Wednesday, November 30, 2011

Surprise! Surprise! Surprise!

What a shock. The day after the local police unions announce they will not endorse current Harris County DA Pat Lykos in the upcoming election, former judge Mike Anderson announces his entry in the race.

Let the games begin...

Police evict Occupy! protesters in LA and Philly

The violent crackdown on Occupy! protesters across the country continued in the early hours of this morning as police in Los Angeles and Philadelphia attacked nonviolent protesters.

Officers dressed in riot gear did their job of protecting and serving their corporate masters by storming through the encampments wielding batons and tearing down tents and other structures. The lasting images of these protests will be peace officers attacking citizens for exercising their First Amendment rights of free speech and petitioning the government to address their grievances.

Over the years the police have been used to break up strikes and attack civil rights protesters and anti-war activists. Police brutality is not the work of a few "bad apples," it is part and parcel of the culture of law enforcement in this country.

Scenes from the police raid in Los Angeles.

Philadelphia police clear encampment.

Spamming for dollars

I received some spam an unsolicited e-mail in my inbox the other day from someone named J. Connor Alexander wanting to write blog posts for me. According to the e-mail, Mr. Alexander has experience writing "snappy" SEO-friendly blogposts and would be more than happy to do the same for me.

Funny, though, that his resume makes no mention of any marketing or SEO jobs.

He also wrote...
In the short time I’ve worked in the legal community I’ve come to understand just how important internet referrals can be to a firm’s bottom line. I’ve seen firsthand several firms start and then tire of their efforts to create and sustain a blog. In short order the business of running the firm invariably takes precedence over the blog. As a result, updates become sporadic and the firm’s web presence diminishes. That’s where I hope to come in. I’d love to see to it that every day/week/month you have a new, engaging, topical, search engine optimized post waiting to be published.
How short a time you may ask? How about he graduated from law school this past May. According to his resume he worked one summer as a clerk during law school and two summers as an undergrad. But in that time he's made these startling discoveries. Hmm. I wonder if Brian Tannebaum would like to take a run at him.

Of course when I googled the good Mr. Alexander I found a blog - that hadn't been updated in nearly a year. Is that the kind of hard work and dedication I should expect from him?

The two blog posts he submitted as samples of his work were, how shall I say, pure drek. They read as though they had been taken straight out of a newspaper article and offered no insight - just a regurgitation of someone else's work. He did, however, make sure he included the dreaded call to action paragraph and tried to fit in those precious key search terms whenever possible. The sad thing is he claims the posts were actually published in someone's blog. Egads.

But, then, I'm just a criminal defense attorney - what the hell do I know about this fancy marketing stuff he's trying to sell? I do know that blogs written solely for SEO or marketing purposes are doomed to failure. There's only so many ways you can cram your own key search terms into a blog post. With nothing else to say, what's the freaking point in pounding away at a computer keyboard when you could be playing Angry Birds?

In short, Mr. Alexander, I think I will have to turn down your offer of assistance. You see, I don't crank out blogposts crammed full of key search terms. I don't regurgitate articles in the local newspaper. I write about what I care about and what I find interesting.

So, good luck with your search, I'm sure you'll find some willing victims suckers attorneys willing to part with their cash for the promise of internet gold.

Tuesday, November 29, 2011

Speaking for those without a voice

The latest targets of the government's move to shut down the Occupy! protesters are Los Angeles and Philadelphia. In LA, Mayor Antonio Villaraigosa ordered protesters to leave their encampment in front of city hall at 12:01 a.m. Monday morning. Philadelphia mayor Michael Nutter ordered protesters to vacate their encampment by 5:00 p.m. Sunday evening.

As of this posting no one has been forcibly removed from the encampments though some protesters did leave in order to avoid being arrested or having their belongings confiscated.

In both LA and Philly, the mayors have stated that the plazas in front of their respective city halls are scheduled to undergo renovations.

But this isn't about renovating plazas or taking down tents. This is an assault on our First Amendment right to assemble peacefully and air our grievances. The Occupy! protesters aren't camping out. The tents themselves are an expression of speech.

Think that's ridiculous? Well, how about corporate interests arguing before the Supreme Court that making campaign contributions is an expression of speech and that curtailing the ability of corporations to make campaign contributions is a restriction of their First Amendment rights?

A corporation is not a person - and never has been. The rationale for forming a corporation was to limit the owners' liability in case something went wrong. A corporation is incapable of speaking. That's left to directors, officers and shareholders. A corporation can't vote. That's the duty of the directors, officers, shareholders and employees.

Our government is based on the rule of the people. That's you, me and everyone we come into contact with on a daily basis. But, what is has become is a tool of the corporate interests. Our representatives in Washington don't ask themselves what the effect of any given legislation will be on the ordinary folks living in their district - they ask themselves how that legislation will affect the corporate interests back home.

So while corporations bundle up their contributions and buy their congressmen, ordinary folks are left to wonder why their voices aren't heard. Why their concerns aren't addressed. Why no one in Washington seems to give a damn about their lot in life.

They don't have a seat at the table. They don't have a ticket to get into the room. All they can do is camp outside and make their presence known.

And it's because of the money.

Monday, November 28, 2011

Book review: Deadly Monopolies

I just finished reading  medical ethicist Harriet Washington's latest book Deadly Monopolies, a look into the world of the pharmaceutical industry.

Back in the good ol' days, universities and hospitals were the breeding grounds for new medicines. Researchers collaborated in order to find ways to fight common disease. Most new discoveries weren't patented because the research dollars came from the federal government.

That all changed in 1980 with the Bayh-Dole Act that allowed corporations, universities and hospitals to patent their discoveries even if the funding to conduct the research came from US taxpayers. At that moment, medical research ceased to be a race to find the cure and became, instead, a race to lock in profits. When that is factored in along with a newfound ability to patent genes, cell lines and other biological material, big pharmaceutical companies stood to make vast fortunes.

Along the way the concept of "informed consent" was cast aside as it was a hindrance to labs, hospitals and drug companies testing their wares on the public. So much for ethical considerations - we have money to print.

In the United States, hospitals across the country subjected patients to trials involving artificial blood. No one asked these patients if they wanted to participate in the study - if they happened to be taken to the right emergency room in the right city, they received the artificial blood.

The attempt may have been noble - as may have been the trials involving substitutes for saline solution for patients who suffered a traumatic injury in the field - but the method was not. The people who received the artificial blood were never consulted to determine if they minded being guinea pigs. They were never informed of the possible risks involved in pumping the artificial blood into their bodies.

In Africa the drug companies conducted trials of drugs to fight the scourge of AIDS. But there was a catch. In trying to determine how effective the new drugs were in fighting AIDS, the control group in the trial was given a placebo. That's right - some in the study were condemned to die while others received a chance to live.

In this country a test conducted under that dynamic would never be allowed. In order to test the effectiveness of a new treatment, the control group needs to receive the currently accepted standard of care. This gives researchers the ability to compare the effectiveness of the varied treatments. Under no circumstances should a person be allowed to die because he's been given a placebo.

Researchers argued that the trials were ethical because the current accepted standard of care in Africa for AIDS was no treatment at all. And, of course, none of the test subjects were ever told they might be given a placebo rather that the real drug.

If you're not irritated enough at the high cost of health care and prescription medications, after you read Deadly Monopolies, you will be.

Friday, November 25, 2011

Just win, baby

The Longhorns win the final installment of the Lone Star Shootout. And forever's an awfully long time.

Texas Fight, Texas Fight,
And it's goodbye to A&M.
Texas Fight, Texas Fight,
And we'll put over one more win.
Texas Fight, Texas Fight,
For it's Texas that we love best.
Hail, Hail, The gang's all here,
And it's good-bye to all the rest! 


Yea Orange! Yea White!
Yea Longhorns! Fight! Fight! Fight!
Texas Fight! Texas Fight,
Yea Texas Fight!
Texas Fight! Texas Fight,
Yea Texas Fight! 

As for the Aggies... they'll be going from the 'Horns younger brother to the SEC's little b----.

Fighting authority

'nuff said.

Thursday, November 24, 2011

Happy Turkey Day

Now that I'm in a charitable mood, I thought I'd give a bit of thanks to everyone who drops by The Defense Rests on a regular (or semi-regular) basis. I hope it gives you something to ponder, to debate and to laugh at occasionally.

I'd also like to thank my fellow bloggers for the work they do and the effort they put into their efforts. If you don't already, please take a look at some of the other writers on my blogroll.

Meanwhile I'll be out on the back patio smoking a turkey over oak and pecan and trying to forget that I'm scheduled to be in trial on Monday.

May you all have a relaxing day with family and friends and forget about a little of the shit we have to deal with on a daily basis.

Wednesday, November 23, 2011

$o much for tradition

So tomorrow marks the end of an era. Tomorrow is the last time the Longhorns and Aggies will play in the foreseeable future.

You see, Texas A&M, that university that prides itself on "tradition," decided to walk away from the Big 12 and join the SEC beginning in 2012. For those of y'all like me, who grew up watching the old Southwest Conference, it's hard to comprehend. The Aggies are walking away from tradition for a few dollars more. The joke will be on them when the bills for sending the women's soccer team to South Carolina or the baseball team to Florida on a regular basis.

The SEC sold the Ags a bill of goods. Let's be real, there aren't any kids from Georgia or Tennessee or Alabama who are clamoring to move to College Station to play football. What the SEC wanted was unfettered access to Texas recruits. Currently the only SEC school that does much recruiting in Texas is LSU - but they're practically family.

When the Big 12 damn near imploded a year ago, A&M was one of the schools that benefited the most as the exit fees paid by Colorado and Nebraska found their way into the coffers in Austin, College Station, Norman and Stillwater. A&M signed off on that deal knowing full well that UT was going to launch the Longhorn Network. So, using the LHN as an excuse for leaving for the SEC is a canard the A&M administration figured their loyal followers wouldn't question.

And now the nation's third longest rivalry is coming to an end. And it sucks. I grew up with this game. Often times Thanksgiving dinner was scheduled around it. Before my oldest daughter was born I took my wife up to Austin to watch the game. My oldest daughter's been to Kyle Field twice to watch the 'Horns beat the Ags.

Here's hoping the 'Horns send the Ags running off with their tails between their legs.

Hook 'em!

A river runs dry

Here's an idea of just how bad the drought has been in Texas this year. This is a picture I took the other day of the Navidad River as I was driving down to Jackson County. The red grass in the picture is where the water used to be. The river has been reduced to a stream.

The Navidad River bottom is also the home of the Wild Man of the Navidad.

Tuesday, November 22, 2011


From the Char Bar in scenic downtown Houston on a warm November Monday afternoon...

It was a veritable blawgroll in the unofficial haunts of the Harris County Criminal Lawyers Association.  In the back row we've got Murray Newman, Franklin Bynum, Mark Bennett, Marvin Lewis, Jr. and Jackie Carpenter. In front it's yours truly, Mirriam Seddiq and one of the newest members of the Texas Bar, Jessica Day.

I'd like to buy a vowel, please

If you're going to carve your name in the wet concrete for all posterity -- you might want to get the spelling right.

Monday, November 21, 2011

Standing by and twiddling their thumbs

The atrocities committed by UC-Davis police have been covered excellently by more than a few of my colleagues. The entire incident seems almost surreal and worthy of condemnation.

With the news that two of the officers have been suspended, my only question is whether they were suspended for what they did or for bringing embarrassment upon the department. But for video, would these men have faced any sanction at all?

The arrogance of, Lt. John Pike, the cop who waved the cannister above his head before unloading, makes my stomach turn. None of those kids deserved to get that shit sprayed in their face. They were just sitting there blocking a sidewalk.

Were these officers just "rotten apples?" Or are they the face of the police? Are the police here to protect and serve or are they here to make sure that the have-nots don't get out of line? Is it their job to prevent chaos from breaking out or is it their job to quell dissent by whatever means necessary?

I can tell you that what happened at UC-Davis is not some isolated incident. It just happened to be performed in front of a bunch of kids armed with smart phones and an internet connection. What happens when the cameras aren't rolling? What happens when it's the word of the cop versus the word of the person he arrested for (fill-in-the-blank)?

What makes it worse is that no one stopped him from unleashing the pepper spray into the faces of those kids. Not one other officer had the guts to stand up and do the right thing. They just stood and watched.

That's the scary part.

See also:

Do as I say, not as I do

So, you want to take advantage of some information you obtained as a result of your position to make some money in the stock market? Some information that ordinary members of the public are privy to?

If you work in the private sector, just pack your toothbrush if you do because los federales will throw the book at you. Nevermind that markets operate on imperfect information and those who make money do so because they're able to take advantage of the information gap.

We can't have corporate executives taking advantage of their inside information to turn a buck on Wall Street, can we? Putting their own financial interest above that of the company they were hired to run - that just won't do.

But, if you are a sitting member of Congress, by all means, trade away. Gather up all the information you can at that subcommittee meeting. Take notes when that guy from Treasury gives you a briefing. Figure out who's going to win, and who's going to lose, under the terms of that proposed bill.

It's all okay.

After all, the rules that apply to the rest of us don't apply to the 535 men and women in Congress. Or, if they do, they sure as hell aren't applied the same way.

Take insider trading, for instance. There is no statute that makes trading on inside information illegal. Rather, when los federales charge someone with securities fraud, the allegation is generally either that the defendant breached a duty to the source of the information or to the person he traded with.

Of course congressmen have a duty, too. It's a fiduciary duty to act in the best interest of the United States of America - not in the best interests of the representative from some little town in Iowa. But when congressmen trade on the basis of information they've received solely because they're in Congress, they are violating that duty.

Now, thanks to a recent piece on 60 Minutes, the tide is turning. With congressional popularity at an all-time low, there really was no other choice. Now, for the first time since legislation was introduced in 2006, Congress looks to be on the verge of passing legislation that will ban members from trading on information obtained through their role as congressmen.

It is what it is

So which is it?

Is it $10 in the morning...

...or is it $5?

This is the kind of crap people going to the municipal courthouse to fight traffic tickets have to deal with. 

Friday, November 18, 2011

Defending the indefensible

The other night (at yet another televised "debate") three GOP presidential hopefuls, Herman Cain, Michele Bachmann and our own Rick Perry, voiced their support for torture. Mr. Perry even went so far as to say waterboarding was an "enhanced interrogation technique."

Arizona Senator John McCain had the courage to say what few in the GOP (aside from Ron Paul) are willing to:

"Waterboarding is an affront to all of the standards that we believe in and adhere to of humane treatment of people who are human beings, and of course I am disappointed in the statements that were made," said McCain on CNN's "John King USA" Monday.  
McCain argued that waterboarding is illegal, harms the United States’s moral standing in the world and doesn't help gather reliable intelligence. 
Of course no one likes terrorists and who really gives a shit if you torture them to extract information? They're not even human, right?

At least that's the way in which the question is framed. But I don't care how you frame the question. Torture is wrong. It's demeaning, both to the person being tortured and to the person carrying out the torture.

The use of torture is an example of what Jeff Gamso would call "the Law of Rule." It is a fundamental affront to our notion of justice. If it's okay to torture alleged terrorists, how much of a reach is it to justify torture with someone accused of kidnapping a little child?

The use of torture is a violation of a suspect's Fifth Amendment right to remain silent. It violates the Geneva Convention. Members of the German and Japanese hierarchy were hung after World War II for their use of torture during the war.

From the mind of Gene Roddenberry, here is a transcript from the Star Trek: Next Generation episode entitled "Chain of Command, Part 2" that aired in December 1992. In this episode, Capt. Picard was taken prisoner by the Cardassians and taken to a secret location for interrogation by Gul Madred.
MADRED: Oh, you're awake. Have something to eat. I insist. Boiled taspar egg. It's a delicacy I'm happy to share with you.  
(Madred gives Picard a knife to slice the top off the very large egg, but this one isn't boiled. The contents are still alive and moving. Picard downs it in one)  
MADRED: Wonderful. Wonderful. I like you, human. Most people become ill at the sight of live taspar. I remember the first time I ate a live taspar. I was six years old and living on the streets of Lakat. There was a band of children, four, five, six years old, some even smaller, desperately trying to survive. We were thin, scrawny little animals, constantly hungry, always cold. We slept together in doorways, like packs of wild gettles, for warmth. Once, I found a nest. Taspars had mated and built a nest in the eave of a burnt-out building and I found three eggs in it. It was like finding treasure. I cracked one open on the spot and ate it, very much as you just did. I planned to save the other two. They would keep me alive for another week. But of course, an older boy saw them and wanted them, and he got them. But he had to break my arm to do it.  
PICARD: Must be rewarding to you to repay others for all those years of misery.  
MADRED: What do you mean?  
PICARD: Torture has never been a reliable means of extracting information. It is ultimately self-defeating as a means of control. One wonders that it's still practiced.  
MADRED: I fail to see where this analysis is leading.  
PICARD: Whenever I look at you now, I won't see a powerful Cardassian warrior. I will see a six year old boy who is powerless to protect himself.  
MADRED: Be quiet.  
PICARD: In spite of all you've done to me, I find you a pitiable man.  
MADRED: Picard, stop it, or I will turn this on and leave you here in agony all night.  
PICARD: Ah! You called me Picard.  
MADRED: What are the Federation's defence plans for Minos Korva?  
PICARD: There are four lights. (Madred uses the agoniser.)  
MADRED: There are five lights. How many do you see now?  
PICARD: (in agony) You are six years old. Weak and helpless. You cannot hurt me.  
MADRED: How many?  
PICARD: Sur le pont d'Avignon, on y danse
Fear has never been an effective tool of control. In order for it work, the level of fear must be ramped up constantly. In regimes across the Middle East and Africa, those dictators who held onto power through their use of fear have either been force out or are hanging on by their fingertips. All the use of fear did was fuel dissent - and once that dissent reached a critical mass, the game was up.

We're better than torture. Those who defend it are appealing to the lowest common denominator in our electorate. In the race to the bottom, Cain, Bachmann and Perry have the inside track.

Go west, young man

In 1962 Major League Baseball came to Houston with the birth of the Colt .45's. A corner of the (now) Reliant Stadium parking lot was home to Colt Stadium.

In 1965 the (newly renamed) Astros moved into the 8th Wonder of the World - The Astrodome where they stayed until 2000 when they moved downtown to the newly built Enron Stadium. After the collapse of Enron the ballpark's naming rights were sold to Minute Maid.

From those humble beginnings in the sweltering Houston heat in 1962 through the disastrous 2011 campaign, the Astros battled for supremacy in the National League. They reached the playoffs for the first time in 1980 but lost in five games in the NLCS to the Phillies. They made it back to the playoffs again in 1986, losing to the Mets in six games -- the last of which was a 16-inning classic.

In 2005 the Astros finally made it to the World Series and celebrated by getting swept by the White Sox.

Now it's time to throw all that history out the window because Major League Baseball has decided that the Astros need to move from the National League to the American League in order to balance the divisions. In order to entice the Astros to agree to the move, MLB is paying Jim Crane, the new Astros' owner a total of $70 million (half of it from Drayton McLane). More to the point, MLB told Mr. Crane they wouldn't approve the sale without an agreement that the Astros would move. Of course, there may be a stumbling block.

If moving from the NL Central to the AL West is such a damn good idea - why is Jim Crane being paid $70 million to agree to it? If having the Yankees and Red Sox come to town every year is such a boon to the bottom line, why is Jim Crane being given $70 million back?

And why move the Astros? The Astros have played in the NL for the last 49 years. Why not the Arizona Diamondbacks? They've only been around since 1998? Their fan base is transitory and largely disinterested in baseball. And, hell, Phoenix is further west than Houston.

Why not Milwaukee? They've only been around since 1969. They played in the AL through the 1997 season. I understand they're in the Midwest -- but so what?

I love baseball. I love to root for the Astros. I hate the Yankees and I hate the Red Sox. But I also believe that NL baseball is truer to the spirit of baseball than that game they play in the AL. I believe the designated hitter is one of the worst abominations of our time. I think using a DH takes too much of the strategy out of the game.

Of course it won't matter in the end because one of these days the DH will be expanded to the NL, too. Just think about it, that means 15 more aging, out-of-shape veterans who no longer have the skills to play in the field will be able to collect a large paycheck. That will be the death of baseball.

The Astros have a proud history. Over the years the Astros have had heated rivalries with the Dodgers, Braves, Mets and Cardinals. Those days are about to be over -- all for a few dollars. It's bad enough that colleges are walking away from traditional rivalries all in the name of money; but now we're talking about our national pastime.

It's a bad move. Watching the Astros play won't ever be the same again.

Thursday, November 17, 2011

The sins of the father?

What does it mean to have criminal intent?

What does it mean to be a psychopath?

Dr. Kent Kiehl of the University of New Mexico has a theory.

Dr. Kiehl is a neuroscientist specializing in the cutting edge field of behavioral neuroscience. Dr. Kiehl believes that psychopathic behavior is "hard-wired." In other words, those who commit criminal acts yet show no emotion or empathy aren't evil, they're suffering from a disorder of the brain.

Dr. Kiehl's lab has customized a van with a mobile brain scanner that allows him to drive it into prisons to conduct research. His research seems to indicate that psychopaths have low density levels and low activity levels in the para-limbic systems in their brains.
"Those systems, we think, didn't develop normally in Brian," says Dr Kiehl. Psychopathy seems to involve a lack of development in these regions - which may be genetically determined.
The para-limbic system is located in the pre-frontal cortex of the brain and is regarded as the brain's behavior circuit. Patients who have suffered injuries to this part of  the brain tend to exhibit behavioral changes and impulse control issues.

And that's where Dr. Kiehl's theory becomes very interesting.

Now I have a brother-in-law who suffered a severe head injury in an automobile accident 15 years ago or so. He was thrown out of his truck and hit his head on the road. He has had a multitude of problems as a result. The part of the brain that tells you when you're cold or hot doesn't always work. Neither does the part that tells you when you're no longer thirsty. He's not a psychopath and he hasn't been prone to violence over the years - but he is a different person than he was prior to the accident.

Dr. Kiehl believes that these deficiencies in the para-limbic system are genetic. He believes that people suffering from this disorder have impulse control issues and a lack of emotional ability. Their criminal acts aren't the result of criminal intent, but, instead, are the end result of their brain disorder.

His belief is that psychopaths aren't criminals because they lack the mens rea to commit criminal acts.

But what is to be done?

In Dr. Kiehl's world, doctors can intervene when young people begin to show early signs of psychopathic behavior. Early detection and treatment may be able to prevent that person from becoming a violent criminal.

But how should the criminal (in)justice system treat that person? Does he suffer from a mental defect? Does that defect prevent him from distinguishing between right and wrong? Does he understand the consequences of his behavior? These are all questions that must be answered.

And they are questions for which our legal system is ill-equipped to handle.

On the other hand, Dr. Kiehl may be treading down a dangerous path. Are we to believe that psychopathic behavior is inherited? Will screening tests be developed to determine who may or may not have the defect? Does having the disorder mean that someone will become a psychopath? Are we headed down the road to a genetic theory of crime?

There have been scientists in the past who theorized that mental defects caused people to become violent criminals. But just because a number of people labeled as psychopaths have a similar flaw in their brains, doesn't mean that the flaw caused the behavior.

Where's the control group? Do we know how rare, or how prevalent, this disorder is? What percentage of the population who have never committed a violent crime have this disorder? What percentage of violent psychopaths don't suffer from it?

Are we just automatons destined to commit acts outside our control due to the chemistry and physical make-ups of our brains, or do we have the ability to make decisions on how to behave? If it's the former, how do we handle those who exhibit psychopathic behavior? More importantly, how would society react?

See also:

"Talking like a psychopath," The Trial Warrior Blog (Oct. 27, 2011)

Update: Texas kills again

The State of Texas killed Guadalupe Esparza Wednesday night. There were no dramatic last minute appeals - Mr. Esparza had long since exhausted his appeals. Earlier this year the U.S. Supreme Court refused to review claims that Mr. Esparza was mentally retarded.

The victim wasn't magically brought back from death. Her mother's life wasn't put back together. Nothing was accomplished in Huntsville.

Mr. Esparza wasn't a nice person. He had a very bad past going back to his days in school. His own testimony at his trial may very well have been what put that needle in his arm.

But did killing him make anything better?

What does it say about our society that we can't come up with another way to punish someone other than killing them?

Wednesday, November 16, 2011

Excuse me while I extract my foot from my mouth

What on earth was Joe Amendola thinking? Why would he consent to having his client, Jerry Sandusky, be interviewed by Bob Costas on NBC?

The best advice to give a client after they've been arrested is to keep their mouths shut about the incident and talk to no one but their attorney. The worst thing a client can do is talk to the press on the record.

Of course he's going to proclaim his innocence. That's a given. And, if that's where it had stopped, Mr. Sandusky might have been okay. But what Mr. Sandusky did was dig himself a deeper hole. After Mr. Costas asked him if he was guilty of the allegations against him:

“I have done some of those things,” Sandusky said. “I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their leg without intent of sexual contact.” 
Then came a back and forth after Costas asked him there was anything he now wishes he had not done. 
Sandusky: Well, in retrospect, I shouldn’t have showered with those kids. And, so … 
Costas: That’s it? 
Sandusky: Yeah, that’s what hits me the most. 
Costas: Are you a pedophile? 
Sandusky: No. 
Costas: Are you sexually attracted to young boys, to under age boys? 
Sandusky: Am I sexually attracted to underage boys?
(There was a nearly two-second pause)
Sandusky: Sexually attracted, no, I, I enjoy young people. I, I love to be around them. I, I, but no I’m not sexually attracted to young boys.

His admissions to "horsing around," showering with and touching young boys on their legs are damning in a case in which he is charged with sexually abusing children. The pregnant pause after Mr. Costas asked if he was attracted to young boys will surely come back to haunt Mr. Sandusky in the future.

I understand that he didn't have much choice but to admit showering with young boys since that's what was reported by then-graduate assistant Mike McQueary. But why was he answering any of these questions in the first place? Every one of those answers is a statement that can later be used at trial

Mr. Sandusky doesn't come across very well. The interview did nothing to enhance his image in the media.

All Mr. Sandusky did was box himself into a story. His admissions are damaging. Mr. Sandusky would have been much better served had his attorney prepared a written statement for Mr. Sandusky to read to the media. A written statement that contained no admissions of questionable conduct. A written statement that Mr. Sandusky would have no more to say until trial. A written statement that all questions were to be referred to Mr. Amendola.

Now Mr. Sandusky, and Mr. Amendola, have to live with what was said.

Another season has ended

We've been here before.

Once again we've come to the end of another soccer season. What began back in late July with recruiting coaches, organizing registration, forming teams and laying out soccer fields, is over for the year. No more striping fields on Friday nights. No more driving over to the church to unlock gates and put out signs on Saturday mornings. No more taking down flags and moving goals on Saturday evenings.

Until next fall, that is.

This was my fifth year coaching one of my daughters' teams. It also marked the last time I will ever coach a Pre-K soccer team.

There's something truly remarkable about watching a group of three-, four- and five-year olds learning how to dribble and control a soccer ball. It's so fun at that age. The kids, for the most part, have no idea who won or lost. They don't care. It's not important. Putting on a uniform, running around in front of their parents and grandparents and having a snack afterward - that's important.

There was great joy in watching a group of kids come together to learn the game. There is a sense of accomplishment seeing how they have improved over the course of two months. And there is a sense of sadness that, once again, it's over for the year.

On the other hand, now the girls and I will get to do our little projects at Lowe's and Home Depot on Saturday mornings. We can do a craft at Lakeshore Learning. In the spring time we can go back out to Zube Park and ride the mini-steam trains.

And, come next September, we can put on our uniforms and head out to play ball.

Tuesday, November 15, 2011

Clearing out the park

New York's finest in action.

Execution Watch 11/16/2011

Texas plans to murder Guadalupe Esparza on Wednesday night.


GUADALUPE ESPARZA. Mr. Esparza, 46, received his execution date August 16, 2011, from a San Antonio judge who ignored his attorney's request for a delay to prepare an appeal based on evidence that Esparza is mentally retarded. A jury ordered Esparza put to death in 2001 following his conviction in the abduction, rape and strangulation of a 7-year-old girl. The victim's mother, Diana Berlanga, said she planned to witness Esparza's execution. More background at


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Local pols show true colors ordering police to raid campsites

Earlier this month downtown Oakland resembled a Third World country in the midst of armed rebellion as police in riot gear attacked protesters with Occupy Oakland. This time around the scene was less chaotic as police carried out the wishes of Mayor Jean Quan.

Police descended upon Frank Ogawa Plaza at 5:00 a.m. and two hours later the park was cleared of protesters.

Mayors who tried to portray themselves as supporters of the protests against the corporate takeover of the US government have shown their true colors as they carry out the wishes of their corporate masters. In Portland, Oregon, Mayor Sam Adams ordered police to clear two parks over the weekend.

Police were also called out to clear out campsites in both Salt Lake City and Denver.

It's probably a safe bet that local politicians didn't expect the Occupy! movement to have any legs. They figured that a few college kids and hippies would camp out for a couple of days and then go back home. They weren't counting on protesters camping out for a month or longer.

Those in power know all too well that the longer folks see protesters camping out in cities across the country, the more ordinary people will gravitate to the protests. The longer the campsites are allowed to exist near political and financial centers across the country, the more folks will be reminded of just where the true axis of power in this country lies.

The thought process is that once the protests are out of sight, the message will be out of the minds of the populace. That may, ultimately, be true. However, what began as a protest in New York City about the influence of Wall Street in political and economic policy, has grown into a movement that stretches across this nation.

A sea change may very well be underway as young people are seeing the effects that our economic policy has had on their generation. Unemployment is higher than it's been in a very long time. Economic growth has slowed to a trickle. Jobs are being eliminated at home and exported abroad. The cost of getting a college education has increased at a rate far exceeding inflation. Homes are being foreclosed on at rates not seen since the Great Depression. And while Rome burns, the corporate bosses are rolling in cash.

At some point Mayor Annise Parker is going to turn on the protesters camped out across the street from City Hall. At some point she will send in the police with orders to clear the park. She used the movement as long as it served her purpose of getting re-elected. Now the the election in the background, the time is coming for the crackdown in Houston.

You see, Mayor Parker knows that there are more people in Houston that sympathize with the protesters than support corporate greed, but she also knows that there is far more money to be raised by from corporate coffers downtown.

It's just a matter of time.


Overnight police in New York cleared Occupy Wall Street protesters from Zuccotti Park. Police arrived at the encampment at about 1am and ordered protesters to take their belongings and leave the park. Reports indicate that over 70 protesters were arrested in the raid.

Reporters were not allowed in the park as police allegedly used pepper spray and excessive force to remove protesters.

Friday, November 11, 2011

Pardon me, that order must be mistaken

The language seems deceptively clear.
On this day the above numbered and entitled cause was called for pretrial hearing. The defendant, defendant's attorney and the Assistant District Attorney representing the State appeared. The Court hereby orders that the State produce and permit the inspection of, or the copying and/or photographing of the following items: 
13. All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt or innocence of the Defendant or the punishment, subsequent to the witness testifying.
That would appear to mean that the defense is entitled to any and all written statements from a witness once that witness has given testimony under direct examination. Furthermore, it would appear that the order refers to anyone called to the stand by the prosecution.

Oh, but that would be wrong.

For, you see, that provision apparently is meant to be read:
All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt of innocence of the Defendant or the punishment, subsequent to the witness testifying, if, and only if, the Defendant makes a specific request for the written statements of a specific witness.
I mean, we can't possibly expect the prosecutor to hand over all written statements without the defense attorney having to jump through a plethora of procedural hoops, can we? And God knows we can't have a judge that gives the impression that he is serious about a defendant being entitled to due process. How on earth is that going to play at election time?

If the court isn't going to enforce its own discovery order, who is?

Standard discovery order - 56th

Thursday, November 10, 2011

Poison pill

Earlier this year, Tilman Fertitta, the CEO of Landry's Restaurants, made an offer to buy McCormick & Schmick's Seafood Restaurants. Mr. Fertitta offered $9.25 a share which worked out to about $137 million.

The board of McCormick & Schmicks said "no thanks" and proceeded to enact a shareholders' rights plan (otherwise known as a poison pill plan) to make the company prohibitively expensive for anyone wishing to make a hostile takeover.

Now, as an aside, I like McCormick & Schmicks. The food is excellent and the service is wonderful. On the other hand, I've never been too terribly impressed with Landry's or any of Mr. Fertitta's other restaurants. Mr. Fertitta is more interested in making money than in making wonderful food. His restaurants offer overpriced dishes that aren't worth the price. A Landry's owned McCormick & Schmicks would soon become an expensive Joe's Crab Shack (oh, that's what the Aquarium already is).

Now back to our story.

McCormick & Schmicks kept looking for a suitor who wanted to buy the company but they couldn't find anyone willing to pony up the money the board sought.

On Tuesday, Mr. Fertitta announced that he was buying McCormick & Schmicks for $8.75 a share, 6% less than his original offer.

So, how did that poison pill plan work out for McCormick & Schmick's shareholders? Not so good, huh? In order to protect their own interests, the board for McCormick & Schmick's screwed their shareholders. The board had a fiduciary duty to do what was in the shareholder's best interests - not to act to protect their own.

Maybe that's why it's called a poison pill.

Wednesday, November 9, 2011

Say it ain't so, Joe

It is time for Joe Paterno to step down.

In title he's the head football coach at Penn State University. In reality he hasn't coached a football game in years.

The scandal involving former Penn State defensive coordinator Jerry Sandusky gets more sordid by the day. For those not familiar with the tale, while at Penn State, Mr. Sandusky headed up the Second Mile Foundation which sought to help at-risk youth. Children in the program were taken to home football games and given tours of Beaver Stadium.

While heading the foundation, Mr. Sandusky allegedly engaged in improper conduct with several young boys ranging from fondling to sexual assault. The most infamous of the assaults occurred in 2002, after Mr. Sandusky had left the coaching staff. A graduate assistant walked into the locker room and witnessed Mr. Sandusky sodomizing a young boy.

No one stopped the attack. The graduate assistant ran out of the locker room without confronting Mr. Sandusky. No one called the police. Mr. Paterno referred the matter to the athletic director, Tim Curley, who informed Senior VP for Finance and Business, Gary Schultz. Apparently someone spoke to Mr. Sandusky and told him not to bring kids from the Second Mile onto campus.

Yep. That'll stop it right there. Let's not notify the police that a former coach is raping young boys. Let's just take away his access to the stadium and let him do his nasty business somewhere else. After all, the last thing we want is to drag the university into a sex scandal.

That plan doesn't seem to have worked out too well.

Mr. Schultz and Mr. Curley have since been indicted for perjury for lying to a grand jury investigating Mr. Sandusky. Mr. Sandusky has been indicted on 40 counts related to his actions, including corruption of a minor and sexual assault.

Joe Paterno was under no legal obligation to contact police. But Mr. Paterno holds himself out as a molder of young men. He has been celebrated for "doing it the right way" at Penn State.

But, as Fox Sports columnist Jason Whitlock notes:
At age 75, Paterno sought plausible deniability from the allegations of criminal behavior inside the Penn State locker room of his 30-year employee. Rather than immediately demand that Sandusky appear and explain himself, the world-famous molder of men passed the responsibility along to the athletic director, who has far less real power than Paterno. Paterno could have done a helluva lot more. Rather than call the police, Paterno seemingly gathered as little information as possible and slipped back into his JoePa facade.
Now there are questions about just what the graduate assistant told Mr. Paterno that evening. Maybe he didn't know the extent of what Mr. Sandusky was doing. But Joe Paterno was the head coach of the Penn State Nittany Lions. He was the face of the program.

But, when it came time to make a decision on whether or not to do the right thing, he punted. He chose not to deal with the situation. He delegated the responsibility to the athletic director - his boss in title only. Just as he has delegated coaching to his staff.

Joe Paterno should have resigned from his post years ago - back when he was actually coaching and not sitting with a pair of binoculars in the press box. But the time for resigning with honor has passed. It's time the university fire Mr. Paterno.

It's a sad end to a career. It's a permanent stain on his legacy. He had the chance to help his old friend. He had the opportunity to prevent other children from being harmed. He failed miserably on both counts.

Being a coach is more than diagramming plays. It's about teaching young people how to handle adversity. It's about teaching discipline. It's about training young men and women how to lead. It's about showing that hard work and dedication matter. It's about preparing young people for the challenges they will face in life. It's about being an example.

Unfortunately for Joe Paterno, the time has come for him to be an example. Just not the example anyone saw coming.

See also:

"Penn St. scandal should force Paterno out," Jason Whitlock, Fox Sports (11/7/2011)

"With no explanation for inaction, Joe Paterno must go now," Andy Staples, Sports Illustrated (11/8/2011)

"If parting with Paterno, do it now," Dan Wetzel, Yahoo! Sports (11/8/2011)

"Penn State said to be planning Paterno exit amid scandal," New York Times (11/9/2011)

Blood or breath?

Is a blood test more accurate than a breath test? Is either one reliable when it comes to proving whether a motorist had an alcohol concentration of .08 or higher?

The answer in Austin may very well be no and no.

An Austin defense attorney reported that his client had a blood sample taken on a No Refusal weekend. That sample was tested by the Austin Police Department's crime lab. The result came back showing his client had an alcohol concentration of .10. The defense attorney had the blood retested by the Southwestern Institute of Forensic Science in Dallas. Their test showed an alcohol concentration of .08.

What happened?

While it is true that as alcohol metabolizes in the body the alcohol concentration decreases, when blood is stored in a sealed tube there is no way for the alcohol in the blood to metabolize. In fact, it is more likely that the alcohol concentration would increase due to contamination of the blood.

First a little primer on blood testing. When a blood sample is drawn in a DWI case, the person drawing the blood typically makes two draws in two separate tubes. One tube is the "state's" tube and the other tube is there in case the defense wants to retest it. The technician in the lab will prepare two samples from the tubes for testing in a gas chromatograph. This gives us four test results. Typically the lowest result is the alcohol concentration used at trial.

In Austin, however, they average the four results to come up with an alcohol concentration. That raises questions of which blood sample is the actual sample to be used at trial. It also raises questions about the validity of the method by which APD determines alcohol concentration.

APD officials weren't concerned about the 20% discrepancy in the test results. What's a couple hundredths of a gram anyone, right?

APD claims that the differing results could have been caused by evaporation of the alcohol in the test tube -- except that the tubes are supposedly sealed and refrigerated to prevent degradation of the samples. And what about that pesky Henry's Law that states whenever you mixed water and alcohol in a closed system, the concentration of alcohol in the water and the concentration of alcohol in the headspace is the same? A sealed test tube is a closed system.

Just a little something to think about.

Tuesday, November 8, 2011

Court stays Skinner execution

On Monday afternoon the Texas Court of Criminal Appeals stayed Texas' planned killing of Hank Skinner on Wednesday night.

The Court issued the stay to allow Mr. Skinner to litigate the issue of whether or not he is entitled to have DNA tests run on items taken into evidence by investigators. The laws regarding post-conviction DNA testing changed after Mr. Skinner was convicted of killing his girlfriend and her two adult sons back in 1993, but the new law was never applied in Mr. Skinner's case.

Last week Gray County District Judge Steve Emmert denied Mr. Skinner's request to test the items.

Next to Mr. Skinner, the happiest person in the room is Gov. Rick Perry who dodged having to decided between killing a man and granting a 30-day stay so that the matter could be litigated. With his presidential campaign taking on water at a rapid pace, he couldn't have been happy with the choice that was put before him.

By now we should all be aware that you don't walk out of a courtroom knowing the truth. You walk out of the courtroom with a verdict. There is a big difference.

Mr. Skinner was convicted of three murders. That jury decided it was appropriate for the state to kill him. But, if we're going to allow the state to take lives, shouldn't we at least make certain that the right person is being killed? DNA testing was not performed on certain pieces of evidence - that was a tactical decision by Mr. Skinner's attorney. That decision may have been right or it may have been wrong.

But the fact remains that the items were never tested.

The results of the testing may or may not prove Mr. Skinner's innocence. The fact that someone else's DNA is on those items doesn't mean that Mr. Skinner didn't commit the crimes for which he was convicted; but it does cast more than a shade of doubt on that determination.

And if we're going to sit back and watch the government exercise its greatest power - the power to take a life - then we damn well better be certain that the person strapped to that gurney did the deed.

Skinner stay of execution

Monday, November 7, 2011

Judge punts show cause hearing

Today was the day and I was determined not to be denied. Assistant District Attorneys Carl Hobbs and Steve Morris were to appear in the 185th this morning for a show-cause hearing to determine whether they should be held in contempt of court for allegedly violating Judge Susan Brown's order that the Harris County District Attorney's Office be denied access to the grand jury investigating HPD's batmobile fiasco.

I dropped my youngest daughter at school in plenty of time to get downtown. But, when I walked into the Harris County Criminal (In)justice Center, the lines at the elevators were beyond ridiculous. I knew what had to be done. It was off to the stairwell.

For those of y'all not familiar with the courthouse, the 185th District Court is on the 17th floor. Yes, the 17th floor. And I was hoofing it up the stairs.

With every step my body reminded me of the 14 mile run on Sunday morning and the soccer game that afternoon. My body was not very happy. But there I was - on the 17th floor. It was around the corner and down the hall and into the courtroom. The place was packed.

The judge called the docket and we sat in anticipation of what was to come. She called up the attorneys representing Mr. Hobbs, Mr. Morris and the two court reporters. With a gaggle of attorneys wearing dark suits crowded around the bench, I could have sworn I was in the civil courthouse.

The attorney for the court reporters filed a motion to recuse Judge Brown. That seemed to halt the proceedings (at least for the time being). However, Mr. Hobbs' attorney, Bill Hawkins, made it known that his client was ready to proceed. I left the courtroom to take care of some other business.

I returned about 30 minutes later and saw the same cast of characters in the courtroom. But there was one new addition -- my colleague, and fellow blogger, Murray Newman. After his perfunctory insult of my choice of neck wear, we began to discuss what was going on. It seems that there were quite a few conferences at the bench with the defense attorneys and the judge -- the attorneys appointed to represent the state never bothered to approach.

Word went out that the fireworks would begin at 11am. This did not sit well with me since I had only paid for parking til 11am. Oh well, if a parking ticket was the cost of this exercise, it was probably worth it (so long as I don't have too many unpaid parking tickets, I suppose).

Shortly before 11am the defense attorneys once again approached the judge and, the longer the conversation went on, the more animated the judge became. Something was a-brewing and Judge Brown wasn't a happy camper. Neither, it did appear, was Mr. Hawkins. There appeared to be some dissension in the ranks.

Shortly after 11am, Judge Brown went on the record. Mr. Morris' attorney asked that the proceedings be public and not at the bench. Judge Brown then announced that, based on the motion to recuse filed by Mr. Morris' attorney, that she was recusing herself. Mr. Hawkins was not pleased.

So, what was accomplished this morning? Not a whole lot. A small forest was destroyed to make enough paper for all of the motions that were filed. The judge recused herself (Murray was right on the money with his prediction). An interesting subtext was disclosed.

Why would Mr. Hobbs' attorney want to proceed on the show cause hearing? Why not delay it for a few more days and take it up in front of another judge? Could it be that someone is ready to roll? From my dealings with Mr. Hobbs and from the accounts I have heard from other defense attorneys, Mr. Hobbs is a by-the-book guy. I find it hard to believe that he would go to the court reporters and ask for a transcript of the testimony after a judge told the DA's Office that it was not entitled to access to the grand jury. Did someone order Mr. Hobbs to obtain that transcript? Was he following orders?

Someone is going to take a fall for this. The only question is whom.

A master and his craft

The other day I was stuck in the Harris County Criminal (In)justice Center a bit longer than anticipated. There was a trial going on in the 232nd - a young man was charged with murdering another young man. The young man was convicted. The punishment hearing happened to be going on the day I was in there.

The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.

His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.

He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.

He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.

It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.

But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.

Mr. Moncriffe's client was sentenced to 10 years in prison.

That's ten years of asking yourself if there was anything else you could have done.


I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.

Sunday, November 6, 2011

It's about time

Across the pond English scientists are trying to decide whether the world needs to change to a new time standard to compensate for the wobble in Earth's rotation. As it stands, every few years the International Earth Rotation Service adds a "leap second" so that the time kept by atomic clocks and the time measured by Earth's rotation stay within a second of each other.

England's Royal Society is proposing a change to Coordinated Universal Time which would do away with the leap second but not everyone is convinced that this is the best idea. As it stands, this leap second can play havoc with computers, smart phones and GPS devices.

If the leap second is abolished, over the course of a few decades the difference between atomic time and earth's rotational time will be about a minute; and, over the course of a few centuries the two times will diverge by an hour. Of course none of us will be around when that happens so I don't know that I'm too concerned about the whole debate.

But, this exercise does point out that what we call time is not a universal constant - it's a man-made construct. And, what's more, the earth's slight wobble is yet another reminder that we aren't in control of our environment - no matter how much we try to convince ourselves that we are.

Now, while we are debating how to measure time, how about we get rid of standard time and stay on daylight savings time year round? We can change the name of DST to standard time and go merrily about our way.

I am not looking forward to it being pitch dark at 5pm. That's depressing. I'd rather it be light later in the evening. It doesn't matter to me if it's still dark at 7am. I get up before dawn and run so I'm used to being up when it's still dark. If I wanted it to be dark at supper time, I'd move way up north. But, since I like it warm and sunny, I'm more than happy to live on the Gulf Coast.

There's nothing magical about standard time or daylight savings time. DST was introduced during World War II in an attempt to reduce the amount of electricity being used to light houses. By reducing the electric load in the evening, more power and resource could be devoted to the war effort. Just a few years ago DST was extended by a couple of weeks and the sun still rose in the east and set in the west.

So, how about it? Will you join my quest? Abolish standard time and enjoy an extra hour of light in the evening.

Saturday, November 5, 2011

Harris County's runaway grand jury: a blawgosphere summary

On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.

Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:

"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)

"The BAT van show-cause order," Defending People (Nov. 2, 2011)

"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)

"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)

"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)

"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)

"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)

"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)

"What you say can be used..." Sustained (Oct. 27, 2011)

"The plot thickens," The Defense Rests (Oct. 26, 2011)

"A rat in a trap," The Defense Rests (Oct. 26, 2011)

"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)

"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)

"Runaway jury," The Defense Rests (Oct. 24, 2011)

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

Friday, November 4, 2011

Scenes from an occupation

Tranquility Park, across the street from City Hall. The picture doesn't give the signboard justice.

The main encampment. The gentlemen with their backs to you are cleaning dishes. The group has a "grey water" recovery system.

And, what would an occupation be without agents of the oppressors?

Judge denies request to test evidence in death row case

That clock keeps a-ticking. That clock that's counting down the days, hours, minutes that Hank Skinner has remaining. Mr. Skinner has another date with the executioner next Wednesday. The State of Texas has another chance to murder Mr. Skinner. Of course it's probably too late for the latest state-sponsored killing to help Rick Perry's sinking presidential campaign.

Mr. Skinner was tried and convicted of the murders of his girlfriend and her two sons in 1993. The state introduced evidence that Mr. Skinner's blood was at the scene. An ex-girlfriend testified that he confessed to her; but, then, she recanted.

There was a great deal of biological evidence that was never tested because Mr. Skinner's attorney was afraid it would (further) incriminate his client. It was a valid fear and one that we have to deal with from time to time. Heads you win, tails you get the needle in your arm.

Among the items that were never tested were a rape kit, biological material found under the victim's fingernails, sweat from a jacket, a bloody towel and knives. To this day no one knows whose DNA will be found. And, thanks to Gray County District Judge Steven Emmert, we're not likely to know.

Judge Emmert, you see, denied Mr. Skinner's petition to have the items tested before his schedule execution. But why?

Why is the state so resistant to testing the items? Is it because someone's worried about what the results might be? Why didn't prosecutors test the items in the first place? If Mr. Skinner's DNA wasn't present, that would constitute Brady material.

The State of Texas is seeking to murder a man. Aren't we entitled to know whether the state is strapping the right man down on the gurney? We're not talking about a wrongful conviction in which an innocent man spends 10 or 20 years in prison (with no hope of ever getting that time back), we're talking about taking a man's life.

From the Texas Tribune 

For a decade, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. The high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law.
State lawmakers, though, made significant changes to that DNA testing law this year, expanding access and eliminating many of the restrictions the state had previously cited in denying Skinner's requests. In the letter, the group of officials said that change was designed with cases like Skinner’s in mind to eliminate procedural barriers to DNA testing that have “gotten in the way of the search for the truth.”
“That legislation passed with overwhelming bipartisan support, not least because polls show that eighty-five percent of Texans agree that prisoners should have broad access to DNA testing,” they wrote.

The slavish adherence to artificial deadlines allows a judge to avoid making a real decision. Judge Emmert had the opportunity to do the right thing. He had the opportunity to say that if the State of Texas is going to mete out the ultimate punishment then the state needs to be damn sure they're killing the right person. Judge Emmert could have done that. But, instead, he passed the buck. All because a deadline was missed.

For all the talk of the need for finality, no one seems to appreciate that death is final. Once the drugs are pumped into Mr. Skinner's veins it's too late to make certain the state murdered the right person. Once the drugs start flowing, there is no exoneration.

See also:

"Next verse, same as the first," Gamso for the Defense (Oct. 6, 2011)

"To test or not to test," The Defense Rests (Mar. 24, 2010)

"Nope, no balm in Gilead. Sorry," Defending People (Mar. 23, 2010)

"Questions arise over DNA in death row case," Texas Tribune (Jan. 28, 2010)