Thursday, May 31, 2012

Guilty, as charged

Our Constitution provides that anyone accused of a crime will be afforded due process of law (now that's a moving target). That means the accused will be informed of the charges against him. The accused will have the right to counsel. The accused will have the right to confront the evidence and the witnesses against him. The accused will have the right to put on evidence on his behalf. The accused will have the right to remain silent. The accused will have the right to have his fate determined by a jury of his peers.

As the presidential campaign heats up, President Obama is doing his best to show that he is tough on terrorism. He is doing his best to thwart Republican allegations that he is weak on foreign policy. In recent weeks the White House has revealed the method by which it is determined who in the Middle East will die by remote control. First we find out that John Brennan is making decisions on who lives and who dies. Now we find out that the President of the United States is playing judge, jury and executioner.

According to an article in the New York Times:
It was not a theoretical question: Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.
There it is. President Obama is taking responsibility for placing names on the death list. Mr. Obama is a lawyer and certainly he is aware of the law of parties. According to the law on parties, every person who participates in a conspiracy to commit murder, or every person who participates in a murder, regardless of how small the contribution, may be held accountable for the murder.

The Lone Star State doesn't care if you pulled the trigger or just drove the car. They'll kill you just the same. In fact, the driver often gets the worse end of the deal when the actual killer cops a plea and rats out everyone else involved.

The United States has used drones to murder people in Afghanistan, Pakistan and Yemen during the Obama presidency. Those murders were committed without affording due process to those accused of being terrorists. Those murders were committed without evidence being presented in a court of law. Those murders were committed without the unanimous verdict of twelve citizens.

The government and the media like to use the term "extra-judicial killings" instead of calling the murders what they are. But, by accepting responsibility for deciding who needs killing, President Obama is accepting responsibility for the murders of innocent people - including three Americans.
They describe a paradoxical leader who shunned the legislative deal-making required to close the detention facility at Guantánamo Bay in Cuba, but approves lethal action without hand-wringing. While he was adamant about narrowing the fight and improving relations with the Muslim world, he has followed the metastasizing enemy into new and dangerous lands. When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr.
Obama told colleagues was “an easy one.”
President Obama has admitted culpability for the murders. He has violated the Constitution in at least three instances. He is guilty of depriving three American citizens of their due process rights. That, my friends, is far more worse than a "high crime" or misdemeanor.

I wouldn't shed a tear if one day Barack Obama finds himself in the dock at the International Criminal Court at The Hague charged with crimes against humanity for his actions in his War on the Constitution Terrorism. But I won't hold my breath. After all, the only folks who find themselves on the wrong side of the "v" are those who lost, are weak or out of power. Crimes against humanity are those things that They do; we are just defending freedom (read: tyranny).

Barack Obama should be charged with murder. His actions violated the sovereignty of Pakistan and Yemen. His actions have led to the deaths of women and children. He shows no remorse for his actions. But who will avenge those deaths? Who will take up the torch for the Rule of Law?

Wednesday, May 30, 2012

Let's go back to the past

Just what does it take for a bunch of Republicans to come off the golf course and stand in line to vote out an incumbent District Attorney?

Pat Lykos might just know the answer.

Showing that the forces of inertia can overcome any thought outside the box, Harris County Republicans told Ms. Lykos to pack her bags and to leave the front door open for former state district judge Mike Anderson.

For all her faults, Ms. Lykos did have the ability - and the willingness - to re-evaluate the way the Harris County District Attorney's Office went about its business. Under Ms. Lykos the DA's office stopped prosecuting so-called trace cases (for evidentiary purposes) and instituted DIVERT - an illegal program that allows a motorist to avoid a conviction on a first-time DWI case. Most importantly, for all her faults, she was a break from the "good ol' boy" network that ran the DA's office for decades.

With Mike Anderson there will be a return to the old days. What remains to be seen is whether that means prosecutors will be handed a bit of discretion and responsibility or that "office policy" will continue to rule the day.

I have a feeling that some folks who are jumping up and down on the tables right now will be singing a different tune four years from now. Not that I'm naming names or nothing like that.

In other contested races affecting the criminal courthouse, Robert Summerlin took the nod in the 174th over Joe Vinas and the wingnuts came out in force to give the nomination to Dan Patrick's son, Ryan, in the 177th over Antonio Benavides. But hey, what's the courthouse without an ideologue running the show?

Kristin Guiney will put the R behind her name in the race for the 179th and Renee Magee is officially the lesser of two evils by picking up the nod in the 337th over Jim Barr.

So I guess it's time to party like it's 2004 all over again.

But, just so we don't end on a bad note, voters up in Williamson County finally got fed up with John Bradley and his antics as they gave County Attorney Jana Duty the Republican nod. Karma can be such a bitch sometimes, can't it?

Monday, May 28, 2012

Book review: Let's play two!

It's traditional in baseball lore that whoever led their league on Memorial Day was the odds-on favorite to win the pennant come October.  Of course with the split into divisions and the additions of wild card teams, it just means that whoever's leading their division on Memorial Day has a pretty good shot at winning the division and getting into the playoffs.

And, given that baseball is so entwined with both Memorial Day and the Fourth of July, it only seems appropriate to review two books about America's pastime today.

I'm not much of a fan of John Grisham. Now, I've been to Oxford, Mississippi and it's a wonder what he has done to transform that sleepy town with some of the wealth he's accumulated from writing his formulaic lawyer books. A few weeks ago I was listening to Fresh Air or Weekend Edition or one of the other interview programs on NPR and heard someone talking about how he grew up in the South as a St. Louis Cardinals fan thanks to the powerful signal of the mighty KMOX. In fact, I remember picking up both Cardinals baseball games and Blues hockey games on my clock radio if the clouds were aligned just right late at night.

The interview was fascinating and then I realized the person being interviewed was John Grisham and they were talking about his latest book, Calico Joe.

"Calico Joe" Cannon was called up by the Chicago Cubs after an injury to their starting first baseman. From the first pitcher in the bigs he faced, Cannon was unstoppable. That is until he stepped into the batter's box against journeyman pitcher Warren Tracey of the New York Mets.

The story is told from the point of view of Warren's son, Paul and it's a journey of both discovery and redemption. Mr. Grisham could have turned maudlin and brought father and son back together with the elder Tracey dying of cancer. But he didn't. While the exploits of Calico Joe strain belief, the story is compelling and, if you love baseball, you won't be able to put it down.

The second book of today's doubleheader is Chad Harbach's debut, The Art of Fielding. 

Henry Skrimshander was a scrawny shortstop playing American Legion ball when Mike Schwartz, the catcher for the Westish Harpooners, a Division III team, watches him field grounders after a ball game. Schultz convinces Henry to enroll at Westish and play ball.

Henry carries with him a copy of the fictional book The Art of Fielding by Aparacio Rodriguez, a book that wedded zen and the Art of War. Of course the lessons in fielding offered in the fictional book are also lessons for life.

Henry is an unstoppable force until a tragic accident in a game. From that point forward he loses the ability just to play and react and begins to think too much about what he's doing and, as a result, becomes paralyzed in indecision.

The tragedy of that afternoon ties Henry, his roommate Owen, the university president, Guert Affenlighter, the president's daughter and Schwartz together in ways you never thought imaginable. While the core message of the book - that thinking too much can paralyze you - rings true, there are some serious missteps along the way that don't seem in the least bit credible.

However, despite those stretches, The Art of Fielding is hard to put down.

Friday, May 25, 2012

Brother, can you spare a bill or two?

I received a mailer a few days ago - well, actually a few weeks ago - from a sitting family court judge who was holding a fundraiser not too far from my office. Why, you might ask, is this newsworthy? That is a good question.

I live and work (for the most part) in Houston which is in Harris County. The judge in question sits on a bench in Montgomery County (hop on the freeway and head north). Now why would a judge in Montgomery County hold a fundraiser in another county? That question kept coming up in my mind.

None of the attorneys (probably a safe assumption that the recipients of the mailer were attorneys) lived in Montgomery County. None of the attorneys are eligible to vote in Montgomery County. But I would say it's a good bet that each of the attorneys has handled at least one case in that judge's court.

Which raises the question of why an attorney in one county would be persuaded to write a check to the campaign of a judge in another county. Could it possibly be the perception that the judge would look more kindly upon those attorneys who "made it rain?"

And what might give someone that impression? Surely judges don't give preferential treatment to attorneys who line their pockets during campaign season. Surely no attorney would give a campaign contribution to a judge in the hopes that it might curry him some favor down the road.

But why else would a Houston attorney give money to a Montgomery County family court judge who's also a deadbeat dad?

Our method of picking judges here in Texas is certainly flawed. There is something just a bit unseemly about attorneys making campaign contributions to judge in whose courtrooms they practice. There's something very unsettling about watching judicial candidates portray themselves as being tougher on crime (whatever that means) and more conservative than the person sitting next to them. It's just plain asinine for entire slates of judges to be elected (or tossed out) because they have an R or a D after their name.

Of course, electing them is the least worst alternative.

Thursday, May 24, 2012

My two cents on the contested GOP primary races

Since I don't even know where the Republicans hold their klaverns primaries around here you won't find me behind a curtain casting any votes for the wingnuts, but, as a public service, I have taken a look at who's running for the Harris County criminal benches this time around.

Being that I don't see President Obama carrying Harris County this year like he did four years ago, it is very likely that the winners of the Republican primary will be sitting on the bench come January.

So, here we go...

174th Judicial District

Here we have a match-up between a current prosecutor, Joe Vinas, and a former prosecutor, Robert Summerlin. According to Mr. Vinas' website, he's been with the District Attorney's Office for the last 13 years, the last nine as a prosecutor. Mr. Summerlin, on the other hand, actually has some experience outside the DA's office as he has been in private practice since 2003.

While I don't care for Mr. Summerlin promoting himself as a conservative judge who will be tough, at least he has worked on both sides of the aisle - and that is always a plus.

177th Judicial District

Once again we have a prosecutor, Ryan Patrick, squaring off against a defense attorney, Anthony Benavides. Mr. Patrick went to work at 1201 Franklin right out of law school and has absolutely no experience doing anything other than trying to take away the liberty of our fellow citizens.

Mr. Benavides worked for a year as a prosecutor in Corpus Christi before moving to Houston to open up his own criminal defense practice. As a practicing defense attorney, Mr. Benavides understands what a defendant has to go through in court - he also has an appreciation for the great disadvantage one has as a defendant in Harris County.

Besides, Ryan Patrick's dad is the ultimate wing nut State Senator Dan Patrick - does there need to be any other reason not to vote for him?

179th Judicial District

Either Kristin Guiney or Lana Shadwick will be taking over the 179th in January. Mr. Guiney worked for the DA's Office and now handles indigent defense - which means she relies on appointments. But at least she's seen life outside the DA's office.

 Her opponent, Murray Newman's favorite prosecutor, Ms. Shadwick has worked as a prosecutor, an associate family judge and a municipal court judge. I don't know if working in the den of corruption that the Family Law Center is or as an automaton at 1400 Lubbock is really something I'd be advertising if I were running for a real bench.

So here is one race on which Murray and I agree - Ms. Guiney is the better choice (and couldn't possibly be worse than the person she'd be replacing).

337th Judicial District

Now here's a fun race: a candidate who was once removed from the bench for misconduct, Jim Barr, versus a career prosecutor, Renee Magee. Hey, at least Mr. Barr has been practicing a little criminal defense work over the last decade.

I think I'd vote for Mr. Barr just to fuck with the Republican establishment. Neither one of these two are qualified to sit on the bench, but one of them will in January. I just can't stomach the thought of yet another career prosecutor moving to the Judicial Division of the DA's Office.

Wednesday, May 23, 2012

The man with his finger on the button

Well so much for all that checks and balances nonsense. Not to mention all that talk of separation of powers. The Obama White House has decided to dispense with any semblance to due process (even lip service) when it comes to the extra-judicial killing of alleged terrorists.

And, while we're at it, who came up with the term "extra-judicial killing?" Why don't we just call it what it is - murder.

John Brennan is the man with his finger on the fire button of the drones. He is the man who decides who goes on the hit list and who is targeted to be murdered. Without having to go through the layers of bureaucracy at the Pentagon, the CIA and the Joint Chiefs of Staff, the killing machine can be operated much more efficiently - and with even fewer checks on its power.

In war the commanders in the field decide where to fire and with what force. If the leader of a supposed terrorist cell is in the way, then so be it. Not that killing people is ever going to engender the warm and fuzzy feelings that proponents of the counter-insurgency movement are looking for, but, killing is, after all, part of war.

What the Obama Administration is doing is not part and parcel of war. War can only be declared by Congress against another country or army. The drone attacks are being carried out against those that los federales have decided - absent a finding of guilt - are either terrorists or people providing material support for terrorists.

When did we cede the authority to decide who lives and who dies to an unelected bureaucrat in Washington? Where in the Constitution does it give an unelected official the authority to sentence a man to death without his ever being indicted?

President Obama wants you to think that he's tough on terrorism and will continue to fight the War on the Constitution Terrorism with passion so that you'll vote to return him to office this fall. But what the president is doing doesn't mean that he's going to be tough on the bad guys - it means that he will disregard the Constitution whenever it suits his purposes. And, in that regard, he's no different than the man who preceded him in the White House.

On January 20, 2009, President Obama took an oath to defend the Constitution and the laws of the United States; what he is doing with regard to the murder-by-drone program is a direct attack on that document.

Tuesday, May 22, 2012

Which side of the fence am I on?

Poor Murray. Sometimes he just can't seem to decide if he's a defense lawyer or a prosecutor. There are times it seems as if he's angling to be Mike Anderson's Deputy Dawg should the angry one pull off the GOP nomination.

Yesterday Murray ran a guest post by an anonymous soul who, if I were so inclined, I would bet my house works in the Harris County District Attorney's Office. The guest writer tries to equate Pat Lykos' decision not to prosecute trace dope cases to judicial activism - but, the analogy is beyond flawed.

Ms. Lykos isn't a judge. She's the elected District Attorney for Harris County. As a prosecutor it is her ethical duty to see that justice is done. It is not a prosecutor's job to go all out to win every case (someone might want to remind John Bradley of that). A prosecutor should have the discretion to decide that justice is best served by dismissing a case, reducing a charge or finding an alternative way to work out the case.

A prosecutor who doesn't have the authority to use their own best judgment in resolving a case is nothing more than a law clerk with a license from the Texas Supreme Court hanging behind their desk.

Just because a law is on the books doesn't mean that it must be enforced. A police officer has the discretion to ignore a motorist who doesn't signal a lane change or a turn. A prosecutor has the discretion to charge an officer who stomps on the head of a prone teenager with either felony or misdemeanor assault (or neither).

Ms. Lykos made the decision that in so-called residue cases that if there wasn't enough evidence to be tested by both the state and the defense that her office wouldn't prosecute. The decision makes sense. Possessing crack cocaine is a crime. But is possessing a glass pipe with cocaine residue in it the same offense? The guest writer argues that possession of any amount of cocaine - even a trace - is verboten by the legislature. The guest writer is but a minion who adheres blindly, and without question, to the words on the page - a person who lacks the ability to think and to make decisions on his own.

Blind adherence is not a virtue. It's the sign of a small brain. It's a symptom of a person who is unable to think on their own. And, considering the writer equates Ms. Lykos' actions to judicial activism, it's the sign of one who is incapable of making a logical argument. By the way, the US Attorney General is in the executive branch and is, therefore, incapable of practicing judicial activism. But, hey, let's not let logic, or facts, get in the way of our little polemic against our boss.

It's quite interesting how Mr. Anderson and his supporters point to Ms. Lykos' decision not to prosecute trace dope cases as a sign that she's not being tough enough on crime yet they don't seem to recall how under prior regimes the DA's Office routinely looked the other way when a police officer was suspected of abusing his authority. Those cases were sent to the grand jury where, miraculously, they were no-billed more often than not.

Murray, you're a criminal defense lawyer. Why would you actively promote a candidate who is promising to prosecute more people? Why would you push a candidate who wants to return to a past in which the rights of the accused were trampled far more than they are today? Why would you support a candidate who has no new ideas and who is unable, or unwilling, to think outside the box?

Is he taking a page from the German communists in the 1930's who thought it would be better for the workers' revolution in the long run for Hitler and his Nazis to run Germany into the ground? How did that work out?

United asks city to limit competition

The heads of major corporations always profess their allegiance to the laws of capitalism. They claim they want less government regulation since all that red tape only drives up the price of production. They want greater freedom to pay workers what they want without the government looking over their shoulders. They want those pesky little environmental officials to go away because it costs money to privatize the cost of pollution rather than socialize the cost like they've always done.

 Hobby Airport, Houston

There are two major airports in Houston - Intercontinental (I refuse to call it Bush) on the north side and Hobby on the south side. United has one of its main hubs at Intercontinental - after acquiring Continental and its terminals and gates. Southwest is the top dog down at Hobby.

Intercontinental Airport, Houston

Over the past few years Southwest has made a handful of acquisitions, including some carriers with flights to Mexico and the Caribbean. These are Southwest's first foray into international travel. But flying those routes out of Houston would require that an international terminal be built at Hobby.

Southwest argues that the flying public will benefit because more international flights out of Houston means more competition and more competition (should) mean lower fares.

United, on the other hand, is now a fan of government interference in the marketplace and is arguing that one international terminal in Houston is enough. For, you see, if Southwest were to start flying to Mexico out of Hobby then folks might choose to fly Southwest over United if the fares were lower. If that were to happen then United wouldn't make as much money on those flights out of Houston and might have to cut back on the number of international flights and flights bringing passengers to the Houston hub.

I’ve struggled to understand it myself. Here’s an example of how it works that United provided for me, which I’ve edited for brevity. It is an argument that a passenger flying out of Hobby rather than Bush Intercontinental (IAH) affects other IAH flights. 
A flight from Hobby to Mexico City could divert a number of local and connecting passengers away from  IAH flights to Mexico City.  This then makes one of our IAH flights to Mexico City fall into unprofitability, and we cancel it.  Onboard that canceled Mexico City flight were passengers who were connecting from Tucson and Phoenix, among dozens of other points.  Given that that Mexico City flight no longer exists, we lose those passengers from the Tucson and Phoenix flights, thus rendering some of those Tucson and Phoenix flights unprofitable and subject to cancellation.  This progresses into a cascade that results in many flights being canceled, because those flights carry customers who may want to connect from IAH to London or Amsterdam or Auckland, so there are fewer passengers connecting at IAH for those flights, making them unprofitable.  Hubs are fragile. They need the “feed” to continue to grow.  When the feed stops, they shrink and the airport becomes weaker.

In other words, United is telling the government to save it from competition and to keep air fares artificially high.

United's arguments are full of "ifs" and other assumptions. And, as you should know, the more "ifs" in your argument, the more faulty the logic. And, given the number of times both United and Continental have been in bankruptcy court, the more faulty the argument.

Monday, May 21, 2012

The American paradox

Doug Berman over at Sentencing Law and Policy recently quoted from an article in The Guardian in which Bernard Harcourt points out what he considers a paradox of the American political system.
There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere. In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade. In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus. 
This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism". Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration. In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.
But there really isn't a paradox if you step away from the scene and take a look at the big picture. 

The state serves the interests of the ruling class. In the area of economics that means keeping out of the way of the invisible hand and allowing the owners of the means of production to do as they wish. It means creating a structure in which gain is privatized but losses are socialized. All that pollution as you head east out of Houston? That's just a by-product of capitalism in action.

The chemical plants and refineries reap the profit from processing the basic building blocks of our economic system while the residents are left to deal with the smog, the soot and the stench. Heaven forbid we require those who produce the pollution to prevent it. 

All those pesky environmental regulations? Get rid of them. Who cares what's left of the environment a generation or two from now. By then we'll all have profited mightily from the rape of the planet - and, besides, we'll be dead, so what difference does it make?

And, of course the state should do nothing to encourage workers to join together for their mutual benefit. It's okay for the corporations to combine so as to exploit their resources as much as possible but if we allow those workers to form a union we might have to give up that summer home or the new BMW.
Forcing Americans to buy health insurance, on Justice Kennedy's view, violates a fundamental notion of liberty and basic values of a liberal democracy – despite the fact that all Americans already pay for Medicare and Medicaid, as well as other social programs, not to mention military interventions. In the economic sphere, Kennedy evidently is attached to a robust economic-liberal approach. He almost sounds libertarian. 
Only a few days later, though, Justice Kennedy dramatically expanded the government's reach over the individual by deciding to allow federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy's view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.
The role of the state in modern day capitalism explains the over-criminalization of our society. As productivity increases and corporations reduce the numbers of workers in their facilities, something must be done with the excess labor supply. So we lock them up. We lock them up in record numbers. And the more petty the crime, the more severe the hand of the government.

The state uses mandatory minimums to lock up those caught up in the drug trade while the alcohol, tobacco and pharmaceutical industries peddle mind-altering substances taxed by the state. The common man without anything to trade is sentenced to life in prison while the corporate executives who make the decisions that destroy the environment or cost people their lives live in their mansions in their gated communities - keeping all the riff-raff at bay.

It's the American way, after all. If you've got the goods, you can do whatever the hell you want, but, if you don't, there'll be hell to pay. Those who control the wealth control the means of power - whether it be in the marketplace or in the courthouse.

Friday, May 18, 2012

A dress rehearsal for clamping down

As Chicago prepares for the NATO summit this weekend I'm left with one little nagging question - why does NATO still exist?

The meeting is an exercise in just what the police and law enforcement can get away with before the people stand up and say that enough is enough. Police are seeking to place as much of the city in "lock down" as possible in order to shut down planned protests. No one will be allowed on a city bus or train with a backpack, bike, food or drink. Passengers will not be able to carry a bag more than 15 inches by 15 inches. Anyone on a bus or train will be subjected to warrantless searches.

Of course the state security apparatus places the blame for the security crackdown on protesters - nevermind that the city decided to allow this meeting to occur in the Windy City. The very last thing we can have is a bunch of long haired-types marching around with signs making folks think about what's going on. And, given the current state of the War on the Constitution Terrorism, we must bring up the specter of terrorism in order to   justify this attack on the Bill of Rights. After all, most of the lemmings will gladly sign over their freedoms if the state tells them that's the price of security.

But, back to the main point...

NATO was created during the height of the Cold War as a military tool for the capitalist nations of the West to counter the Soviet Union. NATO was used to suppress uprisings by leftist forces around the world. In 1989 the Soviet Union collapsed and the "threat" that NATO was created to counter vanished. But the military body continues to exist and is now used to provide political cover for the U.S. and its allies when Western countries intervene in the affairs of Third World countries such as Afghanistan.

Much as their are way too many law enforcement agencies operating in Harris County, there are too many armies operating around the world. NATO is an example of the enduring power of bureaucracy. There is no need for NATO, but still it exists without a mission.

And now this obsolete organization is being used as the excuse for clamping down on the Constitutional rights of protesters and citizens in Chicago.

How many innocent men must die?

You know it's happened. We all know it's happened. We all try to pretend that there is no way it could happen. But that's just a fantasy we create to get through the day.

The Columbia Human Rights Law Review has dedicated an entire issue to a case in Texas where it appears far more likely than not that the State of Texas murdered an innocent man. In 1989 Carlos DeLuna was strapped to a gurney and killed for the 1983 murder of Wanda Lopez. But a professor and his students have made a compelling case that Mr. DeLuna wasn't the killer.

Mr. DeLuna was convicted largely on the word of one eyewitness. And it turns out that the witness isn't so sure it was Mr. DeLuna he saw. The evidence uncovered by the law students points to another Carlos - Carlos Hernandez - as the murderer.

And if the law students are right - how does that change the way we think about the death penalty? Can we really trust twelve citizens to make the decision whether or not to take someone's life? What safeguards are there to prevent an innocent man from being executed?

Actual innocence isn't grounds for an appeal. There must be some procedural error in the record in order to overturn a verdict. Disagreeing with the verdict won't cut it.

The case raises questions about just what constitutes a fair trial. Is a procedurally fair trial that generates a wrong verdict (convicting a factually innocent man) actually a fair trial? And what does that say for our system of justice when a trial can be conducted by the rules and a jury still finds that a factually innocent man is guilty?

The answers are troubling indeed. If those things can happen, can we allow the state to take the life of an inmate under any circumstances? If we have no safeguards to prevent one innocent man from being convicted, can we, in good conscience, take a life?

Even if we assume that Mr. DeLuna is the only innocent man to be executed in the United States, isn't that one person too many? How do you balance the risk of murdering an innocent man with killing an infinite number of guilty men?: At what point does that one life no longer tip the scale?

We have seen too many examples of men who have watched their lives pass by in prison before being exonerated. There are few things worse than the knowledge that an innocent man has sat behind bars while the state does everything they can to keep him there. The knowledge that an innocent man was killed by the state is one of those things.

The scale of justice demands that we end the madness of the death penalty before another innocent person is put to their death. Enough is enough.

Click here to read Los Tocayos Carlos, the spring edition of the Columbia Human Rights Law Review.

Thursday, May 17, 2012

Talk back to METRO about the TSA

Once again it's time to voice your displeasure toward METRO's decision to ask TSA to send agents down to harass bus and rail passengers. During their time here last month, TSA agents kept their agency's perfect record in the War on the Constitution Terrorism. To date TSA has yet to detect one terrorist at any airport, bus station or train station in these United States.

The meeting will be held at 9am in the 2nd floor boardroom at METRO headquarters located at 1900 Main Street in downtown Houston.

The verdict was neither right nor wrong

A jury in Harris County found former Houston police officer Andrew Blomberg not guilty of official oppression in the beating of teenager Chad Holley back in 2010. Reaction to the verdict has been all over the map.

Local black leaders decried the acquittal equating it to racism. Police officers were happy as the acquittal makes it less likely that officers will face reprisals for excessive use of force. Mayor Annise Parker stated that while she didn't agree with the verdict she respected it.
“I certainly don’t agree with the verdict, and I support the chief of police in his actions in relation to these officers,” Parker said at her regularly scheduled press conference this morning. “They will never again be Houston police officers whatever the verdict is in the criminal trial.”
Over at the defense bar reactions were mixed. There are those who said the jury got it wrong and others who supported the verdict and cast aspersions on the integrity of those who dared question the jury.

I wasn't in the courtroom and I don't know what evidence the jurors heard and saw. I know what I think - but that doesn't really count for much. I also know that this debate on whether the jurors got it right or wrong is completely off-base. You see, verdicts aren't right and verdicts aren't wrong; they just are.
“They just said to African Americans, they just said black people, that white people can do whatever they want and get away with it,” Quanell shouted outside the courtroom as other activists screamed expletives. “They just sent a message that our lives don’t mean a damn thing.”
The same attorneys who think the jury got it right are the same ones who think another jury got it wrong when they convicted someone's client; and vice versa. When we debate whether the jury was right or wrong our opinions are colored by what we've read or heard about the case long before it went to trial. We base our opinions on our own experiences and through the prism of our own ideologies.

A juror has to make his decision based upon what he sees or hears in the courtroom. What that juror is seeing isn't reality - it's an artificial construct built by two forces in opposition to one another. That juror is going to be someone who hasn't followed a case too closely so he, presumably, doesn't sit down in the jury box with a prejudice, or a bias, toward one side or the other.

The six jurors in the Blomberg case did their civic duty, and, for that, I'm very appreciative. But they didn't get anything right. And they didn't get anything wrong. They simply made a decision.

And that's what it is.

Wednesday, May 16, 2012

Update: Court issues stay of execution

The Texas Court of Criminal Appeals stayed the execution of Steven Staley upon a motion from his attorneys arguing that the State of Texas was violating Mr. Staley's constitutional rights by forcibly medicating him so that he would be considered mentally competent to execute.

The state, on the other hand, argues that, due to Mr. Staley's severe mental illness, that it is in Mr. Staley's best interest to be forcibly medicated. Of course being executed could hardly be said to be in his best interest - but I'm certain that's just an oversight by prosecutors.

As usual, the state argues that there is this overarching need for "closure" in the case and that the only way to obtain this closure is to forcibly medicate Mr. Staley and then stick a needle in his arm and poison him.

Contrary to claims by Tarrant County prosecutors, killing Mr. Staley won't bring closure to anyone - the family of the victim will still be without their loved one. Killing Mr. Staley won't bring anyone back and it won't help anyone get over their loss.

More upheaval in Greece

Well, Ms. Merkel, it would appear that the Greek people just aren't having any part of your forced austerity measures.

Attempts to form a coalition government in Greece have failed miserably over the past week over the issue of the austerity measures imposed on the Greek people in order to funnel money back to European banks. The two establishment parties: New Democracy (center-right) and Pasok (center-left) are doing Ms. Merkel's bidding in trying to lead the Greek people into permanent recession by cutting government spending, wages and employment.

This is the same recipe the IMF has followed for the past three decades and there is not one success story the IMF can point to. Cutting government spending during an economic downturn is the best way to deepen a recession and cause a government to put the nation's assets up in a fire sale. The only beneficiaries of such a policy are the very banks lending the money to the government. The people suffer while the bankers dine on fine caviar, pate and sparkling wines.

With Syriza's refusal to participate in any government that refuses to reject the austerity measures the last government agreed to in order for the European banks to make more money, the country is looking at another general election next month. And that will be a general election in which Syriza looks to be the largest vote-getter.

The risk of default was priced into the bonds the Greek government issued to fund its day-to-day operations and, if the banks didn't stop to think about the risk (however unlikely) of a default, well, shame on them.

Tuesday, May 15, 2012

Execution Watch: 5/16/2012

The state that carries out more executions than any other state is ready to kill again...


STEVEN STALEY, 49. Convicted of murdering a restaurant manager during a 1989 robbery in Fort Worth, Mr. Staley is a paranoid schizophrenic whose severe symptoms have caused three previous execution dates to be withdrawn on the grounds that he was too mentally ill to understand the real reason he was being put to death. Mr. Staley's mental incompetence is so frustrating to people who want his death sentence carried out, he has been the subject of a court order to be forcibly medicated in order to make him sane long enough to qualify for execution. His childhood included a father who was an acute alcoholic and a mother who was so mentally ill, she once tried to drive a stake through his chest and, on another occasion, tried to stab him with a butcher knife. Once doctor who evaluated Mr. Staley said his symptoms included hallucinations, paralysis, depression (sometimes to the point of being catatonic) and delusional thinking. The U.S. Supreme Court has not prohibited the execution of mentally ill people, but it bars the execution of anyone so mentally incompetent they do not understand why they are being put to death.

For more information on Mr. Staley, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, May 16, 2012, 6-7 PM CT
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Monday, May 14, 2012

Where's the justice in that?

Scott Greenfield over at Simple Justice posted a very interesting piece on the abuse of mandatory minimums in federal drug cases. While one defense attorney, prosecutor turned defender of liberty, Jim Walden, argued that mandatory minimums were a useful tool - when used "properly" - in the War on Whatever Drugs; Mr. Greenfield pointed out that the problem wasn't how mandatory minimums were (or weren't) used, the problem was with the entire concept of mandatory minimums.
Yet again, we're asked to trust those in power to exercise it as they see fit.  Trust them. Believe in them. Don't worry our naive heads about it, as they will protect us from the evil people.  Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress' will, to exercise their vast but necessary power with mercy and discretion, fairness and equity. 
Except that's neither how the law works, nor is supposed to work.  The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary.  That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it's warranted is not a substitute for my vision of fairness and equity.   
It's not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent.  But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he's the one who deserves it.
And a recent example here in Texas makes Scott's case.

Meet Elisa Castillo. She's a 56-year-old first time offender who is serving life in a federal prison for her role in a drug smuggling operation. She was convicted for being the manager of the operation that smuggled over a ton of cocaine across the border into the United States on tour buses.

Probably not the wisest of business moves, I think we can all agree. But Ms. Castillo isn't a drug kingpin. She's never ordered the killing of anyone. She's never killed anyone. No one put a reward out for her arrest. But now she sits in a federal prison in Fort Worth where she will one day die.

The most notorious drug kingpins have never been sentenced to life in prison. Of course those farther up the food chain have something that Ms. Castillo didn't - information. She couldn't provide the feds with any information that proved useful in putting anyone else behind bars so she was of no use to federal prosecutors.

The latest case in point came this week with the negotiated surrender of a Colombian drug boss Javier Calle Serna, whom the United States accuses of shipping at least 30 tons of cocaine. 
While how much time Calle will face is not known publicly, he likely studied other former players, including former Gulf Cartel lord Osiel Cardenas Guillen. 
Cardenas once led one of Mexico's most powerful syndicates and created the Zetas gang. He pleaded guilty in Houston and is to be released by 2025. He'll be 57.

But, no matter how bad a man you are and no matter how many deaths you are responsible for, if you have some information to barter with, the US Attorney is more than willing to talk to you.
In 2010, of 1,766 defendants prosecuted for federal drug offenses in the Southern District of Texas - a region that reaches from Houston to the border - 93.2 percent pleaded guilty rather than face trial, according to the U.S. government. Of the defendants who didn't plead not guilty, 10 defendants were acquitted at trial. Also, 82 saw their cases dismissed.
Ms. Castillo had the unmitigated temerity to hold the government to its burden of proof. She claimed that she didn't know that cocaine was being smuggled on the tour buses. I have no idea what really happened - and neither did the jurors.

But because Ms. Castillo chose to exercise her right to a trial, she paid the ultimate trial tax.

That's right, Mr. Walden, let's just put our trust in the judgment of federal prosecutors - because we know they'll always do the right thing.

Sunday, May 13, 2012

Opposition to same-sex marriage may very well be moot

North Carolina just became the 12th state to outlaw same-sex marriage. At the same time the referendum last Tuesday night provided President Obama the impetus to come out of the closet in support of same-sex marriage.

With Mitt Romney having wrapped up the Republican nomination you could expect President Obama to move toward the center so as not to alienate the fence-sitters in November. But he didn't. He took a chance to set some distance between he and his competitor for the White House.

The only thing is that marriage is a matter for the states to handle. You know, that whole federalism thing. Besides, whether a presidential candidate is for it or against it, or whether a state spends a lot of money to hold a referendum to ban same-sex marriage, doesn't really matter in the end.

There are currently six states that recognize same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire and Vermont all permit same-sex couples to get married.Why is that important, you might ask? Because of the Full Faith and Credit Clause and the Equal Protection Clause of the Fourteenth Amendment.

My wife and I were married here in the Lone Star State. We can move to any other state in the United States and we're still married because each state is obligated to recognize a marriage from another state. If you stop and think about it, it makes sense.

And for that very reason, whether North Carolina, or any other state, wants to ban same-sex marriage, may not matter one little whit. If North Carolina is obligated to recognize the marriage of a heterosexual couple from, say, Texas, to deny recognition of a same-sex marriage from Vermont would seem to be a violation of the Equal Protection Clause.

Of course the impetus behind same-sex marriage isn't to have a fancy wedding and wear wedding bands. The real reasons behind the push for same-sex marriage are inheritance rights and access to health benefits. As to inheritance rights, the goal can be accomplished just as easily by holding property as joint owners with survivorship provisions and by making out a will leaving one's share of commonly held property to one's partner.

Now, while the idea of same-sex marriage has great appeal to some - just remember, where there's marriage, there's divorce.

Saturday, May 12, 2012

A new perspective on our solar system

This video is just way too cool. Check out how different planets would appear in the night sky if they were as close to the earth as the moon.

H/T Eric Berger, Houston Chronicle SciGuy, and Brad Goodspeed

Friday, May 11, 2012

Walking the walk

So what do you do if you're a repressive authoritarian regime and there's one of those pesky lawyers who just insists on defending accused murders, regime critics and infidels? Well, you certainly can't let that sorry so-and-so get in the way of dispensing your brand of justice, can you?

The next thing you know he'll be convincing folks they have rights of some sort and that sometimes when you've got nothing to lose you might just have a chance of winning.

If you're the Iranian government and the lawyer in question is Mohammad Ali Dadkhah you toss him in jail for nine years and ban him from practicing law for another ten years to shut him the hell up. One of Mr. Dadkhah's most recent clients was a Christian pastor on death row for apostasy.

The regime has accused Mr. Dadkhah of acting against the nation's security, spreading anti-regime propaganda and keeping banned books in his house. His real "crime," however, was fighting for human rights. He is the fifth member of Iran's Defenders of Human Rights Center to find himself on the wrong side of the bars.

Yes, we complain because judges won't listen to our arguments. We get upset because the prosecutors wearing the black dresses do everything they can to undermine our cases. We get mad because the courts treat our clients like their guilty unless we can prove otherwise.

But at least we don't have to worry about being tossed in the can because we're willing to stand next to the most unsympathetic person in the courtroom. As bad as things are here at least we get to go home when it's all over.

As the National Association of Criminal Defense Lawyers reminds us, criminal defense attorneys are liberty's last defender. We are the voice for the people society has forgotten. Sometimes we are the only people willing to stand in the face of the power of the state - much like that young man who stood in front of the tank in Tiananmen Square.

Mr. Dadkhah was willing to do just that. And now he's paying the price.

See also:

"First thing we do, let's kill all the lawyers," Gamso for the Defense (May 10, 2012)

A convenient leak

Bad economic news.

Race for Republican nomination down to one.

Growing discontent over the security state.

Must be time for another terrorist plot to be uncovered and leaked to the media.

Oh, but am I being too cynical about the timing of this story about how a plot was uncovered to use an advanced underwear bomb to blow up an airliner? A bomb that could not be detected at an airport security check. According to American intelligence sources there was never any danger of the bomb being used on a plane. The would-be bomber was a Saudi double agent who had infiltrated al Qaeda.

So let's get this straight. TSA has effectively made airports a 4th Amendment-free zone. Would-be passengers are forced to choose between a full-body scan that may or may not expose folks to potentially dangerous levels of radiation or a friendly pat-down from the government's own hired pervert. And yet, despite these measures that have seen Americans acting like lemmings, a person could have walked right onto the plane with Underwear Bomb 2.0?

The story was leaked to convince Americans that we must continue to cede our privacy and our liberty to agents of the state for our own protection. The story was leaked to convince Americans that the war on everything terror is being won. The story was leaked to convince Americans how important it is to have the TSA intruding upon our private lives. The story was leaked to convince Americans that it's more important to trade our freedom for security than it is to provide jobs for the unemployed.

All of the security measures at the airports are fighting yesterday's attack. Unless we're going to have people traveling naked, there will never be a way to make the airlines perfectly safe. We can sacrifice all the freedom in the world but it will never buy us complete security.

And who is left to question any of this? The mainstream media is too busy falling over itself to sell the government's story. There are no critical voices left except for those deemed on the fringe. Our liberty is being taken away piece by piece and no one questions the actions of the state. The media, who used to be our watchdog, is now a lapdog controlled by corporate interests who are more interested in jacking up advertising rates than in acting as a check on the power of the state.

We get what we deserve.

Thursday, May 10, 2012

Valley guy

Only down in the Valley would a public official under federal indictment not only refuse to step down from his office but would continue his run for a seat in the US Congress. If I didn't know better I'd swear that Cameron County, Texas was actually east of the Sabine.

While we're able, however, we should all raise a toast to Armando Villalobos, the elected district attorney of Cameron County, for providing us with endless amusement. You see, Mr. Villalobos was indicted along with his former law partner for allegedly bribing a former state District Judge.

How exactly Mr. Villalobos intends to run his office with any degree of integrity is beyond me. Does it get any better than when the top prosecutor in a county is under federal indictment for a crime of dishonesty? And then the fact that he insists on continuing in the race for the Congressional seat in the 34th District is priceless.

Did he do it? Is he a crook? Is he guilty? I have no idea. He is innocent unless proven guilty at this point -- even though most prosecutors don't quite understand the subtlety of that point. Might this lead to a seismic shift in how prosecutors treat the accused in South Texas? Will Cameron County prosecutors sit through CLE classes reminding them that the defendant - even the one in jail - is an innocent man?

Probably not.

Maybe at the end of the day we'll hear a certain someone explain that he had a few momentary lapses of judgment or that maybe he had been hitting the pain killers or the booze a little too hard because of some personal problems. Hell, I guess he could claim just a youthful indiscretion or maybe that he was just caught up with the wrong people. Surely he learned his lesson and won't do it again (well, since that's the accepted way of doing business in Washington, maybe he won't say that).

Heaven forbid one of the hoi polloi be accused of shoplifting or carrying a joint. We just can't tolerate such blatant lawbreaking as that now, can we?

Survey says...

Oh, are there ever some Texas prosecutors with some seriously ruffled feathers after Judge Barbara Hervey of the Texas Court of Criminal Appeals sent out a survey on dealing with Brady issues to prosecutors around the state.

The survey posed a series of hypotheticals and asked prosecutors how they would handle the situation. The correct answer is quite clear when you read the scenario, but many prosecutors, particularly Lee Hon (the Polk County District Attorney) were quite concerned about the survey.

Well of course prosecutors are concerned about the questions. If they did the right thing when confronted with the scenario presented there would be no case to prosecute. And, with no case to prosecute, there would be no big sentence imposed and no nice quotes in the local newspaper. Hell, if the prosecutor worked for Pat Lykos in Harris County there might be no bowling on Friday afternoon.

Here are the hypotheticals from the survey.
Scenario 1: Police converse with murder suspect 30 times, recording each conversation. The defendant confesses to the crime, and the entire case is built around that confession. Police do not reveal tapes despite the defense that the suspect was coerced. A few days after conviction, in a casual meeting with the arresting police agency, you are asked if your office "needs" the tapes. What do you do? 
Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense? 
Scenario 3: A complainant dies before trial. The State's case would heavily rely on the complainant's testimony. Do you inform the defense? Discuss. 
Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense? 
Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss.
Seriously, you mean a prosecutor might need to listen to tapes that might provide evidence that a confession was coerced? Of course the bigger question is why the tapes weren't produced to the defense prior to trial.

Scenario 3 shows up in various shades every day in courthouses around the country. Most commonly in domestic violence cases when the complaining witness either isn't talking to prosecutors or has vanished. Prosecutors just love playing the bluffing game. I once had a prosecutor offer my client time served on a DWI with a breath test of .15. When my client said no thanks, the prosecutor dismissed the case because the arresting officer couldn't be bothered to show up in court that morning.

And doesn't Scenario 5 look just a little bit familiar?

Troubling questions indeed.

Wednesday, May 9, 2012

Overfederalization? What overfederalization?

Susan Klein, a law professor at the University of Texas, wants you to know that all these claims that criminal law has been over-federalized is just a bunch of bunk. In a paper to be published in the Emory Law Journal in September, Ms. Klein posits that even though the number of federal crimes on the books have increased dramatically and even though federal caseloads continue to rise, most of the cases on the courts' dockets are dope and immigration cases.

Now, before we go any further, it might behoove y'all to know that Ms. Klein is a professor of criminal law at UT-Austin (hard to believe that the law school tucked right behind the 40 acres would dirty its hands with that type of law, isn't it) and she teaches a seminar with the chief AUSA for the Austin Division of the Western District of Texas on how to prosecute federal offenses.

The program places students as interns in the US Attorney's Office in Austin where they must learn all the wonderful ways in which the Federal Rules of Criminal Procedure reduce most federal prosecutions to pleading guilty and trying to get a downward deviation on the sentencing guidelines that are supposed to be advisory.

Training them as prosecutors in the federal courts will give them good experience in pleading their clients out once they step into a courtroom. No need to risk a long sentence when we can just plead guilty and negotiate on the time, huh? You didn't do it? Are you kidding me? If you want the judge to be lenient you have to take responsibility for your actions. Look, if you aren't willing to take my advice and plead this case out today, I think I might just need to withdraw because you are just impossible to work with.

But I digress.

The federal courts are the proper bailiwick for immigration matters. But, unless I'm mistaken, most every state in the union has laws on the books making it a crime to possess marijuana, narcotics or other controlled substances. Even if Joe Blow is trying to take his trunkload of coke across the Sabine into Louisiana, he's violating the laws of at least two states. No need for los federales to get involved - just let Texas or Louisiana charge him.

The same holds true for most federal crimes. There is absolutely no need to prosecute people on federal charges when the state is more than capable of filing the case.

I once represented a man on a motion to revoke probation in a dope case. He was riding in a car with a man who was being investigated by the feds for smuggling dope. The pair was arrested and charged with possession of a controlled substance by a local law enforcement agency. After he plead out and was placed on probation (first attorney), he was then indicted by the feds for the same exact conduct. His attorney in the federal case pled him out and he went to prison for a few years. While in federal prison he, understandably, missed a few meetings with his probation officer, didn't do his community service and fell behind in his child support payments. Once he was released from federal prison he was served with a motion to revoke his probation.

It was beyond absurd. And, since the charges were filed by the state and by los federales, double jeopardy did not attach. There was no need for the feds to get involved. He was already being punished for his conduct.

The federal criminal (in)justice system has gotten much too big for its britches. If a crime can be properly charged in a state court for the alleged conduct, the feds don't need to be involved. If that means there isn't as much a demand for AUSAs, I'm sure there are some misdemeanor and felony courts that could use someone to handle the mass pleas on Monday mornings.

H/T Doug Berman

Profits over free speech

Free speech? Are you kidding me?

We've got the annual shareholders' meeting for Bank of America this week and the Democratic National Convention in August. Do you seriously expect us to allow the unwashed masses to yell and scream and protest the actions of Bank of America and the United States government?

What planet are you from?

It's government of, by and for the people. Well, to be a bit more exact it's of, by and for the corporate person as declared by the nine in black gowns.

From the Huffington Post:
Charlotte City Manager Curt Walton said Monday that citizens would be banned from carrying a host of commonplace items, including bicycle helmets, padlocks and permanent markers, along with weapons, mace, pepper spray and pipe. The rules also ban any animals that are not part of an official parade or working as service animals during the protest. Since violation of the ban within a designated protest area would be considered grounds for arrest, local citizens could be jailed for simply walking their dogs on May 9. Anyone carrying a backpack or a briefcase with the intent to hide any prohibited items can also be searched or arrested, as can anyone wearing a scarf or a mask with the intent to hide her identity.
That's right. We can't possibly have people around the country think a bunch of long-haired radical hippies live in Charlotte. This is America, baby. We're all red, white and blue and supporting big corporate banks and our government's desires to kill innocent civilians abroad in the name of drumming up political support for a re-election bid.

We're all for capitalism here. And not just that Adam Smith-style capitalism. That's too damn quaint and old-fashioned. Nope. We're in favor of global corporate rape of people and resources for profit. We're all for bundling up bad mortgage debt and unloading it on unsuspecting gamblers investors. That's what made this country great, you know. We need more ruthless industrialists who are willing to get rid of anything standing between them and a pot of gold.

And so fucking what if these little whining malcontents can't bang their drums or blow their horns or scream their heads off. What's the big deal, anyway? They need to be reasonable. We can't have people in the streets protesting around the clock. I mean, people have to get to work and shareholders and delegates have to get back to the important business of screwing everyone in sight. Get a job for chrissakes!
The new anti-protest rules were originally approved by Charlotte City Council in January in preparation for the Democratic National Convention, but also include a ban on public camping which resulted in the eviction of the city's Occupy demonstrators. The council granted the City Manager the power to designate any event an "extraordinary event," which the ACLU worries will chill free speech. The police response to the May 9 protest will prime expectations for the September National Convention, which is expected to be the focal point of much larger demonstrations. While the rules state that people arrested at protests can be exonerated if found to be possessing items "legitimately," or for never using the items violently -- intensive searches and arrests could nevertheless stifle protests.
Oh that First Amendment can just be so damn inconvenient at times, can't it? Cities such as Charlotte are willing to bend over backwards to protect the image and interests of corporations and politicians at the expense of the people. The idea is to present this picture to the world that we all think (and look) alike. We're all on the same team, you know.

Except that both the Bush and Obama administrations were all too willing to hand out bags of cash to the banks to keep them from going under (and so the folks running the show could afford to pay themselves their huge bonuses for running their banks into the ground) but no one could be bothered to lift a finger to help the millions of Americans drowning in mortgage debt. Debt that was thrust upon them by the banks we bailed out. Bad debt that brought down the economies of the western world.

Best not to remind the people out in TV land that the economy is screwed up beyond belief because the federal government decided to let the corporate interests do whatever the hell they wanted to do. All that campaign money rolling in from the very corporations that sank the economy. And let's not beat around the bush about it - they were bribes. Corporations don't fund campaigns because they think Mr. Smith will do some good in DC; they fund campaigns because they want something back in return.

And you know that we can't possibly allow their choreographed shows to be ruined by those people in the streets pointing out that the emperor isn't wearing any clothes.

Tuesday, May 8, 2012

Maybe those unwritten rules should be written down somewhere

Is there any endeavor in life that has more unwritten rules than baseball?

If you're at bat you better not look back to see where the catcher is set up. You better not crowd the plate like you own it. If you hit a homer, just put your head down and trot around the bases.

If you're on the mound and you see the batter look back - you hit him. If he's crowding the plate - pitch him high and tight to move him back. If he shows you up after knocking a dinger - someone's getting hit.

On Saturday night in Washington, the Nationals' young phenom, Bryce Harper, took one for the team from Cole Hamels of the Philadelphia Phillies. Why? Because Mr. Hamels decided that Mr. Harper needed hitting because he was a rookie and he was on fire.


What unwritten rule did Mr. Harper violate?
"That's something I grew up watching, that's kind of what happened. So I'm just trying to continue the old baseball because I think some people are kind of getting away from it. I remember when I was a rookie the strike zone was really, really small and you didn't say anything because that's the way baseball is," Hamels said.
So, let me get this straight, Mr. Hamels. You're upset because you think Bryce Harper is working the umpires to get better calls? You're upset because umpires called a very tight strike zone when you got to the Show? No shit, Cole. The microscopic strike zone is one of the reasons for the deluge of home runs in the 90's. Well, that and tiny ballparks, short fences and steroids.

Cole Hamels stepped over the line - and compounded it by admitting he plunked Mr. Harper intentionally. What Mr. Hamels did on Saturday night would be more correctly referred to as an assault. There was no good excuse for what happened and Mr. Hamels earned his suspension.

At least Mr. Harper showed some class after he was hit in the back. He tossed his bat, put his head down and took his base.

Juvenile judge critical of public defender

Well here's a surprise - a judge who doesn't care for the Harris County Public Defender's Office. Could it be that Judge John Phillips (presiding judge over the 314th Judicial District Juvenile Court) doesn't like not being the one pulling all the strings in his courtroom?

His argument is that it costs more money to use the PD's office to represent an indigent juvenile that it does to use a court-appointed attorney. That statement may or may not be true. Alex Bunin, the head of the PD's office, claims the numbers Mr. Phillips is using were based on a feasibility study and that the actual numbers are comparable.

Maybe the real issue is that with a fully funded PD's office there is a real check on the power of the bench and the DA's office in juvenile court. No longer can the DA and the court gang up on a defendant and force him to enter a plea.

Of course Judge Phillips can no longer favor his friends and supporters with court appointments and that seems to have the surprising effect of reducing the number of quick pleas in his court. Mr. Bunin has assembled, quite possibly, the best criminal defense firm in Texas over the past year and they have the time and energy to fight against injustice. And, for at least the next three years, the funds.

I have never believed that the Harris County PD's Office was set up by county commissioners to provide a powerful advocate for indigent defendants. I believe the office was set up because enough questions had been raised about both the level of competence and cost of the appointed system used in most Harris County courts. The PD's office was seen as a more economical way of obtaining mass pleas while providing cover for the county under the Fair Defense Act.

With the staggering number of reversals on appeal and trial wins by the PD's office, it will be interesting to see what happens when the county is left footing the bill for the office. How enthusiastic with county commissioners be to write a check to pay for a group of attorneys who will actually put up a fight? Is the purpose of the PD's office to provide an effective defense for the indigent - or to plead more cases on the cheap?

We'll know the answer when the grant money runs out.

Monday, May 7, 2012

DPS makes it harder for immigrants to obtain a driver's license

Starting today anyone who wishes to obtain a Texas driver's license must present proof that they have been residing in the State of Texas for at least 30 days. The 30-day requirement would be waived for anyone surrendering a valid out-of-state driver's license - but they would still have to show proof of residency.

The requirement of a 30-day residency is courtesy of a change to the Texas Administrative Code last April. The change is clearly intended to prevent immigrants from obtaining a Texas driver's license. As many immigrants move in with family members and friends they don't have insurance or utility bills in their names. As many immigrants operate in a cash economy, they don't have bank accounts.

The 30-day requirement only means that there will be more folks out on the roadways who will be breaking the law every time they get behind the wheel to drive to work. It seeks to deprive immigrants of the ability to obtain a valid picture ID.

Instead of creating a group of criminals by fiat, the state should be looking at ways to integrate folks into our society. Regardless of how you feel about illegal immigration, preventing newly arrived immigrants from obtaining a driver's license isn't going to solve any problems. It will just increase the number of people on our roads with a license or insurance.

Let the show trial begin

The long-awaited military trials of the alleged masterminds of the 9/11 hijackings commenced this weekend at Guantanamo. Khalid Shaikh Mohammed and four other defendants sat in silent protest during the hearing - refusing even to enter pleas.

The five men are being tried before a military tribunal in order to get around those pesky little concepts like confrontation, discovery and the prohibition on torturing suspects.

Had Mr. Mohammed and his co-defendants been brought before a criminal court the prosecution would have lots of questions to answer about the treatment that the men received in prisons in other parts of the world at the hands of the United States. Had this case been brought before a criminal court, the defendants would have the right to request documents in the possession of the government that would be relevant to the defense.

The military prosecutors are tied into the ongoing torture of so-called enemy combatants. Their presence serves to justify the actions of the U.S. government. Their participation in the process also violates the oaths they took when they received their law licenses.

When you are sworn in as an attorney you take an oath the uphold the laws of the state in which you live, the laws of the United States and the Constitution. Included in the laws of the U.S. are international treaties - including the Geneva Convention's banning of torture. Included in the Constitution is the Eighth Amendment and its ban on cruel and unusual punishment.

The U.S. obtained evidence it intends to use against Mr. Mohammed through the use of torture. Mr. Mohammed was tortured. His co-defendants were tortured. Most of the men detained by the government were tortured - either by American interrogators or by security forces in other countries at the behest of the U.S. government.

Military prosecutors will be using evidence obtained by illegal means. Military judges will allow evidence obtained by illegal means to be admitted into evidence.

Military prosecutors will withhold documents from defendants on the grounds that the release of the documents could be harmful to U.S. security. Military judges will look at the defendants and say they are sorry but the requests to review the documents must be denied.

The entire process will be a joke and an insult to the generations of people who have given their lives to defend the Constitution. Every military prosecutor and military judge who takes place in the proceedings should be disbarred from the practice of law.

But that would require some integrity and that's something that has been sadly lacking from the U.S. since this entire sorry episode in our history commenced.

Sunday, May 6, 2012

Will profits triumph over people?

Today voters in France and Greece go to the polls in the first elections since austerity measures were imposed. The situation in Greece is far more dire than in France. The unemployment rate in Greece is among the highest in Europe and the people are suffering from drastic austerity measures as part of an agreement the Greek government made to pay back international banks and investors. Unemployment rates for young people in France is bad (though not as bad as in Spain) and the economy is just grinding along.

The choice is clear for voters: people or profits. Drastic cuts in government spending and increases in taxes are choking the poor and middle classes. Those affected by the policies are those least able to absorb the sudden shock.

Banks and investors poured money into Europe over the last decade - lured by good interest rate spreads. Now for those of y'all not familiar with how interest rates work, here's a quick primer. Interest is the cost of borrowing money. The theory being that there are many things I can do with the money in my pocket and if I lend it to you instead of using it myself then I have lost the immediate use of that money. To compensate me for the things I can't do since I don't have the money in my pocket, you will make an additional payment, called interest. The amount of interest I charge you depends on how likely I think you are to pay me back on time. The more likely you are to pay me, the less I charge. The more I feel you might not be able to pay me back, the more I charge.

The other factor to consider is inflation. If the money I lend you today is likely to worth less when you pay me back, I will have to charge you more to make up for the lost value. On the other hand, if there is little inflation I will charge you less.

The difference between the interest rate and rate of inflation is called the spread. The higher the spread, the more profitable the loan should be.

Banks and investors bought Greek bonds because they looked at the expected spread and thought they could make a handsome profit - either because they anticipate inflation to be lower than predicted or because they thought the Greek government was promising to pay more in interest than the anticipated risk.

Well guess what. It turned out the Greek government wasn't promising enough of a risk premium and that banks and investors underestimated the chances of Greece not paying them back. That, my friends, is part of capitalism. If all investments were safe then the long term interest rate would equal the long term inflation rate. If that were the case then no one would lend money because there would be no profit to be made.

The imposition of austerity measures across Europe are the mechanism by which large banks and international investors can extort their profits from the European working class. These investors knew the risks of lending money and, instead of licking their wounds and looking for the next opportunity to exploit, they are using politicians in Germany and France to force those who can least afford it to boost their bottom lines.

Saturday, May 5, 2012

An app to fight profiling

Think you're being profiled by TSA personnel at the airport while you wait in line to board that plane? Well, now there's an app for that.

On Monday the mobile app Fly Rights became available for download. If you suspect you're being profiled you can open the app, answer a few questions and send a complaint to TSA (for filing in the cylindrical container under the desk, I'm sure).

The app was developed by the Sikh Coalition who came up with the idea when Sikhs living in Silicon Valley approached them about their fears they were being profiled in airports. Of course, TSA denies any claims that passengers are profiled; but we're not blind to reality. Passengers who "look" or "dress" Arab are more likely to be picked on than the next guy; just as a black or Hispanic male is more likely to harassed by the police on any given night.

And these are the same goons METRO decided to bring in to our fair city last month to harass folks who rode the bus. Well, that's not exactly true. METRO decided to subject black and Hispanic folks who rode the bus and not those who took the Park and Ride buses in from the suburbs. But that's probably just an unfortunate coincidence, wouldn't you say?

Yes, there is a need to make certain that air travel is safe for the flying public. But, if you take out the hijackings on 9/11, airline passengers have more pressing concerns than their plane being hijacked.

TSA security measures are overkill - and they are aimed at the last incident. The same holds true for most of our safety devices. We are looking to protect ourselves from what happened the last time. The police state the government has installed in our airports hasn't made up any safer.

It has been an interesting exercise in how willing the American people are willing to give up their privacy just for the asking. I haven't been on a plane since 2004 - before the most stringent security measures were enacted - and I have no intention of boarding a plane anytime soon. I don't feel the need to be a lemming.

Friday, May 4, 2012

Bully in a robe

Last June Michael Giacona got behind the wheel of his van after drinking and ended up in an accident that claimed the life of Aaron Pennywell. Mr. Giacona was charged with a misdemeanor DWI because investigators could not determine who was at fault for the accident.

As part of a plea, Mr. Giancona was sentenced to one year in the Harris County Jail. After 90 days, Judge Michael Fields ordered that Mr. Giancona be released from jail and placed on probation. The terms of that probation included standing at the intersection where the accident occurred on four consecutive Saturdays wearing a sign that said "I killed Aaron Pennywell while driving drunk."

On the first Saturday of his public humiliation, Mr. Giacona was confronted by hostile passers-by and passing cars. It seems that Judge Fields' idea of punishment was to expose Mr. Giacona to bodily injury. Sanity later prevailed in County Criminal Court at Law No. 14 and Judge Fields suspended the public humiliation.

As part of the terms of probation, Judge Fields also ordered Mr. Giacona to write a letter to Mr. Pennywell's parents apologizing for killing their son. This past Wednesday, Mr. Giacona told Judge Fields that he would rather return to jail than apologize to Mr. Pennywell's parents.

Now let's remember that the Harris County District Attorney's Office didn't charge Mr. Giacona with intoxication manslaughter because they couldn't prove that the accident was the result of Mr. Giancona driving while intoxicated. In other words, no one could determine - beyond a reasonable doubt - who was responsible for the accident. While his refusal to apologize does not make Mr. Giacona a sympathetic figure, following the judge's order would result in an admission of fault for the accident. That admission of fault would (all but) guarantee a recovery in a civil suit for wrongful death.

But that's nothing to ordering a man to humiliate himself and expose himself to injury. Judge Fields' order that Mr. Giacona must stand at the intersection holding a sign announcing that he killed Mr. Pennywell does nothing to further justice. The purpose of punishment in our criminal (in)justice system is to rehabilitate, deter or punish. It is not to humiliate a person. The order to carry the sign was gratuitous. It was a way of telling a defendant that I can make you do whatever I want you to do - and you can't do a damn thing about it. Judge Fields was angry that Mr. Giacona couldn't get more than a year in the county jail. Oh well. A judge's job is to act as an impartial arbiter at trial and, if requested, to order a punishment that is appropriate under the circumstances.

Whether the judge approves of the charge filed against the defendant is of no concern. Imposing a harsher punishment because you think someone should have been charged with a more serious crime is wrong. Ordering someone to humiliate themselves is the act of a bully.