Friday, February 28, 2014

Texas ban on same-sex marriage struck down

And now Texas is the latest to fall. On Wednesday, US District Judge Orlando Garcia, issued a ruling declaring Texas' ban on gay marriage to be unconstitutional.

From the decision (courtesy of The Washington Post):
"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote in his decision. "These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."
As I wrote over a year ago, once one state legalized gay marriage the bans in other states would be declared unconstitutional on equal protection grounds. The simple fact is that once one state says it's okay for same sex couples to get married every other state will have to (even if dragged kicking and screaming) recognize those marriages. If a man and woman get married in Texas and move to New Mexico, they are recognized as married in New Mexico. They are also recognized as being married when it comes to federal benefits and taxes.

And once a state recognizes same-sex marriage the same rules must apply. Just think about the absurdity of the argument that Texas will recognize an out-of-state marriage for a heterosexual couple but won't recognize an out-of-state marriage for a same-sex couple. That is discrimination on its face. Now maybe Texas doesn't have to make same-sex marriage legal in the state - but, under Equal Protection jurisprudence, Texas must recognize an out-of-state marriage or else come up with some rational explanation for why the state recognizes some marriages but not others.

Late last year in Utah a federal judge issued a similar ruling, prompting hundreds of gay couples to get married in the waning days of 2013. The US Supreme Court then decided to issue a stay on the court's order which has led to the state putting a halt to recognizing those couples who got married before the stay was issued. Which raises the issue of whether such a move by the state would amount to an ex post facto law.

In order to avoid a similar situation (or because he wanted to have it both ways), Judge Garcia immediately stayed his order pending an appeal by the state.

The ruling puts Texas Taliban gubernatorial candidate Greg Abbot in a potentially awkward situation as he will file an appeal of the ruling and argue to the 5th Circuit Court of Appeals that the state's ban on same-sex marriage doesn't violate anyone's rights under the Constitution. While that argument may very well appeal to certain segments of the Texas population, it's hardly a ringing endorsement for inclusion.

Gov. Rick Perry couldn't resist opening his mouth and sticking his foot in it arguing that since Texas voters overwhelmingly rejected same-sex marriage in a statewide vote that the courts were meddling where they shouldn't be. I guess that the fair-haired one has forgotten, or just doesn't realize, that just because a law is on the books and supported by a majority of folks, doesn't make it constitutional. He might want to review Brown v. Board of Education as a refresher.

Thursday, February 27, 2014

Under cover of night

In the early morning hours Wednesday, the state of Missouri strapped Michael Taylor down to a gurney, stuck a needle in his arm and killed him.

The drug the state used, pentobarbital, was acquired from a compounding pharmacy. It is not known where the state obtained the drug because the state has passed legislation to keep that information from the public.

We know that on at least four occasions Missouri corrections officials obtained the drug used to execute an inmate from an out-of-state pharmacy that was not licensed to distribute its drugs in Missouri. Selling prescription medications in Missouri without a state-issued license is a felony offense.

So, in caring out an execution (and in supposedly caring out the law), government officials conspired to violate state laws regarding the distribution of non-licensed prescription medications. At least this time the state waited until Mr. Taylor had exhausted all of his appeals before killing him.

In a statement released to the media, Missouri governor Jay Nixon said his thoughts and prayers were with the family of Mr. Taylor's victim as they remembered their daughter. He expressed no such thoughts to Mr. Taylor's family. Just as the Harrison's lost a loved one due to senseless violence, so did the Taylor family.

Now why is Missouri so concerned about keeping the identity of the pentobarbital supplier a secret? Strapping inmates down and killing them with a lethal overdose of a sedative is supposedly both legal and right. If so, why the shroud of secrecy? We do things under the cover of night and in secret because we know what we're doing isn't right. Now I understand that having your name out in the media as the pharmacy that supplied the state with execution drugs probably isn't the best publicity you can get -- but if you don't want the public to know what you're doing on the side, maybe you should think twice about your business practices.

As for the state, you are carrying out these executions in the name of the people, using taxpayer money and taxpayer-funded facilities. The people in whose name you are acting and who are providing you with the money to do so deserve to know what is being done in their name. The people of Missouri have a right to know who supplied the drug and how much it cost.

If no one is willing to stand up and disclose that information, then maybe state officials should rethink their use of the death penalty.

Wednesday, February 26, 2014

When the truth isn't so clear cut

The story line was that the Ukrainian government under President Viktor Yanukovych precipitated the situation in Kiev by choosing to strengthen his country's ties with Russia rather than aligning with the European Union. This decision supposedly caused so much consternation with the opposition parties that activists took over the streets to protest the decision.

When the demonstrations turned violent, President Yanukovych turned his security forces on their own countrymen and ordered them to fire. Dozens were killed and Yanukovych suddenly found himself in an untenable position.

President Obama called on Mr. Yanukovych to tell his security forces to stand down. Mr. Obama proclaimed that the United States stood behind those protesting for freedom and democracy. He said the country needed to move toward multi-party democracy and needed to open itself to the West.

Mr. Yanukovych fled the capital on Saturday just before the Parliament voted to remove him from office. The protesters were victorious. Democracy had triumphed. Ukraine could now turn its attention to the West.

But not so fast.

What was really going on in the Ukraine? What was really at stake?

Maybe a clue could be gathered from yesterday's announcement by the European Union that it would provide loans to the Ukrainian government to assist in economic and political reform. At the same time the EU warned Russia to stop meddling in the internal affairs of Ukraine.
VICTORIA NULAND: Good. So, I don’t think Klitsch should go into the government. I don’t think it’s necessary. I don’t think it’s a good idea.
GEOFFREY PYATT: Yeah. I mean, I guess, you think—in terms of him not going into the government, just let him sort of stay out and do his political homework and stuff. I’m just thinking, in terms of sort of the process moving ahead, we want to keep the moderate democrats together. The problem is going to be Tyahnybok and his guys. And, you know, I’m sure that’s part of what Yanukovych is calculating on all of this. I kind of—
VICTORIA NULAND: I think—I think Yats is the guy who’s got the economic experience, the governing experience. He’s the guy—you know, what he needs is Klitsch and Tyahnybok on the outside. He needs to be talking to them four times a week. You know, I just think Klitsch going in, he’s going to be at that level working for Yatsenyuk. It’s just not going to work.
And then there was US Assistant Secretary of State Victoria Nuland having the spotlight thrust on her for using some very colorful language in talking about the EU. But that episode only served to divert people's attention to what was really important on the leaked telephone conversation. On tape we had Ms. Nuland talking with the US ambassador to Ukraine, Geoffery Pyatt, about who the US was backing in the confrontation. That's right, while everyone focused on Ms. Nuland telling the EU to fuck off, everyone ignored the fact that US officials were working with the opposition to overthrow the democratically elected government of Viktor Yanukovych.

A similar situation is playing itself out in Venezuela where the US government is providing backing for the groups organizing street protests against the government of Nicholas Maduro. Venezuela has been on Washington's shit list ever since Hugo Chavez came to power and began attacking the fundamental and systemic inequality in the nation.

The language the US uses when discussing Venezuela in public mirrors that they use when talking about the situation in the Ukraine. In both cases our government claims to be on the side of democracy and human rights. Washington issued calls for both governments to order their security forces to stand down. Yet, in both cases, our government was working behind the scenes to effect the overthrow of democratically elected governments.

As an aside, my wife and I had a conversation about Venezuela the other day. She had a couple of Venezuelan students who both came from fairly wealthy families who had the money to send them to college in the United States. Neither of them had anything good to say about Hugo Chavez. They blamed him for the worsening economic situation in the country. My wife adopted their views on the situation. Thus she never contemplated the condition of the poor and the ways in which they had been exploited by international capital for decades. She also didn't understand that our government cut aid to Venezuela because our elected officials didn't like the idea of a socialist trying to make things better for the poor and working class. She also didn't understand that our government has been funding various opposition groups for years in an effort to destabilize the government down there.

In both the Ukraine and Venezuela the parties in power had enough support in the legislature to pass the laws they wanted to without any assistance from the opposition. Now I'll be the first to tell you that operating in that manner is a recipe for disaster as it marginalizes a great number of people (look at what happened in Egypt under the Muslim Brotherhood), but it certainly doesn't give the United States the right to meddle in their politics to try to put someone friendly in power. The irony is you don't have to leave this state to see such tactics demonstrated. The Texas Taliban, under Governor Rick Perry, has forced its views on women's rights, gay rights, health care and the environment down everyone's throats in the Lone Star State simply because they don't need Democratic support in the state legislature to pass anything.

And the notion that our government will go out on a limb to promote democracy and human rights is downright laughable. Where is the US outrage over the non-democratic governments of Saudi Arabia and Bahrain? Where is the outrage over the treatment of women? Last time I checked we're still providing military hardware to the Saudis and military assistance to the Bahrainis. For decades our government openly supported right-wing military dictatorships in South and Central America. No one in Washington ever raised a stink about the slaughter of innocents in East Timor at the hands of the Indonesian government.

The truth about what happened in Ukraine is a very murky concept indeed and it certainly doesn't follow the narrative we've been force fed over the past few weeks.

Tuesday, February 25, 2014

It ain't gonna fix itself

Doesn't there come a time in nearly every project where you stop and wonder if everything is working like it should? And if something isn't working, at some point do you stop and try to figure out why it isn't working?

If there's a pool of water under your refrigerator you don't just pile up a bunch of towels at the base and hope that resolves the problem. Wouldn't you move the fridge away from the wall to make certain that all the water connections are tight and that there isn't a leak in the water line? Common sense, right?

If the air conditioner stops working would you sit around in the sweltering heat and wonder aloud when it will miraculously start back up again? Or do you go up into the attic and check the overflow pan and the breakers? Or even call an A/C repairman? Again, it's just common sense.

So just what the hell is going on at the Harris County Criminal (In)justice Center? The lines have gotten longer. Folks are having to get downtown earlier and earlier to avoid having their bonds revoked for not showing up on time.

The vast majority of courts call the morning docket at 9:00 a.m. There are a few that call it at 8:30 and some that call it at 9:30 or so. But the main problem is the sheer number of folks who are required to sit on the wooden benches in the 37 criminal courts in Harris County (and that's not even counting the state jail felony court).

Do the judges have no clue what the outside of the building looks like in the morning? Do they have no grasp on the sheer arbitrariness of which elevators work from day-to-day?

I took the picture above yesterday at about 9:15 in the morning. Most of the folks in line (and the photo only shows one of the two lines) are running a very serious risk of losing their bonds and being taken back to jail for showing up late.

The system is broken, people. It's time to acknowledge that we have too many people trying to get into the courthouse on a daily basis. And most of those folks standing in line will go to court and sit on a wooden bench while their attorney resets their case.

There's no reason to require that defendant to show up to court. If the defense attorney and prosecutor reach an agreement for a plea, just set the case on the court's plea docket and bring the defendant back for the plea setting.

Just yesterday I was in court on a DWI case in which the police got a warrant and forced my client to submit to a blood draw. The case is three months old and the blood test results still haven't come in yet. But my client had to come to court yesterday just to sit around and wait. Why?

Why not schedule a defendant's second appearance some 90-120 days after the initial setting. Why make the defendant show up for meaningless court appearances? There's no need for my client to be there until we have the blood test results because the case is not going to plead out.

If that type of scheduling isn't up your alley, how about staggering docket times? Spread them out over the course of the morning. Doing so should allow the rush of folks trying to get into the courthouse ebb and flow. Of course such a plan, unless coupled with my first suggestion, would still require defendants to show up to court for meaningless court appearances.

Some have suggested adding some afternoon dockets for more routine matters. I have mixed feelings about this. I love the idea of afternoon dockets in places like Montgomery County because I don't have to rush in the morning to make the hour-long drive to the courthouse. I'm not so crazy about having to make return trips downtown after lunch.

So, come on judges, let's take a break and try to figure out what's wrong. But don't leave out the major stakeholders in the operation of the courthouse. Judges, prosecutors and defense attorneys need to sit down and discuss the various options and decide what makes the most sense for the most people. Something needs to change because what we're doing right now just isn't working.

Monday, February 24, 2014

Candid camera - North Texas edition

Electra, Texas is a small town on the highway outside of Wichita Falls. I'm sure it's a fine place to live - if you like living in small towns in rural north Texas just south of the Red River.

But for the out-of-towner who sent me this video clip from YouTube, it's a place that I'm sure he never wants to see again. It seems that he and his wife were driving through Electra at night when they pulled over to switch drivers. This immediately caught the attention to two police officers who proceeded to conduct a traffic stop for little discernible reason other than something funny might turn up.

The entire episode reminds me of what Scott Greenfield and Jeff Gamso talk about when they write of folks being arrested for not jumping when asked to do so by someone wearing a badge. The gentleman in this video clip had the audacity to (metaphorically) ask "Why?"

The drama only increases once we moved into the municipal courthouse where our star and the city prosecutor, criminal defense attorney Todd Greenwood, argue about whether or not he could view the video he requested from the city without the city attorney peeking over his shoulder. Mr. Greenwood got very testy when the defendant didn't do as he requested.

On top of the original charges being without merit, Mr. Greenwood talked both to the judge and the police chief about what else they could charge the defendant with. To the police chief's credit, he wasn't playing along.

And, while I'm giving out credit, Mr. Greenwood did redeem himself to a degree when he informed the defendant that things don't work in small towns like they do in the suburbs (not to mention the big city). And that is so very true.

Let's face it. Police officers take the stand and lie. They lie to support their arrest and to assist the prosecutor in obtaining convictions. And we all know that given the choice between taking the word of a guy wearing a badge and the person sitting next to the defense attorney, most jurors are going for the badge - regardless of what they tell you or the judge during voir dire. Without the video he obtained through a public information request, the defendant in our story would have been convicted - of that there is little doubt.

I'm not certain whether our hero grasped how close he came to being on the receiving end of a very harsh lesson of small town justice in Texas. If you still walk around with the delusion that you were spoon fed about the police when you were a child, this video should finally clear you of that thought.

Friday, February 21, 2014

On excessive fines for overweight trucks

I had a very interesting conversation with another attorney this morning in JP court while I was waiting to handle a traffic citation for a commercial truck driver. As of September 1 of last year, the fines for overweight tickets skyrocketed.

Thanks to State Rep. Allen Fletcher (R-Cypress), a new provision was added to the Texas Transportation Code. That provision, section 621.510 sets the fine for driving overweight to $1 per pound, meaning that a ticket for exceeding the weight limit by 10,000 pounds will cost the driver $10,000.

But, and this was the crux of our discussion this morning, is that legal?

First a little background. In Texas there are three levels of misdemeanor offenses - Class A, Class B and Class C. Class A misdemeanors, such as assault, have a maximum punishment of a year in the county jail and a fine of up to $4,000. A Class B misdemeanor, such as driving while intoxicated, has a maximum punishment of six months in the county jail and a fine of up to $2,000. A Class C misdemeanor has a maximum punishment of a $500 fine.

There are also five grades of felony offenses with fines maxing out at $10,000.

In Texas traffic offenses are classified as Class C misdemeanors. They are, therefore, criminal offenses for which the defendant is entitled to a jury trial. Overweight violations by commercial truck drivers are considered Class C misdemeanors.

And this brings us back to the question of whether it's legal to assess a $10,000 fine for a misdemeanor offense. While the Transportation Code spells out a laundry list of traffic offenses, the Penal Code spells out the maximum range of punishment.

There are certain criminal offenses listed in other legal codes and some of them have punishment provisions that are quite unique. But the punishment spelled out in those other codes must fall within the range of punishment for that particular class of offense in the Penal Code.

The recent changes to Section 621 of the Transportation Code don't. I can certainly understand why Rep. Fletcher decided to get tough on folks driving overweight trucks on our roads. Overweight trucks tear up the highways and cost us more money for road repairs. But Rep. Fletcher's bill is in direct violation of Section 12.23 of the Texas Penal Code.

The penalty assessed by Section 621.510 is also disproportionate given the seriousness of the offense. Assessing a fine for a traffic violation equal to the maximum fine that may be charge a person convicted of a felony is excessive and flies in the face of the Eighth Amendment's ban on cruel and unusual punishment.

The question, of course, is whether or not this matter will ever make it before an appeals court for a determination of whether the $1 a pound fine is legal. Given the steep fine and the clear illegality of that fine, it can only be a matter of time before the issue goes up on appeal.

Thursday, February 20, 2014

Staying on task

Earlier this week Amy Goodman was talking about the verdict in the trial of the man accused of killing Jordan Davis. She made a comment along the lines of there were a handful of jurors fighting for Jordan Davis during deliberations. The implication was that justice was not served in that case.

I must disagree with Ms. Goodman on this point. It wasn't the job of the twelve jurors to "fight" for justice for Jordan Davis. It was the job of the twelve men and women in the box to listen to the evidence presented and determine whether or not the government proved each and every element of its case beyond all reasonable doubt.

Jordan Davis wasn't on trial. He was the alleged victim. Michael Dunn, the man who shot Mr. Davis, wasn't on trial. What was on trial was the government's evidence in support of the charges.

If there were jurors in the jury room who were "fighting" for Jordan Davis, then those jurors were violating the oath they took when they were sworn in by the judge. They swore to uphold the law and to render a verdict - not a particular verdict, just a verdict.

I know there were some serious overtones and undertones in this case. I understand the vague similarities between the killing of Mr. Davis and the killing of Trayvon Martin made this case a lightning rod of sorts.

But whether or not Florida's "stand your ground" law is the underlying factor in both killings isn't the point of the trial. For those who think the stand your ground law is a bad idea and should be repealed, that is the function of the state legislature. Petition lawmakers. Vote for challengers to those who supported the stand your ground law. Picket the state capitol. But let's not confuse policy for justice.

You don't want jurors going back into the jury room and making policy decisions. Their job isn't to make the law - it's only to follow the law. Yes, jurors sometimes choose not to follow the law and render a verdict they think is fair. We call it jury nullification. It's discouraged, but it's an inherent part of allowing ordinary citizens to weigh the evidence and render a verdict.

But what Amy Goodman is talking about is not jury nullification. She's talking about ignoring the jury charge and ignoring the instructions given by the judge. She's talking about casting aside the presumption of innocence and shifting the burden of proof.

A jury cannot decide upon an outcome and work backwards to justify it. It's the very practice, carried out by appellate judges, that has resulted in the emasculation of the Fourth Amendment. It's that type of logic that has brought us the spectacle of police officers faxing in fill-in-the-blank search warrants to judges who volunteered to sign them so that we can strap down a motorist accused of a misdemeanor and jab a needle in their arm.

A juror's job, quite simply, is to answer one little, simple question -- did the government prove its case beyond all reasonable doubt. It's a yes-or-no question. Those folks in the box aren't there to send a message to anyone. They aren't there to support law enforcement or to support order in society. They aren't there to fight for the alleged victim. They aren't there to do anything but answer that one little question.

Wednesday, February 19, 2014

Like a junkie, Missouri is desperate for a fix

After rushing to execute a prisoner before his final appeal was heard, the State of Missouri now finds itself without a supplier for its lethal cocktail. It appears that the supplier of last resort for Missouri, The Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma, doesn't want the notoriety of supplying drugs for executions.

I guess they would also rather not address the issue of how supplying drugs for an execution doesn't violate the oath the pharmacists recited when they received their licenses.

Just a quick note, here is a link to The Apothecary Shoppe's website. You might want to hit the mute button so you don't have to listen to the young lady drone on and on about the pharmacy's services. Strange, though, that she doesn't mention they compound the drug used by Missouri to kill inmates.

Missouri now finds itself without any drugs to carry out their next scheduled execution on February 26 thanks to a lawsuit filed by Michael Taylor, the inmate scheduled to be killed. As a result of the lawsuit, The Apothecary Shoppe, while denying all allegations in the suit, has said it will no longer provide Missouri with pentobarbital.

As a refresher, a compounding pharmacy is a pharmacy that makes its own drugs. Pharmacies such as CVS, Walgreen's and other national chains just move pills from one container to another. The drugs supplied at "regular" pharmacies have all been subjected to testing from federal regulators and have been authorized by the Food and Drug Administration for certain applications. The drugs made at compounding pharmacies aren't subject to federal regulation. There is no way to determine that the drug is what the compounding pharmacy says it is. There is no way to determine how effectively it does what it is advertised to do.

Compounding pharmacies are supposed to be licensed and regulated by the states. But The Apothecary Shoppe isn't licensed in Missouri - it's licensed in Oklahoma. Under Missouri law, selling a drug without a license is a felony offense with a possible sentence of up to seven years in prison.

Click here for St. Louis Public Radio's investigation into Missouri's acquisition of pentobarbital.

And that creates a myriad of problems such as the possibly illegal transport of medications across state lines. According to George Lombardi, head of the Missouri Department of Corrections, he sent an employee to Tulsa with thousands of dollars in cash to purchase drugs to be used in an execution.

This is what we have become with the death penalty. States have enacted laws to shield the names of their drug suppliers from the public. Public employees are crossing state lines with thousands of dollars in cash to purchase drugs on what might appear to be a black market. States are using drugs that have never been tested and that aren't subject to federal regulation to murder inmates. So much for the rule of law.

Tuesday, February 18, 2014

Living with perpetual punishment

I had an interesting conversation with a neighbor yesterday.

The day started off with my wife taking the keys to both cars with her to work this morning. No problem, I thought at first. Then I realized I had court with one of my truck driver clients this morning. Luckily I was able to get my brother to give me a lift to the courthouse where we knocked out the case pretty quickly (why they couldn't just dismiss it after I told them I was having transportation issues I will never know - but that's another story for another day).

After I got back to the house I started planting seeds for the garden in my starter "greenhouse." Then someone knocked at the front door. I heard my mother-in-law tell the girls not to open the door unless they knew who it was.

My little one recognized the man as someone she had sold Girl Scout cookies to so she opened the door. Now I try never to answer the door unless it's a friend or the little old lady around the corner who sells homemade tamales but now I was stuck.

He wanted to talk to me (actually he saw the car and thought my wife was home) about something that he didn't want to say in front of the kids.Oh, this should be good, I thought.

It turns out he's new to the neighborhood. He just moved in to a huge McMansion up the street that takes up just about the entire lot and was complaining to my wife about the amount of money he'd have to spend to make the place more to his liking. I already didn't like him. You see, for the most part, there's nothing too fancy about our neighborhood. The houses are quite affordable and what I would call fairly "normal" sized.

There's also quite the controversy stirring over a huge plot of land at a major intersection just down the street from our house. A developer bought the land years ago with the plan to build a bunch of patio-style homes or town homes or whatever the hell you call them these days. But he ran into problems with drainage issues and with the deed restrictions that spelled out just how small a lot could be. He's pushing folks to change the by-laws so he can build more of these houses with a wall around them (since we have open ditches I don't think there's a need to build a moat as well).

As far as I'm concerned, he bought the land knowing what the minimum lot size was so he just needs to live with his decision. Besides, he's a developer (and from out-of-state at that) who has acted like a jerk and has no concern about anybody's welfare but his own.

My neighbor with the McMansion and fancy SUV that's never been off a paved road in its existence, of course, had nothing but sympathy for the poor man and the profits he was losing by not being able to do whatever the hell he wanted to do with the land without concern for anyone around him. But he was more upset at the board because, while doing research on the developer issue (and anyone who spends 10 hours on a beautiful day like we had on Sunday sitting behind a computer and looking at appraisal district records is seriously disturbed), he discovered that someone was using part of the four-plex next to his house as a sort-of halfway house (more like a way station) for sex offenders who had been released from prison.

Oh, now we hit the intersection of being a parent and being a criminal defense lawyer. On the one hand I sympathize with his plight and his desperation. On the other hand, maybe he should have done some research into the area he was buying into before he wrote the check. I can guarantee y'all that he chose to buy the McMansion out her as opposed to the one in Spring Valley or Memorial because the prices are a whole lot cheaper out here where it's not all white.

But the larger issue has to do with when has one paid his debt to society. The people of whom he spoke were convicted of sexual offenses (I don't know their names and I haven't the slightest clue as to what they were convicted of and, yes, I know I can look that up and find out if I wanted to). Since they are staying at this "facility" they served time in prison for their crimes. I am assuming that they were paroled out of prison with a condition that they spend time in a halfway-type house before going back to live on their own. I also know that they are required to register as sex offenders for at least ten years after their release from prison.

They have done their time. They served enough time behind bars and they demonstrated enough "rehabilitation" that the folks on the board of pardons and parole saw fit to let them walk out of prison. They obviously still have some time to serve that they will do as members of society.

At what point do we say enough is enough? How many pounds of flesh will we insist on seizing before we concede that they have a right to return to their lives? Sex crimes are nasty, I know. But if we, as a society, are so scared of those who commit them, then sentence them to longer terms. At some point we have got to stop punishing folks for what they've done.

If the person has not shown evidence of rehabilitation don't release them on parole. If the person is still regarded as a threat, don't release them on parole. But once that sentence has been served, then let him go in peace to pick up the pieces that remain of his life.

Monday, February 17, 2014

Judges puts a halt to executions in Arkansas

Arkansas is the latest state to run into legal problems with the method it uses to murder inmates. Last week a Pulaski County circuit judge enjoined the state from carrying out any more executions because the state's new lethal injection law, passed last year, gives too much discretion to the state Department of Corrections at the expense of the separation of powers doctrine.

Arkansas has not executed a prisoner since 2005 and its lethal injection statute was declared unconstitutional by the state Supreme Court in 2009. In early 2013 the state legislature passed a new death penalty statute. As a result of the new law, the state Supreme Court lifted the stays of execution and told prisoners who wished to challenge the law that they would have to go to a county circuit judge. In response inmates on death row filed suits challenging the legality of the new protocol.

The key challenge to the statute is the move from using fast-acting drugs to slow-acting drugs in the lethal cocktail due to the inability of the state to get its hands on the good stuff that manufacturers have stopped selling to states looking to use the drugs to murder inmates. The new law would give the Department of Corrections the authority to determine the lethal cocktail to be used. Inmates allege this violates the separation of powers doctrine in that it is the purview of the legislative branch to determine how an execution is to be carried out.

The ongoing litigation spotlights one of the main problems with the actual implementation of the death penalty. Who decides how an execution is to be carried out? The legislature passes a statute creating the death penalty. The legislature decides how an inmate is to be killed. A person is convicted in a court of law and sentenced to death based upon the model created by the legislature. Once the person is convicted he is handed over to the department of corrections (or whatever term in used in your state) to carry out the sentence. The department of corrections doesn't get to decide the method to be used - they are only responsible for housing the inmate, setting the execution date and carrying out the execution.

Now in some states executive agencies (such as the department of corrections) are given the power to draft and implement regulations to aid in the enforcement of the law. The breath test regulations created by the Department of Public Safety in Texas comes to mind. The DPS gets to choose what breath test machine will be used and what procedures must be followed by the operators and technicians - but the DPS doesn't get to choose what the legal limit is.

Is giving the authority to determine the lethal cocktail to be used akin to allowing the state police agency to determine which breath test machine to use or is it more like allowing the legislature to determine the mode of execution? The drugs used to murder inmates all have different properties and effects. Is a lethal one-drug overdose of a powerful sedative the same as a cocktail that includes an anesthetic, a paralytic and a drug that stops the heart the same mode of execution?

Friday, February 14, 2014

Fantasy baseball comes a-calling

With pitchers and catchers due to report for the Houston Astros tomorrow - in what can only be described as the uncut version of the Bataan death march - it seems like a fitting time to put out the call for the 2014 Criminal Defense Lawyers Invitational Fantasy Baseball League.

The league is a basic 5 x 5 league with an auto draft that we run through Yahoo! Just keep in mind, however, that we use OPS and not batting average as one of our metrics.

Last year's winner, Vik Vij, even switched sides during the season, moving out of the Galveston County DA's Office into an office that requires making money in order to pay those things we like to call bills. Welcome to the club, my friend.

I will be extending invitations to everyone who participated last season and will be more than happy to accept some new members to our little fraternity. If you're interested in playing, just shoot me an e-mail, send me a tweet (@PaulBKennedy) or leave a comment and I'll get the information out to you.

Thursday, February 13, 2014

At what point does the death penalty become "unusual?"

When the majority of death penalty sentences lead to reversal, the entire system itself must be called into question. - Gov. Jay Inslee
And so the death penalty continues on its slow boat to oblivion...

The State of Washington is the latest state to impose a moratorium on the death penalty. Gov. Jay Inslee announced on Tuesday that he is putting an end to state-sponsored murder of inmates due to his deep concerns about the legality of the death penalty.

His order does not, however, commute the sentences of anyone still on death row in Washington. It only prevents a death sentence from being imposed from this date forward. Any inmate whose death sentence case finds its way to the governor's desk will receive a reprieve.
"Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred." - Gov. Jay Inslee
Such a move, while hailed by death penalty opponents, is like trying to butter both sides of your toast. If the death penalty is unequally applied then it is unequally applied to those sitting on death row. If the governor's problem is that there is too much imperfection in our justice system to continue to kill inmates then that imperfection existed when the current denizens of death row were sentenced to die.

I suppose he felt he had to do it this way so he wouldn't be seen as being soft on crime. He made a point of telling the world how heinous the crimes of the current death row inmates were and that he was absolutely convinced of their guilt. Whatever.

Gov. Inslee's actions are a step in the right direction, but they don't go nearly far enough. In addition to the moratorium on new death sentences, the governor should have commuted the sentences of those on death row to life in prison.

Furthermore, the actions of Gov. Inslee are not binding on the next person to sit behind his desk. Unless he actually commutes a death sentence into a life sentence, the next governor could still authorize the execution.

Thus far 18 states and the District of Columbia have abolished the death penalty while seven states, including Washington and Oregon, have imposed moratoriums.

See also:

"Facts about the death penalty," Death Penalty Information Center

Wednesday, February 12, 2014

Look for that union label! Rah! Rah! Rah!

This morning in Chicago there will be a hearing before the National Labor Relations Board in which the NLRB will determine whether the football players at Northwestern University can form a union to represent their interests. The university is opposing the players' application on the grounds that college football players are students, not employees.

Over the past few years the business of college football has exploded. While it was always popular the money being thrown about by networks to broadcast college football games is at stratospheric levels. Despite the unprecedented television rights fees, only about 10% of the athletic departments at public universities in Division I turn a profit. The vast majority of schools tax all students to pay for the school's athletic teams.

But all the new money flowing into college athletics hasn't trickled down to the players. Yes, the players receive scholarships to attend school - and many are given access to a school that they would not have otherwise been able to attend - but the scholarships are held over their heads by the coach and school. Scholarships for football players are not handed out for a four or five-year period, they are handed out on a year-to-year basis. This means that the players' educations are subject to the whims of the coaching staff.

Football scholarships should be for at least five years to insure that every football player has the opportunity to obtain their degree after their playing days are over. Only a small minority of college football players will ever go on to earn a paycheck for playing football; for the rest, that college degree is the reward for their playing days.

The players spend at least as much time on the field as they do in class every week. They are used by the universities as marketing tools to attract new applicants and athletic donors. The schools sell uniforms with numbers - but not names - that correspond to the most popular players. Their work benefits the school. Yet the schools insist they are not employees.

College athletes should receive a stipend of some sort for the work they perform for the university. That stipend should be based upon the number of hours they spend at practice and on the field. At the very least they should be compensated at the same level students on work-study programs are paid. The schools should also be responsible for the future medical expenses for injuries the players suffered while playing college ball.

College football is a huge money-making machine and the players are the unpaid labor that makes it all possible. It's time they received a fair shake from these institutes of higher learning who are given the task of preparing our youth to be the leaders of tomorrow.

Tuesday, February 11, 2014

Two years awaiting trial; so much for the presumption of innocence

One way to quell dissent is to lock up the dissenters so that no one can listen to them.You can do this by overcharging on a criminal complaint, by asking for an unreasonable level of bail or both.

Cecily McMillan has been held behind bars by New York prosecutors for almost two years. Her trial on charges she assaulted a New York City police officer was to begin yesterday. After clearing procedural hurdles, and scheduling around court holidays, jury selection is scheduled to begin on Thursday and the government should present its case on Friday.

Ms. McMillan was charged with felony assault after she elbowed an officer beneath his eye at a Zuccotti Park protest back in March of 2012. Prosecutors claim Ms. McMillan deliberately elbowed the officer in the face as members of Occupy Wall Street fought with the police. Ms. McMillan claims that someone behind her grabbed her breast and she swung her elbow to protect herself. After her elbow made contact Ms. McMillan was viciously beaten by the police and arrested.

There was no need for Ms. McMillan to suffer the beating she did. She was one person. The officer wasn't seriously injured. Yet the beating commenced. And once it began there was no stopping it until the adrenaline ran out. What happened to Ms. McMillan on the street was far worse than what happened to the officer.

Now aside from the legal issues of what constitutes intentional or knowing action in this case, there is a bigger issue. The crime for which Ms. McMillan was charged is a Class D felony for which she faces a maximum sentence of seven years.

But let's keep in mind that Ms. McMillan is innocent unless proven otherwise beyond all reasonable doubt by the government. And for that reason alone she should not have spent the last 23 months confined to a cell. Her confinement was a means to coerce her into entering a plea that would resolve the case and leave her with a criminal record for the rest of her life.

Her confinement also shows the divide between the attitudes of prosecutors and the rest of society. For a prosecutor, a sentence is but a number that can be thrown around as if it were handed down by a god. There are no consequences for a prosecutor - he or she is going home every evening after work regardless of what happens.

For the rest of us, those numbers represent a tragedy. Someone's mother or father or daughter or son or sister or brother is going to be taken away. Arrangements must be made so that whoever is left on the outside can take care of everyone else. The situation is only magnified when judges and prosecutors play games with bail and lock up innocent folks for months or years while they await resolution of their cases.

Now there can be little doubt that the police in New York City (and elsewhere across the country) overreacted in their response to the Occupy! movement. There was no reason to clear parks by force when folks all over this country were organizing and exercising their constitutional right to assemble and petition the government for their grievances.

If things got out of hand that night at Zuccotti Park then we should be looking at the leadership of the New York City Police Department who instead of carrying out their supposed duty to protect and defend the residents of New York City, turned their weapons on the citizenry to clear a park at the behest of Wall Street interests.

Even if you believe the government's account of what happened that night, there is no excuse to lock up a young woman without a criminal record for two years. If bail were set at a level higher than that which she could afford to post, then it should have been lowered. After all, bail is not a punitive measure, it is merely a means of guaranteeing a defendant's appearance in court. Holding someone behind bars for two years serves only to make it more difficult to defend a case. It certainly doesn't advance the cause of justice.

Monday, February 10, 2014

Update: And sometimes right wins out

A few weeks ago I wrote about Ron Martin of Frisco, Texas who was arrested and charged with violating Frisco's sign ordinance after holding up a sign warning drivers to slow down before a speed trap.

On Wednesday the charges against Mr. Martin were dismissed because the prosecution could not point out to the court the provision of the ordinance that Mr. Martin allegedly violated.

The resolution of the case was proper given the fact that we all know that he was arrested not for holding up a sign but for not jumping when the officer told him to jump. The charge was nothing more than an attempted justification for a wrongful arrest. But where's the justice?

Mr. Martin was arrested. The case cost him time and money. He has been vindicated. But what about the officer who saw fit to arrest him on a trumped-up charge? The officer knew Mr. Martin hadn't done anything wrong. He knew there was no legal reason to arrest him and charge him with a criminal offense. That, however, didn't stop him.

What's to stop the next officer from doing the same thing?

Friday, February 7, 2014

Just couldn't wait any longer

What is a state intent on killing a prisoner with an untested drug supposed to do? If we're talking about the state of Missouri the answer would seem to be to strap the inmate down, stick a needle in his arm and inject him with a fatal overdose of a sedative before his appeals are exhausted.

On Wednesday night the state of Missouri murdered Herbert Smulls while his appeal was still pending before the U.S. Supreme Court. Mr. Smulls was seeking to force the state to disclose information regarding the compounded drug - and the pharmacy that made the drug - used to kill inmates. Four minutes after the execution, the Supreme Court denied Mr. Smulls' appeal.
A Missouri death row prisoner on the phone to his attorney discussing his appeal was hauled away in the middle of the call and put to death four minutes before the Supreme Court denied his final stay request.
So what's the hurry? If we are so concerned about this false notion of finality and justice, why are we carrying out executions before an inmate's appeals are exhausted? He's on death row. He's not going anywhere.

And it wasn't the first time this has happened. According to Mr. Smulls' attorneys, this is the third straight execution in Missouri in which an inmate has been killed at the hands of the state while an appeal was pending before a court.

What does the state of Missouri have to hide? Executions are carried out in the name of the people. They are carried out with the money provided by taxpayers. The people have a right to know what their government does in their name. The people of Missouri, whether on death row or not, have a right to know what compounded drug is being used to kill in their name. They have a right to know who is being paid with their tax dollars to make the drug. They have a right to know whether or not the drug does what it's supposed to do.

Everything surrounding the death penalty makes a mockery of our criminal (in)justice system. From the qualification of jurors to the jury instructions to the cavalier manner in which appeals are handled, everything is designed to grease the skids so that we can strap one prisoner down after another, stick a needle in their arm and kill them.

Thursday, February 6, 2014

Update: Texas executes wheelchair-bound woman

Last night the State of Texas murdered its 510th inmate since the US Supreme Court decided it was okay for states to kill inmates again. Suzanne Basso was the latest victim.

She was executed for the murder of a developmentally challenged man she allegedly lured to Texas with the promise of marriage. She and her associates savagely beat the man to death. When the police discovered the body it had been beaten beyond recognition. Her accomplices are still serving prison sentences for their roles.

The facts in Ms. Basso's case were horrific. There was no doubt as to what happened. The only possible question may have been who delivered the actual death blow.

In such a case the only thing left for the attorneys is to attempt to mitigate the damage as much as possible. When death is on the table that means using a mitigation specialist to gather up as much evidence as possible to give a jury a reason to spare the defendant's life. Medical and mental health records, school records, CPS records and interviews with those familiar with the defendant's upbringing.

When the state puts on evidence during the punishment phase of a trial that exposes the defendant as a sexual deviant who abused and mistreated her kids, the only hope is to show a jury that the conditions under which the defendant grew up were so bad that she never had a chance to have anything resembling a normal existence.

In Ms. Basso's case her attorneys, one of whom was Jim Leitner who carried the water for former District Attorney Pat Lykos, decided not to put on evidence of Ms. Basso's upbringing - which was anything but normal. The decision was made because her attorneys thought that the mitigation evidence they uncovered would only make Ms. Basso seem even less sympathetic to the jury given the testimony of her children about their mom's deviant sexual behavior.

After her conviction was upheld on direct appeal, Ms. Basso's habeas attorney, Galveston County solo Winston Cochran, pursued federal habeas relief on the grounds that Ms. Basso wasn't competent enough to be executed. Given the horrific facts, and the word of two psychiatrists called by the state, Mr. Cochran's claims were denied.

Ms. Basso was not a sympathetic character. The only people who fought for her life were her attorneys (and anti-death penalty activists). There were even folks who opposed the death penalty who had no objections to Ms. Basso getting the needle.

It's hard to argue that Ms. Basso didn't deserve to die. There's not much there on which to hang your hat. But these are the cases that must be fought the hardest if we want to one day see a world in which we don't allow the government to kill in our name.

What Ms. Basso did was indefensible. But strapping her to a gurney, sticking a needle in her arm and pumping her full of poison doesn't change what happened. It doesn't undo the past. It doesn't heal any wounds. No, there is very little (if any) sympathy out there for Ms. Basso, but she doesn't deserve t die at the hands of the state (and the medical professionals who showed their utter contempt for the oath they took upon becoming doctors or nurses).

We cannot allow the state to continue to exercise its illegitimate power to decide who lives and who dies. The death penalty distorts our criminal (in)justice system. It imposes unnecessary costs on our society. It serves to cheapen our respect for human life. It's barbaric and it's a relic from a past we should have long since outgrown.

The way we treat the most undesirable people in our society speaks volumes about the value we place on human life.

Wednesday, February 5, 2014

When throwing the bums out didn't make a difference

Just what is the best method of picking judges? Should our courts be at the mercy of the political crosswinds. Is picking judges based on party affiliation a good idea? Is it possible to isolate judges from politics? Is that even desirable?

This past weekend Houston criminal defense attorney, and television host, David Jones penned an op/ed piece in The Houston Chronicle about the folly of straight ticket voting for judges.

Up until the 1980's, if you wanted a seat at the table of Harris County politics, you had to run as a Democrat. Within that milieu you could find folks all across the political spectrum. There was no clear ideology for the party and many folks referred to themselves as "Yellow Dog Democrats" meaning they'd vote for a yellow dog if there was a D after its name on the ballot.

That all changed after Ronald Reagan's counter-revolution in 1980. Over the next few election cycles the Democrats largely disappeared from countywide seats and the Republicans took over. The battle for the bench moved across the hall from the Democratic primary to the Republican primary. And there we sat for more than two decades - the influx of suburbanites from up north providing a majority for the right.

But then something funny happened in 2008. Barack Obama had some serious coattails and the Democrats pulled off a near clean sweep of countywide seats - only a couple of Republicans kept their seats on the bench. Was this the beginning of a new era in Harris County? Would we see a change in the way ordinary folk were treated at 1201 Franklin?

The short answer was no.

As Mr. Jones pointed out, from July 2011 to July 2013, the number of defendants sitting behind bars waiting for trial increased by 7%. Now it must be pointed out that the midterm elections in 2010 did not work out so well for Democrats and the Republicans maintained their grip on all of the misdemeanor courts. President Obama's coattails weren't nearly so long in 2012 and there was a rough split (leaning toward the Republicans) in the felony court races. Still Mr. Jones' point is well taken - given the opportunity to make a difference and put an end to an oppressive bond structure in Harris County, the judges punted and the problem remains as bad today as it was then - if not worse.
 It is a systemic failure of our jurisprudence in this county that there has been no organized voice for the interests of the accused citizen. This missing component in our justice system has enabled Harris County judges with their bias favoring jail rather than justice to dangerously overcrowd our jail, contribute to the prison costs of state government, and install Harris County as a national leader in death sentences and executions.
And of course Mr. Jones is correct about this - however, as I have stated many times in the past, those who are denied bond or who face the oppressive bonding practices in this county don't make up a very big bloc of votes. That is why our Founding Fathers created a tri-partite government. The idea is that the courts will protect the rights of the unpopular. Of course what has happened instead is the courts have led the charge in shredding the very paper on which the Bill of Rights was written.

Oppressive bond conditions and practices coerce thousands of defendants to enter guilty pleas every day in order to get out of jail. Neither the judges, nor the prosecutors nor even some defense attorneys with their hands out stop to consider the consequences of such actions. Few dare to think about what a mockery it makes of our criminal (in)justice system.

Certainly none of the judges who have come into office over the past few election cycles have given it much thought. If they had then first-time non-violent (alleged) offenders would be released on personal bonds and defendants would have the assistance of counsel at probable cause hearings when bond amounts are supposed to be determined on a case-by-case basis.

It doesn't matter whether the judges are Republicans or Democrats, they know there aren't any votes to be gained by doing what's right. No one is going to shower them with campaign contributions if they speak out against the injustice of how we do things now.

Choosing our judges by popular vote probably isn't the best way to do things. It places judges at the whims of the public. But appointing them won't solve the problem either. At least with our current system we have the choice to throw out those judges we don't think are doing a good job every four years.

Tuesday, February 4, 2014

Execution Watch: 2/5/2014

On Wednesday Texas looks to execute a prisoner confined to a wheelchair...

SUZANNE BASSO, convicted along with five others in the 1998 beating death of a developmentally disabled man near Houston. A federal judge joined Texas' top criminal court Monday in refusing to stop the execution, rejecting evidence that the 59-year-old, wheelchair-bound woman suffers from mental incompetence that would make her execution unconstitutional. Basso would be the 14th woman executed in the United States and the 5th in Texas since the U.S. Supreme Court in 1976 allowed capital punishment to resume.

For more information about Ms. Basso's case, click here.

Unless a stay is issued, we'll broadcast live:
Wednesday, February 5, 2014, 6-7 PM Central Time
KPFT FM Houston 90.1 Online...

Monday, February 3, 2014

Judging the lawyers

On Saturday I had the privilege of being a judge at a high school mock trial competition in Houston with other defense attorneys and prosecutors. The matter was a civil trial on a defamation claim.

As I sat in the jury box and listened to the students I couldn't help but think like a lawyer. But, once I got past that hurdle I was able to appreciate the work the students put into their efforts. Each side had three attorneys who split up opening, closing and examination. Each team also provided three witnesses.

The same problem was presented every round - but for the second round everyone switched sides. This means each team had a total of six witnesses - three when they were the plaintiff and three when they were the defendant. It also means that each of the attorneys had to know their case inside and out because they would have to argue it from both sides.

Let me start off by saying that the students who were witnesses all did a fantastic job. While the attorneys had to draw up a list of questions and points for direct and cross, the witnesses had to fill in the details of the story. As you listened to them testify you could almost forget you were watching a mock trial competition.

As for the attorneys, I'm guessing that they were taught to use as much of their allotted time on examination as they could. It's the only thing that would account for the line of questions asked by the plaintiff to their second witness. Every time he opened his mouth it made the plaintiff's case worse and worse (not because the witness was doing a bad job - but precisely because he was doing his job very well). Having done this long enough I would have pulled the plug on his testimony very quickly.

Unfortunately the attorneys for the other side never did go for the jugular with that witness. From our perspective the plaintiff's case could have been killed once and for all had the attorneys driven home the point.

But for all the criticism we had of the defense team's performance during the plaintiff's case in chief - they shone when it came time to put on their case.

Judging a competition such as this can make you realize just how far you've come since you got your ticket punched by the state. After a while you learn that the quality of your questions is far more important that the quantity of questions. You learn that sometimes silence is the most effective tool at trial. But one thing that stood out for these teams was their preparation. And that's something that's just as important at trial as it is in a mock trial competition.

I'm sure I was stiff and wooden when I first started trying cases. I still get nervous standing up in front of the jury. I scripted my direct and cross way too much. But, just as these high school students will eventually learn - you can go in with the best game plan you can draw up, but once the case starts it's all about running with the ebb and flow.