In Tennessee they've decided to bring back the electric chair in face of the shortage of death drugs. In Ohio they've gone a different direction.
In light of the murder of Dennis McGuire back in January (you'll remember that it was the longest execution in Ohio and that Mr. McGuire refused to die), US District Judge Gregory Frost issued a 2 1/2 month long moratorium of the state's death machine.
Judge Frost was concerned that the McGuire execution was proof enough that something is wrong with either the new drug protocols or the drugs themselves. The entire problem was brought about when European drug suppliers finally decided to put principle above profit and stop selling drugs to US prisons for use in executions.
Judge Frost's order puts a halt to the scheduled executions of Ronald Phillips and William Montgomery. Judge Frost was unmoved by Ohio's decision to up the dosage of the death drug.
Will the death penalty begin to go the way of laws banning same-sex marriage? Just as those laws have been stricken down state-by-state, could this ruling by Judge Frost be the beginning of the state-by-state abolition of the death penalty? Just keep in mind that some 19 states have already abolished the death penalty making it that much easier to determine that the death penalty is unusual.
Friday, May 30, 2014
Thursday, May 29, 2014
Judge, jury and executioner
Yes the police have a job to do. It can be a hard job and it can damn sure be a dangerous job at times. But just because you wear a uniform with a badge and carry a gun doesn't mean you have carte blanche to decide who lives and who dies.
Last August in Sherman, Texas (about an hour north of Dallas), Mary Surratt was stopped for not signaling a lane change. She was arrested and placed in the back of a patrol car without being searched. While in the back of the car, Ms. Surratt tried to ingest cocaine she had on her person.
An unnamed police officer then began hitting Ms. Surratt with his fist and a flashlight to try to get her to spit out the cocaine. When that didn't work he pressed his flashlight against Ms. Surratt's neck until she passed out. The officers then took her out of the car and tased her while she lay on the ground unconscious.
Ms. Surratt lie on the ground for more than 20 minutes before she was taken to a local hospital where she was declared to be in a vegetative state. She died less than a month later.
By all accounts Ms. Surratt broke the law. But even had she been convicted of possessing cocaine, at most she would have ended up in state jail - more than likely she would have landed on probation (or even deferred adjudication). She certainly wouldn't have been sentenced to death.
The officers involved in the stop and detention (and death) of Ms. Surratt might have been pissed off that she was getting rid of evidence in the back of their patrol car - but that didn't give them the right to cut off her air supply and kill her.
Why did it happen? I don't know for certain but I would guess that it has something to do with the current military vibe in police departments across the country in which the police go out into the street with an "Us versus Them" attitude. Once the police take the view that it's them against the world, the notion that the police are there to protect and serve goes out the window. When that happens someone is getting the short end of the stick when they don't jump high enough for an officer.
Ms. Surratt was that person last August. Whether anything happens to the officers involved will tell us whether the City of Sherman is more interested in protecting and serving or in waging war on "them."
Last August in Sherman, Texas (about an hour north of Dallas), Mary Surratt was stopped for not signaling a lane change. She was arrested and placed in the back of a patrol car without being searched. While in the back of the car, Ms. Surratt tried to ingest cocaine she had on her person.
An unnamed police officer then began hitting Ms. Surratt with his fist and a flashlight to try to get her to spit out the cocaine. When that didn't work he pressed his flashlight against Ms. Surratt's neck until she passed out. The officers then took her out of the car and tased her while she lay on the ground unconscious.
Ms. Surratt lie on the ground for more than 20 minutes before she was taken to a local hospital where she was declared to be in a vegetative state. She died less than a month later.
By all accounts Ms. Surratt broke the law. But even had she been convicted of possessing cocaine, at most she would have ended up in state jail - more than likely she would have landed on probation (or even deferred adjudication). She certainly wouldn't have been sentenced to death.
The officers involved in the stop and detention (and death) of Ms. Surratt might have been pissed off that she was getting rid of evidence in the back of their patrol car - but that didn't give them the right to cut off her air supply and kill her.
Why did it happen? I don't know for certain but I would guess that it has something to do with the current military vibe in police departments across the country in which the police go out into the street with an "Us versus Them" attitude. Once the police take the view that it's them against the world, the notion that the police are there to protect and serve goes out the window. When that happens someone is getting the short end of the stick when they don't jump high enough for an officer.
Ms. Surratt was that person last August. Whether anything happens to the officers involved will tell us whether the City of Sherman is more interested in protecting and serving or in waging war on "them."
Wednesday, May 28, 2014
Supreme Court rules in favor of death row inmates with mental defects
"The states are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects." -- Justice Anthony Kennedy, Hall v. FloridaYesterday the US Supreme Court got it right. Of course it was, as usual, a 5-4 vote. But that one vote was enough to change the law regarding the determination of who is and who isn't mentally retarded when it comes to jabbing a needle in the arm.
The immediate beneficiary of the ruling in Hall v. Florida, 572 US ___ (2014), was Florida death row inmate Freddie Lee Hall. Mr. Hall's attorneys argued that Mr. Hall was mentally retarded and that executing him would be a violation of the Eighth Amendment's ban on cruel and unusual punishment.
In the 1950's Mr. Hall was considered mentally retarded by the school system - as that term was defined in that era. On a series of IQ tests administered between the late 60's and 2009, Mr. Hall consistently scored between 69 and 74. For years a score of 70 has been seen as the dividing line between who is and who isn't mentally retarded when it comes to killing them.
The idea that a number on a subjective test should be the tool by which we decide who can and cannot be murdered by the state is absurd. Few things in this world are black and white, most of us live in shades of grey. A person may score over a 70 on an IQ test and still not have the tools and skills necessary to survive out in the world.
In its ruling, the Supreme Court held that in cases in which an IQ test score indicates an inmate is on the borderline, that inmate must be allowed to bring in other evidence to demonstrate the existence of a mental disability.
The four dissenting justices, led by Samuel Alito, argued that there was no evidence to suggest that it was unconstitutional for the state to execute someone suffering from a mental disability.
But all of this raises a more troubling question - if a person suffering from a mental defect is not considered competent enough to execute, did that person have the ability to form the necessary intent to be convicted of the crime in the first place?
Tuesday, May 27, 2014
Tennessee to resurrect Ol' Sparky
Yes, it had to be a state in the south to do it.
Tennessee has proclaimed that in the event the state can't find any good death drugs for sale they will dust off the electric chair for future executions. Nevermind that the inmates facing death sentences were sentenced under a regime in which the sole legal method of execution was lethal injection. That's just a nasty little technicality I'm sure.
Interestingly enough, Tennessee hasn't murdered an inmate since 2010 and the next execution isn't scheduled until this November. I get the impression that killing inmates isn't high on the list of priorities in the Volunteer State.
So is this new bill, sponsored by Republican state Senator Ken Yager and signed into law by Governor Bill Haslam, really about murdering inmates or is it just a way to push a few buttons among voters heading into this fall's election?
One thing is for certain, except for those hardcore folks who love to the see the state carry out its power to take the lives of others, most people will be appalled by the prospect of the electric chair coming back to life.
The entire debate on the acquisition of drugs for lethal injection misses the point. It's not about who's making the drugs and where the states are going to buy them. It's not about the purity levels or the efficacy of the drugs. The point is that the rest of world (save the United States, China, North Korea and the Muslim world) has made a decision that it is not just for the state to take the life of an inmate. Those nations who have abolished the death penalty understand that it serves no purpose other than to satisfy bloodlust.
There is a reason that the United States loves to shake its fists at other countries and drop bombs with abandon. There is a reason that our leaders have no problem murdering innocent men, women and children with drone and missile attacks.
It's all about compassion for our fellow man. The ultimate sign of compassion is to allow a person to live after taking the life of another. For those of y'all still wedded to your superstitious beliefs, most of the world's religions teach that forgiveness is divine. Yet, despite the rhetoric from the far right that we are a "christian" nation, the concept of forgiveness is largely ignored.
Our continued insistence on the use of the death penalty is a true reflection of our fundamental lack of compassion as a society.
Tennessee has proclaimed that in the event the state can't find any good death drugs for sale they will dust off the electric chair for future executions. Nevermind that the inmates facing death sentences were sentenced under a regime in which the sole legal method of execution was lethal injection. That's just a nasty little technicality I'm sure.
Interestingly enough, Tennessee hasn't murdered an inmate since 2010 and the next execution isn't scheduled until this November. I get the impression that killing inmates isn't high on the list of priorities in the Volunteer State.
So is this new bill, sponsored by Republican state Senator Ken Yager and signed into law by Governor Bill Haslam, really about murdering inmates or is it just a way to push a few buttons among voters heading into this fall's election?
One thing is for certain, except for those hardcore folks who love to the see the state carry out its power to take the lives of others, most people will be appalled by the prospect of the electric chair coming back to life.
The entire debate on the acquisition of drugs for lethal injection misses the point. It's not about who's making the drugs and where the states are going to buy them. It's not about the purity levels or the efficacy of the drugs. The point is that the rest of world (save the United States, China, North Korea and the Muslim world) has made a decision that it is not just for the state to take the life of an inmate. Those nations who have abolished the death penalty understand that it serves no purpose other than to satisfy bloodlust.
There is a reason that the United States loves to shake its fists at other countries and drop bombs with abandon. There is a reason that our leaders have no problem murdering innocent men, women and children with drone and missile attacks.
It's all about compassion for our fellow man. The ultimate sign of compassion is to allow a person to live after taking the life of another. For those of y'all still wedded to your superstitious beliefs, most of the world's religions teach that forgiveness is divine. Yet, despite the rhetoric from the far right that we are a "christian" nation, the concept of forgiveness is largely ignored.
Our continued insistence on the use of the death penalty is a true reflection of our fundamental lack of compassion as a society.
Monday, May 26, 2014
In memoriam
As Uniwatch blogger Paul Lukas points out, Memorial Day is a day to remember those who died in service to our country - it's not a day to celebrate the military. Major League Baseball gets it wrong every year by having teams wear camouflage uniforms and caps. Why not just take a minute before the game and have a moment of silence in remembrance?
No, you can't market that and you can't sell any more crap doing that - but that's what today is all about. Memorial Day was born of the carnage that was the Civil War. There is nothing glamorous about it.
So today I remember my dad's uncle, Robert Kennedy, of Calhoun City, Mississippi who died too young in the Korean War.
No, you can't market that and you can't sell any more crap doing that - but that's what today is all about. Memorial Day was born of the carnage that was the Civil War. There is nothing glamorous about it.
So today I remember my dad's uncle, Robert Kennedy, of Calhoun City, Mississippi who died too young in the Korean War.
Friday, May 23, 2014
Mouthing the corporate line
A couple of days ago a few former NFL players filed a lawsuit against the NFL alleging that team doctors illegally dispensed narcotics to players. The players allege that team doctors and trainers did not provide the players with enough information about the possible side effects of the drugs to obtain informed consent. The players also allege that teams failed to keep adequate records of narcotics that were prescribed and dispensed to players.
For the past two days ESPN Radio personalities have spent a good deal of time toeing the NFL's company line that nothing untoward happened. Hosts such as Colin Cowherd blamed the players for taking drugs without asking questions about the potential side effects. Morning host Mike Golic even went as far to say that he (and a good number of teammates) would do anything, and take anything, to get back out on the field for the team.
Each host repeated the corporate line that the players were looking to deny any personal responsibility for the problem. But what else should you expect from a media company that pays the NFL millions of dollars a year to broadcast its product? Never forget that the E in ESPN stands for entertainment.
Colin Cowherd even went so far as to blame the toothless NFL Players' Union for the problem. This is the same union that has stood by and allowed the NFL to sign players to one-sided contracts allowing the teams to cut players at will. The NFL Players' Union has never been much more than a wet blanket that puts up token opposition to what the league wants and that sells its own members down the river in exchange for a cut of the action.
An NFL team can cut a player and tear up the contract without good cause. Yet players are castigated in the media when they hold out and seek to renegotiate their deals after a good season. The average NFL career is less than four seasons and this keeps a steady supply of young talent available that drives down wages and encourages owners to cut higher priced veterans in order to get their hands on more of the filthy lucre the league rakes in every year.
It is the knowledge that any injury could spell the end of a career that drives players to take whatever measures are necessary to stay out on the field. The owners know this and fight tooth and nail to protect their plantation system.
Teams doctors and trainers work for the owner, not the players. There is an inherent conflict of interest that drives team doctors and trainers to do whatever it takes to get players out on the field - regardless of the consequences. Hence the giant jars of pain killers in the locker room before and after the game.
The NFL chews up and spits out player after player year after year without a second thought. Fans who are completely ignorant of what's going on buy into the NFL's propaganda that is spread by media companies who aren't "covering" the league as much as they are providing cover for the league.
Professional football is the most violent of our sports and yet the men who suit up and play the game are the most exploited of any professional athlete in this country. I for one am sick and tired of the deification of owners in professional sports. No one goes to a game to see the fucking owner of the team. Few people give a rat's ass about them. We go to see the athletes perform on the field.
The NFL is worried about its image. And it should be. The more the public finds out about how the game really operates, the more likely they are to question its very foundations.
For the past two days ESPN Radio personalities have spent a good deal of time toeing the NFL's company line that nothing untoward happened. Hosts such as Colin Cowherd blamed the players for taking drugs without asking questions about the potential side effects. Morning host Mike Golic even went as far to say that he (and a good number of teammates) would do anything, and take anything, to get back out on the field for the team.
Each host repeated the corporate line that the players were looking to deny any personal responsibility for the problem. But what else should you expect from a media company that pays the NFL millions of dollars a year to broadcast its product? Never forget that the E in ESPN stands for entertainment.
Colin Cowherd even went so far as to blame the toothless NFL Players' Union for the problem. This is the same union that has stood by and allowed the NFL to sign players to one-sided contracts allowing the teams to cut players at will. The NFL Players' Union has never been much more than a wet blanket that puts up token opposition to what the league wants and that sells its own members down the river in exchange for a cut of the action.
An NFL team can cut a player and tear up the contract without good cause. Yet players are castigated in the media when they hold out and seek to renegotiate their deals after a good season. The average NFL career is less than four seasons and this keeps a steady supply of young talent available that drives down wages and encourages owners to cut higher priced veterans in order to get their hands on more of the filthy lucre the league rakes in every year.
It is the knowledge that any injury could spell the end of a career that drives players to take whatever measures are necessary to stay out on the field. The owners know this and fight tooth and nail to protect their plantation system.
Teams doctors and trainers work for the owner, not the players. There is an inherent conflict of interest that drives team doctors and trainers to do whatever it takes to get players out on the field - regardless of the consequences. Hence the giant jars of pain killers in the locker room before and after the game.
The NFL chews up and spits out player after player year after year without a second thought. Fans who are completely ignorant of what's going on buy into the NFL's propaganda that is spread by media companies who aren't "covering" the league as much as they are providing cover for the league.
Professional football is the most violent of our sports and yet the men who suit up and play the game are the most exploited of any professional athlete in this country. I for one am sick and tired of the deification of owners in professional sports. No one goes to a game to see the fucking owner of the team. Few people give a rat's ass about them. We go to see the athletes perform on the field.
The NFL is worried about its image. And it should be. The more the public finds out about how the game really operates, the more likely they are to question its very foundations.
Thursday, May 22, 2014
Guessing who deserves to die
There I was in the car yesterday driving back to the office from Wharton County and Houston Matters popped up on KUHF, the local NPR affiliate. The topic was capital punishment and the guests were David Dow, a law professor at the UH Law Center and founder of the Texas Innocence Project, and Maria McAnulty, the trial chief from the Harris County District Attorney's Office.
Things got interesting when it was pointed out that defendants facing the death penalty in Harris County tend disproportionately to be black, Hispanic and/or poor. Mr. Dow pointed out that there aren't any rich folks sitting on death row in Texas. He also pointed out that of the last 15 prisoners from Harris County who were executed, only 2 weren't black or Hispanic.
Ms. McAnulty seemed to take great offense to the notion that race played a factor in determining who was sentenced to death in Harris County. She took great pains to lay out a process by which the District Attorney makes the final decision without knowing the race or ethnicity of either the defendant or the victim. While the elected DA makes the final decision, that decision is made based upon the advice provided by the trial prosecutors and the trial chief - all of whom know the race or ethnicity of everyone involved. Don't even try to tell me that it didn't factor into the equation.
But what I found most intriguing was the discussion on the special questions jurors in capital cases are asked after a defendant has been convicted. They are first asked whether they believe, beyond a reasonable doubt, that the defendant would probably constitute a "continuing threat to society."
Now let's just think about that for a second. Forget about this notion of beyond a reasonable doubt because the jury is being asked whether they think it's more likely than not that the defendant would remain a threat to society if he were allowed to live. That's not even close to the requisite burden of proof. That's just asking someone if they're damn sure someone might do something bad in the future.
It's only if the jury answers the question "yes," that they decide whether or not the defendant should die.
But if that's the criteria for deciding who lives and who dies, then shouldn't the behavior of the prisoner after the conviction be taken into account? If the jury thinks it's more likely than not that the defendant will continue to be a bad person, shouldn't evidence that the prisoner has behaved and worked to improve himself be relevant to whether or not the execution should go forward?
We all mock death row inmates who find Jesus or Allah or some other mythological figure while sitting confined to a cell 23 hours a day. We mock those who ask for forgiveness. We scoff at supporters who say the condemned man has changed since being convicted.
But should we?
Isn't that evidence that the jurors got it wrong? If we're going to continue to operate under this fiction that past performance is evidence of future behavior, then we need to look at the converse. If what we observe tends to disprove what we thought, maybe we were mistaken in the first place.
And should we allow those mistakes to determine whether someone lives or dies?
Maybe we should just use a deck of Tarot cards next time.
Things got interesting when it was pointed out that defendants facing the death penalty in Harris County tend disproportionately to be black, Hispanic and/or poor. Mr. Dow pointed out that there aren't any rich folks sitting on death row in Texas. He also pointed out that of the last 15 prisoners from Harris County who were executed, only 2 weren't black or Hispanic.
Ms. McAnulty seemed to take great offense to the notion that race played a factor in determining who was sentenced to death in Harris County. She took great pains to lay out a process by which the District Attorney makes the final decision without knowing the race or ethnicity of either the defendant or the victim. While the elected DA makes the final decision, that decision is made based upon the advice provided by the trial prosecutors and the trial chief - all of whom know the race or ethnicity of everyone involved. Don't even try to tell me that it didn't factor into the equation.
But what I found most intriguing was the discussion on the special questions jurors in capital cases are asked after a defendant has been convicted. They are first asked whether they believe, beyond a reasonable doubt, that the defendant would probably constitute a "continuing threat to society."
Now let's just think about that for a second. Forget about this notion of beyond a reasonable doubt because the jury is being asked whether they think it's more likely than not that the defendant would remain a threat to society if he were allowed to live. That's not even close to the requisite burden of proof. That's just asking someone if they're damn sure someone might do something bad in the future.
It's only if the jury answers the question "yes," that they decide whether or not the defendant should die.
But if that's the criteria for deciding who lives and who dies, then shouldn't the behavior of the prisoner after the conviction be taken into account? If the jury thinks it's more likely than not that the defendant will continue to be a bad person, shouldn't evidence that the prisoner has behaved and worked to improve himself be relevant to whether or not the execution should go forward?
We all mock death row inmates who find Jesus or Allah or some other mythological figure while sitting confined to a cell 23 hours a day. We mock those who ask for forgiveness. We scoff at supporters who say the condemned man has changed since being convicted.
But should we?
Isn't that evidence that the jurors got it wrong? If we're going to continue to operate under this fiction that past performance is evidence of future behavior, then we need to look at the converse. If what we observe tends to disprove what we thought, maybe we were mistaken in the first place.
And should we allow those mistakes to determine whether someone lives or dies?
Maybe we should just use a deck of Tarot cards next time.
Wednesday, May 21, 2014
Court stays Missouri execution
The State of Missouri was just bound and determined to jab a needle into Russell Bucklew's arm and poison him. It didn't matter to them that Mr. Bucklew was saddled with a medical condition that left him with weak veins and blockages in his air passages.
So what if the state hadn't taken care of its business and assessed the ways in which the drugs used in the Missouri protocol would interact with Mr. Bucklew's medical condition? He was a convicted murderer who showed no sympathy for the people he killed. Did it really matter if suffered during his execution? Didn't his victims suffer, too?
But then again, the death penalty isn't supposed to be about revenge. It's a punishment that is reserved for those that we, as a society, have decided just can't live among us - either out in the world or behind bars. Of course we could talk forever about the lunacy of jurors (in Texas) or judges (in other states) deciding who is, and who isn't, worthy of life.
Mr. Bucklew's attorneys sought a stay in state court yesterday. The reaction was stark and, unfortunately, predictable. State courts refused to grant the stay. The judges didn't care that the state never contested the medical evidence. The judges didn't care that no one had tried to figure out what unintended consequences the death drugs would have due to Mr. Bucklew's medical condition. The judges didn't care if the state violated the Eighth Amendment by exposing a condemned man to unnecessary pain and suffering. They just wanted to have a body to show for it.
That whole finality thing again.
Except nothing's ever final. There is no circle of life. You can kill Russell Bucklew but it won't matter. The people he killed are still dead. Their friends and family are still grieving. And someone else will kill again because the death penalty isn't a deterrent to anything.
The Eighth Circuit Court of Appeals in Kansas City wasn't going to be swayed by politics. They looked at the situation. They looked at Eighth Amendment jurisprudence. They looked at the Missouri protocol.
And they didn't like what they saw. Maybe it was because of the botched execution in Oklahoma. Maybe the way in which Oklahoma went about killing Clayton Lockett has finally woken folks up to just what it means for the state to kill someone. Maybe that fiasco is the straw that breaks the back of the executioner.
Judges like things to be nice and neat. They don't want loose ends. What happened in Oklahoma was one hell of a loose end. It may turn out to be the wedge that pushes us toward abolition.
That botched execution has forced judges to actually think about what is happening on that gurney behind the blinds. It's no longer an abstraction. It's no longer a study in dry logic. When a man is strapped down to a gurney and the death drugs are injected into him - he dies.
Mr. Bucklew didn't die in the early hours of the morning because someone finally realized that. Of course you can bet the folks in Missouri are going to do everything they can to strap him down and kill him - regardless of how cruel or barbaric that might be.
Update:
After a panel of the 8th Circuit granted the stay, the entire court sat down and said "What the hell?" and decided to let Missouri go ahead with the execution. Then US Supreme Court Justice Samuel Alito signed an order putting the execution back on hold. The entire court is expected to hear the case and issue a final ruling.
So what if the state hadn't taken care of its business and assessed the ways in which the drugs used in the Missouri protocol would interact with Mr. Bucklew's medical condition? He was a convicted murderer who showed no sympathy for the people he killed. Did it really matter if suffered during his execution? Didn't his victims suffer, too?
But then again, the death penalty isn't supposed to be about revenge. It's a punishment that is reserved for those that we, as a society, have decided just can't live among us - either out in the world or behind bars. Of course we could talk forever about the lunacy of jurors (in Texas) or judges (in other states) deciding who is, and who isn't, worthy of life.
Mr. Bucklew's attorneys sought a stay in state court yesterday. The reaction was stark and, unfortunately, predictable. State courts refused to grant the stay. The judges didn't care that the state never contested the medical evidence. The judges didn't care that no one had tried to figure out what unintended consequences the death drugs would have due to Mr. Bucklew's medical condition. The judges didn't care if the state violated the Eighth Amendment by exposing a condemned man to unnecessary pain and suffering. They just wanted to have a body to show for it.
That whole finality thing again.
Except nothing's ever final. There is no circle of life. You can kill Russell Bucklew but it won't matter. The people he killed are still dead. Their friends and family are still grieving. And someone else will kill again because the death penalty isn't a deterrent to anything.
The Eighth Circuit Court of Appeals in Kansas City wasn't going to be swayed by politics. They looked at the situation. They looked at Eighth Amendment jurisprudence. They looked at the Missouri protocol.
And they didn't like what they saw. Maybe it was because of the botched execution in Oklahoma. Maybe the way in which Oklahoma went about killing Clayton Lockett has finally woken folks up to just what it means for the state to kill someone. Maybe that fiasco is the straw that breaks the back of the executioner.
Judges like things to be nice and neat. They don't want loose ends. What happened in Oklahoma was one hell of a loose end. It may turn out to be the wedge that pushes us toward abolition.
That botched execution has forced judges to actually think about what is happening on that gurney behind the blinds. It's no longer an abstraction. It's no longer a study in dry logic. When a man is strapped down to a gurney and the death drugs are injected into him - he dies.
Mr. Bucklew didn't die in the early hours of the morning because someone finally realized that. Of course you can bet the folks in Missouri are going to do everything they can to strap him down and kill him - regardless of how cruel or barbaric that might be.
Update:
After a panel of the 8th Circuit granted the stay, the entire court sat down and said "What the hell?" and decided to let Missouri go ahead with the execution. Then US Supreme Court Justice Samuel Alito signed an order putting the execution back on hold. The entire court is expected to hear the case and issue a final ruling.
Tuesday, May 20, 2014
Traffic court and the rules of grammar
I was a bit curious tonight about a couple of things so I picked up my daughter's school dictionary.
The Scott, Foresman Advanced Dictionary said "and" was a coordinating conjunction that connected "words, phrases and clauses of grammatically equivalent constructions." One of the definitions was "added to." The example given was a math problem.
I think we all understand that when we use the word and we are including both the word or phrase before it and the word or phrase after it. Logically and means that any conditions before or after and are necessary.
The same dictionary said that or is a word that expresses a choice.
And that brings us to today's story.
Yesterday I was in justice court on a traffic ticket for a long-time client. She was charged with speeding in a school zone. She was accused of driving 30 mph in that school zone. It was our contention, however, that the complaint was fatally defective because it also alleged she was driving more than 30 mph - an impossibility.
The complaint alleged that my client
"...did then and there, unlawfully, operate a motor vehicle on a public street or highway in Harris County, Texas, at 30 miles per hour, which speed was greater than was reasonable and prudent under the circumstances then existing, and the speed was more than 30 miles per hour in an urban district, and more than 20 miles per hour which was the lawful maximum prima facie speed limit posted by sign."
I told the prosecutor the complaint was defective months ago. He told me they would amend it. We went back to court and it hadn't been changed. I told the new prosecutor that the complaint was defective because if you're driving 30 mph, then you can't be driving at a speed greater than 30 mph.
He refused to budge, making some argument about alleging in the conjunctive and proving up in the disjunctive. I told him, in legalese, that he was full of it. And means and, not or.
I then decided to approach the judge, Dale Gorczynski whose sole apparent qualification for the bench was that he was term-limited out of his seat on the Houston city council (where he did little or nothing to distinguish himself from so many other anonymous faces who have "served" the city.
The judge looked at the complaint. I made my argument, the prosecutor made an argument that defied logic and redefined the meaning of the word and. I agreed one could plead any number of alternative ways in which someone could violate the law - but you had to plead them in separate paragraphs or you had to use the word or.
The judge seemed quite puzzled by the entire argument. He asked his clerk if this was the same complaint that had been drafted by the city attorney's office. He asked if it were the same complaint that had been approved by the 16 justices of the peace. He asked if it had been altered in any way.
When the clerk answered yes to each question, the judge then case aside any doubt that he was qualified to sit on the bench in justice court. With the understanding that if he ruled in favor of the state my client would give the court some money for her case to be dismissed and that if ruled in our favor she would walk out without paying a dime - the judge denied my motion to quash the complaint.
And once again we can rest easy knowing that the justice courts are the most inaccurately named courts in Texas. There is no justice there - there are only a bevy of grocery store clerks to process pleas and payments.
This unending reverence to the notion of this is how we've always done it has been used to justify every injustice known to man. It is the most insidious form of oppression in our criminal (in)justice system. It is the same bromide used in courtrooms across the country to deny constitutional protections to the accused.
All it takes to end it however, is one person brave enough to challenge it and one person brave enough to ignore it.
The Scott, Foresman Advanced Dictionary said "and" was a coordinating conjunction that connected "words, phrases and clauses of grammatically equivalent constructions." One of the definitions was "added to." The example given was a math problem.
I think we all understand that when we use the word and we are including both the word or phrase before it and the word or phrase after it. Logically and means that any conditions before or after and are necessary.
The same dictionary said that or is a word that expresses a choice.
And that brings us to today's story.
Yesterday I was in justice court on a traffic ticket for a long-time client. She was charged with speeding in a school zone. She was accused of driving 30 mph in that school zone. It was our contention, however, that the complaint was fatally defective because it also alleged she was driving more than 30 mph - an impossibility.
The complaint alleged that my client
"...did then and there, unlawfully, operate a motor vehicle on a public street or highway in Harris County, Texas, at 30 miles per hour, which speed was greater than was reasonable and prudent under the circumstances then existing, and the speed was more than 30 miles per hour in an urban district, and more than 20 miles per hour which was the lawful maximum prima facie speed limit posted by sign."
I told the prosecutor the complaint was defective months ago. He told me they would amend it. We went back to court and it hadn't been changed. I told the new prosecutor that the complaint was defective because if you're driving 30 mph, then you can't be driving at a speed greater than 30 mph.
He refused to budge, making some argument about alleging in the conjunctive and proving up in the disjunctive. I told him, in legalese, that he was full of it. And means and, not or.
I then decided to approach the judge, Dale Gorczynski whose sole apparent qualification for the bench was that he was term-limited out of his seat on the Houston city council (where he did little or nothing to distinguish himself from so many other anonymous faces who have "served" the city.
The judge looked at the complaint. I made my argument, the prosecutor made an argument that defied logic and redefined the meaning of the word and. I agreed one could plead any number of alternative ways in which someone could violate the law - but you had to plead them in separate paragraphs or you had to use the word or.
The judge seemed quite puzzled by the entire argument. He asked his clerk if this was the same complaint that had been drafted by the city attorney's office. He asked if it were the same complaint that had been approved by the 16 justices of the peace. He asked if it had been altered in any way.
When the clerk answered yes to each question, the judge then case aside any doubt that he was qualified to sit on the bench in justice court. With the understanding that if he ruled in favor of the state my client would give the court some money for her case to be dismissed and that if ruled in our favor she would walk out without paying a dime - the judge denied my motion to quash the complaint.
And once again we can rest easy knowing that the justice courts are the most inaccurately named courts in Texas. There is no justice there - there are only a bevy of grocery store clerks to process pleas and payments.
This unending reverence to the notion of this is how we've always done it has been used to justify every injustice known to man. It is the most insidious form of oppression in our criminal (in)justice system. It is the same bromide used in courtrooms across the country to deny constitutional protections to the accused.
All it takes to end it however, is one person brave enough to challenge it and one person brave enough to ignore it.
Monday, May 19, 2014
A little time with nature
Needed a break from the law so I took my girls out to Brazos Bend State Park this weekend to look for alligators. We weren't disappointed.
Here's gator number one of the morning. We had just parked the car and walked out to the pier when he greeted us.
A few minutes later we spotted gator number two in the lake.
Q: Why did the alligator cross the road?
A: Because he wanted to.
Here's another one just minding his business in the marsh.
And here are my intrepid alligator hunters.
Here's gator number one of the morning. We had just parked the car and walked out to the pier when he greeted us.
A few minutes later we spotted gator number two in the lake.
Q: Why did the alligator cross the road?
A: Because he wanted to.
Here's another one just minding his business in the marsh.
And here are my intrepid alligator hunters.
Friday, May 16, 2014
McNeely strikes again
The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. -- Weems v. State, No. 04-13-00366-CR, (Tex.App.--San Antonio 2014)That is a scary argument found in the San Antonio Court of Appeals decision in Weems v. State. The Fourth Amendment is quite clear in its meaning - warrants shall be required to conduct a search. But, even though the language is absolute, our courts have, over the years, whittled away at the edges to such a degree that the Founders wouldn't even recognize what has happened to their Bill of Rights.
And, leading the charge to chip away at the meaning of the Fourth Amendment is the old balancing test. If you don't already realize whenever the Supremes break out the scales in a criminal case, the outcome is not going to be favorable for either the defendant nor the Constitution.
One of the seminal cases in DWI law is Schmerber v. California, 384 US 757 (1966) which made an end run around the Fourth Amendment by finding that a warrantless search may very well be reasonable depending on the totality of the circumstances. The most popular of these circumstances turned out to be exigency. Prosecutors argued for generations that warrantless blood draws were reasonable because alcohol tended to dissipate out of the bloodstream and, if the blood weren't drawn quickly enough, there would be no evidence left to test.
The development of better, more efficient gas chromatographs and the newfound popularity of retrograde guesstimation made exigency less and less of a factor. Meanwhile, states like Texas began enacting so-called implied consent laws as another way to get around the warrant requirement. Texas also enacted a law that made the taking of a blood specimen mandatory when a person died in an alcohol-related crash, when a person was seriously injured in an alcohol-related crash of if the driver suspected of being intoxicated had two or more prior DWI convictions.
And this is where things stood at the time of McNeely.
Then everything changed. As a refresher, in McNeely, the Supreme Court held that the dissipation of blood by itself was insufficient to justify a warrantless blood draw. The Court pointed out that with the advent of No Refusal Weekends and with the decision that affidavits for warrants could be transmitted to the judge via fax, phone or e-mail, it was relatively easy to find a compliant magistrate who would sign on the dotted line and authorize the blood draw.
Texas then began to argue that the implied consent law was its end run around the warrant requirement. Since, in the eyes of the state, every motorist had given their consent to submit to a breath or blood test merely by getting on the road, then the police had a built-in exception to the warrant requirement - consent.
That bit of intellectual dishonesty crashed to earth when the Supreme Court overturned a conviction in Aviles v. State and sent the case back down to Texas for a new trial in line with the holding in McNeely.
In Weems, the defendant was driving after he had been drinking with a friend. He managed to flip his car on the way home. His friend was injured and taken to the hospital. Mr. Weems fled from the scene but was found a short time later. No sobriety tests were performed because Mr. Weems needed medical attention. After Mr. Weems declined to provide a blood specimen, the arresting officer took him to the hospital where a forcible blood draw was conducted. The result showed that, at the time of the accident, Mr. Weems was about three times the legal limit. He was subsequently convicted of driving while intoxicated.
The San Antonio Court of Appeals then proceeded to reverse Mr. Weems' conviction and held that neither the implied consent law, the mandatory blood draw provision of the Transportation Code nor the dissipation of alcohol justified a warrantless blood draw without a showing that an established exception to the warrant requirement existed.
Thursday, May 15, 2014
To bust or not to bust the panel
Today I have a question on tactics. I think I made the right choice the other day but, despite my best efforts, I keep questioning my decision.
We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.
My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.
There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.
The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.
One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.
During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?
I chose the latter.
During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.
After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?
The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.
As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.
But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.
Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?
We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.
My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.
There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.
The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.
One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.
During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?
I chose the latter.
During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.
After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?
The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.
As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.
But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.
Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?
Wednesday, May 14, 2014
5th Circuit halts execution
Less than three hours before Robert Campbell was to be murdered by a lethal dose of pentobarbital by the State of Texas, the 5th Circuit Court of Appeals put a halt to the execution. Mr. Campbell's attorneys argued they needed more time to file paperwork challenging the execution on the grounds that Mr. Campbell is mentally retarded. The argument is based on test results that were previously unavailable to Mr. Campbell's lawyers.
In a dissent to the Texas Court of Criminal Appeals denial of relief last week, Judge Elsa Alacala wrote that the test result turned over to Mr. Campbell's attorneys fell within the margin of error of mental retardation.
The court rejected his attorneys arguments that the execution couldn't go forward because Texas refuses to reveal the source of its death drug.
In a dissent to the Texas Court of Criminal Appeals denial of relief last week, Judge Elsa Alacala wrote that the test result turned over to Mr. Campbell's attorneys fell within the margin of error of mental retardation.
The court rejected his attorneys arguments that the execution couldn't go forward because Texas refuses to reveal the source of its death drug.
Tuesday, May 13, 2014
Do you know where the body's hidden?
I have two daughters who have both seen Frozen at least three times and know the words to every freaking song in that movie. At my youngest daughter's school talent show, three different girls sang "Let it Go." Apparently another couple sang it at my oldest daughter's show (I was up in Dallas at the time).
Have I mentioned that I hate the movie? Have I said I can't stand the songs?
Frozen is the whitest, most annoying movie I've ever had the displeasure of sitting through.
But this video clip is one of the funniest damn things I've ever seen. If you're as sick of Frozen as I am, you're going to enjoy it.
Have I mentioned that I hate the movie? Have I said I can't stand the songs?
Frozen is the whitest, most annoying movie I've ever had the displeasure of sitting through.
But this video clip is one of the funniest damn things I've ever seen. If you're as sick of Frozen as I am, you're going to enjoy it.
Monday, May 12, 2014
Execution Watch: 5/13/2014
On Tuesday night, the State of Texas will kill again...
ROBERT CAMPBELL. Mr. Campbell was convicted in the abduction and murder of Alexandra Rendon in Houston in January 1991.The case made headlines again in 2005 when investigators discovered about 150 pieces of misplaced evidence, including a cigarette butt that was collected at the scene of the murder but never brought to the attention of Mr. Campbell's trial attorneys.
Mr. Campbell's attorneys have filed a federal lawsuit alleging that the State's decision not to give out information about the source of the drug to be used in his execution is a violation of his civil rights.
Mr. Campbell's attorneys have filed a federal lawsuit alleging that the State's decision not to give out information about the source of the drug to be used in his execution is a violation of his civil rights.
RADIO SHOW PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast live:
Tuesday, May 13, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...
http://executionwatch.org > Listen
Since KPFT is in the midst of their Spring fundraising drive (please give generously) the show may not be broadcast over the air. Go to KPFT's website to check for the availability of an online broadcast.
Since KPFT is in the midst of their Spring fundraising drive (please give generously) the show may not be broadcast over the air. Go to KPFT's website to check for the availability of an online broadcast.
Friday, May 9, 2014
Holding the stash
According to this Texas Tribune article, the drug used in Oklahoma's botched execution is stored right here in the Lone Star State. Texas is currently in possession of some 30 vials of the drug with an expiration date in 2015.
Midazolam is the first drug in Oklahoma's lethal cocktail. It is a powerful sedative that is supposed to render the inmate unconscious prior to the paralytic being injected. After the paralytic is injected the final drug - the one that is supposed to stop the inmate's heart - is injected. In last month's botched execution the inmate Clayton Lockett was not rendered unconscious and prison officials blocked witness' view of the execution after it became apparent that something was seriously wrong.
Texas currently uses pentobarbital - obtained from unknown sources - in its one-drug execution protocol. Should Texas wish to use midazolam once its limited supply of pentobarbital is exhausted, a new two- or three-drug protocol would need to be drawn up.
The governor of Oklahoma has instituted an investigation into what went wrong with the Lockett execution. However, since the investigation is being conducted out of the governor's office, I anticipate the investigators will blame the problems on Mr. Lockett's veins and not on the drug. The purpose of the investigation is to make the execution protocol more "efficient" not to determine whether the protocol violates the Eighth Amendment.
The drug inventory turned over to defense attorneys challenging the state's practices in carrying out the death penalty indicate that Texas is holding vials of hydromorphone and propofol, in addition to midazolam. Propofol, if you'll remember, is the drug that caused the death of Michael Jackson. The American health care company Hospira was the source of the drugs.
According to the company's website, midazolam is currently out of stock.
Interestingly enough, there is no mention on the company's website about Hospira supplying death drugs to state prison systems.
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Click here for the Texas execution protocol.
Midazolam is the first drug in Oklahoma's lethal cocktail. It is a powerful sedative that is supposed to render the inmate unconscious prior to the paralytic being injected. After the paralytic is injected the final drug - the one that is supposed to stop the inmate's heart - is injected. In last month's botched execution the inmate Clayton Lockett was not rendered unconscious and prison officials blocked witness' view of the execution after it became apparent that something was seriously wrong.
Texas currently uses pentobarbital - obtained from unknown sources - in its one-drug execution protocol. Should Texas wish to use midazolam once its limited supply of pentobarbital is exhausted, a new two- or three-drug protocol would need to be drawn up.
“I think the whole method is problematic,” said Kenneth Williams, a criminal law professor who teaches a class on capital punishment at South Texas College of Law in Houston. “I think it was ironic that the inmates there were fighting the process because they thought the new drugs were problematic, and they turned out to be right."Midazolam was also the drug Ohio used in an execution earlier this year in which the inmate took 26 minutes to die (though Ohio uses a much larger dose than Oklahoma did). Ohio uses a two-drug protocol.
The governor of Oklahoma has instituted an investigation into what went wrong with the Lockett execution. However, since the investigation is being conducted out of the governor's office, I anticipate the investigators will blame the problems on Mr. Lockett's veins and not on the drug. The purpose of the investigation is to make the execution protocol more "efficient" not to determine whether the protocol violates the Eighth Amendment.
The drug inventory turned over to defense attorneys challenging the state's practices in carrying out the death penalty indicate that Texas is holding vials of hydromorphone and propofol, in addition to midazolam. Propofol, if you'll remember, is the drug that caused the death of Michael Jackson. The American health care company Hospira was the source of the drugs.
According to the company's website, midazolam is currently out of stock.
Interestingly enough, there is no mention on the company's website about Hospira supplying death drugs to state prison systems.
Our vision guides everything we do. "Advancing" focuses on Hospira's progressive, positive and purposeful approach as we look to the future. "Wellness" demonstrates a broad commitment to healthcare, supported by a wide variety of products that help improve the well being of patients around the world. Wellness also refers to the overall well being of our customers, employees, shareholders and communities.Supplying drugs so that Oklahoma can kill inmates doesn't really seem to fit to well into this notion that Hospira is a "wellness" company. Hey, but why let the facts get in the way of the marketing campaign?
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Click here for the Texas execution protocol.
Thursday, May 8, 2014
It's a wonderful day in the neighborhood
My wife pointed out the following post on some local community website for our neighborhood. Now first I have to set the table for what you're about to read.
We live in a part of Houston called Spring Branch. It's on the westside of town between the Loop and the Beltway. Inside the area are a series of bedroom communities filled with rich white folk who would swear up and down they aren't racist but they want to make sure their kids go to the
Having said that, I like the area. It's a mix of industrial, business and residential. You can find just about any kind of cuisine you want and there's is still green space around.
Now you can read the post:
The Kerrwood Watch got another one yesterday. Spring Valley police chased a vehicle until it t-boned another vehicle on Hammerly.
Black male driver then eluded police on foot in an apartment complex by the lake, hopped the fence along McKean, crossed the ditch, and made a VERY wrong turn down Kerrwood.
His mistake was solidified by walking across yards with "No Tresspassing" signs. Kerrwood's telephone tree was activated and neighbors came out with guns.
Bad guy runs across a back yard, hops another fence and tries hiding under a truck.
When police learned that neighbors armed with guns were after their suspect, the police presence went from 2 to 15 in a matter of minutes. Police then took over.
The bad guy resisted police, was Tasered, and hauled off.
It's nice living on a crime-free street. Chalk up another Kerrwood success in keeping it that way!For the uninitiated, Spring Valley is one of these bedroom communities I mentioned before. If you've been reading this blog for a while you would have come across a couple of posts I've written about how the Spring Valley police and courts operate. If you want a good laugh, go to a court session and ask for a show of hands of anyone who's a resident of Spring Valley. It's a good bet you won't see many hands.
Spring Valley is located (mostly) between I-10 and Westview (the first major east-west thoroughfare in Spring Branch north of the freeway. We live a good couple of miles from the boundary. So my first question is why a Spring Valley police officer was chasing a motorist so far from home? The police from Spring Valley have no business being on Hammerly - they certainly have no business engaging in a chase.
I have no idea why the motorist didn't stop in Spring Valley. I'm sure he stood out while driving - as do most of the non-white defendants you will see in municipal court. The accident wouldn't have occurred had someone's testosterone not gotten the better of him. But I suppose that's just a little detail our storyteller decided to overlook.
Of course the writer must make a point of the driver in question being black. What better way to conjure up fear in the locals than tell them a black man was running down their street.
Then we get the formation of the posse. George Zimmerman must have been proud. Nothing like a bunch of scared white folks running around with guns looking for a black man. I don't know if they were wearing their hoods or not.
And of course the police descended en masse. With a bunch of lunatics carrying guns chasing someone (with no evidence that the "bad guy" had even done anything wrong), there needed to be some voice of sanity - and I suppose this time it was HPD who provided that voice. And, if you've lived in Houston for a while, you know that's a scary thought.
These gun-loving vigilantes are the same folks who sit on our jury panels and decide whether our clients' liberty should be infringed upon. Don't even kid yourself about their acceptance of the notion that a defendant is innocent unless proven otherwise - your client is guilty the minute they see him sitting next to you at the table.
Yep, these are my neighbors.
Wednesday, May 7, 2014
Robert Bennett speaks up
Back on April 1, I wrote about the disbarment of Robert Bennett (see "On irony and ethics"). The State Bar initiated disciplinary proceedings against Mr. Bennett as the result of a fee dispute. During the process, the State Bar recommended a one to two year suspension with all but the first three months probated - a fairly typical settlement offer.
At trial, however, it is the judge who decides the appropriate sanction and, in this case, despite not being requested by the State Bar, the judge presiding over the trial, ordered that Mr. Bennett be disbarred.
The details in my post came from a story in Texas Lawyer and from Mr. Bennett's Avvo listing and website. To be fair, after the judge disbarred him, Mr. Bennett contact Avvo and requested that any reference to him being a licensed attorney be removed.
I received an e-mail from Mr. Bennett over the weekend that presents his side of the dispute. In order to prevent anything from being "lost in the translation," here is Mr. Bennett's 17-point refutation of the charges brought against him and the finding of the court.
In an e-mail to me, Mr. Bennett raised some very good points regarding the State Bar's Office of Chief Disciplinary Counsel. I do agree with him that something seems to be out of whack when an attorney with no disciplinary blemish on his record after 38 years of practice is disbarred over one fee dispute. It is also troubling that a judge would order disbarment when that particular remedy was never asked for by the State Bar.
At trial, however, it is the judge who decides the appropriate sanction and, in this case, despite not being requested by the State Bar, the judge presiding over the trial, ordered that Mr. Bennett be disbarred.
The details in my post came from a story in Texas Lawyer and from Mr. Bennett's Avvo listing and website. To be fair, after the judge disbarred him, Mr. Bennett contact Avvo and requested that any reference to him being a licensed attorney be removed.
I received an e-mail from Mr. Bennett over the weekend that presents his side of the dispute. In order to prevent anything from being "lost in the translation," here is Mr. Bennett's 17-point refutation of the charges brought against him and the finding of the court.
Mr. Bennett has filed a motion for new trial he hopes to have heard before May 15.
- In forty years of practicing law I have never received a public or private reprimand;
- The OCDC Attorney Tim Bersch did not call a single Testimonial witness in either the trial phase or Sanctions phase of the case;
- The Only evidence the OCDC presented was the original contract that required the client to have a third party attorney approve and advise regarding the engagement along with motions and documents pertaining to District Court Hearing and appeal to the court of Appeals;
- The Court refused to allow my experts to testify about why there were no rule violations committed;
- Please review the letters attached to our MNT from Lillian Hardwick, the co-author of the Handbook of Texas Lawyer and Judicial Ethics and former Chairman of the Bar Ethics Committee; Dan Naranjo, former United States Magistrate and former member of the Commission for Lawyer Discipline ( the Plaintiff in the lawsuit), and Board Certified Attorney Don Karotkin, who served as a Chairman of a Grievance Committee in Houston, and Anthony Griffin who is one of the leading civil rights attorneys in the state and has been the subject of bar matters;
- The letters show that the Bar has presented experts in their cases previously and with the Court stating it had never tried a disbarment case previously, we certainly thought it would be helpful for the Court to hear from ethics experts;
- No one on the Arbitration panel, at the district court , or on the appellate court considered that I had violated any rules in handling the case ( in fact the Court of Appeals found my brief to be reasonable);
- I would also call your attention to the Court of Appeals decision that found that it disagreed with our view of the Arbitration but found that the appeal was reasonable. The complainant did seek sanctions against me before the Court of Appeals but that was denied because the appeal was a reasonable appeal;
- We have not received the transcript from the Trial, but Mr. Bersch stated that no Rule violations occurred with the writing of the Contract, the handling of the case, the arbitration, the objections and hearing in the district court. It was only after I believed the Arbitration Panel had exceed its authority and other issues required the arbitration to be vacated that I committed misconduct when I gave notice to appeal instead of paying the money to Mr. Land. In other words, when I decided in August of 20 2012 to appeal to the Court of appeals, I had not right to do that and that violated 3.02. I had no right to challenge the district court decision.
- Although a supersedes bond was posted, protecting the client if I should lose the appeal, Mr. Bersch citing no case authority and with no expert presented, decided that the appeal was a violation of Disciplinary Rule 3.02. If you will read the rule, the first comment makes reference to what the Attorney who is representing the client does. You can’t grieve a client, so the rule is aimed at the attorney who is representing a client and engages in delay. Comment 2 states that the attorney who complies with Rules 3.01,and 3.02, and 3.03 complies with 3.02. The Bar made no allegation that I had violated any other rules. Additionally, if you will read the letters attached to the MNT, you will see that Ms. Hardwick, and experts Judge Naranjo, Don Kartokin and Anthony Griffin all agreed that I did not violate Rule 3.02.
- The other violation involved the failure to return an unearned fee at the time of the termination. The Rule states: “Upon Termination of representation”. At the time Mr. Land and I parted ways, the fee he had paid had been used and he was in arrears on his account. All of this was documented and he was billed monthly. So when I was “ terminated” in June of 2011, there was no unearned fee, there was a fee dispute that took us to arbitration and a year later a decision by the District Court. No case has ever been found, no expert has ever opinioned that you can have a “ relation-back” theory of termination. That is why all my experts said that there was no violation of Rule 1.15(d).
- Moving on to the Sanctions part of the case. Again, Mr. Bersch did not offer a single witness on any of the items contained in Rule 3.10 – Disciplinary Procedure Rules. He did not call the complainant, the complaint’s attorney, nor did he call himself to prove up attorneys’ fees – very unusual, unless you don’t want to be cross examined. ( as an aside, the billing statement that Mr. Bersch wanted to be admitted into evidence did not contain any time for meeting with or talking to any fact or expert witness).
- Under the Terms of the Contract with the Complainant Land, the governing rules required adherence to the Rules of the HBA FDRC. Under the FDR ( Rule 8.02 (a)), any “decision may be reviewed by petition to a court having jurisdiction in accordance with the provisions of the Texas Arbitration Act.” (“TAA”). The decision from the Arbitration Panel is governed by the Rule of the Houston Bar Fee Dispute Resolution Committee subject to the TTA. Under the TTA, regarding the right of appeal, the TTA states: under Texas Civil Practice & Remedies Code Section 171.098 - Appeal : a party may appeal and “ The appeal shall be taken in the manner and to the same extent as an appeal from an order or judgment in a civil action.” Thus, if I had a right to appeal, there could be no violation of DR 3.02. What about the right of any litigant to appeal?
- We placed on the stand 8 witnesses who showed there was no basis for a disbarment. Those included;
- Ethics Expert Lilliana Hardwick: 512-xxx-xxxx;
- Judge Dan Naranjo: 210-xxx-xxxx;
- Attorney Don Karotkin: 713-xxx-xxxx
- Attorney Anthony Griffin: 713-xxx-xxxx;
- Client Anthony Graves: 713-xxx-xxxx;
- Attorney and Client Peyman Momeni: 713-xxx-xxxx;
- Attorney Jeff Wagnon: 979-xxx-xxxx.
- Attorney Jorge Lopez: 281-xxx-xxxx
- It was also interesting that none of the 9 witnesses (I also testified) were crossed examined or impeached in any way. Mr. Bersch passed on the opportunity to ask any questions of any of the defense witnesses or experts. Any of my witnesses would welcome a call if you would like to know more about the case.
- After we exhausted our appellate remedies, we did not oppose Mr. Land getting paid, and it is my understanding that he had been paid.
- The Bar was asked by the Court what its recommendation was and it was the same recommendation at the Sanctions phase as it was prior to the trial: One year probated up to two year probated with a three month active suspension. The Court asked Mr. Bersch about a disbarment and he stated that he was not authorized to request that. Again, when we get the transcript, you can verify that.
In an e-mail to me, Mr. Bennett raised some very good points regarding the State Bar's Office of Chief Disciplinary Counsel. I do agree with him that something seems to be out of whack when an attorney with no disciplinary blemish on his record after 38 years of practice is disbarred over one fee dispute. It is also troubling that a judge would order disbarment when that particular remedy was never asked for by the State Bar.
Tuesday, May 6, 2014
Hanging him out to dry
NBA Commissioner Adam Silver was so disturbed by a recent recording of Donald Sterling telling his girlfriend not to bring her black friends to L.A. Clipper games that he placed a lifetime ban on Mr. Sterling and put in motion a plan to force him to sell his basketball team.
Players were so put out by Mr. Sterling's comments that they wore their warm-up jerseys inside-out in order to cover up the team's logo. They wore black socks as part of their protest.
Comments and pundits were beside themselves that a rich white dude would be saying something so outrageous in the 21st century. The local chapter of the NAACP decided not to award Mr. Sterling his second Lifetime Achievement Award after the recording surfaced.
But let's keep in mind that Mr. Sterling's comments were made in a private telephone conversation that was taped by the person at the other end of the phone. Let's keep in mind that he is being castigated for holding personal beliefs that a great majority of us find offensive. He committed no crime. But for the recording no one would ever have known Mr. Sterling's personal biases.
Or maybe they would have if they had been paying attention.
Back in 2009 Mr. Sterling entered into a $2.725 million agreement with the U.S. Justice Department to settle claims that Mr. Sterling discriminated against minorities who lived in apartment buildings he owned. Mr. Sterling would be the first one to say that the agreement was not an admission of guilt but an agreement to settle a dispute in a way that both sides could live with.
Of course $2.725 million is an awful lot of money to plop down to walk away from a nasty lawsuit if there wasn't some ring of truth to the allegations.
The NBA was well aware of the settlement when it happened. Then-commissioner David Stern didn't even raise a finger. And, once Mr. Sterling showed that he was willing to spend some money to attract better players to the city's second basketball team, free agents signed up without regard to the outcome of the housing discrimination litigation.
The NAACP didn't seem to care. Mr. Sterling wrote some big checks and that was enough to give him a plaque or two.
But the settlement of the housing discrimination lawsuit wasn't nearly as sexy as a recording in which Mr. Sterling voiced his bias against black folk. It's much easier to write a headline about what he said than about the settlement of a lawsuit.
For all the eye-rubbing and hand-wringing that accompanied the release of the recording, few people acknowledged that Mr. Sterling's prejudices were far from unknown. The players who signed to play for the Clippers didn't have to look hard to find out their new boss was a bigot. League officials conveniently forgot about the 2009 settlement when it suited their purposes. Why didn't the league try to force Mr. Sterling out years ago?
What does it say to our society that making racist and bigoted comments is crossing some unspoken line while carrying out acts of actual discrimination isn't give a second thought? Is it because those in positions of power and influence would rather move our focus from discriminatory business practices to the rantings of one man? Is it because if we actually acknowledge the discriminatory conduct we would realize that discrimination and racism are integral parts of most business plans?
Just turn whites workers and black workers against each other and the next thing you know there's nobody putting pressure on you to pay a living wage and there's no one to fight against closing a plant and moving production overseas.
Mr. Sterling became expendable when he was turned into the poster boy for racism. Suddenly everyone else could point and wag their fingers and avoid any scrutiny into their own personal and business practices.
Players were so put out by Mr. Sterling's comments that they wore their warm-up jerseys inside-out in order to cover up the team's logo. They wore black socks as part of their protest.
Comments and pundits were beside themselves that a rich white dude would be saying something so outrageous in the 21st century. The local chapter of the NAACP decided not to award Mr. Sterling his second Lifetime Achievement Award after the recording surfaced.
But let's keep in mind that Mr. Sterling's comments were made in a private telephone conversation that was taped by the person at the other end of the phone. Let's keep in mind that he is being castigated for holding personal beliefs that a great majority of us find offensive. He committed no crime. But for the recording no one would ever have known Mr. Sterling's personal biases.
Or maybe they would have if they had been paying attention.
Back in 2009 Mr. Sterling entered into a $2.725 million agreement with the U.S. Justice Department to settle claims that Mr. Sterling discriminated against minorities who lived in apartment buildings he owned. Mr. Sterling would be the first one to say that the agreement was not an admission of guilt but an agreement to settle a dispute in a way that both sides could live with.
Of course $2.725 million is an awful lot of money to plop down to walk away from a nasty lawsuit if there wasn't some ring of truth to the allegations.
The NBA was well aware of the settlement when it happened. Then-commissioner David Stern didn't even raise a finger. And, once Mr. Sterling showed that he was willing to spend some money to attract better players to the city's second basketball team, free agents signed up without regard to the outcome of the housing discrimination litigation.
The NAACP didn't seem to care. Mr. Sterling wrote some big checks and that was enough to give him a plaque or two.
But the settlement of the housing discrimination lawsuit wasn't nearly as sexy as a recording in which Mr. Sterling voiced his bias against black folk. It's much easier to write a headline about what he said than about the settlement of a lawsuit.
For all the eye-rubbing and hand-wringing that accompanied the release of the recording, few people acknowledged that Mr. Sterling's prejudices were far from unknown. The players who signed to play for the Clippers didn't have to look hard to find out their new boss was a bigot. League officials conveniently forgot about the 2009 settlement when it suited their purposes. Why didn't the league try to force Mr. Sterling out years ago?
What does it say to our society that making racist and bigoted comments is crossing some unspoken line while carrying out acts of actual discrimination isn't give a second thought? Is it because those in positions of power and influence would rather move our focus from discriminatory business practices to the rantings of one man? Is it because if we actually acknowledge the discriminatory conduct we would realize that discrimination and racism are integral parts of most business plans?
Just turn whites workers and black workers against each other and the next thing you know there's nobody putting pressure on you to pay a living wage and there's no one to fight against closing a plant and moving production overseas.
Mr. Sterling became expendable when he was turned into the poster boy for racism. Suddenly everyone else could point and wag their fingers and avoid any scrutiny into their own personal and business practices.
Monday, May 5, 2014
How's that for poisoning the panel?
Defense attorneys representing clients accused of child abuse (and other nasty crimes against children) can now breathe a slight sigh of relief as jurors will no longer be walking into the courthouse past a display from Child Protective Services declaring April to be Child Abuse Prevention Month.
Displays such as this have no business being placed outside a criminal courthouse where the accused is supposed to be presumed innocent and is entitled to a fair trial. Displays such as the one in Brazoria County serve only to inflame potential jurors. They also contribute to this belief (that is propagated in the media) that judges, prosecutors, law enforcement officials and court staff are all part of the "same team" while criminal defendants and their attorneys are "the other guys."
How about National Death Row Exonoree Month? Innocence Week? Or even Botched Execution Remembrance Day?
Friday, May 2, 2014
Oh, I'm sorry, was that the record button I just pushed?
On Wednesday Grits for Breakfast gave us the inside scoop on a scandal in Austin over video-monitoring at the county jail. It seems that, despite promises to the contrary, that the contractor running the system records video conferences between inmates and their attorneys. As a result a federal lawsuit has been filed in Travis County seeking to stop the recording and to destroy all existing recordings.
The company, Securus Technologies, claims that the problem lies with deputies working in the jail not checking a box on a form. Oops.
Now that tells us that the default is to record the conversations. That isn't what the company promised attorneys. That isn't what the county promised attorneys.
Says Grits:
Securus Technologies is the same company hired by Harris County to run its video conferencing system. When the county first introduced the idea both county officials and the company swore up and down that none of the conversations would be recorded.
We now know that was a lie.
Back in 2012 I wrote an article following Sheriff Adrian Garcia's announcement that video conferencing was coming to the Harris County Jail. It now seems somewhat prophetic:
And it doesn't really matter if no one from the DA's office or law enforcement ever listens to, or views, the conferences. The mere fact that the state has a back door available to obtain privileged communications is troubling enough. And we should all be aware of the fact that in 2014, any back door that is available will be exploited by the government.
So the next time someone from the government stands up and says they have a great idea that will make life easier for defense attorneys, ask yourself why on earth the state would do anything at all to help us defend our clients.
The company, Securus Technologies, claims that the problem lies with deputies working in the jail not checking a box on a form. Oops.
Now that tells us that the default is to record the conversations. That isn't what the company promised attorneys. That isn't what the county promised attorneys.
Says Grits:
The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”Grits goes on to say that the same issues have been raised in other states in which Securus installed and managed a video conferencing system for the jail. In each case the company, and the government, lied to attorneys about the technology. In each case the company, and the government, shifted the blame.
Securus Technologies is the same company hired by Harris County to run its video conferencing system. When the county first introduced the idea both county officials and the company swore up and down that none of the conversations would be recorded.
We now know that was a lie.
Back in 2012 I wrote an article following Sheriff Adrian Garcia's announcement that video conferencing was coming to the Harris County Jail. It now seems somewhat prophetic:
But do you really know for sure? The county maintains the equipment. The county maintains the software. You know, the same people who are trying to convict your client of whatever alleged misdeed he committed. Are you really having a secure conversation?
Jails maintain visitor logs. They record all outgoing inmate calls. They read all the mail - both incoming and outgoing - unless (fingers crossed) it says "attorney-client communication" (or words to that effect) on the envelope. What are they doing with the video feeds?
Does the software just facilitate the transfer of video and audio from one monitor to another? Does the software allow the state to "capture" audio or video? Does the software allow a third party to monitor the communication?Does it really come as a surprise that we were lied to (again)? It shouldn't. Anyone who bought the promises of Securus and Harris County really needs to get their head examined because there are some synapses that aren't firing on all cylinders.
And it doesn't really matter if no one from the DA's office or law enforcement ever listens to, or views, the conferences. The mere fact that the state has a back door available to obtain privileged communications is troubling enough. And we should all be aware of the fact that in 2014, any back door that is available will be exploited by the government.
So the next time someone from the government stands up and says they have a great idea that will make life easier for defense attorneys, ask yourself why on earth the state would do anything at all to help us defend our clients.
Thursday, May 1, 2014
A science experiment gone wrong
“In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world. The greatest power any government has over an individual is to take that person’s life. More than any other power, the exercise of the power to kill must be accompanied by due process and transparency. This evening we saw what happens when we allow the government to act in secret at its most powerful moment and the consequences of trading due process for political posturing. This is not about whether these two men are guilty; that is not in dispute. Rather, it comes down to whether we trust the government enough to allow it to kill its citizens, even guilty ones, in a secret process.”
-- Ryan Kiessel, Executive Director, ACLU of OklahomaThe back story to Oklahoma's botched execution of Clayton Lockett gets worse the more one looks at the sequence of events that led to Mr. Lockett's heart attack.
Attorneys for Mr. Lockett and Charles Warner (who was also scheduled to be murdered on Tuesday) filed a lawsuit challenging Oklahoma's secrecy law regarding the acquisition of drugs used for executing prisoners. Oklahoma County District Judge Patricia Parrish issued a stay after finding the law was unconstitutional as it served to limit inmates' access to the courts.
On April 21, the Oklahoma state Supreme Court upheld Judge Parrish's stay until such time as the legal issues regarding the state's secrecy law could be determined. Oklahoma Governor Mary Fallin then issued an executive order stating that the state's Supreme Court lacked jurisdiction over the matter and rescheduled the executions for April 29. On April 23, under pressure from state officials, the Supreme Court reversed itself and ruled that condemned inmates had no right to know from where the state obtained the drugs it intended to use to kill them.
Oklahoma, like Texas, has a bifurcated court system. In both states the Supreme Court hears civil matters while criminal matters are argued before the Court of Criminal Appeals. In this case the CCA said it didn't have the authority to hear the matter because the case was filed as a civil suit so the Supreme Court took up the case under a "rule of necessity."
In the meantime, Republican state Representative Mike Christian threatened to seek impeachment of the judges who voted in favor of staying the execution saying the Supreme Court had overstepped its bounds. It was after this threat that the high court reversed itself and allowed the execution to proceed.
Gov. Fallin has called for an investigation into what happened on Tuesday night. If the investigation is run under the aegis of the state there will always be doubt about its conclusions. The only way to conduct a proper investigation is for it to be independent of state interests. Of course, if the reason for the investigation is to find out how the state can go about killing inmates more efficiently then it really doesn't matter who conducts it.
The official explanation for Mr. Lockett's death is that he suffered a heart attack 43 minutes after the execution began and that the execution was halted when a doctor determined that the vein into which the drugs were being pumped had "exploded."
If we accept that explanation we still don't know if the problem was caused by the incompetence of the staff carrying out the execution, because of a medical condition affecting Mr. Lockett's veins or because the drugs didn't do what they were supposed to do. From media accounts of the execution, Mr. Lockett was still conscious and mumbling when the blinds were drawn.
Since one of the drugs in the lethal cocktail was designed to stop Mr. Lockett's heart, we can assume that it did it's job. We can also assume that Mr. Lockett suffered pain in the aftermath of the state's science experiment gone wrong. Regardless of how state officials wish to characterize what happened on Wednesday, Mr. Lockett was tortured and murdered at the hands of the state.
Here is a round-up of some additional coverage of Oklahoma's botched execution.
"Execution chaos: Witness recounts botched killing that caused Okla. prisoner's fatal heart attack," Democracy Now! (Apr. 30, 2014)
"Oklahoma execution prompts investigation," Here & Now (Apr. 30, 2014)
"Eyewitness account: A minute-by-minute look at what happened during Clayton Lockett's execution," Ziva Branstetter, Tulsa World (Apr. 30, 2014)
"Execution failure in Oklahoma: Clayton Lockett dies of heart attack after vein explodes," Graham Lee Brewer, NewsOK (Apr. 30, 2014)
"Botched Oklahoma execution prompts questions about lethal injection," Scott Neuman, The Two-Way (Apr. 30, 2014)
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