There I stood at the counter on the 4th floor of the Montgomery County Courthouse Annex waiting to speak to a probate clerk about some paperwork I needed to file. Then I heard the noise.
It was coming from behind a door to my right. It was loud. It sounded like whatever was making the noise wanted to come through the wall. I probably should have been scared - but I wasn't. Maybe it was that false bravado from watching too many episodes of Man v. Wild and Survivorman.
I asked the clerk what the noise was. She told me, quite matter-of-factly, that it was the shredder and that someone was in there shredding papers. I asked her if anyone had checked in to make sure the shredder wasn't now the shreddee. I had visions of the clerk feeding paper into the machine and it grabbing her and shoving her through the blades.
I swear I could hear it shouting "Feed me!" from that closet. The clerk asked me if I wanted to take a look - but that false bravado had been replaced by my survival instinct and I declined. I took my file-stamped copy of my pleading and left the clerk's office without once looking back.
Saturday, March 31, 2012
Friday, March 30, 2012
Getting carried away by the mob
I think we can all agree that the death of Trayvon Martin was a tragedy that could have been prevented. We know that George Zimmerman shot and killed Mr. Martin back on February 26 in a gated community in Sanford, Florida.
But beyond that we don't know much at all. There are only two people who know what happened that night and, unfortunately, one of them is dead. Did Mr. Zimmerman act in self-defense? Maybe he did and maybe he didn't. Did Mr. Martin play any role in escalating the situation? Maybe he did and maybe he didn't. Was Mr. Martin shot because he was a black teen in a predominantly white neighborhood? Maybe he was and maybe he wasn't. Did the police give Mr. Zimmerman a pass because Mr. Martin was black? Maybe they did and maybe they didn't. Did the district attorney's office refuse to accept charges against Mr. Zimmerman? Maybe, maybe not.
Rallies have been held across the country demanding that the police arrest Mr. Zimmerman and charge him with manslaughter. On a local defense attorney listserv plenty of folks have lent their voices to the shouts of the mob.
The mob doesn't act reasonably. The mob doesn't think logically. The mob feeds on its own rage.
Now it's time to step back, take a deep breath and clear our minds.
I don't know everything that happened on the night of February 26. I know that Mr. Zimmerman called the police to report a suspicious person and that the police told Mr. Zimmerman not to follow him.
I deal with folks who get arrested all the time. Getting arrested is not cheap. You've got to arrange bail. You've got to hire an attorney. If the police towed your car, you've got to pay the storage fee to get it back. You've also got to deal with missed time from work.
Sure, that pales in comparison with being dead.
The police came out that night and investigated the shooting. The case was referred to the district attorney to determine whether charges would be filed. Mr. Zimmerman was then allowed to leave the scene without being arrested.
In the next couple of weeks the case will be presented to a grand jury. The grand jury system was created to protect the privacy of people accused of breaking the law. The grand jury meets in secret, considers the evidence presented and then decides whether or not to indict the good citizen. If they chose not to issue an indictment, the citizen accused was free to go on with his life without anyone knowing what happened.
So here's an idea. Let's all just sit and let a grand jury consider the evidence the district attorney presents. Let the grand jurors deliberate and determine whether they think there is enough evidence to proceed to trial. If they indict Mr. Zimmerman, then the police can go and arrest him and allow him to have his day in court.
Whether we like it or not, Mr. Zimmerman is innocent unless proven otherwise. That presumption protects the unpopular as much as it protects the popular. In fact, our system was designed to protect the unpopular.
Let's not get carried away by the mob.
But beyond that we don't know much at all. There are only two people who know what happened that night and, unfortunately, one of them is dead. Did Mr. Zimmerman act in self-defense? Maybe he did and maybe he didn't. Did Mr. Martin play any role in escalating the situation? Maybe he did and maybe he didn't. Was Mr. Martin shot because he was a black teen in a predominantly white neighborhood? Maybe he was and maybe he wasn't. Did the police give Mr. Zimmerman a pass because Mr. Martin was black? Maybe they did and maybe they didn't. Did the district attorney's office refuse to accept charges against Mr. Zimmerman? Maybe, maybe not.
Rallies have been held across the country demanding that the police arrest Mr. Zimmerman and charge him with manslaughter. On a local defense attorney listserv plenty of folks have lent their voices to the shouts of the mob.
The mob doesn't act reasonably. The mob doesn't think logically. The mob feeds on its own rage.
Now it's time to step back, take a deep breath and clear our minds.
I don't know everything that happened on the night of February 26. I know that Mr. Zimmerman called the police to report a suspicious person and that the police told Mr. Zimmerman not to follow him.
I deal with folks who get arrested all the time. Getting arrested is not cheap. You've got to arrange bail. You've got to hire an attorney. If the police towed your car, you've got to pay the storage fee to get it back. You've also got to deal with missed time from work.
Sure, that pales in comparison with being dead.
The police came out that night and investigated the shooting. The case was referred to the district attorney to determine whether charges would be filed. Mr. Zimmerman was then allowed to leave the scene without being arrested.
In the next couple of weeks the case will be presented to a grand jury. The grand jury system was created to protect the privacy of people accused of breaking the law. The grand jury meets in secret, considers the evidence presented and then decides whether or not to indict the good citizen. If they chose not to issue an indictment, the citizen accused was free to go on with his life without anyone knowing what happened.
So here's an idea. Let's all just sit and let a grand jury consider the evidence the district attorney presents. Let the grand jurors deliberate and determine whether they think there is enough evidence to proceed to trial. If they indict Mr. Zimmerman, then the police can go and arrest him and allow him to have his day in court.
Whether we like it or not, Mr. Zimmerman is innocent unless proven otherwise. That presumption protects the unpopular as much as it protects the popular. In fact, our system was designed to protect the unpopular.
Let's not get carried away by the mob.
Book review: The End of Money
Well, not necessarily the end of money as a concept. What David Wolman is pushing for is the end of physical money. His new book The End of Money takes us on a voyage from the creation of money through its evolution to digital dollars on such sites as PayPal and Google Wallet.
Mr. Wolman's thesis is that the need for a physical representation of money has long since passed. Money, after all, isn't a thing - it's a relationship. Those green pieces of paper in your pocket or in your wallet are nothing more than green pieces of paper after all. The only value to that paper is the belief we all share that they are exchangeable for a good or service. The dollar isn't worth anything in and of itself - it's only worth what one person is willing to exchange for it. And that relationship has nothing to do with paper currency and coins.
Mr. Wolman puts forth a few ideas regarding the detrimental effects of physical currency - but before you take this to mean that he wants to go back to the gold standard, forget it. As Mr. Wolman points out, the only reason that gold became the de facto currency was its relative scarcity and the fact that it didn't rot.
According to Mr. Wolman, physical currency imposes a tax on the poor, both in this country and around the world. The poor around the world will hoard currency either because there are no banks or because they don't trust the banks. This puts their savings in danger if there is a flood or fire or if someone breaks into their home. He tells us about Sonu Kumar who is a merchant in India. Whenever he wanted to give his parents money he would have to travel two days each direction and leave someone to keep an eye on his stash at home. Highly inefficient.
Now, thanks to a smart phone app, he can go to a pharmacy, give the pharmacist the money and, with a few taps on the keyboard, the money is deposited into his bank account. He no longer has to carry cash around and his parents can access the money with their smart phones.
And let's not forget the patrons of the biggest loan sharks around - the cash checkers and payday loan operators. Because these folks operate on a cash basis they are forced to pay usurious rates to convert their paychecks into currency. With digital money, the middlemen would be cut out of the equation.
Mr. Wolman also regales us with the tales of counterfeiters - including the massive North Korean operation that nets them enough "hard currency" to purchase weaponry abroad. As an aside, I recently tried a case down in Galveston in which my client was accused of counterfeiting $100 bills by bleaching $5 bills and running them through a printer. The Secret Service agent involved hinted that North Korea was seriously involved in forgery but refused to go into detail because, you know, it was a state secret or related to national security or because no one upstairs told him anymore than that.
Governments spend an incredible amount of money trying to prevent counterfeiters from using yesterday's tools of the trade. They spend their time (and our money) installing so many security features that no one can remember them all - everything from red and blue fibers to security threads to micro-printing to big portraits to funky fonts.
But one argument that he makes is particularly disturbing. He spends a good deal of time pointing out how cash allows folks to remain anonymous and that it prevents governments from tracking would-be terrorists. Well, excuse me, Mr. Wolman, there is no good reason that the government should have a digital trail of where our money goes. It's bad enough they can track my movements (and my wife's) through our toll tags and that I accept payment through PayPal and SquareUp.
No matter how dangerous a world it is out there, we do have a right to be left alone by the government. And for that reason alone, physical currency is a good thing.
There is one more little detail that concerns me regarding doing away with currency - and that is the inherent flaws with technology. For anyone who has lived through a damaging storm and its effect on electrical grids, telephone lines and cell phone reception, the notion that all of my money may be inaccessible because the technology can't function is problematic. And what of the people that can't afford smart phones or a calling plan?
The End of Money will make you think about money in a different way. Whether you will yearn for a purely digital economy is another issue altogether.
Mr. Wolman puts forth a few ideas regarding the detrimental effects of physical currency - but before you take this to mean that he wants to go back to the gold standard, forget it. As Mr. Wolman points out, the only reason that gold became the de facto currency was its relative scarcity and the fact that it didn't rot.
According to Mr. Wolman, physical currency imposes a tax on the poor, both in this country and around the world. The poor around the world will hoard currency either because there are no banks or because they don't trust the banks. This puts their savings in danger if there is a flood or fire or if someone breaks into their home. He tells us about Sonu Kumar who is a merchant in India. Whenever he wanted to give his parents money he would have to travel two days each direction and leave someone to keep an eye on his stash at home. Highly inefficient.
Now, thanks to a smart phone app, he can go to a pharmacy, give the pharmacist the money and, with a few taps on the keyboard, the money is deposited into his bank account. He no longer has to carry cash around and his parents can access the money with their smart phones.
And let's not forget the patrons of the biggest loan sharks around - the cash checkers and payday loan operators. Because these folks operate on a cash basis they are forced to pay usurious rates to convert their paychecks into currency. With digital money, the middlemen would be cut out of the equation.
Mr. Wolman also regales us with the tales of counterfeiters - including the massive North Korean operation that nets them enough "hard currency" to purchase weaponry abroad. As an aside, I recently tried a case down in Galveston in which my client was accused of counterfeiting $100 bills by bleaching $5 bills and running them through a printer. The Secret Service agent involved hinted that North Korea was seriously involved in forgery but refused to go into detail because, you know, it was a state secret or related to national security or because no one upstairs told him anymore than that.
Governments spend an incredible amount of money trying to prevent counterfeiters from using yesterday's tools of the trade. They spend their time (and our money) installing so many security features that no one can remember them all - everything from red and blue fibers to security threads to micro-printing to big portraits to funky fonts.
But one argument that he makes is particularly disturbing. He spends a good deal of time pointing out how cash allows folks to remain anonymous and that it prevents governments from tracking would-be terrorists. Well, excuse me, Mr. Wolman, there is no good reason that the government should have a digital trail of where our money goes. It's bad enough they can track my movements (and my wife's) through our toll tags and that I accept payment through PayPal and SquareUp.
No matter how dangerous a world it is out there, we do have a right to be left alone by the government. And for that reason alone, physical currency is a good thing.
There is one more little detail that concerns me regarding doing away with currency - and that is the inherent flaws with technology. For anyone who has lived through a damaging storm and its effect on electrical grids, telephone lines and cell phone reception, the notion that all of my money may be inaccessible because the technology can't function is problematic. And what of the people that can't afford smart phones or a calling plan?
The End of Money will make you think about money in a different way. Whether you will yearn for a purely digital economy is another issue altogether.
Thursday, March 29, 2012
Update: Texas kills again (and again and again)
Rick Perry can put another notch in his belt and his wingnut supporters can whoop even louder the next time he brags about how many people he's killed.
Jesse Hernandez was convicted of a heinous crime. He killed a baby. His actions ruined a family. There is no excuse. There is no way to get around the fact of what he did.
But it doesn't mean the State of Texas was justified in committing another murder.
It's easy to stand up to challenge the death penalty when the man strapped up to the gurney is innocent - or if there's enough doubt to raise serious questions about the proceedings that got him to that point. It's much harder to raise your voice against the death penalty when the man strapped to the gurney committed a horrible crime.
I would hope that at some point in the near future we, as a society, can get over our bloodlust for Old Testament revenge. What separates us from the other animals on this planet is our ability to think and reason. But when it comes to state-sponsored murder, we retreat back to our caves and our fires.
The murder of Mr. Hernandez did not magically bring anyone back to life. His death did not fill the hole that child's mother will live with the rest of her days. It didn't erase the memory of that tragic event.
It was just another killing. It was one killing too many.
Jesse Hernandez was convicted of a heinous crime. He killed a baby. His actions ruined a family. There is no excuse. There is no way to get around the fact of what he did.
But it doesn't mean the State of Texas was justified in committing another murder.
It's easy to stand up to challenge the death penalty when the man strapped up to the gurney is innocent - or if there's enough doubt to raise serious questions about the proceedings that got him to that point. It's much harder to raise your voice against the death penalty when the man strapped to the gurney committed a horrible crime.
I would hope that at some point in the near future we, as a society, can get over our bloodlust for Old Testament revenge. What separates us from the other animals on this planet is our ability to think and reason. But when it comes to state-sponsored murder, we retreat back to our caves and our fires.
The murder of Mr. Hernandez did not magically bring anyone back to life. His death did not fill the hole that child's mother will live with the rest of her days. It didn't erase the memory of that tragic event.
It was just another killing. It was one killing too many.
We'd never sacrifice freedom for security, would we?
Was Mohammed Merah part of a global al-Qaeda conspiracy to subvert the west or was he a nut job with a firearm? Since he was shot dead by French police last week in Toulouse we will never know the real answer to that question.
However, being that there's an election brewing in France, French President Nicolas Sarkozy has wasted no time proclaiming that Mr. Merah was but the first wave of Islamic terrorists coming to bring down the Republic. And, as is par for the course when confronting such a dangerous threat, the first thing the state must do is clamp down on the civil liberties and freedoms of the citizenry. I mean, let's be real, we mustn't allow the public to say and do things that might be disagreeable to the "right-thinking" citizens of France.
Mr. Sarkozy has proposed that the government make it a crime for an individual to consult a website that promotes terrorism or racism or hatred. Such restrictions are nothing new in France. It is against the law in France to promote racial hatred or to deny the Holocaust (and don't forget speech denying that the Turks committed genocide against the Armenians).
Who defines what promoting terrorism is? It may be trite, but one man's terrorist is another man's freedom fighter. Must one consult with the French Foreign Ministry before surfing the web to make certain you aren't clicking through to a website promoting rebellion against some French-supported government on the other side of the world?
What would this restriction mean for students and scholars? Will the French police compile a list of websites that are off-limits to the citizenry? And how would anyone know who visited the website? You might be able to narrow it down to a computer or a small wireless network, but without a confession how would you prove that Jacques clicked through to the al-Qaeda website or took a look at the al-Qaeda Twitter feed (what, you mean the SEO folks haven't gotten through to Osama bin Laden's successor about getting them on the first page)?
Mr. Sarkozy would also make it illegal for people to travel abroad for "terrorist indoctrination." And just what the hell does that even mean? The only difference between a peaceful protester and a terrorist, after all, is someone with a little more firepower than a rock. Again, would Mr. Sarkozy only throw those folks in jail who didn't consult with the government about whom it's alright to protest against? And how would that work for French soldiers training under a foreign flag in another country battling an internal rebellion (or whatever the hell is going on in Afghanistan)?
He also proposes banning "militant Muslim preachers" from entering the country. I guess that means it's okay for militant Christian and Jewish religious leaders to spout their right-wing theories across the French countryside. And what makes a preacher "militant?" Would that be someone who is uncompromising, who raises his voice or someone whose view of the world differs from the government's "official" version?
Mr. Sarkozy, I don't know how to break this to you, but you just can't stop the flow of information anymore. The internet, satellite television and radio and cell phones have pretty much made that the modern-day equivalent of tilting at windmills. I get the fact you're losing at the polls and that you need something, anything, to get people's minds off of how little you've accomplished. Sowing the seeds of hate and fear is a time-honored political tactic. Hell, George W. Bush practically wrote the 4th Amendment out of existence in the post-9/11 hysteria.
However, being that there's an election brewing in France, French President Nicolas Sarkozy has wasted no time proclaiming that Mr. Merah was but the first wave of Islamic terrorists coming to bring down the Republic. And, as is par for the course when confronting such a dangerous threat, the first thing the state must do is clamp down on the civil liberties and freedoms of the citizenry. I mean, let's be real, we mustn't allow the public to say and do things that might be disagreeable to the "right-thinking" citizens of France.
Mr. Sarkozy has proposed that the government make it a crime for an individual to consult a website that promotes terrorism or racism or hatred. Such restrictions are nothing new in France. It is against the law in France to promote racial hatred or to deny the Holocaust (and don't forget speech denying that the Turks committed genocide against the Armenians).
Who defines what promoting terrorism is? It may be trite, but one man's terrorist is another man's freedom fighter. Must one consult with the French Foreign Ministry before surfing the web to make certain you aren't clicking through to a website promoting rebellion against some French-supported government on the other side of the world?
What would this restriction mean for students and scholars? Will the French police compile a list of websites that are off-limits to the citizenry? And how would anyone know who visited the website? You might be able to narrow it down to a computer or a small wireless network, but without a confession how would you prove that Jacques clicked through to the al-Qaeda website or took a look at the al-Qaeda Twitter feed (what, you mean the SEO folks haven't gotten through to Osama bin Laden's successor about getting them on the first page)?
Mr. Sarkozy would also make it illegal for people to travel abroad for "terrorist indoctrination." And just what the hell does that even mean? The only difference between a peaceful protester and a terrorist, after all, is someone with a little more firepower than a rock. Again, would Mr. Sarkozy only throw those folks in jail who didn't consult with the government about whom it's alright to protest against? And how would that work for French soldiers training under a foreign flag in another country battling an internal rebellion (or whatever the hell is going on in Afghanistan)?
He also proposes banning "militant Muslim preachers" from entering the country. I guess that means it's okay for militant Christian and Jewish religious leaders to spout their right-wing theories across the French countryside. And what makes a preacher "militant?" Would that be someone who is uncompromising, who raises his voice or someone whose view of the world differs from the government's "official" version?
Mr. Sarkozy, I don't know how to break this to you, but you just can't stop the flow of information anymore. The internet, satellite television and radio and cell phones have pretty much made that the modern-day equivalent of tilting at windmills. I get the fact you're losing at the polls and that you need something, anything, to get people's minds off of how little you've accomplished. Sowing the seeds of hate and fear is a time-honored political tactic. Hell, George W. Bush practically wrote the 4th Amendment out of existence in the post-9/11 hysteria.
Wednesday, March 28, 2012
Farewell to an old friend
Back in July of 1995 I found a car on a Honda lot in Conroe with only 15 miles on the odometer. I wanted a 5-speed with a good engine and wider tires. The Civic EX had a 1.6 liter V-TEC engine, wide tires and a sunroof. At the time the sunroof was a nice little gadget but nothing that I really cared about.
Now, almost 16 years later my little Honda has over 277,000 miles on it. The sunroof motor went out a few years ago - but, after a bizarre incident on the Gulf Freeway, I picked up a used unit from a junkyard and was able to enjoy driving with the roof open once again.
For the last year or so I've had problems with the engine getting too hot. My mechanic couldn't figure it out so I tinkered with it and kept adding water along the way. About a month ago the head gasket split and I had to park the car. Unfortunately an undrivable 16-year-old car doesn't have a lot of trade-in value. So I decided to donate the car to the local public television channel (KUHT).
Today I watched as my old car was towed away. Yes, it's just a bunch of metal, plastic and rubber. But, damn, was the bucket of parts fun over the years.
So long, old friend.
Plea = Pressure > Urge to fight
Yesterday a client of mine got a lesson in how the criminal (in)justice system in Harris County operates. As a condition of his bond, my client is required to submit to a random urinalysis as well as a mandatory urinalysis after court. He must also pay a monthly fee. Interestingly enough (but not at all surprising), even though he is, in essence, on probation, he will receive no credit for it should he be convicted or plead guilty.
What's more troubling for my client is the time off from work he's having to take in order to fight his case. He is in fear of losing his job if he has to continue to take time off to attend court. A short reset didn't help matters any.
He is under pressure to resolve this case but the only way it's going to get resolved in the near future is if he enters a plea.
I told him that this is how things work in Harris County. The judges require meaningless resets as a way of pressuring defendants to plead guilty so they don't lose their jobs. The idea is that at some point the pressures from work will overcome the urge to fight the case.
This is one of the reasons such a high percentage of cases in Harris County result in plea bargain agreements. Rarely is it about whether a person did what he was accused of doing, more often it's about trying to get on with one's life and keep one's job.
For those unfortunate enough not to be able to post bond, it's all about trying to get out of jail as quickly as possible. With judges refusing to grant personal bonds, defendants in custody will leap at an offer of time served - regardless of the consequences of that plea. And too many attorneys are more than willing to participate in this charade of justice in order to remain on the gravy train.
Once a defendant has been arraigned or indicted, there is no need for him to be present in the courtroom unless he is entering a plea or going to trial. Continuing to require defendants, who, by the way, are presumed innocent, to appear in court for needless settings only serves to make a mockery of our legal system.
What's more troubling for my client is the time off from work he's having to take in order to fight his case. He is in fear of losing his job if he has to continue to take time off to attend court. A short reset didn't help matters any.
He is under pressure to resolve this case but the only way it's going to get resolved in the near future is if he enters a plea.
I told him that this is how things work in Harris County. The judges require meaningless resets as a way of pressuring defendants to plead guilty so they don't lose their jobs. The idea is that at some point the pressures from work will overcome the urge to fight the case.
This is one of the reasons such a high percentage of cases in Harris County result in plea bargain agreements. Rarely is it about whether a person did what he was accused of doing, more often it's about trying to get on with one's life and keep one's job.
For those unfortunate enough not to be able to post bond, it's all about trying to get out of jail as quickly as possible. With judges refusing to grant personal bonds, defendants in custody will leap at an offer of time served - regardless of the consequences of that plea. And too many attorneys are more than willing to participate in this charade of justice in order to remain on the gravy train.
Once a defendant has been arraigned or indicted, there is no need for him to be present in the courtroom unless he is entering a plea or going to trial. Continuing to require defendants, who, by the way, are presumed innocent, to appear in court for needless settings only serves to make a mockery of our legal system.
Working in a data mine
So you think there's such a thing as a reasonable expectation of privacy anymore? If you do, James Bamford has some news for you.
In the current issue of Wired magazine, Mr. Bamford explores the new data mining facility being constructed by the NSA in a Utah desert and the world's fastest supercomputer housed in the Smokey Mountains in Tennessee. He also paints a haunting picture of just how much information our own government is collecting on its own citizens.
The facility being built in the Utah desert will be five times the size of the US Capitol. Its warehouses will store an ungodly amount of raw data that its supercomputers will sift through for patterns that will allow the NSA to decrypt encrypted messages and attempt to predict what the supposed terrorists will be up to next.
Of course the NSA's track record has been pretty abysmal. Despite their budget and high tech goodies, the NSA failed to predict either of the attacks on the World Trade Center, the attack on the USS Cole or the bombings of embassies in East Africa. But, what the hell, let's give them a few more billion dollars and lift the ban on domestic spying and see what they can do.
The data mining raises questions about the fate of the Fourth Amendment as such an operation will render the reasonable expectation of privacy test all but moot. Los federales will be recording your phone calls, text messages and e-mails. The only safe avenues of communication will be face-to-face and by the old fashioned letter. If you know your communications are being captured, you can't say with a straight face that your expectation of privacy was reasonable.
More disturbing is the effect on lawyer-client confidentiality. Your phone calls with your client will be sitting in a database somewhere in Utah along with your email correspondence. And don't forget that supposedly secure remote teleconferencing you've been using. The all-knowing eye in the sky knows all.
You wanted the government to keep you safe from any potential danger anywhere in the world, no matter how remote or unlikely. Now you've got it. You traded your freedom for security. How does it feel? Somewhere along the line we've forgotten that the government is supposed to work for us. Instead, we have a government that's spying on us.
As Billy Joel once sang "This is what you wanted ain't you proud? / 'Cause everybody loves you now."
In the current issue of Wired magazine, Mr. Bamford explores the new data mining facility being constructed by the NSA in a Utah desert and the world's fastest supercomputer housed in the Smokey Mountains in Tennessee. He also paints a haunting picture of just how much information our own government is collecting on its own citizens.
But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.”In its never-ending quest to keep us safe from some unnamed enemy, the government has instituted a program by which the NSA is intercepting every telephone call, email, internet search, e-purchase and toll tag receipt in an attempt to data map the entire United States.
The facility being built in the Utah desert will be five times the size of the US Capitol. Its warehouses will store an ungodly amount of raw data that its supercomputers will sift through for patterns that will allow the NSA to decrypt encrypted messages and attempt to predict what the supposed terrorists will be up to next.
Of course the NSA's track record has been pretty abysmal. Despite their budget and high tech goodies, the NSA failed to predict either of the attacks on the World Trade Center, the attack on the USS Cole or the bombings of embassies in East Africa. But, what the hell, let's give them a few more billion dollars and lift the ban on domestic spying and see what they can do.
Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.Through agreements with AT&T and Verizon, the NSA collects data at switches across the United States. A special thanks should be due to all the iPhone and iPad users for their contribution to domestic spying.
The data mining raises questions about the fate of the Fourth Amendment as such an operation will render the reasonable expectation of privacy test all but moot. Los federales will be recording your phone calls, text messages and e-mails. The only safe avenues of communication will be face-to-face and by the old fashioned letter. If you know your communications are being captured, you can't say with a straight face that your expectation of privacy was reasonable.
More disturbing is the effect on lawyer-client confidentiality. Your phone calls with your client will be sitting in a database somewhere in Utah along with your email correspondence. And don't forget that supposedly secure remote teleconferencing you've been using. The all-knowing eye in the sky knows all.
You wanted the government to keep you safe from any potential danger anywhere in the world, no matter how remote or unlikely. Now you've got it. You traded your freedom for security. How does it feel? Somewhere along the line we've forgotten that the government is supposed to work for us. Instead, we have a government that's spying on us.
As Billy Joel once sang "This is what you wanted ain't you proud? / 'Cause everybody loves you now."
Tuesday, March 27, 2012
Execution Watch 3/28/2012
The state that carries out more executions than any other state is ready to kill again...
ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:
JESSE HERNANDEZ. Mr. Hernandez was convicted in the 2001 beating death of a 10-month-old boy he was babysitting in West Dallas. Police linked Hernandez to the slaying through traces of his DNA mixed with the boy's blood on a pillowcase and an article of clothing.
For more information on Mr. Hernandez, click here.
RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ..."Wednesday, March 28, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
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The economics of choice
Today the U.S. Supreme Court will hear the second day of oral arguments regarding the constitutionality of the individual mandate provision of President Obama's health care reform legislation. The question being posed is whether the government can require a citizen to purchase health care coverage under penalty of a financial penalty.
Now even those who don't like the legislation don't want folks with pre-existing conditions to be discriminated against by the for-profit health care insurers.
But here's the rub (and I have yet to hear Mr. Romney or Mr. Santorum explain just how they plan to get around this little bump in the road). If you forbid the insurers from denying coverage based on pre-existing conditions without everyone purchasing coverage you will end up with what's called negative selection. In other words, there will be an influx of new enrollees suffering from pre-existing conditions. Without an proportional increase in the number of healthy folks, the cost of coverage for everyone will increase because there are fewer healthy bodies in the pool.
The only way to prevent negative selection is to create a mechanism by which more people who aren't suffering from pre-existing conditions enter the pool of insureds. And the only way to do this is to mandate that everyone purchase coverage either through their employer or privately.
This is the problem Congress created by continuing to rely on employer-based health insurance issued by for-profit companies. A for-profit insurer will always be intent on reducing the amount per premium dollar being spent on actual health care. The lower that percentage, the higher the return for management and for investors. But, while Mr. Santorum and Mr. Romney will harp on the thought of a government bureaucrat making your health care decisions for you, you won't hear a peep from them about profit-maximizing corporate managers doing that very thing.
But is the individual mandate constitutional? Well, let's think about that. Our state government requires that anyone driving a car carry a minimum level of liability insurance. The state requires that we wear a seatbelt if we're riding in a car. The state requires that our children ride in car seats until a certain age. And let's not forget that the federal government forced states to raise the drinking age and lower the speed limit (back in the 70's) under penalty of losing highway construction funds.
I have no idea how the Supremes are going to rule but, should the Court strike down the individual mandate, the entire health care plan goes down in flames. And, if that happens, the only beneficiaries are the insurance companies.
Yes, it's going to cost some people more money to purchase health care coverage. But we all end up footing the bill when an uninsured person receives medical treatment - either through higher taxes to fund public hospitals or through increased fees at private hospitals to cover the charity care.
Now even those who don't like the legislation don't want folks with pre-existing conditions to be discriminated against by the for-profit health care insurers.
But here's the rub (and I have yet to hear Mr. Romney or Mr. Santorum explain just how they plan to get around this little bump in the road). If you forbid the insurers from denying coverage based on pre-existing conditions without everyone purchasing coverage you will end up with what's called negative selection. In other words, there will be an influx of new enrollees suffering from pre-existing conditions. Without an proportional increase in the number of healthy folks, the cost of coverage for everyone will increase because there are fewer healthy bodies in the pool.
The only way to prevent negative selection is to create a mechanism by which more people who aren't suffering from pre-existing conditions enter the pool of insureds. And the only way to do this is to mandate that everyone purchase coverage either through their employer or privately.
This is the problem Congress created by continuing to rely on employer-based health insurance issued by for-profit companies. A for-profit insurer will always be intent on reducing the amount per premium dollar being spent on actual health care. The lower that percentage, the higher the return for management and for investors. But, while Mr. Santorum and Mr. Romney will harp on the thought of a government bureaucrat making your health care decisions for you, you won't hear a peep from them about profit-maximizing corporate managers doing that very thing.
But is the individual mandate constitutional? Well, let's think about that. Our state government requires that anyone driving a car carry a minimum level of liability insurance. The state requires that we wear a seatbelt if we're riding in a car. The state requires that our children ride in car seats until a certain age. And let's not forget that the federal government forced states to raise the drinking age and lower the speed limit (back in the 70's) under penalty of losing highway construction funds.
I have no idea how the Supremes are going to rule but, should the Court strike down the individual mandate, the entire health care plan goes down in flames. And, if that happens, the only beneficiaries are the insurance companies.
Yes, it's going to cost some people more money to purchase health care coverage. But we all end up footing the bill when an uninsured person receives medical treatment - either through higher taxes to fund public hospitals or through increased fees at private hospitals to cover the charity care.
Monday, March 26, 2012
This is a paid political announcement...
Murray, Murray, Murray.
Sometimes it appears that my colleague, and friend, Murray Newman, still wishes he were at 1201 Franklin Street infringing upon the liberty of our fellow citizens. Here of late Murray seems to be on a crusade to send Mike Anderson to the 6th floor of the Criminal (In)justice Center and to help smooth the path for more prosecutors to transfer to the judicial branch of the Harris County DA's Office (See here, here and here.)
While there is plenty to castigate Pat Lykos about, Murray is using Ms. Lykos' decision not to prosecute so-called trace cases as his ammunition. And that, quite frankly, has me just a little bit befuddled.
Why on earth would a criminal defense attorney want the state to prosecute more trace cases? Why would a criminal defense lawyer want to see more people arrested, booked into jail and forced to post bond when there isn't enough dope to retest? Why would a defense attorney want to make it easier for the state (and the judges) to line up defendants "on the chain" for mass pleas that make a mockery out of our legal system?
I get it, Murray, you really don't like Ms. Lykos. But for the election of 2008, you might still be working as an assistant district attorney. Ms. Lykos came into office and purged 1201 Franklin of as many supporters of Kelly Siegler as she could. Murray was one of the prosecutors swept up in that.
I'm sure Murray would like to see some of his friends sitting on the bench - not because there might be some undue influence - but because it's nice to see your friends and colleagues succeed. But Murray, there are more than enough black-robed prosecutors in the criminal courthouse as it is. The last thing we need are more former prosecutors without any experience on the other side of the well sitting on the bench thinking they're part of the law enforcement team.
That's the kind of crap that gives us judges who are more than willing to sit by a fax machine when the police want to run a No Refusal Weekend and wait for fill-in-the-blank affidavits to come it so they can blindly rubber stamp them in the name of public safety. It's the mentality that gives us the spectacle of the mass plea and the fiction that an attorney can adequately represent a citizen accused in the ten minutes it takes to read the police report and ask the prosecutor for time served.
I, for one, don't give a damn about who gets the cushy jobs under Pat Lykos. As far as I'm concerned, when you take a government job you take it understanding that your boss is a political figure who serves at the whim of the electorate. If Jim Leitner chose to prostitute himself out to Ms. Lykos, so be it. Hey, why a criminal defense attorney would want to be a district attorney is beyond me (and, judging by what's happened up in Montgomery County, not a very desirable situation).
Pat Lykos is a known commodity. She's willing to experiment. Some of her ideas are good (trace case policy) and others are illegal (DIVERT), but she's not afraid of innovation. Mike Anderson is campaigning to take us back to the past (sorry, Mike, been there, done that). Zack Fertitta is the wild card - the defense attorney who wants to be a prosecutor. God only knows where that will go.
The one thing I know is that my job will be the same come next January as it is now - regardless of who's sitting behind that big desk on the 6th floor.
Sometimes it appears that my colleague, and friend, Murray Newman, still wishes he were at 1201 Franklin Street infringing upon the liberty of our fellow citizens. Here of late Murray seems to be on a crusade to send Mike Anderson to the 6th floor of the Criminal (In)justice Center and to help smooth the path for more prosecutors to transfer to the judicial branch of the Harris County DA's Office (See here, here and here.)
While there is plenty to castigate Pat Lykos about, Murray is using Ms. Lykos' decision not to prosecute so-called trace cases as his ammunition. And that, quite frankly, has me just a little bit befuddled.
Why on earth would a criminal defense attorney want the state to prosecute more trace cases? Why would a criminal defense lawyer want to see more people arrested, booked into jail and forced to post bond when there isn't enough dope to retest? Why would a defense attorney want to make it easier for the state (and the judges) to line up defendants "on the chain" for mass pleas that make a mockery out of our legal system?
I get it, Murray, you really don't like Ms. Lykos. But for the election of 2008, you might still be working as an assistant district attorney. Ms. Lykos came into office and purged 1201 Franklin of as many supporters of Kelly Siegler as she could. Murray was one of the prosecutors swept up in that.
I'm sure Murray would like to see some of his friends sitting on the bench - not because there might be some undue influence - but because it's nice to see your friends and colleagues succeed. But Murray, there are more than enough black-robed prosecutors in the criminal courthouse as it is. The last thing we need are more former prosecutors without any experience on the other side of the well sitting on the bench thinking they're part of the law enforcement team.
That's the kind of crap that gives us judges who are more than willing to sit by a fax machine when the police want to run a No Refusal Weekend and wait for fill-in-the-blank affidavits to come it so they can blindly rubber stamp them in the name of public safety. It's the mentality that gives us the spectacle of the mass plea and the fiction that an attorney can adequately represent a citizen accused in the ten minutes it takes to read the police report and ask the prosecutor for time served.
I, for one, don't give a damn about who gets the cushy jobs under Pat Lykos. As far as I'm concerned, when you take a government job you take it understanding that your boss is a political figure who serves at the whim of the electorate. If Jim Leitner chose to prostitute himself out to Ms. Lykos, so be it. Hey, why a criminal defense attorney would want to be a district attorney is beyond me (and, judging by what's happened up in Montgomery County, not a very desirable situation).
Pat Lykos is a known commodity. She's willing to experiment. Some of her ideas are good (trace case policy) and others are illegal (DIVERT), but she's not afraid of innovation. Mike Anderson is campaigning to take us back to the past (sorry, Mike, been there, done that). Zack Fertitta is the wild card - the defense attorney who wants to be a prosecutor. God only knows where that will go.
The one thing I know is that my job will be the same come next January as it is now - regardless of who's sitting behind that big desk on the 6th floor.
Saturday, March 24, 2012
A big deal
Michael Aigen is a business litigator for Lakey Hershman, LLP up in Dallas. I don't know Mr. Aigen, but based on his profiles on Rising Stars he should be rewarded for doing something that a lot of lawyers can't do - not take himself too seriously.
Here is the blurb from his profile in the 2012 edition:
But wait, there's more. Here is the blurb from 2011:
Congratulations, Michael, you are a big deal!
Here is the blurb from his profile in the 2012 edition:
Michael. Aigen is an ordained minister and one of the founding partners of Lackey Hershman, LLP. Although Michael's a licensed attorney in Texas, he is more known for his accomplishments as a dungeon master (DM) in Advanced Dungeons & Dragons. His in-depth knowledge of the Monster Manual combined with deft handling of polyhedral dice has earned him a reputation as a demanding but just DM. Recently, he has built on this experience and developed a cult following as a LARP game master, where he has enjoyed being outside.
But wait, there's more. Here is the blurb from 2011:
Michael Aigen is one of the founding partners of Lackey Hershman, LLP, a national complex commercial litigation firm. He has first-chaired jury trials in state and federal court and argued before the United States Court of Appeals for the Fifth Circuit and the Dallas Court of Appeals. He is kind of a big deal. People know him. He is very important. He has many leather-bound books and his apartment smells of rich mahogany.And, lest you think I'm just pulling your leg about his profiles in Rising Stars, here's his photo from Lackey Hershman's website.
Congratulations, Michael, you are a big deal!
Friday, March 23, 2012
Ceding sovereignty
So much for national sovereignty. It's time for a little blatant corporate hegemony.
As most of y'all are aware, the Greek government found itself over a barrel. Under a crushing debt load and under pressure from the Eurozone (read: Germany) to balance its budget, Greece flirted with the idea of defaulting on its debt.
Now we can't have that, can we? Just think of all the banks and pension funds and investors who bought up Greek bonds looking to make a profit. We can't possibly allow them to assume the risk and take the loss. Sure, the bonds were issued by a sovereign nation - but they still carried an interest rate that would compensate a buyer for the risk he was assuming by purchasing the bond.
For those of y'all who slept through economics class (or stared at the brunette sitting in the next row over), interest is the return one receives for allowing someone else to use his money. Put another way, the interest rate is the price the borrower pays to use the investor's money. The further the spread between the interest rate and inflation, the greater the risk. The greater the risk, the greater the reward.
As part of the bailout plan, the Greek government has implemented austerity measures to reduce its operating deficit to within the range the Eurozone (read: Germany) finds acceptable. So, in order to keep the banks and investors afloat, the Greek people are being nickle and dimed to death.
Even worse, as part of the bailout package, the Greek government agreed to ignore provisions of the Greek Constitution. That's right. So that European bankers can keep their bonuses and BMWs, the Greek people are losing the right to govern themselves under their own Constitution.
Since when is it acceptable in a democracy for foreign corporations and investors to dictate how another nation is to govern itself? One thing that the Greek crisis demonstrates clearly is the danger of ceding sovereignty over one's monetary system. In a past life, the Greek government could have devalued the currency by issuing more paper money in order to cover its debt. Or the government could have borrowed more from willing investors to pump into the economy. With the euro, those avenues are closed.
Worse still are the restrictions placed on the people's ability to direct their government, for, in exchange for membership in the union, Greece (and the other nations in the Eurozone) agreed to keep its budget deficits below a certain percentage of gross domestic product. By making that deal with the devil, the Greek government handed over part of its ability to manage the business cycle to outside corporate interests.
Greece is slowly but surely being turned into a protectorate of Germany. And the people of Greece are paying the price while the bankers and corporate interests in Europe reap the windfall.
As most of y'all are aware, the Greek government found itself over a barrel. Under a crushing debt load and under pressure from the Eurozone (read: Germany) to balance its budget, Greece flirted with the idea of defaulting on its debt.
Now we can't have that, can we? Just think of all the banks and pension funds and investors who bought up Greek bonds looking to make a profit. We can't possibly allow them to assume the risk and take the loss. Sure, the bonds were issued by a sovereign nation - but they still carried an interest rate that would compensate a buyer for the risk he was assuming by purchasing the bond.
For those of y'all who slept through economics class (or stared at the brunette sitting in the next row over), interest is the return one receives for allowing someone else to use his money. Put another way, the interest rate is the price the borrower pays to use the investor's money. The further the spread between the interest rate and inflation, the greater the risk. The greater the risk, the greater the reward.
As part of the bailout plan, the Greek government has implemented austerity measures to reduce its operating deficit to within the range the Eurozone (read: Germany) finds acceptable. So, in order to keep the banks and investors afloat, the Greek people are being nickle and dimed to death.
Even worse, as part of the bailout package, the Greek government agreed to ignore provisions of the Greek Constitution. That's right. So that European bankers can keep their bonuses and BMWs, the Greek people are losing the right to govern themselves under their own Constitution.
Members of Parliament had just two days to read and approve a 400-page document. Much of the legal fine print was available only in English. More than 40 Parliament members from the two major parties backing the government rebelled and voted no. One was former Socialist Labor Minister Louka Katseli, who says Greece abdicated its right to immunity over its assets.
"If, in the years to come, there is a problem repaying loans, our partners have the right to seize assets, including gold of the Bank of Greece," she says. "That's why I have argued that our national sovereignty has been limited to a dangerous degree."
Katseli says the troika stipulates that national collective labor contracts, which are enshrined in the Greek constitution, are now void. Another unconstitutional clause, she says, requires that all revenues of the Greek state must be first used to pay its debt before paying public services, wages and pensions.
"So servicing the interests of our creditors goes above the national interest," Katseli says.
Since when is it acceptable in a democracy for foreign corporations and investors to dictate how another nation is to govern itself? One thing that the Greek crisis demonstrates clearly is the danger of ceding sovereignty over one's monetary system. In a past life, the Greek government could have devalued the currency by issuing more paper money in order to cover its debt. Or the government could have borrowed more from willing investors to pump into the economy. With the euro, those avenues are closed.
Worse still are the restrictions placed on the people's ability to direct their government, for, in exchange for membership in the union, Greece (and the other nations in the Eurozone) agreed to keep its budget deficits below a certain percentage of gross domestic product. By making that deal with the devil, the Greek government handed over part of its ability to manage the business cycle to outside corporate interests.
The agreement with the troika also establishes the creation of a permanent task force in Athens formed by experts from the European Union. The task force's headquarters is being set up in a modern office building, off-limits to the media.
Here, a French team will deal with reform of the central administration while a Swedish team focuses on health care. Dutch experts will create a land register, while Germans will reform local councils and the tax collection system.
Greece is slowly but surely being turned into a protectorate of Germany. And the people of Greece are paying the price while the bankers and corporate interests in Europe reap the windfall.
Anatomy of a crime (lab)
A source who shall remain nameless provided me with some very interesting reading material after reading my post about the accreditation of crime labs. It would appear that the Nassau County Crime Lab is the model agency for how not to run a crime lab according to both ASCLD/LAB and the New York State Inspector General.
You see, the Nassau County Crime Lab managed to find itself on probation from ASCLD/LAB on not one, but two, occasions. They earned their spot in crime lab time out thanks to incompetence, lack of communication and non-existent leadership.
It is hard to comprehend the magnitude of the problems out on Long Island. And apparently no one at the crime lab thought to let the Nassau County DA's Office know about their transgressions (if the DA is to be believed). It goes without saying that defense attorneys handling cases were kept in the dark as well.
In large measure, the problems are rooted in the way crime labs operate. Far from being an independent testing body, crime labs are under the control of law enforcement agencies. Crime labs were set up so that the police could test evidence to assist in making their cases. There is no objectivity in a crime lab. The mission is to produce admissible evidence in order to obtain convictions.
The courts allow these purveyors of pseudo-science to peddle their wares to juries as if they are independent, objective analysts. Should the defense wish to provide a counter-point to the state's dog-and-pony show someone is going to have to foot the bill. Then the testimony is characterized as being bought and paid for by the defendant. The implicit assumption is that the evidence presented by the crime lab analyst is presumed reliable unless proven otherwise.
This report should open the public's eyes about that very dangerous presumption.
Investigation Into the Nassau County Police Department Forensic Evidence Bureau
You see, the Nassau County Crime Lab managed to find itself on probation from ASCLD/LAB on not one, but two, occasions. They earned their spot in crime lab time out thanks to incompetence, lack of communication and non-existent leadership.
It is hard to comprehend the magnitude of the problems out on Long Island. And apparently no one at the crime lab thought to let the Nassau County DA's Office know about their transgressions (if the DA is to be believed). It goes without saying that defense attorneys handling cases were kept in the dark as well.
In large measure, the problems are rooted in the way crime labs operate. Far from being an independent testing body, crime labs are under the control of law enforcement agencies. Crime labs were set up so that the police could test evidence to assist in making their cases. There is no objectivity in a crime lab. The mission is to produce admissible evidence in order to obtain convictions.
The courts allow these purveyors of pseudo-science to peddle their wares to juries as if they are independent, objective analysts. Should the defense wish to provide a counter-point to the state's dog-and-pony show someone is going to have to foot the bill. Then the testimony is characterized as being bought and paid for by the defendant. The implicit assumption is that the evidence presented by the crime lab analyst is presumed reliable unless proven otherwise.
This report should open the public's eyes about that very dangerous presumption.
Investigation Into the Nassau County Police Department Forensic Evidence Bureau
Thursday, March 22, 2012
Disposable lives
So how much stupid shit did you do when you were a teenager?
Just think about all the things you did in high school and college. Makes you wonder what you were thinking, doesn't it? You didn't think of the consequences. You were having fun and living life.
For most of us, sometime in our mid-20's we finally caught on to the fact that there were consequences to our actions. We began to think a little bit ahead. We had things to lose.
Teenagers, for the most part, haven't developed the ability to think in the long run. And why should they? Their lives are lived in the moment. The brain hasn't fully matured. The future is an abstraction.
We'll do almost anything to protect our children from the harsh realities of the world around us. There will be plenty of time for them to understand they will have to make choices - some of them unpleasant - as they get older.
But while we are more than willing to do whatever it takes to keep our children in their bubble, we are only too happy, as a society, to lock up those kids for the rest of their lives because of some really bad decisions. While we are programmed to give our kids second, third and even fourth chances, we have no tolerance for the poor choices made by those kids.
Of course Scott Burns, the leader of the National District Attorneys Association, says seeking life without parole for a juvenile is one of the most difficult decisions a prosecutor can make. Because it's all about the prosecutor, you know. I'm not so certain about that, though.
That's because defense attorneys and prosecutors see numbers differently. For a defense attorney, that number represents the tearing apart of a family. We see the effect that number has on parents and siblings and children.There is nothing at all pleasant about hearing a jury sentence your client to years in prison.
For prosecutors, on the other hand, the number only represents a metric of how tough on crime the DA's office can be. It's a notch on the belt, it's a shiny gold coin, it's a quote on the evening news. It's a file being closed and another person locked away.
This isn't to say that teenagers are incapable of committing heinous crimes. They are. Some of it can be explained away by their tragic upbringings: poverty, neglect, abuse. But is justice really served by throwing away another life? By throwing away a life that hasn't even begun?
This is the only nation that locks juveniles in prison for life without the possibility of parole. We are the only society that is so willing to throw lives away.
Some of those lives can be saved. Yes, it will take a shift in attitude. It will take a society that is willing to forgive. A society that is willing to give a teenager a second chance. A society that understands that the mind of a teenager doesn't work like the mind of an adult.
We have a great capacity in this nation for vengeance. What we need is a greater capacity for compassion and understanding. That a young man has been rehabilitated is cold comfort for the family who lost a member to a crime of violence; but locking away that child for the rest of his natural life isn't going to change what happened either.
Our future as a society depends on our children. There are a multitude of politicians who shout as loudly as they can that they are pro-life and pro-family. But their concern for life doesn't extend beyond birth and their concern for family doesn't extend to anyone who doesn't look like them or who grew up in different circumstances.
It is time we stopped sacrificing our youth. It is time to end the insanity of locking up teenagers for life. Maybe our choices weren't nearly as bad nor as destructive - but we all did things when we were younger that we now regret. These lives can still be saved and it makes a whole lot more sense to spend our time and money trying to save those lives than it does to build and deploy deadly weapons.
Just think about all the things you did in high school and college. Makes you wonder what you were thinking, doesn't it? You didn't think of the consequences. You were having fun and living life.
For most of us, sometime in our mid-20's we finally caught on to the fact that there were consequences to our actions. We began to think a little bit ahead. We had things to lose.
Teenagers, for the most part, haven't developed the ability to think in the long run. And why should they? Their lives are lived in the moment. The brain hasn't fully matured. The future is an abstraction.
We'll do almost anything to protect our children from the harsh realities of the world around us. There will be plenty of time for them to understand they will have to make choices - some of them unpleasant - as they get older.
But while we are more than willing to do whatever it takes to keep our children in their bubble, we are only too happy, as a society, to lock up those kids for the rest of their lives because of some really bad decisions. While we are programmed to give our kids second, third and even fourth chances, we have no tolerance for the poor choices made by those kids.
Of course Scott Burns, the leader of the National District Attorneys Association, says seeking life without parole for a juvenile is one of the most difficult decisions a prosecutor can make. Because it's all about the prosecutor, you know. I'm not so certain about that, though.
That's because defense attorneys and prosecutors see numbers differently. For a defense attorney, that number represents the tearing apart of a family. We see the effect that number has on parents and siblings and children.There is nothing at all pleasant about hearing a jury sentence your client to years in prison.
For prosecutors, on the other hand, the number only represents a metric of how tough on crime the DA's office can be. It's a notch on the belt, it's a shiny gold coin, it's a quote on the evening news. It's a file being closed and another person locked away.
This isn't to say that teenagers are incapable of committing heinous crimes. They are. Some of it can be explained away by their tragic upbringings: poverty, neglect, abuse. But is justice really served by throwing away another life? By throwing away a life that hasn't even begun?
This is the only nation that locks juveniles in prison for life without the possibility of parole. We are the only society that is so willing to throw lives away.
Some of those lives can be saved. Yes, it will take a shift in attitude. It will take a society that is willing to forgive. A society that is willing to give a teenager a second chance. A society that understands that the mind of a teenager doesn't work like the mind of an adult.
We have a great capacity in this nation for vengeance. What we need is a greater capacity for compassion and understanding. That a young man has been rehabilitated is cold comfort for the family who lost a member to a crime of violence; but locking away that child for the rest of his natural life isn't going to change what happened either.
Our future as a society depends on our children. There are a multitude of politicians who shout as loudly as they can that they are pro-life and pro-family. But their concern for life doesn't extend beyond birth and their concern for family doesn't extend to anyone who doesn't look like them or who grew up in different circumstances.
It is time we stopped sacrificing our youth. It is time to end the insanity of locking up teenagers for life. Maybe our choices weren't nearly as bad nor as destructive - but we all did things when we were younger that we now regret. These lives can still be saved and it makes a whole lot more sense to spend our time and money trying to save those lives than it does to build and deploy deadly weapons.
It's a dangerous world out there
Jails, according to the Beaumont Enterprise, are dangerous places filled with dangerous people. These people are so dangerous, in fact, that we must monitor everything they do and everything they say. You never know when they might be up to no good.
Now that it has come to light that the good folks down at the Galveston County Jail were recording phone calls between inmates and their attorneys, the practices of the other 253 counties in our fair state are slowly, but surely, being made public, too. We know that both Harris County and Jefferson County choose to disregard the accused's right to keep his communications with his attorney confidential.
It's probably not a bad bet (nor a bet with long odds) that this practice is common throughout the state. Of course we are assured that no one ever listened in on those privileged communications. Then again we are also assured that prosecutors around the state happily hand over Brady material at every opportunity.
As Grits points out, the journalistic jewel out of Jefferson County, was speaking out of both sides of its mouth the other day. The Enterprise ran an editorial in which the paper denounced the violation of the rights of the accused by the Jefferson County Jail. But, the paper ran a second editorial best described as "on the other hand."
If "tradition" is the best argument the paper can put forward for why the practice should be allowed to continue, the debate is over because you just can't argue with stupid. Slavery and racism were long-standing traditions in the South -- I hope the editorial writers aren't advocating a return to the olden days because of tradition. If you want tradition, just look for three Aggies standing on a street corner.
The practice of recording attorney-client conversations is a problem - as is any trampling of the rights of the accused. Maybe prosecutors and judges and the police don't view it as a problem because it makes it easier to label folks as criminals; but it is a problem. Any actions taken on behalf of the state that serve to limit the accused's rights under the Bill of Rights is an attack on the rights of the entire citizenry. Today it might be a drug dealer or a murderer - but tomorrow it could be you, a family member or a friend.
Once you allow the state to take away someone's rights because they are one of them, you make it easier for the state to take away your own rights.
H/T Grits for Breakfast
Now that it has come to light that the good folks down at the Galveston County Jail were recording phone calls between inmates and their attorneys, the practices of the other 253 counties in our fair state are slowly, but surely, being made public, too. We know that both Harris County and Jefferson County choose to disregard the accused's right to keep his communications with his attorney confidential.
It's probably not a bad bet (nor a bet with long odds) that this practice is common throughout the state. Of course we are assured that no one ever listened in on those privileged communications. Then again we are also assured that prosecutors around the state happily hand over Brady material at every opportunity.
As Grits points out, the journalistic jewel out of Jefferson County, was speaking out of both sides of its mouth the other day. The Enterprise ran an editorial in which the paper denounced the violation of the rights of the accused by the Jefferson County Jail. But, the paper ran a second editorial best described as "on the other hand."
Prosecutors do not eavesdrop on these recorded conversations to learn tidbits they can use in court. The attorney-client conversations are simply included in the overall taping that goes on each day - again, for safety.
If this tradition is changed, what could prevent inmates from arguing that they should be able to talk to family members without being recorded? That could lead to all kinds of problems, such as inmates planning additional crimes.
This practice has not been a problem in our criminal justice system. It doesn't need fixing.And on what authority do our media mavens in the Golden Triangle base the supposition that prosecutors don't listen to attorney-client conversations? It's not like prosecutors around this state haven't been caught with their hands deep in the cookie jar before. Hell, John Bradley has made a career out of violating the rights of the accused.
If "tradition" is the best argument the paper can put forward for why the practice should be allowed to continue, the debate is over because you just can't argue with stupid. Slavery and racism were long-standing traditions in the South -- I hope the editorial writers aren't advocating a return to the olden days because of tradition. If you want tradition, just look for three Aggies standing on a street corner.
The practice of recording attorney-client conversations is a problem - as is any trampling of the rights of the accused. Maybe prosecutors and judges and the police don't view it as a problem because it makes it easier to label folks as criminals; but it is a problem. Any actions taken on behalf of the state that serve to limit the accused's rights under the Bill of Rights is an attack on the rights of the entire citizenry. Today it might be a drug dealer or a murderer - but tomorrow it could be you, a family member or a friend.
Once you allow the state to take away someone's rights because they are one of them, you make it easier for the state to take away your own rights.
H/T Grits for Breakfast
Wednesday, March 21, 2012
Giving Brady some teeth
So here's the dirty little secret - the Brady decision isn't worth the paper it's printed on. Sure, it sounds great. The prosecution must turn over any evidence that might tend to negate the accused's guilt or mitigate the offense. Only one problem - who's going to police it?
Keep in mind that we're talking about evidence in the possession of the prosecutor. If you already know about it, it isn't Brady material. It only falls under Brady if you don't know it exists.
But, if you don't know it exists, how can you be certain the prosecutor is providing it to you? How do you know the prosecutor doesn't just ignore it and move on to the next witness? And, even more important, how do you know whether this material you don't know exists, is material to the case?
Recently we have seen special prosecutor Henry Schuelke castigate federal prosecutors for their role in not turning over exculpatory evidence to former U.S. Senator Ted Stevens' attorneys in the run-up t his trial. We've also seen the Chief Judge of the Texas Supreme Court (the highest civil court in the state) call for an inquiry into whether a former Williamson County DA (now a state district judge) violated the law by failing to turn over exculpatory evidence in a 1987 case.
Nancy Gertner and Barry Scheck have a proposal to put more pressure on prosecutors to follow Brady:
Rare would be the case in which a Brady violation surfaced at trial. The only way defense counsel could point out the violation was to produce the exculpatory evidence - and if the defense is in possession of the exculpatory evidence, Brady doesn't apply.
So, while Ms. Gertner and Mr. Scheck's proposal is a good idea and a step in the right direction, it is by no means a solution to the conundrum that is Brady.
Keep in mind that we're talking about evidence in the possession of the prosecutor. If you already know about it, it isn't Brady material. It only falls under Brady if you don't know it exists.
But, if you don't know it exists, how can you be certain the prosecutor is providing it to you? How do you know the prosecutor doesn't just ignore it and move on to the next witness? And, even more important, how do you know whether this material you don't know exists, is material to the case?
Recently we have seen special prosecutor Henry Schuelke castigate federal prosecutors for their role in not turning over exculpatory evidence to former U.S. Senator Ted Stevens' attorneys in the run-up t his trial. We've also seen the Chief Judge of the Texas Supreme Court (the highest civil court in the state) call for an inquiry into whether a former Williamson County DA (now a state district judge) violated the law by failing to turn over exculpatory evidence in a 1987 case.
Nancy Gertner and Barry Scheck have a proposal to put more pressure on prosecutors to follow Brady:
The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.Whether issuing such an order will resolve the issue is a question in need of an answer. First, we will continue to have the very real problem that there is no way to know what material the prosecutor has at his disposal unless the prosecutor (or a whistleblower) is willing to hand it over. Second, who makes the determination whether the evidence is material? If the prosecutor doesn't think the evidence is material - you'll never see it. Third, how would the order be enforced? Most cases involving Brady violations are old. The nature of the violations only come to be known years after the fact when someone is sifting through old files.
Rare would be the case in which a Brady violation surfaced at trial. The only way defense counsel could point out the violation was to produce the exculpatory evidence - and if the defense is in possession of the exculpatory evidence, Brady doesn't apply.
So, while Ms. Gertner and Mr. Scheck's proposal is a good idea and a step in the right direction, it is by no means a solution to the conundrum that is Brady.
Getting credit where credit isn't due
A man who puts out a fire on his neighbor's property should be commended for his actions. Going out of one's way to help someone else is a noble deed. Even more so when that person places his life in danger in coming to the aid of another.
But when the man putting out the fire is the same man who set it - well, that's a different story altogether.
And so it goes down south of Houston in Galveston County.
Y'all may remember my post a couple of weeks ago about the Galveston County Jail recording conversations between inmates and their attorneys. Galveston County DA Jack Roady said he would get to the bottom of the cess pool and stop the recordings.
Well, Jack didn't exactly move at the speed of light to insure that the rights of inmates in the county jail were protected after State District Judge Susan Criss shone a little light on the problem.
Of course we'll never the know the full extent to which Galveston County violated the rights of those it held in custody. The mere fact that the conversations were recorded violates the right of the accused to have privileged communication with his or her attorney. If they're taping phone calls between inmates and attorneys, what other rights are being trampled on down along the coast?
And, what's this - the Harris County Jail is doing the same thing?
There is no need to praise Galveston County Sheriff Freddie Poor or Harris County Sheriff Adrian Garcia (or whatever PR flack he puts out in front of the cameras) for ending the practice. No one involved in this mess should be lauded for doing the right thing and putting an end to an illegal practice.
What else aren't we being told? Hmm, might want to get on that right away and let us know.
But when the man putting out the fire is the same man who set it - well, that's a different story altogether.
And so it goes down south of Houston in Galveston County.
Y'all may remember my post a couple of weeks ago about the Galveston County Jail recording conversations between inmates and their attorneys. Galveston County DA Jack Roady said he would get to the bottom of the cess pool and stop the recordings.
Well, Jack didn't exactly move at the speed of light to insure that the rights of inmates in the county jail were protected after State District Judge Susan Criss shone a little light on the problem.
"What's to prevent a sheriff's deputy from listening to a call and finding other evidence that was illegally derived and then it's given to the prosecutor? - Gary Trichter, TCDLA PresidentTo his credit, Mr. Roady did ask his prosecutors if any of them had ever listened in on a conversation between an inmate and his attorney. Only one raised his hand. Whether that means that no one else did, or that no one else is willing to admit it, I don't know. I certainly hope that it's the former.
Of course we'll never the know the full extent to which Galveston County violated the rights of those it held in custody. The mere fact that the conversations were recorded violates the right of the accused to have privileged communication with his or her attorney. If they're taping phone calls between inmates and attorneys, what other rights are being trampled on down along the coast?
And, what's this - the Harris County Jail is doing the same thing?
The Harris County Jail also has been routinely recording all conversations, including those between attorneys and clients, but is trying to change the practice, sheriff's spokesman Alan Bernstein said. Bernstein said the jail has been programming defense attorney phone numbers into the system over the past few months.These are the same folks who want to install a video conferencing system to cut down on the cost of in-person visits. These are the same folks who swear up and down that they won't be recording or listening in on privileged communications on the proposed system. But here they are making a mockery of the right to converse with an attorney in confidence.
There is no need to praise Galveston County Sheriff Freddie Poor or Harris County Sheriff Adrian Garcia (or whatever PR flack he puts out in front of the cameras) for ending the practice. No one involved in this mess should be lauded for doing the right thing and putting an end to an illegal practice.
What else aren't we being told? Hmm, might want to get on that right away and let us know.
Tuesday, March 20, 2012
You can get the gold plaque for a few dollars more
We're accredited, you see. That means what comes out of our lab is reliable. We have strict quality control regimens and we verify all our results. You can bet that if our analyst tells you that sample indicates the driver was intoxicated or that the DNA matches your suspect, that the result will stand up in court.
Maybe that's what the lab director says, and maybe it isn't. But you can bet the analyst and the prosecutor will tell your jury more times than you can recall, that the crime lab was accredited.
To which my response is "so freaking what?" Mr. Marvin Schechter, an attorney from New York, wrote a memo about the fallacy of accreditation to the members of the New York State Commission on Forensic Science. The report is an eye-opener.
Who is it that accredits these crime labs? It's some body known as the American Society of Criminal Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). In Texas, the Department of Public Safety accredits crime labs - but only if they have already been accredited by a "recognized accrediting body."
North Carolina's State Bureau of Investigation crime lab was accredited by ASCLD/LAB. But that didn't do Gregory Taylor much good. He was convicted of killing a prostitute in 1993. In 2010 he was exonerated when it turned out that his blood wasn't found at the scene of the crime. Nor was it any comfort to Derrick Allen who was freed after serving over a decade in prison after it came to light that the lab reports were inaccurate.
Those incidents had no impact on the crime lab's accreditation, however.
In 2008, an analyst at the ASCLD/LAB-accredited San Francisco PD crime lab mixed up samples of DNA evidence in a homicide case. Instead of having her re-run the tests, the lab supervisor ordered her to change the labels on the tubes. And then, in 2010, there was the lab tech who took drug samples home for a little "confirmatory testing."
ASCLD/LAB promptly re-accredited the lab.
As Mr. Schechter notes in his memo:
Crime labs aren't accredited because they do such marvelous work. They are accredited because they keep their paperwork in order. So long as their paperwork is in order and so long as the check clears, ASCLD/LAB will continue to accredit crime labs - regardless of how bad the "science" actually is.
Maybe that's what the lab director says, and maybe it isn't. But you can bet the analyst and the prosecutor will tell your jury more times than you can recall, that the crime lab was accredited.
To which my response is "so freaking what?" Mr. Marvin Schechter, an attorney from New York, wrote a memo about the fallacy of accreditation to the members of the New York State Commission on Forensic Science. The report is an eye-opener.
Who is it that accredits these crime labs? It's some body known as the American Society of Criminal Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). In Texas, the Department of Public Safety accredits crime labs - but only if they have already been accredited by a "recognized accrediting body."
North Carolina's State Bureau of Investigation crime lab was accredited by ASCLD/LAB. But that didn't do Gregory Taylor much good. He was convicted of killing a prostitute in 1993. In 2010 he was exonerated when it turned out that his blood wasn't found at the scene of the crime. Nor was it any comfort to Derrick Allen who was freed after serving over a decade in prison after it came to light that the lab reports were inaccurate.
Those incidents had no impact on the crime lab's accreditation, however.
In 2008, an analyst at the ASCLD/LAB-accredited San Francisco PD crime lab mixed up samples of DNA evidence in a homicide case. Instead of having her re-run the tests, the lab supervisor ordered her to change the labels on the tubes. And then, in 2010, there was the lab tech who took drug samples home for a little "confirmatory testing."
ASCLD/LAB promptly re-accredited the lab.
As Mr. Schechter notes in his memo:
ASCLD/LAB has been in existence for over 28 years, in which time they have managed to corner the market on forensic laboratory accreditation. For all their experience, however, the record shows that an inordinate amount of lab incidents occur at their accredited facilities. In fact ASCLD/LAB could more properly be described as a product service organization which sells for a fee, a “seal of approval,” covering diverse laboratory systems which laboratories can utilize to bolster their credibility through in-court testimony by technicians plus ancillary services such as protection from outside inquiry, shielding of internal activities and where necessary, especially in the event of public condemnation, a spokesperson to buffer the laboratory from media inquiry.
Crime labs aren't accredited because they do such marvelous work. They are accredited because they keep their paperwork in order. So long as their paperwork is in order and so long as the check clears, ASCLD/LAB will continue to accredit crime labs - regardless of how bad the "science" actually is.
Doing something
What Dharun Ravi did back in September 2010 was wrong. But what Middlesex County prosecutors did in response was worse.
There is not much dispute over the facts. Mr. Ravi set up a webcam to spy on his roommate's encounter with another man. Mr. Ravi sent out tweets inviting people to watch the video. Three days later his roommate, Tyler Clementi, leapt to his death from the George Washington Bridge.
One life was lost and a family was in mourning.
But, someone had to pay for it. And that someone, Middlesex County prosecutors decided, was Mr. Ravi, who was convicted last week on 15 counts (loosely) related to Mr. Clementi's death.
Mr. Ravi was charged with a multitude of counts ranging from invasion of privacy to lying to investigators to tampering with evidence to something New Jersey refers to as bias intimidation.
But is that what Mr. Ravi intended to do? Did Mr. Clementi feel intimidated? And did Mr. Ravi's actions cause Mr. Clementi to commit suicide?
We can never know the answers to the final two questions.
But Middlesex County prosecutor Bruce Kaplan apparently has some special form of mental telepathy that allows him to communicate with the dead. And, by use of his Oujia board, Mr. Kaplan was able to determine that Mr. Ravi had intimidated Mr. Clementi to the point that Mr. Clementi had no option but to take his own life. Then came the piling on of charges that assume a crime had even been committed in the first place.
Here's what the New York Times had to say on the topic of reading minds:
And there you have the elephant sitting in the middle of the room being ignored. "...[Y]ou can't really get into someone's head." How true, Mr. Ferreira, how very true.
But, notwithstanding the fact that we can never know what either Mr. Ravi or Mr. Clementi were thinking, a jury decided that Mr. Ravi intended to intimidate Mr. Clementi because he was gay and that Mr. Clementi was intimated by Mr. Ravi's actions.
Does whether or not Mr. Ravi intended to intimidate Mr. Clementi make you feel any different about what happened? Should it?
It is debatable whether any crime took place that night. But that never stopped the state from stepping in when "something has to be done." After his conviction last week on all 15 counts, Mr. Ravi is looking at up to 5-10 years in prison on each count. That's a stiff penalty for a young man who was never charged with causing Mr. Clementi's death.
The death of any young person is a tragedy. No parent should ever have to bury their child. But we must also resist the urge of "doing something" because society is upset. Nothing is going to bring back Tyler Clementi. Nothing is going to ease his parents' pain and loss. Convicting Mr. Ravi of a hate crime isn't going to change what happened. Putting Mr. Ravi behind bars serves no purpose other than making society feel better at the expense of destroying another young person.
Well, that and providing a political boost for local officials.
There is not much dispute over the facts. Mr. Ravi set up a webcam to spy on his roommate's encounter with another man. Mr. Ravi sent out tweets inviting people to watch the video. Three days later his roommate, Tyler Clementi, leapt to his death from the George Washington Bridge.
One life was lost and a family was in mourning.
But, someone had to pay for it. And that someone, Middlesex County prosecutors decided, was Mr. Ravi, who was convicted last week on 15 counts (loosely) related to Mr. Clementi's death.
Mr. Ravi was charged with a multitude of counts ranging from invasion of privacy to lying to investigators to tampering with evidence to something New Jersey refers to as bias intimidation.
2C:16-1. Bias Intimidation.The thrust of the law is to criminalize behavior that serves to intimidate someone on the basis of race, sex, national origin, sexual orientation, disability and whatever new groups the state legislature comes up with in order to curry favor with the voters.
But is that what Mr. Ravi intended to do? Did Mr. Clementi feel intimidated? And did Mr. Ravi's actions cause Mr. Clementi to commit suicide?
We can never know the answers to the final two questions.
But Middlesex County prosecutor Bruce Kaplan apparently has some special form of mental telepathy that allows him to communicate with the dead. And, by use of his Oujia board, Mr. Kaplan was able to determine that Mr. Ravi had intimidated Mr. Clementi to the point that Mr. Clementi had no option but to take his own life. Then came the piling on of charges that assume a crime had even been committed in the first place.
Here's what the New York Times had to say on the topic of reading minds:
Without Mr. Clementi to speak for himself, that last question was perhaps the most difficult to determine, and jurors struggled with it.
“That was the hardest because you really can’t get into someone’s head,” said one, Bruno Ferreira, as he left the court. The jury deliberated longest — for well more than an hour, he said — on the bias intimidation charge.
Mr. Ferreira said he ultimately voted guilty on the bias intimidation charge because Mr. Ravi had sent multiple Twitter messages about Mr. Clementi.
“They were being done twice, not just one day,” he said.
Another juror, Kashad Leverett, himself a student and a Twitter user, said he could relate to Mr. Ravi’s constant stream of Twitter and text messages.
And there you have the elephant sitting in the middle of the room being ignored. "...[Y]ou can't really get into someone's head." How true, Mr. Ferreira, how very true.
But, notwithstanding the fact that we can never know what either Mr. Ravi or Mr. Clementi were thinking, a jury decided that Mr. Ravi intended to intimidate Mr. Clementi because he was gay and that Mr. Clementi was intimated by Mr. Ravi's actions.
Does whether or not Mr. Ravi intended to intimidate Mr. Clementi make you feel any different about what happened? Should it?
It is debatable whether any crime took place that night. But that never stopped the state from stepping in when "something has to be done." After his conviction last week on all 15 counts, Mr. Ravi is looking at up to 5-10 years in prison on each count. That's a stiff penalty for a young man who was never charged with causing Mr. Clementi's death.
The death of any young person is a tragedy. No parent should ever have to bury their child. But we must also resist the urge of "doing something" because society is upset. Nothing is going to bring back Tyler Clementi. Nothing is going to ease his parents' pain and loss. Convicting Mr. Ravi of a hate crime isn't going to change what happened. Putting Mr. Ravi behind bars serves no purpose other than making society feel better at the expense of destroying another young person.
Well, that and providing a political boost for local officials.
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