A short postscript...

After posting yesterday's entry I went out to the mailbox and found yet another stack of mailers from the Republican party for the judicial races. Each of them exhorted folks to vote for the Republican candidates calling them "exceptionally qualified" or "principled conservatives."

No other reason was given for why anyone should vote for them. The mailers encourage folks just to vote Republican straight down the line.

So I really don't want to hear any whining from anyone about good judges being swept out with the bad this time around. You don't get to have it both ways at the ballot box. You don't get to urge folks to vote straight ticket on the one hand and decry partisan elections on the other.

Enough of the hand-wringing

Oh it's that time of the year. The time for those who see a sweep of local elections to do their hand-wringing about the number of good judges who are about to be booted off the bench just because of their political affiliation.

There is a very strong possibility of a Democratic sweep in Harris County due to the power that Houston holds when the masses are riled up for an election. There were near sweeps in 2008 and 2012 when Obama's presence on the ballot cranked the turnout up in the city. The Republicans swept in the off-year elections when the masses found it hard to give a damn.

Now we have an off-year election in which the masses are hyped thanks to Donald Trump and his daily dose of stupidity and hot air. Off-year elections have tended to favor the party out of power and this year should be no exception.

As y'all know, in Texas we hold partisan elections for judges. It's a pretty lousy system if you stop and think about it, but it's better than the alternatives. Come on, people, do y'all really want the governor appointing judges for what would effectively be life terms since retention elections are the surest bet this side of Alabama and the points?

If we switched to non-partisan races as some have suggested (and this time around it's the Republicans hitching their horses to that wagon), corruption would rule the day as the only folks who would care enough to donate to the races would be attorneys practicing in those courts. At least now with party affiliations judicial candidates don't have to run much of a campaign as the results of each of the judicial races will fall pretty much in line with how Harris County goes on the top of the ballot (and this should be the same in every county throughout the state).

Here's my prediction for what's going to happen next week. Some very qualified and professional judges will lose their jobs. Some folks who have no business on the bench will lose their jobs. Some very qualified attorneys will be elected. Some folks who have no business on the bench will be elected. Guess what? That's what happens every election.

I was speaking with a colleague the other day and she was lamenting the fact that some good judges were going to lose and that it would take a couple of years for the new judges to learn the ropes. That may very well be the case, but if you choose a job in which you rely on the public to re-hire you every four years, that's what happens.

But here's the problem I have with her opinion. There were some very well qualified judges who lost their jobs when the Republicans came to power in Harris County. Not one judge on the bench in Harris County is sitting there because the public thought he or she was a great jurist. They are sitting on that bench because they chose the right election to have an R or a D after their name. Some of these folks went on to become very good judges - and some were terrible judges.

I have no sympathy for any judge running as Republican, whether they be an incumbent or not, because they are running under the banner of a party whose leader (and his devotees) promotes racism, bigotry and discrimination. Their leader has no regard for the truth and blatantly lies whenever it suits him. Their leader has referred to Nazis as good people.

And what have the Republican judicial candidates in Harris County said about their party's leader? Absolutely nothing. They either agree with him or they don't have the guts to stand up to what he promotes. Guess what? You don't get to hangout in the GOP tent for the benefits and then escape the consequences.

So I, for one, will not shed any tears come Wednesday morning.

Is this what it means to inhale?

The mailers from the Republican Party are coming hot and heavy as we approach Election Day. The latest broadside warns of chaos in the courthouse should the Democrats sweep the judicial races.

Once again I must address the warning that folks aren't showing up for their court dates. Blaming that on Democratic judges is more than a bit misleading. Let's see, a lawsuit was filed in Harris County challenging the constitutionality of the bond schedule in the misdemeanor courts. The plaintiff's won the lawsuit and the sitting Republican judges appealed.

As part of that lawsuit, the County was ordered to release any defendant in a non-violent misdemeanor case in which that defendant was not taken before a magistrate for a probable cause determination within 48 hours. That magistrate was also tasked with the job of determining the appropriate bond for the defendant based upon the nature of the offense and the defendant's ability to post bond.

If after seeing the magistrate, Pretrial Services determined that the defendant was a good candidate for pretrial release, they were released. Otherwise they sat behind bars until they posted bond.

The procedure in the felony courts has remained largely unchanged since there tend to be more issues regarding the safety of the community and the seriousness of the alleged offense.

And as to concerns about the punishments meted out, I would remind the folks who put out this bullshit that 15 of the 16 judges on the misdemeanor bench are Republicans. Furthermore, the vast majority of cases are resolved through plea bargains in which the only role of the judge is to decide whether or not to accept the deal. In the last 13 years I have had only one plea deal rejected by the judge.

The other issue on the broadside has to do with damages in civil court. Republicans are worried about Democrats sitting on the civil benches and hearing cases involving monetary damages. Their biggest fear is that Democratic judges will determine what is, and what isn't, a frivolous case.

Well, I guess one's level of concern would be strongly correlated to one's view as to what is and isn't a frivolous matter. Being that state legislatures long ago became entangled in the entrenched interests of industry and banks, it has long been the case that the only path one had to redress injury were the courts. When someone says that Democrats would award too much in damages in frivolous suits, what they are really saying is that those judges would hold corporations and powerful business interests accountable for their actions and the damages they cause.

The other thing that most folks don't know is that, quite often, parties settle cases for an amount that differs from the award in order to achieve finality, collect what they can and to avoid the time and cost of the appeals process.

Marsy's Law will undermine due process

At some point I keep hoping folks will realize that the purpose of the 4th, 5th and 6th Amendments is to protect individuals accused of breaking the law from the long, strong arm of the government. Without these protections, the state would be able to run roughshod over a defendant and beat him into submission.

The purpose of the criminal (in)justice system is to create a forum in which a judge or jury can weigh evidence and determine whether or not the prosecutor proved her case beyond a reasonable doubt. The purpose of the criminal (in)justice system has never been to seek justice (whatever that is) for the victims of a crime. The system isn't equipped to handle such matters.

Other than retribution and possible restitution, if you want relief, you have to go to the civil courthouse and file a tort action.

Marsy's Law is the latest proposed measure promoting so-called "victim's rights" to be put before the public. Voters in Nevada will have the opportunity to vote on it this year.

But, regardless of how nice the proposal might sound to folks who have no connection to the criminal (in)justice system, Marsy's Law is yet another solution to a problem that doesn't exist.

The criminal courtroom has never been about seeking the truth. It has never been about filling the void in a victim's life. It is our means of trying to seek a resolution to a case. The resolution is rarely perfect. The people deciding the case didn't see what happened. They must rely on two attorneys who are telling them two very different stories.

Victim advocacy groups get upset whenever a defendant is freed on what they refer to as a technicality. Of course that "technicality" is a defendant's constitutional right and if that's the reason a person is being freed, then it's the police who fucked up.

The people behind proposals such as Marsy's Law are people who are seeking to undermine the presumption of innocence. They are people who either don't understand exactly what the presumption of innocence or beyond a reasonable doubt are; or they are seeking to reduce the state's burden of proof.

The people behind the movement also don't seem to understand that they aren't a party to the case. They are but witnesses. The prosecutors may very well consult with them and keep them in the loop as to what is happening in the case, but that's the prosecutor's prerogative. As I have mentioned here many times in the past, prosecutors will listen to what a victim wants when it aligns with the prosecutor's goals and they will ignore victims when it doesn't.

Marsy's Law, and other crime victims' bills, seek to attack the very concept of due process in favor of a process that is much more user friendly for them. Of course advocates claim that Marsy's Law will give crime victims "due process"  and the right to a speedy trial. In California, crime victims cannot be compelled to talk with the defendant's attorney about the facts of the case.

In reality, Marsy's Law will accomplish none of that. Due process in a criminal case is, by its very nature, a right reserved exclusively for the accused. The state doesn't have a right to confront witnesses, the state doesn't have the right to remain silent, the state doesn't have any protections under the 4th Amendment. The defendant has the right to a jury trial and the defendant has the right to go to either the judge or jury for punishment.

My colleague Scott Greenfield has long stated that whenever someone proposes a law named after someone (particularly a child), the consequences to the accused and the constitution are never good.

Some Friday fun

Just because:





Here's the abridged version:



This is what makes college football so great -- bands that don't take themselves too seriously. I have seen some wacky halftime shows, but for the sheer insanity of it, my hat's off to Iowa State Marching Band.

Here's a little back room info about the show.

Blowing smoke at the courthouse

Oh, campaign season is all around us. The other day I got a mailer from the Republican Party of Texas promoting Republican judges. I suppose for the ordinary person who hasn't the slightest clue how the criminal (in)justice system works, the mailer might have an effect.

But not really. You see, the results in most judicial races mirrors that of the races at the top of the ballot. There might be a difference of a couple percentage points but, in general, the results are pretty much in line in Harris County.

The mailer tells us that "Republican judges follow the law" and implore folks to "Keep Harris County safe by voting for Republican judges."

Those tag lines are horridly misleading because many judges on the ballot have absolutely nothing to do with criminal law and the average citizen hasn't a clue as to who sits on a civil bench and who sits on a criminal bench.

The mailer states that upwards of 95% of the judges endorsed by police organizations are Republican. I don't doubt that - considering that the Republicans have pretty much owned the county criminal benches for 20 years or more. And many of these judges have track records of being friendly to the state (since too many to count went right from the DA's office to the bench) - they will give the police the benefit of the doubt when it comes to suppression issues.

The mailer also tells us that some criminals have been released from jail (on bond) or have been given probation (through plea bargains made between defense attorneys and prosecutors) and then later committed other crimes.

But, wait a second. Aren't the Republicans supposed to be stingy with the purse strings? Locking up more folks when the jails are already at capacity means building new jails or paying other counties to house folks awaiting trial. How on earth is that being fiscally responsible?

Then, of course, there is this whole matter of the 8th Amendment and the lawsuit challenging the way bonds are set in Harris County. The county has continually lost at every step of the process yet 14 of the 15 Republican judges have continued the fight to defend an unconstitutional system at a cost of several million dollars.

I guess, what the hell, it's not their money so another round of briefs and depositions all around.

So, if you want judges who will continue to spend taxpayer money defending a bad system who use the old bond schedule as a way to coerce pleas from the poor, and if you want judges who are going to spend taxpayer money housing inmates who haven't been convicted of anything, then, yes, by all means, vote for the Republican candidates on the November ballot.

Blaming the victim, Texas style

This is a video that Texas now requires all high school students to view. Its purpose is to "teach" students how to interact with the police.

But, in reality, it serves to give the police any number of excuses when they make the decision to pull their weapon and shoot someone.

And I don't want to hear that constant refrain that being a cop is a hard job. No one was forced to enter law enforcement. Everyone who attended the academy made the decision that's what they wanted to do.

The State of Texas has made the decision to side with the police when it comes to the shooting of unarmed black men. Texas has decided that the blame falls squarely on the victim of police violence because they didn't act in a certain manner. This mindset lets the police off the hook when they turn a situation confrontational. It lets them off the hook when they decide to draw their weapon.

It's the classic game of blame the victim.

Part of the problem is that law enforcement loves to play soldier. Local departments are dressing their officers in uniforms that look like fatigues. They are carrying military-style weapons. Departments are handed surplus military gear like it's candy.

And in this effort to have a War on Drugs - or whatever other evil is the flavor of the month - police officers adopt an "us v. them" attitude. The police are on patrol. The news media refers to ordinary citizens as civilians - so as to differentiate them from the police.

Now don't get me wrong. The police have always been used to enforce the social order. They were the front line defenders of Jim Crow in the South. The images of Bull Connor turning the police dogs on civil rights protesters can never be erased from the mind. The police have been used to bust strikes. They have been used to deny people their right to assemble peaceably and petition the government over their grievances.

I don't think we should be surprised that such a video becomes must-watch propaganda in Texas. There are more than enough wing nuts in the state legislature and Board of Education who love the idea of a police state (while telling their supporters how evil government is). Not surprisingly, the video left out the most important instruction in how to deal with the police -- not being black. Until we can sit down and discuss the racism at the core of policing, nothing will ever change.

Perhaps police officers should have to watch a video to teach them how to interact with people of color.

The intersection of the movement and representation

When we took that oath and received our ticket to play we obligated ourselves to do everything within our power to represent our clients' interests. We agreed to set aside our own political beliefs when representing our clients.

I have represented many a client with whom I couldn't disagree more on questions of political, religious or racial beliefs or feelings. Not once did those disagreements prevent me from standing next to my client and forcing the state to prove its case beyond a reasonable doubt.

I have stood next to clients who have done things I find reprehensible -- but I'll be damned if I going to let my client face the wrath or the court or the state alone.

But not everyone feels that way. NYU Law professor Alina Das was awarded the 2018 Making a Difference Award. She is the co-director of the Immigrant Rights Clinic. She wants to be a "movement" lawyer. She sees the law as one tool of many to be used in the fight for social justice.

On a personal level, I have no problem with her stance. She is getting her hands dirty representing those who need representation the most.

However, when you make the decision to practice law, you make it with the understanding that you don't get to choose your clients. Your clients choose you. And if you expect to make a living in this profession, you have to take your clients as they are.

Ms. Das is a faculty member at a law school. She has the luxury of picking who she represents and what she does with her law degree. Attorneys carrying tremendous debt loads don't have that luxury.

They are also impressionable and naive when they walk in the doors for the first time. Some know what they want to do -- and they don't care who their clients are, so long as the check doesn't bounce. Others are still trying to figure out what they want to do with that degree when they walk out the door after graduating.

When they listen to a law professor talk about being a movement lawyer, do they really understand what that means and how that can be at odds with the profession they have chosen? Do they understand when they step foot in the courtroom that no one gives a damn who they voted for or how they feel about the latest issue of the day? Do they understand that when a client signs on the dotted line and hands over a fee that their loyalty is to that client and not to whatever cause motivates them?

And, as my colleague Scott Greenfield pointed out, what happens when a client's interest and the attorney's political interest collide? Who loses out?

If you're a criminal defense attorney and a supporter of the #MeToo movement, how does that square with the presumption of innocence? What about holding the state to its burden of proof? And if you proclaim that we should always believe the "victims," what about other cases involving testimony from a complaining witness? If you are representing a defendant accused of sexual assault are you going to tell the judge you have no questions when the prosecutor has finished with the complaining witness?

And what of the ACLU? From time immemorial the ACLU represented those who had no voice in First Amendment issues. They defended the indefensible. If a marginalized group was denied a forum that a popular group was able to use, the ACLU stepped in and defended their right to speech and free expression. Now if a group expresses views that align with the right, the ACLU won't even bother to answer the phone. Their legal mission has been subsumed by their political mission.

If you want to be an advocate for a movement or a philosophy, join an organization that works for your particular cause. Be active in politics. Hell, run for office. Work to effect change at city hall, the statehouse or in Washington.

But if you choose to be an attorney, advocate for that person sitting across the desk from you.

Washington Supreme Court strikes down the death penalty

Allen Eugene Gregory was not a very good person. In 1996 he robbed, raped and murdered a woman. Two years later he was investigated for another rape. During that investigation police discovered evidence that tied Mr. Gregory to the robbery, rape and murder.

Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.

He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.

On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.

In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.

In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.

***

In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."

Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.

Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.

The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.

The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.

***

Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.

In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.

Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.

And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.

***

In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.

Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black  and 6.9% were Latino.

For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.

It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.

Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.

The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.

Sid Miller steps right in it (and doesn't even know it)

Sid Miller is the Texas Agriculture Commissioner. The job appears to be primarily about promoting Texas agricultural products as well as slapping stickers adorned with his visage on gas pumps and scales in grocery stores.

Apparently one of the unwritten duties of Ag Commissioner is to promote white nationalist causes on state time.

But before we criticize the man, we should get to know him and his accomplishments in office.

Mr. Miller appointed a man who had his medical license suspended after being convicted of perjury in a case dealing with his marriage to his 15-year-old stepdaughter. His license was later revoked when he failed to report a malpractice claim. In addition, Rick Ray Redalen was not only in charge of a task force on telemedicine --  he was the founder of a company that marketed telemedicine services.

The self-proclaimed fiscal conservative then used taxpayer money to get a shot from John Michael Lonergan, also known as "Dr. Mike," who took up shop in Oklahoma after losing his Ohio medical license. This shot was a so-called "Jesus shot" for chronic pain.

Mr. Miller also billed the taxpayers for a trip to Mississippi so he could compete in a rodeo. And these were in addition to handing out big bonuses for employees who hadn't even had a job evaluation and raising regulatory fees on farmers, ranchers and grocery stores.

This latest incident, though, threatens to overshadow every other idiotic thing this man has done in office. You see, Sid Miller is sponsoring a specialty licence plate to honor Confederate soldiers. The plate would raise money for the Sons of Confederate Veterans.

What the hell are the Sons of Confederate Veterans, you may ask. I was certainly curious. Here's a link to their website and here's what they raise money for:

The SCV Texas Division's continuing mission is to preserve the history and protect the honor and memory of our Confederate Soldier ancestors. But, we need your help.Please consider donating to our Heritage Defense Fund today. Time is of the essence as we see our flags, our monuments, and our historical sights attacked on a daily basis by those that have much more funding and undue influence with local government. 

That's right. Their sole purpose is to maintain the symbols of the Confederacy and to protect the legacy of those who fought to preserve slavery.

Then there is this:

The Texas heroes pictured above like thousands of other citizen-soldiers who fought for the Confederacy personified the best qualities of America. The preservation of liberty and freedom was the motivating factor in the South's decision to fight the Second American Revolution. The tenacity with which Confederate soldiers fought underscored their belief in the rights guaranteed by the Constitution. These attributes are the underpinning of our democratic society and represent the foundation on which this nation was built.

Let's be honest here, the only people whose liberty and freedom mattered where white men. While the group's website states in multiple places that they are not racists and that they oppose bigotry, those statements are completely at odds with the political philosophy of the Confederacy.

Organizations such as this were created and founded during the dying days of Jim Crow when southern states did anything and everything in their power to maintain white supremacy. This group does everything it can to paper over the issue of slavery - which is quite the act of gymnastics considering that the expansion of slavery was at the center of the Civil War.

Sid Miller is yet another example of what happens when folks vote for a candidate simply because he has an R after his name.

His pimping for a license plate to honor the Confederacy reveals just what kind of a person Sid Miller is. No longer are folks hiding their support for white supremacists and racism. The Trump presidency has made it safe for people to be open about their true beliefs. Let's see if any of those college-educated whites who vote Republican in Texas give a fuck.

Of mice and men and executions and intellectual disabilities

Last week the Texas Court of Criminal Appeals stayed the execution of Juan Segundo pending a determination of whether or not his intellectual disability is so severe as to render him unfit for execution.

At the time of Mr. Segundo's trial, Texas used what have become known as the Briseno Factors to determine whether a person who has a borderline IQ score is or is not mentally retarded in the eyes of the law.

To set the stage, the medical community accepts an IQ of 70 as the cut-off for mental retardation. There is a margin of error built into the test so that scores of just below (and just above) 70 may reflect serious intellectual disability.

In order to satisfy the bloodlust of Texans looking to kill as many inmates as possible, the Court of Criminal Appeals decided in the Briseno case that if a person sentenced to death had an IQ of near 70 then the courts could look at some other factors to determine if he or she was mentally competent enough to strap down to a gurney and murder.

The Briseno factors could also be called the "Lennie Test" after the character in the John Steinbeck novel Of Mice and Men. The Texas Court of Criminal Appeals declared that most Texans would agree that Lennie was not a proper candidate for execution. Maybe Texans of a certain age would be able to apply that test but, thanks to home schooling and religious "know-nothingism," I'm not so certain how many of our younger citizens would even understand the reference.

After considering the IQ score, the Court determined that the amorphous concept of "adaptive functioning" would serve as a good criteria. Of course just because a person has adapted to their surroundings doesn't mean they are competent. And then there was the corollary -- what if a person was unable to show adaptive functioning skills? Heaven forbid the State of Texas couldn't stick a needle full of poison up someone's arm in a fit of revenge.

In response to the US Supreme Court's Atkins decision, the Court of Criminal Appeals adopted the following factors to determine whether a defendant was eligible for execution:

1. Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities— think he was mentally retarded at that time, and, if so, act in accordance with that determination? 

2. Has the person formulated plans and carried them through or is his conduct impulsive? 

3. Does his conduct show leadership or does it show that he is led around by others? 

4. Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? 

5. Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? 

6. Can the person hide facts or lie effectively in his own or others’ interests? 

7. Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The problem with this test, per SCOTUS, was that it deviated from standard medical practice and placed the burden of proving intellectual disability on the defendant. In addition, a defendant would have to show that a particular deficit was the result of any other mental condition but was the result of the underlying intellectual disability.

In Moore v. Texas, the US Supreme Court struck down the Briseno  factors due to their inherent subjectivity. Unfortunately for Mr. Moore, however, the Nine in Black said it was okay for Texas to kill him.

Mr. Segundo has been spared the needle, for now, while the State of Texas goes about the business of drawing up new criteria for determining when an intellectual disability makes one ineligible for execution.

Hoop dreams

Christian Dawkins, James Gatto and Merl Code are on trial in federal court in New York for wire fraud and conspiracy. But the real question isn't whether they did or didn't do what they are accused of doing -- because they will admit what they did. The real question is whether there was a crime committed at all.

Dawkins, Gatto and Code are the first three defendants brought to trial in the FBI's investigation into the seedy underbelly of college basketball. The three men are accused of paying players. But who are the victims in this?

On Thursday, Bruce Bowen testified about the offers he received for his son, Bruce II (otherwise known as Tugs) from various schools around the country. He had (monetary) offers from Oklahoma State, DePaul, Creighton and Louisville. He chose the money Louisville was offering him -- or, more precisely, his father chose Louisville.

The feds (and the NCAA) are trying to make out the schools as the victims in this vast conspiracy. The only problem is that the schools are ankle deep in their own shit. It is no secret that schools have orchestrated payments to football and basketball players for decades. Usually the money -- or the "show up" job -- came from boosters which allowed the schools to deny any knowledge of the practice. That worked out well until SMU pissed in the punch bowl and had their football program shut down for lack of institutional control.

Over the years other schools have done things far worse than the boosters at SMU did during the heyday of the Pony Express. But no other school has ever had their football or basketball program shut down. The NCAA saw the damage that caused (SMU has never recovered from the death penalty and will likely never do so), and have let major schools off with slaps on the wrist for behavior that SMU boosters would find shady.

Meanwhile NCAA officials, conference commissioners, head coaches, television executives and casino sports books continue to make money hand over fist from college football and basketball while the players receive a scholarship and a small stipend. Everyone is getting paid except the athletes. But the NCAA doesn't want you to focus on that inconvenient little fact. They bring out their smoke and mirrors to distract your attention.

The NCAA wants you to believe that the principal of amateurism is at the heart of college athletics and that student athletes compete for the thrill of the competition itself. And they will throw the book at any athlete who admits to receiving any payment from a booster. They will suspend him and call him dishonest and a disgrace.

But no one has anything to say about football coaches making over $5 million a year coaching these amateur athletes.

The defense strategy is to admit to everything with regard to paying players. While that may be a violation of NCAA rules, it is not a criminal offense. Who was defrauded? Not the schools - they knew what was going on and they turned a blind eye to it. The job of their compliance officers was to cover up what they could and to create plausible deniability should anyone ever come knocking on their door.

The players weren't defrauded. They got paid. The fans weren't defrauded. They continued to buy tickets and watch games on the tube.

This trial is a waste of time and money. It is an attempt by the NCAA to cover up its own problems and to defend shamateurism.

Killing, just because

How much fun can it possibly be to exact revenge when the target of your wrath hasn't the slightest clue why?

In 1985 Vernon Madison went to his ex-girlfriend's house in Mobile (AL) to pick up his possessions. After he left her house he shot and killed a police officer who was outside providing protection to her. Mr. Madison was convicted of capital murder and sentenced to death. That verdict was overturned due to prosecutorial misconduct.

He was convicted a second time after the retrial. But, once again, the conviction was reversed due to prosecturial misconduct. So the state tried him a third time.

The third time he was convicted (again). The jury recommended life in prison. But, because Alabama law said the jury's verdict on sentencing was only advisory (which raises the question of why even bothering to go to the jury for punishment), he was sentenced to die by the judge.

"This involved the literal execution of a police officer and at some point the state looks forward to being able to obtain the punishment that the trial judge believed was appropriate in this case." -- Alabama Deputy Atty. General Thomas Govan, Jr.

Over the last 30 years Mr. Madison, 68, has been on death row in solitary confinement. During that time he has suffered multiple strokes. He suffers from dementia and part of his brain has been shown to be dead. He is legally blind. He has trouble walking and has slurred speech.

Bryan Stevenson, founder of the Equal Justice Initiative, represents Mr. Madison. According to Mr. Stevenson, Mr. Madison is so delusional he doesn't know what day of the week it is, nor does he know what year it is. He has no memory of the murder for which he was convicted.

Yesterday Mr. Stevenson went before the US Supreme Court asking them to halt Thursday's scheduled execution on the grounds that killing Mr. Madison would constitute cruel and unusual punishment because of his dementia.

Despite his dementia, lower courts have consistently ruled that Mr. Madison was not delusional, nor psychotic, and therefore he could be strapped down to a gurney and killed by the state. Mr. Stevenson argued before the Court that because Mr. Madison's dementia is the result of a brain injury, and that the brain injury has rendered him incapable of producing memories of the murder, executing him would be unconstitutional.

Mr. Stevenson told the Court that, unlike other constitutional provisions such as the 4th and 5th Amendments,which are windows to view a series of actions, the 8th Amendment's prohibition on cruel and unusual punishment provides us with a mirror that reveals something about us.

Alabama's Deputy Attorney General Thomas Govan, Jr. countered with saying the state needed to exact its revenge.

Justice Kennedy tended to be the deciding vote in these types of cases and with him off the bench, the calculus for Mr. Madison is a bit more daunting.

I think it speaks volumes that the state's primary argument in this case is the need to get revenge for a person's past acts. The argument fails to take into consideration what has taken place during the time an inmate has been behind bars. It also fails to take into account the state of the inmate's mind. That state got its revenge by cutting Mr. Madison off from the rest of the world by placing him in solitary confinement for the last three decades.

And what purpose is served by executing a man who has no memory of the crime that landed him on death row? What purpose is served when his brain will not allow him to create any memories? Isn't the point of punishment for the target of the punishment to know why he is being treated the way he is? Outside that knowledge, isn't punishment just another word for torture?

See also:

"US Supreme Court hears case of Alabama death row inmate Vernon Madison" Al.com (10/2/2018)