Monday, December 31, 2012

(In)justice of the peace

We would like to think our judges have a least a little knowledge of the law. We would assume a judge would also be an attorney. It would make sense, wouldn't it?

But, in Texas you can be a judge even if you aren't a lawyer. Justices of the Peace preside over a docket consisting of traffic code violations and other Class C misdemeanors as well as small claims cases and other civil cases if the amount in dispute is under $10,000. They also perform weddings and, in some counties, act as coroner (without the need for any formal medical training).

Michael McCleary is a justice of the peace in Brazos County. Mr. McCleary is not a judge. And, should you ever set foot in his court, that fact will be readily apparent.

I recently represented a truck driver who got a speeding ticket in Brazos County a few years ago. Prior to trial I faxed a subpoena to the court for service on the state trooper who wrote the ticket. I received a response back that the county attorney said I needed to serve the subpoena myself or issue a public information request.

Now this concerned me for two reasons. First, why were the judge and the county attorney discussing what to do with the subpoena request I had filed with the court? Does the phrase ex parte communication mean nothing in Brazos County? Second, my client was charged with a criminal offense and has a right to compulsory service.

So I sent a letter to Mr. McCleary informing him that the court's refusal to serve my subpoena violated my client's due process rights. The response I received made it clear that no one in that court had any clue what the words due process meant either.

When I pressed the matter I was informed that the court would serve my subpoena - but only if I paid a $75 fee for each item requested (for a total of $450). Once again I fired off a response that the court doesn't get to charge a defendant in a criminal case to serve a subpoena. And, once again, the response I got back indicated that a lack of intelligence won't hold anyone back in Brazos County.

And so, as a Christmas present, after my client was convicted in a trial that was rigged from the get-go, I handed Mr. McCleary a copy of the complaint I had filed the previous day with the State Commission on Judicial Conduct.

I would like to think that something might happen as a result - but I know too much to expect anything to come of it.

But the problems go much deeper than one judge who wouldn't recognize the Bill of Rights, or Code of Criminal Procedure, if it landed in his lap. The problem is allowing non-lawyers to preside over criminal cases in which a citizen's livelihood could be at stake. No, a traffic citation is nowhere near as serious as a murder case, but the consequences of a conviction can be severe, nonetheless. When a conviction for speeding can cause a driver to lose his job, I don't think it's too much to ask that a qualified judge be sitting on the bench.

And when a justice of the peace is either ignorant of the law or just chooses to ignore it, the citizen accused of speeding isn't being afforded his constitutional rights. Sure, it's not a "court of record" so any adverse verdict can be appealed to the county court for a new trial - but then we're talking about even more money being shelled out to get something that approaches "justice." That remedy is no excuse for continuing the dog-and-pony show you can see any day in any rural county across this state.

If you want a non-lawyer serving as justice of the peace to perform weddings and to agree with the police that someone is actually dead - that's fine. But, please, don't allow him to preside over a criminal trial.

Sunday, December 30, 2012

Fiscal cliff? What fiscal cliff?

If I remember my Constitution correctly, all bills dealing with taxing and spending must originate in the House.   So, it would appear to me that John Boehner has a little work to do - a little work that he seems incapable of doing.

Now first a word on this over-hyped so-called fiscal cliff that we're supposed to be plunging over on New Year's Day. It's all an illusion. There is no such thing. The illusion was created so that no one would question the need to implement austerity measures during a fragile economic recovery. Just go ask the Greeks or the Spanish how well those austerity measures are working in their countries.

So what if there's no deal in place by Tuesday. Wouldn't it make more sense for the incoming Congress to debate the issue rather than the lame ducks still in session? The tax cuts can be extended, or re-introduced, at any time. The broad spending cuts won't take effect until the next fiscal year.

President Obama is once again showing his appalling lack of poker skills in groveling with Congressional leaders to come up with a grand bargain. Mr. Obama doesn't have to do anything. Mr. Boehner couldn't even command enough of his own party members to stage a vote for his bill that would coddle the wealthy and defense contractors while fleecing seniors and the unemployed. Apparently members of his own party didn't think his proposal did enough coddling or fleecing.

The President's only role in the process is either signing or vetoing the bill that comes across his desk. The President doesn't need to propose anything. The President doesn't need to fold his hand if the leader of the other party barks at him. He can just sit back and wait to see what happens.

So, Mr. Obama, why not just sit back and enjoy the show? Put the onus on Mr. Boehner and his colleagues to pass legislation to avoid this mythical cliff. Let the American people see who the House GOP really represents. Let then pass a bill that doesn't raise tax rates on the wealthiest 2% of Americans but imposes benefit cuts for seniors who rely on their monthly social security check for survival. Let's see how that goes over.

Right now Mr. Boehner is laughing because he's not being forced to exercise any leadership or responsibility. President Obama's latest moronic idea of pressing the Speaker to put the Senate bill up for a vote in the House boggles the mind.

Come on, Mr. President, you were man enough to break up thousands of families by deporting parents of American citizens. You were man enough to authorize the murder of thousands of civilians in the Middle East. You were man enough to brag that you were the one who decided who was to be killed by unmanned drones. But you're not man enough to stand your ground and force John Boehner to do his job?

Mr. Obama, and the rest of the cabal in Washington, were only too happy to shower cash down on the very folks who drove the economy into the ground while ignoring the plight of ordinary Americans who lost their jobs, their homes and their families. Now they're only too happy to do it all over again under the fiction of the fiscal cliff.

Saturday, December 29, 2012

Here's another bad idea

As I was heading to traffic court on Friday afternoon I was listening to BBC World Have Your Say on the radio. The show led off with a discussion of the gang rape on a bus in India the other day. The guests spoke about how we needed to stop blaming the victim and that women should be able to walk the streets free from fear of sexual assault.

But one of the guests, a counselor in Toronto, stated that in order to protect women the justice system needed to support survivors of sexual assault. While there was much discussed that I agreed with, I could only glare at the radio when she uttered those words.

Our criminal laws are designed to protect the victims of crime. Our criminal (in)justice system is supposed to protect the rights of the accused. The due process provisions of the Bill of Rights were included because the Founders of the Republic thought the greatest injustice was sending an innocent man to prison. Therefore, they set out to make it hard for the state to obtain a conviction. Yes, it means that folks who did bad things sometimes walk away free, but it's better for that to happen than to imprison an innocent man (which we seem to do plenty of).

If the justice system is going to do more to protect the alleged victims of sexual assault then it must come at the expense of the rights of the accused. This is simply unacceptable. Once you take away a defendant's rights because of the crime of which he's accused, it's easier to expand that forfeiture to other crimes.

The state always seeks to limit the rights of the accused because it makes it easier to obtain a conviction. That is precisely why we must constantly fight to preserve those rights we have, because even though we call them the rights of the accused, they protect all of us. We all have the right to be left alone by the state and we all have the right to keep our mouths shut. We all have the right to hold the state to its burden of proof. So if we're going to take that right away from one person - we are taking it away from all of us.

The way our courts treat motorists accused of driving while intoxicated is shameful - but it happened because no one wanted to appear to be in favor of drunk driving. The result is judges now volunteer to sign warrants for officers to jab needles in people's arms for committing a misdemeanor.

So what would our counselor have us to do to modify our criminal (in)justice system? Take away the accused's right to keep his mouth shut? Take away his right to cross examine the witnesses for the state? Take away his ability to defend himself?  She never did say  because no one pressed her on the stupidity of her statement.

I get it. No one wants to be accused of being in favor of sexual assault. But depriving a defendant accused of rape of his due process rights isn't the way to go.

For one you walk down that path you weaken the piece of paper that is our last line of defense against tyranny in this country.

Friday, December 28, 2012

Thinking twice before uttering that big number

So just how much sense does it make to lock someone up in prison until they are in their 80's or 90's? Sure, maybe the sentencing guidelines tell you it's got to be done. Or maybe it's that election coming up in a few months.

But does anyone stop to think about the social costs of keeping elderly prisoners behind bars?

US District Judge Richard Posner has thought about. And the notion troubled him enough that it was the subject of a concurring opinion in U.S. v. Craig, No. 12-1262 (7th Cir. 2012).

Mr. Craig plead guilty to four counts of producing child pornography. He photographed his sexual assaults of a preteen girl and then threatened to kill her if she didn't provide him more pictures of herself. Based on the sentencing guidelines (and I thought those were but advisory these days), he could have been sentenced to life on each count. But, because he had no prior convictions, the most he could be sentenced to was 30 years per count. The trial court decided to sentence him to 30 years on one count and concurrent sentences of 20 years each on the other three counts. He then stacked the sentences and Mr. Craig headed off to prison for 50 years.

At the time of his sentencing Mr. Craig was 46 years old. Judge Posner pointed out that if he served out his sentence, Mr. Craig would be a guest of the state until he was 96 years old. As you may or may not be aware of, elderly folks tend to have more serious medical conditions than younger people. These conditions require more treatment, more medication and more expense in general. And if Mr. Craig remains in prison, someone has to foot the bill for his medical care.

Judge Posner suggested that it would be more economical for Mr. Craig to be released at some point so that he could seek employment and make contributions to the Medicare system. Should that happen, he would be  paying for at least a portion of the care he receives - like anyone else covered by Medicare. But, if we're going to continue to lock people up beyond the point that they are a threat to anyone, then we are all going to pay the cost of those draconian sentences.
The social costs of imprisonment should in principle be compared  with the benefits of imprisonment  to the society, consisting mainly of deterrence and incapacitation. A sentencing judge  should therefore consider the incremental deterrent and incapacitative effects of  a very long sentence compared to a somewhat shorter one. An impressive body of economic research (summarized and extended in David S. Abrams,  “The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration,” forthcoming in  Iowa Law Review) finds for example that forgoing imprisonment as punishment of criminals whose crimes  inflict little harm may  save more in costs of imprisonment  than  the  cost  in  increased crime that it creates. Ours is not a “little crime” case, and not even the defendant suggests that probation  would  be an  appropriate punishment. But it is  a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence. 
Yes, there are some people out there that should be locked up until they breathe their final breath, but those folks are few and far between. We are living longer now than ever before and there is no reason not to expect that trend to continue into the future. So long as the cost of health care continues to increase for elderly people, we are going to find new funding mechanisms for Medicare (as well as revamping Social Security when we reach the point that there aren't enough workers paying FICA taxes to support those receiving Social Security benefits).

With our longer lifespans we see more incidences of cancer as well as heart disease. These are costly conditions to treat and if we insist on locking people up until they are carted out in a pine box then we are the ones who are going to have to pay for it.

I doubt most judges give the matter a second thought for they will be long off the bench before the bill comes and, besides, no one will remember who put that inmate behind bars until his dying days. At least Judge Posner has given us something to think about.

Not to mention that they're aren't too many 70, 80 and 90 year olds out there committing crimes anyway.

Thursday, December 27, 2012

Book review: The (honest) truth about dishonesty

How honest are we in our everyday lives? How many little white lies do we tell over the course of a day? Dan Ariely, a professor of psychology and behavioral economics at Duke, thinks we do a pretty fair amount of lying.

The first target in his book, The (Honest) Truth About Dishonesty, is the Simple Model of Rational Crime. Put simply, the model posits that when we need something we have to make a cost-benefit analysis as to how to acquire that thing. Do we steal it? Do we whip out our wallet and buy it? The decision is quite simple - are the costs associated with stealing the item worth risking in order to get the item? If the answer is yes, our rational criminal steals it. If the answer is no, then he doesn't.

It's a nice theory for a bunch of professors sitting around a computer trying out various mathematical formulas to simulate how we behave on a daily basis. But, as far as a useful theory in the real world - it's garbage. People commit crimes for all sorts of reasons but few base those choices on a cost-benefit analysis - defense contractors, hedge fund managers and bankers being the exception.

In researching the book, Professor Ariely conducted a series of experiments in which a group of people were asked to solve some math problems. For every correct answer the subject got something - money or tokens. Some folks would hand their papers in and the proctor would score them. Some folks would hand their papers in and tell the proctor how many they got correct. Others would run their papers through a shredder (that only shredded the outside margins) and tell the proctor how many they got correct.

The results were consistent across sex, race, religion and ethnicity. The folks who used the shredder were far more likely to cheat than any other group. And, the likelihood of someone cheating increased when the reward was not money, but something that could be exchanged for something else.

He then asked the question whether the social costs of cheating were the result of a few folks cheating a lot or a lot of folks cheating a little. When he changed the amount of compensation for correct answers he found that when the amount offered was low, more people were willing to cheat a little bit but, when the amount offered was higher, the amount of cheating dropped.

One problem I have with his analysis, however, has to do with his critique of corporate analysts. His conclusion was analysts would fudge the numbers because they believed that's what their bosses wanted them to do. His example was a report that was returned to the analyst team with the implicit understanding that the conclusions were not what the boss wanted. What Professor Ariely doesn't look at is the mindset of analysts and corporate officials when so much pressure is placed on companies to outperform quarterly projections. Instead of holding investments for the long run, we have become a nation of day traders who will dump a stock if the quarterly numbers don't meet expectations. The analysts understand this and so they write their reports in such a way to benefit their corporate clients who are paying the bills. The cheating occurs not because of peer pressure but because the financial industry is so incestuous.

My question is whether or not this analysis could be used to help us with jury selection. If we accept Professor Ariely's premise, then we know that there will be folks on that jury panel that are not being honest with us. We must also understand that there will be jurors in that deliberation room that are not going to hold the state to its burden of proof. And, if everyone cheats just a little bit, that could be enough to tip that jury to the state.

Wednesday, December 26, 2012

Worth the paper it's printed on

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. -- 2nd Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- 4th Amendment
For the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.

We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)

The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.

And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.

Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.

If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.

The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.

Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.

Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions

Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.

Tuesday, December 25, 2012

Christmas thoughts

Today while you're sitting around with the family enjoying the holiday (whichever you choose to celebrate), give a thought or two to a few folks:

Think about the 20 children and their teachers who were killed in a(nother) senseless act of gun violence.

Think about the thousands of innocent men, women and children who have been killed in Afghanistan, Iraq, Pakistan and Yemen in a murderous war carried out by our government.

Think about the men and women who were strapped down and murdered by their own government across this country.

Think about the men who were kidnapped and tortured in secret prison around the world at the behest of our government.

Think about the men and women serving inordinate prison sentences as a result of our government's war on drugs and our simplistic "three strikes" laws.

Think about the families that have been torn asunder as a result of our courts' daily assault on our Constitutional rights and a judge's desire to be seen as "tough on crime."

Think about those men and women who were exonerated after spending years in prison and having their lives stolen from them by the state and its agents.

Think about that young man or young women who's spending today in a jail cell because they couldn't afford to post a bond for a low-level misdemeanor case and a judge wouldn't grant them a personal bond.

Think about the families who have been torn apart because of an immoral immigration policy defended and enforced by our government.

No, these aren't cheery thoughts for a holiday, but they are a dose of reality. And, if enough people think long and hard enough about each of them, there is a chance, small as it may be, that something will change. But, so long as we sit back and ignore these matters, nothing will happen and many more will suffer needlessly.

Enough of the serious stuff for now. Here's a little Robert Earl Keen to put you in the holiday mood...

Monday, December 24, 2012

On ritual, superstition and subjugation

While most of us are preparing to participate in the pagan celebration of the winter solstice, I had a couple of questions for the superstitious among us.

If we are to believe, as the superstitious around us do, that there is a loving, all-powerful god behind the curtain pulling the strings in this universe of ours, how do you explain what happened in Newtown?

If you believe that this loving, all-powerful god of yours knew every one of us before we were ever born, how do you explain why this god would have snuffed out the lives of 20 children in a hail of gunfire?

And don't tell me that it's to test the faith of the parents. If that's your argument then we are all just pawns in someone else's game. What message does that send to our children - that this god they are told loves them has no compunction about ending their lives in an instant?

If your god does exist as some kind of a prime mover then your god is an arbitrary and capricious god. Your god is a cruel and sadistic deity.

And the massacre also points to another loose end. If your loving, all-powerful god really does sit in a throne in an alternative universe called heaven, most (if not all) of those 20 children will never enter the gates.

For those steeped in liturgical superstition, when that little baby is baptized it's only a ritual that means next to nothing until the bureaucrats in charge have determined that the child has been confirmed. And that only happens after the child is thoroughly indoctrinated in the particular flavor of superstition you practice.

For the rest of the superstitious among you, a person is only "saved" from their miserable existence in this universe if they buy into the sect's superstitions. But, until that time, you don't pass Go and you don't collect your $200.

But that's the dirty little secret that no one wants to talk about and that no one dare admit. Just how many folks do you think would buy into the great opiate of the masses if that was explained to them?

Religion has always been a tool to subjugate the masses and to quell dissent. It is used today as a tool of the ruling elite to justify the suffering that they have wrought on the rest of the world. It is used as a tool to justify the mass killings of innocent men, women and children around the world. It is used as a tool to inflame prejudice. It is used as a tool to convince the downtrodden that it was ordained by god that they be exploited and left to rot like garbage.

Just something to think about.

Saturday, December 22, 2012

It's time to shuffle up and deal, Mr. President

Someone please let President Obama know I'm trying to get a poker night together sometime in the next couple of weeks. I'd really love to have Mr. Obama sit at the table and play with us. I think I can clean out his wallet.

You see, I don't think Mr. Obama is much of a poker player. He was just re-elected despite the high unemployment rate because folks thought he'd do a better job managing the economy than his opponent. His party has a bigger majority in the Senate and picked up a few seats in the House. He's not in a weak position facing the so-called fiscal cliff.

President Obama started off calling for a renewal of the Bush-era tax cuts for somewhere around 98% of the taxpaying public. His plan to avoid the cliff was to raise taxes on the wealthiest Americans and to trim some dollars from the budget.

His antagonist, House Speaker John Boehner, said he wouldn't stand for raising taxes on the wealthy and that he wanted to see more cuts to Social Security and Medicare and no cuts in defense spending.

If the parties couldn't agree by December 31, the tax cuts would expire and automatic spending cuts would go into place for next year's budget. President Obama held the high ground. If the House Republicans refused to go along with his plan, everyone's taxes would go up in the new year and their precious defense budget would be cut. The president had the best hand. All he had to do was shove his chips into the center of the table and the pot was his. There was no way Mr. Boehner would call that bet.

So what did Mr. Obama do?

True to fashion he checked the hand and offered more concessions to the GOP. How about we only raise taxes on those folks making more than $400,000 a year, John? And how about we cut more money from Social Security than we do from the Pentagon budget? Would that work for you?

As an aside, in all of this talk about Social Security, the one thing no one likes to mention is that Social Security isn't part of the federal budget. It's a "trust fund." While the government borrows from the surplus in the trust fund in exchange for treasury bonds, Social Security spending is completely unrelated to the federal budget. Now at some point in the future when FICA receipts don't cover the benefits paid out it might be a different story.

But if President Obama thinks that making more (unnecessary) concessions is going to engender bipartisanship in the House of Representatives, he's crazy. By caving in like he did he is only strengthening the GOP's hand. Now what's he going to do when Mr. Boehner shoves a stack of chips in the middle of table?

So come on down to Houston, Mr. President. I've got a chair for you. Checking with a strong hand is dangerous. If you make the bet, you're forcing your opponent to make a tough choice; but when you check your hand and your opponent makes a big bet now the onus is on you. When you've got a big hand, it's much better to lead.

Friday, December 21, 2012

What's to blame for our addiction to guns?

Researchers at the University of California at San Francisco released a study earlier this year stating that portrayals of smoking in the movies in 2011 were up 7% over 2010. That reversed a five-year trend downward.

Public health officials wanted the studios to cut down on the number of portrayals out of fear that young people would see their favorite actors and actresses lighting up on the big screen and would go home and do the same.

But no one has such compunction regarding the portrayal of gun violence on screen. In the wake of the school shootings in Newtown, the premieres of Django Unchained and Jack Reacher, two violent films starring Jamie Foxx and Tom Cruise were either cancelled or closed to the public. I must point out, though, that the producers of Django claim that the cancellation of the public premiere of the movie had nothing to do with the shootings at Sandy Hook Elementary.

However, on Christmas Day the viewing public will get to see Quentin Tarantino's latest ode to a bucket of blood when the film opens nationally. Mr. Tarantino's films have been marked by gratuitous violence and lots and lots and lots of blood. Alongide Django will be plenty of other action-adventure, suspense and thrillers featuring scores of dead bodies.

What does it say about our society that we are more obsessed with keeping smoking out of the movies than we are about gun violence?

There is approximately one gun in circulation in this country for every citizen of the United States. Gun sales have continued to rise while violent crime rates have continued to decline. Most cities in the US are safer now than they've ever been (at least in recent history) but still we are stocking up weapons like there's no tomorrow.

I suspect part of the reason is the mass marketing of fear. The other reason has to do with something that Bill O'Reilly said on Election Night. While his comment that President Obama won re-election because he was giving "stuff" to various interest groups neglects the fact that Mitt Romney's entire campaign was dedicated to him pledging to give lots of "stuff" to the rich and to corporate interest, his comment about the end of the "White Establishment" was right on target.

For most of this nation's history older white males have dominated positions of power and white voters vastly outnumbered everyone else. That has changed. There are more and more urban areas in this country where whites are in the minority. That's scary to some people. I think there's a reason that most of the doomsday "preppers" are white. They are trying desperately to hang on to a past that no longer exists and it scares the shit out of them.

Over the last week I have heard colleagues whom I believe to to be rational and intelligent say some of the dumbest things I can remember. Now we may disagree on what measures we can take to address the rising level of gun violence in this country. I know we need to do something because the course we've been taking isn't working, but I don't know what. While we're talking about how to get a handle on guns, we also need to get to the bottom of why there are so many guns on our streets.

I have colleagues who have proposed that we arm teachers and administrators. I have colleagues who believe we need to implement school security measures than simulate airport security measures. I have colleagues who believe the answer is to post armed guards at schools. They then veer into the slippery slope argument about banning any particular type of weapons.

We don't need draconian security measures at our schools. Such measures will only indoctrinate students into the view that whatever the government wants to do in the name of protecting us is okay. Our children will be turned into lapdogs who don't question authority. Is that what you really want?

And we don't need more guns at schools. We need fewer. As a society we don't need more guns on the street. We need fewer. And we need to address our addiction to guns. We need to diagnosis our illness and find a way to heal ourselves. Because if we don't, there will just be more bodies that need to be buried.

Time for the annual crackdown on the Fourth Amendment

Once again it's that time of year when law enforcement agencies get together to celebrate the demise of the Fourth Amendment and crack down on suspected drunk drivers.

Local law enforcement agencies in the Houston area were the recipients of a $295,000 state grant that will allow them to put an additional 50 officers out on the streets between now and New Year's. What that really means is that what's left of the Fourth Amendment is being shredded and we're footing the bill.

Of course the message given to the public through the media is that motorists who drink and drive, whether legally or not, are a menace to the rest of us on the roadways. But the truth of the matter is most drivers who are arrested on suspicion of driving while intoxicated aren't stopped because they're driving dangerously. They are pulled over because they failed to signal a lane change, they failed to signal a turn (even in a must-turn lane), they were speeding or their car had some sort of equipment issue (cracked taillight, burned out turn signal or expired plates).

A good number of these drivers will be subjected to various roadside calisthenics and then taken to a station where they are asked to blow into the state's breath test machine under threat of having a needle jabbed in their arm. The authority to jab that needle in the arm will be given by a judge who volunteered to sign "review" warrant applications regardless of whether the affidavit is a fill-in-the-blank or a form affidavit. Regardless of whether the affidavit is conclusory or even alleges probable cause exists to believe the blood is evidence of a crime.

And all of this for a crime that's one step removed from a traffic ticket.

The judges who volunteer to participate step across the line from a neutral and detached magistrate to a member of the law enforcement team. And in a county in which most of the judges are part of the same club, the odds of one judge ruling that his or her colleague signed a warrant application in error are slim and none.

Just remember that the judges who ignore the Fourth Amendment and rubber stamp warrant applications on No Refusal Weekends are the same judges who are going to decide if that traffic stop in that dope case was bad or if that 911 tape is coming in on that domestic assault case.

Ignoring the Fourth Amendment gets easier the more you do it. Fill-in-the-blank affidavit? No problem. Affidavit template on the computer? No one cares. Conclusory statements? You've got to do better than that, counselor.

But since the police and the judges set up drunk drivers as the bogeymen, few people bother to question whether the shredding of the Fourth Amendment is worth the benefit. And, once the public makes it known that they don't mind those drunk drivers being denied their constitutional rights, it makes it easier for the police to do it the next time.

Big brother on the couch

Daniele Canarelli is a psychiatrist in Marsailles. She deals with folks who have severe mental health issues on a daily basis. Joel Galliard is a paranoid schizophrenic who needed treatment.

Mr. Galliard became Dr. Canarelli's patient. Twenty days after leaving a session, Mr. Galliard killed German Trabuc with an axe. He was judged not responsible for his actions due to his mental illness and released under medical supervision.

But you know the story didn't end there. It's such an unsatisfactory ending when the person who did the deed is found to have not been responsible for his actions. There's a dead body. Somebody must be made to account for it.

And that someone was Dr. Canarelli. She was found guilty of involuntary homicide and sentenced to one year in prison. The sentence was suspended.

It is a fact that folks with severe mental illnesses can do things that shock the conscience. They can do things that are utterly unexpected. Once that person leaves a session there is nothing that a psychiatrist can do. Sure, you can prescribe medications. You can suggest certain behaviors to combat stressful situations. You can suggest that a patient be hospitalized.

The courts in France have stepped across a very dangerous threshold. The courts are the place for the law to be dispensed by those who are trained in it. The courts are not the place to second guess a doctor's treatment plan for a patient. Dr. Canarelli dealt with Mr. Galliard. Presumably he confided in her and she maintained his confidences. She made decisions based upon her diagnosis of Mr. Galliard's condition and her training in psychiatry. Maybe her treatment plan was wrong. And maybe the treatment plan failed because Mr. Galliard decided he didn't want to follow it.
While accepting that there was no such thing as "zero risk" in such cases and that doctors could not predict the actions of their patients, the court found that Canarelli had made several mistakes in Gaillard's treatment.
But now we have a court interjecting itself into the doctor-patient relationship and assigning criminal liability on a medical professional based on the actions of her patient. We don't need courts evaluating the treatment plans of psychiatrists. We don't need courts deciding whether or not a particular treatment plan was appropriate. We don't need courts deciding whether or not a physician should have done something else.

A legal system is good (just go with the analogy for a second) at trying to determine what happened and what penalty should be levied in the event that someone acted negligently or illegally. A legal system is not able to look into the future to determine what might happen.

A psychiatrist, on the other hand, must be able to get to the bottom of what happened in the past as well as be able to predict the future to a degree.

While a court takes what has already happened and tries to piece it together into a coherent narrative to determine how and why it happened, a psychiatrist must take what happened in the past and apply it to the present in order to make an educated guess at what might happen tomorrow - or the day after.

Maybe Dr. Canarelli was negligent in her treatment of Mr. Galliard. Maybe there were other courses of treatment she could have followed. But, if that's the case, she shouldn't be placed in the dock in a criminal court - she should have been defending herself in a wrongful death suit. Any errors she may have made fall under the heading of malpractice, not criminal behavior.

And now we have the specter of the state inserting itself in determining what type of care a doctor should provide her patient. What kind of an incentive is that going to give to psychiatrists in treating their patients?

Thursday, December 20, 2012

Texas DPS sued over roadside cavity search

On a sultry July evening in Dallas Angel and Ashley Dobbs were cruising around when one of them tossed a cigarette out of the car. The state trooper behind them, David Farrell, flipped on his lights and pulled the women over. But she didn't just give them a ticket for littering.

Claiming that he smelled the odor of marijuana in the car, the trooper asked the ladies if they had anything illegal in the car. The ladies said no. End of story? Not quite.

The trooper then called a female officer, Kelley Helleson, who put on a pair of blue latex gloves and conducted cavity searches on the two women on the side of the road - in full view of passing traffic. According to the women, Trooper Helleson's search was painful and humiliating. She didn't even bother changing gloves between searches.

And guess what Trooper Helleson found?

Absolutely nothing. The driver, Angel Dobbs, then had the nerve to pass the roadside coordination exercises the trooper asked her to perform.

And when it was all said and done, the troopers didn't even apologize to Angel and her niece.

Now the women are striking back. In a lawsuit filed against the Texas Department of Public Safety, the ladies allege they were molested by Trooper Helleson and that the DPS had a long-standing pattern of illegal strip and cavity searches.

To think that this entire nightmare came about because a police officer claimed he smelled marijuana. How many cases have we seen in which a car is tossed based upon an officer supposedly smelling marijuana? So many violations of our rights come about because one officer claims to have seen, heard or smelt something that led him to believe the something illegal was going on.

It's just an excuse. The police pull someone over. They suspect he's got something in the car he shouldn't. They get him out of the car and toss it. Then, lo and behold, they find the Holy Grail. A dime bag in the center console. Throw in that part about the smell of marijuana and BAM! it's a good bust.

There aren't any cameras. There aren't any witnesses. Besides, they found the dope in the car. He's guilty. Who cares if the cops conducted an illegal search?

But this time there was a video. This time there was a witness. And, most importantly, this time there wasn't anything in the car.

All it takes is one stop like that to shed a little light on what really goes down in the middle of the night. A perfect storm of elements and the cops are caught with their pants around their ankles.

It's bad enough that the police get away with lying about their conduct on the street. It's even worse that most judges will take the word of a police officer over a defendant without giving it a second thought. Judges like to tell you that the defendant has a motive to lie - but, berobed one, so does the officer.

There was no excuse for what happened on the side of the highway in Dallas this past July. There is no excuse for what goes on in airports across this nation, either.

There was no probable cause for the search. Trooper Farrell knew that. Trooper Helleson sexually assaulted Angel and Ashley Dobbs. There is no excuse for her conduct. Instead of being on the receiving end of a lawsuit seeking damages, Trooper Helleson should be in criminal court trying to stay out of prison and contemplating how humiliating it would be to have to register as a sex offender.

And, in the end, Trooper Helleson did what she did because she could do it.

Unreality television

Okay, it's time to admit a guilty pleasure of mine. I like Storage Wars. It doesn't matter which flavor - Cali or Texas. It's all good as far as I'm concerned.

So you can imagine my surprise the other day when I went over to my brother's house to pick up my girls after school (one of the advantages of having two brothers living less than three miles away) and heard that Dave Hester had been filed and was suing the show.

Mr. Hester, or the Mogul, as he's known, alleged that he was fired because he spoke up about the producers of the show "salting" up the lockers for television. To which I replied "So freaking what?"

Yes, Storage Wars is promoted as a reality show (is it?). But y'all know as well as I do that once they turn that camera on, reality goes out the window. It's a bit like quantum theory - you know, the very act of measuring something alters the probability curve. Think Schroedinger's cat.

Dave, Darrell, Brandi, Jarrod and Barry aren't real - they're just playing characters based on themselves. I don't watch because I think I'm getting a view of the life of the storage locker buyer - I watch because it's entertaining.

Early on, in fact, my wife and I figured out they planted stuff in the lockers. Some of the stuff they found in the lockers was just a little too odd and incongruous to have been put there by the owner. Just watch and tell me if you really think someone would put some of that stuff in a freaking storage locker. Our locker contains the furniture we have no use for, clothes and my old files.

So I don't care if Dave's telling the truth. If I want reality I'll watch college football or baseball. If I want entertainment, I'll watch Storage Wars.

Wednesday, December 19, 2012

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

Tuesday, December 18, 2012

The rich really are different from the rest of us

So, Richard Frase, under what theory of punishment would you classify the Federal Government's decision not to indict HSBC in exchange for a payment of $1.9 billion?


Here we are sentencing petty thieves to life sentences because of "three strikes and you're out" laws across this country. We sentence folks caught with crack cocaine to more severe sentences than those caught with powder cocaine. We sentence financial swindlers to terms of years in federal prisons.

But we let HSBC off the hook in exchange for a chunk of change. We're willing to forget about the money laundering services provided to the Mexican drug cartels. We don't care that you provided services for Iran and other countries when the federal government said it was a no-no.

The local prosecutor won't considering reducing a felony to a misdemeanor for a young man with no criminal history who happened to be in the wrong place at the wrong time. He stole nothing and he harmed no one. But, no. We can't reduce that charge.

And we can't go a different direction on that DWI, either. He can take the deal or he can go to trial.

Of course neither one of them had $1.9 billion handy. Neither one of them was too big to fail.

F. Scott Fitzgerald was right when he said the rich were different than us. They are. They are treated differently. We mustn't ruin a life. We mustn't bring down a big bank.

But the rest of y'all can go to hell. No special deals. No breaks. You do the crime, you do the time. Anything else would be patently unfair.

Everyone knows the system is rigged. The federal government's decision not to prosecute a bank in exchange for filthy lucre is but the latest example. It won't be the last. Meanwhile go tell that young man in the holdover that the state just can't go below four years on its offer. After all, he's not too big to fail.

See also:

"Dickering over the price," Simple Justice (12/13/2012)

Monday, December 17, 2012

I've got a theory about that

The other day Scott Greenfield pointed out that law schools are failing their students. And he had the bar exam pass rates to prove it. He asked just what is being taught in law school these days.

The problem, according to Mr. Greenfield, is that the academy is out of touch. Law profs across this country are so caught up in their own esoteric research and scholarship that they have neglected to teach impressionable young minds how to be a lawyer.

There is no reason for the high failure rates when it comes to the bar exam. The problem can't be put solely at the feet of law students who have to pay to take an additional bar review course after three years of school in order to pass the test. The problem is either that the modern law school curriculum is not rigorous enough to prepare students for the exam or that law schools aren't weeding out the students who aren't cutting it (and won't cut it).

Over at Doug Berman's Sentencing Law and Policy, you can see firsthand the disconnect between the academy and the practice of law in the trenches. Richard Frase, a law prof at the University of Minnesota Law School, has just published a book called Just Sentencing: Principles and Procedures for a Workable System.

In a series of guest posts on Mr. Berman's blawg, Mr. Frase summarizes the arguments in his book. He likes to talk about sentencing theories. Such things as retributive justice, crime control and "just desserts." That is all well and good. It makes for a thick book and a heavily annotated law review article. But it bears little of no relevance to what goes on in the trenches.

No one in the criminal courthouse walks around espousing their sentencing theory. A prosecutor writes a number on the cover of the file and expects our client to accept it and thank him profusely. Now that number is generally just a starting point - and the defense attorney counters with a different number - or idea.

If we can't get the case dismissed we want the lowest number possible or a way of keeping our client out of prison. The prosecutor is bound by "office policy" and what the judge will accept. The negotiations are governed by which side has more to lose by going to trial. Instead of a book on sentencing theories, criminal defense lawyers would be much better off reading books on poker theory.

While sentencing theory might make for nice conversation at a cocktail party or a reception, it's application in real life is pretty much non-existent. Instead of being able to argue the finer points of restorative justice theory, a young attorney would be better served had he been taught how to investigate a case and how to spot weaknesses in them.

Scholarship is good, but law schools mustn't lose sight on the most important part of their mission - to teach a classroom of young men and women how to be a lawyer.

Saturday, December 15, 2012

If not now, when?

Aurora, Colorado.

Portland, Oregon.

Newtown, Connecticut.

After each one of these mass shootings, White House spokesman Jay Carney told reporters that now was not the time to discuss gun control. And we know who pulls the strings in Mr. Carney's back.

Okay, President Obama, when is the time for that discussion?

The purpose of a gun is to kill.

You point the weapon. You squeeze the trigger. The target falls down.

For the gun nuts out there who believe that their cache of weapons will protect them against the onslaught of a government gone bad - a gun is no match against a helicopter gunship, a tank, a missile or a nuclear weapon. If the government wants to turn its weapons on you, you won't stand a chance.

The time for the debate on gun control is here. And it's time that President Obama discover his backbone and stand up to the gun lobby. The election's over, Mr. President. Now's the time to create your legacy. How many more mass killings are we going to hear about in movie theaters, shopping malls and schools? We can't sit here and keep telling ourselves that everything's okay.

It's not okay. There are far too many weapons out on the streets. It's time we did something about it.

Yesterday 20 children were murdered. Those families have been torn apart. Those families will never be the same. Now, instead of planning for the holidays, these families will be planning funerals. And they will be planning those funerals because someone was able to purchase a weapon legally.

Now there's nothing wrong with hunting. I don't want to take away the rifles and shotguns hunters pull out of their closets every hunting season. But there is no legitimate use for assault rifles or semi-automatic rifles.

Now is the time for that debate. Now is the time for that discussion.

Anytime proponents of expanding the police state want a new draconian law on the books, they tell us that it's about the children.

Well, Mr. President, now it really is about the children.

There are twenty dead children. Twenty children who would be alive today were it not for a man with a gun.

It's time to put politics aside. It's time to do what's right. It's time to stop the madness.

Let's put an end to the gun violence, Mr. President. Do it for the children.

Friday, December 14, 2012

The (show) trial of the century

US Army Col. James Pohl is faithfully doing the bidding of his masters. The man who will preside over the trial, in military court, of Khalid Sheikh Mohammed, granted the government's request to treat any mention of torture as classified.

Sure, we all knew the fix was in from day one. There was no way that anyone involved in the 9/11 terrorist attacks would get anything resembling a fair trial. There was no way that our government was going to let anyone walk out of the courtroom a free man.

Previously Col. Pohl ordered that there be a 40 second delay in the audio feed just in case someone let slip something that was embarrassing to the government confidential. That provision, in essence, closes the courtroom to the public. The public which, by the way, has a right to observe the proceedings and to see just what their government is up to.

These are, for all intents and purposes, nothing more than show trials. I'm only surprised they haven't announced the sentences prior to the beginning of trial.
The judge added that “without limitation, observations and experiences of an accused” would also be treated as classified information as they emerge from a defendant’s mouth.
Just think of the absurdity of that statement for a minute or two.

Our courts decided a long time ago that we would not allow confessions obtained by the use of coercive measures to be admitted into evidence. The Fifth Amendment - which applies to "people," not just citizens - says that we have the right to keep our mouths shut when the government wants to ask us questions. If a person says they don't want to talk, there is nothing more the police can do.

The use of torture violates international law. It violates the Geneva Convention. If you're the head of a developing nation and you waterboarded political dissidents, you could find yourself hauled in front of the International Criminal Court once you're out of office to answer charges (of course if you're the President of the United States, or acting on his behalf, you can do any goddamn thing you want and tell the ICC to go fuck itself).
“The government wanted to ensure that the American public would never hear the defendants’ accounts of illegal CIA torture, rendition, and detention. The military judge has gone along with that shameful plan.” -- Hina Shamsi, director of the ACLU's national security project
There is no denying the fact that Mr. Mohammed was tortured. He was waterboarded some 183 times. He was also subject to other physical and psychological torture while in US custody.

Mr. Mohammed is entitled to have every statement he made as a result of coercion deemed inadmissible at trial. So are his co-defendants. That, of course, would leave very little concrete evidence. And we certainly can't have that, can we?

But to deem any testimony from Mr. Mohammed about the manner in which he was mistreated in custody as confidential information is a travesty of justice. The American people have a right to know what the government has done in their name. Mr. Mohammed has a right to tell his story. Mr. Mohammed was not a part of US intelligence. He wasn't a part of the military. He wasn't a part of George W. Bush's inner circle who thought this was a good idea. Mr. Mohammed was the victim of torture.

These trials should not be held in front of military tribunals. They should be held in open court where the world can witness the depraved behavior our officials sanctioned and carried out. The evidence should be heard and those responsible should have to answer to humanity.

Col. Pohl is but a tool of a government hellbent on shredding the Bill of Rights. In so doing he has violated his oath to uphold the Constitution. For his complicity in this farce, Col. Pohl should be court martialed.

Thursday, December 13, 2012

Tanks for the memories

If you ever needed proof that asset forfeiture laws need to be reformed, this item from the Montgomery County (Texas) Courier is all you need.

As a little background, state law allows local law enforcement agencies to seize property used to commit crimes as well as any property acquired through criminal activity. When the police seize property pursuant to the asset forfeiture statute the local district attorney files a civil suit naming the seized property as the defendant. The owner of the property must then decide whether or not to contest the taking of his or her property.

Since the suit is filed in civil court, the state must only prove by a preponderance of the evidence that the property was either the tool or fruit of criminal activity. More importantly, since it's a civil suit, the state gets to serve the property owner with discovery requests, including requests for admissions, in which the property owner must waive his right to remain silent to answer. And, since the district attorney is the plaintiff in the asset forfeiture case, whatever evidence is obtained through discovery is in the hands of the person prosecuting the property owner in criminal court.

Now, one might be able to show how the purchase of a car had nothing to do with criminal activity - but just try proving that wad of cash in your pocket, or in the console, was obtained legitimately. It's damn near impossible.

For those reasons, most asset forfeiture cases either result in a default judgment against the property owner or in a settlement in which the property owner receives pennies on the dollar for his property that was seized. The proceeds of the case then go into a secret slush fund to the law enforcement agency for whatever use is deemed appropriate (or can't be questioned).

Up in Conroe, the local police department has over $400,000 in its slush fund asset forfeiture funds just burning a hole in someone's pocket. The editors of the local right-wing rag are beside themselves with joy that the Police Chief decided to use the money to buy a $170,000 tank to prevent a Benghazi-style attack in the town about 45 miles north of Houston.

No, I'm not making that up. You know those terrorists over in the Middle East have been eying suburban and exurban towns in the United States to launch their next attacks. Today it's Conroe, tomorrow it could be Willis or New Caney or Magnolia or Cut-n-Shoot (not making that up, either). There's nothing like a phantom terror threat to make a small town feel awfully important. There's also nothing like a phantom terror threat to use as an excuse to trample on our right of privacy.

What would a modern police department be without a military-style armored vehicle? Could you really call yourself a big-time police chief if you couldn't get your picture taken sitting inside a freaking tank?

And, if you buy the damn thing, you've got to use it. What good is a tank doing if it's sitting in the shed behind the city jail? Taxpayers would be up in arms if it wasn't being utilized by the paramilitary forces police. It won't be long until the tank is loaded up to serve a warrant on the small time dope dealer who's growing pot in the spare bedroom.

I don't know where to begin with the problems in all of this. We can talk about the ways in which asset forfeiture laws encourage lawless (and illegal) behavior in police officers. We can talk about secret slush funds that allow the police to act unencumbered by our elected representatives (just ask the former Montgomery County District Attorney how that turned out). We can talk about how those laws abet the state in seizing property while depriving the owner of due process. And why are these funds left to the discretion of the police? Why aren't they considered public funds that go into the city or county's general revenue fund?

Or we can talk about the increasing militarization of the police. As police departments begin to resemble paramilitary outfits, officers take on more of an us-against-them mentality.  It makes it easier for the police to act without first thinking about the consequences of their actions. It makes our streets look more like the streets of cities in Third World military dictatorships.

The city of Conroe doesn't need a tank for its police department. The editors of the local paper are a sorry bunch of jock-sniffers cheering on the right-wing party line of limiting the ability of government to assist those who need help while strengthening its ability to trample all over our right to be left alone. Both the tank and the method by which the police acquired it are threats to the very existence of our democracy.

Wednesday, December 12, 2012

NTSB calls for mandatory ignition interlocks

In 1928 Herbert Hoover promised that if he were elected there would be a chicken in every pot and a car in every garage. Things, of course, didn't quite work out that way.

Today the National Traffic Safety Board wants to see an ignition interlock in every car.

If the NTSB has its way, everyone in the United States convicted of a DWI would be required to have an ignition interlock device installed on their car. What's wrong with that, you might ask?

The ignition interlock only detects alcohol. Our drunk driving laws lump in drivers who are under the influence of other substances - such as prescription medications, marijuana or other illicit drugs. What use would an interlock have for a driver convicted of being impaired by smoking marijuana?

Then there's the question of who would be required to install the interlock and for how long. As a condition of probation? That might fly. But what if the defendant ends up going to jail or taking time served and a fine? Are we going to require someone to install the device after they've done their time? And what if there was no breath test? There are plenty of DWI cases in which a jury convicts based on how they think a defendant did on the roadside calisthenics? Will we be looking at mandatory sentences in DWI cases next? Will los federales dictate to the states (through the use of transportation funds) that probation is the only acceptable sentence for a motorist convicted of drunk driving?

These proposals are just a precursor to what the NTSB really wants - interlocks as standard equipment in new cars. Let's forget for a second that it's perfectly legal to drink a beer and get behind the wheel. Go to dinner, have a drink and sit in the parking lot waiting for your alcohol concentration to go down. Let's forget for a second that in this country we are presumed innocent unless the state can prove otherwise.

If interlocks are made standard is the next step a database that will store the interlock readings from every car on the road. You laugh but GM's On-Star allows the police to retrieve a virtual black box that tells them everyplace you've been and how fast you were driving.

And what about the technology itself? Who will calibrate the devices installed as original equipment in new cars? What assurances would we have that the technology is reliable and accurate?

The call for interlocks was based on a study in which the NTSB determined that most wrong-way collisions involve at least one motorist driving while intoxicated. The board patted themselves on the back for pointing out that wrong way collisions are bad. Well, maybe it's one way streets that are causing the problems.

Just hang out in downtown Houston any day and you will see at least one person turning left when they should have turned right (or vice versa) during the middle of the day. All it takes is a driver unfamiliar with the area and a series of one way streets and you've got yourself a potential disaster.

The penalties for driving while intoxicated are already out of proportion with any other misdemeanor on the books. We don't need to pile even more conditions on top of a motorist who finds himself with a DWI conviction. Of course drunk drivers make an easy target for proponents of a stronger police state - no one wants more drunk drivers on the road. And that's just how bad laws get passed.

Tuesday, December 11, 2012

Peace is in the eye of the beholder

Yesterday, in Oslo, the European Union was awarded the Nobel Peace Prize.

And just what did our friends in the EU do to deserve such an award? For one, its members, collectively, account for about one-third of the world's arms trade. Those arms have been used by repressive regimes to quell dissent around the globe. Through NATO, the nations of the EU have provided troops for the murderous wars in Iraq and Afghanistan. And, to top it off, the EU has imposed crippling austerity measures on Greece and Spain.

As a result of the EU's mission to protect international lenders, the people of Greece and Spain have seen spending on education and health care plummet. Greece and Spain are being pressured to privatize industry - handing over control from the populace to unaccountable foreign corporations. The people have responded by taking to the streets.

Of course the bar in Oslo isn't very high. How else can you explain Henry Kissinger in 1973 and Barack Obama in 2009?

Mr. Kissinger was the architect of Nixon's policy of bombing Vietnam back to the Stone Age. He gave the Indonesian dictator Suharto the go-ahead to slaughter the people of East Timor.

President Obama won the award despite his status as one of the world's great warmongers. And, as if to show the prize wasn't a fluke, President Obama has declared himself to be judge, jury and executioner in his use of unmanned drones to murder civilians in Afghanistan, Pakistan and Yemen.

Over the course of his administration, President Obama continued the torture program created under George W. Bush. He sent more troops to Afghanistan. He went after whistle blowers who exposed the human rights abuses committed by the United States.

Once upon a time Alfred Nobel decided to reward the person who did the most to promote peace and understanding in the world. Today the prize that bears his name has become a parody of itself. 

Bashar al-Assad might just find himself on the short list for next year's award if he can bring an end to the unrest by murdering the entire populace.

H/T Democracy Now!

Monday, December 10, 2012

He's out for a scalp

Doug Berman is on the warpath. In the aftermath of the accident that killed Dallas Cowboy linebacker Jerry Brown, Mr. Berman wants the scalp of Josh Brent.

Yes, the death of Mr. Brown is a tragedy. Maybe Mr. Brent was intoxicated and maybe he wasn't. We won't know anything until we see the results of the mandatory blood draw performed in the early hours of Saturday morning.

Mr. Berman is upset that Mr. Brent had a prior DWI conviction while in college in Illinois back in 2009.

I get it. The majority of folks who get arrested for driving while intoxicated do whatever it takes to prevent themselves from being in that position again. It would appear that Mr. Brent didn't take that lesson to heart. But, we must also keep in mind that Mr. Brent has only been accused of intoxication manslaughter. We haven't seen or heard the evidence. Until the state proves the elements of intoxication manslaughter beyond all reasonable doubt, Mr. Brent is innocent.

Mr. Berman claims that if the penalties for a DWI conviction were stiffer then Mr. Brown would still be alive today. The fact is that a first offense DWI is just one step removed from a traffic ticket. Most folks arrested for driving while intoxicated are arrested on the basis of their driving, the smell of alcohol on their breath and their performance on a set of roadside calisthenics.

A sentence of two years probation with a 60-day jail sentence (we don't know if the jail time was suspended) is nothing to sneeze at for a misdemeanor. That's two years of reporting to a probation officer, two years of no alcohol and two years of being subject to random drug tests.

Unless Mr. Berman proposes making a first-time DWI a more serious offense, there is no stiffer sentence that what Mr. Brent received. If he proposes making driving while intoxicated a felony offense he must be prepared for more acquittals at trial. I have a feeling that juries would be a little bit less inclined to convict a person of a felony based on the paltry evidence and junk science put forth in a DWI prosecution.

The needless loss of any life is tragic. But to use such a tragedy in order to promote legislation criminalizing conduct or enhancing existing punishments is a step in the wrong direction. Our state and federal penal codes are full of acts named after a person who died tragically that only serve to weaken our protections under the Bill of Rights.

So, Mr. Berman, if you want stiffer sentences for first-time DWI offenders, are you going to require concrete proof that the defendant was intoxicated at the time of driving or will you be satisfied with what passes for scientific evidence in a DWI prosecution? While pushing for stiffer sentences are you going to fight attempts to weaken the constitutional protections of those accused of driving while intoxicated?

Probably not. That might require getting your hands dirty.

Separated at birth?

Saturday, December 8, 2012

Failing our children

For the past two weeks climate negotiators have been meeting in Doha, Qatar at the United Nation's 18th climate change summit. And, for the past two weeks, nothing has been accomplished.

The abject failure of this exercise highlights one of the glaring faults of capitalism. We are told that markets are the solution to any problem. We are told that when we all act in our own self-interest, everyone benefits as a result of the efficient allocation of resources. We are told that the market allows us to create incentives for people to act in desirable ways. We are taught that the private ownership of property is the key to our prosperity.

And that is the problem.

You see, no one owns the sky above us. No one owns the rivers and oceans. No one owns the atmosphere. And because no one owns them, no one has any incentive not to fuck them up.

If you've ever driven through Pasadena on 225 you have seen smokestacks belching god-only-knows what into the sky. The winds take that smoke and carry it away. Chemical plants around the world pump their poisons into the sky and into the water. The same goes for refineries and coal-fueled power plants.

There is no incentive for any of these polluters to stop what they're doing because it's free to pump pollution into the sky. And, while we're at it, let's not forget us. We drive our cars and pump exhaust fumes skyward (though not nearly as much as we did before we got serious about auto emissions). We do it because there's no cost to us.

Oil pipelines spring leaks. Tankers lose oil. Off shore wells blow out.

In our never-ending quest to obtain natural gas we pump water, sand and chemicals into the ground at high pressures in order to fracture rock formations that contain our fix. The toxic solution that comes back to the surface is then injected deep into the earth causing fault lines to shift and move.

Business, and their whores in Washington (and other capitals around the world) are more interested in the here and now than they are in the world they leave behind for the next generations. They are far more concerned with the quarterly earnings reports than they are about what our world will look like tomorrow.

The climate is changing. We can't stop that. We can, however, reduce the harm we are causing. But it's going to take people who are willing to stand up and say Enough! Our government is mortgaging our future, and our children's future, in order to pay back the corporations for their campaign largesse.

We can't solve this problem if we just sit back and repeat the capitalist mantra of the sacredness of private property. It's going to take a new paradigm for us to do what is necessary.

We are stewards of this earth. It isn't ours. It is our job to ensure that our children, and their children, have a better place to live than did we. We are failing them miserably.

Friday, December 7, 2012

Flawging at straws

Once upon a time a Texas blawger wrote for the sake of writing. His posts were informative and you could walk away with a bit more information tucked in that file cabinet in the back part of your brain.

Then he began letting his law partners contribute to his blawg and the drek began flowing.

The blawg in question is Liberty and Justice for Y'all. The blawg was the brainchild of Brandon Barnett. At some point he seems to have lost steam. Maybe it was the workload. Maybe it was he just ran out of things to say.

The other day a new post appeared on the blawg. It was written by his partner Jason Howard and I'm willing to bet that Mr. Howard was formerly employed as a prosecutor. I would also imagine that his former job is a major marketing point for Mr. Howard.

Why that matters to you, the client, is because when you look to hire a criminal defense attorney, you try to find one whom you believe knows not only the law but more importantly the procedure. 
Seeing as how the criminal justice system in Texas is adversarial (meaning two sides pitted against one another), wouldn’t you want the benefit of having an attorney that knows both sides rather than just one?
Of course you would.  Here’s why.  Defense attorneys that previously worked as prosecutors are going to be able to better recognize the value (or lack thereof) in cases where other defense attorneys without that experience would not.  In short, prior prosecutors know a good case for the state when they see one.  More importantly, they know when a case is dog $&*%.

I don't know how to break this to Mr. Howard, but even those of us who have never made a living trying to deprive our fellow citizens of their liberty know a bullshit case when we see it. If Mr. Howard has forgotten, one of the skills we were taught in law school was to recognize the arguments on both sides of the case. Anticipating the other side's arguments is the best way to build your own case.

And it doesn't take being a former prosecutor to do that.

Let's face it, the real reason a defense attorney highlights the fact he worked for as a prosecutor is to give the impression to a defendant that the attorney can cash in some chits with the DA. I know people in the office. They're my friends and my drinking buddies. I can trade my friendship for a sweet deal for you.
Attorneys that have always worked as defense attorneys don’t have the benefit of seeing firsthand the perspective of prosecutors.  Instead, they often can’t see past the defense side of the case.  Don't get me wrong.  I'm not so short-sighted that I think the only good defense attorneys are ones that have been prosecutors.  I'm just saying that there are a lot of advantages to hiring a prior prosecutor.
Nope. You just happen to have worked side-by-side with a number of the folks wearing the black hats. You've had more contact with the judge and you've laughed at more bad jokes because, well, he's the judge. You're reaching out for that desperate defendant who's looking for a miracle and who'll be more than happy to hire someone who promises to sell out his friends and former colleagues for that special deal.

Brandon, you still have a chance to save your blawg. Please don't allow it to become just another vapid marketing attempt. You have a voice. You have a perspective. Let's hear it once again.

Military ousts judge in court martial

Apparently Col. Gregory Gross went too far for the Army when he ordered that Maj. Nidal Hasan, the Army psychiatrist accused of killing of 13 fellow soldiers at Fort Hood, be forcibly shaved prior to his court martial.

Maj. Hasan began growing a beard as an expression of his Muslim faith after he was incarcerated pending his court martial back in 2009. Military prosecutors asked that the court order Maj. Hasan to shave his beard prior to trial. Col. Gross did so.

When Maj. Hasan refused to shave his beard, prosecutors asked the court to order him forcibly shaved if he wouldn't agree to do it himself. The order came over Maj. Hasan's objection that the order violated his right to practice the religion of his choice.

The court martial was placed on hold when Maj. Hasan appealed the ruling. The military's highest court heard the appeal and ordered that Col. Gross be replaced by Col. Tara Osborn
"This ruling will have a chilling effect on the future judge because he or she ... will not pursue this beard issue any longer, and the appeals court still hasn't answered the key question of whether Hasan has to comply with military regulations and shave like every other military officer," said Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio. The retired military attorney is not involved in Hasan's case. "But on the flip side, the jury is going to see him in a full beard and may think he is motivated by radical Islamic beliefs. That's what prosecutors and the judge (Gross) were trying to prevent."
I guess it should come as no surprise that Mr. Addicott didn't like the decision to replace Col. Gross. The Center for Terrorism Law is nothing but a cheerleader for government policies designed to curb our liberty in the name of security.

There is no need for Maj. Hasan to appear in court clean-shaven. By ordering his beard to be shaved, the court was making a point of telling Maj. Hasan who was in charge. It was nothing but a power play. God knows we can't have anyone playing by anyone's rules but our own.

As Mr. Addicott pointed out, the appellate court didn't decide whether or not Maj. Hasan would be forcibly shaved. That may very well be a question that Col. Osborn must answer on her own.

When she makes that decision, I hope she keeps in mind how she found herself in charge.

Thursday, December 6, 2012

Take five, Dave

Yesterday the music world lost a giant when jazz legend Dave Brubeck died one day shy of his 92nd birthday. So, sit back and enjoy this clip of the Dave Brubeck Quartet jamming his greatest hit - Take Five.

For a little taste of the seemingly infinite variations of Take Five, click here.

Faking it until you make it

What was it that David Schroeder did that he deserved 30 days in prison?

Yes, he was a fraud. He claimed to have been a war hero. He claimed he was in the Special Forces with a bevy of medals. He ran a center that treated veterans suffering from post-traumatic stress disorder.

While Mr. Schroeder was in the army, he never saw a day of action in Afghanistan or Iraq. He served in the military police in the United States and Panama and was discharged before President Bush's war.

He lied on his resume. Of course once he lied the first time he had to keep up the charade - and the charade grew. Each lie was built upon the lie before.

Not that much different than the corporate executive who listed a degree he never received on his resume. Or the politician who fudged the facts in his campaign bio.

If the corporate exec who padded his resume and used it to get his corner office didn't commit a crime, how come what Mr. Schroeder did is a crime? Why is what he did any worse?

Oh, but he used his lies to enrich himself. He found himself teaching cadets at the Houston Police Academy regarding PTSD awareness. And our corporate exec in the corner office with the personal assistant and country club membership didn't do the same? The politician sitting in Washington enjoying the perks of power did capitalize on his lies?

What Mr. Schroeder did was wrong. But it certainly shouldn't have been criminal. If we're going to prosecute those who pass themselves off as war heroes, shouldn't we also go after everyone else who ever made up something on their resume in order to con a company into hiring them? Where should we draw the line?

Mr. Schroeder deserves scorn and ridicule. But he doesn't deserve prison time.

Wednesday, December 5, 2012

Foreclosing on Argentina

You may remember all of the hand-wringing last year when there were fears that the United States would default on some of its debt if Congress didn't agree to raise the federal debt ceiling. All of that talk came to nothing when Congress and the White House agreed at the last minute to put off a decision until the end of this year.

Back in 2001 the nation of Argentina made the decision to default on their debt. Most debt holders agreed to accept about 30 cents on the dollar for their holdings. But not everyone. A few US-based hedge funds opted out of the agreement and held on to the debt.

Now, whenever you buy a bond you hand over a fistful of money to an entity that needs to borrow it. That entity agrees to pay you back the money you lent plus interest over a period of time. The interest paid on the bond is based upon the likelihood of repayment. The better your chances of getting paid back, the less interest you will earn (think savings bonds). But, interest rates rise as the risk of nonpayment rises.

Investors who purchased bonds issued by the Argentine government knew how risky their investment was based upon the interest rate to be paid on the bonds (for those of y'all who don't know how bonds work, when the price of a bond increases, the interest decreases, and vice versa). Those investors were more than willing to take their chances lending money to the Argentine government.

When the Argentine economy collapsed in the 1990's, the government had a hard time paying back investors as well as providing some level of services for the population. As things got worse the government made the decision to default on the bonds. When the government announced its decision to default on its debt, bondholders had a choice to make: they could either agree to negotiate a settlement on the bonds or they could hold on to worthless paper. Bondholders agreed to accept 30 cents for each dollar of debt they held. Except for a handful of US-based hedge funds.

These vultures swooped in and purchased the debt when the Argentine economy was in the dumps. They were betting that they could buy the bonds at a steep discount and cash out big down the road. Their plan depended on them receiving more than 30 cents on the dollar.

So the hedge fund operators sued the Argentine government in US federal court. In November a federal judge ruled that Argentina owed the hedge funds the full face value of the bonds - some $1.3 billion. And that bill comes due on the 15th of December.

But that decision raises more than a few questions dealing with national sovereignty and international finance. Maybe you're sympathetic with the vulture capitalists. But, what does it mean to national sovereignty if we allow a court in one country to tell the government of another country what they can and cannot do with their citizens' money? No one in Argentina elected that federal judge who has decided he has the authority to tell the Argentine government what it must do.

And, for those of y'all who don't see anything wrong with a US judge sticking his nose into Argentina's finances, how would you feel if a foreign government decided to tell our government how it could spend our tax money? Isn't that called taxation without representation?

These same vulture capitalists who preach that less government is better and that folks must be free to fail if we want our economy to grow, have no problem begging for a government handout when their billion dollar bet went south. Of course, what's more disturbing to me isn't that the vultures are hypocrites, it's that a judge decided he had the authority to order the Argentine government to repay the investors the face value of the bonds.

Talk about your moral hazard.