Monday, June 30, 2014

First the plea, then the admonishments

On Friday members of the Harris County Criminal Lawyers' Association stood outside Judge Michael Fields' courtroom handing out 3x5 cards listing the rights a criminal defendant has under the 5th and 6th Amendments. They did this to protect unrepresented defendants making their first appearance from Judge Fields.

If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.

For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.

Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.

But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.

This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.

Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.

And once it's entered, it's final. No turning back. No changing your mind.

A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.

The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.

Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.

Friday, June 27, 2014

Thoughts on the World Cup

Enough about the law for now. Here are a few observations about the group stage of the World Cup.

Luis Suarez may very well be the best striker in the world but he has got a serious problem that needs to be addressed. He has now been suspended three times for biting another player. The latest ban is for four months and nine international matches. I can't even being to imagine what was going through his mind, but biting someone during a World Cup match is beyond stupid. While the referee might not have seen it, there are so many cameras out there that someone was going to. Little children bite because they don't know better. Grow up, Luis.

This edition of the World Cup has a very Latin flair to it. Seven of the sixteen teams that advanced to the second round are from Central and South America. And then there's the United States. When you factor in two teams from Africa, you end up with less than half the remaining squads coming from Europe. The two biggest surprises have to be Costa Rica and (the suddenly Suarez-less) Uruguay. Who would have thought that neither England nor Italy would've survived the group stage? I must say, however, that one of the things I'm going to miss about the rest of the World Cup is watching England find new ways to lose.

The United States has some serious work ahead if they want to be serious contenders for the trophy. Until the US can develop midfield players that know how to play possession soccer and who can create goal scoring opportunities through creative passing, we will be left just hoping to get out of the group stage. Against Ghana the midfield was non-existent, serving as nothing more than a way station from the back line to the strikers up top. In a game in which possession of the ball was crucial, there was no one in the middle that seemed to know how to do it. While they looked better against Portugal, against Germany in the monsoon the midfield reverted to form and the team showed a complete lack of ideas on what to do on the pitch.

Lionel Messi has been nothing short of superb for Argentina. He has demonstrated just what a goal-poaching striker should be. His goal against Iran in stoppage time of a scoreless draw was spectacular. His goals against Nigeria were remarkable. The first was the perfect example of what a striker does. He was in the right place at the right time when the ball caromed off the post and he drove it into the net. Against Iran he did little for 90 minutes but when he got his foot on that ball in stoppage time he made the world forget that he had, in essence, been kept out of the game by the Iranian defenders. That's what the best strikers do - they can be invisible for much of a game but when that opportunity comes, they pounce on it.

Thursday, June 26, 2014

It can't possibly be his fault, can it?

And then along comes Martin Odemena to make lawyers (or wannabe lawyers) look ridiculous again.

According to this piece on the ABA Journal's website, Mr. Odemena is a former law student who was still a bit upset over the D he received in his contracts class. He was so upset, in fact, that he filed a lawsuit against the Massachusetts School of Law alleging that the school's decision cost him over $100,000.

It seems that Mr. Odemena decided to blow off days in which his contracts professor, Joseph Devlin, gave quizzes in class. Mr. Odemena understood, incorrectly so, that those quizzes wouldn't count toward his final grade. The result was a D in contracts class.

The grade led to Mr. Odemena's suspension from school which, according to his lawsuit, made it impossible for him to transfer to another school. And, just like that, another promising career in the legal field went up in smoke.

Okay. I get it. Mr. Odemena really, really wanted to be a lawyer. He flamed out in law school. He was upset because he wouldn't get that fancy BMW he had his eyes set on. He wouldn't be able to impress the ladies with his tales of carrying briefcases and doing meaningless work for a big law firm. Surely it wasn't his fault his dream had gone poof.

On the other hand, he avoided carrying a whole lot of debt around with him after he got his ticket to ride. He didn't get sucked down into the drudgery that BigLaw has become now that the bean counters are tracking the rate of profit from every task. He didn't have to live with the anxiety that he would be cut loose when he failed to make the partner track in a few years.

Let's face it, law school is a mechanism for weeding out those folks who think they want to be lawyers. Mr. Odemena was looking for the easy way out. If the quizzes didn't count he could take it easy during the term and then get down to business toward the end of the semester when it counted. What does that tell you about how he would do his job once he got to put Esquire after his name?

And if he didn't get to be a lawyer afterward? So freaking what. None of us are given a guarantee of what we're going to do after school. That's not how life works. The bar down the street is full of folks who didn't get the job they yearned for. You can either get over it or you can let it drag you down the street of self-pity and self-absorption.

Mr. Odemena didn't get to be a lawyer. The legal world won't miss him. There are already too many of us anyway. Instead of pouring more and more new lawyers out on the streets year after year, law schools need to do a better job of weeding out the folks who don't need to be lawyers.

And that's exactly what the Massachusetts School of Law did.

Wednesday, June 25, 2014

Lost in the aether

In an effort to reduce the amount of paper that lawyers generate, the Texas Supreme Court mandated that all civil and family pleadings be filed electronically. On the one hand it's great because you can sit down at your desk, draft the pleadings and file them at any time without having to drive downtown. Of course now there are more folks with their hands in the pie taking a cut of the fees so it costs a bit more - but probably no more than the gas and parking for going downtown.

Unfortunately, at least in the family courts, e-filing has caused things to bog down. Here's an example.

Back on the 12th of June I filed a divorce petition and request for a temporary restraining order. Now, in the old days we would go to the filing window in the basement of the Family Law Center, file our petitions, pay the filing fees and, if there was a TRO to be signed, take the file from the clerk and walk it up to the courtroom for the judge to sign. After it was signed we'd walk it back down to the clerk and it would go in the stack to be processed. Generally within a week the paperwork was ready to be picked up and served.

No more.

After filing the petition on a Thursday evening, I had to wait until Tuesday for it to be signed by the judge (in all fairness, the judge was out of town on Friday after I filed the petition). So far so good, more or less. But then the paperwork got lost in the ether at the Civil Courthouse. On Friday the 20th I went to the window for the family section and asked if the petition was ready to be picked up. I was told by the clerk that it wasn't and that I should check back on Monday or Tuesday.

Since I was scheduled for trial yesterday I decided I wouldn't go to the courthouse on Monday - I figured it gave me better odds of not wasting my time. So yesterday I stopped back by the family section before heading over to the Criminal (In)justice Center. I was expecting to pick up the paperwork so that I could serve it on the husband.

But, to my surprise, it still wasn't ready to be picked up. I was told to come back by on Wednesday to see if it was ready.

Assuming it is ready for pick up today, it will have taken almost two full weeks for the petition to be filed, the TRO to be signed and the citation produced. That is a ridiculous timeline. Shouldn't one of the benefits of e-filing be speedier turn-around time? The process now takes longer than the old paper filing system did.

And this fiasco is just part of the story. Under Chris Daniel's "leadership," not only does it take longer to initiate a new case, going on-line to the website to check on the status of a case is often a hit-or-miss affair. The website's search database is prone to crashing and bringing the system to a halt.

Since Mr. Daniel decided to take the old Justice Information Management System and migrate it to the searchable database, attorneys and bondsmen looking for current information on a defendant's status find themselves having to wait for hours for the system to update itself.

Mr. Daniel has done everything he can to promote himself with an election coming up in November. For those folks who don't deal with the courthouses on a daily basis, the mere fact that he has an "R" after his name will be enough to get him lots and lots of votes in the vapid suburbs. For the rest of us, however, his tenure has been an exercise in just keeping one's head above water. The District Clerk's Office certainly isn't in better shape today than it was before he was elected. The prospects for the future aren't much brighter, I'm afraid.

For all the hoopla about e-filing, the actual product has failed to live up to expectations and a two-week lag between filing a petition and picking up the citation is nothing short of pathetic. Maybe if Mr. Daniel spent more time managing the office and less time campaigning things would work better.

Tuesday, June 24, 2014

Court releases Obama's drone memo

Thanks to the 2nd Circuit Court of Appeals, the infamous Obama administration "drone memo" is now public. The memo lays out the administration's justification for the use of drones to kill suspected terrorists and those unfortunate enough to be in the vicinity of them.

One of the touchstones of the memo is the infamous balancing test the US Supreme Court introduced when weighing Fourth Amendment violations. Never mind that the Fourth Amendment is quite clear in its prohibition against unreasonable search and seizures. As legendary criminal defense attorney Gerry Goldberg would point out, whenever the Supreme Court starts talking about balancing tests, our rights are in danger.

According to the memo we should look to balance the violation of a suspect's Fourth Amendment rights against the interest the government has in violating those rights. In other words, if there was enough dope found, the search is legal and if the government stomps its feet loud enough and proclaims that a person is a terrorist, then it's no harm, no foul.

Balancing tests are what we use to decide whether or not a law should be enforced or repealed. Balancing tests are what we use to decide our course of action in almost any endeavor. A balancing test has no business being involved in determining whether a person's constitutional rights were violated. To do so implies that one's rights under the Bill of Rights are just relative.

But, hey, if we're talking about the Fourth Amendment we already know we're talking about someone who did something they weren't supposed to. We also know that the police found plenty of evidence of that transgression -- otherwise there wouldn't be a need to discuss whether the search or seizure violated anyone's rights.

And who wants to be the person who lets the bad guy go free, anyway? That's certainly not the way to pick up votes during the campaign. Folks want to vote for the judges who are "tough on crime," not the judges who promise to extend the protections of the Bill of Rights to everyone who sets foot in their courtrooms.

And what better way to be tough on crime - or any other bogeyman - than to limit the applicability of the Fourth Amendment? And the best way to do it is to create a straw man and institute a balancing test. Of course the same folks who take that approach with the Fourth Amendment would have a conniption fit if anyone suggested that a balancing test should be used to determine when the Second Amendment should apply.

Monday, June 23, 2014

On picking your fights

I was in municipal court for a client fighting a traffic ticket in a Houston suburb last Thursday. The court wants defendants in the courtroom to answer an 8:00 a.m. docket call on trial settings. They also want attorneys to call in if they are going to be running more than a few minutes late.

There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.

Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.

In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.

The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.

The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.

The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.

Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.

Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.

My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to a black-robed prosecutor judge but that this definitely wasn't it.

The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.

As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.

The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.

Friday, June 20, 2014

The two faces of the World Cup

I had to wait until my girls went to bed before I could finally sit down and watch the Uruguay-England match from the World Cup. Watching Luis Suarez put those two balls in the net was well worth the wait. I haven't much doubt that Luis Suarez is the best striker in the world. Just watch what this team did against England and compare that to the debacle that was their opener against Costa Rica and you can't help but think Suarez is the best.

But the story of this World Cup isn't just what's happening on the pitch. The real story is what's going on away from the cameras and media. The Brazilian government has sold its soul to host both the World Cup and the Olympics and it's the poorest of Brazilians who are paying the price.

For those of y'all who have been enjoying the football, here's an interview Dave Zirin gave to Amy Goodman on Democracy Now! on Thursday in
which he puts the World Cup in its proper perspective.

Thursday, June 19, 2014

First executions since Oklahoma's botched science experiment

Right around midnight on June 18, 2014, the states of Georgia and Missouri murdered inmates with secret drug protocols. They were the first executions in the United States since Oklahoma's botched execution of Clayton Lockett.

The first inmate to die was Marcus Wellons in Georgia, whose execution was carried out after his last minute appeal to the U.S. Supreme Court fell on deaf ears. Mr. Wellons challenged the execution on the grounds that due to state secrecy laws he had no way of finding out the purity and potency of the drug that would be used to kill him. Without that information he was unable to challenge the execution protocol under the Eighth Amendment's ban on cruel and unusual punishment.

A three judge panel of the 11th Circuit Court of Appeals rejected his claim that state secrecy laws prevented him from obtaining information regarding the drug that would be used to kill him. Judge Charles Wilson said he was troubled by the circular logic of the secrecy law in Georgia. He voiced concerns over the court's ability to determine whether an inmate's Eighth Amendment protections were violated because of the secrecy law. In the end, however, he was a good little soldier and looked past his concerns and voted to kill Mr. Wellons.

From the Los Angeles Times:
Three judges on the 11th Circuit Court of Appeals unanimously rejected those arguments earlier Tuesday, though one judge, Charles Wilson, wrote that Georgia's secrecy law had a "disturbing circularity problem." 
Since it was Wellons' responsibility to prove that the state's execution plans were likely to cause an unacceptable amount of harm, Wilson wrote, "How could he when the state has passed a law prohibiting him from learning about the compound it plans to use to execute him?" 
Wilson added that judges, too, would have difficulty examining the legality of the state's executions without more information on how they were being carried out. Despite those concerns, he cleared the way for Wellons' execution.
Shortly after Mr. Wellons was murdered down in Georgia, the State of Missouri stuck a needle in John Winfield's arm and killed him. Mr. Winfield's execution had been put on hold by a federal judge over concerns that the state wasn't being fair when it came to Mr. Winfield's push for clemency. According to court papers the State of Missouri threatened to fire a prison guard who was going to testify that Mr. Winfield was a model prisoner.

Once the 8th Circuit Court of Appeals struck down the lower court's stay of execution, the State of Missouri wasted no in killing Mr. Warfield.

Thanks to state secrecy laws we know nothing about the drugs used to kill either Mr. Wellens or Mr. Warfield. We know nothing about the efficacy of the drugs used or how powerful the drugs were when they were used to kill the prisoners. Without that knowledge it is virtually impossible for anyone to determine whether or not inmates may suffer while being executed.

As citizens of the states, we all have a right to know just how our elected officials are spending our money and just what they are doing in our names. Unfortunately we choose to ignore those rights when it comes to those sentenced to die by a jury of their so-called peers.

Wednesday, June 18, 2014

The truth only makes it worse

I have a bit of sympathy for Oklahoma prison officials trying to rationalize explain what went wrong during the botched murder of Clayton Lockett last April. God knows they needed an excuse to explain why Mr. Lockett was still alive 15 minutes into the execution. That need got bigger when they drew the curtain (telling everyone that something was very much fucked up). And they certainly had to come up with a good excuse for Mr. Lockett's dying of a heart attack some 40 minutes after the entire process had begun.

They latched on to the only thing they could come up with at the time. Prison officials told the world that a doctor told them that Mr. Lockett's vein had exploded. Or collapsed. Or something like that. Hell, he was a convicted murderer - did it really matter how he ended up dead?

On the night of Mr. Lockett's execution, attendants (who may or may not have had any medical training - since the state keeps that a secret) tried to stick IV needles into the veins in both arms but were unable to find it. Then they decided to stick the needles into the veins in his groin - or at least in the general vicinity of the veins.

We know this because of an independent autopsy that was conducted on Mr. Lockett's body. Forensic pathologist Joseph Cohen found multiple needle marks on both arms that were made in a frantic attempt to find a vein. I guess no one ever heard of using a rubber tube to constrict blood flow to make the veins more visible. But, hey, what do I know? I'm just a lawyer.

Dr. Cohen also stated that the decision by some genius to jab Mr. Lockett in the groin area was guaranteed to be far more painful than jabbing him in the arm. Then came the coup de grace - Mr. Lockett's veins were in perfect condition. They didn't explode. They didn't collapse. They didn't blow out.

No. The folks in charge of the execution fucked this puppy up. Now Gov. Mary Fallin is taking a more cautious route, waiting for the state's "independent" autopsy report before she makes any statements about the botched execution and what the future holds for those on Oklahoma's death row.

As an aside, I would presume that the state's "independent" autopsy will be just as independent as the "independent" medical reviews in civil personal injury cases that are conducted by a doctor of the insurance company's own choosing. Just a thought.

So, was the execution botched because prison attendants couldn't figure out how to stick an IV needle in a vein or was the execution fucked up because of the first drug of the lethal cocktail? We know that Mr. Lockett felt intense pain because he was rendered unconscious by the first drug. That means he was very much conscious when the third drug stopped his heart.

Is this how a civilized society operates? It's time to put an end to the madness.

See also:

"A science experiment gone wrong," The Defense Rests (May 1, 2014)

Tuesday, June 17, 2014

We'll let you know if it's something we think you should know about

Exactly how does a lab analyst, at an accredited lab, record the wrong name on at least 350 lab samples? How does that same lab analyst lose or destroy another analyst's worksheet? More importantly, what does that say about the quality of the work in the lab?

Those are the questions raised by a scandal involving Integrated Forensic Laboratories, LLC, a Bedford, Texas, lab that Bexar County contracted with to perform blood testing in DWI cases. Justin McShane, a Pennsylvania attorney and forensic science savant, posted an article from the San Antonio Express-News detailing the breadth of the scandal. A little anonymous bird pointed me to Mr. McShane's posting.

Cherrie Lemon was the analyst who lost her job on May 16 and whose work has now raised questions about the validity of tests performed on hundreds of DWI cases. The biggest questions are how she kept her job after the massive mislabeling effort and why the Bexar County DA's Office didn't notify defense attorneys of the problems at the lab until after news broke of her firing.

In an e-mail to Bexar County prosecutors, Dr. Nate Stevens, Ph.D., the lab director at IFL, pointed out that defense attorneys didn't need to know anything about their internal investigation unless any issues arose after the audit.

Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).

For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.

When a hand-held pipette in the HPD Crime Lab was found to be out of tolerance no one in the defense bar was notified. You only found out if you retained a certain expert who found the problem in the reams of paperwork turned over during discover. I only found out when I was handed a sheaf of papers five minutes before we were to resume trial.

In my case the lab analyst took the stand and told the jury, with a straight face, that it didn't matter if the pipette was out of tolerance. Forget about standard operating procedures - so what if we don't know what amount of blood or other substances were placed in the tube?

Any lab analyst worth his or her salt would be honest enough to admit that any test conducted using instruments that were out of tolerance would be compromised and should be re-run. Maybe it wouldn't make any difference - but what if it did?

This crap finds its way into our trials because we don't do a good enough job of fighting to keep junk science out. It also happens because criminal judges tend to disregard their roles as gatekeepers of scientific evidence. It would be funny, if it weren't so tragic, that judges in civil trials - where the only thing at stake is money - do a vastly superior job of keeping junk science out of the courtroom.

But hey, we're talking about criminal defendants here. We all know they did something wrong - even if it wasn't what they were charged with, don't we?

Monday, June 16, 2014

Having your cake and eating it, too

In 2012 Connecticut did (and didn't) abolish the death penalty. The legislature passed a bill, later signed by the governor, that abolished the death penalty for all crimes committed after April 2012 - but not for crimes committed before that date. That decision left 11 men on death row.

Last month Richard Roszkowski was convicted of killing a 9-year-old and two adults. He was sentenced to death.

Now the question arises whether or not it's legal for the state to kill him. After all, if the state decided that no one else would be put to death because of fears of executing an innocent man, then does it really matter when the crime was committed?

Does putting a cut-off date on the death penalty raise a constitutional issue in Mr. Roszkowski's case? The cut-off date is certainly arbitrary. And if a state makes the decision not to kill any more inmates, what difference does it make when the crime occurred?

We run into much the same situation whenever a court makes a ruling that is prospective in nature - in other words, when the court declares that a rule will only apply to cases going forward and will not apply to those that have already been decided. If something is unconstitutional starting today - then shouldn't it be unconstitutional yesterday?

The problem in Connecticut arose because of the political compromise that led to the repeal. Conservatives didn't want to appear soft on crime so they insisted that those folks on death row remain there (even though the state had only executed one inmate in the last 50 years). More liberal-minded legislators were willing to agree to that provision if they could get their repeal. And thus was born a bad law.

It's quite interesting that Kevin Kane, the state's top prosecutor, told the legislature that he didn't like putting a cut-off date on the repeal of the death penalty. He told them he wouldn't seek the death penalty for a hypothetical crime committed after the date of repeal. He even told the legislature to seek the death penalty in such a case would be arbitrary.

But, when given the chance to back up his words, Mr. Kane passed.

Now the courts shall have the last word.

Friday, June 13, 2014

Book review: Prayers for the Stolen

I don't generally review works of fiction on these pages but Jennifer Clement's new novel Prayers for the Stolen deserves mention. Ms. Clement is an American writer who was raised, and currently lives, in Mexico.

In a voice that sometimes seems to be a gringa Gabriel Garcia Marquez, Ms. Clement tells us the story of  a group of mothers and their daughters who lives on a mountain in Guerrero state in Mexico. Each of the mothers has dug a trench in the yard for their precious daughters to hide in should the narcoterrorists come a-calling.

The main character is a preteen girl named Ladydi. She was given that name in honor of Princess Diana whom her mother adored. Her mother would spend her time watching the History Channel on television and accumulating a wealth of otherwise useless trivia. But she knew to make certain that her daughter wasn't seen as desirable by the riff-raff driving through the region. She cut Ladydi's hair short and stained her teeth so she wouldn't look attractive. 

The women are left alone on the mountain because the men have all gone to the States to earn a living. Some husbands continue to send money back to their families on a regular basis while others have drifted off to a new life in a new country. Whatever the case, it leaves the women with the job of protecting themselves.

One of Ladydi's friends is kidnapped and turned in to a prostitute by a drug lord. She is returned to her village in an infantile state having had her childhood stolen from her. She comes back with the tell-tale cigarette burns on her arm that the "stolen" use to identify themselves should they turn up dead.

Ladydi's life takes a tragic turn when she is implicated in the brutal murder of a little girl while on her way to a job in Acapulco cleaning the house of a drug lord who isn't coming back. In prison she finds herself with another group of strong women whose lives have gone off the rails. It is her coming of age.

Prayers for the Stolen gives us a glance into a somewhat mystical world of drug cartels and unfettered capitalism. The view isn't pretty and it should make us think about our approach to drugs and drug wars and the people who get caught in between. 

Thursday, June 12, 2014

Oh what a relief it is (finally)

Now I don't usually take to these pages with a self-congratulatory blog post after getting a positive result. That's self-serving and doesn't serve the purpose for which I started up this blog almost six years ago.

But yesterday I got to do something pretty damn cool. I got to call up a client and tell him that his felony dope conviction was overturned by the Court of Criminal Appeals. After almost two years and two previous denials of relief, the CCA granted our writ on the third attempt.

Our work to reverse the conviction came about when it was revealed that a DPS lab analyst, Jonathan Salvador, had been caught faking test results in drug cases. At first the writs were being granted and convictions were being reversed - until someone in Austin realized just how many cases were affected. We certainly couldn't have a bunch of judges in Austin reversing thousands of felony drug convictions just because the lab analyst was caught cheating now, could we?

The Court tried to make it harder to obtain relief by making applicants show a pattern of misbehavior on the part of Mr. Salvador. That hurdle was overcome when it was discovered that there were other tests that appeared to have been faked over the years.

Credit must also go to Galveston County District Attorney Jack Roady who made a decision that his office would be more interested in seeing that justice was done than in preserving convictions. Assistant District Attorney Virginia Jones who is a fellow marathoner (but a whole lot faster than me) and works in the appellate division of the office also deserves credit for the integrity she displayed during the entire episode.

And, while I'm doling out huzzahs, a final one goes out to the Honorable Bret Griffin, the Presiding Judge in the 212th Judicial District Court in Galveston County. When we sat back in his chambers a few months ago after our second request was denied by the CCA, he told us that he thought the Court's decision in the Coty case was wrong.

In the end my client is happy now that this five-year long roller coaster ride is over. And that's one of the reasons we do what we do.

Wednesday, June 11, 2014

Supreme Court rules on execution in Texas

On May 13 of this year Robert Campbell was scheduled to be murdered by the State of Texas. Just hours before a lethal dose of pentobarbital was pumped into his veins, the execution was stayed by the Fifth Circuit Court of Appeals.

Mr. Campbell made two arguments - his first was that he was mentally retarded and, therefore, should not be executed. He also argued that he should have the right to know the source of the drug being used to kill him.

The court granted the stay based on the first argument and dismissed the second argument.

The matter went before the US Supreme Court on Monday. The Court declined to review Mr. Campbell's argument that he shouldn't have been sentenced to death because of an intellectual disability. Mr. Campbell's attorney, Rob Owen, said he wasn't surprised by the decision because of the recent Supreme Court decision in Hall v. Florida in which the Supremes criticized states for following strict guidelines when determining whether an inmate (or a defendant) is mentally challenged to the degree he can't be executed.

The Court left unanswered, for now, Mr. Campbell's claim that it was unconstitutional for Texas not to disclose the source of the drug. Without knowing the source of the lethal drug, there are no checks to make certain the drug is of a particular purity or of a sufficient strength to do what it's supposed to do without causing unnecessary pain and suffering.

The Texas Attorney General (and gubernatorial candidate), Greg Abbot, issued an opinion that the state was under no obligation to provide the requested information to death row inmates due to potential threats against the suppliers of the drug. You know those cockroaches are much more comfortable running around in the darkness - and I get the impression that some folks might be averse to buying their drugs from a pharmacy that supplies the drugs of death to the state. Just thinking.

I'm afraid that Mr. Campbell's second claim will fall on deaf ears in Washington because the protocol in Texas just calls for a massive overdose of a sedative without the use of any other drugs. The only side effect of a weaker dose of pentobarbital in Texas would be a longer length of time between injection and death.

Mr. Campbell's claims would carry much more weight in a state with a multi-drug protocol where the sedative's purpose is to render the prisoner unconscious before the actual death drugs are administered. In Oklahoma and Ohio, for instance, if the initial drug isn't potent enough (or if the dose is too small) then the condemned man may very well not be unconscious when the subsequent drugs are injected. If the sedative doesn't do the trick then the prisoner will be aware of the effects of the other drugs and would suffer a severely painful death.

Of course I think the information should be made public because the state is killing an inmate in our name - whether we support capital punishment or not - and our money is being used to purchase the tools of death. The government's efforts to keep the information under wraps is inimical to our democracy. If a pharmacist wants to play footsy with the devil, then that's his right - but we have a right to know who's supplying the drugs. The Supreme Court is well aware of the fact that if that information were to be made public by every state there would be no one left to supply the drugs.

And that's exactly why the information needs to be made public.

Tuesday, June 10, 2014

The beautiful game ain't always so beautiful

As if the rampant corruption in international soccer isn't enough to get folks to sit up and take notice of how money greases FIFA's skids, yesterday I ran across this article on ESPN about the 1978 World Cup in Argentina.

In 1976 the military staged a coup in the midst of the chaos of clashes between leftist guerillas and right-wing paramilitaries. Much of the populace welcomed the coup at first - until they realized the terror and repression that would follow. The 1978 World Cup was used by the military junta to justify their reign of terror. To this day there are many in Argentina who would rather forget about the national team's triumph in 1978.

While the World Cup was being played on pitches across the country, thousands of political dissidents, leftists, trade unionists and activists for the poor were kidnapped and placed in secret prisons where they were tortured and killed. There are thousands of people across the country who don't even know who there parents were because the military killed their parents and gave the babies to colleagues.

Meanwhile, in Sao Paolo, striking subway workers in have threatened to continue their strike through the rest of the week - which would provide some serious headaches for World Cup organizers and fans. In response, local police turned against the striking workers firing tear gas in an attempt to break up the protest.

The government controlled subway operator announced that some 60 of the striking workers had been fired. And this from a socialist-leaning government. So much for the workers of the world speech - now it's all about the filthy lucre from large multi-national sponsors.

Finally, here are a few problems FIFA, the Brazilian government and international broadcasters would rather you not take notice of. But, hey, it's just a game, right?

Monday, June 9, 2014

World cup of corruption

We are now just days away from the opening match of the 2014 World Cup soccer tournament in Brazil. But attention has been drawn away from the matches because of the rampant corruption that takes place behind the curtains erected by FIFA - the governing body of world soccer.

In Brazil the government spent millions of dollars on soccer stadiums and infrastructure instead of spending it on education and poverty eradication. Protesters have taken to the streets in recent weeks to denounce the government's choice of priorities. Even Pele, the world's most famous soccer player (who was also an apologist for the right-wing military dictatorship that ran Brazil until the 1980's) has railed against the government's misplaced priorities.

Meanwhile the 2022 tournament, awarded to Qatar, is awash in controversy over backroom deals and corruption that led FIFA to award the tournament to nation with no soccer history (and one in which temperatures during the summer get well into triple digits). The Qatari government is also having to answer questions about hundreds of foreign workers who have died during the construction of the stadiums and associated infrastructure.

This past week three major World Cup sponsors - Adidas, VISA and Sony - issued a statement outlining their concerns about the goings-on with FIFA. While the sponsors may have some questions about the way in which FIFA operates, it is unlikely that they would raise too much of a stink because of the untold millions of dollars each pockets for its role in the tournament.

So, while you enjoy the soccer on the pitch, don't turn a blind eye to the price of corruption that lies just beyond the stands. Many will suffer for the benefit of a few people who will pocket a share of the billions of dollars the World Cup generates. Soccer may be called the beautiful game - but it's really nothing more than a cesspool of corruption and exploitation.

Friday, June 6, 2014

Probably not the best time to take a lunch break

This was the sight from the North Loop in Houston on Wednesday.

That's the building my office is in. Houston Eye Associates spent a bunch of money to have their name placed on top of the building. On Wednesday morning the crew putting up the sign decided to take a lunch break. I'm not certain anyone actually stopped to think about their stopping point.

Thursday, June 5, 2014

One way to reduce indigent defense bill

So you think it's hard to get a court-appointed attorney in Harris County. There are judges who will tell defendants who have been able to scrape up enough money to post bond that they have to sell everything they own before an attorney will be appointed for them.

Nevermind that in most cases the bond money was put up by family members or friends and not by the actual defendant. In Harris County, if you're not wearing an orange jumpsuit when you ask for an appointed attorney you have a very hard road to hoe.

The judges know there are plenty of attorneys who will take cases on the cheap and plead their clients out on the first or second setting without ever investigating the case. The judges seem to have no idea what it actually costs to hire an attorney in Houston who's actually going to work on your case. The result is a whole lot of folks with convictions on their records who may have stood a good chance of having their cases dismissed or the charges reduced after a little bit of legwork on the part of their attorneys.

But, hey, it clears another case of the docket and that's a good thing. Right?

In McLennan County (that would be Waco for those of y'all not familiar with the lay of the land), they have taken the denial of counsel one step further. If you want to have an attorney appointed to handle your case you have to fill out an application. That application will then be investigated by a sheriff's deputy who's going to come to your house and take a look around to see if you're really as indigent as you say you are.

Now, just a word of warning here. There are those of us who practice criminal law on a regular basis who would be very hard pressed to come up with a retainer fee on a felony case. I know plenty of attorneys who do quite well who would be considered indigent if they were charged with a felony in federal court.

What's really going on up in Waco is the courts are trying to make it harder and harder for those accused of serious crimes to defend themselves. Just because someone was able to borrow money from their parents or their grandparents to post bond doesn't mean they have the money to pay an attorney. Parents and grandparents will often do whatever they can to help out their wayward children and grandchildren - but you can't expect them to pick up all the bills.

In sending out a sheriff's deputy to investigate those seeking appointed counsel, the courts are doing their best to intimidate those who are able to post bond not to ask the county to pick up the tab for their lawyer. To make matters worse, officials like to brag about arresting folks on felony charges of falsifying government documents when they make a questionable statement on their application.

As I said yesterday, if the county is concerned about the amount of money they're spending on appointing lawyers for indigent defendants, then maybe law enforcement officials and prosecutors should think twice before arresting folks or filing charges. A little discretion here and there can go a long way to reducing the county's legal bills.

Now I don't think I'm going out on a limb here but I would imagine that the number of black defendants asking for appointed counsel is probably disproportionate the African-American population in McLennan County which means this investigation program is just another tool for the state to discriminate against blacks.

The worst thing about the article is the way in which the writer is all rah-rah with the police and court officials. Nowhere in his piece does he even raise the question of whether this program serves to deny folks their constitutional right to counsel when the state is attempting to take away their liberty. I guess being a sycophant is much easier than being an actual reporter.

For those of y'all who wish to let the reporter know what a great job she did regurgitating the Sheriff's PR release, her name is Stephanie Butts and her e-mail address is Here's her LinkedIn profile.

Wednesday, June 4, 2014

Empty threats

On Monday while I was sitting in the 174th District Court in Harris County a colleague and I were discussing some legal matters involving the case I was set for trial in. We also knew the case wasn't going on Monday so we were sitting around waiting for a new trial date.

Then I heard it.

Judge Ruben Guerrero, my buddy Mark Bennett's most favoritest judge, was admonishing a defendant who had come to court without an attorney. He told the defendant that if he didn't show up to court on the next setting with an attorney that he would throw him in jail.

Really? On what basis, Judge Guerrero?

A criminal defendant has a constitutional right to an attorney - if he so chooses. If he can't afford to hire one he may ask the court to appoint one for him (and there will be more about this tomorrow). But nowhere does it say that a criminal defendant must have an attorney.

I can guarantee it wasn't one of the man's bond conditions that he hire an attorney. The judge wasn't threatening to hold him in contempt - and that wouldn't even stick because no matter how many times you tell someone to come back to court with an attorney, if they can't afford to hire someone and if the court won't appoint them an attorney, they ain't coming back with one.

Now I will agree that the defendant in our little incident would be much better off with an attorney than without. But if he makes the choice not to hire anyone, then that's his choice and there's nothing the court can do about it.

If Judge Guerrero is so damn concerned about the man not having an attorney then he should just go and appoint someone to represent the defendant. That would solve everyone's problems. Well except for the bean counters who keep tabs on how much each court spends on appointed counsel and "encourages" the judges to help the county save a little scratch here and there.

There's no place on the bench for bully tactics like those used by Judge Guerrero. And there's no place for bullies on the bench.

Tuesday, June 3, 2014

Hear my tiny violin

The Michael Morton Act was passed in response to the wrongful conviction of Michael Morton. Mr. Morton, as has been noted here before, sat in prison for 25 years until his conviction was overturned. He was convicted in large part to prosecutorial misconduct.

Of course Mr. Morton wasn't the first person in Texas who sat in prison for decades as the result of a miscarriage of justice. He became the poster boy for wrongful convictions in large measure because he was white, he was from the suburbs and he was in a management position at the time of his arrest for murdering his wife.

The Michael Morton Act requires prosecutors to turn over all exculpatory evidence to the defense whenever it becomes available. It's the first time that Texas has put teeth into the Supreme Court's proclamation in Brady v. Maryland.

Civil litigation in Texas has long been governed by the Texas Rules of Civil Procedure that mandate complete discovery with the view that if all the facts are made known to all sides, there is a better chance the parties can come to an understanding without the need for trial.

In criminal cases, on the other hand, the defense was long saddled with the burden of not having access to the state's evidence. Forget about all that presumption of innocence crap and that garbage about proof beyond a reasonable doubt. Criminal trial work in most of the state was a glorious game of hide the sausage. Unlike the civil side of the ledger - in which folks were just arguing about money - the state was allowed a monopoly on the evidence.

We didn't allow trial by ambush in the civil courts but it was open season on defendants in the criminal courts.

Now that the state legislature has told prosecutors around the state evidence must be disclosed to the defense, district attorneys around the state have been squawking about how much it will cost the government to provide material to the defense. I, for one, don't give a flying fuck whether district attorneys around the state are wringing their hands about the cost of producing material. The government is the party that's trying to restrict the liberty of its citizenry.

And if we're interested in protecting the due process rights of those accused of criminal acts, then full disclosure on the part of the state is the only way to go. Full disclosure may very well be more expensive that not disclosing, but it can also lead to defense attorneys recommending that their clients enter into plea agreements based on the available evidence. Full disclosure will also reduce the number of appeals and writs based on prosecutorial misconduct. And I think we can all agree that's not a bad thing.

If the cost of producing material is higher than a district attorney thinks he or she can justify then maybe local prosecutors need to think twice about the cases they are filing. Maybe the cost of complying with the Michael Morton Act should be a factor to be considered in whether or not to accept the filing of charges in any given case.

Monday, June 2, 2014

Yesterday would have been a great day for rain

Spent the whole day yesterday cooped up at the office preparing for trial.

After a week of pretty solid rain yesterday was the day that it was sunny and hot all day.

Oh, the cruel ironies of life.