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.

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.

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.

*** SPOILER ALERT ***


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.

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.

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.

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.

RADIO SHOW PREVIEW

EXECUTION WATCH

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:

http://executionwatch.org > Listen

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.

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.

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.

RADIO SHOW PREVIEW

EXECUTION WATCH

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:

http://executionwatch.org > Listen

The assault on due process

There is an awful lot not to like about Education Secretary Betty DeVos. She wants to get rid of public education. She caters to the for-profit schools that rip off their students. She is opposed to student loan forgiveness.

But, please, her proposed rule changes to the ways schools handle alleged incidents of sexual assault are a good thing.

Colleges are required under Title IX to foster an environment free from sexual, racial and ethnic discrimination and harassment.The rule change under fire from certain quarters is the requirement that the accused is afforded the right to question the accuser.

Yikes! That's certainly a radical idea, isn't it. Being able to confront your accuser. Seems to me there's something about that right to confrontation in the Sixth Amendment. And, you know, that little matter known as due process.

But should you attempt to defend the proposed rule changes, you will quickly be under attack from the mob. They will tell you that these campus hearings aren't criminal matters and that due process doesn't apply. They will accuse you of perpetuating the myth that men are falsely accused of sexual assault.

While these hearings aren't criminal in nature, they are quasi-criminal and they do carry consequences if the panel, arbitrator or judge finds the accused liable. Students can be expelled, suspended or placed on academic probation. Each of those outcomes is a restriction on the student's liberty. Even if we aren't talking about the accused going to jail or being convicted in a court of law, the accused still faces sanctions. And when one party attempts to limit the freedom of another, the concept of due process comes into play.

We conclude that these cases distill to a set of core principles applicable to cases where the accused student faces a severe penalty and the school's determination turns on the complaining witness's credibility. First, the accused student is entitled to "a process by which the respondent may question, if even indirectly, the complainant." Second, the complaining witness must be before the finder of fact either physically or through videoconference or like technology to enable the finder of fact to assess the complaining witness's credibility in responding to its own questions or those proposed by the accused student. 

-- John Doe v. Claremont McKenna College

I get it. Sexual assault is a frightening thing and having to recount details of an alleged assault can be traumatic for the person making the accusation. But it's not a cakewalk for the accused. There is a lot on the line for both parties.

And if a school tribunal wishes to lower the burden of proof on the accuser, then the accused needs due process more than ever. And if that means the accuser has to answer questions from the accused, or his representative, then so be it. If the problem is having the accused asking the questions, then you must afford the accused the right to representation.

Now I'm not going to get into the veracity of the claims or whether the definition of sexual assault in that environment is too loose. I will say, however, that a good many of these claims result from incidents in which one or both parties consumed alcohol and the presence of alcohol (or other intoxicating substances) can bring both parties' accounts of a situation under scrutiny.

Ultimately the opposition of some to due process results from one subsuming the workings of the law to his or her political theory or ideology. Due process is the manner by which we attempt to bisect those tendencies. Yes, it's harder to prosecute when you have to afford the accused due process, but that's the way it should be when one's liberty interest is at stake.

Those who oppose due process in this environment fear that in the crucible of cross-examination that the narrative they so wish to promote will not hold up.

h/t KC Johnson

A word from the readership

Every once in a while I get a comment from a reader that really makes me sit back and scratch my head. This week I got a comment from a reader known as Rowland who took exception to my characterization of Mississippi in my post Mississippi's Still Burning.

Here is the text of Rowland's comment:

When you find something to satisfy your personal bias, it becomes your reality. I moved to Mississippi from North Carolina within my company more than 10 years ago and find your opinion to be the exception in Mississippi. To stereotype Mississippians based on your cited examples makes you no better than the racists you denounce. Should we now assume all Texans are bigots because of your opinions of Mississippians? 

I guess he took exception to my posting of the voter wearing the shirt adorned with the Confederate flag and a noose and the state's senator who said she wouldn't mind attending a lynching if a certain big money donor invited her.

I didn't even bring up the fact that the state uses the Confederate battle flag in its state flag. Now just what is that all about?

I would assume he thinks these are anomalies.

I think he assumes wrong. Just chew on this for a minute or two. Sen. Cindy Hyde-Smith was first in the election earlier this month with 42% of the vote. A white nationalist (otherwise known as a racist) received 17% of the vote. A run-off will be held next week to decide the race. Mike Espy, an African-American who served in Washington as a representative and Secretary of Agriculture, will seek to become the first Democratic Senator from Mississippi since the 1980's.

So nearly 60% of the votes cast went to a fringe racist candidate or to a senator who's just fine with lynching and voter suppression. That's not just a couple of people as our writer would like for you to think. That, instead, is three out of every five voters in the state.

And then we have these stats from US News and World Report (hardly a bastion of liberal journalism). Mississippi ranks dead last in the US for health care, which includes access to health care, infant mortality rates and health care enrollment. The state ranks 46th in education, 48th in economic development, 49th in opportunity for citizens to improve themselves, and 49th in infrastructure.

The state's incarceration rate is the 4th highest in the nation. There are three times as many blacks in prison in Mississippi as whites, even though blacks make up just a little more than one-third of the state's population.

I will say, I find his use of the word bigot to be quite funny. It's the kind of thing you would expect to hear out of the mouth of a child of white privilege who's upset that the system he grew up under is fading away.

Walking that fine line

On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.

Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.

After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.

In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.

In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself  by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.

Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.

Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.

On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.

The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.

The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.

The case was remanded for a new trial.

But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.

It is sometimes a very fine ledge we walk across.

Execution Watch: 11/14/2018

On Wednesday night, the State of Texas will murder again...

ROBERT RAMOS. The Mexican national, who suffers from mental illness, is to be executed a quarter-century after his conviction. He was found guilty of killing his wife and two youngest children in the Rio Grande Valley in 1992. His attorneys argued that Mr. Ramos was brain-damaged. They also said his execution would violate an international treaty requiring foreign nationals to be told, at the time of arrest, that they may contact their government for legal help.

During the punishment phase of his trial, Mr. Ramos' attorneys didn't cross-examine any of the state's witnesses, offered no evidence of their own and never asked the jury to spare his life.

Over 15 years ago, the World Court found that the United States had violated the rights of 54 death row inmates who were never informed of their right to consult their government for legal help. The World Court determined that each of the inmates deserved to have their cases reviewed. The U.S. Supreme Court, acting under the ideology of American exceptionalism, told the World Court to fuck off and wiped its hands of the matter.

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Wednesday, November 14, 6-7 PM Central Time

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

http://executionwatch.org > Listen

See also:

Blakinger, Keri. "Mexican national scheduled for execution in Texas despite claims of treaty violations," Houston Chronicle (Sept. 1, 2018).

Fine! I'm going to take my ball and go home!

Two juvenile judges in Harris County accounted for one out of every five commitments in the state.  Glenn Devlin and John Phillips, both of whom were voted out of office last week, sent 199 kids, 96% of whom were children of color, to state juvenile detention facilities in 2017.

As much as I'd like to think that the voters' decision to oust them from their seats was related in some way to the wholesale warehousing of poor African-American and Latino youth, I know they were just the "victims" of the blue wave that washed over Harris County.

But (soon-to-be-ex) Judge Devlin upped the ante when he released the majority of juveniles who appeared before him after they answered "No" to his question of whether they would kill anyone if he released them. Now I'm certain that most of the kids in question should have been released to their parents' custody in the first place given Judge Devlin's proclivities, but his actions in court were those of a petulant child who had a toy taken away from him.

And in the civil courthouse, another soon-to-be-former judge, Charley Prine, decided he would go the petty route after being voted out of office. It seems that the judge-elect, Angela Graves-Harrington, in the 246th District Court approached the judge to ask about the transition process. Instead of being graceful in defeat, Judge Prine told her to get out of his courtroom and threatened to charge her with trespassing if she returned. Perhaps someone needs to let Judge Prine know that the courtroom in question doesn't belong to him but belongs, instead, to the residents of Harris County.

These are two examples of the fine jurists Republican voters are lamenting because they lost an election. There are two of the judges who lost their job because voters took the easy way out (according to many soon-to-be-ex Republican officeholders) and cast straight ticket votes. These are two of the fine judges, according to Republicans, who lost their jobs as a consequence of partisan elections.

Needless to say, neither judge had any comment when questioned.

Make of that what you will.

The aftermath

The blue wave hit Harris County (and even our suburban neighbors to the southwest) yesterday. The Democrats swept every county-wide seat, including all of the county civil and criminal benches, the family court benches, the juvenile court benches and every district court bench up for election.

Today should be an interesting day at the courthouse.

Yesterday's results will likely mean an end to the county's lawsuit to fight bail reform. If you'll recall, 14 of the 15 Republican judges were fighting to preserve a system by which poor defendants were coerced into pleading guilty in order to get out of jail. Only Darrell Jordan and Mike Fields, the two African-American judges in the misdemeanor courts, chose the honorable route.

I am sure we will hear quite a bit from a couple of the ousted judges about how much of a revolving door the courts have become since US District Judge Lee Rosenthal issued her ruling. When you hear it, just remember the source.

The judges fighting the lawsuit have cost Harris County over $6 million so far. But, hey, they are all white Republicans and it wasn't their money they were spending.

And, yes, there were some good judges who will be stepping down at the end of the year. But so fucking what? Not one of them was elected because the folks of Harris County thought they were or would be excellent jurists. Not one of them was elected because they presented voters with a vision of how the courts should operate. They took their seats on the bench because they happened to have an R after their name in an election in which the Republican at the top of the ballot won in Harris County.

For every one of these good judges, there was plenty of jetsam and flotsam. As imperfect as our system of selecting judges is in Texas, it certainly beats any of the alternatives. Party affiliations cut down on corruption in the general election because candidates don't have to raise large sums of money (in fact, a judicial candidate doesn't need to spend a dime after winning the primary because he or she will get about the same percentage of the vote as the candidate at the top of the ballot for their party).

I don't think there is anyone who seriously thinks a better system would be to allow the governor to appoint judges who would stand for periodic retention elections.

Good luck to the new judges and may y'all be lamented as good judges done wrong should the pendulum swing back to the right.

Louisiana looks to shed vestige of Jim Crow

In 48 states it takes a unanimous vote from a jury to convict a person accused of committing a criminal act. And, if you think about it, that makes sense given the burden of proof placed upon the state in a criminal trial. Oregon is the only other state that does not require a unanimous verdict -- unless the defendant is charged with murder.

Today in Louisiana, voters will be asked to decide if Louisiana wishes to join the vast majority of states in requiring a unanimous jury vote for a conviction; or if the Pelican State wishes to preserve one of the last overt tools of the Jim Crow era. Louisiana is the only state in which a defendant can be sentenced to life in prison on less than a unanimous verdict.

The so-called "split jury" was written into the Louisiana constitution in 1898 when a constitutional convention was called after the end of Reconstruction.

"It put into place a number of measures in order to — this is a quote from the convention itself — 'to maintain the supremacy of the white race.'"

-- Andrea Armstrong, Professor, Loyola University

The driving force behind the provision was to preserve a system of unpaid labor for white landowners. At the time of the convention, Louisiana had a policy of leasing out convicts for private businesses. The split-jury provision preserved the pool of free labor and made it easier for the state to convict and imprison black men.

The state Attorney General and local prosecutors are opposed to the constitutional amendment because it would make it harder for them to obtain convictions and it would take away some of their leverage when it comes time to plea bargaining. Of course, local prosecutors claim that they just want an efficient criminal (in)justice system and they don't want to have to worry about the time and expense involved in re-trials.

Well, tough shit, Mr. Prosecutor. You are doing your best to defend a system that denies millions of people due process. You are defending a system that is a hold-over from the days of Jim Crow and that was enacted specifically to keep a thumb on black people.

The coalition behind the ballot measure has made for very strange bedfellows with the measure passing the Republican-controlled state legislature with a better than 2/3 majority. George Soros and the Koch brothers have also put their money behind the measure.

If you live in Louisiana and haven't yet voted, please vote Yes on 2.

To what depths will they plunge?

There were a number of things I was thinking of writing about today, but when I saw this flyer in my mailbox there was no way I couldn't write about it.

Stan Stanart is the Harris County Clerk. He is a very inconsequential man. He is nothing more than a hack with an R after his name who was fortunate enough to run in an off-year election in which white republican voters from the suburbs voted en masse because they had a problem with a black man living in the White House.

The front of this mailer reads "EMERGENCY NOTICE." It is designed to look like an official piece of mail - it even has a generic seal with a lone star to hint at the seal of his office.

My favorite line is that democratic turnout has exceeded that of prior years. Let's be honest, there is no way to know that because no one has counted the votes as of yet. While it's a very good bet that the democratic turnout within the city has been high, there is no way to verify that claim (unless ol' Stan's been peeking at the results).

Mr. Stanart tells the old white ladies that voter protections are in danger if he loses the election. He warns that there could be voter fraud, intimidation and lack of transparency if a democrat wins the race for County Clerk.

Now this is where republican candidates such as Mr. Stanart try to spin reality on its head. The only voter intimidation going on in Harris County right now are photo ID requirements that are reminiscent of the poll tax. For instance, his office insists on denying college students the right to vote with their student IDs but folks can use their concealed handgun license as a form of ID to get a ballot.

The ad is misleading. It is designed to stoke fear. And, most importantly, Mr. Stanart is lying.

That is all.

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.