Monday, December 31, 2018

Think long and hard about that second drink

Beginning yesterday, the State of Utah has enacted the strictest drunk driving laws in the country. From this day forward, anyone who causes the death of another by operating their car in a negligent manner with a blood alcohol concentration of .05 or higher will be charged with felony vehicular manslaughter.

Now I'm not going to sit here and tell you that it's okay to get drunk and go driving around town. I think that is something that we can all agree is a bad thing to do. But I do think we need to think of the consequences of lowering BAC levels and ramping up punishments.

If we look at things in a vacuum then we know that someone with any alcohol in their system is going to be impaired to one degree or another. But then we need to look at some other factors. What about the person talking on their cell phone or texting or tweeting or fiddling with the radio or talking with a passenger? What about that driver who is driving on very little sleep and is having trouble keeping their eyes open?

Distracted driving is far more prevalent that drunk driving in this country. And we see it every day on the highway or on the streets.

An alcohol concentration of .05 can be achieved by as little as two glasses or wine or two drinks with dinner. For most folks that's not even enough to get a buzz. Do you really want to move toward lowering the legal limit to that range?

Think of the number of folks you see running red lights, driving too fast, moving in and out of lanes, swerving and driving the wrong way during daylight hours. Do you really believe that each and every one of those folks are intoxicated?  But if those folks cause a fatality accident, they won't be subject to nearly the harsh punishment that a person who had two glasses of wine in his system would be.

And that just isn't right. It's an example of politicians picking the low-hanging fruit while looking for an issue to run on. Not everyone lives in a major city with public transportation options or Uber or the like. Not everyone reacts to alcohol in the same manner. We all know folks who are done for the evening after their second drink. But should everyone be judged on the same scale?

Finally, do we really need to look for new ways to charge folks with felony offenses? Are we trying to put more folks under government supervision?

The current batch of pseudo-scientific roadside exercises were devised back when the per se limit in most states was .10. NHTSA then declared - without conducting new research that the tests were good at predicting who had a BAC of greater than .08. What's the game now, Utah? If someone passes the tests are you then going to require a test to determine if their BAC is .05 or greater? If so, why even bother using the roadside exercises in the first place?

Yes, there are horrific accidents every day across this country caused by drivers who are well above the legal limit. Those are the cases that appear on the news. It's important to remember, however, that the vast majority of DWI arrests are based on speeding, failing to signal a lane change, weaving and other minor traffic offenses.

Utah's new DWI law is but the latest example of a solution searching for a problem.

Tuesday, December 25, 2018

Merry Christmas

As you listen to this, just remember that the best way to avoid a drunk driving conviction is not to drive if you' ve been drinking. So, if you're out having a good time over the next week, use a designated driver, use Uber, call a cab or call a friend.

Monday, December 24, 2018

Something to think about

I know I've mentioned the Small Town Murder podcast on here once or twice over the last year. Did I mention that thanks to a friend of mine, attorneys who attended the live show in Houston this past October received CLE credit from the State Bar? Easiest two hours of credit ever.

The show is a riot to listen to and James does a hell of a job researching the cases they cover. I listened to an episode from a couple of weeks back the other day and heard something I've never heard before on the show.

Generally after they make fun of the small town the case is set in, and the murderer, they cover the appeals process which usually ends with the defendant being sent to prison for a long stretch. Not so with the episode entitled Yes, No, I Don't Know... in Oskaloosa, Kansas. The story contains a twist at the end which you probably won't see coming.


Floyd Bledsoe, who had been convicted of the murder of 14-year-old Camille Arfmann was released from prison after serving 15 years for a murder his brother, Fred Bledsoe, committed. Mr. Bledsoe was released after the Midwest Innocence Project had DNA testing performed on semen found in the victim's body. Testing revealed that Ms. Arfmann had been raped by Fred Bledsoe. Two weeks later, Fred Bledsoe was found dead - his death was ruled a suicide. Fred Bledsoe left three suicide notes including one in which he confessed to the rape and murder of Ms. Arfmann. He claimed he was told to keep his mouth shut by the prosecutor after confessing to the crime.

That revelation brings a somber end to the story that makes you really think about the way our criminal (in)justice system works and what protections we have in place to protect the wrongly accused.

Tuesday, December 18, 2018

What I'm listening to

Keri Blakinger is a reporter with the Houston Chronicle. She is one of the best writers at the paper and has done some very good work with death penalty issues.

Mr. Blakinger is also a convicted felon who spent time in prison on a drug case up in New York. Her story is quite amazing and inspirational. It also gives her a bit more insight when reporting on prison and jail issues.

I urge y'all to listen to Terry Gross' interview with Ms. Blakinger on Fresh Air and to check out her Twitter feed.

Monday, December 17, 2018

Court allows execution to proceed after receiving evidence of prosecutorial misconduct

Last Tuesday night the State of Texas murdered Alvin Braziel - despite the fact prosecutors admitted, hours before the scheduled execution that they had committed prosecutorial misconduct during the trial.

Nevertheless the Court of Criminal Appeals stepped aside and allowed the execution to proceed - once again demonstrating why the men and women who sit on that court are called Judges and not Justices.

Tom D'Amore and George West were the prosecutors who tried the case. Mr. D'Amore contacted Mr. Braziel's attorneys the night before the scheduled execution and told them that Mr. West had deliberately provoked a reaction from the victim's wife by showing her an autopsy picture of her dead husband. When Mr. Braziel asked for a mistrial after her outburst, the court denied the request after Mr. West assured the court that he had not intended for the outburst to occur.

Mr. Braziel's attorneys petitioned the trial court to call off the execution. The court said it would if they were sent a sworn statement from Mr. West. However, even after receiving the sworn statement, the trial court tossed it in the trash and washed its hands of the matter. His attorneys filed a similar request with the Court of Criminal Appeals at 5pm stating that this information only came to them the night before.
"It is axiomatic that a death sentence is irreversible and no one could reasonably believe that it should be carried out with such serious allegations of possible prosecutorial misconduct pending." -- Judge Elsa Alcala
Over dissents from Judges Elsa Alcala and Scott Walker, the Court of Criminal Appeals declared that it didn't care that a mistrial should have been declared and refused to halt the execution.

After he was strapped down to the gurney in the death house, Mr. Braziel apologized to the victim's widow for killing her husband.

This was never a case about mistaken identity or wrongful conviction. Mr. Braziel raped a woman and killed her husband. But when the Court of Criminal Appeals says that it couldn't care less if the state committed prosecutorial misconduct at trial, the Court is saying that it has little interest in guaranteeing a fair trial for those accused of criminal conduct.

It is entirely possible, and very probable, that a second trial would have produced a similar result. In fact I would be surprised if a second jury didn't convict Mr. Braziel and sentence him to death as well.  If the widow's outburst hadn't occurred it's also very likely that the verdict and sentence would have been the same. But, the state shouldn't be given a pass on their conduct just because it's a bad case with bad facts for the defendant.

Monday, December 10, 2018

Execution Watch: 12/11/2018

On Tuesday night, the State of Texas will kill again...

ALVIN BRAZIEL, JR., 43. Mr. Braziel's attorneys said he received sub-par legal assistance at trial, reducing his chances of avoiding the death penalty. Despite the claim, Texas intends to carry out his execution. Mr. Braziel was sentenced to death in the 1993 slaying of a couple in Mesquite. Testing of DNA evidence in 2001 implicated Braziel, who was already in prison for sexual assault of a child. His appellate lawyers said trial attorneys failed to tell the jury about several possible mitigating factors during the punishment phase of the trial. Mr. Brazier contends that had jurors known about his abuse as a child, family history of mental illness and a head injury he suffered as a child, they might have spared his life. The U.S. Supreme Court declined to hear his case in 2016.



Unless a stay is issued, Execution Watch will broadcast live:
Tuesday, December 11, 2018, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Saturday, December 8, 2018

Wanting that second bite at the apple

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

Terance Gamble was a convicted felon, having been convicted of robbery back in 2008.

Seven years later he was pulled over by police for having a faulty headlight. While searching his car, police found marijuana, drug paraphernalia and a gun.

Mr. Gamble was charged under Alabama law with being a felon in possession of a firearm. He pleaded guilty to the charge and was sentenced to a year in prison. He thought that was the end of the matter.

But he was wrong.

For whatever reason, the local US Attorney decided to charge Mr. Gamble with violating a federal statute prohibiting a convicted felon from possession a gun. He argued that the federal charge was a violation of his 5th Amendment protection from being charged with the same crime twice. The courts refused to toss the case because of the doctrine of stare decisis.

You see, there was a long line of precedent finding that a person's 5th Amendment rights weren't violated if he were charged by both state and federal prosecutors for the same offense. Now, to be fair, the elements of a federal crime often differ (if only slightly) from the elements of the state offense. The case that comes to mind is that of the officers charged with beating Rodney King. The officers were found not guilty in state court but they were then charged in federal court with violating Mr. King's civil rights.

The US Supreme Court created the concept we now know as the separate sovereigns doctrine back in the days of slavery. The idea was to prevent states from blocking the return of fugitive slaves. Over the following 170 years, 30 justices have voted to uphold the doctrine, thus creating precedent.

But, and this point cannot be emphasized too much, just because a doctrine has a lineage of precedent behind it, doesn't mean that the doctrine is good or just, or that upholding the doctrine is just. While a certain degree of consistency is needed in our courts, adhering to a policy just because "that's they way it's always been" isn't sufficient justification to adhere to a doctrine created to preserve slavery.

There is no provision in the Constitution that gives the government the right to try a person more than once for the same crime. The separate sovereigns doctrine was created out of thin air by a Court whose duty it was to protect the institution of slavery.

The US Supreme Court heard oral argument on Mr. Gamble's case on Thursday. According to ScotusBlog, Mr. Gamble's attorney, Louis Chaiten, went all-in on "originalism" and focused on 18th and 19th century concerns and reservations about double jeopardy.

But the justices weren't having any of it during oral argument - and although that is not always an indicator of how the decision will go -- it does at least give an idea of the issues the justices will be considering when it comes time to issue a decision. If the questions are any indication, Mr. Gamble is unlikely to get any relief as most of the justices seemed to be concerned with the federal government's ability to prosecute folks - and being able to exert leverage over those caught up in investigations by a special prosecutor.

Justices who are considered liberal defended the doctrine. Justices who are considered conservative defended the doctrine. Justices who are considered "originalists" or "textualist" or whatever other word used to describe their opposition to the concept of a living constitution defended the doctrine.

But the unlikely trio of Ginsburg, Gorsuch and Thomas joined together in questioning the existence of the doctrine - just another reminder that focusing on a narrow range of issues when a person is nominated to sit on the Supreme Court doesn't always predict what a judge will do once he or she is sitting with the Nine in Black.

Wednesday, December 5, 2018

The rigged death penalty jury

One of the most important questions you can ask a prospective juror is whether or not they can consider the entire range of punishment in a case. Lay out a scenario and ask that panelist whether they could even consider the minimum punishment. If they say no, you've got a challenge for cause (at least until the judge intimidates them into recanting their answer and giving the "right" one).

But what if that juror couldn't consider the upper range of punishment in a given case? The prosecutor has the right to challenge that juror for cause -- and the defense attorney damn sure isn't going to try to rehabilitate the juror by urging him to consider the max. That problem is even more apparent in a capital murder case.

In order to sit on a capital murder jury, a prospective juror has to be able to consider imposing the death penalty should the jury convict the defendant. Just think about that for a second.

In order to qualify for the jury, the prospective juror has to assume that the defendant is convicted (meaning all twelve jurors find him guilty) and has to be willing to recommend that the defendant be put to death.

Therefore a person on trial for capital murder is facing a jury that is both predisposed to convict him and to order him murdered by the hand of the state. The jury is rigged against the defendant before the trial even begins.

Where this becomes particularly problematic is the constitutional requirement that a defendant be tried by a jury of his peers. If you live in a rural, bible-thumping area, chances are you would be facing a jury that would only be to happy to put you to death because no one has ever actually read and understood either the Ten Commandments nor the New Testament. But, take a trip to any urban area and you are much more likely to find folks who are opposed to the death penalty for a myriad of reasons.

If you are tried in Harris County, some of your peers may be adamantly opposed to the death penalty in all circumstances, some might be opposed to it except for the most heinous crimes and others may be supporters of state-sponsored murder. But when that jury is picked, the only folks you're going to see are the third group - the ones who are most likely to convict you.

If we really want folks tried by a jury of their peers, then we need to stop striking panelists because they are opposed to the death penalty. We must stop pretending that every community across this state ardently supports the ability of the state to exercise its most coercive power - the power to kill.

The point of our criminal (in)justice system is supposed to be to protect the rights of the accused. That being the case, "justice" doesn't require that the members of the jury in a capital case be "qualified" by their support of the death penalty.

The deck is already stacked against a criminal defendant. The state has the resources and manpower of the police, crime lab personnel and the courts to coerce defendants into pleading guilty. The state has the benefit of judges who will do what they can to rehabilitate jurors for the state in the name of judicial efficiency.

A "qualified" capital jury is just one more tool in the arsenal of the state to bring a defendant to his knees. It is time to change the rules so that a defendant in a capital murder case has the benefit of being tried by a jury of his peers - those who oppose the death penalty as well as those who support it.

Monday, December 3, 2018

Execution Watch: 12/4/2018

On Tuesday night, the death machine rolls on...

JOSEPH GARCIA. Condemned following his conviction in the December 2000 shooting death of an Irving police officer, Garcia and six other men were on the run after escaping from the Connally Unit in Kenedy, Texas. The officer was killed as he responded to a call at a sporting goods store that was being burglarized by the Texas 7.

Mr. Garcia's legal team has requested a 30-day reprieve from Gov. Greg Abbott to investigate claims that the Houston-based compounding pharmacy that allegedly produces the pentobarbital used by the State to kill inmates. A report in BuzzFeed that revealed the Greenpark Compounding Pharmacy (& Gifts) whose license was placed on probation by the state in November 2016 for compounding the wrong drugs for three children who had to be taken to the hospital as a result.



Unless a stay is issued, Execution Watch will broadcast live:
Tuesday, December 4, 2018, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: