Friday, May 31, 2013

Ob-la-di, ob-la-da

The morning began with me getting to the office early so I could move a client's truck from a parking spot in the back to a spot along the street. He had been taken into custody the day before and I offered to get his truck so it didn't end up being towed.

A few minutes after nine o'clock I walked up to the criminal courthouse and was shocked by the long lines snaking around the corners of the building. My first thought was there are going to be an awful lot of bond forfeitures today. Of course I also knew that if the lines outside were bad the lines for the elevators must be terrible. Yep.

Later I was in Judge Harmon's court when a colleague of mine asked the court coordinator where on the trial list his case was. She told him to check with the prosecutors because they had been discussing the trial docket with the judge the day before. No one batted an eye. I could only stop and wonder about what else was brought up during those discussions.

Next it was off to another courtroom to get a new bond set for a client who had been taken into custody the day before. The judge, who had indicated he was leaning toward setting a high bond, told me he was going to reinstate my client's bond with the condition that he be fitted with a SCRAM device within a few days of being released. This was the best news of the day - except that my client somehow never made it from the jail to the courtroom due to a screw-up at the Grey Bar Hilton. Another day in custody awaited.

Then I get a call from my wife who told me she ran a gauntlet of police cars on her way home after lunch. She turned up a side street to avoid a nasty intersection by our house. As she drove up the street she saw a police officer standing in the street holding something. As she got closer she saw that the something was a rifle. She rolled down her window to ask what was going on and the officer told her she just needed to turn and keep going. It turned out that the police were searching for two young men who allegedly shot and killed another young man in what they think was gang activity.

And life just goes on...

Thursday, May 30, 2013

Roger and me

Whenever a jury is picked for a case the judge will admonish the panelists that their decision is to be made based solely on the evidence presented in the courtroom. She will warn them not to conduct any research or investigations on their own.
Do jurors listen and follow the admonishments of the court? Who the hell knows. As one colleague of mine up in the Dallas area would say - most of them probably do because they're a bunch of rule followers. And where does she come up with that notion? Well, let's see, they received a piece of paper asking them to show up and they answer a bunch of personal questions asked by a couple of strangers. Being that, at least in Harris County, only about one in five folks show up for jury duty, it's a pretty good bet that most of the folks that do are obsessed with following rules.

But not everyone heeds the warnings. Let's face it, if they did, there would be no reason to warn them so many times, and in so many ways, to follow the law.

Chris Green of Harris County was one of those folks who didn't do a very good job of following the rules. He was one of 13 jurors (one was an alternate) selected to hear the capital murder case of Jorge Amezquita. Now I'm not going to get into the facts of what Mr. Amezquita is accused of because it isn't germane to this piece.

Even though during the voir dire process, the judge and the attorneys would have talked about what capital murder is and what the possible range of punishment is (dying in prison or being murdered in prison), Mr. Green was still confused when he went home for the day. Instead of asking questions during the selection process, he waited until he got home and typed "capital murder" into his search box. What he found out must have knocked him senseless.

He was so worried that, due to the seriousness of the charge, that someone might be a tad bit upset should Mr. Amezquita be convicted and that that someone might come after members of the jury. He then mailed a letter to district judge Maria Jackson expressing his concerns.

But that wasn't all. Mr. Green then spoke to the other members of the panel, as well as the alternate, and convinced them that their identities should be kept confidential. He then persuaded his fellow jurors to put their signatures on a revised letter that asked the judge to do just that.

Now this might come as a bit of a surprise to Mr. Green and his fellow jurors, but our jury system is one of the most important forms of democracy. Everyone who is charged with a crime, whether they be wealthy or dirt poor, black or white, male or female or any other distinction you wish to make, is entitled to have their case heard by a group of their fellow citizens (forget about that "jury of you peers" nonsense, however). And these folks, with little or no legal training, will make a decision that is binding on everyone in the courtroom.

But a defendant has a right to know who is deciding his case. We can't have secret jury panels making those decisions because then there is no accountability. The system depends upon transparency. Making sausage can be a nasty business, but it's best to do it in the light in front of people so that everyone knows what's going through that grinder.

If Mr. Green didn't feel that he would be a good juror on a murder case, he should have told the judge, the prosecutor or the defense attorneys. He had the perfect opportunity to do so - and no one would have thought any lesser of him had he expressed his concerns at that time.

And I can guarantee y'all that Mr. Green wasn't the only juror that day who wasn't entirely honest during voir dire. I can guarantee he wasn't the only one who didn't express his concerns about his ability to sit in judgment in a particular case. He's just the one who's conduct was outrageous enough to merit attention.

After she received the letter, Judge Jackson ordered a hearing to determine whether Mr. Green could remain on the jury. And that's when things got even weirder. It turns out that Mr. Green wrote the letter after he spoke with a family friend about his concerns about serving on the jury. That family friend was a former state district judge. That family friend lost his bench during the Democratic landslide in 2008. That family friend took a position as the top assistant to then-District Attorney Pat Lykos.

That family friend was Roger Bridgwater.

And now the jury selection process begins anew. Judge Jackson will once again admonish a panel of jurors to base their decision solely on the evidence presented in court and not to conduct any outside investigation of the facts of the case. And someone else will be tempted to type some words into a search box, but this time we won't hear about it.

Wednesday, May 29, 2013

Outside the box and over the line

Chapter 45 of the Texas Code of Criminal Procedure lays out the procedural rules for the handling of Class C misdemeanors in municipal and justice courts. A defendant may appeal an adverse verdict in justice court or in a municipal court that is not a court of record simply by filing an appeal bond with the trial court.

Provided the appeal bond is posted no more than ten days after the judgment is entered, the appeal is perfected and the case goes up to the county court for a trial de novo. In other words, the appeal is treated as a brand new case.

In Texas the holder of a commercial driver's license isn't eligible for dismissal at the municipal or justice court level through the completion of a driver safety course or through a successful deferred probation - even if he was driving his private car at the time he was stopped and cited. However, there is no apparent prohibition on the county courts when handling an appeal. Now, federal regulations seems to prohibit the so-called "masking" of citations issued to CDL holders and the County Court judge up there refuses to allow a CDL holder to have his citation dismissed through deferred probation.

As an aside, I would argue that the rules only prevent the masking of a conviction by deferring imposition of sentence or allowing the driver to enter into a diversion program. If there is no conviction, however, there is nothing to mask.

Now why, might you ask, am I writing about appeals from traffic tickets? And, if you are asking that - it's a good question.

This morning when I left the courthouse I ran into a colleague of mine who is a municipal court judge in a couple of towns on the outskirts of Houston. He's also a defense attorney with whom I worked on a theft case before. I asked him how life on the bench was treating him and we got to talking about the world of Class C misdemeanors.

We both agreed that if you have a case with a CDL holder in justice or municipal court that there is no reason not to try it. The worst possible outcome is you lose and appeal it up and see it magically disappear at the county court level. He said got so tired of people pleading no contest at the municipal court level and immediately filing an appeal bond that he changed the plea papers in his courtroom.

Now in at least one of the courts in which he sits whenever someone not eligible for dismissal through a driver safety class or deferred probation pleads no contest, the paperwork he signs includes a waiver of his right to appeal.

Hmmm. I don't think we get to go there, my friend. Article 45.042 states that an appeal from a municipal court (that's not a court of record) or a justice court are to be heard de novo by the county court. Article 45.0425 states that to appeal an adverse verdict out of a municipal court (that's not a court of record) or justice court, the defendant must post an appeal bond in an amount not less than twice the fine. Finally, article 42.0426 states that the appeal bond must be filed not less than ten days after the date the judgment was entered and that if it is, and the bond meets the requirements of the code, the appeal is perfected and the case is sent up to the county court.

There is nothing in the code that says you can't appeal an adverse judgment after pleading no contest. There is nothing in the code that says you have to get the judge's permission in order to file an appeal bond. There is nothing, in fact, that gives a judge any discretion in the matter. If the bond is filed and is proper - the case goes up. Otherwise, the judgment stands.

The judge has overstepped his bounds and imposed a restriction on those appearing in his court that is not allowed under Chapter 45 of the Code of Criminal Procedure. His new policy deprives folks of their statutory right to appeal an adverse judgment. His pronouncement violates the separation of powers in that he is usurping the role of the legislature.

I'm not going to go into my rant about petty tyrants run amok because he is one of the few municipal court judges who doesn't act like a cash register clerk for the city. He tries to do the right thing when he's sitting on the bench. But this time, he got it wrong.

Tuesday, May 28, 2013

Conflicting interests

So here I am, after a long weekend, wondering what I'm going to write about on Tuesday morning when a very interesting story drops into my lap. Courtesy of a bondsman in Harris County, who shall remain anonymous, we have the curious tale of two brothers - one a bondsman and one a traffic ticket attorney and the grey area where their worlds meet.

Last month Michael Youngblood filed suit in Jefferson County, Texas (about 90 miles east of Houston) alleging that Houston-area bondsman Michael Kubosh and his brother, ticket attorney Paul Kubosh, teamed up to steer Michael's bonding clients to Paul's law firm. According to Mr. Youngblood, he called up Michael Kubosh's bonding company to post bonds on some overdue traffic tickets. He claims he was placed on hold and charged a fee that included representation by Paul Kubosh's law firm (which is next door to the bonding company).

Mr. Youngblood also accused Michael Kubosh of holding himself out to be a licensed attorney - which, according to the State Bar's website, he is not.

Mr. Youngblood claims he never asked anyone to help him find an attorney to handle his traffic tickets.

If the name Michael Kubosh sounds familiar it may be because back in February he announced his candidacy for an at-large seat on the Houston City Council.

Now I must say that over the years I've dealt with both of the Kubosh brothers and I have never found them to be anything other than helpful (in the interest of full disclosure, I once represented a woman who was being sued for a bonding fee by the Kubosh bonding company, but my dealings were with a third Kubosh brother).

The other day I had a conversation with the newest member of the Harris County Bail Bond board who told me he was shocked when he found out how some of the traffic ticket law firms operated. I've written before about one such firm who placed a sign in front of their office offering free representation for anyone who posted a bond with them and the inherent conflicts that type of business arrangement harbors.

The board member told me he couldn't believe that some ticket firms (who also posted bonds) had language in their contracts that stated the law firm could enter a plea on behalf of the client if he or she failed to appear in court - presumably if they were a bonding client (though, since I haven't seen the contract in question, I cannot state for certain).

Just think of the conflicts involved in that transaction. The client's goal is to keep the traffic ticket off their record, whether that be by dismissal, deferred probation or by taking a defensive driving class. For an ordinary motorist that ticket could result in two points being assessed against their driver license (six points over a three-year period results in a $100 surcharge for renewal and too many tickets in a given period can result in a suspension). For a commercial truck driver a conviction on a traffic ticket could result in the loss of a job.

The ticket attorney may or may not care how the case is resolved since he or she can only deal with the facts in front of them - and they've already been paid. The bonding company, however, wants that case resolved so they can write additional bonds. The more bonds, the more fees, the more profit.

And when the same person owns the law firm and the bonding company, it doesn't take a genius to figure out what's going to happen. Now the Houston Municipal Court has taken steps to alleviate the conflict by requiring attorneys entering pleas on their clients' behalf to present a waiver of appearance signed by the client. Of course there is no way to know whether that form is filled out at the initial consultation or at the time the plea is entered.

If you spend any amount of time in the shadowy world of criminal defense, it isn't surprising that these situations arise. People who have warrants out there or the family of someone who's been arrested are desperate. They are willing to do almost anything either to stay out of jail or get someone else out of jail. They are easy prey for those willing to take advantage of them.

But that certainly doesn't mean we should tolerate it.

Monday, May 27, 2013

Corrupting the memory of lost lives

Memorial Day is the day we remember those who died in uniform. I'm not going the "died serving our country" route because I can't think of any of our wars of aggression and/or occupation after World War II that were for the benefit of the American people. My dad's uncle died a needless death in a war halfway around the world that had no purpose. Thousands of young men have been sent to their deaths over the years because of politicians sitting in Washington.

Memorial Day isn't about glorifying the death and destruction machine. It isn't about waving flags and thanking soldiers for occupying other countries.

Yesterday in Charlotte, North Carolina, the NASCAR boys raced in a circle for 600 miles late into the night while organizers drew up a huge pro-war party. What can you say when their idea of remembering the dead is to cart out Oliver North?

Baseball is getting in on the pro-war propaganda, too. Teams today will be wearing uniforms with digital camouflage as a way of honoring the troops. First, Memorial Day isn't about "honoring the troops." Second, did anyone bother to ask the foreign players what they thought of dressing up to celebrate the American warmaking machine? The players from Central America are all from countries where untold thousands of people were murdered by repressive right-wing dictatorships funded and trained by the United States.

And then there are the churches, one of which (in my neighborhood) decided to honor the military during a service yesterday. I'm just guessing that no one cared about that little commandment that says it's a sin to kill another person. Considering the way in which religion is used to brainwash the masses and to dissuade folks from challenging the ruling classes, I can't say that I'm surprised.

As for me? I'll have my American flag flying outside in remembrance of those young lives snuffed out by an older generation that couldn't find a better way to work out their differences with one another.

Sunday, May 26, 2013

I wonder if he washed his hands

Thanks to KRPC-TV in Houston, we know that the Astros' play on the field isn't the only thing that stinks at Minute Maid Park.

video platformvideo managementvideo solutionsvideo player

Yellow sno-cones, anyone?

Saturday, May 25, 2013

Instant replay and the death of the spitball

Replay? Are y'all really certain y'all want instant replay in baseball?

At its core, baseball is entertainment. Yes, it's a sport and who wins matters -- but we go to the ballpark and flip on the television set to be entertained. The Astros are putrid. My girls still enjoy going to the games. Hell, I still enjoy going out to the ballpark to watch a game.

Unlike any other sport in this country, baseball has a past that matters. Sure, there have been changes to the game - longer seasons, different mound heights, smaller strike zones and ballparks with cheap porches - but the numbers still matter.

Everyone knows what 714 means. We know the importance of 715 and 755. The Ryan Express fired off seven no-hitters over his career. Gaylord Perry, the greatest spitballer of all time, is in Cooperstown. Ty Cobb was one of the dirtiest players ever - he's also in the Hall of Fame.

Over the years the adage has been that if you ain't cheating, you ain't playing to win. Baserunners steal signs. Catchers cheat the corners with their gloves. The runner is out at second if the fielder is "in the neighborhood" of the bag. Bats are corked. Goop is slathered under the bill of a ball cap. Metal grommets on gloves are filed to a point. Sunscreen and rosin are mixed on the pitcher's non-throwing arm. Foul lines are sloped. Grass is cut at different lengths.

It's all part of the game. It's part of the show. The idea has always been to try to find that one little edge that can help you hit the ball or get it past the batter.Cheating has always been a part of the game. It's an unwritten rule that provided you don't step over that imaginary line, everyone will look the other way.

I can never forget the look on George Brett's face when the Yankees skipper asked the umpire to measure how far up the bat Brett had smeared pine tar. The rule was you can slather that puppy up so long as it wasn't up the bat more than the distance across home plate. Of course batters pushed the envelope. And no one said a thing because the pitchers were doctoring the baseballs.

But after Brett hit his shot over the outfield fence, someone decided to enforce the rule and Brett was called out after the umpire put the bat down across home plate. Brett was livid.

He wasn't pissed because he was innocent. He was pissed because someone from the other team crossed an imaginary line and ratted him out.

And now someone wants instant replay? Don't they realize if we start using the eye in the sky to check on balls and strikes, bang-bang plays and whether a ball is fair or foul that someone's going to want to take a look at what the pitcher's doing in his glove or behind his back. Someone might see something funny with that bat and want to take a closer look.

Are you sure you want to go there?

Friday, May 24, 2013

More platitudes and empty promises

Yesterday President Obama gave a speech at the National Defense University in which he laid out his policy objectives in the War Against Everything Terrorism. He told us how much he really, really wanted to close down the prison in Guantanamo but that those meanies in Congress prevented him from doing so. He assured us his administration requires a very high level of proof before acting as prosecutor, judge, jury and executioner of American citizens abroad. He also said that our own policies weren't responsible for the virulent anti-Americanism we see throughout the world.

He portrayed himself as the good guy - the guy defending the Constitution. He made promise after promise without explaining or laying out a plan on how to get there.

On the targeting of US citizens by drones, the president said:

This week, I authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue, and to dismiss some of the more outlandish claims. For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process. Nor should any President deploy armed drones over U.S. soil. 
But when a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot – his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team 
That's who Anwar Awlaki was – he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S. bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab – the Christmas Day bomber – went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, and helped him tape a martyrdom video to be shown after the attack. His last instructions were to blow up the airplane when it was over American soil.I would have detained and prosecuted Awlaki if we captured him before he carried out a plot. But we couldn't. And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki. 
Of course, the targeting of any Americans raises constitutional issues that are not present in other strikes – which is why my Administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well. But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life. Alongside the decision to put our men and women in uniform in harm's way, the decision to use force against individuals or groups – even against a sworn enemy of the United States – is the hardest thing I do as President. But these decisions must be made, given my responsibility to protect the American people.

See, we set a high threshold to meet before we decide who lives and who dies. You just need to trust us. We've seen the evidence but we don't think it's a good idea for y'all to see it. There's just so much there, you might not understand what you're looking at.

To date there has never been any evidence released to prove that Anwar al-Awlaki was in a leadership position in al Qaeda. While Mr. Awlaki expressed his support for the actions of the men involved in the attacks - he never planned them. He gave speeches in which he said that the US government was on a mission to kill Muslims. He called for his followers to resist the United States. He was murdered by our government because he dared to exercise his First Amendment rights as a US citizen.

If the evidence existed, the government should have charged Mr. Awlaki with criminal offenses and tried him before a jury of his peers. He was not given the right to cross-examine the witnesses against him. He was not given the right to put on evidence in his behalf. He was not given the right to a jury trial. In short, President Obama's actions deprived a US citizen of his due process rights.

And, lest we forget, Mr. President, Mr. Awlaki, and his son, were  part of "the American people."

The president then singled out Muslims when he spoke about extremism and home-grown terror.
As I said earlier, this threat is not new. But technology and the Internet increase its frequency and lethality. Today, a person can consume hateful propaganda, commit themselves to a violent agenda, and learn how to kill without leaving their home. To address this threat, two years ago my Administration did a comprehensive review, and engaged with law enforcement. The best way to prevent violent extremism is to work with the Muslim American community – which has consistently rejected terrorism – to identify signs of radicalization, and partner with law enforcement when an individual is drifting towards violence. And these partnerships can only work when we recognize that Muslims are a fundamental part of the American family. Indeed, the success of American Muslims, and our determination to guard against any encroachments on their civil liberties, is the ultimate rebuke to those who say we are at war with Islam.
Let's see, Timothy McVeigh wasn't a Muslim. Neither were the member of the KKK and local citizens' councils in the south who tortured and murdered blacks for trying to exercise their rights as citizens of this country. There aren't too many Muslims in the right wing militia groups in the Pacific Northwest or in the skinhead movement. As far as I can tell, not one of the folks involved in any of the school shootings or the shooting at the movie theater in Aurora, Colorado were Muslim. A lot of those folks were Bible-thumping Christians.

Now, according to our president, we have no reason to fear an attack on our privacy rights or the rights of the press.

Indeed, thwarting homegrown plots presents particular challenges in part because of our proud commitment to civil liberties for all who call America home. That's why, in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communication, and build in privacy protections to prevent abuse. That means that – even after Boston – we do not deport someone or throw someone in prison in the absence of evidence. That means putting careful constraints on the tools the government uses to protect sensitive information, such as the State Secrets doctrine. And that means finally having a strong Privacy and Civil Liberties Board to review those issues where our counter-terrorism efforts and our values may come into tension. 
The Justice Department's investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.

How President Obama was able to make it through this part of his speech with a straight face, I'll never know. Under his administration, the government has stepped up its surveillance of Americans to a degree that the Bush administration only dreamed about. Don't think for a moment that your phone calls, e-mails or internet searches are subject to the collection efforts of the government. Under the rhetoric of protecting our safety, the government has hacked away at our right to privacy.

And as for those leaks, where is the hue and cry when sensitive information favorable to the White House is leaked by members of the administration to friendly reporters? How come it's only when the information is embarrassing to the government or shows how the administration has manipulated the populace that the Justice Department seeks out the source of the leak?

And, finally, we come to Guantanamo. Once again Mr. Obama has promised to shut down the detention center in which over 160 men have been held without charge - some for over a decade. Quite frankly, his comments were laughable.

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee. 
Even after we take these steps, one issue will remain: how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted – for example because the evidence against them has been compromised or is inadmissible in a court of law. But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.

Okay, okay. You want to release the detainees. Yea! But, if it's so easy to lift the moratorium on transferring detainees to Yemen, then why the hell has it taken you over four years to do it?

As to that legacy problem, the solution is really quite simple. If the evidence would be inadmissible in a court of law because it was obtained by torture - you let them go. It happens in courtrooms across this country every day. I find it hard to conceive of President Obama being a constitutional law professor due to the ways in which he has made a mockery of that document and the Bill of Rights during the course of his administration.

You have fought every habeas petition brought by a detainee tooth and nail. You have violated the human rights of every man in that prison. You have violated the due process rights of every detainee by holding them without charge. It is time that justice is done. Every detainee should be released. Without condition.

Update: Pinch hitting in County Court 3...

Damn, that fall from grace can be awfully fast sometimes. Two days after being indicted on two felony charges and six misdemeanor charges and one day after being arrested, disgraced Galveston County Court at Law Judge Christopher Dupuy was suspended from the bench without pay by the State Commission on Judicial Conduct late Thursday afternoon.

Mr. Dupuy will remain off the bench pending the resolution of the criminal charges against him and the civil suit filed to remove him. Whatever the outcome, however, his short-lived career as a judge, and possibly as an attorney, is over.

For anyone who has had the misfortune of practicing in his court, the latest developments can't be much of a surprise (only that it took this long). He rode into office on the tails of straight-ticket voting by suburban Republican voters in Galveston County. His behavior on the bench has been erratic from the start. His lack of knowledge of the law was apparent from his first days on the bench.

For now, however, the stain on the second floor of the courthouse has been removed.

Here is a copy of the order suspending Mr. Dupuy:

Murder, terrorism and hypocrisy

Britain is all atwitter over a supposed terrorist attack in London in which a British soldier was hacked to death by two men - one of whom was a Muslim convert. One of the men allegedly told onlookers that the attack was in retaliation for British soldiers killing Muslims in the Middle East.

Now my understanding of terrorism is that it is an act of violence committed against civilians in furtherance of a political goal. While the death of the soldier is certainly tragic for his family and friends - he is far from an unarmed civilian. He was part of a killing machine that took its marching orders from the British prime minister (and, ultimately, President Obama). The dead man was part of an organization that killed unarmed men, women and children in pursuit of political goals.

Where was the outrage about the thousands of Afghans and Iraqis who died at the hands of soldiers from the United States, Britain and the rest of the allied forces in the Middle East?

In related news, the United States has finally acknowledged it murdered four of its own citizens in drone attacks in the War on Everything Terror. According to a letter from Attorney General (and all-around Obama lackey) Eric Holder, US drones killed Anwar al-Awlaki in a targeted strike. He also admitted that Awlaki's 16-year-old son, Abdul Rahman al Awlaki, and two other Americans, Samir Kahn and Jude Mohammed were killed by drone attacks. Though he said those deaths were unintentional because the individuals were not "targeted."

These four men were murdered by their government without the benefit of due process. They were denied the right to a trial by jury. They were denied the right to confront the witnesses against them. They were denied the right to put on evidence in their behalf.

They are dead because the Obama administration created its own star chamber that acted as judge, jury and executioner.

The government has never presented any evidence to the American people that the allegations that Mr. Awlaki was in a leadership position in al Qaeda. We are being asked to simply accept the word of our government when it comes to the murder of our fellow citizens.

Anwar al-Awlaki was murdered by his government because he exercised his First Amendment right to speak freely. Our government may not have liked what he was saying, but that's far from justification for murdering him. And the order to kill came from a fraudulent winner of the Nobel Peace Prize who has escalated the Bush doctrine that the world is a battlefield.

So, who are the terrorists now?

Thursday, May 23, 2013

More problems with breath tests up in Conroe

Earlier this month I posted an article about how the Montgomery County DA's Office and the Texas DPS were trying to paper over a colossal screw up in the maintenance of their breath test machines.

While the technical supervisor in charge of the machines failed to perform acetone tests on machines taken out of service in one location and placed into service in another location in violation of the DPS regulations regarding the moving of machines, the DPS contends that it was no big deal because the tests were performed as part of the monthly maintenance routine after the machines were placed back into service.

The problem with that analysis is we're talking about so-called scientific evidence and if breath test evidence is to be admitted at trial, any tests must be performed in accordance with the DPS regulations. As the machines were not properly tested before being placed back into service, according to the DPS regulations, the machines were never placed back into service. Therefore any breath test result from any one of those machines should be inadmissible since the machine wasn't in service at the time of the test.

Prosecutors just love scientific evidence because it gives them a short cut to obtaining convictions. Once a jury buys that the evidence is "scientific," they can choose to hang their hats on it and call it a day early. But, if you want to play with that sword, it's two-edged and that second edge is that the evidence is inadmissible if the tests weren't done right.

Of course that still relies on a judge to make the proper ruling when he knows the test result is over the per se limit of .08.  That's when you find out whether that judge is more interested in results or process.

But that's not all as the DPS has suspended Technical Supervisor Glenn Merkord for 30 days for improperly renewing the certification of breath test operators who failed to meet the qualifications for recertification. This now raises the question of who those breath test operators were and whether they administered breath tests during the time they were wrongfully certified.

According to Warren Diepraam of the Montgomery County District Attorney's Office, the officers in question are a sheriff's deputy named Buckner and a Magnolia police officer named Salmassi. 

If a test was administered by someone other than a certified breath test operator, then the results of that test are inadmissible. Now we need to know when the DPS learned of Mr. Merkord's actions and what, if anything, has been done to correct the problem.

Wednesday, May 22, 2013

Judge on a hot tin roof

Word from courthouse wags down on the Island indicate that embattled Galveston County Court at Law Judge Christopher Dupuy's days behind the bench may be coming to an end. According to sources at the courthouse, Mr. Dupuy was indicted this morning on two felony counts of retaliation, four misdemeanor counts of abuse of official office and two misdemeanor counts of official oppression .

Also on Wednesday a petition seeking the removal of Mr. Dupuy as the presiding judge of County Court at Law No. 3 was filed on behalf of the State of Texas by Galveston County attorney Greg Hughes (Click here for the petition and attached exhibits). A hearing for Mr. Dupuy to show cause why he shouldn't be removed from office will be held on June 7, 2013 in the 10th District Court at 10:30 a.m.

According to the Houston Chronicle:
The petition for removal accuses County Court-at-Law Judge Christopher Dupuy of failing to obey an order from a state appeals court, abusing his authority by retaliating against attorneys and threatening the district clerk while attempting to interfere in Dupuy's own divorce case. 
The lawsuit accuses Dupuy of incompetence and official oppression and asks that he be removed from office while the case is pending. 
"He has ruined dozens of lives over the last two years with ridicules, horrible rulings he has made," said Galveston County attorney Greg Hughes, who filed the petition for removal at 10 a.m. with state District Judge Kerry Neves.
In response to Mr. Hughes' petition, Galveston County District Attorney Jack Roady has filed a motion to recuse his office from prosecuting the removal on behalf of the State of Texas due to a conflict of interest. The Texas Attorney General's Office has been appointed to represent the state in the removal action.

The noose around Mr. Dupuy's neck has tightened and I do believe that it's just a matter of time until his days on the bench are over. The voters in Galveston County who pulled the straight ticket lever for the Republicans back in 2010 should be ashamed of themselves for putting this man on the bench.

You can't make a Mentos geyser without the Mentos

It was Book Fair night at my daughters' school last night and the guest of honor was a scientist at a local science attraction for kids. The girls wanted me to go so I dashed home early to do the final prep work on supper (steak and beef enchiladas with beans and rice) so I could meet them at the school in time for the show.

I got there and my girls led me out to the courtyard where the scientist and her husband were getting set up. Of course, having just gotten there without having tried to set up earlier in the day they couldn't get their projector to work - whether is was because the outlets were turned off, the extension cord was bad or the projector just didn't work, we don't know. It was a sign of thing to come.

Once the search for a working outlet ended (unsuccessfully), the parents and kids gathered in the little amphitheater as the scientist began her spiel. Behind her on a table were five soda bottles. There was but one thing this could mean -- the Mentos explosion!

First she told us about polymers because that's apparently what she worked on in a previous life. Then we talked about all the horrific ingredients in soda. As much as I like Dr Pepper, I'm not so certain I can ever drink another one again. At least I know what's in my homemade beer and there aren't any chemicals that can eat right through a metal can.

Next she talked briefly about the Mentos. She told us that there's a conference every year in which scientists gather together to discuss just why in the hell Mentos and Diet Coke create the crazy cascades of bubbles they do. The conclusion is that nobody has the slightest idea why.

Now it was time for the main event. My oldest daughter manned the Diet Coke bottle with her best friend (at least for this week) next to her at the Diet Pepsi bottle. The anticipation was building. The tension was so thick you could cut it with a knife.

"Um, does anyone have any Mentos? We forgot to bring them," the scientist said.

Excuse me? You're coming to the school to do one freaking experiment and you forgot the main ingredient? Is there not a checklist at the science place that lists Mentos as one of the things you need to pack in your bag? My wife eventually found some Mentos in the teachers' lounge - but I missed the explosion because I had to get back home to put everything in the oven so that dinner would be ready by the time everyone got home.

Please take this as a cautionary tale not to take for granted your shiny gadgets are going to work properly at trial or that the equipment in the courtroom is going to cooperate. If you can make the trip ahead of time, check out the courtroom before you have to show up for trial. And always, always, always bring along a backup just in case the electronic gremlins decide to take the courtroom hostage on trial day.

Oh, and here's a Mentos meltdown for your enjoyment...

Tuesday, May 21, 2013

Plugging leaks

The Obama administration has gone after more whistleblowers and journalists for leaking classified information that all other administrations combined. Quite ironic considering Barack Obama ran as a candidate who would bring more transparency to governance.

Of course the problem isn't that a government employee was leaking information to a journalist or that the journalist wrote a story about it - because the Obama administration leaks classified information to the press all the time.

The distinction is, as usual, whose ox is getting gored.

In the latest fiasco, the FBI subpoenaed home, business and cell phone records from dozens of AP employees in an attempt to find out who the source for an article about how the government thwarted a terrorist attack was. According to the government, the records were subpoenaed so that investigators could map out telephone calls and somehow "triangulate" who was making them.

Maybe. Maybe not.

I suspect the real reason the government issued overly broad subpoenas and did it without consulting with the AP beforehand wasn't so much to find the leaker, but more to create a chilling effect for the next reporter who came across sensitive information. Being subjected to having los federales dig around in your private affairs might just be enough to make some reporters think twice before pushing the send button.

Strangely enough, I don't remember anyone in the White House throwing a fit when the news came out that Anwar al-Awlaki had been added to the President's (illegal and unconstitutional) hit list. I don't recall any heads being made to roll when details of the Osama bin Laden murder became known. The Obama administration made quite liberal use of the government sieve when it served their purpose during the fall.

It's only when neither the president, nor his cronies, are in control of the leaks that problems occur. Bradley Manning leaked materials that proved our government violated international law and conventions regarding torture. He exposed the hypocrisy in Washington and caused much consternation when foreign leaders found out how they'd been played off one another.

In order to show Private Manning who was in charge, the government instituted a smear campaign against him and subjected him to torture. The cables were published on the Wikileaks website so our government turned its focus to Julian Assange who served the role of journalist. But, just as the government tried to silence Daniel Ellsburg when he provided the New York Times with a copy of The Pentagon Papers, the Obama administration went after Mr. Assange and Wilkileaks in any manner they could.

It'a all about control. It's all about the spin. Somewhere George W. Bush is sitting and smiling as he watches President Obama take his ideas for the War Against the Constitution and transform it into something that even W's supporters didn't think possible.

Monday, May 20, 2013

Tased and confused

Oh, the ubiquitous taser. A nonlethal alternative to the trusty sidearm.

Except that isn't the way it turned out. As Scott Greenfield reminds us, the first rule of policing is to make it home for dinner alive. That rule trumps all others for those who wear a badge.

The vast majority of officers never fire their weapons except at the gun range. And that's the way it should be. Deadly force should be the ultimate last resort - because if you're wrong, there's no going back.

And what that means is instead of slowly escalating the use of force, in order to make sure they make it home for dinner, officers start with the taser instead of using it as the last best alternative to deadly force.

Up in Fort Worth, Texas, police executed a "no-knock" warrant on a house suspected to contain the bones of a cocaine distribution operation. The warrant was signed at 3:35 pm on Thursday. When they arrived, the police kicked in the unlocked front door and shortly thereafter had Jermaine Darden face-down on the floor.

Mr. Darden weighed over 300 pounds and was asthmatic. While laying on his stomach, Mr. Darden began to have a hard time breathing. He tried to roll over to his side to make it easier to breathe.

The police, accustomed to folks asking how high when commanded to jump, never thought that a heavy man with a breathing problem might be in a dangerous position on his stomach. Instead of viewing Mr. Darden's actions as an attempt to breathe, they determined he was resisting arrest. Instead of listening to the other people in the house who knew Mr. Darden's problems, they made the decision to show Mr. Darden that he wasn't to do anything without their permission.

So, despite the fact that the officers outnumbered the people in the house, and despite the fact that the officers had the ability to use deadly force, they tased Mr. Darden.

And, at 5:06 pm that afternoon, Mr. Darden was prounouced dead in the emergency room at John Peter Smith Hospital.

Now it was time to concoct a story to explain how something could go so wrong. Mr. Darden had to be tased. He was resisting arrest. The officers' safety was endangered. They only had one choice - either they could tase Mr. Darden or they could shoot him at point blank range. Knowing that not even the most naive person would believe that was warranted, they pulled out the taser.

Let's face it. Mr. Darden was a bad guy. He was in a house that served as the distribution center for a coke operation. Who you gonna believe in that scenario? The police who were shutting down a drug operation or a dope dealer?

And that's exactly what they expect you to do.

Saturday, May 18, 2013

Astros at the quarter-pole

We are now a quarter of the way through the 2013 major league baseball season and the Houston Astros are stinking up the joint even worse than expected. Somewhat unexpected is the number of times that new owner Jim Crane has stepped in it.

First it was his dynamic pricing model. Then he jumped on the fans because they wanted to spend his money on better players. And then, just this past week, he axed the Astros Wives' charity gala.

As an aside, after seeing the Astros blow a 4-2 eighth inning lead in Bad News Bears's style last night, I was struck by manager Bo Porter's decision to put Hector Ambriz on the mound in relief. I mean, what could possibly go wrong when you trot out a relief pitcher who puts on an average of almost two runners an inning?

Through 22 homes dates thus far, the Astros rank 26th in attendance. Minute Maid Park holds around 43,000 people - to date the Astros are averaging 19,445 per game. And that's tickets sold, not fannies in the seats.

That tells me that Crane's dynamic pricing scheme isn't working. The idea (at one point) was that ticket prices in certain sections of the stadium would fluctuate according to demand. Theoretically, when overall attendance is down ticket prices would go down and vice versa.

Under the Crane model prices never go down. As I've written before, the Crane model charges fans based on who the Astros are playing. When the Yankees and Red Sox come to town ticket prices go way up. They go up a little bit when the Rangers come to Houston. But prices never fall below the face value for anybody else. Take a look at those attendance numbers and you can figure out what's wrong with the Crane plan.

Going forward the national television deals will net each club over $40 million. That figure doesn't include local television and radio rights. It also doesn't include stadium revenue. Crane can make a fortune if he can trot out a team with a payroll under $30 million. And I wager that's what he intends to do.

So, my advice to everyone who likes baseball is to come out to see Bud Norris and Jose Altuve play because chances are neither will be with the team by the end of the season. Don't say you haven't been warned.

Friday, May 17, 2013

Shutting down dissent anyway possible

By now it is quite obvious to the most oblivious observer that President Obama has failed miserably in his attempt to close down the prison at Guantanamo Bay. You'll remember that he told everyone who would listen back in 2008 that one of the first things he would do as president was close it down.

Like many of his other promises for progressive reform, his promise to close down GITMO has fallen to the wayside. He has been far too interested in killing innocent men, women and children with remote controlled drones to put any effort into closing Guantanamo. He was more concerned about smoothing over the summary execution of three US citizens than in ending the program of torture on Cuba.

If you follow the mainstream media you probably aren't aware that more than 100 of the detainees at Guantanamo are on hunger strike to protest the conditions in the prison. These are men who have been held without charge for, in some cases, over a decade. History will not judge the US kindly over its treatment of the detainees - the constant hysteria for the war on terror has been used to dull the American people's senses when it comes to concepts such as due process and rule of law.

Now the government is fearful that its power to compel the detainees to do what it wants them to is waning. In order to show the detainees who's boss, prison officials have begun force-feeding 30 of the hunger strikers.

This memo obtained by Al-Jazeera spells out the program of forced compliance. You see, it just wouldn't do for a detainee to drop dead from starvation at GITMO. That might just garner a bit of press attention (though just a bit). That might just pique the American public's interest in what is being done in our name. It might re-ignite a debate on the regime of torture started under Bush and accelerated under Obama.

For those detainees who are subject to being force-fed a liquid diet, they are strapped to a chair while a feeding tube is fed through their nose down to their stomach. A mask is placed over the detainee's face and liquid is fed through the tube for up to two hours. Afterward the detainee is placed in a so-called "dry cell" and observed for 45-60 minutes for any signs of induced vomiting. If the detainee vomits he is placed back in the chair and the process is begun anew.

These forced feedings are nothing more than an extension of the torture regime that detainees around the world have been subject to - ever since the Bush administration decided that torture wasn't torture if you called it something else. If there were justice in this world, George W. Bush would sit in a courtroom in The Hague facing charges of human rights violations at the International Criminal Court. Maybe one day Barack Obama could be his cellmate.

The men who are being held illegally at GITMO are adults who are more than capable of making medical decisions for themselves. They have the right to withhold their consent from being force-fed. They have the right to refuse to eat. They have the right to die with dignity, if they so choose. Sadly it is the only form of protest that is garnering any attention to the ways in which the United States is imposing the law of rule.

The Obama administration and other apologists for GITMO claim that the remaining detainees can't be released because there are no assurances they won't immediately take up arms against the United States. Well, to be quite honest, who the fuck could blame them? If they weren't already inclined to take up arms you can bet they sure as hell are now after the way they have been treated and the myriad ways in which the US government has violated their human rights.

It's time to man up, President. Either the men in Guantanamo have committed crimes against the United States or they haven't. If they haven't, it's time to set them free. If they have committed crimes, set their cases for trial.

If President Obama had any humanity he would put an end to the forced feeding of hunger strikers and he would address the problems at Guantanamo. Unfortunately for the detainees, they don't have an effective lobby and they don't have millions of dollars to funnel to Super PACS. All they have are their lives to give in their cause.

Thursday, May 16, 2013

Update: Making progress

While the State of Texas continued its barbaric ways of strapping down inmates and killing them, there are developments outside the Lone Star State that should give us hope that one day this practice will end.

Jeffrey Williams was murdered at the hands of the state last night. He had been sentenced to die for the murder of Troy Blando, a Houston police officer. Mr. Williams never denied shooting Mr. Blando, but he claimed he thought Mr. Blando (who was in plain clothes the night of his death) was trying to rob him so he shot him in self defense.

Once again, the killing of an inmate did not lead to the resurrection of his victim and did not do anything to erase the loss of a family member or loved one. It only served to demonstrate the the state has the power to take a life.

Earlier this month the governor of Maryland signed a bill repealing the state's death penalty. Maryland is the first state south of the Mason-Dixon line to repeal the death penalty in nearly 50 years and joins its neighbor, West Virginia, in putting a halt to capital punishment.

Maryland is also the sixth state in the last six years to repeal capital punishment. State by state we are reaching a point at which the death penalty will one day be recognized as "unusual." Thus far 18 states have abolished capital punishment and a bill repealing Delaware's death penalty has passed the state senate.

A similar bill, HB 1703, was introduced in Texas by State Rep. Jessica Farrar (D-Houston) and co-authored by Rep. Alma Allen (D-Houston) and Rep. Lon Burnam (D-Fort Worth). The bill would repeal the death penalty in Texas and make life in prison without the possibility of parole (what Jeff Gamso calls "death in prison") the maximum punishment one could receive. The one problem with the bill is it would only repeal the death penalty going forward and would do nothing to stop the murder of those currently on death row in Texas.

In a fiscal analysis of the bill, the Office of Court Administration stated that repealing the death penalty would save money because non-death penalty capital felonies cost far less to prosecute (including fees for appointed counsel, investigators and experts since defendants facing the death penalty are disproportionately poor) than death penalty cases. However, the OCA couldn't state how much would be saved since no one keeps tabs on the money we spend to kill inmates.

Unfortunately, the bill died in committee.

In other news, London-based Hikma, a drug company, has halted sales of phenobarbital to Arkansas. The drug, used to prevent convulsions and epileptic seizures, was being used by Arkansas as part of its lethal cocktail.

The drug has never been tested for its efficacy in killing inmates and could cause permanent damage as well as lead to inhumane executions according to death penalty lawyers in Arkansas.

Between states repealing the death penalty and foreign drug companies refusing to sell drugs used for lethal injections in the United States, the death penalty is slowing being squeezed from both sides. Add the extraordinary numbers of exonerations that have taken place over the last ten years and you have a mix that could spell the end of legalized murder in the United States.

Wednesday, May 15, 2013

Upon further review...

Jeff Passan over at Yahoo! Sports is beating the drum for expanded instant replay in baseball. And, for the sake of the game, I hope he doesn't get it.

No one likes bad calls, Jeff, but they are a part of the game. But, the very structure of baseball makes it a very poor candidate for instant replay. There are few natural breaks in a baseball game. Football, on the other hand, is tailor-made for instant replay. In college football an extra official sits in the press box and reviews each and every play and notifies the officials on the field if a replay needs a closer look.

Every umpire misses a bang-bang play at a base during the course of a game. It's inevitable. In those instances he almost has to make up his mind before the play is even completed whether he's calling the runner out or safe. It just so happens that sometimes plays don't end up quite the way the man in blue anticipated.

Should replay be utilized to make certain those calls were correct? It's probably not a bad idea. There aren't that many of those plays during the course of a regular game and the disruption to the flow of play shouldn't be too bad.

But where are we going to draw the line? Right now the line is drawn to determining whether a hit was a home run or not. But those, too, are rare controversies. The biggest area of concern is what happens behind the plate. Calling balls and strikes has much more impact on the game than any other call an umpire makes. That umpire crouching behind the catcher has the ability to make the strike zone bigger or smaller from day-to-day. Just how much of the outside corner is he going to give? What about those pitches that come in belt-high? Is the zone going to extend to the top of the knee or the bottom?

Just how would Mr. Passan propose we handle the calling of pitches? Who would make that decision? From what angle would they make it? Would every pitch be subject to review or just those calls the managers didn't like? Who would make the ultimate call - an umpire in the press box, an umpire in New York or the crew on the field?

And just how much more time would this add on to games that are already taking far too long to play. The problem isn't pitchers taking their own sweet time between pitches. It isn't batters stepping out of the batter's box between every pitch. It isn't managers overmanaging their pitching staffs. Nope, the problem is the number of commercials that air between innings and during pitching changes.

In order to justify the ever-escalating cost of airing major league baseball, cable and broadcast networks are trying to put more and more commercials into their telecasts. As a result, games are lasting longer and longer with no end in sight. Expanding the use of instant replay will only make the situation worse.

Mr. Passan points to two incidents that occurred last week as justifications to expand the use of instant replay - a disputed home run and the ignoring of a rule.

The Oakland A's lost a game last week because the umpires ruled a home run to be but a double off the top of the wall. The replay clearly showed that the ball went over the wall and that the game should have been knotted up. However, after blowing the call the first time, the crew watched the replays and proceeded to uphold their decision. So much for instant replay getting it right.

In the second incident, umpires allowed the Houston Astros to make a pitching change before the pitcher on the mound had even faced a batter. Oops. The rules state that a pitcher must pitch to at least one batter before he can be taken out of the game. Ultimately it made no difference because, the Astros being the Astros, Houston lost the game. In that instance there was nothing expanded instant replay could do - the problem was an umpire who didn't know the rules.

I love baseball but it's gotten to the point where it's next to impossible for me to sit down and watch a game on TV because of how much time it takes to watch. I'm much happier sitting in the stands soaking up the atmosphere and eating sunflower seeds.

Expanded instant replay is the last thing baseball needs. We need to be looking at ways to shorten games, not lengthen them. Besides, unless you replace the home plate umpire with a high-speed camera and a computer, you are only addressing superficial issues. There is no way to make replay work in the context of baseball and it's time we stop trying.

There have always been bad calls in baseball and I'm fairly certain there always will be. But, over the course of a game, a series or the season, the bad calls tend to even themselves out. Let's not make baseball even more unwatchable by expanding instant replay.

Feds seeking to lower legal limit to .05

The National Transportation Safety Board has decided that the per se limit for drunk driving should be lowered to .05. Such a move would lower the current legal limit by more than 33% - a staggering number.

The rationale is that there are too many folks dying on our roadways every year. The NTSB keeps saying there are more than 30,000 fatalities that are alcohol-related annually. The number is misleading because all it takes is for one person involved in the accident - regardless of whether that person is driving or at fault for the accident - to have alcohol in their system to qualify the accident as alcohol-related.

A study from the Insurance Institute of America projects highway deaths could be reduced by a little over 7,000 a year if the legal limit were reduced to .05. Now let's crunch some numbers. According to the IIA, traffic deaths would be reduced by less than 25% by reducing the legal limit by more than 33%. That, my friends, doesn't compute. What is shows is the diminishing utility of making DWI laws more severe. Their numbers make a poor case for lowering the limit in that you will be punishing far more people for a very modest reduction in lives lost.

If we are going to accept the premise that lowering the permissible alcohol concentration will reduce the number of deaths on the roads, then why not go all the way and institute a zero-tolerance policy? If a .08 concentration is bad then why stop at .05? If we are going to make the assumption that someone is "under the influence" at .05, won't they still be "under the influence" at .02?

Interestingly enough, both MADD and NHTSA have expressed their opposition to the proposed change. It's probably fair to infer that MADD is betting the public would turn against it if the laws were tightened further. Their focus now seems to be getting repeat offenders off the roads.

Are we looking at another push by the federal government to thumb its nose at the 10th Amendment and force the states to lower their per se limits or find their highway funds cut? Or will the states find themselves pressured to create a new offense of driving while impaired (or DWI Lite)?

There are already far too many traps for motorists. We need to be looking at ways to reduce the number of people who filter through the criminal (in)justice system. We don't need more folks under supervision or behind bars. We don't need more folks with convictions on their records.

What will become of the roadside DWI calisthenics? Will NHTSA authorize another pseudo-scientific attempt to "validate" these exercises for alcohol concentrations of below .08?

The problem with a per se limit is that it's a fiction. There are folks out there who lose the normal use of their mental or physical faculties after just one drink. There are others who can drink much more before the debilitating effects of alcohol take hold.

Now make no mistake about this, I want to keep drunk drivers off the roads. But I don't want to see more people cuffed and stuffed into the backs of police cars when they have done nothing wrong. I sure as hell don't want to see more forced blood draws -- though with the current backlogs we are experiencing, any more blood draws would come damn close to flooding the system.

The NTSB idea is a bad one - but that never stopped a legislator from picking up the ball and running with it. Now is the time to nip it in the bud.

Tuesday, May 14, 2013

Another false alarm

I'm opposed to the death penalty. It serves no useful function and is but a reminder of how barbaric we were in the past.

I have been running updates from Execution Watch on this blog because I think it's important that people know what their government is doing under cover of dark. You won't find much in the mainstream media about upcoming executions - only a blurb or a short story reminding us just what a bad fellow the prisoner was after he's dead.

Yet once again Execution Watch has failed to keep its data base updated. Yesterday I posted an update on John Quintanilla who was set to be killed by the state tonight. Yesterday afternoon I searched the web to see if anything had changed. 

It had.

Mr. Quintanilla's execution had been rescheduled for July 16, 2013 long before Monday's post ran. Miraculously the Execution Watch website now lists the correct date for the execution.

Once again I apologize for the misinformation. I need to figure out a better way to put out the information in the future.

Tomorrow's scheduled execution of Jeffrey D. Williams is still on.

Execution Watch: 5/15/2013

The death machine just keeps grinding away...


JEFFERY D. WILLIAMS.  Condemned in the 1999 shooting death of a Houston Police officer who was trying to arrest him for driving a stolen Lexus. The officer was alive when backup arrived but died later of his wounds. A delay in the arrival of an ambulance sparked a probe of the Houston Fire Department's dispatching procedures. The contention was that the officer might have survived had he received treatment sooner. Investigators found that the dispatcher initially misdirected the ambulance to a location miles away.

For more information on Mr. Williams, click here.

Unless a stay is issued, we'll broadcast ...Wednesday, May 15, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: > Listen

** Since KPFT is currently in the middle of their Spring membership drive you might want to try listening through the KPFT website or on Channel HD3 -- after making a donation to keep community radio alive.

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

Monday, May 13, 2013

This beating will not be televised

Rule number one when beating someone to death is to get rid of all evidence of what happened. And that's exactly what deputies with the Kern County (CA) Sheriff's Department and the California Highway Patrol did after beating David Silva to death last week.

According to the police Mr. Silva was suspected of being intoxicated outside the Kern County Medical Center when officers responded to a call. They said Mr. Silva fought with them so they had to use force. It was far from a fair fight as nine police officers and a dog set upon Mr. Silva.

They beat him with batons and, when they were done, Mr. Silva wasn't breathing. They took him into the medical center where he was pronounced dead.

And, of course, the first thing the police did afterward was confiscate any and all video recordings of the incident. According to this article in the Bakersfield Californian,
John Tello, a criminal law attorney, is representing two witnesses who took video footage and five other witnesses to the incident. He said his clients are still shaken by what they saw. 
"When I arrived to the home of one of the witnesses that had video footage, she was with her family sitting down on the couch, surrounded by three deputies," Tello said.
Tello said the witness was not allowed to go anywhere with her phone and was being quarantined inside her home.
When Tello tried to talk to the witness in private and with the phone, one of the deputies stopped him and told him he couldn't take the phone anywhere because it was evidence to the investigation, the attorney said. 
"This was not a crime scene where the evidence was going to be destroyed," Tello said. "These were concerned citizens who were basically doing a civic duty of preserving the evidence, not destroying it as they (sheriff deputies) tried to make it seem."
The police didn't want the video so they could investigate whether their brethren violated Mr. Silva's civil rights. They didn't want the video to determine whether the officers on the scene murdered Mr. Silva. No. They wanted the video to make sure that no one on the other side of the thin blue line sees anything that might implicate their fellow law enforcement agents.

Now whether that plan involves demonstrating the Mr. Silva misbehaved and that the police had no other option but to beat him to death or that there is no evidence that the police overreacted, I don't know. But you can bet the police will do everything in their power to deflect attention away from the actions of the officers involved.

There is no reason for a man to die simply because a police officer thought he might have been intoxicated. There is certainly no reason for nine police officers to beat the hell out of an unarmed man. More troubling is the notion that not one of the officers involved did anything to de-escalate the situation. No one stood up and told his colleagues to stop.

Groupthink is a very bad thing. Law enforcement and military personnel are indoctrinated with groupthink. It's always us against them. And them is always the enemy. And once the adrenalin starts flowing there is no turning back.

So much for protect and serve.

H/T Radley Balko

Execution Watch: 5/14/2013

The Texas killing machine is back up and running...


JOHN QUINTANILLA, JR.  Arrested in a Victoria, Texas, robbery that turned deadly, Mr. Quintanilla was convicted - along with Jeffrey Bibb - of slipping into an amusement arcade wearing a mask and brandishing a rifle. They demanded cash from a worker and ordered customers to lie down on the floor. The murder victim, a former sheriff's deputy, was shot three times when he stood up and grabbed Mr. Quintanilla's weapon. Mr. Quintanilla and Mr. Bibb were charged with capital murder in the 2002 slaying. Mr. Bibb received a lengthy prison sentence.

For more information on Mr. Quintanilla, click here.

Unless a stay is issued, we'll broadcast ...Tuesday, May 14, 2013, 6-7 PM CT
KPFT Houston 90.1 FM 
Listen online: > Listen

** Since KPFT is currently in the middle of their Spring membership drive you might want to try listening through the KPFT website or on Channel HD3 -- after making a donation to keep community radio alive.

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

Saturday, May 11, 2013

Justice in Guatemala

Yesterday in Guatemala we saw an example of just what democracy is all about. In a court of law former Guatemalan strongman Efrain Rios Montt was found guilty of genocide for the slaughter of more than 1700 peasants during the country's dirty war. The judge sentenced Rios Montt to 80 years in prison.

The verdict is a vivid demonstration that in a democracy, no one is above the law - even a former military dictator. Could you imagine if a former president stood accused of human rights violations in this country?

It's a sad commentary when a country that has spent most of its history under repressive regimes gives us a lesson in democracy and the rule of law.

President Obama ordered the murder of an American citizen in Yemen. As a result of his orders, two more Americans were killed in Yemen. He has also been complicit in the torture and illegal detention of prisoners of war in Guantanamo.

President Bush (the Younger) committed countless violations of human rights in the torture program his administration cooked up as part of the American arsenal in the war on everything terror. He also ordered air strikes in Iraq that killed hundreds of innocent civilians as part of his cooked up war against Iraq.

President Clinton sent the war planes into Balkan air space and bombed the hell out of men, women and children who had nothing to do with the civil war in the former Yugoslavia.

President Bush (the Elder) was responsible for the deaths of hundreds of innocent Panamanians when he ordered bombing raids on populated areas during his invasion of Panama.

Under each of these presidents, covert operations were launched in countless nations around the world that resulted in the deaths of innocent men, women and children were nothing more than collateral damage in the eyes of our leaders.

And every time a new president is elected he tells the American people that it's time to look ahead and not argue about the past. No president has ever ordered an investigation into the human rights abuses committed by a former occupant of the White House. It's not because he wants to try to bring the country together in a common mission -- it's because it's tacitly understood that if you ignore what the guy before you did, the guy after you will ignore what you did in kind.

I have no faith that we will hold our leaders accountable for their actions. I have no faith that any former president will have to stand and defend himself against charges that he committed gross human rights violations. And, until it finally happens, there will always be those who are above the law.

What a sorry lesson to teach our children.

Friday, May 10, 2013

Something's rotten up in Conroe

Texas DPS Standard Operating Guidelines for Technical Supervisors 

1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole. 
     1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested. 
1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.

According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.

The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.

Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.

Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:
It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected. 
At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.
Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.

But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.

Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.

If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.

The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.

The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.

Thursday, May 9, 2013

You're more likely to die at work...

On Patriots' Day in Boston two bombs exploded near the finish line of the Boston Marathon killing three people and injuring well over 100 others. After the suspected bomber was arrested he was subject to interrogation without the presence of counsel because of a supposed ongoing emergency. In the aftermath the government is ramping up its information harvesting and profiling that it instituted after the 9/11 attacks.

Near the finish line of the BP 150 bike ride the following weekend, there were police snipers atop buildings in downtown Austin. There have been calls for enhanced security measures at races as well. No word on how this was supposed to stop any would-be terrorists from wreaking havoc near the finish (also, no word on why any would-be terrorist would pick a bike race in Texas to make their strike).

Out in West, Texas, a fertilizer plant that was allowed to operate in the city exploded killing 14, injuring hundreds more and damaging scores of houses and buildings. There was a nursing home near the plant as well as two schools. The source of the explosion was ammonium nitrate although no one has determined just how the chemical ignited.

In the aftermath of the explosion Gov. Rick Perry has repeatedly touted loose business regulation as a prime benefit for companies to move their operations to Texas. There have been no calls for more vigorous regulation of fertilizer plants. There have been no calls to restrict the locations of fertilizer plants. And, following the disclosure that the plant only one $1 million in insurance, there has been no outcry from our elected leaders in Austin about the business being underinsured.

Nationwide there are an average of 13 workplace deaths a day. There were just under 4700 workers killed on the job in 2011 - that's more than died in the terrorist attacks on September 11, 2001 and in Boston combined. Not surprisingly, Texas led the nation with 433 workplace deaths in 2011. That makes 2011 the 17th consecutive year that more than 400 people have died as a result of workplace accidents in Texas.

So where is the call for improved safety regulations in the workplace? Where are the calls to determine who is responsible for workplace deaths? Where are the questions about how corporate executives rake in astronomical salaries but little is spent on preventing workplace deaths and injuries?

How many more workers must die on the job before we give a damn?

Wednesday, May 8, 2013

Sometimes you win and sometimes you lose

Yesterday the State of Texas murdered Carroll Joe Parr. Mr. Parr's crime was killing a fellow drug dealer while robbing him.

There wasn't a hue and cry about a wrongful conviction in Mr. Parr's case. Just one dead man and one man on the row. But pumping Mr. Parr full of poison didn't bring anyone back. Now there are two dead men - and for what purpose?

We know our criminal (in)justice system isn't perfect. We know that innocent folks are convicted every year. We know that innocent people have been sent to death row. We know there's a damn good chance that innocent folks have been put to death (Cameron Willingham, anyone?)

Being that we are human and knowing that our institutions are only as good as the people running them, isn't it time we put an end to the death penalty? It isn't worth the risk that an innocent man gets strapped down and murdered. Anyone involved in this business that's honest with himself knows that's the truth.

Meanwhile, a few hundred miles east in the Magnolia State, the Mississippi Supreme Court reversed its ruling from less than a month ago and granted Willie Manning's request for a stay of execution. Jeff Gamso did a great job of pointing out the problems in Mr. Manning's case the other day and I would encourage y'all to give it a read.

I can't explain the court's decision. Nothing new happened in the last few weeks. The evidence is as bad as it was when the jury convicted Mr. Manning. The junk science put forward by the FBI is as bad today as it was last month as it was when the jury considered it.

But I'm not going to question it. I'm going to sit back for a few moments and be thankful that one man's life was spared on Tuesday.