Wednesday, April 25, 2018

Shining a light on judicial abuse

There's just something about putting on that black polyester robe that brings out the worst in some people. Broward County (FL) Judge Merrillee Ehrlich is just the latest example of black robe syndrome.

On April 15, 2018, the target of her ire was Sandra Faye Twiggs, a 59 year-old disabled defendant arrested on a misdemeanor charge. During the arraignment, Judge Ehrlich asked Ms. Twiggs some questions about the charge. When Ms. Twiggs tried to answer, Judge Ehrlich cut her off repeatedly and berated her.

When Ms. Twiggs complained about having problems breathing due to her COPD, Judge Ehrlich wasn't having any of it. And why was her attorney on video and not present in the courtroom? How does one exercise her right to counsel when the attorney isn't in the courtroom with her? Does the absence of attorneys have anything to do with the judge's belief that she can unload on defendants at will?

Ms. Twiggs were released from the county jail two days later on April 17. She died the next day.

Judge Ehrlich has since resigned from the bench without giving a reason why.

Just how out of the ordinary is what happened in that Broward County courtroom? How many defendants are yelled at by judges on a daily basis? How many defendants are treated in a callous manner without regard for their health or other issues?

The only reason we know about Judge Ehrlich's conniption fit is because the proceedings were recorded with a video camera. How much of this goes on across the country in courtrooms where recording equipment is banned?

I've seen judges berate defendants. The judges did so with impunity because they knew there was no record of the way in which they treated those accused of breaking the law. They knew that if it ever came to a head that deference would be shown to the person wearing the polyester robe long before it would ever be afforded to the defendant.

Allowing cameras unfettered access to the courtroom might not be the best idea, however. What about those folks sitting in the courtroom - accused of a crime but presumed innocent under the law? They have a right not to be photographed in the courtroom.

Then we have the open courts provisions in the Texas Constitution. A courtroom is supposed to remain open to the public - notwithstanding attempts by judges and bailiffs to remove those who aren't on the docket from the courtroom every morning and afternoon. Should we place a fixed mount camera in every courtroom focused on the bench and those standing before the court?

However we come down on those questions, it is undeniable that light is the great disinfectant. With the exception of "reality" television, the presence of a camera seems to make everyone behave just a little bit better and pay just a little more attention to social mores.

But for a camera, Judge Ehrlich would be free to continue her reign of abuse.

Tuesday, April 24, 2018

Execution Watch 4/25/2018

On Wednesday night the State of Texas will once again exercise its most coercive power...

ERICK DAVILA. Mr. Davila was ordered put to death after being convicted in the 2008 slayings in Fort Worth of a girl and her grandmother who were shot when he opened fire at a rival gang member whose home was the scene of a child's birthday party. Mr. Davila's appeal was heard by the US Supreme Court. His attorneys objected to the trial judge's instructions to the jury and argued that Mr. Davila did not intentionally kill the victims.

Mr. Davila's trial attorney objected to the judge's instruction to the jury regarding intent. The judge instructed the jury they could convict Mr. Davila if the only difference between what happened and what was intended was that a different person was hurt. The judge should have instructed the jury that the state needed to prove Mr. Davila intended to kill more than one person in order for the jury to convict for capital murder.

On direct appeal, Mr. Davila's appellate lawyer failed to raise the issue of the jury instruction. Mr. Davila argued that his appellate attorney was ineffective. The US Supreme Court, in a 5-4 vote, held that since there is no constitutional right to an attorney for post-conviction relief, Mr. Davila's claim of ineffective assistance was not sufficient "excuse a procedural default."



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, April 25, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Friday, April 20, 2018

Drugged driving in Tornado Alley

I saw a tweet on Twitter yesterday about a six-state initiative to cut down on drugged driving. This weekend in Arkansas, Kansas, Iowa, Missouri and Oklahoma, police will be "cracking" down on drugged driving in an initiative cleverly titled Driving High? Kiss Your License Goodbye.

There's just one little problem. While alcohol mixes with the blood in the lungs which allows the use of a breath test to estimate the amount of alcohol in a person's body, drugs don't.

With alcohol we can trace a curve showing the accumulation of alcohol in a person's body and we can calculate (or, as I prefer, guesstimate) the length of time it will take that person to eliminate the alcohol. We can't do that with drugs. Since marijuana is illegal, there has been no testing to determine accumulation or elimination rates.

Furthermore, with alcohol we can pick a concentration that demarcates the line between being intoxicated and not being intoxicated. We can quibble over the number but there is testing data available that shows the effect of higher levels of alcohol over time. No such luck with drugs.

I think I can visualize how this initiative is going to work. The police will conduct a traffic stop on anyone committing a minor traffic (or equipment) violation after hours. If the person has the odor of an alcoholic beverage on their breath it will become a DWI stop, complete with roadside sobriety tests and breath or blood tests at the scene or at the station. If the person doesn't have the odor of an alcoholic beverage on their breath it will become a drugged driving stop since there can't possibly be any other reason a motorist might be speeding, not using a turn signal or driving with a burned out tail light.

Those accused and arrested for drugged driving will have to wait weeks for the results of blood tests to come back. Prosecutors will then argue that the presence of inactive metabolites for any number of drugs are evidence that the motorist was under the influence of drugs at the time of driving. Little thought or consideration will be given to the fact that the inactive metabolites of many drugs find their ways to the body's fatty tissues where they stay, not bothering anyone or anything, for anywhere from three days to a month.

Prosecutors will also argue that the presence of prescription medications indicates the motorist was driving under the influence of drugs, too. Little consideration will be given to the actual concentration of the drug in the body or whether or not that concentration is lesser or greater than a therapeutic dosage. Prosecutors will argue that the presence of alcohol and any prescription medication is a clear sign of intoxication without regard for the actual chemistry of the substances involved.

But, hey, with strong Fourth Amendment protections and judges who take seriously their gatekeeper role when it comes to scientific evidence, there's nothing to worry about this weekend in Tornado Alley, is there?

h/t Marine Glisovic and Shane Ethridge

Thursday, April 19, 2018

Judge sounds off on putting the brakes on the death penalty

Mike Fields, the presiding judge of Harris County's Criminal Court at Law No. 14, is a very complex character.

I've had disagreements with Judge Fields that I have documented in this blog. We've butted heads a couple of times in the courtroom. But we've also had nice little chats in chambers, on the sidewalk of my old neighborhood and at the bench. Hell, Judge Fields performed the marriage ceremony (in his courtroom) for my current wife and me.

For the longest time, Judge Fields was the only black judge in the misdemeanor courts. That changed when Darrell Jordan was elected to County Criminal Court at Law No. 16. If you remember back a little while, I wrote about Judge Fields backing out of the county's lawsuit to retain its unconstitutional and punitive misdemeanor bail schedule.

Now comes an editorial in the Houston Chronicle in which Judge Fields challenges the wisdom of those who want to speed up the death penalty in Texas.

Just for a moment, however, let’s forget about the exorbitant costs associated with killing a fellow human being. The very idea that a person, innocent of a capital crime, could be caused to sit on death row for any amount of time or, worse, wrongfully killed by our government, is offensive to our fundamental notions of liberty and justice. As celebrated English jurist Sir William Blackstone once said, “It is better that 10 guilty persons escape, than one innocent suffer.” Some of our founding fathers agreed. -- Hon. Mike Fields

In this piece, Judge Fields points out the number of times juries have gotten it wrong (that we are aware of) when it comes to death penalty cases. He also points out the role that the defense bar has played in this process. When no one else is standing up to defend the rights of the accused, it makes it so much easier to stick a needle in someone's arm and worry about whether the jury got it right later. Prosecutors have an ethical duty to see that justice is done - yet most district attorneys will fight tooth and nail to prevent an exoneration. In the mind of the prosecutor it is far more important to preserve the illusion that our criminal (in)justice system gets it right than it is to prevent an innocent man from being murdered by the hand of the state.

I've said it before and I will say it again multiple times before I die that our adversarial trial system isn't designed to determine the truth, it's designed to see which of two competing versions of reality a jury is willing to buy. And if we grease the wheels of the death penalty machine any more then we are going all-in on that notion.

Wednesday, April 18, 2018

There once was a lab analyst...

Oh the fun and games over at the Harris County Institute for Forensic Sciences never seem to stop. Last week a lab analyst was fired for not following proper lab procedure when testing a substance to determine if it was marijuana.

A lab analyst is supposed to perform both a chemical analysis as well as a microscopic analysis. Only after both tests have been run can the analyst record a positive result.

The analyst was discovered after the lab manager viewed high-resolution video of the analyst testing the substance.

It doesn't matter that when another analyst performed a microscopic analysis that the substance was found to be marijuana. The fired analyst "dry-labbed" the results which brings into question the results of any test performed by that analyst.

This episode points out (yet again) the difference between science and "forensic science."

Science is interested in answering the questions what? why? and how? A scientist observes a phenomenon and comes up with a hypothesis that answers one of the questions. The scientist then conducts experiments with the goal of disproving the hypothesis. If the experiments don't disprove the hypothesis then we may have a new theory. If the experiments disprove the hypothesis, then it's back to square one.

Science is replete with failures. In fact, it is through failures that we learn. Failures cause us to rethink our theories and to come up with new experiments. It's precisely because the failure rate is so high that scientific successes are celebrated as much as they are.

"Forensic science," on the other hand, isn't interested in discovering anything. The sole interest of the forensic scientist is to produce evidence that can be used by the state (or sometimes the defense) at trial. The junk science fields of dental recognition, tool mark analysis and bullet composition analysis, among others, came about because law enforcement needed ways to develop more evidence to support their arrest decisions.

They were allowed to proliferate because judges, who, for the most part, were not schooled in hard science, were appointed gatekeepers of scientific evidence. As a gatekeeper, the judge's role was to determine whether the offered scientific evidence should be admitted at trial. Unfortunately, most judges decided to let it all in and leave it up to the jury to determine what was junk and what wasn't.

The irony, of course, is that judges in civil matters, where money is at stake, tend to be much more strict in their decisions to allow, or disallow, scientific evidence to be presented than they are in criminal cases where the defendant's life is at stake. The results of this policy are illustrated by the large number of exonerations we have seen over the past decade or so. Juries across this country sent innocent men to prison (sometimes even death row) based on junk science that judges allowed into evidence.

So long as this divide exists between science and forensic science, we will continue to see more shenanigans in crime labs and more junk science presented to jurors.

Friday, April 13, 2018

Throwing away outs

This has been a busy week and I felt like talking about something other than the law today, so here we go. Last Saturday night I took my girls to go see the Astros play the Padres.  It was a defensive duel through nine innings that ended with the Astrols winning on one of the flukiest plays I've ever seen.

But what I wanted to talk about was what happened when the Padres were at bat in the top of the 5th innining in a scoreless game (played with a DH since it was in Houston). The lead-off hitter for the Padres reached second on a ground-rule double. Not bad - man on second, nobody out. The next batter laid down a bunt and moved the runner to third with one out. The runner on third took off toward home and was caught in a rundown when the third baseman fielded a grounder. The batter advanced to second. So, after a sacrifice and a groundout, San Diego was in the same situation they were in before with a man on second - but now there were two outs. Gerritt Cole struck out the next batter and the Astros were out of the inning.

The following day the Texas Longhorns were hosting the Baylor Bears. Going into the top of the 7th, Texas was leading 3-1. Baylor got the first two batters on base with nobody out. The next batter squared to bunt. He bunted up the third base line and the Longhorn third baseman threw out the lead runner at third. The next batter flew out. Baylor now found themselves in a familiar position - men on first and second, only this time there were two outs. After a wild pitch the Longhorns got the third out and escaped unscathed. Texas went on to win the game and sweep the series.

In both games teams made the decision to attempt to bunt a runner to third with nobody out. And in both instances they traded first and second with nobody out for first and second with two outs.

In both instances the manager were wrong.

As Billy Beane pointed out in Moneyball, outs are precious commodities for a baseball team. You only get 27 of them -- and then only three at a time. Throwing one away and getting nothing for it in return is a bad tactic - especially when we're talking about two games in which DH's were used.

I can understand a manager calling for a pitcher to lay down a bunt to advance a runner since the pitcher is extremely unlikely to get a hit, but when the pitchers aren't batting it makes little or no sense to send a batter into the box for the sole purpose of squaring up and laying down a bunt. In both games, it would have made infinitely more sense to send the batter to the plate to swing away.

Wednesday, April 11, 2018

Making it easier to kill

Ever eager to kill more inmates, the State of Texas has informed Attorney General Jeff Sessions that it still wishes to "opt-in" to a program that will tighten deadlines and make it harder for those on death row to contest their convictions.

Gov. Abbott wants Texas to qualify for Chapter 154 certification under the Antiterrorism and Effective Death Penalty Act passed in the aftermath of the bombing of the federal building in Oklahoma City. In order to qualify, the state must show that they have provided lawyers considered "good enough" during the state habeas period. If the state can meet that burden then federal habeas deadlines would be tightened.

Of course, as anyone who practices criminal law in Texas - or who keeps an eye on it - knows, local judges are very reluctant to authorize money for investigators, mental health professionals, mitigation specialists or any other experts when it comes to indigent defendants.

Combine that reluctance to spend money with the tradition of exculpatory evidence being withheld from the defense and you get a deadly combination.

According to Gov. Abbott, his concern is with the victims' families who have to endure years of waiting for the condemned to be murdered at the hand of the state. His lackeys have also said that opting in to Chapter 154 would cause federal judge to show more respect to state court decisions and would speed up the federal appeal process.

Oh yeah, and it would also shorten the time appellate attorneys have to sort out the mess left behind by the trial process. It would give them less time to find exculpatory evidence that wasn't handed over during the discovery process. It would give them less time to challenge the junk science that many of the state's "experts" have testified in favor of over the years.

If Texas were operating under Chapter 154 two innocent men, Anthony Graves and Alfred Dewayne Brown, would be six feet under the ground in cheap pine boxes and the public would never know just how badly the criminal (in)justice system failed.

That's really what this is all about. The shorter the window of challenging a conviction you have, the less likely it is that you're going to find what you're looking for. The shorter the window, the fewer exonerations you get. The shorter the window, the easier it is to spread the illusion that the criminal (in)justice system metes out justice equally. The shorter the window, the easier it is to spread the lie that innocent people don't get put to death.

Friday, April 6, 2018

Two cities. Two men. Two very different outcomes.

Cops aren't racists.
Every situation is different.
If you just follow orders, you won't get shot.
White folks get shot, too.

Wednesday afternoon in Brooklyn, police received three separate 911 calls about a man walking down the street pointing a metal object at people. When police arrived at the scene, they saw Saheed who met the description they were given. The man took what the police called a two-handed shooting stance with a metallic object in his hands.

Four officers fired on Mr. Vassell, striking him a total of ten times. None of the officers were wearing body cameras. He died at the hospital.

According to his father, Mr. Vassell was bi-polar and had been "sick " for some time. Other people who knew Mr. Vassell said he was well-known in the neighborhood and didn't bother anyone. One resident told a reporter that all the police officers in the neighborhood knew Mr. Vassell.

The metallic object in Mr. Vassell's hand was a shower head.

The officers never gave Mr. Vassell the opportunity to comply with their orders. They shot and killed another unarmed black man.

A week ago yesterday, in Louisville (KY), police responded to a domestic violence call. As police approached the door, Oscar Walters picked up an air rifle and pointed it at officers. Then he fired it, shattering the glass in the front door. After fleeing the house, Mr. Walters resisted arrest and refused to obey orders from the police.

Officers eventually tackled Mr. Walters, though one officer suffered a fractured wrist, arrested him and took him to jail.

Need I even point out that Mr. Walters was white?

Saheed Vassell was shot and killed for pointing a pipe at people on the street. The police never attempted to subdue him - and they never attempted to determine what he was holding in his hand. Mr. Walters shot at police, ran from them, resisted arrest - but is still alive.

Stephon Clark was standing in his backyard holding his cellphone when he was shot and killed by multiple bullets fired by police officers. Nikolas Cruz shot and killed 17 students in Parkland (FL) but was taken out alive.

The tangents running through these cases is clear and the longer we try to ignore it, the more killings we condone. It's very telling that NFL owners and wingnuts are more concerned with a man kneeling during the national anthem than they are at the scores of unarmed black men shot down by the police.

For all the pontificating by the right over the sanitized version of Martin Luther King, Jr. we are taught in school, his work was left undone when he was struck down by a sniper's rifle on April 4, 1968. We still live in a divided society with little sign it will change anytime soon.

Wednesday, April 4, 2018

A misconception of justice

One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.

Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.

And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.

If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.

The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.

MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.

Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).

It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.

I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.

Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.

When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.

That's not justice. It's retaliation.

Monday, April 2, 2018

Play ball!

In 1994, Antwinica Bridgeman disappeared after attending a party for her 20th birthday. Her body was found two weeks later by Nevest Colemen in the abandoned basement of the where he lived with his family. His mother called the police.

The police focused in on Mr. Coleman, a groundkeeper for the Chicago White Sox, and Darryl Fulton. There was no physical evidence linking either to the crime.

Both men eventually confessed after being questioned by police detectives with a history of allegations of misconduct and coerced confessions. Both men later recanted.

Despite the lack of physical evidence, the men were convicted in 1997 of raping and killing Ms. Bridgeman and were both sentenced to life in prison. Prosecutors sought the death penalty for Mr. Coleman, despite him having no criminal record. After a parade of character witnesses, including some from the White Sox, the jury declined to recommend execution.

On Monday, Mr. Coleman returned to his job as a groundskeeper at what is now called Guaranteed Rate Field on Chicago's South Side. He and Mr. Fulton were exonerated last November after DNA testing revealed the semen from a serial rapist on Ms. Bridgeman's underwear.

The exonerations are just two out of more than 160 from Cook County alone - a number that dwarfs most states.

Why wasn't the DNA tested back in 1997? Was it a decision by the defense not to have it tested or was it the prosecutor's decision? I don't know. If the defense chose not to have it tested, that would have been a justifiable decision attempting to maintain reasonable doubt. If the choice not to test was the state's, then there is little or no justification for it.

Whichever the case may be, once the DNA was tested two more names were added to the long list of men and women who have served decades behind bars for crimes they didn't commit.

We are kidding ourselves if we think our jury system is the best method to determine the truth of what really happened. The courtroom isn't so much the crucible for determining the truth as it is a theater of the absurd. Countless times juries have found people guilty on little or no evidence because they thought the prosecution had proven its case beyond a reasonable doubt only to find out that they were wrong. Regardless of how many times a prospective juror tells you they can presume your client innocent unless proven otherwise, their real attitude is that your client wouldn't be sitting next to you if he hadn't done something wrong. Add that to the courts and prosecutors telling jurors what beyond a reasonable doubt isn't (which serves to lower the state's burden of proof) and you have a recipe for false convictions.

And then there's the death penalty. Prosecutors sought it against Mr. Coleman. In an era in which the scab has been pulled off the criminal (in)justice system, it never ceases to amaze me how many folks still argue in favor of capital punishment. Ironically enough, a great many of those folks also fall into the camp of never believing what the government tells them.

Innocent people have been executed and innocent people have lost decades of their lives in prison because twelve people sitting in a box either failed to do their legal duty or just got it wrong. Mr. Coleman lost both of his parents while he was locked up for a crime he didn't commit and he missed watching his own children grow up. Nothing can ever make up for his losses.

h/t Dan Wetzel