Wednesday, December 24, 2014

Trivializing racial injustice

Earlier this month in South Carolina, George Stinney's name was finally cleared. Mr. Stinney was fourteen years old when he was strapped into an electric chair and killed for a crime he didn't commit.

Mr. Stinney was charged with killing two little white girls in Alcolu, South Carolina in 1944. In the span of 83 days he was charged, tried and convicted. His appointed counsel, Charles Plowde, did everything he could to facilitate the legal lynching. Mr. Plowde failed to call Mr. Stinney's sister, an alibi witness, to the stand.

After a two-day hearing, Judge Carmen Mullen said that Mr. Stinney's case was a "truly unfortunate episode in our history."

No, Judge Mullen, a child dropping a fly ball is an unfortunate episode. A skinned knee from falling off a bike is an unfortunate episode. Spilling food on your best clothes is an unfortunate episode.

Murdering a fourteen year old child who had a confession beaten out of him is far more than an "unfortunate episode." Calling it such does nothing but cheapen the significance of what happened in the summer of 1944. What happened to Mr. Stinney is but another example of the ways in which our criminal (in)justice system has been used as a tool of social control and oppression.

A child was murdered at the hands of the state and no one was ever called to account for their actions. A jury of twelve white men considered what evidence was put before them and decided that the government had proven its case beyond all reasonable doubt. And once again we are confronted with the fact that our courts don't serve as a crucible of truth - they serve merely as a legal justification for the continued oppression of significant portions of our population.

Judge Mullen's decision does nothing to heal the damage caused to Mr. Stinney's family and friends. They knew he was innocent all along. It does nothing to change the facts. It also does nothing to erase the indelible image of a state that was so intent to enforcing social order that it would strap a teenager into an electric chair and burn him from the inside out.

And if you are under the illusion that there has been much change over the last 70 years, take a look at the population of most of our jails and prisons. Take a look at the disparity in drug sentencing. Take a look at the disparity in death sentences handed out. Take a look at the number of blacks and Latinos who languish in jail for weeks and months (and years) waiting for their criminal cases to be resolved because they can't afford to post bail.

Our criminal (in)justice system is still used as a tool of social control. The old order is desperately trying to hold onto to power and our courts are their last best tool.

Thursday, December 18, 2014

Killing the frog one degree at a time

The other day I was leaving the Montgomery County Courthouse up in Conroe after court and noticed a state trooper behind me. As I turned onto the main drag the trooper flipped on his lights. I pulled over into a restaurant parking lot wondering why he pulled me over.

Soon I had my answer.

It turns out that the main bulb in the right taillight had burned out. I asked him if the center light was working. He said it was. He took my license and insurance and I dug through the pocket on the driver's side door for a spare bulb.

While I changed the bulb he printed out a warning and went on about his way.

I did appreciate him telling me my taillight was out - since equipment violations are an oft-used excuse to stop suspected drunk drivers. However, I was also a bit irritated since there was no equipment violation in my case. In Texas you are required to have two working taillights. Since all cars come equipped with three (one on each side and one in the middle), one can be malfunctioning and you aren't breaking the law. In other words, he had no legitimate reason to pull me over.

As I drove away my mind kept wandering back to the recent US Supreme Court case in which the Supremes upended precedent and decided that a traffic stop based on the officer's mistake of law is valid. In Heine v. North Carolina, No. 13-604 (2014), Mr. Heien was driving down the street when a law enforcement officer, Sgt. Matt Darisse of the Surrey County Sheriff's Office, stopped his car because he had a broken brake light. Of course Mr. Heien gave his consent when Sgt. Darisse asked to search the car.

Sgt. Darisse thought that Mr. Heien (who was laying down in the backseat) and Maynor Vasquez (the driver) were acting a bit suspicious so he asked to search the car after handing Mr. Vasquez a warning for the brake light. Well you don't have to be a genius to know what happened next. The search turned up a bag of cocaine. Both men were arrested.

At trial, Mr. Heien argued that the drugs should be suppressed because there was no legal basis for the traffic stop. It is (or, at least, was) well-established that a stop based on an officer's mistake of law was not reasonable, and was, therefore, illegal. Surprisingly enough the trial court didn't see it that way because, by golly, there was cocaine in the car and we must keep that shit off the streets.

On appeal the conviction was reversed because it wasn't illegal to drive a car in North Carolina with only one functioning brake light. The State Supreme Court then reversed the appellate court on the grounds that even though Sgt. Darisse was ignorant of the law, the stop was reasonable.

In an 8-1 decision, based more on looking at the outcome rather than on the process, the US Supreme Court held that a stop (or detention) based on an officer's mistake of law was, nonetheless, reasonable. So, even though we've been told for years that ignorance of the law is no defense against a criminal charge, it is, apparently, an excuse to detain someone illegally.

This decision has turned the Fourth Amendment on its side and is yet another example of how our rights are slowly being taken away from us without anyone noticing. We are the frog in the pot of water that doesn't even realize the temperature is being turned up until it's too late.

Wednesday, December 17, 2014

On torture, war crimes and hypocrisy

So Democrats in Congress are up in arms about revelations that our government tortured inmates as part of the War on Everything Terror. It's not like this was new information. We've known about it for years. Books have been published based on government documents. Those senators and representatives on the various intelligence committees and oversight committees knew all about it.

But now that the Senate Intelligence Committee has released a summary of its findings, we must all show a renewed sense of indignation. I'm sure there are a few poor souls out there who had no idea this kind of thing must be going on and who are relying on Fox News to shape their opinions and give them some talking points to defend illegal behavior.

Sen. Diane Feinstein (D-Cal), among others, has railed at the CIA and the Bush Administration for implementing the program. But, where is that same indignation at the innocent bystanders killed by unmanned US drone attacks in the Middle East? Where is that same indignation when a Hellfire missile tears apart the bodies of women and children out in the fields?

For all of her pontificating about the evils of the torture program (and don't misunderstand my point, those who carried out the program are all guilty of war crimes and should be held to account for their actions), Ms. Feinstein has been a champion of killing innocent men, women and children in illegal missile attacks in foreign countries.

And where has President Obama been through this? He stood in front of a microphone and said we needed to look forward instead of placing blame for past sins. Of course this is the standard line uttered by all presidents when confronted with the illegalities of the prior administration. His pledge to look forward only serves to protect those who have committed illegal acts in his administration - for if he isn't looking to prosecute those who did bad before him, whoever next occupies the White House won't throw the book at members of the Obama administration.

And that's how we undermine the idea that our nation operates under the rule of law.

Saturday, December 6, 2014

The end of the season is nigh

Today the college football regular season comes to a close.

The end of the season will also bring us a brand new playoff format to determine football's national champion. But is there any need for a playoff?

For most of the 20th century, college football was regional sport. The rare intersectional game between college football powers was a special treat. Since there was no centralized authority in charge of the game, schools made up their own schedules and no one worried about winning a mythical national title. The goal was always to beat your rival, win your conference and hope you get invited to a bowl game.

Sportswriters were the only folks who followed more than just a local team and they banded together to vote for a national champion. This system (later amended with a coach's poll) worked until 1984 when Brigham Young University (BYU) ran the table and beat a mediocre Michigan team in a pre-New Year's Day bowl game. BYU was named national champion, much to the chagrin of the football powers. Something had to be done to prevent that from ever happening again.

The result was something called the Bowl Alliance in which four major bowls worked out a plan to match the best teams against each other in bowl games regardless of which conference they were from. That system was later replaced by the Bowl Championship Series which set about to match the top two ranked teams first in a bowl game and then in a stand alone championship game.

After years of questionable decisions regarding who got to play for the title (and threats of an anti-trust lawsuit from the non-football factory schools), the BCS was scrapped and replaced by a four-team playoff which debuts this season.

The "clamor" for a playoff came mostly from the networks who broadcast college football games. Since the playoff would involve but four out of 120 teams, most fans had nothing at stake and went about their lives as if nothing happened.

But the system was flawed from the beginning. The five conferences containing the biggest schools formed an alliance and decided to pick four teams to challenge for the championship. Hmm. Five conferences. Four slots. The math didn't add up. If the problem with the polls and the BCS was that the championship wasn't being decided on the field. But, by devising a system that leaves out one conference champion, the decision who plays for the title is being made in a boardroom, not on the field.

From the opening kickoff this season commentators kept saying the Big 12 would be at a disadvantage because the conference didn't have a "true" championship game. It's true there is no conference championship game, but that's because unlike the other four major conferences, every Big 12 team plays every other team during the course of the season. Therefore there was no need for a championship game - in the event two teams ended the season with the same record, the team who won the game between them would be the champion.

Earlier this season, in Waco, Texas, Baylor came back from three touchdowns down in the last ten minutes of the game to beat TCU on a last second field goal. In the event that both Baylor and TCU win today, Baylor would win the conference because they beat the Frogs earlier this season. In fact the conference ran commercials all season long bragging about ten teams, nine games, one "true champion."

That was until the possibility of both Baylor and TCU advancing to the playoff arose. Now the conference has rolled over on cue when the money was waved under its nose. Should both the Bears and Frogs win today, they will be declared co-champions. So much for deciding it on the field.

For the last few weeks a playoff selection committee has been releasing a poll ranking their top 25 teams. Sports talk radio and sports talking heads have been arguing the merits of the top four teams ever since.

But the poll is an idiotic idea. If the job of the committee is to pick the top four teams at the end of the season, the in-season poll serves no purpose other than fueling debate on radio and television.

If we really want to determine a champion (and there is no good reason we have to do so), the only role of the selection committee should be to select the best team from outside the so-called Power Five conferences and then seed the six teams. The committee doesn't need to pick the teams that are participating from the major conferences - just take the champions. If you aren't the best team in your conference, you can't be the best team in the country. Period.

For those bloviators like Colin Cowherd who says that head-to-head doesn't matter (he ranks TCU above Baylor), what would he do if the top-seeded team lost on a fluke last second play to an inferior team in the first round? Would he still vote for the top seed for champion because they passed the "eye ball" test? If you want a single elimination playoff then the conference championship games are the de facto first round. So there.

On a related note, today we will find out whether the safety of a player is more important that winning a football game. Baylor quarterback Bryce Petty suffered a "mild" concussion (sorry, a concussion is a concussion is a concussion). He was taken out of the game - though he said he would be back on the field today against Kansas State.

The medical evidence is overwhelming that once a person suffers a concussion they are more susceptible for future concussions. While Mr. Petty may want to play today, the coaching and medical staff at Baylor should have enough regard for his safety to keep him off the field. I would love to see Baylor win, but if that win comes at the expense of Mr. Petty's health, it is a hollow victory. The coaches and doctors are adults and should be looking out for the health of their charges.

There was a day when Art Briles sat down at the table with Mr. Petty's parents and promised he would take care of their son. It's time to see if that promise was sincere.

Friday, December 5, 2014

Talking heads are missing the point

Daniel Pantaleo killed Eric Garner by putting him in a choke hold on a Staten Island sidewalk. But Mr. Pantaleo faced no legal sanction for his act because he wore a badge.

In yet another example of how prosecutors manipulate the grand jury process, a New York City grand jury followed the lead of District Attorney Daniel Donovan and returned a no bill against Mr. Pantaleo.

According to the DA's Office, the grand jurors deliberated for about two months, interviewed 50 witnesses and viewed four videos. And, at the end of the presentation, I'm pretty certain the prosecutor said something along the lines of "do what y'all think is right." That's the prompt to return a no bill.

In the aftermath of the DA's decision not to pursue an indictment, talking heads have been calling for increased training for police officers. They have called for an end to the use of choke holds. They have talked about working to change the image the police department has in minority communities.

But all of these suggestions miss the larger point. Mr. Garner was murdered because he was selling single cigarettes on the sidewalk. The very fact that a police officer would take a man to the ground and choke him to death for selling cigarettes on the street isn't a problem with training.

Far from it, in fact.

The Garner case is yet another episode that illustrates the simple fact that the police are but tools of social control for the ruling class. Until we come to understand this, the killings of unarmed black and brown men will continue.

Thursday, December 4, 2014

Update: 5th Circuit halts scheduled execution

Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. 
- Judge Tom Price, Texas Court of Criminal Appeals; Ex parte Panetti (No. WR-37,145-04)
Yesterday, just hours before he was scheduled to be murdered at the hands of the State of Texas, the Fifth Circuit Court of Appeals halted Scott Panetti's execution in order to review the legal claims made by his attorneys.

Last week the Texas Court of Criminal Appeals denied Mr. Panetti's writ seeking to halt the scheduled execution. Judge Tom Price, who is retiring from the bench at the end of this term, wrote a dissenting opinion in which he questioned the value of the death penalty. He said it served no penal purpose. He also expressed his reservations on the death penalty in light of the number of exonerations that have taken place over the past few years.

But Judge Price is a little bit late to the dinner table. If his concerns are enough to motivate him to question the legitimacy of the death penalty at the end of his time on the bench, where were those concerns when Mr. Panetti's case came before the Court on direct appeal and on prior writ applications? Where were those concerns when other inmate's lives were on the line?

The one question I can't seem to get out of my head is why on earth the trial judge would allow a diagnosed schizophrenic to fire his appointed counsel and proceed to trial pro se. Even if the initial decision could be justified, once it became apparent that Mr. Panetti hadn't the slightest clue as to what was going on, counsel should have been appointed. We're talking about a man's life here. This isn't about moving a docket along.

If we are going to continue to try to take away people's lives in the courtroom, then we damn well better be sure every procedure is followed and every protective measure is taken with regard to the accused. Anything less just shows us to be a bunch of ignorant rednecks holding a noose in the courtyard square.

Tuesday, December 2, 2014

Execution Watch: 12/3/2014

"[T]his has been like a slow-moving train wreck since 1995."  -- Kathryn Kase, attorney for Scott Panetti
On Wednesday night, the State of Texas will kill again...

SCOTT PANETTI. Convicted in the September 1992 shooting deaths of his in-laws inside their Fredericksburg home, Mr. Panetti told police it was his alter ego, Sarge, who committed the slayings. Mr. Panetti's previous execution date was put off by the Supreme Court, though the justices refused last month to hear his latest appeal, clearing the way for a new execution date to be set. He was diagnosed as schizophrenic and hospitalized multiple times in the 10 years leading up to the slayings. Mr. Panetti was allowed to represent himself at trial. He wore a purple cowboy outfit and called witnesses including John F. Kennedy and Jesus Christ. Mental health professionals who have evaluated Mr. Panetti say he believes the State of Texas wishes to kill him to prevent him from preaching the gospel.

For more information see:

"Can Ron Paul and conservative evangelicals save a Texas death row inmate?" Mother Jones (11/26/14)

"Texas execution of a severely mentally ill man would be an outrage," Los Angeles Times (11/29/14)

"Lawyers try to save 'delusional' death row murderer, 56, who tried to subpoena Jesus Christ and JFK at his trial, from Wednesday execution," Daily Mail (11/29/14)

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