Execution Watch: 10/05/2016

Tomorrow night the State of Texas will return to its barbarous ways and fire up the killing machine for the first time in six months...

BARNEY FULLER, from Lovelady, Texas, was sentenced to death after he pleaded guilty to killing a couple who were his neighbors. At the time of the 2003 slayings, Fuller was awaiting trial on charges of making a terroristic threat against them. He was arrested at his home after a nearly nine-hour standoff with police.

For more information on Mr. Fuller and his case, click here.

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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.

Marc Carter ‏@JudgeCarter228  Sep 21

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

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.

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.

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.

Mike Whelan ‏@mikewhelanjr  21h21 hours ago

I encourage you to ponder on this from #ClioCloud9 - "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.

Really?

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 D-Mars.com 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.

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.

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.

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?

  Dr. Fessessework Guale Statement of Qualifications by Paul B. Kennedy on Scribd

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.

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.

A false patriotism

I guess Melissa Jacobs of Sports Illustrated just can't help herself. She is so oblivious to the world around us that she buys into the notion that patriotism conflates with support for the military.

I understand that the world of professional sports (and college to a large degree) spews this trope by parading veterans and soldiers in front of crowds and by dressing athletes in camouflage gear and flag decorations. The message is quite clear - to be patriotic you must go all-in with the military.

I hate to break it to you, Ms. Jacobs, but that message is bullshit.

Patriotism has nothing to do with support for the military. In fact one could make the argument that not supporting the military in its current state is the most patriotic thing one could do. You see every military action since Harry Truman committed two of the worst war crimes in history has been unconstitutional.

The last declaration of war by Congress occurred in December 1941 after the Japanese attack on Pearl Harbor. After that Congress just said fuck it and let the President do whatever the hell he wanted to do with the military.

In the meantime the United States military has become an occupying force in over 100 countries. The United States military has propped up some of the worst right-wing dictatorial governments in history. The United States military has murdered innocent men, women and children all over world - from the Korean peninsula to southeast Asia to the Middle East. Members of the United States military have been sent to advise right-wing forces around the world on how to unseat leftist governments who get in the way of money-hungry U.S. corporate interests.

Take a look at a map of U.S. military interventions since World War II and you will see a path of destruction with people of color as the target. Go to the library and do a little reading of Latin American history and see what good has come out of U.S. militarism.

The United States military is nothing more than the advance arm of American capitalism and it points its weapons at those who oppose the onrush of imperialism.

Besides, Ms. Jacobs, why would anyone support an institution that sends a nation's young people off to die for the benefit of corporate interests and an older generation that rejects peaceful coexistence? It's an incredibly stupid concept if one stops and thinks about it for a second.

But that's exactly why the NFL and other sports leagues glorify the military.

Take off the rose colored glasses, Ms. Jacobs, and wake up to the real world.

Taking a stand by sitting down

"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder."

 -- Colin Kaepernick

It would appear that San Francisco 49er quarterback Colin Kaepernick has sent flag-waving pro football fans into a tizzy with the stand he made on Friday night.

If you somehow missed the shitstorm on Twitter, at Friday night's game, Kaepernick remained seated on the bench when the National Anthem was played. When asked he said he would not show pride in a flag for a country that has for centuries oppressed people of color.

Apparently his willingness to take a stand when young black men are being shot dead by police while the officers go on paid leave has left white football fans in the dark. Professional football (along with baseball and auto racing) at times seem nothing more than delivery vehicles for a pro-militaristic, pro-imperialist philosophy that we are all expected to bow down before.

In the eyes of professional sports (and to some extent college sports), true patriotism means supporting military operations overseas - regardless of the reason young men and women are being sent to another country (generally one populated by people of color) to kill, rape and destroy.

On occasion we hear a hue and cry for athletes to take a position on some hot button topic of the day. But that would seem only to apply when the athlete takes the position that the mainstream wants them to take. Pat Tillman is lionized because he walked away from football to join the army in order to invade a sovereign nation. Colin Kaepernick takes a stand against racism and racial violence and he is pilloried by the ignorant masses.

And, speaking of the ignorant masses, you might want to take a gander at this article by The Intercept's Jon Schwartz. It seems that if you listen to more than the first verse of the Star Spangled Banner the symbolism gets a bit complicated and messy.

Francis Scott Key was a slaveowner when he penned the song. For those who don't remember your history, Mr. Key wrote the anthem after the attack on Fort McHenry during the War of 1812 - a war that was fought because the United States decided to invade Canada. During the war the British promised a life of freedom for any black man who enlisted to fight on their side. They also made promises to the Native Americans (who were already learning that the US government was not to be trusted).

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

-- Star Spangled Banner

Of course I could write many more posts about the intellectual dishonesty of the phrase "land of the free" but I'll save them for another day.

Colin Kaepernick may not be the best quarterback in the league - he may not be the best quarterback on his own team - but he is the most courageous. By taking a stand against racism and racial violence in America he is risking his own livelihood. If he is cut by the 49ers he may find he isn't welcome by any other team in this proto-fascist league.

Thank you, Colin, for taking a stand.

Round peg, square hole, health care edition

So Aetna is pulling out of Obamacare exchanges because the Department of Justice wouldn't approve of their merger with fellow healthcare provider, Humana.

This is what happens when you construct a system in which for-profit companies control health care delivery. Until someone has the fortitude to fight for a system in which the healthcare companies are taken out of the equation, health care will remain a privilege and not the right it should be.

Just go sit at that other table and wait your turn

A couple of weeks ago I was listening to Democracy Now! and heard a replay of a debate between Pulitizer Prize winning journalist and author, Chris Hedges, and economist and former secretary of labor under Bill Clinton, Robert Reich, about the upcoming election.

The debate first aired a day or two after Bernie Sanders betrayed his supporters and endorsed Hillary Clinton. Right around that time, Dr. Jill Stein, the current nominee of the Green Party offered to drop out of the race for her party's nomination if Sen. Sanders would run as the Green Party candidate. He declined the offer (raising questions of why he even bothered running in the first place).

The question before the panel was what should progressives do in the upcoming election.

While Mr. Hedges urged progressives to support the Green Party instead of the pro-corporate Democratic Party, Mr. Reich raised the alarm and claimed that the only way to save America was to elect Hillary so that Trump would be defeated. He told the listeners that they had to abandon their convictions and vote for Clinton because the alternative was so much worse.

Mr. Reich stated over and over that now was not the time to launch a third party bid for the White House. He said he would work to jump start a progressive movement in time for the 2020 election. Bullshit, I say.

In 2020 Mr. Reich will make the same old tired arguments that now is not the time, that progressives need to be patient and wait... and wait... and wait.

To be fair to Mr. Reich, he's not the only one spouting this garbage. Ben Jealous, former head of the NAACP and now an investment banker, says the same thing.

Mr. Reich and Mr. Jealous are mere mascots for the Democratic Party who are trotted out to convince voters who are sick and tired of the way the party abandoned the working class for Wall Street money. They will continue to tell their flocks of listeners that now is not the time to exercise one's conscience. They will continue to tell them that they have to hold their noses and flip the lever for the Democratic candidate because the alternative is so much worse. They will continue to tell them to wait another four years.

And then they will rinse and repeat.

If you think that you can work within the existing system to reverse three decades worth of economic policy that has hammered the working class and poor, you are deluding yourself. If you think that you can work within the existing system to stop the continuing rape of our environment by oil, gas and coal companies, you are deluding yourself. If you think that you can work within the existing system to make health care a right and not a privilege, you are deluding yourself. If you think that you can work within the existing system to reverse the tide of the corporatist state in which we live, you are deluding yourself.

President Obama is every bit the shill for corporate interests, the oil companies and the warmongers that George W. Bush was. He may talk a big game, but when the chips are on the table he's not willing to shove them in the middle.

Revealing ignorance

The purpose of investigative journalism is to peel back the layers to a story or an event so that the world can see it for what it is and not what someone spins it to be. Good investigative journalism helps you understand what's going on and why. Bad journalism merely contributes to the increased stupidity of society.

The Center for Investigative Journalism has a podcast entitled Reveal. It's usually pretty interesting and the format allows for incredible depth and breadth of reporting. You will generally walk away having learned something.

Usually.

But not the latest installment of the podcast.

In "Dropped and dismissed: Child sex abuse lost in the system" reporter Tennessee Watson tells her own story of being sexually abused by a gymnastics coach when she was 7 and her decision to report it to the police when she was in her 30's.

After contacting the police and telling them her story, the coach is then arrested and charged with aggravated sexual battery based on nothing more than her story of what happened a quarter of a century earlier. To make a long story short, on the eve of trial the prosecutor offered the coach a deal - plead guilty to contributing to the delinquency of a minor, go on probation for a year and get the case dismissed. He took it.

And Ms. Watson is upset. She's upset because there was no trial. She's upset because the prosecutor made the decision to plead out the case without consulting with her. She's upset because she didn't get to testify against her former coach in open court. She was more upset because other prosecutors refused to file cases like this with only the word of a supposed victim.

And I was upset because of how stupid Ms. Watson was and how she was making the listening audience just a little bit more stupid with her ignorant views on the law. I was also upset because the Center for Investigative Journalism put this out for public consumption.

Perhaps Ms. Watson needs a lesson in how the Bill of Rights works. Perhaps she needs to be reminded that the right to trial is conferred upon the accused, not the accuser. Perhaps she should think about whether filing felony charges based on nothing more than one person's testimony about an event that happened 27 years earlier is a good idea.

I feel bad about what she says happened to her as a child. It wasn't right. No child should have to go through that. But neither should we deprive the accused of their rights just because we think they did something awful. Don't give me the crap that it's all about the kids. The Bill of Rights is there to protect the accused from the mighty power of the State. A "victim," no matter how sympathetic, is just another witness.

But neither should anyone have to listen to the ignorant drivel of a reporter masquerading as an expert in criminal and constitutional law. The CIJ should have either aired a disclaimer or should have had commentary from someone with a little familiarity of the law.

Window dressing

Back in April of this year Harris County received a $2 million grant from the MacArthur Foundation to reform its criminal (in)justice system. According to county officials, the immediate goals were to reduce the population of the Harris County Jail (the state's largest mental health facility) by 20% over the next three years. There was talk of more personal bonds and diversion programs. There have also been a multitude of committees set up to discuss ways to make this happen.

It's all a mirage, however.

Currently 48% of the inmates at the Harris County Jail are black while African-Americans make up only about 19% of the population in Harris County. Those numbers alone tell you a lot about they manner in which "justice" is meted out in Harris County. Throw in the fact that almost 70% of the inmates haven't been convicted of a crime and you get a better picture of the way things work down here.

Our system of mass incarceration has nothing at all to do with reducing crime. It's all about social control. We arrest and lock up folks for drug use instead of providing treatment. Judges set bonds at rates that folks can't pay and so they sit at the jail and wait for their court appearance where an appointed attorney will work out a deal with the prosecutor for them to get out of jail - with a permanent conviction on their record.

So long as the government continues to carry out its mission of marginalizing minorities and the surplus labor pool, ain't nothing going to change on that front.

What does the county propose? Form a committee, and several sub-committees, and hold a series of meetings about making the criminal (in)justice system more efficient. Efficient for whom? Certainly not for those accused of violating the law. Certainly not about decriminalizing drugs or making low-level drug offenses a ticketable Class C offense.

Nope. What the county wants to devise is a system in which cases move quicker through the courts, reducing the courts' dockets and increasing the number of pleas. The diversions Devon Anderson (Harris County DA) talks about are just another way of placing folks under the thumb of the criminal (in)justice system.

Specialty courts such as drug courts, DWI courts, mental health courts, veteran's courts (and whatever flavor of the month court is next up on the list) are little more than an illusion. If we were rally interested in helping these folks out we wouldn't be prosecuting them and holding the threat of jail or prison time over their heads. If we really wanted to help them they would receive the treatment they need without the coercive power of the state standing behind the curtain.

If the county were serious about reducing the number of folks sitting on their hands in the Harris County Jail awaiting the disposition of their cases, we would issue personal bonds for everyone charged with a non-violent misdemeanor or any drug possession offense. If we were serious we would eliminate a bond schedule that serves only to enrich bondsmen and coerce pleas.

If we were serious about this we would stop law enforcement agencies from acting as occupation forces in minority communities and enforcing the law in a disproportionate manner. And we would certainly stop arresting and jailing folks for status crimes. Taking an addict to jail instead of providing treatment does nobody any good. Let's treat drug addiction for what it is - a public health issue (just look what Congress did when it turned out a lot of white folks were being arrested due to opioid addiction).

But this is not what's going to be done. Instead our county officials (and their lackeys and stooges) will stand up on a stage and announce proudly that they've re-arranged the deck chairs on the Titanic.

After all, it's a lot easier to dress up a window than it is to fix a problem.

What's in a number?

Just to let y'all know, there is no constitutional crisis because there are only eight justices sitting on the US Supreme Court.

There is nothing magical about the number 9.

Here is Article III, Section 1 of the US Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

See? There is nothing in the Constitution that says there have to be a certain number of justices on the Supreme Court. And, in fact, there is nothing in the Constitution about the qualifications of the justices, either.

There were only six justices when the Court first sat (and only four of them sat). Over the years Congress increased the number of justices when new federal circuit courts were created. The number peaked at ten in the 1850's. That number was winnowed down to seven when Congress passed a law stating that the next three seats to open through death or retirement would not be filled. The number was then increased back to nine when two new circuits were created.

Franklin Roosevelt caused a stir when he proposed appointing a new justice for each sitting judge who was over the age of 70. That proposal never got off the ground as both Democrats and Republicans in Congress opposed it.

Whether or not the Republican-controlled Senate should hold hearings on President Obama's nominee to fill the seat held by the late Antonio Scalia, is merely a political question, not a constitutional crisis. There is nothing to prevent the remaining eight justices from hearing cases and issuing rulings. A tie just means that the lower court ruling stands.

Two sides of the same coin

For the past couple of weeks about all we've heard from the presidential campaign are attacks on the personality and temperment of the candidates. There have been few mentions of actual policy differences (with the notable exception of immigration). Why is that?

I would posit that it's because there isn't a dime's worth of difference between Hillary Clinton and Donald Trump. While they speak in generalities about economic, foreign and social policy, neither of them is going to challenge the basic tenets upon which American capitalism rests. Neither one of them is willing (or able) to acknowledge that we must rethink what passes for an energy policy. Drilling more holes in the ground will only make matters worse when it comes to the climate and our sustainability on this planet.

Neither candidate is going to change our petroleum driven foreign policy. Neither one is going to abandon autocrats and and dictators who either do our bidding or from whom we are dependent upon for resources (be they oil fields, minerals or landing rights).

Both candidates are beholden to the corporate ruling class - Clinton because she is dependent upon their campaign dollars and Trump because he is one of them.

Both candidates will sit and watch as our protections under the Fourth, Fifth and Sixth Amendments are watered down even further in the name of keeping the streets safe.

Oh, wait, you say. Now you're talking about the Supreme Court - there's where a difference exists between the candidates. Clinton will appoint judges who are left of center and Trump will appoint judges who are on the right. Those choices will affect jurisprudence for a long time to come.

Or will they?

The change in the composition of the court has done nothing to stop the constant erosion of the Fourth Amendment. The fact remains that bad facts make bad law. Most of the decisions that helped to eviscerate the Fourth Amendment were on cases in which the defendant had either done something really bad or had a lot of bad stuff in his possession. Lower courts (in which judges face the voters) will bend over backwards not to throw out the conviction. And, by the time the matter gets before the Supreme Court, the justices can find almost any justification for further restricting our rights.

And then there is the nagging little fact that what is constitutional or not is determined by the votes of nine men and women who attended Ivy League law schools and have little (or no) experience working in the trenches. What is a constitutional protection today could be gone tomorrow and put back in place a year from now. Let us also not forget that no one party is going to control 2/3 of the Senate. That means anyone who is nominated is going to go through a grueling process (and, by the way, the same holds true for other federal judicial appointments).

Let's not give in to the fear-mongering from both sides. The republic will not collapse upon the election of either Clinton or Trump. The Constitution will remain a document upon which a group of fallible men and women decide what the government can and cannot do.

Don't settle for the candidates being sold to us by the ideologically and morally bankrupt major parties. Go out on election day and vote your conscience. A vote cast for one candidate in order to prevent the other one from winning is a tacit surrender to a corrupt corporate system.

Don't wave the white flag in November.

What I've been listening to

I discovered a new podcast a couple of weeks ago that takes a very interesting look at the U.S. Supreme Court. It's called More Perfect and it's a spin-off from Radio Lab. The podcast is available on the NPR ONE app.

So far I've listened to an episode about attempts to abolish the death penalty, Earl Warren's favorite case, the Indian Children's Welfare Act and how plaintiffs get picked for test cases.

I recommend giving it a listen or two.

Taking a stand

The very existence of public defender offices highlights one of the greatest contradictions in our criminal (in)justice system. We like to put up the facade that our system is fair because everyone, not just those who can afford it, has the right to legal counsel if they are charged with a criminal act.

But not everyone can afford to hire an attorney. So some sort of safety net has to be erected so that those folks have the benefit of legal counsel when facing the almighty power of the state. In some places courts contract out with private attorneys to represent indigent defendants in exchange for a paycheck. In some places judges appoint private attorneys to represent indigent defendants. In some places there is a public defender's office who represents those who cannot afford to hire an attorney.

Of course someone has to foot the bill. And that is usually the county or state. In some places, such as Galveston County, if a defendant is convicted or pleads guilty he or she is charged the reduced fee paid to the attorney by the county.

Here's where the inherent problems a public defender system being. In a criminal prosecution, the government initiates the case against the defendant. The judge, however, is also a government employee who, in places like Texas, faces public scrutiny over his or her decisions (well, that, of course, assumes that the people who vote in judicial races know anything more than what party the candidate is a part of). And, for an indigent defendant, his attorney is also a government employee whose office depends on the government for funding.

In Missouri, Gov. Jay Nixon made the decision to cut funding to the public defender's office. He has repeatedly slashed funding for the office - despite reports that the attorneys are overburdened with their case loads.A 2014 study found that the office needed an additional 270 attorneys just to cover the existing case load. The state spends less than half of the national average in per capita public defense spending. The state ranks 49th of 50.

In a time of budget cutbacks, just who is going to stand up and demand more money for the public defender's office? Who's their constituency? What governor would ever listen to those who advocate for indigent criminal defendants when it comes time for allocating government funds?

But Michael Barrett, the director of the state's public defender office, had an idea. Relying on an obscure Missouri law, Mr. Barrett ordered the governor, an attorney, to represent indigent defendants in Missouri. That took some balls.

We'll have to wait to see if Mr. Nixon actually has to get his hands dirty dealing with the public. But, even if he finds a way to wiggle out of his obligation under the law, the symbolism of Mr. Barrett's actions speaks volumes.

Another one bites the dust

You can now add Delaware to the list of states that have effectively abolished the death penalty. Earlier this week the Delaware Supreme Court ruled that the state's method of deciding who gets murdered by the state was unconstitutional.

Delaware was one of three states (Florida and Alabama are the others) in which the judge, not the jury, decided who got the needle and who got life in capital cases. The Florida law was struck down by the U.S. Supreme Court which held that under the Sixth Amendment, it is the jury who is to make the decision. Florida then passed a new law that allowed the death penalty to be imposed on a 10-2 vote by the jury - that statute is being challenged as well.

With the decision by the Delaware Supreme Court, the death penalty has been abolished in 19 states. Executions in other states have been placed on hold due to an inability of the states to obtain the drugs necessary to kill inmates.

Last year, in an effort to keep their ability to murder inmates, Utah re-imposed the firing squad. As barbaric as it is, at least the use of a firing squad shows the world the brutality involved in killing someone deliberately.

There is one problem, however. In Utah there are five volunteer members of the firing squad. Only four of the shooters have live ammunition in their rifles - the fifth shooter has a blank. The purpose is so that the members of the firing squad can all go home afterward and tell themselves they didn't fire the fatal bullet.

And that's a tacit admission from everyone involved that the death penalty is wrong. If Utah really believed it was right, then they wouldn't give someone a blank - they'd give everyone live ammunition.

Police shoot unarmed black man (again)

How many more of these police shootings must we witness before it stops? The latest shooting victim, Charles Kinsey, is a caregiver at a group home.

Mr. Kinsey was shot as he lay on the ground with his hands up. He told the police he was a caregiver and that he was trying to take care of an autistic man who walked out of the group home.

Didn't matter. The police shot him anyway.

Why wasn't the officer who shot him arrested for aggravated assault with a deadly weapon? Why wasn't he booked into the county jail? Why didn't he sit in custody until someone posted a bond? Why isn't he going to court to answer to the charges against him?

Here is the bullshit response from the police:

“There is preliminary information that North Miami Police Officers were dispatched to the scene after a 911 call was received of an armed male suspect threatening suicide. Arriving officers attempted to negotiate with two men on the scene, one of whom was later identified as suffering from autism. The other man was later identified as an employee of an assisted living facility. At some point during the on-scene negotiation, one of the responding officers discharged his weapon, striking the employee.”

"Later identified." That's funny. Mr. Kinsey identified himself as a caregiver right before he was shot.

The grass is always greener

Here's an interesting piece from Sports Illustrated about Ricky Williams who walked away from the NFL. I went to the University of Texas at the same time Ricky did and remember watching him play ball at DKR. He was a stud running back (who at one point held the NCAA record for career rushing yards) but he marched to the beat of his own drummer (and still does).

Our marijuana laws make no sense. Alcohol is a much more dangerous drug but it's perfectly legal and manufacturers pay plenty in taxes to the government for the privilege of producing it. As you know, I defend people accused of drunk driving and I see the consequences of it every day. Why the federales leave marijuana as a Schedule 1 drug I will never understand - it has been clearly demonstrated that various components of marijuana have legitimate therapeutic uses.

The NFL has a strict anti-marijuana policy but looks the other way when team doctors hand out painkillers like candy so players can be rushed back onto the field quicker. They are more concerned about the league's image then they are for the people the league chews up and spits out on a regular basis.

Instead of legalizing - or at least de-criminalizing - marijuana we choose to enforce laws that make young people criminals and threaten their ability to obtain student loans for college. Yet we'll just slap 'em on the wrist for underage drinking which is a far more serious problem.

It's time we got past Reefer Madness, wouldn't you agree?

Praying for hypocrisy

Last week I was at the Fort Bend County Courthouse in Richmond and noticed a church down the road with a sign announcing a prayer service for the Dallas police officers who were killed the previous week.

I couldn't help but wonder if they held prayer services for Alton Sterling or Philando Castile, too.

Pronouncements such as this are the subtle ways we perpetuate racism and prejudice in this country. Bumper stickers reading Back the Blue and Cops' Lives Matter are ways that folks can express their prejudice without being so blatant. And just what the fuck is Pray for Police supposed to mean? They're the ones killing black men at point blank range. Do they want absolution or something?

This is how we indoctrinate our children to accept blindly what they are told by authority figures. This is how we indoctrinate them to hate and look upon those who are different with disdain or fear. Through religion we attempt to paper over the hypocrisy of murder as a sin and blind support of the military and the permanent war.

Interesting how the Jesus fought for the benefit of the downtrodden and spoke for those without a voice while the modern churches that use his name speak for those in power and those with money.

We'll just have to wait and see for whom prayer services are held the next time a young black man is gunned down by a man wearing a badge.

Black and white and green

I read an interesting article in Slate yesterday about the demographic problems that Donald Trump is facing in the general election this fall. But that's not what I wanted to talk about today. I did read one stat that I think is a good jumping off point for looking at how American capitalism is unique in the world.

Trump has unprecedented pull with working-class whites, especially men. If he can match past Republican performance with college-educated whites and hold his increased share among their counterparts with high school diplomas, he’ll have a smooth path to victory.

Why is it that white working class males are such solid Republicans? Why are they supporting candidates whose policies benefit the corporate class at the expense of the working class?

It has to do with the unique nature of American capitalism. And just what is unique about American capitalism?

The legacy of slavery and institutional racism are foundations upon which the American economic system is built. For generations the corporate elite and their bag men have fomented racism as a means of dividing the working class. And they have succeeded. Today white working class males feel they have more in common with their bosses than they do with their fellow workers.

The white working class has been so permeated with racist ideology that they have become blind to what's in their own self interest. Republicans and toadies of the corporate class realized this during the Civil Rights movement. There's a reason that Martin Luther King, Jr. was assassinated following a speech to sanitation workers in Memphis. In tying the fight for equality with the fight for workers to earn a living wage and with the fight against the war in Vietnam, King became a dangerous figure and had to be eliminated.

Republicans, conservatives and the corporate class have been sowing seeds of discord within the ranks of the working class ever since. They have done this by portraying the struggles of racial and ethnic minorities as attacks on American values instead of a attack against economic and political oppression.

The result has been a fragmented working class that works against its own self-interest. This fragmented working class allows the corporate class to hold down wages and move jobs overseas whenever it becomes profitable for them to do so.

So long as the corporate class is able to use race as a wedge to drive between workers, the working class in this country will continue to be oppressed with low wages, no job security and private health care coverage.

For all of the talk from our political leaders about what happened in Baton Rouge, St. Paul and Dallas last week, we will never eliminate racism because it is so ingrained in our economic system. We can move beyond prejudice but institutional racism will remain because it brings about bigger profits for the corporate class.

Keeping up with appearances

Earlier this week China lost a dispute over control of parts of the South China Sea. The Philippines filed suit in an international tribunal over violations of the United Nations Convention on the Law of the Sea. Despite being a signatory of the agreement, China balked at its language when it came to parceling out disputed regions of the South China Sea. And (hypocritical) political figures in the U.S. and Britain pontificated on why the Chinese should heed the decision.

But here is the rub. How is this decision to be implemented? If there is no enforcement mechanism then the decision of the tribunal isn't worth the paper it's printed on.

But while the decision is legally binding, there is no mechanism for enforcing it, and China, which refused to participate in the tribunal’s proceedings, reiterated on Tuesday that it would not abide by it.

And that is the problem with international law. Sure, we can set up tribunals to rule on a variety of disputes around the world - but if all the winner gets is a piece of paper, what's the purpose?

Unless every country agrees to be governed by a particular mechanism and agrees to an enforcement protocol, the law doesn't mean a thing. The United Nations is not capable of enforcing the agreement and neither is any government.

In fact, no one wants an international body that's capable of enforcing international "law." What world leader in their right mind would cede national sovereignty over such issues? What world leader would voluntarily subject his own government to the various prohibitions that the U.N. has produced over the years? If such a body existed is there any reason to doubt that George W. Bush would have been charged with violating international law? Is there any reason to doubt that President Obama would soon join him in the dock?

Taking away freedom on the cheap

One of our worst nightmares is being wrongly arrested by the police and getting lost in the criminal (in)justice system. Thanks to a cheap drug test kit, many folks around the country have had the pleasure of being arrested, having their cars impounded, losing their jobs and their apartments for no reason at all.

Factor in the pressure some folks have to plead guilty by appointed attorneys in order to get out of jail quicker and you have a situation that should shock the conscience of our nation. Yet it's something we are more than happy to sweep under the rug.

Last week the New York Times Magazine ran an article about the real life aftermath of the cheap roadside test kit focusing on the ordeal faced by one Amy Albritton from Louisiana. Her nightmare occurred right here in my hometown, Houston.

She and a friend were stopped by officers when they were in town for her friend's job interview. One officer claimed to have found a syringe needle in the visor and a (coerced) search of the car then turned up a powder-like substance (that Ms. Albritton said was BC headache powder) and a grain of something on the floorboard.

The officer who broke open the test kit claimed it showed the grain of something was, in fact, a piece of crack cocaine. Ms. Albritton was arrested (her friend disclaimed any knowledge of the substance and, since it was her car, she took the ride downtown) and charged with possession of a controlled substance - a state jail felony punishable by up to two years in prison.

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

The next morning Ms. Albritton met with a gentlemen who told her he was her court-appointed attorney. While she claimed innocence, he told her that the prosecutor would offer her 45 days (under a provision of the Texas Code of Criminal Procedure that allows certain felonies to be punished as misdemeanors) and that she would be in jail for much longer if she actually chose to fight her case. She gave in and pled guilty before Judge Vanessa Velasquez.

A later test of the substances by the Houston Police Department Crime Lab (who apparently tested substances from closed cases on a regular basis but never notified anyone of the results - among other sins that have been documented previously) showed that the substance in question was not crack cocaine. The tests also showed that there was nothing in the needle and that the powdery substance was BC powder.

All of this was a day late and a dollar short for Ms. Albritton who lost her job and was now hamstrung with a felony conviction due to her wrongful arrest.

Now, if we know that these kits are inherently unreliable and that their accuracy is affected by light and temperature and other environmental factors, why do we allow these tests to be the basis of criminal charges that have serious ramifications for the people involved? Why aren't we waiting for the results of actual lab tests before we file charges against someone? Why are we holding folks in jail for non-violent drug offenses simply because they can't afford to post a bond? And why the fuck are attorneys pressuring their "clients" to plead guilty without the benefit of a lab report?

Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.”

Another question, posed by former Houston Police Chief Charles McClelland, is why do we allow the folks who want to arrest someone to run the test that determines if someone gets arrested? Shouldn't that testing be done by someone who is (nominally) not a part of the police department?

Yet another question is why we continue to charge people who possess trace amounts of drugs with felony offenses?

This is reality for a sizable portion of the population yet you will never hear a politician talking about how innocent people get caught up in our criminal (in)justice system. You will never hear then talk about the gross inequities in how different people are treated. Instead you will hear nothing but the common platitudes of those who claim to be tough on crime in order to please white suburbanites whose idea of a colorblind society is an all-white neighborhood.

Reasonable Doubt 7/7/2016

This past Thursday I had the honor of being back on HCCLA's Reasonable Doubt television show. We talked about the Hillary Clinton e-mail scandal and police shootings.

In case you missed it, here's the show...

Vacation or jail?

After the events of the last few days it's time to end the double-standard in our criminal (in)justice system that we don't talk enough about.

In Dallas last night, five police officers were killed by sniper fire and another six were wounded and taken to the hospital. There was a manhunt. Three suspects were taken into custody and a fourth was found dead - apparently by a self-inflicted gun wound. These men will be placed in the Dallas County Jail. They will be charged with capital murder. Prosecutors will ask that the judge deny them bond - and the judge will acquiesce. They will sit in jail until their cases are disposed of.

In Baton Rouge, Louisiana and just outside St. Paul, Minnesota, police officers murdered black men. In Baton Rouge officers tased and tackled Alton Sterling before shooting him multiple times in the chest and back. In Falcon Heights, Minnesota, Philando Castile was pulled over for having a cracked tail light. After Mr. Castile told the officer he was licensed to carry a gun and was carrying a gun, the officer opened fire and murdered Mr. Castile in front of his girlfriend and his 4-year-old daughter.

Are the police officers in jail? Are they facing charges?

No.

They are all on paid administrative leave.

There is no justice. If you kill a police officer the entire weight of the criminal (in)justice system will come down on you; but, if you are a police officer and you kill a black man, you go on vacation.

And you wonder why this shit continues.

More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.