Monday, March 31, 2014

Texas Supreme Court strikes a blow for government secrecy

As frequent contributor Lee pointed out in his comment to my posting about the court decision compelling the State of Texas to release the name of all pharmacies supplying its death drugs, the state Supreme Court obtained a ruling that (at least for now) keeps the names under wraps.

There were a couple of things that fascinated me about this story, however. The inmates who sued have a right to know who made the drugs the state plans on using to kill them and whether those drugs do what they are advertised to do. The only way to do that is to release the name of the compounding pharmacy so that the inmates' lawyers can look into things.

The original decision was made by State District Judge Susan Covington. The state then filed a writ of mandamus against Judge Covington that was denied by the Third Court of Appeals out of Austin. The state then filed the writ with the state's highest civil court and argued that releasing the names of the pharmacies would harm the owners of those pharmacies and make it more difficult for the state to acquire its drugs of death.

And, might I add, making it harder to acquire the drugs is the whole idea. If pharmacies know their names are going to be released to the public, it might just make them think twice before taking the state's money to be accessories to murder.

The Supreme Court ruled in the state's favor and stayed Judge Covington's order. But the more I thought about the situation, the more I questioned whether or not the ruling was legal.

The state argued that releasing the names of the pharmacies might expose the pharmacists who work there to violent acts of reprisal for their role in aiding the state's killing machine. The state argued that there had been credible threats when The Woodlands Compounding Pharmacy was named as the state's supplier earlier this year.

But even if the state's allegation is true, the harm would appear to be to the pharmacies, not to the state. There were no allegations that the representatives of the state were being threatened for their role in murdering inmates. The harm, if any, would be to the reputations of the pharmacies who decided to play along with the state. But the pharmacies aren't the ones who filed suit to prevent the release of their names.

Should the Supreme Court have even considered the matter in light of the fact that the state may not have had standing to file suit in this matter. The only possible harm to the state would be the reluctance of pharmacies to provide the death drugs - but is that enough harm to warrant the Supreme Court staying the ruling of an appeals court?

When the European suppliers cut off delivering pentobarbital due to philosophical issues with the death penalty the ability of states to kill inmates was impaired. But that was a business decision and the states had no recourse to the courts. If the names of the compounding pharmacies are released it may very well make it more difficult for the state to acquire the drugs, but that, too, would be a business decision.

The Supreme Court's ruling was wrong for any number of reasons. And so is the death penalty.

Friday, March 28, 2014

Update: Judge orders state to disclose supplier of death drugs

On the same day that the State of Texas murdered yet another inmate, a state District Judge ordered the Texas Department of Criminal Justice to release the name of the supplier of the latest batch of lethal drugs.

Anthony Doyle was strapped down and a lethal dose of pentobarbital procured from an as-of-yet undisclosed supplier was pumped into his veins. With no knowledge of where the drug came from and who manufactured it, there is no way to know whether or not the drug was what it was purported to be. There is no way to know whether it worked as advertised.

The state argued during a hearing earlier in the day that the identities of drug suppliers should be kept confidential because of alleged threats made to suppliers of lethal drugs in Texas and in other states. Last year's supplier, a compounding pharmacy in The Woodlands, decided not to supply the state with pentobarbital after a spate of bad publicity and alleged threats. State officials are worried that should the name of the supplier be made public that the pool of available suppliers would dry up due to bad publicity and threats.

To which I say, so what? No one is forcing a compounding pharmacy to become complicit with state-sponsored murder. That is a business decision made by the owners of the pharmacies. But if they are willing to prostitute themselves for the public's money, then they need to act like big boys and take their lumps in the media. Not only does the public have a right to know what their money is being spent on, the men and women on death row have a right to know what's being pumped into their veins and who's supplying it.

There is a reason for the negative reaction of the public when the identity of one of these compounding pharmacies is made public. Support for the death penalty is waning. Now there are still way too many folks stuck back in the Middle Ages when it comes to their notions of how the criminal (in)justice system should work, but more and more people are turning against the death penalty in light of the number of exonerations of death row inmates we've seen over the last few years.

We like to think our criminal (in)justice system is the best in the world (or at the least worst), but there is no way to ensure that an innocent man isn't convicted. If you've ever sat through voir dire you know that prosecutors and judges love to tell prospective jurors that proof beyond a reasonable doubt isn't nearly as high a burden as we'd like to think it is. They both do all they can to minimize the importance of the burden of proof.

And, thanks to this relaxed attitude there are innocent men and women in prison. There are innocent men and women on the nation's death rows. There has been at least one innocent man, Cameron Willingham, executed in Texas.

Innocent men and women can be released from behind bars - although in many cases decades have been thrown away because of prosecutorial misconduct and jurors who just didn't give a damn. But you can't release an innocent man who's been executed. That is the ultimate finality.

Since we can't guarantee that an innocent man won't be convicted, we need to take a long, hard look at our obsession with killing inmates. One innocent man who loses his life at the hands of the state is one too many. Judges, attorneys and juries are all flawed. No one should face death in such a system.

Thursday, March 27, 2014

The gospel of the corporate church

On Tuesday the Supreme Court heard oral arguments in the latest challenge to President Obama's tragically flawed Affordable Care Act. The antagonist this time was Hobby Lobby, the chain of craft stores, who challenged the law's mandate that employers provide contraceptive coverage for their employees.

To set the stage for yesterday's challenge, the Obama administration exempted churches and faith-based non-profits from the contraceptive mandate. That fight opened the door for for-profit companies to try to avoid the mandate.

Hobby Lobby is a closely-held corporation whose main owners are over-the-top superstitious devoutly religious. They are opposed to abortion and believe that the IUD and the so-called morning after pill are abortions by a different name. They sought to challenge the mandate on the grounds of religious freedom.

Now, before we go any further, I find it quite interesting that the first justification any group seeking to limit the rights of others is religion. That was the justification for the proposed law in Arizona that would give business owners the right to refuse to serve gays and lesbians. You see it wasn't because there are a bunch of bigots living in the desert, it's because they are all such devout Christians that they feel the need to discriminate against those who don't believe as they do.

Hobby Lobby's argument is that the law infringes upon the religious freedom of the corporation. Nevermind the fact that if Hobby Lobby had its way it would be forcing the religious beliefs of its owners on its employees. Apparently that's perfectly acceptable for the bible-thumpers.

There are three points that stick out in those arguments. The first is that religion serves primarily to divide people. Sure, we're fed the line that religion brings us all together but that belief couldn't be farther from the truth. Religion creates an us-against-them dynamic everywhere it's practiced. Christians engage in holy wars against Muslims. Muslims and Jews fight over miles and miles of sand. Catholics and Protestants argue about who's right and who's wrong. And bigots hold their bibles high in the air and argue in favor of segregation, racism, intolerance and prejudice. Oh, and pass the plate while you're at it.

The second point is the notion that corporations are people. Yes, the Supreme Court held in a 19th century case that a corporation is an artificial person for legal purposes. That ruling allows corporations to sue, and be sued, and allows the government to tax their profits. But corporations can't vote (though it is permissible after the Citizens United case for corporations to buy elections). And, I would argue, since a corporation is business structure in which multiple shareholders own the company and share in the decision-making and the profit-taking, and not a person, it is impossible for a corporation to be superstitious religious. Therefore, since a corporation is not a corporeal being capable of having beliefs, a corporation has no First Amendment right to freedom of religion.

My final point is this case, and the others that will follow, point out the reason the ACA is doomed to failure. The use of private employers and insurance companies as delivery devices for health care coverage is an idea that will never provide health care coverage for everyone. Health care is a human right and should not be conditioned upon one's ability to get a job or pay an insurance company for coverage. The decision to use that model will continue to fuel lawsuits against various portions of the law for years to come. Access to health care should have been severed from employers and insurance companies.

The only way to guarantee universal coverage is to eliminate the profit motive from the delivery system. As it stands right now, your health care options are dictated by bean counters sitting in the corporate suites of the health insurance companies and for-profit hospitals. Those decisions have everything to do with profits and nothing to do with your health.

Wednesday, March 26, 2014

Execution Watch: 3/27/2014

On Thursday Texas is set to kill again...

ANTHONY DOYLE. Mr. Doyle was convicted of beating to death a doughnut delivery woman in suburban Dallas when he was 18 years old. The 5th U.S. Circuit Court of Appeals turned down his appeal in July, rejecting arguments that his confession was involuntary, his legal help at trial was deficient, and his sentence was unconstitutional.

Unless a stay is issued, we'll broadcast live:
Thursday, March 27, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...

Tuesday, March 25, 2014

Practical realities

Overheard in an undisclosed courthouse located somewhere on the outer edge of civilization...

First attorney: Y'all know who Grover Norquist is? He's that conservative guy who makes candidates sign a pledge that they'll never raise taxes. I heard him on the radio say he was in favor of legalizing marijuana.

Second attorney: Just take a look at how much money Colorado's made with it. Make it legal and tax the hell out of it.

Third attorney: It's never made sense that liquor's legal but marijuana isn't. But I don't want to see it legal - I've got three kids I'm putting through college.

Monday, March 24, 2014

Jim Crane's secrets to successfully running a baseball team (into the ground)

Well, as we get nearer and nearer to the real Opening Day in Cincinnati, it's probably about time we took a little time to look at the prospects of our beloved Houston Disastros. The club is coming off an unbelievable three-year run of 100+ losses and looking to make it four-in-a-row.

But where to begin? First we have Jim Crane dealing with the grease fire that is the sports network the Astros set up with the Rockets and Comcast. The teams got together to create their own regional sports network because they thought the rights fees Fox was paying wasn't what the market would bear.

The Rockets have been a mediocre team for years and, while popular, the asking price for cable and satellite companies to carry Rockets' games was, shall we say, on the pricey side. As for the Astros - let's just say when you've had back-to-back 100+ loss seasons you aren't exactly bargaining from the best position.

The sports network is now in bankruptcy and Jim Crane is attempting to get the Astros out from under the wreckage while the Rockets are hoping a carriage deal will be worked out through the bankruptcy proceedings. As things stand currently, only about 40% of the Houston market has access to the channel.

This thing spiraled out of control because the Astros got greedy. The former owner, Drayton McLane, got the ball rolling figuring the team could make more money selling commercials during the broadcasts than by selling the television package to a third party. But the situation was a bit more complicated than that.

The Astros and the Rockets both own roughly 40% of the network and Comcast owns the remaining portion. The network was supposed to pay the rights fees to the teams and broadcast the games. To date the network owes millions of dollars to both teams in unpaid broadcast rights fees - but the network doesn't owe the teams nearly the amount they claim because both teams are, to some degree, paying themselves to broadcast the games.

The Astros also find themselves in hot water over the way they've treated young outfield hotshot George Springer. Mr. Springer was Houston's most potent AAA player last year and should have been playing on the expanded 40-man roster in September. But, instead, he found himself playing in Oklahoma City as the season wound to an end. It was just a bit odd that a team struggling to beat anyone down the stretch would leave their best prospect off the roster when the season was already a lost cause. Even more odd is that Mr. Springer was optioned back down to Oklahoma City during spring training when the Astros are looking at another cellar-run in 2014. Something just wasn't adding up.

It turns out that the Astros offered Mr. Springer a 7-year contract worth about $23 million in September. The deal was intended to lock in Mr. Springer for a number of years at a (fairly) low cost. Mr. Springer turned down the offer because he didn't want to get stuck in a very team-friendly contract throughout his 20's. He wanted a shorter deal for more money so that he would have a chance to test the free agency waters as he was hitting his prime.

But once he rejected the Astros' offer, Mr. Springer was left at AAA while the dumpster fire that was the 2013 Houston Astros continued to burn. One reason for leaving Mr. Springer off the expanded roster in September was to keep his major league service days low in order to keep him from becoming "arbitration-eligible" a year before the Astros wanted. Now the Players' Association is looking into the way the Astros handled the situation. The interesting thing is that Mr. Springer was never a member of the union because he had never played in a major league contest during the regular season.

Finally, after purchasing a mini-ticket package last season I was looking forward to doing it again this year. My package included Opening Day and one game a month during the season. Our seats were in the mezzanine in center field right underneath the giant scoreboard. But when I got a call from a ticket rep back in January I was disappointed to find that the package I subscribed to last year wasn't being offered this season. There was another package that included Opening Day (which has become a tradition for my oldest daughter) but something wasn't right.

For one, seats in the mezzanine area weren't being offered. The other problem was the price. When the ticket rep asked me if I'd be interested in signing up for the new package I asked her if the Astros were still charging "dynamic" pricing for the package (which means more money for games against popular teams and a shitload more for Opening Day). She told me that they weren't.

But when I went to the Astros website I found a different story. For more that what I paid last year for my package I could get the new package in worse seats. For a lot more I could get tickets in good seats. I told her thanks, but no thanks. I've got better things to do with my money that pay more money to see a crappy team. So, for the first time in about five years, my oldest daughter and I will not be attending Opening Day. Thanks, Jim Crane.

Crane's idea of operating a baseball team is to bleed everyone dry bit-by-bit. As I wrote last year, so-called dynamic pricing is a way to squeeze more money out of fans to see the away team. Strangely enough, even though the prices go up when a popular team comes to town, they never drop below the base value when a dog comes to town to play - even though there will be thousands of empty seats when the dregs of the American League set foot on the field.

I figure there's no way in hell the Astros will lose 100+ games for a fourth year running. I think they can knock the loss total into the 90's this season (which is still nothing to be proud of). But I do predict that Jim Crane will make out like a bandit thanks to the network television money that is divided up among the teams. So long as the Astros' payroll is under $45 million, Jim Crane will make money without selling a single ticket.

And that is Jim Crane's definition of success.

Friday, March 21, 2014

Killing on the down low

It's no secret that the available supply of drugs used to murder inmates is shrinking and that states who insist on killing their prisoners are having to get creative in acquiring the necessary drugs.

According to this report from the Colorado Independent, relying on documents acquired by Oklahoma investigative reporter Katy Fretland, back in 2011 Oklahoma officials asked for tickets on the 50-yard line for the annual Texas-OU game in exchange for setting up Texas with death drugs.

In the meantime, as I have written about before, states are beginning to turn to local compounding pharmacies to produce the drugs needed to kill inmates. The drugs produced by these pharmacies aren't regulated by the federal government and there are no guarantees that they will act as advertised.

Even more disturbing is the ways in which states have devised methods of acquiring the drugs that shield the identity of the suppliers from the public. Some states, such as Georgia, have passed laws making the identity of drug suppliers a state secret. Others have taken to taking money from the petty cash drawer and crossing state lines to make their purchases.
Under the cover of Oklahoma’s 2011 secrecy law, the state in 2012 bought 20 rounds of pentobarbital for $40,000 from an unknown supplier with a check from a petty cash account that shields the identity of the seller. It’s unclear whether the injections were made in a compounding pharmacy or whether a lack of oversight – compared to lethal injections sold by highly regulated pharmaceutical companies – led to the whole-body burning sensation Wilson described in the death chamber.
Why the secrecy? Why the intrigue?

If the public is so in favor of the death penalty why should anyone be hiding from the light like a cockroach?

In Colorado, the governor refused to reveal the protocol to be used in killing an inmate until a court ordered him to do so. Instead of complying with the order, Gov. Hickenlooper granted a reprieve.
Last year, before Colorado Gov. John Hickenlooper blocked what would have been the state’s first execution since 1997, his administration refused to disclose which lethal injection drugs it would be using and who was making the drugs. The American Civil Liberties Union of Colorado sued for the information, and continued the lawsuit even after Hickenlooper granted convicted murderer Nathan Dunlap a temporary reprieve. A court ordered the state to reveal the protocols it had planned for Dunlap’s execution. The corrections department, in turn, has said it will update its protocol before any future execution. 
Documents revealed that Colorado queried compounding pharmacies across the state for sodium thiopental, pentobarbital or similar drugs. Compounding pharmacies generally mix special-order drugs for patients’ needs. A lack of regulation for these types of pharmacies came to light in 2012 when a compounded drug was linked to a deadly meningitis outbreak.
Once upon a time executions were held in the middle of the day, attracting crowds numbering in the hundreds and thousands to witness the hanging. Long before the death penalty was abolished (temporarily) in the 1970's states had moved their executions to the middle of night in order to keep prying eyes away. With the advent of lethal injection many states have moved their executions from the middle of the night to early in the evening - I guess to afford the US Supreme Court time to consider any last minute appeals so they can still get the killing done before midnight.

Unlike state officials from Texas and Oklahoma who thought Team Pentobarbital was just a gas, I don't find anything about the death penalty to be even slightly amusing. There is nothing funny about the taking of a life -regardless of how worthy you may or may not think that person of living. The most intrusive power the state has is to take a life and yet some among us have chosen to be flippant about it.

These attempts to avoid public scrutiny of the source of death drugs and the protocols used to murder inmates are a blight on both our criminal (in)justice system and our very governance. If you're going to kill people in the name of the state, the very least you should be able to do is stand up and say how you're going to do it and who supplied the drugs.

If the negative publicity forces compounding pharmacies to just say no to being complicit in murder, so much the better.

H/T Democracy Now!

Thursday, March 20, 2014

Update: Texas kills again

The State of Texas felt the need to exact its revenge last night by murdering Ray Jasper who had been sentenced to death for the 1999 slaying of David Alejandro.

Mr. Jasper was the only one of the three men charged with the murder to get the needle. One co-defendant took an offer of life and the other was convicted and sentenced to life in prison. While Mr. Jasper admitted slashing Mr. Alejandro's throat, he has always claimed that the victim died as the result of stab wounds he received from one of the co-defendants.

The murder of Mr. Jasper did not bring about any closure to Mr. Alejandro's family - who are opposed to the death penalty. Instead of driving out to Huntsville to watch the execution, they stayed in San Antonio. Whatever happened to listening to the victim's family when determining the appropriate punishment in a case? Isn't that what prosecutors tell us they have to take into account when making an offer in a particularly heinous case? But who listens to those family members when they don't want what the prosecutors want?

What possible satisfaction could that bring to those who feel the need to kill inmates? How dare the family of the victim not share in the collective sense of revenge and bloodlust? Can it be possible for the family of a victim to put the death of their loved one behind them and concentrate on living their lives in the present?

So what did the murder of Ray Jasper accomplish?


Meanwhile, across the Red River, the State of Oklahoma was forced to delay the scheduled executions of two inmates due to an inability to obtain the drugs needed to kill them. The recent spate of publicity that compounding pharmacies that provide the drugs of death to prisons may have served to cool their entrepreneurial spirit. It certainly can't be good for business to be associated with making the drugs used to execute prisoners. It is ethically questionable at best.

Slowly but surely we are emerging out of the 19th century when it comes to our notions of punishment. One day we will join the enlightened world and realize that we were only serving to demean our own lives by exacting revenge in the name of the state.

We have become far too willing over the past few decades to use mass incarceration as a tool of social and political control. The continued use of the death penalty is nothing more than legalized lynching. And neither benefits society.

Wednesday, March 19, 2014

Let's talk

I'm in the middle of trial right now so there's not a lot of time to put together a full post. Last night while I was driving out to meet with a client I caught the end of the TED Radio Hour on the local NPR station. Bryan Stevenson, the founder of the Equal Justice Initiative, was the subject of the last segment.

His story and his talk were fascinating. Here's the link.

That then led me to this TED talk from David Dow who has dedicated his professional life to fighting the power of the state to kill inmates. Based on his conversations with death row inmates, Mr. Dow speaks about how to prevent murders in the first place.

And, in true web fashion, that then led me down the rabbit hole to Daniel Riesel's talk on "The neuroscience of restorative justice."


Tuesday, March 18, 2014

Execution Watch: 3/19/2014

On Wednesday the Texas killing machine goes back online...

RAY JASPER. A rap artist born in the Netherlands, Mr. Jasper was 18 when, according to police, he and two others committed a 1998 robbery in which a business partner of Mr. Jasper's who owned a San Antonio recording studio was killed and his equipment stolen. Two other man charged in the slaying received life sentences. Mr. Jasper's attorneys argued that a potential juror at his January 2000 trial was excluded improperly because he, like Mr. Jasper, was black. They also contended that Mr. Jasper had poor legal help at his trial.

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

Unless a stay is issued, we'll broadcast live:
Wednesday, March 19, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...

Monday, March 17, 2014

What's good for the goose ain't good for the gander

Senator Dianne Feinstein (D-California) was morally outraged when news broke that the CIA had been monitoring the work of Intelligence Committee staffers on an off-site computer system set up for the committee to do its work overseeing the intelligence agency.

She decried one branch of the government snooping on another branch. She warned of violations of the separation of powers. She said the actions of the CIA were unconstitutional.

But this is the same Dianne Feinstein who argued that Edward Snowden wasn't a whistle blower. In fact after the news broke of how the NSA spied on American citizens, collected meta data from telephone and e-mail communications and monitored web searches, she defended the agency's motives and actions.

Ms. Feinstein has drawn her line in the sand. It's okay for the government to make a continued mockery of the 4th Amendment by conducting unauthorized searches of our private data, but they sure as hell better keep their hands off Congress' computers and telephones.

Moral outrage indeed. How about hypocrisy?

Friday, March 14, 2014

Living on the dole

We've all been taught to love capitalism. Such a wonderful system it is. It rewards those who work hard and take chances. Come up with a good idea or a better way of doing things and you can go from sweeping the streets to the penthouse in short order.

Our media has a love affair with the so-called titans of industry. They're rolling in dough so we must adore and worship them. They are proof that hard work can lead to wealth.

Sports broadcasters are in love with the owners of franchises. During every game there is the obligatory shot of an owner sitting in a luxury box with his fellow millionaires and billionaires watching their teams play on a football field that was subsidized by the very folks who can't afford to buy a ticket to sit in their pleasure palaces.

These billionaires who love to throw their money around on the newest and shiniest toys are able to blackmail cities and states into building their factories with taxpayer money while the working poor suffer from budget cuts.

The latest farce is here in Houston. Our local electricity provider, Reliant Energy, purchased the naming rights to the Astrodome years ago and then purchased the naming rights to the new stadium being built to house the Houston Texans and the Houston Livestock Show and Rodeo. Since then the company was purchased by NRG which has decided it's time to market itself and slap its name and logos all over the building.

According to the Houston Chronicle:
County sources say NRG, which acquired Reliant's retail operations in 2009, is planning a rebranding effort that will involve swapping out every sign bearing the Reliant name. The name change would apply to all facilities in the Harris County-owned park, including the Center, the Arena and the Astrodome, according to NRG.
What we know as Reliant Stadium was built on the public's dime. Bob McNair - a ridiculously wealthy man who professes his love for capitalism - put up a token amount of money and the county picked up the rest of the tab by taxing folks who stay in hotels and rent cars. The stadium, and the ground on which it sits, is owned by Harris County.

But here's the part about the name change that caught my attention:
Reliant bought the naming rights for the Houston Texans' stadium and surrounding buildings in 2002 for $300 million, the most lucrative deal of its kind at the time. 
The 32-year agreement required Reliant to pay about $10 million a year, with 75 percent going to the NFL team, 15 percent to the Houston Livestock Show & Rodeo and 10 percent to Harris County. Those terms remain the same.
Interesting, Bob McNair takes home 75% of the bounty for the naming rights to a stadium he neither owns nor paid for. Yes, the Texans pay a yearly lease for the right to use the stadium ten weekends a year. But that just makes them a tenant - since when does a tenant get a bigger piece of the pie than the landlord?

As for the Rodeo, for those of y'all who aren't familiar with the three-week long extravaganza currently going on, it is one of the biggest charitable organizations in the state. The Rodeo pays out millions of dollars to state and local charities and in scholarships for young people. The share of the naming rights going their way is going to a good cause rather than someone's back pocket.

You see, Bob McNair and his ilk love to preach the virtues of capitalism. They will tell you that just handing out money to the poor will never solve the problem of poverty. Government assistance just breeds more dependence, they'll tell you. It weakens the soul, it creates a culture of dependency.

But don't get in their way when they're running to the window to get their hand-out. Nope, we can't expand Medicaid coverage, we can't increase school funding, we can't raise the minimum wage, we can't build more affordable housing, we can't put a public works jobs program into place, but we can damn sure hand out millions of dollars a year to the wealthy.

That's capitalism for you.

Thursday, March 13, 2014

Proof that the system works? Bullshit.

"I can't go back and do anything I should have been doing when I was 35, 38, 40 stuff like that." Glenn Ford (March 11, 2014)
For 26 years Glenn Ford sat on death row in Louisiana's infamous Angola penitentiary. For 26 years he sat in prison for the 1983 murder of Isadore Rozeman, a jeweler in Shreveport. For 26 years he steadfastly denied he was the killer.

On Tuesday State District Judge Ramona Emanuel signed a motion vacating the conviction based on new evidence that corroborated Mr. Ford's longstanding claims that he had nothing to do with the murder.

For those who say that the deterrent effect of the death penalty is eroded by the amount of time it takes the state to actually get around to killing inmates, that long delay saved the life of an innocent man. For those who claim that the death penalty allows for closure and that the delays associated with the state-sponsored killing of inmates force victims' families to relive their nightmare over and over, those delays saved the life of an innocent man.

For those who say the exoneration of Mr. Ford is proof that our criminal (in)justice system works, I say you don't have a fucking clue what you're talking about. Yes, the legal process prevented the State of Louisiana from killing an innocent man, but that same legal process allowed an innocent man to spend nearly three decades behind bars.

The exoneration of Mr. Ford is yet another indictment of our criminal (in)justice system. Whether his wrongful conviction was the result of incompetent legal representation, a prosecutor more interested in winning a case than seeing that justice was done or a judge who turned a blind eye to the the travesty unfolding in front of him, the point is that our system failed Mr. Ford. Our system failed his family. Our system failed the family of Isadore Rozeman.

While the state was busy depriving Mr. Ford of his freedom, the real killer escaped detection. While law enforcement and prosecutors played around with the evidence, the real killer walked the streets as a free man. Far from bringing about closure to Mr. Rozeman's family, the machinations of the state have opened up the old wounds and poured salt into them.

Witnesses lie. Witnesses forget. The police jump to conclusions. The police and prosecutors play hide the sausage with exculpatory evidence. Judges make rulings based on the upcoming election rather than the Constitution. All the while an innocent man sits at a table next to a lawyer and watches as his life is taken away from him.

Now I'm sure they do it everywhere else, but in Harris County prosecutors like to stand before a jury panel during voir dire and do everything in the power to reduce their burden of proof. They do their best to convince prospective jurors that it's fine to convict someone even if you have doubts about the evidence. The do their best to convince jurors that it's acceptable to guess about holes in the evidence. And the black-robed prosecutors judges play right along.

What the hell do they care? They're going home at the end of the trial and there are plenty of other cases on the docket. They don't have to live with the consequences of what they've done. They're just out there advocating for their position. Youth, hubris and the desire to win is a very dangerous combination.

But for Mr. Ford, this wasn't a game. This was his life. A life that has been lost. There is no way to replace the 30 years he lost to this false accusation. All of life's memories that we take for granted don't exist for Mr. Ford. Now he's left to pick up the pieces and try to start anew at age 64.

Mr. Ford is entitled to $330,000 for his years behind bars - that's the statutory maximum in Louisiana. That's not enough to reimburse him for the years he lost. But even if the amount he was entitled to was limitless, no one could ever compensate Mr. Ford for what he went through.

A heinous crime was committed in 1984 and the State of Louisiana and our criminal (in)justice system must be held to answer for it.

Wednesday, March 12, 2014

It's hard work losing money

In February 2013 Warren Buffett bought the struggling Heinz Company. The company was bleeding cash and Mr. Buffett swept in like a rescuing angel. Or so he made himself appear.

Now, a year later, and Heinz is still awash in red ink. The company lost almost $72 million in 2013. The losses continue.

The company has closed down three plants (two in the US) and laid off some 3,400 workers in an effort to regain profitability.

William Johnson, who was the CEO until the end of 2013, took home over $110 million in compensation for running the company into the ground (hmmm, it seems cutting his pay may have stanched the bleeding). The current boss, Bernardo Hees has been paid over $9 million since coming aboard last June.

This is the world of 21st century capitalism. Run a company into the ground and take a little off the top for the trouble. Isn't this an economic system that is supposed to reward success and punish failure? Isn't this an economic system that is supposed to provide incentives to make a profit?

The reality is our economic system acts as a vacuum that takes money from the pockets of those who produce the goods and puts it in the pockets of those who live off the labor of others. Companies pay outrageous salaries to CEO's who sit and fiddle while the company goes under. The high pay of executives is rationalized by claiming the company must pay through the nose to keep up with the Joneses.

Of course it helps that CEO's sit on other corporate boards - and often serve on the compensation committee - voting increased pay and benefits to their fellow CEO's.

And while Wall Street and media focus on share prices and quarterly numbers, very few folks pay attention to what's happening at the bottom. You will never hear experts and pundits in the corporate media placing the blame for the slumping global economy on the crisis of overproduction. That would require some basic questioning of the system.

While those at the top of the corporate ladder gorge themselves on the labor of others, those who actually do the work find themselves in a more precarious position every day. Just what do you think is going to happen when the masses of workers can no longer afford the products their labor produces?

Tuesday, March 11, 2014

A little cognitive dissonance on the side, please

One thing you can't accuse the State Bar of Texas of is having a post-modern sensibility. There's little sense of self-awareness and not a hint of irony in the monthly Texas Bar Journal. Maybe that's because the State Bar has always been by and for the white shoe firms in Houston and Dallas.

It certainly doesn't help that all of us who practice in Texas are blackmailed into joining the State Bar. Fail to pay your annual dues and you'll find yourself unable to practice law legally in the Lone Star State. With a captive audience (and big firms that pay the dues of all its lawyers), there is no incentive for the State Bar to take any other perspective other than what's good for Baker & Botts (or feel free to substitute any BigLaw firm in its place) is good for the profession.

I don't need to tell you what a colossally illogical statement that is.

In the current issue of the Texas Bar Journal we hear from Heather Venrick, a third-year law student at SMU's Dedman School of Law. She's feeling a bit blue because she thinks SMU didn't quite tell her the truth about the state of the legal profession. She was told to keep up her grades, get into law review, join a bunch of student groups and clerk for a variety of firms. Such things, she was told, would help her get that dream job.

Only there is no dream job.

She was sold the typical law school white wash job. BigLaw isn't hiring. Ever fewer students are walking into a job that puts them in a BMW and a nice zip code. As unrestrained capitalism has forced its nose under the tent, firms are more and more concerned with the bottom line than providing service to their clients. Add that to the glut of graduates from law school and you get a capitalist's wet dream - a desperate work force with far more people than jobs. Even the most ardent disciple of Ayn Rand knows what that means.

Of course it wouldn't be the State Bar without an upbeat (unrealistic) attitude, now, would it? Despite her inability to find her dream job, Ms. Venrick is still happy she decided to pursue her dream of becoming a lawyer.

Ms. Venrick might want to read The Lawyer Bubble: A Profession in Crisis, a book that I reviewed back last April. In fact, if you're considering law school, you need to pick up a copy and read it. If you choose to enter the legal profession, you need to do it with eyes wide open.

But if there is a shortage of jobs and a surplus of applicants, why not just shut that spigot down and reduce the supply of new lawyers? That would be the logical thing to do, wouldn't it?

Only there's money to be found in operating a law school. Students are forced to sit for three years when everyone will acknowledge that that's at least one semester more than necessary. Students are charged an arm and a leg to attend law school and pay for the academic Shangri-La it has become for those on the tenure track (maybe not so much for the ever increasing number of adjunct faculty). High tuition rates are subsidized by the government with easy money being doled out to those reaching for the brass ring. The loans can't be discharged in bankruptcy so the schools and banks are guaranteed their pound of flesh.

And into that breach has stepped the University of North Texas Dallas College of Law - the newest law school in Texas. And, without even a hint of irony, the Texas Bar Journal ran a fluff interview with the dean of the new school right after Ms. Venrick's attempt at venting.

We find out in the course of the interview that UNT's mission is to provide a "top-notch" legal education at a bargain price for those who might not be able to get into one of the state's other law schools. Now I'm all for expanding opportunity but who the fuck are we kidding? There is no market for another 120 lawyers a year in Texas.

The only beneficiaries to this newest law school will be the University of North Texas who will be counting the cash rolling in thanks to subsidized student loans and the BigLaw firms who will see even more downward pressure on wages.

The addition of even more new lawyers on the market will only serve to get us closer to the end of the race to the bottom. More new lawyers than the market can bear means more lawyers walking down the street wearing hot pants looking for that next new lead dangling from the marketeers' back pocket.

But it will also mean more money for UNT, the State Bar of Texas and the ABA -- and isn't that what it's all about anyway?

Monday, March 10, 2014

Thanks, Dan (maybe)

My wife showed me this clip from YouTube last week and I didn't know whether to laugh or nod my head derisively as I stood there watching. The one thought that kept going through my head was that this can't possibly be a legit commercial. There's just no way.


... it is legit.

Now the question becomes, is it a good thing or a bad thing? At some point we have to face the facts. And the fact is that, as Scott Greenfield is willing to tell us, we have entered the age of walking down the street wearing hot pants looking for clients.

Daniel Muessig says as much in an interview he gave to Slate magazine.

Our business model was long built on word-of-mouth. You do a good job for a client and they tell other folks who need help to call you. You have friends in the white collar world who wouldn't know who to call if they ended up getting arrested and they will tell their friends (in confidence) to call you when the need arises.

It took time but after years of diligent work a criminal defense lawyer built up a reputation in the courthouse and in the community. He was the attorney no one ever wanted to call - but it was a good thing to have that number near the phone just in case.

But with advertising and marketing we are rapidly finding ourselves near the finish line in the race to the bottom. Dignity doesn't matter. It's all about generating leads and getting prospects. Word of mouth and reputation take too long in our current age of instant gratification. Who wants to spend the time doing a good job for their clients and waiting for that one big payday down the road? Why do that when you can have it all now?

Mr. Muessig's commercial is funny. I laugh every time I watch it. On the one hand he is skewering all the stereotypes people have of criminal defense lawyers. His closing line that he's also Jewish with the revolving Star of David is the icing on the cake.

But, humor aside, what does this ad mean for the future of our profession. And I stress that the practice of law is not a business but a profession. It's not about maximizing profits and increasing the number of bodies walking through that door. It's about providing a service to people in their time of need. That's something we can never lose sight of.

People hire us because they think we can get them out of a jam or make a bad situation a little more tolerable. That takes considerably more skill than filming a funny commercial and posting it on YouTube. Ours is a craft that is changing constantly. The laws change and the courts' opinions change over time. The composition of our juries - and the sources through which they get their news and information - changes over time.

The constant are our roles of representing our client's best interests and defending their rights. And how committed you are to those roles isn't measured by how funny your commercial is or how cutting edge your marketing strategy is. Your commitment is measured by those folks who give your name and number to a friend or loved on who is in need of help.

That is something that will never change.

Friday, March 7, 2014

Bending the law to satisfy the need for revenge

I would hope that we could all agree that the brain of a 13-year-old functions differently than the brain of a 28-year-old. I would hope that we could all agree that a 28-year-old has a better grasp on the consequences of actions than a 13-year-old has.

Fifteen years ago Robbie Middleton, who was eight years old, was tied to a tree, doused with gasoline and set on fire. He survived, horribly disfigured, but died in 2011 of cancer that a medical examiner said was caused by his burns. The case was refiled as a homicide.

Donald Collins, who was 13 at the time of the incident, was charged at the time but the case was later dismissed due to a lack of evidence. Shortly before his death, Robbie Middleton recorded a statement in which he claimed Mr. Collins sexually assaulted him a couple of weeks prior to the attack.

Prosecutors in Montgomery County moved to try Mr. Collins as an adult. The law at the time of the attack said that a defendant had to be at least 14 to be tried as an adult (which is in itself absurd). This week State District Judge Kathleen Hamilton ruled that Mr. Collins would be tried as an adult.

Of course we all know what the real argument was about. Forget about the law at the time regarding trying juveniles as adults. The problem was that if Mr. Collins were tried as a juvenile there would be little the court to do in the realm of punishment. The only way for the state to get its pound of flesh was to try Mr. Collins as an adult. So, despite the law, that's what happened.

The juvenile courts were set up with the understanding that kids are fundamentally different than adults and that we should be careful about the sanctions imposed on young people for their transgressions.The idea was to take the child away from the situation that got him into trouble and to rehabilitate him so that he didn't head back down that path as an adult.

Now let's just assume for a second that Mr. Collins is guilty of murder. The crime was heinous. The consequences for Robbie Middleton and his family were profound. But the fact remains that Mr. Collins was a teenager at the time of the attack. His brain wasn't fully developed. He didn't have a firm grasp on the consequences of his actions. Just think of yourself at 13 - did you do things back then that you wouldn't imagine doing today?

Trying Mr. Collins as a juvenile wouldn't satisfy the public's thirst for revenge. But that isn't the purpose of the criminal (in)justice system. At least it shouldn't be.

He may be an adult now, but he wasn't at the time of the attack. Trying him as a juvenile likely wouldn't lead to a very satisfying result, but it would lead to the right result. Sometimes the outcome can be right - even if we don't like it.

And sometimes we can jump through hoops to justify doing the wrong thing. That's just what Judge Hamilton did this week.

Thursday, March 6, 2014

Book review - Company Man: Thirty Years of Controversy and Crisis in the CIA

Apparently this is the season for memoirs from former Washington insiders. We have Robert Gates' tell-all in which he trashes the President and we have John Rizzo's attempted justification for human rights violations.

In Company Man we learn, and live, the tale of a man who was more than satisfied to be a government lawyer who (more than likely) needed a map to find the courthouse. He was more than happy to spend his career offering up justifications for all sorts of bad deeds on the part of the CIA.

For, you see, Mr. Rizzo was the attorney in the CIA responsible for putting pen to paper and creating a legal cover for the policy of torture put into place by George W. Bush following the attacks on 9/11. He read a few memos from the folks who put the program together and then crafted nicely metered sentences of legal gobbledygook to explain who depriving a prisoner of food, or stripping them of their clothes, or not allowing them to sleep, or forcing them to stand with their arms chained over their heads, or slamming them up against a wall or simulating drowning wasn't torture.

He was sitting behind a desk. He didn't have to see the men who were being subjected to torture. He didn't have to tell their friends and loved ones what was going on in a secret prison. He didn't have to explain to anyone why inmates were being held for years without being charged. It was his job to come up with a legal fig leaf as to why these men - who were being held by the US government or at its behest - were deprived of their due process rights. For remember, the Bill of Rights doesn't refer to "citizens," it refers to people.

In one of the lovely little ironies of the book, while discussing the birth of the "enhanced interrogation program," Mr. Rizzo analogizes how Abu Zubaydah reminded him of Adolph Eichmann, the subject of Hannah Arendt's book The Banality of Evil. Mr. Rizzo described Mr. Zubaydah as someone who looked more the part of a bureaucrat than a terrorist. Not much different than a CIA lawyer who penned memos justifying torture, murder and various other criminal acts. I wonder if he wrote that passage with a straight face.

And then we come to Mr. Rizzo's involvement in the Aldritch Ames affair. For those of y'all who don't remember, Mr. Ames was a CIA analyst who sold documents and the names of agents and moles to the Soviets. That made Mr. Ames the worst kind of traitor. But what did Mr. Ames do that was any different than the folks the CIA turned into double-agents and moles in other parts of the world? Mr. Ames sold his soul for a few bucks and those men and women whom the CIA turned did the same thing. Look in the mirror, Mr. Rizzo.

The book is a fascinating look at the inner workings of the CIA - at least those inner workings that agency censors determined we could see. It goes without saying that the book is a propaganda tool for the CIA and that anything that would cast the agency in a bad light (or cause normal folks to question the legitimacy of its actions) never made its way onto the printed page.

Of course Mr. Rizzo got his comeuppance when his name was put forward by President Bush to be the General Counsel for the CIA. He was gutted and filleted by Democratic members of the Senate Intelligence Community for his role in the CIA's torture program. While he does his best to evoke sympathy for his plight - it's hard not to laugh at his expense as he flopped and floundered during his confirmation hearing. He didn't even have enough sense to realize that he would have remained the de facto GC had he withdrawn his name from consideration (as he had been acting in that capacity off and on for years). But his pride took over and the rest is history.

Wednesday, March 5, 2014

A change of heart

"It's the most premeditated form of murder you can possibly imagine and it stays in your psyche for ever." -- Dr. Allen Ault, former Georgia corrections commissioner
Dr. Allen Ault was a psychologist for the Georgia Department of Corrections. He was later handed a promotion and named the warden at the Georgia Diagnostic and Classification Center - the prison that housed the electric chair. As warden his job was to oversee the execution, or as he put it, the murder, of inmates.

He is now an advocate for the abolition of the death penalty.

He is also still coming to grips with the consequences of what he used to do for a living.
"Kill somebody white and you're three times more likely to get the death penalty than if you kill a black person." -- Dr. Ault
The death penalty is not a deterrent. It never has been and it never will be. It exists in its current form to prevent lynchings and to satisfy our society's bloodlust.

For generations the white power structure in the South used lynching as a means of exacting control over blacks. It was used as tool of intimidation and its purpose was to ensure white dominance in the governance of the old confederacy.

It is still used today as a tool of intimidation and control. The South has evolved into a region in which African-Americans are challenging the old establishment for control of the government.The white political establishment is scared of losing their grip on power and will use any means at its disposal to hold on.

The rash of voter ID laws across the country is just another embodiment of this. The people least likely to be affected by having to show a government-issued photo ID in order to vote are affluent whites. The explicit purpose of such laws is to make it harder for the poor and minorities to exercise their constitutional right to vote.

The death penalty is meted out disproportionately to black defendants. It is far more likely to be meted out when the victim of the crime is white. It is nothing short of legal lynching.

In Texas we use an absurd standard to determine who the state is going to strap down and kill. We ask a jury who has just convicted a defendant to decide whether it's more likely than not that he will be a danger in the future. Furthermore, the jurors who are asked that question are the ones who weren't struck because of their opposition to the death penalty.

So we put twelve people in a box who are already predisposed to order death and then, after they have convicted the defendant, we ask them to decide whether they believe, beyond a reasonable doubt, that the defendant is likely to commit future violent acts.
Burger spent 17 years on death row. Dr Ault saw him change. The troubled youth got an education, his brain developed and matured. 
Yes, he was guilty of a terrible crime. He was also desperately contrite.
When Dr Ault described Burger's execution to me, his words were powerful, the agonised silences even more so. Two decades have done little to ease Dr Ault's burden of remorse and guilt.
"His last words to me were, 'Please forgive me'. 
"I could see the jolt of electricity running through his body. It snapped his head back and then there was just total silence... and I knew I had killed another human being."
The only correct answer to the question is "who knows?" Who knows what's going to happen to that person once they have been sent off to prison? Will they obtain an education? Will they mature? Will they express remorse for their acts? There aren't many of us who know how much prison can change a person. Yet we allow the state to murder an inmate based on nothing more than supposition, prejudice and bias.

And we call this justice?

Tuesday, March 4, 2014

Our Independence Day adventure

On Saturday morning we packed the kids, the picnic gear and the dog into the van and headed out to Washington-on-the-Brazos for a little Texas Independence Day celebration (then it would be off to the rodeo for the BBQ cookoff).

Everything was going (fairly) swimmingly as we cruised out Highway 6 towards Navasota. My little one need to take a bathroom break and there were a cluster of gas stations at the exit. Along the way I noticed a little pinging when I gave the van some gas and the temperature gauge seemed a little warmer than usual (not that you'd notice, unless you keep an eye on those things).

As we exited the highway, however, the temperature gauge shot through the roof. Uh-oh. Not a good sign. As the girls went inside to go to the restroom I popped the hood and could smell the coolant. Mr. Tractor-Trailer driver walked over the said he thought it was the transmission. Nope, I didn't think so.

Things got weird when I touched the radiator cap and it was cool. That was not a good thing, I thought to myself. I went inside and bought an overprice jug of coolant and poured it into the radiator. It filled up to the top and then the radiator burped and the coolant went rushing out -- onto the parking lot. I figured it was the lower hose.

Unfortunately (though it later turned out to be very fortunate), I didn't have my tools, my gloves or any dirty clothes. I found an auto parts store about a mile-and-a-half up the road and began walking in that direction. I figured I'd buy the hose, a couple of clamps, a cheap screwdriver and pair of pliers. But then, as I crossed under the overpass I spotted the Team Chrysler dealer. Now I have never been one to get giddy at the sight of a Chrysler dealership - mainly because they just have a bunch of Chrysler products on the lot - but now I had an idea.

I went back to the service department and asked if they had any hoses. The manager assured me they didn't and even checked to make certain there was nothing of use in the warehouse. Then he called a couple of auto parts stores and located a hose for me. Then I had one of those very rare moments of clarity. I asked him what it would cost for them to put the hose on. He quoted me a price that was a bit high (oh, nothing like dealership prices) but I had no desire to mess with it. Then he told me the shop closed at 1pm (it was a bit after 11am at the time.

So I hiked back to the van and we drove it into town to the auto parts store, picked up the hose and headed back to the dealership (apparently no one has anyone to deliver or pick up parts on the weekends out there). Now, while I was talking to the parts manager earlier I spotted a place on the edge of the parking lot where there weren't any trucks parked. On the other side of a low guardrail was the back grassy area of a catering place. Picnic time!

Out came the chairs. Out came the cooler. Out came my baby Weber and my tools. And so there I cooked our Independence Day meal - hot dogs and brats - in the parking lot of the dealership.

Then came the bad news. I could tell it wasn't good because the service manager looked kind of serious. The good news was the problem wasn't the lower radiator hose. The bad news was (wait for it), the radiator was shot. He quoted me another price that was up there (if the mechanics got a bigger share of the hourly labor charge I'd be a little happier about it) but - what was I going to do? I couldn't drive back to Houston.

And this is why I'm glad I decided not to change the hose myself - because had I done so we would have been stuck up a river once I realized the problem was the radiator and not the hose.

But what about the shop closing at 1pm (it was now about 12:30pm)? He told me the mechanic would stick around to finish the job. I told him to go for it. I will say this - the guys at the dealership didn't have to do any of this. It's not like I would ever be going out there to buy a car. So I want to say thanks to everyone I dealt with at Team Chrysler in Navasota. Y'all were lifesavers.

Now we had two hours to kill - in Navasota. On the way to the auto parts store we saw a historical house. We gathered our things up and dumped out the coals and headed up the road toward the Horlock Center. The house is a thing of beauty on the outside - but it was closed. We walked around the side and I took the dog and sat down on a bench underneath a tree. My wife and girls walked along the veranda until someone opened up a door.

It turned out that the Horlock Center is home to three artists-in-residence who will be living and working in the house for six months using the house as a gallery to sell their artwork. We toured the inside in shifts (because the dog couldn't go inside). The artwork was interesting. Then one of the artists told us about a country music festival going on at City Hall (about a mile up the road).

Then off we were (stopping at a playground along the way so the girls could run around). It turned out that the country music festival was the Texas Birthday Bash. We hung around there for an hour or so before heading back to the dealership to pick up the van.

We never made it to Washington-on-the-Brazos that day. We met our friends at the cook-off about 90 minutes after we had planned. But we had quite the adventure through small town Texas while celebrating the Lone Star State's 178th birthday.

Monday, March 3, 2014

Let's play cowboys and vampires

March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.

It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.

For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.

If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.

Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.

The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?

The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.

And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.

Just be careful out there.