Tuesday, December 31, 2013

Goodbye, Mack

I just got back from seeing the sad ending to the Mack Brown era at Texas. I really wanted it to end differently than it did. I can't say I'm surprised, however.

My wife suggested I go to the Texas Exes viewing party to watch the Alamo Bowl tonight - so I did. As did my youngest daughter. The game stunk but we had fun. She drank her lemonade while I downed a couple of Shiners and we ate through the bag of goodies my wife packed for us.

She was completely oblivious to the score. She was there to watch the game and hang out with her old man. She was sad that Mack Brown was stepping down. When she heard he was being forced out (I'm not playing along with this resigning charade), she cried.

As I have written before, throughout this entire episode, Mack Brown has shown more class than all of his detractors. The final nail in the coffin was when the board of regents told UT President William Powers in a closed session that Mack had to go. Powers didn't even have the class to tell Mack face-to-face. He sent in the new AD, Steve Patterson, to do his dirty work.

What an example you set for the students on the Forty Acres.

And having the palace intrigue made public doesn't make the job any more desirable. Why would Jimbo Fisher or Art Briles want to leave to come to a school in which the regents will be plotting their demise after their first loss?

But, despite everything that went on behind his back, Mack Brown responded by my request and sent my youngest an autographed picture of him holding the trophy for winning the national championship. He didn't have to do it. But that's the kind of person Mack Brown is. There's a lesson in there for all of us.

Monday, December 30, 2013

Book review - The Crash of 2016

In The Crash of 2016: The Plot to Destroy America and What We Can Do About It, author Thom Hartman lays out his case for why the US economy is heading for the cliff. According to Mr. Hartman's theory, major recessions come about every 80 years or so because that gives society enough time to forget what caused the last recession and so we repeat the cycle ad infinitum.

Every major recession has followed speculative bubbles and war. The speculative bubbles are caused by serious reductions in the top tax rates which leads to, what Mr. Hartman refers to as, "hot money." This hot money, having no place to go finds itself caught up in bubbles -- whether they be tulips, stocks or housing.

After the crash the top marginal tax rates are raised again, which cools off the hot money, and the economy starts humming along nicely. Until, that is, enough time has passed so that everyone forgets the tax cuts, the speculative bubbles and war and another crash occurs.

Mr. Hartman's theory of cycles is a popular theory to explain most historic phenomenon. So, while it's easy to explain and has a certain symmetry to it, the theory leaves a bit to be desired. And, to be fair to Mr. Hartman, the same applies to every other historian and theoretician who has tried to tie history to cycles.

Mr. Hartman's book also suffers from another common problem. Mr. Hartman is an unabashed progressive - and there's not a damn thing wrong with that. But he also harbors an undying faith and belief in capitalism. His mission is to try to restore our economic system to some mythological one in which this abstraction called the middle class brought about widespread prosperity.

This is the same line of thought that President Obama has espoused since he was chosen to run for president. Go back and listen to his campaign speeches and his pronouncements during his time in office. He constantly talks about programs that benefit the middle class - but he never mentions the working poor. Doing so would remind us all about the ways in which capitalism has, by design, left behind the vast majority of folks in the world.

His focus also renders him blind to the essential contradiction in capitalism. The system is designed to concentrate profits in fewer and fewer hands. As capitalism is dependent upon increased levels of consumption to keep the wheels turning, this overbearing march toward higher profits leaves those who produce the goods and services with less. So, while we pump out more and more product, fewer folks have the means to purchase them. It is this crisis of overproduction that brings about periodic recessions and market failures.

Wednesday, December 25, 2013

Tuesday, December 24, 2013

What's wrong with this picture?

Dana Brock of Hurst, Texas was sentenced to 70 years in prison last week for stealing a weed whacker and a power washer from a neighbor's garage. This is what happens when enhancement provisions in the penal code are allowed to run wild like kudzu in the Mississippi countryside.

She was charged with burglary of a habitation, a second degree felony punishable by 2 to 20 years in the state penitentiary. But, because of prior convictions for murder, drug possession and solicitation, she was subject to Texas' "three-strikes-and-you're-out" laws.

As a result, a crime that would normally have a ceiling of 20 years in prison could now net her life behind bars.

Now whether she should have served more time in Arizona on the murder and solicitation convictions is another topic for another day. The point is those convictions had nothing to do with the burglary case in Texas. Sure, her record indicates that she isn't a good person and certainly someone you wouldn't want to live next door to, but, we don't (or at least we aren't supposed to) punish folks because they're bad people or because of what they've done in the past.

In reality, however, that's exactly what we do. We enhance penalties based on what someone's done in the past - regardless of how much time has passed or how that person has changed. When prosecutors tack on enhancement paragraphs in an information or an indictment they are doing it because they want the jury to know what a bad person the defendant is.

Moreover, when the state seeks to enhance a charge with one or more prior convictions the state is seeking to punish the defendant a second time for a prior offense. When a defendant has a prior conviction, he or she has already been punished for it - whether it be probation or incarceration. That debt has already been paid. Yet somehow we've decided, and the courts have agreed, that it's okay to sentence someone twice for the same offense.

On multiple occasions I have represented defendants who were charged with felonies for what nothing more than a misdemeanor. One client had been indicted on felony theft charges for stealing soap, deodorant and shampoo. The value of the items stolen was well under $500 (a class B misdemeanor) but, because he had two prior misdemeanor theft convictions he was facing two-to-ten years in prison for something that would ordinarily be punished by no more than six months in the county jail.

And what's the point? Why are we sending people to prison for non-violent property crime offenses? A petty shoplifter has no business being exposed to the cesspool that is our prison system.We're doing it for no other reason than we're mad at him for continuing to steal.

Prison should be reserved for those folks who are a danger to society. Prison shouldn't be the landing spot for someone we're just mad at.

Now we can argue all day about whether Ms. Brock should go to prison for up to 20 years for stealing lawn equipment from her neighbor. But I would hope that we could agree that a life sentence for breaking into a garage is more than a bit excessive. She wasn't sentenced for the crime she committed. She was sentenced for other crimes she committed - and for which she served her time.

H/T Grits for Breakfast.

Monday, December 23, 2013

This old courthouse - Lee County edition

Back in August I took my youngest to her first Longhorn football game in Austin. Since it was a night game we stayed overnight and headed back home after breakfast the next morning. Just to do something a little different we took 290 back to Houston instead of heading down 71 to I-10.

Our drive took us to Giddings, Texas, about an hour outside Austin. Giddings is the county seat of Lee County and has a gorgeous courthouse just off the main drag.

The courthouse was built in 1899 to replace the one that burned down. It was designed in the so-called Robertson Romanesque style. Instead of placing the courthouse square in the middle of the commercial district, the Lee County Courthouse sits in the middle of a residential area.

Here's a shot from one of the corners. That's my assistant in the green skirt.

 This is a picture of the clock tower.

Here's my assistant standing on the fire escape outside the courthouse.

Friday, December 20, 2013

Making the trains run on time

I heard from a colleague the other day that after a trial in which his client was acquitted the judge ordered the defendant taken back to jail in order to be processed out. My head began to hurt from spinning so fast.

His client couldn't afford to post bond and the judge wouldn't allow him a personal bond so he sat in the county jail for months waiting for trial. He could've easily pled guilty and taken time served (or less than what he ended up serving) but he insisted on his innocence.

I'm certain that he had some personal effects and items that were still sitting in his cell or in the property room but once that jury came back with a not guilty verdict, any authority the court may have had over him vanished into thin air. He should have been free to return to the jail when it was convenient for him to do so instead of having to go back into custody for another four or five hours while he was processed out.

It was bad enough that he had to sit in custody for months awaiting trial for the crime of not being able to scrape up enough money to pay a bondsman to get him out. That deprivation of his freedom can never be undone and the jury's verdict was a sharp rebuke to the police, prosecutors and the judge. But the illegal detention of an innocent man afterward is inexcusable.

I wish I knew the name of the judge so I could plaster it in bold type. I wish I knew the name of the judge so I could question his qualifications to sit on the bench. I wish I knew the name of the judge so the rest of the world would know who he was.

There are far too many judges sitting on the bench in Harris County who have the mistaken belief that they work in the district attorney's judicial division. They are only too willing to bend over backwards to impose coercive bond conditions on defendants who are legally innocent. They are only too willing to help out the members of "their team" in the courtroom.

This is not the first incident in which a judge has infringed upon the freedom of a defendant after receiving a not guilty verdict. A few years ago a visiting judge, Carolyn Marks Johnson, presided over a DWI trial. Now, before we go any further I must disclose that Ms. Johnson was my voir dire professor at South Texas - and she did a damn good job. However, after the jury acquitted the defendant, the judge decided that the defendant (innocent person sitting in the courtroom) needed to be drug tested. So she ordered it.

She had no jurisdiction over the (former) defendant. Once the jury returned their verdict the case was over as was the judge's power over the accused. But that's just a little detail. Why let things like constitutional protections get in the way when you can show someone you're the boss?

I'm sure that both the judge and Sheriff Adrian Garcia can come up with a myriad of excuses and reasons why a person who was just acquitted should have to go back into custody. There's all that paperwork and clothes and bedding to worry about. We certainly can't inconvenience the sheriff, can we? Besides, if he was charged with a crime we all know he was up to something - the fact that a jury found him not guilty doesn't make him innocent y'know.

A person's liberty shouldn't be infringed upon for the sole purpose of making life easier for the sheriff. The judge knows this and the judge also knows damn well that what he (or she) did was wrong and was a violation of the oath they took when they were elected (or appointed) to the bench.

Thursday, December 19, 2013

A broken record

On the way to the municipal courthouse during the lunch hour yesterday I happened upon a discussion on the local public affairs show Houston Matters on KUHF. The topic was the state of Texas prisons. One of the guests was Ray Hill who hosts Execution Watch on KPFT and who used to host The Prison Show.

I've provided a link to the program but, unfortunately, the broadcast isn't broken down into sections.

The show contained a bit of a history lesson about the Texas prison system. Up until the last 30 years, Texas prisons used a building tender system to maintain discipline in the units. Prison officials would actually pick inmates to run the buildings on a daily basis. Predictably this led to greater violence and harsher conditions. That system was tossed out as a result of the Ruiz v. Estelle lawsuit that put Texas prisons under federal control for years.

What I found most interesting was the fact that the prison population has grown by nearly 900% over the past 30 years while the population of Texas has only doubled. What's wrong with this picture?

I think we can all agree that there are some folks behind bars that really need to be there. But that number is a whole lot less than you might think. The population explosion in our prisons went hand-in-hand with the failed war on drugs. Drug addicts don't need to be in prison. Prison therapy is not an effective method of helping folks cope with their addictive behavior.

Instead of spending roughly $18,000 a year to house an addict in prison, why don't we spend the money on community-based drug treatment programs? I've mentioned this before, but we need to change our model for handling drug addiction. We need to treat it as the public health problem that it is, not as a criminal problem.

We promote drug courts like they are some new panacea that will turn defendants clean with a little bit of tough love. The problem is that, no matter how much we candy it up, a drug court is still a criminal court; and criminal courts deal in acquittals and convictions. Criminal courts only function properly when there are adversarial parties arguing both sides of a case. Whenever we start to put prosecutors and defense lawyers on "teams" we are undermining the adversarial system and weakening the protections the Founding Fathers set out for criminal defendants.

Our jails and prisons are filled to the breaking point with folks whose only transgressions are an inability to get through the day without the use of illegal stimulants or depressants. Those folks don't need their liberty taken away. They need to be able to carry out their day-to-day lives with the addition of therapy provided by counselors who aren't interested in violating their probation and sending them to jail or prison.

Those folks don't need to be exposed to the culture of violence and depravity we find in our prisons. They shouldn't have to live with the fear of being sexually assaulted on a daily basis.

The system is clearly broken and is in dire need of fixing.

Wednesday, December 18, 2013

Democracy on hold

The United States shall guarantee to every State in this Union a Republican Form of Government... 
-- U.S. Constitution, Art. IV, Sec. IV
Last month the city of Detroit filed the largest municipal bankruptcy case in history. For years the city has been in a steady state of decline that began when the automakers pulled up stakes and settled in the suburbs. Over the years more and more employers have left the city, leaving the municipal tax base in shambles.

Property values plummeted. Tax revenues dried up. The city couldn't afford to provide police and fire services and schools had no money.

Into the fiscal mess stepped Michigan Governor Rick Snyder who decreed that the state had the right to appoint an emergency manager, Kevyn Orr, to get the city through the crisis since local government officials couldn't seem to get out of their own way. Residents were understandably upset about the governor, in essence, voiding their local elections and choosing someone he wanted to run the city.

As a result of the uproar, the emergency manager law was tossed out by an appeals court because the law nullified the very principle of democracy. White voters in the suburbs and rural areas then approved a constitutional amendment giving the governor the power to appoint emergency managers to run cities which were teetering on the edge of insolvency. Interestingly enough, the people affected by the law were mostly black.

The problems in Detroit have to do with an eroding industrial base and very bad investment choices by the city - choices brought to the city by the very law firm, Jones Day, where Mr. Orr worked.

And now, instead of looking toward those who made the decisions that brought Detroit to its knees, the emergency manager is looking toward retired city workers to pay for a mess they had no hand in creating. By taking the city into bankruptcy, Mr. Orr is seeking to have a federal court allow creditors to raid the city's pension fund.

As an aside, Mr. Orr is being paid a salary of $275,00 to take from the old, the poor and the working class and hand it over to banks and wealthy investors. He is also living in a $4200 a month condo on the state's dime.

The city made a promise to its employees that they would receive a pension upon retiring. Most of the pensions are fairly modest and provide just enough money for retirees to get by on. But because the retirees are unsecured creditors, they have no protection in bankruptcy court. Their pensions will be sacrificed so that wealthy bondholders and bankers can get paid.

Employee unions are also under attack as Mr. Orr seeks to void union contracts and drive wages down. Union employees didn't create the fiscal problems in Detroit - yet they, too, are being asked to pay the price so that wealthy investors can cut their losses.

In addition Mr. Orr is looking at selling the city's art collection and park lands. In other words, the commons will be sold so that investors can cash a check.

And all the while the people who live in Detroit have no say in what happens to them because the governor decided to take away their right to vote.

See also:

"Detroit accused of exaggerating $18bn debts in push for bankruptcy," The Guardian (11/20/2013)

Tuesday, December 17, 2013

The name says it all

The last time I checked my calendar we were running up on the final days of 2013. Yet there is a debate going on in Houston about whether Lamar High School should change its mascot/nickname.

Lamar High School sits on the outskirts of River Oaks - a very old money section of Houston. It would be a fair guess to assume that Lamar is the most affluent public high school inside the Loop.

The only problem is that Lamar's athletic teams are known as the Redskins. Yes, you read that right. And if you're doing a double-take about the fact that there's a debate going on about whether that nickname is appropriate, count yourself as someone who gets it.

Yes, there are folks in the city who find nothing wrong with the school's nickname. Interestingly enough, none of them are Native Americans.

The point of high school is to educate our youth and prepare them for the challenges of college or the "real world." As far as I know the stated purpose of school is not to perpetuate negative stereotypes of those who look different from us.

And yet there is a debate raging about whether the school should change its nickname.

It's one thing to have this debate about high school and college teams with nicknames like the Fighting Sioux, Indians, Chippewas, Utes, Warriors, etc. It's an entirely different matter to be having this debate about names that are clearly derogatory.

Of course in Houston that might be par for the course. After all, we have both a Robert E. Lee High School and a Jefferson Davis High School. Yet, somehow, there is no Abraham Lincoln High School. What message does it send our youth that our schools are named after white men who fought to preserve slavery?

There is no need for debate. The nickname should be changed. It should've been changed decades ago. We don't have schools with nicknames like Crackers, Darkies and Wetbacks. How many folks do you think would be outraged by those. Yet there are those who cling to some antiquated notion that Redskins is a term of honor bestowed on Native Americans.

I call bullshit on that.

It's time for the school board to show some leadership, make the change and get on with the business of educating our children.

Monday, December 16, 2013

Staying classy

The Mack Brown era at Texas is officially over. Regardless of the fact I think Mack should still be the coach of the Longhorns - after the BYU and Ole Miss losses it was all but a foregone conclusion that he was out after the season.

Through it all Mack showed far more class than any of his detractors showed. Just think about this for a second, one or more regents contacted Nicky Satan's agent last January while Mack was still under contract. And then someone felt the need to let the press know about it after the BYU loss.

During the entire season you've never heard Mack get cross with anyone when being asked about his status. His focus has been on the team. He never badmouthed anyone in public and never called out his detractors while the team was in the midst of their six game winning streak. Instead of being negative and bitter about what was going on around him, Mack Brown kept on his game face and pushed his team on one day at a time.

Mack made the decision to step down because he saw fractures developing in the football program and knew that if he came back for a 17th season there would be open rebellion. His decision allows time for supporters of the football team to come back together - at least until the selection is made.

There are a lot of folks who have forgotten the state of the football program when Mack came aboard. After Darrell Royal left after the 1976 season the Longhorns were in the mix for two national titles over the next 20+ seasons. In 1977 the Longhorns, ranked number one at the time, were routed by Notre Dame in the Cotton Bowl and, a few years later, lost to Georgia in the Cotton Bowl and blew their shot at (at least) a share of the national title. That was it until Mack Brown came to the Forty Acres.

The Fred Akers era ended in a nasty way. The team was irrelevant on the national stage. The years under David McWilliams were even worse. Then there was John Mackovic who, while introducing offensive innovations, never seemed to feel comfortable as the Texas coach.

Under Mack Brown the Longhorns won one national title, played for another (and who knows what might have been had Colt McCoy not been injured in the first quarter) and came within a game of playing for the title on two other occasions. No, two Big XII championships in 16 years wasn't satisfactory. But, Texas was relevant again.

The stadium was renovated and expanded to seat over 102, 000. The game day atmosphere in Austin is light-years ahead of what it was in the 1980's. UT's athletic department is the most profitable athletic department in the nation. The revenue from the Longhorn Network covers (or damn near covers) the cost of scholarships for non-revenue sports.

While the program has hit a rough skid, let's not forget that the Longhorns were but 30 minutes away from a conference title and a berth in the Fiesta Bowl this season - despite the horrid beginning of the season.

The road is littered with programs who forced out coaches the boosters didn't think were winning enough and found out, too late, that they made the wrong decision. For the sake of the program, I hope Texas didn't just make a similar mistake.

Thank you, Mack, for what you've done for the University of Texas.

See also:

"Happy trails to Mr. Football," Bryan Curtis, Grantland (12/16/13)

Friday, December 13, 2013

Free parking (no more)

Earlier this week I had to bid goodbye to a good friend. You see, for the past couple of months there was a parking meter - not too far from Minute Maid Park - that was particularly generous.

After it went haywire one morning and couldn't figure out the correct parking rate, someone went to adjust it. Afterward it worked like a dream - except for one little thing. Its internal clock was wrong. I first noticed it when I parked one morning and put $2.50 into the machine. When I got the receipt I had an additional two hours I hadn't paid for.

For those of y'all who don't have to deal with the parking meters in downtown Houston they are computerized and one machine can serve an entire block. The meter has an internal clock and calculates the time until your ticket expires based on the amount of money you pump into it. This particular meter's clock was set to Atlantic time -- that is, two hours later -- not Central time.

Now there are a couple of things y'all need to know about parking in downtown Houston. When I was in law school we could park two blocks down from the campus on the street for a dime an hour. We could park for up to 10 hours. I was taking night classes so I'd pop in a quarter every afternoon. It was the best deal in the city. And parking was free on the weekends.

Then Bill White decided the city needed to raise more revenue and he didn't feel like ticking off business leaders by cutting their tax breaks so he decided to start making folks pay to park downtown on Saturdays. Then they started putting in new parking meters and they raised the rates. It now costs about $1.50 an hour to park by the law school and you are limited to four hours in one spot.

So, most weekdays I would pull into an open spot, take out a dime, put it in the machine and, like magic, I had two hours and a couple of minutes of parking time. More importantly, I didn't have to worry about moving the car because there was no way to calculate how long I had been parked in the spot.

It was perfect.

It was so perfect I would stop by the meter on Saturday mornings taking my girls to the weekly writers' workshop at Discovery Green. I'd put in my dime and then drive down the street till we got by the park.

On Monday I drove downtown and parked in my usual spot but the parking meter wasn't working. I had to walk down the block and use another machine. And, worse yet, I actually had to pay for my two hours of parking. Wednesday afternoon I drove back downtown to visit a client in the Harris County Jail and parked in my usual spot. This time the machine was working - but, when I looked at the time, the internal clock had been fixed.

I have no idea how many people knew the machine was screwed up. I know I never told a soul. Until now.

Thursday, December 12, 2013

Has she no shame?

It takes a certain kind of person to want to be an elected official. It's not everyone who can beg and grovel for money and signatures on a daily basis. Most of us have a hard time looking someone in the eye and lying to their face - and then denying you lied when called on it.

More than that, a politician has to be absolutely shameless. It was brilliant how Mitt Romney slammed President Obama's health care plan after he had put (essentially) the same plan into work in Massachusetts. Listening to him explain how his was good and Obama's was bad just made your head spin.

Now we can welcome disgraced former state district judge Elizabeth Coker to the ranks of those who truly have no shame, no conscience and no ethics.

Fresh off resigning from the bench after being called out for sending an e-mail to a prosecutor listing some questions she might want to ask on cross-examination, Ms. Coker has entered the Republican primary for Polk County District Attorney against the incumbent, William Lee Hon.

What a delightful irony these two are running against each other as it was one of Mr. Hon's investigators who exposed Ms. Coker's unethical behavior and one of Mr. Hon's prosecutors who was the beneficiary of said e-mail.

As I've said before, it wasn't the first time Ms. Coker acted unethically. It was just the first time she got caught doing it. And, I guarantee you it wasn't the first time that one of Mr. Hon's prosecutors was on the receiving end of one of her e-mails. It's always intrigued me that it was one of the DA's investigators who blew the whistle on the whole operation.

Ms. Coker's decision to run against Mr. Hon is obviously Act II of the drama. Why Mr. Hon made the call to rat out the judge will make for an interesting back story in the campaign. Kaycee Jones, the prosecutor who received the messages, now sits on the bench of the 414th District Court and is facing a hearing before the State Bar's disciplinary committee for her role in the scandal.

Mr. Hon deserves as much damning as Ms. Coker for the incident since we should all realize that this had been going on for some time and that Mr. Hon was well aware of the practice.

Ms. Coker took a leave of absence from the bench in late October and her resignation became effective this past Friday. It's interesting that she had no compunction about continuing to accept a paycheck for work she wasn't doing because she couldn't follow the rules for being a judge. And what better qualifications could you want in a district attorney?

Ms. Coker doesn't think there's a problem with serving as a DA since the order from the State Commission on Judicial Conduct just states that she can't serve as a judge. However, local attorney Laura Prigmore wonders if that is the case since prosecutors are listed under the judicial branch in the State Constitution (in Article 5, Section 21) - which might explain why so many judges think they are prosecutors.

Wednesday, December 11, 2013

New toy for Wyoming police

Wyoming has a very low crime rate. It has one of the lowest murder rates in the country at 2.4 per 100,000 people. For comparison, the rate in Texas is 4.4 per 100,000 people.

But the relative absence of crime certainly didn't stand in the way of three sheriffs getting together and buying a Mine Resistant Ambush Protected armored vehicle. According to the Casper Star-Tribune, the MRAP is just another way in which law enforcement is keeping the public safe.
"Myself, Sheriff (Ken) Blackburn and Sheriff (Louis) Falgoust said, 'Let's get it,'" Rakness said. 
Big Horn County Sheriff's Office deputies traveled to Ft. Lewis, Wash., and drove it back. The cost of the vehicle as well as the cost to maintain it is going to be shared by the three counties. 
"That's the only cost we incurred," Rakness said. 
The reasoning behind getting the armored vehicle is because of the state being so isolated, especially in these three counties, he said. 
"We have to have it to nab the bad guys," Rakness said. "It's our hope we never have to use it. But it's free and we believe the taxpayers are getting some money back they invested in equipment."
Nabbing the bad guys. That's what it's all about. Sheriff Rakness brought up a shooting in Big Horn County from back in 1996 to justify the acquisition. I dare say that if you're having to go back 17 years to find an incident to justify the purchase of an armored vehicle you're reaching. Really reaching.

There are a couple of problems with police departments acquiring surplus military gear. First, the police aren't the military. The role of law enforcement is very different than the role of the military. Law enforcement is supposed to protect and serve the residents of a city, town or county while the job of the military is to kill people and destroy things. The police and residents aren't enemies. For the military, if you're not wearing the same uniform, you are the enemy. When police adopt military tactics they take this "us against them" attitude with them on the street. That attitude leads to routine events being escalated because someone didn't ask "how high?" when the officer told them to jump.

Second, these vehicles were designed with one purpose in mind - get troops safely into a place where they can kill anything that moves without fear of getting shot in return. I doubt you're going to find too many IED (improvised explosive devices) along the highway in Wyoming. One finger is probably one too many to count the number of mines that have been planted on the roads up there.

Third, once you've got your armored vehicle you have to use it to justify the expense of keeping it sitting around. I mean, if you're not going to use it, it's pretty damn silly to have out in the parking lot. Just having an MRAP around is going to encourage the police to find ways to use it. Military equipment has a funny way of finding itself being used in routine drug raids or when executing a search warrant.

Acquisitions of armored vehicles and surplus military gear shouldn't be fawned over by the press or the public. Such acquisitions should, instead, be questioned by all of us. As we continue the militarization of our police forces we create more and more of a siege mentality. This trend is dangerous and leads us further down the road toward a police state.

Tuesday, December 10, 2013

Class dismissed

Talk about your sophisticated ways of poisoning jury pools and public opinion. The Harris County District Attorney's Office found the perfect tool to make Harris County even more prosecution-friendly.

According to a PR memo released by the DA's office, Harris County prosecutors have been spreading propaganda "teaching" students at Strake Jesuit High School about criminal procedure over the past five weeks.

I'm sure there was plenty of talk about technicalities and court decisions that have hampered the ability of the police to do whatever the hell they want to do. Sure, there's a justification for gutting the Fourth Amendment's protections against unreasonable search and seizures - it's really important that we catch the bad guys and, well, sometimes that requires us to do some things that, under ordinary circumstances, we shouldn't do.

I doubt there was any mention of how Harris County systematically violates a defendant's right to counsel at crucial stages of a prosecution. I mean, why on earth would a defendant need to consult with an attorney before a magistrate judge fills in the blank on the arraignment form with the bond listed in the county's bond schedule?

I would guess that somehow the prosecutors assigned to the propaganda division forgot to inform the students about the abuses heaped on defendants from judges intent on clearing their dockets via mass plea. Oppressive and punitive bond conditions? Doesn't happen. Threatening to revoke the bonds of defendants who come to court without attorneys? A very rare occurrence.

And there is no need to talk about prosecutors hiding the sausage and ignoring Brady now that the Michael Morton Act is about to go into effect. We've got extensive checklists now so that the burden can be shifted onto defense attorneys when exculpatory evidence isn't handed over. I wonder if they broached the subject of junk science being deemed admissible if it was beneficial to the prosecution? Probably not.

If the purpose of this exercise had been to teach high school students about criminal procedure and how the criminal (in)justice system works, there should have been criminal defense lawyers involved. Allowing students to hear one side of the equation while acting like they're getting the whole story is a travesty and has no place in our education system.

Doing so allows the state to continue to equate constitutional protections with "technicalities." There is a reason behind the protections of the Third, Fourth, Fifth and Sixth Amendments. Ignoring the reason behind those protections is a disservice to our youth - and our society.

I'm certain that no one told the students that the defendant is entitled to a vigorous defense and that the job of the criminal defense lawyer is to hold the state to its burden of proof. It is the job of a defense attorney to ensure that his client's constitutional protections aren't violated. It is the job of the defense attorney to question every piece of evidence and to challenge the state to prove its case beyond all reasonable doubt. It is our job to stand beside people that no one else will and fight to defend their liberty.

We don't deal in technicalities. We deal in quanta of proof. When it comes down to it, the defense lawyer is the only person standing between his client and the power of the state.

H/T Grits for Breakfast

Monday, December 9, 2013

Robbing the poor and giving to the rich

The other day I wrote about Black Friday protests at Wal-Mart and the ways in which large corporations shift the burden of paying employees to taxpayers, today we'll take a look at how these same corporations take money from taxpayers to pay executives a king's ransom.

According to a recent report from the Institute of Policy Studies, thanks to changes in the tax code, corporations are able to deduct the cost of "performance-based pay" for executives. In the fast food industry the CEO's of the six biggest public companies averaged over $19 million dollars a year in compensation in 2011 and 2012 with slightly over $15 million of that based on performance. Taxpayers subsidized over $5 million per CEO per year thanks to the tax code.

At the same time front-line fast-food employees are receiving federal assistance to the tune of nearly $7 billion a year.

That's how free enterprise works in the United States. Corporations rely on government tax breaks and subsidies to fill their coffers with cash and distribute it to the highest executives while the people on the ground who do the actual work struggle to keep their heads above water.

But heaven forbid we raise the minimum wage to a level that workers can actually live on. We just can't do it. Where's the money going to come from? We can't possible take it from the suits in the corporate office or from shareholders collecting their rents. Instead we'll leave the workers to fend for themselves as in Victorian England.

So we continue to put the squeeze on the working poor. Meanwhile we have an unemployment rate that is still too high. We have anemic job growth. And we have little manufacturing left in this country.

In order to keep the economy afloat someone has to be able to buy the stuff we make and sell. It's that consumption that makes the wheels turn. But, as we increase the numbers of the working poor and concentrate more and more wealth at the very top of the ladder we are sowing the seeds of our own destruction.

Our economic model is unsustainable. The system almost collapsed of its own weight a few years ago. Only fistfuls of money from the government to the very companies that caused the meltdown kept it running. It was telling that our government was more than willing to back up the money truck to companies on the brink of ruin but that it couldn't spare a dime for the ordinary folks whose lives were cast asunder as the result of something they had no hand in.

Just remember that, at the end of the day, there are more workers than CEO's.

Friday, December 6, 2013

The quest for truth

Nelson Mandela died yesterday at the age of 95.

Mr. Mandela was the leader of the African National Congress and the first truly democratically elected president of the Republic of South Africa. In 1962 he was arrested and charged with terrorism for daring to challenge apartheid in South Africa. In 1964 he was sentenced to life in prison for the crime of advocating for equal rights.

He was elected president of South Africa in 1994 after the fall of the apartheid regime. Mr. Mandela could've been bitter. He could have sought revenge for the years of oppression he - and his followers - suffered.

But he wasn't.

Instead of looking back and seeking to punish those who made a mockery of equal rights, Mr. Mandela instituted a truth and reconciliation commission whose purpose was to document the atrocities committed during the apartheid regime so that history would have a record of what was done. Those who committed the acts of oppression were not punished. The purpose of the investigation was to establish who did what and when.

As a leader he showed far more patience than any other head of state. His goal was to move the nation forward without focusing on the past. While what happened over a 50 year period was important for the nation to understand, Mr. Mandela wanted to move past those injustices and create a society in which all were free to participate.

While the world is poorer for its loss, it is also vastly richer for Mr. Mandela's time on it.

Thursday, December 5, 2013

Is it time to bail on the bond system?

In Maryland whenever someone was arrested they would be brought before a judge who would determine if the defendant should be granted bail, should be held without bail or should be released on their promise to appear in court. This system functioned efficiently - primarily because it excluded lawyers.

At least that's how they used to do it before the Maryland Court of Appeals found the bond hearings to be unconstitutional because defendants were denied the assistance of counsel. Now the state is scrambling to find a new way to decide who gets to sit in jail awaiting trial and who gets to sleep in their own bed. Due to the cost of providing additional public defenders and prosecutors at bail hearings, the state is considering doing away with the entire bail bond system.

Of course the bondsmen are a powerful lobby who have a direct interest in the way this matter proceeds. And they have friends - trial lawyers - in the Maryland legislature who love the campaign contributions.

The purpose of bond has always been to assure a defendant shows up in court. The seriousness of the charge and whether the defendant is a danger to society are other factors that come into play - but the presumption is that every defendant is entitled to bail. The system has become one in which those who have the resources are able to bond out while those without money, who are charged with identical offenses, sit behind bars until their cases are disposed.

The ruling in Maryland interests me because we have a similar system here in Harris County. If you are arrested in Harris County you will be taken before a magistrate on video. The magistrate will admonish the defendant to keep his damn mouth shut and will then determine the bond amount. For virtually every case that amount is written on a sheet of paper - the county bond schedule.

The defendant isn't afforded the assistance of counsel at this hearing. There is no one to speak for him. The case is filed, the defendant is admonished and the judge looks down at a piece of paper to determine how much it'll cost the defendant to sleep in his own bed while his case is pending.

The Sixth Amendment has been interpreted to mean that a criminal defendant is entitled to the advice of counsel at any crucial stage in our criminal (in)justice system. But, in Harris County, that initial bond determination isn't considered a crucial stage in the process.

The benefactors are the county's bondsmen who exact their pound of flesh before sending the magic paper to the county jail. The other benefactors are the judges who can rely upon the bond system to coerce defendants behind bars to plead out their cases in order to go home. Just imagine the chaos if every criminal defendant had the ability to fight their case from outside the jail. No longer would the state have the added bonus of pretrial incarceration as a negotiating tool.

Of course we have other problems in Harris County - most stemming from attorneys and judges who don't bother to read Article 1, Section 11a of the Texas Constitution. That provision sets forth who can be denied bail and how that determination is to be made. According to the Constitution, a defendant may only be held without bail (on a non-capital case) if a hearing is held within seven days of his arrest to determine whether or not the state can deny bond. Very few people know this and very few attorneys ever litigate the matter. Ask a prosecutor about it and they'll just tell you the bond schedule says he doesn't get a bond.

In a sane world the notion that a pretrial hearing to determine whether a defendant is entitled to a bond is not a crucial stage in the process would be laughable. Here in Harris County it's called "doing business."

Wednesday, December 4, 2013

Update: One last murder for 2013

Yes, it probably sounds like a broken record by now, but the murder of Jerry Martin by the State of Texas accomplished nothing last night. Mr. Martin is dead - as is the prison guard he was convicted of killing. The execution changed nothing.

Mr. Murphy took responsibility for his actions prior to being pumped full of poison. He apologized to the family of the slain prison guard. But the death penalty has hardened us to the degree that Charles Canfield, the surviving spouse of Susan Canfield, wouldn't accept Mr. Murphy's apology.

No, I'm not trying to equate an apology to murder, but proponents of the death penalty claim it brings closure to the families of the victims of murder. It doesn't. Nothing brings closure to such a tragic loss. Mr. Canfield couldn't accept an apology from the man who killed his wife because he was convinced that the state-sponsored killing of Mr. Martin would bring an end to his loss.

It didn't. And it won't. Mr. Canfield realizes that. Despite the fact that Mr. Murphy is now dead, his wife isn't coming back. That is a loss that can never be replaced - no matter how many inmates we strap down to a gurney and pump lethal amounts of sedatives into their bodies.

Mr. Murphy wasn't a nice person. At the time of Ms. Canfield's murder, he was already serving 50 years for attempted capital murder. While he didn't kill Ms. Canfield intentionally, his actions during an attempted escape led to her death.

Be angry at Mr. Murphy. Be as angry at him as you wish. But to kill someone simply because you are angry at them doesn't solve any of society's problems. It serves to desensitize us to violence. It causes us to look the other way when confronted with the reality of life behind bars. We lock people in cages, treat them as less than human and then wonder aloud why they act like animals.

The punishment is being in prison: the time away from home and loved ones, the loss of freedom and choice. There is no societal gain exposing inmates to wanton violence from both guards and fellow inmates. There is no benefit to society in allowing inmates to be raped and sexually assaulted by other inmates.

Yet that's what we do. We get mad at someone for what they've done and then we turn our heads and ignore the savageries they face behind bars. That is, if we don't kill them first.

Tuesday, December 3, 2013

Scientific fraud in Massachusetts affects over 40,000 defendants

If ever more evidence was needed that scientific evidence in criminal cases needs to be scrutinized more than it is, we have the story of Annie Dookhan, a chemist with the state of Massachusetts who is heading off to prison for at least three years.

Ms. Dookhan was a real go-getter, running tests at three times the rate of her colleagues. The only problem is she wasn't running the tests. She tampered with evidence, forged signatures and lied about her qualifications as an expert. All in all, at least 40,000 cases have her fingerprints on them.

Auditors found that she was analyzing samples at a rate vastly superior to her fellow analysts but that didn't raise any red flags. Even after she was suspended after admitting she forged another analyst's initials on paper work she continued to testify in court. Finally, over a year after she was caught falsifying documents, she confessed to investigators that she "screwed up big time."

Prosecutors were asking for a sentence of between five and seven years but the judge handling the case, Carol S. Ball, thought a sentence of three to five years was more appropriate because Ms. Dookhan was, according to the judge, "a tragic and broken person undone by her own ambition."

That may be well and good but it doesn't even begin to address the people whose lives were turned upside down by Ms. Dookhan's actions. While the New York Times article takes the obligatory paragraphs to list how bad some of the defendants were, there is precious little space spent on the other victims of her crimes.

But the bigger question is whether or not we've learned our lesson on scientific evidence. It is ironic that in the civil courts, where money is the only issue, that scientific evidence is treated much more seriously than it is in the criminal courts. While civil trials often come down to a battle of the experts on the interpretation of medical or scientific evidence, in the criminal courthouse the judge usually waves off any challenge to the evidence claiming any questions go to the weight, not the admissibility, of the evidence.

So, instead of holding the state to its burden to prove that evidence was obtained and tested according to scientific protocols, the courts punt and let the jury make the decision. Judges would rather risk a few innocent folks getting convicted than do their jobs as gatekeepers of scientific evidence. It's more about judicial economy and not raising red flags that could affect other cases than it is about ensuring that the due process rights of criminal defendants are protected.

The problem is exacerbated by the fact that most judges come to the bench straight from the prosecutors' office.

It is time that scientific evidence in criminal trials was treated with the same degree of seriousness as it is in civil court. If this means the courts should provide more funding so that criminal defendants can afford to have evidence re-tested or to retain outside experts, then so be it. We should all be much more concerned with protecting the rights of a criminal defendant than in protecting the bottom line of an insurance company.

If we can't trust the outside auditors, if we can't trust the internal reviews, if we can't trust the analysts, then who can we trust when it comes to scientific evidence in the criminal courthouse?

Monday, December 2, 2013

Execution Watch: 12/3/2013

The State of Texas is preparing to murder for the last time in 2013...

JERRY MARTIN, while serving a 50-year term for attempted capital murder, he was condemned in connection with the 2007 death of a guard at the Wynne Unit when he and another prisoner attempted to escape. Martin was convicted of taking a guard's gun, stealing a truck and hitting a horse being ridden by a guard, who fell to her death. His execution date was set when he gave up his appeals. In the case of his co-defendant, John Falk, Jr., a mistrial was declared in January 2013. Prosecutors were seeking a retrial.

For more information on Mr. Martin, click here.

Unless a stay is issued, we'll broadcast live:
Tuesday, December 3, 2013, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...