Deflecting blame

Two weeks ago in South Africa, police fired into a crowd of striking mineworkers. Thirty-four miners ended up dead.

The police claimed the miners, on strike against a London-based mining company, charged at them with guns and machetes. The police claimed they had no choice but to open fire. Others have claimed that the violence was a result of a struggle between an established miners' union and an upstart that represented miners at the Marikana mine.



Now the government has come down on the miners, charging 270 miners with the murder of their co-workers. Prosecutors allege that the 270 men acted with a common purpose and that their actions led to the deaths of the 34 miners shot by police.

The men, none of whom are alleged to have fired a shot, were denied bail.

None of the police officers who killed the miners have been charged.

"The policemen who killed those people are not in custody, not even one of them. This is madness." 

There's something seriously wrong when the men who fired the shots are free while the men who were fired at are sitting in a jail cell awaiting their next court appearance. By blaming the striking miners, the government is able to distract the public's attention from the way in which the might of the state was used to crush a worker's rebellion.

Instead of the issue being the exploitation of workers and the transfer of wealth out of the country by a foreign corporation, the focus is now on the conduct of the striking miners. Instead of questioning the control of local resources by a foreign company, the public's attention is focused on whether the miners doth protested too much.

All around the world, and throughout history, those who control the means of production have used the force of the state to try to break the resolve of the working class. The police, whose mantra is to protect and serve, do in fact protect and serve their masters.

The government's actions are nothing more than a capitulation before the forces of international capital. The rule of law is tossed on its head and replaced with, as Mr. Gamso would note, the law of rule. The state charges the miners with murder because it can and allows the killers to walk free because it can.

Revenge, hypocrisy and the death penalty

Rick Perry has some catching up to do.

Earlier this week the Iraqi government announced that it had executed 21 prisoners convicted of terrorism, including three women. Last Sunday The Gambia executed nine prisoners, including one woman, by firing squad who had been part of the prior regime before the 1994 coup.

Iraq has now murdered 91 prisoners in 2012 - including mass executions on at least three occasions. President Yahya Jammah of The Gambia has announced he plans to empty the nation's death row by executing the remaining 47 prisoners by mid-September.

We have what we like to think is the best judicial system in the world and yet there are men and women freed from prison every year who were exonerated. If we make mistakes like that with our system, what are the chances the judicial systems in Iraq and The Gambia didn't make mistakes, too?

And what about our protections against coerced confessions? Such protections don't exist in Iraq or in The Gambia. Right to counsel? Right to confrontation? Who knows.

This is the gang the United States likes to run around with. Sure, we dress up nice and pal around with England and the Europeans when everyone's looking - but once the lights go out it's off to hang out with our real pals.

The ones we like to criticize for chopping off a convicted thief's hand. How barbaric we say, wringing our hands, when we're in public. But when that door's closed, we have no problem implementing our own version of an eye for an eye.

Our judicial system isn't perfect. No one's is. That's why, even with the number of safeguards that exist, people are wrongfully convicted. Thankfully our system has a means of escape. Even then, however, men and women sit in prison and miss family milestones like birthdays, holidays, graduations and funerals, waiting for the truth to set them free.

What safeguards exist in the Iraqi judicial system? How about the system in The Gambia? Is there any means in those nations to obtain post-conviction relief?

Anders Breivik murdered 77 people, including more than 60 teenagers, in Norway. He was convicted and sentenced to between 10 to 21 years in prison (though Norwegian law allows the state to hold him indefinitely). There will be no hanging. No firing squad. No electric chair. No lethal injection.

The death penalty is, or at least should be, an anachronism for an advanced society. It serves no purpose other than to allow us to experience the thrill of revenge vicariously. Isn't it time we moved beyond that?

A life spared

Anthony Pierce isn't going to die. At least not at the hands of the state's killing machine.

Mr. Pierce has been living on death row since 1978, longer than all but two of his neighbors. He was convicted of the 1977 murder of the manager of a fried chicken restaurant in Houston.

His first two convictions were both overturned as a result of problems with jury selection and two years ago the Fifth Circuit Court of Appeals ordered a new punishment hearing because Mr. Pierce was not allowed to put forth mitigation evidence at his punishment trial.

Now, rather than hold a new punishment trial, the Harris County District Attorney's Office has decided to offer Mr. Pierce life in prison. Since the punishment would be applied under the law as it existed at the time of his trial, Mr. Pierce will be eligible for parole immediately.

But why would the government finally stop trying to kill Mr. Pierce? Maybe it's because of the time the trial would take. According to Mr. Pierce's attorney, Robert Loper, jury selection alone could take a couple of weeks. The government would then have to muster its evidence and present it to the jury. Then Mr. Pierce would put forth a mitigation defense. Then there's the question of whether a jury would see blood in the water when the underlying crime took place 35 years ago. The public's appetite for revenge does cool off after a while.

In addition to the time involved, there's also the financial expense. Retrying punishment would tie up attorneys from both the DA's Office and the Public Defender's office costing the county far more money that it would to make the offer of life.

I'm sure Mike Anderson will raise a stink over the fact that Pat Lykos isn't foaming at the mouth to stick a needle in Mr. Pierce's arm. But Ms. Lykos has done the right thing. While you can criticize Ms. Lykos' management style and her dictatorial ways, one thing she has done is brought the Harris County DA's Office into the 21st century. She has done what she could to move the office past the good ol' boy days of Carol Vance and Johnny Holmes and Chuck Rosenthal. With her decision today she has shown the maturity to realize that there is no purpose in killing Anthony Pierce.

With a life sentence, there will be some degree of closure. There is no closure when the appellate and post-conviction process lasts more than three decades.

There is a small victory, however. Whenever a man or woman is taken out of the grip of the state's death apparatus, it's a victory for humanity and for decency. It's a victory for those who fight against the state's ability to kill prisoners.

For a primer in how to preserve error during jury selection, read the following opinions:

• Pierce v. State, 604 SW2d 185 (Tex.Crim.App. 1980)
• Pierce v. State, 696 SW2d 899 (Tex.Crim.App. 1985)
• Pierce v. State, 777 SW2d 399 (Tex.Crim.App. 1989)

Judge calls for heads in drug test fiasco

You know the drill. The client accepts an offer of probation because, like most sane people, he doesn't particularly want to find out what life's like behind bars. Every month he has to drive across town to meet with his probation officer and piss in a plastic cup.

Then comes the bad news. That little cup of pee turns out to be a tad bit dirty. Maybe a little weed, a little blow or maybe some plain ol' pharmaceuticals. The next time he walks into the probation office there's a surprise waiting for him - a man with a gun and a set of handcuffs.

As the cuffs are being snapped onto his wrists, he finds out that the DA has filed a motion to revoke his probation.

At the courthouse the prosecutor offers a one-time only offer of the absolute minimum. She tells his attorney that she should be giving him more because of the hassle he has put everyone through. Now's the moment of truth.

The only problem is that the state only has to prove up its allegation by a preponderance of the evidence - the same burden a plaintiff faces across the street in the civil courthouse. If he turns down the offer he knows he's looking at even more time behind bars.

But what if the results of the urine test weren't all they were cracked up to be? What if the probation department couldn't keep the samples straight? What if the paperwork was all screwed up? What if the probation department knew that their tests were yielding false positives?

If they were in State District Judge Denise Collins' courtroom, the folks from the probation department might be feeling a bit of heat under their seats. They might even hear the judge recommend that they be fired.

And that's exactly what happened this week in Harris County. Local defense attorney Lisa Andrews looked behind the curtain at the probation department and found out the wizard wasn't nearly as scary as he thought he was. She found evidence of clerical errors, mislabeled samples and knowledge of false positives.

Judge Collins wasn't too amused when she found out during what she expected to be a routine hearing on a motion to revoke probation. She was so frustrated with what she learned that she announced she would not be allowing any test results from the probation department in her court. She also called for the head of the probation department, and his top lieutenants, to resign. Which Paul Becker dutifully did on Wednesday.

Outgoing Harris County District Attorney Pat Lykos has announced that her office will not be relying on the probation department's test results until such time as she has reason to believe the problems in the department have been addressed and remedied.

"In recent court testimony, senior adult probation department officials revealed previously undisclosed issues concerning the accuracy and reliability of urinalysis testing performed by and on behalf of their agency. This moratorium will remain in effect until I am assured of the accuracy of the department's test results." -- Harris County District Attorney Pat Lykos

There is no telling how many people had their probation revoked, or their pretrial bonds forfeited, because of a dirty urine test. There is no telling how many people have been sent to jail or prison and lost their jobs because of the incompetent management of the probation department.

But, despite having the evidence in front of her, Judge Collins has refused to revisit the cases of anyone who had their probation revoked because of a bad urine test.

Can we trust any test result in a criminal case? Can we really put faith behind that number of the sheet of paper? Would you be willing to convict a person just because a printout shows a number the prosecutor says is too high?

The probation department has a reputation for being sloppy and unreliable. Maybe it's to be expected when you look at the people who are hired and wages that are paid. Who cares about a screwed up test result here and there when your desk is covered in paper and more cases are being dumped on your lap everyday?

Allowing the probation department to both administer and evaluate the tests is akin to handing the fox the keys to the chicken coop. In much the same way as crime labs need to be made independent of law enforcement agencies, testing needs to be taken out of the hands of the probation department.

See also:

"Houston probationers did jail time based on faulty drug test results," Grits for Breakfast (Aug. 26, 2012)
"A crisis in community supervision," Criminal Background (Aug. 26, 2012)

Poisoning the panel

The other day Scott Greenfield brought us the story of Erie (NY) County District Attorney Frank Sedita III whose biggest problem isn't wrongful convictions - it's "wrongful acquittals."

One thing Mr. Sedita failed to do was explain exactly how someone is "wrongfully acquitted." Has he never heard of the presumption of innocence? Has he never heard that the government must prove its case beyond all reasonable doubt? Does he not know what these terms mean?

I've never met Mr. Sedita, but I'm willing to bet that he's no dummy. I'm willing to bet he knows exactly what those terms of art mean. As buffoonish as the term "wrongful acquittals" may sound, that was just the smoke, or the sound or the scantily-clad girl that draws your attention away from the magician's hand.

Mr. Sedita is doing his best to poison the jury pool in Erie County without your even knowing it. While everyone's focused on his ridiculous statement, no one is paying attention to his real purpose in making it.

"I agree that the system is flawed, but in a manner that benefits the accused. I can accept that. Our system presumes a man innocent until he is proven guilty beyond a reasonable doubt. Ours is the greatest criminal justice system ever devised and I am proud to play a role in it. What I cannot accept is deliberate deception heaped upon an unsuspecting public. In my view, these so-called legislative reforms, offered under the pretense of preventing an injustice, are not intended to protect the innocent from wrongful conviction but are instead designed to shield the guilty from any conviction." -- Erie County DA, Frank Sedita III

Now, rather than focusing on whether or not the government has proven its case beyond all reasonable doubt, that Erie County jury panel is going to be wondering about just what the defendant did. Instead of holding the government to its burden of proof, that jury panel is going to be looking at the defendant and waiting for him to give them a reason to believe him.

Pretty sure he did it - but you got a nagging doubt in the back of your mind? Not a problem, vote guilty so we don't have another one of those "wrongful acquittals."

I could go on forever about how there's no such thing as a "wrongful acquittal." But y'all know that. What Mr. Sedita did was no different that what a prosecutor does when he asks a jury panel who just found a defendant not guilty whether it would have made any difference had they known about his prior criminal history. Or whether their verdict would have been different had they known about a certain piece of evidence the judge kept out.

The effect is the same either way. The only difference is that Mr. Sedita's remarks went out to the entire public and not just the twelve men and women in the jury box.

While Mr. Sedita might not like the fact that the government has such a high burden to overcome, the Founding Fathers made it so on purpose. Their greatest fear was the ability of the state to take away an individual's freedom. The founders believed that the power of the government came from the people; nowadays the government believes it's the other way around.

Mr. Sedita knows what he did was wrong. But he also knows that no one will ever do anything about it.

The candidate strikes back

In Texas both the Democratic and Republican parties hold primaries to determine who will be facing off in a general election. There is no party registration in Texas. Anyone can vote in either primary - the only restriction being that you can only vote in one party's primary and you can't vote in any run-off unless you voted in the primary.

Last May the parties held their primary elections. As you know, the incumbent District Attorney, Pat Lykos, was trounced by Mike Anderson and his "bring back the good ol' boys" campaign tour. On the Democratic side, perennial candidate Lloyd Oliver shocked the establishment and beat fellow criminal defense attorney Zach Fertitta in the primary.

Democratic officials went into a panic for Mr. Oliver has no party loyalty. He has run, and lost, in the past as both a Democrat and a Republican. He has admitted that the only reason he runs for office is to keep his name in the media to generate business.

Mr. Oliver has been indicted multiple times for barratry but has escaped relatively unscathed every time. He sent local Democratic party officials into a tizzy when he praised Ms. Lykos for some of the things she did in office. I have done the same thing. Her policy on so-called trace cases is the right thing to do. The very idea of sending someone to prison for possessing less than 1/100 of a gram of a controlled substance is beyond ridiculous. But don't tell that to Mike Anderson.

Mr. Oliver said that if he weren't running for District Attorney that he'd vote for Ms. Lykos.

That was enough for local Democratic party head Lane Lewis who decided he'd heard enough and that it was time to pull the plug on Mr. Oliver's candidacy. So, just like the party bosses from days gone by, Mr. Lewis snapped his fingers and wished the party's primary for DA away. Mr. Lewis decided that his opinion counted for more than the 57,000 or so folks who cast their ballots for Mr. Oliver.

And so, on Monday, the candidate struck back, filing suit in Harris County to put his name back on the ballot for the November general election. Mr. Lewis, fearing that a Harris County court might just give a little credence to the voices of Harris County residents wasted no time in getting the case removed to federal court.

Mr. Lewis' decision is both irresponsible and reprehensible. Removing the party's elected nominee for the top spot on the local ballot just concedes the race to Mike Anderson. And if Mr. Lewis got his panties all in a wad over Mr. Oliver's praise of Ms. Lykos, his removing Mr. Oliver from the ballot is not short of an all-out endorsement for the man who wants to take the DA's Office back to the good ol' days under Johnny Holmes and Chuck Rosenthal. Remember those days?

If Mr. Oliver's sin was to acknowledge that he preferred Ms. Lykos to Mr. Anderson, it doesn't compare to Mr. Lewis' doing what he could to ensure Mr. Anderson's election in November. If the wages of Mr. Oliver's sin is being removed from the ballot, Mr. Lewis should be removed from office.

Election law is not my forte but I know enough to know that it's awfully damn hard to win as a plaintiff in federal court. And it is quite ironic that the head of a local party is asking the feds to get involved in a local election.

If Mr. Lewis is so damn concerned about the upcoming election, perhaps he should be spending the party's time and money on get-out-the-vote campaigns and promoting the party's slate of candidates instead of airing the party's dirty laundry in public and actively campaigning against the choice of the people.

You want to avoid something like this happening again, Mr. Lewis? Then you might want to think about changing the rules on who gets to run in the party's primary before the next election cycle. Your job is to get local Democrats elected - now go do it.

Update: The link to the petition isn't working right now. I will upload the petition to Scribd later this morning so you can read it here.

Update II: The link should now be operational. If you have any issues accessing Mr. Oliver's petition, please let me know.

Rewriting the past

If you followed the Tour de France back in the early to mid 90's then you knew who Lance Armstrong was before he became famous. He was a typical tour racer. He would win a stage here and there but he was never in the fight for the overall lead. You may even remember the image of him in the last tour he rode before being struck with cancer. He had to abandon the race as he was worn out and couldn't go any further. The last shot of him was pedaling away from the race on a dreary, rainy day.

Then came the cancer saga and a new Lance Armstrong was born. He was forced to start from scratch and adopted new training technique and methods. And then in the summer of 1999, Lancemania exploded on the scene as everyone who had no idea what tour racing was all about got hooked as Armstrong won the first of his seven consecutive yellow jerseys.

But rumors followed him throughout his seven victories. Whether it was allegations of steroids, EPO, medications or blood transfusions, the smoke was all around him. No, he never did test positive for any banned substance while riding in Le Tour, but then Barry Bonds has never tested positive either, has he?

The tests are designed to detect banned substances, masking agents and metabolites of both. As we know from baseball, the cheaters are always one step ahead. There is so much money involved in the sport that the medical directors of the teams spend their time conducting Frankenstein-type experiments to determine how to increase the number and size of red blood cells without tipping off the testers.

It's not about the steroids. Steroids might be used during training to aid the cyclists in recovering from the effects of their workouts and rides, but the game during the race has always been to get more oxygen into the riders' bodies. And the oxygen comes in via the red blood cells.

EPO was the drug of choice in the 80's and 90's. The tests couldn't detect the drug but the authorities decided that if a rider's hematocrit level (percentage of red blood cells) was over 55% (or so), then the rider was doping and he was disqualified. That's when the cheating went all high-tech.

Riders would sleep in portable hyperbaric chambers prior to mountain stages. The oxygen in the chambers would ramp up the body's production of red blood cells which would increase the amount of oxygen going to the muscles. Riders also used blood transfusions to pump up their performance. A rider would have a pint of blood withdrawn here and there during the offseason and it would be stored in an oxygen-rich environment - or it would be treated with a cocktail of various drugs. Prior to the Tour de France the blood would be placed back into the rider's system.

The tests now are more sophisticated but they are still playing catch up (it's much like the government is always fighting the last war or the last terrorist attack instead of looking ahead).

For years Lance Armstrong fought the allegations with as much vigor as he attacked a mountain pass. But the United States Anti-Doping Agency wouldn't go away. They had lined up a bevy of his former teammates and competitors who were willing to throw Armstrong under the bus. But let's face it, all of the well-known riders have either been caught doping or are dodging allegations themselves. The sport is anything but clean.

But now, instead of going before an arbitrator to fight the allegations, Mr. Armstrong has raised the white flag. The USADA said that his refusal to go to arbitration in the matter is an admission of guilt. And with that tacit admission of guilt, his record seven consecutive Tour de France wins disappear - at least according to the USADA.

Maybe Lance played it right. Without an arbitration hearing the public doesn't see or hear the evidence against him. There is no smoking gun. Mr. Armstrong can claim he was the victim of a witch hunt and walk away knowing that he never failed a drugs test during his riding career. The USADA can posture all they want about stripping him of his Tour de France titles, but the public will remember who crossed the finish line on the Champs-Elysees those seven years running.

My wife thinks it's all a bunch of crap. She refuses to believe that Armstrong cheated. She has bought into the deification of Lance Armstrong. Anything short of an admission that he cheated won't be enough to convince her otherwise. And she's just one of many who feel the same way.

By bowing out of the fight, Mr. Armstrong lives to fight another day. He can still claim he's never failed a test and that there is no proof that he ever cheated. There will always be just enough doubt for him to maintain his claims of innocence.

I don't know the truth, but I have long suspected that Lance Armstrong walked a very fine line after coming back from his bout with cancer. I do believe he cheated and bent the rules. I don't think he's the only one. But I can't prove it.

Welcome to the newest berobed prosecutor

As predicted here the other day, Gov. Rick Perry appointed GOP nominee, and career prosecutor, Ryan Patrick to fill out Kevin Fine's term on the bench in the 177th District Court. And why not?

Mr. Patrick is the son of the ultimate wingnut, State Senator Dan Patrick. Oh, and did I ever mention that that is the same Dan Patrick who, as sports anchor at KHOU-TV in Houston, painted himself blue one night on the air as a publicity stunt for the Houston Oilers?

I am a Constitutional conservative who will put law and order back on the bench in Harris County.  As a career prosecutor, I have fought on the frontline to keep our community safe.  I have secured convictions in cases ranging from misdemeanor assaults to aggravated sexual assault and murder.  I want to put my experience as a prosecutor to work for you.  Currently, I am assigned to the Major Offenders Division where I am entrusted with prosecuting the worst criminals in our community.

Nice words, Mr. Patrick, if you're running for district attorney or sheriff. For those naive enough to believe that Mr. Patrick won't be a prosecutor in a black gown, that statement tells you all you need to know about our newest judge. How exactly will his experience as a prosecutor serve him on the bench?

And just what the hell does "Constitutional conservative" even mean? Does it mean he will take the words in the Bill of Rights literally and defend the public's right to be free from unreasonable search and seizure? Or is it just his way of saying that he will follow any precedent out there that makes it easier for the government to intrude upon the lives of our clients?

I hate to tell Mr. Patrick this, but his job is not be a liberal, a conservative or anything else other than a detached and neutral arbiter when sitting on the bench. His job isn't to see that the state obtains convictions and that his docket moves along nicely. His job is to ensure that a criminal defendant is presumed innocent unless proven guilty. His job is to ensure that the due process rights of a criminal defendant are protected. His job is to rule against the state when the agents of the state have violated the rights of the defendant.

As Scott Greenfield has pointed out countless times, judges like to believe that the police are telling the truth. Given a choice between believing the word of a defendant against the word of a police officer, the judge will take the latter every day of the week and twice on Sunday.

Why? Because most judges step onto the bench after working as a prosecutor or clerking for a judge. They've seen every case from the same perspective. They've never worked in the trenches getting their hands dirty. We hear the stories everyday about how the government imposes its will on the populace regardless of what the Constitution or Bill of Rights says. We know enough to be skeptical that the bag of pot just happened to fall out of the defendant's pocket as he was running from the police.

But for those who've never sat on that side of the courtroom the story the man in the uniform tells just sounds right.

Mr. Patrick's "career" has consisted of being a prosecutor since 2006. Six years. Six years in the DA's office. That's more than enough time to develop a full understanding of the law and how to apply it from the bench.

It is enough time, however, to take a ride on your daddy's coattails and ascend to the bench.

I got my "i" on you

We live in an age where we are encouraged to spy on our neighbors, co-workers and friends. It's all about conformity and ratting out anyone who dares to do something other than the ordinary.

Well, maybe not exactly, as we don't like those damn whistleblowers like Wikileaks that dare to expose our government's deep, dark, dirty secrets. The last thing we seem to want is to know just what our government does in our name. We certainly don't want someone like Bradley Manning letting the world know that the United States violated just about every international convention regarding torture and the treatment of alleged enemy combatants.

Now the paranoia patrol has come to Houston. Just take a gander at the new iWatch Harris County mobile phone app. Now the shiny gadget brigade has the ability to watch crime and rat out those suspicious looking folk they see hanging about.

Just think, it's even easier to spy on your neighbors and that hippy do-gooder living down the street. What better way to get around that pesky little Fourth Amendment than having normal everyday citizens poking their noses into everyone else's business? After all, the Fourth Amendment just protects us against overreaching by the state.

In Texas, however, we do at least have the additional protection of Article 38.23 of the Texas Code of Criminal Procedure that allows a jury to exclude any evidence that was obtained illegally - whether by the police or a private citizen. That is, if you can convince a jury to ignore the bad stuff your client did and focus in on the actions of the other party.

I wonder if the app will allow someone to report incidents of police brutality. What about illegal searches and pretextual stops? Testilying on the stand? Probably not.

Project dehumanization

It's certainly not unusual for the state to do whatever it can to dehumanize a person accused of a crime. Whether that be parading them around in bright orange jumpsuits, shackling them in the courtroom or treating them like animals in the jail. The goal of the state is to reduce an inmate or a pre-trial detainee to nothing but a number. Because once a person is reduced to a number, it becomes easier to treat him as something less than human.

You can add forcibly shaving a beard to that list.

Maj. Nidal Hasan is facing a court martial over accusations he murdered 13 military personnel at Ft. Hood in 2009. At the time of the alleged crime, Maj. Hasan did not have a beard. During his stay in pre-trial detention he grew one in the course of practicing the religion of his choice.

Oh, but this beard will never do. So said the judge presiding over his court martial, Col. Gregory Gross, who ordered the beard shaved off before Maj. Hasan's next court appearance.

But Col. Gross was overruled by the United States Court of Appeals for the Armed Forces, a panel made up of four civilian judges appointed by the president. The appellate panel ruled that forcing Maj. Hasan to shave his beard would violate his First Amendment right to practice the religion of his choice.

Well this was just too much for military prosecutors who could not allow a defendant to have any say-so in how he's treated while awaiting trial. What kind of precedent would that set? Next thing you know the detainees in Guantanamo might be given the power to tell the guards to stop the torture.

The prosecutors point out that active duty personnel aren't allowed to grow beards - but then the Army is trying to boot him out of the army and lock him up for life. What purpose is served by forcing him to shave his beard?

There is no rational reason. If the court is somehow distracted by Maj. Hasan's beard then it's probably a good thing they aren't out in the field where they could be distracted by lights, sounds, bombs, artillery fire and every other moving thing under the sun.

The only reason to force Maj. Hasan to shave is for the Army to show him that it's in charge. To show him that he's less than human. That's he's not entitled to practice the religion of his choice. What would happen if Maj. Hasan was Jewish and insisted on wearing a yarmulke? What if he were Christian and insisted on wearing a crucifix around his neck? Would the court have a problem with that?

If you want to break down a man, you take his individualism away from him. You take away everything that makes him different from those around him. You take away his hair. You take away his clothes. You take away his ability to choose. Then he becomes putty in your hands. It's the type of mind control and brainwashing the military has practiced for years.

It's dehumanizing. And, in the case of Maj. Hasan, it's wrong.

Update: Last minute reprieve

The State of Texas really wanted to stick that needle in John Balentine's arm tonight and pump a lethal dose of pentobarbital into his veins.

But the United States Supreme Court had something to say about that. Last night, less than an hour before he was scheduled to die, Mr. Balentine found out the Supremes stayed his execution - the second time his execution has been stayed in the last hour.

Mr. Balentine argued that his trial attorneys were deficient as they failed to present mitigation evidence during the punishment phase of his trial. The Court will consider his review next month. Should the court decline to review the case, Texas can once again go about planning Mr. Balentine's murder.

The debate over mitigation evidence highlights the capricious nature of the death penalty. If the purpose of the death penalty is to punish a murderer and to deter would-be murderers, then the background of the defendant shouldn't matter. The focus should be solely on the crime at hand. But when you bring mitigation evidence to the table you make the process more akin to a lottery.And to that mix you must add the randomness of whether a given defendant's attorneys have the time, money and expertise to sift through their client's background.

Even if I weren't opposed to the cold-blooded murder of inmates by the state, I would have a problem with the inconsistent way in which the death penalty is meted out. Any system in which an accomplice gets the needle while the gunman dies in prison cannot be saved.

That's the way the wild wind blows

Apparently the wind's been blowing extra hard out on the West Texas plains this summer. At least that's the only logical explanation I can come up with for the remarks made by Lubbock County Judge Tom Head.

It seems that Mr. Head is asking county commissioners for a tax increase to cover the additional expenses he expects the county to incur as a result of the insurrection that will follow should President Obama be re-elected in November.

Yes. You read that right. A local official in Lubbock, Texas has declared that the re-election of the president will spark a civil war.

“I'm thinking the worst. Civil unrest, civil disobedience, civil war maybe. And we're not just talking a few riots here and demonstrations, we're talking Lexington, Concord, take up arms and get rid of the guy." -- Lubbock County Judge Tom Head

Mr. Head thinks that Mr. Obama is planning to cede sovereignty over the United States to the United Nations. And when those blue-helmeted UN soldiers come a-knocking in Lubbock, Mr. Head will be on the other side of his rifle defending the dusty plains. Oh, and did I fail to mention that the county sheriff is on board with this, too?

Maybe that's just what a crazy-ass wingnut has to do in order to justify asking for a tax increase. Maybe those teabaggers and tin foil hat-wearing nutjobs are just flat out opposed to tax money being used for anything other than arming the military and the police.

Now I'm fairly certain that in the next day or two we'll hear that Mr. Head either misspoke, used the wrong word or was misquoted and that he didn't mean to imply that a vote for Mr. Obama was a vote for civil war. Or, maybe he'll be honest and admit that he's a complete nutjob and that watching tumbleweeds blow down Main Street all summer long was just a little too much for his sanity.

The absolute absurdity of the statement is demonstrated by the peaceful handing over of power that has taken place in this country ever since John Adams became president. The only time that the election of a president has spurred a civil war was when Abraham Lincoln was elected in 1860 - but that was in a day when there were two very distinct regions of the country and two very distinct economic systems at play.

Mr. Head's comments are shameful. Luckily the term "county judge" in Texas refers to the presiding member of commissioner's court - the bodies that govern each of Texas' 254 counties. There are a few instances, however, in which the county judge serves as the presiding judge of a county's Constitutional Court (luckily those instances are few and very far between).

Interestingly enough, Mr. Head doesn't tell us who the opposing sides are in his imagined civil war. It certainly sounds a lot like the apocalyptic warnings we hear from the far right and white power groups when they talk about the coming race war.

Our system of government didn't collapse when Ronald Reagan took office. It didn't collapse when Bill Clinton took office. It didn't collapse when George W. Bush won the presidency and it didn't collapse when Barack Obama was elected president. We have our differences and we have forums for expressing those differences.

If Mr. Head had any integrity, he'd step down. But, because he's a politician, he won't.

Strange happenings at the courthouse

It has been quite the exciting 48 hours in Houston politics this week. First comes word on Tuesday that State District Judge Kevin Fine is stepping down immediately and then on Wednesday we find out that the Harris County Democratic Party has removed Lloyd Oliver as its candidate for District Attorney.

Just what the hell is going on here?

Judge Fine has been the target of criticism from conservatives and other wingnuts since his campaign for the 177th District Court in 2008. Judge Fine never ran away from his past and acknowledged his past problems with cocaine. He also never shied away from doing what he thought was right, particularly when he ruled that the procedure Texas uses to sentence someone to death was unconstitutional.

Of course Judge Fine was alone in his opposition to the death machine because, well, because everyone else is more than content just to leave things as they are. I do hope that we will again, one day, have a judge who is willing to do what he or she thinks is right instead of taking marching orders from the 6th Floor.

Judge Fine was likely to be the primary target of local Republicans if he were on the ballot this year but he decided some time ago that he would not stand for re-election. His decision to step down immediately hands Gov. Goodhair the keys to name a replacement for the remainder of the term.

Anyone willing to bet that he'll choose the GOP candidate, Ryan Patrick, and let the monumentally unqualified son of uber-wingnut, State Sen. Dan Patrick, to run as the incumbent come November? In the interest of transparency perhaps he'll be allowed to continue in the DA's office while he sits on the bench.

"I can't believe the state party chairman would be in the same boat as those two goobers. And I guarantee that I'll do what I have to do to get a federal injunction." -- Lloyd Oliver

The saga of Lloyd Oliver is even stranger. Mr. Oliver, who has no political loyalty, has run for a variety of offices on both the Democratic and Republican ballots. In a shocking development  this past May, Mr. Oliver shocked the establishment and captured the Democratic nomination from fellow criminal defense lawyer Zack Fertitta.

The party bosses cringed at the thought of Mr. Oliver being the party's local standard bearer - particularly when he praised Pat Lykos, the current District Attorney. To be fair, I'd rather Ms. Lykos remain in office than be replaced by Mike Anderson (sorry, Murray), but then I'm not running for office.

Mr. Oliver does have a unique distinction among candidates for DA - he is the only one who has ever seen the workings of the DA's Office from the perspective of a criminal defendant. Now that's got to count for something.

But here's the part that makes little or no sense. The Harris County Democratic Party (doesn't that seem to be a misnomer in these circumstances?) has removed the candidate who received the most votes in its primary because they don't agree with something he said. Where was the party leadership when he filed to run in the Democratic primary? How arrogant is it for the party leadership to take the candidate who won the primary off the ballot? What does it say about the party bosses that they'd rather have no candidate at all? It seems that party chair Lane Lewis is a little delusional about the upcoming election.

I hate to break it to Mr. Lane, but no one is going to make a decision on whether to mark the straight-ticket option for the Democrats based on Mr. Oliver's name being on the ballot. Very few people really care. Folks who consider themselves Democrats will vote for the Democratic candidates and folks who consider themselves Republicans will vote for the GOP slate. Everyone else will cast their votes based on whatever criteria they choose to use. No down ballot Democrat is going to be hurt by Mr. Oliver heading the local ticket.

The only question that matters in this election is whether there will be enough votes for President Obama in the city to overcome the GOP vote in the county. If, as in 2008, the urban vote for Mr. Obama is greater than the suburban vote for Mitt Romney, the Democrats will win most of the local races - if, on the other hand, the suburban vote prevails, then the GOP will sweep the benches as they did in 2010.

Either way, neither Judge Fine nor Mr. Oliver would have any effect on the result.

An alternative to jailing the homeless

Once again kudos are due to a target of my barbs. This time it's Annise Parker, the mayor of Houston, who is presiding over the construction of a two-story warehouse that will serve as a sobriety center for our fellow Houstonians who have a tad bit too much to drink.

Now, instead of arresting folks for public intoxication and hauling them off to the city jail, the police can drop them off at the city's sobriety center. The facility will cost the city about $1.5 million a year, as opposed to the $4-6 million a year it costs the city to operate the city jail.

It is estimated that most of the people arrested for public intoxication, a Class C misdemeanor, are homeless. The sobriety center will move the city one step away from the policy of criminalizing homelessness.

It also brings a little bit of sanity to the situation. According to the penal code, it is against the law to be out in public and so intoxicated that you place yourself or others at risk. Most of the people arrested for public intoxication are sleeping at the time of their arrest. A good chunk of the other arrests for PI are of passengers in cars in which the driver is arrested for some other offense.

When the homeless are arrested for public intoxication they are booked into the city jail and taken before a municipal court judge the following day at which time they are offered a time served (or an extra night at the city's expense) and a complimentary conviction.

The problem of alcoholism and homelessness is not a story of criminal behavior. It's a story of a societal problem that we have done all we can to brush under the rug. Mayor Parker's embrace of the sobriety center is a step in the right direction.

Execution Watch: 8/22/2012

The wheels of the death machine in Texas keep rolling along...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

JOHN BALENTINE. It's the third execution date for the former auto mechanic and laborer convicted in the 1998 deaths of three teens in Amarillo. Prosecutors said the slayings were the result of a feud between Mr. Balentine and his ex-girlfriend's brother, one of the victims. Mr. Balentine was granted stays after arguing that his trial attorneys did a poor job. Mr. Balentine had a lengthy criminal record in his native Arkansas that included kidnapping, assault and robbery.

For more information on Mr. Balentine, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Wednesday, August 8, 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.

Pussy Riot and the decline of empire

Two years in prison for performing an anti-government song in a church. Two years in prison for insulting the official religion. Two years in prison for encouraging people to protest against the nation's leader.

Two years is what the three members of the Russian punk band Pussy Riot received after being convicted of hooliganism last Friday.

Russia is a country with a long tradition of discouraging dissent. Whether we're talking about life under the tsars, under Stalin or under Putin and his minions, the story is always the same. Those who speak out against the government are outcasts.

Criminalizing anti-government speech is the mark of an insecure leadership. Repression in Russia has survived for centuries because of the docile nature of the masses. When a people are scared to walk or talk out of turn, the result is a lack of creativity and new ideas.

Criminalizing speech is a means of controlling thought. You raise the price of poker enough, even the most ardent critics will begin to think twice before criticizing those in power. You eliminate criticism and you eliminate opposition to your ideas.  You eliminate criticism and you eliminate a very powerful check on authority.

New ideas are always born out of opposition or criticism of the ideas currently in vogue. As Marx would say, new ideas are born from the contradictions of old ideas. Yet that fostering of new ideas is the very thing the Soviet government fought against for decades. It is the same thing that Mr. Putin and his minions are fighting against today.

Every new movement in art is the result of a struggle against the existing movement.

Those who fight to prevent dissenting voices from being heard are the conservative wing attempting to prevent progress. That progress may not be smooth or linear but so long as there are competing opinions and competing visions, progress will be made. The alternative is stagnation and decay. All of the old empires fought off progress and they all collapsed under their own weight.

The Russian government is fighting a losing battle.

A not so open-and-shut case

The other day I was down in the little town of Rosenberg to try a speeding case for a truck-driving client of mine. It seems he was clocked doing 54 in a 35. Since he had a commercial driver's license our only option was to try the case.

The judge wore a polo shirt over jeans with suspenders. No robe-wearing man was he. Since we were the only case set for trial he had to find a random way to pick 15 potential jurors from the 30 or so folks who turned up for jury duty. After he did that he told them that they were going to be listening to a speeding case and that they usually took no more than an hour to try - but that since the defendant had an attorney, it might take a little bit longer. Nice.

Then we were shuffled from council chambers to a tiny courtroom down the hall. The bench was in one corner. Six chairs were set against the wall to the judge's right for the jurors. Council tables were against the opposite wall and the panel was seating in the middle.

I didn't care too much for some of the folks in the first two rows (based on overhearing them talking to each other in council chambers), so I asked that the panel be shuffled. Instead of mixing up the cards for a truly random shuffle, the court divided the panel into five groups of three jurors and rearranged the three folks in each group. Then they moved the last group up to third. So, the two people I didn't want in the first two rows were still in the first two rows. Nice.

The officer actually brought his LIDAR unit to court (that never happens in Houston). I got to play around with it a little bit.

Now being that there is no published court opinion stating that LIDAR has been proven to be reliable science, I decided to ask for a Kelly hearing to determine the admissibility of the evidence. I was banking on the city prosecutor not bringing in an expert - just assuming the evidence would come in.

Click here for the opinion from Hall v. State, 297 SW3d 294 (Tex.Crim.App. 2009).

The admissibility of LIDAR has only been taken up one time (where it was rejected by the Court of Criminal Appeals) because most cases involving LIDAR are in municipal and JP courts and most folks who get speeding tickets either take defensive driving or request deferred disposition. Due to the prohibitive cost involved, no one is going to appeal a traffic ticket case all the way up the ladder. The only way an appeals court will hear a case involving LIDAR is if the officer's use of LIDAR was the basis of the stop and the driver was arrested for driving while intoxicated, possession of a controlled substance or some other serious crime.

I asked the officer if he was familiar with the scientific principle behind LIDAR. He said he wasn't. I asked him if he could explain how the device determined a car's speed based on pulses of light. He couldn't. I asked him if he knew what calculations the device made in determining the speed. He hadn't a clue. I asked him if, other than the device's self-check, he had calibrated his unit before his shift. He said he didn't think it needed calibration and that he wasn't sure if it had ever been calibrated. I asked him if the device had ever had to be repaired. He said he didn't know. All he knew about the device was what he learned in an eight-hour course on how to use it.

Naturally the judge allowed the evidence to come in.

It didn't matter in the end. After deliberating for over an hour (that's right, six reasonably intelligent adults deliberated over a traffic ticket for more than an hour), the jury came back with a two-word verdict. My client was happy. The prosecutor was apoplectic.

My client and I both shook the officer's hand and wished him well. Then my client went to shake the prosecutor's hand. She refused to shake it. Instead she went on a tirade about what a bad driver he was and that he was lucky he hadn't hurt anybody and that he should know better than to drive 20 miles per hour over the speed limit.

Her reaction alone made my day.

I talked to a couple of jurors afterward and they told me the prosecutor gave them all a dirty look after the judge read the verdict. They also said that they had doubts about the reliability of the LIDAR device because the officer knew nothing about how it worked or if it had ever been calibrated. They also said they had received speeding tickets in the past but didn't think it was possible to beat them in court.

The lesson, of course, is that even a case that looks open-and-shut can be won - provided you find an issue that resonates with your jury.

Rearranging the deck chairs as the Disastros sink

The Houston Astros have now established themselves as a full-blown minor league team toiling at the bottom of the Major Leagues. In addition to its minor league roster (with a couple of exceptions), the Astros have named Tony DeFranscesco, the manager of their AAA affiliate in Oklahoma City, as interim manager.

This move follows the inexplicable firing of Brad Mills after the Astros lost to the Arizona Diamondbacks on Saturday night.

Brad Mills wasn't a good manager. He couldn't manage a bullpen and his day-to-day decisions would often leave folks scratching their heads. But Brad Mills can't be blamed for the steamy pile of dung the Astros have become.

Brad Mills isn't the person who traded away Berkman, Oswalt, Pence and Bourne, among others. Brad Mills isn't the person responsible for sorry state of the Astros' farm system. During the late 90's and into the 00's, the Astros would trade away prospects from their minor league system for rent-a-players who would leave via free agency after the season. You can't continue to do that unless you are planning on spending a whole lot of money on free agents down the road.

But back to the pathetic excuse for a major league baseball team that graces Minute Maid Park this season...

The only major league caliber player in the Astros' lineup is Jose Altuve. No one else who graces the infield or roams the outfield will ever be confused with a major leaguer (sorry, Brett Wallace - but the truth hurts). Bud Norris is the only consistent arm on the mound (Jordan Lyles may get there someday, but not today). With the massive salary dump this summer, who on earth would've thought this season would go any other way than it's gone so far?

This team is on pace to post a worst record than last year's sorry excuse for a major league team. That's saying something. And it doesn't look to get any better as the Astros "prepare" for the move to the American League next season (and don't even get me started again on that topic). The happiest team in the big leagues is Seattle because they know they won't finish in the AL West cellar next season. The next happiest team is the Texas Rangers because they get to beat up on the Astros 18 times next year in their own time zone.

Thanks to everyone involved for turning the Astros' 50th anniversary season into a year everyone would just like to forget.

Book review: The Impeachment of Abraham Lincoln

Ever play "what if?"

Sure you have. What if the referee had ruled that Mike Renfro caught that ball in the end zone against the Steelers? What if the Astros hadn't blown a three run lead in the ninth inning against the Mets in the 1986 NLCS? What if the Trojans had punted on 4th and short late in the fourth quarter of the Rose Bowl against Texas? What if I hadn't broken up with that boy/girl back in college? What if Abraham Lincoln had survived John Wilkes Booth's assassination attempt?

That is the idea behind Steven L. Carter's historical novel The Impeachment of Abraham Lincoln. In Mr. Carter's alternative world, Abraham Lincoln doesn't die from the gunshot wound he received in Ford's Theater. Andrew Johnson, on the other hand, was murdered and Secretary of State William Seward is injured so badly he never again appears in public.

President Lincoln becomes the target of the Radical Republicans as they attempt to remove him from office over policy disagreements and an alleged plan to stage a military coup in Washington. The House passes the Articles of Impeachment and the President's lawyers are preparing to defend him in the Senate.

Into this mix comes one Miss Abigail Canner, a young black woman who graduated from Oberlin College and was put in touch with one of Washington's most prominent law firms, Dennard & McShane. As fate would have it, Mr. McShane soon meets his demise and Mr. Dennard, who didn't want the case in the first place, is handling Mr. Lincoln's defense on his own.

Meanwhile Ms. Canner and Jonathan Hilliman, Mr. McShane's law clerk, go out sleuthing trying to piece together the conspiracy to bring down the president all against the backdrop of the Trial of the Century. Using speeches and documents used to impeach President Johnson, Mr. Carter serves up reasons both for removing the President and for keeping him in office.

The book raises the question of whether the ends justified the means in bring the Civil War to a close. It also asks whether impeachment is a remedy for major policy differences between the executive and legislative branches.

My only complaint is the way in which Mr. Carter brings his story to a conclusion. It seems like a cop out. Though, I suppose, it was the only way the book could end. All in all it's an excellent read and one that presents a new portrait of the man viewed by many as America's greatest President.

City to subsidize development of luxury apartments rather than affordable housing

It's a well rehearsed mantra any time a professional sports teams asks the government to use public money to fund a private business (what about that free market, boys?) - the new stadium will spur economic development in the area. You know, new bars, restaurants and shops.

Of course all those folks seeking to be entertained had to come from somewhere. And that somewhere is generally another entertainment and shopping district located somewhere else in the city. All the new stadium does is take money and jobs from one part of the city and transfer it to the area around the stadium.

Now the city of Houston is looking to subsidize the development of more living space inside downtown. Your tax dollars are going to be handed out to developers who promise to build apartments near the convention center.

So let's get this straight. The city is still trying to balance its budget. One member of city council suggested the city just default on pension payments for former city employees. The city has put in place hiring and wage freezes. The school district is laying off teachers and using long-term subs because the state has cut funding - and the city won't lift a finger. But we can afford to write a check to every developer that promises to build an apartment unit on the east side of downtown?

The city claims it has to do this due to the high cost of land and the expense of building. But haven't we been through this before? Remember when developers were running all over downtown buying up old buildings and turning them into lofts? Remember how that was supposed to revitalize downtown?

What happened was there was such a glut of apartment space on the market downtown that prices went down and owners and investors found themselves upside down.

Bars and restaurants opened and closed and opened and closed.

There are few of the amenities downtown that there are in the neighborhoods throughout the city. There's one grocery store and it doesn't even compare to the stores elsewhere inside the Loop. There's a gas station that charges way too much because there's no one to compete with it. And there's the parking nightmare that is downtown Houston.

If the developers can't build and sell units downtown profitably without taking a government handout, then maybe they shouldn't be building new units downtown. Maybe the city shouldn't be in the position of favoring one part of town over others. Maybe downtown Houston will never be the urban mecca the planners are trying to turn it into. Unlike New York or Philadelphia or Chicago or Baltimore, Houston was nothing more than a sleepy mosquito-infested hamlet until  President Eisenhower decided to build interstate highways as a means to transport nuclear weapons across the country.

Houston grew up with highways and air conditioning. The city sprawls out for miles because developers built where the new highways and roads were being built. There's no effective mass transit in Houston because there was never much of a grid (other than downtown) to start off with.

If developing more residential units in downtown Houston will create a financial windfall, developers would have no problem lining up investors. The fact that they can't come up with the cash to make the projects profitable should tell us something. If private investors won't pony up the cash, the city sure as hell shouldn't either.

If the city has money burning a hole in its pocket, maybe the money should be used to subsidize the development of low-cost affordable housing instead. But we all know that'll never happen. After all, it's the developers that pump all the money into city elections, not the folks who can't afford housing.

What the hell was I thinking?

Cleaning for pennies

Welfare was never meant to be a permanent fix. It was intended to be a temporary assistance program to help those who lost their jobs or their means to earn a living. Those folks collecting that monthly welfare check need to get out and get a job or their benefits should be cut.

So went the logic of the right back in the 1980's and 1990's when the nation's welfare laws were changed. President Clinton was the man who signed the so-called welfare to workfare legislation into law.

Of course no one looked at what entry level jobs were paying and whether or not one could raise a family on the paltry wages.

In Houston striking janitors have just ratified a new contract with building contractors to clean office buildings  in the downtown business district. The janitors had been out on strike for six weeks before the new contract was ratified.

When the janitors walked off the job in early July they were making $8.35 an hour. The contractors were offering a $.50 raise over five years while the janitors were demanding a raise to $10 an hour over a four year period.

Now let's take a look at the reality of $8.35 an hour. If a janitor worked 40 hours a week, he or she would make $334 a week. That works out to a little less than $1,450 a month. Just how easy is it to survive on that? There's taxes, rent, transportation expense, groceries and clothes. Maybe there'll be a little left over for a night out. And don't even think about health insurance.

The new contract will raise janitors' pay to $9.35 over the next four years. So, when the next presidential election rolls around these men and women will be making all of $1,620 a month. That's not taking anyone out of poverty.

And so, while Mitt Romney and President Obama are arguing about tax cuts for the wealthy, health care, unemployment and other issues associated with the so-called middle class, no one says a word about the plight of the working poor. No one says a word about raising the minimum wage and reducing the tax burden on those who work but will never have any kind of financial security.

In defense of learning

About two weeks ago, Scott Greenfield penned a wonderful essay in defense of algebra. His post was in response to an op/ed in the New York Times proclaiming there was no longer any reason to teach school children higher level math.

Now I wasn't the biggest fan of algebra, trigonometry and calculus when I was in high school. I got off on the wrong foot with algebra in middle school and struggled to catch up. I was quite happy at UT when I finished the one and only calculus class I had to take.

Of course now I lament my lack of knowledge about higher level math. After reading about chaos theory and economic theory I wish I had a more solid background in math. But, such is life.

Just the other day I saw a piece on NPR's website that seemed quite appropriate given the subject matter in Simple Justice. The thrust of the article was whether the piss poor job we're doing teaching our children proper grammar is ruining the English language.

The article seemed to take the side of the squishy academics who preach the whole word method and other ways of teaching language that don't require the rigid adherence to rules. And, in the long run, the lack of fundamental grammar knowledge isn't the death knell of the language - we can still understand what our children are saying even when they are too young to know the rules of construction. But there is a more fundamental issue at stake - and it's an issue that spans the gap between language and math.

Algebra and calculus teach us different ways to look at numbers and at the world around us. They take our concept of numbers as concrete objects and force us to think of numbers as concepts. We are taught various theorems and postulates that we piece together as syllogisms. It's a language all its own.

But learning that language teaches us how to analyze other concepts critically and logically. We learn how to put together arguments to support our hypotheses.

I think we would all agree that it takes a certain level of intelligence to be able to work through differential equations and conduct a regression analysis - but those topics don't usually come up during an ordinary day. The way a person speaks, however, does make an impression.

When someone makes a glaring grammatical error it just grates on the ears. When someone says "myself" instead of "me" it makes me want to scream. When I go back and reread a brief or a motion I end up trying to get rid of all the split infinitives.

How ironic it is that non-native English speakers can actually speak the language better than those of us who grew up in these United States.

These arguments against teaching higher level math and good grammar are emblematic of a deeper theoretical war. What is the purpose of education? Do our schools and universities exist to train people to earn a living as adults or do they exist to teach us how to learn and how to think critically? And what on earth is the problem of learning solely for the sake of learning? Does everything we do have to be with some end in mind?

Which brings me to one of Mr. Greenfield's pet peeves - the world of the lawprof. Yes, our law schools don't prepare students for the day-to-day reality of the practice of law. Yes, the tuition charged at most schools is beyond ridiculous. But the purpose of law school is to teach aspiring young lawyers how to think like lawyers, to provide young lawyers with a theoretical framework with which to view the world.

In the old days aspiring lawyers read the law under the tutelage of an experienced lawyer. They read treatises on evidence and property and whatever else was in the law library. They learned the theory so they could sit for the bar. At the same time they learned what a lawyer does and how to do it from their tutor.

That is the failing with our system of legal education today. But let's not get all utilitarian and turn law schools into vocational schools. And let's not turn our elementary and secondary schools into programs that do nothing more than train young people to sit behind a desk and do what they're told to do.

Swimming against the tide

I've written many times before about the myth of closure when talking about the death penalty. I've said often that killing an inmate doesn't bring anyone back to life. I've pointed out that killing an inmate doesn't take everyone back in time to a point before the crime.

Now Erika Christakis takes aim at the myth of closure. She points out in this recent piece in Time that the cult of closure didn't even appear on the scene until the early 1990's when it became quite apparent that the death penalty was not an effective deterrent against violent crime.

Ms. Christakis also makes the case that debating the proper case to merit the death penalty is an exercise in futility. As far as Ms. Christakis is concerned, the death penalty is a relic of history that deserves a proper burial.

In nearly every way, we live in a more civilized and less violent world, with dramatic declines in homicide, rape, assault, child abuse, animal cruelty and discrimination against the vulnerable. We have also acquired an ever greater understanding of the biological and social determinants of crime. Paradoxically, we tie ourselves in knots with this newfound sophistication, searching for a mythical sharp line where mitigating factors may or may not justify a death sentence. Does a brain injury from child abuse suffice? What about a parentless teenager who was led astray by a sociopath? What about a schizophrenic whose paranoia resulted in refusing to take his medications? Poverty? Retardation? Autism? 

But these mental gymnastics are morally and logically bankrupt, and we cheapen ourselves by deploying them. Our eye-for-an-eye approach to the death penalty is getting progressively harder to support with reason. We know the death penalty doesn’t deter people. We know it is extremely expensive to apply “fairly.” So the only remaining arguments are emotional — the most compelling of which is that the families of murder victims want it.

And she's right.

There is no logical reason to continue strapping inmates to gurneys and pumping them full of poison. The complete randomness of who is chosen to die makes it meaningless as a deterrent. Whenever you have a system in which the man who pulled the trigger is given life in prison while his partner in crime gets the needle, you have a truly messed up system.

And what about those mitigating factors that Ms. Christakis speaks of? Where do you propose we draw the line at mitigating punishment or culpability? And are we going to apply the same standards across the board?

There is a reason the death penalty has been outlawed in most of the developed world. Meanwhile we look for more and more reasons to kill people on this side of the pond. We are swimming against the tide on this one, people.

We claim to be more civilized than the rest of the world. We hold ourselves out to be a model for every other society to pattern itself after. And yet we continue to promote revenge, a purely negative state of mind, as one of our core values. What does that say to the world about us?

Book review: Who Gets What

With news that donations to a fund for the victims of the theater shooting in Aurora, Colorado have topped three million dollars, it's only appropriate to take a look at Kenneth Feinberg's book Who Gets What.

You may not have heard of Mr. Feinberg, but you're probably aware of some of his work. He's an attorney and a mediator who has been asked to manage compensation funds for soldiers exposed to Agent Orange, victims of the 9/11 attacks and folks on the Gulf Coast who suffered financial injury due to the Deepwater Horizon blowout.

His book is an account of how he came to design and manage those compensation projects. Yes, unless you are a mediator or a fund administrator, the book can be quite dry. The book also raises some troubling questions about who decides who gets what.

Let's take the 9/11 attacks as an example. In response to the terrorist attacks the federal government decided to set up a compensation fund the victims of the hijackings. Of course no one set up a fund to compensate the victims of the bombing of the federal building in Oklahoma City, but then that didn't happen on live television in New York City.

The government decided that the monies should be doled out with tort principles in mind. For those who haven't undergone a law-botomy that means taking lost wages into account when determining who gets what (since the hijackings were deliberate acts it apparently didn't mean determining whose negligence caused the deaths). The result was a plan in which the wealthier the person killed, the more money his or her relatives received. This valuing of lives lost caused much resentment at the time as the plan seemed to say that a stockbroker's life was worth more than the person working behind the counter in the cafeteria.

The larger question, however, is whether such a scheme was necessary or even wise. Why should the federal government give away our tax dollars to the victims of an unfortunate event? Who decides what events are so bad that they require the government to compensate the victims? And what about life insurance? Why are some folks entitled to double-dip in the compensation pool?

Nobody from the federal government lifted a finger to help the victims of Hurricane Katrina. For days those who were stuck in New Orleans lived in fetid conditions while President Bush twiddled his thumbs. The folks in New Orleans didn't ask to be hit by a hurricane. The residents of New Orleans weren't responsible for the canal built for the oil interests that created a man-made pathway for the surge from a storm striking the coast. The residents of New Orleans were responsible for the state legislature paying Tom Benson, the owner of the New Orleans Saints, to keep the team in the city (private enterprise, my ass) instead of maintaining the pump system and levees.

Mr. Feinberg's book doesn't delve too much into the issue of who decides who gets what. He prefers to spend his time describing how he and his team created the various compensation schemes and managed them. His programs included plans that were funded by the government and plans that were funded through private sources - including BP's $20 billion escrow fund after the blowout in the Gulf.

While I agree that our tort system isn't always the best method to compensate victims of wrongdoing, the compensation programs Mr. Feinberg administered have their own shortcomings. At least in litigation either a jury sits down and decides how much a claim is worth or the parties sit down with a mediator and make the decision. With these compensation programs the decisions were made by a man with no accountability who was given broad powers to act in an arbitrary manner.

The government knows best

The State of Texas has decided it is qualified to tell doctors how to run their practices and what to tell their patients. According to a proposed rule for the state's Women's Health Program, doctors would not be allowed to provide abortion counseling for their patients.

The gag order would extend to other doctors in the practice - even if they aren't participating in the program - as well as to other patients who are not in the program.

The purpose of the rule is very clear. It's yet another attempt by the far right to limit women's access to abortion. It's yet another example of the government getting involved in an area in which it has no business being involved. Our beloved state legislators are barely capable of doing that job (and everyday I am thankful that they are only allowed to meet for 140 days every other year); they are not qualified to stick their noses in the conversations that doctors have with their patients.

I understand that there are those who are adamantly opposed to a woman's right to have an abortion. Ironically, most of them have no problem with the state murdering inmates - but that's another story for another day. Of course most of them are also opposed to the coverage of birth control under the Affordable Care Act - but intellectual consistency has never been the calling card of the far right.

The proposed rule would seem to run afoul of that little thing we refer to as the First Amendment. The rule would impose a limitation on the ability of doctors to speak freely with their patients. It would subject the doctor to penalties should he provide abortion counseling to his patient.

Once again we find the far right cheering on the government's attempt to invade the privacy of its citizens without any apparent irony considering the tea baggers' insistence that the power of the government must be limited.

Blurring the line between science and propaganda

This past weekend my wife and I took our daughters to the Houston Museum of Natural Science. It had been a while since I was last there and it looked like a fun way to spend the afternoon. The kids were excited because Daddy was coming this time.

One of the first exhibits we looked at was the Weiss Energy Hall. All you need to know about the exhibit can be summed up with a list of corporate donors. Every energy company you've ever heard of, and some you haven't, threw the museum a few bones. It was a paean to the oil industry.

There were samples of drill bits and casing. They had little tanks with marbles and cranks so the kids could see the relative "weight" of various kinds of oil. They had games were the kids could take turns trying to be wildcatters. There was an exhibit about offshore drilling. They even had an example of slant drilling - a unique Texas way of stealing your neighbor's oil without him even knowing it.

There was a ride that simulated a trip down to the bottom of a well - and we even got to hear about the wonders of hydraulic fracturing.

But, interestingly enough (though not unexpected) there was not a single word about the environmental hazards of oil exploration or transport. Nothing about the Deepwater Horizon. Nothing about the dangers of fracking. Nothing but sterile, hygenic corporate propaganda about how wonderful the oil industry is.

I guess that's to be expected, seeing that the last thing the museum wants to do is piss off its corporate donors by putting in an exhibit that looks at the science of the oil industry. Heaven forbid we allow our children to see both the good and the bad of oil exploration and transportation. We certainly don't want out little tykes growing up and questioning the very foundations of the Texas economy. Better to turn them into quiet little sheep who won't go looking under rocks to find out the truth.

Of course the whole donor problem is nothing new to those of us who listen to NPR or watch PBS. Whenever the announcer tells us who gave the money so that the show could be broadcast you know you won't hear a critical word about that company during the broadcast.

But there is at least a little bit of hope. The other day on the local news segment on NPR there was a story about a University of Texas researcher, Cliff Frohlich, who came to the conclusion that the process of storing the used fracking fluid in deep underground injector wells was causing a multitude of minor earthquakes in North Texas. The Houston Chronicle even picked up on the story.

There was even an article that dared to look at the contamination of ground water by hydraulic fracking fluid. Here is a link to the study that looks at five ways in which fracking fluid can contaminate surrounding drinking water.

If the museum actually wanted to educate the public about the science involved in the oil industry these are some of the topics that should have been discussed in the exhibit. But, instead of putting together a science exhibit, the museum, instead, put together an industry-sponsored commercial. Now why should any of that be tax deductible?

Judge, jury and executioner

The Obama administration's assault on the Bill of Rights - and the Constitution - continued yesterday when the government conceded to a federal judge that it was limiting the access defense attorneys had to their clients being held at Guantanamo Bay. The government told the judge that military and intelligence officials would have control over who had access to the detainees. Furthermore, the government told a judge that since the detainees were being held at a military base, the executive branch would hold the key to the jail, not the judiciary.

According to Lyle Denniston in yesterday's SCOTUSblog:

Since the Supreme Court’s 2008 decision in Boumediene v. Bush,  guaranteeing Guantanamo prisoners a right to go to court to test their detention, the issue of lawyers’ access has been within the control of federal District judges in Washington.  Under the new regime that began to be unveiled this summer, the Administration intends to shift that process entirely to the military and government intelligence agencies. The commander of the Naval base at Guantanamo is to gain full veto power, beyond review, over the access question, and the intelligence agencies would have the final veto power over access to classified information — even if that information comes from the detainees themselves. 

If this is upheld by Chief Judge Royce C. Lamberth after his review, lawyers for detainees will have to agree to the new limits as a condition for any access to their clients or to classified data.  So far, some of the lawyers have agreed, but others are resisting, and are asking Judge Lamberth to keep control over the issue within the District Court under orders that have been in effect for the past four years. 

The new regime is designed, Monday’s new government filing made clear, to give the military firm new control over the military base that is located on the island of Cuba.  The new document repeatedly stressed the military character of Guantanamo, and said its day-to-day functioning must remain within Executive Branch control.  There are now 168 detainees in the military prison there, most of whom are not facing prosecution for any crime. Also held there, though, are what the government calls “high-value detainees,” including the five individuals who are facing military commission trials for planning the terrorist attacks of September 11, 2001.

So there you have it. Our government has been holding these men for years without being charged and without any meaningful contact with an attorney. All in the name of keeping us safe.

Everything our government does to limit, restrict and infringe upon our fundamental rights is preceded either by "it's a dangerous world" and "the need for security." Yet every time no stands up to the government to challenge its decree, those things that make us unique are slowly ground into dust.

And if this is what a supposedly liberal administration is willing to do, just imagine what a law-and-order loving conservative (reactionary?) administration would do. Never forget that the right's calls for limited government only refer to the ability of the government to tax the rich, regulate the corporations and provide a safety net. The right has never had an issue with increasing the government's power to intrude upon the private lives of its citizens or residents.

When President Obama took the oath of office on January 20, 2009, he promised to defend the Constitution and to uphold the laws of the Untied States. His record, however, when it comes to Guantanamo Bay, detainees, secret foreign prisons, torture and the murder of suspected terrorists is nothing short of shameful.

How is he going to answer his daughters when they asked him why he authorized our government to torture suspected terrorists in secret prisons around the world? How is he going to answer his daughters when they ask him about his decisions to kill American citizens without affording them the right to due process? How is he going to answer his daughters when they ask him about how he ignored the Constitution and Bill of Rights?

Update: Of mice and men

So what if the man's mentally retarded. Who cares about our pronouncement that it violates the Eighth Amendment to execute a man who's mentally retarded? That's a matter for the states to decide and we won't dirty our hands trying to decide who's retarded and who isn't.

We need closure. The victim's family needs closure. We need people to understand that if you take a life in Texas that you're going to lose yours. That is, unless you're white and wealthy. If he was mentally retarded, how was he able to plan a murder? Besides, he wasn't nearly as bad as that Lenny character in that Steinbeck book.

Maybe that's not what the justices on the Supreme Court said and maybe that's not what Governor Rick Perry said. But it's certainly what they meant.

Whatever the actual language used, Marvin Wilson, a man with an IQ of 61, was murdered by the State of Texas last night. He was murdered despite the fact he is mentally retarded. He was murdered despite the fact the Supreme Court said it's cruel and unusual to execute a mentally retarded person.

Prosecutors maintain that Mr. Wilson wasn't retarded. After all there were two trials in this case - and in both cases the judge decided that Mr. Wilson was competent to stand trial. Nevermind that Texas courts base their decisions on the way John Steinbeck described Lenny Small in his novel Of Mice and Men. Nevermind that the state has never used science to establish the threshold for mental retardation.

Of course if a defendant is mentally retarded, can he even be found mentally culpable for the crime in the first place?

As I was driving home from the office last night I was listening to Execution Watch on KPFT-FM and the show's resident legal resident, Jim Skelton, raised a very troubling point in capital cases. In Texas a defendant convicted of capital murder is afforded an automatic direct appeal to the Court of Criminal Appeals. Should that appeal be unsuccessful the next step is the filing of a writ in the trial court alleging that something about the workings of the trial violated the defendant's rights. Guess who presides over the writ hearing?

If you guessed the trial judge you guessed right. Just let that sink in for a second. You're filing a writ in your client's case alleging that he was not afforded a fair trial and the person you're asking to make that determination is the judge that oversaw the trial in the first place. See the problem?

There is plenty to ponder with the death of Mr. Wilson and there are plenty of questions left unanswered. I just hope Rick Perry feels like more of a man for having murdered a mentally retarded man last night. How much fun could that have been, Governor, when the man you were killing wasn't even aware of what was happening to him?

It just leaves a black mark on everyone involved in the decision to strap Mr. Wilson down on that gurney and jab that needle in his arm.

Judge Fields goes outside the box

Over the years I've dealt out plenty of criticism on this blog. I would also like to think that I've given credit where it's due, as well.

One of the targets of my criticism has been Judge Michael Fields, the presiding judge of Harris County's Criminal Court at Law No. 14. Well, today Judge Fields is on the receiving end of some praise.

Last week Judge Fields revealed to Chris Tritico, the President of the Harris County Criminal Lawyers Association, that he has instituted a new docket control plan in his court. From now on a defendant will appear for an arraignment setting and then, if he has already hired an attorney, his case will be reset for four months.

The next appearance by the defendant will be a motions setting and then the case will either be set for plea in 30 days or trial in 60 days.

In the meantime the attorney is expected to investigate the case and attempt to work it out with prosecutors.

The new plan frees defendants from having to take off work to come to court for meaningless settings while the case is pending. For those of y'all not familiar with the way in which the criminal courts operate, most settings involve the defense attorney thumbing through the file looking to see if there's anything new and then taking a stab at convincing the prosecutor to dismiss the case. Then a reset is signed and the entire process repeats itself three to four weeks down the road.

Of course there is a price to pay for such a change - the defense attorney will have to put together a checklist and a calendar for each case in order to make sure he or she is doing the work that needs to be done in the meantime. Motions will have to be drafted and filed. Informal discovery will need to be conducted. Meetings with prosecutors will have to be scheduled.

But, then, that's what we're paid to do. The new plan will force attorneys to be disciplined enough to get the work done when it needs to get done. It will also make it easier for our clients to fight their cases without worrying about losing their job because of court appearances.

And then there's the issue of payment. It's not unusual for an attorney to set a fee, collect a portion of it upfront and then collect the rest each court appearance. The new docket plan will force attorneys to do a better job of either collecting the fee upfront or at least collecting a larger portion of the fee upfront. It will place the onus on the attorney to collect his fee while the case is pending. It will also force the attorney to make a decision on whether or not to withdraw due to non-payment of the fee earlier in the case.

For defendants and for defense attorneys, Judge Fields' new plan is a vast improvement over the way things operate at 1201 Franklin and I give the judge kudos for being innovative in trying to figure out how to move his docket.

Bondsmen, on the other hand, may not be so happy with the plan. If a person doesn't need to be in court for a four month stretch, there is little the bonding company can do if he decides to skip out. So long as he checks in with the bonding company by telephone every week they won't have any idea whether or not the defendant is even in the state. Whether this will result in higher bonding fees or more contractual conditions for cases in Judge Fields' court remains to be seen.

All in all it's a step in the right direction.