New per se limit in Washington is problematic

On November 6, 2012, the State of Washington legalized the recreational use of marijuana. On December 6, 2012, the State of Washington is changing its drunk driving statutes in response.

As things now stand, if a driver is suspected of driving under the influence of marijuana the prosecutor must prove that the driver had lost the normal use of his mental or physical faculties due to the use of marijuana. The decision is then left in the hands of the jury to determine whether or not the state proved up its case.

On December 6 that will change. Instead of relying on a drug recognition evaluator to give his opinion on whether or not Johnny is hopped up on too much weed, the state can look to the results of a blood test.

Should a driver show a concentration of THC greater than 5 nanograms, he or she will be considered per se under the influence - in much the same manner as a driver with an alcohol concentration of greater than .08 grams per 210 liters of breath. While there are scientific studies that purport to demonstrate that THC concentrations over a certain level correlate to impairment, the studies don't take into account the shortness of the "high" and the way in which the body stores THC.

The buzz one gets from marijuana comes and goes quickly. The THC, however, is stored in the body's fat cells for up to 30 days. This means that a fair amount of THC in the body may be inactive. In other words, a reading of 5 nanograms doesn't necessarily mean that a motorist is impaired. 

While I understand those who wanted to create a per se limit for THC, I must fault their rush to create a number without taking into account the problems inherent in such an approach. For one, the battery of roadside exercises police use to make their arrest decisions in DWI cases have never been tested on people who have smoked marijuana.

Without the "rigorous" testing NHTSA conducted on their exercise protocol, we have no way of knowing what levels of THC concentration correlate to what levels of performance. Without that correlation, any per se limit is just a number grabbed out of a hat.

Such a set-up will only serve to deprive those accused of driving under the influence of marijuana of a defense to the charge, as the court will presume that a driver with a THC concentration of 5 nanograms or higher is under the influence. That presumption will be made with or without signs of impairment.

While the referendum in Washington is a good sign that folks are starting to think hard about the failures of the war on drugs and the futility of treating drug use as a criminal matter and not a public health issue, the creation of a new per se limit is a troubling reminder that junk science lives on.

Book review: Subversives - The FBI's war on student radicals and Reagan's rise to power

"The most beautiful thing in the world is the freedom of speech." -- Mario Savio quoting Diogenes 

"The university is not engaged in making ideas safe for students. It is engaged in making students safe for ideas." -- Clark Kerr 

"Obey the prescribed rules or pack up and get out." -- Ronald Reagan

Those three quotes appear on the first page of Seth Rosenfeld's epic Subversives: The FBI's war on student radicals and Reagan's rise to power. The book chronicles the rise of the Free Speech Movement on the Berkeley campus against the backdrop of McCarthyism and the Red Scare.

On the one hand we have Mario Savio around whom the FSM crystallized. Mr. Savio managed to overcome his childhood stutter when he was placed before a crowd with a bullhorn. Savio was a wandering soul who went from one cause to another. I'm not so certain he ever found happiness.

On the other hand we've got Ronald Reagan and the right wing extremists who were coming into power with the help of J. Edgar Hoover and the various investigations the FBI conducted into groups that had the temerity to question those in power. For Hoover and his minions the truth didn't matter - it was all about the smear.

Caught in the middle was Clark Kerr, the president of the University of California. Mr. Kerr oversaw the creation of the nation's best post-secondary education system in the United States - a system that included junior colleges, colleges and major research universities.

But Mr. Kerr couldn't escape the clash of cultures during the 1960's. He tried to find middle ground between the student radicals and the right-wing extremists and - like anyone else who attempts to sit on the fence - he was left pulling splinters out of his backside.

For those of y'all who thought Ronald Reagan was a grandfatherly president who was teetering on the edge of senility - Mr. Rosenfeld's book should dispel you of that notion. Ronald Reagan believed in quelling dissent by any means necessary, subjecting public employees to loyalty tests and using the power of the state to keep tabs on its citizens. Under his administration the city of Berkeley was effectively placed under martial law.

And, what would a book about the rise of student radicalism on the West Coast be without mentioning Richard Aoki - the Japanese student who provided arms to the Black Panthers? As it turns out, after three decades of requesting documents from the government, Mr. Aoki may very well have been a government informant.

A number of lessons can be learned from the turmoil depicted in Subversives. The first is the transition from being an insurgent and getting a seat at the table is never easy. The second is when two powerful ideologies clash, don't try to straddle the middle - it won't work. The final lesson is when a new member of your protest group suggests tactics that are bound to end in confrontation with the police - your friend is probably an informant.

Shucking the mark of the beast

How ironic it was that Northside ISD in San Antonio decided to put radio tracking devices on students' ID badges.

It's hard to believe that in that same city over 175 years ago a ragged band of Texians and other settlers decided that freedom from Mexican tyranny was worth dying for. (We'll just forget about the part where the Mexican government had declared that slavery was illegal over the objections of large landowners in modern-day Texas.)

Andrea Hernandez decided not to wear the device. She based her decision on religious principle. To Ms. Hernandez, the badge was the equivalent to the mark of the beast found in Revelations. I don't know what that makes driver's licenses and smart phones, but that's another topic for another day.

She wasn't the first student to rebel over the school district's plan to obliterate the concept of privacy on campus. But she was the one the school district decided to go after when she took off the badge and refused to put it back on. Northside ISD decided it's only recourse was to expel her from school.

That's right. There is no indication that Ms. Hernandez was a disciplinary problem. There is no indication that she's not a good student. So, because she rebels against an edict that violates her religious beliefs, we must kick her to the curb and get her out of the school. What an example we are setting for the other students.

This nation (and this state) were founded because a group of folks stood up when they felt they were being wronged. They made noise. They caused problems. They questioned authority. They listened to their consciences.

And now, in the name of keeping tabs on every single student on one campus, a cabal of so-called educators is doing its best to squelch out any dissent. Just why does the school administration need to know who's in the restroom and who's in the lunchroom and who's in the stairwell with a member of the opposite sex? Our schools are slowly becoming police states in what would appear to be an attempt to socialize our young folks with the attitude that authority must, without question, be obeyed.

Mr. [John] Whitehead said student tagging and locating projects were the first step in producing a "compliant citizenry". 

"These 'student locator' programmes are ultimately aimed at getting students used to living in a total surveillance state where there will be no privacy, and wherever you go and whatever you text or email will be watched by the government," he said.

No, children are not adults. No students don't have the same degree of privacy on a school campus as they would at home. But at some point we must draw a line. At some point we must stand up and say that enough is enough. Students deserve a certain degree of privacy. And that degree of privacy must trump a school adminstrator's desire to track their every move.

While I may find the source of Ms. Hernandez' opposition to the ID badges comical, I do salute her for standing up for what she believes. Her parents should be proud of the daughter they've raised.

Now we can only wait and see if a court values the right of a student to seek redress of her grievances over the insatiable desire of the state to control our each and every movement.

The truth comes with a hefty price tag

Two-and-a-half years ago, the U.S. Army accused Pfc. Bradley Manning of leaking classified documents that embarrassed the U.S. government to the whistleblower website Wikileaks. For nine months he was held in a brig at Quantico, Virginia and subjected to physical and mental torture. When word leaked out about the way the government was treating him, he was moved to Fort Leavenworth, Kansas, where he has been held since.

Now, in another twist to this case, Mr. Manning has offered to plead guilty to some of the lesser charges but still maintains he never aided any enemy of the United States.

The documents that Wikileaks published contained cables from the U.S. government that showed the duplicitous, cynical nature of U.S. diplomacy. The documents highlighted how the U.S. got itself involved in the internal affairs of other nations. The documents outlined how our government was torturing so-called enemy combatants in direct violation of the Geneva Conventions.

Mr. Manning is a whistleblower. He exposed to the American people just what our government does in our name. Yes, some of the documents were very embarrassing. So freaking what? If our government can't defend its actions, then maybe someone in Washington needs to be thinking twice before deciding to meddle in another country's affairs.

We don't need any more secrecy. What we need is transparency. We shouldn't have to root around in the dark trying to find out what's being done in our names. We have a right to know what our elected, and appointed, officials are doing. Never forget that they work for us.

I have a theory that if all the backroom dealings that go around the world had to be conducted in broad daylight in the street, that there would be far less conflict. If governments were forced to answer for their deeds, someone might think twice before acting. If elected officials were held responsible for what happened under their watch, maybe someone would actually keep watch.

Bradley Manning is being punished for exposing the truth. How is that a bad thing?

A couple sporting thoughts

The other day I was driving to the office to pick up some files I needed for today. I was listening to Colin Cowherd's radio show, "The Herd," on ESPN Radio when I heard Colin say something that was grating on my ears.

Mr. Cowherd was talking about baseball and statistics. He was arguing that sabermetrics misses a key element of baseball. He said that one ballplayer might have a great on base percentage but that what was really important was who was getting hits and knocking in runs late in games and late in the season. He made the claim that a win in September or October was more important than a win in May or June.

I beg to differ. Every major league team plays 162 games a season over the course of about 26 weeks. The standings don't differentiate between a win in May and a win in October. A win is a win, regardless of when it happens. If a race comes down to the wire and two teams are tied after 162 games, that one game back in late April could have made the difference at the end of the season.

The same goes for when someone gets a hit or scores a run. The most precious commodity in baseball is the out. You only get 27 of them a game. Preserving that out in the first inning is just as important as preserving that out at the end of the game. My point is that over the course of a season, I'd rather have the player with the higher on-base percentage than the player whom the media label as "clutch" because of a game-winning hit here or there. Over the course of the season this notion of "clutch" tends to balance out - but the ability to get on base at a higher percentage and to preserve an out become very important.

***

We went to my brother-in-law's house for Thanksgiving dinner on Thursday and the Houston-Detroit game was on the tube. As I sat outside having a cold beer and watching my girls frolic in the swimming pool, Dave, my brother-in-law, came outside and told me that the Texans had scored a touchdown when they shouldn't have because the Detroit coach challenged a call he wasn't allowed to. According to the rules, if a coach challenges a call in that situation, the team loses a timeout and cannot benefit from the challenge.

That rule makes absolutely no sense. If the point of instant replay was to make sure the referees get the calls right by allowing certain plays to be reviewed, then not allowing the play on Thursday to be reviewed led to the absurd result that a call that was clearly incorrect was allowed to stand.

As much as I find instant replay to be annoying (hey, if the standard is "indisputable evidence," then if someone has to watch a replay more than once the evidence was obviously disputable), if you're going to have it, I think college football has the right idea. In college ball a replay official sits in the press box and reviews every play during the game. If there is something that catches his eye, he signals down to the field and play is halted. There are no challenges so that the absurd result of the NFL game cannot occur in a college game.

Black day in Bentonville?

Today while you're out shopping on Black Friday, Wal-Mart employees will be in the streets protesting labor relations at the world's largest retailer. Wal-Mart attempted to shut down the protests before they began by complaining to the National Labor Relations Board that the United Food and Commercial Workers Union was engaging in unfair labor practices.

The complaint rings hollow as the workers at Wal-Mart are non-unionized - largely due to the company's virulent anti-union and anti-worker policies. Wal-Mart wants you to believe that the vast majority of their workforce is happy to be employed at poverty-level wages. They may be right if we're talking about the teenagers who work after school in order to put gas in their car and pay their cell phone bills.

But, for a full-time "associate," the story is a bit more bleak as a full-time employee making a bit over minimum wage still falls under the government's official poverty line. There is something seriously wrong when full-time employees are paid a wage that won't even pay the bills.

Of course Wal-Mart and the rest of their corporate brethren don't want you to think about that while you're out hunting for the best deal on a flat-screen TV or the latest electronic device on your child's list. They want you to think that those folks living under the poverty line are mooches who are doing their best to avoid responsibility. They don't want you to think about the fact that their profit margins are generated by employing people at the lowest wage possible.

So here's something to chew on while you're waiting in line today. Why is it that our government refuses to raise the minimum wage to a level that working folks can afford to pay their bills? Why is it that President Obama never once mentioned the plight of the working poor during the campaign? Why is it that Wal-Mart is doing whatever it can to prevent its employees from exercising their right to fight for higher wages and better working conditions?

For those of y'all  out in the parking lots and sidewalks today fighting for a better life, you have my support.

The joint that broke the camel's back

So, Eric Holder, what's the big deal about Colorado and Washington voting to legalize marijuana? Why should it matter that two states decided the benefits of the war on drugs wasn't worth the cost? Maybe you're worried that some other states will come to the conclusion that it doesn't make sense to waste public resources arresting, jailing and trying cases involving an ounce or two of the chronic.

The bigger question, however, is why the federal government is involved in the prosecution of marijuana cases at all. Up until last week, all 50 states had laws on their books making it a crime to possess marijuana. Why were los federales even involved in pot cases? It would seem that the states had it under control.

As I've stated many times before, the only federal crime specified in the Constitution is treason. According to the 10th Amendment, everything else was left up to the states.That's what the conservatives have been screaming for years.

Then how come no one questions why the federal government prosecutes drug cases?

If two states are tired of the time and money spent on pot prosecutions, so be it. I thought the beauty of federalism is that there are 50 little laboratories out there that can test various ideas and programs. Why not let a couple of states try out decriminalizing marijuana? Why not step back and see what happens?

The worst case scenario is more people start passing the bong around the room. Well, Mr. Holder, I've got news for you. Kids are still smoking pot in high school and college and it's been illegal for generations. Anyone who wants to buy any weed can easily find a seller.

The best case scenario is Colorado and Washington save money that would have been spent arresting, jailing and trying folks who were dumb enough to get caught with marijuana (and here's my tip for the day -- smoke the chronic at home and don't carry it in your car, trust me on this). Maybe the states realize some additional tax revenue as a result. Maybe you'd even see a drop off in some violent crime since the distribution of marijuana would be regulated.

And, if these benefits are realized, maybe other states would take a look and begin to question their own laws regarding marijuana. For some states, legalizing it might be the way to go while, for others, reducing possession of small amounts of marijuana to the level of a traffic ticket might work.

Maybe Mr. Holder's real fear is that the actions in Colorado and Washington might lead folks to question why there are so many federal crimes that duplicate the laws on the books in the 50 states. Maybe he's afraid there might be some movement to pare down the list of federal crimes. Or maybe it's because those in power are unwilling to cede any of the authority they've grabbed over the years.

So, Eric, which is it?

"A cell phone is not a pair of pants"

Anthony Granville got in trouble at school one day. I don't know for what. But he found himself with his hands cuffed behind his back and getting a free ride to the county jail.

The court's opinion just refers to Mr. Granville as having "caused a disturbance." Being that appellate courts are never shy about telling us just how badly a defendant behaved, I find it hard to fathom why the police were carting Mr. Granville off to jail.

But that is a discussion for another time and another day.

While sitting in the county jail, Mr. Granville's cell phone became quite the object of interest from a police officer who had nothing to do with Mr. Granville's arrest. It seems that he somehow caught wind that Mr. Granville had taken a picture of another student urinating.

Armed with this information the officer made his way to the jail, retrieved Mr. Granville's cell phone and, without obtaining a search warrant, began searching through the stored images. Lo and behold, he found the picture in question and Mr. Granville's day suddenly became worse as he was soon charged with the felony offense of "improper photography or visual recording."

Mr. Granville urged a motion to suppress the images on the grounds that the search of his cell phone constituted an unconstitutional search.

The prosecutor argued that the search was "simply a probable cause search of jail property that is a person's effects when they go to jail" and that Mr. Granville had no reasonable expectation of privacy in what was taken from him upon being booked into the jail. According to the prosecutor, a cell phone is the equivalent of a pair of pants.

The trial court was having none of it and granted Mr. Granville's motion.

But that wasn't the end of the matter as the State just couldn't let the matter go and appealed the judge's order suppressing the photograph.

In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.

The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.

The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.

Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.

I leave y'all with this quote from the opinion:

While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.

Taking a look at notable criminal justice bills in the Texas Senate

Yesterday we looked at some of the criminal justice bills filed in the Texas House. Today it's time to head down the hallway and check out what the state senate has been up to.

First up is Sen. Rodney Ellis' (D-Houston) reciprocal discovery bill. Yes, the proposal codifies what materials the state must make available to the defense. In many areas of the state these items are covered under standard discovery orders issued by the courts. But the bill would also require the defense to make material available to the state prior to trial.

While some would see no problem with this arrangement, it puts a burden on the defense to produce evidence - something the defense is not required to do at trial. In a criminal prosecution the burden of proof is placed squarely on the shoulders of the state - this isn't a civil case where both sides have a burden to meet.

Additionally, the bill provides no effective relief should the state fail to produce the required items. In fact, the bill makes itself a punch line by explicitly stating that the failure of the state to comply is not grounds to dismiss a case or set aside a verdict.

Sen. Dan Patrick (R-Houston) has put forth a bill that would permit deferred adjudication for intoxication offenses. That is a step in the right direction. If a defendant is able to plead to deferred adjudication for every other misdemeanor offense and the vast majority of felony offenses, it makes no sense whatsoever that he isn't allowed to be placed on deferred adjudication for driving while intoxicated. For recognizing this, I give Sen. Patrick a thumbs-up.

The proposed bill would count a deferred on an intoxication offense as a conviction for enhancement purposes. On this I have mixed feelings. While I think a prosecutor should be allowed to take into consideration a prior deferred on a DWI, I don't like making it black letter law. Defendants choose to take deferred for a variety of reasons. Sometimes that decision is made because the risks of going to trial versus taking a deferred are too great - even for an innocent person.

Sen. Patrick has also proposed a bill that would make it a Class A misdemeanor for former members of the state legislature to lobby until after the second regular session after their retirement, or firing, has adjourned.

Yes, the proposed bill would put a temporary stop to the revolving door that infects our government at all levels. But, do the provisions prohibiting lobbying for a certain period of time violate the First Amendment?

Finally, Sen. Judith Zaffirini (D-Laredo) introduced a companion bill to Rep. Craddick's proposal to make it a crime to text while driving.

Taking a look at notable criminal justice bills in the Texas House

It's that time of year again. It's time for our beloved state legislators to pre-file bills before the beginning of the biennial session in January. And, it's probably time to be thankful that they only meet for 140 days every other year - because, otherwise, they could do some real damage.

Today we'll look at some notable bills filed in the house.

First we have Rep. Tom Craddick's (R-Midland) latest attempt to criminalize texting while driving. Under Mr. Craddick's bill, it would be a Class C misdemeanor (traffic ticket) to send a text, read a text, send an e-mail or read an e-mail on a phone or tablet while driving. That is, unless your phone allows you to dictate a text or e-mail or listen to a text or e-mail.

I think we can all agree that it's just not a good idea to text while driving. There is too much else to worry about when out on the road without checking your Facebook status or Twitter timeline at the same time. The bill does not address talking on the cellphone while driving which, even though one's hands may be free, is just as distracting as trying to send that text message.

Rep. Harold Dutton (D-Houston) has put forward a bill that would abolish the death penalty in Texas and replace it with life in prison without parole (or as Jeff Gamso would say, death in prison). Rep. Dutton's bill would also change the procedures by which appointed counsel is chosen in criminal cases.

In a contest to see who can submit the most obnoxious bill, Rep. Van Taylor (R-Plano) has filed a bill that would require law enforcement personnel to determine the identity of a driver by use of various forms of state-issued identification or, if necessary, finger-printing. Of course we all know the purpose of the bill is to target Latino drivers in Texas and to force motorists to show that they are citizens if stopped for a minor traffic offense.

Mr. Taylor's offering is followed closely by Rep. Richard Raymond's (D-Laredo) bill that would create an on-line data base of everyone in Texas who has been convicted of driving while intoxicated (or other offense involving drinking and driving) in the last ten years.

The database would contain a photograph and the person's last known address. The next step in this march to stupidity will be to require a person convicted of an intoxication offense to register on an annual basis in order to create another offense with which they could be charged.

This idea, along with the current sex offender registration laws, are absurd. When a person has been convicted and has served their time in prison or on community supervision they have paid their debt to society. These registration bills force these folks to continue to pay a debt long after they have served their sentence.

Rep. Raymond has also filed a bill that would do away with the Court of Criminal Appeals and let the Supreme Court be the court of last resort for both civil and criminal matters. I have mixed thoughts about this proposal.

On the one hand, I think it makes sense to have one court handle nothing but civil matters and one court handle criminal matters. It streamlines the courts' dockets and, in a perfect world, provides us with judges who are well-versed in a particular branch of the law.

On the other hand, doing away with the CCA would do away with Judge Sharon Killer Keller which wouldn't be a bad idea. I don't know what Rep. Raymond's purpose in this bill is, but I am interested in finding out.

And finally we have Rep. Allen Fletcher (R-Cypress) who wants to do away with what we in the criminal bar fondly refer to as The Rule.

Texas Rule of Evidence 614 states that no potential witnesses may be in the courtroom when another witness is on the stand. The purpose of the rule is to prevent witnesses from changing their testimony in response to questions they hear another witness being asked.

Rep. Fletcher's bill would allow the prosecutor to designate a courtroom representative for the state during a criminal proceeding. The purpose, of course, is to help the state's witnesses keep their stories straight when testifying before a jury. As anyone who has ever tried a criminal case with multiple police officers knows, The Rule is observed more in the breach than in the observance once the witnesses leave the courthouse. I guess it shouldn't surprise anyone that Rep. Fletcher is a former police officer.

What Rep. Fletcher doesn't seem to understand is that the state already has a representative in most courts - it's called the judge.

Update: Was he or wasn't he?

The State of Texas murdered Preston Hughes last night.

Maybe he was innocent. Maybe he was not.

The injuries the victim suffered are not consistent with the testimony of the police officer who found her. Did he make up the last words of a dying girl?

We don't know. We'll never know.

The jury thought he did it. But jurors find it hard to believe that police officers lie.

The problem for Mr. Hughes was that the jury found him guilty. That meant he had to present evidence of actual innocence - and that's a world apart from demonstrating reasonable doubt.

His attorney, Pat McCann, did everything he could to keep Mr. Hughes alive. He filed a clemency request with the Board of Pardons and Parole. He tried to file a civil suit challenging the one-drug cocktail. Mr. Hughes didn't think he did enough.

What Mr. Hughes and his supporters couldn't grasp is that the game changes once that jury comes back with a guilty verdict.

Now he's dead. And still nothing has changed.

The victims are still dead. Friends and family still have a void in their lives. The killing of Preston Hughes didn't change that.

And now there's no reason to continue to determine whether or not he was innocent. Maybe the State of Texas killed an innocent man. And maybe not.

Does it really even matter?

Assuming that was his real purpose

The other day I was in county court handling a client's DWI case. The judge was calling the trial docket and trying to figure out if anyone was going to trial that day. One by one came the requests for a continuance - and one by one they were granted. That is, until there were two cases left.

One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process of guessing extrapolating the defendant's alcohol concentration at the time of driving.

I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.

I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.

Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.

First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.

Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.

So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.

Update: Another one bites the dust

So Ramon Hernandez is dead.

The State of Texas killed him last night.

Mr. Hernandez was not a nice person. He did some very bad things.

But killing him doesn't erase his actions. It doesn't undo anything that he did.

It's getting to be a common refrain over here that jabbing a needle in Mr. Hernandez' arm and pumping a lethal dose of pentobarbital into his veins doesn't magically bring his victim back to life or fill the void in the lives of her family and friends.

There has got to be another way.

I have no doubt that one day - maybe sooner rather than later - state-sponsored murder will be a relic of the past. The death penalty is arbitrarily meted out. The District Attorney gets to decide who the state seeks to kill and who they merely want to lock away. Those decisions are made behind closed doors. There is no transparency. There is no consistency.

If you're black or Latino it's more likely that the state will seek to kill you. If your victim was white it's more likely that the state will seek to kill you. Those decisions, make no mistake about it, are all about race and ethnicity.

Maybe Gov. Rick Perry feels more manly tonight now that he's added another notch to his belt. Maybe he'll show up tomorrow wearing a flannel shirt and a pair of jeans.

As budgets have tightened, the number of cases that go to trial with the death penalty on the table is getting smaller. Death penalty cases are expensive. And those expenses drag our for years. In the end the death penalty may go away not because of the immorality of it - but because of the cost.

I'll take abolition any way it comes.

DOMA is doomed

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. - Loving v. Virginia, 388 US 1 (1967).

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. - US Constitution, Art. IV, Sec. 1

Last Tuesday, Maine and Maryland became the first states to approve same-sex marriage. The results ended a string of defeats at the polls over the years.

The passages of those two measures will mean the effective end of the Defense of Marriage Act. As I have written before, once one state recognizes same-sex marriage, every other state will be forced to do the same - whether they like it or not.

Back in the 1950's, the state of Virginia made it a crime for an interracial couple to marry. To add insult to injury, the laws of that time not only voided such marriages, but the parties involved could be sentenced to up to five years in prison.

In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, living in Virginia went to Washington, D.C. and got married. They then went back to Virginia and settled down. Less than a year later they were indicted, convicted and sentenced to one year each in prison. The court suspended the sentences for 25 years provided the Lovings left Virginia and never returned.

In 1967 the case, Loving v. Virginia, made it to the Supreme Court. The Lovings argued that the Virginia laws violated their rights to due process and equal protection. The state countered that the laws did not violate the Equal Protection Clause because both the white partner and the black partner were subject to the same sentence.

The Warren Court begged to differ. Said the Court:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

The Court reversed the convictions and declared the Virginia statutes unconstitutional.

Opponents of same-sex marriage will argue that marriage laws were left up to the states at the founding of the republic. That is true - which is why conservative support of the Defense of Marriage Act is so tastefully ironic. Here we have yet another example of how the right wants selectively limited government.

The fact that marriage is left to the states to regulate is why DOMA is now doomed. Let's think about it for a bit. The Full Faith and Credit Clause says that a state must recognize the legal proceedings and records of any other state. And that's what happens now. If you get married in California and then move to Texas you are just as married in the Lone Star State as you were on the Left Coast. You are entitled to the same rights and privileges as a couple that was married in Texas.

The Equal Protection Clause says you have to treat people equally. You can't treat one person one way because he or she is white or heterosexual and then treat another person differently because that person is black or homosexual. That notion applies to married couples as well.

It will take time but sooner, rather than later, every state in the Union will be required to recognize same-sex marriage - even they have to be dragged kicking and screaming. All it's going to take is one couple to file one suit challenging a law banning same-sex marriage for the chain reaction to occur. It would be much easier if governors and state legislatures would just recognize that the issue is now moot and pass laws conferring the same status for same-sex couples as heterosexual couples.

That, though, would require character and leadership.

Execution Watch: 11/15/2012

And the killing machine just keeps running...

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

PRESTON HUGHES. Hughes, 46, was sent to Texas death row more than 23 years ago following his conviction in the Houston murders of a teenage girl and a toddler. His supporters cite numerous problems with the case against him, including a confession they saw was coerced by police.

For more information on Mr. Hughes, click here.

Jeff Blackburn, the founder and chief counsel for the Innocence Project of Texas will be the special guest.

RADIO PROGRAM PREVIEW
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Execution Watch: 11/14/2012

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

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

RAMON HERNANDEZ. One of two men sentenced to death for a 2002 murder in San Antonio in which the victim was abducted, robbed and sexually assaulted. Co-defendant Santos Minjarez cheated the death gurney by dying in custody January 14, 2012, from septic shock and multiple organ failure.

For more information on Mr. Hernandez, click here.

Robert Chase, Ph.D., author of Civil Rights on the Cell Block: Race, Reform and Violence in Texas Prisons and the Nation, 1945-1990, will be the special guest.

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Unless a stay is issued, we'll broadcast ...Wednesday, November 14, 2012, 6-7 PM CT
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Another season ends and this time I'm happy

Ordinarily this is the time of year I write wistfully about the end of another soccer season and the wait for next year to arrive. This year's narrative is a bit different, however.

For the last six years I have coached my daughters' soccer teams. They both began playing when they were three and I coached them through two years Pre-K and one year of kindergarten soccer. It doesn't seem possible that my oldest just finished up her sixth year of soccer and that my baby just finished her third year.

For the past four years I have been in charge of the youth soccer program at my girls' church. I got involved because I liked the philosophy of the league and the other coaches I worked with. Being in charge takes its toll. The month-long run-up to the season is a massive pain trying to get through registration, forming teams and getting the fields ready for the season.

As a rule, once the season begins the headaches are over. Sure, there's striping fields and unlocking everything on Saturday mornings (and breaking down the fields that night or the next morning). For eight weeks I get to watch a group of kids run around chasing a soccer ball having a good time. It is such a pleasant diversion from reality.

This year, however, was different. Early in the season, as I was sitting on the couch watching the Longhorns play after our morning game, I got a call from the head of the league. There had been an incident at a game. A parent got into an argument with a referee and it got so bad the game had to be halted and the head of the league was called out from her office. Oh, and did I mention it was kindergarten game?

Instead of cooperating with me, the coaches circled the wagons and claimed that the parent was in the right and that the referee and the league had overreacted to the incident. Not once did anyone associated with the team acknowledge that the parent had stepped over the line. I ended up suspending the parent for one game for his actions and the coaches for one game for not cooperating. I thought the matter was over. Oh, did I mention the league wanted to kick the team out as a result of the incident and the reaction afterward?

Then last week a series of e-mails began circulating claiming that the parents and the coaches were mistreated and that the entire incident was a "misunderstanding." The e-mails circulated among parents and administrators at the church and school. One parent, who works for a prominent Houston attorney with her husband, sent an e-mail that seemed to be a veiled threat to pursue legal action. Oh, did I mention that the coaches sign an ethics agreement that coaches, parents, spectators and fans are to respect and obey the referees?

I was astounded. No one, including the administrators, seemed to understand the problem. No one seemed to grasp that the message being sent to the kids was there is no need to accept responsibility for your actions if you raise a big enough stink. Oh, did I mention that in the six years I've been involved with the league there has never been an incident like this one involving any team from my girls' church? And did I mention that the team involved was made up of kids who went to the elementary school down the street?

I have volunteered my time over the last six years to ensure that these kids can play soccer. But those days are over. I have better things to do with my time than deal with this group of parents and their sense of privileged entitlement. I have resigned my position.

I have never before been so glad that a soccer season was over. And that's sad.

On faux patriotism and propaganda

This weekend a number of college football and basketball teams will wear what Uniwatch blogger Paul Lukas' refers to as their G.I. Joe uniforms. The ostensible purpose is to commemorate Veteran's Day. The real purpose, however, is to serve the needs of the war industry's propaganda machine.

Last weekend the NFL went all gung-ho for war with special ribbon decals on helmets and gaudy displays of faux patriotism at stadium after stadium. The NFL said it was to celebrate Veteran's Day. Nope. It was more pro-war propaganda.

This entire notion that we are "supporting the troops" sprung out of President Bush the Elder's war in the Persian Gulf. You remember that one, don't you? Our government supposedly sent our young people to die in the desert to "liberate" Kuwait from Iraq. We went to "liberate" a dictatorship that repressed dissent. Now that's something to die for.

In order to sell this war to the American people the war industry's propaganda machine came up with the idea of "supporting the troops." Not supporting the war, mind you, just supporting the young men sent to die so a dictator and his family could profit from oil in the ground. The military had learned its lesson in Vietnam. It was somehow deemed unpatriotic if you didn't support the troops. Of course, supporting the troops was the same thing as supporting the war - it's just that a whole bunch of folks bought the propaganda hook, line and sinker.

Now with interest in the Afghan war cratering by the minute - and with some calling for massive cuts in defense spending - here comes the war machine again. Dress up those college kids in camo uniforms. Convert helmet logos into desecrated flags. Parade soldiers in their uniforms around the stadium. Celebrate the killing of young people around the world.

The kids do as they're told. The coaches and administrators have the power to stop this charade - but they are too enticed by the money being waved in front of them by ESPN and the uniform makers. They are the ones raking in the bucks - and they should be ashamed of themselves.

War is not glorious. War is not civilized. War is about death and destruction. If we're going to force pro-war propaganda down peoples' throats then we also need to see the caskets bearing the remains of dead soldiers being offloaded from the planes. We need to see pictures from the battlefield of young men on the ground bleeding and dying. We need to see pictures of the civilians killed by mortar fire and bombs. If the American people were to see those pictures on a nightly basis the pro-war hysteria would disappear in a hurry and we would stop burning money by handing it to the Pentagon and their crooked contractors.

Tomorrow is Veteran's Day. It's not pro-war day. It's not support the latest war day. It's a day to remember those men and women who wore a uniform and went where they were told to go and did what they were told to do. It's about remembering those men and women who fought on the battlefields of Europe and Asia fighting the fascists in World War II. It's about remembering the men and women who manned the lines in our proxy wars with China in Korea and Vietnam. It's about remembering the men and women who were exposed to enemy fire in the Bushes' wars for oil. It's about remembering the men and women who faced death in Afghanistan and Iraq because President Obama didn't have the will to end those wars.

The last war this nation fought that had a noble purpose was World War II. The wars and conflicts since then have all been about defending American imperialism or making the world safe for oil companies.

And in each of those conflicts our leaders in Washington had no problem sending thousands of our young people to their deaths. I can't help but think those decisions would have been different had the men who chose to go to war had to fight on the front lines. Or if their children or grandchildren would have to carry out their wishes.

If we really want to support the troops - and honor those who have served in the past - then it's time to bring them home. It's time to stop sending young men and women to their deaths to satisfy the needs of corporations. It's time we realize that war serves no other purpose than to show how little respect we have for life.

A tale of two men

British Prime Minister David Cameron said the other day that he would support safe passage out of Syria for embattled dictator Bashar al-Assad if it would end the bloodshed in that country.

But Mr. Cameron won't allow Wikileaks founder Julian Assange safe passage to Ecuador following Ecuador's decision to grant asylum to Ms. Assange.

Mr. Assad is a murderer. He has turned his military on the people of Syria in the name of holding on to power until the bitter end. He has ordered planes and helicopters to fly over and bomb urban areas in an attempt to end the rebellion in the country.

Mr. Assange is a journalist who published secret (and not-so-secret) documents as part of a campaign for transparency. Wikileaks was provided information by Bradley Manning that revealed human rights abuses at the hands of the US government and its agents abroad.

Mr. Assad, much like his daddy, is a brutal dictator who cares less about the people of Syria than accumulating wealth and power. In response to the Syrian people who demanded more say in the running of their government, he cracked down on dissent and turned a political movement into a civil war.

Mr. Assange, through Wikileaks, exposed (and embarrassed) the US government by releasing State Department cables detailing the ways in which the US and its proxies operated under cloak of darkness and secrecy. He exposed the US backing of repressive dictatorships around the world and US-backed attempts to limit dissent.

Mr. Assad has committed crimes against humanity. He should be in the dock at the International Criminal Court answering charges for murder, torture and gross human rights abuses. Despite his actions, Mr. Assad is being promised safe passage out of the country in order to facilitate an end to the civil war.

Mr. Assange faces a complaint in Sweden that he sexually assaulted two women. Not charged, mind you. He has offered to answer any questions Swedish authorities have for him - provided that either the interview take place in the Ecuadorean embassy or that Sweden provide assurances that they won't extradite him to the United States to face a possible indictment alleging he committed treason.

Mr. Cameron is very much continuing the legacy of former Prime Minister Tony Blair who willingly allowed himself to be prostituted by the United States. Whatever Washington wanted from him, Mr. Blair was only too happy to do. The Obama administration has decided that it is time for Mr. Assad to step aside (while leaving brutal dictators in charge in both Saudi Arabia and Bahrain).

The US Government has also decided that the documents published by Wikileaks have so hindered the government's ability to pull the strings around the world, that Mr. Assange must be punished. Let us not forget that this has nothing to do with revealing state secrets - the White House has done that routinely over the years when it serves the President's purposes - it has to do with pulling the curtain back and exposing the Wizard.

In the meantime Mr. Cameron is okay with granting safe passage to a dictator, but not to a journalist. What's wrong with this picture?

Update: Killing changes nothing

Scientists announced that at about 6:39 pm last night, Lola Nixon rose from the grave - very much alive. Her family and friends told reporters that they were glad to have her back in their lives. One old companion was heard to say that the hole in his life had been filled back in. Behavioral scientists noted that there research showed that there would be no more murders in Texas anytime in the foreseeable future.

When asked what miraculous event brought about these extraordinary occurrences, state officials replied that   is was all due to the execution last night of Mario Swain.

Except that none of it happened. Well, none of it except for the State of Texas murdering Mario Swain. Mr. Swain became the 251st victim of Rick Perry and (I believe this number is correct) the 490th person killed by the state since the ban of state-sponsored murder was lifted by the Nine in Robes.

By all accounts, Mr. Swain was not a good person. There were other attacks that the jury heard about during the punishment phase of his trial. A state "expert" told the jury that Mr. Swain was a serial killer in training.

But it doesn't make it right to murder him. His death changes nothing. Ms. Nixon is still dead. Her friends and family still miss her. Someone in Texas will be murdered today.

The State of Texas murdered Mr. Swain for no other reason than it could.

The passing of a legend

The University of Texas lost an icon yesterday with the death of coaching legend Darrell Royal. Coach Royal led the Longhorns out of the wastelands and into the promised land, winning two national titles, 11 conference titles and 10 Cotton Bowls during his tenure.

He and Emory Bellard (later the head coach at Texas A&M), developed the wishbone offense that took the option to a whole new level. In the wishbone the quarterback was joined in the backfield by a fullback and two tailbacks. The quarterback then had the option to hand it to the fullback, pitch it to a tailback or take the ball up the field himself.

Once Coach Royal was asked why his teams didn't pass the ball more. He told the reporter that when you pass the ball only three things can happen and two of them, interception and incompletion, were bad. But the play he is remembered most for is the long pass on fourth down in the "Game of the Century" in 1969 against Arkansas in which Texas rallied to win 15-14 and was awarded the national championship.

Coach Royal did not care for his players celebrating after scoring touchdowns. He felt you should act like you've been there before and plan on being back in the future. If you've ever seen video of Earl Campbell in college or in the NFL he never spiked the ball and he never carried on after scoring. He just tossed the ball to the referee after he crossed the goal line.

The phrase he's most well-known for was his reply when a reporter asked why he wouldn't change things up when the Longhorns were in the midst of a losing streak. Coach Royal's answer was that you've got to dance with the one who brung ya'.

For almost two decades Texas coaches were compared to Darrell Royal. After his retirement, the University hired former assistant Fred Akers to take over the program. No matter what Akers did during his time in Austin, it was never good enough. It was never good enough because Fred Akers wasn't Darrell Royal.

And neither were David McWilliams or John Mackovic. It wasn't until Mack Brown came along that the shadow of Darrell Royal receded.

Rest in peace, Coach, and hook 'em!

Just another death in the Harris County Jail

On January 16, 2011, Norman Hicks was assaulted by a detention officer in the Harris County Jail. Christopher Pool hit Mr. Hicks in the face and left him lying on the floor bleeding. Six days later Mr. Hicks was dead as a result of complications from a heart attack after suffering a broken nose and blunt force trauma.

Two days after he was beaten by Officer Pool, Mr. Hicks was charged with the felony offense of harassment  in a correctional facility. The criminal complaint alleged that he threw a shirt covered with feces and urine at detention officer Pool on January 7, 2011.

It can hardly be a coincidence that nine days later Mr. Hicks, who was 72 at the time, found himself on the wrong end of Officer Pool's fist.

But what is not clear from the Harris County District Clerk's website is why Mr. Hicks was in jail in the first place. While he had been jailed for violating a protective order in 2010, there are no records of what he was charged with that landed him in jail in January. In September of 2010 a motion to adjudicate guilt in a felony domestic violence case was dismissed. Mr. Hicks was scheduled to appear for a review of his probation conditions on the mental health docket on the 18th - it was noted in the records that he was absent that day.

Mr. Hicks had a history of mental illness and had been jailed before on charges involving domestic violence.

On September 14, 2011, a Harris County Grand Jury cleared Officer Pool of any wrongdoing in the death of Mr. Hicks. It would seem to me that one could make a very compelling case that Officer Pool plotted his revenge after the alleged incident on January 7 and, when he had the opportunity, punched Mr. Hicks, almost 50 years his senior, in the face and then left him on the floor covered in blood.

But no one in the District Attorney's Office wanted to see a detention officer charged with criminally negligent homicide for killing an inmate. That would be too unseemly. But, they couldn't dismiss the case because the fallout from the community would be too great. So, someone decided to give a half-assed presentation to the grand jury so that Pat Lykos could blame the grand jury for no-billing Officer Pool if there was any outrage at the dismissal.

Now Mr. Pool, another detention officer and a sheriff's deputy have appealed their firings.

While Mr. Pool was no-billed by a grand jury, the fact remains that he used more force than was necessary in response to Mr. Hicks' actions. His callous act of punching Mr. Hicks in the face and leaving him on the ground unresponsive should give everyone pause. Is this the kind of person we want roaming the streets of Harris County carrying a loaded weapon and a taser? What would the reaction from prosecutors have been if the incident didn't involve a detention officer and an inmate? Would Joe Blow have been no-billed had he done the same thing to a neighbor who threw a feces-covered shirt at him?

The other two individuals were fired for not doing anything to help Mr. Hicks and for not reporting what they had seen. They both knew what Mr. Pool did was wrong. They both saw that Mr. Hicks was lying on the flood bleeding. And they both stood around and did absolutely nothing.

It's hard to decide whose conduct was worse.

A few thoughts on the morning after

Despite their best efforts, election officials in Ohio and Florida failed to suppress enough votes to prevent Barack Obama from being re-elected. In Ohio, early voting was curtailed and polling places were almost non-existent in minority communities. Minority voters were handed applications for provisional ballots and John Husted, the Secretary of State, informed local officials that if a provisional ballot was handed in without the voter filling in all of the requested information, the ballot was not to be counted.

Down in Florida the gang in charge of the state house also limited the availability of early voting and provided so few early voting sites in minority neighborhoods that voters stood in line for six hours or more to vote.

Now that the most expensive campaign in American history is over we can all take a deep breath and see that everything's the same this morning as it was yesterday. We can also look back over the past four years and look forward to more attacks on our privacy in the name of security. We can look forward to another four years of government prosecution of whistle blowers who provide information that embarrasses those in power. We can look forward to another four years of drone warfare and extrajudicial killings of civilians abroad. We can look forward to another four years of economic policies designed to benefit big banks and large corporations at the expense of the working class and poor. We can look forward to another four years of having insurance companies make our health care decisions for us. We can look forward to another four years of coddling dictators who sit on vast reserves of oil.

Of course it could have been worse.

In Texas we can look forward to another four years of Judge Sharon Killer Keller sitting on the Court of Criminal Appeals still none the worse for wear after doing everything in her power to prevent Michael Richard's attorneys from filing an appeal to prevent his execution. The state Democratic Party had an opportunity to hand the GOP a defeat in a statewide race and whiffed completely. The party left its nominee, Keith Hampton, to dangle in the wind with no support whatsoever.

In Harris County it looks as though the urban vote will carry President Obama to a slight victory, but his coattails weren't as long this time around as they were four years ago. Most of the judicial races are tight - within a percentage point or two - but it looks as if the Republicans will take back some of the benches they lost in 2008. One notable exception appears to be the least competent judge at 1201 Franklin - Ruben Guerrero.

Mike Anderson, as expected, defeated Lloyd Oliver by the largest margin of the night. Mr. Anderson will take the office back to the future with his plans to pursue convictions in trace cases (cases in which the amount of dope found was less than .01 of a gram). This means more folks will be sitting in jail awaiting trial and more folks will end up with drug convictions for possessing a less-than-usable amount. We still don't know where the money will come from to pay for housing more defendants or how the county is going to afford to ship more inmates to other counties. But, then, those are just details and Mr. Anderson is bringing back the Good Ol' Boy network.

The election of Mike Anderson will also bring about an end to Pat Lykos' controversial (and illegal) DIVERT program for first-time DWI offenders. I would like to know if this means a return to the days of time served and a fine for DWI or if defendants will continue to be given a choice of 30 days in jail or probation on a first offense. One thing that can be assured is the number of DWI cases going to trial will increase as defendants realize they have nothing to lose by going to trial.

I'm also curious how many of our former prosecutors cum defense attorneys (who all announced how much they admired what we did and wanted to be like us) will return to the office now that Ms. Lykos will no longer be occupying the sixth floor.

Execution Watch: 11/8/12

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

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

MARIO SWAIN. A jury convicted the Los Angeles native, following a three-day trial, of murdering a woman after she entered her East Texas home to fine Mr. Swain burglarizing it. Among his claims on appeal were that the prosecution should not have been allowed to introduce his confessions at trial, his attorneys failed to investigate evidence of childhood abuse that might have persuaded the jury to spare his life and a prosecution-requested jury shuffle that placed more whites at the front of the panel of prospective jurors, reducing the likelihood that a black person would be chosen.

For more information on Mr.Swain, click here.

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A little food for thought on Election Day 2012

Here are a few things to think about on this election day...

Is there any reason to keep the antiquated Electoral College system for choosing the president? Back when the Constitution was penned there was a fear among folks from smaller states that the larger states would dominate when it came to picking a president if everyone's vote counted the same. It's the reason the House is apportioned by population and the Senate by state.

Well, as anyone who has followed the campaign this year knows, both President Obama and Mitt Romney pretty much ignored the entire country with the exception of about eight states. If you live in Ohio, Florida, Virginia, Iowa or a handful of other states then you've gotten an earful and an eyeful from both candidates - but, if you live in Texas or California or New York, you wouldn't even know there was a presidential campaign going on.

With this election so dependent on a small number of voters, most of us will (or have) cast ballots that are all but meaningless when it comes to choosing the President. What is the incentive for someone in Texas or California or New York to vote when it's not going to count? How democratic is it for such a small number of voters to determine who prevails in an election?

Our problem today is the opposite of the problem at the founding of the republic. No longer are we concerned with the large states dictating who's in power at the expense of the smaller states. Now the large states are at the mercy of the smaller states.

The time is now to abolish the Electoral College and allow the popular vote to determine who sits in the White House.

***

Down here in the Lone Star State it appears that Gov. Rick Perry and his band of merry minions have been doing their damnedest to keep blacks and Latinos from voting tomorrow. The first salvo was the requirement that a voter have a state-issued ID before being allowed to vote.

Way back when I was an election judge in my precinct and folks who wanted to vote needed one of three things. Their voter registration card was as good as gold at the polling station. If they didn't have their card then a driver's license could them a spot in a voting booth. If they had neither then they had to sign an affidavit swearing that they were who they said they were. Those votes could be challenged so they were put in a separate box. The system worked fine.

In the last two weeks, the merry minions launched their second salvo -- they began purging folks from the voter rolls they believed were dead. If someone had a similar name and the same date of birth as a dead person, they were sent a letter (supposedly) asking for proof that they were living in the material world.

The state ran the voter list against the Social Security Administration's death list and whacked some 6,491 voters from the official roster - including one James Harris, Jr., an Air Force vet who has voted in every election since the days of Richard Nixon. The only problem is that Mr. Harris was very much alive.

How many other living folks were stricken from the voter rolls because someone in Austin thought they were someone else? How many people are going to get to their polling station this morning and find out that they don't get to vote because someone in Austin thought they were dead?

The State of Florida tried to purge their voter rolls as well. In Florida they were looking for non-citizens. They struck voters who had similar names or dates of birth to those on a State Department list. And, as it just so happens, just about all of the people they were targeting were Latino.

It's all part of the ruling classes attempt to limit dissent in this country. By reducing the number of poor and immigrant voters on the rolls, the Republicrats and Democans are able to shut out any viable third party alternatives and keep themselves in power.

***

Texas has been a red state for quite some time now (I do find it tastefully ironic that the Republicans are symbolized by the color red). Democratic candidates stand little or no chance of prevailing in a statewide race thanks to the demographics of the state.

One area, however, that Grits for Breakfast thinks is ripe for the taking are seats on the Court of Criminal Appeals. Keith Hampton has the best shot of any candidate of taking a seat for the Democrats. His target is the embattled Presiding Judge Sharon Killer Keller. For those of y'all who don't remember, Judge Keller closed the clerk's office to prevent Michael Richard's attorneys from filing a last minute appeal on the night of his scheduled execution - even though she wasn't the judge assigned to the case.

But even though she presents the best target for Democrats to win a statewide race, the Democratic Party just can't be bothered to spend any money to support Mr. Hampton's candidacy. Whether that decision results from the heads of the state party being brain dead or from the lack of interest of the national party (since Romney will keep Texas in the red column) isn't known.

What is known is that Sharon Keller has no business sitting on a bench in which she makes life or death decisions. If you haven't already, please vote for Keith Hampton.

Stealing a paperless election

If you voted early in Harris County - and a record number of y'all did - then you got to play with the electronic gizmo with the wheel and the select button (a little bit like that machine at HEB that the kids pop in their "Buddy Bucks").

But what happens if there is a need for a recount? How do you recount bits and bytes in a computer? How do you know that the selection you thought you made on the screen is the same as the selection that was sent through the cables to the server?

Voting equipment is made by private companies who have ties with one of the political parties. The software that operates the system is proprietary. The machines are tested before a county purchases them, but they way they work is kept secret (much like the Intoxilyzer).

In the old days of punch cards and optical scanners there was a paper ballot that could be examined if necessary to determine who won a particular race. Sometimes the results from the hand recount (of the actual ballots) differed from the results of the machine that read the ballots. Sometimes it made a difference and sometimes it didn't.

We will never really know who won the 2000 Presidential election after the U.S. Supreme Court stopped the hand recount. We will never really know who won the 2004 election because the state of Ohio used a computerized system that left no paper trail.

We've all had computers crash and cell phones die and VCR's and DVR's that didn't record when they were supposed to. Do you put so much faith in electronics that you are willing to let machines decide who wins the Presidential election?

Without a paper trail it's all too easy for the ruling classes to steal an election without anyone else being the wiser.

Don't mess with Texas

There is ugly. And then there's ugly.

But the uniforms that Texas Tech will be wearing today when they host the University of Texas are absolutely atrocious. It's one thing, as Paul Lukas would say, to desecrate Old Glory - but it's an entirely different thing to desecrate the Texas flag.

Meanwhile the Longhorns will be wearing their classic road uniforms - white helmets, white jerseys and white pants. The Longhorns don't go for the special one-off uniforms. As Coach Darrell Royal used to say, the uniforms are work clothes - and work clothes don't need to be fancy.

The 'Horns may not be on the same plateau as they were during the Vince Young and Colt McCoy days, but one fact remains. When you're good and you have a reputation, there's no need to monkey around with your uniforms.

Democracy Now! comes to Houston tonight

Come join KPFT in welcoming Democracy Now! host Amy Goodman to Houston as part of her 100 city Silenced Majority Tour. She will be speaking at the Emerson Unitarian Universalist Church at 1900 Bering Drive beginning at 7pm tonight.

Tickets are $10 at the door. Come be enlightened and raise money for Houston's community public radio station at the same time.

I hope to see y'all there.

Group rips school districts' priorities

Thanks to the economic meltdown, and the refusal of state leaders to do anything, funding for public schools in Texas plunged. The results were fewer teachers and larger classes.

But even more disturbing was the amount that 11 school districts serving a quarter of the school-age population spent on disciplinary measures and security.

The group Texas Appleseed took a look at the ways in which we are turning our schools into prison pipelines for those with disciplinary problems. In an era in which funding is at a premium it just doesn't make sense to waste money on suspension programs and the like. It certainly makes little sense to fund fully staffed school district police departments when districts are laying off teachers and not filling vacancies.

"We recognize that many Texas school districts are struggling as a result of the $5.4 billion cut in state funding for public education approved last year to help address a state budget shortfall," the group's Deputy Director Deborah Fowler said. "We are releasing this report, not to point a finger at spending in the surveyed school districts, but to open a dialogue with schools about different approaches to student discipline that are more effective and less costly to implement."

The schools surveyed spent about $140 million in the 2010-11 school year on out-of-school suspensions, referrals to Disciplinary Alternative Education Programs and discretionary expulsions to Juvenile Justice Alternative Education Programs. They also spent $87 million on security, monitoring services and campus policing, according to the group.

Suspending students from school and assigning them to so-called alternative schools only serves to make those students more of a risk to drop out before graduating.

Somewhere along the line we have completely lost sight of what public education is all about. In the rush to rank schools based on test scores, we have introduced programs that marginalize students who might not score as high as school administrators might wish. Those students who drop out will not be able to get jobs that pay a living wage and will either subsist on government handouts or take up a life of crime.

Not that state leaders care. What happens five or ten years down the line isn't their concern. Those are problems that can always be pawned off on someone else. With our short election cycle the only things state legislators are interested in is telling their constituents that they didn't vote to raise taxes.

Click here to read Texas Appleseed's report.

Judicial anger in action

The other day Scott Greenfield blawged about Vanderbilt law professor Terry Maroney who thinks it's a good idea for judges to show their anger from the bench.

According to the world of Terry Maroney, when a judge goes ballistic on the bench defendants realize that the one in the robe really cares about them. The wrath of the judge is a sign of empathy and love.

Well, if that's the case, then Maricelda Marie Aguilar must really be feeling the love from state district Judge Lonnie Cox down on Galveston Island. It would seem that Judge Cox threw a tantrum in the court room when he decided that the plea agreement worked out between the prosecutor and Ms. Aguilar's attorney on a probation revocation case just wasn't acceptable to him.

At the hearing, Cox became agitated when he discovered that Aguilar had missed several meetings with her probation officer, according to the recusal motion. "The judge while sitting on the bench in open court looked at the plea papers and then screamed, 'This is s---. This kind of b------- is not what the drug court should be doing and it is just costing the taxpayers money,'" the motion states. 

The judge told Aguilar she was worthless and asked "if she thought he would turn her loose to kill the child," the motion states. "He told the defendant she was worthless and then told the defendant she was not worth the paper and ink that the plea agreement was written on and proceeded to rip the papers to shreds and throw the papers in the air.

The article goes on to state that the court reporter wasn't present at the time of Judge Cox' tantrum. I suppose there are reasons that judges in Harris and Galveston counties prefer to take pleas without a court reporter present. It certainly makes it harder for a defendant to prove anything untoward happened during the process.

As if to make matters worse, this isn't the first time that Judge Cox has blown a gasket from the bench. My colleague, Byron Fulk, had firsthand experience raising the judge's ire. His client was on the receiving end of the tirade when Judge Cox didn't like the deal that Mr. Fulk had worked out on his client's behalf.

As Mr. Greenfield pointed out

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge's moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

Mr. Maroney speaks as one who hasn't spent any appreciable time in the courthouse standing next to a client facing a judge. Yes, judges are people. But when they put on that robe and sit down behind their desk they are supposed to be neutral and detached. Blowing a gasket when you don't like the deal that the attorneys have worked out is far from being neutral and detached.

It's also unprofessional. If Judge Cox wants to vent, he needs to go home, crack open a beer and let it rip. If he's going to do it from the bench he might want to consider a new line of work.

Update: Rick Perry is a serial killer

Donnie Lee Roberts became the 12th person murdered by the State of Texas this year and the 250th under the watchful gaze of Rick Perry.

Mr. Roberts was a drug addict who met up with Vicki Bowen in Livingston. Their relationship soured because he was abusing drugs and not working. He shot and killed Ms. Bowen when she refused to give him any more money.

The gig was up when the police found one of Ms. Bowen's trucks parked outside a crack house in Livingston. Mr. Roberts subsequently confessed to the murder of Ms. Bowen as well as a murder years earlier in Natchitoches Parish, Louisiana.

At the time he killed Ms. Bowen he was wanted for a parole violation in Louisiana.

By his actions, Mr. Roberts created a hole in the Bowen family that can never be repaired.

Strapping him down and pumping a lethal dose of pentobarbital into his veins doesn't repair that hole. The murder of Mr. Roberts didn't magically bring Ms. Bowen back from the grave. Her father will always live with the memory of burying his child - something that no parent should ever have to do. Killing a man does nothing to change that.

The State of Texas killed Donnie Roberts solely for the sake of killing him. There was no larger purpose. No interest was served. His death did not make the world a better place.

We like to think of ourselves as being a highly advanced society. We like to think others around the world are savages. What could be more savage than adhering to the idea of an eye for an eye?

And at the same time Rick Perry is puffing out his chest at how manly it is to preside over yet another execution, he is cutting off access to preventative health care for millions of women because he refuses to allow Planned Parenthood or any doctor associated with abortion from participating in the state's health program.

Modern day James Crow

It's well known that the conservatives are out to disenfranchise as many voters as possible. They have pursued their goals by striking voters off the rolls who had same or similar names to convicted felons. They have pursued their goals by striking legal immigrants from the rolls based upon questionable lists from immigration officials. They have pursued their goals by requiring voters to show a government-issued ID card. They're even trying to shut down early voting.

In Texas they've done it by not processing voter registration cards filed by folks renewing their driver's licenses at local DPS offices.

According to this article in the Houston Chronicle:

There are unexplained dips in so-called "motor voter" registrations, and the rates of voters who successfully registered via drivers' license offices in fast-growing Harris and Fort Bend counties consistently lagged behind state averages from 2008-2012, according to a Chronicle analysis of new voter registration data kept by the Texas secretary of state. 

On Thursday, the Secretary of State's Office emailed an alert to all county voter registrars warning of interruptions in its system to electronically transfer registrations it gets daily from the Texas Department of Public Safety. The alert came after individual "motor voters" complained about issues with their attempts to register at DPS offices in Tarrant and Harris counties.

The explanation given is that human error was to blame for the drop in motor voter registration. I don't buy it for a minute. This is the new Jim Crow. You can't charge a poll tax and you can't intimidate folks to stay away from the polls - but you can sure reject their registration forms and not inform them until it's too late to do anything about it.

The math is quite simple. Wealth is concentrated in fewer and fewer hands in this country. There are far more workers than bosses. Our criminal (in)justice system closely resembles the old apartheid system in South Africa.

There are fewer folks who worship at the altar of the free market than don't. There are fewer folks calling for less regulation of corporations than who aren't. There are fewer folks who think only those who can afford health care should have it than don't. There are fewer folks who want the government to have more power to intrude into your private life than don't.

The solution is to get rid of as many voters as you can. And these are the methods being used.

Now this isn't a polemic urging you to re-elect President Obama or to elect a slate of Democratic candidates. The truth is President Obama is barely more palatable than Mitt Romney - the difference between tho two is more semantics than substance. About the only real difference between the two is their pools of potential Supreme Court nominees.

It's a cess pool out there, folks. But it doesn't take a lot to figure out who benefits in the end.