Monday, September 30, 2013

The double standard of international law

Charles Taylor will spend the next 50 years (should he live that long) cooling his heels in a prison in England, not because he committed war crimes against the people of Sierra Leone, but because he is from Africa.

Mr. Taylor was the president of Liberia in the late 1990's when a civil war began brewing in Sierra Leone. Mr. Taylor provided support to the rebels in exchange for a piece of the profit obtained from the sale of so-called blood diamonds. During the course of the civil war the people of Sierra Leone suffered unspeakable atrocities.

In 2002, Mr. Taylor was driven from office and an arrest warrant from the International Criminal Court was issued. His trial on war crimes began in 2007 and ended with a conviction in 2012 that resulted in a 50-year prison sentence. Last week his appeal was denied.

During the course of the trial, Mr. Taylor was found to have provided arms to the rebels in Sierra Leone. He was also found to be responsible for murder and rape as well as the recruitment of child soldiers.

I won't argue that Mr. Taylor did nothing wrong. I won't argue that he shouldn't be punished. After all, if we want to live in a world governed by the rule of law, those who attempt to crush dissent by the law of rule must be brought to justice.

But what about George W. Bush? He launched wars of aggression in Iraq and Afghanistan with no justification. He sent in troops who killed innocent men, women and children. He ordered bombs dropped over urban areas that resulted in widespread death and destruction.

Under President Bush we saw the development of secret CIA prisons in which inmates were abused and tortured. We saw suspected terrorists - who had never been charged with a crime - secreted off to third countries whose security forces committed unspeakable atrocities. We operated a prison on US property in which men have been held for over a decade without every having been charged and where they were tortured on a regular basis.

And what of President Obama? He escalated the wars in Iraq and Afghanistan. He escalated the use of unmanned drones to rain missiles down on those suspected of being terrorists - as well as those who were unfortunate enough to be in the wrong place at the wrong time. Under President Obama we have used drones to fire missiles into Yemen and Pakistan. The United States was the prime mover in the overthrow of the Libyan government.

Where is the International Criminal Court now? Why hasn't a warrant for the arrest of George W. Bush been issued? Anyone care to guess whether a warrant will be issued for Barack Obama when he leaves the White House?

There never will be, I suppose. And that's the problem with the entire notion of international law. Unless the law applies equally to all nations and people, it will never be anything more than a joke. You will never see a politician from a major western nation standing in the dock facing decades in prison for the death and destruction his or her policies caused. That fate will be left to leaders of the Third World - those who don't have the ability to defend themselves against the powers of the West.

Friday, September 27, 2013

Update: A killer covers up his crime

What is an executioner to do when he runs out of his drug supply? Arturo Diaz became the 13th victim of the Texas killing machine last night - and the first to be killed with pentobarbital supplied by an unknown pharmacy or manufacturer.

Earlier this month the expiration date of the state's remaining supply of pentobarbital passed leaving Gov. Perry like a bachelor who has just realized the milk has gone sour.

Now just where did this new dose of pentobarbital come from? The manufacturer of the drug has refused to sell it to states who plan on using it to kill inmates. That leaves either third-party sellers who acquired the drugs under false pretenses or compounding pharmacies whose products don't undergo the same scrutiny as those made by drug companies.

The fact that the state won't reveal the source of its poison should be very troubling to the citizenry. These executions are done in our name (whether we want them or not) by a government that serves at our discretion. Every dollar spent by the State of Texas is to be accounted for and that information is to be provided to us.

We have a right to know where the drugs come from. We have a right to know how they were acquired. We have a right to know whether they were obtained under false pretenses for (what the feds call) off-label purposes.

If the drug was provided by a compounding pharmacy we have a right to know whether the drug was tested to ensure that it did what it was advertised to do. How do we know it put Mr. Diaz to sleep and then permeated his system to kill him while he slept? How do we know the drug didn't cause unnecessary pain and suffering?

We don't know - and that's the problem.

And before anyone stands up and asks why we should give a damn if Mr. Diaz suffered unnecessary pain since he took the life of another man, think about what it says of our society that we continue to insist on an eye-for-an-eye when it comes to capital crimes. We don't live in the Middle Ages anymore. Surely we have advanced past the point of exacting revenge when someone does something we disapprove of. Is the arbitrary cold-blooded murder of a prisoner really a sign of an enlightenment?

Mr. Diaz committed a heinous act. The Houston Chronicle pointed out in its headline that he stabbed his victim 94 times. So, you see, he was bad and he deserved to die. I'm not going to get up and say that Mr. Diaz didn't deserve to be punished for taking a life and leaving a huge void in a family. But at what point do we wake up and say we've killed enough?

I've said it before, and I'll say it again, no one was brought back to life when the drug was injected into Mr. Diaz' vein. Nothing can ever undo the horror of what happened back in 1999. Killing a man doesn't change what happened. And when we treat the lowest among us with such contempt that we don't think twice about killing them, it says something very profound about our culture.

We want to portray ourselves as enlightened. We want to portray ourselves as exceptional. But when it comes right down to it, we're no more civilized than savages. When, as a society, we reduce the value of a life to the point that we take it upon ourselves to decide who lives and who dies, we reveal our true nature.

We have raped the planet. We have raped the environment. We have raped those with whom we disagree. We have raped the powerless and the voiceless. We are savages.

Thursday, September 26, 2013

What goes around sometimes comes around

"On behalf of the citizens of Texas, I extend my appreciation and gratitude for your service to the State of Texas and wish you all the best in your future endeavors." -- Gov. Rick Perry's response to Ken Anderson's resignation letter
Michael Morton spent 25 years in prison for a crime he didn't commit. He was convicted due, in part, to the actions of then-Williamson County prosecutor Ken Anderson. He withheld evidence and lied to the court when questioned about it.

In 1995 the State Bar of Texas named him prosecutor of the year. Gov. Rick Perry appointed him to the bench in 2002.

Mr. Anderson is disciplinary action from the State Bar for his actions in the Morton matter. He is also facing criminal charges for tampering with evidence and government records.

On Tuesday Ken Anderson resigned.

There is nothing that can happen to Mr. Anderson that will approximate the injustice suffered by Michael Morton. Now I have no belief in this notion that the universe has some sort of moral arc. I think things are as they are. I don't think that Mr. Anderson is suffering from an attack of some very bad karma for what he did.

Mr. Anderson acted, at best, unethically and, at worse, criminally. I am certain that he castigated defendants in front of his bench for making excuses and refusing to accept responsibility for their actions. Now, however, the shoe is on the other foot.

And what does the Governor's response say about the Fair Haired One's grasp of the law? Ken Anderson betrayed the very oath he took when he was sworn in as an attorney. Not only did he care more about obtaining a conviction than seeing justice done - he continued to prevent justice from being done for decades. So don't speak on my behalf, Mr. Perry. Don't presume that I will stand in awe of Mr. Anderson's accomplishments as a prosecutor and as a judge. The man is a black stain upon our criminal (in)justice system.

If not for the tireless efforts of attorneys like John Raley and Nina Morrison, Mr. Morton would still be in prison and the dirty, rotten secrets of the Williamson County Courthouse would never have been revealed. More importantly, if not for those very efforts, Ken Anderson would continue to sit on the bench and disgrace our criminal (in)justice system further.

Don't let the door hit you on the way out, Ken.

Wednesday, September 25, 2013

Execution Watch: 09/26/2013

On Thursday night the State of Texas will kill again...

ARTURO DIAZ, convicted in the stabbing death of a McAllen man during a 1999 robbery in which Diaz and another man reportedly went to an apartment seeking drugs. Diaz is set to become the 10th person executed for crimes in the Rio Grande Valley since 1982. Another 13 people are in Texas Death Row for crimes in the Valley. On appeal, Diaz complained that his trial lawyers failed to call relatives to testify about a childhood filled with poverty, neglect and violence. The courts rejected the argument, saying the attorneys were following Diaz’s instructions.

For more information on Mr.Diaz, click here.

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

Tuesday, September 24, 2013

Last one in gets the job

And the game of trying to find someone who wants to be DA continues...

For those of y'all not up to speed. Mike Anderson, a former prosecutor and state district judge, was elected Harris County District Attorney in November 2012, defeating perennial candidate Lloyd Oliver.

Mr. Anderson announced he was taking a leave of absence in May 2013 due to his suffering from cancer. On August 31, he died. While he was on leave, his first assistant, Belinda Hill, a former prosecutor and state district judge, was named the interim district attorney.

Since Mr. Anderson served less than half of his four-year term, under state law a special election must be held to determine who will serve as DA for the remainder of the original term. But the government must appoint an interim DA to serve until the special election.

As of now Ms. Hill seems to be the favorite to be appointed interim DA because, well, no one else seems to want the job. The Harris County Republican Party is so enamored of Ms. Hill that Jared Woodhill, the leader of the local GOP, is asking Governor Perry to appoint Mr. Anderson's widow, Devon Anderson (also a former prosecutor and state district judge who also worked the dark side as a defense attorney after being booted from the bench in 2008) to fill the seat.

Why doesn't anyone want the job? It's the highest profile county-wide post in Harris County -- aside from being county judge when a hurricane strikes. It will give whoever accepts it a big leg-up in the special election. You get to be the top law enforcement agent in the largest county in Texas. What could beat that?

Well, I guess there's the issue of managing an office with well over 200 attorneys plus staff. Then there's that whole "tough on crime" thing that doesn't take into account that it costs a bunch of money to lock folks up in jail. And then there's the state of the Harris County Jail -- it's full to the gills with folks who can't make bond.

As we can see by the grease fire that is the DWI pre-trial intervention program, it's not enough to make promises and speak in sound bites on the campaign trail. In order to make things work it takes attention to detail and an office that "buys into" a program. The PTI program was cobbled out of Pat Lykos' illegal DIVERT scheme without much thought as to how it would be implemented.

On second thought, maybe it's no wonder no one wants the job.

Monday, September 23, 2013

This old courthouse - Caldwell County edition

On our drive up to Austin a couple of weeks ago for the UT season opener (which is looking increasingly like the only game worth going to this season), my youngest daughter and I made a pit stop in Lockhart, Texas for some barbecue.

But we discovered another treat as we walked around to the "front" of Smitty's on the courthouse square. There, in front of us, was an absolutely gorgeous courthouse.

The current Caldwell County courthouse was built in 1894 because the existing courthouse was too small. The courthouse was designed by Henry E.M. Guidon who also designed the Goliad County Courthouse. Like its cousin, the Caldwell County Courthouse was built in the Second Empire style. It was designated as a Texas Landmark in 1976 and added to the National Register of Historic Places in 1978.

From this angle you can see the mansard roof and the four-faced Seth Thomas clock. The building kind of reminds me of a gingerbread house with all of the color and detail.

The clock tower seems even more impressive from this angle. The courthouse almost looks like a castle.

Here's my assistant out in front with the full majesty of a beautiful building behind her. She chose her outfit, by the way.

Saturday, September 21, 2013

Is this the end of the Mack Brown era?

Ah, yes, the 2013 Longhorn football season is going up in flames.

After the blow-out loss to BYU, Mack Brown sacrificed Manny Diaz to the football gods. It didn't work. The Horns looked every bit as lost in the second half against Ole Miss as they looked up in Provo the week before.

Why Manny Diaz still had a job when Texas kicked off the 2013 is a mystery to me. Last year's defense was the worst defense in program history. There were analysts that predicted good things for Texas this season. They based this prediction on the 19 returning starters the Horns would have coming back. They would be the most experienced team in the Big XII this season.

They pointed out key defensive players who would be back after having their 2012 season cut short by injury. But how did that square with the fact that the Longhorn defense was better at the end of the season - after losing those players to injury - than it was earlier in the season?

Greg Robinson was given an impossible job when Mack Brown named him defensive coordinator the day after the beat down in Provo. How on earth was he supposed to come in and rescue a defense that couldn't tackle and was every bit as bad as last year's monstrosity?

The University of Texas gets to cherry pick its recruiting class. Texas doesn't recruit, the saying goes, Texas selects. And that's where there's a disconnect. Year and after year Texas pulls in one of the best recruiting classes - but what happens to that talent? Why isn't Texas competing for the national championship (or even the Big XII title) every year?

Either the talent isn't as good as advertised - or the coaching isn't up to par. Maybe the coach as CEO model used by Mack Brown isn't good enough to make Texas a top tier team year after year. Maybe it's the quality of the assistant coaches. Whichever it is, it all falls on Mack Brown's shoulders.

I don't know if it's time for Mack Brown to step aside. We are now in the midst of four years of mediocrity following the excellence of the Vince Young and Colt McCoy years. When Mack Brown came aboard the program had been mediocre for the better part of two decades. Mack Brown reloaded and built the Longhorns into a machine - winning ten or more games every year for a decade. I don't know if he can rebuild it this time.

Friday, September 20, 2013

And so it ends

After two-and-a-half acrimonious years on the second floor of the Galveston County Courthouse, the tenure of Christopher Dupuy on the bench in County Court 3 is finally over.

On Thursday, Mr. Dupuy entered into a plea bargain with the special prosecutor that will see him placed on deferred adjudication for two misdemeanor charges and resign from the bench.

Mr. Dupuy took the bench when the Republicans swept the 2010 general election in Galveston County despite the fact his license to practice law was suspended by the State Bar of Texas for unethical conduct as an attorney. His incompetence continued when he took the bench.

Mr. Dupuy lacked the necessary temperament to sit on the bench - he took any challenge to his rulings to be a personal challenge. He ran for the bench against the judge who was presiding over his divorce case and he used the tools of his office to assist his girlfriend while she was involved in litigation.

Now that Mr. Dupuy is off the bench, the cockroaches will begin scurrying across the kitchen floor. In the upcoming weeks and months lawyers will step up to announce they are running for the bench in County Court 3. But where have they been over the past two-and-a-half years? Not one of them had the courage to stand up and challenge Mr. Dupuy while he was on the bench. They will now pick over the bones.

Lari Elaine Laird was one of the few attorneys in Galveston County who had the courage to stand up and speak. For her efforts she found herself fighting contempt charges. It was her fight, however, that led to the slew of criminal charges being filed against Mr. Dupuy which led, in turn, to his resignation.

Update: The killing machine is running out of fuel

Robert Garza is dead. He was murdered by the State of Texas, not because he killed anyone, but because he was there. The law of parties may be fine when it comes to burglary or robbery cases but when it comes to deciding who gets the needle and who dies in prison, it's wholly inadequate.

If we are going to keep our antiquated, barbaric system of killing inmates because we're mad at them, then we damn sure shouldn't be strapping anyone down to that gurney if they weren't the person who pulled the trigger. Sure, driving the car or being the lookout may make you just as culpable as the person who did the killing - but it shouldn't get you a date with the executioner.

And now, with the murder of Robert Garza, the State of Texas is down to its last two doses of pentobarbital. With their sources of the drug drying up due to more and more people opposing the death penalty, states have been scrambling to find other ways to obtain drugs to kill inmates.

Georgia hired a compounding pharmacy to make its lethal doses of pentobarbital and then made the source of the drug a state secret. Since the FDA doesn't give compounding pharmacies a second look to ensure that the drugs they make do what they're supposed to, we have no way of knowing whether the inmate suffers unnecessarily.

The State of Texas is silent as to how it plans to obtain future supplies of the drug. Should Texas decide to go the compounding pharmacy route it will open the process up to a new wave of appeals based on the lack of quality control and regulation over the drug. It also raises questions as to whether the pharmacist compounding the drugs is violating his ethical duty as a pharmacist.

Unless states decide upon a new method of murdering inmates, we will reach a day in the not-too-distant future in which the lack of drugs and public opinion will end capital punishment as we know it. The number of states that have abolished the death penalty is growing. We will reach a point at which capital punishment will be considered unusual.

It's just a question of how many more men and women must die before we reach that day.

Thursday, September 19, 2013

So much window dressing

“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty and provides the public with inadequate information to understand and evaluate capital punishment in the state.” -- ABA report on the death penalty in Texas
On Wednesday the American Bar Association released a report to policy makers detailing their analysis of the death penalty in Texas. (As of this writing, the report has not been released to the public.)

Click here to review the report.

The ABA, showing its antipathy to the defense bar, assembled a group of former judges, prosecutors, legal scholars and elected officials to examine the way in which Texas decides who lives and who dies. Was there anyone on the panel who even questioned the very existence of the death penalty?

According to the ABA the purpose of the analysis was to find ways to restore public confidence in the murder of inmates after a string of exonerations due, in large part, to prosecutorial misconduct and inept (or corrupt) police investigations.

The problem isn't that public confidence in state-sponsored murder is declining. The problem is with the death penalty itself. Capital punishment serves no useful function. It serves only to feed the bloodlust of the state. There isn't one documented case of a murder victim being brought back to life as the result of an execution.

The game is rigged when it comes to death penalty cases. Jurors who have objections to the state killing inmates are excluded from capital juries because they are unable to consider the entire range of punishment. Thus, a jury in a death penalty case is made up of 12 men and women who support strapping inmates to a gurney and pumping poison into their veins. This guarantees a jury that is state-oriented and predisposed to convict.

If one wants to make the death penalty more "legitimate" in the eyes of the public, excluding defense attorneys from the panel is a fatal mistake. Judges and prosecutors certainly aren't going to put the blame for wrongful convictions on themselves. Maybe they can pin the blame on defense attorneys who are underpaid for the work they do on capital cases. Surely Anthony Graves was convicted because his attorney screwed up. Michael Morton's wrongful conviction is certainly due to his attorneys not trying hard enough to have biological evidence tested. Cameron Willingham went to his death because his attorneys didn't question the junk science of the arson investigators.

How much insight can judges, prosecutors and academics have into the (often) futile struggle to defend a person accused of capital murder? It's the judges who let junk science into the courtroom. It's prosecutors who fail to disclose Brady material and who stonewall attempts to conduct biological tests on evidence. And what experience do the academics have working in the trenches? When is the last time an academic challenged evidence on the basis of violations of the 4th or 5th Amendments?

The ABA study is but window-dressing. But no matter how nice you make the windows look, the back room is still filthy.

Click here for the typically vapid report from Houston's NPR station, KUHF.

Wednesday, September 18, 2013

Execution Watch: 9/19/2013

On Thursday night the State of Texas will kill again...

ROBERT GARZA, condemned following his conviction on a pair of murder charges in the 2002 shooting deaths of four women in the Rio Grande Valley. Garza’s appeal was rejected in February 2013 by the U.S. Supreme Court. He reportedly told law enforcement he witnessed the shootings and knew of the plot to kill the women but did not fire a gun. A jury convicted him of capital murder under the Texas law of parties, which allows for a defendant to be considered just as responsible as the killer if he or she plays a secondary role.

For more information on Mr.Garza, click here.

Unless a stay is issued, we'll broadcast live:
Thursday, September 19, 2013, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...

Tuesday, September 17, 2013

A trip down south

Yesterday I made the long drive down to Jackson County. I left the house at 6:30 a.m. for the 100-mile drive so I could get my name near the top of the list to sit down and talk with the district attorney.

Everything was going swimmingly - particularly once the speed limit crept up to 75 on the other side of the Fort Bend county line. Though I must admit it is a bit unsettling to be cruising at 80 mph on a highway that is not a limited access road.

Then I cross into Jackson County. I cross the Navidad River - which is still extremely low - and up ahead I see a police SUV from Ganado with its lights on parked on the side of the road. I move to the left and I see another SUV a little ways up the road with its lights on. As we crawled in the left lane I assumed there had been an accident.


As I glanced out to the left I saw the problem. A cow had crossed the highway and was standing - scared to death - in the median.

Shortly after 8 o'clock I parked my car in front of the courthouse and headed upstairs to get my name on the list (I was third) where I was met by my second surprise of the day. Since the last time I'd been down to Jackson County in the spring the door to the DA's office had been replaced by a door with a push-button lock system and a window had been cut into the wall with the plexiglass you'd see at the bank.

Now it didn't take long to figure out why the change had been made. It was obviously a response to the deaths of two prosecutors up in Kaufman County earlier this year. The courthouse in Jackson County doesn't have a metal detector and it doesn't have officers posted at each of the three entrances.

Of course what didn't make sense was the little fact that neither of the prosecutors in Kaufman County were killed in the courthouse. In fact, neither were killed by a criminal defendant in the courthouse. They were both, if you'll remember, killed by a former Justice of the Peace who got caught with his hand in the proverbial cookie jar.

Monday, September 16, 2013

Making it up as we go along, NASCAR-style

NASCAR has long fought the impression that stock car racing is the equivalent of professional wrestling on wheels. Rules have had a funny way of changing on the fly to suit one driver or another - or one manufacturer or another. No one ever had a win taken away if it turned out later that they had cheated by using illegal parts afterward. Spinning the car out in front of you wasn't punished - it was encouraged.

Now, twice in a week, the boys in Daytona Beach have monkeyed around with their own "playoff" system in order to protect the "integrity" of the racing. First they penalized Martin Truex because his teammate deliberately spun himself out late in the Richmond race last weekend. There was no evidence that Truex had anything to do with the manuever - yet somehow it was determined that deliberately spinning yourself out is a just not acceptable.

After penalizing the members of Michael Waltrip Racing, Truex was out of the playoff and Ryan Newman - who had been leading at the time of the spin - was back in.

But then there was Joey Logano. Apparently his team had a deal in place with another driver to let Logano pass him late in the race. By making the pass Logano picked up enough points to knock fan favorite Jeff Gordon out of the playoff. So, in true NASCAR fashion, the rules were changed in midstream and Gordon was added to the playoff.

NASCAR chief Brian France claims these changes were made to preserve the integrity of the racing. Meanwhile, in order to fill a field of 43 cars every week, teams are allowed to qualify then pull their cars into the pits early in a race in order to avoid damaging their cars. What happened that night in Richmond happens in race after race - it just so happened that this time it was in a race that was made the artificial end of a regular season.

The NASCAR rulebook, it seems, is written in pencil.

Last year I wrote about why Bud Selig would make a good judge as to 4th Amendment issues as he was able to ignore the fact that Ubaldo Jimenez lost a perfect game due to a blown call with two out in the ninth inning. Brian France, however, would be more than comfortable sitting on the bench today as he is more concerned with the outcome than the process.

Friday, September 13, 2013

Vacuum at the top

Earlier this month, after less than a year in office, Harris County District Attorney Mike Anderson died from cancer. He had been out of the public eye since May when he announced he was suffering from cancer and was taking a leave of absence.

In the meantime, former state district judge Belinda Hill, the First Assistant District Attorney, became acting DA. And, over the last four months there has been a complete vacuum on the Sixth Floor at 1201 Franklin.

Organizational chart for the Harris County District Attorney's Office

The theme of Mr. Anderson's campaign seemed to be "I'm not Pat." He advanced few ideas on how to fix the perceived problems in the DA's office. Apparently just being one of Johnny Holmes' "boys" would be enough to cure the office's ills.

Aside from his decision that we need to lock up more folks for possession of drugs in amounts so small that there isn't enough to conduct confirmatory tests by an outside lab, he set out to kill Pat Lykos' illegal DIVERT program.

But no one wanted to do away with pretrial diversion for DWI cases - since the program reduced the number of cases taken to trial (and the number of not guilty verdicts rendered by Harris County juries) - so he got rid of the element that made the program illegal.

Under Ms. Lykos' scheme a defendant wishing to enter the program had to enter a guilty plea in open court that could then be used against them should things go south down the road. That made the plan deferred adjudication under a different name - something that is barred by state law. So the Anderson administration did away with the plea and gave the program a new name.

But when questions arose regarding who was eligible and who wasn't and what defendants would be required to do as a condition of their "probation," there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.

And so the program, which in reality is nothing but a contract entered into by a defendant and the DA's office, found itself in a tug-of-war with the judges, the prosecutors and defense attorneys. Judges decided who could apply. Judges decided whether or not to allow cases to sit on their dockets for a year while the defendant fulfilled the terms of the contract.

All because no one was willing to take charge. And let's be honest about it, no one believed that Mr. Anderson would be returning to his office. It wasn't a situation in which Ms. Hill was just keeping a seat warm. She was, for all intents and purposes, the unelected chief prosecutor in Harris County.

State law dictates that if an officeholder dies less than two years into his or her four-year term that a special election must be held at the time of the next general election. This means that Gov. Rick Perry will have to appoint someone to be the interim District Attorney until next November when the voters of Harris County will select someone to fill the rest of Mr. Anderson's term.

Rumors have it that Gov. Goodhair has shopped the position to various folks who have been prominent in the Harris County criminal (in)justice system but that no one has expressed any desire in serving as the temp. It looks like Belinda Hill will get the nod by default. But whatever's going to happen needs to happen fast because so long as no one's in charge confusion will continue to reign at  1201 Franklin.

Thursday, September 12, 2013

Mucking it up down in Richmond

I finally reached a point last Saturday night where I couldn't sit and watch the BYU offense run at will against the Longhorn defense I was told was much improved over last year's disaster. Well, numbers don't lie and the defense laid an egg of epic proportions in the Utah desert.

So I flipped over to the stock car race. For those of y'all who don't follow NASCAR, a few years ago they implemented one of the dumbest ideas in all of sports. They decided that instead of crowning a champion based upon his performance over the course of the entire season that they would create a 10-race "playoff" to determine the champion.

The details aren't important but how much sense does it make to put 12 drivers racing for a championship on the same race track with 31 other drivers who are just racing for money? But that's neither here nor there.

On Saturday night as the race wound down Ryan Newman was leading. If he won the race he would be in the playoff and Martin Truex would be out. If he lost, he would be out while Martin Truex would be dancing.

With but a few laps remaining Clint Bowyer spun bringing out a yellow flag. The cars came into pit and, when all was said and done, Ryan Newman was no longer in the lead. When the checkered flag flew, Ryan Newman was out of the playoff and Martin Truex, Clint Bowyer's teammate was in.

The next morning all anyone could talk about was the suspicious finish to the race. Then NASCAR got involved and pulled audio that led them to believe that Michael Waltrip Racing (MWR), the team of both Truex and Bowyer, had manipulated the end of the race to benefit their drivers. As a result, NASCAR fined the team a significant amount of money, took away 50 points from the drivers and suspended their crew chiefs. Adding insult to injury, the penalty knocked Truex out of the playoff and put Newman back in.

So, if we are to believe NASCAR in this, the person who caused the mess suffers no harm while Truex, an innocent bystander, is docked points for something he had no control over. Where is the justice in that?

But what was the problem? NASCAR is full of multi-car teams that share garages and testing data. The teams build cars for each driver using data they have gathered from races and testing sessions. They swap crew chiefs and pit crews sometimes.

MWR did what teams do - they worked to get the best possible outcomes for their drivers. It's a time-honored tradition in auto racing. In Formula 1 drivers are under team orders to do what benefits the team leader. This was no different.
The plot thickens as NASCAR looks into whether Joey Logano's team made a deal with another driver to take a dive.
NASCAR was upset because it appeared MWR made deliberate moves to impugn the integrity of the race. Really? NASCAR is legendary for the invisible "debris on the track" yellow flag when someone gets too big of a lead late in a race. NASCAR encourages drivers to "beat and bang" on the track. Drivers have spun out their competitors late in races in attempts to win -- and everyone then says "that's racing."

Sure, maybe the ending of the race left a bad taste in some mouths - but so what? NASCAR still tries to market itself as a bunch of good ol' boy moonshiners driving around in circles in souped-up sedans. The reality is that NASCAR is a buttoned-down corporatized enterprise that's more concerned with image, television ratings and sponsorship dollars.

Still, as far as I'm concerned, what happened on Saturday night was "just one of them racin' deals."

Wednesday, September 11, 2013

Two wrongs don't make a right

The Congress shall have the power ... [t]o declare war, grant letters of marque and reprisal,  and make rules concerning captures on land and water.  
-- US Constitution, Art. I, Sec. 8
*****     *****     ***** 
WAR noun, often attributive
(1) : a state of usually open and declared armed hostile conflict between states or nations (2) : a period of such armed conflict (3) : state of war
b : the art or science of warfare
(1) obsolete : weapons and equipment for war (2) archaic :soldiers armed and equipped for war
a : a state of hostility, conflict, or antagonism

b : a struggle or competition between opposing forces or for a particular end war against disease;
c : varianceodds 3— war·less  adjective 
-- Merriam Webster dictionarynoun, often attributive \ˈwȯr\
*****   *****   *****
War, huh, yeah
What is it good for
Absolutely nothing
War, huh, yeah
What is it good for
Absolutely nothing
Say it again, y'all
War, huh, good God
What is it good for
Absolutely nothing
Listen to me.
-- "War" by Edwin Starr

I don't care what you call it. Limited strikes. Targeted strikes. It doesn't matter. It's still war. Whether you want to say the bombing campaign will only last a few days. So fucking what. You're still declaring war on Syria.

And why?

Because somehow the national security of the United States of America is at stake? Really? I don't care if you made some ad lib about chemical weapons and a red line. That's a "you" problem. Do you really expect us to buy your argument that because you made a comment about a red line that it's now a matter of national security that we drop bombs and fire missiles on Syria?

I still can't fathom how Barack Obama not only won, but was even nominated, for the Nobel Peace Prize. He has taken George W. Bush's lead and run with it. Instead of ending the wars in Afghanistan and Iraq, he extended them. Instead of closing the US torture camp at Guantanamo Bay, he kept it running. Instead of looking for a humanitarian way of ending the slaughter in Syria, hr has chosen to perpetuate it.

No one has ever deserved the Nobel Peace Prize less than President Obama. There are few bigger hypocrites than our President (though John Kerry rates a close second).

Syria has descended into a brutal civil war. That's what happens with dictatorial regimes. No one in Washington cared as a hundred thousand Syrians were killed. No one cared until someone used chemical weapons. What difference does it make how a civilian is killed. You are just as dead if you are shot in the head as if you breathe in poisonous gas. What makes the use of chemical weapons so special?

Back in 2012 I had to sit through a presentation at the Rusty Duncan Advanced Criminal Law Seminar (put on by the Texas Criminal Defense Lawyers Association) in which TCDLA President Gary Trichter introduced a man who piloted a plan whose mission was to drop bombs on Tokyo in World War II. We were supposed to hail this man as a hero since he was able to eject himself from his plane and make it to safety.

But how much honor is there is dropping bombs from high up in the sky on cities in another country? This wasn't the story of a war hero - it was the story of a war criminal. I was appalled at the presentation. We look at the Japanese pilots who dropped bombs on US ships in Pearl Harbor as evil people, yet we celebrate people who set out to drop bombs on civilians.

There is no justification for dropping bombs or firing missiles on Syria. There is no humanitarian purpose served by dropping bombs or firing missiles. The military's function is to destroy - not to build.

Tuesday, September 10, 2013

Taking away the voice of the people

Last week Wallace Jefferson, the first black Chief Justice of the Texas Supreme Court, announced that he was stepping down from the Court on October 1, 2013. His stated reason is financial. Judge Jefferson has one child in college and two others in high school and is making a mere $152,000 a year (but a pay raise authorized by the legislature would make that $170,000).

I'm quite certain that he will be stepping down from the bench and into a corner office at either a white shoe or boutique firm in San Antonio without missing a step. I'm interested to see just how quickly he moves into that office.

Once he leaves the bench, the fair-haired one, Gov. Rick Perry, will have yet another opportunity to appoint a conservative jurist to the bench.

Now, for those of y'all who think that partisan elections are a bad way to pick judges, you should love the Texas Supreme Court. It is, for the most part, made up of judges who were appointed by Gov. Perry who periodically run in retention elections to determine whether they get to keep their seat.

Chief Justice Jefferson was appointed to the Court in 2001, he was then appointed Chief Justice in 2004.

Justices Phil Johnson and Don Willett were appointed to the Court in 2005.

Justice Eva Guzman was appointed in 2009. This followed her appointment to the 14th Court of Appeals in 2001 which followed her appointment to a state district court.

Justice Debra Lehrmann was appointed to the Court in 2010.

Justice Jeffrey Boyd was appointed to the Court in 2012. Interestingly enough, prior to that appointment he served as Gov. Perry's chief of staff. Prior to that he served as the governor's general counsel.

Of the nine judges on the Texas Supreme Court, only Nathan Hecht, Paul Green and John Devine were ever elected to their seats. Thus, the overwhelming majority of the court (which presides over civil matters) is answerable to no one. As they are all Republicans, so long as the GOP controls statewide races in Texas, their seats will remain safe. Aside from lawyers who practice before the court, the only other folks interested in the Supreme Court are business interests who have an interest in keeping their buddies on the bench fed.

So, before you start waving the banner to get rid of partisan judicial elections in Texas, just ask yourself if you really want a governor to have the power to appoint every judge across the state.

Monday, September 9, 2013

Why would he lie?

We've all heard it at trial whenever there is a question about the veracity of a police officer's testimony. The prosecutor will ask the jury why a police officer would risk his job and his reputation for the sake of lying to get one conviction. Judges who came to bench straight out of the DA's office or who have never defended anyone accused of a crime can't fathom why an officer would lie. And jurors, most of whom have never set foot inside a courtroom, tend to believe the police because that's the way they were raised.

That's exactly what Kyle Reeves, then a prosecutor in Brooklyn, said to the jury in 1997 when a defense attorney accused the state's main witness, Louis Scarcella, a former homicide detective. And, as is par for the course, the jury bought the story.

The defendant, Jabbar Washington, said that Det. Scarcella told him what to say in his confession and beat him until he said it. Interestingly enough, Mr. Washington's confession began with the same two sentences that suspects in other cases interrogated by Det. Scarcella said.
“Our experience all around the city is that errors by police and errors by prosecutors go hand in hand and frequently become a toxic mixture,” said Steven Banks, the chief attorney for the Legal Aid Society, which represents many of the defendants whose cases are under review. “There are a series of circumstances that should have set off alarm bells both at the precinct and in the prosecutor’s office.” 
Now the Brooklyn District Attorney, Charles Hynes, has ordered an investigation into about 40 cases investigated by Detective Scarcella. Earlier this year Mr. Hynes revealed that an innocent man spent more than two decades behind bars due to a "flawed investigation" by Detective Scarcella.

Doubts about Det. Scarcella's integrity began to rise long before that trial in 1997. At least six defendants in murder cases have claimed that Det. Scarcella made up their "confessions" himself. In a rape trial back in 1983, a judge said that the defendant was more credible than the detective due to the number of times Det. Scarcella responded "I don't remember" under cross examination.

As an aside, earlier this year I tried a case in front of Judge John Clinton in Harris County. When it came to light that, despite the fervent denials of prosecutors, that both police officers had been investigated by internal affairs, I asked the judge for a continuance so that I could obtain the records I had previously requested from the city. I told the judge that since we now knew these files existed that I needed an opportunity to review them to find out if there was anything else we weren't being told. Judge Clinton, a former police officer, then said that he just couldn't fathom that a police officer would risk his career by lying on the witness stand.

It's this attitude on the bench that has led to the utter decimation of the Fourth Amendment because, in a world in which defendants always lie and the police never lie, nothing is ever suppressed.

Another question that sticks out in this case is why on earth the Brooklyn DA's Office - the same office that vouched for Det. Scarcella over the years - is even involved in the investigation. Even a blind man can see the blatant conflict of interest. Once a person is convicted, the prosecutor's office will fight tooth and nail to keep that person behind bars - regardless of the evidence before them.
The critics note that Mr. Hynes, 78, is seeking re-election and that Mr. Scarcella’s daughter works in the office as a prosecutor. In a brief interview, Mr. Hynes said that so far no glaring problems had been discovered in the review. He said the detective’s sloppy work was not brought to the office’s attention until a year ago, when it reopened the case that led to an exoneration. Even in that case, he found no reason to blame the prosecutors. 
“I am not going to second-guess the assistants involved,” Mr. Hynes said. “They are very good trial lawyers.”
We see it in almost every exoneration case. Prosecutors will argue til they're blue in the face that the defendant had a fair trial and that the evidence was overwhelmingly in support of the verdict. They will fight to keep evidence from being retested. They will fight to keep new evidence out. And so, unless Mr. Hynes' office finds that every conviction involving Det. Scarcella should be tossed out, there will always be questions of just how honest the investigation was.

I mean, after all, Det. Scarcella's being investigated by the same office who told jury after jury what an honest cop he was.

Friday, September 6, 2013

Trying to revive the spirit of George Wallace

The states of Texas and Mississippi have decided that the 14th Amendment just doesn't apply to them when it comes to recognizing same-sex marriage. Despite a Pentagon directive that the National Guard units in the states extend benefits to same-sex spouses in the wake of the Supreme Court's decision in the DOMA case, someone in Texas decided to ignore it.

Officials cited the definition of marriage as being between a man and a woman found in the Texas Constitution as justification for denying equal protection to the spouses of same-sex marriages. Maj. John Nichols did tell those affected by the decision that they could apply for benefits at federal installations and that the Texas National Guard would not deny them benefits.

This is precisely the issue I wrote about some time back regarding the inevitability of the legalization of same-sex marriage. These acts of defiance by Texas and Mississippi bring into question whether same-sex spouses are being treated the same as traditional spouses.

Forcing same-sex couples to apply for benefits at a federal installation discriminates against same-sex couples as they are being required to do more to obtain the benefits they are legally entitled to receive. All that remains is for one couple to refuse to bow down and then walk over to the courthouse to file suit alleging that their civil rights were violated.

From the Dallas Morning News:
Pentagon officials said Texas appeared to be the only state with a total ban on processing applications from gay and lesbian couples. Spokesman Lt. Cmdr. Nate Christensen said federal officials will process all applications from same-sex couples with a marriage certificate from a state where it is legal. 
Alicia Butler said she was turned away from the Texas Military Forces headquarters in Austin early Tuesday and advised to get her ID card at Fort Hood, an Army post 90 miles away. She married her spouse - an Iraq war veteran - in California in 2009, and they have a 5-month-old child. 
"It's so petty. It's not like it's going to stop us from registering or stop us from marrying. It's a pointed way of saying, 'We don't like you," Butler said. 
She said she was concerned the state would withhold survivor benefits if something happened to her wife while she was activated on state duty rather than on federal deployment.
It is a violation of the Equal Protection Clause for a state to recognize the out-of-state marriages of some of their residents while not recognizing those of others - particularly since the only reason is the sexual orientation of those involved.

The leaders of both Texas and Mississippi should be ashamed of themselves. Being seen as supportive of same-sex marriage may not be a vote-getter in either state, but guaranteeing equal protection under the law to the citizenry should trump base politics. Of course we all know that the State of Mississippi has a pretty abysmal record when it comes to equal rights. We also know that the establishment (white) churches played a large role in defending segregation in the 1960's. The circle of good ol' boys who have run Mississippi for generations is slowly, but surely, coming to an end and they are doing everything they can to cling to power for as long as possible.

The right wing in this country (and others) have long used religion as their justification for fighting the extension of equal rights to the populace. That great opiate of the masses has been very effective in keeping the oppressors in power.

These western fundamentalists are every bit as wrong as their Islamic fundamentalist cousins in, and around, the Middle East. I find it very amusing to listen to the wingnuts express their hatred for those who would advocate theocracy in other parts of the world while they do their best to build a theocracy at home.

Thursday, September 5, 2013

Barbecue and Longhorn football - it doesn't get any better

This past Saturday I took my youngest on a field trip out to Austin to watch the Longhorns open their 2013 campaign. This season marks the 50th anniversary of the first national championship for Texas. On the way up to the Forty Acres we stopped in Lockhart for some barbecue.

That building you see across the street from the CVS parking lot on US183 is the famous Smitty's Meat Market.

Here's my assistant standing at the entrance to the market. The entrance, by the way, is in the back of the building. The dining area sits in the front of the building on the courthouse square.

Waiting in line for our 'que and staring at the mouthwatering sight of ribs, briskets and sausages on the massive pit.

Here's the business end of the pit. That's an open fire burning at the end of the pit. It was in the mid-90's on Saturday outside and over 100 inside. My daughter thought it was so hot she refused to stand by the pit and sat on a bench instead.

As usual I ordered brisket and sausage. Since we were packing up the meat to eat up in Austin we didn't order any sides (my wife packed a variety of fruits and some edamames for a little balance to our dinner). We had a choice of crackers or good ol' white bread. I chose the bread (for making sandwiches). The meat was wrapped up in heavy duty butcher paper and put into a heavy brown paper sack along with the bread.

The meat smelled heavenly as we made our way up to Austin. After watching the football team walk into the stadium we headed back to our car - parked just behind the Tower - to eat. There are few things better than eating good barbecue on game day out in a parking lot underneath the Tower.

If you find yourself heading out to Austin along I-10, you need to make the side trip out to Lockhart. The barbecue is worth driving a little bit out of your way.

Wednesday, September 4, 2013

The militarization of elementary school

Every Wednesday
Military shirts
Spring Branch T-2-4 Plan 
By 2017, SBISD will double the number of students completing a technical certificate or military training, two-year or four-year degree.
Pine Shadows Elementary School will support this plan by encouraging staff and students to wear a technical school, military shirt or two or four year college shirt/t-shirt every Wednesday, beginning September 4, 2013.
And so begins the indoctrination into unquestioning support of the military in our schools. I guess they have to learn somewhere that we should all cheer and support the murder of innocent men, women and children and the wanton destruction of property and land around the world. Who couldn't get behind that?

Our schools are for learning. Violence is the last resort of those who can't think of a better way to get what they want other than destroying someone or something. Shouldn't our goal be to get away from that kind of mindset? Shouldn't we be teaching our children why war is not the answer?

It's got to start somewhere. At some point we have to get away from trying to solve every problem with a gun or a bomb. Our role as stewards of the earth is to leave it in better shape than it was when we came along. Is perpetuating a war mentality the way to do that?

We've seen President Obama and the other cheerleaders for bombing Syria talk about the women and children who were killed by the alleged chemical weapon attack from their own government. Yes, we should be appalled. But where is the outrage over the innocent men, women and children who have died at the hands of American artillery and armaments? Where is the outrage over the scores of people killed by drone attacks who had absolutely nothing to do with any terrorist plot?

I'm pretty sure that won't be a topic on "wear your shirt supporting death and destruction" day at my daughters' school. I'm sure they won't be talking about the hundreds of thousands of people around the world killed as a result of our government's militaristic policies and support of right-wing dictatorships.

I cling to the belief that one day we will live in a world without war. I doubt I will see that day but I hope that someday my grandchildren or their children will live in that world. Encouraging unquestioning support of the military and war culture gets us nowhere near that goal.

Tuesday, September 3, 2013

Our missiles are bigger than your missiles

Barack Obama is now swimming in a stew of his own making. He drew the red line and now he's having to figure out what to do now that it's been crossed.

All of this talk and bluster about how the Assad regime committed a heinous act by launching a rocket loaded up with a chemical agent is quite hypocritical, however. The United States used chemical agents against Iraq in the first Gulf War. The US dumped Agent Orange over the countryside in Vietnam. The US dropped two atomic bombs on major cities in Japan. No one was made to answer for those atrocities.

The President wants to launch missiles are certain military sites over a two-day period. Why? If the missile attack is in retaliation for the chemical weapon attack, why not attack the actual stores of chemical weapons? Why declare ahead of time that you'll only be blowing up stuff for a couple of days? And what of the innocent civilians who are going to be killed in the attacks? How will their deaths be any different than those who died in the chemical weapon attack?

The alleged chemical weapon attack in Syria killed some 1,400 people - not an insignificant number - but there were more than 100,000 killed in the prior two years; along with over a million refugees. What makes the use of chemical weapons any more heinous than the slaughter of tens of thousands of people by use of bullets and bombs?

And then we have the hypocrisy of Congress. Our elected representatives wrote George W. Bush a blank check after Colin Powell went before the UN and lied about Iraq possessing stores of weapons of mass destruction. They couldn't wait to authorize the president to do whatever he wanted to do to Iraq.

There was little debate about whether military action was called for. There was little debate about exactly who has the power to declare war. Now Republicans are up on the high horses about just who has the authority to get the US involved in someone else's civil war.

That horse, my friends, has already left the barn.

Congress stood by and allowed Harry Truman to send troops to Korea. They stood by as president after president got the US more and more entangled in Vietnam. They stood by as Ronald Reagan and George Bush sent troops into Central America. They stood by as Bush the Younger got us stuck in the morass of Afghanistan and Iraq.

Congress long ago abdicated its power to declare war.

There are plenty of good reasons to oppose an attack on Syria. Doing so for partisan political purposes, however, isn't one of them.

Monday, September 2, 2013

Going to the bank

As you might expect, once word went out that the Houston Astros were on track to bag $99 million this year, someone with the ball club had to get up and say it wasn't so.

The Astros, who own the worst record in Major League Baseball, have the lowest payroll of any team after getting rid of just about anyone who makes anything approaching serious money. The two exceptions are Jose Altuve (who just signed a long-term deal) and Eric Bedard (I can only suppose he's got some serious dirt on Jim Crane).

According to Forbes magazine, the Astros are on pace to bring in more money in 2013 than the last eight World Series champions combined. The number may be a bit high because it doesn't take into account the bath that the Astros took as a stakeholder in CSN-Houston, the regional sports network they started up with the Rockets. But, even factoring in a $24 million loss, the Astros are still pulling in over $70 million this season.

Team president Reid Ryan (son of one of the greatest pitchers of all time) told everyone who would listen that Forbes didn't know what they were talking about. He insisted that the Astros were losing money.

Now, if he were arguing that the Astros weren't making as much as Forbes estimated, I might buy into his argument. But, to argue that the number is off by more than $100 million is really stretching it.

I understand why Mr. Ryan stood up to deny the report. If I were the president of the worst ball club in baseball, I wouldn't want folks to know just how much money we were raking in. If I were the president of the ball club with the lowest payroll in baseball, I wouldn't want folks to know how much money we were raking in.

The scary thing is these numbers don't even reflect the windfall every Major League team will reap from the new national TV contracts beginning next season.

The numbers from Forbes are further evidence that Jim Crane has no intention of putting a winning product out on the field. Why spend the money on high-priced free agents when you can field a bunch of rookies and players too good for Triple A but not good enough for the Majors and still make money hand over fist?

Yes, it's Mr. Crane's money - but we aren't talking about a small market team here. Houston is the nation's fourth largest city and home to countless major corporations. There is plenty of money in Houston to field a competitive team. But that's not the game plan.

So, Houston, sit back and enjoy your AAAA ball club scrap and fight to keep from losing 100 games year after year. Meanwhile, Jim Crane and his buds will be sitting back and raking in the cash - whether you go to the ballpark or not.


Here's an article from another writer at Forbes who says the claim the Astros were swimming in cash was wrong.

Of course there are all sorts of ways to cook the books to make them say whatever you want them to say, too.