Thursday, February 28, 2013

Blaming the victim, Texas-style

So just how did we get to this point?

It was Charles Sebesta who prosecuted Anthony Graves. It was Mr. Sebesta who failed to disclose Brady material. It was Mr. Sebesta who put a witness on the stand whom he knew would perjure himself.

It was Ken Anderson who prosecuted Michael Morton and ignored testimony and evidence that didn't fit his theory of the case. It was John Bradley who fought for years to prevent evidence from undergoing the DNA testing that led to Mr. Morton's exoneration.

It was James Keeshan and his minions who orchestrated the framing of Clarence Brandley. His office destroyed exculpatory evidence in order to assure a conviction.

In Tulia it was the local district attorney who played hide the sausage with the defendants who were arrested based on the questionable testimony of a confidential informant who has been exposed as a liar and a fraud.

In each of those cases the misdeeds were committed by the state. The prosecutors who have an ethical obligation to see that justice is done took shortcuts and broke the law in order to get convictions. Yet, here we are today with the Texas Legislature considering a bill that would require the defense to turn over evidence and trial strategy in the name of transparency and leveling the playing field.

The attorneys for Mr. Graves did nothing wrong. The attorneys for Mr. Morton did nothing wrong. Mr. Brandley's attorneys did nothing wrong. The attorneys for the defendants in Tulia did nothing wrong. Their clients were victims of prosecutorial misconduct and unethical behavior.

And so the solution is to place the onus on defense attorneys to prevent such miscarriages of justice from happening again. The defense must now risk having evidence deemed inadmissible or defenses not being allowed due to alleged violations of a discovery order. Meanwhile there isn't a judge in the State of Texas who has the guts to toss the government's case because it violated an order.

If the goal of the bill is to prevent someone else from finding themselves in Mr. Morton's shoes, why isn't the onus placed on the state to produce offense reports, witness statements and Brady material? After all, it's the state that got caught with its pants down over and over again.

The reciprocal discovery bill in Texas is just the latest attempt by those in power to blame the victim for their misfortune. The state has all the power and all the resources it can muster. The state created the problem - and so the citizen accused must pay the price of fixing it.

Wednesday, February 27, 2013

Bloggers' lunch

From left to right Murray Newman, Mark Bennett, Scott Greenfield and me.

Here's the scene at Onion Creek in The Heights on Friday afternoon as Mark Bennett, Murray Newman and I had the pleasure of breaking bread with Mr. Simple Justice himself, Scott Greenfield.

Shhh, don't tell my wife - she thinks I was at the seminar all day.

A special thanks to Scott for the copy of Nathaniel Burney's The Illustrated Guide to Criminal Law.

Tuesday, February 26, 2013

How to form a cult

So you want to create a cult, do you?

Creating an "us vs. them" attitude is one of the most effective tools in your arsenal. Take a group of people and convince them that they are standing up against the unruly mob banging on the door and they will turn their eyes inward.

Thanks to Big Jolly and Grits for Breakfast we have the presentation put up by the Grand Poobah of 1201 Franklin, District Attorney Mike Anderson, at a recent "ethics" training.

According to Mr. Anderson and Rob Kepple, of the Texas District and County Attorneys Association, those poor prosecutors are the only folks protecting us from the barbarians at the gate. They are maligned, scorned and mocked by those around them. The legislature is against them. The judges are against them. The defense attorneys are against them. The public is against them.

Add to the bunker mentality the cult-like figure of Johnny Holmes and you've got all you need to make your cult a going concern. 

One of the primary targets of Mr. Kepple's fury is the Innocence Project. In the eyes of Mr. Kepple those evil-minded ne'er-do-wells only want to make prosecutors look bad by asking to have DNA tested in case after case after case.

Mr. Kepple shows some serious man-love for former Williamson County D.A. John Bradley for his handling of the Michael Morton case. Should you not recall, Mr. Bradley blocked DNA testing on evidence found near the Morton home. In Mr. Kepple's words, Mr. Morton "got lucky."

Yes, he did get lucky. But he should never have had to go through the hell he went through. His life was torn asunder by Ken Anderson (now a judge) and Mr. Bradley. Mr. Kepple is still upset about the demise of Mr. Bradley. He's upset that such a law-and-order guy like Mr. Bradley was booted out of office by voters who were sick and tired of his tired schtick and the way he maneuvered for years to prevent DNA testing in Mr. Morton's case.

One thing that Mr. Kepple leaves unaddressed is how to prevent unethical and illegal conduct by prosecutors. In his view, Charles Sebesta, whose conduct led to an innocent man being put on death row, was just a bad apple (if even that). Prosecutors who resisted DNA testing were principled men and women standing up for what was right - the men challenging the evidence were the bad guys.

John Bradley did no wrong in the Morton case - even though we know an innocent man spent a quarter of a century behind bars for a crime that someone else committed.

And that fact doesn't even seem to play into Mr. Kebble's view of the world. He just doesn't seem to understand that if an innocent man was convicted for a crime - the real perpetrator is still out there. Instead of getting your panties in a wad because someone's getting exonerated, why not work to figure out who should have been prosecuted in the first place?

And then there's Brady. The state can always get away without disclosure by arguing that the evidence wasn't material. So does anyone at this training session urge a more liberal interpretation of Brady? Of course not. The goal isn't to disclose. The goal is to hide it away where it can never be found.

All hail the Great Grand Exalted Poobah.

Here's the full video courtesy of Big Jolly...

Monday, February 25, 2013

Reciprocal discovery is a wolf in sheep's clothing

There's a battle a-brewing in Texas. A bill, sponsored by State Senator Rodney Ellis (D-Houston), is making its way through the legislative process that would greatly alter the means by which discovery in criminal cases is conducted.

Texas already has reciprocal discovery under the civil rules. Discovery in civil cases is nothing more than an over-the-top game of "you show me yours and I'll show you mine." The parties in a civil dispute share witness lists, expert lists, exhibits and theories of the case. The point is to make the facts and issues so crystal clear that one side of the other presses for an out of court settlement.

On the criminal side, however, discovery is conducted differently from county-to-county. Most district attorneys have what's known as an "open file" policy. That means that defense attorneys are able to view the state's evidence throughout the course of the case. Offense reports, witness statements, photographs, videos. You name it - so long as it's not considered work product, the defense gets to see it.

Other counties hold on to a "closed file" policy. In those jurisdictions you only get what the DA is willing to let you see. If you want more, you'll have to see the judge.

The missing piece in a closed file county, then, is the lack of an offense report. Now whether you get a copy of the offense report or you just get to take notes, attorneys in open file jurisdictions have an advantage as they know the names of all the officers involved and they can see where the state's case is weakest. And, since Brady material is somewhat in the eye of the beholder, that lack of an offense report puts the defense attorney behind the 8-ball.

And this is the why of Sen. Ellis' reciprocal discovery bill. Defense attorneys in closed file counties want to be able to see the offense report. Organizations such as The Innocence Project want to be able to see and compare offense reports.

But to compel the defense to provide information to the state about its case serves only to shift the burden of proof. There is no reason for the defense to share any information prior to trial. As a defense attorney, do you really want the state to know the names of all of your potential witnesses? Do you really want the prosecutor to have free reign to intimidate your witnesses?

The state has the burden of proof. The state gladly assumed that position when a prosecutor filed either an information or an indictment in your client's case. As the defendant is presumed innocent unless proven guilty, there is no need for the defendant to tell the state anything. There is no need for the defendant to give the state any information at all.

Over on the civil side the parties are considered to be starting their case from the same point. At the end of the trial, the judge will ask the jury to determine, by a preponderance of the evidence, who proved their case. It's all a contest about who can move the ball past the 50-yard line. But that's not what criminal law is all about. Our clients get a head start at trial. It's not a level playing field - and it's not supposed to be. Our Founding Fathers were less worried about a false arrest than they were a fall conviction.

The real battle should be over open-file versus closed-file jurisdictions. Those few holdouts from producing offense reports should be required to turn then over to the defense. Reciprocal discovery, as propounded by Sen. Ellis, would force the defense to share its most intimate secrets with the state. And so, while the idea seems attractive to a good many folks (particularly non-lawyers who haven't the slightest idea what really goes on in a courtroom), it will do far more harm to criminal defendants than good.

Friday, February 22, 2013

Update: Killing machine back on track

Carl Blue is dead.

The State of Texas murdered him because he murdered someone else.

It took 18 long years but the state finally got its revenge.

Only thing is, nothing changed.

Carmen Richards is still dead.

Lawrence Williams is still in pain.

It was premeditated murder.

Mr. Blue's last gasp appeal was denied yesterday. His attorney, Michael Charlton, argued that the attorney who handled Mr. Blue's appeal, John Quinn, had a conflict of interest because he was also Mr. Blue's trial attorney. Since Mr. Quinn handled both the trial and the appeal he had a personal stake in not appealing on the grounds of ineffective assistance of counsel. The State of Texas countered that Mr. Blue waived the issue when he didn't ask for a different attorney to handle his appeal.

Although the courts didn't buy into Mr. Charlton's argument, it does have a certain logic to it. Mr. Blue wasn't an attorney. He had no idea how appeals work. He would have had no idea on what grounds he could appeal his conviction. How could he waive an issue he didn't know even existed?

But we can't allow arguments like that to get in the way of a good ol' killing, can we? And it that means denying Mr. Blue's claim, then so be it.

There are few people who will shed a tear for Mr. Blue. But that still doesn't justify killing him. And that certainly doesn't justify killing the next inmate in line - or the one after that.

Thursday, February 21, 2013

Rationalizing murder

Yesterday I received this comment to my post regarding the scheduled execution of Carl Blue. The author was my colleague, Murray Newman. Of course Murray felt the need to go into the gory details of the murder for which Mr. Blue was convicted. But that's just a rationale for killing another person.
I worked on Carl Blue's case when I worked for the Brazos County District Attorney's Office in college.
Carl Blue walked almost ten miles to stand outside of her apartment and douse his victims with gasoline. He later said it was just a practical joke that got out of hand.
Carmen Richards lived for several days with her eyelids burned off. She was in excruciating pain until she finally, mercifully, died. I was in charge of driving around Lawrence Williams, who survived the attack. His body was one complete burn scar and he was constantly itching from the scar tissue.
When Carl looked at a picture of Carmen Richards' injuries, he vomited on the witness stand.
Punishment testimony was a string of other victims of Carl's domestic violence, including one lady I recall who had Carl sneak into her house while she was taking her trash to the curb. He beat the living hell out of her. Multiple neighbors testified to how Carl terrorized their neighborhood with a gun.
I understand being opposed to the government having the death penalty on principle.
But I have a hard time feeling sorry for Carl Henry Blue.
I am opposed to the death penalty - in all instances. The death penalty is a vestigial reminder of the days we didn't have the brain power to reason with anyone else. It is part and parcel of our deep-seated need for revenge.

Like I've said before, it's easy to be opposed to the death penalty when there are doubts as to the condemned's guilt. It's easy to be opposed when the facts surrounding the underlying crime are murky. It's easy if the inmate looks like you. But it's the cases in which there is no doubt about guilt or the cases in which the condemned man is the embodiment of evil that are most important if our goal is to abolish capital punishment.

Yes, Mr. Blue was convicted of a particularly brutal crime as Murray points out. But there are questions about his mental condition at the time of the murder. In one of our odd ways of trying to make the death penalty more "humane," the Supreme Court ruled that the state may not take the life of a mentally retarded inmate. The state may not take the life of an inmate who is deemed incompetent (because what fun would it be to kill the guy if he didn't even realize he was being killed?).

I don't know if Mr. Blue is competent or not. I don't know if he was mentally impaired at the time of the murder. I do feel fairly safe in saying that Mr. Blue is not the same person he was some 18 years ago when he killed Ms. Richards. Eighteen years is a long time to sit in a prison cell. A lot happens to a man in 18 years.

Just think back to yourself 18 years ago. How have you changed over the years? Have you matured? Have your interests changed? Do you hang out with the same people now as you did back then? Have your views on politics changed? None of us are the same person we were 18 years ago.

There is no purpose to be served by strapping Mr. Blue down to a gurney and pumping poison into his veins. It won't change a thing. Ms. Richards will not be brought back to life. The pain her family has felt for all those years will not vanish. Killing Mr. Blue is not going to prevent someone from killing someone else down the road.

Killing Mr. Blue will only sate the need some of us feel for revenge. Revenge is such a negative emotion. There's an old proverb, or saying, from some country or another that says if you're going to seek revenge against someone that you need to dig two graves - one for the target of your revenge and one for you.

The death penalty de-humanizes each of us. It makes it easier to kill - after all, killing Mr. Blue because he killed someone else is just an excuse to extinguish a life. If we can rationalize killing Mr. Blue, then we can rationalize killing somebody else.

It is time to stop the madness. It is well past time to abolish the death penalty.

Sticker shock

Bonnie Jonas-Boggioni and her husband, Guido Boggioni, were on their way home to Plano, Texas after attending the funeral of Mr. Boggioni's mother in Columbus, Ohio. For those of y'all not attuned to college sports, Columbus is the home of Ohio State University. Ms. Jonas-Boggioni was a former president of the Dallas-Fort Worth area Ohio State Alumni Association.

The nickname for Ohio State's athletic teams is the Buckeyes. Now I suppose that that means something to those folks who live in Ohio, but I have yet to figure out what the hell a buckeye is. It must be some kind of a plant or flower because members of the football team affix little stickers of a leaf of some sort on their plain silver helmets.

Apparently they've never heard of buckeyes down in Tennessee, either, because just outside of Memphis, Bonnie and her husband were stopped by a two black SUVs being driven by local law enforcement officers. When they approached the Boggioni's car, the officers were wearing body armor and carrying guns.

They asked the couple to get out of their car. Then one officer asked Ms. Jonas-Boggioni why she had a marijuana leaf sticker on the back of her car. She was stunned.
“It’s just amazing they would be that dumb.”  -- Bonnie Jonas-Boggioni 
It would appear that another police officer from somewhere else in Tennessee saw the buckeye sticker on the car and just assumed that the couple were transporting marijuana. After all, most folks who carry illegal drugs in their cars put stickers on their bumpers indicating what illicit items they have on board.

Now, left alone maybe this story is amusing. Maybe it made you smile (unless you're a law enforcement officer in Tennessee). But there isn't really anything funny about the story once you stop and think about what happened.

The Boggionis weren't violating any traffic laws. They were minding their own business driving home after attending a funeral in Ohio. Yet at least two officers thought they needed to pull over the vehicle because of a sticker on the rear bumper. Making matters worse, they felt the need to dress in full body armor and to draw their weapons when approaching the car.

The Boggionis had every right to be left alone. Instead, some unknown police officer lost all common sense when he saw a sticker and just assumed that something criminal had to be afoot. Even more inexcusable were the actions of the officers outside Memphis who initiated a traffic stop on a car simply because some yahoo further east had lost the use of his mental faculties.

And then, to top things off, the officer told the Boggionis they might consider removing the sticker from their car.

The war on everything drugs has long since gone overboard and when the police are happy to pull over a car with out-of-state license plates for no reason other than a bumper sticker, it's time to rethink our policies.

H/T Paul Lukas (Uniwatch)

Wednesday, February 20, 2013

Execution Watch: 2/21/2013

And the killing machine just keeps running...


CARL HENRY BLUE. Convicted of killing his ex-girlfriend in 1995 by burning her alive at her College Station apartment. His attorneys argued, unsuccessfully, that he was mentally impaired and therefore ineligible for the death penalty. Mr. Blue acknowledged drinking and smoking crack the night of the slaying. Mr. Blue's death sentence was affirmed in 2001 following a second punishment hearing. The case was sent down for a new hearing because the state's psychologist testified that Mr. Blue was a future danger because he was black.

For more information on Mr. Blue, click here.

Unless a stay is issued, we'll broadcast ...Thursday, February 21, 2012, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: > Listen

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

Laissez les bon temps rouler - Galveston style

And the fun never ends down on the island. Who needs Mardi Gras when there's Judge Christopher Dupuy?

Just when I was wondering if any of his fellow judges would stand up and say something about his erratic behavior, along comes State District Judge Susan Criss. According to an e-mail Judge Criss sent to county officials this week, there are some very serious concerns in the county judiciary about the stability of Judge Dupuy.

Here is the text of Judge Criss' e-mail...

I have been informed of the following: 
A county court judge requested armed security for the afternoon of judges's meeting in January from the Galveston County Sheriff's Office due to concerns that County Court Judge Christopher Dupuy would act in a manner that threatened the safety of the judiciary. 
County employees, family members of county employees, litigants and attorneys are expressing concern to those in authority, such as judges, the Sheriff, the District Attorney and to me that they are afraid Judge Dupuy will become violent and hurt or kill someone. Those expressing concerns include many I have known for decades who never expressed such concerns before recently. 
Judge Dupuy has published remarks on facebook and made statements to his children about carrying and acquiring firearms including a rifle and handgun and concealing them in a zipped pocket in his jacket. I understand the District Attorney has a taped recording of Judge Dupuy's children discussing this. 
Courthouse employees and attorneys are discussing numerous accounts of erratic behavior and mood swings. Media accounts are describing his behavior as bizarre.
I have worked for this county since 1986. Prior to that I came to the courthouse with my dad before I was even in elementary school when he and my aunts and cousins worked here. Never in my almost 52 years did I ever expect to have to write an email to elected officials asking how they intend to protect the public, the other elected officials and courthouse employees from a member of the judiciary.
Amazingly enough this is not even the first time I have had to approach those in authority to ask for protection for the Galveston County employees and the public and his own family from an elected official. That former elected official was ultimately prosecuted, was incarcerated and then charged again with violent crimes. And in the end those in charge stepped up and did what was necessary to protect everyone from danger.
I never expected that circumstance to occur again my lifetime , much less only months later. But here we are. Everyone of us was entrusted by the citizens to do what is necessary to protect the people who come into this courthouse.
So now I ask those of you elected to govern what is being done to protect everyone? 
Judge Susan Criss

While there is no mention of the county judge who requested armed security at the monthly judges' meeting, there are only two other misdemeanor judges - John Grady and Barbara Roberts. It's a pretty good bet that it was Judge Roberts who made the request.

Judge Dupuy blows off the letter as "politics," but that doesn't explain why a fellow judge felt the need to ask for security at a judge's meeting in the courthouse.

Tuesday, February 19, 2013

Attorney General to investigate Galveston judge

Oh, how much hotter the seat behind the bench in Galveston County Court at Law No. 3 must be today. Now, instead of being investigated by the Galveston County District Attorney, Christopher Dupuy finds himself in the crosshairs of the Attorney General's Office.

Galveston County DA Jack Roady has handed off the ball to Greg Abbott's office in order to avoid having Judge Dupuy recused in every criminal case on his docket.  Mr. Roady also confirmed that there have been multiple complaints about Judge Dupuy filed with his office.

Mr. Dupuy claims the complaints are politically motivated, but then no one has ever accused him of being able to think clearly. Questions about his fitness to serve on the bench have been raised since he won the election in November 2010.

If voters in Galveston County are paying attention to the antics on 59th Street, this should serve as a warning to the dangers of blindly pulling the straight ticket lever in the voting booth. Those who went to the polls in 2010 obviously weren't aware of Mr. Dupuy's past - I find it hard to believe that many folks would vote for an attorney on probation from the State Bar for judge.

The clock is ticking on Mr. Dupuy's time on the bench. The only question now is whether or not he will be allowed to serve out his term.

Like we don't have enough laws on the books

The other day my eye was caught by a Grits for Breakfast post about the number of bills proposed this legislative session that would either create new criminal offenses or enhance penalties for existing crimes.

At some point we need to have a little bit of sanity in Austin. We don't need a bevy of new criminal offenses. What we need is some serious analysis of what's now on the books. We need to ask our legislators whether our existing penal code makes sense - and whether we can afford to keep doing what we're doing.

At the rate we're going there is going to come a day when everyone on this state is either a convicted criminal or on paper. Hell, we might need to start charging fetuses with something or another so that they will be under the government's thumb from the get-go.

Of course it's better politics to say "there ought to be a law..." whenever something bad happens to someone else - unless that law would, in some way, restrict the ability of a god-fearing Texan to load up on as many guns and rifles as he can fit in his survival bunker and as much ammo as he can fit in his tote from the Container Store. No one gets elected because they got rid of an unnecessary provision of the penal code - hell, it's in there for a reason, ain't it?

We need to take a serious look at our drug laws. What we're doing isn't working - and I don't think anyone would disagree. The first thing I would do is reduce - by one degree - the punishment for all drug possession offenses. It makes no sense to charge a person with a state jail felony for possessing less than a sugar packet-full of cocaine. It makes little sense to arrest a kid for possessing less than two ounces of marijuana.

Possession of less than two ounces of marijuana should be a Class C misdemeanor fine-only offense. In many counties if you're charged with possession of marijuana you can negotiate a plea to a charge of possession of drug paraphernalia, a fine-only offense, instead. Why bother with the charade any longer?

At some point I would hope we realize that the criminal (in)justice system is not designed to handle public health issues like addiction. And I don't care how many "drug courts" you come up with - addicts need treatment and, if that treatment is going to be successful, it needs to be voluntary. We don't need the courts waiting to pounce on the recovering addict who falls off the wagon now and then. He or she needs encouragement - not a seat on a hard wooden pew or a bed in the jail.

Instead of increasing the number of crimes and jacking up sentences, we need to spend money on drug treatment and rehabilitation programs so that the addicts caught up in our criminal (in)justice system - mostly lower income blacks and Latinos - don't end up in a revolving door to the jail.

But then, actually addressing a problem isn't nearly as sexy for a legislator as standing in front of a microphone and telling the voters that "there ought to be a law..."

Monday, February 18, 2013

I'm still waiting...

The Harris County Criminal (In)justice Center is a 20-story building. There are two banks of elevators for the public. One bank takes people up to the 10th floor and the other bank services the upper 10 floors of the building. There is one main entrance with two entrances. There are four metal detectors.

Docket call in most courts is 9:00 a.m. This is the scene this past Wednesday morning at 8:55 a.m. - five minutes before docket call.

For the first year I was in practice I had to stand in these lines and pass through the metal detectors. Now, to be fair, the lines don't look like this everyday - but it happens enough when it's cold, raining or boiling hot to make the entire experience one massive headache.

So, to avoid standing in the lines, I applied for a frequent court visitor badge. I had to undergo a background check and pay some money but I got my card that allowed me to pass into the building like a ninja. But why should we be forced to get a card in order to walk into the courthouse unimpeded?

Prosecutors get their cards with their jobs. They can walk into the building carrying a weapon and no one will say a thing. It is my understanding that someone in the DA's office can veto an attorney's application for the badge.

What gives? The last time I checked, the courthouse belonged to the people. That's all the people, not just those who work in, for and with law enforcement.

All attorneys, whether prosecutors or defenders, are officers of the court. There is no good reason that any attorney should have to pay for the privilege of walking into the building without having to strip to pass through the metal detectors. The entire charade is nothing but a power play by the county to show us all who's (supposedly) in charge.

Every attorney who's a member in good standing with the State Bar of Texas should have unfettered access to every courthouse throughout the state.

Saturday, February 16, 2013

Yet another black-robed prosecutor in Harris County

On Thursday, Gov. Rick Perry appointed former Harris County Assistant District Attorney and current executive director of Crimestoppers, Katherine Cabaniss, as presiding judge of the 248th Judicial District Court.

According to Ms. Cabaniss' biography, she worked for a civil litigation firm before joining the DA's office. She was a prosecutor for 11 years (and emphasizes that she obtained a death sentence in a capital case) before leaving to head up Crimestoppers in 2006. So, by my calculation, for the last 18 years, Ms. Cabaniss has worked either to send folks to prison or to help the police solve crimes. In other words, her entire background is in assisting the state in criminal prosecutions.

Yes, Murray, I'm sure she's a really nice person, but that's not the point.

The point is she will be presiding over criminal trials in which questions of the honesty of police officers and the legality of their actions will be raised. She will be asked to make decisions on those questions that will affect the lives of the defendants, and their families, standing before her. And she has never been on the other side.

Her entire career has been on the enforcement side. She's never had to stand next to a client being sentenced to a lengthy stretch in prison. She's never had to comfort the wife, the mother, the father or child of a client who's been sentenced to years in prison. The numbers are an abstraction to her.

Her entire career has been spent assuming that police officers are being truthful in their reports and when testifying at trial. She's never discussed an offense report with a client who insists that the officer is lying and that things didn't happen the way the man with the badge said they did.

There are far too many judges in the criminal courts who have never stood beside a person accused by the state of committing a crime and challenged the evidence before the court. There are too many judges who view their bench as an extension of the District Attorney's Office.

Here we go again.

Friday, February 15, 2013

The noose tightens

On Wednesday I mentioned that Christopher Dupuy, the judge in Galveston County Court at Law No. 3 was under criminal investigation for using county equipment to assist his paramour in a legal dispute. Last night the Houston Chronicle ran this story announcing that the Galveston County District Attorney's Office acknowledged the investigation.

Dupuy has denied the allegations and claims that Galveston attorney Greg Enos filed the complaint with the DA's office for political purposes.

But the truth came out in a hearing the other day when Mr. Dupuy's girlfriend admitted under oath that she was engaged to the judge and that he provided her with legal advice back in December. Mr. Enos turned over a copy of the fax to the DA's office back in December.

The time has come for Mr. Dupuy to step down from the bench. He has made a mockery of justice in Galveston County. He has embarrassed himself. He is a menace to justice.

Whether his colleagues on the bench have what it takes to tell him it's time for him to go is another question. The longer they allow him to roam unchecked, the worse the situation becomes.

With the sworn testimony of his fiancee nailing him for using county equipment to provide her with legal advice (an ethical violation, by the way), the path to his departure may be laid out. Facing a choice between stepping down and fighting criminal charges would seem to be an easy and logical decision to make.

But, then again, we're talking about Christopher Dupuy.

It's the very least he could do

In his State of the Union address, President Obama announced that he would push for an increase in the minimum wage to $9 an hour. He proclaimed that this change would allow more working folk to make it into the mythical middle class.

Well, let's take a look at that number. At $9 an hour, that makes $360 a week for a full-time employee -- if nothing is taken out of that check. Of course with federal income tax withholding and FICA tax withholding and health care premiums coming out there won't be much left (but let's just pretend).

That $9 an hour works out to $1,560 a month and a whopping $18,720 a year. I'm sorry to burst the President's bubble, but ain't nobody escaping poverty at $9 an hour.

But it's all a moot point because the Republican-controlled House will never pass legislation raising the minimum wage. They will argue that raising the minimum wage will kill jobs. They will argue that it will drive up costs for businesses. Of course no one will raise a peep about the millions of dollars showered down on CEO's and other top-level executives year after year. No one will talk about the vast stores of cash major corporations have been hoarding since the crash.

And let us never forget that these are the same wingnuts who argued that taxes shouldn't be raised on the wealthiest among us during the "debate" over the so-called fiscal cliff. The same folks shouting that raising the minimum wage is a bad idea are the folks who championed cutting Medicare and Social Security at the end of last year.

And, lest President Obama escape unscathed, let's recall that back in 2009 he promised to raise the minimum wage to $9.50 during his first term. Let's not get too ambitious there, Mr. President.

While the minimum wage does need to rise, let's not kid ourselves about the benefits of raising it a bit over a buck on hour.

Real wages (wages adjusted for inflation) have stagnated in this country over the past 40 years while corporate profits have skyrocketed. The official unemployment rate hovers near 8% while executives are taking home more money than ever before.

The minimum wage should be increased - but that alone will not solve the problems of growing inequality in this country.

Thursday, February 14, 2013

Where there's smoke, there's a microphone

The fix was in from the beginning. You know it. I know it. We all know it but the government is deadset on proceeding with a show trial in the best traditions of the Soviet Union and China.

Khalid Shaikh Mohammed and the other accused ringleaders of the 9/11 attacks don't stand a chance. The deck is stacked against them. Military tribunal. Evidence of torture is inadmissible (what a delightful irony). Defense attorneys forced to sign agreements not to disclose certain information. They might as well have signed an agreement to defend their clients with one arm tied behind their backs and a gag in their mouths.

We've already heard that a government agency is listening to the court proceedings and hitting the silence button whenever someone brings up something embarrassing that the government insists is confidential. But even that is not enough.

The latest allegations have to do with smoke detectors in the huts where attorneys visited with their clients that weren't really smoke detectors. They were listening devices.

The government has assured the court that these devices weren't being used to eavesdrop on attorney-client conversations in the huts. And, well, if the government says they didn't do anything wrong, who are we to disbelieve them?

And then there's that little matter involving the opening of legal mail coming into Guantanamo. Back in 2011, because there was some alleged contraband coming into the base, government officers opened all mail delivered to the detainees - including mail from their lawyers. Once again, government officials insist that the mail was just opened to make sure there was no contraband present and that no one ever looked at the contents of the letters. Now doesn't that just make you feel so much better?

These trials should have been conducted in public courtrooms in the United States. The government should have been held to its burden of proof and not have been allowed to hide behind the curtain of "classified information." Any information obtained through the use of torture should have been deemed inadmissible. Admissions that the huts in which defendants met with their attorneys and admissions that legal mail was opened should have led a judge to dismiss the prosecutions.

While these men may be viewed as the ultimate embodiment of evil by some, they still deserve a fair trial. In fact, they deserve a "fairer" trial because of how unpopular they are. You see, it's really easy for folks to turn a blind eye to the excesses of the government when the defendant is unpopular or accused of a truly heinous act. And once we have agreed that he is not as deserving of a fair trial as someone else, it becomes easier for the government to do the same to someone else.

See also:

"The (show) trial of the century," The Defense Rests (12/14/2012)

"Judge, jury and executioner," The Defense Rests (8/8/2012)

"Let the show trial begin," The Defense Rests (5/7/2012)

Wednesday, February 13, 2013

Dupuy is at it again on the island

It seems that Judge Dupuy has been tilting at windmills once again down on the island. First he went after associate judge Suzanne Schwab-Radcliffe, alleging that there was an inherent conflict of interest in her sitting part-time as the associate judge in the 306th Judicial District Court and practicing family law in the county courts at law.

While many attorneys down on the island were beside themselves when Judge Dupuy went after her - for once he got it right. My dad use to tell me that even blind pigs find an acorn every once in a while. The State Commission on Judicial Ethics agreed with Judge Dupuy and issued an opinion that it wasn't proper for Ms. Radcliffe to continue to sit as a judge in Galveston County while litigating divorce cases in the county.

I know several traffic ticket attorneys who sit as judges both in Houston and some of the surrounding municipalities. Their contracts with those courts state that while they can continue to defend folks who are cited for traffic violations (and other Class C misdemeanors), they cannot take any cases in the jurisdiction in which they sit. And that makes sense.

Of course that wasn't Judge Dupuy's motive. It would appear that he has a romantic interest in a person who is involved in domestic litigation in Galveston County. He is also under criminal investigation for using county equipment to assist his paramour with her suit. It should be pointed out that he decided to run for the bench in order to disqualify then-judge Roy Quintanilla from presiding over his divorce trial.

His latest crusade is against Galveston attorney Lori Laird. Ms. Laird (click here for Ms. Laird's blog) had the audacity to file a motion seeking to recuse Judge Dupuy in a family matter (I'm sure the fact she represents the judge's ex-wife in a custody suit has nothing to do with it). Judge Dupuy took umbrage at the suggestion that he could not sit on the bench impartially and preside over a trial. Instead of agreeing to recuse himself or sending the motion to Olen Underwood, the administrative judge for the region, Judge Dupuy tried to cite Ms. Laird for criminal contempt.

Apparently Ms. Laird's motion "tended to disrespect authority." He also alleged that it was unprofessional and obstructed the court's ability to do whatever it is his court does. I just wonder if he's going to seek contempt citations against the District Attorney for prosecuting cases that have no business in a courtroom.

I have yet to figure out what rule Ms. Laird broke by filing the motion. He may not have liked the allegations and the insinuations in the motion, but that is hardly a legitimate reason to try to cite an attorney for criminal contempt.

The other day on the second floor of the Galveston County Courthouse (not that this means anything, but the second floor of the Harris County Jail houses the psychiatric ward), a circus hearing was held. For almost two hours, Judge Dupuy asked Ms. Laird's attorneys if they would defend, explain or apologize for the allegations made in Ms. Laird's recusal motion.

The antics in Court Three would be funny, except that there are people's lives at stake. The man sits on the bench because Republican voters in Galveston County couldn't care less who's running for office - provided they have an "r" after they name on the ballot. These god-fearing, gun-loving wingnuts didn't care that Mr. Dupuy was suspended from the practice of law at the time he was running for the bench. They didn't care that he had faced numerous complaints of being incompetent.

I once represented an indigent client in Judge Dupuy's court. I had investigated the case and discovered that the arresting officer had lied about the circumstances surrounding the arrest - and I had the goods to take him down on the stand. My client missed court one day and was picked up when his bond was forfeited. The judge, despite my being the man's attorney of record, signed an order appointing one of the lawyers working the jail docket to represent him. That attorney (and I use the word lightly) dutifully pled my client out without conducting any investigation. I found out when I went to file a motion in the case and was told it was a closed case.

I spoke with Ted Weems, the misdemeanor chief in Galveston (and a good guy to boot), and he agreed that my client was entitled to a new trial. I drafted up an agreed motion for new trial, Mr. Weems signed it and we presented it to Judge Dupuy. He looked at it and asked me what he was supposed to do with it. I told him he was supposed to sign it. He disappeared in his chambers and we waited 45 minutes until he reappeared and signed the order granting my client a new trial. I then showed the "smoking gun" to Mr. Weems who promptly dismissed the case.

Christopher Dupuy has no business sitting on the bench. And the longer he sits there, the more reasons he gives us.

Tuesday, February 12, 2013

Texas is paying the price for its tough on crime stance

How much is a wasted life worth? Is it even possible to compensate someone for being wrongfully convicted?

The State of Texas is paying the price for its tough on crime stance over the years. Judges, prosecutors, police officers and whores experts-for-hire played the game for years. Prosecutors hid the evidence that didn't fit into their story of how the crime occurred. Police officers lied on the stand about how they went about finding the goods on the bad guy. And judges closed their ears and looked the other way when the snake-oil salesmen peddling junk science took the stand and testified for the state.

Michael Morton, who spent some 25 years in prison for a murder he didn't commit is the latest high-profile inmate to be exonerated. The state is paying him $80,000 a year for the rest of his life and providing health insurance as its penance for taking a huge chunk of his life from him.

Tim Cole and Cameron Willingham weren't so lucky. Mr. Cole was convicted of rape but was exonerated posthumously. Mr. Willingham was strapped down to a gurney and murdered for a crime that never happened.

Now politicians are seeing dollar signs. Two years ago the state whacked over $5 billion from public education. Why are we paying these men who were wrongly convicted so much, they ask. Why don't we take some of that money and put it back into education?

For too long the courts and the public looked the other way while folks got railroaded in the courthouse. For too long men and women who did nothing wrong sat behind bars because our criminal (in)justice system didn't work right. Those men and women lost years of their lives that can never be replaced - no matter how much money you put on the table.

We're told in law school - and in the movies and on TV - that our adversarial system is the crucible of truth. We're taught that a trial is a search for the truth of what happened.

That's bullshit. A trial isn't about discovering the truth.  A trial is about whether or not one side proved its case. That's it. There's no truth in that. You tell a story and I tell a story. The folks sitting in the jury box listen to both and decide which one they like the best.

The result is a system where actual innocence isn't grounds for appeal.

If lawmakers want to reduce the amount of money being spent on exonerees, then let's do something about reducing the number of wrongful convictions in Texas.

Monday, February 11, 2013

The boys of summer are back

Today we hear the best four words during the winter - Pitchers and catchers report.

Sure, it's just the Astros who are giving us nothing to look forward to this season. They are looking at their third straight 100 loss season with no end to the misery in sight.

The problem is that the Astros spent too many years trying to figure out how to build the club. As I've written before, you can either build a club through homegrown talent down on the farm or you can spend a mint signing free agents. Develop your own talent and you can win on the cheap; rely on the free agent market and you'll be bleeding cash.

The Astros, on the other hand, tried to build a winning club by trading minor league prospects at the trade deadline for "rent-a-players" heading into free agency. The problem was the free agents weren't resigning with the club. The result was a depleted farm system. And, since the club didn't want to open up the wallet to buy proven talent, they always came up a bit short.

With nothing good down on the farm, and without the cash to sign A-list free agents, the only option was to strip the club down to the studs and try to rebuild. And what a painful project that has turned out to be.

But, being that it's baseball, the sun shines a bit brighter, the sky's a deeper shade of blue and the grass is soft under the feet. Even though I know better - it's time for baseball!

The scourge of specialty courts

Anyone charged with a crime is entitled to their day in court. They are entitled to a trial by jury. They are entitled to confront the witnesses against them. They are entitled to put on evidence in their behalf. They are entitled to remain silent.

Upwards of 90% of cases in Harris County are resolved short of trial. The cases are either dismissed or the defendant enters into a plea bargain agreement with the state.

The cases are resolved because an investigation by both the state and defense either point out fatal flaws in the state's case or provide more than enough incentive for the defendant to cut his losses. Of course I am leaving out those cases in which defendants who couldn't make bail plead out in order to get out of jail - but that's another story for another day.

This traditional model in which a case is subjected to the crucible of truth in which two opposing advocates test the evidence presented to the court at trial.

None of this applies, however, if you find yourself in a specialty court - whether that be drug court, DWI court, mental health court or veteran's court. None of those courts is designed with the adversarial process in mind. The entire purpose of those courts is to get a defendant to enter into either a plea agreement or a pretrial diversion agreement and subject himself to monitoring for an extended period of time.

I'm sure courts for those with eating disorders or for those who wet the bed when they were little will be here before we know it.

Forget all about that crucible of truth. The only way a defendant in a specialty court gets relief is if he 'fesses up to what the state says he did. Everyone's part of the same team. We're all in this together, you know. Supposedly this is for the benefit of the defendant so he or she can seek treatment.

But, if someone needs treatment for a mental health or addiction issue, why are we using a sledgehammer (the courts) instead of a scalpel (professionals) to fix the problem? In the real world treatment works in fits and starts. Folks tend to fall off the wagon every now and then on their way to recovery. Those episodes should be treated for what they are - part of the recovery process - and not as a reason for the criminal (in)justice system to get involved.

If we are being honest with ourselves we will admit that you don't treat mental illness in the criminal courthouse - much like you wouldn't conduct surgery in the middle of the courtroom.

If the goal is to treat those folks with addictions so that they can overcome those addictions, then they need to be in rehab or a similar setting. They need counseling and support in order to beat back their demons. They don't need a judge holding a sword over their head. Fear is not a good motivator. The best motivator is a desire to kick the addictive behavior. Treatment works best when the patient is there because he or she decides it's what they need to do.

As for those with mental health problems, they need psychological or psychiatric help. But that therapy can only be successful if the patient wants it to be. A person seeking treatment because they have to is less likely to be successful than a patient who's there because he wants treatment. Besides, if a person has a mental health issue that's so severe they need to be transferred to a mental health caseload - then we probably have a problem with the requisite intent to commit the crime.

Maybe there is a noble purpose behind this growing trend of specialty courts - but the reality on the ground is that they subvert our criminal (in)justice system by depriving the accused of their rightful day in court.

Sunday, February 10, 2013

Give us this day our daily opiate

From the "ignorance must be bliss" files we have this bumper sticker found in my daughters' school parking lot that gives us the potent mix of guns, god and the GOP.

This idea that god is on our side because we are more righteous than anyone else is key to they way in which religion is used as an organizing tool by those in power. Forget that little commandment that tells us not to kill. That's just a technicality. 

The logic is flawed from the get-go. You say your god is a loving god. You say your god loves all of "the children." You tell us that your god is pro-life. Yet you believe that this god of yours would, and should, cast his blessings on the people carrying guns around and firing on other folks because of the color of their skin, or the clothes they're wearing or the religion they practice or whatever reason we're at war somewhere in the world.

Enjoy your opiate.

Friday, February 8, 2013

Rick Perry's love of (un)limited government largesse

In a continuation of a story that just never seems to get old, Governor Rick Perry has handed in another bill for the security detail that accompanies him whenever he sees fit to travel. The latest bill is for more than $140,000 - a large chunk of which was for a trip he and the missus took to Italy during the fall of 2012.

In rejecting calls that he reimburse the taxpayers of the state for the expenses, Mr. Perry claims that he has no say in whether the DPS sends security with him when he leaves the state. After all, he's still the governor.

And that raises a very interesting point. Mr. Perry's job as governor is to serve as the head of state for Texas. As governors go, he has very little power - the most powerful statewide office is that of Lieutenant Governor since he appoints committee chairs, presides over the State Senate and gets to break tie votes. Of course he's only paid the same as any other legislator and doesn't get to travel to exotic locales and bill the taxpayers for the security detail.

Mr. Perry's job, on the other hand, only seems to entail denying requests for stays of execution and traveling.

Mr. Perry claims his trip to Italy was official state business. But that seems a bit fanciful - being that Italy is a whole other country and that this thing we call the Constitution tells us that the federal government gets to handle foreign diplomacy.

And that trip to the Ferrari factory and the Formula 1 Grand Prix at Monza? Well, since Austin was hosting the latest iteration of the United States Grand Prix (and getting a chunk of taxpayer money to do so) that was  business.

If the taxpayers are expected to pony up for the cost of Mr. Perry's security details, then the least we can demand is that we are only billed for security provided on official state business. It's not the taxpayer's job to pay to stoke Mr. Perry's ego while running a pathetic campaign for the White House or while he's traveling around Italy looking at Ferraris.

But then that wouldn't comport with Mr. Perry's view of limited government, would it? As I've stated before, Mr. Perry believes that the role of government in regulating business and protecting the environment should be limited. He believes the ability of the government to fund public education and to provide assistance for those in need should be limited. But he sure as hell doesn't think his ability to dip his grimy little paws into the state treasury should be limited.

And now Gov. Goodhair is heading out to California to prostitute himself in an attempt to attract businesses to relocate to Texas. We should be getting the bill for that one soon. I heard that little tidbit on KUHF (the local NPR station) yesterday. Of course, since the mission of the KUHF "news" department is not to offend anyone, no one bothered questioning whether the trip had anything to do with his duties as governor. Pretty much par for the course for the boys and girls on Cullen Boulevard.

Thursday, February 7, 2013

Speaking out

Brooklyn College finds itself today in the middle of a sea of controversy over a forum being held on campus by a group, BDS, calling for boycotts, divestitures and sanctions against Israel for its policies in the occupied territories.

The reaction among elected officials in New York was very predictable. State legislators and city councilmen all called on the school to cancel the forum. Some went so far as to advocate cutting funding to Brooklyn College if it didn't cancel the event. The politicians are upset because someone has the gumption to criticize Israel.

Critics say that the forum will be one-sided because no other group, or individuals, were invited to participate. Well, guess what, media coverage of Israel in this country is extremely one-sided. While these politicians have a problem with the forum, they have no problem with the human rights abuses Israel has committed in the West Bank and Gaza. While they have a problem with free speech, they have no problem with Israel violating international law by encouraging new settlements in the occupied territories.

Maybe these grandstanding politicians should take some time to review the First Amendment. It's a beautiful thing this right to free speech - but it comes with a price. Not all speech is pretty. Not all speech is popular. Some of it, in fact, is downright nasty. That's just the way it works.

Today it's your ox getting gored - tomorrow it'll be someone else's. But we don't get to cherry pick the speech we want to be protected. If we start taking away the right to say something that's unpopular then sooner or later you're going to lose your right to say what's on your mind. And there won't be anyone to fight for you right to say it.

As to the criticism that only one side will be heard, I can only say so what. I went to plenty of events while a student at UT in which two opposing speakers debated each other. The problem is folks go to those events because they agree with one point of view. No one is going in with an open mind. The participants spit out their applause lines and gimmick phrases and the crowds respond like Pavlov's dog.

Colleges and universities are our hottest beds for the free exchange of ideas. That's something that's sadly missing out in the "real" world. And politicians aren't interested in ideas. They are only interested in the views that their pollsters tell them will get them over the hump in the next election. The last thing we need are politicians dictating to colleges what can and can't be taught or debated on their campuses.

If you want an unquestioning and compliant populace, then shut down all debate and force people to conform to the views held by those defending the status quo. But, if you want a vibrant and colorful society, then you've got to loosen up and allow the free flow of ideas to rain down.

H/T Democracy Now!

Wednesday, February 6, 2013

It's okay because I said it's okay

First forget about all the niceties we've come to appreciate. I'm talking about the Due Process Clause, the right to trial by jury and the Sixth Commandment ("Thou shalt not kill."). Because under President Barack Obama, they aren't worth the paper (or stone tablet) they're printed on. At least not when it comes to killing US citizens abroad.

NBC News got their hands on the white paper issued by the Department of Justice that serves to rationalize the "targeted" killing of US citizens abroad in our ongoing War on Everything Terrorism.

According to the white paper (apologies for NBC feeling the need to plaster its watermark all over the paper rendering parts of it illegible), there are three factors that must be considered when determining whether it's okay for our government to kill one of its citizens abroad. The killing will be considered legal if (1) a government official decides that the targeted individual poses "an imminent threat of violent attack" against the US; (2) a government official decides that it isn't feasible to capture the targeted individual; and (3) the killing follows generally accepted wartime practices.

In other words, the US government can order the killing of a US citizen abroad it the government damn well feels like it. What else could it mean? Government officials get to decide if the target is an imminent threat and if it would be too much work to try to capture him alive.

Anyone else see the problem there?

According to the paper there's no due process implications involved because the nine in robes have proclaimed that ones due process rights are subject to a balancing test. And, as anyone who has ever reviewed balancing tests knows, they are nothing more than a justification for the government to infringe upon the rights of an individual.

One either has due process rights or one doesn't. Ones due process rights either are enforced or they aren't. Either the government is sanctioned for violating them or it isn't. A balancing tests makes black letter law all murky, mushy and grey.

And, lest someone bring up the ban on government-sponsored political assassinations, just forget about it right now. You see, the author(s) of the paper have declared that the targeted killing of a US citizen allegedly working for the enemy isn't the same as an assassination. There's that whole war thing going on.

But, not exactly.

Those pesky little al-Qaeda boys aren't exactly a nation. There has never been a formal declaration of war against al-Qaeda - mainly because there's no nation to declare war against. So, if there is no declared war against al-Qaeda, then the targeted killing of a US citizen working with, or for, al-Qaeda isn't an act of war. It is, instead, the killing of a person for political purposes. Oops. That sounds a lot like an assassination to me.

I suppose one could argue that killing a US citizen who has taken up arms on the side of the Iraqis would be different, as would the same scenario taking place in Afghanistan. But that's not where the US government has targeted its own citizens for killing. Those strikes took place in Yemen - and the last time I checked, Congress never declared war on Yemen.

Of course that argument will never do. So, the paper argues that our government's fight with al-Qaeda is analogous to war. It's not our fault, after all, that they aren't a nation-state, is it? Thus the Obama Administration argues that it is justified in killing US citizens anywhere they may be abroad - even if there is no armed conflict going on in that nation.

Our government gets away with this because we allow it to happen. We have stood by and watched as state and federal governments have whittled away at our once sacrosanct Constitutional rights. They weren't taking away our rights, we told ourselves - they were just taking away the rights of those criminals. Now President Obama has decided that he has the right to suspend the Constitution when it comes to killing US citizens abroad. But we're talking about terrorists, you say.

Maybe, but the rights that protect him are the same rights that protect the rest of us. The Constitution divided the powers of government among three branches. It's not the job of the executive to determine whether a US citizen is guilty of treason - that's the role of the courts. In usurping the powers of the judicial branch to suit his political aims, President Obama has violated his oath of office.

Will anyone tell the emperor he has no clothes?

Tuesday, February 5, 2013

Book review - Democracy at Work: A cure for capitalism

Sluggish job growth. Declining real wages. A sputtering economy.

We don't just have a few minor problems to tweak to get the country moving again - we've got systemic problems that won't go away.

Economist Richard Wolff's new book, Democracy at Work: A cure for capitalism, takes the struggle for democracy to a new place - the workplace. Mr. Wolff believes we can have all the democracy we want in our electoral system, but unless we make the workplace more democratic, our electoral democracy will never be complete.

Corporations have spent decades trying to squeeze out every last drop of profit from their workforce. When they had squeezed as hard as they could but couldn't get one more drop, they packed up the factories and moved them overseas to take advantage of cheaper labor and more favorable government treatment abroad.

The result has been more and more profit for those running the show and less for most everyone else.

Lest you think Mr. Wolff is just spewing vitriol on one side, he also has very harsh words for the former Soviet Union and its allies. As Mr. Wolff explains, there was little difference between a Soviet state-owned enterprise and a shareholder-owned enterprise in the US. In both settings those who ran the plants controlled the surplus value created by the workers (the profit). In neither instance did the workers have a say in how the business operated. Hence, there was (and is) no democracy in the workplace - and the workplace is where we spend the majority of our waking hours.

Mr. Wolff's solution? Workers' Self-Directed Enterprises (WSDEs).

In a WSDE the workers who create the surplus value determine how that surplus is distributed. The workers decide what is made, how it is to be made and how to divide the labor. The worker is no longer a cog in a large wheel, the worker now has a stake in the future of the enterprise. As an example of a successful WSDE, Mr. Wolff directs our attention to the Mondragon Corporation in the Basque region of Spain.

He is under no illusion that the transformation will be easy. But it's a pretty good bet that the workers directing the enterprise won't be voting to send their jobs overseas in the name of higher profits. It's a good bet that the workers directing the enterprise won't choose to use production methods that are hazardous to workers or the environment.

Monday, February 4, 2013

Death of a sniper

I have spent the last couple of days trying to decide the proper tone for commenting on the death of Chris Kyle. Y'all might remember that about a year ago I reviewed Chris Kyle's autobiographical work, American Sniper. I criticized Mr. Kyle for his callous attitude toward death. Mr. Kyle shot at men and children from afar - and then mocked the people who mourned the loss of their friend, relative or compatriot.

While I certainly don't take joy in anyone's death - it's hard not to be struck by the irony of a publicity-loving former sniper being gunned down at a gun range in Texas. Some have even used the word "karmic" to describe the incident.

Former US Congressman Ron Paul wrote that Mr. Kyle's death confirms that "he who lives by the sword, dies by the sword." It is hard to have much sympathy for one who took so much joy in killing others.

Mr. Kyle has been described as a hero for his "work" in Iraq. There is nothing heroic about sitting in a sniper's nest and shooting people at long range. There is nothing heroic about killing, period. If you want to see heroes in action, go to a school and watch the teachers help shape and mold our next generation. If you want to see heroes, go to the ER at an urban trauma center and watch the doctors, nurses and orderlies do everything in their power to save lives.

Now Mr. Kyle is dead. He and a buddy took a veteran of the war in Iraq, who suffered from post-traumatic stress disorder, out to a gun range and, in what can only be described as an ironic ending, the veteran shot and killed them both at close range. The shooter did what Mr. Kyle never did - he shot his target face-to-face.

The other lesson this teaches us is that it doesn't matter how heavily armed you are, if your assailant surprises you, there's very little you can do. Mr. Kyle was armed to the teeth. He was a sniper. His killer got the drop on him and there was nothing Mr. Kyle could do. Having a firearm in your house might make you marginally safer, but carrying one out in public will have little or no effect because mass shootings aren't telegraphed.

Never forget that Mr. Kyle was an invader in a foreign land killing folks who were resisting the occupation of their country. To them, Mr. Kyle was every bit the enemy he portrayed them to be in his book.

State of the union

Union membership in the United States is at its lowest point since the Great Depression. Today only a shade over 11% of the workers in this country belong to a union - and most of those folks work in the public sector.

Starting back in the 1970's, US employers began shipping jobs overseas trying to take advantage of cheap labor, lax environment laws and little or no regulation. Now economists will tell you that it's no big deal that manufacturing was taking flight because there'll be new jobs in the service sector (if you're old enough you've heard of the "post-industrial" society that we're becoming).

Those economists (or apologists for the existing economic system, as I like to refer to them) were half right. New jobs in the service economy were created. Unfortunately those new jobs paid a hell of a lot less than the jobs that had been shipped overseas.

Now we're told that manufacturing is making a comeback in the US. President Obama is taking credit for the  new manufacturing jobs that have been brought back to our shores. There's only one problem for the working people - the new manufacturing jobs pay less than the ones that left.

Part of this is because these new jobs are non-union. Most of these manufacturing jobs are being created in so-called right to work (for less) states. In those states with right to work laws, no one can be compelled to be a member of a union. What's the big deal, you say? Shouldn't workers have the right to choose?

Well, why would anyone choose to pay union dues when they can ride for free on the backs of the union members? If the union represents enough workers it can negotiate contracts on hours, wages and working conditions on behalf of all the workers - whether they belong to the union or not.

The workers are subject to constant propaganda from employers and politicians about how unions are destroying the economy. The purpose is to dissuade workers from joining together to fight for better pay. Besides, who was it that made the decisions to send the jobs overseas in the first place? Certainly not the union members.

The other problem facing workers is the "permanent temporary" workforce. More and more employers are relying on temp agencies to fill positions. For that, the employers pay the staffing company a fee and the staffing company pays the workers and provides them benefits. This creates a two-tiered work structure in which some workers are full-time with benefits and others are part-time or contract workers without benefits.

The result is downward pressure on wages. And therein lies the problem.

As a result of the economic collapse millions of workers lost their jobs. Some have yet to find work. Others have taken new jobs that pay a fraction of what they were making. So, while corporations are sittings on vast stores of cash, workers don't have enough money to cover their bills. And, if they can't cover their bills, how on earth are they to afford the shiny gadgets being pushed on us everyday?

This is the root cause of our economic malaise. And so long as those who pull the strings continue to drive down wages the problems will only get worse.

Saturday, February 2, 2013

Galveston by foot

This past weekend I ran the Galveston Marathon. Two years ago, when it debuted, it was christened the Galveston Mardi Gras Marathon because it was scheduled for the weekend before the island's annual Mardi Gras celebration.

From a fellow attorney who is very involved in the running community, I found out that some folks in high places were quite upset about the name of the race. If you've done any running you've certainly heard of the folks who put on the Rock-n-Roll Marathons (and half-marathons) around the country. They have built a huge marketing machine and a strong brand name.

One of the marathons they took over was the New Orleans Marathon. And, as you can probably guess, they rebranded it as the New Orleans Mardi Gras Marathon. And they were pissed at the folks on the island.

Now let's get a couple of things straight. There was no way anyone was going to mistake the race on the island for the race in New Orleans. For one, few people even know there's a marathon on the island. On Sunday there were well under 200 runners in the marathon. For another, the race was never marketed as the MARDI GRAS marathon. It was promoted as the Galveston Marathon. It's website is quite austere compared to the other guy's. The race is low key.

Besides, no one owns the rights to the words "Mardi Gras." But, to avoid the legal expense of fighting to keep their name, the organizers gave in to the big bad wolf and took the words Mardi Gras out of the name. Thankfully I still have my running shirt and medal from the first one and they say "Mardi Gras."

But, back to the race.

It was a little bit warmer than ideal - but at least it wasn't a near-freezing monsoon like Houston. It's also cool to run along the seawall and see the waves crashing onto the beach and to see the tourists doing their thing along the water. The course goes all the way up to East Beach and there is one stretch that makes you feel you are out in the middle of nowhere - especially on the second loop when all the halfies are done.

The organizers have made great strides in the last two years. The first year there were problems with water stations not having enough water. That wasn't a problem on Sunday. The volunteers who manned the tables did an awesome job. And, after running in the custerfluck that is the Houston Marathon, it's nice to be able to run without banging into other runners. There's also something to be said for being out there on your own with nothing but your thoughts to keep you company.

Most of the course (at least 20 miles worth) is on asphalt - and it is so much easier on the muscles and joints than concrete. You don't realize until you've run 26 miles just how much more give there is with asphalt. There is trade-off, however. In exchange for not having to deal with sore calves and knees and thighs, you have to deal with sore feet. The bottoms of my feet took a beating from the uneven surface - but I'll take that over sore calves any day.

My only complaint about the race is traffic control. Along 25th and the Seawall there is no issue. But there are plenty of intersections along the course without traffic lights or police officers and it has the potential to get a bit dicey every now and then. Now I understand the problem - there just aren't as many law enforcement officers on the island as there are in Houston. But, then, there also isn't as much traffic, either.

All in all I had a good time - and beat my Houston time by a minute to boot.

Friday, February 1, 2013

Time to change the model

Our current Fourth Amendment jurisprudence is based upon what now must seem like a quaint concept - the reasonable expectation of privacy. In order to determine if police action constituted a search the court would ask whether or not the target of the action had a reasonable expectation of privacy in what they were doing.

For instance, if the target of police action was talking on a pay phone (if you've never heard nor seen such a thing, just look it up on Google), it was not considered good cricket if the police tapped that phone to listen in on the conversation. In theory a person had a reasonable expectation of privacy when standing inside a phone booth - even though the phone wasn't in their home.

The test also worked against individuals when they had no legitimate expectation of privacy. Airport security is the best example of this. If the government tells you they are going to x-ray every bag and force everyone boarding a plane to walk through a metal detector or body scanner - you can't make a claim that you had a reasonable expectation of privacy regarding the gun in your bag.

But this paradigm has run aground. Justice  Sotomayor wrote about it in her concurring opinion in U.S. v Jones (see "Hey kids, get out of my yard!")

With all of our new shiny gadgets how much of a reasonable expectation of privacy do we have? Our e-mails sit on a server owned by a third party. Our cell phones have GPS devices that track us whenever the phone is on. Our conversations are carried in waves from tower to tower instead of in a cable buried under the ground. When registering products or buying stuff online we voluntarily give a third party our personal information. We post our every thoughts on Facebook and Twitter.

In short, the ways in which we communicate today have rendered the reasonable expectation of privacy test moot. And, as a result, the government has upped the ante by requesting reams and reams of personal data from internet providers and web service companies as a way of getting around that pesky requirement that they get a judge to sign a warrant.

Google publishes a transparency report that lets people know just how many requests for data they have received from government entities.

It turns out that Google received over 21,000 requests from government offices and courts during the second half of 2012 - an increase of 17% over the prior year and 71% over the number of requests in the second half of 2009. The United States government made some 8,438 of those requests. These requests range from the name associated with a given user account to e-mails.

The report also lets us know how often Google has complied either fully or partially when presented with a request. In 2012 Google complied with 66% of the requests, down from 70% the previous year and from 76% back in 2010. Google provided at least some data to the US government 88% of the time - down from previous years.

I guess this is the point we have to decide whether we're glass-half-full or glass-half-empty folks. On the half-empty side, Google is turning over information about 2/3 of the time a government entity requests it - and in almost nine of every ten requests from our government. That's a lot of data being handed over to the government about what we do online.

On the half-full side, the numbers do indicate that Google isn't just handing over the keys to the server upon request. Although los federales get at least some of the info they request 88% of the time, the rest of the requests go straight into the circular file. And there is no doubt that it frustrates government officials when they can't get what they want just by flashing a card that says they work for the government.

Ultimately we are going to have to redefine what "persons, houses, papers and effects" means as well as just what it means to "search or seize" something. Back in the day we used to write letters and drop them in a blue box with a stamp on them. Someone would then deliver those letters to people in other cities and states. Now we just type our messages on a computer and push the send button. Is there really a difference? Does it really matter whether the message is written on paper and placed in a sealed envelope or sent through the aether of cyberspace? We used to talk on corded telephones that required someone to attach a mechanical device if they wanted to listen in on our conversation. Now we talk on cell phones that record our location and send our voices through space. Is there really a difference between the two?

Justice Sotomayor is correct that we need to rethink our paradigm when it comes to search and seizure law. But maybe, just maybe, the answer is to look back to the actual words on the page and decide just what "persons, houses, papers and effects" means. Instead of creating balancing tests and checklists and looking for any excuse to create an exception to the written words, maybe we need to look to the words themselves.

Instead of looking at it from the perspective that everything must be reasonable unless..., maybe we should look at from the perspective that everything must be unreasonable unless...