and sentence would have been the same. But, the state shouldn't be given a pass on their conduct just because it's a bad case with bad facts for the defendant.

Execution Watch: 12/11/2018

On Tuesday night, the State of Texas will kill again...

ALVIN BRAZIEL, JR., 43. Mr. Braziel's attorneys said he received sub-par legal assistance at trial, reducing his chances of avoiding the death penalty. Despite the claim, Texas intends to carry out his execution. Mr. Braziel was sentenced to death in the 1993 slaying of a couple in Mesquite. Testing of DNA evidence in 2001 implicated Braziel, who was already in prison for sexual assault of a child. His appellate lawyers said trial attorneys failed to tell the jury about several possible mitigating factors during the punishment phase of the trial. Mr. Brazier contends that had jurors known about his abuse as a child, family history of mental illness and a head injury he suffered as a child, they might have spared his life. The U.S. Supreme Court declined to hear his case in 2016.

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Tuesday, December 11, 2018, 6-7 PM Central Time

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

http://executionwatch.org > Listen

Wanting that second bite at the apple

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

Terance Gamble was a convicted felon, having been convicted of robbery back in 2008.

Seven years later he was pulled over by police for having a faulty headlight. While searching his car, police found marijuana, drug paraphernalia and a gun.

Mr. Gamble was charged under Alabama law with being a felon in possession of a firearm. He pleaded guilty to the charge and was sentenced to a year in prison. He thought that was the end of the matter.

But he was wrong.

For whatever reason, the local US Attorney decided to charge Mr. Gamble with violating a federal statute prohibiting a convicted felon from possession a gun. He argued that the federal charge was a violation of his 5th Amendment protection from being charged with the same crime twice. The courts refused to toss the case because of the doctrine of stare decisis.

You see, there was a long line of precedent finding that a person's 5th Amendment rights weren't violated if he were charged by both state and federal prosecutors for the same offense. Now, to be fair, the elements of a federal crime often differ (if only slightly) from the elements of the state offense. The case that comes to mind is that of the officers charged with beating Rodney King. The officers were found not guilty in state court but they were then charged in federal court with violating Mr. King's civil rights.

The US Supreme Court created the concept we now know as the separate sovereigns doctrine back in the days of slavery. The idea was to prevent states from blocking the return of fugitive slaves. Over the following 170 years, 30 justices have voted to uphold the doctrine, thus creating precedent.

But, and this point cannot be emphasized too much, just because a doctrine has a lineage of precedent behind it, doesn't mean that the doctrine is good or just, or that upholding the doctrine is just. While a certain degree of consistency is needed in our courts, adhering to a policy just because "that's they way it's always been" isn't sufficient justification to adhere to a doctrine created to preserve slavery.

There is no provision in the Constitution that gives the government the right to try a person more than once for the same crime. The separate sovereigns doctrine was created out of thin air by a Court whose duty it was to protect the institution of slavery.

The US Supreme Court heard oral argument on Mr. Gamble's case on Thursday. According to ScotusBlog, Mr. Gamble's attorney, Louis Chaiten, went all-in on "originalism" and focused on 18th and 19th century concerns and reservations about double jeopardy.

But the justices weren't having any of it during oral argument - and although that is not always an indicator of how the decision will go -- it does at least give an idea of the issues the justices will be considering when it comes time to issue a decision. If the questions are any indication, Mr. Gamble is unlikely to get any relief as most of the justices seemed to be concerned with the federal government's ability to prosecute folks - and being able to exert leverage over those caught up in investigations by a special prosecutor.

Justices who are considered liberal defended the doctrine. Justices who are considered conservative defended the doctrine. Justices who are considered "originalists" or "textualist" or whatever other word used to describe their opposition to the concept of a living constitution defended the doctrine.

But the unlikely trio of Ginsburg, Gorsuch and Thomas joined together in questioning the existence of the doctrine - just another reminder that focusing on a narrow range of issues when a person is nominated to sit on the Supreme Court doesn't always predict what a judge will do once he or she is sitting with the Nine in Black.

The rigged death penalty jury

One of the most important questions you can ask a prospective juror is whether or not they can consider the entire range of punishment in a case. Lay out a scenario and ask that panelist whether they could even consider the minimum punishment. If they say no, you've got a challenge for cause (at least until the judge intimidates them into recanting their answer and giving the "right" one).

But what if that juror couldn't consider the upper range of punishment in a given case? The prosecutor has the right to challenge that juror for cause -- and the defense attorney damn sure isn't going to try to rehabilitate the juror by urging him to consider the max. That problem is even more apparent in a capital murder case.

In order to sit on a capital murder jury, a prospective juror has to be able to consider imposing the death penalty should the jury convict the defendant. Just think about that for a second.

In order to qualify for the jury, the prospective juror has to assume that the defendant is convicted (meaning all twelve jurors find him guilty) and has to be willing to recommend that the defendant be put to death.

Therefore a person on trial for capital murder is facing a jury that is both predisposed to convict him and to order him murdered by the hand of the state. The jury is rigged against the defendant before the trial even begins.

Where this becomes particularly problematic is the constitutional requirement that a defendant be tried by a jury of his peers. If you live in a rural, bible-thumping area, chances are you would be facing a jury that would only be to happy to put you to death because no one has ever actually read and understood either the Ten Commandments nor the New Testament. But, take a trip to any urban area and you are much more likely to find folks who are opposed to the death penalty for a myriad of reasons.

If you are tried in Harris County, some of your peers may be adamantly opposed to the death penalty in all circumstances, some might be opposed to it except for the most heinous crimes and others may be supporters of state-sponsored murder. But when that jury is picked, the only folks you're going to see are the third group - the ones who are most likely to convict you.

If we really want folks tried by a jury of their peers, then we need to stop striking panelists because they are opposed to the death penalty. We must stop pretending that every community across this state ardently supports the ability of the state to exercise its most coercive power - the power to kill.

The point of our criminal (in)justice system is supposed to be to protect the rights of the accused. That being the case, "justice" doesn't require that the members of the jury in a capital case be "qualified" by their support of the death penalty.

The deck is already stacked against a criminal defendant. The state has the resources and manpower of the police, crime lab personnel and the courts to coerce defendants into pleading guilty. The state has the benefit of judges who will do what they can to rehabilitate jurors for the state in the name of judicial efficiency.

A "qualified" capital jury is just one more tool in the arsenal of the state to bring a defendant to his knees. It is time to change the rules so that a defendant in a capital murder case has the benefit of being tried by a jury of his peers - those who oppose the death penalty as well as those who support it.

Execution Watch: 12/4/2018

On Tuesday night, the death machine rolls on...

JOSEPH GARCIA. Condemned following his conviction in the December 2000 shooting death of an Irving police officer, Garcia and six other men were on the run after escaping from the Connally Unit in Kenedy, Texas. The officer was killed as he responded to a call at a sporting goods store that was being burglarized by the Texas 7.

Mr. Garcia's legal team has requested a 30-day reprieve from Gov. Greg Abbott to investigate claims that the Houston-based compounding pharmacy that allegedly produces the pentobarbital used by the State to kill inmates. A report in BuzzFeed that revealed the Greenpark Compounding Pharmacy (& Gifts) whose license was placed on probation by the state in November 2016 for compounding the wrong drugs for three children who had to be taken to the hospital as a result.

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Tuesday, December 4, 2018, 6-7 PM Central Time

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

http://executionwatch.org > Listen

The assault on due process

There is an awful lot not to like about Education Secretary Betty DeVos. She wants to get rid of public education. She caters to the for-profit schools that rip off their students. She is opposed to student loan forgiveness.

But, please, her proposed rule changes to the ways schools handle alleged incidents of sexual assault are a good thing.

Colleges are required under Title IX to foster an environment free from sexual, racial and ethnic discrimination and harassment.The rule change under fire from certain quarters is the requirement that the accused is afforded the right to question the accuser.

Yikes! That's certainly a radical idea, isn't it. Being able to confront your accuser. Seems to me there's something about that right to confrontation in the Sixth Amendment. And, you know, that little matter known as due process.

But should you attempt to defend the proposed rule changes, you will quickly be under attack from the mob. They will tell you that these campus hearings aren't criminal matters and that due process doesn't apply. They will accuse you of perpetuating the myth that men are falsely accused of sexual assault.

While these hearings aren't criminal in nature, they are quasi-criminal and they do carry consequences if the panel, arbitrator or judge finds the accused liable. Students can be expelled, suspended or placed on academic probation. Each of those outcomes is a restriction on the student's liberty. Even if we aren't talking about the accused going to jail or being convicted in a court of law, the accused still faces sanctions. And when one party attempts to limit the freedom of another, the concept of due process comes into play.

We conclude that these cases distill to a set of core principles applicable to cases where the accused student faces a severe penalty and the school's determination turns on the complaining witness's credibility. First, the accused student is entitled to "a process by which the respondent may question, if even indirectly, the complainant." Second, the complaining witness must be before the finder of fact either physically or through videoconference or like technology to enable the finder of fact to assess the complaining witness's credibility in responding to its own questions or those proposed by the accused student. 

-- John Doe v. Claremont McKenna College

I get it. Sexual assault is a frightening thing and having to recount details of an alleged assault can be traumatic for the person making the accusation. But it's not a cakewalk for the accused. There is a lot on the line for both parties.

And if a school tribunal wishes to lower the burden of proof on the accuser, then the accused needs due process more than ever. And if that means the accuser has to answer questions from the accused, or his representative, then so be it. If the problem is having the accused asking the questions, then you must afford the accused the right to representation.

Now I'm not going to get into the veracity of the claims or whether the definition of sexual assault in that environment is too loose. I will say, however, that a good many of these claims result from incidents in which one or both parties consumed alcohol and the presence of alcohol (or other intoxicating substances) can bring both parties' accounts of a situation under scrutiny.

Ultimately the opposition of some to due process results from one subsuming the workings of the law to his or her political theory or ideology. Due process is the manner by which we attempt to bisect those tendencies. Yes, it's harder to prosecute when you have to afford the accused due process, but that's the way it should be when one's liberty interest is at stake.

Those who oppose due process in this environment fear that in the crucible of cross-examination that the narrative they so wish to promote will not hold up.

h/t KC Johnson