More on the language we use

Had a couple of interesting twitter exchanges this weekend with a couple of acquaintances that got me to thinking a bit.

The first had to do with something labeled identity politics.

At the birth of the republic the only folks who could vote were white men - and in many places you had to be a property owner to get to vote. Blacks won the right to vote after the Civil War - though in many places in the South that right was something honored much more in the breach than in the observance. And even after the passage of the Voting Rights Act states continued to find ways to deny blacks the right to vote.

Women won the right to vote across the country in 1920 with the passage of the 19th Amendment - though, in fairness, women had been voting in some states out west prior to that.

Across this country white men make up the largest share of legislators, governors and congressmen. In many regions that's due to the manipulation of the voting public through gerrymandering and at-large representatives. After the 2010 census, Republican lawmakers across the country set out to redraw district lines to benefit Republican candidates. They also began passing voter ID measures to make it harder for the elderly, the poor and minorities to vote.

And just why did they go to these lengths? Primarily because the old white power structure across this country is crumbling thanks to demographic changes. The only way to fight back against this was to redraw district lines to benefit white suburban and rural voters and to make it harder for those who would typically not vote Republican to vote. This also explains the anti-immigrant rhetoric and calls to restrict immigration from non-white parts of the world.

Yet somehow this is NOT an example of identity politics. That pejorative is only used when discussing folks who don't fall into the conservative white camp. These folks like to tell you that we, as a society, have moved beyond race. But we have yet to move past this social distinction that guided most of the history of this country.

The other had to do with the term "party line."

I make no secrets of my political and philosophical views. I am opposed to the increasing militarization of this country. The military is too big and takes up too much of the federal budget. There is no need for the number of troops and equipment we have stationed around the world. In large measure, the only reason is to ensure the safe passage of oil from one part of the world to another. This subsidy is one of the reasons that the price we pay for gas at the pump doesn't reflect the actual cost of the fuel.

US troops are also based around the world to prevent political movements that oppose the US and its policies from taking power. Post World War II history is littered with accounts of nations that the US has invaded - or organized armed opposition - to overthrow democratically elected leftist governments.

I commented that we were spending too much money on the military. The response accused me of being naive and following the party line.

It was the use of the phase "party line" that got my attention. I find it interesting that anyone who talks about the need for the US to be the world's policeman isn't accused of following the party line. Anyone who advocates the intervention of the US into the internal affairs of another country is never accused of following the party line. Anyone who says that you have to have a big stick in order to carry out diplomacy isn't accused of following the party line.

It's only those of us who challenge those assumptions that are accused of following the party line.

Maybe it's because they can't put together a coherent argument for why the US needs to intervene in the affairs of other countries. Maybe it's because they were brought up believing it was necessary and have never taken the time to research the issue. Maybe it's because they are too lazy to try to put an argument to paper. And maybe it's because they are the ones parroting the party line.

Doing the right thing

Well here's an interesting twist in Harris County's fight against bail reform - Michael Fields, the presiding judge in County Criminal Court at Law No. 14 has withdrawn himself from the appeal. He joins Darrell Jordan, presiding judge in County Criminal Court at Law No. 16, on the sidelines.

According to Judge Fields, his view of the case changed after attending a hearing at the Federal Courthouse this past Tuesday where he had a front row view of the high powered legal team the county criminal judges hired to fight US District Judge Lee Rosenthal's ruling that the Harris County bail system was unconstitutional.

Fields initially opposed the lawsuit, and summed up his initial position as: "This is the way we've always done it. It has to be working OK. What are we doing wrong? We're not bad people."

Thus far Harris County has spent some $5 million defending a system of bail that led to an overcrowded jail and defendants pleading guilty just to get out of jail. Many of those cases were plead out, with the help of court-appointed attorneys, without so much as a cursory investigation of the facts. The only issue in most cases was whether the defendant would get out on time served or have to spend a few more nights in jail.

For those of y'all who plan on voting in the Republican primary, keep in mind that every incumbent (with the exception of Judge Fields) has spent taxpayer money to defend a system that denied any semblance of justice to the accused. The judges are upset because non-violent defendants are being released which makes it a hell of a lot easier to fight a case.

The system under which we labored for so long used a predetermined bail schedule to determine how much a person would have to post to get out of jail. That system didn't take into account a defendant's financial circumstances or factors that would determine the likelihood of his appearing in court. Bail was used as a punitive measure that punished the most vulnerable defendants.

The fact that the judges are fighting back against Judge Rosenthal's order should tell you everything you need to know about their attitude towards the citizen accused. These are judges who are more interested in moving their dockets than they are about justice. And they are using our money to fight for a system that was declared unconstitutional. Just think about that for a second.

Judge Fields and I have butted heads in the past - and I'm sure that if he remains on the bench we will butt heads again at some point in the future - but I'm going to commend him for his decision in this matter. It takes courage to stand up and admit that you were wrong, but that's exactly what Judge Fields has done.

Thank you, Judge, for doing the right thing.

Calls to lower the legal limit to .05

In the latest step in the never-ending quest to criminalize everything, the National Academies of Science, Engineering and Medicine have called to lower the legal limit for alcohol from .08 to .05. According to the Academy, impairment is present at a much lower level than the law accounts for.

The Academy also calls for mandatory ignition interlocks for all offenders for a period of at least 2 years. It also calls for limits on alcohol advertising and availability. The report calls for stricter measures to prevent people under the age of 21 from purchasing alcohol. The report also calls for more DWI courts and, seemingly as a throwaway, sobriety checkpoints.

For years the legal limit in most states in the US was .10. That was reduced to the current .08 during the Reagan years (so much for federalism). When the National Highway Traffic Safety Administration codified the modern standardized field sobriety tests, the science said that .10 was impaired and the battery of tests could help an officer to decide whether or not he thought a driver was over the limit or not.

When the limit was reduced in the 1980's the testing protocol remained the same because there was no new science to back up the new limit. Now we were told that this battery of tests could help an officer determine if a driver's alcohol concentration was above .08. The reduction in the limit amounted to roughly one drink.

Now, I'm not going to argue that drunk driving isn't a problem. I have always told clients, and prospective clients, that the best way to avoid a DWI arrest is not to drink and drive. Roughly a third of accident fatalities are the victims of a drunk driver. However, as anyone who practices criminal law knows, the vast majority of DWI arrests aren't the result of an accident. Most drivers arrested for DWI were speeding, failed to signal a lane change, swerved momentarily into another lane or had some equipment violation such as a burned out taillight or an expired registration sticker.

Lowering the limit from .08 to .05 is the equivalent of two drinks. This means that that third glass of wine could be the difference between sleeping in your own bed and staying at the Grey Bar Hilton on a Friday night.

The current battery of standardized field sobriety tests can't determine the difference between .05 and .08. Are we going to reduce probable cause for a DWI arrest to the smell of alcohol on a driver's breath?

The most troubling recommendation in the report is for the increased use of sobriety checkpoints. I guess the members of the Academy are unfamiliar with the 4th Amendment. Now I realize that the courts in some states have ignored the 4th Amendment and decided that there wasn't any need for probable cause for a search and seizure but thankfully that hasn't happened (yet) in Texas.

Sobriety checkpoints are a direct assault upon the right of the people to be free from unreasonable search and seizure. For every other criminal act, the police must have probable cause (or the nebulous reasonable suspicion) to stop a person. Sobriety checkpoints allow the police to stop folks who haven't done anything to warrant suspicion and arrest them.

And how are they going to function? Does every driver blow into a portable breath tester? Only the ones who have the odor of alcohol on their breath?  And what happens when a driver refuses to blow into the PBT? The results of a PBT aren't admissible in Texas, if someone blows over a certain amount are they immediately cuffed and taken to a testing facility? Are they asked to perform roadside sobriety tests on the spot?

This proposal would only increase the number of folks caught up in our criminal (in)justice system. That means more people being arrested, having to post bond, hiring attorneys and paying assorted legal fees and court costs. It also means more folks having criminal records. And all of this for behavior which is perfectly legal right now.

Reducing the number of drunk drivers on the roadways is a worthy goal. However, before we criminalize behavior that is now legal and subject many more drivers our criminal (in)justice system, there needs to be some science behind the proposal.

Is Harris County deliberately undermining a federal court order?

This past June an order from US District Judge Lee Rosenthal went into effect that drastically altered the way pretrial bonds are handled in Harris County.

In the past if a defendant charged with a misdemeanor couldn't afford to post bond or his family couldn't afford to hire a bondsman, that defendant sat in jail until his case was resolved. This put pressure on defendants to plead their cases even if there was no evidence or even if they were innocent, just to get out of jail.

Judges and prosecutors loved it. It cleared dockets. It meant fewer trials.

In light of Judge Rosenthal's ruling, defendants charged with nonviolent misdemeanors who can't afford to post bond are to be released on personal bonds - that is, on their promise to return to court on a certain date.

Many of these folks were placed on pretrial supervision in which caseworkers do what they can to ensure they return to court when scheduled.

But, according to this article in the Houston Chronicle, many of those who need supervision don't receive it and, subsequently, don't show up for their court dates.

Judges are up in arms because of the number of warrants they have to issue for defendants who miss court. County officials blame Judge Rosenthal for the problem.

Keep in mind that for decades in Harris County the jail was filled to capacity primarily with detainees who hadn't been convicted of anything. The county also fought, tooth and nail, to defend its system that denied the accused their due process rights by confining them absent a showing of guilt and absent a showing that they were a danger to society.

And, in what is most likely a deliberate attempt to undermine Judge Rosenthal's order, Harris County does not place those who most need supervision on pretrial supervision. This policy of neglect almost guarantees that folks are going to fall between the cracks. I suspect the county hopes that this policy will allow them to go back to the old system when they present "evidence" that the public was placed at risk by nonviolent misdemeanor defendants who failed to appear in court.

The judges want to return to the old system so they can move cases off their dockets. Everyone involved in the criminal (in)justice system knows that it's much easier to fight your case when you aren't behind bars. But having folks exercise their constitutional right to a jury trial gums up the works down at the courthouse - especially after Hurricane Harvey.

I know that judicial efficiency is a big deal for those wearing the black robes, but it doesn't - and shouldn't - trump the due process rights of citizens accused of breaking the law.

The language we use

I will never forget my English teacher from 7th grade. She drilled into our heads the evil that is the passive voice. If we wrote a sentence using the passive voice in a paper it came back to us with a F circled at the top.

Writing should convey action, she said. Subjects do things. Things don't just happen.

I got the same lesson when I was on the student newspaper in high school. The passive voice was verboten because it said nothing. If you wrote in the passive voice you were lazy. It took a whole lot more verbiage to say nothing than it did to say something. A news article, or a story, is about someone doing something. That's what we want to read.

But that's no longer the case when it comes to the killing of unarmed black men by the police. Suddenly every journalist throws together as many sentences in the passive voice as possible in order to avoid stating who did what.

 A police officer never kills an unarmed black man. A police officer never shoots someone. Instead we read that an unarmed black man died after being shot. Or that he died as the result of a shooting.

"police kill man" (3 words) or "police tase man to death" (5 words) are exceedingly more efficient than "a person died after police deployed a Taser on the individual" (11 words)––a phraseology that exists solely to obscure the police's responsibility in killing someone.  

-- Adam H. Johnson

That language is used to cover up the truth. It's used to put the blame on the victim instead of the officer who pulled the trigger. And journalists do it all the time. Instead of reporting the facts, they repeat the police account of the incident. Instead of asking difficult questions, they blindly accept the official version. It's cheap and it's lazy.

Then the journalist proceeds to tell us that the victim wasn't a victim but a suspect or defendant or alleged prowler or whatever other words are used to convey that he wasn't a victim of police violence. We are told he had a criminal record - even though the officer who killed him didn't know it at the time he pulled the trigger. We are told he had a criminal record because it makes him less of a victim.

By the use of language, we are told that each of these incidents of police violence are isolated incidents, unfortunate accidents really, in which no one intended for anyone to die. It's like we are supposed to believe that the gun just magically jumped out of the officer's holder and fired itself as the officer looked on in stunned horror as an innocent person was killed. In reality the officer took his gun out of his holster, looked through the sight (or down the barrel) and made the conscious decision to pull the trigger.

But that's an account you will never read in your local paper because that is an account that puts the blame squarely on the person with the gun.

h/t Adam H. Johnson

Can acting in a client's best interest violate the 14th Amendment?

On Wednesday the US Supreme Court heard a case out of Louisiana that raised the question of whether or not a lawyer can tell a jury his client is guilty - over his client's wishes.

Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.

Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.

Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.

At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.

Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.

Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.

“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” - Justice Sonia Sotomayor

At trial Mr. English repeatedly told the jury that Mr. McCoy was guilty of the murders. According to Mr. English, his goal was to get the jury to convict McCoy of the lesser charge of second-degree murder because he suffered from diminished mental capacity, thus sparing his life. Unfortunately for everyone involved, Mr. English was not up on the law in Louisiana (as if this should have surprised anyone). You see, in Louisiana you are only eligible for a diminished capacity defense if you have entered a plea of not guilty by reason of insanity. Oops.

In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.

On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.

But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?

What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.

What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.

I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?

See also:

Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)

Execution Watch: 1/18/2018

Tomorrow night the State of Texas looks to kill again...

ANTHONY SHORE. Condemned following his conviction in the murders of four females in the Houston area over a 9-year period, Shore was scheduled to be executed on October 18, 2017. However, his execution was stayed by a district court judge to allow time to investigate claims that a fellow death row inmate, Larry Swearingen, had tried to persuade Mr. Shore to confess to the crime for which Swearingen was sentenced to death. Swearingen, who was scheduled to be executed in November 2017, also received a stay.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Thursday, January 18, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Whitewashing MLK Day

I got quite the chuckle when I saw a link to a Fox News story in my Twitter feed decrying the "media" for politicizing Martin Luther King day. According to the sages at Fox, today is a day to celebrate national unity, not divisiveness.

That, my friends, is the biggest attempt to whitewash MLK day since national chain stores began running MLK day specials.

King is now revered among some on the right side of the spectrum because he preached non-violence - and because he's now dead. During the 1960's those on the right side of the political spectrum called him a rabble rouser, a Communist and an assortment of names I'm not going to print.

Dr. King's work wasn't about "national unity," it was about black folk in this country getting on equal footing with their oppressors. Dr. King was hated by white folk all around the country and particularly by those in the political establishment in the South.

Those on the right love to quote from Dr. King's Washington Mall speech in which he spoke about young black children and young white children living in a world of equal opportunity. What they never cared for was the struggle for those young black children to get to the same starting line as their white counterparts.

The right also doesn't want to talk about Dr. King's Poor Person Campaign, his work against the Vietnam War and his work with labor organizers in the South. Never forget that King was assassinated the day after speaking to a group of striking sanitation workers in Memphis.

What apparently has Fox all in a tizzy is this cover of The New Yorker magazine that depicts Dr. King also with Colin Kaepernick and Michael Bennett kneeling. Fox would like you to believe that Dr. King was a non-threatening black preacher who spoke in generalities about someday black and white folk being judged on their merits and not the color of their skin.

Fox would like you to forget about the protests. They would like you to forget about firefighters turning water hoses on peaceful protesters. They would like you to forget about police officers turning their dogs loose on peaceful protesters. They would like you to forget about police officers beating peaceful protesters on the Edmund Pettis Bridge. They would like you to forget about the struggle for black folks to vote. They would like you to forget that these events occurred in the 1960's. That's within our lifetime.

Dr. King's life wasn't about national unity. His life was about the struggle for equality. And struggle means protest. It means making those in power feel uncomfortable. It means asking difficult questions. And that's what the whitewashers are trying to hide.

When winning is the only thing

This month's cover story in Slate is about three prosecutors who kept pushing and refusing to give up the fight against men who were proven innocent. The stories and circumstances are all different but the story in each case is equally chilling.

In an adversarial system, both prosecutors and defense attorneys are trying to win their case. The theory (faulty at best) is that through the crucible of a trial, the facts will come out and a jury made up of local citizens will be able to determine whether or not a crime occurred.

Nice in theory - but that's not how it works in real life. In many cases of exoneration there are items with biological material that were never tested. In the end when this evidence was tested the results proved that someone else committed the crime. The items weren't tested in the original proceeding because the defense attorney would be taking a big gamble in having the tests carried out. Let's think about it, we all assume the worse case scenario for our clients. If there is a rag, or a shirt or some other item with blood or other bodily fluid on it, it's often better to hold up that evidence as an example of reasonable doubt. You see, jurors, the state didn't test it because they didn't want to know their theory of the case was wrong. If the defense attorney asks for the items to be tested and they don't exclude her client, now that's a serious problem.

Thanks to our modern day love fest with all things police, and the right-wing "Blue Lives Matter" campaign, jurors come into the courthouse believing that the police are all hard-working servants of the people who are honorable and would never coerce a confession or tamper with evidence. In truth, as we all know, once the police hone in on a suspect, everything they do is geared toward proving that person committed the crime - and if the evidence doesn't fit that model then it never gets mentioned.

As a result, innocent people get convicted. They get convicted of traffic offenses, they get convicted of petty crimes, they get convicted of heinous crimes.

These men and women serve years behind bars. Their lives are destroyed. Their families are torn apart. And then, if they get lucky, when evidence demonstrating their innocence is prevented, the courts and prosecutors continue to fight to keep them behind bars. It's almost as if admitting that a mistake was made would cause the entire system to collapse upon itself.

Of course I prefer to think that it would shine some light on the problems with our criminal (in)justice system. It would be a good thing for jurors to walk into the courthouse a little more skeptical than they are now.

But that's another story for another day.

While prosecutors and defense attorneys fight to win cases, the duty of the attorneys is different. The duty of a criminal defense attorney is to defend his or her client by all means possible. But a prosecutor has a different task. While the prosecutor's goal is to win, because of the power the state has to take away a person's life or liberty, the prosecutor must temper their goal to win with the duty to see that justice is done. And sometimes that duty means having to stand up and say we got it wrong this time.

That is a quality that the prosecutors mentioned in this article did not demonstrate. Their primary concern was to win, justice be damned.

What has Jeff Sessions been smoking?

Why does the US government even care about marijuana? Every state in the country has its own laws regarding hippie lettuce - there is no need for the federal government to be involved.

Hasn't anyone in Washington ever heard of the 10th Amendment? Hasn't anyone learned about the concept of federalism?

Jeff Sessions is just the latest Republican officeholder to cast federalism aside when it doesn't suit his needs. His recent decision to reverse the Obama-era hands-off policy with regard to cannabis shows just how out of touch old, white wingnuts are - and just how hypocritical they are.

Voters in states across the country have decided that the existing chronic laws make little or no sense. There is a growing understanding that the happy grass is more akin to alcohol - a perfectly legal drug - than it is to cocaine and other narcotics. Many local jurisdictions have taken steps to decriminalize the possession of small amounts of weed by offering pretrial diversions or treating the offense like a traffic ticket.

As an aside, part of this change in attitude toward wacky tobacky has to do with the fact that the majority of users are white. And when upper income white folks find themselves inconvenienced in their indulgences, well, that's a problem.

Regardless of one's feelings about bud, I would hope that we could agree that there is no need for los federales to be involved in most drug prosecutions. States have laws governing the use and possession of various narcotics and illegal drugs. There is no need for the federal government to stick its nose in state criminal matters. It makes a whole lot more sense for these cases to be prosecuted in local jurisdictions.

But, as I have pointed out on countless occasions, the familiar conservative call for limited government generally only considers those circumstances when the government has issued regulations for the protection of workers or the environment. Conservatives, by and large, have been fine with the intrusion of the government into matters involving individuals.

One interesting unintended consequence of Mr. Sessions' desire to turn otherwise law-abiding citizens into criminals may be a larger push to not just decriminalize pot, but to legalize it instead. Already 29 states, comprising about 60% of the US population, have legalized marijuana in some form or another. Eight states have legalized the personal possession of grass.

There will be a backlash to Mr. Sessions' attempts to re-impose prohibition on the 420. There are plenty of Republican lawmakers at the state and national level who have come out in opposition to this new direction. Jeff Sessions is fighting a rear-guard action he can't win. He can only hope not to step in it too deeply.

See also: "Jeff Sessions helps the cause of legalizing pot," Chicago Tribune (1/10/18)

School board members acting like petulant children

This is how democracy works in this country.



The Vermillion Parish school board met to determine whether to give the school superintendant a raise. Ms. Deyshia Hargrave had the nerve to question the school board as to why they were giving the superintendant a raise when teachers hadn't had a raise in years.

In the meantime class sizes have increased along with the duties of the teachers.

Instead of answering Ms. Hargrave's questions, the presiding officer of the school board decided to have her removed from the meeting. The officer, who showed himself to be nothing more than a lackey for the administration, roughed up Ms. Hargrave before arresting her on charges of remaining when forbidden and resisting arrest.

School board meetings are supposed to be open to the public. Members of the public in attendance have the right to ask questions and make comments during portions of meeting. Now I understand that many school board members would prefer to make their decisions in private where they are away from the glare of the light and can avoid taking responsibility. But that isn't how it's supposed to work.

The school board in Vermillion Parish - just like many school boards across this country - showed where their priorities were. It's a whole lot easier to raise the superintendant's salary that it is to explain to the public that taxes need to be raised to pay for school improvements and teacher salary increases.

But what happened in Vermillion Parish was uncalled for. Yes, board members who favored the pay increase - and the superintendant himself - certainly didn't want to be questioned about it. They expected everyone in attendance to just go along with the proposal. But when your response to being questioned by not just a member of the public, but your own employee, is to have her dragged out of a meeting and arrested, you have shown yourselves to be incapable of leadership.

This video should be broadcast as part of a civics lesson on how not to govern.

H/T David Begnaud

See also "Louisiana teacher handcuffed forcibly after asking questions at board meeting," The Guardian (1/9/2018)

What will Cliven Bundy do next?

On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.

Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.

And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.

There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.

There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.

As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.

The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.

While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.

The Bundys fell in the former, most of our clients fall in the latter.