Friday, September 23, 2016

Could you be a bit more polite, please?

How come after the murder of an unarmed black man by the police the first thing folks want to do is caution (mostly black) protesters to be calm and non-violent?

Why isn't anyone issuing the came precautions to the police?

Social change isn't an easy process. Sometimes it takes a revolution. It can be very messy.

Change was very slow during the Civil Rights Era. Martin Luther King, Jr. and his followers were arrested, beaten and assaulted throughout the old Confederacy. They maintained their stance of non-violence. And the beatings continued.

Things changed when Malcolm X came onto the scene. Suddenly the white power structure had to deal with the threat of violence. Negotiating with King became a more practical tactic than turning cops and dogs on men, women and children.

Senators and representatives were scared to death that an armed insurrection would break out in the streets. They had to find a solution and they had to find it quickly.

Without Malcolm X it is likely that the Civil Rights Act and Voting Rights Acts would not have passed - or would have been far more watered down than they were.

Attacking police officers makes a bad situation worse, it's stupid and puts everyone at risk.

While Judge Carter's sentiments may be in the right place, the fact is everyone whose skin isn't white is already at risk - regardless of what they do or don't do. (Of course you could read the statement to be an indictment of police officers attacking others; but I doubt that's what was meant. I guess it all depends on what word you choose to put the emphasis.)

Terrence Crutcher's car broke down on the highway. The police came to the scene. Mr. Crutcher had done nothing wrong yet all of sudden, once the police showed up on the scene, he became the suspect. The cops assumed that he was guilty of something and treated him as such. There was no justification for their actions. There was no justification for Officer Betty Shelby to murder him. But there it was.

Keith Lamont Scott was sitting in his car waiting for his son to get off the school bus. Cops were in his housing project to serve a warrant on someone else. Suddenly, just because he was sitting in a car, Mr. Scott became a suspect. The cops assumed he was guilty of something and treated him as such. And I don't give a fuck whether he had a gun or not because he had a permit to carry one. But now he's dead, too.

Now let's contrast these incidents to the standoff in Oregon where Clive Bundy and his armed band of right wing fanatics (and freeloaders) occupied a national park. Despite the fact that Mr. Bundy and his fellow criminals were breaking the law, despite the fact that they were armed and threatening to use their weapons, they walked out of the park alive. The police used extra caution to ensure there was no bloodshed.

That sure as hell wasn't the case in Tulsa, and it wasn't the case in Charlotte. You can draw your own conclusions as to why the standoff in Oregon didn't result in multiple deaths. I've already drawn mine.

And now here we are in 2016, watching as the police continue to murder unarmed black men and those who raise their voices in protest are told to keep it down. Keeping it down hasn't done much good to this point. I'm not going to lecture anyone on how to challenge the system because when the masses say enough is enough, it's over. The existing power structure might want to prepare in case it's the fire next time.

Thursday, September 22, 2016

Tallying up the cost of mass incarceration

Carimah Townes just wrote a very interesting short piece in Think Progress about the true cost of mass incarceration. While we spend $80 billion a year on mass incarceration at the federal, state and local levels, the true cost of mass incarceration is likely closer to $1 trillion.

A study conducted by Washington University looked at all of the hidden costs of mass incarceration. Reformers don't even begin to take into account lost wages and lost long-term earnings. They don't take into account the costs borne by the families of the incarcerated in travel expense, missed work and money sent for commissary accounts.

Then we have social welfare costs for the families left behind. Since modern prisons do a good job of teaching inmates how to commit crime when they get out we have the cost of former inmates getting back in trouble. Finally, a child who has a parent in prison is more likely to find himself following the same path.

“We find that for every dollar in corrections costs, incarceration generates an additional $10 in social costs. More than half of the costs are borne by families, children and community members who have committed no crime.” -- Carrie Pettus-Davis, researcher

We have used mass incarceration as a tool of social control. We have used it as a tool for removing black folks from society. It is time to do away with it.

Hillary Clinton was the head cheerleader when her husband pushed his crime bill that accelerated the process of mass incarceration. That is a legacy she cannot escape from. Donald Trump is a champion of mass incarceration as well.

It is high time we choose a different path. It is time that we decriminalize drug addiction. It is time we stop locking up folks for non-violent crimes. It is time to reform our bail system.

Wednesday, September 21, 2016

The commodification of the law

On Tuesday I spent more time that usual on Twitter. It might have had something to do with it being my birthday and feeling a bit unmotivated to work all afternoon. This is one of the tweets that piqued my interest.

I encourage you to ponder on this from - "You are a media company first. Only after that do you sell legal product." Huge impact

It might be more appropriate for me to say that it disturbed me.

I don't care how cutting edge attorneys want to be. I don't care how much the whiz kids say the practice of law has changed. But if this message is true, then we are nothing but soap salesmen. And that's troubling. Very troubling.

The last time I checked, the basis of our profession is helping those who are unable to help themselves out of a problem. Our duty is to provide advice to our clients to assist them in deciding the best way to resolve their issue. For those of us who practice criminal law, our duty is elevated as we hold not only our client's future in our hands, but the future of his family as well.

Those clients don't give a fuck about your social media presence. They don't give a fuck about the content you pump out through various channels. They only care about one thing - can you get their ass out of the fire.

That's not the same as someone deciding what brand of soap, or soda or paper towels to buy.

If you accept what this ClioCloud conference (or whatever the hell it was) is telling you, then you are turning the practice of law into a commodity. And, if you're turning the practice into a commodity you are selling your clients down the river.

Commodities are fungible goods. They are interchangeable. They are produced for mass consumption.

The practice of law is not for mass consumption. Every client is different. Every case is different. Your duty as a lawyer is to analyze the case, examine the law and advise your client. Your duty isn't to pump out more content. Your duty is not to market the hell out of your firm. Your duty isn't to fluff up your resume and pump up your qualifications to get the next check.

And just what the fuck is legal "product?" Representation is not a product. Representation is a relationship.

Beer is a product. Toilet paper is a product. Adult diapers are a product.

Do you really want to debase yourself, and your profession, to the degree of equating the service you provide with adult diapers?

You are a lawyer first. You must ground yourself in the basics of your craft. If you want to be a trial attorney you need to study motion practice, jury selection, argument and cross-examination. If you want to be good at it you will continue to study as long as you practice (hence the term "practice"). When you get really good you will share your skills and insights with other attorneys in order to raise the bar for everyone.

If you subscribe to the bullshit in that tweet, then why did you waste your money going to law school? You could have save yourself a lot of headache, a lot of hassle and a lot of money by going straight into marketing.

I understand part of what's going on here. For too many years law schools have been pumping out class after class of newbie lawyers despite market saturation. They did it because their income stream was guaranteed by the government. The glut of new attorneys has driven down wages and increased competition for clients (tort reform hasn't helped matters). And into this void have come the marketers selling promises they can't keep.

And if we continue down this path, as my colleague Scott Greenfied would say, soon we'll all be walking down the sidewalk wearing hotpants.

Wednesday, September 14, 2016


Some shit you just can't make up. Here is an e-mail I received on Tuesday afternoon.

Dear Colleague,
The 2016 HBA Judicial Preference Poll was sent out yesterday, and I’m writing you to ask for your support as District Attorney.
Since being first appointed to office and later elected in a landslide, I have focused on increasing the HCDAO’s ability to prosecute new classes of criminals like human traffickers, and money launderers who profit from dangerous industries like drug cartels, prostitution and illegal gambling. I have also grown the office by over 100 new positions and exponentially increased training for staff in all areas of the office ensuring the implementation of new technologies and strategies to stay ahead of criminals. 
While seeking justice, I have been honored to receive the following accolades: the Association of Women Attorneys’ 2014 Premier Women in Law Award, MADD’s 2014 and 2016 Policy Setter Award, Waco ISD Advanced Academic Services’ 2014 Early Leader Award, Crime Stoppers’ 2015 Johnny Klevenhagen Award, and the NAACP 2016 A.L.E.X. Award for outstanding commitment to equal justice and legal excellence.  I was also named by as one of the 2015 Top 30 Influential Women of Houston.
I humbly ask for your support as District Attorney in the 2016 HBA Judicial Preference Poll that should be in your email inbox already.

Thank you,
Devon Anderson

I'm speechless.

Tuesday, September 13, 2016

Prison inmates sue Texas over conditions

I'm sure there are plenty of folks out there who don't give two damns whether or not the state provides air conditioning for its inmates in state prison.

But they should.

Our entire prison system was born of the idea that the best way to "cure" a person of criminal intent was to take them out of the environment that bred that intent and educate them in the honest ways of the world. So we built penitentiaries out in the middle of nowhere.

Then somewhere down the line the idea came about that prisons should be about punishment, not rehabilitation. So we made life harder for inmates and stripped them of their dignity all in the name of that Old Testament trope "an eye for an eye" or some bullshit like that.

Then we decided that society was best served when we just plain eliminated folks from society who had shown a penchant for misbehaving (I know I am painting a very broad stroke). We decided it was better to just lock 'em up and throw away the key since neither of the first two schools of thought seemed to be working.

Not coincidentally, this movement toward removing folks from society sprung up as the courts decided that the Constitution applied equally to black folks as well as white folk. Prisons took their place as one of our preferred modes of oppression. The move over the last two decades toward mass incarceration is nothing but a tool of social control. That is Bill Clinton's true legacy.

And that brings us back to Texas where a group of inmates has filed suit against the state alleging that the conditions in Texas prisons amount to cruel and unusual punishment. Specifically the lawsuit focuses on the lack of air conditioning in Texas prisons.

Now we could debate all day long on sentencing and parole and prison conditions, but I would hope that we could all agree that forcing folks to live in cramped quarters in the Texas heat without air conditioning is beyond cruel.

"All of the people that tend to die are the sickest and the most fragile among the inmates. What makes what's going on reprehensible is that the department knows this. We're asking the court to force the Texas Department of Criminal Justice to reduce the temperatures to a safe and livable amount." -- Jeff Edwards, lead counsel

Sure, there are people around Texas who don't have air conditioning - but that doesn't matter when it comes to how the state treats those entrusted to its care. Food, health care and sanitary conditions in prison are already deplorable around the state. Why don't we remove the potential deadly consequences of heat stroke from the sentences of those behind bars?

Let us not forget that those are people behind bars. They are men and women with families and friends. We can't continue to treat them as nothing but a number.

Saturday, September 10, 2016

Victory at Standing Rock (sort of)

Last weekend the company building the Dakota Access Pipeline tore up sacred land following the filing of court documents by lawyers representing the Standing Rock Sioux people. It was done deliberately in order to destroy the evidence in the ground and it was done knowing it was likely a federal court would issue a restraining order in the case.

When their plan was discovered, instead of backing down and halting the destruction of the sacred lands, the pipeline builders sent security guards with attack dogs into the crowd and assaulted the people who were trying to preserve the land that our government stole from them over and over and over again.

As I am having problems embedding the video, click here for video footage of the attack courtesy of Democracy Now!

But now there is good news, sort of. On Friday, a federal judge continued the American legacy of stealing the land of the Native Americans by refusing to stop construction of the pipeline - though he did halt construction in a small area. But later, the Department of Justice, the Department of the Interior and the Army announced that construction of the pipeline on lands bordering Lake Oahe would be halted immediately. The Army Corps of Engineers also called for consultation with Native Americans on all projects that would go through their lands.

While it is a victory. It is also far too little, far too late. President Obama could have interceded in this matter before the violence of last weekend. But he chose not to do so. After holding his finger in the wind for months he finally shut down the TransCanada XL pipeline project (as symbolic a gesture as it was), but without all the hoopla of the establishment environmental groups, the struggle against the Dakota Access Pipeline went unnoticed by most folks.

This administration, and the administrations before it, are too wedded to the oil industry and its money to clamp down on the destruction of the environment and the destruction of Native American lands. It is only when an army of white surburbanites raise the banner of fighting climate change that Obama looks up. In this instance it was just a bunch of indians who raised a stink. Not worth bothering with, I suppose.

It is beyond shameful what our government has done to the Native Americans over the past 3 centuries. We have stolen their lands again and again. We have massacred them. We have destroyed their hunting grounds. All of this in the name of manifest destiny - the ultimate in white supremecist doctrine.

It's a trifecta!

Harris County DA Devon Anderson may truly be the gift that never stops giving. In addition to the dumpster fire which is Precinct 4, in addition to the state's "expert" witness, Dr. Fessessework Guale, now we have Devon Anderson's Facebook ad for her re-election campaign.

Well I guess, based on the message, that someone informed Devon Anderson that what she did put a judge in a bad position. But why anyone had to point that out to her I don't know because Devon Anderson used to be a judge - up until Barack Obama's election, that is. She should be familiar with the Texas Code of Judicial Conduct which makes this little episode all the more troubling.

I tried to download the video yesterday before it was taken down but I was, apparently, unsuccessful. I am bothered by the fact that Devon Anderson deliberately put a judge in a position that violated the canons of conduct. And I don't care whether or not Devon Anderson is the person who maintains the Facebook page and posts videos and such. The page has her name on it and she is ultimately responsible for the content on the page.

I wish I had made a screen print at the time so I could at least post the photo - but life is full of shoulda, woulda, coulda moments.

Friday, September 9, 2016

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

Thursday, September 8, 2016

Stepping in it

Oh what a mess Harris County DA Devon Anderson has found herself in. As has been reported in local media outlets, over the last nine years some 21,000 pieces of evidence were destroyed in Harris County Precinct 4. All of the evidence was supposedly destroyed by one deputy - Christopher Hess - who has since been fired.

But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.

Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.

Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.

But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.

Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?

There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?

If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.

Ms. Anderson and her minions have shown they cannot be trusted.

Thursday, September 1, 2016

An attack on discretion

In theory, a judge should make his or her decisions on the bench without regard to politics. In theory, a judge should be shielded from politics in order to make the best decision in a given case - not the popular decision.

Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.

We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.

Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.

Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.

Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.

Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.

Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.

There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.

Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.

Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.

A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.

An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.

State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.

Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.

As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.

What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.

Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.