While there is reason for death penalty opponents in Texas to be happy thanks to the Court of Criminal Appeals' stay of the scheduled execution of Marcus Druery, there is troubling news from around the world.
In Mali, an unmarried couple were buried up to their necks and stoned to death for having sex outside marriage. The death penalty was ordered by Islamists who control large swaths of northern Mali following a coup earlier this year brought about by the army's inability to quell a rebellion in the north of the country.
The stoning was witnessed by some 200 people who watched as rocks were thrown at the couple's exposed heads. The woman fainted after the first few blows while the man shouted once and then fell silent.
Over in Iran four men were sentenced to death for their role in a banking scandal that threatened to bring down Iranian president Mahmoud Ahmadinejad. During the rush to privatize state-owned enterprises an investment bank forged documents in order to obtain loans from various banks. Two other men were sentenced to life in prison and 33 other men were sentenced to at least 25 years behind bars.
It is troubling enough that our government feels the need to satiate the blood lust of the public and kill inmates convicted of murder. The death penalty serves no other function than revenge - and even then it does a poor job. The death penalty brings no closure as the family and friends of the victim are still left with a hole in their lives. The death penalty also eats up precious resources due to the amount of money the state is forced to spend to prosecute a death case as well as to provide an attorney for the accused. Then there is the cost of housing the inmate in solitary confinement in a special unit.
But the state-sponsored murder of someone accused of theft or drug trafficking or having sex without being married is beyond appalling.
The use of murder to enforce religious tenets is the sign of a failed religion. It is also a perversion of the supposed moral underpinnings of religion. Ironically enough it was Jesus who supposedly uttered the famous line "let he who is without sin cast the first stone."
I guess I could get up on my soapbox and write about the ways in which religion is used as a tool by the ruling class to keep the masses subjugated. I could write about how religion is used by the ruling class to keep the masses docile and waiting for their supposed heaven on earth after death rather then fighting for their piece of the pie while they can still eat it. But that's a topic for another day.
Besides, killing a thief or a young couple who slept together violates the tenet most used to justify the death penalty in this country - an eye for an eye. There is no justification for the state-sponsored murder of someone who didn't take another's life (not that there's any justification for it in that circumstance, either). In the case of northern Mali and Iran, the death penalty is being used as a means of keeping the population under control.
And while we don't kill inmates for non-capital crimes in the United States, our continued use of the death penalty puts us in the same category of nations as Mali, China and Iran. Is that really the company we want to be associated with?
Tuesday, July 31, 2012
Monday, July 30, 2012
High court stays execution of mentally ill inmate
On Friday the Texas Court of Criminal Appeals did what a Brazos County state district judge was unwilling to do. It stayed the scheduled execution of Marcus Druery.
Mr. Druery was convicted of the 2002 murder of Skyyler Browne in Brazos County.
Earlier in the week, Mr. Druery's attorneys asked Judge J.D. Langley to stay the execution on the grounds that Mr. Druery was not competent to be executed due to his suffering from schizophrenia. Judge Langley quietly folded his hands, pinched the top of his nose, looked down at the attorneys, harumphed and said "no can do." (Okay, I made that part up.)
The question raised by Mr. Druery is whether it's cruel and unusual for the state to murder someone who has little understanding, due to a mental illness, that he is being killed.
Those in favor of the execution would argue that the only time a defendant's mental state is an issue is at trial - is he competent to stand trial and/or was he legally insane at the time of the offense. Whether he understands anything that's going on after his trial is not relevant to the plans of the state to murder him.
On the other hand, if the point in killing inmates is to punish the inmate and deter anyone else from acting in the same manner, does killing a man who can't grasp what's going on make any sense? If a person doesn't understand his life is being ended as punishment for killing another, is he really being punished?
We require a defendant to be aware of the reason he was arrested and why he's going on trial. We require that a defendant be capable of assisting his attorney in his defense. We require that a defendant entering a plea understand the legal rights that he is waiving. We require that the state prove the defendant possessed the appropriate mental state associated with the charged offense.
Where is it written that those due process safeguards vanish once a jury files back into the courtroom and pronounces guilt?
Mr. Druery was convicted of the 2002 murder of Skyyler Browne in Brazos County.
Earlier in the week, Mr. Druery's attorneys asked Judge J.D. Langley to stay the execution on the grounds that Mr. Druery was not competent to be executed due to his suffering from schizophrenia. Judge Langley quietly folded his hands, pinched the top of his nose, looked down at the attorneys, harumphed and said "no can do." (Okay, I made that part up.)
The question raised by Mr. Druery is whether it's cruel and unusual for the state to murder someone who has little understanding, due to a mental illness, that he is being killed.
Those in favor of the execution would argue that the only time a defendant's mental state is an issue is at trial - is he competent to stand trial and/or was he legally insane at the time of the offense. Whether he understands anything that's going on after his trial is not relevant to the plans of the state to murder him.
On the other hand, if the point in killing inmates is to punish the inmate and deter anyone else from acting in the same manner, does killing a man who can't grasp what's going on make any sense? If a person doesn't understand his life is being ended as punishment for killing another, is he really being punished?
We require a defendant to be aware of the reason he was arrested and why he's going on trial. We require that a defendant be capable of assisting his attorney in his defense. We require that a defendant entering a plea understand the legal rights that he is waiving. We require that the state prove the defendant possessed the appropriate mental state associated with the charged offense.
Where is it written that those due process safeguards vanish once a jury files back into the courtroom and pronounces guilt?
Saturday, July 28, 2012
This old courthouse: Chicken ranch edition
Back in May my wife and I took a trip out toward the Hill Country. One of our stops was in La Grange - home of the infamous Chicken Ranch. It's also home to the beautifully restored Fayette County Courthouse.
Construction on the courthouse, built in the Romanesque Revival style, was completed in 1891. The building was renovated to its former glory in 2003-2005.
If the interior looks familiar, it's because James Reiley Gordon, the architect that designed it, also designed the beautiful Victoria County Courthouse we looked at a few weeks ago.
And, should you get hungry while you're at the courthouse, head across South Main to Bistro 108 for some unbelievably good food.
Construction on the courthouse, built in the Romanesque Revival style, was completed in 1891. The building was renovated to its former glory in 2003-2005.
If the interior looks familiar, it's because James Reiley Gordon, the architect that designed it, also designed the beautiful Victoria County Courthouse we looked at a few weeks ago.
And, should you get hungry while you're at the courthouse, head across South Main to Bistro 108 for some unbelievably good food.
Here's a shot of the obelisk out front and the 100 foot tall clock tower.
Here's a closer look at the facade. I love the use of different stones around the arch.
They don't make courtrooms like this anymore.
This is a shot of the balcony overlooking the courtroom (not the best picture I've ever taken).
This is a shot of the gallery in the darkened courtroom.
Looking up through the glass roof above the atrium.
And who's that dashing gentleman standing in front of the atrium fountain?
Friday, July 27, 2012
Jumping the gun
After spending days telling everyone who would listen that he thought James Holmes should get the death penalty for the massacre in Aurora, Colorado, lawprof Douglas Berman quoted an article stating that the death penalty is far from a certainty in the Holmes case.
Aside from the fact that most of Mr. Berman's posts are nothing more than the aggregation of articles from various sources regarding sentencing, the takeaway from the article is that there is an entire process that must be undertaken between arrest and sentencing to determine one's fate.
In his haste to be quoted, Mr. Berman seems to have forgotten that before we sentence someone in this country it is usually customary to hold a trial (or enter a plea) before anyone gets a chance to sate their bloodlust (see here and here).
For every shocking crime story that hits the news channel or the internet there seems to be a need for someone to stand up and pronounce sentence before we've even determined whether the alleged baddie is, in fact, the bad guy. It is a race to the microphone (or the keyboard) to proclaim to the world that the suspect de jour should get the needle or a thin mattress and metal bunk.
There's no need to analyze the evidence. No need to determine if the suspect had the proper mens rea for the alleged offense. No need to look at any mitigating factors. Nope. Time is of the essence. We must pronounce sentence now before the next big story knocks this one to the back page.
We are so attuned to the one-hour crime procedurals in which we go from crime to arrest (plus commercials) in just 60 minutes. But that's not how it works in real life. There are arraignments, pointless non-issue settings, motions hearings and pretrial conferences before we even get to trial.
People line up in front of the television cameras and claim they want "justice" now. Justice for what? Justice for whom? Do they really want Mr. Holmes and his attorneys to take advantage of the due process rights guaranteed him by the Bill of Rights? Are they prepared to accept a court's ruling in the event that Mr. Holmes' didn't possess the proper level of mental culpability?
Probably not. They want their friends, relatives and loved ones back. I don't blame them. But nothing that happens from this point forward will ever do what they want. Twelve people are dead and they will remain that way regardless of how this case finally works itself out.
Aside from the fact that most of Mr. Berman's posts are nothing more than the aggregation of articles from various sources regarding sentencing, the takeaway from the article is that there is an entire process that must be undertaken between arrest and sentencing to determine one's fate.
In his haste to be quoted, Mr. Berman seems to have forgotten that before we sentence someone in this country it is usually customary to hold a trial (or enter a plea) before anyone gets a chance to sate their bloodlust (see here and here).
For every shocking crime story that hits the news channel or the internet there seems to be a need for someone to stand up and pronounce sentence before we've even determined whether the alleged baddie is, in fact, the bad guy. It is a race to the microphone (or the keyboard) to proclaim to the world that the suspect de jour should get the needle or a thin mattress and metal bunk.
There's no need to analyze the evidence. No need to determine if the suspect had the proper mens rea for the alleged offense. No need to look at any mitigating factors. Nope. Time is of the essence. We must pronounce sentence now before the next big story knocks this one to the back page.
We are so attuned to the one-hour crime procedurals in which we go from crime to arrest (plus commercials) in just 60 minutes. But that's not how it works in real life. There are arraignments, pointless non-issue settings, motions hearings and pretrial conferences before we even get to trial.
People line up in front of the television cameras and claim they want "justice" now. Justice for what? Justice for whom? Do they really want Mr. Holmes and his attorneys to take advantage of the due process rights guaranteed him by the Bill of Rights? Are they prepared to accept a court's ruling in the event that Mr. Holmes' didn't possess the proper level of mental culpability?
Probably not. They want their friends, relatives and loved ones back. I don't blame them. But nothing that happens from this point forward will ever do what they want. Twelve people are dead and they will remain that way regardless of how this case finally works itself out.
Thursday, July 26, 2012
Have you seen this meter?
You gotta hand it to Mayor Annise Parker. She, and her colleagues on City Council, have come up with a brilliant way to raise additional revenue for the city without raising taxes or cutting services. In fact, implementing the plan saves the city money on supplies, as well.
And just what is this new revenue stream you might ask? Not refilling the paper rolls in the electronic parking meters downtown.
If you see this meter, remain calm. Don't try to apprehend it by yourself. Please call the authorities at once.
Just think about it. Someone puts their money into the machine (no record of that transaction, is there?) or slides their credit or debit card in the slot to pay to park. Then, instead of printing out a receipt with an expiration time on it, the machine just sits there and looks at you like you're a complete freaking moron.
Oh you can try putting a note on your dashboard to the effect that the machine ate your money but there's no guarantee the losers who patrol the streets looking for cars to ticket are going to pay any attention to it. And even if you used plastic to pay to park when you go to the Municipal Courthouse to fight the ticket the functionary sitting behind the desk will look at your bank statement and tell you that it doesn't show what time the charge was made.
The idea would appear to be to force folks to use the city parking app on their phones to pay for parking. The only problem there is that no receipt is generated. The meter maidens must then run your license plate to determine if you've paid to park - and if you have any outstanding tickets that might get your car booted.
Now I'm out $2.50 for parking with nothing to show for it.
Thank you, Mayor Parker.
And just what is this new revenue stream you might ask? Not refilling the paper rolls in the electronic parking meters downtown.
If you see this meter, remain calm. Don't try to apprehend it by yourself. Please call the authorities at once.
Just think about it. Someone puts their money into the machine (no record of that transaction, is there?) or slides their credit or debit card in the slot to pay to park. Then, instead of printing out a receipt with an expiration time on it, the machine just sits there and looks at you like you're a complete freaking moron.
Oh you can try putting a note on your dashboard to the effect that the machine ate your money but there's no guarantee the losers who patrol the streets looking for cars to ticket are going to pay any attention to it. And even if you used plastic to pay to park when you go to the Municipal Courthouse to fight the ticket the functionary sitting behind the desk will look at your bank statement and tell you that it doesn't show what time the charge was made.
The idea would appear to be to force folks to use the city parking app on their phones to pay for parking. The only problem there is that no receipt is generated. The meter maidens must then run your license plate to determine if you've paid to park - and if you have any outstanding tickets that might get your car booted.
Now I'm out $2.50 for parking with nothing to show for it.
Thank you, Mayor Parker.
We'll go far to screw you
Oh the fun of dealing with thieves and crooks. Not at the courthouse, mind you. Nope, once again we're talking about Wells Fargo.
I wrote earlier this month about Wells Fargo cashing a check from my law firm and holding it for their private use for almost two weeks and then charging our personal account NSF fees for their little dirty deed.
Today my wife called me from the bank. She was on the phone with a representative from Visa which offers credit and debit cards through Wells Fargo. It turns out that since Wells Fargo decided to convert my funds to their personal use overdraft fees were being charged to a credit card account tied to the checking account.
The representative from Visa proclaimed that there was nothing she could do to reverse out the charges because we hadn't opted out of overdraft protection earlier in the year.
And isn't that the mantra these days in customer (dis)service - I'm sorry, there's just nothing I can do?
Well there is something that can be done. If Visa can't, or won't, reverse out the charges, then Wells Fargo can eat the overdraft protection fees since they are a direct outcome of Wells Fargo's conversion of our funds. The bank can then apologize to my wife for the hassle she's been through as a result of their chicanery.
I wrote earlier this month about Wells Fargo cashing a check from my law firm and holding it for their private use for almost two weeks and then charging our personal account NSF fees for their little dirty deed.
Today my wife called me from the bank. She was on the phone with a representative from Visa which offers credit and debit cards through Wells Fargo. It turns out that since Wells Fargo decided to convert my funds to their personal use overdraft fees were being charged to a credit card account tied to the checking account.
The representative from Visa proclaimed that there was nothing she could do to reverse out the charges because we hadn't opted out of overdraft protection earlier in the year.
And isn't that the mantra these days in customer (dis)service - I'm sorry, there's just nothing I can do?
Well there is something that can be done. If Visa can't, or won't, reverse out the charges, then Wells Fargo can eat the overdraft protection fees since they are a direct outcome of Wells Fargo's conversion of our funds. The bank can then apologize to my wife for the hassle she's been through as a result of their chicanery.
Wednesday, July 25, 2012
Swinging the sledgehammer
In 1987, the NCAA leveled the heaviest sanction against a member institution in its history when it banned SMU from playing football for one year. The program had a history of run-ins with the NCAA over the previous 30 years.
The death blow was dealt when investigators once again uncovered evidence of boosters (including some who had been banned from the program) funneling payments to football players along with free apartments and cars.
SMU has never fully recovered.
In 2002, the University of Alabama was hit with probation, a post-season ban and a reduction in scholarships when it emerged that a Crimson Tide booster was paying a high school coach in Memphis to steer recruits to Tuscaloosa.
In 2010, following a four-year investigation, the NCAA sanctioned the University of Southern California with four years probation, a two year post-season ban, a loss of scholarships and the vacating of the school's 2004 national championship. The offense? Reggie Bush and his family had received improper benefits from boosters (including a house) and the athletic staff looked the other way as agents hung around with players.
What these three incidents have in common is the schools were cheating in order to put better players on the field wearing their gear. By paying players and coaches, the schools were rigging the playing field. They broke NCAA rules.
The other important thing to note is that no university has been hit with the death penalty since SMU - and it's highly unlikely that anyone else will due to effect it had on SMU's football program and due to the amount of money at play in college football.
But then along came Penn State - one of the most storied programs in all the land. Now I must confess - I can't stand Penn State. Their uniforms look more suited for a junior high school than a major college team.
Penn State wasn't accused of doing anything to give their team an unfair advantage out on the playing field.
Jerry Sandusky has already been convicted of raping several young men over a long period of time. He will spend the rest of his life in prison. Joe Paterno looked the other way and did nothing when confronted with Mr. Sandusky's actions - but he was fired and then died.
And there are others who are in the spotlight after it turned out they knew about the allegations and did nothing about it.
Graham Spanier, former President of Penn State, was forced to resign from his post. Former Athletic Director Tim Curley is facing criminal charges for not reporting the abuse to authorities. Former PSU Vice President Gary Schultz is also facing criminal charges for his role in not doing anything to stop the abuse. Tom Corbett, the Governor of Pennsylvania, is under scrutiny for not pushing the investigation while he was out raising campaign contributions from board members of Mr. Sandusky's Second Mile Foundation.
As a result, this past Monday, the NCAA wielded a sledgehammer and swung it at Penn State. The school was fined $60 million dollars, placed on five years probation, banned from the post-season for four years, had 100+ wins vacated, lost multiple scholarships over the next four years and was told their players were free to transfer to any other school without having to sit out a year.
It will be years - at least a decade - before Penn State will even be competitive again. The kids who play for the Nittany Lions did nothing. The students at Penn State did nothing. Athletes in other sports that depend on football revenue did nothing.
More importantly, Penn State did nothing to violate the NCAA's rules. Yes, what happened in State College was disgusting and inexcusable. Placing the welfare of the football program over the rape of young boys is a damning indictment of the way in which big time college athletics, and the money involved in them, have warped our sense of reality.
But we have a court system to deal with these kinds of issues. Mr. Sandusky has been found guilty and will be sanctioned. The other officials will each have their day in court. Victims of Mr. Sandusky will file claims against the university for their failure to act in an appropriate manner.
But still the fact remains that the school did not violate any NCAA rule. The sanctions levied against the program now set a dangerous precedent for the NCAA in the future. Just what type of conduct will warrant a penalty like that levied against Penn State? What crimes are so outrageous that the NCAA will step in?
Mark Emmert, the head of the NCAA, was shocked that a university would do what the administration and football staff at Penn State did. He was appalled that the school had its priorities backwards. Mr. Emmert is a hypocrite.
His organization talks about the student-athletes who compete in NCAA-sanctioned events. He praises the ideal of amateurism and sacrifice for the good of the team. He condemns those who put money ahead of a school's mission to educate.
But, at the same time, he presides over an organization that negotiates multi-billion dollar television contracts for sporting events, puts together the second-biggest gambling event in the United States and sits by idly as football coaches at public schools find themselves the highest paid public employees in the land. And all of this money is being made off the hard work of student-athletes who don't see a dime of it.
See also:
The death blow was dealt when investigators once again uncovered evidence of boosters (including some who had been banned from the program) funneling payments to football players along with free apartments and cars.
SMU has never fully recovered.
In 2002, the University of Alabama was hit with probation, a post-season ban and a reduction in scholarships when it emerged that a Crimson Tide booster was paying a high school coach in Memphis to steer recruits to Tuscaloosa.
In 2010, following a four-year investigation, the NCAA sanctioned the University of Southern California with four years probation, a two year post-season ban, a loss of scholarships and the vacating of the school's 2004 national championship. The offense? Reggie Bush and his family had received improper benefits from boosters (including a house) and the athletic staff looked the other way as agents hung around with players.
What these three incidents have in common is the schools were cheating in order to put better players on the field wearing their gear. By paying players and coaches, the schools were rigging the playing field. They broke NCAA rules.
The other important thing to note is that no university has been hit with the death penalty since SMU - and it's highly unlikely that anyone else will due to effect it had on SMU's football program and due to the amount of money at play in college football.
But then along came Penn State - one of the most storied programs in all the land. Now I must confess - I can't stand Penn State. Their uniforms look more suited for a junior high school than a major college team.
Penn State wasn't accused of doing anything to give their team an unfair advantage out on the playing field.
Jerry Sandusky has already been convicted of raping several young men over a long period of time. He will spend the rest of his life in prison. Joe Paterno looked the other way and did nothing when confronted with Mr. Sandusky's actions - but he was fired and then died.
And there are others who are in the spotlight after it turned out they knew about the allegations and did nothing about it.
Graham Spanier, former President of Penn State, was forced to resign from his post. Former Athletic Director Tim Curley is facing criminal charges for not reporting the abuse to authorities. Former PSU Vice President Gary Schultz is also facing criminal charges for his role in not doing anything to stop the abuse. Tom Corbett, the Governor of Pennsylvania, is under scrutiny for not pushing the investigation while he was out raising campaign contributions from board members of Mr. Sandusky's Second Mile Foundation.
As a result, this past Monday, the NCAA wielded a sledgehammer and swung it at Penn State. The school was fined $60 million dollars, placed on five years probation, banned from the post-season for four years, had 100+ wins vacated, lost multiple scholarships over the next four years and was told their players were free to transfer to any other school without having to sit out a year.
It will be years - at least a decade - before Penn State will even be competitive again. The kids who play for the Nittany Lions did nothing. The students at Penn State did nothing. Athletes in other sports that depend on football revenue did nothing.
More importantly, Penn State did nothing to violate the NCAA's rules. Yes, what happened in State College was disgusting and inexcusable. Placing the welfare of the football program over the rape of young boys is a damning indictment of the way in which big time college athletics, and the money involved in them, have warped our sense of reality.
But we have a court system to deal with these kinds of issues. Mr. Sandusky has been found guilty and will be sanctioned. The other officials will each have their day in court. Victims of Mr. Sandusky will file claims against the university for their failure to act in an appropriate manner.
But still the fact remains that the school did not violate any NCAA rule. The sanctions levied against the program now set a dangerous precedent for the NCAA in the future. Just what type of conduct will warrant a penalty like that levied against Penn State? What crimes are so outrageous that the NCAA will step in?
Mark Emmert, the head of the NCAA, was shocked that a university would do what the administration and football staff at Penn State did. He was appalled that the school had its priorities backwards. Mr. Emmert is a hypocrite.
His organization talks about the student-athletes who compete in NCAA-sanctioned events. He praises the ideal of amateurism and sacrifice for the good of the team. He condemns those who put money ahead of a school's mission to educate.
But, at the same time, he presides over an organization that negotiates multi-billion dollar television contracts for sporting events, puts together the second-biggest gambling event in the United States and sits by idly as football coaches at public schools find themselves the highest paid public employees in the land. And all of this money is being made off the hard work of student-athletes who don't see a dime of it.
See also:
- "Shocker: NCAA does the right thing," Jason Whitlock, Fox Sports (July 24, 2012)
- "NCAA's Mark Emmert overstepped bounds in hammering Penn State," Stewart Mandel, Sports Illustrated (July 23, 2012)
- "Winners, losers and the disappeared," Gamso for the Defense (July 24, 2012)
- "Penn State students bear brunt of NCAA sanctions for Sandusky cover-up as trustees emerge unscathed," Democracy Now! (July 24, 2012)
Tuesday, July 24, 2012
Out of the mouths of babes
The candidates have spoken and here's the video that proves it.
Houston weather, traffic, news | FOX 26 | MyFoxHouston
Ultimately, however, how the candidates answer any questions won't matter. The winner will be determined by the letter after the candidate's name on the ballot. As things stand currently, I would imagine the GOP will carry Harris County due to the wingnut vote in the suburbs. Should that happen, Mike Anderson will be the new district attorney and the Republicans will sweep the district court benches.
On the other hand, should the economy suddenly pick up and the unemployment rate drop to somewhere in the vicinity of 7%, the Democratic vote within the city might be enough to counter the anti-Obama vote in the 'burbs. Should that happen, Lloyd Oliver might be the new district attorney (I say "might" because the Obama vote inside the city didn't help Clarence Bradford in his unsuccessful run for DA four years ago).
In other words, this race could be between Charles Manson and Madelyn Murray O'Hare and the outcome would be the same. If there are enough folks who feel that what we need is less regulation over commerce and less protection for workers, then whoever runs with an R after their name will win.
H/T Murray Newman
Houston weather, traffic, news | FOX 26 | MyFoxHouston
Ultimately, however, how the candidates answer any questions won't matter. The winner will be determined by the letter after the candidate's name on the ballot. As things stand currently, I would imagine the GOP will carry Harris County due to the wingnut vote in the suburbs. Should that happen, Mike Anderson will be the new district attorney and the Republicans will sweep the district court benches.
On the other hand, should the economy suddenly pick up and the unemployment rate drop to somewhere in the vicinity of 7%, the Democratic vote within the city might be enough to counter the anti-Obama vote in the 'burbs. Should that happen, Lloyd Oliver might be the new district attorney (I say "might" because the Obama vote inside the city didn't help Clarence Bradford in his unsuccessful run for DA four years ago).
In other words, this race could be between Charles Manson and Madelyn Murray O'Hare and the outcome would be the same. If there are enough folks who feel that what we need is less regulation over commerce and less protection for workers, then whoever runs with an R after their name will win.
H/T Murray Newman
Monday, July 23, 2012
Swearing on the telephone
A few days ago Scott Greenfield over at Simple Justice picked up on a piece written by Walter Olson decrying the use of a judge's gavel in an anti-drunk driving ad. The ad implied that the robed ones were in bed with the state when it came to DWI prosecutions.
Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.
The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.
Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.
The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.
In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.
But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?
This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.
If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.
And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.
Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.
The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.
Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.
The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.
In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.
Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths, TEX. GOV'T CODE ANN. § 312.011(1) (West 2005), we agree with the Smith opinion that it is the act of swearing, the taking of the oath, that is essential to the validity of the affidavit. The purpose of the oath "is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). The affidavit in this case provides, "The undersigned Affiant, being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statement and accusations." It is signed by Ortega as the affiant and includes a signed jurat stating that it was subscribed and sworn to before the magistrate. In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility." Id.
Therefore, under the facts of this case, a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant. Accordingly, the trial court did not err in denying Clay's motion to suppress.
But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?
This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.
If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.
And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.
Saturday, July 21, 2012
A trailblazer passes on
This past weekend, legendary country music performer Kitty Wells died at the age of 92. Now maybe you haven't heard of Ms. Wells before, but you have, no doubt, heard of Loretta Lynn, Patsy Cline, Dolly Parton, Emmylou Harris, the Dixie Chicks, Martina McBride and many other women country singers.
Ms. Wells broke the glass ceiling and led the way for women in Nashville.
Rest in peace, Ms. Kitty.
Ms. Wells broke the glass ceiling and led the way for women in Nashville.
Rest in peace, Ms. Kitty.
Friday, July 20, 2012
Indigent defense under attack again
You know the drill.
You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...
And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.
Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.
Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.
Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.
The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.
Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.
No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?
The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.
As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.
When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.
You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...
And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.
Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.
Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.
Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.
The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.
Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.
Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make.
“It’s sad, because the legislature is putting financial concerns over a defendant’s constitutional right to representation,” sadi Walsh, whose offices are in West Palm Beach. He would have been paid $5 to $10 per hour for his work if he applied the new fees to some of his old cases. The state’s minimum wage is $7.67 per hour.
The push behind the new law, which lawmakers passed in March and went into effect July 1, was to lower the amount of state money paid to private defense lawyers. State records show the state paid $6.5 million over its original $3 million budget.
No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?
The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.
As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.
When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.
Thursday, July 19, 2012
Update: One is the loneliest number
So Rick Perry proved once again that he's man enough to preside over the murder of an inmate. This is the same man who has presided over drastic cuts to state education budgets, mental health budgets and is opposed to anything that might allow the working poor to acquire health insurance coverage. But damn, he certainly is proud of the $25 million the state spent to restore the Governor's mansion and the $10,000 or so a month he received so he could live in a mansion in Austin. And, of course, let's not forget the massive bill he presented to taxpayers to help fund his abortive presidential campaign.
So the state was having a hard time acquiring sodium thiopental because the makers of the drug didn't want bloodthirsty politicians in the States using it to kill people. You know, something about that oath that begins "Do no harm." Then Texas decided to substitute pentobarbital for the first drug of the lethal cocktail pumped into the veins of the condemned man strapped to the gurney.
But then some other problems began popping up and Gov. Perry and his lackeys decided they needed to rethink the lethal cocktail before someone else up and decided that they didn't want their drug known as the killer drug.
Someone over at TDCJ (Texas Department of Criminal Justice) then decided it was time to simplify matters and just use one drug - pentobarbital. Nevermind that no one has conducted tests on the drug to ensure it doesn't have any side effects (besides death). Nope. It's cheaper and we've still got some of it in the medicine cabinet so let's just use the damn stuff.
And so Yokamon Hearn got to be the guinea pig. They strapped him to a gurney and pumped him full of a lethal dose of pentobarbital. He died of a drug overdose. But because the drug is a sedative, we will never know what Mr. Hearn felt as the drug circulated through his body.
Of course most people probably don't care if he experienced any pain or discomfort. He was a bad man, after all. He killed a young man who was minding his own business. A black teenager with developmental issues killed a young, white stockbroker in the Dallas suburbs. His attorneys never even bothered to put on mitigation evidence during the punishment phase of his trial.
Mr. Hearn's actions hurt a lot of people. A family lost one of their members. A friend was lost. There's no denying that what Mr. Hearn did that night had a negative impact on many people.
But the victim isn't all of a sudden back among the living. His family isn't once again whole. His friends don't have him back.
Killing Mr. Hearn didn't undo what happened back in 1998. Killing Mr. Hearn didn't heal the hurt and sorrow. Killing Mr. Hearn only served to satisfy some folks' need for revenge and gives Gov. Perry another notch in his belt.
So the state was having a hard time acquiring sodium thiopental because the makers of the drug didn't want bloodthirsty politicians in the States using it to kill people. You know, something about that oath that begins "Do no harm." Then Texas decided to substitute pentobarbital for the first drug of the lethal cocktail pumped into the veins of the condemned man strapped to the gurney.
But then some other problems began popping up and Gov. Perry and his lackeys decided they needed to rethink the lethal cocktail before someone else up and decided that they didn't want their drug known as the killer drug.
Someone over at TDCJ (Texas Department of Criminal Justice) then decided it was time to simplify matters and just use one drug - pentobarbital. Nevermind that no one has conducted tests on the drug to ensure it doesn't have any side effects (besides death). Nope. It's cheaper and we've still got some of it in the medicine cabinet so let's just use the damn stuff.
And so Yokamon Hearn got to be the guinea pig. They strapped him to a gurney and pumped him full of a lethal dose of pentobarbital. He died of a drug overdose. But because the drug is a sedative, we will never know what Mr. Hearn felt as the drug circulated through his body.
Of course most people probably don't care if he experienced any pain or discomfort. He was a bad man, after all. He killed a young man who was minding his own business. A black teenager with developmental issues killed a young, white stockbroker in the Dallas suburbs. His attorneys never even bothered to put on mitigation evidence during the punishment phase of his trial.
Mr. Hearn's actions hurt a lot of people. A family lost one of their members. A friend was lost. There's no denying that what Mr. Hearn did that night had a negative impact on many people.
But the victim isn't all of a sudden back among the living. His family isn't once again whole. His friends don't have him back.
Killing Mr. Hearn didn't undo what happened back in 1998. Killing Mr. Hearn didn't heal the hurt and sorrow. Killing Mr. Hearn only served to satisfy some folks' need for revenge and gives Gov. Perry another notch in his belt.
The great debate of 2012
First came the great debates in ancient Greece among philosophers trying to make sense of the world and the nature of man.
Then came the debates of the Roman Senate.
Don't forget the Lincoln-Douglas debates in 1858.
And what about Kennedy and Nixon in 1960?
Now we may have the most grandiose debate yet. Two heavy hitters will square off in Houston on Sunday morning to debate the issues on the minds of Harris County voters. The debate will play out in three acts on KRIV-26, at 6:10 a.m., 6:40 a.m. and 7:10 a.m. One of the moderates will be HCCLA President Chris Tritico.
Ladies and gentlemen, I give you the candidates for Harris County District Attorney, Mike Anderson and Lloyd Oliver. Mr. Anderson would like to erase the last four years and return to the good ol' boy days of Chuck Rosenthal (you remember how that turned out) and Mr. Oliver who won the Democratic primary by "dumb luck."
Viewers, and other interested folks, may pose questions to the candidates through KRIV-26's Facebook page anytime this week or even during the debate.
Of particular interest to me is how Mr. Anderson proposes to handle the county's largest mental health care provider - the Harris County Jail - and what Mr. Oliver thinks about barratry prosecutions.
Then came the debates of the Roman Senate.
Don't forget the Lincoln-Douglas debates in 1858.
And what about Kennedy and Nixon in 1960?
Now we may have the most grandiose debate yet. Two heavy hitters will square off in Houston on Sunday morning to debate the issues on the minds of Harris County voters. The debate will play out in three acts on KRIV-26, at 6:10 a.m., 6:40 a.m. and 7:10 a.m. One of the moderates will be HCCLA President Chris Tritico.
Ladies and gentlemen, I give you the candidates for Harris County District Attorney, Mike Anderson and Lloyd Oliver. Mr. Anderson would like to erase the last four years and return to the good ol' boy days of Chuck Rosenthal (you remember how that turned out) and Mr. Oliver who won the Democratic primary by "dumb luck."
Viewers, and other interested folks, may pose questions to the candidates through KRIV-26's Facebook page anytime this week or even during the debate.
Of particular interest to me is how Mr. Anderson proposes to handle the county's largest mental health care provider - the Harris County Jail - and what Mr. Oliver thinks about barratry prosecutions.
Wednesday, July 18, 2012
Predicting the future
Last week the Houston Chronicle ran a heartwarming story of how the City of Houston Municipal Courts were giving folks a few extra days to take care of their tickets due to the torrential rains last Thursday.
But then there's the incompetent side of the Municipal Court. Last Friday I had a client who was due to traffic court over a speeding ticket. Imagine my surprise when I arrived, looked through the docket sheet and couldn't find his name. I went deep into the bowels of the courthouse to find a computer I could look up his case to see what was going on.
It turns out his case wasn't on the docket for July 13 because he had been charged with failure to appear. Take a look at the Clerk's Certificate of Defendant's Failure to Appear and see if you can spot the problem...
Clerk's Certificate of Defendant's Failure to Appear
So we have a robo-signed affidavit in which a deputy court clerk is perjuring herself when she claims she was present when the matter was called on the docket. She perjures herself when she says my client didn't appear in the courtroom. She perjures herself further when she claims his name was "called in accordance with the law." Finally, she perjures herself when she claims he failed to answer after a reasonable period of time.
Oh, and did I fail to mention that a warrant was processed as well?
Will anyone have to face the music for this monumental screwup at 1400 Lubbock Street? What do you think?
But then there's the incompetent side of the Municipal Court. Last Friday I had a client who was due to traffic court over a speeding ticket. Imagine my surprise when I arrived, looked through the docket sheet and couldn't find his name. I went deep into the bowels of the courthouse to find a computer I could look up his case to see what was going on.
It turns out his case wasn't on the docket for July 13 because he had been charged with failure to appear. Take a look at the Clerk's Certificate of Defendant's Failure to Appear and see if you can spot the problem...
Clerk's Certificate of Defendant's Failure to Appear
So we have a robo-signed affidavit in which a deputy court clerk is perjuring herself when she claims she was present when the matter was called on the docket. She perjures herself when she says my client didn't appear in the courtroom. She perjures herself further when she claims his name was "called in accordance with the law." Finally, she perjures herself when she claims he failed to answer after a reasonable period of time.
Oh, and did I fail to mention that a warrant was processed as well?
Will anyone have to face the music for this monumental screwup at 1400 Lubbock Street? What do you think?
Tuesday, July 17, 2012
Execution Watch 7/18/12
The state that carries out more executions than any other state is ready to kill again. This time Texas will use a single lethal dose of pentobarbital due to shortages in supplies of sodium thiopental.
ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:
YOKAMON HEARN, 33. Mr. Hearn was sentenced to die in the 1998 slaying of a North Dallas man who was abducted from a coin-operated car wash, driven to a secluded area and shot to death. The victim's Mustang was found the next day in a shopping center parking lot. Hearn, who was 19 at the time of the crime, has been on death row since New Year's Eve 1998.
For more information on Mr. Hearn, click here.
RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Wednesday, July 18, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: www.executionwatch.org > Listen
You can find more information on Execution Watch's Facebook page.
See also:
"Ineffective assistance squared + 5th Circuit = death," Simple Justice (7/16/12)
An innocent man
A man is kidnapped in Somalia. The warlord hands over to an official from another country who then sends the man to a secret prison somewhere near the Middle East. For five years that man is held in solitary confinement. He is stripped of his clothes. He is deprived of sleep. He is subjected to bright lights and loud music for days at a time. He is left in complete darkness for days at a time. He is physically and mentally tortured. And this does on day after day, week after week, month after month, for five long years.
Then, one day he is released. He was never formally charged. He never saw the inside of a courtroom or was allowed to see the evidence against him. One day he's in and the next day, with a piece of paper indicating that he was detained and found innocent, he's out.
The label of suspected terrorist is stuck on his back. He lives in constant fear that he will be scooped up again in the future and subjected to the dehumanizing treatment he suffered for those five long years. He has no recourse against the government that ordered his torture. He is, instead, left to pick up the pieces of his own shattered life.
The man's name is Suleiman Abdallah and he was an innocent victim of the United States' brutal torture regime under both the Bush and Obama administrations. The hell through which he lived was a violation of his human rights and constituted a war crime. Of course since the U.S. pulls the strings in both the U.N. and the International Criminal Court, there is no chance that either George W. Bush or Barack Obama will ever have to answer charges they broke international law.
Writes Clara Gutteridge in The Nation:
As I believe my colleague, Jeff Gamso, would say, the torture regime carried out by our government is a case in which the Law of Rule supplanted the Rule of Law. The U.S. government tortured foreign nationals because they could. There was no one to stop it. There was no one to storm the gates at Bagram Air Force Base or at Guantanamo Bay.
Some day, maybe sooner than later, we will look back in shame at what our government did in our name. We will realize that the ends don't justify the means and that once you cross the line the way our government did, there's no coming back.
Every soldier who participated in the torture of a foreign national should face charges. Every officer who ordered the torture to continue should face charges. Every commander who presided over the torture of anyone should face charges. Every federal agent who participated should face charges. The Attorneys General and Defense Secretaries who gave the plan the go-ahead should face charges. Presidents Bush and Obama should face charges.
There is no excuse for what happened in those secret prisons. There is no excuse for the treatment the detainees suffered through. There is no justification for the systematic violation of human rights and international law.
But it won't stop.
From Democracy Now!
Then, one day he is released. He was never formally charged. He never saw the inside of a courtroom or was allowed to see the evidence against him. One day he's in and the next day, with a piece of paper indicating that he was detained and found innocent, he's out.
The label of suspected terrorist is stuck on his back. He lives in constant fear that he will be scooped up again in the future and subjected to the dehumanizing treatment he suffered for those five long years. He has no recourse against the government that ordered his torture. He is, instead, left to pick up the pieces of his own shattered life.
The man's name is Suleiman Abdallah and he was an innocent victim of the United States' brutal torture regime under both the Bush and Obama administrations. The hell through which he lived was a violation of his human rights and constituted a war crime. Of course since the U.S. pulls the strings in both the U.N. and the International Criminal Court, there is no chance that either George W. Bush or Barack Obama will ever have to answer charges they broke international law.
Writes Clara Gutteridge in The Nation:
Suleiman’s legal options were few. “There is currently no political or judicial avenue available to a person like Suleiman who has been wronged by the United States,” explains attorney and professor Joe Margulies, author of Guantánamo and the Abuse of Presidential Power. “In limited circumstances, like prisoners at Guantánamo, people can seek their release in court, but no one can seek anything more than that.” Under both the Bush and Obama administrations, he notes, “any suggestion that the US should compensate an innocent man for the wrong done to him is a complete nonstarter.”
In theory, Suleiman could have sued one of the regional states—Djibouti or Kenya—for their complicity in his rendition and torture. But weak, slow-moving and overburdened legal systems make this option unlikely to yield any tangible benefit.
As I believe my colleague, Jeff Gamso, would say, the torture regime carried out by our government is a case in which the Law of Rule supplanted the Rule of Law. The U.S. government tortured foreign nationals because they could. There was no one to stop it. There was no one to storm the gates at Bagram Air Force Base or at Guantanamo Bay.
Some day, maybe sooner than later, we will look back in shame at what our government did in our name. We will realize that the ends don't justify the means and that once you cross the line the way our government did, there's no coming back.
Every soldier who participated in the torture of a foreign national should face charges. Every officer who ordered the torture to continue should face charges. Every commander who presided over the torture of anyone should face charges. Every federal agent who participated should face charges. The Attorneys General and Defense Secretaries who gave the plan the go-ahead should face charges. Presidents Bush and Obama should face charges.
There is no excuse for what happened in those secret prisons. There is no excuse for the treatment the detainees suffered through. There is no justification for the systematic violation of human rights and international law.
But it won't stop.
From Democracy Now!
Monday, July 16, 2012
FBI to review thousands of cases for faulty forensics
Oops.
Now the FBI is reviewing thousands of cases dating back to 1985 to determine if anyone was wrongly convicted as the result of hair and fiber evidence tested by the FBI. The cases being reviewed include cases filed in state courts where the evidence was tested by the FBI.
According to The Washington Post, the FBI was aware of problems in their forensic unit but chose not to divulge that information to the defendants or their attorneys. The review is being conducted with the Innocence Project and the National Association of Criminal Defense Lawyers.
The root of the problem is the way so-called crime labs operate. These "labs" are arms of state or local law enforcement agencies - so the people testing the evidence are employees of the same entity that arrested the suspect in the first place.
The set-up creates a glaring conflict of interest that most criminal judges are loathe to do anything about. The analysis is passed off as valid science even though the analyst is employed by law enforcement. The employees of the crime lab see themselves as part of the same team as the police. And this creates a massive problem.
Over in the civil courthouse, such an arrangement would raise more than a few eyebrows. The civil courts are accustomed to arguments regarding the validity of a particular test or conclusion. Courts routinely conduct hearings to determine whether or not a particular expert witness will be allowed to testify. Conclusions, assumptions and observations are scrutinized by both attorneys and judges.
But over in the criminal courthouse, where lives, not dollars, are at stake, judges will rarely prevent an analyst from testifying for the state - even though all of his training was provided through the police department and is based on what another officer taught him. Judges in the criminal courts think nothing of allowing an officer to testify as to the validity of the horizontal gaze nystagmus test despite the fact the officer has no knowledge of how the eye works or why alcohol supposedly causes nystagmus.
Analysts with little or no scientific training are allowed to testify as to the results of forensic tests when they can't even explain why a certain procedure is followed.
Control of crime labs must be taken out of the hands of law enforcement. The labs must be accessible to both the defense and the state. Judges need to take another look at Daubert and Frye and, in Texas, Kelly and Mata to remind themselves what their role as gatekeeper means. Defense attorneys need to learn more about the science behind the testing and need to learn to question the analysts' basic assumptions.
Now the FBI is reviewing thousands of cases dating back to 1985 to determine if anyone was wrongly convicted as the result of hair and fiber evidence tested by the FBI. The cases being reviewed include cases filed in state courts where the evidence was tested by the FBI.
According to The Washington Post, the FBI was aware of problems in their forensic unit but chose not to divulge that information to the defendants or their attorneys. The review is being conducted with the Innocence Project and the National Association of Criminal Defense Lawyers.
“These recent developments remind us of the profound questions about the validity of many forensic techniques that have been used over the course of many decades and underscore the need for continuing attention at every level to ensuring the scientific validity and accuracy of the forensic science that is used every day in our criminal justice system.” -- Michael BromwichIf that name sounds familiar it's because Mr. Bromwich conducted the investigation into the morass known as the HPD Crime Lab a few years back.
The root of the problem is the way so-called crime labs operate. These "labs" are arms of state or local law enforcement agencies - so the people testing the evidence are employees of the same entity that arrested the suspect in the first place.
The set-up creates a glaring conflict of interest that most criminal judges are loathe to do anything about. The analysis is passed off as valid science even though the analyst is employed by law enforcement. The employees of the crime lab see themselves as part of the same team as the police. And this creates a massive problem.
Over in the civil courthouse, such an arrangement would raise more than a few eyebrows. The civil courts are accustomed to arguments regarding the validity of a particular test or conclusion. Courts routinely conduct hearings to determine whether or not a particular expert witness will be allowed to testify. Conclusions, assumptions and observations are scrutinized by both attorneys and judges.
But over in the criminal courthouse, where lives, not dollars, are at stake, judges will rarely prevent an analyst from testifying for the state - even though all of his training was provided through the police department and is based on what another officer taught him. Judges in the criminal courts think nothing of allowing an officer to testify as to the validity of the horizontal gaze nystagmus test despite the fact the officer has no knowledge of how the eye works or why alcohol supposedly causes nystagmus.
Analysts with little or no scientific training are allowed to testify as to the results of forensic tests when they can't even explain why a certain procedure is followed.
Control of crime labs must be taken out of the hands of law enforcement. The labs must be accessible to both the defense and the state. Judges need to take another look at Daubert and Frye and, in Texas, Kelly and Mata to remind themselves what their role as gatekeeper means. Defense attorneys need to learn more about the science behind the testing and need to learn to question the analysts' basic assumptions.
Sunday, July 15, 2012
A little ex parte on the side, please
The other day when I was in one of the felony courts at the Harris County Criminal (In)justice Center, the case of a man accused of killing three people in a strip club parking lot was also on the docket. It was the "star" case of the day at the courthouse and all the news media were lined up in the anteroom of the courtroom waiting to get a look at the defendant if and when he was brought into the courtroom.
My case wasn't nearly as notorious and I stood and waited while the prosecutor did her thing.
Then the judge called one of the other prosecutors to the bench. He began asking the prosecutor about some of the details in the strip club parking lot murder case. There was no one else present at the bench. No defendant. No defense attorney. Nobody.
And there they were discussing details of the case as if nothing were at all out of place.
That a judge and a prosecutor were having a discussion about the facts of a case without either the defendant or his attorney present didn't surprise me at all. We all know it happens. We've all heard a prosecutor utter those infamous words "...this is the case we were discussing..." at the bench. But what surprised me was the brazenness of the act.
Out in open court. There they were, without a care in the world as to whether ex parte communications between prosecutors and judges might just constitute ethical violations by both parties. Without a care in the world as to the due process rights of the accused. Without a care in the world as to whether such a conversation might compromise the neutrality of the magistrate.
If you've spent any time at all in the well of the courtroom, you know that ours is not a level playing field. But shouldn't we at least try to keep up the appearances?
My case wasn't nearly as notorious and I stood and waited while the prosecutor did her thing.
Then the judge called one of the other prosecutors to the bench. He began asking the prosecutor about some of the details in the strip club parking lot murder case. There was no one else present at the bench. No defendant. No defense attorney. Nobody.
And there they were discussing details of the case as if nothing were at all out of place.
That a judge and a prosecutor were having a discussion about the facts of a case without either the defendant or his attorney present didn't surprise me at all. We all know it happens. We've all heard a prosecutor utter those infamous words "...this is the case we were discussing..." at the bench. But what surprised me was the brazenness of the act.
Out in open court. There they were, without a care in the world as to whether ex parte communications between prosecutors and judges might just constitute ethical violations by both parties. Without a care in the world as to the due process rights of the accused. Without a care in the world as to whether such a conversation might compromise the neutrality of the magistrate.
If you've spent any time at all in the well of the courtroom, you know that ours is not a level playing field. But shouldn't we at least try to keep up the appearances?
Saturday, July 14, 2012
Scopin' and gropin' in the Windy City
The Transportation Safety Administration is continuing its assault on innocent travelers - this time at Union Station in Chicago. Courtesy of @JNReports, this is video taken at Union Station on July 5, 2012 of TSA agents setting up what looks to be a checkpoint in the station.
We've dealt with the appearance of TSA VIPR teams in Houston. The way to confront the government's continuing attempts to erode your right to be left alone is to shine a bright light on them. As long as we raise a stink any time TSA tries to get itself involved in local law enforcement, the efforts will fail.
But, should we look away and allow it to happen in one location, before you know it, TSA will be everywhere subjecting everyone to the assault on privacy carried out at our nation's airports. Make no mistake about it, this is but another attempt to eviscerate what remains of the Fourth Amendment.
We've dealt with the appearance of TSA VIPR teams in Houston. The way to confront the government's continuing attempts to erode your right to be left alone is to shine a bright light on them. As long as we raise a stink any time TSA tries to get itself involved in local law enforcement, the efforts will fail.
But, should we look away and allow it to happen in one location, before you know it, TSA will be everywhere subjecting everyone to the assault on privacy carried out at our nation's airports. Make no mistake about it, this is but another attempt to eviscerate what remains of the Fourth Amendment.
Friday, July 13, 2012
Blessed with a little more rain
For a perspective on just how much rain fell over the Houston area on Wednesday and Thursday, check out these two maps.
Total accumulated rainfall between Jan. 1, 2011 and July 12, 2011.
Total accumulated rainfall for July 11-12, 2012.
H/T Eric "SciGuy" Berger (Houston Chronicle)
Causation or correlation?
So here I am heading home from the office the other day listening to All Things Considered on the radio and there's this story about Kenya trying to fight the scourge of HIV by encouraging men to get circumcised. The reporter quoted a scientific study that the rate of HIV infection in uncircumcised men was substantially higher that the rate for men who were circumcised.
Well, that got me to thinking. This link between circumcision and HIV infection rates - is it an example of causation or correlation?
In other words, does getting circumcised reduce one's risk of getting infected by HIV, or is there something else at work? Is it because uncircumcised men have riskier sex practices? Is it because circumcised men are practicing safer sex?
The literature appears to be all over the place. Of course since the World Health Organization (WHO) jumped on board the circumcision train money has poured into Africa to fund circumcision programs. But there is still precious little hard evidence that circumcision has anything to do with HIV prevention.
Adding to my skepticism that there is no causal relation between the two are activists in Europe and the United States attempting to ban the procedure on newborns. If circumcision really prevented HIV infections, why would anyone be campaigning against it?
Now I'm no doctor and I am not going to sit here and pretend that I have some vast store of knowledge about the transmission of infectious disease or the human reproductive system. But I do think this issue is a perfect example of the causation v. correlation puzzle we run into in the courtroom.
The police coordination exercises the police use on the roadside to determine whether they're going to arrest a motorist for driving while intoxicated have everything to do with correlation, not causation. The studies used to provide a modicum of "scientific heft" to the roadside exercises all speak of correlations between levels of intoxication and performance on the exercises. Not one of them show evidence of causation.
The distinction is important. Let's say you're watching your favorite team play in a crucial game (sport and team not important). All season long whenever you've worn a certain shirt or cap or drank a certain beer or ate a certain sandwich, your team came through. Your actions did not cause your team to prevail. There was no causal link between your shirt (or your cap or beer or sandwich) and your team's performance. There was just a correlation - when you wore your shirt, your team just happened to win.
On the other hand, if it's dark out when you're driving home you turn on your headlights - as does everyone else out on the road. The lack of light caused you to turn on your headlights. There is a causal connection between nighttime driving and headlight use.
We can draw correlations between all sorts of statistics but just because you can draw a correlation between two observations doesn't mean that one caused the other. Your lucky socks won't help you win that poker game tonight, but your skill in reading the other players and their cards will.
Just because a motorist exhibits certain clues or signs or behaviors when walking up and down a straight line, doesn't mean that alcohol caused his performance. There are plenty of other factors that are not taken into account by the officer asking you to perform the exercise. And while the so-called validation studies may have drawn correlations to intoxication and performance on the roadside exercises, the studies did not make any causal connections.
The prosecutor will try to make it look like there is a causal connection between intoxication and performance, it's your job to point out to the jury the difference between causation and correlation.
Well, that got me to thinking. This link between circumcision and HIV infection rates - is it an example of causation or correlation?
In other words, does getting circumcised reduce one's risk of getting infected by HIV, or is there something else at work? Is it because uncircumcised men have riskier sex practices? Is it because circumcised men are practicing safer sex?
The literature appears to be all over the place. Of course since the World Health Organization (WHO) jumped on board the circumcision train money has poured into Africa to fund circumcision programs. But there is still precious little hard evidence that circumcision has anything to do with HIV prevention.
Adding to my skepticism that there is no causal relation between the two are activists in Europe and the United States attempting to ban the procedure on newborns. If circumcision really prevented HIV infections, why would anyone be campaigning against it?
Now I'm no doctor and I am not going to sit here and pretend that I have some vast store of knowledge about the transmission of infectious disease or the human reproductive system. But I do think this issue is a perfect example of the causation v. correlation puzzle we run into in the courtroom.
The police coordination exercises the police use on the roadside to determine whether they're going to arrest a motorist for driving while intoxicated have everything to do with correlation, not causation. The studies used to provide a modicum of "scientific heft" to the roadside exercises all speak of correlations between levels of intoxication and performance on the exercises. Not one of them show evidence of causation.
The distinction is important. Let's say you're watching your favorite team play in a crucial game (sport and team not important). All season long whenever you've worn a certain shirt or cap or drank a certain beer or ate a certain sandwich, your team came through. Your actions did not cause your team to prevail. There was no causal link between your shirt (or your cap or beer or sandwich) and your team's performance. There was just a correlation - when you wore your shirt, your team just happened to win.
On the other hand, if it's dark out when you're driving home you turn on your headlights - as does everyone else out on the road. The lack of light caused you to turn on your headlights. There is a causal connection between nighttime driving and headlight use.
We can draw correlations between all sorts of statistics but just because you can draw a correlation between two observations doesn't mean that one caused the other. Your lucky socks won't help you win that poker game tonight, but your skill in reading the other players and their cards will.
Just because a motorist exhibits certain clues or signs or behaviors when walking up and down a straight line, doesn't mean that alcohol caused his performance. There are plenty of other factors that are not taken into account by the officer asking you to perform the exercise. And while the so-called validation studies may have drawn correlations to intoxication and performance on the roadside exercises, the studies did not make any causal connections.
The prosecutor will try to make it look like there is a causal connection between intoxication and performance, it's your job to point out to the jury the difference between causation and correlation.
Thursday, July 12, 2012
On being held up at the bank
Update: I suppose I should first apologize for blaming this mess on Bank of America since, as I realized on my drive to court this morning, our accounts are now at Wells Fargo. It was wrong of me to lash out at such a fine institution as Bank of America (or this, or this, or this) when it was Wells Fargo I meant to call out. It just goes to show how much I pay attention to the home finances, I suppose.
My wife manages our household budget. I have no desire to deal with the home checkbook and the mortgage and light bill and water bill and grocery bills. Running the business side of my practice is more than enough hassle to deal with on a monthly basis.
Our home accounts are withBank of America Wells Fargo while my business accounts are with another bank. If you know my wife you'd wonder why she'd be doing business with a banking behemoth like
Bank of America Wells Fargo. I would've expected her to use one of the local credit unions in our neighborhood (but that's another story for another day).
Twice a month I deposit a check from my firm's operating account into our home account to cover bills and expenses. On July 2 I went to theBank of America Wells Fargo near our house and deposited a check into their ATM machine (quite convenient, actually).
The following weekend my wife tells me she got a letter fromBank of America Wells Fargo that a bunch of checks she'd written had bounced. She wanted me to check with my bank about it. So, earlier this week I went online and pulled up my business account information. There I saw that the check I had deposited into our
Bank of America Wells Fargo account had cleared my bank on July 3 (this date is important).
My wife then callsBank of America Wells Fargo to ask them what was up with the check. She said the person she spoke with told her that some new federal regulation required banks to hold random deposits made through ATMs for up to 10 days to combat fraud. She then said the bank told her the hold was still be on the check for at least one more day. Then she said the person told her that if the check had been cashed at the window and deposited there would have been no delay. I was apoplectic when she told me this.
So let's get this straight,Bank of America Wells Fargo You claim you placed a hold on a check written on my firm's account because the feds require you to place holds on random checks deposited in ATMs. The check in question cleared my bank the next day. You have been holding my money for your own private gain while charging NSF fees for checks written on the account. You are generating income for your own operations by holding money that was placed into your trust for deposit in a customer's account. That's called conversion.
And do explain to me, Mr. Banker, the rationale for holding a check deposited in an ATM but not a check presented for cash and deposit. You have no idea in either scenario whether that check is any good or not. Holding that check does not prevent bank fraud. It does allow your bank to take out an interest-free loan for a few days, however - at your customers' expense.
How many other people have you victimized by this scheme,Bank of America Wells Fargo? How much have you borrowed from your customers without paying interest for the use of their money? How much income have you generated by charging those customers NSF fees on the money you held?
And, need I add,Bank of America Wells Fargo was one of the banks with its hands out for a bailout check.
My wife manages our household budget. I have no desire to deal with the home checkbook and the mortgage and light bill and water bill and grocery bills. Running the business side of my practice is more than enough hassle to deal with on a monthly basis.
Our home accounts are with
Twice a month I deposit a check from my firm's operating account into our home account to cover bills and expenses. On July 2 I went to the
The following weekend my wife tells me she got a letter from
My wife then calls
So let's get this straight,
And do explain to me, Mr. Banker, the rationale for holding a check deposited in an ATM but not a check presented for cash and deposit. You have no idea in either scenario whether that check is any good or not. Holding that check does not prevent bank fraud. It does allow your bank to take out an interest-free loan for a few days, however - at your customers' expense.
How many other people have you victimized by this scheme,
And, need I add,
Prying eyes in the desert
Had up to here with airport security, TSA, drones and government data-mining of phone calls and e-mail? Well, the latest device in the government's ongoing war against your right to be left alone are license plate recognition devices in the Arizona desert.
That's right. Clusters of cameras have been placed in the Arizona desert - in some cases quite far from the Mexican border. These clusters include both regular surveillance cameras as well as devices that read license plate numbers and send the data to a site in Virginia for storage. The device also records the date, time and location of the car tracked.
Of course the government claims this is the latest tool needed to fight the scourge of drugs. The information retrieved by the devices can then be shared with local, state and federal law enforcement agencies for whatever purpose they deem necessary.
The DEA has installed the devices in California, Arizona, New Mexico and Texas. Next up are plans for installing them further inland.
Writes, G.W. Schultz of the Center for Investigative Reporting:
Bet you didn't know that just by driving down the highway in Arizona, minding your own business, you were under suspicion for illegal activity. The notion is absurd. I'm also surprised that Homeland Security didn't get involved in this and claim that the devices would cut down on terrorist activity in the Southwest.
Oh, no terrorist activity in the Arizona desert? Well, that's just a little detail we don't need to worry about at this time.
This country was founded on the principle that the people have a right to be left alone by the government. The Bill of Rights enshrines that doctrine. But with a judiciary that would rather kowtow to law enforcement than exercise sound judgment, our right to be left alone has withered away to the point of extinction.
The Fourth Amendment is on life support as the result of a thousand paper cuts over the years. Judges are more worried about outcome than they are principle. You know the drill - if the court were to uphold the words of the Fourth Amendment, the bad guys would get away; therefore we must make an exception to the rule in this case... and in that case... and in this other case. You do it enough, there is no doctrine left.
We have the right to be left alone. The police don't have the right to interfere with your daily routine unless they have reasonable suspicion (itself an example of the courts taking liberties with the Fourth Amendment) that you have engaged in some type of criminal activity. These devices in the desert are only the latest method the government has dreamed up to circumvent that basic notion.
That's right. Clusters of cameras have been placed in the Arizona desert - in some cases quite far from the Mexican border. These clusters include both regular surveillance cameras as well as devices that read license plate numbers and send the data to a site in Virginia for storage. The device also records the date, time and location of the car tracked.
Of course the government claims this is the latest tool needed to fight the scourge of drugs. The information retrieved by the devices can then be shared with local, state and federal law enforcement agencies for whatever purpose they deem necessary.
The DEA has installed the devices in California, Arizona, New Mexico and Texas. Next up are plans for installing them further inland.
Writes, G.W. Schultz of the Center for Investigative Reporting:
In their unending battle to deter illegal immigration, drug trafficking and terrorism, U.S. authorities already have beefed up border security with drug-sniffing dogs, aircraft and thousands more agents manning interior checkpoints.
Now, the U.S. Drug Enforcement Administration has decided it wants more, and the Justice Department agency doesn't care whether someone has even set foot in Mexico.Need I go any further?
Bet you didn't know that just by driving down the highway in Arizona, minding your own business, you were under suspicion for illegal activity. The notion is absurd. I'm also surprised that Homeland Security didn't get involved in this and claim that the devices would cut down on terrorist activity in the Southwest.
Oh, no terrorist activity in the Arizona desert? Well, that's just a little detail we don't need to worry about at this time.
This country was founded on the principle that the people have a right to be left alone by the government. The Bill of Rights enshrines that doctrine. But with a judiciary that would rather kowtow to law enforcement than exercise sound judgment, our right to be left alone has withered away to the point of extinction.
The Fourth Amendment is on life support as the result of a thousand paper cuts over the years. Judges are more worried about outcome than they are principle. You know the drill - if the court were to uphold the words of the Fourth Amendment, the bad guys would get away; therefore we must make an exception to the rule in this case... and in that case... and in this other case. You do it enough, there is no doctrine left.
We have the right to be left alone. The police don't have the right to interfere with your daily routine unless they have reasonable suspicion (itself an example of the courts taking liberties with the Fourth Amendment) that you have engaged in some type of criminal activity. These devices in the desert are only the latest method the government has dreamed up to circumvent that basic notion.
Wednesday, July 11, 2012
Arrest? What arrest?
What's in a name? That which we call a roseBy any other name would smell just as sweet.
-- Shakespeare, Romeo and Juliet (Act II, Scene ii)
* * *
"In constitutional terms, an arrest constitutes a "seizure" of the person, as that term is used in Fourth Amendment jurisprudence."
-- Dressler, Understanding Criminal Procedure (Sec. 10.01)
* * *
"Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission."27
What does it mean to be arrested?
-- Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (footnotes omitted)
Common sense (and the television screen) seem to indicate that cuffing a person is the same as arresting them. Of course our courts have gone to great lengths to obfuscate the meaning of the word when someone is accused of doing something really bad.
In the Matter of C.M., a Juvenile, the Waco Court of Appeals was asked to determine whether a teenager was under arrest at the time he was asked questions by a police officer without being reminded that he had the right to remain silent.
Oh, but did I forget to mention that C.M. did something really bad. It turns out that C.M. robbed a convenience store with a loaded shotgun. The police got word that the suspect was on the run and C.M. was caught in an alley not too far from the site of the robbery.
The police took C.M. back to his cousin's house and told him to stand next to his cousin's truck. He did as he was told. Around him were quite a few armed police officers - though none had their guns pointed at C.M.
A detective asked C.M. what happened and C.M. eventually stated that he had robbed a store with a shotgun. The detective then took C.M. to a patrol car where they could talk in a quieter environment. At no time was C.M. handcuffed while being detained or questioned.
At trial C.M. complained that his rights under Miranda were violated because he was subjected to a custodial interrogation without being warned of the consequences of speaking. The court held that C.M. was not subjected to a custodial interrogation because he wasn't under arrest at the time he was questioned.
According to the court, M.C. wasn't under arrest because the officers neither placed him in handcuffs, restrained him or told him he wasn't free to leave. Apparently being told to stand by a truck and being surrounded by armed officers doesn't constitute enough "restraint" for the ones in robes up in Waco.
But that's not all...
In Jensen v. State, the Fort Worth Court of Appeals decided that just because a suspect is lying facedown on the ground with his hands cuffed behind his back doesn't mean he's under arrest. But then Mr. Jensen had done something really bad.
It seems that Mr. Jensen shot and killed a buddy of his (my supposition) inside a motel room in Wichita Falls one evening. We know this because Mr. Jensen told the cabdriver he shot his friend in the head. The cabdriver then told the police and the police found Mr. Jensen leaving the parking lot of a Wal-Mart a little while later.
When the officer spotted Mr. Jensen he told him to get down on the ground. Mr. Jensen complied. The officer then cuffed Mr. Jensen and asked if he was carrying any weapons. Mr. Jensen 'fessed up about the gun he was carrying.
Mr. Jensen argued that the gun should be suppressed as it was the result of a search following an illegal arrest. The Court politely declined Mr. Jensen's request holding that just because he was lying facedown on the ground with his hands cuffed behind his back, he wasn't under arrest. You see, he was only being detained and the handcuffs were because the officer had information that Mr. Jensen was packing heat. And, since he wasn't under arrest, there was no search - it was just a Terry-style pat down. Now, once they had the gun, then Mr. Jensen was under arrest.
So, as always, if you need to get around that pesky illegal search or illegal custodial interrogation - just argue that the suspect wasn't under arrest.
Tuesday, July 10, 2012
A midsummer's night joke
Tonight's the night. The second Tuesday in July - the annual Midsummer's Night Classic.
That's right. The Major League Baseball All-Star Game.
It's literally the only game in town. For on the night representatives from the National League and the American League take the field against one another, there is never another team sporting event on the calendar.
And that's fine, seeing as how the ASG has become a stinking pile of doo under the watchful eyes of Bud Selig.
Once upon a time the game meant something - and not because of Selig's gimmicky give home-field advantage to the team representing the victorious league. Once upon a time it mattered because the players were honored to have been named to the team. Once upon it mattered because fans were able to see which league played the best brand of baseball. Once it mattered because, with the exception of the World Series, it was the only time you'd ever see players from both leagues on the field in the same game.
Mr. Selig's brilliantly stupid idea of playing interleague games screwed that up. The game lost it's entire raison d'etre with that decision.
And now we have the absurd situation of a game to decide home field advantage in the World Series being decided by a bunch of subs and scrubs. The big names will have long left the field in Kansas City when the game is decided. The players on the field at the end won't be the players voted into the game by the fans. They'll be the substitutes and the fill-ins for players who elected not to play.
The All-Star Game was meant to be an exhibition. A chance for the fans to see the best of the best on the field for one night. Thanks to Bud Selig the game has become a unwatchable joke. And this sorry excuse for a game will decided who has home field advantage when the two (supposedly) best teams in baseball meet in the fall.
Wake me when it's over.
That's right. The Major League Baseball All-Star Game.It's literally the only game in town. For on the night representatives from the National League and the American League take the field against one another, there is never another team sporting event on the calendar.
And that's fine, seeing as how the ASG has become a stinking pile of doo under the watchful eyes of Bud Selig.
Once upon a time the game meant something - and not because of Selig's gimmicky give home-field advantage to the team representing the victorious league. Once upon a time it mattered because the players were honored to have been named to the team. Once upon it mattered because fans were able to see which league played the best brand of baseball. Once it mattered because, with the exception of the World Series, it was the only time you'd ever see players from both leagues on the field in the same game.
Mr. Selig's brilliantly stupid idea of playing interleague games screwed that up. The game lost it's entire raison d'etre with that decision.
And now we have the absurd situation of a game to decide home field advantage in the World Series being decided by a bunch of subs and scrubs. The big names will have long left the field in Kansas City when the game is decided. The players on the field at the end won't be the players voted into the game by the fans. They'll be the substitutes and the fill-ins for players who elected not to play.
The All-Star Game was meant to be an exhibition. A chance for the fans to see the best of the best on the field for one night. Thanks to Bud Selig the game has become a unwatchable joke. And this sorry excuse for a game will decided who has home field advantage when the two (supposedly) best teams in baseball meet in the fall.
Wake me when it's over.
Death by a thousand cuts?
Last week Manhattan Criminal Court Judge Matthew Sciarrino, Jr. ordered Twitter to hand over three months worth of Occupy Wall Street protester Malcolm Harris' tweets and his personal information. Mr. Harris was one of hundreds arrested for holding a protest on the Brooklyn Bridge last October.
Manhattan prosecutors allege that Mr. Harris' tweets during that period belie his contention that he thought the group had police permission to march across the bridge. The tweets, of course, were deleted after the fact.
In his ruling, Judge Sciarrino declared that Mr. Harris had no standing to challenge the district attorney's subpoena for the records as the information was held by Twitter. In the past Twitter has argued that the individual tweeter "owned" the information and had standing to challenge any government requests for the records.
Now Twitter may find itself in the position of being forced to challenge each and every one of those requests itself. If that's the case, just how much longer can Twitter fend off government requests for user information? At what point does it become too expensive to stand up for principle?
But maybe that's the price that is to be paid for the one social media providers that has refused to bend over and grab its ankles when the government comes calling for records. Other firms have opened their doors wide open whenever someone wearing a dark suit, sunglasses and an earpiece comes a-knocking asking for user records. Twitter has been alone in standing up to the government in its attempts to data-mine user information.
So, if you can't get what you want, just make it so damn expensive and inconvenient that that other side finally just says "here, come and get it." That's what the government's strategy is. And that's something that should worry us all.
Because it's not just the content of the tweets that's at issue. It's something that many people still have a hard time coming to grips with in our social media age - once it's online, it's out there for all to see and it doesn't go away. But it's more than just a case of wishing you hadn't tweeted something - it's about the user's personal information, followers, IP addresses and locations.
Maybe you lost your ability to keep your tweets to yourself when you hit that send button, but did the people who follow you lose their freedom of assembly? Does the government have any business digging around to figure out where you were when you sent that tweet? Does the government have any business knowing whose computer you were using?
When Matthew Harris hit that send button, his tweets became as much a part of the public record as if he had stood on a soapbox and spoken through a bullhorn. But that doesn't mean his followers gave up their right to be left alone by the government.
Manhattan prosecutors allege that Mr. Harris' tweets during that period belie his contention that he thought the group had police permission to march across the bridge. The tweets, of course, were deleted after the fact.
In his ruling, Judge Sciarrino declared that Mr. Harris had no standing to challenge the district attorney's subpoena for the records as the information was held by Twitter. In the past Twitter has argued that the individual tweeter "owned" the information and had standing to challenge any government requests for the records.
Now Twitter may find itself in the position of being forced to challenge each and every one of those requests itself. If that's the case, just how much longer can Twitter fend off government requests for user information? At what point does it become too expensive to stand up for principle?
But maybe that's the price that is to be paid for the one social media providers that has refused to bend over and grab its ankles when the government comes calling for records. Other firms have opened their doors wide open whenever someone wearing a dark suit, sunglasses and an earpiece comes a-knocking asking for user records. Twitter has been alone in standing up to the government in its attempts to data-mine user information.
So, if you can't get what you want, just make it so damn expensive and inconvenient that that other side finally just says "here, come and get it." That's what the government's strategy is. And that's something that should worry us all.
Because it's not just the content of the tweets that's at issue. It's something that many people still have a hard time coming to grips with in our social media age - once it's online, it's out there for all to see and it doesn't go away. But it's more than just a case of wishing you hadn't tweeted something - it's about the user's personal information, followers, IP addresses and locations.
Maybe you lost your ability to keep your tweets to yourself when you hit that send button, but did the people who follow you lose their freedom of assembly? Does the government have any business digging around to figure out where you were when you sent that tweet? Does the government have any business knowing whose computer you were using?
When Matthew Harris hit that send button, his tweets became as much a part of the public record as if he had stood on a soapbox and spoken through a bullhorn. But that doesn't mean his followers gave up their right to be left alone by the government.
Monday, July 9, 2012
Life on death row
Just what does it mean to be locked up in Texas' death row in Livingston, Texas? Last week the BBC ran an interview with convicted death row inmate Ivan Cantu conducted by Paul Allen. In it, Mr. Cantu paints a stark picture of what it means to be locked in a cell devoid of human contact for up to 22 hours a day.
According to Mr. Allen:
Mr. Cantu was convicted of capital murder back in 2001 and sentenced to die. Last year he was within a month of being strapped down to the gurney at the Walls Unit in Huntsville before his execution was stayed.
Now I'm not here to discuss the facts of Mr. Cantu's case. I don't know anything more that what I heard on the radio and read in the article. My concern has to do with the manner in which we treat inmates such as Mr. Cantu.
The majority of men and women on our nation's death rows are guilty of murder. I don't think there's much question about that statement. But even the most despicable inmate deserves to be treated with at least a modicum of respect.
As Mr. Allen points out, the walls of the Polunsky Unit are grey and brown, the uniforms white and the windows (actually more slit than window) are covered in dirt and grime. The inmates on death row are locked in their cells for 22 hours a day. They are all held in solitary confinement. They have access to reading materials, radios and typewriters but no computers or televisions. Their days are devoid of any meaningful communication with another person.
And just as murdering an inmate doesn't bring his victim back to life or cure the gaping wounds left behind by violent crime, locking someone in a cage with human contact for 22 hours a day does nothing to relieve anyone's pain or loss.
Treating a man like a caged animal does neither the inmate nor society any good. We can certainly do better.
According to Mr. Allen:
This was a man [Ivan Cantu] who badly wanted to talk, who craves company more than almost anything else.
He said that this encounter with a complete stranger was the most exciting thing that had happened to him in ages.
Mr. Cantu was convicted of capital murder back in 2001 and sentenced to die. Last year he was within a month of being strapped down to the gurney at the Walls Unit in Huntsville before his execution was stayed.
Now I'm not here to discuss the facts of Mr. Cantu's case. I don't know anything more that what I heard on the radio and read in the article. My concern has to do with the manner in which we treat inmates such as Mr. Cantu.
The majority of men and women on our nation's death rows are guilty of murder. I don't think there's much question about that statement. But even the most despicable inmate deserves to be treated with at least a modicum of respect.
He is an articulate man, but he said something I had never heard before: the longer he stays on death row, the harder he finds it to express himself.
For all his voracious reading, the lack of regular conversation, he feels, is eroding his power to communicate.
As Mr. Allen points out, the walls of the Polunsky Unit are grey and brown, the uniforms white and the windows (actually more slit than window) are covered in dirt and grime. The inmates on death row are locked in their cells for 22 hours a day. They are all held in solitary confinement. They have access to reading materials, radios and typewriters but no computers or televisions. Their days are devoid of any meaningful communication with another person.
And just as murdering an inmate doesn't bring his victim back to life or cure the gaping wounds left behind by violent crime, locking someone in a cage with human contact for 22 hours a day does nothing to relieve anyone's pain or loss.
Treating a man like a caged animal does neither the inmate nor society any good. We can certainly do better.
Sunday, July 8, 2012
Make way for the sign (of the times)
Now Jim Crane, the new owner of the Astros, wants to get rid of the train that runs atop the stadium wall on Crawford Street. No, their is absolutely no connection between the Astros and locomotives. The train is a gimmicky homage (among all of the other gimmicks at the ballpark) to the former occupier of the lot - Union Station.
As a condition of MLB approving the sale of the Astros, Mr. Crane had to agree to abandon 50 years of tradition and allow the team to be moved to the American League. But if he wants to get rid of the train he should come up with a better reason than putting up more advertising signage.
More and more over the past decade, ballparks are becoming giant advertising vehicles in which a game just happens to be played.
As a condition of MLB approving the sale of the Astros, Mr. Crane had to agree to abandon 50 years of tradition and allow the team to be moved to the American League. But if he wants to get rid of the train he should come up with a better reason than putting up more advertising signage.
More and more over the past decade, ballparks are becoming giant advertising vehicles in which a game just happens to be played.
Workers last week attached these massive metal frames to the light tower in left field that will block most of the track upon which the train runs.
Friday, July 6, 2012
On second thought
Rudy Eugene was going to be the poster boy for the assault on bath salts. He was found in an incoherent state in Miami eating another man's face.
Bad stuff those bath salts. Ingesting the synthetic chemicals can cause paranoia, hallucinations and severe agitation. The use of bath salts has apparently reached an epidemic level in the Houston area. Just the other day police raided five smoke shops and arrested ten people for possession of bath salts.
A man from Manvel (between Houston and Galveston) died in police custody after ingesting bath salts. Well, maybe being pepper-sprayed in the face had something to do with that, too. And maybe he took bath salts - and maybe he didn't. The police were just relying on the word of his niece.
From an NPR piece on the Eugene case:
Maybe there are blood tests from other parts of the country that confirm a person who acted violently had the synthetic drugs found in bath salts in his body. But those reports just give us a number. A number with no context.
And that brings us back to Mr. Eugene. His girlfriend didn't believe he was using bath salts. She thought someone had either drugged him or placed a curse on him. Hey, a little irrationality every now and then never hurt anyone, right?
Just gotta hate when that happens.
Bad stuff those bath salts. Ingesting the synthetic chemicals can cause paranoia, hallucinations and severe agitation. The use of bath salts has apparently reached an epidemic level in the Houston area. Just the other day police raided five smoke shops and arrested ten people for possession of bath salts.
A man from Manvel (between Houston and Galveston) died in police custody after ingesting bath salts. Well, maybe being pepper-sprayed in the face had something to do with that, too. And maybe he took bath salts - and maybe he didn't. The police were just relying on the word of his niece.
From an NPR piece on the Eugene case:
Armando Aguilar, president of the Miami Fraternal Order of Police says the similarity between the face-eating attack and some other recent incidents in Miami are striking, ABC News reports:
"The cases are similar minus a man eating another. People taking off their clothes. People suddenly have super human strength," Aguilar said, according to ABC. "They become violent and they are burning up from the inside. Their organs are reaching a level that most would die. By the time police approach them they are a walking dead person."There is anecdotal evidence across the country of zombie-like people going on violent rampages after snorting bath salts.What there isn't, is scientific fact. What levels of the synthetic drugs found in bath salts cause a person to hallucinate? Which synthetic drug causes people to act like zombies? Are there other substances that could cause the same reaction? Did the supposed users have mental health issues in the first place?
Maybe there are blood tests from other parts of the country that confirm a person who acted violently had the synthetic drugs found in bath salts in his body. But those reports just give us a number. A number with no context.
And that brings us back to Mr. Eugene. His girlfriend didn't believe he was using bath salts. She thought someone had either drugged him or placed a curse on him. Hey, a little irrationality every now and then never hurt anyone, right?
"The man being depicted by the media as a 'face eater' or a 'monster' is not the man she knew, she said. He smoked marijuana often, though had recently said he wanted to quit, but he didn't use stronger recreational drugs and even refused to take over-the-counter medication for simple ailments like headaches, she said. He was sweet and well-mannered, she said.
"Eugene's girlfriend has her own theory on what happened that day. She believes Eugene was drugged unknowingly. The only other explanation, she said, was supernatural — that someone put a Vodou curse on him. The girlfriend, who unlike Eugene is not Haitian, said she has never believed in Vodou, until now.
" 'I don't know how else to explain this,' she said."Oh, and did I forget to mention, extensive lab tests showed that there was nothing more than marijuana in Mr. Eugene's system at the time he was shot and killed by police.
Just gotta hate when that happens.
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