Tuesday, April 30, 2013

Happy Birthday, Willie

Yesterday was the red-headed troubadour's 80th birthday. To celebrate here is an interview with Willie that aired on Democracy Now! as well as a couple of my favorite Willie Nelson songs.

There's a reason you have two ears and only one mouth

When people ask my nine-year-old daughter what she wants to do when she grows up, she tells them she wants to be a lawyer like her dad (I've still got plenty of time to discourage that course of action). Then my wife chimes in that she really likes to argue and everyone smiles and nods their heads.

As anyone who has ever practiced law will tell you, very little of a lawyer's time is spent "arguing." In fact, we do a lot more sitting around listening to our clients that we do arguing.

I was reminded of this when I saw Scott Greenfield's post on Saturday about the talkative contractor he was looking to hire to repair his house after Hurricane Sandy.

Before arguing a motion to the judge there are hours of prep time spend reviewing the case file, researching the current state of the law, drafting the motion and anticipating your opponent's arguments. And sometimes the argument is limited to the judge asking what you want and why and then listening to the prosecutor state why the court should deny relief. Now you've got one last chance to impress the court.

Before sitting down to cross-examine the state's main witness you spend hours pouring over offense reports, witness statements, photographs as well as material obtained through discovery and snooping around. And then, invariably, the witness goes down a path you hadn't anticipated and your entire outline gets tossed out the window. If you're going to be effective you better be listening.

Contrary to what many people think, cross-examination isn't about arguing with the witness. It's about you testifying for your client through the person on the witness stand. It's as much about what you don't ask as what you do ask. It's about weaving together disparate threads of a story you can tell to the jury at the end of the day.

And, while we're here, don't even think of arguing during jury selection. As my esteemed colleague Mark Bennett has pointed out countless times in his blog and in his presentations, the secret of jury selection is listening. If you want to know what someone is thinking, ask them and listen to their answer.

So, if you think Junior will make a great lawyer one day because he likes to argue until he's blue in the face - think again. He might be better suited to talk radio or Fox News. If you want to be a good lawyer, you need to shut up and listen. You just might learn something.

Monday, April 29, 2013

High court says no to warrantless blood draws - or does it?

Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.

Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.

Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.

At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.

The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?

Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.

But I digress.

Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.

The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.

Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.

There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.

Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.

Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?

The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.

There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.

Saturday, April 27, 2013

Now for something completely different...

What you are about to see (H/T NPR) is three years of the sun's life compressed into three minutes. NASA took two pictures a day of the sun from a satellite for three years and put those shots together in this video. It is wildly hypnotic and it gives you an idea of the violence just beneath the surface of the sun.

It also puts into perspective just how inconsequential we really are. Long before we started walking on our hind feet and making tools the cosmos did its thing and long after we kill ourselves off the cosmos will still be doing its thing.

Then we have this article from the BBC in which scientists estimate that over the next 200 years there will be one catastrophic collision with space debris every five to nine years. The debris we're talking about is all man-made: dead satellites, rocket booster stages and exploded fragments of both.

Apparently there are approximately 20,000 pieces of man-made space debris orbiting the earth that are big enough to be monitored - and somewhere around 500,000 pieces between 1cm and 10cm in length. All of these objects are travelling at speeds of several kilometers an hour.

And just why is there so much junk floating around in space? It's because through the lens of capitalism, since no one "owns" space, it is used both as a "highway" and as a giant trash can. It's the same attitude that has led to the pollution of lakes, oceans and the air we breathe. For, unless there is someone to charge rent for the use of space, there will be no incentive for anyone to clean up after themselves. Instead of viewing the commons as belonging to everyone and acting accordingly, those seeking profit look at the commons as belonging to no one with no consequences for trashing the place.

But, who cares, because by the time the consequences are felt, none of the folks responsible for the mess will still be around.

Friday, April 26, 2013

Update: Another senseless death

"Life is death, death is life. I hope that someday this absurdity that humanity has come to will come to an end," [Richard] Cobb said when asked if he had any last words. "Life is too short. I hope anyone that has negative energy towards me will resolve that. 
"Life is too short to harbor feelings of hatred and anger. That's it, warden."

Another inmate is dead.

But nothing is changed.

Richard Cobb was murdered on Thursday night at the hand of the State of Texas for a murder he committed almost eleven years ago. The other man convicted in the case, Beunka Adams, was murdered by the state a year ago this week.

Kenneth Vandever, the man Mr. Cobb murdered, is still dead. His family still feels the loss. The deaths of Mr. Cobb and Mr. Adams don't change that. There is nothing that will ever take away that sense of loss.

"I think justice was served but it doesn't change anything to speak of," the slain man's father, Don Vandever, said after watching Cobb die. "I do think the justice system needs to be more of a deterrent. 
"All he did was go to sleep. That's it."

Yes, that's all that happened last night. A person with a medical license from the State hooked up an IV so that someone else could press a button to release the poison into Mr. Cobb's vein. But even had Mr. Cobb been electrocuted, hung, shot or drawn and quartered, Mr. Vandever's son wasn't coming back to life.

The death penalty is not a deterrent to murder. It never has been and it never will be. In order for it to be a deterrent, everyone would have to think in abstract terms of benefits and consequences before doing anything. Yes, your chances of being murdered by the state are long indeed, but there are only a select few crimes that the government chooses to exercise its power to kill. Besides, most of the time no one planned on killing anyone.

The death penalty can be a deterrent to trial, however. Given a choice between pleading guilty and taking life in prison versus going to trial and risking the needle, many defendants elect to plead. The ones who go to trial either proclaim their innocence or weren't given the choice to plead.

In the end our society will be judged by how we treated our worst members. We have spent years waging war against the poor and people of color and locking them up behind bars. We have a governor who thinks presiding over the murder of inmates makes him more of a man.

The madness needs to stop. It's time we stopped killing inmates. Violence begets violence and hate begets hate. The death penalty is a cancer that's killing us from within. It is time to excise the cancer and find a better way to deal with the worst of the worst.

Thursday, April 25, 2013

Adventures in spelling

Here is a sign from a bail bond place in downtown Houston. I spotted it while walking around with my oldest daughter looking for a place to eat one day when she didn't have school.

Just look, it'll jump out at you like it did for me as soon as we passed by.

It wouldn't be that bad except that they spelled apprehension right at the top of the sign.

An apology

For the last couple of years I have been providing updates on scheduled executions in Texas. The information is provided by Execution Watch. I get the information through their website and from e-mail updates they send out in the days prior to a scheduled execution. The show Execution Watch is broadcast on KPFT at 6pm when there is an execution scheduled.

Unfortunately the information I've received recently from Execution Watch hasn't been accurate. And, if you've tried to listen to the radio show you know it's not always on when it's supposed to be.

Earlier this week I ran an update on Elroy Chester III, who was set to be murdered by the State of Texas last night. However, on April 16 the Court of Criminal Appeals rescheduled the execution to June 12, 2013. That I didn't find out until I noticed the Execution Watch website did not have the information for Mr. Chester on the front page this afternoon.

I apologize for providing y'all with the wrong information. The lesson learned, of course, is to verify the information before posting the update.

Wednesday, April 24, 2013

Execution Watch: 4/25/2013

The killing machine just keeps on killing...


RICHARD COBB.  One of two men condemned for a 2002 robbery-slaying in the small East Texas town of Ruskin. he and Beunka Adams (murdered by the state on April 26, 2012) were convicted of forcing three convenience store workers into a car, driving them to a field, raping one of the women and shooting all three with a shotgun. One worker, a mentally disabled man, died. The women survived by playing dead.

For more information on Mr. Cobb, click here.

Unless a stay is issued, we'll broadcast ...Thursday, April 25, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: www.executionwatch.org > Listen

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

Tuesday, April 23, 2013

Sometimes I feel like a motherless child

Folk singer Richie Havens, who opened Woodstock, died yesterday at the age of 72. His songs were an important part of the tapestry of the 60's and early 70's.

Rest in peace.

Execution Watch: 4/24/2013

Texas is rapidly approaching its 500th execution since the death penalty was reinstated in 1976...


ELROY CHESTER III.  A jury sentenced Mr. Chester to death after he pled guilty to the 1998 fatal shooting of a Port Arthur firefighter who was slain after arriving at his sister's home during a robbery. Mr. Chester's attorneys argued on appeal that he is ineligible for execution because he is mentally impaired, but a divided federal appeals court upheld the sentence.

For more information on Mr. Chester, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, April 24, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: www.executionwatch.org > Listen

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

Monday, April 22, 2013

Dropping the other shoe

Michael Morton spent 25 years in prison for a crime he didn't commit. Once evidence surfaced that Mr. Morton might just have been innocent of the murder of his wife, the Williamson County District Attorney, John Bradley, fought tooth and nail to prevent the evidence from being tested.

The DA at the time of Mr. Morton's trial, Ken Anderson, was now a state district court judge in Williamson County and the office was circling the wagons to cover up the sins of one of their own.

Eventually the evidence was tested - and it exonerated Mr. Morton.

Twenty-five years is a long time to sit in prison - especially if you were wrongly convicted. Even worse if that conviction were the result of prosecutorial misconduct. There is nothing that can make up for that time. Mr. Morton will never have the opportunity to see his son grow up. An apology from the court and a check from the state can't cover the debt Mr. Morton is owed.

During the investigation of the murder of Christine Morton, investigators interviewed Mr. Morton's three-year-old son who told police that his father wasn't at home when his mother was killed. There were also police reports about a suspicious van in the area and a man who wandered up behind the Morton's house on more than one occasion.

Prosecutors failed to disclose that information to the defense before or during trial. And, of course, the jury never heard a word about any of it. Making it worse, Judge. Anderson then lied to the judge presiding over Mr. Morton's trial when asked about the evidence.

But now the other shoe has dropped. On Friday, State District Judge Louis Sturns, presiding over a court of inquiry, found that Judge Anderson broke two laws in his handling of the matter and that he committed criminal contempt when he lied to the court. Then Judge Sturns ordered Judge Anderson arrested.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison. 
“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Let that sink in for a moment.

First the judge tells a fellow judge that he broke the law while handling the Morton case, then he issues an arrest order for a sitting judge. That just doesn't happen in Texas.

Judge Anderson was taken into custody, posted bond and was released that evening. But the sting of Judge Sturns' words will never be erased. A sitting state district judge broke the law and lied to a judge all in the name of trying to win a case against a man he knew - or should have known - was innocent of the charge.

Judge Anderson challenged the ruling and informed Judge Sturns that he plans to appeal on the grounds that the court of inquiry exceeded the scope of its authority and that the statute of limitations had already run. He also claimed that the evidence didn't support Judge Sturns' findings.

It is more than a little interesting to note that Judge Anderson has never denied hiding the evidence. Neither he nor John Bradley found anything wrong with not disclosing exculpatory evidence to Mr. Morton's attorneys

While the Michael Morton Act expanding the items the state must turn over to the defense prior to trial is a step in the right direction, the actions of Judge Sturns are the equivalent of turning the entire truck around. A ruling that a piece of evidence is inadmissible is one thing - a ruling that a prosecutor's actions constituted a criminal act is something entirely different.

If we want to make certain that no one else has to go through what Michael Morton went through, we have to start holding prosecutors accountable for their actions. This isn't a game we play, what goes in those courtrooms affect people's lives in profound ways. Judge Anderson's actions not only robbed Mr. Morton of 25 years, they also robbed his loved ones of those 25 years.

I just wonder if Judge Anderson has enough honor to step down from the bench he has disgraced.

Friday, April 19, 2013

Were you the same person 32 years ago?

Last weekend lawprof Doug Berman posted an article about how the state of Florida got around to murdering an inmate 32 years after he was sentenced to death. Mr. Berman's use of the word (finally) in the title tells you just about all you need to know about his views on the ultimate act of governmental power.

An interesting twist, however, was Mr. Berman's idea that if an execution isn't carried out within 15 years of the date of sentencing that the sentence should be commuted to life in prison without parole (what my fellow blawger Jeff Gamso refers to as "death in prison"). Mr. Berman's thoughts, of course, are with the family and friends of the victim and their need for closure (which is a fantasy that occurs).

In Mr. Berman's opinion, the fact that it took Florida 32 years to kill Larry Eugene Mann makes a mockery of our criminal (in)justice system. His idea of a mockery being that the savages' desire for bloodlust was delayed so long.

I concur that holding a man on death row for three decades makes a mockery of our system. But not because those seeking revenge had to wait so long but because the passage of 32 years renders the court's determination that Mr. Mann needed killing moot.

In most jurisdictions that murder inmates, before a death sentence can be imposed there must be a finding that the defendant will remain a danger to society in the future. At the time he was sentenced to die, Mr. Mann was 27 years old. At the time of the murder he was younger still.

Due to the nature of the murder I could see how a jury or a judge could make the decision that Mr. Mann would continue to be a danger to society. But that was back in 1981. Ronald Reagan was president. We had no internet. Cell phones were the size of bricks.

Things change over the course of 32 years. People get older. They get more mature. They might even get wiser. People certainly mellow out over time. Our attitudes and beliefs change. Sitting in a small cell with limited contact with the outside world gives a man plenty of time to think and to contemplate his existence.

Larry Eugene Mann wasn't the same person the other night when he was strapped down to a gurney and poisoned to death as he was the day he murdered ten-year-old Eliza Nelson. The time that passed certainly didn't mitigate his guilt. But the passage of 32 years should cast doubts on the finding that Mr. Mann would continue to be a danger to society.

Taking advantage of the publicity regarding the length of time that passed between the sentencing and the murder of Larry Mann, the judiciary committee of the Florida House passed a bill that would set stricter deadlines for post-conviction litigation of death penalty cases. Of course that's to be expected since convicted murderers don't have an effective lobby and have no political muscle.

The irony is that there are 28 inmates on Florida's death row who have been there longer than the 32 years Mr. Mann spent there. That's 28 more "special findings' that have no validity anymore due to the passage of time.

Yes, Mr. Berman, executing a man after spending 32 years on death row does make a mockery of our criminal (in)justice system. Just not for the reason you believe.

Thursday, April 18, 2013

Book review - The Lawyer Bubble: A profession in crisis

Too many lawyers. Too few jobs. Too much debt. Too much greed.

That, according to Steven J. Harper, just about sums up the problems in the legal profession these days. There is a glut of attorneys out there who can't find jobs. They are carrying way too much debt to even consider paying back anytime soon. And all the while the American Bar Association hands out accreditation to new law schools left and right.

In his new book, The Lawyer Bubble: A Profession in Crisis, Mr. Harper takes a hard look at the problems in the profession today and details how BigLaw has screwed the pooch, how law schools are scamming students and how prospective lawyers fall over the cliff just like lemmings.

I learned an awful lot about law school and BigLaw culture that I never knew anything about thanks to Mr. Harper. I didn't know I was supposed to pour over the U.S. News & World Report rankings to determine where I went to school. I didn't realize my dream was to work in a mega law firm doing mundane tasks for years on end while making money hand over fist. I had no idea that law schools were so deceptive in their marketing practices.

Ignorance was bliss.

I went to South Texas College of Law's night program for second career lawyers. My choices were South Texas and the University of Houston. My decision was made when I found out that UH's part-time program didn't start until the spring while South Texas kicked things off in the fall. I applied to one law school and was accepted. To this day I couldn't tell you where either South Texas or UH sit in the U.S. News rankings. I don't care. If you've ever spent time practicing down here you know that both schools prepare students for the real world.

Since I went into law school to become a criminal defense lawyer I never knew anything about the wet dreams that students have over working for BigLaw. I never knew anything about the ways in which law schools manipulate employment data to convince students to plunk down large sums of cash to attend their school. To this day I couldn't tell you how many South Texas graduates have long-term jobs requiring legal degrees. I graduated in May, took the bar in July, got my results in November and hung out my shingle in January.

But, back to Mr. Harper's book. In the first part of The Lawyer Bubble, he shows us how BigLaw fouled the waters for everyone and how the greed at the top of the pyramid has created such turmoil for those at the bottom. It started when someone made the decision that BigLaw was more of a business venture than a profession. When the chase for profit became more important that providing service for the client, the world of BigLaw came crashing down. He also shows us how the same mistakes were made again and again and again...

He paints a bleak picture of life as a junior associate. There are fewer openings for equity partners. The partnership track has been extended. The attrition rate in BigLaw approaches 80% after five years. Big firms have spent the past decades increasing their "leverage" - the number of associates per each equity partner. That means more mundane tasks and fewer opportunities to get that corner office.

In the second part of his book, Mr. Harper takes a hard look at the role law schools have played in creating the mess we find ourselves in. There are too many law schools accepting too many new students without enough demand for lawyers out in the real world. The law schools benefit from federally-guaranteed student loans that can't be discharged in bankruptcy. The law schools keep hiking up their tuition knowing there's "free" money out there to pay the bills. Law schools, particularly those affiliated with a university, have become profit centers and are operated as such.

Instead of preparing students for what being a lawyer really means, the law school curriculum is placed in the hands of academics who are more interested in pursuing their research on esoteric topics while being forced to teach a class or two a semester. The end result are new lawyers who don't know how to write a brief nor where to file it. In ringing up debts that run into six figures, prospective lawyers should at least be given a map so they can find the courthouse.

Finally, Mr. Harper tells prospective lawyers to look in the mirror. It's time to see the world as it is, and now how you want it to be. Before you run up a big debt you need to make damn sure this is what you want to do. You need to know what the economic climate is in the legal profession, you need to find out how BigLaw operates (if that's what you want to do) and you need to decide if that's the life you want. Too many students go into law school without the foggiest notion of what the world is going to look like after they cross the stage and pass the bar.

A very clear and important underlying message of The Lawyer Bubble is the need to always remember that ours is a profession dedicated to serving our clients nor a business model to maximize profits.

Wednesday, April 17, 2013

A few thoughts on the bombing in Boston

Any time bombs are used to target innocent civilians, it is an act of terror. -- President Obama (4/16/2013)
There were a few things that struck me yesterday regarding the bombing of the Boston Marathon. The first has to do with the crowds of fans watching the runners punish their bodies. Road races are one of the last sporting events that folks are able to walk up to and watch. There are no tickets. There are no metal detectors.

Part of the beauty of the Houston Marathon are the crowds gathered along the course. Whether it's the Heights, Montrose, the Village, the Galleria, Tanglewood, Memorial Drive, Allen Parkway or the final stretch, the fans are loud and supportive. If you're paying attention you'll see the same folks three, four or five times along the course. I never get tired of the sight of a runner heading to the side of the road to spend a few moments with family members before continuing on.

How much is that going to change as a result of what happened at the finish line on Monday? I hope it doesn't. This world can be a dangerous place but if you spend your life trying to wrap yourself into a protective cocoon, you're going to miss an epic journey.

Which brings me to my second thought. While driving up to Conroe this afternoon to make the 1:30 p.m. docket, I was listening to Talk of the Nation. The topic, of course, was the bombing. One of the panelists was asked about increasing security measures for runners and he didn't think it would be a big deal to require runners to pass through a metal detector on the way to the start line. Another guest who was associated with Atlanta's Peach Tree race piped in that she didn't think the runners would mind the inconvenience.

And why should runners have to walk through a metal detector on the way to the start line? It wasn't a runner who was carting two bombs along the course. I have never read or heard about any runner carrying a weapon with him on the course and using it during the course of the race. The notion of subjecting runners to unnecessary security measures is not just absurd, it's downright scary. It's scary because there are folks who find nothing wrong with the idea.

These are the same lemmings folks who blindly accept the latest "security" measure at the airport (or wherever) because it's all about being safe. So what if we're trading our privacy and our liberty for the false promise that our government will keep us all safe. One day y'all will wake up and tell your grandchildren stories about the old Fourth Amendment that will sound as quaint as today's tales about rotary dial phones and getting up and changing channels by hand.

And finally it's time to deal with the President's quote. If there is an award for unintended irony, President Obama has already wrapped it up for the year. How he was able to equate the bombing of innocent men, women and children with terrorism and keep a straight face while doing it, I'll never know. Yes, the deaths of three people and the maiming and wounding of more than 180 others was tragic - but it doesn't even compare to the death and destruction wrought by our government on innocent civilians in Iraq, Afghanistan, Panama, Serbia, Vietnam, Laos and Cambodia - just to name a few.

Imagine the terror of sitting down at a cafe and having a bomb explode as it falls from the sky. Imagine the horror of seeing a cluster bomb fall in a market. Imagine the fear induced by the sounds of fighter jets in the sky knowing what they're carrying.

The United States is the world's finest killing machine but no one in our government and very few in the media care about the loss of innocent lives by the hand of American weaponry. They don't look like us. They don't talk like us. They don't practice religious superstition like us. They're just collateral damage in a war they had nothing to do with.

Yes, Mr. President, the use of bombs to kill innocent civilians is terrorism. And you, Bill Clinton and the Bushes should all be standing in the dock at The Hague answering charges of crimes against humanity.

Update: The killing never stops

Yes, it's a broken record. But once again the State of Texas has seen fit to murder an inmate in a futile attempt to go back in time.

Ronnie Threadgill was the latest victim of the Texas killing machine and the 496th since capital punishment was reinstated by the US Supreme Court in 1976. But try as they might, officials with the state were unsuccessful in traveling back in time to April 15, 2001. Mr. Threadgill's victim, Dexter McDonald, is as dead today as he was that night.

According to Thane Rosenbaum the victim of the crime has been made morally whole. And, if they feel like Mr. Rosenbaum says they should feel, they elected to show it by not attending the state-sponsored murder of Mr. Threadgill. Just what does that have to say about the retributive "justice" theory that Mr. Rosenbaum espouses and projects on society as a whole?

The McDonald's lost a son that night. That is a wound that can never be healed. The pain and sorrow may fade and weaken over time - but they will never go away. Killing Mr. Threadgill won't make it go away any more than it will bring Mr. McDonald back to life.

Jeff Gamso wrote a very thought provoking piece the other day about mercy. His thesis is that true mercy is shown when it is bestowed on those who least deserve it. Now, getting away from this fallacy that anyone does or doesn't deserve mercy or whatever travails they've had to deal with, his sentiment is correct.
To whom is it most worthy to bestow grace, to be merciful? To the innocent? To the good? No, there's nothing to that. It should be done, of course, but it's easy. Grace is hard.  It asks a lot of us, of the giver.  It asks that she give freely and openly because she recognizes that, as we were taught as children, it is better to give than to receive.  
And so the best gift, the noblest, and the most honest, clemency in its truest form is for those who least deserve it. Clemency for Steven Smith would be an extraordinary gift precisely because his is such a tough case. And how much better we would be as a state if we were willing to bestow it on him. This is who we are, it would say, we are a decent people who look upon the frog and see the prince, upon the foul and see the fair, upon the ugly and see the beautiful.
It's easy to get behind the movement to block an execution of a man or woman whom we have come to learn is innocent. It's also easy to get behind the movement for an inmate who, due to mental retardation, is unable to comprehend what is happening to him. It's much harder to fight for an end to the death penalty when the inmate has an extensive felony record and was seen firing the shot that ultimately killed Mr. McDonald.

Mr. Threadgill was, by all accounts, a bad man. He had a very rough childhood. I don't know how to quantify it, but the circumstances surrounding his youth played a role in his criminal activity. He grew up with demons and never found a way to get rid of them.

But that's no reason to kill. Next week there will be two more men strapped down to the gurney in Huntsville. And there will continue to be men strapped down in the weeks and months ahead. Their deaths will accomplish nothing either.

It is time we show mercy to the worst among us. It is well past time to commute the death sentences of those on Death Row to life (or, as Jeff would say, death) in prison.

Tuesday, April 16, 2013

Dreams turn into nightmares

As I write this I'm still in something of a state of shock about what happened in Boston yesterday. I was sitting at my desk when the New York Times app on my phone alerted me to the story. I spent most of the rest of the afternoon with live coverage from a Boston television station on in the background.

As though of y'all who read this blawg on a regular basis know, I'm a runner. I've run 28 marathons and ultras over the past 15 years but I have never qualified (nor gotten reasonably close to qualifying) for the pinnacle of American road racing - the Boston Marathon.

It is a race that every one of us who laces up our shoes and hit the pavement every morning aspire to. It is a dream that very few of us will ever realize and anyone who qualifies for it should savor every minute of the experience. But now, for thousands of runners, their memories of the 2013 Boston Marathon won't be of the  satisfaction of crossing that finish line. Instead, they will always associate their moment in the sun with the tragedy that befell spectators near the finish line. Instead of happiness their memories will be of horror and sorrow.

And, for the thousands of runners still on the course, their dreams of crossing the finish line will remain unfulfilled.

For those of us who run these races for fun our friends and family line the course to cheer us on and to give encouragement when we need it. It was supposed to be a glorious day for them, too. To see their loved ones  finish the Boston Marathon.

Now three people are dead, including an 8-year-old, and well over 100 are wounded. A day that broke with promise ends in unspeakable tragedy.

Monday, April 15, 2013

Execution Watch: 4/16/2013

Texas is rapidly approaching its 500th execution since the death penalty was reinstated in 1976...


RONNIE PAUL THREADGILL, 38. Mr. Threadgill was sentenced to death for a 2001 slaying outside a Navarro County nightclub. He was convicted of firing two shots into a car, hitting a 17-year-old who was in the back seat. The U.S. Supreme Court refused to grant certiorari in 2012. His appeal asserted that his lawyers should have negotiated for a felony murder charge instead of capital murder and should have rebutted an alleged shooting in Freestone County that was brought up during the trial.

For more information on Mr. Threadgill, click here.

Unless a stay is issued, we'll broadcast ...Tuesday, April 16, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: www.executionwatch.org > Listen

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

Saturday, April 13, 2013

We certainly can't let a bit of repression get in the way of a race

Stop me if we've been down this road before but the repressive government in Bahrain has launched raids to detain opposition activists prior to the annual motoring circus known as Formula 1 coming to town.

Last year the army, backed up by Saudi arms and American money, attempted to crush the revolt in the days leading up to the race leading for calls for the FIA to cancel the race. Ah, but the love of the filthy lucre was too much for Bernie Ecclestone and his cronies to pass up on and so they put on their dark sunglasses and looked the other way as much as possible and had a grand ol' time hanging out with the uber-wealthy set.

Once again those in charge of the Formula 1 franchise couldn't care less about a little repression here and there - just so long as it doesn't disrupt their little race. At least former World Champion Damon Hill has given the matter a bit of thought (even though he appears loathe to rock the boat too much).

Of course I would be remiss if I didn't mention that the US Navy's Fifth Fleet is housed in Bahrain and so the US government, despite its claims to be fighting for greater freedom and democracy around the world, has no problem with a bit of repression now and then.

I guess it shouldn't be unexpected given that those involved in the world of motorsport tend to lean toward the right. A good many of the drivers in Formula 1 came from wealthy families who bankrolled their expensive little hobby as they grew up. The team owners were exceedingly wealthy and had to have some serious coin to deal with the massive cost of replacing equipment on a regular basis.

Over the years Formula 1 marketed itself as having the best drivers in the best cars on the world's best racing circuits. And you couldn't possibly have the commoners getting tickets to sit and watch so the bosses jacked the ticket prices to the stratosphere so that only the truly wealthy could afford to tag along with the road show.

Add this all together and you come up with a sport that has much more in common with the repressive regime in Bahrain than it does with the folks out on the streets fighting for a voice. Is it any wonder the powers-that-be don't care about a little bloodletting here and there?

After all, the series ran its races in plenty of other repressive states over the years including Franco's Spain, the generals' Argentina and Brazil just to name a few.

FIA has no problem taking public money to put on its traveling circus around the world. Considering that money could have been used for other purposes that would have benefited more people, race organizers should be a little bit more attuned to what's going on in the streets.

The race only serves to benefit the ruling elite of Bahrain. The Bahraini government (and FIA) want the world to see an antiseptic race course with lots of money being flashed around by pretty people. Having to put up with those annoying folks fighting for democracy would only serve to spoil the show.

Anyway, they've got to get ready for the Chinese Grand Prix coming up later this year.

Friday, April 12, 2013

State Senate passes Michael Morton Act (corrected version)

Yesterday the Texas Senate unanimously passed the Michael Morton Act which will expand the scope of discovery for defendants in criminal cases. In the face of staunch opposition from the defense bar, any provisions requiring the defense to hand over documents were removed from the bill.

Proponents even withstood a last minute attempt by Sen. Joan Huffman (R-Houston) to insert a provision in the bill that would, in effect, place a gag order on defense attorneys regarding the release of any information obtained via discovery. That last statement wasn't true - it was based on an article that ran in Wednesday's Texas Tribune (a story that is no longer on their website) that claimed a last minute compromise had been worked out that would remove the amendment from the bill. The article, however, was light on details. As Grits pointed out in his comment this morning, and as I noted a few paragraphs down, provisions (e) and (f) impose a gag order on defense counsel regarding the information obtained through discovery.

I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.

Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.

The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.

According to the language of the new bill "the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."

So, while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment.

Of course we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement.

While Sen. Huffman's proposed amendment was removed in order to ensure passage of the bill there is a provision which would seem to bars defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense. This would appear to prevent the defense from providing information to the press regarding any issues of misconduct - if that information was obtained through the discovery process.

One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.

On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.

The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.

Thursday, April 11, 2013

Who's really to blame for network fiasco?

So now Houston mayor Annise Parker has decided to get herself in the middle of the fray between the Astros and Rockets' regional sports networks and satellite and cable TV providers. According to Mayor Parker, the fact that the network is available to no more than 40% of Houston cable and satellite subscribers is "intolerable." So, to break the impasse she has invited representatives from the sports network, DirecTV, AT&T and Suddenlink to sit down and work it out.
“The proud followers of our Houston teams – many of whom have paid for the venues where the Astros, Dynamo and Rockets compete – have been patient as your negotiations with Comcast SportsNet Houston have unfolded,” Parker wrote. “That said, as the Rockets push toward the NBA playoffs and the Astros and Dynamo seasons get underway, the situation is intolerable.”
Most telling is her comment about who paid for the stadiums in which the teams play. When these multi-million dollar playpens were built, the public was told the bill would be paid by folks who came to town and stayed in hotels and rented cars. Well, that's not entirely correct. Local government officials agreed to finance the stadiums and placed an additional tax on hotel rooms and rental cars. That additional tax was supposed to cover the costs of the stadiums. But, should those tax revenues fall below the level necessary to pay off the bondholders, who do you think is responsible for coughing up the balance?

In her pandering to the owners of the franchises, Mayor Parker seems to have forgotten that both the Astros and the Rockets had existing deals with one of Fox Sports' regional networks to televise their games. The Dynamo had no broadcast outlet for the majority of their games. The Fox network was available on all cable and satellite systems as part of a basic (or expanded basic - whatever the hell that means) subscription.

The ownership of the Astros and Rockets made the decision to go in with NBC Sports to create their own regional sports channel in hopes of making more money than they made with Fox. In order to bring in the revenue, the network has asked cable and satellite providers for a certain amount of money per subscriber. The providers say the asked for price is too expensive for them to make the channel available for basic packages.

Yes, the providers are trying to bid down the price so they can make more money carrying the channel. But the lion share of the blame must rest on the Astros and the Rockets for being greedy. The Astros have spent the last two seasons in the cellar and will likely sit on the basement sofa eating Cheetos come October. The Rockets are in the playoffs for the first time in I don't know how long (truth be told, I couldn't care less about basketball). I guess no one in the front offices realized that teams that aren't doing well on the field (or at the gate) don't have much leverage when it comes to negotiating television deals.

If Mayor Parker were really interested in the plight of Astros and Rockets fans she'd put the blame where it belongs - on the teams themselves. These teams had new stadiums built for them with the public picking up the tab (damn those poor folks who are scamming the government to get our tax dollars so they can sit at home all day and not work). With those kind of subsidies, these teams should be operated as a public trust.

Instead the owners of both teams have shown themselves to be greedy little monsters out to squeeze every dollar from the fans they can.

Wednesday, April 10, 2013

Principled grandstanding

Sen. James Risch (R-Idaho) was on All Things Considered yesterday talking about the threat that 13 senators have made to filibuster any attempt to put gun control legislation up for a vote. Sen. Risch said he is adamantly opposed to any legislation that might infringe upon the right of the citizenry to keep and bear arms.

It is heartwarming to see our legislators so concerned about the protections afforded up in the Bill of Rights. Can you even begin to imagine the impact such a demonstration would have on the Fourth Amendment? What a sight it would be to see a group of senators doing everything in their power to protect the constitutional rights of the accused? 

Such a force could even be powerful enough to persuade the Supreme Court that the Fourth Amendment means what it says and that further efforts to stretch the meanings of words aren't acceptable. Even the nine wearing robes stick their fingers up to see which way the wind is blowing every once in a while, you know.

And imagine what they could do to make the promise of Gideon a reality. 

Oh, what the hell am I thinking? They don't give a rat's ass about the rights of anyone who doesn't pump wads of cash into their campaigns. Their concern over the Second Amendment is grandstanding - they haven't the slightest care in the world about the Fourth, Fifth and Sixth Amendments. 

If these senators would take the same position on any legislation that infringed upon the constitutional rights of the citizenry I would give them a thumbs up for their principled stands. That would, of course, assume that they are capable of taking a principled stand on any issue.

It speaks volumes about the state of our politics that folks are more concerned about the possibility it may be harder to buy a gun in the future than they are about the steady erosion of their privacy rights by judges who are more concerned about putting the bad guy away than they are about ensuring the government doesn't overstep its bounds.

Update: Texas kills again

Last night the State of Texas murdered Ricky Lynn Lewis. The government felt the need to exact blood in the name of revenge - and they got their wish.

Strangely enough, George Newman, the man he was accused of killing, didn't come back to life following the ritualized murder. The killing didn't cause the memories from that evening back in 1990 to be erased from Connie Hilton's head, either.

Yes, I know it's a tired refrain, but nothing was accomplished in Huntsville on Tuesday night. Maybe Professor Thane Rosenbaum is happy because the government exacted an eye-for-an-eye - well, except that the victim was too dead to enjoy the act of revenge.

The death penalty is not a deterrent to anything. Most of the people on death row didn't plan their crimes. They just kind of happened. They didn't sit down and weigh the benefits of committing the crime against the cost of being strapped down and poisoned.

I find it ironic that we're outraged that a sharia court in Saudi Arabia decided that a man should be paralyzed because he caused another man to become paralyzed years ago. We're outraged that an Iranian court ordered a man to be blinded with acid because that's what he did to a woman.

Tell me, Professor Rosenbaum, what's the difference between those sentences and the death penalty? What makes their punishments barbaric and ours noble? More to the point, if we have decided as a society that it is wrong to take the life of another, what makes what the State of Texas did last night any different from the crime Mr. Lewis was convicted of?

Tuesday, April 9, 2013

The academic justification for revenge

There I was, in my car, minding my own business. I had just dropped off my girls after school for their Brownie meeting when I turned on the radio to listen to Talk of the Nation

Now, let's be clear about a couple of things here. The host of TOTN, Neal Conan, is very much a lightweight when it comes to serious matters. He's fine for his weekly "Political Junkie" segment and he's good for interviews with authors and directors. But, put a serious topic in front of him and he's out of his league.

And such was the case on Monday. He was interviewing Thane Rosenbaum, a lawprof and director of the Forum on Law, Culture and Society at Fordham University. The topic du jour was his latest book, Payback: The Case for Revenge. In it, Mr. Rosenbaum argues that crime victims deserve to get a bit of revenge for being wronged.

His thesis is that the victim needs a seat at the table when it comes to resolving criminal cases. He claims that victims are shortchanged when prosecutors make plea bargains with defendants to resolve their cases. He's upset that while the accused is entitled to representation crime victims aren't. It gnaws at him that crime victims don't get a seat at the prosecutor's table during trial.

To Neal Conan's credit, he did point out that as society has evolved we've decided that certain actions are crimes against the state and that society as a whole, not just the victim, is the aggrieved party. Mr. Rosenbaum just blew right past him and said that that notion was absurd and only served to trivialize crime victims.
What we do now in courtrooms is we reduce victims to witnesses on behalf of the state. We sit them in the back of the courtroom. We say to them, we're not your lawyers. You're not entitled to a lawyer. The - it's a strange to me, Neal, that the victim is the only party in a criminal action who's unrepresented by counsel. And what would be the problem if the state said, there are two debts, the debts owed to all of us and that debt that's owed to the individual. And we want to make sure that the individual feels avenged at the end of this proceeding. -- Thane Rosenbaum
Mr. Rosenbaum praised the moral code of The Godfather when Marlon Brando tells a man that he cannot have the men who raped his daughter killed because she was still alive. You see - they were honorable men who would only take an eye for an eye. Nothing more, nothing less. 

Mr. Rosenbaum's thesis is absurd. Back in the day when we roamed the earth in small clans and settled in villages revenge could be meted out. No one took into account the circumstances of the act. But we also ran around in loin clothes and lived in caves and tents made of animal skins. We had primitive tools and we lacked a written language. I dare say we have evolved a bit since then (except for the warmongers in Washington who seek more targets for their cluster bombs and other weapons of death supplied by corporations who shower our elected representatives with unending wads of cash).

When we developed our first criminal codes we were creating the framework for a society. It was better to have a dispassionate individual render judgment rather than allow the hot tempers of a mob to do so. We developed codes that classified crimes according to who the victim was and what damage was caused.

Every criminal case in Texas is The State of Texas v. someone. It's not Jane Doe v. Jack Daniels. Mr. Rosenbaum doesn't like the fact that prosecutors don't run plea deals past crime victims before making the offer to the defendant. So freaking what? Prosecutors, defense lawyers and judges have an idea of the punishment levels for various crimes. An ordinary citizen hasn't the slightest clue what is considered an appropriate sentence in a give case.

A crime victim also has too much emotion invested in the case and is (generally) unable to see the matter clearly.
We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they've made a decision to take a life. And there's - one wonders why there's - that there should be a discount on what payback should look like. That why is it that in every other aspect of our lives, we always expect to be paid back in full, right? Landlords expect it, businesses with commercial invoices - discount - department stores don't like to take discounts or marked downs on items. But when it comes to the worst crimes, the worst violations, we always immediately reflexively say that a discount is appropriate. 
Now, in cases where we have the worst of the worst, where there's no question of someone's guilt - heinous murders - why is it that we're so ambivalent about actually providing just dessert? -- Thane Rosenbaum
When someone steals a car, our system seeks to send a message to other folks who might be tempted to do the same thing. The purpose is to deter people from stealing. Yes, someone suffered as a result of the theft. The victim will either get his stuff back or he won't. But that's not the function of the criminal (in)justice system. The purpose of the system is to set boundaries - not to exact revenge.

We used to have that - it was called the Wild West.

It is a unique attribute of revenge that it can never satisfy the avenger. Regardless of how he achieves his vengeance, he can never fill in the hold left behind by the target of his revenge. If he is seeking revenge for a death - nothing he does will ever bring that person back to life. Which brings us to one final point.

If the right of revenge belongs to the victim of crime, then there is no justification for the death penalty because the victim of the crime is no longer with us. Unless we're going to have an ever-expanding definition of who's a victim. there is no one to avenge a murder. Of course, we can't let logic get in the way of our argument, can we, Professor?

While Mr. Rosenbaum has shown us why he is unfit to practice law in the real world, it's more than a bit troubling that he's sitting in the ivied tower of academia spouting his special brand of ignorance.

Execution Watch: 4/10/2013

The state that kills the most is back at it again...


RIGOBERTO AVILA, JR. The 40-year-old veteran from El Paso was convicted of the February 2000 slaying of his girlfriend's son while babysitting. Mr. Avila served in the military during Desert Storm. The US Supreme Court declined in 2010 to hear an appeal filed by his attorney, Robin Norris.

For more information on Mr. Avila, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, April 10, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: www.executionwatch.org > Listen

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

Monday, April 8, 2013

Making a bad bill even worse

Never one to let a good opportunity to put the screws to the defense, State Sen. Joan Huffman (R-Houston) has proposed an amendment to State Sen. Rodney Ellis' largely unnecessary reciprocal discovery bill. And, in the spirit of George Orwell, the bill has been named the Michael Morton Act.

For those of y'all scoring at home, you already know that once you put a person's name on a bill nothing good will come of it. And that is now doubly the case thanks to Sen. Huffman.

The amendment would allow a judge to impose a protective order on information turned over to the defense by the state that would prevent defense counsel from disclosing any of the items covered under the order to any third party, including other attorneys.

Courtesy of Grits for Breakfast, here is Sen. Huffman's amendment:
On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.
Now let's stop and think about this for a second. Should this bill pass it means that a judge could prevent a defense attorney from disclosing information about procedural violations in a crime lab, intimidation by law enforcement, a lack of honesty from law enforcement, exculpatory evidence and prosecutorial misconduct, just to name a few.

Just as Mr. Morton's conviction had nothing to do with his attorneys disclosing any information to the state, this sordid episode in Williamson County had nothing to do with his attorneys disclosing any information about the investigation into the murder. In fact, under this bill, his attorneys could have faced sanctions for disclosing information to other attorneys.

As I have stated on multiple occasions, wrongful convictions in this state don't happen because the defense didn't turn something over to the state - wrongful convictions happen because the state hides, fails to disclose or destroys evidence that might be exculpatory. Wrongful convictions happen because judges, the supposed gatekeepers of the criminal (in)justice system have no qualms about allowing in junk science in criminal trials if it benefits the state.

If we really want to put an end to wrongful convictions then we need to put some teeth in Brady. Prosecutors found to have violated Brady need to be sanctioned in some manner that will not only get their attention but will also get the attention of other prosecutors around the state. We as defense attorneys need to do a better job fighting against the proliferation of junk science in the courtroom. We need to challenge the purveyors of pseudo-science at every opportunity. Judges need to apply the same standards to scientific and expert testimony in criminal cases as they do in civil cases. I'm sure we can agree that a person's freedom and liberty is more important to us than an insurance company's bank account.

Sen. Huffman's amendment makes a bad bill even worse and gives us another reason to work to defeat. it. The only silver lining is that it exposes this entire scheme of reciprocal discovery for what it is - a scam.

Execution Watch: 4/9/2013

And the killing machine just keeps running...


RICKEY LYNN LEWIS. Convicted of sexually assaulting a Tyler woman and killing her fiance during a home burglary in 1990. A previous execution date was stayed because of claims that Mr. Lewis had extremely poor intellectual functioning, but a court ruled in 2005 that his intellectual abilities were not an issue.

For more information on Mr. Lewis, click here.

Unless a stay is issued, we'll broadcast ...Tuesday, April 9, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: www.executionwatch.org > Listen

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

Saturday, April 6, 2013

A gun in every house, a chicken in every pot

The enlightened city council members of Nelson, Georgia decided the other day to require the heads of all households to own a gun. How's that for limited government?

Nelson, Georgia is not what we would call a liberal hotbed. It's a small rural community of about 1300 an hour or so outside Atlanta. If I were to hazard a guess I'd say that Mitt Romney carried the town fairly handily back in November.

It's truly ironic that the same folks who want to repeal the Affordable Healthcare Act because it requires folks to purchase health insurance would promote a city ordinance that requires folks to go out and purchase a firearm.

To be fair, though, the ordinance does exempt convicted felons, citizens with mental or physical disabilities and those who have a moral objection to guns. Under the new law, there is no sanction for not possessing a firearm.

According to one council member the ordinance will not be enforced - no one will receive a citation for not having a gun in the house - so it's no big deal. He said the existence of the ordinance will act as a deterrent to crime in the community.

Now let's see, those on the right don't like the government telling them they have to do something and they don't like unnecessary laws on the books. And here we have both in one nice little package.

H/T Democracy Now!

Friday, April 5, 2013

Shielding the truth

Later today the Texas Forensic Science Commission will meet in Austin. One of the items on the agenda will be the scandal at the DPS crime lab in Houston involving former analyst Jonathan Salvador who is alleged to have not followed accepted standards when testing for controlled substances. Mr. Salvador is alleged to have "dry-labbed" his tests (not actually running the samples through the gas chromatograph).

As a result of Mr. Salvador's actions, hundreds, if not thousands, of cases are being reviewed. For purposes of disclosure, I have filed two writs in drug cases involving Mr. Salvador.

Of course the DPS is portraying Mr. Salvador as a "lone wolf." That's in the playbook for government offices in which one or more employees have been caught doing something they really, really shouldn't have been doing. By claiming that one (or a small group of) bad apple broke the rules, the department can deflect attention from the signs of systemic problems. We've seen it with police departments when officers are alleged to have committed police brutality. We've seen it once before with the DPS with the Dee Wallace mess. You see corporations hanging executives and managers out to dry to preserve the stakes of large shareholders. We saw it with the bursting of the financial bubble back in 2007.

The problem is that Mr. Salvador was trained by DPS staff and was supervised by DPS staff while he worked at the crime lab off the Northwest Freeway in Houston. The story that it only happened once and that it was a mistake strains credibility. If we are to believe that the motorist charged with driving while intoxicated has done it some 80 times before getting arrested, the odds of Mr. Salvador getting caught the first time he faked a test result are astronomical (about the same as the Astros winning the World Series this fall).

And what are the odds that this problem exists in only one of the state's multitude of "accredited" crime labs? Let's be honest, these crime labs were created by and operated by state and local law enforcement agencies for the express purpose of aiding in the prosecution of crime. They are not independent bodies. They exist to build cases against folks charged with breaking the law. This mission bias covers every task performed in these labs.

The accreditation program was created in order to make it easier for analysts to testify in court as experts. Telling twelve jurors who have no idea how crime labs operate that the crime lab is accredited is a sure-fire way to get those folks believing that whatever test is being described is the "gold standard" in forensic testing.

We're not living in the world of Quincy, M.E. where Jack Klugman did his best to discover the truth without regard to where that path might take him. We live in a world in which the lab analyst gets his marching orders from a supervisor that is an employee of a law enforcement agency with a mission to support the officers' arrest decisions.

The Texas Forensic Science Committee has shown itself to be little more than a showpiece since Gov. Rick Perry emasculated the panel by placing the now-disgraced John Bradley at its helm. Mr. Bradley's sole duty was to bury the investigation into the wrongful conviction and execution (murder) of Cameron Willingham. The last thing the State of Texas wanted was for the public to find out that most of what passes for science in the criminal courthouse is nothing but junk.

It is ironic that over on the civil side of things the courts take scientific evidence very seriously. For the most mundane of cases there may be a Daubert hearing lasting several days before the judge makes a decision on what's coming in and what's not. Both plaintiffs and defense attorneys who try these cases keep themselves well abreast on the state of the science. After all, we're talking about a lot of money in some of these cases.

Over at the criminal courthouse if the state presents a witness as an expert, so long as he can state at some point in his testimony that he's "certified" by someone the judge will sit back, rub his temples with his fingertips and proclaim (like Solomon) that any question of the validity of the science goes to its weight and not its admissibility.

You don't know how the breath test machine works? No problem. So long as you were trained to turn it on and type in the suspect's name you're qualified to testify at trial as to the fact the machine was working. You don't know how that radar or laser device works? Who cares? So long as you were trained to turn it on and point it at a moving car you're qualified to testify that it was working just fine on the day in question. You never took any college level or graduate courses related to arson investigation? You never attended any seminars about the current science involved in arson investiation? So what. Feel free to get up on that stand and testify that the man sitting next to the defense attorney started the fire that killed his children.

All it takes is for one brick to crumble and the whole wall will cave in on itself. That's what the Texas Forensic Science Commission's job is to prevent.

Thursday, April 4, 2013

Just because you can

In the neverending quest to coerce defendants into bowing to the state's will, judges in Harris County have found a new tool over the last year - the probation department. Defendants charged with drug- or alcohol-related offenses find themselves up before the judge after making bond being assigned to a probation officer for "pre-trial supervision."

This arrangement comes with a monthly probation fee as well as regularly scheduled and random urine tests. The tests being under the auspices of the same agency responsible for fucking up drug tests for probationers. And, just to jab a thumb in the eye, should a defendant plead to probation he gets no credit for the time he was under pre-trial supervision.

The point, of course, is to make it so painful, both from a financial, employment and time situation, that defendants will jump at the first offer that doesn't involve jail or prison time. A defendant shouldn't be punished because he was able to post bond and fight his case from outside the jail - bond conditions are supposed to be set at the minimum level to ensure attendance in court and public safety. This program only serves to drive up the cost of posting bond.

But there is more. With the new administration on the 6th floor at 1201 Franklin, the old stand-by - time served and a fine - has come back to the world of DWI defense. Of course taking the straight conviction will hand you a one-year driver's license suspension; but then there's always the occupational license to get you through.

Let's face it. If your choice were to take the conviction, pay a fine and lose your license for a year versus a year on probation with fees, meetings, drug tests as well as the threat of revocation, which would you choose?

And this is where the judges decided to stick it to the defendants.

Let's say you would be ordered to install an ignition interlock device in your care either as a condition of probation or as a condition of an occupational license. You'd take the latter every day of the week because the worst thing that could happen if the device locked you out because you had alcohol on your breath is that judge could take away the piece of paper that allows you to drive. If you're on probation, on the other hand, in that scenario you are looking a motion to revoke your probation and the possibility of jail time.

Now, however, if you want to get an occupational license in Judge Don Smyth's court, you will be supervised by the probation department - and that supervision will include monthly fees and drug tests. The point is to make the experience every bit as miserable as being on probation in an attempt to persuade more folks to elect probation over time served.

There is no reason to require a defendant who is not on probation to go through the hassle of meeting a probation officer after the case has been disposed. There is no reason to impose an additional tax on those convicted of driving while intoxicated. That is, unless it's just because you can do it.

Wednesday, April 3, 2013

Petty tyranny

I was in municipal court the other day for a client who had a commercial driver's license and had received a speeding ticket. My client was supposed to be in court at 8:00 a.m. I made it about 15 minutes later.

I called my client's name. There was no answer from the audience. Our first sign of trouble.

Then Judge Mihoa Vo took the bench. Ms. Vo had been a defense attorney practicing in the municipal courts when I first started. Then, a couple of years ago, she was hired as a municipal court judge.

Now this is important because as an attorney she would have had to deal with clients who came in late whether that be because of traffic or because they slept in. There are some judges who will hold off on issuing a warrant if the defendant's attorney answers the docket and there are others who will issue a warrant if the defendant walks in right after the call of the docket.

The first call of the docket took place before I arrived. The judge gave her speech about being on time and proceeded to make the late call. Sure enough, when she got to my client's name there was no answer. So I answered that counsel was present.

I immediately sent a test message to my client asking him where he was. He replied that he was downstairs at the metal detectors (and don't get me started on why we need metal detectors in the municipal courthouse) and that he would be right up.

After the late call I approached the bench and informed the judge that my client was on his way upstairs and she told me that we were more than welcome to try to work the case out but that he was still late. In other words our choice was either to plead or post a bond. We were both there. The officer may or may not have been there. There was no reason to force everyone to do it all over again.

Except, of course, the money. Make it difficult. Make it inconvenient. Anything to coerce the defendant to enter a plea of no contest and take his deferred probation to keep the ticket off his record. Collect that money and move on to the next case.

Trials are time consuming and cost money. It's best to head them off at the pass

Downtown at the criminal courthouse things work a bit differently - and, of course, it all depends on who's sitting behind the raised desk in the black robe. Miss the docket call in misdemeanor or felony court and you may be asked to sit in the jury box all morning. You might be asked to sit there until your attorney arrives. The judge may tell you not to be late again or your bond will be forfeited. Hell, I've had clients who just flat out never showed up on their court date and we were able to reinstate their bonds if they appeared before the judge the next morning.

It's just another example of the maxim that the less significant the piece of turf, the more tyrannical the overseer. Judge Vo didn't have to issue the warrant. I was there. My client was on his way up the stairs. But she wanted my client to know that she had the authority to issue a warrant. She had to keep up appearances - after all, it would never do for people to look upon the municipal courts as a cash collection agency for the city, would it?

Tuesday, April 2, 2013

Serving justice?

A prosecutor has an ethical duty to see that justice is done. Justice isn't measured in convictions or death sentences or moving cases off the docket.

Last July James Holmes walked into a movie theater in Aurora, Colorado, tossed a smoke grenade and opened fire on the people gathered to watch the premiere of the new Batman movie. Twelve people lost their lives that night and countless others saw their lives change right before their eyes.

This past week Mr. Holmes' attorneys proposed a plea agreement in which Mr. Holmes would plead guilty and receive a sentence of life in prison without parole (what my fellow blawger Jeff Gamso refers to as "death in prison"). There you have it. Case closed. There was a crime. The defendant accepted responsibility and pled guilty. The state would take away his liberty for life.

There would be no need for a trial. No need for the families of those who were killed to relive the tragic night detail by detail. Justice would have been served. Mr. Holmes would never again be able to harm anyone outside a prison wall.

But that wasn't good enough for Arapahoe County District Attorney George Brauchler. Not by a long shot.

Instead of accepting the deal in which the accused would receive the maximum sentence, short of death, Mr. Brauchler said "No."


For the sake of revenge.
“You know you’re guilty,” said Marcus Weaver, a survivor of the shooting, addressing Mr. Holmes as he spoke before television cameras. “Why not just plead guilty and accept your fate? Man up. Save us all the difficulty and the tax dollars.”
The death penalty serves no other purpose. It provides no deterrent. It doesn't give the accused time to contemplate what he did and why it was wrong. There is no useful social function of capital punishment other than revenge.

I am so mad at you that I want you to die! That's what we're saying when we sentence someone to be murdered in cold blood by the state.

Now the families of the victims will have to relive their worst nightmares. They will have to listen to the cold recitation of facts about the deaths of their loved ones. They will have to endure years of appeals when they will get to relive that night over and over again. The taxpayers of Colorado will foot the bill for the prosecution and the automatic appeal. Someone's going to have to pay for the expert witness who will interview Mr. Holmes to determine if he was insane at the time of the killings. The state will have to expend time and resources to fight back appeals and to ward off writs.

Time and money will be thrown away to feed the ego of a prosecutor who wants to put a notch in his belt and make a name for himself.

Mr. Weaver got it all wrong. Mr. Holmes was more than willing to plead guilty and accept his fate. He was prepared to spend the rest of his life behind bars. It is the state that will be making it both difficult and expensive for everyone involved.

Justice would be served by Mr. Holmes pleading guilty and going off to prison to die of old age. The victims' families would be served better by ending the litigation right now. The taxpayers would be served by accepting the plea agreement and saving the money.

But, then, that wouldn't be nearly as dramatic as a death sentence, would it?

Monday, April 1, 2013

Drawing a line

Adam Poole, a member of what we call the prosecution function, took issue the other day with my post regarding jury selection in my speeding case. Now, before I go any further, I want to say that I appreciate Mr. Poole's give-and-take in the comments section. I respect Mr. Poole for signing his name to his comments instead of doing it under the cloak of anonymity.

However, it doesn't mean that he's not wrong.

As a refresher, one of the questions I asked the panel was whether they would give the testimony of a police officer more credibility, not because of any specialized training or experience, but simply because he pins a badge to his uniform and carries a gun.

My view is that anyone who answers that question in the affirmative has indicated a bias toward the state and should be stricken for cause. Mr. Poole argues that the judge was correct in not striking the panelists.

Now, a juror is certainly permitted to give more weight to the testimony of an individual who has some type of specialized training or experience. It goes without saying that a juror can certainly give more credibility to the testimony of a doctor regarding a plaintiff's injuries than to a lay person with no medical training.

But that's not what we're talking about here.

In a criminal trial the defendant is presumed innocent unless the state is able to prove each and every element of the alleged offense beyond all reasonable doubt. Now let's take our speeding case as an example. We know that the officer who issued the ticket is going to testify. We can also presume that the defendant is going to testify as well. That being the case, if a juror is going to give the officer's testimony more credibility simply because he's a police officer, that presumption of innocence is out the window. And that's because if the juror says that he will give more weight to the officer's testimony before he's heard any evidence, he is not presuming that the defendant is innocent unless proven guilty. And that's the problem.

Now, in Mr. Poole's defense, in a great many cases the police officer didn't observe the actual commission of a criminal offense - the officer is investigating after the fact. If the officer isn't the main witness, then it matters less whether a juror is going to give his testimony more weight than someone else's because that juror will take into account the officer's role in the investigation.

But he's not getting off the hook that easy today. If he sees no problem in a prospective juror stating that he would give an officer's testimony more credibility simply because he wears a badge and carries a gun, where to we draw the line?

Feel free to stop me when I cross the line...

Would you be more inclined to believe a witness is lying because he's a police officer?

Would you give more credibility to the testimony of a man, simply because he's a man?

Would you give more credibility to the testimony of a nun, simply because she's a nun?

Would you give more credibility to the testimony of a left-handed person, simply because she's left-handed?

Would you give more credibility to the testimony of a protestant, simply because he's a protestant?

Would you give more credibility to the testimony of a person from up north, simply because she's from up north?

Would you give more credibility to the testimony of a UT graduate, simply because he graduated from UT?

Would you give more credibility to the testimony of a person over the age of 40, simply because she's over the age of 40?

Would you give more credibility to the testimony of a person with green eyes, simply because they're eyes are green?

Would you give more credibility to the testimony of a person without an Hispanic surname, simply because they don't have an Hispanic surname?

Would you give more credibility to the testimony of a white person, simply because they're white?