Sunday, March 31, 2013

Play ball!

The Criminal Defense Lawyer Invitational fantasy baseball league is set and ready to go. We've got six teams ready to do battle over the next six months.

The participants are Franklin Bynum (uhhhhhbbbbjeeeeeccct) and Scott Pope (Ball Busters) of the Harris County Public Defender's Office; Jamison Koehler (D.C. Jail Break) from our nation's capital; Vik Vij (State of Texas) from a certain district attorney's office on some little island south of Houston; Gideon (Gideon's Trumpet) from the hinterlands of Connecticut and yours truly (Paulie-Wogs).

Good luck to everyone and we'll see who's on top come October.

Saturday, March 30, 2013

Book review - Game Over: How Politics has Turned the Sporting World Upside Down

I'm a big baseball, soccer and college football fan. I grew up playing sports and I believe that a classical education requires working both the brain and the body. My girls have been playing soccer since they were three and they both swim during the summer.

In addition to keeping up with the goings-on in the "real world," I also stay informed about what's happening in the world of sport. And that's why I find David Zirin's book, Game Over: How Politics has Turned the Sporting World Upside Down, so fascinating.

Mr. Zirin doesn't watch his sports in a vacuum. He watches it in the context of the issues that affect each of us everyday. Take immigration, for instance. Mr. Zirin recounts how the players (and owners) of the Phoenix Suns protested the anti-immigrant laws passed in Arizona by wearing their "Los Suns" jerseys for a playoff game against the San Antonio Spurs. That's something you rarely see in this age of slick marketing campaigns and celebrity endorsers. It was a courageous stand to take.

Unfortunately the same thing cannot be said of MLB Commissioner Bud Selig who had no problem with baseball's All-Star Game being played in Phoenix after the passage of the bills. It obviously didn't matter to Mr. Selig that about a quarter of the players in the major leagues aren't from the US. Most of them hail from Latin America - and those are the folks the laws in Arizona were targeted after. Mr. Selig could have taken a stand and moved the game somewhere else. The players' union could have stood up for its Latin American members. But no one did.

In Game Over, Mr. Zirin introduces us to athletes who spoke out against corporate greed during the Occupy! protests. He takes us inside the world of hard-core soccer fans (ultras) in Egypt and the role they played in the uprising that topped a dictator. He also tackles the hypocrisy of college athletics.

The big money grab in college sports has led to conference realignment and the destruction of age old rivalries all in the name of money. But who's benefiting from all the cash flowing into the coffers of conferences and schools? Not the athletes. Who's getting the money from the jersey sales and the video game sales? Not the athletes.

I don't pretend to know what needs to be done to clean up college athletics. I do know that our priorities have been turned on their heads when it comes to college sports. Should the players seem some financial benefit from their hard work and sacrifice? Would it kill the sport to pay players a small stipend each month during the season? The coaches are certainly getting paid - but no one in their right mind wants to pay an arm and a leg to sit in Memorial Stadium and watch the coaches suit up to play.

If players were to be paid a stipend it would have to be the same for every player on the team. And it would have to be the same for every school. For those schools whose athletic programs bring in big profits (The University of Texas and Ohio State University, for instance), there shouldn't be a problem treating football and basketball like work-study programs. For the majority of the schools competing on the Division I level who don't make a profit from their athletic programs, it's a different story.

Whatever your thoughts on these issues, after you read Game Over you'll never see sports in quite the same way again.

Friday, March 29, 2013

A lucky night in Mexico City

Had you done nothing but read accounts of the USA-Mexico soccer game the other night, you would have thought the Yanks made one sustained courageous stand against El Tri and were triumphant for picking up a point in their qualifying pool as a result of the 0-0 draw.

I happened to watch the game and the reality is the USA got their point not because of their tactics, but in spite of them.

The Mexicans controlled possession throughout the game. They took 17 shots on goal while the Yanks took one. The Mexicans had 15 corner kicks (including three in the game's closing minutes) while the USA had all of one.

And before anyone praises the defensive effort, I would ask that you watch a replay of the match. If you do you will see that the Mexicans missed three or four shots that should have found their way into the back of the net. The Yanks also got lucky in that there were two incidents that could have resulted in penalty kicks that weren't called. Had any one of those balls found its way into the goal, we'd be reading stories proclaiming doom on the team's chances to reach the World Cup in 2014.

In a game in which one bad bounce can spell the difference between a satisfactory result and a loss, a team can't afford to pack it in on defense and completely ignore the final third of the pitch.

As things stand the Americans can't afford to get into a shootout with anyone because they have no firepower. And, should they fall behind, it's going to be a long, hard slog to get things even again.

There is little or no creativity in the midfield. There is no one with any killer instinct sitting up top ready to poach any ball coming into the box. There is very little flow between the midfield and the attacking players.

In short, the US national team is in trouble. Jurgen Klinsmann, who was brought in to replace Bob Bradley as coach, has done little to turn this squad into a team that looks like a threat to make it through the group stage in Brazil.

My house, my rules

The other day out in one of the small towns on the Petroleum Highway (SH 225), I had a client who drove trucks for a living who had gotten a speeding ticket while driving his pickup truck. For those of y'all who don't keep up with traffic laws, commercial truck drivers aren't eligible to get a ticket dismissed through what we like to call deferred disposition.

A deferred allows a motorist to pay a fine post a bond and if he doesn't get another ticket within a certain number of days, the case is dismissed. For truck drivers the choices are plead it out or set it for trial.

And my client and I found ourselves in trial that day.

The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.

During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of the lynch mob jurors for cause as I could. After the prosecutor's rousing voir dire in which he didn't direct a single question to any member of the panel, I had little to go on. (In Texas you are entitled to a jury trial for any criminal offense - from speeding all the way up to murder).

My three questions were:

1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?

I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.

I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).

On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.

After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.

You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.

And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.

Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.

For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.

Thursday, March 28, 2013

Model behavior

The recent bank bailout in Cyprus is a microcosm of the way capitalism works. To sum it up briefly, the banks in Cyprus took in lots of money from Russian "tycoons" and made a serious of risky investments. When the investments went belly-side up the banks were left holding the bag. Without the resources to cover their obligations, the banks went to the government with their hats held out asking for money. The government then held out their hats and begged the EU to do something.

That something ended up being a scheme by which the banks will be recapitalized using the deposit money of those who have more than 100,000 euros in the bank. The government estimates that the levies may equal almost 40% of the deposits.

Capitalism thrives on one simple model - the privatization of gain and the socialization of loss. As long as that model is in effect the capitalists will thrive while the majority of the populace will suffer.

The banking crisis in Cyprus wasn't caused by those who deposited their savings and their retirement accounts with the banks. The banks' executives made the decisions on which investments to make. They chose to make risky investments while money was cheap. The government failed to oversee the operations of the banks.

You see the government decided to look the other way as Cyprus became something of an offshore haven for the wealthy folks across the continent. Awash in cash, and unencumbered by regulation, the banks gambled away their money. And, when the bills came due, they asked the government to bail them out.

The bankers got their money. They were paid handsome salaries and bonuses to gamble with other people's money. Developers in Europe got their money. They were the recipients of much of the largesse. Depositors got a handsome rate of interest as a way of enticing them to put their money at risk. The depositors had no say in the operations of the banks.

But instead of going after those who profited by running the banking system into the ground, the government has spread the loss among a broad swatch of the population. So, private actors profited by ruining the banks while the public has to pay the price for their thievery.

That's the privatization of gain and the socialization of loss in a nutshell. And those who benefit from the system see absolutely nothing wrong with the model.

Do you?

Wednesday, March 27, 2013

Drug dog day afternoon

Joelis Jardines figured he was safe inside his own house. So long as no one knew what was going on behind the doors he had nothing to worry about.

But then someone told the police that he was cultivating copious amounts of cannabis under his roof. And, the police being the police, just had to figure out a way to get inside that house. So, relying on the fact that the courts have shredded the Fourth Amendment to verge of meaninglessness over the years, someone had the brilliant idea to walk a drug dog around the front of the house.

Of course the dog did his little song and dance and one of the officers went off and found a judge who hadn't read the Bill of Rights in several years who signed off on a warrant application and Mr. Jardines found himself dragged into court charged with trafficking in marijuana.

Surprising enough the trial court agreed with Mr. Jardines that the actions of the police crossed the line and constituted an illegal search. The appeals court then reversed the trial court. The Florida Supreme Court granted Mr. Jardine's petition for discretionary review and affirmed the decision of the trial court.

This, of course, would not do for the State of Florida and the case ended up in front of the US Supreme Court to determine whether the officers' actions constituted a warrantless search.

And, in Florida v. Jardines, 569 US ___ (2013), the Nine in Robes decided that the use of the police dog on the front porch of Mr. Jardines' house was a search. The Court held that the area immediately surrounding the house, the curtilage, was a constitutionally protected space and that any intrusion in that space by law enforcement without the permission of the homeowner is verboten.

Justice Scalia's opinion harks back to the original text of the Fourth Amendment and its prohibition against searches of a person or his house, papers or effects.

The opinion does raise questions, however. Just how far will this reading of the Fourth Amendment go when we're talking about aerial drones or surveillance aircraft? While in such a scenario the police aren't physically intruding upon a constitutionally protected space - they are viewing a space that they would have no access to but for the eye in the sky. And what about devices that could detect narcotics from the street? Will the Court look to the distance from the front door or at the effect of the technology?

And while we looking at the actual words of the Fourth Amendment, how will this decision affect government efforts to intercept email and digital communications? What about cell phone GPS information? How about the contents of a laptop's hard drive? And if walking a dog around the front porch is a search of a house, how is walking a dog around the exterior of a car not a search?

The decision is another step in the right direction, now it just remains to be seen if this Court is willing to curtail police efforts to create shortcuts around the Fourth Amendment. I'm not holding my breath.

Tuesday, March 26, 2013

Too good for your own good

A public defender's office is a strange bird. It's created and funded by the same entity that is doing its damndest to restrict the liberty of the citizenry. Its lawyers are often idealistic and dedicated to the notion that everyone is entitled to a vigorous defense - yet its administrators must answer to county or state officials.

If a PD's office is "too good" at doing its job, many will walk free thanks to their efforts; but that won't sit well with government officials who must oversee the office. All it takes is a little less funding her and a smidge less over there and suddenly the work load is too much for the attorneys.

If the courts have any say in the matter they damn sure don't want more cases clogging their dockets. Judges want to move cases so they can get out of the courthouse in time to make cocktail hour before dinner. The last thing they want is the prospect of more cases going to trial.

To find out what happens when a public defender takes his oath, and his duty, seriously, all we need to do is look to Couer d'Alene, Idaho, where John Adams has been told that his services aren't needed anymore. Apparently providing a vigorous defense to those charged with criminal acts up there isn't part of the new job description drafted by county officials.

And, as if to add insult to injury, the decision to tell Mr. Adams to take a flying leap was made after he informed county officials that he had cancer and would need to take off one day a week for chemotherapy.

You see, that's the way to emphasize the point that the public defender's job isn't actually to defend the accused who can't afford to hire an attorney - the job is all about making it appear as if the county is abiding by the Fair Defense Act. For, while Gideon says that everyone accused of a crime in which jail time is a possibility is entitled to a lawyer, it certainly doesn't say how competent or effective that attorney must be.

That's why every jurisdiction around this country has sought ways to reward those who do the bidding of the local masters. Whether that be by hiring contract attorneys to handle indigent cases or by bidding contracts to the lower bidder; whether that be by ensuring that the "wheel" spins to those willing to move cases by the bucket or by cutting funding and staffing in PD's offices - state and local governments want their convictions on the cheap.

The sad thing is there is no solution to the problem. So long as indigent defense is provided and funded by the state, there will always be an inherent conflict of interest. The same government that arrested and locked up a defendant has no interest in seeing that defendant released from beneath the state's thumb. Unfortunately there is no alternative method of funding indigent defense. We should look with suspicion at the indigent defense plans of every jurisdiction in this country because that conflict cannot be made to vanish with the waving of a wand or a print out of a case.

See also:

"John Adams, meet John Adams," Gamso - For the defense (March 24, 2013)

Monday, March 25, 2013

False equation

In his latest shot at the defense bar, Grits for Breakfast seems to be making the argument that everyone should ignore the defense bar's opposition to reciprocal discovery because about 97% of criminal cases plead out.

What he leaves out is that all the exonerations we've seen over the years in Texas result from cases that went to trial. In other words, on cases in which the defendant either was claiming he was not guilty or that the sentence offered by the state was greater than what a jury would mete out.

The statistic he cited also doesn't give us a breakdown between counties with so-called open file and closed file policies. Nor does he fill us in on how many of those convictions resulted from the failure of the state to disclose Brady material.

Criminal cases plead out for any number of reasons. Some defendants plea because they can't get out of jail due to punitive bail conditions. Others plead because the state has offered to dismiss certain counts or enhancements. Some plead because they would rather take deferred adjudication than take a chance at trial. Others plead because the state has offered the minimum or because a felony has been reduced to a misdemeanor. Still others plead because the cost of a conviction at trial is more than they can bear.

Whatever the reason, the common thread in the cases in which defendants have been exonerated is the state's failure to act ethically and legally. The secondary theme is defense counsel who were ineffective either because they weren't competent to handle the case or because there wasn't enough money to conduct a proper defense.

The answer isn't to require a defense attorney to open up his file to the state. The answer is to force the state to produce evidence, both incriminating and exculpatory, to the defense prior to trial and to sanction the state for its failure to do so. Sen. Ellis' latest version of reciprocal discovery continues along the path of treating criminal cases like civil disputes in which both sides are equal.

Anyone who has ever been through the criminal (in)justice system knows that there is no equality between the sides in the criminal courthouse. The percentage of cases pled out is prima facie evidence of who has the upper hand.

Saturday, March 23, 2013

Still looking for fantasy baseball players

Okay, folks, it's time for one more final call for any attorneys out there looking to play a little fantasy baseball. We've got just a little over a week until the season gets under way and we need a few more teams to fill up the league.

If you're interested in signing up, it's the CrimDefLaw Invitational League at Yahoo!. The league ID is 134413 and the password is CDL2013 (I don't remember if it's upper case or lower case).

We'll be playing a standard scoring rotisserie league with an auto draft - just rank your players and sit back and wait.

Please don't make me beg for more players like a radio host on NPR begs for money.

Friday, March 22, 2013

Book review: Ecology and Socialism - Solutions to Capitalist Ecological Crisis

At the forefront of these conditions rank habitat destruction and rapid, human-induced climate change. the human species seems well on the way to creating the Sixth Great Extinction as we exterminate other species faster than they can be classified; scientists estimate that we have classified less than 10 percent of all the species on the earth. According to the International Union for the Conservation of Nature (IUCN), the world's largest coalition of environmental organizations, of the nearly 50,000 on its red list of endangered species up to 17.000 face the prospect of immediate extinction. If nothing is done, the IUCN predicts the demise over the course of the twenty-first century of 50% of amphibians, 70% of botanic life, 37% of freshwater fish, 28% of mammals and 12% of all birds. -- Ecology and Socialism
As a result of all the carbon emissions we pump into the atmosphere, the earth is getting warmer. In our never ending quest to accumulate more and more oil we are fouling our water, our land, our food supply and ourselves.

Putting your green recycling bins on the curbside every other week isn't going to reverse the problem. For everyone plastic carton or magazine you put in that bin, there's more being produced every day.

And that's because it's profitable to do so. Manufacturers discovered that if they designed products to wear out they could sell more - and by encasing them in plastic, they could save money.

Instead of investing money in research and development for clean and renewable energy sources, our government provides billions of dollars in subsidies to the oil, gas and coal industries - ensuring the continued pollution of our environment.

Instead of investing money in research and development for sustainable agriculture, our government provides billions of dollars in subsidies to agri-business - ensuring the continued destruction of our environment and impoverishment of the developing world.

The root cause of environmental degradation is our system of economic production, so says Chris Williams, professor of physics and chemistry at Pace University, in his 2010 book Ecology and Socialism. Under capitalism we have been indoctrinated that our surrounding environment is a free resource. We use the ground to extract gold, minerals, oil and gas. We then dump the toxic byproducts into the air we breathe and the water we drink. If you recall from your macroeconomics class, the air we breathe and water we drink aren't valuable resources because we can't put a price tag on them - and under capitalism, if you can't put a price tag on it, it ain't worth a damn thing.

As a result manufacturers have no incentive to protect the environment. Strip mining destroys untold acres of land. Refineries dump ungodly amounts of pollution into the skies above us. The oil and gas industry poisons water tables and rivers. All in the name of profit.

And the idea that we can use a so-called market mechanism, such as carbon trading (permits to pollute) is the biggest inside joke around today. The market caused the calamity in the first place because it can't place a value on resources (such as water and air) that cannot be owned by any one individual. The market will always be manipulated by those who have the power to do so and who stand to profit from it.

The only way to save the planet, according to Mr. Williams, is through a radical re-organization of our systems of production. That is, a change from a system that produces goods for their exchange value (commodities) to a system that produces goods for their use value. So long as we leave our planet's future in the hands of those who only see profit, we are doomed to the inevitable destruction of the planet.

Thursday, March 21, 2013

Lies, lies, lies

The Big Lie began ten years ago this week.

There were no weapons of mass destruction in Iraq. The Bush administration knew it was a lie. They were just looking for a justification.

There were no ties between Saddam Hussein and al-Qaeda. The Bush administration knew it was a lie. They were just looking for a justification.

Yes, there were chemical weapons. But that, too, was just an excuse. Our government looked the other way when Saddam Hussein gassed the Kurds when Iraq was our ally.

The invasion and occupation of Iraq costs tens of thousands of Iraqis their lives and their homes. Missiles and rockets were fired indiscriminately into residential neighborhoods. No one has ever been charged for those war crimes.

The lies led to the invasion and occupation of Afghanistan where tens of thousands more have died needlessly in a war built upon deception. The US mission has ended in a stalemate. President Obama has announced that the troops will be coming home next year. He's hailing it as a successful conclusion to the war. Just like Richard Nixon ordered the evacuation of US troops from Vietnam and called it a victory, too.

Every one of those deaths was unnecessary. There was never any reason for our government to send our young people to die on foreign soil so that American-based transnational corporations could move into the region and rape and pillage in the name of profit.

I was down in Seabrook the other day to run a marathon. Before the race began someone called Brother Something-or-Other took the microphone and asked for a moment of silence for our troops in Iraq and Afghanistan. This supposed man of the cloth couldn't have cared less about the slaughter of the innocents that has taken place over the last decade. He only cared about those wearing a uniform with our flag on it.

I was as sickened by his actions as much as I am by all the "Support the Troops" festivities at football and baseball games. I was as sickened as much as I am when college basketball teams accept offers to wear camouflage uniforms and play on aircraft carriers to ramp up support for a war built upon lies.

As much as I would love to put the onus for the needless death and destruction on George W. Bush, I can't. He may have been the one to put things in motion but President Obama has continued the war unabated. Thus the longest war in American history continues with the guarantee that the world won't be any better for it.

And that's no lie.

Wednesday, March 20, 2013

The reality of Gideon

If there is one thing we like to do in this country it's celebrate numbers. This week marks the 50th anniversary of Gideon. Of course the problem with Gideon is the Supremes didn't specify what kind of representation the indigent would get and it left it up to local jurisdictions to figure out how they would comply with the mandate.

Gideon  also failed to address what relief a defendant would have should he not feel his court appointed lawyer was providing competent and effective representation. What it means is that beggars can't be choosers - in other words, those who can afford to retain counsel can switch attorneys at the drop of a hat but that indigent defendant sitting behind bars is stuck with the one the court appointed to dance with him.

The decision also left us with a patchwork quilt of methods for appointing counsel. In Harris County alone there are some courts who appoint private attorneys to represent the indigent off a list. Other courts contract out their indigent defense. Still others utilize the services of the public defender's office.

Yesterday on Talk of the Nation was the current crisis in indigent defense. The guests were Stephen Bright of the Southern Center for Human Rights and Colorado state public defender Douglas Wilson. The clip below is from the show and is quite enlightening about the failures of our criminal (in)justice system in the 50 years following Gideon.

For those of y'all who've never practiced criminal law in Harris County, the reality of Gideon is jarring to the conscience. Each and every day in the misdemeanor courts up to two dozen men, mostly black and Latino, are placed in a holdover cell behind the courtroom. Generally each court has two attorneys designated to handle the indigent cases each day. The basic definition for indigence in Harris County is not being able to post bond prior to the initial settings (generally 48-72 hours after arrest).

The attorneys grab their files and shuffle through the paperwork. Then, sometimes before even going back to talk to their clients, they sit down with the prosecutor and try to work out pleas on the cases. Then the dog-and-pony show begins as they try to sell their "client" on the deal. There's no investigation. There's no thought to challenging the state's case. It's all about trying to get the client out of jail in the shortest amount of time.

Now I don't mean to impugn anyone's reputation and I certainly don't mean to imply that this is how every court appointed attorney in the misdemeanor courts acts.  But this is the reality of Gideon.

Then, once all the pleas are agreed to and the paperwork is signed, it's time for the parade. Defendants are brought out into the courtroom, all handcuffed to one another. There are generally at least half a dozen defendants standing before the judge - though I have seen them lined up in two rows before. The judge then begins the assembly line process and each defendant dutifully admits guilt and accepts his punishment.

They are then marched back to the holdover and the whole process repeats itself the next day. And the day after that. And the day after that...

In practical terms what Gideon has become is the gloss we use to cover up the imperfections. It's a show. There's no effective representation. It's a game to see who can clear the most cases and who can get out of jail the quickest.

The judges don't mind because it clears their dockets. The county administrators don't mind because it's cheap. And, hell, the plea papers the defendants sign already state that the defendant is satisfied with the representation he received. It's a complete fucking sham.

Over at Sentencing Law and Policy, Doug Berman had an interesting piece (well, he quoted extensively from someone else who wrote an interesting opinion column) asking whether Gideon ushered in the new era of the drug war and mass incarceration.

Now the argument strikes me as an almost doctrinaire libertarian approach to government involvement in anything - government steps in to solve a social problem, creates a moral risk and the world goes to hell in a handbasket because of it. Who's to say if these things wouldn't have happened anyway. Whether Gideon enabled them is neither here nor there. What Gideon has done, however, is put a shade of legitimacy on our government's continued war against the poor and minorities.

As a result of Gideon, our criminal (in)justice system resembles the storyline of one of the myriad of movies detailing the social breakdown in suburbia (American Beauty comes to mind). Everything is all glitzy and beautiful at first glance - but god help you if you take a closer look.

Tuesday, March 19, 2013

The inexorable march toward abolition

Last week Maryland became the sixth state in the so-called modern era (after the Supreme Court reversed its decision in Furman v. Georgia with its decision in Gregg v. Georgia) to abolish the death penalty. Maryland now joins Washington, D.C. and 18 other states who have no enforceable death penalty.

Like the incessant drip of a leaky faucet in the middle of the night, the death penalty is slowing fading away. Just how many more states must abolish capital punishment before its very use becomes "unusual?"

According to my research there are 23 states who have either never executed an inmate or who haven't executed an inmate in the last ten years. If you add Connecticut and Maryland to the list, now that they have legislatively abolished state-sponsored murder of inmates, that's half the states in the Union.

Only 20 states have carried out executions in the last five years. That's the drip...drip...drip you hear in the background.

Even in the spiritual home of capital punishment - Texas - there has been but one execution in 2013. The next scheduled execution isn't until April 3 (of course that is but the first of five scheduled in April).

People are beginning to understand the high cost of the death penalty. In addition to the cost of locking someone up in a special prison there is also the expense of trial - and the appeals. As most defendants charged with capital murder are indigent, its the state who picks up the tab for lawyers, investigators and experts. With news of every exoneration, people are beginning to realize that our criminal (in)justice system makes mistakes - and, with the death penalty, there are no second chances.

Maybe we are finally moving beyond our revenge for the sake of revenge mode of punishment. Maybe we've come to realize that the true measure of a society is how it treats its poorest and weakest members. Maybe we've woken up to the fact that killing an inmate doesn't bring back his victims.

Whatever the reason, the tide is turning. Just how long will it be til those who cling to the death penalty realize they are on the wrong side of history?

Monday, March 18, 2013

Leaving us all just a little bit stupider

On Friday Lisa Falkenberg penned a column in the Houston Chronicle (sorry, no link because the Chronicle put the article behind a pay wall since they haven't yet figured out a way to make money online) that demonstrated her ignorance regarding criminal law in Texas. Her purpose was to drum up support for the latest incarnation of Sen. Rodney Ellis' (D-Houston) reciprocal discovery bill. The result was a piece that broke Scott Greenfield's first rule of blogging - don't leave anyone stupider for having read your work.

She begins by setting up the straw man of discovery in civil cases (in which both sides share damn near everything in an attempt to resolve the case short of trial) and then points out that criminal defendants in Texas don't have a legal right to view an offense report prior to trial.
"Every good prosecutor or defense lawyer knows this is wrong. They know Texas is the only state in the nation without discovery in criminal cases. They know it has led to wrongful convictions such as that of Michael Morton, the grocery store manager who returned from work one day to find his wife brutally murdered and himself charged with the crime."
Ms. Falkenberg, might I suggest you take a look at Article 39.14 of the Texas Code of Criminal Procedure. That's our discovery statute for criminal cases. The code lays out just what the defense is entitled to. All the defendant has to do is file a discovery motion, approach the judge and request a hearing. If you can explain why you need it and why it's relevant the judge will order the state to turn it over.

The defense, contrary to Ms. Falkenberg's assertion, already has the right to subpoena witnesses. Under Chapter 24 of the Texas Code of Criminal Procedure, a defendant can subpoena anyone to appear before the court or to produce documents.
"Last weekend, the Texas Criminal Defense Lawyers Association passed a resolution against the bill, saying it 'opposes any government intrusion' into defense files. 
The resolution accuses one of the bill's supporters, the Texas Defender Service, of taking a position 'adverse to the interests of the members' of the association. 
But what about the interests of defendants and of justice?"
Yes, Ms. Falkenberg, the defense bar is overwhelming against the bill. We're not the ones to blame for innocent folks being locked up for decades. That responsibility rests squarely on the shoulders of the prosecutors who acted unethically and without regard for the due process rights of the accused. We are the only people standing between our clients and the deprivation of their rights - there is no reason we should have to open our files to anyone.

Besides, why is the blame for the fate of the bill placed on the defense bar? Not once does Ms. Falkenberg quote a prosecutor or the spokespeople for the Texas District and County Attorneys Association as to why they oppose the bill, too. Ms. Falkenberg can't be so naive to believe that if prosecutors in this state wanted the bill it would pass regardless of what the defense bar said or did.

If the goal is to make sure that we don't incarcerate any more innocent people because prosecutors were playing fast and loose with the rules and the Constitution, then all we need to do is amend Article 39.14 to include offense reports, witness statements and witness lists along with mechanisms for holding prosecutors accountable for their actions.

Ms. Falkenberg's piece of blather is but another pathetic attempt to blame the victim for being wrongly convicted and incarcerated.  I feel dumber for having read it.

Sunday, March 17, 2013

Astros owner reveals his true inner being

Jim Crane, the owner of the Houston Astros, isn't a dummy. He's been a rather successful (ethical would be a very different question) businessman. That's what makes his latest misstep such a head scratcher.

No businessman worth his salt would buy into a business in which he stood no chance of making money. Whether that be cash flow or capital accumulation depends on the tastes of the businessman. Major League Baseball is awash in cash. According to Hardball Talk columnist Craig Calcaterra, the new deals with ESPN, Fox and TBS should net each club some $40 million a year beginning in 2014. That's money on top of local television rights and ballpark revenue.

The long and short of it is you have to really want to lose money not to make money in the long run owning a baseball team.

And Jim Crane wouldn't have bought the Astros if he didn't think he could make money like his predecessor Drayton McLane. Even if the club has a negative cash flow in the short run, the value of the club itself will appreciate over the long run.

For the upcoming season the Astros will have a payroll in the $25 million range. We're talking Kmart, folks. Crane and the Astros "braintrust" don't expect the team to even be competitive for another two years.

Now keep in mind that over the last year the Astros (along with the Rockets) launched a cable sports channel that is accessible to fewer than 100,000 folks in the Houston area (out of a population of just under 2 million). The Astros got greedy and are asking way too much in carriage fees for cable and satellite providers to carry the network. As a result, most folks will be unable to watch the Astros on the tube this year (with the exception of the season opener against the Rangers).

Crane and his crew also decided to up the ante with "dynamic pricing." As a result overall ticket prices have risen as the product on the field has gotten worse. Supposedly dynamic pricing is supposed to take into account the attractiveness of certain teams and ticket prices are supposed to fluctuate accordingly. Therefore, tickets for games against the Yankees, Red Sox and Rangers are more expensive - but, surprisingly enough, tickets for games against the Royals, Rays and other jetsam never fall below the regular price. Hmm. Funny how that works, Jim.

But now Crane has topped himself.

When asked by the Wall Street Journal about a comment by Los Angeles Dodger president Stan Kasten that he wouldn't be comfortable with the direction the Astros are headed, Crane lashed out at fans who were expecting the team to do more to make itself competitive.
“It doesn’t bother me that people want us to spend more money,” Crane told the Journal. “But it’s not their money. This is a private company, even though it’s got a public flair to it. If they want to write a check for 10 million bucks, they can give me a call.”
Yes, the Astros are a private company (despite the moniker "Houston" Astros), but they have also been on the receiving end of plenty of public money over the years, and to take the attitude that Crane has taken is beyond arrogant. It does, however, paint an accurate picture of who the man is and what he's about.

To Crane the Astros are a commodity. I am certain he will break down the revenue streams into minute detail and look for every way to raise more revenue and cut more expenses. He's not in it because he loves baseball, he's in it because he views a major league team as a cash cow he can milk for all its worth.

And, contrary to his continued statements that the Astros are losing money, he told the WSJ that he'll be making money this season.

Oh, it's going to be a long season.

Saturday, March 16, 2013

Are you ready for some baseball?

Today I'm putting out an invite to all criminal defense attorneys out here in the blawgosphere who like fantasy baseball. Y'all are invited to sign up for the Criminal Defense Lawyers Invitational League over at Yahoo!

The league will be a rotisserie format with 5 X 5 scoring (standard fare in a Yahoo! league). We'll use an auto-draft so you'll need to rank your players (because there's no way in hell I'm going to sit in front of a computer screen for hours conducting a live draft).

If you're interested in signing up, just shoot me an e-mail, leave a comment or send me a tweet (@paulbkennedy) and I'll get the  information out to you. There are only 11 slots so you have to act fast.

Time is of the essence as the new season cranks up on the 31st at Minute Maid Park as the Disastros take on the Texas Rangers in their first game as a member of the American League.

Remember, it's just a fantasy, folks.

Friday, March 15, 2013

A sense of ownership

He was wearing what he called his Vietnam hat. He told me it cost $3.50 to park in "his" lot and that I could come and go as I pleased so long as I left the ticket on the dash.

It wasn't a bad deal. It was a block or two further out than the lot I usually park in (when I'm not parking on the street) - but that wasn't too big a deal. So I handed him the money. He told me business had been kind of slow this week. He figured it was because of Spring Break. I asked him how busy the lot usually was and he told me he had been away from the lot for three years but now he was back and he was building up "his" clientele.

I knew it wasn't his lot. He was just the hired help. But he took a certain pride in overseeing the parking lot - and if he wanted to call it "his," then that was all right with me.

Over at the JP court up on the northwest side of town the other day the prosecutor was introducing herself to the crowd in attendance. She referred to the courtroom as "our courtroom" and the court staff as "our staff."

I found it quite peculiar because, so far as I know, the court staff worked for the judge who wasn't (at least shouldn't) a part of the prosecution team. Her words, however, spoke volumes for the ways in which our courts operate.

Whether it be a JP court or county court or district court, one or more prosecutors are assigned to it for a period of time. The prosecutors get to know the court staff and they get to know the judge. The judge gets used to having them around. They all begin to feel a bond with one another. Every once in a while you'll hear someone slip up and tell the judge that's the case they were discussing the other day.

It's that same sense of "ownership" the parking lot attendant exhibited. But, at least in his case, no one's liberty was at stake.

Thursday, March 14, 2013

Criminalizing the homeless

Sec. 39-2. - Disturbing or removing contents of containers.
It is unlawful for any person to intentionally, knowingly or recklessly handle, scavenge from, disturb, or remove any contents of any bin, bag, or other container that has been placed for collection of garbage, trash or recyclable materials at the designated location for pickup by the department, or for pickup by any other public or private collection service.
It is a defense to prosecution under this section that the accused is the person who placed or caused the bin, bag or container to be placed for collection or that the accused is an agent or employee of the city.

That's the text of a Houston city ordinance that prohibits folks from digging around in someone else's trash. Now we can forget for a second that when I put something in my trash can I'm throwing it out because I don't want or need it anymore. I've put out old stuff with our recycling and there are times it's gone before I even go to bed.

The courts have used that argument to allow the police to dig through your trash can when they're looking for  something they can use against you. And it was so nice of the city council to give a blanket defense to the police. Notice that nowhere in the ordinance does it state that the agent or employee of the city has to be carrying out the duties of his or her job. Nope. It's enough that they get a paycheck signed by the City Controller every other week.

This is statute that James Kelly violated. Mr. Kelly is homeless. He was scavenging for food. Someone with the police department made the decision that what Mr. Kelly really needed was a ticket that calls for a fine between $50 and $2,000. Because that'll really solve the problem.

In response to public outcry about ticketing a homeless man for dumpster diving, city officials pointed out that the prohibition on dumpster diving is on the books (and, therefore, just had to be enforced because we just can't have laws on the books that we're not arresting or citing people for breaking). Well that's all well and good, Annise Parker.

Ray Hunt, president of the Houston Police Officers' Union, said tickets for violations of the ordinance are written only in response to complaints that garbage has been removed and left outside of trash containers. 
"I know on the face of it, it sounds very cruel," the union leader said, stressing that most police officers would not cite someone for simply taking food from a dumpster.

The homeless get in the way. They don't dress nicely. They don't look clean. They're always hustling for something or the other. They sleep all over the place. Having homeless folks on the streets is a cold splash of water in the face of those who want to promote Houston as a world-class city.

But, they're there. Some of them are mentally ill. Some of them are drug addicts. Some of them were living paycheck-to-paycheck when they lost their job. Instead of criminalizing their behavior and trying to sweep them under the rug, why don't we do something to combat the growing number of homeless folks sleeping out on the streets every night?

But doing something to help doesn't mean issuing tickets for those rummaging through the trash looking for something to eat just because there's an ordinance on the books that says you can do it. We need to be asking ourselves what are the economic and social conditions that lead to homelessness - not devising schemes to hide them away in the corners so that no one knows they're around.

Wednesday, March 13, 2013

Text parte communications

There seem to be some shenanigans a-brewing up in the Piney Woods these days. According to a report by KPRC-TV in Houston, State District Judge Elizabeth Coker has been sending text messages to prosecutors suggesting questions to ask during trial.

The most recent allegations were made by David C. Wells, an investigator with the Polk County District Attorney's Office. According to Mr. Wells, he and the DA, William Lee Hon, were sitting next to each other in the audience sharing notes about the trial. Then ADA Kaycee Jones asked to borrow Mr. Wells' notepad to write down a message she had received from Judge Coker. Mr. Wells then handed the note to Mr. Hon who shrugged and told him to hand it to the ADA trying the case, Beverly Armstrong.

If the allegations are true, and the fact they were made by an investigator employed by the DA's Office puts some weight behind them, the implications are staggering.

I have written over and over again that judges are supposed to be neutral and detached arbiters. The judge's only duties are to see that the rules are observed and that the defendant gets a fair trial. The judge isn't supposed to be part of anyone's "team."

In sending text messages to prosecutors suggesting questions they might want to ask, Judge Coker crossed the line. If that is what happened, Judge Coker does not deserve to sit on the bench. But she wouldn't be the only one.

On the eighth floor of the Harris County Criminal (In)justice Center sits County Criminal Court at Law No. 2. William Harmon is the presiding judge of that court. This is the same William Harmon who keeps a plaque awarded by MADD in the courtroom. This is the same William Harmon who walks into the courtroom with a sign informing the public that the average person arrested for DWI has driven drunk 87 times before being caught.

This is the same William Harmon who instructs the prosecutors in his court on how to get evidence admitted and what tactics to use on cross-examination during breaks in the trial. I've seen him do it when I assisted a friend trying a DWI case in court some time ago.

Up on the 11th floor in County Criminal Court at Law No. 13, I was observed as Judge Don Smyth called a woman charged with theft up to the bench. She had not yet hired an attorney. The judge berated her and sent her back to have a seat. Then he called up one of the prosecutors and asked him why the defendant hadn't been charged with felony theft due to her prior convictions.

That wasn't his job. His job was to be a neutral and impartial arbiter in the case before the court - not to advise the DA's Office on how to charge defendants.

It doesn't take a genius to see how it happens. When a judge interacts with the same team of three prosecutors day after day for weeks or months, everyone gets a bit chummy. They start to see their interests aligning and the next thing you know, the judge is offering advice on how to proceed on a given matter to a prosecutor.

Having said all that, the goings-on in Polk County involve more that just a judge allegedly acting unethically. If Mr. Wells is being truthful and Mr. Hon did motion for him to pass the note onto the prosecutor trying the case, Mr. Hon has some explaining to do. He knows the law. He knows that ex parte communications between a judge and a party to litigation without the attorney for the other side present is wrong. He knew it was wrong but he motioned for Mr. Wells to pass the note on anyway.

And what about Mr. Armstrong's comment that Ms. Jones was handing her notes constantly that she claimed she had received from Judge Coker? Just how long had this little arrangement being going on? For how long were defendants in the 258th Judicial District Court going up against two sets of prosecutors?

Tuesday, March 12, 2013

TCDLA passes resolution opposing reciprocal discovery

The following is a resolution passed by the Board of Directors of the Texas Criminal Defense Lawyers Association at their meeting this past weekend in Dallas:

Monday, March 11, 2013

Revamped reciprocal discovery bill is still bad for the defense

State Senator Rodney Ellis' (D-Houston) reciprocal discovery bill, otherwise known as the blame the defense for wrongful convictions, act, has been modified as a result of the opposition of the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association.

As originally proposed, in exchange for offense reports, the defense would have to disclose (1) all written and recorded witness statements, (2) all convictions that would be used to impeach state witnesses, (3) all physical and documentary evidence the defense intended to introduce at trial, (4) a witness list, (5) a list of experts, (6) any reports prepared by an expert retained by the defense and (7) any affirmative defenses the defense intended to plead at trial.

The most objectionable items on that list were witness statements, witness lists, physical and/or documentary evidence and affirmative defenses (although I don't have as big a problem with the last item as some colleagues of mine do). Senator Ellis' bill seems somehow to assert that Michael Morton, Anthony Graves and the other exonerees wound up on the bad end of a verdict because their attorneys didn't disclose these items to the state.

Sen. Ellis seems to forget that it is the state that filed the charges and it is the state who is seeking to infringe upon the liberty of its citizens by pursuing a criminal prosecution. But then, facts and logic have never been the stock in trade of our state legislators.

Now, having heard the derisive shouts from the defense bar, Sen. Ellis has scaled back his list of items the defense must turn over to the state. SB 1611 is the newest (and last) version of reciprocal discovery for this legislative session.

While the core of SB 1611 is identical to SB91, there are a few subtle changes. The new bill would still require the defense to turn over its witness list to the state - but not until just prior to jury selection. To make it all "fair," the new bill doesn't require the state to turn over its witness list until just prior to jury selection, either. Of course the way around that is to check the court's file periodically for subpoena requests and to keep an eye on the district clerk's website for any subpoenas issued in the case.

The new bill also does away with the requirement that the defense provide any criminal convictions the defense intends to use to impeach a witness for the state at trial. The new bill does, however, still require the defense to produce all witness statements and notice of affirmative defenses (upon request by the state).

Yes, the new bill is an improvement over the old one - but that still doesn't make it a good idea.

If Sen. Ellis really wants to prevent wrongful convictions in the future, the items his bill requires the state to produce to the defense is a very good start. The only things the defense should be required to give up are the names of expert witnesses and copies of any reports prepared by defense-retained experts upon request from the state as well as any affirmative defenses under Sections 8 or 9 of the Texas Penal Code upon request from the state.

The bill should also put some teeth in the requirement that the state produce any Brady material in its possession, subject to its control or within its knowledge. The penalty for a prosecutor who plays fast and loose with the rules shouldn't be a slap on the wrist after the fact.

Michael Morton didn't go to prison for 25 years for a crime he didn't commit because his attorneys didn't hand the state copies of witness statements - he went to prison for 25 years because the Williamson County District Attorney's Office violated the rules and played fast and loose with ethics requirements.

Anthony Graves didn't set in prison for 18 years because his attorney didn't hand over the evidence he intended to introduce at trial - he went to prison because the prosecutor knowingly failed to hand over exculpatory evidence to the defense that might just have led to a different verdict in the first place.

While Sen. Ellis' bill is an improvement - it's still unacceptable.

H/T Grits for Breakfast

Saturday, March 9, 2013

The dog days of April

For years some fans of the Houston Astros prayed that Drayton McLane would sell the team. After years of trading prospects for rental players the pipeline from the farm had dried up. After the Astros managed to reach the World Series with a first class pitching staff and a pathetic excuse for an offense, it was all downhill.

But those fans rejoiced when McLane sold the team to local businessman Jim Crane. It would be a new era for the Astros. Well, let's forget about the discrimination complaints filed with the EEOC against his company. Let's pretend the allegations regarding war profiteering never happened. Things were so bad that the MLB bigwigs agreed to look the other way and hand over $50 million if Crane would agree to end 50 years of tradition and move the Astros to the AL West.

Over the offseason we saw the re-branding of the Astros. They went back in time for the inspiration of the lame generic uniforms they'll be wearing this season. What Crane should have done was rename the team the Buffs as this squad seeks to continue the minor league baseball tradition in Houston.

Now maybe, just maybe, this whole rebuilding operation will pay off in the end. Get some good, cheap homegrown talent and throw a couple of big-time free agents into the mix and you might be able to compete with the big boys. The Tampa Rays have managed to field competitive teams using players they developed in the minor leagues. Of course once they want to get paid what they're worth the club will gladly trade them away for a handful of young prospects. The Oakland A's have managed to field competitive teams by developing their own players and by picking up the refuse from other clubs.

Only time will tell if the Astros will be able to achieve success down the road. On the other hand, they could end up like the Pittsburgh Pirates or the Kansas City Royals - teams that effectively serve as AAA affiliates for the rest of major league baseball. Neither club has had any appreciable success over the past two decades - is that what we're in for in the Bayou City?

So, as we sit here awaiting the start of the new season and contemplating a third straight 100-loss season, the mind stumbles, and trips over itself, contemplating the Astros' strategy for ticket sales. In the past, tickets were the same price day in and day out - the exception being a section or two whose prices fluctuated depending on who was in town.

Ever since my oldest daughter turned three I have taken her to Opening Day (except one year when they opened on the road). This season I purchased a seven-game ticket plan that included tickets for Opening Day against the Rangers. And it's a damn good thing I did because Crane has decided that the Astros are going to use "dynamic pricing" for every seat for every game. That means if you want to get a ticket for Opening Day you are going to spend two to three times (or more) what that seat would go for in ordinary circumstances.

This for a team that has been the worst in baseball the last two seasons.

What "dynamic pricing" actually means is that no one expects too many folks to come to the ballpark to watch the Astros. The team figures that fans will flock to the stadium depending on who the opponent is on any given day. In other words, "dynamic pricing" is just another way to say that the Astros are charging you to see the other team.

I would love to be optimistic about the upcoming season. I would love to be able to get behind a bunch of kids who should be playing AAA ball and watch them grow. But I see no reason for optimism. The pitching staff is weak. The offense isn't very good and the defense leaves a bit to be desired. Considering the number of games against the Rangers and the Angels this season, I have no reason to think the Astros will surprise anyone.

I suspect the dog days of August will be coming a bit early (again) this year.

Friday, March 8, 2013

Anyone interested in testifying?

All I can say is "Thank God for New York." Texas may be known as the Killing Fields for the number of inmates we murder year in and year out, but at least defendants in Texas courts don't get screwed the way those facing trial in New York do when it comes to jury instructions.

Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.

At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest. 
Interest/Lack of InterestYou may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. 
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.]
In other words, it's up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased. 

Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.

Sounds like you're damned if you do and you're damned if you don't up there.

The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.

You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.

I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.

One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.

Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.

He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.

So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.

Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.

Thursday, March 7, 2013

Bill introduced to create a jail diversion program for the mentally ill

I've taken my shots at State Senator Joan Huffman (R-Houston) in the past for her attempts to weaken the rights of citizens accused by the government of committing criminal acts. Today is not one of those days.

On Wednesday, Sen. Huffman introduced a bill that would create a mental health jail diversion plan in Harris County. For those of y'all who don't know, the Harris County Jail is the state's largest provider of mental health services. It is estimated that a quarter of the inmate and detainee population receives some form of medication or treatment while in custody.

When Pat Lykos was elected District Attorney back in 2008 she said that the mentally ill don't belong in jail. She promised to create some type of program that would keep the mentally ill out of the revolving door at 1200 Baker Street. She was unsuccessful in her efforts.

The new DA, Mike Anderson, accused Ms. Lykos of being a softy when it came to crime. He said nothing during his campaign about stopping the warehousing of the mentally ill in the Harris County Jail. That kind of talk does nothing to warm the cockles of a wingnut's heart.

People who have mental illnesses get in trouble repeatedly because there is nowhere for them to turn to get treatment without money, insurance or a low number in the waiting list for county services. While they are in jail they are medicated. Some receive rudimentary treatment. But, once they get out of jail there is seldom anyone to make certain they take their medication. There is rarely anyone to make certain they attend aftercare programs. They are discharged and forgotten. Until the next time they're arrested, that is.

When discussing this issue we'll need to look past the question of whether a person suffering from a mental illness who isn't taking his medication is capable of forming the criminal intent to commit an illegal act. God knows we can't go there without opening a big can of worms. Suffice to say that there are a few folks in the criminal (in)justice system who have no business being caught up in the bureaucracy because they have a mental illness.

Of course the hype surrounding Sen. Huffman's proposed legislation is a bit over the top when you look at exactly what the legislation does (or purports to do). The bill authorizes the Department of State Health Services to design various pilot programs to divert the mentally ill from the Harris County Jail. The bill doesn't propose any funding other than the $32,650,000 that Harris County has promised to contribute every year.

The program, whatever it ends up being, will only serve between 500 and 600 people. Just to put that into perspective, the Harris County Jail system houses approximately 11,000 people and a quarter of those folks have some type of a mental illness - that works out to around 2,750 people. The pilot program - if ever instituted - would serve about 20% of the jail population.

The program would also be dependent upon public or private facilities accepting additional patients for whatever price the state is willing to pay. What happens if there are no new beds? What happens if no private caregiver wishes to participate? The county's mental health department (MHMRA) isn't equipped to handle an influx of new patients.

That being said, I am glad to see a politician in Texas willing to stand up and buck the "lock 'em all up" mob that populates the GOP.

Wednesday, March 6, 2013

Who's being served?

As I was leaving the municipal courthouse the other morning I happened to pass by the offices of a well-known Houston traffic ticket defense firm. Out front they had a sign that announced to the world that if you missed your court date and hired them to defend you, they'd post your bond for free.

Sounds like a good deal, right?


It's not the best of ideas for your attorney to be your bondsman. Attorneys and bondsmen have interests that sometimes diverge. Everything smells great when the defendant shows up to court on time - but what happens when that defendant decides he's got other business he needs to take care of the morning he's supposed to be sitting in traffic court?

The attorney's job is to get his client through the process as painlessly as possible. His interest is in prolonging matters as long as necessary to make it go away. The bondsman would rather get the case over with quick so he can turn around and post the next guy's bond.

But once the defendant misses court all hell breaks loose. The attorney's job is to get his client's bond reinstated if possible and to try to live and fight another day. The bondsman, on the other hand, just wants off the bond.

While the attorney may continue to fight to get the case to go away, the bondsman wants the defendant to plead out his case. And what happens when the attorney and the bondsman are one and the same? Whose interest is the attorney serving in that case?

Tuesday, March 5, 2013

Book review - The Fall of the House of Dixie

The War Between the States. The War of Northern Aggression. The Civil War.

No matter how you slice it, no matter what you call it, one thing is very clear according to historian Bruce Levine. The war was fought over the issue of slavery.

Modern day apologists for the South argue that the conflict was about states' rights and sovereignty. They will tell you it was about whether the federal government had the right to dictate to the states how they conducted their business.


The South attempted to secede in order to preserve its "peculiar institution." There were no other issues involving states' rights. The sides had fought in Congress for years over the expansion of slavery to the new territories in the west. While the North housed the financial and commercial power of the nation, the political power resided down south.

No one wants to admit it. It certainly doesn't make the Southern cause seem very heroic. And it drives a spike into the myth that those who fly the Confederate battle flag are merely celebrating their southern heritage. That flag represented the planters and slaveowners who had no compunction about sending poor whites to their deaths to defend an economic system that benefited only the wealthy.

The Fall of the House of Dixie provides ample quotes from soldiers, planters, the ladies of the house, slaves and politicians in painting a portrait of why we endured a civil war. The most telling quotes come from late in the war when some in the South suggested that the slaves be armed and sent to fight. The wealthy elite and their politicians steadfastly refused to arm the slaves knowing that doing so would be the death knell of their economic system. Had the rebellion been about anything else, the issue would never have been debated.

Mr. Levine provides a fresh look at the Civil War era. Most of the books on the shelf look at the war years through the prism of the war - disregarding the root causes of the conflict. The Fall of the House of Dixie, on the other hand, looks at the war from a cultural perspective. It wasn't just a war to preserve the Union, it was a war to end an antiquated economic system.

So the next time someone refers to it as the War of Northern Aggression, you can let them know it was the Second American Revolution or the War of Liberation.

And, just for the record, I was born and bred in Texas.

Monday, March 4, 2013

Is this Mike Anderson's idea of ethics?

Just what does it say about Harris County District Attorney Mike Anderson that he selected Dick Bax to be general counsel for the DA's office? I can only imagine the vitriol that would flow from my friend and colleague Murray Newman's keyboard had Pat Lykos made the same selection.

Dick Bax was the prosecutor in the Ricardo Adalpe Guerra case back in the 1980's. Aldape Guerra was convicted of capital murder and sentenced to death. His conviction was overturned 15 years later by US District Judge Kenneth Hoyt who made some very pointed comments regarding the behavior of the Harris County DA's office in the case.
It is clear to this Court that the mood and motivation underlying the police officers' conduct arising out of this case was to convict Guerra for the death of officer Harris even if the facts did not warrant that result. The Court finds and holds that the police officers and the prosecutors intimidated witnesses in an effort to suppress evidence favorable and material to Guerra's defense. Specifically, the written statements that were taken after the line-up are in many respects in significant contrast to those taken before the lineup. The Court attributes this to the fact that Carrasco had been killed and the strong, overwhelming desire to charge both men with the same crime, even if it was impossible to do so. -- Guerra v. Collins, 916 F.Supp. 620, 626 (SD Texas 1995).
As usual the court protects the identities of the prosecutors who stepped afoul of their legal obligations. As to the intimidation, these were witnesses that the police found the night of the shootings - if they are willing to intimidate these witnesses, just imagine what they'd be willing to do with defense witnesses whose names are provided per Sen. Ellis' proposed reciprocal discovery bill.

Judge Hoyt also found that the police had used improper procedures in the lead-up to the line-up - namely parading Aldape Guerra in front of the witnesses with his hands in paper bags. But the police weren't the only ones who played fast and loose with the rules.
The prosecutors joined the hunt by conducting a reenactment of the shooting shortly after the incident with various chosen witnesses participating. This procedure permitted the witnesses to overhear each others view and conform their views to develop a consensus view. At the pretrial weekend conference, the prosecutors presented the two mannequins intended for use during trial. These life-size mannequins, created in the images of Guerra and Carrasco, were utilized then and throughout the trial to reinforce and bolster the witnesses' testimonies. The effect of these impermissibly suggestive procedures also resulted in a denial of "due process", as evidenced by the witnesses' federal habeas testimony. -- Guerra, 629
Then there was the complete disregard of Brady.
634The police officers and prosecutors had a duty to accurately record the statements of the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty to not prosecute an innocent man. They failed in these duties. These intentional omissions, during the investigation and prosecution, and the inclusion of poisonous speculations during trial, had the effect of suppressing and destroying favorable testimony that the Court finds was material to Guerra's defense. The information that the police and prosecutors failed to disclose, as well as the manner that the investigation and prosecution were conducted, hardly left a paper trail, and intentionally so. The concept of deceit was planted by the police and nurtured by the prosecutors. This conduct by the police and prosecutors could only have been deliberate and, so much so, that even the exonerating evidence was used in such a manner as to create a materially misleading impression. -- Guerra, 634
In addition to all of this, prosecutors also put on perjured testimony at trial. But that's okay. You see the district attorney back then was Johnny Holmes. He's the subject of hero worship by the member of that office. He's the one that's lionized for being tough yet ethical. He's the one that Pat Lykos wasn't. He's the one who got up and said in that infamous "ethics" training session that Mike Anderson would bring integrity back to the office.

I think Murray might even have a picture of Mr. Holmes on his nightstand.

But then, here's the kicker.

The police officers' and the prosecutors' actions described in these findings were intentional, were done in bad faith, and are outrageous. These men and women, sworn to uphold the law, abandoned their charge and became merchants of chaos. It is these type flag-festooned police and law-and-order prosecutors who bring cases of this nature, giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed. Their misconduct was designed and calculated to obtain a conviction and another "notch in their guns" despite the overwhelming evidence that Carrasco was the killer and the lack of evidence pointing to Guerra. 
The police officers and prosecutors were successful in intimidating and manipulating a number of unsophisticated witnesses, many mere children, into testifying contrary to what the witnesses and prosecutors knew to be the true fact, solely to vindicate the death of officer Harris and for personal aggrandizement. The cumulative effect of the police officers' and prosecutors' misconduct violated Guerra's federal constitutional right to a fair and impartial process and trial. -- Guerra, 637

Pretty damning, huh? And now Mike Anderson, the self-proclaimed savior of the DA's office has made the target of Judge Hoyt's outrage his general counsel.

What does that tell you about the state of ethics at 1201 Franklin?

See also:

"Prosecutor accused by courts of 'intentional misconduct' named Harris DA general counsel," Grits for Breakfast (March 3, 2013)

Saturday, March 2, 2013

Happy Birthday, Texas

Happy Independence Day, y'all.

Today I'll be up at Washington-on-the-Brazos with my girls celebrating the 177th birthday of the Lone Star State. On March 2, 1836 delegates met in a white house overlooking the Brazos River and signed the Texas Declaration of Independence while the Alamo was still under siege.

Four days later, shortly after dawn, the Alamo would fall and the defenders of the mission were all executed (unless you believe that the Mexican army took Davey Crockett and others prisoner). A month and a half later the Texans defeated Santa Ana at the Battle of San Jacinto and the Republic of Texas was born.

According to the official history we're taught, the Texans wanted to be free of the long, oppressive arm of Santa Ana. The Texans felt that the government in Mexico was violating its agreement to let the Texans do what they wished north of the Rio Grande.

The reality of the situation was just a tad bit different. The Texans, you see, were really concerned about the future of slavery. In Mexico proper slavery was illegal. The Catholic Church felt that holding others in bondage wasn't a very Christian thing to do. Yes, there were disputes over taxes and the like, but the war itself was fueled by the desire of the wealthy elites to preserve their "peculiar" institution.

Happy Birthday, just the same.

Friday, March 1, 2013

Neutral and detached? Just forget about it

There we are. Milling about in the court room for Harris County Criminal Court at Law No. 2 waiting for Judge Bill Harmon to grace us with his presence.

Then, out he emerges from the hall carrying a large sign with him that he props up on the bookcase behind the bench - right next to his plaque from MADD. The sign was bright yellow and announced that the average person arrested for drunk driving had driven drunk 87 times before being caught.

A quick check on this internet thing reveals that this alleged statistic pops up a lot. And, interestingly enough, no one ever cites a source for it. But that's all a bit beside the point right now.

The larger question is what in the hell is a judge in a criminal court doing putting up a sign like that behind the bench? Is he trying to send a message to everyone in the courtroom that he's serious about DWI cases? Or is he letting everyone know that he isn't even going to put up the pretense that he's neutral and detached?

Judge Harmon's job is to sit on the bench and act as a neutral and detached referee for disputes involving prosecutors and defense attorneys. His job is to sit on the bench and ensure that the constitutional rights of the defendant are protected? His job is to ensure that a defendant's due process rights aren't violated.

His job is not to sit up high and promote his agenda in the courtroom.

His newest sign is good evidence that he cannot be unbiased and neutral when it comes to DWI cases. He's already telling the defendant that he believes the defendant has driven drunk scores of times before he ever came to court. Just what might that mean when it comes to punishment after a guilty verdict? Is he going to order a sentence based upon the facts of the case at hand or is he going to base it upon his belief that this isn't the defendant's first rodeo?

The fact that he sees no problem in putting up the sign is troubling enough without wondering why no one else has questioned the practice. One must wonder what would happen if a judge put up a sign that said the NHTSA battery of coordination exercises is wrong almost 25% of the time. How long would it take for that judge to get a memo that he needs to remove the sign from the courtroom?