Wednesday, April 30, 2014

Death three ways

Yesterday was supposed to be a double-header day in Oklahoma. Clayton Lockett and Charles Warner were both scheduled to be murdered by the state. Only things didn't go the way officials had hoped. As a result, Mr. Warner is still alive while Mr. Lockett is dead.

Mr. Lockett and Mr. Warner had challenged the legality of their scheduled executions by filing suit to force the state to disclose the drugs it planned on using to kill them as well as the source of the drugs and the names of everyone involved in the execution.

The state disclosed the drugs it planned to use but refused to give up any information regarding the source of the drugs, citing a state secrecy law. The Oklahoma Supreme Court wasn't amused and issued stays while it considered the claims of Mr. Lockett and Mr. Warner. Last week the court lifted the stays having found that the state's secrecy law was valid.

But a bigger controversy erupted on Tuesday afternoon when the state botched Mr. Lockett's execution. The first drug in the cocktail was the sedative midazolam. The drug is supposed to leave an inmate in a state of unconsciousness. But, seven minutes after the initial injection, Mr. Lockett was still conscious. Reporters noted that Mr. Lockett was still very much alive after more than 15 minutes, even lifting his head as officials drew the blinds to prevent witnesses from seeing the complete custerfluck taking place in the execution chamber.

The execution continued with the second and third drugs being administered, but Mr. Lockett wouldn't die. It turns out that the vein into which the lethal drugs were being injected burst. Officials immediately called off the second scheduled execution as they tried to deal with the mess on their hands.

Then, 43 minutes after receiving the initial injection, Mr. Lockett suffered a fatal heart attack.

Meanwhile in Ohio. state officials announced that they will be upping the amount of drugs in the state's lethal cocktail to prevent another episode like what happened in January when an inmate remained conscious for at least 15 minutes after the first drug was injected.

Despite claims from witnesses that Dennis McGuire was visibly gasping for air long after he should have been rendered unconscious, state officials continue to insist that Mr. McGuire was unconscious and suffered no pain during the process.

Apparently doctors determined this by asking Mr. McGuire if he had suffered any pain after he was already dead. Hearing no response they naturally assumed the answer was "no."

The state has announced that for the next scheduled execution, to take place in November, they will up the dosage of midazolam from 10 mg to 50 mg and the dosage of hydromorphone from 40 mg to 50 mg. So far there is no word on who is supplying the drugs or who made the determination that upping the dosage would solve the problems encountered during Mr. McGuire's execution.

The fact remains that something went dreadfully wrong in January, otherwise the state would not be making the announcement it made this week. If everything went according to schedule in January, there would be no need to tinker with the lethal cocktail for upcoming executions.

Finally, government officials in Washington are expressing outrage over the mass death sentences handed out by an Egyptian court in a trial in which hundreds of members and supporters of the Muslim Brotherhood were convicted of being complicit in the death of a police officer during a protest back in 2013.

The Egyptian court sentenced 683 defendants to death - only 50 of whom were in custody at the time of trial. The remaining defendants can challenge their death sentences once they've turned themselves in.

The trial only took a matter of hours and the defendants in custody were prevented from presenting a defense to the charges. The death sentences will now be reviewed by the state's highest Islamic authority, the Grand Mufti.

I would like to know exactly what about the death sentences has so outraged American leaders. It certainly can't be that anyone was sentenced to death. I mean we do that all the time here and no one in Washington expresses anything that could be remotely considered to be outrage.

I suppose that some of the outrage could be over the apparent lack of due process at trial. But such feelings ignore the reality that innocent people are convicted of crimes, including capital murder, in the U.S. and are sentenced to death. Anthony Graves was wrongly convicted of murder in Texas thanks in large measure to prosecutorial misconduct. Mr. Graves was sentenced to die and sent to death row. He was, theoretically, provided greater due process than the defendants in Egypt - but the result was the same.

To date there have been 144 men and women on death row who have been exonerated. There has also been at least one innocent man executed in Texas. The numbers belie the truth that our criminal (in)justice system isn't all that better than the criminal (in)justice systems in other countries. We like to pat ourselves on the back and tell juries that they are the true engines of democracy -- but that is largely a myth. Juries get it wrong all the time.

Even worse is the absolute lack of due process that was afforded to four American citizens who were murdered by our government in drone strikes. None of the four was ever charged or indicted. None of the four got to confront the witness against them nor question the evidence presented. None of the four was represented by counsel when senior government officials made the decision to hit the fire button on the drone. And then let us not forget the number of innocent men, women and children who were blown to pieces by missiles fired from the skies during drone attacks.

That leaves only the sheer number of death sentences handed out at once to be the cause of the outrage. But if we support the death penalty here at home, then what difference should it make if some other country wants to hand out death sentences like invitations to a house party?

Murder is murder is murder. It doesn't matter whether it's committed by a masked gunman in a gas station or by the state in an antiseptic execution chamber. If it's wrong for an Egyptian court to sentence hundreds of defendants to death in one fell swoop, then it's also wrong for a jury in Texas to recommend the death sentence in a capital murder case.

Don't get hung up on the numbers because the numbers aren't important. One death sentence is one death sentence too many. One exoneree is one exoneree too many.

Tuesday, April 29, 2014

What goes up must come down

Now that the aerial search for the missing Malaysia Airlines jet has been called off, resources can now be turned toward finding the unmanned drone that crashed (under mysterious) circumstances in Lake Conroe. While the part of the Indian Ocean many believe the airliner crashed in is considered extremely remote, Lake Conroe has often been described as being on the very edge of civilization.

For some strange reason the Montgomery County Sheriff's Office made the decision - that was then ratified by county commissioners - to spend a quarter of a million dollars on an unmanned drone to provide aerial reconnaissance of SWAT team operations.

Dive teams have been unable to locate the remains of the drone due to conditions at the bottom of the lake.

Now why would a law enforcement agency in a suburban county need a $250,000 unmanned drone? Beyond the obvious reason that they could brag about having one, I can't think of any. While a spokesman for the Sheriff's Office said that the drone wasn't used for surveillance, I seem to recall the NSA claiming that Edward Snowden's claims were false. We all know how that turned out.

The use of unmanned drones by law enforcement is very troubling. The only reason a law enforcement agency would want a device capable of viewing the ground from up high is to find out what folks are doing on their property sheltered from the unauthorized view of law enforcement officers on the ground. With a camera-equipped drone flying overhead there is no such thing as privacy as the eye in the sky can see it all.

The use of drones, as well as the outfitting of police officers in military-style gear, is another move toward the militarization of the police. It is symbolic of the "us-against-them" mentality that seems to have taken hold in law enforcement over the past decade.

The incompetence of the folks operating the unmanned drone has cost Montgomery County taxpayers a lot of money - money that could have been used for parks or roads. Maybe those in charge of the county's purse strings will think twice about writing another check for another shiny toy.

Monday, April 28, 2014

Get a clue, Jack

My plan had been to be home in the middle of the afternoon last Friday. It had been a long week and I was looking forward to hanging out in the backyard playing with the dog and doing some work in the garden. But, as tends to be the case these days, that plan didn't quite work out and I didn't leave the office until 6:30pm.

I turned the radio on and Marketplace had already begun. Someone was talking about progress in Detroit. This mysterious someone was saying that in tearing down abandoned homes, the city was showing signs of recovery. Sure.

At first I thought Kai Ryssdal was talking to one of the show's correspondents. Then I realized he was talking to a cabinet secretary. The person on the other end of the line turned out to be the Treasury Secretary, Jack Lew. Y'all might remember Mr. Lew as the guy who got a lot of attention from the press when he changed his signature so it would be somewhat legible on our currency.

Now I could start talking about how, at a certain age, we all have a fairly distinct signature. My illegible scrawl developed when I was the treasurer of a housing co-op in college. Once a week I had to go into the office and write a bunch of checks to pay the bills. My hand would start to hurt after jotting down my signature so many times. In response I changed the way I signed my name so it would involve less moving of the pen. My signature has remained, more or less, the same ever since.

The fact that Mr. Lew was so concerned about how his signature looked that he wanted to change it - and that he changed it - highlights something endemic to our political class. Our modern-day politicians are chameleons with their fingers in the wind. They will make changes to their appearance, their speech or some other aspect of the personality at the drop of a dime if a consultant tells them there are votes to be had and money to be raised if he makes the change. Then they carry on as if nothing ever happened.

For a reminder of how blatant it can be, just go back and take a look at Mitt Romney trying to act like everyman by taking off his jacket and rolling up his sleeves during the 2012 campaign. There were few things more painful (and transparent) than watching Mr. Romney try to act like a normal Joe.

But, back to the point, Mr. Ryssdal asked Mr. Lew a couple of pointed questions about the economic recovery. He wanted to know why economists proclaimed that the economy was doing fairly well while unemployment was still sky high. Mr. Lew did everything he could to avoid answering the question that he was asked. Mr. Ryssdal was having none of it, however.

Mr. Lew went on to try to explain how profits and the stock market were up. But he had very little to say about why large companies were sitting on piles of cash instead of hiring workers. Mr. Lew mentioned the people he had discussed the state of the economy with and, to no one's surprise, those folks were CEO's and their ilk. No wonder Mr. Lew had no clue as to how the economic recovery was playing across the country.

Not surprisingly, though, Mr. Ryssdal never asked the really hard questions about the structural changes in the economy. There were no questions about whether high unemployment rates were putting downward pressure on wages which, in turn, would put downward pressure on demand which, in turn, made companies less likely to increase production and hire more workers.

The fact of the matter is that our economy is rotting from the inside out. Manufacturing companies have farmed out the jobs on the assembly line that paid well to developing countries who are desperate for jobs. Those well-paid jobs we lose are replaced by low-pay jobs in the service sector. These jobs pay less than a living wage and few benefits leaving less money on the table for folks to spend.

These low-wage employers are then subsidized by government redistribution policies so they can keep their wages low. Now this isn't the typical destruction of the middle class argument that President Obama likes to make. The term middle class has very little meaning in our economy.

Originally the term referred to small shopkeepers and merchants who worked for themselves and had few employees. These shopkeepers weren't the owners of the means of production and they weren't being exploited for their labor power. These are the folks Adam Smith was talking about when he said England was a nation of shopkeepers.

The "recovery" over the past few years has been concentrated at the high-end of the income spectrum. All of the indices our politicians like to point out to prove the economy is righting itself measure how well things are for the people on top. If our politicians were concerned about the plight of the working poor, we would have far more talk about our high unemployment rate than we have of the state of the Dow Jones Index.

Mr. Lew is completely out of touch with reality and, until someone in Washington takes a look at how current economic trends affect the working poor, the situation will continue to get worse. The Dow can go as high as it wants - that doesn't put food on someone's table. If the private sector isn't going to increase the number of jobs in the economy then the government must step in with jobs programs that put the unemployed, and underemployed, back to work rebuilding our nation's infrastructure.

Yes, it would be expensive. But that money would be better spent than the money that was laundered through the government's bailout scheme in which companies (who espoused a belief in capitalism) held out their hands for government largesse and then paid the executives who ran the companies into the ground a king's ransom in salaries and bonuses.

Friday, April 25, 2014

Down, set, unionize!

Today football players at Northwestern University outside Chicago will vote on whether or not to unionize. Ever since the Chicago office of the National Labor Relations Board ruled that college football players should be considered employees of the school they attend there has been pressure put on the NU players to vote down unionization.

Coach Pat Fitzgerald has been adamant in his opposition to the union effort. And why not? After all, he's part of the management structure. Of course he doesn't want the players working together to improve their working conditions and benefits. Such an action would mean he wasn't the Grand Poobah by the Lake. Unionization could mean an end to the program of "voluntary" off-season workouts in which anyone who volunteers not to be there is volunteering not to play in the fall.

Unionization might also mean that there would be a limit on the number of hours a week players could practice being that excessive practice time interferes with a student's ability to study and prepare for class.

University officials are scared to death of what might happen should the players vote to unionize. A yes vote today could usher in an era of better health care coverage for injuries suffered while playing for the university and for four-year scholarships instead of the current year-at-a-time scholarship that puts a player at the mercy of the coach.

Such measures could cut into the pool of money that Northwestern and other universities rake in from football and basketball. Now, to be fair, very few colleges have athletic departments that make a profit. In fact, many schools have to subsidize athletics by tacking on fees for the rest of the student body. Of course there is always a few million dollars to hand out to the coach. In many cases, the head football coaches at a state's public institutions are the highest paid state employees - underlining our screwed up sense of priorities.

The football players who are on the fence on this issue (and the ones who are against it) need to get their heads around the concept that there is power in numbers. While the coaching staff might not like the idea, if the players are united in their efforts, they will win in the end. These players are exploited by the school. While the NU athletic department brings in some $20 million a year as a result of the Big Ten Network, the players are the equivalents of unpaid farmhands who the program will chew up and spit out once they are no longer of any use.

For the vast majority of these players, their playing days will end with the final game of their senior season. They will then go off into the world with nothing but the education they received at Northwestern. They will be the ones stuck with the nagging medical issues left over from their time on the gridiron.

Our current sports media coverage has deified coaches and athletic directors at the expense of the players. Coaches are portrayed as field generals leading their troops into battle while the players are just the meat being led to slaughter. Watch a college football game and you will never hear a commentator talk about how coaches hold players hostage by threatening to yank a scholarship. You won't hear anyone talk about who's responsible for the long-term side effects of playing college football. You will rarely hear someone talk about coaches who refuse to allow players to transfer to another school.

Today is the day for college football players to fight back and tear off the shackles that hold them captive. This is the time for them to seize the moment. Today's the day we find out whether football builds character or just serves to crush dissenting voices.


In a demonstration of just how powerful a group of workers can be, no one will be climbing Everest from the Nepali side in 2014 after Sherpas decided to walk off the mountain following last week's deadly avalanche. While the Sherpas on the mountain earn far more than the average Nepali, the government's decision to pay the families of those who died on the mountain a measly $400 brought to a boil tensions that had been simmering for years.

Maybe the football players at Northwestern should take a loot to see just what an organized group of workers can do when they act with the collective strength of the entire group.

Thursday, April 24, 2014

Waiting for Godot

For more than 33 years an "intellectually disabled" man has sat in a Texas prison waiting for the new trial he was granted.

In 1977 Jerry Hartfield was convicted of capital murder and sentenced to die. Three years later the conviction and death sentence were overturned because a woman with reservations about the death penalty was struck from the panel. In 1983 the Court of Criminal Appeals formally vacated Mr. Hartfield's conviction and Gov. Mark White sought to commute his sentence to life in prison.

In the meantime, the court never notified the Governor's office that the conviction had been vacated and no one from the Governor's office notified the court that Gov. White was commuting the sentence. And, just to make matters worse, local officials told the court that its mandate for a new trial had been carried out when no such thing had ever happened.

While all of this was going on no one bothered to tell Mr. Hartfield that his conviction and sentence had been vacated.

Now, before we go any further, it is important to note that Mr. Hartfield's IQ is roughly 51 - less than the threshold for mental retardation.

In 2006 Mr. Hartfield learned that the Court of Criminal Appeals had ordered a new trial. For the next seven years Mr. Hartfield's attorneys and prosecutors fought over Mr. Hartfield's right to a speedy trial. The Court of Criminal Appeals all but told Mr. Hartfield's attorneys that his right to a speedy trial had been violated by the failure of the state to carry out the court's mandate.

At the same time prosecutors argued that this developmentally challenged man had waived his right to a speedy trial because he never pursued a new trial. They argued that a man with an IQ in the 50's was able t concoct a plan wherein he sat in jail for three decades in an attempt to prevent the State of Texas from retying him.

In other words, prosecutors argued that not carrying out the court's mandate to retry Mr. Hartfield's case back in 1983 wasn't their fault but was, instead, the fault of Mr. Hartfield.

The judge swallowed the state's argument hook, line and sinker and placed the blame for Mr. Hartfield's plight squarely on Mr. Hartfield's shoulders. In a ruling that can best be described as schizophrenic, Judge Craig Estlinbaum found that Mr. Hartfield was the beneficiary of the 33 year delay because he would be far less likely to be sentenced to death today; but in the same ruling he found that Mr. Hartfield's ability to mount a defense would be compromised due to the death of witnesses and the loss of evidence over the years.

One of the crueler ironies of the case is that since the death sentence had been set aside, Mr. Hartfield wasn't eligible to have an attorney appointed to represent him on post-conviction matters. And with an IQ of below 60, Mr. Hartfield had no clue as to what to do.

I don't know what happened on that night back in 1976 in Bay City, Texas. I do know that what has happened to Jerry Hartfield in the intervening years isn't right. He won the right to a new trial but that right was never communicated to him. Matagorda County prosecutors acted in bad faith and are now arguing that they have clean hands.

Mr. Hartfield should be freed from prison today. The state should not be allowed to benefit from their actions (and inactions). The fact that a man has sat behind bars for 33 years waiting for a new trial is yet another damning indictment of our criminal (in)justice system

Wednesday, April 23, 2014

SCOTUS has one more for the road

Lorenzo and Jose Navarette were minding their own business driving a truck down the highway with 30 pounds of marijuana in the bed of the truck. At some point an anonymous driver called 911 and reported that the Navarette's truck had almost run her off the road. The 911  message was relayed to sheriff's deputies in Humboldt County who stopped the truck - after following it for some five minutes without observing any suspicious driving behavior.

The officers, naturally suspecting that Mr. Navarette was driving while intoxicated in the middle of the afternoon detained the brothers so they could conduct a DWI investigation. During the course of the investigation they came across the stash of weed in the back of the truck. The stop quickly changed course from a DWI investigation into a felony dope investigation.

At trial the court denied the Navarette's motion to suppress the marijuana and the brothers pled guilty and received 90 days in jail plus three years probation.

Now let's make certain we have a couple of the pertinent facts straight. First, the motorist who called 911 never left her name. Second, the anonymous driver never said she thought Mr. Navarette was intoxicated - only that he almost ran his or her car off the road.

On appeal the appellate court determined that there was sufficient corroboration in the fact that the police located the truck near the area the anonymous caller told them it was and that the anonymous caller got the license plate number correct. The appellate court then made the leap of logic that the driving behavior described by the unidentified 911 caller rose to the level of reasonable suspicion.

Of course we know what really drove the appellate court's decision-making process: the defendants had dark skin, funny names and a whole lot of weed in the truck. It was yet another example of courts making rulings based on the outcome and not the process.

Yesterday the US Supreme Court handed down its opinion in Navarette v. California, 572 US _____ (2014). And, not surprisingly, held that the stop met constitutional muster because the information provided by a caller who remains nameless was somehow corroborated when the officer saw the truck on the highway and because the driving behavior just screamed out that Mr. Navarette was intoxicated.

The Court went on to say that the fact that the call was made so near the time of the alleged driving behavior (according to the unnamed motorist) indicated that our Friend With No Name hadn't had sufficient time to make up the story. It just had to be true.

The decision is yet another broadside blow to what remains of the Fourth Amendment. It is also part of a line of cases that make a mockery out of a defendant's right to confront the witnesses against him. When was Mr. Navarette permitted to cross-examine the nameless caller? When was he allowed to probe for reasons the driver might make up, or exaggerate, an incident on the road? The officer certainly couldn't testify as to what driving behavior he witnessed that made it apparent that Mr. Navarette was intoxicated.

Justice Antonin Scalia summed it up best in his vigorous dissent:
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s. 

Tuesday, April 22, 2014

Trouble brewing on the mountain

I read Jon Krakauer's book Into Thin Air a few years ago and was absolutely mesmerized by his account of the deadliest climbing season on record. But what really struck me is the way that the Sherpa guides are used to make it as easy as possible for would-be mountaineers to make the climb. The Sherpas go up the mountain first and set up base camps, ladders and ropes for the wealthy climbers to use on their ascent.

While the climbers each pay upwards of $50,000 (or more) to make the climb, the Sherpas, who risk their lives every season for the enjoyment of the monied class, make about $4,000 to $5,000 a season. The western guides, on the other hand, rake in up to $50,000 for piggy-backing off the work of the Sherpas.

The folks who pay through the nose for the opportunity to climb the mountain get all the glory for standing on top of the world while the Sherpas, who have climbed the mountain more times than most can count, are nothing but a footnote.

The exploitation of Nepal, its people and its mountain is rarely mentioned in polite company.

But that may change.

Last week, at the beginning of the climbing season, an avalanche struck Everest. The victims of Mother Nature were the Sherpas who were setting up ladders and ropes for the wealthy climbers. If you've ever read Into Thin Air then you can draw a mental map of where the avalanche occurred in the Khumbu Ice Fall - one of the most treacherous parts of the lower climb.

Thirteen Sherpas are known dead and three more are missing (but presumed dead). The tragedy has raised questions about the way Sherpas are exploited during the climbing season. In the aftermath of the deadly avalanche the Nepali government has made payments of approximately $662 to the families of each of the Sherpas killed in the avalanche.

The Sherpas are now hinting at possible strikes during this year's climbing season in an effort to raise wages and benefits.

The mountain expedition business puts about $3 million a year in the Nepali treasury. Everyone, it seems, is getting rich except for the folks who actually put their lives on the line for the benefit of wealthy foreigners who want to check off one more item from their bucket lists.

What a perfect metaphor for capitalism.

Monday, April 21, 2014

He could a-been the champion of the world

Rubin "Hurricane" Carter was a feared middleweight. He was short and slight compared to his opponents but he was a beast in the ring. With his shaved head and all-out style he was a threat to win the world middleweight title. His one chance ended in a unanimous decision loss to Joey Giardello.

It would be his last shot at the title as he was wrongly convicted of a 1966 triple murder in a New Jersey bar. After being granted a new trial he was convicted a second time in 1976. But despite the outcome in the courtroom, neither Mr. Carter nor his supporters gave up their fight. In 1985 justice finally prevailed and Carter was freed from prison.

This past weekend, the Hurricane died after a bout with prostate cancer.

Rubin Carter lost 19 years of his life. He lost any chance he had at a another shot at the middleweight title. Carter's story isn't that of a criminal (in)justice system that eventually finds the truth - it's yet another tale of a criminal (in)justice system that exploits those who are poor and who have darker skin.

Rest in peace, Rubin. You are a champion.

Friday, April 18, 2014

Book review: The Sixth Extinction - An unnatural history

There have been five great extinctions that we know of through the fossil record. The most famous of those extinctions was the wiping out of the dinosaurs after a meteor struck the earth some 65 million years ago. The most important one was the great extinction at the end of the Pre-cambrian period.

Elizabeth Kolbert's new book, The Sixth Extinction, takes a look at the five great extinctions with the aim of finding some common thread. She begins with the death of frogs in Central America thanks to a fungus the overwhelms their systems. This decimation becomes the lens through which she views the great extinctions.

The late Stephen Jay Gould was a professor at Harvard University who wrote extensively on evolution. His book, The Wonderful Life, detailed the great extinction at the end of the Pre-Cambrian period. In that book Dr. Gould makes the controversial argument that species come and go not because of how well-adapted they are (or ill-adapted for that matter) but because some random change in the environment changes the rules of the game. According to Dr. Gould, the evolutionary history of our planet could have been very different but for a random event at some point in our ancient history.

The book casts a skeptical eye at the notion that we are on top of the evolutionary chart because we are the most advanced life form. We're here, says Dr. Gould, because random events in the distant past rendered other species extinct which allowed early humans to develop. During the Pre-Cambrian extinction, about 90% of the species inhabiting the Earth died out.

Ms. Kolbert takes Mr. Gould's theory and runs with it.

Her thesis is that life develops and evolves in a fairly hum-drum sort of way until some event occurs that renders the adaptations of many species moot. For instance, one mass extinction was caused by the "sudden" acidification of the oceans. Sudden, of course, being a term of art in the world of evolutionary biology. At some point, long ago, an event occurred that raised temperatures on Earth. The rising temperatures caused the oceans to become acidified. This acidification spelled doom for some species who were perfectly well adapted to their environment. They went extinct, not because they were low men on the evolutionary totem pole but because they couldn't adapt to a random change in their environment.

Her warning is that just because we seem well-adapted to our existing world doesn't mean that we will be able to adapt to changes in our environment. Change might take us out on its own accord, but we could also be taken out because of changes that have negative impacts on those species on which we depend.

She reminds us that just because we're on top of the food chain today it doesn't mean we'll be on top in the future. At one time giant dinosaurs were kings of the planet. Then a meteor hit and temperatures plunged because of the thick clouds of debris in the sky. The change in temperature meant doom for the species upon which dinosaurs depended. And as their food supply dwindled, so did the dinosaurs. In their day no one could challenge them - but then, due to a random event, they were gone.

Are we doing the same thing to ourselves?

Thursday, April 17, 2014

Update: Another murder behind the Pine Curtain

The State of Texas murdered Jose Villegas last night. They strapped him down to a gurney, put an IV into his arm and pumped him full of what is supposed to be pentobarbital. Of course since the US Supreme Court decided that no one in Texas - outside of prison officials - has any right to know who produced the drug and whether it was what it was supposed to be, we don't know what was pumped into his veins.

We do know that something wasn't quite up to snuff because Mr. Villegas complained of a burning sensation as the death drug took its toll.

The murder of Mr. Villegas was put on hold for almost an hour as the Supreme Court considered an appeal from Mr. Villegas' attorneys arguing that to allow the execution would be to allow the state to take the life of a mentally retarded man. An IQ test taken this past February indicated that Mr. Villegas' IQ was 59 - well below 70, generally recognized as the indicator of mental retardation.

Texas officials argued that Mr. Villegas' attorneys had plenty of time to raise the issue of mental retardation before filing a last-minute appeal based on the February test.

Of course if he's retarded then he's retarded - whether a test was taken 10 years ago or last week. And, if the Nine in Robes have proclaimed that we shalt not execute a mentally retarded person, then Mr. Villegas shouldn't have been strapped down and murdered.

Yes, his crimes were heinous. He killed an ex-girlfriend, her child and her mother. But killing him didn't bring any of them back. Killing him didn't fill the hole that was left in the hearts of the victims' family and friends. Nueces County District Attorney Mark Skurka proclaimed that justice was done - after complaining that the murder of Mr. Villegas seemed so clinical.

What a funny concept of justice Mr. Skurka has. How does the murder of a person equate to justice? Revenge maybe, but certainly not justice. And ultimately that's what the execution of Mr. Villegas was all about - an exercise in public revenge. This is the point to which our society has evolved after thousands of years - we still consider revenge to be a perfectly acceptable goal in our criminal (in)justice system.

While doing some research on Mr. Villegas earlier this week I ran across a blog post from Laura Dimon that paints a chilling picture of the process of execution. I believe most of the material in her piece came from a radio documentary that first ran back in 2000. The documentary, Witness to an Execution, features interviews with prison officials and guards in Texas who facilitate executions.

Jeffrey Toobin expressed his opinion on state-sponsored murder when he stated that no matter how "humane" you try to make the process, you can never erase the fact that you're strapping a person to a table in order to kill him.

From Ms. Dimon's post:
Similarly, Toobin calls the search for humane execution "oxymoronic." He wrote, "It’s understandable that Supreme Court Justices have tried to make the process a little more palatable; and there is a meagre kind of progress in moving from the chair to the gurney. But the essential fact about both is that they come with leather straps to restrain a human being so that the state can kill him. No technology can render that process any less grotesque."
And so, when Mr. Skurka wants to complain that the process is too humane he's missing the point entirely. But sometimes knuckle-draggers can't quite grasp those higher levels of thought. Murder is murder - it doesn't matter who's doing it. It doesn't matter how they do it.

Deliberately taking the life of another is murder. And regardless of how you want to disguise the issue, everyone who participates in the execution of an inmate is an accessory to murder.

I leave you with this excerpt from Ms. Dimon's post:
One warden said, "You'll never hear another sound like a mother wailing when she is watching her son be executed. There's no other sound like it. It is just this horrendous wail. It's definitely something you won't ever forget."

Wednesday, April 16, 2014

Criminalizing thoughts and speech

Frazier Glenn Cross is not a particularly nice person. He is a former grand dragon of the KKK and he's been charged with the murder of three folks in Missouri. Apparently he decided he wanted to kill some Jewish folk prior to Passover.

If Mr. Cross pulled the trigger and killed three people then he should be convicted of murder in a Missouri court. He should receive whatever punishment the court deems appropriate. So long as he is afforded due process of law, he will deserve whatever he gets in state court.

But los federales want to charge him with a hate crime. The government says that because he said he wanted to kill Jews that his sentence should be enhanced. Let's forget for a second that we have something called the First Amendment that protects our right to say things that others disagree with.

The ultimate irony, of course, is that none of the three people he killer were Jewish.

The federal hate crimes statute - and the hate crimes statutes in various states - are all appalling violations of the First Amendment. Mr. Cross should be punished for what he did this past weekend. Murder is still against the law in Missouri. Punishing him for what he was thinking - or what he said - is wrong.

The fact that a person spouts racist ideas before pulling the trigger doesn't change the outcome of his actions. He pulled a gun, aimed it and pulled the trigger. A person is dead because of it. Whether he said "Kill the Jews!" or "Kill the blacks!" or kill some other ethnic, religious or gender-based group doesn't matter. The only thing that matters is whether he pulled the trigger with the intent to kill someone.

We don't need to be in the position of policing thoughts and speech. We don't need to prosecute folks because of what they said or thought at the time. The only thing that should matter is what the person did given the chance.

Tuesday, April 15, 2014

Execution Watch: 4/16/2014

On Wednesday night, the State of Texas will kill again...

JOSE VILLEGAS, condemned in the slayings of his ex-girlfriend, her son and her mother. Villegas lost his bid to delay his execution date when a Corpus Christi district court judge ruled last week against his attorneys' assertions that he was unstable and not mentally competent to understand what he was doing when he committed the stabbings in 2001. The U.S. Supreme Court has ruled that the Constitution prohibits the execution of anyone deemed mentally incompetent.

We still don't know who produced the drug, how the state acquired it or whether its efficacy has ever been tested. But I guess that's just a bunch of 8th Amendment technicalities that we don't need to worry about.

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

Monday, April 14, 2014

What day is it?

These are the signs that greeted visitors to the Austin County Courthouse in Bellville, Texas last week. I'm sure those signs had no effect on the jury pool.

This is a sign that greeted visitors at the Harris County Criminal (In)justice Center last week.

So when do we get to celebrate National Victims of Prosecutorial Misconduct? What about a week in remembrance of the Fourth Amendment? Maybe Forensic Junk Science Month?

Friday, April 11, 2014

Some more burnt ends

Some things you just can't make up. You might try to put an ironic twist on something but it never comes together in a coherent way. Or else the premise is just so far out there that no one's buying it.

But then there are times that irony and premise intersect.

And that's what happened when three security guards at the Harris County Criminal (In)justice Center were arrested. It's bad enough that folks accused of committing a crime are forced to stand in ridiculously long lines because the architect of the building had his head up his ass and because the judges don't seem to understand that forcing defendants to come back to court for meaningless settings every three to four weeks feeds the problem. Now it turns out that contract security guards were stealing from them.

One security guard made off with an iPad while another pocketed a flat iron (of all the things one could steal she chose that?). These items either belonged to defendants or to their family members or friends. What could be lower than that?

A third security guard was charged with tampering with a government document when she altered a log that is filled out whenever someone places money in the security scanners. Of course the question of why someone would carry $1,000 into a criminal courthouse is a valid inquiry.

Now the three of them will enjoy the experience of trying to get into the criminal courthouse in time to answer the docket.

Over at the University of Houston there is a new man in charge of the basketball team. Former OU and Indiana coach Kelvin Sampson was hired to replace (retread) James Dickey earlier this month. This is, of course, the same Kelvin Sampson that left both the OU and Indiana programs in turmoil when he left thanks to his attempts to skirt NCAA recruiting rules. I'm sure nothing like that could ever happen again.

But that's not the story.

You see, coaches are free to walk away from jobs and walk into new jobs without penalty. Both coaches and schools routinely ignore those pesky little contacts everyone signed when they were hired whenever it suits their interests. When a coach sees a better opportunity it's easy for him to pack his bags, turn his back on the players he recruited and head for greener pastures. When a school is fed up with losing there is nothing to prevent them from cutting the coach loose for the next flavor-of-the-month. A little money exchanges hands according to the buy-out provisions and everyone is happy.

But the players aren't so lucky. When they signed their commitment letters they were handed a one-year scholarship that could be renewed year-to-year by the school. It's the NCAA's way of making certain that college athletes "know their place" in the universe.

Danual House and TaShawn Thomas wanted to transfer away from UH after the school hired Mr. Sampson as its new basketball coach. But the school wouldn't allow them to do so. Without providing any reason, the University denied both transfer requests. Now Mr. House and Mr. Thomas must appeal the decision if they want to go elsewhere to play and go to school. And, even if they win their appeal, UH can still block them from transferring to certain schools.

The decision by UH is but the latest example of how life on the plantation is for college athletes. Neither of these players is paid by the school. In exchange for playing basketball they both received the promise of a free education. But, while the university can cut them loose at any time for any reason, the players don't have the right to leave the university and transfer elsewhere when they decide that the school is no longer such a great fit.

There is no excuse for the actions of the UH athletic department. The decision to deny the transfers was made just to show the players whose in charge on Cullen Boulevard. Everyone who had a hand in that decision should be ashamed of themselves.

For those who were outraged by the NLRB decision that student-athletes at Northwestern were university employees, this is an example of why such protections are needed.

Thursday, April 10, 2014

Another innocent man freed from prison

How many more stories are we going to have to read about innocent men and women being released from prison after serving two decades or more because prosecutors failed to disclose exculpatory evidence at trial? How many more lives are we going to allow to be ruined because prosecutors are more interested in winning a case than they are in getting it right? And I'm not just talking about the wasted years of the innocent man - I'm talking about the enormous cost to his family.

Jonathan Fleming was convicted of the 1989 murder of Darryl Rush in Brooklyn. For more than two decades he missed every birthday, wedding, graduation and funeral for his family and friends. Those are 24 years of wasted memories that he can never get back.

When Mr. Fleming was accused of the murder he told the police he was in Florida. A review of the file revealed that the police had a hotel receipt from the day of the shooting and a note from the Orlando Police Department that hotel employees remembered seeing him that day.

Those items were never turned over to Mr. Fleming's attorneys. Despite his protestations, Mr. Fleming was convicted.

Even after a witness admitted to lying on the stand after the conviction, prosecutors continued to defend the conviction.

Mr. Fleming's conviction was overturned as the result of a review of questionable convictions from the Kings County District Attorney's Office. But for that investigation by the Conviction Review Unit, Mr. Fleming might still be behind bars today.

Mr. Fleming has announced that he will sue everyone he can for the injustice he was forced to endure for almost a quarter-century. But all the money in the world can never give him back the thing he lost - time.

As for the prosecutors who tried the case, the only appropriate remedy is disbarment. What they did was so reprehensible there is a special ring in Dante's hell for them. To the ADAs who handled Mr. Fleming's case, he was nothing but a case number. I'm sure they tossed out numbers to his attorneys like they were candy. What the hell, it's not like it would affect them one little bit. Close out one case and pick up the next one.

They betrayed their oath of office. They betrayed their oath to uphold the law and the constitution. They betrayed their profession. They betrayed themselves. They are scum and they don't deserve to call themselves lawyers anymore. Until we decide to put some teeth into Brady and our criminal discovery statutes, this will continue to happen. Until courts decide to impose sanctions on prosecutors who play hide-the-sausage with exculpatory evidence, this will continue to happen.

The other day Scott Greenfield wrote about a judge who did just that when he found out that a prosecutor withheld exculpatory evidence. Of course his sanction - banning the prosecutor from his courtroom - wasn't nearly harsh enough.

And still they went on practicing law like nothing happened. It didn't bother them that an innocent man was sitting in prison because they didn't hand over exculpatory evidence to the defense. It's not like they even gave a fuck that the evidence didn't support their theory of the case.

And let's take a wild guess at what kind of testimony it was that led to Mr. Fleming's wrongful conviction -- could it possibly have been eyewitness testimony? Isn't that another link with most of the publicized exoneration cases? In many cases it was the DNA evidence that proved innocence after eyewitness testimony put them behind bars.

While we should take pleasure in Mr. Fleming's exoneration, we can never forget that this incident serves as yet another indictment of our criminal (in)justice system.

Wednesday, April 9, 2014

Trusting blindly and swallowing whole

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  - Fifth Amendment, US Constitution
Back in September 2011 a US drone flying over Yemen fired a missile at a car in which two American citizens were riding. The blast killed Anwar al-Awlaki, a radical cleric who may or may not have had ties with al-Qaeda and Samir Khan. Two weeks later another drone fired a missile into a crowd at an outdoor cafe killing Mr. al-Awlaki's 16-year-old son, Abdulrahman, who was also an American citizen.

The US government claimed that Mr. al-Awlaki was in a leadership position in al-Qaeda and that his murder was justified in protecting the national security of the United States. The government also claimed that it had no idea that al-Awlaki's son was in the cafe when it was attacked.

The decisions to kill these Americans was made by a small cabal of government officials huddled in the White House. There were no formal charges. There were no indictments. There were no probable cause hearings. There was no discovery. There was no trial. There was nothing but a star chamber who looked over a list of names and decided who would live and who would die.

Mr. al-Awlaki's parents brought suit against the United States government for the murder of their son and grandson. They alleged that the government's actions had amounted to depriving Mr. al-Awlaki and his son life without due process of law.

Last week US District Court Judge Rosemary Collyer of the District of Columbia tossed out the lawsuit. She chose not to believe that the government had deprived both Mr. al-Awlaki and his son of their due process rights. She fell lockstep in with the official line that we live in dangerous times and that we should trust our government to make the right choices.

In her opinion, Judge Collyer ran through a list of government entities that had looked into Mr. al-Awlaki's background and status. She fully accepted the proposition that if a government agency investigates a matter and draws a conclusion that the conclusion must be accepted as valid.

She, of course, never seemed to give a second thought to the idea that sometimes the government gets it wrong. Everyday across this country there are juries who return verdicts of not guilty in criminal cases because they didn't believe the government had proved its case beyond all reasonable doubt. There are cases dismissed in courts across their country every day because prosecutors come to the realization that they just can't prove their case.

But for Judge Collyer you don't even have to go that far. In her mind the allegation alone - if it is repeated by enough people - is sufficient to prove guilt.

The evidence supporting the government's allegations against Anwar al-Awlaki was never tested in the crucible of trial. The government's witnesses were never challenged on the stand. Mr. al-Awlaki was never given the opportunity to respond. In short, the system of laws that we have in place to "protect" those charged with criminal offenses was ignored by a judge who was looking for any reason to dismiss the case.

In this case the US government exercised its most invasive power - the power to determine who should die - against three American citizens without affording them due process of law. And a judge who swore she would uphold the law and the constitution blindly accepted the government's story without so much as a doubt.

The message is quite clear. The government is here to protect you. Such quaint notions as due process only make it harder for the government to do its job. Besides, why would anyone from the government lie?

Cameron Willingham was accused by the State of Texas of setting his house on fire and killing his children. He was indicted. He was tried. He was convicted. He was murdered by the state. And he was innocent. Sure, he was afforded his due process rights - and look how much good it did him.

Michael Morton was accused by the State of Texas of killing his wife. He was indicted. He was tried. He was convicted. He sat in prison for 25 years before he was exonerated when his attorneys discovered the games that Williamson County prosecutors played during the investigation and during trial. He was afforded his due process rights - and he lost 25 years of his life.

Anthony Graves was accused by the State of Texas of murder. He was indicted. He was tried. He was convicted. He was sentenced to death and sat on death row for more than two decades when his attorneys uncovered the illegal and unethical actions taken by the prosecutor. He was afforded his due process rights - and stared death in the face.

But still Judge Gallyon thought it was enough that someone from the government said that Anwar al-Awlaki was a bad guy and deserved to die. And that is a very frighting notion. The fact that it was a judge makes it even worse.

H/T Democracy Now! and Center for Constitutional Rights

Tuesday, April 8, 2014

Execution Watch: 4/9/2014

On Wednesday night, Texas is set to kill again...

RAMIRO HERNANDEZ. A native of the state of Tamaulipas in northern Mexico, Mr. Hernandez was convicted in the Oct. 15, 1997, beating death of a man in Kerrville. Appellate attorneys from the Cornell Death Penalty Project have argued that Hernandez, who literally grew up on a toxic waste dump, is mentally retarded and therefore ineligible for execution.

Last week Federal District Judge Vanessa Gilmore issued a ruling ordering the State of Texas to turn over details of how the state acquired new supplies of pentobarbital, including the name of the compounding pharmacy. The ruling temporary halted the scheduled executions of Tommy Sells and Ramiro Hernandez. After the 5th Circuit set Judge Gilmore's ruling aside - and after the US Supreme Court refused to get its hands dirty, the executions of both Mr. Sells and Mr. Hernandez were put back on the calendar.

We still don't know who produced the drug, how the state acquired it or whether its efficacy has ever been tested. But I guess that's just a bunch of 8th Amendment technicalities that we don't need to worry about.

Unless a stay is issued, we'll broadcast live:
Wednesday, April 9, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...

Monday, April 7, 2014

More problems for the HPD Crime Lab

Could the news be any better for the Houston Police Department Crime Lab? After having its DNA lab shut down due to faulty storage and testing issues and after cutting loose a technical supervisor who had the nerve to say that the intoxilyzers in HPD's batvans were faulty, now comes word that an analyst has been cut loose for not following procedures.

According to this story from KRIV-26 in Houston, an analyst who had been with the lab for two years resigned in mid-March amid allegations he (or she) mishandled evidence. The situation was so bad that Irma Rios, the lab's director, wrote in a memo that she would not recommend the worker be rehired.

Unfortunately the station declined to name the analyst leaving us all in the dark as to who mishandled the evidence and whose cases were affected. None of the local news operations seem to have any qualms about putting the names of those arrested for alleged criminal activity all over the television and newspaper, but heaven forbid we publish the name of a crime lab analyst whose work may have tainted dozens or more criminal cases.

Interestingly enough the resignation of this analyst and the sudden departure of Michael Manes, the lab manager at the HPD crime lab, seem to have fallen into the same window of time. Mr. Manes, who had been with the lab in its various incarnations for around 30 years, has left the building and is now working in Montgomery County with the Sheriff's Office or as a forensic-analyst-for-hire depending on who you talk to.

It's all a bit interesting considering that a current case of mine has a lab report that was Mr. Manes performed the technical review (looking at the paperwork) last summer but was was suddenly re-reviewed by a new supervisor in mid-March with no apparent explanation.

This latest incident is just one more reason that crime labs need to be taken out of the hands of the police departments and be run as independent labs with no loyalty to any agency or office. If the purpose of scientific evidence is to get us closer to the truth, then we need to end this cozy arrangement between crime labs and law enforcement agencies.

Friday, April 4, 2014

Postscript: US Supreme Court refuses to block execution

Tommy Sells was murdered by the State of Texas last night. He was killed after the US Supreme Court rejected his appeal of a ruling by the 5th Circuit Court of Appeals that vacated Federal District Judge Vanessa Gilmore's order for the state to disclose the source of its death drug.

The State of Texas relied on the specious argument that disclosing the source of the death drugs would expose the compounding pharmacy (or pharmacies) that supplied the drugs to violence. The real argument was that compounding pharmacies wouldn't provide the drugs if their names were to be made public. 

It's just not that great for business when a pharmacy is linked to executions. I've said it before, pharmacists have an obligation to do no harm. Some would rather have the money. If there's enough money on the table, a whole lot of ethical dilemmas seem to go the way of the dinosaurs. But if those arrangements are made public those same pharmacists would back away from the table and slink back into the night.

That is the fear of state officials. They know the price of the drugs would escalate dramatically if the suppliers knew their names would be released. And the higher the cost, the harder it is to justify the expense.

The US Supreme Court apparently couldn't be bothered about another Eighth Amendment challenge to lethal injection. Maybe the justices were still recovering from the strange contortions and genuflections they were forced into when claiming that money is speech. I mean, hell, it's a whole lot more important to ensure that candidates can be openly bought and sold by the highest bidder than it is to think about the legal implications of allowing states to keep the names of their drug suppliers secret.

There are far too many things we let the government keep to itself. When you think about it, the very notion that some things are far too sensitive for the government to inform the governed about turns representative democracy on its head. Never forget that the government works for us; not the other way around. The default position should be "no secrets." It shouldn't be up to the public to demand to know what the government is doing behind our backs with our money; it should be the government's burden to show why certain things should be kept secret.

The question gets more tortured when the focus is on the manner in which the government exercises its most intrusive power - the power to take a life - and not on some shadowy alleged threat from overseas. The name of the compounding pharmacy that produced the death drug isn't a matter of national security. The financial arrangements between the state and the pharmacy aren't matters of national security. Whether the drugs were ever tested to make certain they did what they were supposed to do (and how they were supposed to do it) isn't a matter of national security.

Those are matters of political expediency. Keeping those matters secret means it will cost the state less money to convince a pharmacist to rationalize his choice to aid in the murder of another person. As my mama used to tell me, if you'd be ashamed to do something in public, you probably shouldn't be doing it in private.

But what does it matter? Condemned prisoners aren't lining up to take advantage of the Supreme Court's emasculation of campaign finance laws.

Thursday, April 3, 2014

Update: On the other hand, who cares where the drugs came from?

In a shocking move, the 5th Circuit Court of Appeals overturned Federal District Judge Vanessa Gilmore's order blocking two executions until such time as the state turns over details regarding the acquisition of the death drugs to the attorneys for Tommy Sells and Ramiro Hernandez-Llanas.
"Until Plaintiffs have full disclosure of their product with which Texas will cause their death, they cannot fully develop a challenge to its process. The question is not whether some error may cause a significant chance of pain in the execution procedure, but whether even a properly conducted execution will result in intolerable pain because of the standard used." -- Judge Vanessa Gilmore
So, according to the prosecution-friendly 5th Circuit, it doesn't matter how the state acquired the drugs. It doesn't matter from whom they acquired the drugs. It doesn't matter whether the drugs have been tested. It doesn't matter whether the drugs do what they are advertised to do. According to the 5th Circuit, the only thing that matters is making it easier for the state to kill inmates.

Pending an appeal to the US Supreme Court, the scheduled murder of Tommy Sells is back on the calendar. The status of Mr. Hernandez-Llanas date with the executioner is unknown.

"Justice" of the peace?

Oh, where to begin?

The other morning I had a client in traffic court out in West Houston (Precinct 5, Place 2 for those keeping score). He's a "frequent flier" and he, and his friends and family, provide a nice bit of pocket change over the course of the year.

He was cited for failure to control speed - he rear-ended another vehicle on the highway.

The driver of the other car showed up in court. The prosecutor chatted with him. I then went to the back room to chat with the prosecutor.

The case was simple enough. The driver of the other car had to slow down for traffic and my client hit him from behind. The damage to the other driver's car had been repaired and he wasn't out of pocket. But the prosecutor wasn't willing to let the case go so she offered my client a 90-day deferral with a fine of $50 plus court costs. If my client managed to go 90 days without getting another ticket in that court the case would be dismissed.

He took the deal.

So I had him stand in line for the clerks and headed downtown to take care of a couple of cases at the criminal courthouse. Before I ever made it to the freeway (just a few miles), I got a call from my client. In broken English he told me that the clerk said he would have to pay more money and take a defensive driving class. I told him that wasn't our deal. Eventually the clerk got on the phone and I explained to her what the agreement was. I thought the matter was resolved.

I was wrong.

On my way downtown I got another call from my client. They wanted him to pay more money and take the defensive driving class. I told him to wait for me. I told him it would be a couple of hours before I could get back to the courthouse.

As I was parking my car downtown I got yet another call from my client. He told me that the clerk said he needed to go back and talk to the prosecutor. I told him he was to do no such thing.

I then called the court and the phone was answered by an intern who had absolutely no clue as to what she was doing. She tried to explain to me (after speaking to someone else) that the court's standard offer would require my client to pay a higher fine and take a defensive driving class. I told her that wasn't the deal the prosecutor had made with us and that if that's how they wanted to play then we would just go to trial.

Now, in the interest of full disclosure, I was not the best behaved person on the phone. I was pissed and I said some things I shouldn't have said. In no way would I try to imply that my choice of language was either professional or appropriate. But this situation was ridiculous.

I called my client back and told him to meet me at the courthouse at 1pm - the scheduled time for the actual trial docket.

I was quite surprised when I got to the courthouse at 1pm and my client handed me a reset form with a new trial date. I was even more surprised when the clerk behind the window told me that prosecutor had left for the day. I asked to see the jacket so I could get the information on the other driver.

So I sat and waited. And waited. A supervisor finally came out and told me the file was with the judge and he was at lunch and they were trying to get his attention (oops, I think that's the equivalent of being sent to the principal's office). By this time I had wasted nearly 30 minutes at the courthouse and I had had enough. I told her no thank you and my client and I left.

One of two situations occurred behind the scenes that morning - but neither was handled according to the law. Either the clerk took it upon herself to change the terms of the plea bargain agreement or the judge rejected the deal. If the clerk did the deed then she was practicing law without a license. She may also have altered a government document. The clerk had no business getting involved in the plea agreement between the district attorney and my client. The ADA reviewed the case, spoke with the witness and discussed the matter with me before making her offer. She made an offer that she thought was reasonable and appropriate given the circumstances. The clerk, on the other hand, just sat behind a window and called out "next."

The clerk was also out of line when she told my client that he needed to speak to the district attorney about the deal. He was represented by counsel. The clerk knew he was represented by counsel. The clerk also knew (after speaking with my client) that English wasn't his first language. That makes her conduct even more deplorable.

The alternative was that the judge rejected the offer when it came across his desk. If that was the case then my client (and me) should have been told the court rejected the offer and my client had the right to withdraw his plea. That didn't happen. No one from the court ever called me to say that the judge rejected the offer.

Yes, attorneys tend to gum up the works in traffic court - whether it be municipal or justice - but, if you love the Constitution, that's a good thing. Judges would probably prefer that attorneys didn't get involved - we tend to lower the overall revenue of the court by our meddling. But if the court's are going to have so-called "standard offers" then the attorneys representing the state are no longer acting as attorneys - they are nothing more than glorified clerks.

This is the result of judicial efficiency being placed higher on the pedestal than fairness and equity. This is what happens when a court develops an attitude of us-against-them when it comes to dealing with criminal defendants.

This just goes to prove, that in the courthouse, there is no justice. There's "just us."

Wednesday, April 2, 2014

Update: Federal judge tells Texas to put up or shut up

Tomorrows's scheduled execution of Tommy Sells has been blocked by US Federal District Judge Vanessa Gilmore who ordered the State of Texas to disclose the names of the suppliers of the state's death drugs as well as other details related to the state's acquisition of the drugs.

Judge Gilmore's order also puts next week's scheduled execution of Ramiro Hernandes-Llanas on hold.

Attorneys for the condemned men filed a federal lawsuit after the Texas Supreme Court reversed the Third Court of Appeals' decision that the state had to disclose the information.

Judge Gilmore's decision is a rebuke to the notion put forward by the state-sponsored murder machines that the public doesn't have the right to know the details of how the states acquire their death drugs. It is also a sign that the courts are going to take seriously the fact that drugs produced by compounding pharmacies are not regulated.

Could this be another nail in the coffin?

Execution Watch: 4/3/2014

On Thursday Texas is set to kill again...

TOMMY SELLS. The Oakland, California, native was convicted in the slaying of a teenage girl in Del Rio on New Year's Eve 1999. Under questioning by police, Sells took responsibility for dozens of slayings around the country, though his appellate lawyers asserted that detectives pressured him to make the grandiose statements. They also argued that his attorneys failed to represent him effectively at trial and early in the appeals process.

Unless a stay is issued, we'll broadcast live:
Thursday, April 3, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...

Tuesday, April 1, 2014

On irony and ethics

There are some things you just can't make up -- and this is one of them. Robert Bennett is, or, more accurately, was, an attorney in Houston who defended attorneys brought before the State Bar's disciplinary committee as part of his practice.

But Mr. Bennett's own problems before the Bar proved too much to overcome and he was disbarred by the State Bar on March 21, 2014 following a trial on allegations that Mr. Bennett failed to follow the state's disciplinary rules regarding termination of representation and taking actions that unreasonably increased the cost of litigation.

Despite the State Bar only asking for a two-year suspension, Bexar County District Judge Carmen Kelsey signed an order disbarring Mr. Bennett. The matter is being appealed. Should the disbarment be upheld, Mr. Bennett would have to wait five years to gain re-admittance to the bar.

The dispute arose when a Bennett client, Gary Land, requested arbitration to resolve a fee dispute. Mr. Land went to the State Bar after Mr. Bennett declined to pay the judgment entered against him. The matter was eventually appealed to the state Supreme Court who declined to hear the case.

Now Mr. Bennett has found a new line of work. His new firm, Bob Bennett Licensing Services for Professionals, represents professionals who find themselves afoul of their state licensing agency.
Mr. Bennett is the owner of Bob Bennett Licensing Services for Professionals. The counselors in this licensing services are especially proficient in cases involving, matters before the Office of Chief Disciplinary Counsel, the Texas Medical Board, the State Board of Law Examiners, and other Boards involving professionals and DTPA violations, ethics defense, and white-collar criminal defense.
The Bob Bennett Licensing Services for Professionals concentrates on representing attorneys, doctors, judges, and other professionals who have professional discipline issues responsibility and find themselves the subject of federal and state investigations. This includes representation of both law students and medical students who have run afoul of the Texas Board of Law Examiners or Texas Medical Board. Medical students and doctors who have issues with the United States Medical Licensing Examination, the National Board of Medical Examiners, or the Federation of State Medical Boards have retained the Firm. Whether the matter involves a grievance hearing before the Texas Office of Chief Disciplinary Counsel or a privilege hearing before a hospital committee, the Firm is known for aggressive representation and success. See client reviews and peer recommendations: 
Specialties: Representing law students and lawyers before the Board of law Examiners or cases with the Office of Chief Disciplinary Counsel or before the Texas Board of Medicine
Interesting that there's no mention in his blurb on Avvo that mentions the disbarment - but why bring up such an issue when there's money to be made?

A quick glance to the law firm's website shows that Mr. Bennett is still advertising his law practice despite the disbarment. Mr. Bennett is also still listed as an attorney with the firm - despite no longer having a law license. Might that lead to a new problem down the road?

In the interest of full disclosure, Mr. Bennett did represent former death row inmate (and exoneee) Anthony Graves. Mr. Graves walked out of prison after it was disclosed that the prosecutor in his case, Charles Sebesta, withheld evidence during the trial that led to Mr. Graves' conviction.