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.

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.

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.

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.

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.

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.

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)

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, we'll broadcast live:

Wednesday, December 3, 2014, 6-7 PM Central Time

KPFT-FM Houston 90.1 Online...

http://executionwatch.org > Listen

Something to think about while we gorge ourselves

In 1975, in Cleveland, Ohio, Harold Franks, a money-order salesman, was murdered in a robbery. Ronny Bridgeman, Wiley Bridgeman and Ricky Jackson were all arrested, charged with capital murder, tried and convicted based on the eyewitness testimony of a 12-year-old named Eddie Vernon.

All three men were sentenced to die in Ohio's electric chair. Mr. Jackson received a reprieve due a paperwork error while the Bridgeman brothers were still on death row when Ohio declared the death penalty unconstitutional in 1978.

For almost four decades, Mr. Jackson proclaimed his innocence. And, for almost four decades, few listened and even fewer cared.

In 2011, Mr. Vernon recanted his testimony to his pastor. He said his testimony was coerced by the police who threatened to arrest his parents if he didn't testify the way the police told him. He told the pastor he was on a school bus at that time of the robbery.

Lawyers with the Ohio Innocence Project filed a motion for new trial in March of this year.

As a result of Mr. Vernon's recantation, and the prosecutor's admission that without an eyewitness the case against Mr. Jackson cannot be prosecuted, Cuyahoga County Judge Richard McMonagle, dismissed the charges against Mr. Jackson and ordered him freed from prison.

While Mr. Jackson is no doubt thankful that his 39 year ordeal is over, this exoneration leaves us with more troubling questions.

Once again we have a man sent to prison for decades because a jury thought the government had proven its case beyond a reasonable doubt - when they were wrong. The conviction was based upon the eyewitness testimony of a child. There was no physical evidence connecting any of the men to the murder. Nothing but the word of a child who was coerced by the police.

This is what happens when we allow the government to lower its burden of proof. If you've ever picked a jury in a criminal case you've heard the prosecutor tell the panel what he or she thinks beyond a reasonable doubt isn't. If you're in Harris County you've probably seen the prosecutor put on the PowerPoint display with the puzzle of the gun with a few missing pieces. If you've ever tried a criminal case you've heard the prosecutor tell the jury to "add it up" (or something similar) when discussing the evidence (or lack thereof).

Every new exoneration points out the deficits in our criminal (in)justice system. Every new exoneration points to the fallacy of the infallibility of eyewitness testimony. And every new exoneration points out how low the state's burden of proof in criminal cases has been allowed to fall.

Mr. Jackson's case isn't the triumph of our system of (in)justice. It's an indictment of it. It should give us all pause whenever we step into the courtroom. It should give us all pause when we sit down to decide whether the state has met its burden of proof.

Ricky Jackson lost 39 years of his life for a crime he didn't commit. That's 39 years that can never be replaced. There is no amount of compensation that can make up for the time that was stolen from him. Meanwhile, those who conspired to convict him walk free.

Some system, huh?

Passing the buck, Missouri-style

Enough.

The Grand Jury didn't choose not to indict Darren Wilson. The St. Louis County District Attorney made that decision. For the uninitiated, let's take a look at how the grand jury system works.

The first thing to remember is that the system is stacked in the prosecutor's favor. There is no voir dire when a grand jury is selected. Due to time concerns, most of the folks who serve on grand juries are retired or hold jobs that allow them to take chunks of time off without reprisal. In many jurisdictions, grand jury commissioners are appointed and they select the grand jury - little need to worry about the grand jury reflecting the diversity of the population in that scenario, however.

Grand juries originally were envisioned to screen cases so that citizens accused of a crime wouldn't face public shame if there was insufficient evidence to go forward. They still serve a screen purpose today - and that's just what St. Louis County DA Robert McCulloch used the grand jury for in this case.

Prosecutors hate bad publicity. But what they really hate is having to make a controversial decision that's going to piss off folks that might vote for them. In a case in which folks are going to be angered one way or the other, the DA looks for someone else to take the heat. And that "someone else" is the grand jury.

The prosecutor is the only person who puts forward evidence before the grand jury. Yes, the (potential) defendant might testify, but only under certain conditions would an attorney take that tack. The prosecutor calls the witnesses, submits the evidence and pushes the grand jury down the path he wants them to take.

Then, once the grand jury announces its decision, the District Attorney can tell everyone within earshot that it was the grand jury's decision to proceed or not. Of course the general public never hears the prosecutor urge the grand jury to indict ("just think of the message it would send to the community if you didn't") or "do what you think is right."

The entire process in the Ferguson case was a circus from the beginning. Most grand jury presentments last but a few minutes and consist of little more than the prosecutor summarizing an offense report. Whatever evidence is submitted is never disclosed - unless the defense attorney can convince a judge that someone is playing fast and loose with the rules.

Mr. McCulloch dragged out this process and did everything in his power to color the facts and bury the case. The case took almost a month to present. He called 60 witnesses. He released all of the information presented to the grand jury. His press conference consisted of him blaming Michael Brown and the media for everything.

He's the one who decided to announce the decision at 8:00 p.m. He's the one who decided to give the people hours upon hours to stew. He's the one who decided to smear Michael Brown's name before the national media.

But we are to believe that any anger folks are feeling about the no-bill should be directed at twelve citizens who did as they were told?

Sending in the stormtroopers to quell dissent

Back on August 9 of this year, Ferguson (MO) police officer Darren Wilson shot and killed Michael Brown, an unarmed black teenager. The killing lit a powder keg of pent-up tensions in the St. Louis suburb. The world witnessed police paramilitary units patrolling the streets of Ferguson in riot gear and firing tear gas cannisters and rubber bullets into crowds.

Now, more than three months later, tensions are once again on the rise in Ferguson as everyone awaits the decision of a St. Louis County grand jury investigating the shooting. The local District Attorney refused to recuse himself and the governor resisted calls for a special prosecutor.

If our history is any guide, the grand jury will choose to no-bill the officer either because the DA made no effort to obtain an indictment or because Mr. Wilson wears a badge. Police officers just don't get indicted unless the evidence is undeniable as to what they did.

In anticipation of a no-bill, Missouri Governor Jay Nixon has declared a state of emergency in St. Louis County. The reason given is the need to preserve law and order and to protect people and property. Of course, if you stop to think about it, sending in the paramilitaries when they are the ones responsible for the unrest in the first place makes absolutely no sense. But that hasn't stopped Gov. Nixon.

Nope. You know the last thing Mr. Nixon and his band of wealthy white supporters want to see is a bunch of black people marching and carrying signs reminding folks that racism and oppression are still alive and well in the Show Me State. His declaration is but an attempt to intimidate people into not exercising their right to seek redress of their grievances. By upping the ante with a bunch of black-clad Stormtroopers carrying the latest gear obtained from the US Defense Department and military contractors, Gov. Nixon has assured us of a confrontation.

Mr. Nixon has done nothing since the night Mr. Brown was murdered to address the concerns of the citizens of Ferguson. He has nothing to address the concerns of African-Americans living elsewhere in the state. He has done nothing to address the issue of police brutality. He has done nothing to address concerns over the militarization of the police.

Police officers are supposed to be members of the community. Their job is to serve and protect those around them. But, when you put riot gear on an officer and give him a helmet and a visor, those he's standing across from become the enemy. It's no longer everyone working together, now it's us against them. These paramilitaries are the last line of defense for the Establishment against those who aren't wealthy and/or white.

Wearing a badge does not give one carte blanche to kill people. Police officers are not above the law, they are subject to the same laws that the rest of us are. Maybe one day we'll realize that.

The end of the road?

Six years ago today The Defense Rests made its first appearance in the blawgosphere. Since that first humble post on the need for PR bonds in Harris County - sadly enough it's an issue that still hasn't been resolved - a total of 2,272 posts have appeared on these pages. I would like to think that most of them were worth reading (though I know of a few that probably weren't).

I would like to think that even if you disagreed with my views that my writing made you think. I never set out to try to change anyone's mind. I believe that most of us are pretty set in our ways of thinking after awhile and change is difficult.

I do believe that some of our views evolve over time. Our attitudes toward race have changed greatly over the past 50 years. I think our attitudes toward same-sex marriage have also changed with the times. I know that our views of the death penalty are evolving and I do hope that one day in the near future we see the end of capital punishment in this country.

My life has also evolved. Since the first post appeared on August 5, 2008, I have moved offices twice. My practice is steadily growing and eating up more and more of my available time. I have cut down on the number of posts I write a week as a result of the increased demands on my time. As the days have gotten longer, it's gotten harder to sit down and write at night. Whether it's writer's block or exhaustion doesn't really matter.

And then there's the chaos in my personal life. Dealing, or trying to deal, with the reality of a broken marriage takes priority over this vanity project. I'd like to think I might have some insight as to how to make a marriage work or what causes one to fail - but I don't. I can't even point to the moment things began to go downhill. I just know that once the avalanche began there was no stopping it. I don't know what the future will hold in this regard.

For those reasons I am taking an indefinite break from writing. I hope to be back here again one day, but I make no promises. If I do return to the blawgosphere it will probably be on a more sporadic basis. The grind of writing day after day will wear you out after a while.

I'd like to thank everyone who stopped by over the past six years. Whether you left a a favorable comment or told me what an idiot I was, at least you cared enough to put it in writing. Thanks also to everyone who clicked on one of the opinion buttons at the bottom of each post. Thank you to everyone who sent me story ideas over the years. Thanks also to my fellow blawgers who helped me along with advice or criticism. Very special thank you's go our to Mark Bennett, Scott Greenfield, Jeff Gamso, Scott Henson, Jamison Koehler and Murray Newman.

As I depart I am reminded of a line in an old Billy Joel song - "Life is full of hellos and goodbyes / I'm afraid it's time for goodbye again."



If not goodbye, at least farewell for now.

-30-

Road songs

No deep insights today. Just a few of my favorite road songs...

Taking credit where credit wasn't due

Michael Phillips was arrested for the 1990 rape of a 16-year-old girl. Mr. Phillips, who maintained his innocence, entered into a plea agreement on the advice of his attorney after the white victim identified Mr. Phillips, a black man, in a photo line-up.

Mr. Phillips served 12 years in prison and then had to register as a sex offender after his release. As a result of not complying with the registration requirements he eventually went back to jail for another six months.

Earlier this year the DNA evidence in that rape case was tested - but not at Mr. Phillips' request. The kit was tested at the behest of the Dallas County DA's Office. The results of that test exonerated Mr. Phillips.

But why was the DA's Office testing a rape kit that had set on a shelf for more than two decades? Why were they testing a rape kit when the man convicted of the crime didn't request it?

Dallas County DA Craig Watkins would like you to believe that this was an incident in which his Conviction Integrity Unit was doing its job in making certain that no one was convicted of a crime they didn't commit. But that's not the reason the rape kit was tested.

You see Dallas County has a serious problem with its crime lab. Forensic work in Dallas County is performed by the Southwest Institute of Forensic Sciences. And SWIFS doesn't have a particularly good track record when it comes to DNA testing.

I have linked to a copy of an audit performed by the US Department of Justice in 2009 that paints a very disturbing picture of the crime lab.

Here is an excerpt from the report on the lab's compliance with CODIS protocols in the DNA section:

In our sample of 103 profiles, 2 profiles were inaccurate and 18 profiles were deleted from NDIS because they were unallowable, incomplete, or missing, and because of insufficient record retention, 15 of the Laboratory's files did not have sufficient evidence to determine if the profiles were obtained from a crime scene. The Laboratory deleted these 35 profiles from NDIS. The remaining 68 profiles we reviewed were complete, accurate, and allowable for inclusion in NDIS. However, 58 of the 103 profiles in our sample are not searchable at NDIS because they contain 9 or less core loci rather than the minimum of 10 loci required to be searchable at NDIS.4 Prior to January 2009, the Laboratory only attempted the analysis of 13 loci on forensic samples that did not have a standard for comparison, but in January 2009, the Laboratory began attempting the analysis of 13 core loci. However, 11 (30 percent) of the 37 samples analyzed between January 1, 2009, and May 13, 2009, contained less than 13 loci. The CODlS Administrator explained that it could be a matter of timing if the profile was run prior to January 1, 2009, or 13 loci were not run either because a suspect profile had already been developed for comparison or some of the sample was preserved for later use.

If this is the best that SWIFS can do, then Dallas County is in serious trouble. This, unfortunately, seems to be par for the course for crime labs run by and for law enforcement. These labs aren't meant to be independent. They are meant to generate evidence that the state can use against those accused of criminal acts. This mission encourages sloppiness and it encourages analysts to err on the side of law enforcement when making close calls.

The system is broken and it can't be fixed.

  Audit Compliance of CODIS at SWIFS December 2009 - Copy

Vultures holding Argentina hostage

Back in 2001 Argentina defaulted on its debt obligations due to a cratering economy. Over the intervening years the government reached agreements with most creditors on reducing the amount owed on the outstanding bonds. Some creditors accepted discounts of up to 70% on their holdings.

But something else happened in the wake of Argentina's default. So-called vulture capitalists swooped in and bought government bonds at highly discounted prices - for pennies on the dollar. These vultures didn't like the terms of Argentina's agreements with other creditors. Despite the fact they bought the bonds at a steep discount, despite the fact they bought the bonds after Argentina had defaulted on them, despite the fact the effective interest rates on the bonds were astronomical, the vultures wanted to receive face value for their "investment."

They filed suit in New York to stop Argentina from paying off the creditors who accepted discounts at the expense of the creditors who refused to enter into the agreement. The court, not surprisingly, sided with the American-based hedge funds who brought the suit. Argentina appealed up to the US Supreme Court which upheld the lower courts' rulings and put a halt to Argentina's plan to pay off the creditors who accepted the deal.

Now Argentina and its creditors are in negotiations to avoid another default. The original agreement called for Argentina to make a payment to creditors on June 30, 2014. The ongoing litigation prevented those payments from being made. Now, 30 days later, Argentina is on the brink of a second default if an agreement isn't reached by midnight.

I'm not going to beat around the bush on this one. The US courts got it wrong. Investors bought Argentina's bonds because they carried a higher interest rate than comparable bonds in other countries. They carried a higher interest rate because there was a greater chance of default on those bond offerings than in the United States or Western Europe.

When the Argentine economy crashed and country defaulted bondholders knew they weren't getting face value on their bonds. That is the price one pays for receiving a higher interest rate. Institutional investors knew their best bet was to negotiate a discount on their holdings since it's better to get something back rather than nothing. These large investors knew what they were getting themselves into. Wealthy individual investors had access to information and they were well suited to weigh the promised return versus the risk of default.

But the vulture capitalists didn't think the same rules should apply to them. These hedge funds didn't hold Argentine bonds at the time of the original default. They bought them later, at a very steep discount. And why were the bonds sold at such a discount? Could it possibly be because no one expected Argentina to pay the bond's face value at maturity? The vulture capitalists entered into their transactions well aware that they weren't going to get face value for their bonds.

But now a group of greedy capitalists are attempting to hold an entire nation hostage so that they can fatten their wallets.The Era of the Ugly American is live and well.

See also:

"Argentina blames US mediator for debt default," BBC News (July 31, 2014)

Just looking for an excuse to affirm

In 2012, Milton Kay was driving in Orange, Texas without wearing his seatbelt and without having a current registration sticker on his windshield. He was pulled over by Officer McDonald of the Orange Police Department.

While conducting the stop, Officer McDonald smelled the odor of an alcoholic beverage on Mr. Kay's breath and noticed that Mr. Kay was slurring his words.

So, of course, what started out as a routine traffic stop turned into a full-blown DWI investigation -- even without any evidence of impairment while driving. As (bad) luck would have it, Mr. Kay had two prior DWI convictions - one in 1989 and one in 2000 - that turned a routine traffic stop into a felony DWI arrest.

Section 724.012 of the Texas Transportation Code states that if a person with two or more prior DWI convictions is arrested for a DWI and refuses to provide a breath or blood sample, a police officer may require the motorist to submit to a blood draw. In case you didn't know it, when you walked away from the DPS office with your driver's license you told the state that it was okay from them to jab a needle in your arm if you declined to cooperate in a DWI investigation.

And you thought that Fourth Amendment thingie applied, didn't you?

Well, of course it didn't apply in Mr. Kay's case because his alcohol concentration was .024 - three times the legal limit.

At trial Mr. Kay argued that the blood draw was illegal because he didn't agree to it and because there was no showing by the state of exigent circumstances per McNeely. The trial court wasn't inclined to ignore a high blood test result so Mr. Kay's objections to the admissibility of the blood test results were denied. Mr. Kay was subsequently sentenced to 19 years in prison which, if I may editorialize, was absurd given the circumstances surrounding the arrest.

The 1st Court of Affirms Appeals in Houston then got there shot at the case. In Kay v. State, No. 01-13-00595-CR (Tex.App.--Houston [1st] 2014) Justice Rebecca Huddle pointed out that Mr. Kay never specifically mentioned that the blood draw violated his Fourth Amendment protection against unreasonable search and seizure, the Court affirmed the conviction and told Mr. Kay to enjoy his time in prison.

Here is the relevant portion from Mr. Kay's motion to suppress the blood test result...

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused. 

Let's see, Mr. Kay mentioned that the blood draw violated the US Constitution. He mentioned that it violated the Texas Constitution. He mentioned that a warrantless blood draw falls under the purview of the Fourth Amendment. He even cited the Texas Statutory Exclusionary Rule.

Yet, to the First Court of Appeals, that wasn't enough to invoke the protections of the Fourth Amendment and the McNeely case.

Just the other day I praised the legal reasoning of Marc Brown in suppressing some pretty damning evidence because the police violated the accused's Fourth Amendment rights. I wrote that Justice Brown made his decision not on the evidence that was in question, but, instead, on the way in which the evidence was gathered.

Well so much for that type of legal reasoning from Justice Huddle. Instead of looking at whether the evidence was obtained legally, she looked for any reason she could find to justify the trial court's decision to deny Mr. Kay's motion to suppress. What she found makes a mockery of her title of "Justice."

Where it's worse to smoke a joint than beat up your wife

Last week Baltimore Ravens running back Ray Rice was suspended for two games without pay for an incident in which he knocked his (now) wife out and dragged her out of an elevator unconscious. He was indicted by an Atlantic County (NJ) grand jury. Mr. Rice was then accepted into a pretrial intervention program in which after he completes a year on probation, the case will be dismissed. 

Justin Blackmon, a receiver for the Jacksonville Jaguars, is currently on an indefinite suspension for his third violation of the NFL's substance abuse policy. The first violation did not result in a suspension. The second violation earned Mr. Blackmon a four-game suspension.

Josh Gordon, a receiver for the woeful Cleveland Browns, was hit with a one-year suspension after he was arrested for driving while intoxicated after already having failed at least one random drug test. Mr. Gordon was stopped for speeding and, after being arrested on suspicion of DWI, blew a .09 on a breath test.

And I guess I would be remiss if I didn't remind y'all that Ben Roethlisberger, the quarterback for the Pittsburgh Steelers, was suspended for six games back in 2010 after he was arrested, but not charged with sexually assaulting a 20-year-old college student in Georgia.

NFL Commissioner Roger Goodell and his lackeys have been making the sports-yak circuit trying to justify a policy that makes little or no sense. One NFL official, Adolpho Birch, appeared on ESPN Radio Monday morning and made a complete ass out of himself trying to justify Mr. Rice's two-game suspension.

What does it say about the NFL - and our society - that the penalty for smoking marijuana is more severe than the penalty for knocking your girlfriend unconscious? The fact that so many folks in authority still seem to buy into the propaganda film Reefer Madness so many years after it was made (and discredited) is one of those things that makes no sense.

And how can we even compare Mr. Gordon's misstep with what Mr. Rice did to his then-girlfriend in that elevator? 

If the point in the NFL's player conduct policy is to protect the corporate image of the league, why is Mr. Goodell more concerned about players smoking marijuana and driving while intoxicated? Shouldn't domestic assault be an area of more serious concern? It never ceases to amaze me how our puritanical views on pleasure and recreation lead us to such absurd results.

Now if you think that Mr. Blackmon and Mr. Gordon received the right punishment for their actions - I will respect that opinion. But, if their suspensions were justified, then Mr. Rice should be joining them on the outside looking in for the 2014 season.

Usurping the power of the jury deep in the Heart of Dixie

In 2010 Courtney Lockhart, a US Army veteran who served in Iraq, was convicted of the 2008 carjacking and murder of Auburn University student Lauren Burk. A jury, having heard testimony about his experience in Ramadi, Iraq - 64 members of his brigade were killed - unanimously recommended that the court sentence Mr. Lockhart to life in prison rather than death.

But Lee County Circuit Judge Jacob A. Walker III decided to disregard the jury's recommendation and he sentenced Mr. Lockhart to death in 2011.

Back in 2000, the US Supreme Court held that juries must make all decisions regarding sentencing in criminal cases - unless the defendant chose to go to the court for punishment. The Court was emphatic that this would apply in death penalty cases.

Today there are only three states in which judges are able to override jury-recommended sentences and in two of those states, Florida and Delaware, judges don't exercise that power. But in Alabama, judges still exercise their power to override jury-recommended sentences.

Mr. Lockhart took the issue up to Alabama's Court of Criminal Appeals where he lost. Now the issue is in front of the Alabama Supreme Court.

Per NPR...

In contrast, the practice of judicial override in Alabama is so widespread that it accounts for one-fifth of death row prisoners. Thirty such overrides took place in Alabama in the 1980s; there were 44 in the 1990s, and there have been 27 since 2000. The most recent statistics show more than 40 current death row inmates were sentenced by judicial override, contrary to the judgment of the jury. 

Part of what is at work in Alabama is political. The Equal Justice Initiative asserts that "the proportion of death sentences imposed by override often is elevated in election years." For instance, while judicial overrides accounted for 7 percent of death sentences in the nonelection year of 1997, in the election year of 2008, they accounted for 30 percent. And a number of elected judges have featured their death penalty records in campaign commercials.

The result of allowing one person to ignore the recommendation of the jury is that, in some years, there are more death sentences handed down in Alabama than in Texas.

Permitting a judge to ignore the recommendation of a jury is the equivalent of taking away a criminal defendant's right to have a jury decide his sentence. A jury is supposed to be the voice of the community and when the jury makes the decision to recommend life instead of death, that jury is voicing the opinion of the community.

Allowing one person to veto that decision means that the death penalty in Alabama is handed down in an arbitrary and capricious manner. It shouldn't be surprising to know that Mr. Lockhart is black and that Ms. Burk was white. But then I'm certain that played no factor in Judge Walker's decision.

I wonder how many times this issue arises when the defendant is black and the victim is white. I'm fairly certain that it's no coincidence.

I suspect that the Alabama Supreme Court will do its part and affirm the decision since, after all, the law says he can do it, and that this matter will find itself in front of the US Supreme Court at some point. That should put an end to the practice once and for all.

But how many others will have to suffer the same fate until someone does the right thing and take the power to decide life and death out of the judge's hand in Alabama? The right to a jury trial means nothing if the judge can usurp the jury's power to determine punishment in a death penalty case.

Another day, another botched execution

On Wednesday there was yet another botched execution. This time it was in Arizona. This time the victim of the state's callous disregard for human life was Joseph Wood.

At 1:52 p.m. local time on Wednesday, Mr. Wood was strapped to a gurney and an IV was inserted into his arm. Through the IV tube flowed a mixture of midazolam and hydromorphone. Arizona, like many other states, has been scrambling to find alternative means of killing inmates now that many drug manufacturers refuse to supply the drugs to prisons.

As the drugs took effect Mr. Wood's eyes closed. But then, less than ten minutes after the execution began, Mr. Wood began to gasp for air. Some observers claim he gasped hundreds of times over the next nearly two hours before he finally died.

The typical execution by lethal injection lasts ten minutes or so - not almost two hours. There can be no question that the recent spate of problems can be traced either to the drugs or procedure used.

Of course every news account of this latest botched execution has to include the fact that Mr. Wood was convicted of two murders. But his past sins are completely irrelevant to the proceeding at hand. Supposedly the death penalty is supposed to serve as a deterrent to others, not as revenge for the victims. As such, the crime that landed the condemned man on death row is meaningless.

There is no equivalence. Mr. Wood was arrested, tried and convicted for his crimes. His punishment was to be carried out by the state - not by the family of the victims. He was being executed because of his crime against the state.

Of course then we have idiots like E.J. Montini of the Arizona Republic who contend that the execution wasn't botched because Mr. Wood ended up dead. If you read his piece you can only come to the conclusion that Mr. Montini hasn't developed the ability to step back from a situation and apply logic to it.

Members of the victims' family told reporters that they weren't concerned about whether Mr. Wood suffered during the execution because of what he did back in 1992. But did the pain of the loss go away after the botched execution? Was the family made whole again? Did the victims of Mr. Wood's crimes come back to life?

No. The whole is still there. The pain will never go away. Watching one person suffer for the death of another doesn't solve anything.

The investigation of the execution will be carried out by the state. There will be no independent investigation. The state will keep as much as they can under wraps. That's the way the game works now.

The death house is not the place to be conducting science experiments and that's what we're seeing as state after state try new ways to kill inmates. No one knows if any of these methods are humane. No one knows whether these new drug cocktails cause insufferable pain. No one knows whether the drugs do what they are supposed to do. At what point do we say enough is enough?

The failure of mass incarceration

Think mass incarceration works? Just listen to this...

Sleeping is not necessarily operating

In every DWI case a defense attorney must assess two issues - first, was the client intoxicated and second, was the client operating a motor vehicle. Most trials involve the issue of intoxication as the motorist was stopped by a police officer after that officer had seen the motorist violate some provision of the transportation code.

During voir dire, prosecutors attempt to lower their standard of proof by convincing prospective jurors that being intoxicated is more akin to having a buzz than it is to being drunk.

Rare is the case that turns on whether or not the accused was operating a motor vehicle. We've all seen news accounts of the man arrested for driving a recliner (with a motor) down the street while drunk and of the man arrested for being drunk while riding his lawnmower down the road. There was even an unfortunate guy out in Austin was arrested for DWI because he was drunk while riding his horse down the street.

Then there's the instance in which someone is sleeping behind the wheel of a car with the engine on. Sometimes the car is in a parking lot or on the side of road. Sometimes the car is sitting at an intersection. Sometimes the transmission is engaged and the driver has his foot on the brake.

Chad Murray was sleeping in the front seat of his truck with the engine running and the transmission in park. He was parked in a private drive with the wheels on one side sitting on the shoulder - no part of his truck was on the actual road. There were no cans or bottles of alcohol in or near the truck but Mr. Murray was apparently intoxicated (though that was not an issue on appeal).

When questioned by police Mr. Murray did not admit to driving.

A Hill County jury was convinced that Mr. Murray had been operating his truck and they found him guilty of driving while intoxicated. Mr. Murray then appealed his conviction to the Amarillo Court of Appeals arguing that the evidence was insufficient to support the conviction, namely that there was no evidence that he was operating a motor vehicle.

In Murray v. State, No. 07-13-00356-CR (Tex.App.--Amarillo 2014), the Appeals Court found in favor of Mr. Murray, reversed his conviction and rendered a judgment of acquittal. The Court did agree that it was reasonable to infer that at some point Mr. Murray had been operating his truck - but the Court pointed out that there was no evidence that he was intoxicated when doing so.

Judge declares death penalty unconstitutional in California

Earnest Dewayne Jones was sentenced to death in California for raping and killing his girlfriend's mother in 1992. He is one of more than 900 inmates in California who have been sentenced to die since 1978. Over that time only 13 executions have taken place, none since 2006.

Last week U.S. District Judge Cormac Carney ruled in Mr. Jones' favor when he declared that California's use (or non-use) of the death penalty was unconstitutional. He found that carrying out so few executions and forcing inmates to sit on death row for decades didn't serve as a deterrent. In fact, it made the use of capital punishment arbitrary.

From NPR:

"No rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society," Carney wrote.

Judge Carney's decision marks the first time a judge has declared capital punishment unconstitutional due to the delays in carrying out executions. Of course death penalty supporters got their argument backwards. Kent Sheidegger of California's pro-death penalty Criminal Legal Defense Foundation found the delay in carrying out executions wasn't a violation of inmate's rights but a violation of victims' rights.

Maybe Mr. Sheidegger and the members of his group could point out to me where in the Constitution or the Bill of Rights there is any reference to the concept of victims' rights. You can find it in various state constitutions as state legislators never pass up an opportunity to pander to the right in order to appear tough on crime, but the concept has no legal basis.

Criminal activity is prosecuted by the state, not the victim. The concept is that a person who commits a criminal act has violated a social compact and should be punished by society for his or her actions. There is no room in such a scheme for the revenge - in fact, the entire point of having the state prosecute crimes is to take revenge out of the equation entirely.

Our constitutional protections for the accused are designed to ensure to protect the individual from the awesome power of the state - they are to apply regardless of the level of offense. Our jury selection systems are designed to prevent those directly affected by a crime from deciding the fate of the accused.

But then again, the death penalty has never been about anything more than revenge.

Perry pulls a 180 on immigration

Once upon a time Gov. Rick Perry had a sensible position on immigration. He knew, as did most Texans, that Texas has a unique relationship with Mexico and that it was the influx of immigrant labor that kept the cost of living lower in Texas than in other states.

Of course that raises the issue of whether or not immigrant labor was used by employers as a tool to keep down wages and deter union membership.

Immigrants who crossed the border without the permission of the US government took jobs that no one else wanted. They paid taxes (remember, there is no income tax in Texas) whenever they bought something or paid their rent (part of the rental income a landlord receives goes to pay property tax).

Gov. Goodhair even realized that efforts to raise tuition rates for the children of undocumented workers only served to discourage them from attending college because of the cost. He understood that making a college education more attainable benefited everyone in the state.

But then the Fair-Haired One decided he wanted to follow W to the White House. The national Republican Party was virulently opposed to immigration because the less white the country becomes, the less pull Republicans will have. They are fighting to preserve a vision of America that never really existed.

Now, fearful of pissing off the money lords of the GOP, Gov. Perry has flipped his views on immigration. Now he is opposed to any easing of restrictions. His latest move is to activate some 1,000 members of the Texas National Guard to patrol the border to prevent more children from Central America making it to Texas.

These children who are flooding detention centers in the Rio Grande Valley aren't criminals. They are coming here in search of a parent or they are being sent by their families to get them away from the violence and poverty of their home countries.

We don't need to militarize the border. We don't need to expedite hearings so we can deport children. What we need to do is sit down and figure out a rational immigration policy - one that takes reality into account. For far too long our policy consisted of allowing in anyone from a country whose government we disagreed with and slamming the door shut for immigrants from countries with friendly governments.

Many of these children are refugees and should be afforded the same protections as any other refugee from any other part of the world. We will be judged on the basis of how we treat the most vulnerable people in this country. Right now I don't think the verdict would be favorable.

A little side trip on the way to Georgetown

Yesterday was a big road trip day. I had to be out in Sealy in the morning and then in Georgetown (north of Austin) in the afternoon. So, after I dropped my youngest daughter off at her day camp I headed out I-10 toward Sealy.

It didn't take too long to hash out the outline of a possible deal for my client so I had a bit of time to kill. I could've headed up Highway 71 to Austin and found a place to eat before heading up I-35 for court or I could do something a bit more fun.

I chose the latter. I ended up taking the long way to Williamson County by heading all the way out to Luling, Texas for some barbecue.

For my money there are only two ways to serve barbecue. You either do it cafeteria style or you do it meat market style. Luling City Market, of course, serves it up meat market style. You walk in the front door and head straight to the back of the restaurant. Behind a door that asks you to keep it closed are two massive pits. Briskets, ribs and sausage links cover the grates. You buy your meat by the pound and it's served on a big piece of butcher paper with some white bread on the side. Those of y'all who don't eat barbecue religiously probably don't understand why white bread - which is garbage for anything else - is the perfect bread for barbecue.

Since we were in Central Texas the brisket was cooked Central Texas style and that means a rub that relied heavily on salt and pepper. Yummy.

I got a quarter-pound of brisket and one sausage link and headed out into the main dining area to find a table. I then had to go to the counter in the middle of the restaurant to get my beans and sweet tea.

The brisket was very moist with some healthy layers of fat. It had a good smoky flavor to it and, despite its moistness, didn't fall apart upon contact. If you look closely at the picture of the pits you will see a rack of ribs sitting in some sort of sopping sauce (or marinade for you fancy types). I saw one of the cooks pull a wet brisket out of a pan and toss it on the pit. The sausage was lightly packed and exploded out of the casing when I cut into it.

In all honesty, despite Luling City Market's reputation (one Saturday my youngest and I took the long way to Austin so we could pick up some barbecue before the Longhorn game -- the line at Luling City Market was out the front door and onto the sidewalk), it wasn't the best barbecue I've had. Now, make no mistake, it was good but it was just lacking a little something that would've made it great. I was a tad bit lucky as I arrived about 11:30, right before the lunch rush descended like a pack of locusts.

It turned out that my little detour really didn't take much longer than the direct route up Highway 71 thanks to Rick Perry's pet toll road - Highway 130 - that runs from just outside San Antonio all the way up to Dallas to the east of I-35. Few folks use the road and the operating authority is swimming in red ink. On the other hand, from Lockhart to just south of Austin the speed limit on the road is 85 and from Austin to Georgetown it dropped down to 80. In other words, it's the freaking Central Texas Autobahn.

Bigfoot and jurors

One of my guilty pleasures is watching Finding Bigfoot on Sunday nights. If you haven't seen the show it's about four bigfoot "investigators" who travel across the country looking for evidence that bigfoots (or is that "bigfeet") exist.

The group's leader is named Matt. He's the head of the Bigfoot Research Organization. Another group member is Ranae who is a biologist. Cliff and Bobo are the other members of the team.

Being the scientist, Ranae is skeptical of the existence of bigfoot. Whenever the teams speaks to folks who say they have had encounters with a bigfoot, Ranae looks for some other explanation while the other members step all over themselves expressing how much they think whatever the person saw or heard was a bigfoot.

As I watched the other day I couldn't help but think of jury panels. Ideally the members of the jury panel would be skeptics. After all their job is to determine whether or not the prosecutor has proven his or her case beyond all reasonable doubt. That means they should treat trial like a scientist would treat an experiment - a chance to prove the hypothesis wrong.

After all that's what the scientific method is all about. You develop a hypothesis and design tests to disprove it. If, after conducting all of your experiments, the hypothesis hasn't been disproven, it stands to reason that it might be true.

But that's not how jurors seem to think. Most jurors don't understand what's behind the scientific method. They look at trial (and experiments) as a way of proving up a hypothesis. In other words, instead of forcing the prosecutor to prove each and every element (being skeptical of the charge), they force the defendant to disprove the state's theory. This backward approach means that instead of forcing the state to prove up each and every element of its case beyond all reasonable doubt that they are forcing the defendant to point out reasonable doubt as the case moves along.

And along with such a mindset comes a complete discounting of the presumption of innocence.

Just like the three members of the team who start off with the assumption that bigfoot is real, jurors who miss the point of the scientific method are looking out for any evidence that supports the state's theory of the case without applying the skepticism that is a hallmark of science.

Keeping it weird in Austin

Well, just when Travis County District Attorney Rosemary Lehmberg thought everything had died down after her DWI conviction, she managed to flip herself out of the frying pan and right into the fire below.

Ms. Lehmberg is the defendant in a whistleblower lawsuit filed by former ADA Steve Brand who was fired by Ms. Lehmberg last month for allegedly making racially offensive comments that caused a jury panel to be dismissed. In his lawsuit, Mr. Brand claims that he was fired because he triggered an investigation of Ms. Lehmberg by the Texas Rangers.

Per an earlier article from the Austin American-Statesman, Mr. Brand likened an NAACP member to a white supremacist during jury selection in the murder trial that all of these allegations revolve around.

During the May 19-20 jury selection proceedings, Brand was serving as the lead state attorney in a robbery trial for convicted killer Darius Lovings.

Brand argued that he had scratched a candidate from the juror list as she had been the only person to say she wanted to serve on the jury, she was a member of the NAACP and she had posted on her Facebook page a comment and link referring to the “Negro Motorist Green Book,” a guide to safe travel for African-Americans during the Jim Crow era, according to the transcripts.

The link caused him concern, Brand told a judge sitting in for District Judge Julie Kocurek: “Because had the situation been reversed, if it was a white person with something, saying, ‘Hey, here’s a website to look at on why white people should stay out of certain neighborhoods,’ that would cause me concern, and I would strike that person for that reason." 

The next day he told Kocurek: “It’s not because of race. It’s because in part she appeared to be an activist, and that’s what we don’t want. Just as if she was white, we wouldn’t want a white activist or a white supremacist.” 

Brand told the judges that these factors reflected that the woman could have had an agenda. But Kocurek ordered attorneys to pick a new jury, siding with defense lawyer Jon Evans on a so-called Batson challenge, an objection filed when it is believed the state improperly struck a potential juror from the candidate pool based solely on race, ethnicity or sex.

According to Mr. Brand, he was asked to protect two officers who were under internal investigation for their roles in investigating a murder. Supposedly one of the officers, Detective Anthony Nelson, told Mr. Brand that he had lost control of the crime scene while investigating a murder scene. Mr. Brand claims that Det. Nelson admitted losing control of the scene and asked him to keep that fact a secret.

Mr. Brand then relayed what he knew of the crime scene investigation to the attorney for the accused murderer. On the stand at trial, Det. Nelson denied telling Mr. Brand to keep it a secret. Mr. Brand notified the Austin Police Department that Det. Nelson had lied on the witness stand. Then Ms. Lehmberg allegedly told Mr. Brand to go easy on the officers involved. Mr. Brand took umbrage with that suggestion and the matter ended up in the lap of the Texas Rangers.

Ms. Lehmberg denies pressuring Mr. Brand to lay off the investigation of the officers. She claims that Mr. Brand told her that he didn't think Det. Nelson's statement to him was a big deal.

Now let's say, for the sake of argument, that Mr. Brand's claims are true. He then did the right thing by notifying the accused's attorney of Det. Nelson's statements at the scene as any evidence gathered by investigators that night could be compromised as a result of Det. Nelson's losing control of the scene. Det. Nelson's request that Mr. Brand keep the admission under wraps may or may not have been material to the defense. If true, the statement certainly indicates that Det. Nelson might not be the most honest officer in Austin, but whether the statement was made or not, it was losing control of a crime scene that was more important in this case.

By testifying falsely at trial, Det. Nelson dug himself a very deep hole - if it could ever be proven he lied. If he had just admitted making the statement (again, assuming the allegations in the lawsuit are true), it might have made him look bad on the stand but it wouldn't have changed the fact he lost control of the crime scene. In other words, Det. Nelson had no reason to lie on the stand - his lie would not advance the prosecutor's case and it wouldn't undo the harm in his actions (or lack thereof) at the scene.

But if Ms. Lehmberg did try to get Mr. Brand to back off on the investigation then she really stepped in it. And if she really did fire Mr. Brand because he wouldn't back off, then she deserves everything that might be coming her way. Her job as the chief prosecutor in Travis County is to ensure that justice is done at the Travis County Courthouse every day. Her job isn't to protect the Austin Police Department. Hampering an investigation into a law enforcement agency isn't something I'd want to put on my resume - especially when that investigation involves allegations of perjury.

If what Mr. Brand alleges is true, then it raises questions about the integrity of the District Attorney. How many other times has she tried to stymie investigations that could embarrass law enforcement agencies? What skeletons are hanging in the closet in the office of the Travis County DA? What's not being disclosed to defense attorneys?

Of course Mr. Brand could just be blowing smoke. It certainly doesn't do much for one's reputation to be accused to making racially insensitive remarks in a public proceeding. Maybe this lawsuit is just his way of trying to stick it back to Ms. Lehmberg. He certainly wouldn't be the first former prosecutor to try to vilify the person who fired him.

As an aside, the end of the article notes that Mr. Brand is now practicing criminal law. Interesting that just a month after being canned from his job as a prosecutor he calmly walked across the aisle and became an advocate for the Bill of Rights and the accused. Such dedication. Such devotion to the cause. There's no word as to whether he informed members of Austin's criminal bar that he had always admired what that did and that he always wanted to be one of them.

Having too much information can be hazardous

Brian P. Fox is a student at Notre Dame Law School, not an actual lawyer. He has studied criminal law and criminal procedure but he has not practical experience dealing with them on a day-to-day basis. He spends his time studying and answering questions posed in the Socratic method from his law profs. He doesn't spend his mornings in the courthouse or his afternoons at the county jail with his clients.

Yet Mr. Fox is convinced that open-file policies in criminal cases are bad. In Mr.Fox's world, open-file policies are bad for defendants and even worse for criminal defense attorneys. You see, Mr. Fox knows better than you or me how to do our jobs most effectively. Oh the arrogance of youth.

The first thing Mr. Fox does is tell us that open-file policies won't prevent prosecutorial misconduct. He makes reference to the Duke lacrosse case and points out that even if prosecutors were required to make their files available to the defense, those prosecutors who were bound and determined to hide something would continue to do so.

And that's fair enough. We have an open-file policy in Harris County (as do many counties throughout Texas) and it certainly doesn't stop the Harris County District Attorney's Office from concealing potential Brady material.

But then Mr. Fox goes off the deep end. He tells us he's concerned with the workloads and low pay of public defenders. He tells us that if the state were required to make their files available to the defense that these poor, overworked souls would be swamped with mountains of evidence to sift through when putting their cases together. Really?

The problem for public defenders isn't having too much material to sift through. The problem is having too many case files thrown on their desks because the state or the county doesn't want to pay more money to defend those folks accused of committing crimes. Remember, indigent criminal defendants aren't a key demographic in anyone's election strategy.

At the same time Mr. Fox is telling us that it's too much work for public defenders to have to deal with open-file policies, he's also telling us that such policies would reduce the number of cases that are resolved with plea bargains and that it would burden the courts and prosecutors with more trials. His fear is that someone who did something bad might escape punishment because no one has time to deal with him.

Should Mr. Fox ever deign to join us in the trenches he will quickly find that we don't concern ourselves with the cost to the state of going to trial. How much extra work a prosecutor has to do to get ready for trial doesn't concern us, either. Our only goal is to provide as vigorous a defense for our clients as we can - nothing else matters.

If open-file policies would lead to more trials and fewer plea bargains, then maybe that's a good thing. Criminal defendants have a constitutional right to be tried by a jury of their peers. If the state can't handle the burden of additional trials, then perhaps someone should take a long, hard look at how charging decisions get made in the prosecutor's office.

Perhaps the strangest of Mr. Fox's arguments is that the rules for how we conduct criminal prosecutions are tilted heavily in favor of the citizen accused. Yeah, just let that assertion soak in for a moment.

He points to the Fourth Amendment's protection against unreasonable search and seizure, the Fifth Amendment's protection against self-incrimination and the burden of proof carried by the state is making his assertion. If Mr. Fox had any experience defending criminal cases he would know what a joke each of those so-called protections is in real life. If he had any experience he would know that the Fourth Amendment is but a shadow of itself these days. He would understand that judges have a hard time excluding evidence they know will prove the defendant guilty. He would understand how little jurors really understand the presumption of innocence and what it means to prove someone guilty beyond all reasonable doubt.

But, hey, being a contrarian is all the rage these days - particularly when one hasn't got a grasp on the reality of the topic he's writing about.

Final thoughts on the World Cup

It's over now and Germany gets to display the world's ugliest championship trophy for the next four years. You would think with the amount of money FIFA extorts rakes in from the World Cup they could afford a proper trophy. But, then again, whenever you start a sentence off with "you would think," it's just going to make you scratch your head.

The better team won yesterday - as painful as that is for me to write. This was not your father's German soccer team. This was a possession-oriented side that passed the ball on the ground and didn't rely on long balls and crosses to score goals. Dare I say it, they were actually fun to watch.

Argentina may have had the best player in the tournament but they suffered from out-dated tactics and an over-reliance on Lionel Messi. I don't care how spectacular a player he is, you can't design your attack on just putting the ball at his feet. The team had plenty of offensive weapons who were under utilized and seemed to be an afterthought. Messi's great, but he can't carry a nation on his shoulders. Having said that, the Argentine defense was unbelievable throughout the tournament (with the exception of the meaningless Nigeria game) but all it took was one defensive lapse to cost them the title.

While the football was great over the past month I do wonder what the long term costs of putting on the tournament will be for Brazil's poor and working class. The stadiums that were built across the country are not going to create any long term economic development. If you buy the hype and think otherwise, just drive down South Main by the football stadium and see if it looks any different than it did 15 years ago.

Football used to be the sport of the working class. But not so with the World Cup. It's a playground for the wealthy from around the world. Despite the billions of dollars the Brazilian government diverted from social programs, the vast majority of Brazilians couldn't afford to buy a ticket for an event they, in essence, paid for.

In four years Russia will host the World Cup and the logistical nightmare of stadiums that are thousands of miles apart. Unlike this year's tournament where all the games were played during our daylight hours, in 2018 we will once again have to deal with games airing in the middle of the night. I enjoyed this year's tournament but I know I won't be seeing much it in four years time.

Then, in 2022, the FIFA's most monumentally stupid idea will take shape. Thanks to rampant greed and corruption, the tournament will take place in the soccer hotbed of Qatar. Should it go forward the tournament will have to be moved to a cooler time of the year (all relative, of course) due to the blast furnace that is the Qatari summer. I'm willing to lay odds right now that we will see a football player burst into flames in the middle of a game. But then, hey, it's all about the money.

Unintended consequences of the Michael Morton Act

All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.

The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.

Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.

I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.

Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.

Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?

Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?

If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.

Analyzing the law rather than justifying an outcome

Francheska Jaganathan was motoring along Interstate 10 in Chambers County (just east of Houston) when she was stopped by a state trooper for allegedly ignoring a sign that indicated the left lane was for passing only. When the officer stopped Ms. Jaganathan he smelled the distinct odor of marijuana coming from her car. A search of the trunk revealed a few pounds of marijuana (somewhere between five and 50 based on indictment.

At trial Ms. Jaganathan argued that the search of her car was the result of an illegal arrest and that the evidence discovered should be suppressed. She argued that the officer had not followed her long enough to determine if she was violating the law. The state argued that at the point she was pulled over, Ms. Jaganathan had traveled in the left-hand lane for some 45 seconds and that she was clearly not passing anyone.

The trial court denied Ms. Jaganathan's motion to suppress and she entered a guilty plea. She then appealed.

The First Fourteenth Court of Appeals overturned the trial court's denial of her suppression motion and remanded the case back to the trial court in Jaganathan v. State, No. 14-13-00356-CR (Tex.App.--Houston [1st 14th] 2014) holding that the evidence presented at the trial court level failed to show the officer had reasonable suspicion to believe that Ms. Jaganathan was violating a  provision of the transportation code.

At some point Ms. Jaganathan passed a sign that said the left lane was for passing only. The stated purpose of that provision of the transportation code is to make the highways safer by keeping slower moving traffic out of the left lane. Between the time she passed the sign and the time she was stopped, Ms. Jaganathan passed one vehicle and was gaining ground on another car that had merged into the middle lane. At the same time the officer began pursuing Ms. Jaganathan at a high rate of speed. He testified at the suppression hearing that it would have been unsafe for her to have moved into the lane in front of him while he was in pursuit.

The appellate opinion points out that the officer had only been in active pursuit of Ms. Jaganathan for about 12 seconds and that she was not impeding traffic while driving in the left lane.

Affirming the conviction would have been an easy decision for most judges. The trial court judge, for instance, heard the testimony and denied the motion because she was driving in the left lane and, more importantly, because she had a whole lot of hippie lettuce in the trunk of her car. But Marc Brown, the author of the opinion, looked beyond the grass in the trunk. He made his analysis without regard to the fruits of the search. Instead of looking for a reason to affirm the decision he looked at the facts of the stop itself and the purpose of the law the officer accused Ms. Jaganathan of violating.

That's what a judge should do.