Thursday, January 31, 2013

Judge tells state to just test the damn DNA

Jeff Gamso has been fighting the good fight for longer than I'm sure he cares to remember. As a blogger, his work is "can't miss" reading. And his calls to just test the damn DNA are loud and clear.

On Wednesday in Montgomery County, of all places, a newly elected judge, Kelly Case, told the state to just test the damn DNA in Larry Swearingen's case. Mr. Swearingen was scheduled to be murdered by the state of Texas on February 27.

Now that proposed execution date has been pushed back to allow DNA testing on evidence found near the crime scene. A motion to test the evidence, based on a 2011 statute, was filed by Barry Scheck and The Innocence Project.

Judge Case has given both the state and Mr. Swearingen 60 days to file responses to Mr. Scheck's motion.

Ironically enough, it was Judge Case's predecessor, Fred Edwards, who denied Mr. Swearingen's motion for new trial late last year. Mr. Swearingen's attorneys had filed a motion for new trial based upon newly discovered evidence regarding decomposition science. Mr. Edwards ruled that decomposition science was a novel scientific theory and needed to be proven reliable in a pretrial hearing before he would consider it.

And that's where the irony comes in. As anyone who has tried a criminal case can attest, the general rule regarding scientific evidence in criminal trials is if it benefits the state, it's in; but, if it benefits the defense, it's out. Judges have had no problem allowing junk science into evidence when it's offered by the state - just take a look at the Cameron Willingham case.

Bite mark evidence, bullet composition evidence, tire mark evidence, "scent" lineups, psycho-babble about someone being a future danger to society. The list goes on. It's all been allowed in in the past because it helped the state obtain convictions. But, when the shoe is on the other foot and it's the state's ox that might get gored - then the judges slam on the brakes.

What happened in Conroe should be the rule, not the exception. If we're talking about taking the life of another person then we better be damn sure it's the right person. If there is DNA evidence that can be tested to determine if the person sentenced to die really did the crime - it should be tested. The stakes are too high to let the state play games. Either you got the right person, or you didn't.

I understand the fears of the state. We like to pretend that our criminal (in)justice system is fair and that it works. The truth, of course, is that it isn't and it doesn't. But to allow the public to look behind the curtain and see an innocent man released from death row shakes the public's confidence in our system to its core. And the fact that the process may have been fair but the result was a miscarriage of justice is cold comfort to those affected by an wrongful conviction and imprisonment.

Wednesday, January 30, 2013

Update: Foiled again

So close, Rick. So close.

Rick Perry and his hypocritical band of limited government preachers were foiled in their attempt to exercise the most invasive power the government has - the power to take a life.

Yesterday afternoon, State District Judge Larry Mitchell granted Kimberly McCarthy a reprieve from her date with the executioner until April 3, 2013. Ms. McCarthy's attorneys argued that they needed more time to prepare an appeal of Ms. McCarthy's death sentence on the grounds that blacks and other minorities were improperly excluded from the jury that sentenced her to die at the hands of the state.

The Dallas County District Attorney, Craig Watkins, reversed course and dropped his opposition to Ms. McCarthy's motion to reschedule. Mr. Watkins said he thought the delay was "appropriate."

The question to ask is on what basis would an appellate court decide whether the racial makeup of a jury led to the death penalty being imposed when it wasn't warranted. Will a court look at the makeup of Ms. McCarthy's jury and the pool from which it was withdrawn and then require Ms. McCarthy to provide proof that the makeup of the jury led to her being condemned? Or will a court look at the makeup of the jury and the county at large and at how many times overwhelmingly white juries have sentenced black defendants to death? Will a court permit Ms. McCarthy to present evidence of the disproportionate number of black defendants to be sentenced to death or will that court look specifically at Ms. McCarthy's case?

There can be no doubt that the death penalty is handed out disproportionately to minority defendants as opposed to white defendants. There is also compelling evidence that the death penalty is meted out more often when the victim is white.

Either way, today Ms. McCarthy is still alive - and that's a victory in itself.

Lawprof misses the boat on coercive plea bargaining

Pepperdine University Law School prof Harry M. Caldwell proclaims in a recently published law review article (click on this link and then click on "download") that coercive plea bargaining is the scourge of the criminal justice system.

He decries prosecutors overcharging defendants both horizontally and vertically in order to gain leverage at the bargaining table. In his view of the trenches from the ivory tower he sees that as the worst excess of our criminal (in)justice system.

Prof. Caldwell uses a game theory analysis to take us step-by-step through the bargaining process. He portrays the bargaining process as one in which both sides attempt to guess how the other side will receive their offer or demand. Well, I've got news for Mr. Caldwell, defendants don't really spend too much time worrying about how the prosecutor will react to their offer to plead that day in exchange for time served or a reduced charge.

Mr. Caldwell assumes that all players in the game act as rational beings. That baseless assumption shapes the foundation of his theory. Defendants don't think in stark cost-benefit terms when trying to decide what to do on their cases. They are more concerned with getting out of jail, getting back to work and sleeping in their own beds.

And more than overcharging, it's the deprivation of those needs that creates the coercive effect of plea bargains. If he spent any time in the trenches, Mr. Caldwell would know that the most coercive device in our criminal (in)justice system is bail. If a defendant can't post bail, he isn't going anywhere until his case is resolved. He knows it. The defense attorney knows it. And, most importantly, the prosecutor and judge know it.

Prosecutors wave that get out of jail card at defendants in the holdover every morning. They do it because they know they're going to get bites. They know that some of those folks in the holdover tank will take the offer just so they can get out of jail and back to a life of normalcy.

There's no overcharging involved in those cases. The prosecutor holds the key to the cell and everyone in the room knows it. Judges routinely ignore the law and approve bonds based on a "bond schedule" that doesn't take into account the the purpose of bail is to ensure the appearance of the defendant in court.

The courts are supposed to take into account the defendant's ability to pay when setting bond - but that is rarely a consideration. It's much easier to clear cases off the docket when the defendants are sitting behind bars.

I hate to burst Mr. Caldwell's bubble, but giving a statewide office the authority to review charging decisions by local prosecutors won't do a damn thing to prevent coercive plea bargaining. You're living in a dream world if you think an official elected statewide is going to come down on local prosecutors because they overcharged a guy on a dope or assault case.

The antidote to coercive plea bargaining is to reform the bail and pretrial release systems. We hold far too many defendants behind bars than we need to. If we're going to use bond schedules, they should just be advisory - judges need to take into account the ability of a defendant to post bond. A person sitting in a jail cell will be more likely to accept a deal for a reduced charge for a crime he didn't commit than is a person sitting out in the gallery answering the docket.

H/T CrimProfBlog

Tuesday, January 29, 2013

On Johnny Cash and prison reform

I am linking to an article on the BBC News website about Johnny Cash and prison reform. Mr. Cash took up the cause of prisoners during the mid-60's with a series of concerts at penitentiaries across the country. His long held belief was that rehabilitation was more important than punishment and that it made no sense to keep prisoners who had been rehabilitated behind bars.

The article is also a reminder of what kind of hell prisons were back in the 1960's. The article talks about the penitentiary in Cummins, Arkansas - but it could have been the Louisiana penitentiary in Angola, the Mississippi penitentiary in Parchman or Huntsville prison in Texas.

Today, almost 50 years later, we're still debating how to run our prisons. Maybe it's time we start with deciding just what prison is for. We might also consider whether or not some of the numbers prosecutors and courts throw around really make sense. We should also think about the way enhancements are used. Is punishing a misdemeanor offense as if it were a felony just because the defendant had a couple of prior convictions a good idea?

It's more than just a bit ironic that it's the conservatives in the South who are debating whether or not we've gone too far in trying to make everything a crime and in looking for ways to lock folks up longer. While their motive is primarily financial, the fact that it's now up for debate in the reddest of the red states is significant.

The article also gives me another excuse for a clip from the Man in Black himself...

Monday, January 28, 2013

Blowing the whistle

Former CIA agent John Kiriakou will spend the next 30 months in a federal prison for revealing the name of a former officer who tortured detainees.

He was found out when the attorney for a suspected terrorist filed a legal brief that mentioned facts that had not been revealed by the government. One thing led to another and someone made the connection between the suspect's attorney, a reporter and Mr. Kiriakou.

This entire episode of suppression theater brings up a very serious question, however. Why didn't the government reveal that it had tortured the detainee on multiple occasions? It is not only absurd, but a blatant abuse of power for the government to torture a suspect in order to obtain evidence and not disclose that either to the court or to the defense.

Mr. Kiriakou is a whistleblower. He exposed gross human rights abuses and violations of international law. He provided the name of an officer who committed those offenses. And yet he's the one prosecuted under a statute that hadn't been used to prosecute anyone in 27 years. He's the one who will be going to prison.

The judge, Leonie Brinkema, who presides over the Eastern District of Virginia, was only too happy to serve her masters up the road in Washington. She rejected the argument that Mr. Kiriakou was a whistleblower and entitled to the protections afforded to whistleblowers under the law.

That ruling shouldn't have come as a surprise. One thing the Obama Administration has not compromised on over the past four years is its aggressive prosecution of people who expose the lies and criminal conduct rampant in the War on Everything Terrorism.

Men like John Kiriakou and Bradley Manning shouldn't be prosecuted. They should be lauded for exposing the lies and hypocrisies of our government. They should be praised for bringing to light the gross violations of international law and human rights that have taken places at US prisons around the world.

Once upon a time it was the role of the media to act as a check on the government. Reporters snooped and dug and found out the truth and reported it. But somewhere along the line reporters and news organizations became more interested in having a seat at the table with the glamorous people and they began to shirk their duties and responsibilities.

And while Mr. Kiriakou sits in prison and Mr. Manning awaits trial, everyone turns a blind eye to the fact that the CIA assisted the producers of Zero Dark Thirty in bringing that shiny piece of propaganda to the big screen. The CIA had no problem leaking confidential information to the producers since the movie was going to glorify the role of the CIA in an illegal mission in a country with whom we are at peace.

Mr. Kiriakou and Mr. Manning are prosecuted because their actions embarrassed the government. But it's okay for the CIA to leak information that makes the government look good.

Execution Watch - 1/29/13

And the killing machine just keeps running...


KIMBERLY MCCARTHY. Sentenced to die for the 1997 stabbing-bludgeoning death of an elderly woman during a home robbery outside Dallas, Ms. McCarthy, 51, is one of ten women on Texas death row. When her death date was announced on September 12, she was the only one with a scheduled execution. Since Texas resumed carrying out capital punishment in 1982, only three of the nearly 500 people murdered by the State of Texas have been women.

For more information on Ms. McCarthy, click here.

Unless a stay is issued, we'll broadcast ...Tuesday, January 29, 2012, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: > Listen

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

Sunday, January 27, 2013

Irish county votes to allow elderly residents to drink more

County Kerry is in the southwest of Ireland. The rural county on the Irish coast is known for its mountains and winding roads.

And now it's known because local councillors voted to allow the local police to write permits to allow some residents to exceed the per se alcohol concentration limits without being arrested for driving while intoxicated (or "drink-driving" as they call it in England).

According to supporters of the measure, there are plenty of elderly residents in the county who live alone and don't have access to public transportation. The permits would allow them to go out, have a good time, knock down a few pints and drive home without worrying about being pulled over.

I'm sure it's just a coincidence that most of the councillors who voted for the measure are also pub owners.
"I see the merit in having a stricter rule of law for when there's a massive volume of traffic and where there's busy roads with massive speed. But on the roads I'm talking about, you couldn't do any more than 20 or 30 miles per hour [30-50km/h] and it's not a big deal. I don't see any big issue with it." -- Danny Healy-Rae, local councillor
Just for reference, the legal limit in England is .08, the same as in the United States, but the limit in Ireland was reduced to .05.

I'm not certain how good an idea this is, however. Somehow the combination of older motorists, alcohol and winding country roads doesn't strike me as the best.

But the debate does bring out one very salient point that Grits for Breakfast pointed out last week - when there isn't adequate public transportation, the number of DWI arrests tend to be higher than in areas with public transportation. That's a problem in rural County Kerry and here in Houston.

Per se limits are also a problem. We have assigned a number to determine whether someone was driving drunk without consideration as to how that concentration affected that particular individual.

While I don't know if the new measure in County Kerry is necessarily a good idea, the very fact that someone is looking at a DWI statute in a different way is a good sign. Maybe it's time we take a second look at our drunk driving statute in Texas. Maybe it's time we started treating DWI's like any other misdemeanor.

Saturday, January 26, 2013

Lowest common denominator

Rizana Nafeek was a 17-year-old from Sri Lanka who took a job as a nanny in Saudi Arabia back in 2005. Shortly after she took the job, the four-month-old child she was in charge of watching was found dead. Ms. Nafeek was accused of killing the baby.

While in custody she confessed to the crime. After she was convicted, Ms. Nafeek claimed that she was coerced into confessing and that she was denied the assistance of counsel. As a result of the conviction, Ms. Nafeek was sentenced to death.

Despite protestations from Ms. Nafeek's parents and from the Sri Lankan government, the Saudis carried out the beheading of Ms. Nafeek earlier this month. Her hands were tied behind her back. She was forced to kneel over a block. Her head was cut off with a sword.

The death of Ms. Nafeek didn't bring back the dead child. The hole in the parents' lives didn't just disappear. Now another family has lost their child. And they lost her to a system with no accountability.

Another family is also set to lose a loved one. This time it's not a daughter, it's a grandmother. Lindsay Sandiford, a 56-year-old grandmother from Great Britain, has been sentenced to death by firing squad for trying to smuggle over 10 pounds of cocaine into Indonesia.

Ms. Sandiford was allegedly part of a smuggling ring. Two other members of the alleged ring have been sentenced to short prison sentences and a third is currently on trial.

Now whatever your position is on the death penalty, I would hope we could at least agree that there is no crime short of murder for which death should even be an option. Imposing a death sentence for bringing a large quantity of dope into the country is more than a bit excessive.

But then Indonesia is a Muslim nation with a history of brutally putting down rebellions over the years - most notably in East Timor. Not that that has ever stopped our government from writing checks like mad to Indonesian dictators.

When Ms. Sandiford is led out to the wall she will have a hood placed over her head. She will be strapped down to a chair. She will have a target placed over her heart. She will die but the drugs will keep flowing.

In Saudi Arabia they executed a woman who was a minor when she allegedly murdered a baby. In Indonesia they will execute a woman for an offense in which no one was injured.

Sure, we can sit around and criticize those nations as being less than civilized. We can point to them and question whether the defendants ever stood a chance in their criminal (in)justice systems. We can then puff our chests out and claim that we're civilized over here. We give a defendant a chance. Our justice system has enough checks and balances to make certain that a condemned prisoner is guilty before strapping him down and killing him.

But then there's Cameron Willingham who was killed by the State of Texas for a crime he didn't commit. Where was the justice?

There's Troy Davis who was killed by the State of Georgia for a murder he most likely didn't commit. Where was the justice?

Saudi Arabia and Indonesia may very well be outliers. But they are outliers on a continuum that includes us. At our core we are no more civilized than those other nations who choose to murder prisoners. Death is death - whether it takes place in an Arabian desert or on a South Pacific island or in the Piney Woods of East Texas.

We're all the lowest common denominator.

Friday, January 25, 2013

So what's Plan B?

Former Harris County District Attorney Pat Lykos angered many in the criminal (in)justice establishment (including my colleague Murray Newman) when she announced that her office would not prosecute felony drug cases when the drugs seized weighed less than .01 grams.

Her decision not to prosecute these so-called "trace cases" was based on her belief that the defense should have the opportunity to have the substance re-tested by an independent lab. If the amount of dope was under .01 grams, there wasn't enough to permit a second test.

She also made the decision to combat overcrowding in the Harris County Jail. Many of these cases had to do with crack cocaine or methamphetamine residue found in a pipe. If the defendant couldn't afford to post bail, he or she would sit in the county jail until their case was resolved.

The policy also took into account the inequity of charging folks with state jail felonies for possessing a less than usable amount of dope.

Well, those days are gone now.

As expected, the new District Attorney, Mike Anderson, announced on Thursday that he was taking Ms. Lykos' policy, wadding it up and tossing it in the trash. No more pussy-footing around. No more coddling these little dopeheads. Nope. That won't cut in in the Anderson administration.

Residue in that pipe? You're going down hard. Felony conviction. Probation if you're lucky.

It makes you wonder just what Mike Anderson has been smoking. People carrying around glass pipes with dope residue aren't peddling crack and crystal. They are addicts. They have a problem. Arresting them and tossing them in jail isn't going to solve it. Treating it as a criminal problem won't solve it. Addiction is a public health issue and needs to be treated as such.

Oh, Mr. Anderson said those folks need treatment and he could see them being placed on probation where they can be monitored.

Well, if you're really concerned about their well-being, Mr. Anderson, you need to throw away the criminal (in)justice model of treating drug addiction and let the medical professionals deal with it. Using the stick of prison to force addicts to eat the carrot of treatment hasn't solved the problem and won't solve it.

State District Judge Michael McSpadden, hardly who you would consider a flaming liberal, thinks it's nuts to prosecute those cases as felonies. You might want to listen to what he has to say, Mr. Anderson. You might learn a thing or two along the way.

Mike Anderson's plan will result in more people being tagged with felony convictions and in a jail that will be busting at the seams. All those new detainees are going to have to be housed someplace and that means more contracts with other counties to house our inmates. Or maybe yet another referendum on building a new jail.

Ms. Lykos may have made some serious missteps in her four years in charge of the DA's Office, but her policy on trace cases was an instance in which she got it right. Now we'll just have to wait and see how long it takes for Mike Anderson to realize that, too.

The numbers don't lie

Thanks to Robb "The Czar" Fickman, a constant pain in the side for the established order in the Harris County criminal (in)justice system, we know the caseloads for every lawyer who accepted a court-appointed case in Harris County in 2011.

We also know how those caseloads compared to the National Advisory Commission's recommended guidelines.

What we see is a pattern of certain attorneys commanding a lion's share of appointed work. Harris County supposedly uses a series of methods to appoint counsel: some courts have contract attorneys, some courts use the Public Defender's Office (not an option in 2011) and other courts use "the wheel." The wheel is supposed to assign attorneys randomly to courts and/or cases.

The numbers revealed, as Mr. Fickman points out, that it's the judges who control the appointment list in Harris County. And, as anyone who has ever practiced criminal law knows, the most important priority for a judge is to move cases off the docket. And those cases don't get moved by taking them to trial and holding the state to its burden of proof. Those cases get moved by pleading them out - one after another.

Those who play the game are rewarded. As Mr. Fickman puts it
The Harris County Criminal Appointment system is controlled by the judges. It is their creation and it is a wretched creation.  Favored lawyers who are known to move cases are given an obscene number of court appointments.  Lawyers who work hard on cases, who do their job are given a much smaller number of cases.  The result is a small group of lawyers, handling an exceedingly large number of cases.  Likewise, the result is a large group of lawyers,  who are competent, are not given enough cases.  This is not a matter of opinion. This is a matter of fact. The fact is demonsrated by the link that I am providing. Look AT IT!! It will show you lawyers that are handling 2, 3 and even 4 times the national recommended number of cases. 
Gerald G. Acosta had the highest caseload in 2011. He received 255 juvenile appointments, 387 misdemeanor appointments and 278 felony appointments. That works out to a total of 920 appointments during one calendar year. If Mr. Acosta worked year-round that means he received just under 18 criminal appointments per week and 3.5 per day.

According to the NAC, that caseload is more than four times the recommended maximum caseload for an attorney. There is no way that anyone can convince me that it is possible for one attorney to provide effective representation to that many clients over the course of one year.

David L. Garza came in a close second with 599 misdemeanor appointments and 295 felony appointments for a total of 894 appointments in 2011. That works out to just a shade over 17 appointments per week and just under 3.5 a day.

His caseload was 3.5 times that recommended by the NAC.

In third place was Ricardo N. Gonzalez who received 44 misdemeanor appointments and 463 felony appointments in 2011 for a total of 507 cases. That would be almost 10 appointments per week and just about two per day.

His caseload was 3.2 times that recommended by the NAC.

Humberto Trejo was number four. Mr. Trejo received 470 misdemeanor appointments and 278 felony appointments for a total of 748 appointments. That comes out to a little over 14 appointments a week and almost three a day.

Mr. Trejo's caseload was three times that recommended by the NAC.

And rounding out the top five is Kerry H. McCracken. Ms. McCracken received 419 felony appointments in 2011 which works out to eight appointments a week and a little over 1.5 per day. Her caseload was 2.8 times that recommended by the NAC.

Given those caseloads, just what do you think the odds are that a case is going to receive a proper investigation? It is physically impossible for an attorney to do the work necessary to defend that many clients in a year. The result is a parade of pleas every day down at 1201 Franklin.

The system is broken beyond repair. The judges cannot be trusted to manage it. They have a built in conflict of interest. The decision who to appoint must be taken out of their hands and placed in the hands of someone who has no interest in who is appointed. As things now stand, if you are poor and cannot afford to post bond, you are more likely to be pressured into pleading than fighting.

So long as the system remains as is, there will be no justice for indigent defendants in Harris County.

Thursday, January 24, 2013

It's called a system for a reason

Almost two weeks ago Aaron Swartz, the creator of RSS (Real Simple Syndication) and an internet visionary took his own life while staring a federal prosecution in the face. There has been much hand-wringing ever since.

Mr. Swartz' family, friends and supporters have portrayed this as a case of an over-reaching prosecutor pressing forward with a case that the alleged victim didn't want to see pursued.

There is much to be said for that proposition. The expression that if you're charged in federal court you need a priest more than an attorney has a bit of truth to it. Sitting in federal court on the wrong side of the "V" is not a place that anyone in their right mind would choose to be.

But this didn't start with Aaron Schwartz.

Of course Mr. Swartz was white. He was rich. He had a dedicated following on the internet. He was a "freedom fighter" in the war for control of the internet. One day Mr. Swartz decided to download as many documents from JSTOR as he could. To facilitate his mission to liberate the scholarly papers he set his laptop up in a closet on the MIT campus and let it do its thing. Apparently he was upset that JSTOR compensated the publishers of the papers and not the authors. He claimed JSTOR was preventing the public from benefiting from the research.

He was charged in Massachusetts for breaking into a building with the intent to commit a felony - a charge that was later dismissed.

Los federales then charged him with computer fraud. He was facing up to 35 years in prison for downloading the articles - even though he had reached a financial settlement with JSTOR. He was offered a plea deal in which he would plead guilty in exchange for six months in prison.

Critics of the prosecution have singled out Carmen Ortiz, the US Attorney in Massachusetts, for overstepping her authority.

Well it wouldn't be the first time a prosecutor when overboard with a case. But in the vast majority of those cases, there is no high-profile defendant. And there's no outcry from the public.

No one except for family members were shedding tears for poor black men charged with possession of crack and facing sentences a hundred times more severe than the middle class white guys charged with possession of the same amount of powder cocaine.

What Mr. Swartz faced was not unusual. It's just that few folks care about what goes on down in the trenches in the criminal courthouse. The media is more concerned about tabloid-style crime stories. Reporters are under pressure to meet deadlines. No one cares about the guys in the holdover who can't afford to post bond. His story isn't sexy. It would also take too much time to do the story properly. So no one reads about it.

It's routine for a prosecutor to charge a defendant with a higher level crime in order to have some bargaining power down the road. Now you can abandon the enhancements or reduce it to a lesser-included to sweeten the pot.

Mr. Swartz' tragic death will shine a spotlight ever briefly on what really goes on in the criminal (in)justice system - but the machine will keep on running long after the next story steals the limelight. You can see it in courtrooms across the country on a daily basis - only you won't know it's even happening if you're sitting on the other side of the bar.

Wednesday, January 23, 2013

Playing telephone tag

When cities and counties across Texas began implementing "No Refusal Weekends," obtaining search warrants to strap down motorists and jab needles in their arms became all the rage. Prosecutors managed to recruit judges to volunteer to sit at the police station and blindly sign carefully parse and review search warrant applications.

But for some that was too much work.

Then, to make it easier to convince judges to violate their oaths to abide by the Constitution (particularly the Fourth Amendment), prosecutors came up with the idea of setting up fax machines in judges' homes so they wouldn't have to muddy their feet with the common folk.

In addition to the fill-in-the-blank and form affidavits everyone kept handy, judges decided that they would be okay with talking to the officer over the phone and having him fax over the affidavit before quickly signing a warrant in a stack on the desk and going back to bed. The only problem was that Article 18.01 of the Texas Code of Criminal Procedure stated that the person applying for the search warrant needed to swear to the facts in the affidavit before the judge who was signing reviewing the warrant.

Six years ago the Texas Court of Criminal Appeals, in Smith v. State, 207 SW3d 787 (Tex.Crim.App. 2006), decided that an affidavit for search warrant purposes was still an affidavit even it it wasn't signed. The thought being that the affiant had taken an oath before the judge and so if he forgot a little detail, such as signing the affidavit, we wouldn't hold it against him. The Court then added
Although the affiant's signature on an affidavit serves as an important memorialization of the officer's act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer's oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid.
Oh, the Court knew there would be further questions down the line about what constituted an affidavit for search warrant purposes. The judges in Austin knew there would have to be some bend in order to prevent the entire process from breaking down. But, keeping true to their beliefs in judicial restraint (when it serves their purposes), the Court said it would be up to the Legislature to determine just how to adapt the requirements to our new digital age.

And that's what makes the Court's decision in Clay v. State, No. PD-0579-12 (Tex.Crim.App. 2013) that much more ironic.

Back in 2008 Sara Clay was stopped for speeding. The officer, having smelled alcohol on Ms. Clay's breath, immediately turned the traffic stop into a DWI investigation. After placing Ms. Clay under arrest, Officer Ortega asked her to blow into the state's breath test machine. When she refused, Officer Ortega filled out a search warrant affidavit and called Hill County Court at Law Judge A. Lee Davis. After their conversation about the stop, Officer Ortega faxed the affidavit to the judge who signed it and sent it back. The end result was a needle being jabbed into Ms. Clay's arm.

Remembering the Court's admonition that they needed to be flexible but that it was ultimately up to the legislature to determine what actually constituted an affidavit, Ms. Clay argued that the warrant in her case was invalid because Officer Ortega wasn't properly sworn when making his affidavit. The state, of course, argued that we must be flexible.

Of course the Court of Criminal Appeals decided that its desire for flexibility was more important than their supposed love of judicial restraint. After all, if the Court were to leave it to the legislature to make the law they'd have to let a drunk driver off the hook - and we certainly can't have that, can we?

Of note is the odd comment the Court made when defending its decision to allow an affiant to "present" his affidavit by phone -
In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility."
Yep, no one ever lies to someone they're familiar with, do they?

Interestingly enough, one of the factors the Court cites in its decision to allow one to be sworn over the telephone is the fact that los federales can do it. It's more than mildly ironic that in a state where our elected officials decry every regulation that comes down from Washington that our highest court would readily embrace how the feds do things when it suits their purposes.

The Bill of Rights is supposed to be the minimum guarantee of our rights. There is nothing to prevent the states from affording their citizens greater protections than the Constitution. But why let that get in the way of strapping down motorists and jabbing needles in their arms?

Tuesday, January 22, 2013

Judge holds prosecution to its burden in Manning court-martial

Col. Denise Lind, the judge presiding over Bradley Manning's court-martial has shown that she's not blindly following the Army's playbook. After granting Mr. Manning a few extra days credit for being tortured, Col. Lind issued a ruling that makes it just that much harder for the prosecution to prove the most serious charges in the case.

Pfc. Manning has been accused of aiding the enemy by leaking documents to Wikileaks. According to prosecutors, Osama bin Laden made requests for the information on Wikileaks. That, per the Army's logic, is more than enough to line Pfc. Manning up before a firing squad.

But in a ruling last Wednesday, Col. Lind granted the defense request that prosecutors must prove that Pfc. Manning was aware he was providing information to the enemy when he leaked the documents in question.

The ruling means that prosecutors argued that they shouldn't have to prove Pfc. Manning knowingly or intentionally aided the enemy by turning over the documents to Wikileaks. The prosecution wanted the jury to be allowed to infer intent. They wanted to lower their burden of proof to make it easier to obtain a conviction on the most serious charge facing Pfc. Manning.

But you can't infer intent from what might have happened. You can't even infer intent if there are documents that prove Osama bin Laden asked for material from Wikileaks.

Col. Lind also ruled that any damage assessments produced by intelligence agencies can't be used to determine whether or not Pfc. Manning is guilty - they can only be used at sentencing.

Pfc. Manning is a whistleblower. He exposed the lies our government told us. He exposed the criminal acts carried out at the behest of officials in Washington. The documents on Wikileaks embarrassed the United States.

There is no evidence that Pfc. Manning intended to aid the enemy. If he wanted to do so, why release the documents to Wikileaks? Why not just send the material to Osama bin Laden or one of his associates? Pfc. Manning was after something bigger than Osama bin Laden.

The documents on Wikileaks cast a light into the shadows and forced the roaches to run for cover. The world is a better place with more government transparency. We have a right to know what's being done in our name. We have a right to know what our public officials are doing. And the only way to know is to force the government to be more transparent.

If our government were more transparent perhaps officials would be a bit more leery in what they do, knowing that we're all watching. They might think twice before ordering a plan of action knowing that they are going to have to explain it to the public.

Monday, January 21, 2013

Happy MLK Day 2013

In 1964, Martin Luther King, Jr. was awarded the Nobel Peace Prize for his work in the civil rights movement in the United States. Here is a transcript of that speech...

Your Majesty, Your Royal Highness, Mr. President, Excellencies, Ladies and Gentlemen: 
I accept the Nobel Prize for Peace at a moment when 22 million Negroes of the United States of America are engaged in a creative battle to end the long night of racial injustice. I accept this award on behalf of a civil rights movement which is moving with determination and a majestic scorn for risk and danger to establish a reign of freedom and a rule of justice. I am mindful that only yesterday in Birmingham, Alabama, our children, crying out for brotherhood, were answered with fire hoses, snarling dogs and even death. I am mindful that only yesterday in Philadelphia, Mississippi, young people seeking to secure the right to vote were brutalized and murdered. And only yesterday more than 40 houses of worship in the State of Mississippi alone were bombed or burned because they offered a sanctuary to those who would not accept segregation. I am mindful that debilitating and grinding poverty afflicts my people and chains them to the lowest rung of the economic ladder. 
Therefore, I must ask why this prize is awarded to a movement which is beleaguered and committed to unrelenting struggle; to a movement which has not won the very peace and brotherhood which is the essence of the Nobel Prize. 
After contemplation, I conclude that this award which I receive on behalf of that movement is a profound recognition that nonviolence is the answer to the crucial political and moral question of our time - the need for man to overcome oppression and violence without resorting to violence and oppression. Civilization and violence are antithetical concepts. Negroes of the United States, following the people of India, have demonstrated that nonviolence is not sterile passivity, but a powerful moral force which makes for social transformation. Sooner or later all the people of the world will have to discover a way to live together in peace, and thereby transform this pending cosmic elegy into a creative psalm of brotherhood. If this is to be achieved, man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love. 
The tortuous road which has led from Montgomery, Alabama to Oslo bears witness to this truth. This is a road over which millions of Negroes are travelling to find a new sense of dignity. This same road has opened for all Americans a new era of progress and hope. It has led to a new Civil Rights Bill, and it will, I am convinced, be widened and lengthened into a super highway of justice as Negro and white men in increasing numbers create alliances to overcome their common problems. 
I accept this award today with an abiding faith in America and an audacious faith in the future of mankind. I refuse to accept despair as the final response to the ambiguities of history. I refuse to accept the idea that the "isness" of man's present nature makes him morally incapable of reaching up for the eternal "oughtness" that forever confronts him. I refuse to accept the idea that man is mere flotsom and jetsom in the river of life, unable to influence the unfolding events which surround him. I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. 
I refuse to accept the cynical notion that nation after nation must spiral down a militaristic stairway into the hell of thermonuclear destruction. I believe that unarmed truth and unconditional love will have the final word in reality. This is why right temporarily defeated is stronger than evil triumphant. I believe that even amid today's mortar bursts and whining bullets, there is still hope for a brighter tomorrow. I believe that wounded justice, lying prostrate on the blood-flowing streets of our nations, can be lifted from this dust of shame to reign supreme among the children of men. I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits. I believe that what self-centered men have torn down men other-centered can build up. I still believe that one day mankind will bow before the altars of God and be crowned triumphant over war and bloodshed, and nonviolent redemptive good will proclaim the rule of the land. "And the lion and the lamb shall lie down together and every man shall sit under his own vine and fig tree and none shall be afraid." I still believe that We Shall overcome! 
This faith can give us courage to face the uncertainties of the future. It will give our tired feet new strength as we continue our forward stride toward the city of freedom. When our days become dreary with low-hovering clouds and our nights become darker than a thousand midnights, we will know that we are living in the creative turmoil of a genuine civilization struggling to be born. 
Today I come to Oslo as a trustee, inspired and with renewed dedication to humanity. I accept this prize on behalf of all men who love peace and brotherhood. I say I come as a trustee, for in the depths of my heart I am aware that this prize is much more than an honor to me personally. 
Every time I take a flight, I am always mindful of the many people who make a successful journey possible - the known pilots and the unknown ground crew.
So you honor the dedicated pilots of our struggle who have sat at the controls as the freedom movement soared into orbit. You honor, once again, Chief Lutuli of South Africa, whose struggles with and for his people, are still met with the most brutal expression of man's inhumanity to man. You honor the ground crew without whose labor and sacrifices the jet flights to freedom could never have left the earth. Most of these people will never make the headline and their names will not appear in Who's Who. Yet when years have rolled past and when the blazing light of truth is focused on this marvellous age in which we live - men and women will know and children will be taught that we have a finer land, a better people, a more noble civilization - because these humble children of God were willing to suffer for righteousness' sake.
I think Alfred Nobel would know what I mean when I say that I accept this award in the spirit of a curator of some precious heirloom which he holds in trust for its true owners - all those to whom beauty is truth and truth beauty - and in whose eyes the beauty of genuine brotherhood and peace is more precious than diamonds or silver or gold.
From Les Prix Nobel en 1964, Editor Göran Liljestrand, [Nobel Foundation], Stockholm, 1965

Sunday, January 20, 2013

Spellcheck, anyone?

On Friday afternoon I picked my girls up from school and took them to my office so my oldest could sell Girl Scout cookies to some of the other folks working around me. We had to stop off at the post office on the way home to mail an appeal bond down to the Valley.

When we got back in the car, the Honda wouldn't start. I had had some problems the last couple of days with what I finally figured out was the starter. I called my brother and asked him to come on down to the post office (just down the street from his place). My girls then found out about the magic of a manual transmission - pushing starting a car that doesn't want to cooperate. They were amazed when the engine fired  after being pushed.

After dinner I took my youngest over to the auto parts store to pick up a new starter. On the way back this is the sign we saw on Long Point.

Look, it's one thing not to be able to spell. It's another when you let the whole world know it, too.

Saturday, January 19, 2013

Rick Perry's praying for you

“As a free people, let us choose what kind of people we will be. Laws, the only redoubt of secularism, will not suffice. Let us all return to our places of worship and pray for help. Above all, let us pray for our children.” -- Texas Gov. Rick Perry
Gov. Rick Perry is upset. He's mighty upset that President Obama has proposed restrictions on the ability of anyone to buy a gun.

According to Mr. Perry, the actions announced by the White House the other day are a direct assault on the Second Amendment. And we certainly can't have that now, can we.
“In fact, the piling on by the political left, and their cohorts in the media, to use the massacre of little children to advance a pre-existing political agenda that would not have saved those children, disgusts me, personally,” the governor said. “The Second Amendment to the Constitution is a basic right of free people and cannot be nor will it be abridged by the executive power of this or any other president.”
But where is out great defender of the Bill of Rights when it comes to shredding the Fourth Amendment? Where was Rick Perry when local jurisdictions decided to impose "No Refusal Weekends" on the driving public? Where was Rick Perry when motorists were threatened with forcible blood draws if they refused to blow into the breath test machine? Where was he when judges began accepting officers' sworn statements over the phone?

It's quite ironic that the gun lobby screams to the high heavens that any restriction on the ability of anyone to buy any weapon is a direct assault on the Second Amendment, but no on bats an eye as the courts and the legislature continue to eviscerate our protection against unreasonable search and seizure. Restrictions on gun sales or mandatory background checks won't affect all of us but weakening the Fourth Amendment makes it harder for us to exercise our right to be left alone.

Rick Perry is a buffoon. Anyone who witnessed his performance during his aborted Presidential run knows that. The idea that we're going to solve our addiction to violence by getting down on our knees and praying is absurd. Doesn't Rick Perry know that more people have been killed in the name of religion than for any other reason?

But then it's easier to exhort folks to prayer and to throw firebombs at political adversaries than it is to come up with a proposed solution of your own. Now I'm not naive. The measures proposed by President Obama won't prevent another massacre from happening. Enforcing the gun laws we already have on the books won't  do it either. Even with stricter gun laws, there will be guns available for those who want them.

The answer to the problem of too many guns on the streets is not to put more guns out on the streets. That will only lead to more bloodshed, more death and more grieving families.

In the meantime more politicians will grandstand about how they will refuse to allow the White House to destroy the Second Amendment by restricting gun sales but very few will stand up to defend the Fourth Amendment.

And without the Fourth Amendment, your right to keep and bear arms will be nothing but an empty promise.

Friday, January 18, 2013

High court to decide case involving warrantless blood draws

Back in October 2010, Tyler McNeely was stopped for driving 11 miles over the speed limit by Missouri state police officer Mark Winder in Cape Girardeau County. The officer said he saw Mr. McNeely cross the center line three times before he stopped him.

Of course Officer Winder noted that Mr. McNeely had an odor of alcohol on his breath and red, glassy eyes. He then administered four field sobriety tests and concluded that Mr. McNeely was intoxicated. The officer took Mr. McNeely to a local hospital and asked him if he would consent to a "voluntary" blood draw. When Mr. McNeely exercised his right to say no, Officer Winder ordered hospital technicians to conduct a blood draw anyway.

There was no accident. No one was injured. And no one asked a judge for a warrant.

In a hearing before the trial court Officer Winder stated that he never asked a judge for a warrant to draw Mr. McNeely's blood. He also testified that he had applied for warrants to conduct blood draws on previous  occasions without any difficulty (a sign that many judges have all but forgotten that the Fourth Amendment even exists).

The trial court deemed the results of the blood draw inadmissible. The state appealed. The Missouri Supreme Court affirmed the ruling of the lower court so the state appealed to the United States Supreme Court. The Obama Administration then joined with the State of Missouri in arguing that there wasn't a damn thing wrong with strapping down a motorist and jabbing a needle in his arm without a warrant.

The state argued that there were exigent circumstances that necessitated conducting a warrantless blood draw. According to the state, because alcohol dissipates in the body, it is vital that the blood be drawn as soon as possible.

Note that argument wasn't that anyone's life was in danger or there was any type of emergency. The argument amounted to the state would really like to have a vial of blood to test because Mr. McNeely might have been intoxicated. He was off the road by the time he was held down and the needle jabbed in his arm. The state wanted evidence that might force Mr. McNeely to plead guilty without holding the state to its burden of proof.

Anyone who's tried a breath test or blood test case is quite familiar with the junk science that is retrograde extrapolation. Without knowing the specifics of a motorist's physiology, a government employee sits in the witness stand and proudly tells the jury just what the defendant's alcohol concentration was at the time of driving - even though the breath or blood sample was given hours after driving. Judges allow the testimony in either because they haven't the slightest clue what's going on or because they just don't give a damn.

But there are plenty of case tried every year in which there is no breath or blood test. There are plenty of cases every year in which a jury is asked to decide whether or not a motorist was intoxicated based upon the driving facts and the roadside exercises performed on video. There were also plenty of DWI cases tried before police cars were equipped with cameras. And prosecutors got convictions in those cases.

There were no exigent circumstances in Mr. McNeely's case. The state just wanted to make it easier on itself to obtain a conviction. And the courts have gone along with that for years. That's why we have implied consent laws on the books. That's why refusing a breath or blood test is held against a motorist and presented to the jury as an admission of guilt.

There are plenty of counties, cities and towns that conduct "No Refusal Weekends" with judges volunteering to sign off on warrants review warrant applications. Judges all across this country have gladly signed off on warrants based on fill-in-the-blank form affidavits that are conclusory and don't even spell out why the blood sought is evidence of a crime.

Officer Winder could very easily have found a judge who would issue a warrant based upon his statement that Mr. McNeely was speeding and failed a series of roadside exercises. It really is that simple. But Officer Winder couldn't be bothered to do so. He couldn't be bothered to comply with the requirements of a watered-down and neutered Fourth Amendment.

The refreshing thing about this case is that a trial judge and a state supreme court decided that the state had crossed the line.

Thursday, January 17, 2013

Judge throws curve ball regarding Pennsylvania's breath test machines

The DWI statute in the Commonwealth of Pennsylvania establishes three levels of DWI offenses. There is a "loss of normal use" DWI that does not require the prosecution to prove an alcohol concentration (referred to as being incapable of safely driving). The state can also prove up general impairment by showing the driver had an alcohol concentration of between .08 and .10 within two hours of driving.

Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.

The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.

In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.

But, somewhere on the way to the plea docket, things got a bit hairy for the state.

Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.

According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.

Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.

At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.

The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.

The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.

Wednesday, January 16, 2013

Removing all doubt

Abraham Lincoln supposedly said it was better to remain silent and be thought a fool than to open your mouth and remove all doubt.

After seven years Supreme Court Justice Clarence Thomas has chosen the latter. Justice Thomas made his first comment during oral argument on Monday since February of 2006. But instead of asking a question of the litigants, he remarked about a joke that one of the lawyers told.

I'm sure the person at the heart of the case, Jonathan Boyer, wouldn't have been quite as amused. Mr. Boyer is on in the state penitentiary in Louisiana after being convicted of murder. Mr. Boyer was held in custody for seven years before going to trial. He is arguing that his right to a speedy trial was violated and that the conviction should be overturned. He is also arguing that the lawyers appointed to represent him at trial weren't qualified to try a murder case.

But Justice Thomas wasn't too concerned about the plight of Mr. Boyer. He was more interested in a joke about a lawyer who went to Yale and a lawyer who went to Harvard.

And that's what happens when you are totally divorced from reality. Clarence Thomas should never have been put on the Supreme Court. He wasn't qualified at the time he was appointed and he isn't qualified today. The other justices read the briefs drafted by their clerks and ask questions to clarify what relief is being sought, on what grounds and basis for the claim. They will interrupt a litigant to ask him to clarify a point or to find out why he or she thinks the case at hand is different from a case previously decided.

In the last seven years Clarence Thomas has heard lawyers arguing about the death penalty, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the federal sentencing guidelines and the disparity between sentences for possession of crack and power cocaine. And for those seven years he sat there mute.

And, instead of asking a profound question or making an incisive remark, Justice Thomas opened up his mouth to comment on a joke.

The joke, I'm afraid, is on us.

Tuesday, January 15, 2013

The price of doing business

It must be nice to be too big to fail.

Last week a settlement was reached between federal regulators and banks accused of defrauding homeowners in foreclosure actions, including the three largest US banks, in which the banks will pay $8.5 billion to homeowners who were harmed by the fraud.

The settlement also limits the banks' liability for "robo-signing" foreclosure documents without reviewing them prior to filing foreclosures.

About $3.3 billion will be paid directly to homeowners and the balance will be used to reduce mortgage amounts and to forgive principal still owed for homeowners who were underwater at the time of the sales. Homeowners who were wrongly denied loan modifications will receive some relief while those who lost their homes will get significantly more.

And therein lies the problem. The banks filed pleadings with the courts in an attempt to seize property without reviewing the documents and without proving their "ownership" of the debt. A lot of folks lost their homes as a result. The banks then took possession of those homes and resold them, pocketing the profits. It didn't matter if the house was underwater - so long as the balance was owed to the bank.

The entire scheme fed off of collateralized mortgage securities. By stripping the interest and principal payments and lumping high risk mortgages together, the banks created an atmosphere where investors wanted their scheduled payments and they didn't care if it was the bank coughing up the funds or the homeowner. The banks made money hand over fist with the scheme until the bubble burst bringing down the entire economy.

The same banks then received bailout payments from the federal government with few, if any, strings attached. The same managers who contributed to the crash continued to collect their paychecks and bonuses while homeowners lost their homes. The banks hoarded the money and refused to approve loan modifications for homeowners who owed more than their houses were worth.

At the height of the crisis we were told that the biggest of the banks were too big to fail and so we had to give them truckloads of money and easy borrowing terms from the Fed. But did anyone ever suggest that those same banks be broken up like AT&T?

And now for a token sum the banks will be let off the hook as regulators will close the books on their investigations. In the meantime, those who lost their homes will be left to pick up the pieces while the corporate executives will be collecting their huge bonuses.

Monday, January 14, 2013

The day after

Yesterday's Houston Marathon started in a freezing monsoon.

As soon as the gun went off to start the race the skies opened up. The temperature was in the 40's. The rain was falling. The wind was gusting. My oldest daughter said the starter must have shot a hole in the sky.

Last year I had a problem with my knee that caused me to drop out just a mile-and-a-half into the race. No such bad fortune this year. I plowed through the rain and cold as best I could with shirt and sock changes along the course thanks to my support crew (thanks, Barb).

By the end I was tired and sore and wet and cold but I crossed the finish line. My time was nothing to write home about (5:37), but after last year it just felt good to run the race and finish. This was my 14th finish in the Houston Marathon and my 20th marathon finish overall. I am sore this morning and not looking forward to appearing in family court.

Now a few observations from the race...

To those of y'all who were slowing down other runners because you were texting, tweeting or e-mailing - leave the goddamn phone in your bag or in your car. Are you so addicted to shiny little electronic devices that you can't put them down to run a marathon? They were all over - with little baggies over their phones to keep them from getting wet. I enjoyed being alone with my thoughts for five hours or so without a phone tethered to me.

I saw a barefoot runner. We were near each other at the start. My wife said he was a few minutes ahead of me at the 23 mile mark. When I saw him I couldn't help but think of the book Born to Run. There are quite a few folks out there that believe the worst thing to ever happen to runners was the invention of the running shoe. The theory goes that if you run barefoot you will not strike the bottom of your heel on the ground because of the pain it would cause. You would strike the outside part of your heel and then turn your foot so that you pushed off with the ball of your big toe. Running shoes tried to straighten everyone's foot out and has led to a myriad of foot, knee and back problems. I haven't had any of those problems in the 15 years I've been running marathons but then the wear pattern on my shoes indicates I'm doing just what I would do if I were running barefoot.

He also didn't have to deal with wet socks.

Thanks to all the volunteers along the course handing out water and gatorade and to the medical staff with their assortment of goodies. While we got the glory for running 26.2 miles through the city, they had to stand out in the driving rain and cold to make sure we were okay. This race doesn't happen without those folks.

It was fun - despite the nasty conditions and the pain in my calves this morning - but I'm not in the shape I once was and I don't put in the time that I once did. My long distance running days are coming to an end soon. Not this year and probably not next year, but there will come a day in the not-so-distant future when my marathon days are over.

Sunday, January 13, 2013

Running man

Well, here we go again. Once again it's time for my annual tour of Houston on foot.

As you're reading this I will be running the Houston Marathon and hoping for a much better result than last year's disaster that ended up with me having an ice pack wrapped around my knee.

Should all go well this afternoon I will be celebrating the completion of my 14th Houston marathon and 20th overall (to go along with six ultras through the woods of Huntsville) with an ice cold beer on the couch watching Lord of the Rings.


Saturday, January 12, 2013

Two for Texas

Hey, make no mistake about it, I love living in the Lone Star State. I've lived here all my life and have no intentions of going anyplace else. But, let's be brutally honest, Texas has more than its fair share of stupid ideas.

The latest comes from our esteemed Lt. Governor David Dewhurst. As best as I can tell, Mr. Dewhurst was dead serious when he proposed that the state fund specialized weapons training for teachers and administrators selected to carry guns on campus. Under his proposal districts could decide whether they wanted to designate one teacher and one administrator on each campus to pack heat. The state would then provide the funds to train them in how to use a gun correctly and how to handle a situation in which a gunman starts firing inside a school.

Just let that sink in for a minute.

Apparently Mr. Dewhurst is still licking his wounds from getting beaten by that tea-baggin' wingnut Ted Cruz who two-stepped into the U.S. Senate promising to introduce legislation to repeal Obamacare. Somewhere along the line he felt the need to dial up the wingnut tendencies to appease the far right.

I know the NRA seems to think the solution to gun violence is to put more guns out on the street. And if that notion seems absurd - the notion of more guns on school campuses seems downright obscene.

And, just to prove that Mr. Dewhurst's latest brainstorm isn't a fluke - over in Pearland (a suburb of Houston), an 11-year-old was arrested for threatening to bring a gun to school. He wasn't sent to the office and placed in an in-school suspension program. He wasn't placed in an alternative school. He was arrested.

Someone please enlighten me as to what good it does to place handcuffs on a 5th grader and cart him off to the police station. As a rule, kids that age don't appreciate the consequences of their actions. They live in a bubble and have a hard time understanding that the things they do may affect others.

Now, instead of learning math and science and grammar, this young boy is learning all about the criminal (in)justice system. What an education he will receive. Instead of reaching out and trying to help this young boy, the folks entrusted to educate him threw up their hands and passed him off to law enforcement.

Sure, they were probably a bit skittish after what happened last month in Connecticut. I get that. But the kid is only eleven.

Farming out discipline problems to the courts is a losing proposition but it sure is a hell of a lot easier than dealing with the problem yourself. The administrators responsible for this incident should be ashamed of themselves and might want to take a long hard look at themselves in the mirror. There is no excuse for putting an 11-year-old in handcuffs.

Friday, January 11, 2013

The biggest loser


That's the number of votes Republican judicial hopeful Brad Hart lost to incumbent Judge Maria Jackson this past November.

The voters of Harris County spoke and they rejected Mr. Hart's effort to move up to the 14th floor at 1201 Franklin from the 4th floor.

I've had a couple of cases over the years with Mr. Hart. He was always very reasonable to work with. He seemed to be the model of a career prosecutor (and I don't mean that in a bad way). His trademark was cutting to the chase. He didn't waste your time with a bunch of bullshit.

But then something funny happened. Judge Belinda Hill announced to the world that she was taking a top job with the DA's office. Even though her new job opportunity made her sitting on the bench the very definition of the appearance of a conflict of interest, there she sat because she couldn't step down until Gov. Goodhair appointed a new judge.

Well, actually she could announce her resignation from the bench but that resignation couldn't take effect until a new judge was appointed. Jacqueline Smith in the civil courthouse found that out the hard way when she tried to quit during the middle of her term to take a job with a white shoe firm downtown but was told that she had to listen to lawyers arguing until someone got around to finding someone else to take her place.

But I digress.

The other day Rick Perry appointed a new judge for the 230th Judicial District Court. Brad Hart.

So, while my colleague Murray is nursing his man-crush of the latest prosecutor cum judge, it's up to me to point out what's wrong with the appointment.

Gov. Perry pretty much told the voters of Harris County to go screw themselves by appointing a person who lost in November to ascend to the bench. Perry's move is a slap in the face to this little thing we call democracy. This also makes it painfully obvious that those who propose that we change our system of selecting judges from popular vote to appointments and retention elections haven't the slightest clue as to what they're talking about.

This is just the thing that the authors of the 1876 Texas Constitution did their best to prevent. As a result of Reconstruction, that document designed a decentralized government with most of the power resting with the citizenry. But what Gov. Perry has done is subvert the will of the people.

And before y'all jump up and scream that down ballot races are largely determined by straight ticket voting at the top, the fact remains that that is the system we have and that's the system we used last November. A good many Republican candidates for judge were banking on voters in the suburbs turning out in large numbers to vote for Mitt Romney. Unfortunately for them, the turnout in the city was enough to overcome the GOP votes in the county and they did not sweep into office.

But Rick Perry and his minions don't care about elections. They don't care about anything other than advancing their right wing philosophy which includes packing the courts with as many Republicans and conservatives as possible.

If we did away with popular elections whoever the governor appointed would sit on the bench until they got tired of doing so because retention elections have become the next best thing to lifetime appointments. All retention elections do is encourage large law firms to pump more and more money into judicial races creating nothing but conflicts of interest in the courthouse.

And, with the pending appointment of a judge to replace Joan Campbell in the 248th, I suppose we could just browse the names of Republican candidates who were rejected by the voters to determine who Gov. Goodhair will select.

Because the will of the people means nothing to him.

Thursday, January 10, 2013

Not good enough

So now we agree that Bradley Manning was subjected to torture and inhumane conditions while being held at Quantico. Judge Denise Lind found that the allegations raised by Mr. Manning were true and that he was entitled to additional credit for the time he's already served.

Mr. Manning asked for 10 days credit for each day he spent under inhumane conditions. Judge Lind decided he was only entitled to two-for-one credit for the days in question.

While being held at Quantico, Mr. Manning was housed in a six-by-eight foot cell for 23 hours a day. He wasn't allowed to lie down or lean against the wall unless he was asleep. He was stripped of his clothes for days at a time.

The treatment of Mr. Manning was inexcusable. It's even worse when you stop to consider that Mr. Manning is an American citizen who is presumed innocent unless proven otherwise.

What does it say about us as a people that we allow this to happen?

Bradley Manning was subjected to torture because he was a whistleblower. He exposed violations of international law committed by the U.S. military in its treatment of so-called enemy combatants. His crime was embarrassing the powers that be.

What our leaders seem to have forgotten over the years is that they work for us. We are the ones in charge - at least we should be the ones in charge. What our government does, it should be doing for us - not for some little cabal's special interests. We have a right to know what's being done in our name around the world. And if those in charge are too embarrassed to admit to what they've done - then it probably shouldn't have been done.

That also applies to the treatment Bradley Manning was subjected to. There is no excuse for a government to mistreat its own citizens to the degree our government mistreated Mr. Manning. The solution is not to give him an extra hundred days or so in credit should be be convicted. The solution is to dismiss the charges and to free Bradley Manning.

Wednesday, January 9, 2013

Book review: Billionaires and ballot bandits

Greg Palast's latest book Billionaires and Ballot Bandits: How to Steal an Election in 9 Easy Steps is a primer in how the ruling class goes about disenfranchising millions of Americans every year in order to prevent their voices from being heard.

These days elections are stolen by stuffing ballot boxes with phony votes like in Chicago or down in the Valley. Elections are stolen by preventing people from voting in the first place.

Conservative politicians masquerading as election officials have used dubious methods of eliminating folks from the voting rolls. In Florida the lists of voters being "scrubbed" from the rolls included the race of the voter. Anyone who had a name similar to anyone who had been convicted of a felony offense was placed on Florida's list. And no one bothered telling the voter. They would only find out if they showed up at the polling place and asked why they weren't allowed to cast a ballot.

Anyone who showed up to vote whose name had been removed from the rolls was handed a provisional ballot that was placed in a separate envelope - maybe to be counted and maybe not.

Voters in Ohio who showed up on the final Sunday of early voting found themselves standing in long lines as the state consolidated polling stations in black and working class neighborhoods. While standing in line they were handed not actual ballots, but applications for absentee ballots. They weren't voting absentee. And, if any of the information they filled out on the application didn't match the information the voting officials had - guess where that ballot was going.

Back when I went with my mom to vote we still had the machines with the curtain and the levers. Then we had ballots that we marked with special pens. Then came the punch card ballots. Now we have electronic voting machines with proprietary software that no one is allowed to examine (hmm, sounds like one of those breath test machines, doesn't it?). Ever try to conduct a recount of bits and bytes in the hard drive of a computer? Guess what? There's no such thing. Yes, technology is a wonderful thing (sometimes), but not when it comes at the price of eliminating the opportunity to recount the actual ballots.

And then we come to the voter ID laws across the country. These new laws were the brainchild of the American Legislative Exchange Counsel - otherwise known as ALEC - a business lobby that drafts model bills for its "friends" in legislatures across the country. The clear intent of these laws was to discourage voters and to prevent immigrants, the poor and the elderly from exercising their constitutional right to vote.

It's not just about Republicans trying to steal elections from Democrats (though having the Ohio Secretary of State proclaim that the new voter ID law was going to deliver Ohio for Romney spoke volumes). The Republicans and Democrats are opposite sides of the same coin. The Democrats may speak out about the economic policies of the Republicans but they get so much of their money from Wall Street and corporate executives that their proposals are more window dressing than actual policy differences.

The reason to remove folks from the voting rolls is to prevent the disenfranchised from voicing their displeasure with our political and economic system. The politicians know that those voices will be marginalized and that their votes won't count. They know they can go right on along doing what they've been doing to make it easier for corporations and the wealthy to accumulate ever greater sums of wealth while polluting the environment and lowering living conditions for everyone else.

Billionaires and Ballot Bandits will make you think twice about our "one dollar-one vote" electoral system. And that's a good thing.

Tuesday, January 8, 2013

Slicing and dicing away in the Magnolia State

By all accounts Dr. Steven Hayne of Mississippi worked his butt off. For a period of almost 20 years, Dr. Hayne performed about 1700 autopsies a year as a contract medical examiner for the state. According to a New York Times article, for a long period of time, if a body were discovered in Mississippi, the odds were 4 in 5 that Dr. Hayne would be doing the cutting.

Now there are questions about the good doctor's work. It seems that while he was collecting his $500 per autopsy, he created some theories of his own about what he observed. Questions have also been asked about his workload - on average, Dr. Hayne performed more than 4 autopsies a day (some seven times the recommended work load), in addition to the work he performed in his private practice.

In 2008 the State of Mississippi cut off Dr. Hayne's gravy train after several murder convictions supported in large measure by his testimony and report were overturned.

Dr. Hayne made out like a bandit even though he wasn't board certified in forensic pathology.

But still he kept cutting up dead bodies, writing reports, testifying at trial and collecting checks.

A physician and pathologist, Dr. Hayne, now 71, began performing autopsies in Mississippi in the late 1980s. He served briefly as interim state medical examiner though he was not, as state law required, board certified in forensic pathology. From 1989, when he left the interim post, to 2010, the office of medical examiner was unfilled for all but five years. Dr. Hayne, working as a private contractor, almost single-handedly picked up the slack. 
By his own count, he performed as many as 1,700 autopsies some years, in addition to having his own pathology practice. Dr. David Fowler, the chief medical examiner in Maryland and a former chairman of the standards committee for the National Association of Medical Examiners, called the number “beyond defensible.”

Dr. Hayne is just the latest example of the ways in which our courts have failed in their role as gatekeepers to scientific and expert testimony. Junk science (and theories that are but flights of fancy) finds its way into our courtrooms because judges don't understand the science before them. It finds its way into our courtrooms because judges love witnesses who have a bunch of letters after their names. It finds its way into our courtrooms because we have failed to do our job as defense attorneys.

Juries love to have someone tell them how to decide a case - it beats sitting back in that jury room arguing back and forth for hours about whether the state has proven its case beyond all reasonable doubt. Just bring in a witness with a bunch of letters after his name and a folder full of certificates printed on fancy paper and let him tell the jury that the defendant is guilty.

They will rarely question his opinion because he's an expert. Hell, they don't understand what he's up on the stand talking about. The prosecutor knows it. We all know it. And once those magic words "In my expert opinion..." come out of his mouth it's all over.

It's not until years down the road when the so-called expert has a track record on paper and transcripts that anyone can put together the errors, lies and fictions he created out of whole cloth. It's not until someone has the money to bankroll the research that the extent of the injustice is exposed.

We will never know how many innocent folks ended up behind bars in Mississippi because of Dr. Steven Hayne. Worse yet, there are hundreds of mini-Dr. Haynes out there that will never be exposed.

Monday, January 7, 2013

Spying on the 99 percent

Congress shall make no law... abridging the freedom of speech... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. -- 1st Amendment
But just because the Bill of Rights says you can air your grievances, it doesn't mean the government has to just sit there and take it. With a treasure trove of FBI documents obtained through a Freedom of Information request, the Partnership for Civil Justice Fund, has exposed the extent to which the FBI and law enforcement agencies around the country spied on the Occupy! movement.

The FBI and Department of Homeland Security treated the Occupy protesters as domestic terrorists as they mobilized agents for the benefit of big banks and Wall Street. The FBI was particularly concerned about protests on the West Coast that targeted major ports.

Those concerns manifested themselves in Texas where members of an Austin Police Department task force infiltrated the Occupy Austin group and helped produce the so-called "sleeping dragons" used by protesters at the Port of Houston to prevent trucks from entering the port.

Documents obtained from the Austin Police Department paint a picture of a handful of officers who not only kept on eye on protesters but who became actively involved in the planning and carrying out of actions.

The question arises as to just why the FBI, Department of Homeland Security and local law enforcement agencies were so interested in the Occupy movement. These documents also raise questions as to what role the government should be playing in domestic surveillance operations.

Supposedly the role of of law enforcement is to serve the local community in making the community safe for its residents. These officers, after all, are employees of the local community and answer, in theory, to the members of the community.

In this case the federal government was busy handing out grants for local communities to create what have been referred to as "fusion centers" where members of various law enforcement agencies could get together and share intelligence on protesters.

Keep in mind that these protesters were upset about the growing gap between the very wealthy and the rest of us in this country. These young men and women were standing up and publicizing the fact that the financial crisis was caused by the major banks and Wall Street and that the primary "victims" were ordinary workers and homeowners. The Occupy movement was all about highlighting the fact that our government was busy handing out money hand over fist to the very folks who caused the problem while ignoring the plight of the ordinary folks caught in the middle.

But god only knows we can't have that debate in this country. We can spend all the time in the world arguing about abortion or whether President Obama has a valid birth certificate. But it's off limits to discuss the shortcomings of capitalism or alternative economic systems.

The same President Obama who was happy to let the world know he was a community organizer back in Chicago authorized the surveillance and infiltration of the Occupy movement.

And what does such an operation tell us about our government's priorities? Millions of people are unemployed - some for years - and others have lost their homes, yet we're going to spend our money on a massive domestic spying operation for the benefit of corporate America.

The Occupy protesters gathered to petition the government regarding their grievances. Their government responded by spying on them and sending in agent provocateurs to incite criminal activity that likely would never have happened otherwise.

Saturday, January 5, 2013

I have a couple of questions for you

"It is the king of evidence. If you can get someone to confess to a crime, the court is going to find them guilty." -- Jeff Kingston, Temple University in Tokyo
Japan has a 99% conviction rate and the vast majority of those convictions are supported by confessions. But, as the onion is peeled back, the truth emerges about the ways in which those confessions are obtained.

False confessions aren't just an American phenomenon. We have long seen them on display in show trials in totalitarian nations. Officials who find themselves on the outs with the regime leaders have long been given a choice - confess now or your family will pay.

In Japan a slightly sanitized version of that technique has been found quite effective in obtaining confessions from the innocent. Appeals are made to the suspect to think of his family - to think of the shame his alleged actions would bring upon his parents or his wife or his children. As preserving face is of the utmost importance in Japan, getting the signature on a sheet of paper is often a mere formality.

The very interrogation itself is often so coercive that a suspect will gladly sign a confession prepared by his interrogator just so the torment will end. We're not talking physical torture. We're talking psychological torture. We're talking hours on end in an interrogation room with one or more police officers subjecting a suspect to accusations and implied threats.
But while the Japanese police and prosecutors are not widely accused of resorting to more aggressive forms of interrogation such as torture, no-one outside the small interview room really knows what happens inside because suspects' interviews take place behind closed doors - without an attorney.
And that is the crux of the problem. Without an attorney in the room there is no way to find out exactly what happened. The suspect signed the confession. He's now a convicted criminal. Of course he's going to say he was coerced. Why should anyone believe him?

In Japan, and other countries, it happens because the law doesn't recognize the right of the accused to consult with an attorney before being subjected to interrogation. In the United States it happens because suspects choose to take their chances in the bright lights of the interrogation room. Not being familiar with the psychological tools of the interrogator, they think they can outsmart the officer in the room. They don't understand the ways in which interrogators are trained to take you down a path in which the only option available is to confess.

Throw the suspect a rope. Let him know there's only one way out of the room. Then give him the opening. We know you were there. The crime techs are recovering your fingerprints as we speak. We know it was self-defense.

Before you know it, they've got the signature on the piece of paper and the only question left is how much time will he have to do.