Whips, chains and Racehorse Haynes

Hey, I've pitched this podcast before - and if you're not listening to it yet, you need to. The current episode of Criminal is about our own Richard "Racehorse" Haynes. The episode contains local attorney, and former President of the Harris County Criminal Lawyers Association, Chris Tritico, recounting some of the more epic stories of Racehorse.

Phoebe Judge is the host and is a wonderful interviewer. She never gets in the way of the story.

Give it a listen.

For more information on the John Hill case, you can read Thomas Thompson's book, Blood and Money.

If you're curious about the T. Cullen Davis case, you can read Gary Cartwright's Blood Will Tell.

Execution Watch: 9/27/18

Tomorrow night the State of Texas will kill for the second time in two days...

DANIEL ACKER. Condemned following his conviction in the slaying of his girlfriend, Marrquetta George, in 2000. The two, who rented a home together, spent an evening at the Bustin' Loose nightclub in Sulphur Springs. After returning home, the couple got into a fight and the girlfriend allegedly left the home. Mr. Acker later took the couple's truck and went looking for her. The victim's body was found on the side of a country road. She had been strangled. Mr. Acker said she died when she jumped from the truck and was accidentally hit.

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Thursday, September 27, 6-7 PM Central Time

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

http://executionwatch.org > Listen

Execution Watch 9/26/18

Tomorrow night the State of Texas will kill again...

TROY CLARK. Sentenced to death after being convicted in the 1998 bathtub drowning of a former roommate. Mr. Clark and his girlfriend, Torygene Bush, were using and selling methamphetamines in Tyler and were worried the woman would report them. Mr. Clark and his girlfriend put the victim's body in a barrel filled with cement mix and hit it in a remote area where it was found by police. Ms. Bush cooperated with authorities, pleaded guilty to murder, and received a 20-year sentence. A search of inmate records indicates she is no longer in custody.

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Wednesday, September 26, 6-7 PM Central Time

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

http://executionwatch.org > Listen

Hardly Solomonic

In 2002, Jeffrey Havard was charged with the killing of a 6-month-old baby. The state alleged it was a clear case of shaken baby syndrome. Mr. Havard insisted he had accidentally dropped the infant.

At trial, Dr. Stephen Hayne testified that Chloe Madison Britt had clearly been shaken to death. He compared the injuries to those one would receive in a car crash or from a fall from a significant height.

If that name sounds familiar it's because he was the subject of Radley Balko's excellent book The Cadaver King and the Country Dentist (click here for my review). Dr. Hayne made his bones in Mississippi by claiming to have performed an obscene number of autopsies and giving police and prosecutors what they needed in order to obtain convictions.

This case was no exception.

Mr. Havard was found guilty and was sentenced to death. However, on Friday, Mr. Havard's motion for new trial was partially granted by Adams County Circuit Judge Forrest Johnson (a former prosecutor also mentioned in Mr. Balko's book). Judge Johnson stated that the evidence presented at the hearing wasn't sufficient for him to question the validity of the jury's verdict but, it caused him to question whether the death sentence was appropriate. As a result, Mr. Havard was removed from death row and a new punishment trial was ordered.

Last year Dr. Hayne had a change of heart. He testified at a hearing on Mr. Havard's motion for new trial and changed his opinion. He now says that the injuries to Chloe that he observed could have been generated from a short fall if the baby fell on its head.

In 2009 the American Academy of Pediatrics recommended that the use of the term shaken baby syndrome be stopped and replaced with the term abusive head trauma. This was in response to a series of studies that discredited the diagnosis.

Renowned pathologist Michael Baden reviewed the evidence and came to the conclusion that the baby's injuries were the result of a fall on her head and not from being shaken to death.

This case raises some important questions, however. While it is good that Mr. Havard's death sentence was vacated because of the testimony at the hearing on the motion for new trial, it is confounding that the original conviction wasn't vacated as well.

The state's chief witness has recanted his original testimony. He changed his theory from the baby being shaken to death to the baby dying of injuries suffered in a fall. Shaking a baby to death is clearly an intentional or knowing act -- that is murder. However, dropping a baby isn't evidence of a deliberate act. If Judge Johnson believes a death sentence is inappropriate, how does he square that with leaving the conviction in place?

It's almost as if the judge is somehow considering the change in Dr. Haynes' testimony as more of a mitigating factor. And that's just plain wrong. When the state's chief medical witness changes his opinion of the cause of death, that casts doubt upon the jury's verdict regarding Mr. Havard's guilt. Take away that medical opinion and you are left without a single witness who can testify that Mr. Havard shook the baby to death.

The only reason I can surmise for Judge Johnson's actions is that he's afraid that other convictions based on the theory of shaken baby syndrome could be placed in jeopardy if Dr. Hayne testified on behalf of the state. Maybe he's right.

But it doesn't fucking matter. Judge Johnson's job was to make a decision in this specific case based upon the evidence presented at a hearing on a motion for new trial. It was not his concern whether any other convictions could be challenged on the same grounds.

Judge Johnson's half-assed ruling just goes to show that he's more interested in politics than he is in justice.

Let's have some smoke with that whitewash

Oh, and you just thought the drama surrounding the killing of Botha Shem Jean by an off-duty Dallas police officer was over. How wrong you were.

In an ongoing attempt to justify the unjustifiable, the Dallas police obtained a search warrant to look for evidence of drugs -- in Mr. Jean's apartment. That's right. Instead of treating Amber Guyger as any other defendant charged with killing someone, the police went to a judge and obtained a search warrant -- signed by a judge -- giving them permission to search Mr. Jean's apartment for drugs. A judge had to read the affidavit and agree that there was probable cause to believe evidence of a crime would be found in Mr. Jean's apartment -- and that said evidence was relevant to the investigation of his murder.

And, of course, once the cops found some marijuana in the apartment, the media were alerted and the stories began popping up around the state that weed had been found in Mr. Jean's apartment.

Now let's step back for just a second here. Any marijuana - or any other illegal items - found in Mr. Jean's apartment are completely irrelevant to the investigation of the killing because Ms. Guyger said the lights were out in the apartment when she entered it and shot and killed Mr. Jean.

She wasn't carrying out a raid. She wasn't executing a search warrant. According to her story she walked into the wrong apartment and shot Mr. Jean thinking he was an intruder in her apartment. Besides, the possession of small amounts of marijuana is a misdemeanor -- it's not a capital offense.

The point in obtaining the warrant was to gather "evidence" that would make Mr. Jean look like a criminal in the public's mind. Suddenly he goes from innocent victim to a black drug user or dealer. Now the cops and prosecutors will point out every time they are asked to comment that illegal drugs were found in Mr. Jean's apartment in an attempt to divert attention away from the facts that an unarmed black man was shot and killed in his own apartment by an off-duty cop.

Such a tactic will also divert the public's attention from the fact that Ms. Guyger was allowed to leave the scene and was free to discard or destroy any evidence of the crime. We will never know if she was under the influence of drugs or alcohol because any evidence of intoxication has already been pissed, sweated and breathed away. I'm sure the cops and the District Attorney would be more than happy if the public would quit paying attention to the ridiculous story Ms. Guyger told investigators and that was subsequently used in the arrest warrant.

No matter what smokescreens the Dallas police erect, never forget that Mr. Jean was in his own apartment minding his own business when a cop entered, barked orders at him and shot him to death.

The only good thing to come from this situation is the public's realization that the police will go to whatever lengths they need in order to cover up for one of their own.

And people still don't understand why Colin Kaepernick knelt.

Whitewashing a police shooting in Dallas

Did y'all hear the one about the off-duty cop who walked into the wrong apartment and then accidentally shot the person who actually lived there? How about the part where she wasn't arrested afterward and was free to go back to her place? And what about the arrest affidavit that was just a retelling of her story?

Hysterical, isn't it?

Amber Guyger is a four-year veteran of the Dallas Police Department. On the evening of September 6 she supposedly returned home to her apartment in the Southside Flats. Somehow she ended up on the wrong floor and inside the apartment of Botham Shem Jean. She claims that she inserted her key (which contained an electronic chip) into the lock of the apartment door but the door was ajar. She entered. When she heard someone she yelled at them to stop and then she fired her gun and killed Mr. Jean.

The story is beyond absurd. How did she end up on the wrong floor? She lived there. She knew what floor she was on when she exited the parking garage. Her claim that the door to Mr. Jean's apartment was ajar doesn't hold any water, either. According to the affidavit, when she pushed open the door the lights in the apartment were off. She claims she turned on the lights after shooting Mr. Jean.

So we are to believe that she got confused, went to the wrong floor and then stuck her key in the door of the wrong apartment. Please. Apartment doors have numbers on them. The apartment was in an interior hallway. She claims the lights in the apartment were out and that she heard someone stirring about. Really? Someone's going to leave their door ajar in the middle of the night and rummage around their own apartment in the dark?

Not buying it, Ms. Guyger.

But at least your buddies on the police force did. They let you go home without slapping cuffs on your wrists and taking you in. They allowed whatever substances were in your body to be eliminated before anyone had a chance to make an official observation. Then they bring in the Texas Rangers for cover who draft an arrest affidavit that is nothing but a rehash of your own bullshit story.

After being taken to jail, Ms. Guyger was able to post a $300,000 bond -- meaning someone had to plop down at least $30,000.

And just why does the arrest warrant mention that they police were looking around Mr. Jean's apartment for narcotics? Is it time to paint the victim of a police shooting as a criminal so that white folk can brush their hands of the matter and go on to their white bread world?

Now just imagine had Ms. Guyger not been a police officer. Would she have been allowed to go home? No, she would have been arrested. They certainly wouldn't have been given two or three days to destroy any incriminating evidence. Would the police ask her for her account of what happened and then use that account in their arrest warrant? No, an investigating officer would have noted the facts and would have drawn his or her own conclusions.

In the end it likely doesn't matter because the DA - or whoever presents the case - will tell a grand jury the "facts" as related by Ms. Guyger and will then nod, wink and tell the grand jury to do what they think is right - which is code for no-bill this fucker as quickly and quietly as possible.

Meanwhile Mr. Jean is dead and his family and friends will be left to mourn a life that was taken without reason and without repercussion.

Just spitballing here

Had a very interesting conversation with a relatively new prosecutor yesterday. We were discussing a case on the trial docket and he was suggesting my client consider a pretrial intervention. I told him I had some questions about the legitimacy of the stop that ended in my client's arrest. He told me he thought the stop was okay and that, should my client be convicted, that she would get a longer sentence than the 12 months she'd be in the pretrial diversion program.

Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.

What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.

Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.

But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?

Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?

I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.

There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.

These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.

Judge finds that City destroyed evidence in jail litigation

Quick. What is the worst thing you can do when you are the defendant in a multi-million dollar lawsuit alleging you held people in jail for longer than 48 hours before letting them see a magistrate?

If you answered "destroy evidence of your violations," you are correct!

US District Judge Kenneth M. Hoyt entered a finding last week that the City of Houston destroyed evidence. The city is fighting a lawsuit that alleges people were subjected to warrantless arrests and held in the city jail for more than 48 hours before being taken before a magistrate to determine whether there was probable cause to hold them.

The evidence in question was wiped from the computer hard drives of top HPD officials.

City officials blame the problem on the bottleneck in the county jail that prevented detainees in the city jail from being transported to the county facility. But, nonetheless, the order from the court told officials that people arrested without a warrant were to be taken before a magistrate within 48 hours or they were to be released.

In issuing his order, Judge Hoyt isn't accusing the city of deliberating destroying evidence in order to gain an advantage at trial, but the order does mean that a jury will receive an instruction that they are to infer that the city deliberately destroyed evidence, that the city knowingly held people for more than 48 hours without seeing a magistrate and that the city acted with deliberate indifference to the fact they were violating people's constitutional rights.

That, my friends, is a killer instruction in a civil case. It's a way of a judge telling the defendant that it might be time to work out a settlement because the verdict could be messy.

There are two things that stick out about this ruling. The first is that it was made in the first place. Anyone who has practiced law knows that evidence gets destroyed, lost or misplaced - and not necessarily by design. The hard part is trying to prove it happened. If you never had the evidence in your hands or you never saw the evidence beforehand, it can be damn near impossible to prove it ever existed.

Generally one finds out about the loss of evidence because someone involved in, or with knowledge of the destruction, comes forward. Sometimes you find out that evidence in your case has been destroyed or lost because of testimony in an unrelated case in which evidence was lost or destroyed.

In this case I would speculate that either someone inside the police department came forward and told someone involved in the lawsuit about wiping the hard drives or someone on the plaintiff's side already had copies of documents that were later destroyed and put two and two together when the city didn't produce the documents during discovery. But, again, I'm just guessing.

The second thing that sticks out about the ruling is just how rare it is for a court to issue such a ruling. If the evidence was destroyed for innocent reasons or if the evidence was just lost, a court will not issue the instruction. In order to issue the instruction the court must find that the party that lost or destroyed the evidence had a legal duty to preserve it, whether the loss or destruction of the evidence breached that duty and whether the breach harmed the other party.

Now it looks like taxpayers are going to be the ones paying for the actions of the police department.

Someone has an awful lot of 'splaining to do about this one.

Money to burn

In its never-ending quest to make prisons as inhospitable as it can (just because it can), the State of Texas spent $7 million fighting a lawsuit over the installation of air conditioning at a prison unit near College Station, Texas. Inmates filed the suit in 2014 arguing that the conditions in the prison during the summer violated the 8th Amendment's prohibition on cruel and unusual punishment.

The inmate suit pointed out that 23 inmates had died of heat stroke since 1998 including 10 who died during a heat wave in 2011.

Currently about 75% of prison housing units in Texas lack air conditioning.

The state wasn't having any of it. An expert hired by the Texas Department of Criminal Justice estimated that it would cost $20 million to install a/c at the prison. After a federal judge told Texas that the conditions were unconstitutional, the cost to install the a/c suddenly fell to a mere $11 million.

Under pressure to settle the case, lest the damages spiral out of control, TDCJ revised its estimate to install a/c down to $4 million. The estimate had come in so low that TDCJ has asked the legislature for more money to install a/c at a unit housing developmentally challenged inmates.

So, to recap, the geniuses running this state spent around $7 million dollars to defend a lawsuit when it only would have cost about $4 million to install the air conditioning system. Why was the state fighting the suit in the first place? Why would you spend almost three times as much to defend a lawsuit as it would cost to do what was asked of you?

This is fiscal responsibility for conservatives in Texas. We would rather spend a shitload of money so we don't set a precedent by doing the right thing. Then, when a loss is damn near guaranteed, we'll concede that we lied from the get go about the cost and we'll do the work.

So, Greg Abbott, what have you to say for yourself? What other uses were there for $11 million?

So, Dan Patrick, what have you to say for yourself? You're the one who's supposed to be the fiscal conservative, yet you set $11 million on fire to prove a point. You were a blowhard when you were the sports anchor at KHOU (and how I wish I could find footage of the time you painted yourself blue for an Oilers playoff game) and you're still a fucking blowhard today.

So, Ken Paxton, what have you to say for yourself? I understand it can be difficult to do your job when you're constantly fending off indictments and ethics charges, but surely a wingnut like yourself can't condone the waste of $11 million.

And, more importantly, why do we have prisons units in this state not equipped with air conditioning? What purpose does that serve? The men and women in these units are still human. They may have done things we find repugnant, but they still deserve to be treated better than animals. Making life as hard as possible for inmates does nothing for them when they are released back into society. But, hey, the inmates don't have a powerful lobby so we'll just make life hell for them until they file a lawsuit against us.

You think we'd know better by now.