Wednesday, October 31, 2012

Book review: The secret race

Lance Armstrong was right. It wasn't about the bike. It was about the EPO, testosterone and blood doping. After years of denials and hundreds of thousands of dollars (more likely millions) in legal bills, Mr. Armstrong gave up the fight against the USADA. As a result the UCI (international cycling body) stripped Mr. Armstrong of his record seven consecutive Tour de France titles.

Yes, I know there are those who still swear that Lance did nothing wrong (my wife is one of them). Those who still believe in Lance are either naive or blind to reality. For an inside look at the reality of bike racing you might want to take a look at The Secret Race: Inside the Hidden World of the Tour de France, Doping, Cover-ups and Winning at All Costs by Tyler Hamilton and Daniel Coyle.

Mr. Hamilton, who was busted for doping, broke the code of silence of the peleton and revealed just what the top riders in the world did to put themselves in position to win the most coveted bike race in the world.

Tyler Hamilton and Lance Armstrong were teammates on the US Postal Service team. Hamilton served as Armstrong's loyal lieutenant guiding him the mountains and protecting him from attacks from the field.

The Secret Race takes us behind the curtain and into a secretive world of doctors, science and cheating on a scale you just won't believe.

Doping was so pervasive in the late 90's and into the 2000's that the UCI has refused to name a winner for the Tour de France from 1999-2005. In the seven years that Lance Armstrong won the race, 20 of the 21 racers who wound up on the podium have been implicated in cheating.

The obvious question, however, is should it even matter that Armstrong cheated? Professional sports long ago stopped being about the sport. It's all about the marketing now. Companies are willing to spend millions of dollars to put their name on a biker's shirt or shorts (or on the driving suit of a race car driver). Television networks are willing to spend insane amounts of money to purchase the right to broadcast a sporting event because they know there are plenty of advertisers who will be more than happy to pony up a bunch of money for the privilege of running an ad during the telecast.

All of that money flowing into the sport puts tremendous pressure on athletes to find whatever edge they can in order to stay at the top of their craft. It doesn't matter whether we're talking football, baseball, track and field or bike racing, if you're not pushing the envelope and stretching the rules as far as you can, you risk being left behind.

The Secret Race will open your eyes to the secret world of bike racing, but it will also make you take a second look at the public persona of Lance Armstrong. There is the Lance you see on television and in the press - and then there's the Lance the rest of the peleton knew. I'm sure it goes with the territory but the Lance depicted in the book is egotistical, manipulative, insecure and very, very cunning.

You won't look at the yellow bracelet the same again.

Tuesday, October 30, 2012

Execution Watch: 10/31/12

The state that loves to keep on killing will do it again on Halloween...


DONNIE ROBERTS. Condemned for the slaying of a live-in girlfriend found shot to death in their home in 2003, Mr. Roberts appealed on several grounds, including the trial judge's refusal to allow a defense expert to testify that Mr. Roberts' combined use of alcohol and crack cocaine had fueled the crime. His execution will be the 250th under Gov. Rick Perry.

For more information on Mr. Roberts, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, October 31, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: > Listen

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

Monday, October 29, 2012

We want yer munny

For those not familiar with how things work here in Harris County, METRO is short for Metropolitan Transit Authority - the agency in charge of mass transit in the Houston area. This year METRO wants authority to issue a bunch of bonds whose supposed purpose is to improve mass transit but is really all about widening roads for the benefit of developers in the suburbs.

But, regardless of your feelings on how METRO operates, do you really trust them with your money if they can't even spell?

Friday, October 26, 2012

Droning on and on and on

It's always amusing when a right wing-nut suddenly becomes a champion of privacy and the citizenry's right to be left alone by the government. They have no problem with the government telling folks with whom they can sleep. They have no problem with the government telling folks who they can and cannot marry. They have no problem sticking their noses up a woman's uterus and telling her what medical procedures she can and cannot have. They have no problem with the steady erosion of the Fourth Amendment.

But now Ted Poe's a believer. He is up in arms about the possibility of unmanned drones patrolling the skies over Houston.
"There will be some more changes in that it will be specific about law enforcement use, civilian use, and commercial use, and the overriding concern about constitutional protection of the Fourth Amendment and the right of privacy," Poe said of the legislation, which he did not expect to be considered until next year. "So were going to get everybody involved in that situation before we see more drones in the air."
Of course as long as the drones are flying over the Middle East and dropping bombs on dark-skinned folks Mr. Poe hasn't a problem.

But I'm more than happy to welcome Mr. Poe to our side in the fight against government intrusion in our lives. I'm more than happy to have him push for the restoration of our Fourth Amendment rights against unwarranted government search and seizure.

I share Mr. Poe's concerns about the dangers of unmanned drones over Houston. With their eyes in the sky, the police will be able to see things they could never see without a search warrant. They will be able to see things they would never be able to see absent a showing of probable cause.

And, if the test to determine the reasonableness of a search then unmanned drones will all but do away with any reasonable expectation of privacy we might have outside our homes. If the owner of a piece of land also is considered to be the owner of the earth beneath him, maybe the answer is to extend that "ownership" to the space above as well. Just a thought.

The unmanned drone lobby (yes, there is such a beast) argues that the more drones, the merrier.
Gretchen West, executive vice president of the Association for Unmanned Vehicle Systems, said the introduction of drones into the nation's airspace could add 23,000 new jobs by 2025. Her group of 6,300 members includes 225 in Texas, including BAE Systems, Lockheed Martin, and Raytheon.
Well, there you go. You do have a choice. You can choose between your right to privacy or jobs. In these economic times it would be just plain unpatriotic to sacrifice jobs for the Fourth Amendment.

It couldn't be that BAE Systems, Lockheed Martin, Raytheon and the other members of the drone lobby make their profits off the threat of continual war, could it? These companies have sat down at the public trough and taken our tax dollars to produce items whose sole purpose is to kill. These companies pump massive amounts of dollars into political campaigns in order to prevent the bloated defense budget from being cut down to size.

So, Ted, I'm with you, man. Let's work together to get the government out of our private lives. Let's work together to strengthen the Fourth Amendment. Let's work together to end the military-industrial complex.

Thursday, October 25, 2012

Update: Texas kills again

This time it was Bobby Lee Hines.

Mr. Hines murdered Michelle Haupt 21 years ago in Dallas. He was 19 at the time.

The death of Mr. Hines did nothing to heal the pain the Haupts have felt since their daughter was killed. The hold in their lives is still there. There daughter is never coming home again.

The State of Texas killed Mr. Hines for the sake of killing him. There was nothing to be gained by pumping him full of a lethal dose of pentobarbital. His actions on that day 21 years ago were not magically erased.

You can't really even call the murder of Mr. Hines revenge. Harold Haupt, Michelle's father, was upset that it took 21 years for the state to get around to taking Mr. Hines' life. He was upset that his death appeared so peaceful. As he described it, Mr. Hines was put to death with a sleeping pill.

So who's satisfied by this outcome?

Nothing was solved. No one was healed. Two families have suffered a loss.

I'm sorry for the loss the Haupts suffered. I can't imagine the pain of losing your child in that manner. But one murder does not justify a second murder.

The state is still killing. People are still killing. The state will continue to kill until we tell our government that we've had enough killing for the sake of killing. People will continue to kill each other so long as there are alcohol, drugs, money and women around.

For those who champion limited government I ask how you justify affording the state the most intrusive power it can wield? You're up in arms when the federal government proposes a measure to mandate health care coverage for (more or less) everyone, yet it doesn't even phase you when the government kills in your name.

It's time to stop it.

The bias shows through

Oh, Murray, Murray, Murray.

He does talk out of both sides of his mouth at times. The other day he ran his recommendations for the judicial races in Harris County. Most of his recommendations were as I expected. Murray is conservative and he's still got a lot of prosecutor in him.

But some of his comments about the candidates in the race for the bench in the 177th Judicial District were astounding - even for Murray.

To recap, back in 2008 a Houston criminal defense attorney named Kevin Fine unseated Devon Anderson and became the lightning rod for conservative activists in the county. Earlier this year Judge Fine announced that he would not seek re-election and the race was on to succeed him. Houston criminal defense attorney Vivian King took the Democratic nomination and Assistant District Attorney Ryan Patrick won the GOP tilt. Then Judge Fine decided to step down early and that allowed Gov. Rick Perry to appoint Mr. Patrick to the bench (it certainly helps to be the son of a zealous right-wing state senator).

The fact that Murray wants everyone to vote for Ryan Patrick should come as no surprise. He's a right-winger and he's straight out of the prosecutor's office. There are those who are worried that Mr. Patrick doesn't have enough experience to sit on the bench (among other problems) According to Murray, however,
I worked with Judge Patrick when he was a prosecutor and I can attest that those concerns aren't valid.  He exhibited a solid record of good judgment and fairness that will translate to him being a good judge.  He rose quickly through the Office and was a Special Crimes prosecutor at the time he left to be sworn in.
So it's alright for a lawyer to walk right out of the DA's office, slip on a black polyester robe and preside over a criminal court. Without any experience as a defense attorney, Mr. Patrick doesn't understand just how much the system is stacked against a defendant. He is part of the machinery that cranks out "chain pleas" and sets exorbitant bonds for defendants. He has never had to deal with a lying police officer on the stand or with a prosecutor who refuses to turn over Brady material.

But, god forbid if a defense attorney wishes to be a judge. Murray has a definite problem with that. According to Murray,
The primary concern of most prosecutors that I talk to is that she is so deeply committed to being a criminal defense attorney that she couldn't be a neutral judge.
So what if prosecutors don't want a defense attorney on the bench. I wouldn't expect them to. It's much easier to prosecute cases with judges who walked out of the DA's office in the judge's chambers. It's much easier to prosecute cases with other like-minded attorneys who consider themselves to be "tough on crime." It's much easier to prosecute cases with judges who have never had to sit at a table with a criminal defendant knowing they are the only person standing between the defendant and jail.

I like Murray. He's a nice guy. But there are times I wonder if he really knows what side of the fence he's on. I don't think he ever wanted to leave the DA's office. Had Pat Lykos not won the GOP nomination four years ago, Murray may never have left the office.

Ryan Patrick is not qualified to sit on the bench. Vivian King is the better choice in the 177th. We don't need another judge straight out of the prosecutor's office.

Wednesday, October 24, 2012

Update: Florida's execution of John Ferguson foiled

John Errol Ferguson was set to be murdered by the State of Florida last night.

The State of Florida said he was perfectly competent enough to strap him down and pump his veins full of lethal chemicals. The trial judge said he was sane. The appellate court said he was sane. The state supreme court said he was sane.

But then the 11th Circuit Court of Appeals said he wasn't.

Mr. Ferguson suffers from paranoid schizophrenia. He believes he is the prince of god. He believes he has been prepared by god to save the United States from communism.

He is also a murderer. He killed eight people in Florida in 1977 and two more in 1978.

Our courts have struggled over the years to justify the power of the state to kill for the sake of killing. Our courts have decided that it isn't right for the state to kill someone if that person doesn't understand why the state wants them dead - or if that person doesn't even understand that the state wants to kill him.

After all, what fun would it be to kill someone if the act didn't cause mental anguish to that person? Is revenge not as sweet when the target doesn't realize what's happening?

If it's not okay for the state to murder an inmate because that inmate either doesn't realize he is being murdered or doesn't understand why he's being murdered, how is it any more right for the state to murder an inmate who is perfectly competent?

I would love to have someone explain to me the difference between killing a sane person and killing an insane person. In my mind it's either perfectly acceptable to do it in both cases - or it's unacceptable in either.

By now y'all should know which side of the fence I fall on. The power of the state to take the life of a person is the most invasive power the government has. The very notion is anathema to democracy and limited government.

I understand what's going on here. The game plan for death penalty opponents is to chip away at the legality of the death penalty by creating a patchwork of exceptions. At some point there will be so many exceptions that the death penalty will be defeated. For a historical example just look at how the Fourth Amendment has been completely eviscerated by a thousand exceptions. At some point the foundation cracks and the framework comes crashing down.

But it doesn't have to go down this way. The only crime for which the death penalty is prescribed in the Constitution is treason. The Nine in Robes could decide that having a patchwork of laws across the country detailing who can be killed for what - as well as having different laws across the country regarding who can order death and how we conduct jury selection in death penalty cases - violates the Equal Protection Clause of the 14th Amendment.

If the crimes for which one can be sentenced to death are arbitrary and the method by which the state chooses who is to die is arbitrary, then, it follows, the death penalty, itself, is arbitrary (which is why it was declared unconstitutional in the first place).

In the end I don't think it matters whether Mr. Ferguson is or isn't competent. The question is when are we going to stop allowing the government to decide who lives and who dies?

Smile! You're on camera

According to Houston Police Chief Charles McClelland, up to 100 officers will be wearing miniature cameras attached to their glasses or articles of clothing this coming summer.

Now just keep in mind that the purpose of the cameras isn't to make the populace safer. The purpose of the cameras seems to be to defend officers against charges of abuse or use of excessive force. According to the chief, "This is something that can make a difference when officers are complained on."

Well, Mr. McClelland, there is already a device out there that can show the world whether or not an officer acted in an appropriate manner. It's called a cell phone and citizens around the country have used them to record officers behaving badly. And, as a result, officers have arrested folks who weren't breaking the law and have seized property from individuals without a showing that the property was used in the commission of a crime.

I suppose if the cameras are assigned to the 100 officers who have received the most citizen complaints they may indeed act as a deterrent to the officers. Knowing they are on camera might just make an officer think twice before engaging in questionable conduct.
"It offers a defense to the officer's conduct when he's unjustly accused of something when there are no other witnesses or unbiased witnesses," said Larry Karson, an assistant professor of criminal justice at University of Houston-Downtown.
Of course comments like those attributed to Mr. Karson raise the question of what exactly does a degree in criminal justice provide the budding student. I feel reasonably certain in saying that it certainly doesn't provide the perspective of those who are either charged with criminal conduct or those who defend them.

And with the vapid insight of Mr. Karson, students and parents ought to question where that tuition money is going.

Apparently in Mr. Karson's world, those who complain of police misconduct are biased witnesses while the officers themselves just get up there and recite the facts. His bias in favor of those who wear shiny badges and carry deadly weapons must blind him to the reality that the police do trample the rights of the citizenry on a daily basis and get away with it because folks like Mr. Karson refuse to believe that officers lie.

As to these recordings, will there be a master list of which officers were wearing cameras on each particular day? How long will the recordings be kept? Will defense attorneys be notified if there are recordings captured by these cameras of activity involving their clients? Will recordings that exonerate a defendant be provided to defense counsel? When will officers be required to turn on the cameras? When will they be allowed to turn them off? Will there be a way to monitor the recordings so that exculpatory evidence isn't destroyed?

In the meantime, keep those cell phones handy. You never know when that recording could come in handy.

Tuesday, October 23, 2012

Criminalizing a difference of opinion

Well, I know I wrote about it when Italian authorities charged seven members of the National Commission for the Forecast and Prevention of Major Risks for failing to predict an earthquake that destroyed the Italian city of L'Aquila back in April of 2009.

Yesterday the seven commission members were all convicted of manslaughter and sentenced to six years in prison. Prosecutors argued that their negligence and malpractice led to the loss of life. I guess we'll all have to look past the fact that acting negligently is a far cry from acting intentionally or knowingly. But, that's Italian (in)justice for you.

Interestingly enough the town had been destroyed on three previous occasions by earthquakes, in the 14th, 15th and 18th centuries. Sure, shit happens every now and then - but when it happens a second time I'm thinking some warning bells should go off somewhere.

The government's theory is that the scientists downplayed seismic data and gave an overly optimistic forecast that the town was in no danger from an imminent earthquake. That forecast was wrong.

The problem is that scientists can, and do, differ when looking at the same data. It's all too easy to second-guess someone after the fact. And, unless one can show that the scientists deliberately ignored data that pointed to the likelihood of an earthquake, it's hard to fathom how one could face a criminal conviction for guessing wrong.

Walk into an American courtroom on any day and you're likely to see a pair of experts looking at the same data and disagreeing about what it means. They're both being paid by one side or the other and everyone who's ever participated in such litigation knows the drill.

This court decision certainly isn't going to make anyone jump for joy at the prospect of predicting natural disasters in the future. In fact, it's likely that scientists afraid of being second-guessed will scream that the sky is falling if there's even the slightest chance of a disaster occurring.

And, should the Italian people be exposed to an endless dog-and-pony show about the latest disaster on the horizon, they will stop paying attention to the warnings. The government will then have made the problem far worse than it was in the first place.

The loss of life in L'Aquila was a tragedy. I don't know if it was a tragedy that could have been prevented. I do know, however, that dragging the scientists before a criminal court to criticize their inaccurate prediction is the wrong outcome.

Are politicians going to be held to the same standard? Will we see Italian pols forced to stand in the dock because they lied to voters during the campaign? Somehow I think not.

Execution Watch: 10/24/2012

The state that keeps on killing is planning on killing again...


BOBBY HINES. The 40-year-old was condemned 20 years ago in the robbery-murder of a woman in Dallas. Mr. Hines was 19 at the time of the crime.

For more information on Mr. Hines, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, October 24, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: > Listen

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


Monday, October 22, 2012

Problems on the Forty Acres

36 points and 576 yards against Oklahoma State.

48 points and 460 yards against West Virginia.

63 points and 677 yards against Oklahoma.

50 points and 607 yards against Baylor.

That's what the Texas defense has given up the last four weeks. Somehow the Longhorns came out of it with two wins (one aided by what looked to be a bad call).

At its core, defense in football is very simple. You contain the ball carrier. You hit the ball carrier. You wrap your arms around the ball carrier. You take the ball carrier to the ground. Forget about schemes and blitz packages and nickels and dimes and every other variant of defense that's out there. It all starts and ends with tackling.

Phil Steele, the college football guru, had the Texas defense ranked high at the beginning of the season. According to Mr. Steele, the UT defensive line was ranked 4th. Their linebacker corps was ranked 20th. The defensive backfield came in as his number 1 ranked unit.

How wrong could one person be.

The Texas defense, and I'm not certain defense is the right word, has been downright horrible this season. Not one game has passed without someone gashing the Texas defense for a long touchdown run - well, except for New Mexico (but their main goal seemed to be to keep Texas under 100 points).

Mack Brown brought in Manny Diaz from Mississippi State two years ago to replace Will Muschamp who took the head coaching gig at Florida. Mr. Diaz was supposed to be the next big thing among defensive coordinators. Lots of pressure and exotic blitz packages were supposed to take Texas to the tops of the polls. Not quite.

The Longhorns lost a number of defensive starters this past season - but, as Texas fans know, the Longhorns just go out and reload every year. The saying is that Texas doesn't recruit, Texas picks who it wants. The recruiting classes under Mack Brown have been in the top 5 nationally most years.

And that raises an important question. Are the recruiting classes not as good as we've been led to believe, or do they just not receive the coaching they need to succeed? Judging by the missed tackles I'm seeing week in and week out, I have a feeling that it's the latter. And, if it is the latter, then Mr. Diaz is the one holding the bag.
But even though the  Longhorns gave up more points on Saturday than they did in either of those shootouts, Diaz said he's take the outcome anyway. 
"There are a lot of things we need to fix," Diaz said. "But there are a lot of things that are encouraging."
Those comments from Manny Diaz were taken from an article in the Houston Chronicle (the mobile edition) that has since been edited. Those comments tell you all you need to know about Mr. Diaz and the reason he should not be working at the defensive coordinator at the University of Texas. There was nothing encouraging about what the defense did on Saturday night.

If Mr. Diaz had any self respect he'd hand Mack Brown his resignation letter first thing Monday morning so the Longhorn Nation can put this nightmare behind it. I don't care how aggressive his defenses are supposed to be. I don't care how often they come on crazy blitz packages. I want to see them tackle people and keep them out of the end zone.

Please, Mack, fire Manny Diaz now.

Saturday, October 20, 2012

A couple of Saturday morning thoughts

Remembering George McGovern

George McGovern, the Democratic nominee foe the Presidency in 1972, who ran on an anti-war platform is near death. One can only wonder how much better a place this world would have been had he won the White House instead of Richard Nixon.

On Friday, Democracy Now! ran excerpts from Steve Vittoria's documentary One Bright Shining Moment: The Forgotten Summer of George McGovern. And, to honor the memory of Sen. McGovern, here it is...

Rest in peace, Senator.

Big Tex burns

Yesterday Big Tex, the iconic 60-foot cowboy at the State Fair of Texas burned. All that was left was the metal frame.

I happen to think it was an act of self-immolation because Tex couldn't take any more of the incompetence that is Manny Diaz running the defense (or what passes off as the defense) for the University of Texas. It would have seemed a bit more appropriate had the fire occurred last Saturday as the boys in orange trudged off the field after being humiliated by that band of dirt thieves and traitors from north of the Red River.

Friday, October 19, 2012

Update: High Court halts execution

He was convicted of killing a police man. He was scheduled to be strapped down to a gurney. He was going to have an IV containing a lethal dose of pentobarbital put into his arm.

Who was going to stop it? He was a cop killer, for chrissakes.

It didn't matter that his trial attorney failed to investigate the case adequately. It didn't matter that his trial attorney viewed the punishment phase of the trial as an afterthought.

But it did matter. So said the Nine Wearing Robes up in Washington. They were far enough from the emotion. They were far enough removed to consider the process by which a man was condemned to death. And they weren't impressed.

Less than three hours before the State of Texas was set to murder Anthony Haynes, the U.S.Supreme Court said it wasn't going to happen. At least not now. Not until the Nine decide whether or not Mr. Haynes received adequate representation at trial.

It's a temporary setback for the killing machine. But anytime you can keep the executioner from doing his job it's a victory. And for Mr. Haynes it's one more day that he'll be able to live.

And that's how you fight the battle. One day at a time. Today is a good day.

Mesquite police retaliate against local woman

Undercover police officers lie. That's their job. They create a persona and use it to gain entree into a world of lawlessness.

But where does the lying stop? Does it stop after the bust? After the offense report? After taking an oath to tell the truth on the stand? Or after the trial is over?

Melissa Walthall of Mesquite, Texas, had a friend who was upset at the testimony of an undercover narcotics officer. And, when Ms. Walthall came across a picture of the officer on a flyer, she posted it on Facebook with the caption "Anyone know this b****?"

Mesquite Police weren't amused. Investigators decided that Ms. Walthall's message posed a "viable threat to the officer's safety" so they charged her with felony retaliation.

Sec. 36.06. OBSTRUCTION OR RETALIATION. (a) [amended 9/1/97] A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) For purposes of this section, "informant" means a person who has communicated information to the government in connection with any governmental function.
(c) An offense under this section is a felony of the third degree.

But what exactly did Ms. Walthall do wrong? She didn't harm the officer. She didn't threaten to harm the officer. She didn't ask anyone else to harm the officer. She just posted a picture she saw on a flyer and called the officer a bad name.

Yes, she busted the officer's cover. But so freaking what? He works undercover - that's one of the hazards of his job.

In order to convict Ms. Walthall, the government must first prove that she meant to harm or threaten to harm the officer. The government must then prove that she meant to harm or cause harm through an unlawful act.

I don't think the government can even prove the mens rea of the crime. She posted a picture with a derogatory caption. There was no threat in the caption. Moreover, there was no unlawful act. It's not against the law to post the picture of an undercover officer. Nor should it be against the law.

Ms. Walthall has a right under the First Amendment to speak freely. Her posting of the picture with the caption is clearly an act of speech. That act of speech is protected under the Bill of Rights. The actions of the Mesquite Police Department were clearly retaliatory.

The police are using their badges and guns to quell speech with which they don't agree. She was arrested for constitutionally protected activity by officers acting under color of law. That sounds like official oppression to me.
§ 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office 
or employment commits an offense if he: (1) intentionally subjects another to
 mistreatment or to arrest, detention, search, seizure, dispossession, assessment,
 or lien that he knows is unlawful; (2) intentionally denies or impedes another in
 the exercise or enjoyment of any right, privilege, power, or immunity, knowing
 his conduct is unlawful; or (3) intentionally subjects another to sexual

But what's the likelihood that anyone up there is going to have the guts to do the right thing and charge the officers with the crime?

The investigators are aware that we all enjoy the right to speech free from government restriction under the First Amendment. The act of arresting Ms. Walthall impeded her ability to enjoy her right to free speech. What could be clearer? The action could also set the department up for a civil rights lawsuit under Chapter 1983.

The actions of the police in Mesquite were illegal and thuggish and were designed to discourage people from exercising their right to free speech. Thuggery is always the last resort for those who know they can't make a logical argument in defense of their actions.

Thursday, October 18, 2012

Were they hiding under rocks?

I saw a little bit of the Presidential "debate" the other night - but I'm still mystified where they found 80 undecided voters just three weeks out from the election. Did they dig them out of the Institute for the Profoundly Clueless? Maybe they found a bunch of folks who had suffered short term memory loss (like the Guy Pearce in Memento) and couldn't remember who they were voting for.

How can anyone still be undecided at this point in the process? President Obama has been in office nearly four years. Mitt Romney has been campaigning since the beginning of last year. If anyone has paid any attention at all they know more or less where the candidates stand on most issues.

At this point you either think President Obama has done the best job possible with the hand that President Bush left him or that he's incompetent. Mitt Romney is either a really smart businessman who can translate those skills into managing the government or he's a shill for whoever's pumping big bucks into his campaign coffers.

Maybe you feel that Obama should be rewarded for working to bring back a sense of community in this country after decades of atomization. Or that Obama has sold the core constituency of the Democratic party down the river in his quest to make the party more like the GOP.

Maybe you think Romney could lead a revival of Ronald Reagan's supply-side economics. Or, perhaps, that Romney has no political convictions and will gladly flip a position if he thinks he can snare a handful of votes in Ohio or Florida.

One thing that should be clear is that neither Obama nor Romney give a rat's ass about the poor. Neither one  talks about the poor out on the campaign trail. They're both aiming for the mythical middle class.

When he took office, President Obama continued the very same policies that George W. Bush had instituted while he presided over the economic meltdown. Obama handed money to the banks hand over fist and did everything he could to protect the automobile industry. But, in all of the so-called stimulus plans President Obama introduced, not once did he allocate money for the purpose of directly hiring the unemployed. He gave it to the banks and the car companies. Instead of using the money to create public works jobs, he left his minions at the Fed to reduce interest rates to zero and pretended that it would solve the problem.

We know that it was the complete and utter deregulation of the financial sector that caused the meltdown. So what does Mr. Romney propose? You got it - even more deregulation. His investments created jobs - in China. His running mate will tell you about Mr. Romney's charitable endeavors to aid the poor - but why should the poor rely on charity? Shouldn't the government do something about it?

President Obama has done more harm to our privacy rights than any other president in the history of the Republic. He has done more to harm the rule of law in international affairs than any other president since the height of the Cold War. He inherited President Bush's program of extraordinary rendition and did his damndest to keep its darkest secrets from coming out.

Not that we should expect anything more from Mr. Romney.

Mr. Obama has proven himself to be a fraud. Mr. Romney has proven himself to be the more insincere candidate for the White House since - well, I can't remember.

Neither one of these men is fit to sit in the Oval Office. Unfortunately, one of them will be for the next four years.

Have you decided how you feel about that?

Wednesday, October 17, 2012

National Lawyers Guild seeks to halt Florida execution

The National Lawyers Guild has issued a call for the State of Florida to spare the life of John Errol Ferguson who is scheduled to be murdered by the State on Thursday night...
The National Lawyers Guild (NLG) calls for the State of Florida to halt the scheduled execution of John Errol Ferguson and commute his death sentences to life in prison. Ferguson is a severely mentally ill African American man who has spent the last 34 years on death row and whose execution is set for Thursday, October 18, unless the courts intervene.
“In no way, shape or form is John Ferguson competent to be executed,” said Anne O’Berry, NLG Southern Regional Vice President, who assisted with Mr. Ferguson’s representation in the 1990s and witnessed firsthand what happened when prison officials abruptly took him off anti-psychotic medications. “When I went to see John in the prison hospital, I was shocked at what I saw,” she noted. “He was catatonic. He could not move, he could not speak, and he had stopped eating because he thought they were poisoning his food. They inserted a feeding tube into his arm and transferred him to Chattahoochee State Hospital, where he was promptly put back on his medications and was again able to speak, move and eat. He stayed at Chattahoochee for quite a while but ultimately was transferred back to death row. For as long as I live, I’ll never forget the sight of him lying there, catatonic.”

The execution of Ferguson would constitute cruel and unusual punishment under the Eighth Amendment and would also violate international conventions on human rights to which the United States is a party, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Ferguson was diagnosed with mental illness in 1965 and was committed to state hospitals in the 1970s after he was arrested on felony charges and suffered a gunshot wound to the head. Diagnosed with paranoid schizophrenia, he was found to be unable to distinguish right from wrong. In 1975, a doctor warned that Ferguson posed a danger to himself and others and “cannot be released under any circumstances.” Yet Ferguson was released from state custody within a year, and in 1978, was found guilty of the murders for which he is sentenced to die. 

The US Supreme Court ruled in 1986 in Ford v. Wainwright that the 8th Amendment to the Constitution prohibits a state from executing a mentally incompetent inmate. Despite this, Governor Rick Scott signed Ferguson’s death warrant, and after a 90-minute interview, a three-member panel appointed by the Governor deemed him competent to be executed.

Last Friday, after a two-day hearing on Ferguson’s competency, a circuit court judge rejected the State’s contention that Ferguson is feigning mental illness, finding that Ferguson believes he is the “Prince of God,” that the Department of Corrections is preparing him for “ascension,” and that he will be resurrected like Jesus Christ.

Yet despite these findings, and contrary to recent Supreme Court precedent holding that an inmate’s awareness of the State’s rationale for execution is not the same as a rational understanding of it, the judge ruled John Ferguson competent to be executed.
Click here to read the NLG's Emergency Resolution in Opposition to the Scheduled Execution of John Ferguson (Oct. 13, 2012)

The myth of foreign oil

I've gotten just a bit tired of hearing politicians like Mitt Romney and his ilk arguing that we need to do more drilling off the Gulf Coast, the Pacific Coast and in the Arctic in the name of reducing our dependence on foreign oil.

Guess what? There is no such thing as "foreign oil."

Oil is a fungible commodity. That means oil from Alaska, oil from Venezuela, oil from West Africa and oil from the Middle East is essentially the same and can be exchanged in much the same way as money or gold. Sure, some oil has a higher sulfur content and some oil is more viscous than other oil. But, at its core, oil is oil.

With a global marketplace, the days of the Texas Railroad Commission setting the price of oil are long since gone. These days the price is set by speculators trying to guess what's going to happen in the near-term and long-term futures.

Oil companies will sell their product wherever they can make the highest rate of profit. Exxon, for instance, couldn't care less whether their oil is sold in the U.S., in Europe or in Asia. The same goes for every other oil company.

So it doesn't matter how much oil is taken out of the ground in this country. It's not staying here. It's going into the global pool of oil to be distributed according to market forces throughout the world. It's the reason why trying to prevent Iranian oil from entering the global pool will fail - how are you going to tell the difference between a barrel of oil from Iran and a barrel of oil from Nigeria?

As an example, the Trans-Canada Keystone XL pipeline being built on stolen land in East Texas isn't going to benefit anyone in this country. The idea behind the pipeline was to get the tarsand oil from Alberta down to the Gulf Coast so it could be exported overseas. So,  all of Mr. Romney's rhetoric about President Obama making us more energy dependent by blocking construction of the pipeline through the middle of the country was wholly and completely irrelevant.

If the United States really wants to become energy independent, the only way to do so is to develop energy from sources for which there is no global market. Since no one has figured out how to commoditize sunlight or wind, those are two sources which can reduce the need for petroleum or carbon products to produce electricity.

But since wind and solar generators don't have millions of dollars in cash lying around from their subsidized profit-making operations, Mr. Romney doesn't have the time, nor desire, to pay then any attention.

Execution Watch: 10/18/2012

The state that keeps on killing is planning on killing again...


ANTHONY HAYNES.The 33-year-old, who has been locked up since he was 19, was one of two black men convicted in the 1998 slaying of a white off-duty Houston police officer. Also convicted in the killing was Michael Turner. On appeal Mr. Haynes asserted that prosecutors deliberately excluded African-Americans from the jury.

In 2009, the Fifth Circuit Court of Appeals granted Mr. Haynes' writ of habeas corpus and ordered him released or retried due as a result of prosecutors excluding African-Americans from the jury. His victory, however, was short-lived as the U.S. Supreme Court reversed that ruling in 2010.

Unless a stay is issued, we'll broadcast ...Thursday, October 18, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
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Tuesday, October 16, 2012

HPD's dirty little ticket secret

We all know that it's hard to win in traffic court. The officer has his shiny gadget that tells him how fast you may or may not have been driving - a readout that no one but him ever sees. And what about when he asks you for your driver's license and insurance? Chances are there's no one else in the car to contradict a word he says.

As far as the prosecutor and cashier judge are concerned he's got you on three grounds. Maybe you've got your insurance card to prove you had coverage at the time of the stop. Okay, that's one for you.

But what about that driver's license. There's no question it was valid at the time of the stop. But were you carrying it with you? Remember, it's your word against his.

Maybe they offer to dismiss the no driver's license charge if you take a deferred on the speeding case. Or maybe they offer you deferred on one and defensive driving on the other. All works out the same in the end - the city gets what it wants and you get screwed.

Happens every day in every court in the Municipal Courthouse.

But now there's a little twist.

What if the police officer has already preset his ticket-writing computer to issue citations for speeding, no insurance and no driver's license? Sounds crazy, doesn't it?

Unfortunately,  that's exactly what's been happening in Houston.

According to this article in the Houston Chronicle, Shirley Simmons was pulled over for speeding in a school zone near her grandson's school. What she didn't realize at the time was that the officer also cited her for failing to display a driver's license and for not having proof of insurance.

When she got home, put on her glasses and closely read the ticket, she discovered two incorrect charges: failure to display a valid Texas driver's license and lack of insurance. She went to two nearby Houston Police Department stations, but was directed to the traffic division downtown. 
After a supervisor spoke with her and the officer, the two extra violations were removed. She still must go to court later this month for driving 5 miles-per-hour over the limit. But Simmons, a disabled 61-year-old grandmother, wonders if officers are pre-setting tickets with violations in certain communities, like the crossroads of Sunnyside and South Acres, where she was stopped.

There is no doubt that there are a great number of drivers in our fair city who don't have a valid driver's license or insurance. I've had quite a few as clients of mine. But until Sgt. Robert Gonzales opened up his mouth without thinking, I had no idea that it was standard practice to have certain charges pre-set into the computer to save time.

Of course Sgt. Gonzales doesn't see it as a problem. And why should he? The traffic division is a fundraising unit for the City of Houston. The police aren't trained to look at people as being innocent unless proven otherwise. That kind of thinking is anathema to a police officer.

The problem, Sgt. Gonzales, is that no ticket spit out of a ticket-writing computer can be trusted anymore. We don't know if those charges were pre-set defaults or violations the officer actually observed. Hell, we don't even know if the ticket really tells us why the driver was stopped in the first place.

If a motorist is cited for speeding, failure to display a driver's license and not having proof of insurance - but they come to court with a valid driver's license and insurance card, wouldn't it be more likely that the motorist is being truthful when he says he wasn't speeding?

But, in a land in which judges are happy to sign check-the-box and fill-in-the-blank search warrant forms authorizing forcible blood draws in DWI cases, why should it surprise us that the police have rigged the ticket-writing computers?

And why, by the way, wasn't the officer who issued the ticket to Ms. Simmons not charged with filing a false government document? He pre-set the information. He knew it was pre-set. He printed out the ticket and handed it to Ms. Simmons. Then he filed a copy with the court.

Oh, but it was an accident. He didn't mean to do it. He was really sorry about it. Not that he did anything wrong, though.

Distracting the public

My colleague Murray Newman really wants Mike Anderson to be the next district attorney. Over the past four years he has never wasted an opportunity to castigate current Harris County DA Pat Lykos - all the time conveniently ignoring the multitude of ethical and legal problems that engulfed the office under Chuck Rosenthal.

Yes, Ms. Lykos ruffled a lot of feathers. She wasn't warm and fuzzy. She wasn't part of the good ol' boy network. The latter being her biggest fault.

Yet Ms. Lykos lacked the myopia of Rosenthal's crew. She understood that criminal prosecution wasn't the answer to every little problem. She realized it made no sense to send people to prison because they were found in possession of a trace amount of a controlled substance.

Mike Anderson is a throwback. A throwback to the good ol' boy network. The Harris County Jail is stuffed to the gills but if Anderson has his way he'll be locking up folks for possessing trace amounts again. Do tell us, Murray, where's the money going to come from to relieve the jail overcrowding we will face again? How much money are we going to ship to other counties to hold our pretrial detainees?

Murray and the rest of Anderson's followers are upset because Lloyd Oliver said that there should be fewer domestic assault prosecutions. Well, here's an inconvenient truth for y'all, a good number of domestic assault prosecutions end up in dismissals. Whether it be by the defendant taking a battering prevention class or because a complaining witness decided not to cooperate is a meaningless distinction.

And how is holding a defendant in custody with no bond until he is brought before a judge who issues a protective order solving any problem? All it serves to do is to contribute to the overcrowding of the county jail.

And now, in a sign of desperation, the Anderson campaign is trying to scare voters by claiming half of the DA's office will walk out if Mr. Oliver is elected. I guess that's easier than trying to explain how much it's going to cost to expanding drug prosecutions. It's probably easier than explaining why the Harris County Jail is the county's largest mental health facility.

Monday, October 15, 2012

What right to know?

In our government's ongoing quest to keep us in the dark about all that it does in our name, government prosecutors have requested that a military judge set to preside over the trials of five Guantanamo detainees prevent those detainees from revealing the extent of the torture regime they were subjected to.

This from the same government that felt no compunction to subject these men to utter brutality in contravention of all international conventions on the treatment of prisoners. Oh, they were so proud to let the public know they were waterboarding detainees back in the day. But, when faced with detainees testifying about what they were forced to endure out come the requests for protective orders and other devices to keep the truth from being known.

So much for that crap about the truth setting you free.

Our government is supposed to be accountable to the citizenry. If we are to be proper guardians of the public trust then there should be no government secrets. We have a right to know exactly what our government does in our name. Of course it is much easier just to sit there like a lemming and pretend that everything's okay.

Prosecutors are arguing that the torture regimes constitute confidential information that should not be released to the public. To quote a legal term, that is absolute bullshit. Can you imagine any other criminal forum in which the court would deny a defendant's right to testify that he had been subjected to torture?

If the judge is anything other than a stooge for the prosecution the request should be denied. It is time the world heard exactly what Presidents Bush and Obama authorized. It is time the world heard exactly how the Bush and Obama administrations conspired to violated international law. It is time the world heard the truth about what our government did.

Presidents Bush and Obama are war criminals and should be brought to justice. There is no excuse for a (nominally) democratic government to subject people to torture. Our government is quick to condemn other governments who do the same - yet it's all right for our government to do it and then try to keep it secret.

I just hope I live to see the day that Bush and Obama are forced to stand inside the dock at the International Criminal Court and answer the charges against them.

Friday, October 12, 2012

Cuffing and stuffing a 10-year-old

A ten-year-old boy was disruptive in class. No news there. But this young man attended elementary school in a suburban Houston school district.

Of course there are various accounts as to what happened in that classroom. The boy's great-grandmother said he had thrown a plastic container. Being as great-grandma was not in the classroom at the time, we can only assume that that's what he told her he did.

School officials paint a different picture. According to district officials the classroom was left in a shambles.

Instead of being sent to the principal's office, suspended or placed in detention, the child was arrested for assault of a public servant, handcuffed and taken to the Harris County Juvenile Detention Center.

Let that soak in for a little bit.

A ten-year-old child was placed in handcuffs and booked into a detention facility. A ten-year-old was charged with a felony offense.

What is wrong with these people?

Yes, he created a disturbance. Yes, I'm sure it was more than just a plastic container. No, I'm not condoning his actions. But arresting and cuffing a ten-year-old?

It allows the Cypress-Fairbanks Independent School District to wash its hands of the child. Now it's in the hands of authorities in the juvenile (in)justice system. We have moved from trying to figure out whether the child has a problem to locking him up in jail.

We have moved beyond providing a basic education in math, reading and science to providing an education in the inner workings of our criminal (in)justice system. He is learning what it means to be an inmate. What it means to be cuffed and stuffed. What it means to have a judge and prosecutor look at you like you're not worth shit. Please, oh educators in the suburbs, explain to us how this helps the child.

Don't tell me you've forgotten. It's all about the children. Don't y'all remember. Well, except when it's not. Except when it's about telling a ten-year-old that he's worthless and deserves to be in jail.

Thursday, October 11, 2012

And what alternative would you propose?

Oh, Mark, Mark, Mark.

Democracy is a very messy business. And, no, electing judges by partisan election isn't the best idea in the world. But what are the alternatives?

Would you rather the governor appoint the judges? Then we'd be left with a bunch of political hacks and big-money donors presiding over trials across the state.

Then would we wait for judges to die or resign or would we have periodic retention elections? Just wait for the single-issue partisans to get involved in those elections.

Non-partisan elections? How are candidates going to raise enough money to make their names known to the public? Lots and lots of campaign contributions from law firms, bondsmen and companies who depend on our predilection to throw people in jail at an ever increasing rate.

Four years ago the voters of Harris County threw out most of the Republican judges and replaced them with Democratic judges. And, you know what, the new judges are just as bad and just as incompetent as the ones they replaced.

Mike Wilkinson, the visiting judge I wrote about yesterday, sat on the bench in the 179th District Court until the voters fired him and hired Randy Roll. Judge Roll has been antagonistic to the defense and has used his seat to bully defendants to give up their constitutional right to trial by jury. He has ordered defendants to be held without bail illegally. He has revoked bonds on defendants who violated no express provision of their bonds. And, come January 1, Judge Roll will be off the bench, to be replaced by Kristen Guiney. Ms. Guiney will take the bench because she is running with an R after her name. The public doesn't know who she is. The public doesn't care.

After the 2008 elections I spoke with a civil judge whose daughter was on my youth soccer team. She told me that she asked one of the criminal judges who lost how it felt. The ex-judge told her that she won her seat because she had an R after her name and she lost her seat because she had an R after her name. It was just a part of the game.

For the most part, the public doesn't give a fuck about who sits on the bench. Most of your friends and neighbors will never see the inside of a courtroom and don't really care what goes on inside. It's an abstraction to them. They will make completely uninformed decisions that will affect a bunch of folks they'll never meet.

But, as screwed up a system as that is, it beats the alternative. It is better to have our judges at least somewhat accountable to the public than completely aloof from it. As Mr. Bennett has pointed out in the past, the more local the government, the more power it has to screw up your life. Our state judges should be on a short leash.

As to the rest of Mr. Bennett's criticism, Judge Susan Brown of the 185th Judicial District Court chose Mr. Wilkinson to sit on her bench.

Is it too much to ask for?

My girls are in a dual language program at their elementary school. They get half of their instruction in English and the other half in Spanish. The classes are divided equally between native English speakers and native Spanish speakers. The goal is for all of them to be fully bilingual by the time they get into high school.

It's not a bad idea. The population of Houston is about 1/3 Latino and that percentage is growing year by year. Being completely fluent in both English and Spanish will serve these kids well once they get out into the real world.

All is not rosy, however. One might think that a native English speaker would teach the English portion of the lesson and that a native Spanish speaker would teach the Spanish portion. Well, by the looks of the test sent home for my oldest daughter (she's been out of school for the last week), the wheels are coming off the bus.
What was the reason because of Louis Braille lose his sight, becoming blind person? 
What was the reason why Louis his second eye vision? 
The reader can infer that Louis Braille, what kind of person was him? 
Mention three different ways or systems have existed to help the blind people to read and write. 
Today, which tool are necessaries to be used by the blind people to help them to read and write? 
What was Louis job before he died, and his students feel for him?
 What are those passages, you ask? It reads like some of the spam comments I receive every night. It might even appear to be website copy prepared by a programmer in India who promised he could get you on the first page of Google.

Nope. Those are actual questions from my daughter's test.

Now I don't mean to pick on anyone but I would think that a basic requirement of an English teacher is to be able to communicate in (I don't know) English. If the person in the front of the classroom can't put together coherent sentences in English, I'm not so certain I want her teaching my daughter how to write.

I'm not in favor of making English the official language of the United States. Those that favor that proposition tend to be the ones who have forgotten that all of our forebears came from somewhere else and that English may or may not have been the language of choice back in the old country. But I do think that a teacher should be well-versed and knowledgeable in the field in which he or she teaches. I don't think that's asking too much.

I mean, if you're in law school you should expect that your professor in criminal procedure has some knowledge of the subject matter. If you're in medical school, it's not too much to ask that your instructor in orthopedics has a working knowledge of the material. Should we expect nothing less from our kids' elementary school teachers?

Wednesday, October 10, 2012

Update: Texas death machine keeps on rolling

Yesterday I wrote that US District Judge Nancy Atlas issued a stay of execution in the Jonathan Green case. Judge Atlas was concerned that Mr. Green's due process rights were violated by the manner in which a competency hearing was conducted.

That was not the end of the story, however. Today the State of Texas appealed Judge Atlas' ruling to the 5th Circuit Court of Appeals who reversed the stay. Mr. Green's attorneys then filed an appeal with the U.S. Supreme Court who decided it didn't really matter whether the competency hearing was fucked up or not. A last minute appeal to the 5th Circuit was then denied.

And now Mr. Green sits in the death chamber waiting for the state to inject him with a lethal dose of pentobarbital.

UPDATE: Mr. Green was murdered by the State of Texas at about 11pm last night. The legal machinations over the last two days highlighted the arbitrary and capricious nature of the death penalty. One judge found that the competency hearing violated Mr. Green's due process rights yet a panel of three more judges decided that it was all good.

The hearing was either flawed or it wasn't. It doesn't matter how many different courts or how many different judges looked at the case, the procedures were either okay or they weren't.

Carpet bagging judges

Last week I tried a dope case in Harris County. The regular judge was out for the week so we had a visiting judge. A judge who was terminated by the voters of Harris County back in 2008. A judge who wasn't accountable to the public.

Having said that, I thought he was very fair during voir dire. He never once tried to rehabilitate jurors for the state - a common pastime for judges in this part of the state. He gave us as much time as we needed and even had a damn good idea of who each of us wanted to challenge for cause.

The fun, however, began the next day.

We were dealing with a police officer who lied to the officer who wrote the offense report. He also took the stand and lied about what he saw on the evening in question. When I attempted to ask the lead officer if his job required him to lie to suspects, the judge shut me down. When we approached later and I told him (just as I had before the trial began) that we were dealing with police officers who were lying he just rolled his eyes and told me to give it a break.

After evidence was closed we discussed the jury charge. I pointed out that the charge should not read that it is the jury's duty to determine the guilt or innocence of my client. I pointed out that my client was presumed innocent, that the charge as worded implied we had some burden of proof and that the real question for the jury was whether or not the state had proven their case beyond all reasonable doubt.

Of course my objection  was overruled because, as the (unelected) judge pointed out, this was the way the charges had been written in Harris County for years. I briefly thought about pointing out that slavery and segregation had existed for years but that didn't make them right - but I realized I would be wasting my time.

After our closing arguments were made we waited for the jury. The first note came out after about 30-40 minutes. They wanted to see the photographs of my client's truck. I knew we were good at that point because there were jurors who didn't believe the officer was being truthful. After about two-and-a-half hours the jury set a note stating they were deadlocked at 11-1 and asking what they should do. The (unelected) judge told them to keep deliberating. I told my client we were way ahead.

We went back out into the hallway to relax. While I was out there the prosecutor came out and asked to speak to me. She told me that the (unelected) judge wanted to know if my client would accept a plea. I told her that if he were going to accept a plea he would have done it before now. I also told her there was no plea they could offer that we would accept.

A few minutes later, as I told my client, the jury came back with a not guilty verdict.

But one thing still bugged me - and it bugs me to this day. Why was the (unelected) judge asking the prosecutor to try to make a deal with my client? What business was it of his how the case turned out? His role was supposed to be that of a neutral arbiter - not an advocate of the state. The (unelected) judge overstepped his boundaries and became involved with the prosecution of the case. That is an ethical violation. That is wrong.

I would like to say that the public terminated his employment because they were sick and tired of such shenanigans on the bench. But that had nothing to do with it. With the exception of attorneys who try cases in front of judges, no one has the slightest idea what they do, how they do it and whether or not they do it worth a shit. The only consideration in a judicial race is whether the candidate has an R or a D after his or her name.

In the meantime, those who were tossed out of office by the public continue to preside over trials because their buddies and former colleagues keep using them as visiting judges. It's a process that needs to stop. We elect our judges (no matter how messy the process) because our forebears were wary of the power of the state and figured that the best way to control the arms of the government was to make as many people as possible accountable to the voters.

Fortunately in my client's case, it all worked out the way it should have. Others haven't been so lucky.

Tuesday, October 9, 2012

Gumming up the works

The post was already written. The execution was scheduled for Wednesday night. The victim was a 12-year-old girl. His only hope was that a judge would grant his request for a stay so someone could decide whether he was competent to be strapped down to a gurney and murdered by the state.

Jonathan Green's life was spared, at least temporarily, by US District Judge Nancy Atlas. Judge Atlas ruled that the mental competency hearing held to determine whether Mr. Green was competent enough to kill violated Mr. Green's due process rights. She also ruled that the judge who conducted it used the wrong standard to determine whether Mr. Green was competent.

Two years ago a stay was granted so that a hearing could be held to determine whether Mr. Green could be executed. The judge, Lisa Michalk, scheduled the hearing so soon after the court ordered it that medical personnel from the Texas Department of Criminal Justice who treated Mr. Green were unable to appear. The judge then denied defense motions to continue the hearing so that the witnesses would be available.

The judge made her decision based upon the testimony of two state's witnesses without affording the defense an adequate opportunity to be heard.

The stay is not to determine whether Mr. Green, who has been diagnosed with schizophrenia, is competent, but to determine whether his due process rights were violated by the manner in which Judge Michalk conducted the competency hearing.

Mr. Green's guilt has never been at issue. The sole issue has been his mental state of being. It's not a sexy death penalty abolition case. But it is a case that examines the way in which we allow the state to send people to their deaths.

For those who truly believe in limited government, the notion that the state can order a man murdered without affording him his due process rights in a hearing to determine his competency, is more than troubling. The ability to kill is the most intrusive power the government has and here we have a case in which a judge did what she could to make certain that the playing field was not level for a man challenging the state's right to kill him.

The fight against the death penalty isn't on the innocence front. The fight is over the minutiae of the death machine. In Mr. Green's case, questions about the mechanics of a competency hearing have gummed up the works.

Monday, October 8, 2012

Preventing the "Big One"

My youngest daughter was sick this weekend so there we sat in the living room yesterday watching the tube. We alternated who got to watch what. She'd watch one of her shows on Nick Jr. and then I'd watch thirty minutes of the NASCAR race from Talladega.

As the race drew to a close the leader spun out and the yellow flag came out. There was going to be a frantic pack finish at NASCAR's longest and fastest track. Sure enough, the cars all moved in one giant amoeba-like mass as the next-to-last lap began. Due to safety concerns (allegedly), NASCAR mandates the use of restrictor plates which reduce the amount of air flowing into the engines. This keeps everyone at roughly the same horsepower and ensures that cars will run in a pack since a car running by itself is a sitting duck due to the aerodynamics of running nose-to-tail.

As the cars came through turn three on the final lap they started to jockey for position for the dash to the finish. Tony Stewart was on the bottom and in the lead. Matt Kenseth was running high and was in second. Then Stewart went low to try to block a driver and that's when all hell broke loose. As Matt Kenseth drove through turn four a massive 25 car wreck took out more than half the field less than a mile from the finish line.

NASCAR claims it restricts the speed of the cars to promote safety at a track where cars once reached speeds in excess of 210 mph. But the real effect of the restrictor plates is to create massive wrecks like the one that happened yesterday. TV audiences want wrecks and NASCAR delivers. It's a miracle that no one has died on the high banks of Talladega Superspeedway.

If NASCAR is really concerned about safety it's time to do away with the restrictor plates. If NASCAR is really concerned about safety, it's time to keep the cars from running in massive packs where one little wiggle can cause "the big one."

If NASCAR really wanted to make Talladega (and Daytona) safer they would reduce the size of the engines from 357 cubic inches (5.7 L) to 302 cubic inches (5.0 L). Next they would reduced the compression ratios in the engines. Reducing the engine size would reduce the horsepower which would reduce the speed. Lowering the compression ratios would also reduce the horsepower and speed of the cars. More importantly, however, is that these changes would affect the cars differently. Instead of everyone having a car with the same maximum horsepower, these changes would reward those teams who can find ways to go faster.

The end result would be no more pack racing. The racing at the track would be closer to what you see at other large racetracks. With more space between the cars there would be less chance of 15- and 20-car pileups.

Of course NASCAR won't do anything unless they are forced to do it. It will be up to the drivers to get together and make a stand. If anything is going to happen, it will happen because the drivers tell NASCAR that they won't race at Talladega until something is done to make it safer. Back when the track first opened in the 60's, the drivers went on strike and refused to race because they didn't feel it was safe. NASCAR sent in a bunch of replacement drivers and that quelled any dissent from the drivers. That ended dissent in the ranks.

With drivers today adorned in corporate logos from head-to-toe it's doubtful that anyone would be willing to stand up and make a stink. But, unless someone has the courage to speak their mind nothing will change.

On hypocrisy and handouts

Some things just never get old.

There are few things more ironic than politicians who accuse the poor of mooching off the state who have no problem dipping their hands into the taxpayer's pockets to pay for their jet-setting ways.

Gov. Rick Perry doesn't want to spend money on the poor. He doesn't want to expand Medicaid coverage. He doesn't want to increase education funding.

But, when it comes to out-of-state junkets, he is more than happy to bill the taxpayers for his security detail. Since his re-election in November 2010, the Fair-haired One has racked up $2.3 million in security charges for his travels. In the last quarter alone, after he shut down his disastrous presidential campaign, the taxpayers have forked out over $100,000 for his security detail in such places as Aspen, Boston and San Diego.

Of course I'm still waiting to see how any of those trips were necessary to his carrying out his duties as the chief executive of the Lone Star State.

Gov. Goodhair defends the expenses arguing that the world is a dangerous place and he must be under constant surveillance by state troopers. The only problem, Rick, is that most folks outside Texas wouldn't know you from Adam (just take a look at your numbers from the primaries). Furthermore, I doubt many terrorists have Perry in their sights in their quest for world domination.

What the Guv seems to have forgotten is that Texas has a weak governor system dating back to the end of Reconstruction and the desire of Texans to be out from under the thumb of the federal government. The real power broker in Austin is the lieutenant governor. He is the one who appoints committee chairs and breaks tie votes in the senate. The governor is reduced to signing or vetoing legislation and calling special sessions of the state legislature.

Not much to see there. If the terrorists really wanted to disrupt operations in Austin, they'd be better off targeting the lieutenant governor. But, since the legislature only meets for 140 days every other year, there isn't much to disrupt.

So, for the next two years, Gov. Perry will continue to reach into our back pockets to pay for his jaunts across the country while simultaneously collecting both his salary as Governor and his state pension. Quite the gig he's got there, huh?

Saturday, October 6, 2012

Does triple crown equal MVP?

This season, the Detroit Tigers' third baseman, Miguel Cabrera, became the first player in 45 years to win baseball's Triple Crown. He did it by leading the American League in batting average, home runs and runs batted in. The last player to do that was Carl Yastrzemski back in 1967.

The feat is incredible. Generally sluggers are feast-and-famine style hitters. They have a fairly low batting average - but when they do hit the ball, they crush it.

But are those three categories the best way to determine who is the best offensive player in the league? And was Miguel Cabrera the best player in the AL? Because there are some who believe that Mike Trout of the California Angels was a more valuable player.

Batting average is important. The higher the average, the more balls a player has put into play and more opportunities he has created for his team to score. But the same can be said for players who draw walks. Billy Beane questioned whether it really matters how a player got on base. The important thing is he got on base and created the possibility of a run crossing the plate.

So maybe on-base percentage is a more important measurement of what a player brings to the plate. After all, the more a player gets on base, the fewer outs are used up - and outs are the most precious commodity in baseball.

For 2012, Mike Trout had the third-best OBP in the AL and Miguel Cabrera was fourth. The two leaders, Joe Mauer and Prince Fielder, both had OBP's almost 100 points above their batting averages (which means  they took a lot of walks).

Slugging percentage (total bases divided by at-bats) is another way to measure the offensive output of a batter. Simply put, the higher the slugging percentage, the more the players are being moved around the bases. And the more the players move around the bases, the more runs light up on the scoreboard.

Miguel Cabrera led the AL in slugging percentage with a .606, while Mike Trout came in third with a .564.

If you take that on-base percentage and add it to the slugging percentage you come up with a metric baseball wonks know as OPS. And it is this metric that tells us how valuable a batter is at the plate. The higher the OPS, the more good stuff happens when the batter steps into the box.

One stat that is vastly overrated is the run batted in (RBI). RBI's are a function of what the other batters on the team are doing. If they aren't getting on base, then you aren't getting any RBI's. So, far from indicating how awesome a player is, a gaudy RBI number means that when he came up to bat there were men on the bases in front of him. The only RBI a batter can control is the one he gets when he crosses the plate over hitting one over the fence.

So, if we take a look at OPS for 2012, Miguel Cabrera still comes out ahead with an awe-inspiring .999. His closest competitor was Mike Trout with a .963. (Click here for the final stats from the 2012 regular season.)

Now there are those who look at even more arcane numbers such as a player's wins above replacement (WAR). But that is a measurement that includes a heaping spoonful of conjecture and subjectivity. The metric attempts to calculate how many more games a team won because a certain player was in the lineup.

If that is your cup of tea, the Mike Trout was the best player in the American League with a WAR of 10.7 to Miguel Cabrera's 6.9.

I have a hard time, however, worshiping at the altar of WAR because it purports to measure that which cannot be measured. While OPS measures what a player did at the plate, WAR tries to measure how much better a player did that the person who would have replaced him had he not played. And that's impossible to measure because we don't know what might have happened had our star player gone down with an injury.

For that reason I have to go along with Miguel Cabrera as the American League's Most Valuable Player for the 2012 campaign. He was tops in the sexy categories and tops in the category (OPS) that is best measure of how good a player is at the plate.

Mike Trout may have made the Angels better than they would have been otherwise, but statistics such as WAR and defensive stats are far too subjective and far too dependent on contingency than OPS. The point of Sabermetrics (and Billy Beane's "moneyball") was to get rid of the subjectivity in baseball and to base decisions on cold, hard, objective numbers.

By that measure, Miguel Cabrera deserves to take home the MVP trophy.

Friday, October 5, 2012

Twiddle-dee and Twiddle-dum

Forget what you read in the papers or saw on the tube, the real winners from Wednesday's "debate" were Barack Romney and Mitt Obama. They were able to prevent any independent voices from appearing on the stage in Denver as they held their little soundbite-a-thon.

Both candidates deftly avoided talking about the plight of the poor (and the working poor) during the telecast. Mr. Obama raised his not-so populist flag as the champions of the amorphous and undefined middle class. He was concerned with how taxes and healthcare and education and social security would affect the nebulous middle class.

He never once raised Mr. Romney's comment about writing off 47% of the voting population because, well, to put it bluntly, he doesn't give a fuck about them either. They're certainly not the folks who are writing the big checks to the campaign.

As for Mr. Romney, his continued insistence that the market is the best regulator of health care and that the market will provide the means for reducing costs would be comical if people weren't buying it hook, line and sinker. You see, Mr. Romney, the market is what has allowed the cost of health care to escalate at a faster pace than the rate of inflation. To make the claim, with what passes for a straight face, that if we would just leave the market alone the cost of health care would fall to reasonable levels is quite the feat.

Neither man challenged the assumption that defense spending should be cut back significantly. While Mr. Romney calls for cutting every part of the budget except for defense, Mr. Obama is so scared of being labeled "soft" on defense that he refuses to consider serious cuts to the Pentagon's budget. If you want to cut the deficit - just slash the defense budget by 50%. Problem solved.

Neither candidate wanted to talk about the National Defense Authorization Act (and Jim Lehrer wasn't about to ask hard questions). Neither spoke out against the provisions allowing for indefinite detention for American citizens. Neither candidate spoke out about illegal wiretapping and domestic surveillance by the government. Despite a persistently high unemployment rate, neither candidate spoke of using federal dollars to revive the jobs programs of the New Deal.

Of course, had you watched, or listened to, Democracy Now!'s expanded coverage of the debate, you would have heard from the Green Party's candidate, Jill Stein, and the Justice Party's candidate, Rocky Anderson, answer the same questions asked of Obama and Romney. You would have heard two people talking about the real problems that face this country and not just the talking points handed out by the political operatives. You would have heard a discussion about health care and the single payer plan. You would have heard the candidates discussing the NDAA and its implications. You would have heard two candidates who haven't been bought by the corporate interests.

But most folks didn't because they have been socialized that the Republicrats and Democans, the Twiddle-dee and Twiddle-dum of the political world, are the only way to go. Part of the reason we are in this mess is because we have entrusted our future to two political organizations that care about nothing more than preserving their power and privilege in Washington.