It's only a misdemeanor

The American prison population is roughly two million. That's more than the total number of inmates in all of Europe.

But, as Loyola Law School professor Alexandra Natapoff points out in her recent law review article "Misdemeanors," most analyses of the American criminal (in)justice system ignore the plight of those accused of misdemeanors.

For every new felony charged filed in the US, there are approximately ten new misdemeanor cases. And most of these cases are disposed of quickly with pleas for time served. No one spends much time discussing the consequences of a misdemeanor conviction. Some attorneys can't even be bothered to do a half-assed investigation of the facts before pleading their clients out. And judges just want to get the cases off their dockets.

What we end up with is a system that brings new blood into our courthouses on a daily basis. These new defendants are taught by those who work within the system that a misdemeanor conviction is no big deal. They learn the lingo. They learn the drill.

But what happens when that plea of guilty in exchange for time served means you're not eligible for public housing? What about if that plea results in a driver license suspension? How about being ineligible for financial aid when you get to college? And what about the effect a conviction might have on your chances of finding suitable employment?

No one pays much attention to the problem of wrongful convictions in misdemeanor cases. That's probably because most misdemeanor convictions end in probated sentences of less than two years. No one's going to be locked away for the rest of their life. It takes longer to get a misdemeanor case up on appeal than it does to finish the sentence.

Judges relax the rules of evidence for the state. Problems with the administration of roadside coordination exercises go to the weight of the evidence, not its admissibility. Nevermind that the NHTSA manual tells us, in bold-faced, all caps, that the failure to administer the exercises properly renders them useless.

When it comes to forced blood draws on misdemeanor DWI cases, the contempt judges have for due process comes across loud and clear. Judges find nothing wrong with the notion of volunteering to sign search warrants ordering blood draws. They find nothing wrong with being part of a "team" to clean up the streets. What's that you say? The affidavit is full of conclusory statements without providing the factual bases for the conclusions? Ah, hell, motion to suppress denied.

For most of our clients, going to trial on a misdemeanor case is one of the most important moments in their lives. They've never been in trouble like this before - and they're facing a permanent black mark on their records if convicted. But, in the name of judicial economy, you get 20 minutes to question the jury panel. Twenty minutes to discuss the presumption of innocence, burden of proof and the elements of the offense. Mustn't bust the panel - it doesn't matter how much an answer reveals a bias or an inability to follow the law; let's just rehab them at the bench.

Fifteen minutes should suffice for opening and closing. And we've got that pattern jury charge, too. You know, the one that no one's bothered challenging for years now.

But, you know, it is only a misdemeanor, after all.

H/T Doug Berman

Execution Watch 2/29/2012

The Texas killing machine is back in business.

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

GEORGE RIVAS. Described as the mastermind of a seven-man escape in 2000 from a state prison in South Texas, he was condemned in the shooting death of a police officer outside Dallas during a robbery by the group. Later one escapee committed suicide rather than be captured. The six survivors were sentenced to death. Executed in August 2008 was Michael Rodriguez, who had dropped his appeals. Donald Newbury was set to die on February 1 but received a stay of execution.

For more information on Mr. Rivas, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ..."Wednesday, Feb. 29, 2012, 6-7 PM CT
KPFT Houston 90.1 FM, HD-3
Listen online: www.executionwatch.org > Listen


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

You're not under arrest unless I tell you you're under arrest

cus·to·dy

noun \ˈkəs-tə-dē\

plural cus·to·dies

Definition of CUSTODY

: immediate charge and control (as over a ward or a suspect) exercised by a person or an authority; also :safekeeping

Just what does it mean to be in custody? If one is not free to leave, it would be reasonable to assume that he is in the custody of someone else. But what if that other person doesn't tell him that he isn't free to leave? Is a person any less in custody because he doesn't realize he's in custody?

According to the Austin Court of Appeals, in State v. Chupik, No. 03-09-00356-CR (Tex.App.--Austin 2011) that's exactly what it is.

It would seem that Randall Chupik was driving down W. 6th Street in Austin at one o'clock in the morning. A police officer stopped Mr. Chupik for weaving within his own lane (not a traffic violation). The officer testified at a suppression hearing that he had probable cause to arrest Mr. Chupik after waving a pen in front of his face. He also testified that Mr. Chupik wasn't free to leave.

After conducting the HGN test, the officer had Mr. Chupik perform other coordination exercises and asked him a series of questions. At no time did the officer tell Mr. Chupik he couldn't leave.

The Travis County trial court granted Mr. Chupik's motion to suppress on the grounds that the officer conducted a custodial interrogation when he asked Mr. Chupik questions after the HGN test and without warning him of his Miranda rights.

The Austin Court of Appeals upheld the trial court's decision on appeal so the state appealed to the Court of Criminal Appeals who reversed and remanded the case back to the Austin Court of Appeals.

This time around the Austin Court of Appeals held that a person is only under arrest (for Miranda purposes) if a reasonable person would assume, under the same circumstances, that he wasn't free to leave. The court also held that it didn't matter if the police officer felt the suspect was in custody. It only mattered if the officer told the suspect that he wasn't free to leave.

Nevermind the fact that we all know that once an officer begins conducting roadside coordination exercises we aren't free to go. Let's be real. Once that officer stops you, unless he tells you you can leave, you can't leave. It doesn't matter whether he says it or not.

This legal fiction that you're not under arrest if you don't know you're under arrest is yet another example of the courts bending over backwards to find ways to weaken the protections of the Fourth and Fifth Amendments.

Book review: The Operators - The Wild and Terrifying Inside Story of America's War in Afghanistan

It's America's longest running war. It's the war that most folks have either forgotten about or never paid attention to. It's our turn to get stuck in a quagmire that has gotten the best of the British and the Soviets before us. It's the never-ending war in Afghanistan.

Michael Hastings' new book The Operators gives us an up close and personal view of the people responsible for it. On assignment for Rolling Stone, Mr. Hastings was sent to do a feature article on General Stanley McChrystal, the commanding general of US and NATO forces in Afghanistan.

McChrystal had just been named as the replacement for General David McKiernan and he was being treated as a rock star by the media. He carefully cultivated an image of himself as a dedicated patriot who was willing to do what it took to win the war.

McChrystal was also an acolyte of the counter-insurgency school of military thought. Put in simple terms, counter-insurgency isn't so much fighting a war as it is building a nation. The war in Afghanistan was a civil war between the government forces of Hamid Karzai and everyone else. According to the counter-insurgency theory, the path to victory is to convince the folks caught up in the middle of the war that the government is legitimate and that the only way out of war is to shore it up.

It's the old "hearts and minds" argument.

Now while there's a good amount of truth behind the general idea, the problem is insurgencies surface when governments become corrupt and oppressive. And no amount of sugar-coating or whitewashing the fences can change that. It also means that we're getting caught up in yet another country's civil war. And for what?

In his travels with General McChrystal, Mr. Hastings observed, shall we say, quite a bit of questionable behavior.  He also witnessed the utter contempt in which the general held President Obama. He gives us a portrait of a man, and his inner circle, who did their best to short-circuit civilian control of the military. No matter how much General McChrystal disliked it, his boss is the President. He finally understood the dynamic when he was forced to resign his position.

Mr. Hastings also points out the complicity of the media in the war effort. Instead of acting as a check upon the government, the media were cheerleaders for the Pentagon. Correspondents wanted to be "embedded" with combat units. They wanted interviews with the top brass. They wanted access and they wanted publicity. And they were willing to sell their credibility to get it.

The media was critical of the Johnson and Nixon administrations during the Vietnam War. Beginning with the first Gulf War, the media have been acting as the unofficial public relations firm for the Pentagon. There is very little criticism of the war effort. There is little critical analysis of what's happening on the ground. There is certainly no questioning of the purpose of the war.

Mr. Hastings provides us with a more balanced view of what's really going on in Afghanistan. He is willing to question the rationale for the war. As we begin our second decade fighting a war without purpose, Mr. Hastings' book is a breath of fresh air and perspective.

Sheriff proposed video conferencing at the county jail

Video conferencing. Virtual jail visits. Meeting with your client without ever leaving the office. It's the wave of the future. Better climb aboard now or get left behind.

Harris County Sheriff Adrian Garcia is in full cost-cutting mode. His latest idea on lowering the cost of allowing prisoners to see their families and attorneys is video conferencing. Both Fort Bend and Galveston counties have video conferencing set-ups in their jails.

Instead of going to a room to speak with their loved one through plexi-glass or by phone, visitors can sit down at a television monitor and have their face-to-face time. No doubt it's more convenient - but everyone in the lobby can hear your conversation.

In Fort Bend County they have special booths for attorneys to meet with their clients. It gives a greater sense of confidentiality since no one (you assume) outside the booth can listen in.

But do you really know for sure? The county maintains the equipment. The county maintains the software. You know, the same people who are trying to convict your client of whatever alleged misdeed he committed. Are you really having a secure conversation?

Jails maintain visitor logs. They record all outgoing inmate calls. They read all the mail - both incoming and outgoing - unless (fingers crossed) it says "attorney-client communication" (or words to that effect) on the envelope. What are they doing with the video feeds?

Does the software just facilitate the transfer of video and audio from one monitor to another? Does the software allow the state to "capture" audio or video? Does the software allow a third party to monitor the communication?

And now Harris County wants to go the video route, too. I'm sure there are plenty of attorneys out there who hate going to the jail to meet with their clients. The buildings reek. Attorneys have to pass through metal detectors. It's freaking cold. You have to speak through holes punched in a plexi-glass screen.

I don't care for it. But it's what I signed up for when I decided to be a defense attorney. I won't "meet" with my client via the county's video conferencing system because I don't trust the county.

There are too many unanswered questions when it comes to video conferencing at jails. And the folks that have the answers to those questions are the ones holding your client behind bars.

Speedtrapped

For anyone who has spent any time traveling on US59 north of Houston, the name "Patton Village" evokes strong emotions. For those of y'all not familiar with the area, Patton Village is one of the most (in)famous speedtraps in this part of the state.

But for the city limits sign on the highway, you'd never know it was there. I have no idea what's in Patton Village - but I do know the local police patrol a stretch of 59 as if the future security of the Republic depended upon it.

Now it would seem that the worm has turned, so to speak.

Yesterday the mayor of Patton Village was arrested and six other city officials, including the court clerk and three police officers, were indicted in Montgomery County following an investigation by the Montgomery County District Attorney's Office, the Texas Rangers, DEA, FBI, DPS and the Department of Agriculture(?).

The charges include abuse of official capacity, misuse of official information, misapplication of fiduciary property, securing execution of a document by deception and theft by public servant.

Yes, I know those folks are innocent unless proven guilty - but it's more than a bit hard to have any sympathy for people who have abused power to the degree they did up there.

Here's your salute to the political establishment of Patton Village, courtesy of Sammy Hagar...

Using the children as a shield

What could possibly go wrong when our legislators set out to do "something for the children?"

I mean, there's no way that Congress would use the kiddos as a smokescreen to enact a piece of legislation that would make it easier for law enforcement to collect data on the citizenry. Right?

Take just a second to think about that. HR 1981, otherwise known as the Protecting Children from Internet Pornographers Act of 2011, is yet another power grab by the state promoted under the guise of protecting someone from something terrible.

Under HR 1981, internet service providers would be required to keep a log of the temporary network addresses (IP addresses) assigned to its subscribers so that los federales can access the information should they get a bee up their butt that someone has been looking at something naughty on the internet.

Under H.R. 1981, which has the misleading title of Protecting Children From Internet Pornographers Act of 2011, Congress would force commercial Internet access providers to keep for one year a “log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section.”  Let’s break that down into simple terms.

An IP address is a string of numbers that indicates the general location where someone accessed the internet. The IP address isn't unique to the user. It isn't even unique to the computer. If you use an unsecured wireless system someone can sit in the street in front of your house and access the internet using your connection. The IP address would be the same as if you accessed it from your study.

But the bigger problem is having Big Brother looking over your shoulder while you cruise the internet. Sure, there are people looking at naughty pictures on their computer screens. There are also people following the Syrian government as it kills off its own people. There may even be some folks writing subversive blog posts about the overreaching of the state.

We all have a right to be left alone. It is, as I have said before, the most fundamental right we have. We shouldn't have to worry about what records our internet service providers keep regarding our browsing. Hell, even the folks over on the right are upset about it.

H.R. 1981, one of the newest pieces of internet legislation to be debated, is a huge threat to our privacy. Under the auspices of protecting our children from pornography, it is simply a cleverly-disguised way to force online service providers to spy on your online activities and provide that information to the government.

There's a reason those in power couch their intentions to intrude into our private lives the way they do. Who on earth would be against a bill designed to protect our youth from the scourge of drugs? Who would opposed a bill designed to protect our nation from terrorists? Would would dare challenge a bill meant to protect our children from the pornographers?

But it's all just a ruse. All the state needs is for that tent to be lifted just high enough to get its nose underneath it. And once that nose is under the tent it's just a matter of time until the whole damn camel is snuggling up next to you in your sleeping bag.

By then it's too late.

Ryan Braun cleared to play ball

This past December Major League Baseball announced that the National League MVP, Ryan Braun of the Milwaukee Brewers, had tested positive for elevated levels of testosterone. He was suspended for 50 games.

The media immediately lumped Mr. Braun in with other players known, or suspected, to have used performance enhancing drugs. Nevermind that nothing had been proven. Nevermind that Mr. Braun had not yet exercised his due process rights under the collective bargaining agreement. Nope, it was enough that MLB announced his test was positive. Ryan Braun was a cheater.

Umm. Not quite so fast.

To the chagrin of MLB officials, an arbitration panel overturned Mr. Braun's 50-game suspension on Thursday. It turns out that Mr. Braun wasn't a cheater, after all.

Of course that didn't stop MLB and the US Anti-Doping Agency from announcing their disappointment with the panel's decision - the first time the panel has overturned a suspension for suspected use of performance enhancing drugs.

And what, pray tell, convinced the panel to overturn the suspension? Well, it turns out that the urine sample provided by Mr. Braun wasn't sent to the lab on time. He submitted the sample on a Saturday but the collector decided it was better to hold the sample for the weekend rather than ship it to the lab via FedEx. Instead of being sent to the lab within 24 hours, as the collective bargaining agreement calls for, it wasn't sent for more than 48 hours had passed.

That old pesky chain of custody. Had the collector submitted the sample when he was supposed to do so, there wouldn't be a question of whether anyone had tampered with the sample. But, by holding on to it over the weekend, the collector created doubt about the veracity of the test.

It also turns out that after learning that the sample tested positive, Mr. Braun requested a second test that came out clean.

The lesson, of course, is that just because a test comes back positive, it doesn't mean that the test subject did anything wrong. Whether we're talking about urine tests for PEDs or blood or breath tests for alcohol, the test result is nothing but a number. The real question is what's behind that number?

New in the blawgosphere

There's a new blog in town. Mark Godsey, a lawprof at the University of Cincinnati Law School, is the editor of The Wrongful Convictions Blog. The blog contains an unbelievable amount of material regarding exonerations, junk science and the innocence movement.

Mr. Godsey has quite the team of contributors working beneath him providing this treasure trove of information.

I encourage y'all to, as Joe Bob Briggs might have said, check it out.

Super cop goes to Bahrain

So what do you do if you're an authoritarian regime facing open revolt but your security forces are drawing condemnation for their use of brute force against demonstrators?

If you're the Bahraini government you call up John Timoney, the former chief of police in Philadelphia and Miami, to whip your security forces into shape. You know the American press will eat it up and treat your new hire with kid gloves. You're also pretty certain that the decision will buy you some time as you try to put an end to the dissent in the streets.

It would probably be best to tout the manner in which he handled large scale riots or demonstrations, such as in New York's Tompkin's Square in 1988 or in Philadelphia at the Republican National Convention in 2000. The man knows how to control a large crowd.

When Timoney took on the role of Miami's police chief in December 2002, his methods for dealing with mass demonstrations had evolved to include the use of pepper spray, rubber bullets, bean bag rounds, Tasers, electrified shields and batons. The tactics were on full display during the Free Trade Area of the Americas summit protest. 

The documentary The Miami Model depicts several scenes in which police in riot gear are seen shooting non-violent demonstrators with "less-lethal" rounds, hitting protesters with fists and batons and using Tasers extensively. The film-makers also interviewed several anonymous local residents who say the police encouraged them to rob legal observers and people involved in the protests.

Of course his methods of crowd control include the liberal use of police batons, fists, tear gas and tasers. I must admit that it is better than live ammunition - but it still involves the use of force to quell dissent.

But the government of Bahrain isn't concerned with the aspirations of its people. And neither is our government. All the time our representatives pompously condemn governments around the world for repressing their people, they turn a blind eye if the transgressor happens to be buddy-buddy with Uncle Sam.

Here is The Miami Model which documents the tactics used by the Miami police during the 2003 Free Trade Area of the Americas summit meeting. The documentary is 91 minutes long.

A little something left to be desired

I had lunch the other day with my brother, who's a private investigator. We decided to grab some barbecue and headed up to 19th Street to try the 'cue at Gatlin's - which we heard was supposed to be pretty good.

Gatlin's is in an old house near the confluence of 18th, 19th, 20th and Ella. It's a very simple set-up. There are a couple of tables inside and a larger seating area outside under the covered patio. You walk inside up to the counter and place your order. There's a pass through behind the counter where you can watch them pull the meat out of the smokers and slice it up.

I had my usual - brisket and sausage. The lady behind the counter (a very sweet and friendly lady, I might add) asked me if I wanted lean, moist or burnt ends for the my brisket. I told her I'd take all of it along with a side of baked beans.

The sausage was good, but didn't have enough smokiness for my tastes (keeping in mind that I prefer my barbecue dry as opposed to sauced). The brisket, on the other hand, was a disappointment. Most of the meat was moist and fell apart at the touch. The meat had a good smoke ring, however, and a black coating (smoked over pecan, I would guess), but it had very little taste.

A little spice rub would've been nice. Hell, even salt and pepper would've added some flavor to the meat. Good barbecue should have some smokiness to it with a little bit of a kick. The brisket and sausage at Gatlin's had very little of either.

Standing on the shoulders of giants

"We just wanted to tell our wives we were at a meeting when we were out drinking." -- Richard "Racehorse" Haynes, as told to Chris Tritico

Last Thursday the Harris County Criminal Lawyers Association honored its five surviving founding fathers. Back on November 4, 1970, a group of defense attorneys got together and decided it made sense for the defense bar to work together. From those humble beginnings HCCLA has grown to over 600 members.

The five men, Richard "Racehorse" Haynes, Dick DeGuerin, Jerry Patchen, Don Smith and Theodore Trigg were honored by the current membership and members of the local judiciary for laying the foundation for today's HCCLA.

When asked what it meant to be a defense attorney, Jerry Patchen said we are the last refuge for the accused and the guardians of freedom. He said it is our duty to stand in "eternal opposition" to the government.

Don Smith, well known for his wild ties, told the audience that he was proud of what the organization had become.

Theodore Trigg, who was obviously humbled by the ceremony, said as a defense attorney you must always be there for your client and that we have a license to help people.

Racehorse Haynes wasn't able to attend due to a broken hip he had suffered the night before. But Chris Tritico told us that Mr. Haynes always said our duty is to stand up for those people.

A special thanks is owed to Earl Musick, the current president of HCCLA, for putting the ceremony together. Well played, Earl.

More potted meat

A while back I had a frequent commenter ask me why I required people to type the squiggly letters in a box in order to leave a comment because it looked like I published every comment.

The truth is I don't publish every comment. I will publish both positive and negative comments from readers. I have no problem accepting criticism. If I didn't want criticism I wouldn't use this forum to express my opinions.

What I don't publish are the scores of spam comments I get on a regular basis. They are quite insipid and I don't feel I should allow this blawg to be the vehicle for their attempts to game Google.

Here's one such comment I received:

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There was a link for some kind of women's boots at the end of the comment and "Roger B. Ferguson" tried to post it in response to my post on the DA's citizen  propaganda prosecutor academy up in Dallas. To this day I have no idea what it's supposed to mean.

Then there was this:

It is appropriate time to make some plans for the future and It is time to be happy. I've read this post and if I could I want to suggest you few interesting things or advice. Maybe you can write next articles referring to this article. I want to read more things about it!

Call me silly but I'm not thinking "Sarah P. Gavin" is really her name. She wanted to put up a link to some silver jewelry site on my post about the new French law making it a crime to deny that Turkey committed genocide in the aftermath of World War I.

"Robert Ducket" left me this special comment on my post about the price Pat Lykos was paying for thinking outside the box when it came to drug cases and DWI's:

Lawyer make solution of country court cases and save peoples from jail prisoning. Crime control is need of society that with peoples satisfaction too.

I would suggest that the Toronto law firm that hired someone to post the spam comment would at least take a look at the crap their marketer is spewing on the internet. It really doesn't inspire confidence. Y'all might want to ask your SEO rep to bone up on his English grammar before the next wave of spam goes out.

And, just to show that there is a certain irony to life, I leave you with this comment from a DWI lawyer out in California:

Excellent information provide for us.....................

It was a comment to, appropriately enough, a post about spamming.

Presumption of innocence goes up in smoke

Last week a fire swept through an overcrowded Honduran prison and killed more than 350 inmates. At the time of the fire there were 856 inmates in a facility designed to hold but 500. Even more appalling is the fact that more than half the inmates at the prison were either awaiting trial or being held as suspected gang members.

So much for the presumption of innocence in the banana republic.

The only job for prison administrators is to assure the safety of the inmates placed into their custody. Being removed from one's home and one's family and being forced to do what someone tells you to do 24 hours a day is punishment. Being housed in an overcrowded fire trap is cruelty.

Regardless of whether you have any sympathy for the convicted serving their sentences, those men have families and people who care about them, too. It is bad enough to have a loved one taken away and locked up for years. To have that person's life taken from you is an unspeakable tragedy.

The most terrifying power the state holds is the ability to take away a person's liberty. In this instance we have the state not only taking away the liberty of citizens without ever formally charging them - but taking their lives.

There are people who ask me how I do what I do. They ask me how can I defend a person I know is guilty. The answer is easy. My job is to fight the ability of the state to take away a citizen's liberty. My job is to limit the power of the government. My job is to defend our right to be left alone.

A tyrant is a ruler whose powers aren't checked. It doesn't matter what label you place on the country's political system. A tyrant can be elected in a democracy just as easily as he can come to power by force of arms.

We deal with petty tyrants in the courthouse every day of the week. Whether it be the municipal court judge who issues a warrant if someone is five minutes late for traffic court or the judge who adheres blindly to a bail schedule. And, since only those people end up in criminal court, it has precious little impact on most of the electorate who is more than happy to just close their eyes and vote for the R's or D's.

Shining a light on a dark secret

Senior ranking US military leaders have so distorted the truth when communicating with the US Congress and American people in regards to conditions on the ground in Afghanistan that the truth has become unrecognizable.  This deception has damaged America’s credibility among both our allies and enemies, severely limiting our ability to reach a political solution to the war in Afghanistan.  It has likely cost American taxpayers hundreds of billions of dollars Congress might not otherwise have appropriated had it known the truth, and our senior leaders’ behavior has almost certainly extended the duration of this war.  The single greatest penalty our Nation has suffered, however, has been that we have lost the blood, limbs and lives of tens of thousands of American Service Members with little to no gain to our country as a consequence of this deception. 

-- Lt. Col. Daniel Davis, Dereliction of Duty II

So begins Lt. Col. Daniel Davis' critique of the American war effort in Afghanistan, a ten-year conflict that we have nothing to show for except thousands of American casualties.

According to the government, the war effort has been a success. US forces have weakened the Taliban by eliminating leaders and troops, taking away sanctuaries and disrupting supply lines. But, as Lt. Col. Davis points out, if the enemy has been weakened by the actions of US forces, how do you explain the increase in American casualties in the last year?

The report accuses the military leadership, Gen. David Petraeus in particular, of not just spinning the news, but completely distorting it in order to sell the American people the military's bill of goods when it comes to the sink hole that is the Afghan war.

According to the company line, the number of attacks against American troops increased because the troops were taking the fight to the Taliban in sections of the country that troops hadn't been to previously. As Lt. Col. Davis points out, that excuse only explains the violence at the beginning of the offensive. As the number of US forces in an area increase - and as Taliban forces either stay steady or decrease - the number of attacks against US forces should decrease. That's not what has been happening.

Our government tells us that Afghan security forces are capable to fighting the Taliban and keeping them in check. We are also told that the Afghan government isn't corrupt and is capable of running the country. Lt. Col. Davis claims the truth is the opposite. He cites military sources who have admitted that Afghan security forces aren't at all capable of "holding the fort" and that the government is still very much corrupt.

He questions the ability of local governments and security forces to defend the machinery of the state against the Taliban. If that is the case, then much of the last ten years has been nothing but a futile exercise in sending young men to their deaths in the desert.

The military blames the declining levels of support for the Afghan war on the military's inability to get its message out to the American people. Their myopia prevents them from understanding that the public is tiring of the war because it seems to have degenerated into a quagmire.

In the meantime the media, the so-called check on the government, has completely fallen on its face as a result of kissing every ass they could find to get inside sources on camera and on background. The media long since gave up its role of challenging government assertions during war - they became cheerleaders for the Pentagon during the first Gulf War. Scared of pissing off the people who give them access, reporters gladly relay the company line to the American people.

The war in Afghanistan has been a disaster - as has every other attempted invasion of the country. As Michael Hastings pointed out the other day on Democracy Now!, the Army will soon take aim at Lt. Col. Davis. First will be the smear campaign and then will begin the campaign to tarnish his credibility.

It takes courage to stand up and expose a lie. Lt. Col. Daniel Davis is risking his career to tell the American people the truth about Afghanistan. Lt. Col. Davis should be hailed as a hero.

H/T Democracy Now!

Mayor wants to build new crime lab

Harris County already has a crime lab. It's called the Harris County Institute of Forensic Sciences. It was created out of the old medical examiner's office. They have a brand new building and a staff of anthropologists, forensic pathologists and lab techs in various forensic fields.

The City of Houston, on the other hand, only has the long discredited HPD Crime Lab.

But now Annise Parker wants a crime lab of her own. She wants to create an "independent" crime lab headed up by an assortment of political appointees to oversee the testing of evidence in criminal investigations. She'll need a building and a staff as well as a board of appointees fitting every possible demographic.

Mayor Parker wants someone from an Innocence Project-type group on the board. Council member Larry Green wants someone from the NAACP or LULAC. And, so we don't forget the wingnut crowd, Michael Sullivan wants representatives from law enforcement, so-called victims' rights groups and Parents of Murdered Children.

Excuse me, Mr. Sullivan, the crime lab's only customer will be law enforcement. They will provide the expert witnesses at trial. They will bend the truth any way they can to convince that jury that the defendant is guilty as charged.

Any crime lab should be independent of law enforcement. The testing of evidence should be an exercise in science, not politics. The only agenda the board running the lab should have is how to improve the science.

With the IFS already up and running, there is no need for the city to build its own crime lab. The city should contract with the IFS to handle any evidence testing for HPD. Running two crime labs would be a tremendous waste of resources. There are better uses for city money than duplicating the services the county already provides.

So, Mayor Parker, just let it go.

H/T Grits for Breakfast

Will he be back again?

When I read Scott Greenfield's post last Monday I wasn't aware I was reading the last post on Simple Justice. I thought it was just a little retrospective look over the last five years in the blawgosphere.

I don't know if Scott will be back or not. I hope so because he always had something to say - and he said it with panache.

And that gives me yet another excuse (as if I even need one) for a little Johnny Cash, along with Waylon, Willie and Kris...

County official calls for a different approach to fight crime

When it's hurricane season, Harris County Judge Ed Emmett is the one telling everyone it's time to "hunker down." He and the mayor of Houston will stand in front of the cameras at the Transtar headquarters on the nights the general managers of the local stations have wet dreams about because everyone is watching for news of the approaching storm.

Now, for those of y'all who aren't from Texas, the County Judge isn't really a judge. That's just the term given to the person who presides over the county commissioners' court. Of course every once in a while you get a county judge who thinks he really is a judge...

The other day Mr. Emmett delivered his state of the county speech to a handpicked group of local business leaders and county employees. In it, the conservative Republican talked about using a different approach to fighting crime.

And at a time when healthcare is a national and state issue, Harris County simply must lead the way, in providing our indigent population with medical homes that provide preventive care. And a county and as a society, we must constantly search for ways to assist those among us with mental health and/or substance abuse issues. Better delivery of services to this segment of our population, will not only make for a better society. It will lessen the pressure on our jails and our hospitals.

Mr. Emmett's remarks continue a trend by which conservative thought-leaders are rethinking the way our criminal (in)justice system should work. They are selling these new ideas as a budget-cutting device. It costs money to build and maintain jails.

You put a liberal or progressive before the public talking about attacking the root causes of crime and using alternative strategies to deal with young and first-time offenders and the speaker will be mocked for being "soft on crime." Make the same argument but emphasize the way in which alternative approaches will cost taxpayers less money down the road and you're a visionary.

Mr. Emmett understands that many folks who end up in the criminal (in)justice system are there because of substance abuse issues or mental health problems. Finding low-cost ways of providing treatment on the front end may very well reduce the expense on the back-end.

Finding new ways to handle first-time and young offenders without locking them up in the county jail will ease overcrowding issues and obviate the "need" for a new jail facility. Increasing the use of personal bonds and pretrial release will allow more folks to continue with their lives while fighting their cases.

It's time to take another look at how our criminal (in)justice system works, and doesn't work. It's time we were honest with ourselves and looked harder at alternative approaches that don't involve incarceration.

Mr. Emmett's looking in the right direction.

RIP Gary Carter

Yesterday afternoon I walked into Sports Clips to get my hair cut (let's just say it had gotten a bit long over the past few months) and on the TV I saw them talking about Gary Carter. I knew he had brain cancer and I knew his death was inevitable. But it still came as something of a shock.

I watched Carter play for the Expos and for the Mets. Toward the end of his career the stress and fatigue of playing behind the plate had caught up with him. But for a few years, "The Kid" was nothing short of magic.

His crowning achievement was winning a World Series ring with the Mets in 1986. In Game 6 the Mets were trailing by two runs in the bottom of the 10th and were down to their last out. Gary Carter picked up a line drive base hit to left field that sparked the most improbable rally in World Series history.

Gary Carter was a class act and, to use an old baseball cliche, he played the game right. He treated every day on the field as if it would be his last. I think there's probably a lesson in that for all of us.

Gary's time on this world was cut way too short. We never know when we're going to get the hook; so take advantage of this life while it's here.

Rest in peace, Gary.

The medicine cabinet is almost bare

What is a bloodthirsty governor supposed to do when he runs out of one of the drugs in the lethal cocktail used to murder inmates in his state?

What can he do if the only manufacturer of the drug has announced that it will not sell the drug to anyone who plans to use it to kill people?

If he wishes to fuel his next run at the White House with the state's killing machine, Rick Perry is going to have to come up with a new way to kill. According to the Guardian newspaper, Texas only has enough pentobarbital for six more executions.

If Texas is able to find a drug - that it can obtain legally - to replace pentobarbital in the lethal cocktail, will that lead to a constitutional challenge to the state's execution protocol? Would the state be required to provide documented evidence that the new drug renders the prisoner unconscious and oblivious to the pain of the drug that stops his heart?

But the bigger question is where would Texas, or any other state exercising its blood lust, get their hands on such a drug? Is there a manufacturer somewhere that won't mind the publicity they'd receive over being the execution drug of choice?

And if Texas finds someone willing to provide the drugs, would anyone face and consequences for violating the licensing agreements with the manufacturers?

And what of Mr. Perry's mantra of limited government? Exactly how does Mr. Perry square that with supporting the power of the state to take a life? Of course intellectual consistency has never been something Mr. Perry was ever accused of possessing.

The death penalty is cruel and barbaric. Most of the world gets it. Unfortunately, we don't.

Killing an inmate has never brought the dead person back to life. Killing an inmate has never eliminated the pain of anyone who has lost a loved one.

Maybe now the end is in sight.

H/T Grits for Breakfast

Trying to keep your story straight

It can be so damned hard to get those stories straight sometimes. Fudging a little bit here, leaving out something over there and then having to remember all that when asked to recount what happened.

I didn't know about any investigation of the grand jurors. 

I authorized an investigation of the grand jurors. 

Actually it was just a quick internet search [on county computers]. 

Should there be an investigation [by the Texas Rangers] we will cooperate. 

I asked the Texas Rangers to look into the allegations myself.

Okay, Ms. Lykos, which is it?

First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.

Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.

Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.

But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.

Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.

Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.

With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.

Book review: American Sniper

Let it not be said that I won't read something with which I disagree. American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History was written by Navy SEAL Chris Kyle and details his account of his time in Iraq during the second Iraq War.

The book, co-authored by Scott McEwen and Jim DeFelice, is just about as hackneyed and cliched as it can be. If you've ever read Lance Armstrong's first book It's Not About the Bike, you're familiar with the author recounting in infinite detail just how good he was at everything he did. Mr. Kyle shines the light firmly on himself.

If you've ever seen Full Metal Jacket or The Boys from Company C then you can already guess the manner in which Mr. Kyle covers his basic training for the Navy at for the SEALS. He then spends an inordinate amount of time throughout the book regaling us of stories of bar fights and brutal hazing rituals. In Mr. Kyle's world, a SEAL is but a drunk sailor with a temper. No fight is ever the fault of Mr. Kyle or his fellow SEALS - but neither do Mr. Kyle nor his mates seem to understand how to walk away from a barfight.

He then takes us into Iraq and the world of the sniper. Mr. Kyle fought in Baghdad, Fallujah, Ramadi and Sadr City and he paints a visceral picture of what that world looked like to him. Of course he never questions the mission. His job, as he defines it, was to kill the savages that opposed the U.S. Those he killed weren't human - they were animals. There is no concern about their families or the war-ravaged land in which they lived. On the other hand, there is tragedy any time an American is killed or wounded.

The killing didn't seem to bother Mr. Kyle - except for the teenager he shot to death who was carrying an AK-47. The emotional effects of that killing led him to an early exit from Iraq due to health concerns. But his conflict about the shooting seemed to be more about his reaction to killing a teenager than the fact that a child was killed in a senseless war.

As the Marines came in, a teenager, I'd guess about fifteen, sixteen, appeared on the street and squared up with an AK-47 to fire at them. 

I dropped him. 

A minute or two later, an Iraqi woman came running up, saw him on the ground, and tore off her clothes. She was obviously his mother. 

I'd see the families of the insurgents display their grief, tear off clothes, even rub the blood on themselves. if you loved them, I thought, you should have kept them away from the war.

That is the callousness that seeing death on a daily basis brings about. This is what we create when we send our young people around the world to carry guns and kill people with whom we disagree. War should not be looked at as an admirable thing. War should be looked at as our failure to act in a responsible manner. Sending our youth to face death and the mind-altering effects of war is despicable.

Mr. Kyle sums up his attitude toward the mission as such:

But I didn't risk my life to bring democracy to Iraq. I risked my life for my buddies, to protect my friends and fellow countrymen. I went to war for my country, not Iraq. My country sent me out there so that bullshit wouldn't make its way back to our shores. 

I never once fought for the Iraqis. I could give a flying fuck about them.

Looking at the aftermath of most places the U.S. has gotten involved in since World War II, that seems to be the attitude of the people in charge as well.

See also:

"The pseudo-courage of Chris Kyle," Pro Liberate (2/5/2012)

(Special H/T. to Mark Bennett for the link)

Innocent unless... yeah right

John Terry was, up until earlier this month, the captain of England's national soccer team. He was stripped of the captaincy because he has been charged with "racially abusing" a player from another team back last October.

The head of the F.A. (the body in charge of English soccer), David Bernstein, made the announcement after Mr. Terry's trial had been postponed to July. At the same time, the F.A. said that its move was not implying any guilt on Mr. Terry's part in the alleged incident.

Really?

Now I'm not a fan of England's particular style of soccer. Rather than seeing balls launched downfield in the hopes that a striker can catch up to it, I prefer the speed and agility of the Spanish game. Deft touches, creative attacking and possession-oriented play is much more up my alley that the "Route One" football preferred in England.

But that's all beside the point here. We could talk about the absurdity of making it a crime to utter unfriendly speech. We could talk about how you really cannot legislate thought. We could talk about how it's intellectually dishonest to punish those who speak more harshly than those who just think, or legislate.

I'm more interested, however, in how we treat those accused of committing a crime. We are told that everyone is presumed innocent unless proven guilty. We also know that's a creative fiction. The defendant in a criminal case is rarely, if ever, presumed innocent.

And it doesn't matter how many times you tell a panel of jurors that your client is innocent and that the only presumption the jury is allowed to make is that the defendant is innocent. The judge treats him as if he's guilty - high bonds and stringent bond conditions. And don't forget the very act of calling your client "the defendant" in front of the jury - we certainly can't allow those jurors to appreciate the fact that your client is every bit as human as they are.

The leadership of the F.A. assumes Mr. Terry is guilty. Why else would they strip him of his captaincy. A captaincy that was awarded to him by the players on the team? The choice of captain should not be a political matter. The choice of captain should be based on who is best suited to lead the team on the field. And stripping Mr. Terry of his role as captain of the national team sends the message to the nation that he did something wrong. It sends the message that he's guilty. It tells every potential juror that the people running the national team believe that Mr. Terry did exactly what the government has accused him of.

And that's one way to poison the jury pool.

City to evict occupiers

This is how the world ends
This is how the world ends
This is how the world ends
Not with a bang but with a whimper. 

"The Hollow Men" -- T.S. Eliot

The City of Houston has informed the Occupy Houston protesters that they must vacate downtown's Tranquility Park by dusk this evening.

Mayor Annise Parker claims the occupation has cost the city $287,268.00 in regular salary and $54,917.68 in overtime pay for police officers. Now correct me if I'm wrong, but those officers who were sent to keep an eye on the park for the last five months were already on the payroll and likely would have been given some other assignment but for the protest. And, it was the city's decision to try to intimidate the protesters by keeping police at the park around the clock.

I don't know what the protest has accomplished here in Houston. It made a big splash when the occupation began and again at the port arrests in December. The occupiers raised some awareness of the influence corporate interests wield in the political process but without a coherent message or ideology, the voices became muddled against the background.

The next couple of hours will tell whether the occupation will make one last splash in Houston.

Sticks and stones

 “I have loved things about you and I have hated things about you and there is a lot I don’t understand about you. I will not pray for you.” - Hamza Kashgari

That tweet has 23 year old Saudi journalist Hamza Kashgari looking at the possibility of death for the offense of blasphemy.

Mr. Kashgari posted that message, and two others, on Twitter last weekend, the birthday of the prophet Mohammed. Mr. Kashgari fled Saudi Arabia last Thursday but was arrested at the airport in Kuala Lumpur by Malaysian authorities. He was deported back to Saudi Arabia on Sunday.

This past week marked the 50th anniversary of the embargo against Cuba. Following the Cuban revolution, the Cuban government nationalized the sugar industry and seized foreign-held property on the island. President Kennedy, acting on behalf of American corporate interests, denounced the revolution, instituted the embargo and proclaimed that the US would not rest until Castro's repressive government fell.

Yet, despite its claims to support freedom and democracy around the globe, the US government has continued to sell arms to the repressive, undemocratic regime in Saudi Arabia.  Just last month the Obama administration announced the sale of $30 billion worth of fighter aircraft, ammunition and logistical support to Saudi Arabia.

Our government sends young men to die by the score "to defend democracy" yet we supply arms to one of the most oppressive regimes in the world. We provide the tools of death to a government that will murder its own citizenry for daring to say something disagreeable to the imams.

Of course at the same time we are doing our best to criminalize speech by enacting so-called hate crimes bills that enhance a charge because of the words someone spoke or the attitudes they held.

Now I would, if we were talking about a different act, write about how we all did things when we were in our twenties that we are ashamed of today and that we all acted foolishly and are probably lucky, in some instances, even to be alive today. But I'm not going to blame Mr. Kashgari's "transgressions" on his age. That would give the religious fanatics too much credibility.

The Saudi government seeks to control the thoughts of the Saudi people. Think Orwell and groupthink. I was listening to the BBC show World Have Your Say the other day driving back from the island. One of the guests was a Muslim named Sultan from Toronto. He argued that Mr. Kashgari had committed a criminal offense. Another guest asked him what would be accomplished by punishing Mr. Kashgari for what he wrote. Our friend Sultan then asked what letting Mr. Kashgari off the hook would say to the youth of Saudi Arabia.

His concern was the government's ability to control the thoughts of the Saudi people. He was more interested in preserving order. He couldn't wrap his head around the concept of allowing people to speak and communicate freely.

To answer Sultan, I would say that not pursuing charges against Mr. Kashgari would send the message that the government is more interested in freedom of thought and expression than it is in maintaining rigid control over the Saudi people. It would send the message that the government supports the notion that the people have a right to be left alone. It would indicate that the repressive rulers of that land have respect for the people they govern.

You're right, Sultan. We can't possibly allow that message to get out, can we?

Sparing a life

It's not news that a black man who kills a white person is more likely to get the death penalty than a black man who kills a black person or a white man who kills someone. The courts have long held that such statistical analysis, however, has no place in determining whether the death penalty is meted out.

But now Marcus Reymond Robinson is about to be a test subject.

Mr. Robinson was convicted of the murder of Eric Tornblom while both men were teenagers. Mr. Robinson is black. Mr. Tornblom was white. Mr. Robinson was sentenced to death.

A series of studies over the past 30 years show that race is often a significant factor in who gets the death penalty: that black convicts are more likely to receive the death penalty than white ones, that white victims are more likely to result in a death sentence than black ones.

In 2009, the state of North Carolina passed the Racial Justice Act which allows prisoners sentenced to death to challenge their sentence based not upon the facts of their case but upon statistical analysis showing racial injustice. Should an inmate convince the court that he was sentenced to death based upon either the color of his skin or the race of the victim, he would be eligible to have his sentence commuted to life in prison.

The court may also look at the role race played in jury selection in Mr. Robinson's trial.

The RJA says that racism has more to do with subtle shifts and built-in prejudices that permeate what should be a fair process. 

"People can be motivated by race without even realising it," said defence attorney James Ferguson in his opening arguments. Later, he presented expert witnesses testifying to that same claim.

The RJA may or may not be a step in the right direction. It is no secret that prosecutors generally want fewer blacks on capital juries and that the defense tends to want more. But there is a bigger issue that the RJA doesn't address.

Whenever the death penalty is on the table, prosecutors are allowed to strike for cause any panelist who states he could not sentence a person to death. A juror who supports the death penalty is a juror who is predisposed to convict a defendant. A juror who supports the death penalty is more likely to sentence someone to death if given the chance.

The RJA also sidesteps the very injustice of the death penalty itself. The issue isn't just who is sentenced to death or the color of their skin. The issue is the arbitrariness of the death penalty. Prosecutors are given great latitude to decide who faces the needle and who faces death in prison.

We cannot allow the state to be so capricious in the way in which it decides who lives and who dies. The ability to kill is the most invasive power in the hands of the state and it's a power that should be removed from those hands. The very notion of the death penalty is an affront to the ideal of limited government upon which the Republic was founded.

Mr. Robinson's life shouldn't be spared because he is black. And it shouldn't be spared because the victim was white. It shouldn't be spared because the prosecutor struck black panelists for no other reason than the color of their skin. Mr. Robinson's life should be spared because the death penalty is wrong.

A valuable life lesson

Thurgood Marshall School of Law at Texas Southern University in Houston requires first year students to maintain a 2.0 grade point average to remain in law school. That's a C. It's average. According to the bell curve, about 70% of students should be in that range.

If you can't maintain a 2.0 it doesn't mean you're an idiot or incompetent. It just means you might not be cut out to be a lawyer. And that's not necessarily a bad thing. There are more lawyers out there right now than our society can digest and law schools keep pumping them out left and right.

No one has the right to be an attorney. We are all free to choose what we want to do to earn a living - but we aren't all free to do what we want. Sometimes our lives don't work out the way we planned. That's one of life's lessons. It's a lesson we should learn as children.

My daughters (especially my youngest) hates to be told she can't do something. She'll pout. She might go back to her room, hop on her bed and cry. But, even though she doesn't handle it well now, she's learning a valuable lesson.

A lesson that Jonathan Chan and Karla Ford either didn't learn or chose to ignore. Mr. Chan and Ms. Ford were unceremoniously dumped from Thurgood Marshall because they couldn't maintain a 2.0 GPA in their first year. Both Mr. Chan and Ms. Ford received D's in Contracts II. A D is worth one grade point. The article doesn't tell us what their grades were in any of their other classes, but a random D shouldn't have knocked them below the magical line. All it would have taken was a B in another class to offset that D. But I'm guessing there were a lot more C's and D's than A's and B's on their transcripts.

Rather than take their setback as adults and chalk it up to a learning experience, Mr. Chan and Ms. Ford filed suit in federal court arguing that the D's they received in their contracts course were arbitrary because the professor, Shelley Smith, had to fit the grade distribution into a rigid curve.

"When you believe that you are doing fairly well and you get a grade you feel you don't deserve, it's devastating," said Ford, 27, who has bachelor's and master's degrees in administration of justice from TSU. "There is a lot of embarrassment and shame. It took a toll."

According to the law school, grades in first-year courses are determined by combining a student's in-class performance with the result of a multiple choice exam. Let me digress if I may. A multiple choice exam? Whatever happened to the good ol' blue book and issue spotting? Class participation? How much of a gimme is that?

"Coming from an Asian family, failing is a tough thing to bring up," said Chan, who has a bachelor's degree in administration and marketing from the University of Houston. "The only words I can think of are shameful and disgraceful."

Okay, I understand that Mr. Chan and Ms. Ford are disappointed. They spent some good money to attend school and they probably spent a good deal of time studying (though maybe not enough). I'm sure no one in the admission office told them that there was a possibility they could wash out after their first year. I'm sure no one told them that those high paying BigLaw jobs are scarce and that they were more likely to scratch and claw to eke out a living.

No one wants to hurt anyone's feelings so nobody tells you what should be obvious. Not everyone who enrolls in school walks out the back door with a diploma. Part of the rationale of law school is to weed out folks who aren't willing to put in the hours to make it through school.

No. Life didn't work out the way either Mr. Chan or Ms. Ford planned. But they can either accept it and more on or wallow in self pity and blame someone else for their woes.

When the fit hits the shan

Might Harris County District Attorney Pat Lykos want to change her story about the little internet search she had an investigator run on members of the grand jury looking into the BATmobile fiasco?

Because, if she was so inclined, now would be the time.

It appears her snooping around has attracted the attention of the Texas Rangers and the FBI. Using county resources to conduct background checks on grand jurors? Hmm, doesn't seem like such a good idea now, does it?

I might be going out on a limb here, but I think Ms. Lykos has set a new record for the number of investigations into a district attorney's office in Harris County. With news that the Rangers and FBI agents were interviewing staff members of the DA's Office, Ms. Lykos might want to take a trip in Mr. Peabody's Wayback Machine and change her management style from the day she took over the 6th floor at 1201 Franklin.

Leading by fear might get people to do what you want them to - but it certainly won't engender loyalty. The really juicy stuff always comes from the "disgruntled" staffer.

I would imagine that a lower-level staffer might have less incentive to keep quiet than a higher paid prosecutor. And while grand juries might give Ms. Lykos and her office the benefit of the doubt, I'm not thinking the FBI would take the same attitude.

Things just got a bit more interesting.

Book review: A Universe From Nothing

Yep. We've all heard it before. "Nothing from nothing is nothing."

But, maybe not exactly.

In his latest book, A Universe From Nothing, Lawrence M. Krauss takes a look at the history of the search for the origins of the universe. We go from the grand scale of the universe to our galaxy all the way down to the elemental particles of quantum mechanics to figure out how the universe began and how it will end.

Mr. Krauss was instrumental in researching the shape of the universe. Based on his observations and calculations, the universe is, essentially, flat. While he tells us this is good news because it means the universe won't collapse in on itself someday, he also gives us the bad news. It seems that sometime in the far off future there will be no more stars in the sky because the universe will have expanded to such a point that the nearest galaxies will be too far from the Milky Way for us to see them in the nighttime sky.

He points to an odd symmetry in the notion. For centuries we couldn't look out beyond our solar system. There were points of light in the sky but no one knew how far away they were. No one knew anything about them. Then we developed the tools to explore the heavens. But, at some point trillions of years from now, there will be nothing in the sky for people to see. It will be as if they never existed.

Mr. Krauss also looks at the origins of our universe. He demonstrates how virtual particles can appear and then, as if they were never here, disappear. He shows how the sudden appearance and disappearance of these particles doesn't violate the law of the conservation of matter or energy - because they have no mass and because the energy release by one virtual particle is cancelled out by the anti-energy released by a virtual anti-particle.

He posits that at the beginning of the universe particles were packed densely until the universe expanded rapidly in those first fractions of a second. The theory is based upon the difference between the calculated and observed amounts of so-called dark energy in the universe.

More than just a scientific discourse, the book is a philosophical look at what nothing means. The objects we handle on a daily basis all feel solid to us - but there is more "nothingness" than matter. Most of an atom is empty space. But inside this empty space virtual particles come and go with impunity.

People ask us what we're doing all the time. Quite often the answer we give is "nothing." But even in our doing "nothing," there is plenty going on. So it is with the world on a subatomic level.

Most interesting is his retort to the creationists. Those who don't believe that the universe could have formed from nothing point to the hand of God as the prime mover of the universe's creation. To them, Mr. Krauss asks where did God come from?

See also:

Transcript of Lawrence Krauss interview from "Talk of the Nation: Science Friday," NPR (Jan. 13, 2012)

Spamming for dollars

Occasionally I receive an e-mail or a comment from some spammer wanting to write a guest post for this blog. Now there's not much chance of that ever happening. Though I will be more than happy to run Mike Anderson's answers to the questions I posed him last month. I get the feeling that won't be happening, either.

Last week, however, I received an e-mail from an attorney in San Antonio who was willing to pay $15 if I would allow him to write a guest post that linked back to his website. Or I could post a small banner ad for the princely sum of $40 a year. My curiosity was stoked.

Hi,
 I'd like to inquire about doing a sponsored blog post - about 150-300 words that talks a little bit about DUI law and links back to our site http://www.michaelpackar dlaw(dot)com.We provide DUII, criminal defense, and immigration Attorney Services and thought we might be a good fit for your readers/visitors on http://kennedy-law.blogspot.com 
Here's a list of some blog post titles we've done in the past:
- San Antonio Attorneys Can Help Your Criminal Case
- How a DUI Attorney Can Save Your Life
- Reasons Why You Need A Immigration Attorney
 Our budget is around $15 for the post. Is this something you'd be open to?
Also we might be interested in a small banner ad if the price is right.
Our budget is $40/year - something like this:
http://postim age(dot)org/image/ltpbrr70t/

Let me know if you'd be open to either or both of these.
 Also if you have some other sites just send them over and we might be interested in doing a sponsored post on there as well!
 
Regards,
 Phil
MichaelPackar dLaw(dot)com

But, interestingly enough, when I typed those article names in Google, I got nada. That's right, nothing. Come on, Phil, how could I possibly agree to post one of your articles if I can't even find them on the internet?

So then I went to the website - and scrolled down to the bottom. And there I found it -- LexisNexis. Now it was off to LN's marketing site - Lawyers.com for a little more information. And there I found an article about DWI and prescription drugs. Unfortunately the article was just a quick summation of the law and a call to action. But that was the only posting and it was from back in September of 2011.

Over at Mr. Packard's firm, the lawyers are "devoted" to your case - and they are dedicated to providing compassionate legal services.

There was also this nugget, courtesy of LN:

We at The Packard Law Firm are passionate about getting favorable results for our clients. We prepare and deliver persuasive arguments on their behalf and strong rebuttals to points raised by the opposition. We know the stakes are high for you, and we make every effort to deliver your best case to the judge and jury.

And, you see, that's what makes them different. They are willing to pay LexisNexis a good chunk of change to create their website and fill it with the literary equivalent of drool. I don't know who Phil is - I'm not sure if he's an employee of the firm or a shill for LN, but he's got a hell of a lot of nerve. Why on earth would I agree to let someone write a guest post for my blog who doesn't even have a blog of their own? Why would I agree to let someone do it who can't show me one decent example of what he can write?

I would like to think that Mr. Packard is a good attorney who will do what it takes to ensure his clients get the representation they deserve. I would like to hope that Mr. Packard was sold a bill of goods by the local LN rep. I don't know if he knows what his marketers are doing to promote his "brand," but I hope he realizes that he's responsible for everything they do in his name - whether he knows about it or not.

A rose by any other name...

Remember when you were in school and asked the teacher what a particular word meant? She told you to find it in the dictionary. Not the online dictionary, mind you. I'm talking about the thick book that you had to thumb through page after page to find the word.

Back in 2010, Scott Kirsch was arrested for and convicted of his second DWI. It turns out that a woman was driving home from work one night when she saw Mr. Kirsch straddling his motorcycle in the middle of the road at an intersection. After she watched him fall to the ground, she called the police who came out to investigate.

When the police arrived, Mr. Kirsch was trying to kick-start his bike -- without success. According to the arresting officer, Mr. Kirsch had poor balance and difficulty following directions. Mr. Kirsch was then arrested and charged with driving while intoxicated.

The question at trial was, of course, whether Mr. Kirsch was operating a motor vehicle while intoxicated. The prosecutor argued that he was exercising control over the bike when police arrived. Mr. Kirsch argued that since the bike wasn't running, he was operating it at the time.

The trial court issued a jury charge that included a definition for "operating" over Mr. Kirsch's objection. The definition was taken out of Denton v. State, 911 SW2d 388 (Tex. 1995), a case in which the Court of Criminal Appeals had defined operating in the context of determining whether the evidence was sufficient to uphold a conviction. The Court of Appeals found no error and Mr. Kirsch appealed to the Court of Criminal Appeals.

In Kirsch v. State, No. PD-0245-11 (Tex. 2011), the Court of Criminal Appeals held that by providing a definition for operating, the trial court was making an improper comment upon the weight of the evidence. The Court held that it was proper for a jury charge to include definitions taken from the Texas Penal Code but, where the code offered no definition, it was up to the jury to decide just what the word meant.

Somethings are just best left unsaid.