Saturday, June 29, 2013

Pale blue dot

This photograph from the Cassini space probe kind of puts everything into perspective. That blue dot found in the shadows the outer ring of Saturn is Earth - from a billion miles away. Just enlarge the image and look just outside the main rings in the upper left to get a sight of our blue planet.

For a larger image, click here.


Friday, June 28, 2013

Building walls

Just the other day the U.S. Senate passed a historic immigration reform bill by a two-to-one margin. The bill would offer a pathway to citizenship for the millions of people who came to this country without our government's permission.

But the bill came with a huge cost - the increased militarization of our border with Mexico. The bill would call for 20,000 more border guards, increased surveillance (including drones) and more fencing along the border.

And for what?

Why is it do damn important to beef up border security to the south? Why did Republicans insist on more border security before they'd vote for the bill?

Racism. Pure and simple.

Those folks south of the border don't look like us. They don't talk like us.

White Republicans are fearful that their grip on power is withering away. Their message of hate and animosity toward the poor and working class won't sell to a changing population. But they will do what it takes to hold on to whatever power they can.

Just take a look at all the bills designed to restrict access to the polls. The purpose of voter ID laws isn't to prevent non-existent voter fraud; the purpose is to make it harder for the poor, the elderly and the immigrants to register to vote. Bills to reduce early voting periods are designed to make it harder for elderly and minority voters to get to the polls. And the opposition the Right has to granting citizenship to immigrants is rooted in their knowledge that as the voting populace becomes more and more diverse, their grip on power lessens.

Finally, lest we forget. Very few of us are native-born. We are, for the most part, all immigrants. Some of us came here with permission. Some did not. It is that diversity that makes us unique. It is that diversity that makes us a richer society.

Thursday, June 27, 2013

Update: 500 murders and counting

On December 7, 1982, the State of Texas strapped Charles Brooks, Jr. down to a gurney and pumped poison into his veins. It was the first execution in the Lone Star State after the US Supreme Court lifted the ban on the death penalty.

Some 366 months later, on June 26, 2013, the State of Texas strapped Kimberly McCarthy down to a gurney and pumped poison into her veins. It was the 500th execution in the Lone Star State after the US Supreme Court lifted the ban on the death penalty.

In the meantime, all that death brought no one back to life. All that death failed to fill the holes left in the lives of the family and friends of the victims. All that death created new holes in the lives of the family and friends of the condemned inmates.

And, at least one of those folks strapped down to a gurney and killed by the power of the state was innocent. And that one instant should be enough to make us stand up and demand that the most intrusive power of the state be abolished. That one killing should be enough to disgust each and every one of us. But, it isn't.

As Ray Hill, the host of KPFT's Execution Watch, stated last night, ordinarily the punishment meted out in our criminal (in)justice system is all about the defendant but, when the death penalty is involved, it's all about us.

We have the power to show mercy. We have the power to tell our government that taking a life doesn't make up for the taking of another life. But we choose not to do that.

The death penalty isn't a deterrent. It's a tool we use because we're angry with what someone did. After 500 state-sponsored killings, folks are still going around killing other folks.

Ms. McCarthy's case should also make us all stop and think about the long-term effect of drugs on the human body. Would Ms. McCarthy have committed the murder for which she was killed had she not been addicted to crack cocaine? What effect did her exposure to cocaine have on her ability to reason? If her addiction to drugs had affected her so profoundly, shouldn't that have been taken into account during the punishment phase of her trial? Should the fact that she would have no access to cocaine behind bars been a factor in the jury's assessment of whether she would be a future threat to society?

Meanwhile, the death machine keeps humming away.

Wednesday, June 26, 2013

Restricting the vote

With the Supreme Court cutting off the Voting Rights Act of 1965 at its knees by declaring that the formula used to determine which jurisdictions must get pre-clearance to modify elections laws is out-of-date and must be redrawn, I have a couple of questions.

Just what does it mean to dilute the minority vote? Are we diluting the minority vote when we draw districts that resemble snakes or spiders in order to concentrate minority voters? Are we diluting the minority vote if we draw districts whose demographics mirror those of the county or state?

Should we be looking at laws that impede or encourage voting among minorities or should we be looking at the outcomes of those elections?

One vote is one vote whether that voter be white, black, Latino or Asian. One vote is one vote whether that voter be a man or a woman.

The real challenge before us are the states that require (or want to require) voters to present government-issued ID either to register or to vote. The real challenge before us are the states who are attempting to limit early voting or who place a disproportionate number of polling stations in affluent areas. The real challenge before us are the states who continue to disenfranchise people with felony convictions who have served their time.

It's no mystery why states are attempting to make it harder for people to vote. Just take a look at which states are proposing such legislation. They are Republican-leaning states whose leaders know the only way to hold on to power is to make it harder and harder for those folks who would vote against them to get to the polls.

The challenge is to make people see these restrictive laws for what they are - an organized attempt to prevent our fellow citizens from exercising their right to choose their leaders.

Tuesday, June 25, 2013

Execution Watch: 6/26/2013

On Wednesday night the State of Texas is planning on murdering its 500th inmate since the death penalty was reinstated.

KIMBERLY MCCARTHYA former crack addict who was sentenced to death for the 1997 slaying of an elderly woman during a home robbery near Dallas. McCarthy, 51, is the former wife of New Black Panther Party founder Aaron Michaels, with whom she has a son. She is one of 10 women on Texas death row. Since an execution date was announced in September 2013, she has been the only woman with a scheduled execution. Three of the nearly 500 people Texas has put to death in the modern era have been women. The week before her scheduled execution April 3, 2013, McCarthy's attorneys persuaded a judge to delay it until June 26. Hours before her date several months earlier, Jan. 29, a judge put it off until April 3. Among the attorneys' assertions was that jury selection in McCarthy's trial was tainted by racism.

For more information on Ms. McCarthy, click here.

Unless a stay is issued, we'll broadcast live:
Wednesday, June 26, 2013, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...

Monday, June 24, 2013

You have the right to have your silence used against you

It's not an unusual occurrence for a potential client charged with driving while intoxicated to tell me during the initial interview to tell me that the police never read him his rights. It is then up to me to tell him that there was no need for the police to remind him of his right to remain silent because they weren't interested in asking him any questions once they arrested him.

The touchstone for the Fifth Amendment has long been custodial interrogation. If the police want to talk to you about what they think you did after arresting you, they have to read you your rights. If you're not under arrest, then all's fair. This distinction has led to much genuflection and tortured language as the courts attempt to explain how a suspect, handcuffed in the backseat of a police car, is not considered to be in custody.

Forget all about that quaint notion of being free to leave. I'm not certain how many folks cuffed and sitting in the backseat of a car without the ability to open the door can be considered being anything other than in custody.

And this is the context in which Mr. Genevevo Salinas of Texas found himself. It seems there was a party one night in Houston which Mr. Salinas attended. Sometime during the night, the hosts of the party found themselves on the wrong end of a shotgun. The investigation led the police to Mr. Salinas.

Mr. Salinas decided to accompany the police to the station for an interview. Over the course of an hour he freely spoke with detectives about his knowledge of the two dead individuals and the party. During the interveiw, Mr. Salinas told the police he had a shotgun. One question led to another and the police asked Mr. Salinas if his shotgun would match the shells found at the scene.

Mr. Salinas then decided that the best thing he could do was keep his mouth shut.Mr. Salinas was then taken into custody on traffic warrants as the police didn't have enough evidence to charge him with murder. That changed when a witness came forward and told police that Mr. Salinas had confessed to him. Mr. Salinas was then arrested for the murders. At trial the police testified that he answered their questions up until they asked him about his shotgun. The jury, not surprisingly, found Mr. Salinas guilty.

The 5th Amendment states that no person "should be compelled in any criminal case to be a witness against himself." The language is quite clear - a person accused of a crime has a right to remain silent and that silence may not be considered as evidence against him at trial. And that is exactly what happened to Mr. Salinas at trial. The fact that he chose not to answer a question (for whatever reason), was presented as evidence of guilt at trial.

In Salinas v. Texas, 570 US ___ (2013), the Supreme Court held, in yet another 5-4 decision, that there was nothing wrong with the prosecution introducing evidence of Mr. Salinas' silence during questioning. The majority opinion even noted that in the Berguis case, the Court held that sitting silent for almost three hours in the face of continuous interrogation didn't constitute an invocation of one's 5th Amendment right to remain silent. Therefore, the majority reasoned, not answering one little question can in no way be inferred as an invocation of the right to keep one's mouth shut.

The absurdity of the decision is obvious. We all have a right not to answer questions from the police. It's called the right to be left alone. We don't have to invoke that right. We exercise it when we choose not to answer any questions. Just because Mr. Salinas was a suspect in a murder case doesn't mean that he somehow loses his 5th Amendment rights unless he's arrested or makes some kind of affirmative statement that he is remaining silent.

The 5th Amendment says nothing about being under arrest or in custodial interrogation. It states simply that one's silence may not be used against him in a criminal trial. Mr. Salinas' silence was used against him. Of course Justice Scalia wrote in his concurring opinion that all the 5th Amendment does is protect a defendant in a criminal case from being called to the stand by the state - in his mind there is no protection from the government asking the jury to infer guilt from a defendant's silence. Okay - except that such an interpretation renders the protection against self-incrimination fairly illusory.

Our criminal (in)justice system requires the government to prove up each and every element of their case beyond all reasonable doubt - it requires nothing of the defendant. The fact that a defendant didn't answer one or more questions posed by the police is irrelevant to the question of whether the state met its burden. Allowing the state to ask a jury to infer guilt from a defendant's silence is tantamount to reducing the state's burden of proof (or placing a burden to disprove on the defense).

Friday, June 21, 2013

The ink wasn't even dry yet...

Oh, it didn't take long now, did it?

Not even two weeks after the US Supreme Court said it was okay for Maryland to take DNA samples from  people arrested for serious crimes, the Pennsylvania Senate voted in favor of a bill that will allow the police to take DNA samples from everyone arrested for a felony or a misdemeanor requiring registration as a sex offender.

Of course police and prosecutors think the bill is a great idea. It's no different than fingerprinting a suspect upon booking him into jail. It isn't an invasive procedure. And it will allow the state to obtain, without warrant and without a showing of probable cause, evidence of a crime for which a person hasn't been charged.

And that's the distinction that a whole lot of folks just don't grasp. When a person is booked into jail the police fingerprint him and run the prints through a computer database to ensure that he person being booked into jail is the person they meant to book into jail. It is simply a tool for identifying the person in custody.

But when we allow the state to swab the inside of an arrestee's cheek we aren't doing it for the purpose of identifying the man in custody. DNA samples are entered into a database that includes samples from unknown persons associated with crime scenes.

While the purpose of fingerprinting a person is to compare his prints to the prints in the database to confirm his identity (if he's ever been fingerprinted before); the purpose of the DNA swab is to run a known person's DNA sample against a database of unknown "donors." The unknown samples came from crime scenes and victims.

What the police and prosecutors want to be able to do is solve cold (and old) cases with evidence obtained from someone who was not arrested for the offense. While the police may have had probable cause to arrest him on some other charge, there was no show of probable cause to believe the arrestee committed the prior crime.

And yet, just because someone finds themselves in police custody, it doesn't follow that he suddenly loses his right against unreasonable search and seizure. The courts have long defined unreasonable as warrantless or lacking a showing of probable cause.

There is a vast difference between identification and the obtaining of evidence in a cold case. But if you were to listen to the debate you might think that it's all no big deal. It's just a swab, they say. But it's more than a swab. The Supreme Court knew if was more than a swab - but, as happens too many times, if the Court had ruled against the state, well, that would mean that someone got away with a pretty nasty crime. And, despite the fact our criminal (in)justice system is supposed to be concerned with process, too many times our courts are more interested in the outcome of cases.

It is that misguided interest in outcomes that has led to some of the most tortured legal logic in which judges turn cartwheels in order to explain how come an act doesn't amount to a search or seizure. We are left with a Fourth Amendment jurisprudence that is nothing more than a patchwork quilt of outcome-oriented decisions made with very little thought for our protection against unreasonable search and seizure.

H/T Stan Weinberg

Thursday, June 20, 2013

Whose life is it, anyway?

As a society we proclaim our respect for human life. In practice we show little such respect. Exhibit A is our societal love of long prison sentences.

There are three broad theories of punishment in our criminal (in)justice system - rehabilitation, deterrence and removal. In reality we use a mix of all three theories as all three have major flaws that they cannot address.

Today we're going to focus on removal. Under the removal theory, criminals should be removed from society by locking them up for life or by murdering them. In Texas, capital murder carries either a sentence of life in prison without parole (what Jeff Gamso calls "death in prison") or death.

Across the United States there are over 140,000 prisoners who have been sentenced to life terms. Of those, almost a third are serving life sentences without the possibility of parole. Of those, some 2,500 are under the age of 18.

Now just think about that number for a second. We have, collectively, told 2,500 teenagers that their lives are worthless. Their brains have not fully matured, yet we are tossing them in a cell for the remainder of their lives.

I'm not here to say that some of those folks didn't do some pretty horrific things. But is locking someone up for life the answer. Maybe if the question is "what can we do to someone we are afraid of?" Because that's what it's really all about. The more you are afraid of someone, the easier it is to sentence him to a long stretch in prison.
David Wilson, professor of criminology at Birmingham City University, says several factors underlie the high number of American convicts imprisoned for life. 
"In large part it reflects the overly punitive nature of the American criminal justice system," says [Marc] Mauer. 
"Not only do we use life sentences much more extensively than other industrial nations, but even in the lower level of event severity, the average burglar or car thief will do more time than they will in Canada or Wales."
The reality is that putting someone in prison for life is rarely beneficial to any party involved in the crime. If you lock a man up for the rest of his life the taxpayers will end up playing the price for the staggering cost of health care as he gets older.

We live in a disposable society. We buy single use bottles of water and we package products in insane amounts of packaging. We manufacture items with the notion that it's going to need to be replaced sooner rather than later. Why not treat those around us the same way?

Over the last couple of decades we have seen a proliferation of "three-strikes-and-you're-out" laws that seek to impose either life sentences or very long sentences for those who had two or more felony convictions at the time they were arrested. The result has been overcrowded prisons and rising housing costs. And then there are the folks who were sent away for life on a misdemeanor charge that was enhanced to a felony as the result of prior misdemeanor convictions.

It is high time we did away with mandatory minimum sentences. Judges should have the discretion (in jurisdictions where the trial court determines punishment) to match the appropriate sentence to the case before the bar. It has become painfully obvious over the years that a one size fits all solution is no solution at all.

It's all too easy to lock someone away for a significant number of years. We need to move past that. Instead of embracing a number thrown out by a prosecutor, we need to focus on what is the minimum level of punishment that will fulfill our societal goals.

Wednesday, June 19, 2013

Taxing the poor to provide for the wealthy

Next year Brazil hosts the World Cup. In 2016 the Summer Olympics head to the land of Carnaval.

In order to impress the wealthy folks who follow international sporting events in person, the Brazilian government has undertaken a mission of clearing the poor out of the favelas surrounding the facilities and moving them far away from the areas where the tourists will be wandering around.

As the government has shelled out hundreds of millions of dollars to upgrade soccer facilities and to build Olympic-style venues, someone has to pay for the boring day-to-day operations of the state. And in Brazil that burden falls on the working class.

In response to government hikes for public transportation, thousands of demonstrators have taken to the streets in cities all across the country. And, while they're out in the streets demanding that the government stop its policy of raising taxes on the working class, thousands more have begun demanding better social services and better educational facilities for the people.

Imagine that - a government spending the people's money on shiny items that the vast majority of the population will never be able to use while the basic needs of the people aren't met. Luis Fernandes, the deputy sports minister (someone please explain to me why there is such a creature as a sports minister), has had it with the folks who complain about the money being spent on World Cup and Olympic facilities. He just can't grasp why the working people don't understand that spending money on toys for the wealthy benefits them.

Guess what, Mr. Fernandes, you're the one who doesn't get it. History has shown that the money spent on sporting facilities for international competitions is money down the drain. Go ask the good folks in London how big a bath they took on the 2012 Olympics. Ask the folks over in Russia how much money has been stolen by the organizers of next year's Winter Olympics.

As always, if the events are such massive money makers there shouldn't be any problem in finding private investors who would be willing to pony up the money to put on the events. But, if no one's willing to put up the money to stage them, what does that tell you about how profitable they really are?

President Dilma Rousseff is telling everyone who will listen how happy she is that the protesters are out there in the streets. She says that the protests are a sign of how strong Brazil's democracy is. But if she thinks that steering the same course in the future is a good move, she might need a new pair of glasses that aren't so rose-tinted.

Tuesday, June 18, 2013

Summer forecast - rolling blackouts?

And once again it's time for our annual look at why our reverence with the concepts of free markets is misguided.

Back when Texas deregulated its electricity market to allow consumers to choose their electricity provider, we were promised that the market for electricity in Texas would become more rational and efficient. Supposedly power producers would ramp up production as the price per kilowatt hour increased during periods of high demand and they would ease up on production when prices fell.

For adherents to the religion of free market economics this meant that the energy market would continue to trend toward equilibrium and that we wouldn't have to put up with shortages of power during the summer because producers would want to maximize their profits by upping supply as the price of electricity rose.

Only it hasn't worked out that way. As the mercury climbs closer to triple digits, whispers of rolling blackouts are being heard. While ERCOT (the agency that manages the grid) claims everything is in great shape, the Energy Information Administration isn't so sure.

Over the past year the increase in demand for electricity in Texas has grown faster than the state's capacity to supply it. According to the Houston Chronicle, demand increased from 2012 to 2013 at a rate of 2.3% while supply only increased at a rate of 1.4%. As a result, ERCOT's reserve margin estimate came in at only 13% instead of a projected 14%.

The result could very well be another summer of rolling blackouts in the Lone Star State, the only state in the southwest whose reserve margin estimate fell short of its goal.

So, free marketeers, whatever happened to the promise of efficiency we were sold when the legislature decided to allow the energy companies and speculators to determine how much we paid for electricity? And what will be the price of these rolling blackouts to the poor and the elderly who can least afford to lose their air conditioning?

Monday, June 17, 2013

Couldn't you just see it coming?

Law enforcement officers are highly trained professionals who routinely undergo continuing training and education in new areas in order to do their jobs more efficiently and effectively.

The command staffs are all very intelligent men and women who know what the job of a law enforcement officer entails. The days of the loose cannon sheriff is over. Police organizations are risk-adverse and have the institutional knowledge to be highly skeptical of wild claims.

Well, sort of.

I guess we can strike the Liberty (Texas) County Sheriff's Office from the list of highly accredited, professional law enforcement organizations across the state. Back in 2011 a self-described psychic, Presley "Rhonda" Gridley, called the Liberty County Sheriff's Office and reported that she "saw" a mass grave on a couple's property in rural Liberty County.

Except that, despite the media uproar, there wasn't a mass grave.

Oops. The Sheriff's Office told every media outlet that would listen about the extraordinary find. They gave out the name of he owners and their address. The Texas Rangers, the FBI and other local law enforcement agencies jumped on board. Print and broadcast media gave the story extended run

Except, there wasn't a mass grave.

Ms. Gridley has had a $6.8 million judgment lodged against her - a judgment that isn't worth the piece of paper it's printed on.

The owners of the property can't undo the damage that was done to them - not by Ms. Gridely, but by the Liberty County Sheriff's Office. I expect nothing less from those who prey on the ignorant, the poor and those with a void in their lives. Psychics such as Ms. Gridely can see the future - they can see some poor schmuck handing over cash for a made up story.

But there is no excuse for a law enforcement agency to fall for this sham. Who needs good old fashioned detective work when you can just call up the local huckster to solve a crime you didn't even know occurred?

Friday, June 14, 2013

Yet another indictment for disgraced jurist

Disgraced Galveston County Judge Christopher Dupuy is back in the news once again as he was indicted and arrested (again) for violating the statute banning judges practicing law.

Apparently Mr. Dupuy, after being suspended from the bench without pay as the result of his previous indictments, decided it was a good idea to advise his girlfriend to ignore a court order in her child custody case that he thought the order was incorrect.

But, oops, since he is still considered a judge, he is barred from the private practice of law (though there are a handful of exceptions to that prohibition). Of course there is also the question of why anyone would ask Mr. Dupuy for legal advice (never forget that he was in trouble with the State Bar while campaigning for office).

Thursday, June 13, 2013

Update: Texas kills again

Elroy Chester is dead.

Willie Ryman III is still dead. So are John Henry Sepeda, Etta Mae Stallings, Cheryl DeLeon and Albert Bolden, Jr.

Mr. Chester wasn't a good person. He killed five people. He ripped apart five families. But killing him did nothing to repair the damage his acts caused.

The only drama yesterday was what would happen at the Fifth Circuit Court of Appeals who heard a last-minute request for a reprieve. Judge Edith Jones, the subject of a disciplinary complaint due to statements made at a speech given at the University of Pennsylvania, was removed from the panel considering the request for a stay.

Not that it mattered.

There was nothing special about Mr. Chester's case. There weren't any claims of innocence. There weren't claims of mitigating factors or circumstances. He murdered a firefighter.

But that doesn't making killing him any more right.  Strapping Mr. Chester down to a gurney and pumping a lethal dose of a sedative solves nothing.

It's just one more dead man.

Wednesday, June 12, 2013

Execution Watch: June 12, 2013

Tonight the State of Texas seeks to murder:

ELROY CHESTER III, who pleaded guilty to shooting to death an off-duty firefighter in Port Arthur when he interrupted the burglary Chester was committing. 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. Chester's previous execution date of April 24, 2013, was delayed by the trial court in response to a motion he filed. Chester’s execution would be the 499th in Texas in the modern death-penalty era.

Unless a stay is issued, we'll broadcast live:
Wednesday, June 12, 2013, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...

Tuesday, June 11, 2013

Another whisteblower to be persecuted

Edward Snowden told the truth.

For that he will have hell to pay.

I think it's quite telling that the first reaction of the government when their surveillance scheme was revealed was not to try to defend it but, instead, to attack someone for exposing their actions to the world. 
"We have seen enough criminality on the part of government. It is hypocritical to make this allegation against me. They have narrowed the public sphere of influence." -- Edward Snowden
The reaction reminded me of how my oldest daughter behaves when she gets caught doing something she isn't supposed to be doing. She gets upset - but she doesn't get upset because she was doing something wrong, she gets upset because she got caught doing it.

We need to be more aware of what our government does in our name. I have written before about the NSA's data mining operation in Utah. If los federales are mining metadata on telephone calls, you know damn well they're harvesting the phone calls as well. And it doesn't matter whether it's supposed to be legal or not -- the reason we have so many Fourth Amendment cases is because the police are taught not only to push the envelope but to rip the damn thing open and dump out the contents. 

Monday, June 10, 2013

Another drug scandal in baseball? Wake me when it's over

Another day, another steroid (or whatever the performance enhancing drug of the day is) scandal. Stars such as Ryan Braun and Alex Rodriguez have found themselves wrapped up in a mess involving drugs obtained from a strip-center anti-aging clinic in Florida.

For Mr. Braun, this is his second run-in with MLB's anti-drug policy. The first time he skated because of chain of custody issues with his sample. I have a feeling this second episode will not go as well for the Brewer outfielder as the first one.

The big question, however, isn't whether or not the players involved cheated, the big question is whether or not it matters. You see, once upon a time numbers mattered in baseball. We all knew what 7, 56, 61, .406, 714 and 755 meant. We collected baseball cards and pored over the stats on the back... and then tried to chew the pink cardboard that passed as gum.

But somewhere along the line the game became less about those precious numbers and more about revenue.

In the meantime, Mark McGwire, and later Barry Bonds, broke the single-season home run mark using banned substances. Barry Bonds broke Hank Aaron's career home run record while juicing. And, just to show how little the numbers mean these days, how many of y'all know how many career homers Barry Bonds hit?

Ballparks have become smaller in order to encourage more offense. Strike zones have become smaller in order to force pitchers to throw in the butter zone. The playoffs (once the most elite status is sports) have become diluted with expansion and the creation of the wild card. And don't even get me started on the blasphemy that is interleague play.

Baseball isn't about history and numbers anymore. It's about entertainment. Baseball competes with other sports but it also competes with the movies, concerts, theater and backyard barbecues. As a result of the high fees networks pay to broadcast games, the games have stretched out longer and longer to accommodate all the commercial breaks necessary to pay the bills.

So, in the end, does it really matter if a ballplayer is sticking a needle up his butt or rubbing some cream on his muscles or popping pills? It's all about entertaining the fans.

And there's nothing wrong with that. Come Sunday I'll be sitting out in the mezzanine with my old man celebrating Father's Day.

Friday, June 7, 2013

Hanging on the telephone (metadata records)

It all started out innocently enough. A woman was robbed. She remembered the car the robber was driving. She started receiving threatening and obscene phone calls from a man who claimed to have robbed her. One night the man told her to go outside and she saw the same car she saw on the day she was robbed driving down her street. The police ran the license plate number and learned the identity of the driver.

She called the police to report the phone calls. The police, in turn, went to the phone company and asked them to install a pen register on the phone line of the man who owned the car in question. The pen register (a device that allowed the phone company to record the telephone numbers dialed from the phone line with the device), gave the police all they needed to connect the owner of the car to the phone calls and the robbery.

Now I shouldn't have to tell you what happened next. The owner of the car was arrested, charged with robbery and convicted. His motion to suppress the evidence obtained from the pen register was denied on the grounds there was no search. The conviction was upheld on appeal to Maryland's highest court.

Then the Supremes got hold of the case.

The Court held that the installation of the pen register didn't constitute a search because the defendant did not have a reasonable expectation of privacy as to the numbers he dialed from his phone. The Court also went to great lengths to explain that the contents of the phone calls weren't recorded, only the numbers dialed from the defendant's phone.

Fast forward to earlier this week and we find out that Verizon, among other providers, has been providing so-called meta data from phone calls on its network in response to an order issued by a secret court (Foreign Intelligence Surveillance Court). The government has been quick to point out that the only information obtained were the phone numbers dialed, the duration of the conversation, the location of the callers and the length of the call.

What's the problem los federales ask. We're just keeping tabs on who you're calling and how long y'all are talking for.

Of course, once confronted with the news that the government is spying on its own citizens, the director of national intelligence doesn't even waste his time with the time-honored non-apology apology. Nope, instead he goes straight for the blame the leaker card.
James Clapper, the director of National Intelligence, has released a statement, which, in part, says: "The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans."
Just because the Supreme Court got it wrong in Smith v. Maryland doesn't mean we have to follow that precedent. Yes, all of the information regarding who we call, how long we talk and where we are when talking may be found somewhere in the mammoth stack of data the phone of cell company maintains. In our increasingly connected world, such metadata has to be stored someplace, but just because it's stored in a server in the back room of the cellular provider doesn't mean the users of that service don't have a reasonable expectation of privacy as to whom they call and how long they talk.

These cases involving electronic privacy all start with the same incorrect premise that it is the state that determines what is private and what is not. In other words, if you follow the logic of the government in these cases you will come to the inexorable conclusion that, in the eyes of the state, nothing is private unless the government says it is.

Somewhere along the line we have forgotten that it is the people who are the sovereign in the United States. The Preamble to the U.S. Constitution begins with "We the people." Our government only has those powers that the people have ceded to it. The very notion that we only have a privacy interest in anything in which we have a reasonable expectation of privacy is badly flawed.

The truth is we have a privacy interest in everything that we do and anytime the government intrudes upon that privacy interest there is a search. The burden should not be on the individual to prove that he or she had a reasonable expectation of privacy, the burden should be on the state to prove that its intrusion into the privacy of an individual was not unreasonable.

This latest example of what the government has been doing since the 9/11 hysteria demonstrates that, not only, do bad facts make bad law, but that bad law perpetuates itself through the doctrine of stare decisis.

Thursday, June 6, 2013

This isn't being recorded, is it?

Edith Jones is a judge on the US Fifth Circuit Court of Appeals. She's a Texan and she practiced law in Houston before being appointed to the bench by Ronald Reagan in 1985.

She also has no business sitting on the bench based on a complaint filed under the Judicial Conduct and Disability Act that details comments the judge made at a function at the University of Pennsylvania School of Law in February of this year. (Click here to read the complaint.)

In her lecture entitled "Federal Death Penalty Review," Judge Jones made several interesting assertions that cast doubts on her fitness to sit on the bench.
Judge Jones claimed that the death penalty has actually helped inmates by allowing them to make peace with god in the minutes leading up to their execution. 
She claimed that blacks and Hispanics were more predisposed to committing violent crimes and more likely to commit violent acts than members of other ethnic groups. 
According to Judge Jones, claims of innocence, racism and arbitrariness regarding the death penalty are merely "red herrings." 
She also said that banning the execution of mentally retarded defendants was a bad idea. 
And, as if that weren't enough, Judge Jones also claimed that Mexican nationals preferred death row in the US over prison in Mexico.
Her comments raise questions over her ability to hear cases involving minority defendants. They certainly seem to indicate the color of the defendant's skin would have an effect on her decision. Her beliefs that there is a religious basis for the death penalty and that by killing an inmate we are doing him favor is extremely troubling.

It is a bit scary to sit back and realize that we wouldn't be any wiser about her beliefs on race, ethnicity and the death penalty if she hadn't felt the need to broadcast her opinions in front of a law school audience. This incident does serve to highlight one of the problems with the federal judiciary - while it can be a benefit that federal judges are immune to the political pressure that state judges feel, it can be costly to society when those judges with life tenure hear cases while spouting off racist nonsense.

I'm sure at some point we will hear from Judge Jones. I'm fairly certain she will make the non-apology apology by saying she's sorry if her comments offended anyone. And that response will be utter and complete bullshit. There is no question that her comments were offensive. If she really wants to apologize she will stand up in front of a microphone, acknowledge her prejudices and ask for forgiveness.

Anything less will just be window dressing.

Wednesday, June 5, 2013

Constructing our reality

I was on my way to the office last night to meet with a client. I flipped on the radio in the car and the only thing worth listening to was the TED Radio Hour on NPR. The topic appeared to be why do people do bad things.

The first speaker was Dr. Philip Zimbardo who conducted a famous experiment in the basement of the Stanford psychology lab 42 years ago. Dr. Zimbardo found two dozen volunteers - he selected half of them to be prisoners and the other half to be prison guards. The experiment was supposed to last for two weeks but it was called out after just a few days because of the sadistic behavior of the guards and the mental breakdowns of the prisoners.

Dr. Zimbardo focused on why good people do evil things. He settled on the social constructs in which we live and breathe. Now, I think he made a false dichotomy between good and evil; I think calling something or someone "evil" allows us to avoid any serious analysis of the problem. But, he looking at social constructs as being the conduit for certain behavior is right on the money.

For an everyday example, just peek your head in any criminal courtroom anywhere around the country and you will see what happens when you slap labels on people and encourage others to treat folks based on the label they're wearing. Defendants are brought in every day who can't afford to post bond. Many of these folks were arrested for nonviolent offenses. But, when given a choice between issuing a personal bond, releasing the defendant and allowing him to fight his case from the outside, or coercing a plea by refusing to look at bond in the context of that particular defendant, you know the choice that will be made.

In some courts judges and court personnel will treat defendants like garbage because they are defendants. We are socialized very early on to believe that a police officer is telling the truth and that the defendant will say whatever he must in order to get away with his crime.

The judge, and his or her staff, are more concerned with moving cases along than they are about the outcome of those cases. After all, regardless of what happens today, there will be someone new sitting on that bench in the morning. Prosecutors are trained to be cogs in the machine. Defense attorneys who prod their clients into pleading out their cases are rewarded with additional appointments. Defendants are just the product that's being moved from room to room without much consideration for the consequences of the game played out in the courtroom.

Now I know I'm painting with a broad brush and that not every judge, prosecutor or defense attorney fits into this model. Unfortunately they are becoming more and more the exception rather than the rule.

I have colleagues who will throw out the word evil when describing this scenario, but I think that description is a bit too simplistic. Our criminal (in)justice system is the culprit in our drama. Those folks in the courtroom are minor stars or bit players. But we all operate within a social construct in which those who can least afford bail and counsel are treated like cattle. There's no need to investigate the case - there'll be another one tomorrow. The defendant just wants to get out of jail and the players know the road map to the outside - get an offer with the exit within reach and plead it out. The system forces the players to blindly recite rights and privileges that no one seriously expected anyone to exercise. We mouth the words and we all go home at the end of the day regardless of what happens to the accused.

We pretend that the plea wasn't coerced by the denial of reasonable bail or the inflating of charges. We pretend that the attorney had adequate time to investigate the case between docket call and lunch. Collateral consequences? Who gives a fuck? Not my problem.

Few question the basic assumptions of our criminal (in)justice system. Few ask questions. Why won't judges grant personal bonds for non-violent first offenders? Why are defendants required to appear at every court setting when there is no need for them to be there? What's the magic number for sentencing? Is a 5 year sentence any more just than a sentence of 54 months? Why are defendants who bonded being supervised by the probation department when they haven't been found guilty of anything? Why is drug addiction treated as a legal and not a medical issue?

Take a look at the jail. The overwhelming majority of detainees and inmates are poor, male and non-white. What message is that sending to their children? How are we socializing the most vulnerable among us?

The system is corrupt. We all know it. There is no such thing as the presumption of innocence. When that jury walks into the courtroom they are told the person sitting next to the defense attorney is the defendant. He or she is dehumanized by the prosecution and the court throughout the entire trial. They are dehumanized for the same reason the student prisoners were dehumanized in Dr. Zimbardo's experiment -- because one you dehumanize someone it's easier to treat them as somehow less worthy of respect, compassion and empathy.

Tuesday, June 4, 2013

At least it's not a needle

Police arrest suspect. Police take suspect to jail. Police take suspect's fingerprints when he is booked in for identification purposes. Police collect other scientific evidence for use in solving cold cases.

What's wrong with this picture?

According to Supreme Court Justice Anthony Kennedy and four of his fellow justices, not a damn thing. You see, there's nothing overly intrusive about it. Just take a giant Q-tip and roll it around inside someone's mouth and you have instant DNA sample. No one is getting strapped down. Nothing is being injected in someone's body. And, best of all, now you have a DNA sample you can enter into a database to see if your new guest is implicated in any other crimes that have gone unsolved.

It is so strange, at times, to agree with Antonin Scalia. But, when it comes to Fourth Amendment issues, his goofy textualist philosophy generally works in favor of the accused. Justice Scalia wasn't concerned with the intrusiveness of the collecting of the sample. He didn't care if it was convenient. Justice Scalia had a problem with the fact that the sample would be used as evidence in investigating other crimes.

Oh, did I forget to mention the samples in question were taken without a warrant?

Yesterday the Nine in Robes decided by a vote of 5 to 4 in Maryland v. King, 569 US ___ (2013), that there was no need for the government to obtain a warrant to collect a DNA sample from someone arrested for a crime. Not convicted, mind you, just arrested.

The decision raises questions on various levels. First, since when do we equate a DNA sample to a booking fingerprint? The purpose of fingerprinting those arrested and jailed is for identification purposes. Down the road, should that person be convicted and find themselves on the wrong side of the iron bars again, that fingerprint card from the first arrest and conviction can be compared to the new card to identify those folks who have prior convictions are who are subject to enhanced sentences.

The fingerprints are also loaded into statewide and nationwide data bases that allow law enforcement agencies to compare fingerprints found at the scene of a crime to those taken of folks charged or convicted of various crimes.

The DNA evidence in this case would constitute scientific evidence that could be used against the arrestee in any other case in which there is a hit on his sample. The sample isn't being used for identification purposes, it's being used for investigative purposes. It is being obtained without the slightest showing of probable cause.

This decision, and all the other 5 to 4 decisions in matters concerning our rights under the Bill of Rights, raises questions about the reverence judges pay to the principle of stare decisis. If we are going to use these cases decided by one vote as precedent on which to base our rights, shouldn't we be concerned that in this vast democracy, a right was defined by one person who was not elected and is not accountable to the citizenry?

Furthermore, if a case is decided by but one vote, what does that tell us about the strength of the precedential power of that case? Knowing that the same facts could just have easily led to a different decision if the composition of the court was changed by one justice, should we rely upon those decisions to the same extent we rely on unanimous (or near-unanimous) decisions?

There is nothing magical about the nine who sit in Washington. They are men and women who have decided, based on nothing more than their own political beliefs, that they each know the correct method of interpreting a document written in the late 19th century - a document whose authors could never have imagined how much things would change over the course of 200 years.

Who's to say that Justice Scalia's textualism is any better than the idea that the Constitution and Bill of Rights are living documents that must change with the times? And where does the doctrine of original intent fit in? Does it really make sense to try to analogize the items of our modern society to the items at hand in 1800?

Monday, June 3, 2013

Book review - Dirty Wars: The World is a Battlefield

Once upon a time the power to declare war belonged to the legislative branch. That began to change when Harry Truman felt the need to send troops to the Korean Peninsula. Dwight Eisenhower followed up by sticking his nose into Southeast Asia (followed by Kennedy, Johnson and Nixon) and Central America.

Congress ceded its power to declare war when it passed to Gulf of Tonkin resolution during the Johnson administration, handing the White House carte blanche to send in the troops whenever it felt the need to do so. And, since the damage from that piece of legislation wasn't bad enough, they decided to one-up themselves in 2001 when they gave George W. Bush a blank check to send the military around the world after terrorists.

In his latest book, Dirty Wars: The World is a Battlefield, Jeremy Scahill pulls back the curtain and exposes the ways in which our government has subverted the Constitution and international law. And the story isn't pretty.

Under the Bush administration the foreign policy team constructed a scheme in which the sovereignty of nation states was immaterial in the US's fight against terrorists (or those whom the government defined as terrorists). Along the way innocent men, women and children have found themselves in the middle of whatever conflict the United States feels the need to get into.

Officially the United States isn't at war with anyone. The Bush administration used the 9/11 attacks as an excuse to go back into Iraq to follow up on his daddy's attempts to occupy the oil fields and defend oppression in Kuwait.. From there it was off to Afghanistan for another war of occupation. Along the way we've made stops in Pakistan, Yeman and Somalia -- with and without permission.

Just think about the absolute absurdity of one nation making a unilateral decision to invade the territory of a sovereign nation and drop bombs into populated areas. What would the reaction in the US be if the Russians took it upon themselves to fire missiles into areas in which Chechen activists lived?

The sycophantic media has bought the government's line about this war being a "clean" war through the use of armed drones that keep our young people out of harms' way. How inconvenient to point out the thousands who have died as a result of missile and bomb strikes in our drone war. From hitting the wrong target to the so-called collateral damage, Washington has made plenty of enemies in the Middle East.

It is largely because of his exposure of the truth behind the war that Bradley Manning has been sitting in custody for years and is looking at the possibility of life in prison.

Yet no one seems to have gotten too upset about President Obama's decision to kill four American citizens without the benefit of due process of law.No one has raised much of a ruckus over the vast sums of money that have been wasted on a war without boundaries at the same time Republican congressmen are screaming to cut social spending for the poor.

The mechanism by which the White House has usurped Congress' power to declare war is in place and isn't going anywhere anytime soon. Presidents from both parties have sent young Americans into harm's way in support of transnational corporations and financial interests with nary a word of dissent from Congress. The Joint Operations Special Command has become a shadow Defense Department creating foreign policy from whole cloth.

Jeremy Scahill has done an excellent job exposing the mockery that our elected (and un-elected) leaders have made of the Constitution. The question is will anyone have the backbone to stand up and point out that the emperor has on no clothes?

Saturday, June 1, 2013

Using Jesus to deny healthcare benefits

Last week Hobby Lobby pointed out the most basic flaw in the overhaul of our health care regime. For those of y'all who don't know, Hobby Lobby is an Oklahoma City-based craft store chain whose owners are devout (read: nutty as the pecan tree in my backyard) Christians who equate emergency contraception (the so-called "morning after pill") with abortion.

Hobby Lobby has appealed an adverse decision in federal court to the 10th Circuit Court of Appeals arguing that businesses should have the same right as religious institutions not to offer certain types of coverage in the health plans that cover their employees.

And therein lies the rub.

For all of the good in the Affordable Healthcare Act, it left our regime of employer-based healthcare coverage in tact. If health care is a basic human right then it shouldn't be tied to whomever you punch a clock for. If it's a basic human right the level of care you receive shouldn't be decided by the company who employs you, or by the mid-level managers of an insurance company.
"They ought to be able, just like a church, just like a charity, to have the right to opt out of a provision that infringes on their religious beliefs,'' said Kyle Duncan, who will argue before the 10th U.S. Circuit Court of Appeals on behalf of the Green family, the founders of Hobby Lobby Stores Inc. and a sister company, Christian booksellers Mardel Inc.
If health care is a basic human right, then it should be available to all regardless of income level or employment status. If you want to know why health care is so expensive in the United States, just take a look at the delivery model we use. There are so many folks with profit motives controlling who has access and what level of care they receive that the result is we pay far more than we should for far less health care that we should receive.

I couldn't care less about the religious beliefs of the owners of Hobby Lobby. They can be as superstitious as they want. However, their particular superstitious beliefs shouldn't affect the health care coverage their employees receive. Their employees chose to work there for a variety of reasons - including the need for a paycheck. To deny them particular coverage because it is somehow offensive to an employer should be offensive to all of us.

But so long as our healthcare coverage is provided by employers and supplied through insurance companies, we will continue to fight a rear-guard action to prevent our access to a basic human right from being whittled away.