Tuesday, December 31, 2013

Goodbye, Mack

I just got back from seeing the sad ending to the Mack Brown era at Texas. I really wanted it to end differently than it did. I can't say I'm surprised, however.

My wife suggested I go to the Texas Exes viewing party to watch the Alamo Bowl tonight - so I did. As did my youngest daughter. The game stunk but we had fun. She drank her lemonade while I downed a couple of Shiners and we ate through the bag of goodies my wife packed for us.

She was completely oblivious to the score. She was there to watch the game and hang out with her old man. She was sad that Mack Brown was stepping down. When she heard he was being forced out (I'm not playing along with this resigning charade), she cried.

As I have written before, throughout this entire episode, Mack Brown has shown more class than all of his detractors. The final nail in the coffin was when the board of regents told UT President William Powers in a closed session that Mack had to go. Powers didn't even have the class to tell Mack face-to-face. He sent in the new AD, Steve Patterson, to do his dirty work.

What an example you set for the students on the Forty Acres.

And having the palace intrigue made public doesn't make the job any more desirable. Why would Jimbo Fisher or Art Briles want to leave to come to a school in which the regents will be plotting their demise after their first loss?

But, despite everything that went on behind his back, Mack Brown responded by my request and sent my youngest an autographed picture of him holding the trophy for winning the national championship. He didn't have to do it. But that's the kind of person Mack Brown is. There's a lesson in there for all of us.

Monday, December 30, 2013

Book review - The Crash of 2016

In The Crash of 2016: The Plot to Destroy America and What We Can Do About It, author Thom Hartman lays out his case for why the US economy is heading for the cliff. According to Mr. Hartman's theory, major recessions come about every 80 years or so because that gives society enough time to forget what caused the last recession and so we repeat the cycle ad infinitum.

Every major recession has followed speculative bubbles and war. The speculative bubbles are caused by serious reductions in the top tax rates which leads to, what Mr. Hartman refers to as, "hot money." This hot money, having no place to go finds itself caught up in bubbles -- whether they be tulips, stocks or housing.

After the crash the top marginal tax rates are raised again, which cools off the hot money, and the economy starts humming along nicely. Until, that is, enough time has passed so that everyone forgets the tax cuts, the speculative bubbles and war and another crash occurs.

Mr. Hartman's theory of cycles is a popular theory to explain most historic phenomenon. So, while it's easy to explain and has a certain symmetry to it, the theory leaves a bit to be desired. And, to be fair to Mr. Hartman, the same applies to every other historian and theoretician who has tried to tie history to cycles.

Mr. Hartman's book also suffers from another common problem. Mr. Hartman is an unabashed progressive - and there's not a damn thing wrong with that. But he also harbors an undying faith and belief in capitalism. His mission is to try to restore our economic system to some mythological one in which this abstraction called the middle class brought about widespread prosperity.

This is the same line of thought that President Obama has espoused since he was chosen to run for president. Go back and listen to his campaign speeches and his pronouncements during his time in office. He constantly talks about programs that benefit the middle class - but he never mentions the working poor. Doing so would remind us all about the ways in which capitalism has, by design, left behind the vast majority of folks in the world.

His focus also renders him blind to the essential contradiction in capitalism. The system is designed to concentrate profits in fewer and fewer hands. As capitalism is dependent upon increased levels of consumption to keep the wheels turning, this overbearing march toward higher profits leaves those who produce the goods and services with less. So, while we pump out more and more product, fewer folks have the means to purchase them. It is this crisis of overproduction that brings about periodic recessions and market failures.

Wednesday, December 25, 2013

Tuesday, December 24, 2013

What's wrong with this picture?

Dana Brock of Hurst, Texas was sentenced to 70 years in prison last week for stealing a weed whacker and a power washer from a neighbor's garage. This is what happens when enhancement provisions in the penal code are allowed to run wild like kudzu in the Mississippi countryside.

She was charged with burglary of a habitation, a second degree felony punishable by 2 to 20 years in the state penitentiary. But, because of prior convictions for murder, drug possession and solicitation, she was subject to Texas' "three-strikes-and-you're-out" laws.

As a result, a crime that would normally have a ceiling of 20 years in prison could now net her life behind bars.

Now whether she should have served more time in Arizona on the murder and solicitation convictions is another topic for another day. The point is those convictions had nothing to do with the burglary case in Texas. Sure, her record indicates that she isn't a good person and certainly someone you wouldn't want to live next door to, but, we don't (or at least we aren't supposed to) punish folks because they're bad people or because of what they've done in the past.

In reality, however, that's exactly what we do. We enhance penalties based on what someone's done in the past - regardless of how much time has passed or how that person has changed. When prosecutors tack on enhancement paragraphs in an information or an indictment they are doing it because they want the jury to know what a bad person the defendant is.

Moreover, when the state seeks to enhance a charge with one or more prior convictions the state is seeking to punish the defendant a second time for a prior offense. When a defendant has a prior conviction, he or she has already been punished for it - whether it be probation or incarceration. That debt has already been paid. Yet somehow we've decided, and the courts have agreed, that it's okay to sentence someone twice for the same offense.

On multiple occasions I have represented defendants who were charged with felonies for what nothing more than a misdemeanor. One client had been indicted on felony theft charges for stealing soap, deodorant and shampoo. The value of the items stolen was well under $500 (a class B misdemeanor) but, because he had two prior misdemeanor theft convictions he was facing two-to-ten years in prison for something that would ordinarily be punished by no more than six months in the county jail.

And what's the point? Why are we sending people to prison for non-violent property crime offenses? A petty shoplifter has no business being exposed to the cesspool that is our prison system.We're doing it for no other reason than we're mad at him for continuing to steal.

Prison should be reserved for those folks who are a danger to society. Prison shouldn't be the landing spot for someone we're just mad at.

Now we can argue all day about whether Ms. Brock should go to prison for up to 20 years for stealing lawn equipment from her neighbor. But I would hope that we could agree that a life sentence for breaking into a garage is more than a bit excessive. She wasn't sentenced for the crime she committed. She was sentenced for other crimes she committed - and for which she served her time.

H/T Grits for Breakfast.

Monday, December 23, 2013

This old courthouse - Lee County edition

Back in August I took my youngest to her first Longhorn football game in Austin. Since it was a night game we stayed overnight and headed back home after breakfast the next morning. Just to do something a little different we took 290 back to Houston instead of heading down 71 to I-10.

Our drive took us to Giddings, Texas, about an hour outside Austin. Giddings is the county seat of Lee County and has a gorgeous courthouse just off the main drag.

The courthouse was built in 1899 to replace the one that burned down. It was designed in the so-called Robertson Romanesque style. Instead of placing the courthouse square in the middle of the commercial district, the Lee County Courthouse sits in the middle of a residential area.

Here's a shot from one of the corners. That's my assistant in the green skirt.

 This is a picture of the clock tower.

Here's my assistant standing on the fire escape outside the courthouse.

Friday, December 20, 2013

Making the trains run on time

I heard from a colleague the other day that after a trial in which his client was acquitted the judge ordered the defendant taken back to jail in order to be processed out. My head began to hurt from spinning so fast.

His client couldn't afford to post bond and the judge wouldn't allow him a personal bond so he sat in the county jail for months waiting for trial. He could've easily pled guilty and taken time served (or less than what he ended up serving) but he insisted on his innocence.

I'm certain that he had some personal effects and items that were still sitting in his cell or in the property room but once that jury came back with a not guilty verdict, any authority the court may have had over him vanished into thin air. He should have been free to return to the jail when it was convenient for him to do so instead of having to go back into custody for another four or five hours while he was processed out.

It was bad enough that he had to sit in custody for months awaiting trial for the crime of not being able to scrape up enough money to pay a bondsman to get him out. That deprivation of his freedom can never be undone and the jury's verdict was a sharp rebuke to the police, prosecutors and the judge. But the illegal detention of an innocent man afterward is inexcusable.

I wish I knew the name of the judge so I could plaster it in bold type. I wish I knew the name of the judge so I could question his qualifications to sit on the bench. I wish I knew the name of the judge so the rest of the world would know who he was.

There are far too many judges sitting on the bench in Harris County who have the mistaken belief that they work in the district attorney's judicial division. They are only too willing to bend over backwards to impose coercive bond conditions on defendants who are legally innocent. They are only too willing to help out the members of "their team" in the courtroom.

This is not the first incident in which a judge has infringed upon the freedom of a defendant after receiving a not guilty verdict. A few years ago a visiting judge, Carolyn Marks Johnson, presided over a DWI trial. Now, before we go any further I must disclose that Ms. Johnson was my voir dire professor at South Texas - and she did a damn good job. However, after the jury acquitted the defendant, the judge decided that the defendant (innocent person sitting in the courtroom) needed to be drug tested. So she ordered it.

She had no jurisdiction over the (former) defendant. Once the jury returned their verdict the case was over as was the judge's power over the accused. But that's just a little detail. Why let things like constitutional protections get in the way when you can show someone you're the boss?

I'm sure that both the judge and Sheriff Adrian Garcia can come up with a myriad of excuses and reasons why a person who was just acquitted should have to go back into custody. There's all that paperwork and clothes and bedding to worry about. We certainly can't inconvenience the sheriff, can we? Besides, if he was charged with a crime we all know he was up to something - the fact that a jury found him not guilty doesn't make him innocent y'know.

A person's liberty shouldn't be infringed upon for the sole purpose of making life easier for the sheriff. The judge knows this and the judge also knows damn well that what he (or she) did was wrong and was a violation of the oath they took when they were elected (or appointed) to the bench.

Thursday, December 19, 2013

A broken record

On the way to the municipal courthouse during the lunch hour yesterday I happened upon a discussion on the local public affairs show Houston Matters on KUHF. The topic was the state of Texas prisons. One of the guests was Ray Hill who hosts Execution Watch on KPFT and who used to host The Prison Show.

I've provided a link to the program but, unfortunately, the broadcast isn't broken down into sections.

The show contained a bit of a history lesson about the Texas prison system. Up until the last 30 years, Texas prisons used a building tender system to maintain discipline in the units. Prison officials would actually pick inmates to run the buildings on a daily basis. Predictably this led to greater violence and harsher conditions. That system was tossed out as a result of the Ruiz v. Estelle lawsuit that put Texas prisons under federal control for years.

What I found most interesting was the fact that the prison population has grown by nearly 900% over the past 30 years while the population of Texas has only doubled. What's wrong with this picture?

I think we can all agree that there are some folks behind bars that really need to be there. But that number is a whole lot less than you might think. The population explosion in our prisons went hand-in-hand with the failed war on drugs. Drug addicts don't need to be in prison. Prison therapy is not an effective method of helping folks cope with their addictive behavior.

Instead of spending roughly $18,000 a year to house an addict in prison, why don't we spend the money on community-based drug treatment programs? I've mentioned this before, but we need to change our model for handling drug addiction. We need to treat it as the public health problem that it is, not as a criminal problem.

We promote drug courts like they are some new panacea that will turn defendants clean with a little bit of tough love. The problem is that, no matter how much we candy it up, a drug court is still a criminal court; and criminal courts deal in acquittals and convictions. Criminal courts only function properly when there are adversarial parties arguing both sides of a case. Whenever we start to put prosecutors and defense lawyers on "teams" we are undermining the adversarial system and weakening the protections the Founding Fathers set out for criminal defendants.

Our jails and prisons are filled to the breaking point with folks whose only transgressions are an inability to get through the day without the use of illegal stimulants or depressants. Those folks don't need their liberty taken away. They need to be able to carry out their day-to-day lives with the addition of therapy provided by counselors who aren't interested in violating their probation and sending them to jail or prison.

Those folks don't need to be exposed to the culture of violence and depravity we find in our prisons. They shouldn't have to live with the fear of being sexually assaulted on a daily basis.

The system is clearly broken and is in dire need of fixing.

Wednesday, December 18, 2013

Democracy on hold

The United States shall guarantee to every State in this Union a Republican Form of Government... 
-- U.S. Constitution, Art. IV, Sec. IV
Last month the city of Detroit filed the largest municipal bankruptcy case in history. For years the city has been in a steady state of decline that began when the automakers pulled up stakes and settled in the suburbs. Over the years more and more employers have left the city, leaving the municipal tax base in shambles.

Property values plummeted. Tax revenues dried up. The city couldn't afford to provide police and fire services and schools had no money.

Into the fiscal mess stepped Michigan Governor Rick Snyder who decreed that the state had the right to appoint an emergency manager, Kevyn Orr, to get the city through the crisis since local government officials couldn't seem to get out of their own way. Residents were understandably upset about the governor, in essence, voiding their local elections and choosing someone he wanted to run the city.

As a result of the uproar, the emergency manager law was tossed out by an appeals court because the law nullified the very principle of democracy. White voters in the suburbs and rural areas then approved a constitutional amendment giving the governor the power to appoint emergency managers to run cities which were teetering on the edge of insolvency. Interestingly enough, the people affected by the law were mostly black.

The problems in Detroit have to do with an eroding industrial base and very bad investment choices by the city - choices brought to the city by the very law firm, Jones Day, where Mr. Orr worked.

And now, instead of looking toward those who made the decisions that brought Detroit to its knees, the emergency manager is looking toward retired city workers to pay for a mess they had no hand in creating. By taking the city into bankruptcy, Mr. Orr is seeking to have a federal court allow creditors to raid the city's pension fund.

As an aside, Mr. Orr is being paid a salary of $275,00 to take from the old, the poor and the working class and hand it over to banks and wealthy investors. He is also living in a $4200 a month condo on the state's dime.

The city made a promise to its employees that they would receive a pension upon retiring. Most of the pensions are fairly modest and provide just enough money for retirees to get by on. But because the retirees are unsecured creditors, they have no protection in bankruptcy court. Their pensions will be sacrificed so that wealthy bondholders and bankers can get paid.

Employee unions are also under attack as Mr. Orr seeks to void union contracts and drive wages down. Union employees didn't create the fiscal problems in Detroit - yet they, too, are being asked to pay the price so that wealthy investors can cut their losses.

In addition Mr. Orr is looking at selling the city's art collection and park lands. In other words, the commons will be sold so that investors can cash a check.

And all the while the people who live in Detroit have no say in what happens to them because the governor decided to take away their right to vote.

See also:

"Detroit accused of exaggerating $18bn debts in push for bankruptcy," The Guardian (11/20/2013)

Tuesday, December 17, 2013

The name says it all

The last time I checked my calendar we were running up on the final days of 2013. Yet there is a debate going on in Houston about whether Lamar High School should change its mascot/nickname.

Lamar High School sits on the outskirts of River Oaks - a very old money section of Houston. It would be a fair guess to assume that Lamar is the most affluent public high school inside the Loop.

The only problem is that Lamar's athletic teams are known as the Redskins. Yes, you read that right. And if you're doing a double-take about the fact that there's a debate going on about whether that nickname is appropriate, count yourself as someone who gets it.

Yes, there are folks in the city who find nothing wrong with the school's nickname. Interestingly enough, none of them are Native Americans.

The point of high school is to educate our youth and prepare them for the challenges of college or the "real world." As far as I know the stated purpose of school is not to perpetuate negative stereotypes of those who look different from us.

And yet there is a debate raging about whether the school should change its nickname.

It's one thing to have this debate about high school and college teams with nicknames like the Fighting Sioux, Indians, Chippewas, Utes, Warriors, etc. It's an entirely different matter to be having this debate about names that are clearly derogatory.

Of course in Houston that might be par for the course. After all, we have both a Robert E. Lee High School and a Jefferson Davis High School. Yet, somehow, there is no Abraham Lincoln High School. What message does it send our youth that our schools are named after white men who fought to preserve slavery?

There is no need for debate. The nickname should be changed. It should've been changed decades ago. We don't have schools with nicknames like Crackers, Darkies and Wetbacks. How many folks do you think would be outraged by those. Yet there are those who cling to some antiquated notion that Redskins is a term of honor bestowed on Native Americans.

I call bullshit on that.

It's time for the school board to show some leadership, make the change and get on with the business of educating our children.

Monday, December 16, 2013

Staying classy

The Mack Brown era at Texas is officially over. Regardless of the fact I think Mack should still be the coach of the Longhorns - after the BYU and Ole Miss losses it was all but a foregone conclusion that he was out after the season.

Through it all Mack showed far more class than any of his detractors showed. Just think about this for a second, one or more regents contacted Nicky Satan's agent last January while Mack was still under contract. And then someone felt the need to let the press know about it after the BYU loss.

During the entire season you've never heard Mack get cross with anyone when being asked about his status. His focus has been on the team. He never badmouthed anyone in public and never called out his detractors while the team was in the midst of their six game winning streak. Instead of being negative and bitter about what was going on around him, Mack Brown kept on his game face and pushed his team on one day at a time.

Mack made the decision to step down because he saw fractures developing in the football program and knew that if he came back for a 17th season there would be open rebellion. His decision allows time for supporters of the football team to come back together - at least until the selection is made.

There are a lot of folks who have forgotten the state of the football program when Mack came aboard. After Darrell Royal left after the 1976 season the Longhorns were in the mix for two national titles over the next 20+ seasons. In 1977 the Longhorns, ranked number one at the time, were routed by Notre Dame in the Cotton Bowl and, a few years later, lost to Georgia in the Cotton Bowl and blew their shot at (at least) a share of the national title. That was it until Mack Brown came to the Forty Acres.

The Fred Akers era ended in a nasty way. The team was irrelevant on the national stage. The years under David McWilliams were even worse. Then there was John Mackovic who, while introducing offensive innovations, never seemed to feel comfortable as the Texas coach.

Under Mack Brown the Longhorns won one national title, played for another (and who knows what might have been had Colt McCoy not been injured in the first quarter) and came within a game of playing for the title on two other occasions. No, two Big XII championships in 16 years wasn't satisfactory. But, Texas was relevant again.

The stadium was renovated and expanded to seat over 102, 000. The game day atmosphere in Austin is light-years ahead of what it was in the 1980's. UT's athletic department is the most profitable athletic department in the nation. The revenue from the Longhorn Network covers (or damn near covers) the cost of scholarships for non-revenue sports.

While the program has hit a rough skid, let's not forget that the Longhorns were but 30 minutes away from a conference title and a berth in the Fiesta Bowl this season - despite the horrid beginning of the season.

The road is littered with programs who forced out coaches the boosters didn't think were winning enough and found out, too late, that they made the wrong decision. For the sake of the program, I hope Texas didn't just make a similar mistake.

Thank you, Mack, for what you've done for the University of Texas.

See also:

"Happy trails to Mr. Football," Bryan Curtis, Grantland (12/16/13)

Friday, December 13, 2013

Free parking (no more)

Earlier this week I had to bid goodbye to a good friend. You see, for the past couple of months there was a parking meter - not too far from Minute Maid Park - that was particularly generous.

After it went haywire one morning and couldn't figure out the correct parking rate, someone went to adjust it. Afterward it worked like a dream - except for one little thing. Its internal clock was wrong. I first noticed it when I parked one morning and put $2.50 into the machine. When I got the receipt I had an additional two hours I hadn't paid for.

For those of y'all who don't have to deal with the parking meters in downtown Houston they are computerized and one machine can serve an entire block. The meter has an internal clock and calculates the time until your ticket expires based on the amount of money you pump into it. This particular meter's clock was set to Atlantic time -- that is, two hours later -- not Central time.

Now there are a couple of things y'all need to know about parking in downtown Houston. When I was in law school we could park two blocks down from the campus on the street for a dime an hour. We could park for up to 10 hours. I was taking night classes so I'd pop in a quarter every afternoon. It was the best deal in the city. And parking was free on the weekends.

Then Bill White decided the city needed to raise more revenue and he didn't feel like ticking off business leaders by cutting their tax breaks so he decided to start making folks pay to park downtown on Saturdays. Then they started putting in new parking meters and they raised the rates. It now costs about $1.50 an hour to park by the law school and you are limited to four hours in one spot.

So, most weekdays I would pull into an open spot, take out a dime, put it in the machine and, like magic, I had two hours and a couple of minutes of parking time. More importantly, I didn't have to worry about moving the car because there was no way to calculate how long I had been parked in the spot.

It was perfect.

It was so perfect I would stop by the meter on Saturday mornings taking my girls to the weekly writers' workshop at Discovery Green. I'd put in my dime and then drive down the street till we got by the park.

On Monday I drove downtown and parked in my usual spot but the parking meter wasn't working. I had to walk down the block and use another machine. And, worse yet, I actually had to pay for my two hours of parking. Wednesday afternoon I drove back downtown to visit a client in the Harris County Jail and parked in my usual spot. This time the machine was working - but, when I looked at the time, the internal clock had been fixed.

I have no idea how many people knew the machine was screwed up. I know I never told a soul. Until now.

Thursday, December 12, 2013

Has she no shame?

It takes a certain kind of person to want to be an elected official. It's not everyone who can beg and grovel for money and signatures on a daily basis. Most of us have a hard time looking someone in the eye and lying to their face - and then denying you lied when called on it.

More than that, a politician has to be absolutely shameless. It was brilliant how Mitt Romney slammed President Obama's health care plan after he had put (essentially) the same plan into work in Massachusetts. Listening to him explain how his was good and Obama's was bad just made your head spin.

Now we can welcome disgraced former state district judge Elizabeth Coker to the ranks of those who truly have no shame, no conscience and no ethics.

Fresh off resigning from the bench after being called out for sending an e-mail to a prosecutor listing some questions she might want to ask on cross-examination, Ms. Coker has entered the Republican primary for Polk County District Attorney against the incumbent, William Lee Hon.

What a delightful irony these two are running against each other as it was one of Mr. Hon's investigators who exposed Ms. Coker's unethical behavior and one of Mr. Hon's prosecutors who was the beneficiary of said e-mail.

As I've said before, it wasn't the first time Ms. Coker acted unethically. It was just the first time she got caught doing it. And, I guarantee you it wasn't the first time that one of Mr. Hon's prosecutors was on the receiving end of one of her e-mails. It's always intrigued me that it was one of the DA's investigators who blew the whistle on the whole operation.

Ms. Coker's decision to run against Mr. Hon is obviously Act II of the drama. Why Mr. Hon made the call to rat out the judge will make for an interesting back story in the campaign. Kaycee Jones, the prosecutor who received the messages, now sits on the bench of the 414th District Court and is facing a hearing before the State Bar's disciplinary committee for her role in the scandal.

Mr. Hon deserves as much damning as Ms. Coker for the incident since we should all realize that this had been going on for some time and that Mr. Hon was well aware of the practice.

Ms. Coker took a leave of absence from the bench in late October and her resignation became effective this past Friday. It's interesting that she had no compunction about continuing to accept a paycheck for work she wasn't doing because she couldn't follow the rules for being a judge. And what better qualifications could you want in a district attorney?

Ms. Coker doesn't think there's a problem with serving as a DA since the order from the State Commission on Judicial Conduct just states that she can't serve as a judge. However, local attorney Laura Prigmore wonders if that is the case since prosecutors are listed under the judicial branch in the State Constitution (in Article 5, Section 21) - which might explain why so many judges think they are prosecutors.

Wednesday, December 11, 2013

New toy for Wyoming police

Wyoming has a very low crime rate. It has one of the lowest murder rates in the country at 2.4 per 100,000 people. For comparison, the rate in Texas is 4.4 per 100,000 people.

But the relative absence of crime certainly didn't stand in the way of three sheriffs getting together and buying a Mine Resistant Ambush Protected armored vehicle. According to the Casper Star-Tribune, the MRAP is just another way in which law enforcement is keeping the public safe.
"Myself, Sheriff (Ken) Blackburn and Sheriff (Louis) Falgoust said, 'Let's get it,'" Rakness said. 
Big Horn County Sheriff's Office deputies traveled to Ft. Lewis, Wash., and drove it back. The cost of the vehicle as well as the cost to maintain it is going to be shared by the three counties. 
"That's the only cost we incurred," Rakness said. 
The reasoning behind getting the armored vehicle is because of the state being so isolated, especially in these three counties, he said. 
"We have to have it to nab the bad guys," Rakness said. "It's our hope we never have to use it. But it's free and we believe the taxpayers are getting some money back they invested in equipment."
Nabbing the bad guys. That's what it's all about. Sheriff Rakness brought up a shooting in Big Horn County from back in 1996 to justify the acquisition. I dare say that if you're having to go back 17 years to find an incident to justify the purchase of an armored vehicle you're reaching. Really reaching.

There are a couple of problems with police departments acquiring surplus military gear. First, the police aren't the military. The role of law enforcement is very different than the role of the military. Law enforcement is supposed to protect and serve the residents of a city, town or county while the job of the military is to kill people and destroy things. The police and residents aren't enemies. For the military, if you're not wearing the same uniform, you are the enemy. When police adopt military tactics they take this "us against them" attitude with them on the street. That attitude leads to routine events being escalated because someone didn't ask "how high?" when the officer told them to jump.

Second, these vehicles were designed with one purpose in mind - get troops safely into a place where they can kill anything that moves without fear of getting shot in return. I doubt you're going to find too many IED (improvised explosive devices) along the highway in Wyoming. One finger is probably one too many to count the number of mines that have been planted on the roads up there.

Third, once you've got your armored vehicle you have to use it to justify the expense of keeping it sitting around. I mean, if you're not going to use it, it's pretty damn silly to have out in the parking lot. Just having an MRAP around is going to encourage the police to find ways to use it. Military equipment has a funny way of finding itself being used in routine drug raids or when executing a search warrant.

Acquisitions of armored vehicles and surplus military gear shouldn't be fawned over by the press or the public. Such acquisitions should, instead, be questioned by all of us. As we continue the militarization of our police forces we create more and more of a siege mentality. This trend is dangerous and leads us further down the road toward a police state.

Tuesday, December 10, 2013

Class dismissed

Talk about your sophisticated ways of poisoning jury pools and public opinion. The Harris County District Attorney's Office found the perfect tool to make Harris County even more prosecution-friendly.

According to a PR memo released by the DA's office, Harris County prosecutors have been spreading propaganda "teaching" students at Strake Jesuit High School about criminal procedure over the past five weeks.

I'm sure there was plenty of talk about technicalities and court decisions that have hampered the ability of the police to do whatever the hell they want to do. Sure, there's a justification for gutting the Fourth Amendment's protections against unreasonable search and seizures - it's really important that we catch the bad guys and, well, sometimes that requires us to do some things that, under ordinary circumstances, we shouldn't do.

I doubt there was any mention of how Harris County systematically violates a defendant's right to counsel at crucial stages of a prosecution. I mean, why on earth would a defendant need to consult with an attorney before a magistrate judge fills in the blank on the arraignment form with the bond listed in the county's bond schedule?

I would guess that somehow the prosecutors assigned to the propaganda division forgot to inform the students about the abuses heaped on defendants from judges intent on clearing their dockets via mass plea. Oppressive and punitive bond conditions? Doesn't happen. Threatening to revoke the bonds of defendants who come to court without attorneys? A very rare occurrence.

And there is no need to talk about prosecutors hiding the sausage and ignoring Brady now that the Michael Morton Act is about to go into effect. We've got extensive checklists now so that the burden can be shifted onto defense attorneys when exculpatory evidence isn't handed over. I wonder if they broached the subject of junk science being deemed admissible if it was beneficial to the prosecution? Probably not.

If the purpose of this exercise had been to teach high school students about criminal procedure and how the criminal (in)justice system works, there should have been criminal defense lawyers involved. Allowing students to hear one side of the equation while acting like they're getting the whole story is a travesty and has no place in our education system.

Doing so allows the state to continue to equate constitutional protections with "technicalities." There is a reason behind the protections of the Third, Fourth, Fifth and Sixth Amendments. Ignoring the reason behind those protections is a disservice to our youth - and our society.

I'm certain that no one told the students that the defendant is entitled to a vigorous defense and that the job of the criminal defense lawyer is to hold the state to its burden of proof. It is the job of a defense attorney to ensure that his client's constitutional protections aren't violated. It is the job of the defense attorney to question every piece of evidence and to challenge the state to prove its case beyond all reasonable doubt. It is our job to stand beside people that no one else will and fight to defend their liberty.

We don't deal in technicalities. We deal in quanta of proof. When it comes down to it, the defense lawyer is the only person standing between his client and the power of the state.

H/T Grits for Breakfast

Monday, December 9, 2013

Robbing the poor and giving to the rich

The other day I wrote about Black Friday protests at Wal-Mart and the ways in which large corporations shift the burden of paying employees to taxpayers, today we'll take a look at how these same corporations take money from taxpayers to pay executives a king's ransom.

According to a recent report from the Institute of Policy Studies, thanks to changes in the tax code, corporations are able to deduct the cost of "performance-based pay" for executives. In the fast food industry the CEO's of the six biggest public companies averaged over $19 million dollars a year in compensation in 2011 and 2012 with slightly over $15 million of that based on performance. Taxpayers subsidized over $5 million per CEO per year thanks to the tax code.

At the same time front-line fast-food employees are receiving federal assistance to the tune of nearly $7 billion a year.

That's how free enterprise works in the United States. Corporations rely on government tax breaks and subsidies to fill their coffers with cash and distribute it to the highest executives while the people on the ground who do the actual work struggle to keep their heads above water.

But heaven forbid we raise the minimum wage to a level that workers can actually live on. We just can't do it. Where's the money going to come from? We can't possible take it from the suits in the corporate office or from shareholders collecting their rents. Instead we'll leave the workers to fend for themselves as in Victorian England.

So we continue to put the squeeze on the working poor. Meanwhile we have an unemployment rate that is still too high. We have anemic job growth. And we have little manufacturing left in this country.

In order to keep the economy afloat someone has to be able to buy the stuff we make and sell. It's that consumption that makes the wheels turn. But, as we increase the numbers of the working poor and concentrate more and more wealth at the very top of the ladder we are sowing the seeds of our own destruction.

Our economic model is unsustainable. The system almost collapsed of its own weight a few years ago. Only fistfuls of money from the government to the very companies that caused the meltdown kept it running. It was telling that our government was more than willing to back up the money truck to companies on the brink of ruin but that it couldn't spare a dime for the ordinary folks whose lives were cast asunder as the result of something they had no hand in.

Just remember that, at the end of the day, there are more workers than CEO's.

Friday, December 6, 2013

The quest for truth

Nelson Mandela died yesterday at the age of 95.

Mr. Mandela was the leader of the African National Congress and the first truly democratically elected president of the Republic of South Africa. In 1962 he was arrested and charged with terrorism for daring to challenge apartheid in South Africa. In 1964 he was sentenced to life in prison for the crime of advocating for equal rights.

He was elected president of South Africa in 1994 after the fall of the apartheid regime. Mr. Mandela could've been bitter. He could have sought revenge for the years of oppression he - and his followers - suffered.

But he wasn't.

Instead of looking back and seeking to punish those who made a mockery of equal rights, Mr. Mandela instituted a truth and reconciliation commission whose purpose was to document the atrocities committed during the apartheid regime so that history would have a record of what was done. Those who committed the acts of oppression were not punished. The purpose of the investigation was to establish who did what and when.

As a leader he showed far more patience than any other head of state. His goal was to move the nation forward without focusing on the past. While what happened over a 50 year period was important for the nation to understand, Mr. Mandela wanted to move past those injustices and create a society in which all were free to participate.

While the world is poorer for its loss, it is also vastly richer for Mr. Mandela's time on it.

Thursday, December 5, 2013

Is it time to bail on the bond system?

In Maryland whenever someone was arrested they would be brought before a judge who would determine if the defendant should be granted bail, should be held without bail or should be released on their promise to appear in court. This system functioned efficiently - primarily because it excluded lawyers.

At least that's how they used to do it before the Maryland Court of Appeals found the bond hearings to be unconstitutional because defendants were denied the assistance of counsel. Now the state is scrambling to find a new way to decide who gets to sit in jail awaiting trial and who gets to sleep in their own bed. Due to the cost of providing additional public defenders and prosecutors at bail hearings, the state is considering doing away with the entire bail bond system.

Of course the bondsmen are a powerful lobby who have a direct interest in the way this matter proceeds. And they have friends - trial lawyers - in the Maryland legislature who love the campaign contributions.

The purpose of bond has always been to assure a defendant shows up in court. The seriousness of the charge and whether the defendant is a danger to society are other factors that come into play - but the presumption is that every defendant is entitled to bail. The system has become one in which those who have the resources are able to bond out while those without money, who are charged with identical offenses, sit behind bars until their cases are disposed.

The ruling in Maryland interests me because we have a similar system here in Harris County. If you are arrested in Harris County you will be taken before a magistrate on video. The magistrate will admonish the defendant to keep his damn mouth shut and will then determine the bond amount. For virtually every case that amount is written on a sheet of paper - the county bond schedule.

The defendant isn't afforded the assistance of counsel at this hearing. There is no one to speak for him. The case is filed, the defendant is admonished and the judge looks down at a piece of paper to determine how much it'll cost the defendant to sleep in his own bed while his case is pending.

The Sixth Amendment has been interpreted to mean that a criminal defendant is entitled to the advice of counsel at any crucial stage in our criminal (in)justice system. But, in Harris County, that initial bond determination isn't considered a crucial stage in the process.

The benefactors are the county's bondsmen who exact their pound of flesh before sending the magic paper to the county jail. The other benefactors are the judges who can rely upon the bond system to coerce defendants behind bars to plead out their cases in order to go home. Just imagine the chaos if every criminal defendant had the ability to fight their case from outside the jail. No longer would the state have the added bonus of pretrial incarceration as a negotiating tool.

Of course we have other problems in Harris County - most stemming from attorneys and judges who don't bother to read Article 1, Section 11a of the Texas Constitution. That provision sets forth who can be denied bail and how that determination is to be made. According to the Constitution, a defendant may only be held without bail (on a non-capital case) if a hearing is held within seven days of his arrest to determine whether or not the state can deny bond. Very few people know this and very few attorneys ever litigate the matter. Ask a prosecutor about it and they'll just tell you the bond schedule says he doesn't get a bond.

In a sane world the notion that a pretrial hearing to determine whether a defendant is entitled to a bond is not a crucial stage in the process would be laughable. Here in Harris County it's called "doing business."

Wednesday, December 4, 2013

Update: One last murder for 2013

Yes, it probably sounds like a broken record by now, but the murder of Jerry Martin by the State of Texas accomplished nothing last night. Mr. Martin is dead - as is the prison guard he was convicted of killing. The execution changed nothing.

Mr. Murphy took responsibility for his actions prior to being pumped full of poison. He apologized to the family of the slain prison guard. But the death penalty has hardened us to the degree that Charles Canfield, the surviving spouse of Susan Canfield, wouldn't accept Mr. Murphy's apology.

No, I'm not trying to equate an apology to murder, but proponents of the death penalty claim it brings closure to the families of the victims of murder. It doesn't. Nothing brings closure to such a tragic loss. Mr. Canfield couldn't accept an apology from the man who killed his wife because he was convinced that the state-sponsored killing of Mr. Martin would bring an end to his loss.

It didn't. And it won't. Mr. Canfield realizes that. Despite the fact that Mr. Murphy is now dead, his wife isn't coming back. That is a loss that can never be replaced - no matter how many inmates we strap down to a gurney and pump lethal amounts of sedatives into their bodies.

Mr. Murphy wasn't a nice person. At the time of Ms. Canfield's murder, he was already serving 50 years for attempted capital murder. While he didn't kill Ms. Canfield intentionally, his actions during an attempted escape led to her death.

Be angry at Mr. Murphy. Be as angry at him as you wish. But to kill someone simply because you are angry at them doesn't solve any of society's problems. It serves to desensitize us to violence. It causes us to look the other way when confronted with the reality of life behind bars. We lock people in cages, treat them as less than human and then wonder aloud why they act like animals.

The punishment is being in prison: the time away from home and loved ones, the loss of freedom and choice. There is no societal gain exposing inmates to wanton violence from both guards and fellow inmates. There is no benefit to society in allowing inmates to be raped and sexually assaulted by other inmates.

Yet that's what we do. We get mad at someone for what they've done and then we turn our heads and ignore the savageries they face behind bars. That is, if we don't kill them first.

Tuesday, December 3, 2013

Scientific fraud in Massachusetts affects over 40,000 defendants

If ever more evidence was needed that scientific evidence in criminal cases needs to be scrutinized more than it is, we have the story of Annie Dookhan, a chemist with the state of Massachusetts who is heading off to prison for at least three years.

Ms. Dookhan was a real go-getter, running tests at three times the rate of her colleagues. The only problem is she wasn't running the tests. She tampered with evidence, forged signatures and lied about her qualifications as an expert. All in all, at least 40,000 cases have her fingerprints on them.

Auditors found that she was analyzing samples at a rate vastly superior to her fellow analysts but that didn't raise any red flags. Even after she was suspended after admitting she forged another analyst's initials on paper work she continued to testify in court. Finally, over a year after she was caught falsifying documents, she confessed to investigators that she "screwed up big time."

Prosecutors were asking for a sentence of between five and seven years but the judge handling the case, Carol S. Ball, thought a sentence of three to five years was more appropriate because Ms. Dookhan was, according to the judge, "a tragic and broken person undone by her own ambition."

That may be well and good but it doesn't even begin to address the people whose lives were turned upside down by Ms. Dookhan's actions. While the New York Times article takes the obligatory paragraphs to list how bad some of the defendants were, there is precious little space spent on the other victims of her crimes.

But the bigger question is whether or not we've learned our lesson on scientific evidence. It is ironic that in the civil courts, where money is the only issue, that scientific evidence is treated much more seriously than it is in the criminal courts. While civil trials often come down to a battle of the experts on the interpretation of medical or scientific evidence, in the criminal courthouse the judge usually waves off any challenge to the evidence claiming any questions go to the weight, not the admissibility, of the evidence.

So, instead of holding the state to its burden to prove that evidence was obtained and tested according to scientific protocols, the courts punt and let the jury make the decision. Judges would rather risk a few innocent folks getting convicted than do their jobs as gatekeepers of scientific evidence. It's more about judicial economy and not raising red flags that could affect other cases than it is about ensuring that the due process rights of criminal defendants are protected.

The problem is exacerbated by the fact that most judges come to the bench straight from the prosecutors' office.

It is time that scientific evidence in criminal trials was treated with the same degree of seriousness as it is in civil court. If this means the courts should provide more funding so that criminal defendants can afford to have evidence re-tested or to retain outside experts, then so be it. We should all be much more concerned with protecting the rights of a criminal defendant than in protecting the bottom line of an insurance company.

If we can't trust the outside auditors, if we can't trust the internal reviews, if we can't trust the analysts, then who can we trust when it comes to scientific evidence in the criminal courthouse?

Monday, December 2, 2013

Execution Watch: 12/3/2013

The State of Texas is preparing to murder for the last time in 2013...

JERRY MARTIN, while serving a 50-year term for attempted capital murder, he was condemned in connection with the 2007 death of a guard at the Wynne Unit when he and another prisoner attempted to escape. Martin was convicted of taking a guard's gun, stealing a truck and hitting a horse being ridden by a guard, who fell to her death. His execution date was set when he gave up his appeals. In the case of his co-defendant, John Falk, Jr., a mistrial was declared in January 2013. Prosecutors were seeking a retrial.

For more information on Mr. Martin, click here.

Unless a stay is issued, we'll broadcast live:
Tuesday, December 3, 2013, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...

Friday, November 29, 2013

Black day for Wal-Mart

It was bad enough when it was just Black Friday. Then the stores started racing each other to see who could open earliest. One year when I took my oldest up to College Station to watch the Longhorns stomp on the Aggies we saw the line of folks waiting outside a store before the football game ever started.

Now, of course, we have stores open on Thanksgiving Day because it's so much more important to sell the latest consumer devices than to allow your employees to spend a day with their families.

Today is also a day of protest against Wal-Mart and their business practices. Wal-Mart made around $17 billion last year. The company earns that profit by paying its hourly workers subsistence wages and by holding their hours down.

Sign at a Wal-Mart in Ohio asking for donations for associates who can't afford Thanksgiving Dinner on the wages Wal-Mart pays.
Wal-Mart is able to do this because their actions are subsidized by our government us. To be fair, Wal-Mart isn't the only company that pays its employees poverty-level wages because we, the taxpayers, subsidize them. Wal-Mart, however, serves as the poster child because of the ruthless way it conducts its business.

Workers who toil for minimum wage can work full-time and still find themselves under the federal poverty line. They may receive food stamps (SNAP), welfare payments or earned income tax credits to supplement their meager incomes. They may also qualify for Medicaid (or subsidies for private health insurance). President Clinton's welfare reform package encouraged companies to keep their wages low since welfare recipients were required to work (and, needless to say, found themselves in minimum wage jobs).

These income transfer programs allow them to scrape by. But someone who is working a full-time job shouldn't have to just scrape by. It is a sad statement on our economic model that you can work full-time and still be living in poverty.

Ironically enough, the same companies that take advantage of income transfer programs to subsidize their low wages, do their best to do away with any legislation that would further regulate their businesses. They are more than happy for government interference when it allows them to pay poverty-level wages but want no part of it should the proposed rules or regulations deflect one penny from the bottom line.

The federal minimum wage must be raised. And I'm not talking about President Obama's day-late-and-dollar-short plan of hiking it to $9.00 an hour. That figure still leaves full-time workers in poverty. The minimum wage needs to be raised to somewhere between $12.00 and $15.00 an hour. Wal-Mart and its shareholders can subsist on a little less profit every year but their employees can't survive on what they make today. That dynamic needs to change.

Our economic philosophy cannot be built solely on the idea of greater economic efficiency. Our society is not a machine. It is made up of people who all have to put food on the table and clothes on their backs. Economic fairness and equity must trump efficiency in the long run.

Thursday, November 28, 2013

Standing up to coercive bonding guidelines

The first post I wrote for this blog - way back in August 2008 - was a short piece on the need for PR (personal recognizance) bonds in Harris County. A PR bond is nothing more than a promise from a person accused of a crime that he or she will show up in court when ordered (much like your signature on that traffic ticket).

Today, more than five years later, there are too many people locked up in the Harris County Jail for non-violent offenses - mostly driving while intoxicated and possession of marijuana. The lucky ones are able to arrange for a friend or loved one to post a bond so they can fight their case from the outside. Some aren't so lucky and sit in jail for weeks or months while their cases are being litigated.

In the meantime law enforcement demand taxpayers take on more debt and build another jail as the existing jails don't have enough room to hold all of the folks the county insists on keeping behind bars.

What too many of our black-robed officials and prosecutors have forgotten is that a person accused of a crime is innocent unless proven otherwise. That includes those arrested for driving while intoxicated, possessing a baggy of pot, shoplifting and driving with a fake inspection sticker.

There is absolutely no excuse for not issuing PR bonds for folks charged with non-violent offenses who have no prior convictions. The purpose of bail is to ensure a person's appearance in court - not to punish the accused. Instead of looking for reasons to keep someone behind bars, our judges should be looking for reasons to release them pending trial.

Anyone who has done this job for any period of time is well aware of the fact that it is far easier to fight a case when your client is not behind bars. Keeping someone in jail does nothing more than coerce them into pleading guilty in exchange for being released. Who's more likely to wait for the results of a blood test in a DWI case - the guy who posted bond or the guy sitting in the holdover? The prosecutor is more than willing to offer time served (or a few days in jail) to the guy who can't post bond on the theft case while the defendant sitting out in the courtroom has the time to challenge the allegations.

PR bonds would lead to fewer first setting pleas as there would be fewer members on the chain gang to be pled out without bothering to investigate the facts. They would also present a challenge to the bondsmen in Harris County who depend on the judges blindly following the bond schedule to make their living.

Robb Fickman has had enough. Mr. Fickman is on a fast to bring attention to the problem. While the vehicle for his protest may be extreme, his argument is just and right. It is high time to bring an end to "coercion by bond" in Harris County. It is time we all remember that the only presumption we are allowed to make in the criminal courthouse is that the defendant is innocent.

From The "Meaning" of America...
For years, I have observed the chain of orange jump suits come into our courts.  I watch people pleading guilty, not long after they have met their appointed counsel. The lawyers who plead multiple clients guilty an hour after they met them, are not truly functioning as defense lawyers. A defense lawyer is duty bound to investigate the law and the facts. Those lawyers who plead multiple clients guilty, not long after meeting said clients, cannot possibly have done an adequate job of investigating the law or the facts. A lawyer who is appointed to represent 6 clients at 9AM, does not have sufficient time to investigate the law and facts for those 6 clients between 9AM and 11AM. Yet we routinely see lawyers who were appointed at 9AM, pleading 6 clients guilty at 11AM.  Doing the math, that affords the lawyer no more than 20 minutes tops to work on each client’s case. I suspect if it were our loved one, we would all expect a lawyer to spend more than 20 minutes on our loved one’s case before making even an initial recommendation. 
There is no time for these lawyers to interview the client in any meaningful way, interview prospective defense witnesses, investigate potential defenses, investigate the state’s case, or investigate relevant legal issues. That cannot be done in 20 minutes.  I refer to this system as the “Harris County Plea Mill”. I am not picking on Harris County, I am aware similar bad systems exist elsewhere. (Nor am I picking on all lawyers who do court appointed work in the county courts. We have some lawyers who, despite the system, do their very best to provide effective assistance. These lawyers are more the exception than the rule.) 
I believe the inherently unfair “Plea Mill” stems largely from the incarceration of the accused. The accused remain in jail because they have not been able to hire a bondsman and because your courts will not give them personal recognizance bonds. Logic dictates that people prefer liberty over incarceration.
So, while you're enjoying your turkey, ham or whatever other food is on your table today, give a brief thought to the sacrifice that Robb Fickman is making to bring attention to a problem that happens to "those other people." Criminal defendants aren't anyone's favorite constituency. No one wants to be seen by the voters as "soft on crime." But those folks sitting in jail because they can't post bond are our friends, our neighbors, our co-workers and, sometimes, our family members.

Keep up the good fight, Robb.

Wednesday, November 27, 2013

Book review: League of Denial

As we prepare to sit down for a day of food and football (I will be in Austin tonight for the Longhorns' tilt against Texas Tech), it feels like an appropriate time to talk about the NFL's effort to cover up the fact that football causes brain damage.

In their book A League of Denial: The NFL, Concussions and the Battle for Truth, brothers Mark Fainaru-Wada and Steve Fainaru peel back the onion and examine just what the NFL knew about concussions, when they knew it and what they did with the knowledge.

The centerpiece of the story is famed Pittsburgh Steeler center Mike Webster. Iron Mike, as he was known, was a beast on the field. To make up for his size he used his head as a weapon. For some 14 years, Webster pounded his head into other players - and had his head pounded by other players. Once he could no longer play the game due to a long list of lingering injuries and health issues, he was cast aside and forgotten.

His is a familiar tale in the world of professional football where the average career lasts less than four years. And that number is very significant. Most rookie contracts come up for renewal after four years - that's when a team has to decide whether to pay the player more money or cut him loose and replace him with the latest piece of meat taken in the draft. Cutting a player with four years or less of service also means he isn't covered by the league's health plan.

Mike Webster would likely have been forgotten to most football fans had he not died a shell of himself. In the years after he retired, Mr. Webster was both homeless and in need of mental health treatment. After his death a pathologist in Pittsburgh, Dr. Bennet Omalu, peformed an autopsy and discovered Mr. Webster had suffered brain damage -- much as boxers have at the ends of their careers.

The league denied there was any link between Mr. Webster's brain injury and football. Ironically enough, the NFL's disability board had already determined there was a link and awarded Mr. Webster compensation for his injuries.

From there the league did its best to cover up the truth, lest they be found liable for not warning players of the risks they faced playing football. The book details the attempts by the NFL's Mild Traumatic Brain Injury Committee to hide the truth and provide cover for the league. The book also details competing teams of scientists (and publicity hounds) to expose the truth.

The authors are reporters for ESPN and their employers teamed up with PBS's Frontline to produce a two-part episode of the investigative show about the crisis in football. Shortly before the documentary was to air, ESPN severed its ties with the show. The most likely explanation is fear of reprisal from a league that provides much of ESPN's programming.

Just prior to the start of the 2013 NFL season, the league announced it had settled a case with former players who alleged the league knew about the risk of brain damage and mislead the players by not disclosing what it knew. The league agreed to pay the former players $765 million in compensation. The settlement not only settled the league's liability to the players, it also prevented the plaintiffs from putting NFL executives on the stand and questioning them about what they knew and when they knew it.

But, as in many issues between players and the league, the league got the better of the deal. The NFL is awash in cash and the money they will pay out for the settlement will be but a drop in the bucket compared to the money the league rakes in from its contracts with broadcasters.

The league has long gotten its way with the players and the players' union, the NFLPA, is (next to the NHL players' union) the most ineffective player union in sports. For far too long the NFLPA has been the lapdog of the league - which explains why NFL contracts are not guaranteed and why former players are left out on the street to fend for themselves. The ugly truth is that the players in the NFL are nothing more than meat to the owners and the league - once they are no longer useful they will be discarded and forgotten about.

While I am very critical of the NFLPA and the way it has sold out the players' interests, NFL-flacks such as Mike Florio are way off-base when they try to blame the union as much as the league on the brain damage issue. Yes, the union stuck its head in the sand and went along with league denials about the link between football and brain damage - but the difference is that the league had the data and the doctors and they put out misleading propaganda disguised as research to cover its ass.

Tuesday, November 26, 2013

Another useless conference

Last week marked the end of the 19th annual UN conference on climate change (referred to in bureaucratic UN-speak as the Congress of Parties) in Warsaw, Poland. As is par for the course there were no binding agreements hammered out and no decisive actions other than proclaiming that in two year's time in Paris the parties will reach an agreement about trying to reverse climate change. Of course that raises the question of why there's going to be another annual conference next fall if no one's going to agree to anything. But...

The biggest issue of contention is the idea that the developed world either needs to pay for, or provide sources of funding for, projects in the developing world that will allow continued development without increasing carbon emissions. The nations in the developing world like the idea because they would like to raise their living standards but new technologies - while beneficial to the planet - tend to be a bit more expensive than yesterday's "dirty energy" solutions. The governments in the developed world don't like the idea because, well, because it's the poorer nations' faults for being so poor and they just need to figure out how to carry out these changes.

Of course the developed world's point of view isn't put across so bluntly, but the fact remains the advanced capitalist countries and the (crypto-fascist) Chinese have fucked this planet up to an unimaginable degree but, since we can't put a price tag on clean air, clean water and the climate, we're not about to do a damn thing about it. It's the nature of capitalism, folks. If you can't monetize it - it just doesn't exist to be analyzed.

Since no one owns the air above us we have pumped tons and tons of hazardous materials into the sky without giving a second thought to the consequences. And because industry operated for decades on the model that you might as well pollute because it doesn't cost anything to do so, the governments that serve as bag men for the industrialists are downright hostile to any scheme that would cost their biggest campaign contributors a penny for their past sins.

In the meantime every new initiative aimed at fixing the mess we've made of the planet puts the burden on the developing world to keep their emissions down to a level that all but insures the largest corporations of cheap pools of labor for years into the future.

The simple fact of the matter is that we, through our consumption and way of life, have done far more harm to the environment than can be quantified. If we were forced to pay the true cost of environment degradation in the products we purchase, our lifestyles would change in a hurry. Yet our leaders aren't willing to concede that the decisions that have been made in Washington and western Europe have put the developing world in a can't-win position.

Until a plan is developed that takes into account the harm we have done to the planet and creates a mechanism by which the developing world has access to money (cash, not debt obligations) to raise their citizens' standards of living in an ecologically friendly manner, these conferences are a waste of everyone's time and money.

Monday, November 25, 2013

288 and counting...

The Houston Police Department is on a 288-0 win streak. There have been 288 officer shootings without a single indictment since Arthur Charbonneau shot an unarmed teenager to death in a closet back in 2004.

From 2008 to 2012 there were over a hundred officer shootings - and a quarter of the civilians fired at were unarmed. The victims of the Houston Police Department include a double-amputee in a wheelchair and a Navy veteran suffering from a mental illness.

Making matters worse for the citizenry is the lack of dashboard cameras in the vast majority of HPD patrol cars. The lack of cameras means that there is almost never a video record of a police shooting in Houston.

Police Chief Charles McClelland has defended his officers going so far as to say that deadly force is justified even if the suspect is unarmed. During the five year period investigated by The Houston Chronicle, the department found only one of 636 officer shootings (including shooting animals and unintentional firings) was not justified.

Yes, officers are faced with making split-second decisions about how to handle a particular suspect. But the same laws that govern our behavior are, at least in theory, the same laws that govern police officers. A police officer's job is to protect and defend the citizens of their city - not to declare war on part of the population. While it is not justified for a citizen to walk down the street and shoot at someone else just because he thinks that other person might be carrying a weapon, police officers in Houston seem to have carte blanche to do just that.

The matter isn't helped by the callous attitude of the Harris County District Attorney's Office when it comes to police shootings. The attitude of prosecutors is that the police wear white hats while everyone else wears a black (or grey) hat. While prosecutors will always refer to complaining witnesses as "my victim," when a civilian is on the wrong side of a police shooting the focus turns to "my officer."

If the targets of police shootings weren't overwhelmingly black, brown or poor maybe there's be a different attitude on the part of prosecutors and the public. If the victims of police shootings lived in better neighborhoods and looked more like judges and prosecutors, maybe the attitude would change.

Friday, November 22, 2013

Open mouth. Insert foot.

And while we're on the topic of poisoning the jury pool, Jerry Ray, a visiting district judge in Travis County, takes the grand prize.

After a Travis County jury found David Tran not guilty of driving while intoxicated - and disregarding a .10 breath test in the process - Judge Ray took it upon himself to berate the jurors. And, just to make it that much more special, he did it in open court on the record.

From Texas Lawyer we have this account of Judge Ray's rant:
You know, and I've been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did," Ray told the jury, according to a transcript printed on Nov. 11. "The note that you sent out says, 'Can we ignore the Intoxilyzer.' And you have the definitions of intoxication . ... "

Ray went on to accuse the jury of engaging in "jury nullification," according to the transcript.

"And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It's called jury nullification. It's when a jury decides to ignore the law or ignore evidence. And they maneuver until they get there. Perfect example, the O.J. Simpson trial. ... "

"I've been around for over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I've ever seen," Ray said, according to the transcript. "Thank you for your service and you are excused."
Keep in mind that we're talking about a .10 breath test - a test score that is barely higher than the legal limit of .08. Judge Ray apparently forgot the instructions he read to the jury just before he sent them off to deliberate.

He told the jury that they were the exclusive judges of the evidence presented and that they were the ones to decide how much weight to give any one piece of evidence. They were instructed that it was up to them to determine the credibility of the witnesses and the evidence (and that includes the test slip).

What those jurors did was not jury nullification. What they did was their duty under the law. I can almost guarantee you that the prosecutor told the jury panel during voir dire that he or she could prove up intoxication in one of three ways - loss of normal use of mental or physical faculties or a blood alcohol concentration of .08 or higher. In Harris County, prosecutors also like to tell the jurors that they don't even have to agree on the theory of intoxication.

That breath test score is close enough to the legal limit that it can be attacked in a variety of ways. You can attack the accuracy of the machine. You can attack the assumptions the programmers of the machine made. You can argue tolerances and margins of error. You can even throw in that the machine isn't warranted for breath testing.

Judge Ray may not have liked the verdict - but so fucking what?! His job is only to preside over the trial and ensure that the defendant's right to a fair trial isn't violated. If the defendant wanted Judge Ray to decide the case he would have asked for a bench trial.

But the bigger problem is the message Judge Ray is sending out to the community. His actions only serve to poison the jury pool in the future. A juror's only job is to listen to the evidence, follow the law and render a verdict. It isn't a juror's job to convict or to acquit. Once that verdict is entered, the jurors have done their job and they sure as hell don't deserve to be berated in public by the person sitting on the bench who is supposed to be a neutral arbiter.

And maybe that's why most judges prefer to go back into the jury room and talk with the jurors after the trial. That way there isn't a record of them poisoning the panel.

Perhaps Judge Ray should review the judicial canons of conduct before he next steps to the bench.

Thursday, November 21, 2013

Out of the mouths of prosecutors

On Tuesday afternoon up in Montgomery County (for those of y'all not familiar with the place - it's just north of Houston), Verna McClain, a nurse, pled guilty to killing a mother in a doctor's parking lot and taking her baby. Ms. McClain was facing the death penalty, but the deal brokered by her attorney, Tyrone Moncriffe, will see her spend the rest of her life in prison instead.

But that's not the story.

The story is what Montgomery County District Attorney Brett Ligon told the media afterward.

Here is a clip from the article in yesterday's Houston Chronicle:
Although McClain will not have an executioner end her life with a lethal drug, she will "wither and die" in prison, and her victim's famly can have the certainty that the verdict will never get overturned on a technicality or appeal, Ligon said. 
"The victim's family also got to hear what few in their place do, an admission of guilt," he added. 
"No games were played in the courtroom. There was no hiding behind insanity defenses." 
While McClain had no prior criminal record, not even a parking ticket, Ligon believes she is all the more dangerous because nobody can predict what she might be capable of doing at any instant.
Of course, as has been pointed out in this space many times before, what the prosecutor refers to as a technicality is a constitutional protection. Yes, it can get messy sometimes trying to gather evidence and present it in court with that pesky little Bill of Rights nipping at your heels. But that's the point, isn't it?

The Founding Fathers had a profound fear of someone being wrongfully convicted. They also had a profound fear of allowing the government too much power to intrude into our private lives.

When we allow the government to refer to a constitutional protection as a "technicality" without calling them on it, we make it easier for the courts to cast those protections aside.

Mr. Ligon would like for us to believe that the insanity defense is a great tool for folks accused of murder to walk away from any responsibility. The truth is that the insanity defense in Texas is a very narrow defense that is rarely invoked by a defendant. In order to prevail on an insanity defense, the defendant must show that due to a mental defect he was unable to determine right from wrong at the time of the alleged offense.

While it is my understanding that Ms. McClain's attorneys thought about putting on an insanity defense, they were unable to do so because there was no evidence that Ms. McClain suffered from any mental defect.

I would propose that, as our understanding of the brain increases, that we revisit the insanity defense in Texas. If a defendant can prove up a mental defect should it even matter if he was able to distinguish right from wrong? I have seen folks with brain tumors do things they would never have imagined doing before - they knew it was "wrong," but they had no ability to control the impulse due to the effects of the tumor in their brain.

As to the question of whether Ms. McClain would be a threat in the future, Mr. Ligon's argument that an absence of a criminal record makes her more dangerous is beyond absurd. The absence of a criminal history makes it all the more likely that what happened that day in the parking lot was an outlier. If we are going to allow prosecutors to argue that a person should be considered a danger to society because their behavior was unpredictable, then we might as well tear up the special questions a jury must answer in a capital case once they find the defendant guilty.

What makes Mr. Ligon's comments all the more distressing is the fact that he was a member of the defense bar prior to becoming the DA in Montgomery County. He knows what he's spewing is horseshit but he doesn't care because his only goal is to poison as many jury pools as possible. Mr. Ligon might want to take a look at the disciplinary rules in Texas - his job is not to win cases but to see that justice is done.

Wednesday, November 20, 2013

Federal judge halts Missouri execution (but SCOTUS gives the green light)

James Franklin killed a man and wounded two others outside a synagogue in Missouri in 1977. He was sentenced to die.

The State of Missouri is one of several states who have run into problems with their lethal injection protocols as a result of restrictions placed on the use of certain drugs by their manufacturers. Missouri had been using pentobarbital as part of its lethal drug cocktail until the maker of the drug stopped selling it to states for use in executing inmates.

Yesterday, just hours before Mr. Franklin was scheduled to die, US District Judge Nanette Laughrey granted his request for a stay based upon the lack of scientific evidence that the drugs the state intended to use would work properly.

Missouri is one of several states that have turned to compounding pharmacies to make the drugs used in executions in the absence of a market for such drugs. Judge Laughrey ruled that the state had failed to prove that the use of the drug obtained from the compounding pharmacy wouldn't cause undue pain to Mr. Franklin during the execution.

Yes, there is a certain amount of absurdity in the notion that an execution protocol is unconstitutional if it causes the inmate undue pain. But the fact that a federal judge granted a stay of execution to an alleged racist serial killer is a sign that at least on judge is concentrating on the process of killing an inmate and not the result.

Mr. Franklin isn't a kind person. He isn't the kind of person you want living next door. He has been convicted of a heinous crime. But, whether you want to think about it or not, he is a citizen of these United States and is entitled to the protections of the Eighth Amendment.

I applaud Judge Laughrey for her conviction in staying Mr. Franklin's execution. I commend her for deciding that the protections afforded us under the Constitution are more important that looking tough on crime.

Ultimately we are judged on how we treat the lowest members of our society. As reprehensible as Mr. Franklin is, he is a member of our society and he is entitled to a modicum of respect. The drugs that Missouri sought to use to kill Mr. Franklin were never tested by the government to ensure they did what they were supposed to to do. Mr. Franklin is, regardless of how you may feel about what he did, a human being - not a lab rat.

There is nothing sympathetic about Mr. Franklin's plight. There is no one who feels sorry for him. Judge Laughrey made an unpopular decision. But she made the right decision.

States who wish to murder their inmates are scrambling for ways to do it. Governors and legislators know that there isn't a constituency for convicted murderers. They know that a good number of folks couldn't care less about whether an inmate suffers in the final minutes of his life.

And that's why what Judge Nanette Laughrey did is so important.


Mr. Franklin was executed earlier this morning after the US Supreme Court lifted a stay and said it was perfectly acceptable for a state to use an inmate as a guinea pig. The nation's highest court apparently wasn't nearly as concerned with the process than they were with the outcome. Given the history of Fourth Amendment jurisprudence, this shouldn't come as a surprise.

Tuesday, November 19, 2013

To the point

150 years ago today, Abraham Lincoln delivered one of the most famous speeches ever given by a president. The speech was short - it lasted all of two minutes. But in those two minutes, President Lincoln summed up the sacrifices made by those who died on the battlefield in July 1863.
According to Wikipedia, this is one of only two
photographs of Lincoln at Gettysburg on 11/19/1863.

If you haven't read the Gettysburg Address since you were in high school, take a moment of two to read it and think about what Lincoln was saying. Reflect upon the timelessness of the message.
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. 
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. 
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth. 
- Abraham Lincoln, "Gettysburg Address" (Nov. 19, 1863)
Maybe the speech is so powerful because of the economy of words. Sometimes, you see, less can be more. Great oration doesn't mean long oration. We can all take a lesson from Lincoln, sometimes when we strip a speech (or writing) to its very essence, we enhance not only its meaning but its effectiveness.

While he pays homage to those who died, Lincoln also challenges the rest of us - those who lived during the Civil War, and those generations that came later - to ensure that our representative democracy survived. At the time Lincoln gave his speech there were still millions held in slavery. At the time of the speech, neither free blacks nor women had the right to vote.

Since that time the word people has taken on new meanings - and it will continue to take on new meanings into the future. The road has not always been easy and the course has not always been straight, but as we expand the meaning of the word people we get closer to that government of, by and for the people that Lincoln spoke so reverently of.

Monday, November 18, 2013

Feeding at the trough

Boeing is a hugely profitable company. Between them and the European consortium, Airbus, they control most of the market for commercial airplanes. Boeing also does a brisk business as a defense contractor.

But sometimes making money hand over fist isn't enough. Last week the union of Boeing machinists rejected a contract offer that would end their traditional pension plan (and replace it with a 401k) and increase health care costs. As a sweetener, Boeing offered workers a $10,000 bonus if they approved the contract.

Union members voted overwhelmingly to reject the contract offer on the grounds that the new contract would represent serious givebacks to the company. The changes in the company's pension plan are the most insidious. For decades employers assumed the risk on pensions - guaranteeing payouts to their former employees. Back in the 1980's and 1990's employers looked at the piles of cash that were being held to pay these pension obligations and found another way to extract money from the wallets of their employees. The 401(k) was born. Now, instead of the employer assuming the risk to funding the pension fund down the road, the employees are forced to assume the risk of the vagaries of the market. Meanwhile, corporate executives and their shareholders get their rocks off looking at the growing bottom line.

Boeing officials immediately announced that, as a result of the vote, they might have to look elsewhere for a location to manufacture their latest plane. Political "leaders" in Washington then decided to try to rush a vote through the state legislature offering $8.7 billion in tax breaks to the company.

This is on top of a package of tax breaks the state handed over to the company in 2003. For corporations, government largesse is like crack. They keep on coming back for more and more and more.

This is free enterprise at work here in these United States. There is a race to the bottom as companies seek to find locales that will offer up the cheapest labor and the biggest package of tax breaks so they can squeeze out even larger profits. And states and municipalities are only too eager to play the game - never once stopping to think that they may be on the wrong end of the equation some day.

In the meantime, taxpayers are asked to subsidize these bastions of modern-day capitalism while students, the elderly and the poor are asked to make do with less.

It's a nice little irony that those on the right are quick to criticize any government program that's purpose is to assist those in need, but they have no compunction about ponying up billions of dollars to satisfy the greed of corporate executives and their shareholders.