Friday, January 31, 2014

Proxy war in Harris County?

Four years ago Chris Daniel won the race for Harris County District Clerk over the incumbent Loren Jackson. Under Mr. Jackson's leadership the District Clerk's Office moved out of the Stone Age and into something that resembled our modern times. Alas, Mr. Jackson won election to an unexpired term in 2008 on the coattails of Barack Obama (perhaps you've heard of him) and was swept out in the next election.

Mr. Daniel has moved forward with the changes Mr. Jackson made - but with a bit more of an eye on the publicity side. He cruises around town in his gas guzzling Hummer with campaign signs in the windows. Subtle is one characteristic no one would ever use to describe Mr. Daniel.

In all honesty I haven't been able to tell any difference in the way the office functions under Mr. Daniel than it did under Mr. Jackson - and, as a largely administrative office, that's just the way it should be. There have been some problems here and there but the move to all-electronic filing is getting there. Some changes haven't met with as much enthusiasm as others, but, all in all, he hasn't done a bad job.

In fact, during Mr. Daniel's time in office the number of folks reporting for jury duty has increased. While it's still pathetically low any improvement is a good thing.

But there are some in the Republican community who are upset with Mr. Daniel. Chief among them is the head wing nut in Harris County, State Senator Dan Patrick. Now I wish I could find a clip of Mr. Patrick painting himself blue for an Oilers' playoff game back in the 70's but since YouTube didn't exist back then those clips are rare to find.

The darling in Mr. Patrick's eye is his former employee, Court Koenning. Why exactly he's running for District Clerk isn't quite clear. There isn't exactly what I would call a groundswell of opposition to the way Mr. Daniel is running the office.

Even more curious is Mr. Koenning's website with endorsements from leading wing nuts in Harris County.

Sen. Patrick touts Mr. Koenning as a "conservative leader." State Rep. Patricia Harless says he will be "an outspoken advocate for conservatives at the courthouse." State Rep. Allen Fletcher champions his "conservative vision."

I am still trying to figure out what being a liberal, a conservative, a Marxist or a neo-fascist has to do with running the District Clerk's office. Your job as clerk is to make it as easy as possible for folks to file suits and for the courts to get the filings they need. Your job is to make the process of obtaining certified copies of filings as painless as possible. Your job is to send out jury summonses. That's about it.

One's politics shouldn't matter. Can you get the job done or not? That's the only question that needs to be answered.

Mr. Koenning's biggest issue seems to be the low turnout for jury duty. In 2010 turnout for jury duty was about 30%. Four years later that number is up to 34%. While that number is still pathetic, it is an improvement. And Chris Daniel does have it right when he says the way to improve turnout is to make it a more positive experience rather than trying to sanction those who fail to appear.

Mr. Koenning's idea is to allow potential jurors to check their status on-line. The only problem is that not everyone has internet access. Under such a system we will end up with juries disproportionately made up of higher income, better educated citizens. What now passes as a jury of one's peers will change to a jury of one's suburban peers. By focusing on these folks, Mr. Koenning's plan would increase the number of jurors more sympathetic to the prosecution.

A jury pool works best when it is made up of a broad cross-section of the community and not a bunch of folks with internet access who feel comfortable with technology.

While this is certainly no endorsement of Chris Daniel, it should serve as a warning about the creation of made-for-election issues. I would love to be a fly on the wall so I could figure out what's really going on behind the scenes with this race. My guess is it's being used as a battleground for a fight between the far right wing of the GOP led by Dan Patrick and the more moderate wing led by whoever leads the mythical moderate wing of the Republican Party in Texas.

Thursday, January 30, 2014

Book review - The Heart of Everything That Is: The Untold Story of Red Cloud, An American Legend

"The white man made me a lot of promises, and they only kept one. They promised to take my land, and they took it."  -- Red Cloud
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea.
 -- America the Beautiful
One element of US history that is often glossed over is the shameful treatment of  the native Americans by our government (and, by extension, us). We are taught that there was an inevitability that the young United States would expand its borders from one ocean to the other. And when we talk about this "manifest destiny" in those terms, the lives of those who were here long before us are rendered meaningless.

In The Heart of Everything That Is: The Untold Story of Red Cloud, An American Legend, Bob Drury and Tom Clavin explore the life and times of the great Sioux warrior, Red Cloud. The book is a fascinating look at the history of the Sioux Nation and its war with the United States - the only war up until Vietnam that the US ended up on the losing side.

The Sioux roamed the Upper Plains long before anyone contemplated crossing the Atlantic Ocean. They moved across the plains following the buffalo but the Lakota branch always considered the Black Hills, Paha Sapa, to be home.

In the early 1850's the US government turned its eye on the Great Plains. Settlers had begun trekking west across the Rockies and toward California. The Mormons had begun their pilgrimage to Utah. But the paths they took ran right through the middle of Sioux country.

The Sioux were a vicious warrior society. When fighting the Sioux it was preferable to die in battle than to be taken alive. Prisoners were taken back to the Sioux camps and tortured and mutilated. The European notion that there was a code of ethics in war was a very foreign concept.

Another foreign concept was the notion of being an honest negotiator. The US government repeatedly lied to the native Americans in treaty after treaty. Each time the US would come with a treaty they would promise the native Americans that they weren't out to take all their land. The US would promise to make annual payments to the native Americans for the land they ceded. These treaties only lasted as long as Congress wanted to pay the bills.

Every time the government came back to the table they demanded more land and made more outlandish promises no one ever intended to keep. The native Americans kept seeing their lands shrink and the buffalo herds thinned. After the Civil War ended, Red Cloud had had enough. Unlike other leaders, he was able to unite the Sioux diaspora and declare war on the white man.

Red Cloud saw the writing on the wall and realized that if the Sioux didn't take a stand that it wouldn't be long before there was no place left from them to stand.

Red Cloud's ability to unite the various wings of the Sioux Nation was remarkable. Even more remarkable was his skill as a battlefield technician. Unlike prior warriors, Red Cloud understood tactics and used them to his advantage. His ability to do so led to the massacre of US soldiers at Fort Kearney. That battle, and its aftermath, led the United States to the realization that it needed to sue for peace.

Of course the US ended up winning in the end because the government had no intention to live up to its end of the bargain. As a result of US policies during the 1850's and 1860's, native Americans were shuffled off to reservations and left with no resources to provide education or health care to their people. The legacy of that policy can still be seen today on any Indian reservation across the country.

The US negotiated in bad faith. The US stole their lands and killed off the buffalo. The US herded them off to reservations. Some things never change. Yet somehow, we still view the cowboys as the good guys.

Wednesday, January 29, 2014

States look to old methods of executing inmates

Just what is a state supposed to do when its precious supply of drugs for its prescribed lethal cocktail runs out? What if they can't persuade a pharmacist who has no ethics to produce the drugs for the execution?

Lawmakers across the country are being forced to answer those questions. And some of them have come up with the idea of bringing back their old, barbaric means of killing inmates. Those methods include the electric chair, hanging, the gas chamber and the firing squad.

It is a mark of our race to the bottom as a society that anyone in a position of power would even contemplate bringing back methods of killing that were cast into the ash heap of history decades ago. Of course few folks are going to stand up and denounce such efforts because those convicted of capital murder don't have a big fan section. However, the way we treat those that we despise reveals an awful lot about ourselves.

The use of lethal injection as a means of murdering inmates rose out of the Supreme Court's abolition of the death penalty in the 1970's. States looked for a way to kill that didn't violate the Eighth Amendment's prohibition on cruel and unusual punishment. Lethal injection was relatively tame and appeared to be a somewhat sterile method that wouldn't raise anyone's ire if used.

But then something unexpected happened - the European-based manufacturers of the drugs used to kill placed export controls on their products and refused to sell to any entity involved in executions. States scrambled to find substitute drugs and pharmacists willing to be accessories to murder in exchange for a fee.
At least two recent executions are also raising concerns about the drugs' effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson's final words were, "I feel my whole body burning."
The states that changed their protocols insisted that they were still human and that the inmate felt no pain during the process. Two executions this year have raised questions. In Oklahoma, Michael Lee Wilson's last words during his execution were that he could feel his body burning, Then, in Ohio, Dennis McGuire took almost 30 minutes to die and was visibly gasping for air during the process.

The new drug protocols were never tested for the purpose of killing people. The methods were instituted because someone swore up and down that the new drugs would work just as effectively as the old ones. No one knows if that's true. In states were compounding pharmacies are used to produce the drugs there are provisions in the law to keep the public from knowing where the drugs came from. The drugs are also not subject to any federal testing or regulation and so we have no idea whether they do what they are supposed to do in the manner in which they are supposed to do it.

More and more states have done away with their death penalties either because of the large number of exonerations that have taken place over the past decade or because no one was being sentenced to death. As each new state does away with its death penalty the process will become more and more unusual. As other states (primarily in the South) try to bring their gruesome tools of death back to life, the process will become more and more cruel.

And, lest anyone forget, violence against minorities and the powerless has long been a tool of social control in the South. There is a reason poverty rates are higher in the Deep South and minorities are disproportionately represented in prison. Your odds of getting the needle are still greatly enhanced south of the Mason-Dixon line if your skin is dark.

Attempts to bring back the old methods of execution are but another attempt at social control by a minority who sees their grip on power slipping.

Tuesday, January 28, 2014

Seeking to clear a 70 year old crime

George Stinney was 14 years old when he was electrocuted by the state of South Carolina after being convicted of murdering two young white girls.

After being arrested, George Stinney was taken from his parents and interrogated without having an attorney present. He was then tried and executed within three months of being arrested.

Last week supporters of George Stinney asked a South Carolina judge to order a new trial so that George Stinney's supporters could clear his name. The judge wasn't asked to rule on whether George was innocent or not, she was asked to decide if his due process rights were violated during the course of the trial.

There is very little, if any, evidence still around. Most of it, including Geoge's confession, was lost a long time ago.

According to newspaper accounts at the time, Geoge Stinney was too small to be strapped into the state's electric chair. The electrodes were too big for his diminutive frame. Yet nobody stood up to say it was wrong for the state to take the life of a teenager.

Supporters say they have new evidence - sworn statements from family members regarding George Swinney's whereabouts on the day in question  and the testimony of a pathologist who disagreed with the original findings.

But is that sufficient for a new trial to be granted?

A motion for new trial is filed upon the return of a guilty verdict from a jury. The motion would allege that the court committed some error of omission or commission that violated the defendant's federal or state constitutional rights or a statutory right. The best way to think of the motion is of a request by the defendant for the judge to correct an error. If the motion is denied - which it almost invariably is - the next step is to appeal the verdict.

Motions for new trial come with very strict guidelines. In Texas a defendant has 30 days from the date of entry of judgment to file a motion for new trial and notice of appeal. Once that 30 day window has closed, the conviction cannot be appealed. At that point the defendant's only option is to file a writ of habeas corpus and have an appellate court order a new trial.

So that would prevent a dilemma as I see it in George Swinney's case. The time for filing a motion for new trial, or for appealing the verdict, is long since passed. That would leave a writ of habeas corpus as the only relief available - but, since George Swinney is dead, there is no body to bring before the court.

I suppose you could argue that his being murdered by the state would constitute an illegal infringement upon his liberty - but is that sufficient to sustain the claim? Had he been alive at the time the writ was filed and died afterward I think you could make that argument. But in this case the petitioner was dead decades before the filing of any motions.

If George Swinney was innocent then the governor should exercise his power to pardon George Swinney. But regardless of whether or not George Swinney murdered those two young girls, there is no excuse for a state to imprison a 14 year-old, strap him to a chair and kill him.

I don't know whether George Swinney's supporters will be able to obtain any relief - but I do know that the very least his family deserves is an apology from the state for the shameful acts that were committed in its name back in 1944.

Monday, January 27, 2014

Passing along the costs of blood testing

As if the costs associated with a DWI arrest aren't high enough, prosecutors with the Harris County District Attorney's Office are working on a plan to charge defendants with the cost of drawing, storing and analyzing their blood samples. As the number of blood tests in DWI cases has skyrocketed in the past few years, area crime labs are being overwhelmed with the kits.

Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.

But why are there so many blood tests?

If you guessed "No Refusal Weekends" you are correct.

In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.

The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.

Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.

Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.

No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.

If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.

Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.

H/T Grits for Breakfast

Friday, January 24, 2014

Fiddling while Houston freezes

Here I sit at my wife's computer at 6:45 waiting to find out if I'm supposed to show up at the courthouse today. Last night temperatures dipped below freezing and it sleeted in Houston. Further north and east of the city there was snow.

92hHere’s what your world looks like this morning. Stay home if you can, folks! Embedded image permalink

All of the area school districts have shut down for the day. The city has told "non-essential" employees to stay home. Freeway overpasses and on-ramps are closed due to ice. The Fred Hartman Bridge over the Ship Channel has been closed. The local press has urged folks not to get out on the roads this morning.
92hRT : Seems the list of impacted roads is getting longer: avoid traveling if you can!
Jurors have been told to stay home today because of the treacherous conditions on the roads.
Please be advised that Jury Assembly for Harris County Courts has been cancelled for today, Friday, January 24, 2014.  Jurors summoned for duty today do not need to appear and do not need to reschedule. 
County Courthouses will be open.
Yet those in charge of the criminal courts have decided they will be open for business and will require those accused by the state of violating the law to appear.

Is there any decision that could more accurately show the utter contempt the judiciary in Harris County has for criminal defendants than that? Somewhere along the way those wearing the black robes seem to have forgotten what the presumption of innocence is (assuming they ever understood it in the first place).

Once again we have the courts making it crystal clear that they are more concerned with judicial efficiency and economy than they are with justice. Most of those required to be in court today will sit on the benches while their attorneys chat with the prosecutor and reset their court dates. In very few instances will the defendant's presence even be necessary.

Yet they will be required to risk their lives (and the lives of their children) to drive downtown, wait outside in the freezing rain and appear in court. Is that what it means to be tough on crime?

The times they are a-changing

I could start off with a rant about why taxpayers in Texas are being asked to pay for a security detail for Gov. Rick Perry while he rubs shoulders with the rich and powerful and the World Economic Forum in Davos, Switzerland. But I'm in a good mood so I won't sweat the Guv hanging out at the uber-wealthy's version of Woodstock.

And, speaking of Woodstock, Gov. Goodhair sprung an interesting surprise on reporters when asked about his views on the legalization of marijuana. While emphasizing his opposition to legalizing the weed, Gov. Perry did express his support for decriminalizing grass.

The Fair-Haired One has embraced the use of specialty drug courts as opposed to regular courts. Now I have made my opposition to drug courts well known and I'll repeat it here -- courts are for resolving legal issues, not for doling out medical treatment. Addiction is a public health issue, not a criminal issue; and until we treat it as such, we will continue to tread water.

Aside from his support of drug courts, for once I'm on board with Gov. Perry. There are far too many folks arrested and dragged into court for possession of small amounts of marijuana. Even worse are the far-ranging consequences for a conviction -- public housing residents can be evicted and college students will be deemed ineligible for federally-backed student loans.

Currently possession of less than 2 ounces of marijuana is a Class B misdemeanor carrying a maximum punishment of six months in jail. If Gov. Perry is serious about decriminalizing marijuana then we need to knock possession of less than 2 ounces to a Class C misdemeanor (the equivalent of a traffic ticket) which is a fine-only offense that doesn't appear on one's criminal record. Then we need to knock down each level of offense one step. In fact, we should seriously consider doing that on every drug possession offense right now.

Gov. Perry understands the economic cost of carrying out a draconian drug war. He sees that county jails are filling up with non-violent minor drug offenders. Now it's time to see if the rest of Perry's Republican posse is willing to fall in line and amend the drug laws in the next legislative session.

Now contrast Gov. Perry's position with that of Devon Anderson, the unelected Harris County District Attorney whose blowhard response to President Obama's comments about marijuana sounds a lot like the nonsense in Reefer Madness.
"Marijuana is creating deadly situations right here in Harris County. I welcome the President to come to Houston to review the same capital murder cases I did just last week that were the result of marijuana drug deals. Maybe then he will see that the most effective way to keep our law-abiding citizens safe is to obey all laws that our legislators put on the books at our state capitol. 
“I am acutely aware of the high price society pays for the misuse of alcohol. This is not a debate about whether alcohol or marijuana is more dangerous. The President’s comments notwithstanding, marijuana is illegal under the Texas penal code, and we vigorously prosecute drug possession and alcohol-related offenses in Harris County.”
But what else should we expect from Ms. Anderson? The budget for her office depends on the number of cases being filed. She has no time to worry about the consequences of prosecuting folks for possession of minor amounts of marijuana while she's out trying to convince folks to vote for her this fall.

After all, it's much easier to demagogue than make well-reasoned arguments.

Thursday, January 23, 2014

Update: Why let international law get in the way of an execution?

Edgar Tamayo had to be executed last night. The State of Texas could not wait any longer to strap him down to a gurney and pump a lethal overdose of a sedative produced by a compounding pharmacy in The Woodlands into his veins.

He was a murderer, you see. He shot and killed a police officer. He was a bad man. And letting him live any longer would be giving folks the message that... well I don't know what message it would have given them.

So we killed him.

After denying him his rights under the 1963 Vienna Convention on Consular Relations, that is. After thumbing our noses at the International Court of Justice, as well. Not that ignoring any edict from the International Court is news since the US just pretends it doesn't exist - unless it's going after someone we don't like.

Mr. Tamayo was arrested and charged with murder in 1994. Under the Vienna Convention he was to have been advised that he had the right to speak to representatives from the Mexican consulate. He wasn't. Mexican officials could have aided in putting together mitigation evidence that might have swayed a jury to sentence him to life behind bars. We'll never know, however, because the US Supreme Court decided that even though a treaty to which we are a signatory says something, it doesn't necessarily mean what it says.

Of course we're talking about the same august body that decided that foreign detainees on a US military installation in a third country have no habeas rights because they might have done something bad, or thought something bad or known someone who did something bad or had dark skin and an Arabic-sounding last name.

Just imagine, if you will, the outrage our government would convey if another country dared to execute an American citizen for a crime committed overseas without letting him or her speak to a consular official after being arrested. Our government wouldn't stand for such a thing. We do believe in the rule of law, after all.

But apparently that rule of law doesn't apply to those with dark skin who weren't born here and speak a foreign language.

Wednesday, January 22, 2014

When promoting traffic safety is against the law

Sure, the police set up speed traps in order to make the roads safer. Their goal is to encourage motorists not to exceed the speed limit. They accomplish this goal by making an example of some drivers in hopes that others are deterred.

But if that's the purpose, why is Ron Martin of Frisco, Texas, facing criminal charges?


It seems that back in October Mr. Martin stood in a median with a sign alerting oncoming motorists that there were police cars ahead. Naturally the first reaction of a driver in that situation is to slow down so he or she doesn't get tagged by radar or laser.

And if motorists approaching the speed trap are slowing down and not getting pulled over, shouldn't the police be happy because people are driving safer?

Apparently not.
"I observed a couple cars drive by traveling westbound waving at us,” the police officer wrote in Martin’s arrest report. “Mr. Martin was observed standing in the center median of the six-lane divided roadway ... holding a sign in his right hand up over his shoulders that read 'Police Ahead.'"
Mr. Martin was arrested last October and charged with holding a sign on public property. The Frisco sign ordinance says it's okay to hold a sign provided you're standing on private property.

According to the Frisco Code of Ordinances, the purpose of the sign ordinance is to provide
uniform standards for the erection and maintenance of signs. All signs in this chapter shall be erected and maintained in accordance with these standards. The general objectives of these standards are to promote health, safety, welfare, convenience and enjoyment of the public
Here are the provisions of the sign ordinance regarding human signs:
Human sign.
Time: No sign permit required. Human signs may be displayed from sunrise to sunset each and every continuing day.
Place: Human signs shall be located on private property or adjacent right-of-way where a sale, event, promotion, or the like is taking place. Human signs are not allowed in residential districts.
Manner: Human signs may not hold or carry wind devices, flags or balloons. Human signs shall only be persons who stand or walk on the ground on private property. Podiums, risers, stilts, vehicles, roofs, or other structures or devices shall not support a human sign. No more than one human sign per business location may be actively engaged per major thoroughfare. A person who wears or holds a human sign shall be over the age of 12 years old.

Here is the provision regarding so-called instructional or informational signs:
Instructional/informational sign.
Time: A sign permit is not required. No restrictions.
Place: No restrictions.
Manner: The maximum area of an instructional/informational sign is 16 square feet. (Refer to definition section for additional information.)

Based on the stated purpose of the ordinance and the types of signs referred to within the ordinance, Mr. Martin's argument that the ordinance doesn't apply to his sign because he isn't a business would appear to hold water. The provision under which he was charged even refers to signs promoting businesses.

The sign Mr. Martin was holding would seem to fall under the provision for instructional or informational signs which have no restrictions placed on them. His sign informed oncoming motorists that there was a speed trap ahead. By providing the warning, Mr. Martin was promoting safer driving which would benefit the community.

We all know the police didn't confront Mr. Martin because he was holding any old sign in the median. They came after him and handcuffed him because his sign warned oncoming motorists that they were down the road trying to make traffic stops. Those traffic stops generate ticket revenue. The tickets those stops produce is the only evidence that the officers have that they did anything during their shift.

Tuesday, January 21, 2014

Execution Watch: 1/22/2014

The killing machine takes aim at another inmate:

EDGAR TOMAYO. Convicted in the shooting death of Houston police officer Guy P. Gaddis. Officer Gaddis was flagged down outside a southwest Houston night club by a man Tamayo had robbed minutes earlier. Officer Gaddis, 24, arrested and handcuffed Tamayo and was transporting him to jail when Tamayo pulled a pistol that had gone unseen and shot the officer three times in the back of the head. The officer's patrol car ran off the road into a house at which time Tamayo kicked out a window and fled, still handcuffed. He was arrested several blocks away. Tamayo told investigators that he was angry with officer Gaddis because he wouldn't allow him to leave his keys with his wife before being transported to jail.

For more information about Mr. Tomayo's case, click here.

Unless a stay is issued, we'll broadcast live:
Wednesday, January 22, 2014, 6-7 PM Central Time
KPFT FM Houston 90.1 HD3 and Online... > Listen

Of course since KPFT is in the middle of a fundraising drive, who knows if the program will even be broadcast. I'm guessing they don't pick up too many pledges during Execution Watch

Monday, January 20, 2014

MLK Day 2014

Today we will hear endless tributes to Dr. Martin Luther King, Jr. Many of those tributes will come from people who opposed him at the time. We saw the same phenomenon after the death of Nelson Mandela. Even those who did their best to prop up the apartheid regime in South Africa waxed eloquently about Mr. Mandela's life and mission.

Many don't know that Dr. King was about more than civil rights and racial equality. He spoke out for justice for the working class and the poor. The night before he was assassinated he spoke to an audience of striking sanitation workers in Memphis, Tennessee. He also spoke out against the Vietnam War.

Dr. King understood how the various struggles were interconnected. He understood that the war in Vietnam was really a war against the poor and minorities at home. He could see the connection between oppression abroad and oppression at home.

Of course that analysis would show that Dr. King was far more radical than he has been given credit for. And, in our sanitized histories, such a view has no place. Our children are taught history as a series of episodes that have little or no connection with each other. We don't teach them to make connections; we don't encourage them to seek out parallels.The last thing our power structure wants is a bunch of folks questioning the very assumptions of the society we live in.

Dr. King saw how racism, classism, capitalism, imperialism and colonialism all worked hand-in-hand to keep the vast majority of the world's population in check. The more he spoke out about those connections and parallels, the more dangerous a person he became.

Here is Dr. King's 1967 speech calling for an end to the war in Vietnam.

Sunday, January 19, 2014

One last lap

As y'all read this I will be out running through the streets of Houston for the final time. When I cross the finish line I will have completed 15 Houston marathons and 30 marathons and ultras all together.

I'll probably keep running marathons after this - but I just won't participate in the Houston marathon anymore. The Houston race just isn't fun anymore. It used to be more of a party atmosphere but, with Chevron aboard as the title sponsor, the race has become more and more corporatized.

The race is so beholden to a corporation with a horrid reputation when it comes to environmental damage and human rights that in 2010 a team of runners sponsored by the Rainforest Action Network were kicked out of the pre-race Expo for speaking out against Chevron's record on human rights in Ecuador.

Once upon a time there was a marathon kick-off party at Memorial Park in early September. You could go to the park and register for the race in person. Now, with registration over the internet, the race is filled months and months in advance. Luckily since I have veteran status (having completed at least 10 races), I don't have to concern myself with the crowds registering on the interwebz. I just have to remember to sign up by November 1.

The addition of the half-marathon has made the race way too congested over the first nine or so miles. And what's the great feat about running 13.1 miles anyway? That's a distance I can do hungover on any Sunday morning.

My attention will now turn to Galveston, Seabrook and Huntsville. The races are smaller and less regimented. It's not a chore the register, pick up a packet and run those races. They're fun.

In the meantime, here's a look at Chevron's "dirty hands." Here's a little fact sheet on how Chevron has been complicit in violating the rights of indigenous peoples around the globe. Here's what the Rainforest Action Network has to say on the topic. Here's the report from the Corporate Research Project. And then there's Chevron's record on the environment.

And we're not even going to get started with the Aramco, the sponsor of the half-marathon.

Friday, January 17, 2014

Update: One life spared

Edgardo Cubas was scheduled to die last night for the 2002 rape and murder of a teenager in Houston. At the request of the Honduran embassy, a judge postponed Mr. Cubas' execution until May 29 in order for Mr. Cubas to undergo an examination to determine if he is competent enough to be murdered by the state.

Meanwhile, in Ohio, Dennis McGuire wasn't so lucky.

Mr. McGuire was also convicted and sentenced to die for a rape and murder. The only problem is that Ohio has been unable to obtain the necessary drugs to kill inmates due to restrictions on who the manufacturer will sell the drugs to. The solution in some states, such as Texas and Georgia, has been to use compounding pharmacies to produce the drugs - without the benefit of regulation. Ohio, on the other hand, opted for something different.

The State of Ohio decided that Mr. McGuire was a good test subject for their new two-drug execution protocol. Mr. McGuire became the first inmate murdered by a combination of midazolam, a sedative, and hydromorphone, an analgesic derived from morphine.

From the Los Angeles Times account of the execution:
McGuire was still for almost five minutes, then emitted a loud snort, as if snoring, and continued to make that sound over the next several minutes. He also soundlessly opened and shut his mouth several times as his stomach rose and fell. 
“Oh my God,” his daughter, Amber McGuire, said as she observed her father's final moments, the wire service reported. 
Bohnert, McGuire's attorney, said concerns about the manner of death had been confirmed by the sounds and the length of time it took for him to die.
“And more importantly, the people of the state of Ohio should be appalled at what was done here today in their names,” said Bohnert, who did not witness the execution.
No one knows what went on inside Mr. McGuire's body during that time. No one knows whether he suffered discomfort or pain. No one knows because no one has ever tested that drug combination.

And let's just stop and think about this for a little while. For fifteen minutes a roomful of people watched a man strapped down to a gurney not dying. The first drug in the cocktail is supposed to induce unconsciousness while the second drug is supposed to kill him like a drug overdose. Whatever was supposed to happen, however, didn't happen as it was supposed to. If that's not disturbing, I don't know what is.

I don't care what you think of the death penalty. I don't care how big a god complex you may have. You don't conduct medical experiments on human beings without their consent after being given all of the available information. As I wrote last week, arguing about the particular mode of execution is an exercise in futility. It is the imposition of the death penalty that is the problem.

The medical personnel who participated in the execution should all go before whatever panel in the State of Ohio oversees doctors and nurses. They should all be forced to explain how their role in the execution did not amount to a repudiation of the oath they took to do no harm. Whoever was in charge should also be forced to answer for his role in conducting medical experiments without having the informed consent of the test subject.

The death penalty causes folks to bend over backwards and do things they wouldn't ordinarily do in order to do the state's bidding. We have state officials defending premeditated murder. We have medical professionals rationalizing their role in killing people. We have judges who know damn well that innocent people get convicted. It's all an attempt to defend this notion that the state should have the right to decide who lives and who dies.

Thursday, January 16, 2014

Sleeping with the enemy

The war on drugs. You remember the war on drugs, don't you?

Drugs are bad. They must be eradicated. We must imprison every person with dark skin who uses, buys, delivers or sells drugs. Cocaine is the drug of the affluent, therefore we must increase sentences for those we catch with crack.

Of course, in the meantime we're going to remove most regulations regarding prescription medications so the Big Pharma can market its wares directly to the public. Hey, got a problem? Here's a pill.

Down in Mexico the failed strategies of Felipe Calderon resulted in the deaths of tens of thousands of drug cartel members, users, hangers-on and the unfortunate folks who got in the way. Sorry, it's a high price to pay, but here's a check for some cool new weapons.

Now comes word that the United States government - the very people who launched this failed campaign - had members of the Sinaloa drug cartel in Mexico on the payroll. Los federales, it turns out, was helping the Sinola cartel eliminate its competition.

Meanwhile, as high ranking members of the cartel get away with murder, our local jails and prisons are filled to the gills with drug addicts and low-level drug dealers. Oh, but we're supposed to welcome the creation of drug courts that function on the principle that defense attorneys who work for their clients serve only to gum up the works. If we can only co-opt them to be part of "the team" we can keep these folks under the thumb of the government.

But I digress.

The use of informants by law enforcement agencies isn't anything new. The practice is insidious. It also gives defense attorneys a target to take pot shots at in front of a jury.

In choosing to use an informant who is allowed (or encouraged) to break the law, the government is making a decision that certain crimes are more important than others and that certain lawbreakers are more worthy than others. When the police allow informants to break the law the police are abandoning their core mission.

The practice also calls into question the image of the prosecutor as a defender of society. It's a bit hard to hold yourself out as a paragon of virtue when you're turning your back as your witness is out there committing criminal acts. And if you're doing that for the sake of winning a conviction, what won't you do to obtain that same conviction?

The criminal (in)justice system isn't just a game. Those are real people sitting in the courtroom looking at the jury and wondering what fate awaits them.

And those were real people who were murdered in Mexico by the drug cartels. Those were real people that lost their lives because our government decided to cut a deal with the most vicious of the cartels in exchange for information on the others.

That's our government that has spent billions of dollars on a failed war on drugs over the past 30 years while it was partnering up with the leadership of a drug cartel in the 2000's.

If the allegations are true then the entire narrative of the Mexican drug war changes. Instead of the violence being escalated in response to actions taken by the Mexican government, the violence was escalated because one cartel had an ace up its sleeve.

There are those, the Washington Post included, who don't buy the allegations. It would be too unseemly for our government to be in bed with the vicious Sinaloa cartel. Really? What about our funding and encouragement of right-wing death squads in Honduras and El Salvador? What of our support for the Indonesian government after the massacres in East Timor? What about our continued support to the apartheid regime in South Africa?

I don't know how much I buy the allegations. On the one hand it seems so far out there that it's hard to imagine top officials in the FBI and DEA agreeing to do it. On the other hand our government has committed, and allowed others to commit, heinous acts over the years.

Wednesday, January 15, 2014

Execution Watch: 1/16/2014

The State of Texas is ringing in the new year with the first execution of 2014...

EDGARDO CUBAS. On January 19, 2002, in Harris County, Texas, Mr. Cubas, a Honduran immigrant, and his co-defendants, kidnapped a fifteen-year-old Hispanic female and took her to an open field where they sexually assaulted her and shot her in the head, resulting in her death.

Unless a stay is issued, we'll broadcast live:
Thursday, January 16, 2014, 6-7 PM Central Time
KPFT FM Houston 90.1 and Online...

Tuesday, January 14, 2014


Denise Pratt is running for re-election to the 311th Family District Court bench. Her tenure thus far has been, shall we say, interesting.

The latest incident involved the dismissal of some 260 cases (if not more) on December 30, 2013 for "want of prosecution." That's a term of art meaning that the petitioner in those cases failed to appear in court or get their spouse served with divorce papers.

The only problem is that, according to local attorney Greg Enos, Judge Pratt forgot to send notice to the parties that their cases were dismissed. Oops. It would also appear that no record of orders themselves could be found on the District Clerk's website. Double oops.

Judge Pratt and her people claim that the problems, if any, were the result of glitches in the District Clerk's e-filing software and that none of it was her fault.

Last year Judge Pratt faced allegations that she falsified court documents. She was accused of backdating orders. The backdated orders could have caused nightmares for the litigants involved. The judge was no-billed by a Harris County grand jury last December. She claimed vindication.

One thing that can't be denied is the overwhelming opinion of participants in the 2013 Houston Bar Association judicial evaluation that Judge Pratt is not qualified to sit on the bench.

When asked if Judge Pratt followed the law, 76% of attorneys said she didn't. Over 80% said she did not make her rulings in a timely manner. Almost 72% of respondents said she did not exhibit impartiality. Almost 83% said she wasted attorney's time. Over 78% said she neither worked hard nor was prepared. When asked to rate her performance on the bench, 22% said below average and almost 57% said she needed improvement.

But it wasn't all bad news, only 59% of respondents thought she wasn't courteous to those in her court.

And, as if there wasn't enough humor in the family courts, Judge Pratt sent out an e-mail to all attorneys in Harris County asking them to rate her well-qualified (and to contribute to her re-election campaign).

Dear Paul,
The 2014 Houston Bar Association’s Judicial Qualifications Poll has just been released. If you have been in the 311th Court since 2011, please take a moment to rate me WELL-QUALIFIED.
As Judge of the 311th Family District Court of Harris County, I have worked hard to deliver rulings that protect children and families.  With over 18 years of private practice in family law, as well as training in Drug/Alcohol Abuse, Domestic Violence, and Teen Suicide, I understand the issues that arise in the family Courts.  I also sit on the Texas Board of Social Workers Examiners, which provides me with background concerning mental and emotional health issues.  The Court of Appeals has affirmed ALL my efforts to protect the children of the 311th Court.  If you agree with the values that should be in the family law courts, I would be honored to receive your WELL-QUALIFIED ranking.

Additionally, please tell a friend about the great work the 311th Court has done to protect children; ask them to review my background and participate on my website:
Thank you for your support.
Denise Pratt
Judge, 311th Family District Court
Harris County

pd pol ad • Denise Pratt Campaign

There are things in life that take nerve - getting up to speak in front of strangers or climbing up on the back of a bull - but sending out an e-mail like this takes the cake for judicial chutzpah.

Monday, January 13, 2014

Limited means what I say it means - or something to that effect

Sometimes it's easy to forget that Gov. Rick Perry and his wingnut disciples claim to believe in limited government. As I've pointed out in the past, when Gov. Perry talks about limited government he's referring to government assistance and regulation for anyone who isn't a corporation or wealthy individual.

From the same folks who believe that deciding who can and who cannot get married, and from the same folks who believe that the state should have the power to decide who lives and dies comes the latest misadventure in limited government.

Leonard Pitts, Jr., of the Houston Chronicle, brings us up to date on the tragic circumstances enveloping Marlise Munoz and her family.
Marlise Muñoz was 33 when she died. 
She was at home when she collapsed from an apparent blood clot in her lungs. It was an hour or more before her husband, Erick, found her. He says doctors pronounced her brain dead, though John Peter Smith Hospital in Fort Worth, citing privacy concerns, has declined to confirm that diagnosis. 
It is, at any rate, nearly a month and a half since this happened, yet Marlise remains hooked up to life support. Her mother wants her removed. Her father wants her removed. Her husband wants her removed. He says his wife - like him, a paramedic - specifically said she never wanted to be kept alive by artificial means.
The hospital, however, ignored the family's wishes and has continued to keep Ms. Munoz on life support. Why, might you ask? It's because of a Texas law that prevents hospitals from taking a pregnant woman off life support. It turns out that Ms. Munoz was 14 weeks pregnant at the time.

Now I don't pretend to be an expert in medicine, but I know enough to understand that a 14-week old fetus cannot survive outside the womb.

There is no greater purpose served by keeping Ms. Munoz on life support and subjecting her family to torture of watching their loved one lie in a bed unresponsive with no prospect of ever living without being hooked up to a machine. The doctors know this. The hospital administrators know this. But no one is willing to do the right thing.

Let's think about this for a second. We, as a state, have told a family that we are going to keep their dead family member "alive" for the sole purpose of extracting a fetus from her at an undetermined time. Once that fetus is removed from her body the machines will be disconnected and she will finally be allowed to die. And the family will have to relive her death a second time. They must also cope with the fact that their loved one is being used so we can attempt to harvest a child from her body.

What is the fate of this child? How long will we continue to torture the family? Who will foot the bill if the fetus has suffered birth defects as a result of the mother's trauma?

I'm sorry, but we don't have a stake in this situation. The only person whose voice needs to be heard is Ms. Munoz' husband. He's the one who will have to raise the child after this is all over. The state, while requiring his dead wife to be hooked up to life support machines, will wash its hands of the matter once the baby is delivered. Any complications or birth defects will be the sole responsibility of the family -- even though they have already said they don't want this outcome.

Rick Perry wants limited government if we're talking about taxes or regulation or the ability of folks to carry weapons around with them at all times; but, when it comes to matters that affect a family - well, we can't go limiting the power of the state, can we?

Friday, January 10, 2014

Reforming sentencing laws

It's fairly axiomatic that legislatures generally play catch-up to society. Once there appears to be something of a groundswell around an issue, those men and women in the state and national capitals stick their fingers in the air, figure out where the money's coming from and raise the flag of the issue of the day.

Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.

The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.

Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.

So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.

The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.

The federally-protected right to a trial became an illusion.
[L]egal scholars like Erik Luna, a Washington and Lee University law professor who has written and testified extensively about mandatory minimum sentencing, also assert that the sentencing rules shift power from judges to prosecutors — an infringement on separation of powers doctrine. 
It's an argument George Will recently invoked: "The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the Constitutional right to a trial."
But now the bills have come due. Jails and prisons are overcrowded with addicts and other non-violent offenders serving ridiculously long sentences because of a failed drug war. Simple misdemeanor thefts are enhanced to long-term felonies because of prior convictions. No one but the private prison industry (and those receiving kickbacks on construction projects) have benefited from this arrangement. And here comes Congress riding to the rescue.
But while advocates such as Stewart, libertarian thinkers at the CATO Institute and a growing number of conservatives like columnist George Will are pushing for change, some drug prosecutors have urged caution. 
"The real power and efficacy of federal minimum mandatory sentences is our ability to hold them over certain peoples' heads in solving kingpin drug cases, or major murders," says Scott Burns, head of the National District Attorneys Association. 
Burns was among the witnesses who testified about mandatory minimums last fall before the Senate Judiciary Committee. The sentencing rules have been "an important tool" in driving down serious crime, Burns says, which over the past three decades has plummeted. 
He sees Congress' motivation as purely financial. 
"They're doing this because they are simply refusing to fund more federal prisons, period," says Burns, a former deputy director of National Drug Control Policy during the George W. Bush administration.
Of course the prosecutors are opposed to any changes in the way in which the federal courts operate. In their narrow world view, the only answer to a problem is to lock someone up for a long time and then toss him back on the street years later with little or no way to ever be a productive member of society. But what else would you expect - sentences are just numbers to a prosecutor. They have no meaning. No consequences.

Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.

Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.

Thursday, January 9, 2014

Invalidating the Fourth Amendment, Texas style

In Missouri v. McNeely, the US Supreme Court held that the natural dissipation of alcohol in blood is not in and of itself an exigent circumstance that does away with the need for a search warrant to draw blood. The Court did say, however, that it could be one of the factors considered when trying to determine whether there were exigent circumstances that could justify a warrantless blood draw.

In Texas if a person is arrested for driving while intoxicated and has two prior DWI convictions, the Transportation Code provides that the police may take a sample of his blood without a warrant.

And that's exactly what happened to Clayton Reeder in September of 2012. He swerved to avoid hitting a deer that had run out into the road and ended up in a ditch. A state trooper arrived on the scene to investigate the accident and decided that Mr. Reeder was intoxicated. Mr. Reeder was arrested and, since he had two prior DWI convictions, he was charged with a felony DWI.

He declined the offer to provide a blood sample at the hospital so, based on Section 724.012(b)(3)(B) of the Texas Transportation Code, the officer obtained a blood sample anyway. Naturally the alcohol concentration was above the legal limit.

At trial Mr. Reeder asked the court to suppress the results of the blood test on the grounds that the mandatory blood draw violated his Fourth Amendment protection against unreasonable search and seizure. The trial court wasn't so moved and denied his motion. Mr. Reeder was later convicted and sentenced to six years in prison.

On appeal to the Sixth Court of Appeals in Texarkana, in Reeder v. State, the question was whether or not the mandatory blood draw provision of the law violated the Fourth Amendment by requiring warrantless blood draws in all felony DWI cases regardless of whether exigent circumstances did or did not exist.

The court, however, had a different idea. Sidestepping completely the issue of whether or not there were exigent circumstances present in Mr. Reader's case, the judges decided that the Implied Consent law in Texas trumped any need for a warrant. The court reasoned that a search was constitutional if it was conducted with the consent of the suspect. Since Texas law states that all motorists are considered to have given their implied consent to providing a sample of their breath or blood if the officer had either reasonable suspicion to stop or probable cause to arrest for DWI, then the forced blood draw was "consensual."

In other words, a statute that threatens a motorist with legal sanctions for not voluntarily giving up evidence to be used against her, trumps a constitutional protection. The decision is yet another example of a court bending over backwards to affirm a conviction regardless of the rationale.

To claim that a statutory provision of the Transportation Code that is not explained to anyone applying for a driver's license trumps a constitutional protection against unreasonable search and seizure is either laughable on its face or deeply disturbing in its application. Either way it is yet another hole punched through the Fourth Amendment.

Wednesday, January 8, 2014


In its never-ending battle to coerce defendants into accepting plea offers, yesterday Harris County managed to shut down 10 of the 12 elevators in the Criminal (In)justice Center forcing hundreds of folks to stand outside in subfreezing temperatures.

Temperatures were in the low 20's this morning and the line to get into the courthouse stretched out over a block. There is absolutely no excuse to force citizens who are presumed innocent to stand outside in those conditions. The folks in charge of running the courthouse should be ashamed.

H/T Sarah Wood of the Harris County Public Defender's Office for the photo.

Tuesday, January 7, 2014

Too little, too late

On New Year's Eve 2013 Lynne Stewart, suffering from advanced breast cancer, was released from federal prison by Federal Judge John Koelti. As you may remember, Ms. Stewart represented the so-called blind cleric, Sheikh Omar Abdel-Rahman, who was charged with committing acts of terrorism.

Ms. Stewart ran afoul of the government when she passed on messages from her incarcerated client to the media. The government alleged that she acted as a courier for a terrorist group.A jury convicted her and a judge sentenced her to 28 months in federal prison. Ms. Stewart appealed the conviction.

After the conviction was upheld, the appellate court sent the case back down for resentencing in light of the court's belief that Ms. Stewart committed perjury during the original trial. The court, not being  too fond of Ms. Stewart's comment that she could do 28 months in federal prison standing on her head, upped her sentence to ten years in July 2010.

Between her conviction and re-sentencing Ms. Stewart was diagnosed with breast cancer.

Her health condition worsened while in prison and she was transferred to Carswell Federal Medical Center in Forth Worth, Texas

Her supporters immediately began petitioning for compassionate release so that Ms. Stewart wouldn't have to spend her final days behind bars. In June of last year her request was denied by the Federal Bureau of Prisons. Her husband never gave up and this past December federal prosecutors notified Judge Koelti that Ms. Stewart had only 18 months to live. They recommended that the judge grant Ms. Stewart compassionate release.

On New Year's Eve, Judge Koelti did the right thing and signed an order granting Ms. Stewart her release.

Ms. Stewart should never have been sentenced to ten years in prison. It is shameful that it took her imminent death to undo the wrong. Ms. Stewart did her time because she had the nerve to thumb her nose at the government. She had the guts to do what she thought was right for her client. Her client's right to effective counsel was curtailed by the government. Her First Amendment rights were violated by the government. Still she fought.

We deal with the mighty power of the state on a daily basis. We have to stand in front of the court and announce that we are going to do whatever we can do to gum up the works of the government's plea mill. Luckily most of us will never have to face prison for representing our clients.

See also:

"Dying lawyer Lynne Stewart's jubilant return home after winning compassionate release," Democracy Now! (1/2/2014)

Monday, January 6, 2014

Release the hounds

Too often objections to the death penalty are based on the method by which the state murders the inmate. That is the primary argument against the death penalty under our Eighth Amendment jurisprudence. It was because of these challenges that most states have now adopted lethal injection as their means of killing inmates.

As the method has become more "humane," the room to argue that the death penalty should be considered cruel narrows

But that argument misses the point entirely. The death penalty should be abolished, not because of the way in which it is carried out, but because the power to determine who dies is not a power that any government should wield. The death penalty is capricious in the manner in which it is carried out. When the driver of the car gets the needle while the man who pulled the trigger sits in prison for life, something is wrong.

With the number of exonerations over the past decade we should all be wary of the risk of murdering an innocent man. We know it's happened. And that is at least one time too many.

And so we come to the execution of Jang Song Thaek in North Korea. Who is Jang Song Thaek, you might ask. He was the uncle of North Korean dictator Kim Jong Un. If one is to believe press accounts, he groomed Kim Jong Un to take over the leadership of the country. But, somewhere along the line, he and his nephew got crosswise.

The end result was a show trial in which Jang was convicted of attempting to overthrow the state. The sentence was death - and the manner of death is almost unfathomable.

Jang and his associates were stripped naked and thrown into a cage with 120 hunting dogs that hadn't been fed for five days. The dogs ripped the men apart and ate them.

All the while Kim Jong Un sat and watched with party observers as the men were devoured.

But, as brutal and sadistic as the method of death may have been, the death sentence was worse. There was no adversarial proceeding. There were no rules of evidence. The verdict and sentence were determined before the trial ever began. The lives of six men were taken due to the whims of one man's mind.

At least in the United States we have (in theory) due process rights which allow a convicted man to challenge his conviction or sentence. We have a process in place by which an innocent man can bring forward evidence to challenge the basis of the conviction. But those rights are just reminders that our criminal (in)justice system doesn't get it right all the time.

We've built in safeguards because we know we'll get the wrong result from time to time. That is why the death penalty is wrong. We have no way to insure that we get the right result from every trial. Whether it be manufactured evidence, prosecutorial misconduct, bias from a judge, incompetence from the defense attorney or just bad luck, innocent men and women are convicted in this country.

And for that reason alone, the death penalty has no place in our jurisprudence.

Friday, January 3, 2014

Wheeling and dealing

Presumably once you buy a car and drive it off the lot it's your - particularly if you paid for the car in cash. But what if you want to turn around and sell it? What if you bought it for the sole purpose of shipping it overseas?

A car isn't an illegal device. It's not a controlled substance. It's a tool for getting from Point A to Point B -- maybe a bit bigger than the circular saw or the drill, but it's a tool nonetheless.

Yes, states require you to license the car so that they can track you down if something happens to the car or if someone breaks the law while driving your car. States will also tax the hell out of the car when it gets resold - which, when you stop to think about it, makes no sense. The original purchaser paid sales tax based on the purchase price of the car - yet if you sell it to someone else you have to go and give the state their "share" of the bounty.

Up in Dallas, Amanda Ford found out the hard way that, for los federales, a car isn't just another tool. While you could go down to Lowe's and pick up a new power tool and then send it overseas without a problem, don't try it with a new car.

Ms. Ford purchased a new Mercedes SUV with cash. She then drove the car off the lot to a transporter where it was packed into a shipping container and sent it off to China where it would fetch up to three times the price she paid. The car made it as far as New York before it was stopped and Ms. Ford arrested.

The government has accused her of being a "straw" purchaser of the car. But what interest does the government have in deciding who can and cannot own a vehicle? We're not talking about guns where people who can't legally own a firearm use someone else who has no such restrictions to buy the gun for them. We're not talking about using straw purchasers to commit mortgage fraud. We're talking about a transaction for a car.

It seems that only a car manufacturer can ship a brand new car overseas. But what if the car was no longer new? Ms. Ford drove it off the lot and, if you've ever paid attention, the minute that car leaves the lot it's no longer new and it depreciates by about 30%? Do you think the dealership would have refunded the purchase price if she came back and said she changed her mind?

Was there a clause in the purchase agreement that restricted what Ms. Ford could do with the car? Would such a clause, if it existed, even be enforceable?

Besides, is it even the concern of the US government who profits from the sale of a car? The last time I checked, Mercedes-Benz was a company based in Germany (but that makes some SUVs just outside Birmingham, Alabama).

No one was hurt in the transaction. It certainly isn't Ms. Ford's fault that Mercedes can't ship luxury cars to the supposedly communist nation of China. We're all supposed to be a bunch of free marketeers anyway, right? Why should the government impose a near monopoly on who can sell new cars overseas?

Could the car possibly be used by terrorists? Sure, I suppose it could. But our government provides guns, weapons, ammunition, fighters and bombers to nations with a long history of repressing the rights of their citizens as well as meddling in the affairs of other countries. In fact the US has supplied more violently repressive regimes around the world than anyone else - hell, we've even sent military advisors to help teach repressive regimes how to kill people more efficiently.

Where's the harm, Mr. Prosecutor?

Thursday, January 2, 2014

Mirror images

There is enough crime going on that we don't need the police creating crimes out of whole cloth to pad their stats. But that's exactly what the FBI did in 2012 when its informants committed some 5,939 crimes. I should probably point out that these were the crimes the FBI's informants were authorized to commit during the course of the year.

That marked an increase from the 5,658 times FBI informants broke the law in 2011.

Of course these figures don't include all of the fun that DEA and ATFE informants got to have on the government's dime since they choose not to publish that information.

I'm probably preaching to the choir, but if the police are breaking the law in order to arrest folks, then we have some serious questions we need to be asking. The job of the police is to protect and defend the citizenry. It's not to allow folks to commit crimes with their approval in order to catch someone else doing something they shouldn't be doing.

Yes, I get it. Police work can be like making sausage. Most of us probably don't want to know too many details of what goes on behind the scenes. It might make us question the bearings of our moral compasses. It might also make it that much harder to walk around with a holier than thou attitude.
Then there's that whole philosophical angle -- is a person really committing a crime if the criminal act is set up by the police and there is absolutely no chance that the act will be completed?

Wednesday, January 1, 2014

Blawging 101

My colleagues, and fellow blawgers, Mark Bennett and Scott Greenfield, have both written about this topic many times before, but you will never become a millionaire rock-star lawyer by penning a blawg.

If your goal in sitting down at the computer and typing away is to cram as many keyword rich terms in your writing as possible as a way of getting your website at the top of Google's front page, then please take your fingers off the keyboard and back away from the monitor.

It doesn't work that way. Most folks will see right through your game. People read blogs because they are interested in what the writer has to say or they are interested in a given topic. If you don't have something new or fresh to say, then just don't bother saying it.

The best blawgs out there aren't full of keyword rich search terms. They are full of good writing and interesting viewpoints. I want a blawg that will challenge me. I want a blawg that I can disagree with at times. I want to read something that makes me think and makes me want to dig deeper.

I want to read a post written by someone who enjoys the art of writing.

There are only so many times you can cram the same keywords into a post. There are only so many ways you can write the same dreck without repeating yourself - or worse, becoming a parody of yourself.

So please disregard the snake oil salesmen who promise you the moon if you'll write vapid blawg posts crammed with keywords and search terms. Please run from the ones who promise to supply content for your proposed blawg.

If you're going to create your own blawg, show off your knowledge of a little corner of the law, show a little flair and wit when commenting on the latest legal news, allow us all a little laugh now and then. Write because you want to write - not because someone advised you to do it.

Just don't waste our time with the same old shit.