Sunday, December 24, 2017

Merry Christmas from the Bexar County Sheriff's Office

Kameron Prescott was a 6-year-old who lived in a trailer park in Shertz, Texas (just outside San Antonio). I use the word was because on the Friday before Christmas, deputies with the Bexar County Sheriff's Office killed Kameron while shooting en masse at a woman who was a suspect in a car theft.

Earlier in the day officers confronted the woman who was hidden in a closet. Supposedly she pointed a gun at officers and escaped their grasp. Officers conducted a manhunt and tracked the woman to the trailer park.

They opened fire with pistols and rifles when she attempted to break into the trailer in which Kameron lived. The woman was killed - but at least one bullet passed through the outer wall and struck Kameron in the abdomen. Kameron was declared dead after being taken to a hospital.

No gun was recovered from the woman who was the target of the officers' ire.

This incident brings a number of questions to mind. First, why were multiple officers opening fire at a woman in a residential area? Second, why were they firing at a person who had done nothing threatening at that point to police? Third, did no one ever stop to think that a stray bullet could penetrate the outer shell of a mobile home?

Of course the apologists for law enforcement will point out that the woman in question had pulled a gun on police earlier in the day. They will talk about how hard it is to be a cop and how they have to make split-second decisions and that it's not fair to second-guess their decisions.

To which I say - bullshit.

If white folks were being gunned down by police at the rate at which people of color are in this country, there would be riots in the streets of every suburb in America. It's because most people living in their little bubbles don't give a fuck if the police kill a person of color.

They may pipe up about what a tragedy it is that a young boy was killed but they won't think twice about the police shooting and killing a person who was suspected - but never convicted - of a criminal offense. They won't even think twice about the fact that car theft is a non-capital crime. They'll just spout off about how she brought it on herself by not co-operating with the police. Like that somehow justifies murder.

The next time you see a car with a sticker that says "Blue Lives Matter" or "Cops Lives Matter" take a look at the hue of the person driving the car. Those stickers are the "polite" way of saying that the person driving the car thinks it's okay for the police to kill people of color.

They might not be pulling the trigger, but they certainly don't have a problem with it. They are the same people who rail on constantly about what a bad person Colin Kaepernick is for protesting police violence during the playing of the anthem at NFL games. But race has nothing to do with that, does it now?

Meanwhile, no one will be charged with manslaughter or arrested. They might have a little paid vacation to "cool" down.

Kameron Prescott's family isn't so lucky. Nothing will ever fill the void caused by the acts of these officers. Thoughts and prayers will be nothing but an empty gesture made by a bunch of folks who want to appear to care.

This slaughter of innocents must come to an end.

Here is a link to the family's GoFundMe page to raise money for funeral expenses.

Saturday, December 23, 2017

You couldn't screw it up this bad if you tried (or could you?)

I have very mixed emotions about the dumpster fire that has become the Cliven Bundy trial. This week, US District Judge Gloria Navarro declared a mistrial after finding that government prosecutors had withheld potentially exculpatory evidence from defense attorneys. She will decide in February whether the government's case should be dismissed with prejudice.

Mr. Bundy and his band of merry men became famous when they resisted the government's effort to collect grazing fees back in 2014. For more than 20 years Mr. Bundy had been grazing his cattle on federal land in Nevada without paying grazing fees.

After an armed stand-off (sound familiar), government agents left with their tails between their legs and no money in their wallets. Los federales made no other attempts to collect the money owed to taxpayers.

Emboldened by his success, Mr. Bundy and his band of merrier men decided that Oregon would be the next front in his battle against the government. Mr. Bundy's group carried out a 41-day long armed occupation of the Malheur National Wildlife Refuge in support of Oregon ranchers sentenced to jail for setting fires on federal lands.

Now, before I go any further, it's time for a little digression. During the occupation, federal agents treated the Bundys with kid gloves. I shudder to think what the government's reaction would have been had the occupiers been black or brown or any color other than white.

Despite video evidence, e-mail messages, photos and Facebook posts, the government's case has crumbled because prosecutors failed to turn over surveillance footage, threat assessments and FBI reports - after first denying they ever existed. Even more disturbing is the admission (again, after initial denials) that prosecutors had recordings of another defendant's jailhouse conversations with his attorney.

Of course, for those of who work in the criminal (in)justice system, none of these revelations are all that surprising. What's generally more surprising is them coming to light.

As much as I hate to see armed wingnuts like Cliven Bundy and his bank of merry men running around free, I cannot stand by and try to justify the government's failure to disclose potentially exculpatory evidence to the defense. And that paints it just a little too sterile as prosecutors lied and misrepresented the truth to the Court. That's not a failure to disclose, that's a freaking ethics violation.

I don't think that Judge Navarro has any other choice but to dismiss the case outright next year due to prosecutorial misconduct.

The only question I'm left with is whether or not the government torpedoed its own case because it didn't want to make martyrs of the Bundys.

Friday, December 22, 2017

Just let the taxpayers pick up the tab

What a gig being a congressman must be. You can ogle, tickle, grope and otherwise sexually harass your staff and not pay a dime for it.

In fact, you can just hand the bill to the US taxpayers and they'll take care of it for you.

Although Blake Farenthold (R-Texas) continues to deny Lauren Greene's allegations of sexual harassment, he used money from an Office of Compliance account to pay an $84,000 settlement in the matter. Those funds came from taxpayers.

And lest you think I am unfairly singling out Mr. Farenthold for stealing taxpayer money to pay for his contemptible behavior, the Office of Compliance has paid out $199,000 to settle four sexual harassment matters since 2008.

The rules and requirements of the Office of Compliance have come under scrutiny after a handful sexual harassment complaints have been publicly lodged against congressmen, forcing some to resign and others not to seek reelection. The lack of transparency in the formal process has raised concerns over the ability of congressmen to quietly settle complaints without any real consequences. What we do know is: “the Treasury fund, which was created under the Congressional Accountability Act of 1995, has paid more than $17 million for 264 settlements and awards involving offices on Capitol Hill,” according to the [Washington] Post.

This is just another incident that highlights the bubble that members of Congress live and work in. Rarely are there any consequences for their behavior or actions that can't be hushed up and kept out of the public sphere.

Don't let the door smack you in the ass on your way out, Blake.

Friday, December 15, 2017

I vaguely remember something about motions and lemons from law school

Matthew Spencer Petersen was nominated by President Trump to be a federal district judge for the District of Columbia. He is currently the head of the Federal Election Committee, having been nominated for that post by President George W. Bush.

Prior to serving as head of the FEC, Mr. Petersen served as the Republican chief counsel to the Senate Committee on Rules and Administration. Prior to that he served as counsel for the Committee on House Administration. From 1999 until 2002 he practiced election and campaign finance law at Wiley Rein LLP in D.C.

It is interesting to note that Mr. Petersen has never tried a case before a jury. He has never tried a case to a verdict. He has never argued a motion in court. But that's not even the best part.

This week he was one of five nominees to go before the Senate Judiciary Committee for hearings on their nominations. Each senator was given a grand total of five minutes to ask the nominees questions on their qualifications to serve on the federal bench.

Senator John Kennedy (R-La.) made the most of his time. He asked Mr. Petersen a series of fairly innocuous questions about legal procedure that a judge would be expected to know. The result was, on the one hand, hilarious as a lawyer nominated for a judgeship tells a senator that he knows next to nothing about the law. On the other hand, it is quite disturbing to think that people who are as unqualified as Mr. Petersen could sit as a judge for life making decisions that affect everyday folks.

Here is the video. Have a great afternoon.

A special shout out to Sen. Sheldon Whitehouse (D.-RI) for posting this video on his Twitter feed.

On its way to the ash heap of history

For the second year in a row, the State of Texas murdered seven inmates. Last year marked the fewest executions in two decades, now that number has been duplicated.

But even though the number of executions has remained low for the past two years, Texas still led the nation in state-sponsored murder, outpacing the four killed in Arkansas. There have been a total of 30 executions across the country in 2017.

A number of factors account for this (encouraging) trend. The first is fewer people are being sentenced to die in Texas. That number has been dropping since Texas jurors were given the option of sentencing a defendant to life in prison without parole.

Legal challenges to the death penalty have also been more successful as the number of scheduled executions wanes. These challenges have ranged from attacks on junk science to the method of execution. Once drug suppliers began to restrict supplies of drugs needed in "lethal cocktails," states have had to draw up new drug protocols which have invited legal attack on Eighth Amendment grounds.

As the number of executions decreases, the population on death row has aged. Some inmates have "cheated" the executioner by dying in prison.

Attitudes toward the death penalty have also changed. Since 1995, support for the death penalty has dropped from 80% to 49%. While most whites support the death penalty, as the non-white share of the population increases, so do dissenting voices.

Bible thumpers, despite being told "thou shalt not kill," overwhelming support the right of the state to kill. And that, somehow, still makes them "pro-life" - whatever the hell that's supposed to mean.

Part of the reason behind this change of attitude has been the number of people sentenced to death who have been exonerated over the past dozen years or so. I think there is a growing realization that our trial process is flawed due to the sheer number of people who have been exonerated after having had a jury decide the state had proven its case beyond a reasonable doubt.

And that realization is what is most likely to kill off the death penalty in this country. The sheer number of exonerees tells us that innocent men have been murdered by the state in the past. And for a country that claims to follow the rule of law, one is too many.

As much as I would love to see the death penalty outlawed across the United States, I don't think that's likely to happen in the foreseeable future. However, I do think that the death penalty will go away on its own accord in my lifetime. It will be done away with by junk science, prosecutorial misconduct, lack of drugs and a growing belief that life without parole is more humane.

Thursday, December 14, 2017

He must have answered an ad on the internet

Call it hypocrisy.

Call it cognitive dissonance.

Call it political opportunism.

Call it whatever you like after Sen. Charles Grassley (R-Iowa) asked the White House to withdraw Brett Talley's nomination to be a U.S. District Judge in Alabama.

And he got his wish as either Mr. Talley or the White House withdrew his name from consideration for the bench.

If you remember, the American Bar Association rated Mr. Talley "unanimously unqualified" for the position after his testimony that he had never set foot in a federal courthouse in his capacity as a lawyer.

Despite the ranking from the A.B.A., the Senate Judiciary Committee, chaired by Sen. Grassley voted 11-9, along party lines, to approve Mr. Talley's nomination and to send it to the Senate for a confirmation vote. Which means that the very man who called on the White House to withdraw the nomination, voted for it in committee.

By the way, both John Cornyn and Ted Cruz voted in favor of the nomination despite the fact that Mr. Talley was not qualified to sit on the bench. But what the hell, boys? He has an R after his name and we need all the R's on the bench we can get, don't we?

Oh, what, pray tell, did Sen. Grassley discover that he didn't already know before voting to approve the nomination?

Was it the fact that he failed to disclose that his wife worked in the Office of the White House Counsel? Was it the fact that he was a ghost hunter? Was it something about his support of the KKK?

I find it hard to believe that in this day and age no one had any knowledge of these matters. I think it was only after they became public that some Republican senators decided they couldn't afford to vote in favor of his confirmation -- even though they voted to approve the nomination.

It is customary in the Senate for the senior senator of the President's party either to submit a name for nomination or to give his consent before a person is nominated. Sen. Richard Shelby, the senior Republican senator from Alabama, announced his opposition to the nomination when the wind started blowing a bit harder. At some point he, too, had to have gone along with the nomination.

While this matter is humorous in a way, it is also quite scary when you stop and realize that he was appointed for a lifetime post. While there are many judges of all political stripes appointed to the federal bench who are well-qualified to sit on the bench, there are some nominees who have no business getting near the inside of a federal courtroom.

Mr. Talley was one of those. Everyone involved in the process by which his name was put forward by the White House should be publicly shamed.

Wednesday, December 13, 2017

What happens when a law prof ventures outside the ivory tower

Over a year ago I wrote about the hornets nest that opened around Judge Aaron Persky in Santa Clara, California. You may recall that he presided over the trial of a Stanford swimmer accused of sexually assaulting an unconscious woman behind a dumpster.

The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.

Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.

As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.

Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?

The answer is he never did.

Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.

As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.

It's that simple.

The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.

It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.

When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.

The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.

Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.

Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.

Friday, December 8, 2017

DA asks Governor to grant clemency

Texas, like many other states in the South, has an unhealthy fascination with the Old Testatment's call for an eye for an eye. Well, to an extent. It's long been the case that an eye for an eye applied mainly to black defendants convicted of murder while white defendants convicted of murdering a black man seemed to escape Biblical wrath more often than not.

Texas even went above and beyond when the felony murder statute made any person involved in a felony offense where a person was murdered subject to being killed by the state.

Back in 1996, Jeff Wood got himself caught up in the maelstrom when he was convicted of murder of a convenience store clerk in Kerrville - even though he was sitting outside in the truck while his friend, Daniel Reneau, shot and killed the clerk.

The prosecutor in that case, Lucy Wilke, asked the jury to sentence Mr. Wood to death for his role in the murder. Now Ms. Wilke is the Kerr County District Attorney and has had a change of heart. So to have the police chief of Kerrville, David Knight, and State District Judge Keith Williams. They all signed a letter to Governor Greg Abbot asking him to grant Mr. Wood clemency and change his sentence to life in prison.

In 2016, Mr. Wood was scheduled to be murdered by the State of Texas. As his execution date approached there was an uproar in the state legislature - from both sides of the aisle - about the scheduled execution. There were also calls to change the law of parties to eliminate the provision allowing a jury to sentence a defendant to death if they thought he should have anticipated that a second felony might flow from the first.

Those efforts failed in the most recent legislative session.

While you might argue that any person who participates in a felony should be culpable for any murder that might occur during the commission of the felony, sticking a needle in the arm of someone who didn't pull the trigger is a bit of a reach.

Regardless of what you might think of Mr. Wood, he is not the person who made the decision to kill the clerk. He didn't intentionally or knowingly cause the death of Kriss Keeran.

Strapping Mr. Wood down on a gurney and pumping poison into his veins isn't going to bring anyone back. It's not going to ease anyone's pain. It will not fill the hole in anyone's life.

It would, instead, make everyone involved complicit in a disproportionate response to an unfortunate incident.

I think the reason that Republican members of the state legislature got behind the effort to halt the execution is they felt that killing a person who didn't pull the trigger would only give more ammunition to the those of us who want to see an end to the death penalty.

All eyes are now on Greg Abbot. But don't expect him to grant clemency. Mr. Abbot is a true believer who thinks it makes him look tough to order an execution carried out.

Wednesday, December 6, 2017

Let them eat cake

Yesterday the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about the baker who refused, on religious grounds, to bake a wedding cake for a same sex couple.

Amy Howe over at SCOTUSblog did an excellent analysis of yesterday's questioning from the Supremes. She believes the court will split (again) 5-4 in favor of the baker but wonders just how narrowly they will craft the opinion. She based her analysis on the change in tone of Justice Kennedy's questions from start to finish.

First, I must point out, once again, that religious belief is still the most popular justification for discrimination. Now I could go on and on quoting portions of the Bible in which Jesus preaches a message of equality and love and brotherhood. But I'm not.

Jack Phillips likes to call himself a christian. But he believes that the holy word gives him the right to discriminate against those whom he doesn't like. The latter day charlatans who preach that homosexuality is a sin worse than any other act like they are quoting the word of god when they launch into their hateful spiel. The only problem is the book they are quoting from has been translated countless times from multiple languages. There's no guarantee that the words they are quoting in 2017 are the same words written in the original texts.

But we digress.

The issue is whether a privately run business has the right to decide whom they wish to provide with services. This is different from the argument in the 1960's that private buses, trains, hotels and restaurants were public carriers. Mr. Phillips claims that forcing him to make a cake for a same sex wedding would somehow violate his right to free speech. I'm not really buying that one because food is not speech. Food is food and food is for eating.

Does requiring him to bake the cake violate his right to freedom of religion? As far as I can tell, no one is telling him what to believe or how to do it. However, would requiring him to bake the cake trample upon his right to the free exercise of his religion? That is a much closer question, I think.

What does it mean to exercise one's religion? Baking and selling cakes is a commercial enterprise, not a religious one. Maybe he says he's spreading the word of god by baking cakes - but is that exercising one's religion?

And what if in exercising that religion a person, or entity, intentionally discriminates against another based upon that person's race, sex, ethnicity, national origin or sexual orientation?

And, as an aside, at what point do we finally acknowledge that religion serves more to divide us than to unite us? White protestant churches were very prominent in the fight to preserve Jim Crow segregation in the South. All of the major protestant denominations split in the 19th century over the question of slavery.

Back in college I took a class on sociology and religion and our professor played for us a recording of an Emo Philips routine that I have looked for off and on for years -- and finally found it.

There are some serious issues that need to be addressed in this case. The Court must decide how much discrimination in private commercial enterprises is acceptable. If the Court decides it is acceptable then the Court must decide whether the enterprise wishing to discriminate must give a reason for its choice. If so, the Court must decide where to draw the line for a legally valid rationale for discrimination. Finally, the Court must decide which groups can be discriminated against for which reasons. It remains to be seen whether the Court will develop a balancing test to determine how large a community has to be in order to permit discrimination.

Regardless of the decision, the law of the land will most likely be determined by the vote of one justice - Anthony Kennedy. Not quite what the Founding Fathers had in mind, I daresay.

Monday, December 4, 2017

Ignorance is disgusting

Last week Donald Trump once again displayed his ignorance about how the criminal (in)justice system works in this country when he tweeted out that the verdict in the trial over Kate Steinle's murder was disgraceful. Attorney General Jeff Sessions opened his mouth and displayed his ignorance when he proclaimed that the murder was the result of San Francisco's status as a sanctuary city for immigrants.

Jose Ines Garcia Zarate was acquitted of the charge of murder in a month-long trial in San Francisco, though he was convicted of being a felon in possession of a firearm.

Now, I don't recall Mr. Trump expressing any outrage at jury verdicts in which police officers were acquitted for killing unarmed an unarmed black man. Quite the opposite, he was quite happy. We can all be angry at a jury for the decision they made but, unless you were in the jury, your view of the case can be quite warped.

Mr. Trump seemed upset that the jury was not told that Mr. Garcia Zarate had crossed the border illegally five times. Well, I've got news for you, Mr. President, such a fact is inadmissible in a murder trial. You see Mr. Garcia Zarate was tried for the specific offenses related to the death of Ms. Steinle and, therefore, the only evidence the jury heard was related to those offenses. You see, Mr. President, in this country (as flawed as our criminal (in)justice system is) we try folks on the evidence related to the crime with which they are charged.

Were the jury to have heard evidence regarding Mr. Garcia Zarate's immigration status they may have made a decision based on something other than the evidence regarding Ms. Steinle's death. They may have been asked to convict a man for murder for no other reason than he wasn't born in this country.

Now that would have been a disgusting verdict.

A jury doesn't hear all the evidence because some of it, sometimes a lot of it, isn't relevant to the case at hand. It is not uncommon for a jury to be excused from the courtroom while the attorneys argue over the admissibility of evidence before the judge. Those reading the newspaper or watching the news (or in attendance) are then made privy to information the jury never heard and will never consider.

The jury that heard the case wasn't trying to make any political statements. Their sole duty was to hear the evidence presented and to make a decision as to whether or not the government had proven their case(s) beyond a reasonable doubt. Just because a jury acquits a person doesn't mean they don't think a crime occurred. It means, instead, that they have more than a reasonable doubt, based on the evidence presented, that the government proved its case.

The jury's job isn't to convict someone - and it isn't to acquit someone. You may think a jury got it wrong, but that is how we decide cases the parties cannot work out on their own. And, in a murder case, sometimes the hardest thing to prove is that the actions of the defendant were intentional. And even though motive is not a required element of a murder case, the absence of a motive can raise reasonable doubt in the mind of a juror.

So, Mr. President, the jury's verdict wasn't disgusting. It was what it was. Using your bully pulpit to try to intimidate future jurors is disgusting.

And as for Mr. Sessions, you took an oath to uphold the Constitution and to seek justice. You're not happy with the verdict. Okay, I get that. However, threatening to file federal charges against Mr. Garcia Zarate is not seeking justice. It is called vindictiveness.