Taking a stand

The very existence of public defender offices highlights one of the greatest contradictions in our criminal (in)justice system. We like to put up the facade that our system is fair because everyone, not just those who can afford it, has the right to legal counsel if they are charged with a criminal act.

But not everyone can afford to hire an attorney. So some sort of safety net has to be erected so that those folks have the benefit of legal counsel when facing the almighty power of the state. In some places courts contract out with private attorneys to represent indigent defendants in exchange for a paycheck. In some places judges appoint private attorneys to represent indigent defendants. In some places there is a public defender's office who represents those who cannot afford to hire an attorney.

Of course someone has to foot the bill. And that is usually the county or state. In some places, such as Galveston County, if a defendant is convicted or pleads guilty he or she is charged the reduced fee paid to the attorney by the county.

Here's where the inherent problems a public defender system being. In a criminal prosecution, the government initiates the case against the defendant. The judge, however, is also a government employee who, in places like Texas, faces public scrutiny over his or her decisions (well, that, of course, assumes that the people who vote in judicial races know anything more than what party the candidate is a part of). And, for an indigent defendant, his attorney is also a government employee whose office depends on the government for funding.

In Missouri, Gov. Jay Nixon made the decision to cut funding to the public defender's office. He has repeatedly slashed funding for the office - despite reports that the attorneys are overburdened with their case loads.A 2014 study found that the office needed an additional 270 attorneys just to cover the existing case load. The state spends less than half of the national average in per capita public defense spending. The state ranks 49th of 50.

In a time of budget cutbacks, just who is going to stand up and demand more money for the public defender's office? Who's their constituency? What governor would ever listen to those who advocate for indigent criminal defendants when it comes time for allocating government funds?

But Michael Barrett, the director of the state's public defender office, had an idea. Relying on an obscure Missouri law, Mr. Barrett ordered the governor, an attorney, to represent indigent defendants in Missouri. That took some balls.

We'll have to wait to see if Mr. Nixon actually has to get his hands dirty dealing with the public. But, even if he finds a way to wiggle out of his obligation under the law, the symbolism of Mr. Barrett's actions speaks volumes.

Sending in the stormtroopers to quell dissent

Back on August 9 of this year, Ferguson (MO) police officer Darren Wilson shot and killed Michael Brown, an unarmed black teenager. The killing lit a powder keg of pent-up tensions in the St. Louis suburb. The world witnessed police paramilitary units patrolling the streets of Ferguson in riot gear and firing tear gas cannisters and rubber bullets into crowds.

Now, more than three months later, tensions are once again on the rise in Ferguson as everyone awaits the decision of a St. Louis County grand jury investigating the shooting. The local District Attorney refused to recuse himself and the governor resisted calls for a special prosecutor.

If our history is any guide, the grand jury will choose to no-bill the officer either because the DA made no effort to obtain an indictment or because Mr. Wilson wears a badge. Police officers just don't get indicted unless the evidence is undeniable as to what they did.

In anticipation of a no-bill, Missouri Governor Jay Nixon has declared a state of emergency in St. Louis County. The reason given is the need to preserve law and order and to protect people and property. Of course, if you stop to think about it, sending in the paramilitaries when they are the ones responsible for the unrest in the first place makes absolutely no sense. But that hasn't stopped Gov. Nixon.

Nope. You know the last thing Mr. Nixon and his band of wealthy white supporters want to see is a bunch of black people marching and carrying signs reminding folks that racism and oppression are still alive and well in the Show Me State. His declaration is but an attempt to intimidate people into not exercising their right to seek redress of their grievances. By upping the ante with a bunch of black-clad Stormtroopers carrying the latest gear obtained from the US Defense Department and military contractors, Gov. Nixon has assured us of a confrontation.

Mr. Nixon has done nothing since the night Mr. Brown was murdered to address the concerns of the citizens of Ferguson. He has nothing to address the concerns of African-Americans living elsewhere in the state. He has done nothing to address the issue of police brutality. He has done nothing to address concerns over the militarization of the police.

Police officers are supposed to be members of the community. Their job is to serve and protect those around them. But, when you put riot gear on an officer and give him a helmet and a visor, those he's standing across from become the enemy. It's no longer everyone working together, now it's us against them. These paramilitaries are the last line of defense for the Establishment against those who aren't wealthy and/or white.

Wearing a badge does not give one carte blanche to kill people. Police officers are not above the law, they are subject to the same laws that the rest of us are. Maybe one day we'll realize that.

Just couldn't wait any longer

What is a state intent on killing a prisoner with an untested drug supposed to do? If we're talking about the state of Missouri the answer would seem to be to strap the inmate down, stick a needle in his arm and inject him with a fatal overdose of a sedative before his appeals are exhausted.

On Wednesday night the state of Missouri murdered Herbert Smulls while his appeal was still pending before the U.S. Supreme Court. Mr. Smulls was seeking to force the state to disclose information regarding the compounded drug - and the pharmacy that made the drug - used to kill inmates. Four minutes after the execution, the Supreme Court denied Mr. Smulls' appeal.

A Missouri death row prisoner on the phone to his attorney discussing his appeal was hauled away in the middle of the call and put to death four minutes before the Supreme Court denied his final stay request.

So what's the hurry? If we are so concerned about this false notion of finality and justice, why are we carrying out executions before an inmate's appeals are exhausted? He's on death row. He's not going anywhere.

And it wasn't the first time this has happened. According to Mr. Smulls' attorneys, this is the third straight execution in Missouri in which an inmate has been killed at the hands of the state while an appeal was pending before a court.

What does the state of Missouri have to hide? Executions are carried out in the name of the people. They are carried out with the money provided by taxpayers. The people have a right to know what their government does in their name. The people of Missouri, whether on death row or not, have a right to know what compounded drug is being used to kill in their name. They have a right to know who is being paid with their tax dollars to make the drug. They have a right to know whether or not the drug does what it's supposed to do.

Everything surrounding the death penalty makes a mockery of our criminal (in)justice system. From the qualification of jurors to the jury instructions to the cavalier manner in which appeals are handled, everything is designed to grease the skids so that we can strap one prisoner down after another, stick a needle in their arm and kill them.

Maybe their faces will turn up on milk cartons

Neutral and detached magistrates are looking more and more like an endangered species -- particularly in Missouri, according to this piece in the ABA Journal.

In southwest Missouri law enforcement types have decided to declare open season on motorists' 4th Amendment rights and run No Refusal Weekends at DWI checkpoints. That's right, not only will motorists be subject to being stopped without probable cause, they will be compelled to produce evidence that will be used to prosecute them.

Once again we have the police pontificating about the dangers of drunk driving and that motorists should be aware that it's against the law. Points taken. It is dangerous, and illegal, to get behind the wheel of a car if you're intoxicated. The problem is that everyone of us is different and our bodies process alcohol in different ways. Checkpoints don't prevent folks from breaking the law. All they do is allow the police to cherry pick whomever they wish to stop - absent any evidence of bad driving.

But I digress. The new twist in Missouri is the appearance of prosecutors and judges at these checkpoints. Now the officers can fill in check-the-box formatted search warrant affidavits and have a judge sign them on the spot without ever questioning the need to execute a forced blood draw. The presence of the prosecutors allows the state to have little confabs with the men in black robes before the motorist ever gets to speak with an attorney.

If we're going to be fair, then there should also be court-appointed attorneys or public defenders present to consult with the motorists whom are facing the needle and to argue the merits of a search warrant before the judge. But, of course, we'll never see that because our presence would just gum up the works and might actually cause the police and prosecutors to work to obtain convictions in DWI cases.

It's always so nice to see judges who are willing to prostitute themselves out in order to favor curry with the voters for being so tough on crime. If these judges cared one iota about the Constitution they swore to uphold when they took their oath of office, they wouldn't accept fill-in-the-blank or computer generated "auto-texted" search warrant applications for forcible blood draws. If these judges were interested in being neutral and detached, they would question the officers for the need to strap a motorist down and extract a blood sample for a misdemeanor that's just one step removed from a traffic ticket.

But they don't.

Missouri court voids red light camera law

The Supreme Court of Missouri, in an en banc, decision, effectively voided red light camera tickets issued by any municipality when it ruled that the red light camera ordinance in Springfield violated state law by assigning a "hearing officer" to rule on municipal code violations.

Adolph Belt, a retired traffic officer, challenged a red light camera ticket he received. At his hearing he presented evidence that the yellow lights had been shortened and that this created a more dangerous intersection. He was, nonetheless, found liable and fined $100. Mr. Belt then appealed the case but his appeal was denied when circuit court found it Mr. Belt had no right to a trial de novo on the issue (the law had been written to disallow appeals from the administrative hearing.)

The court expressed its concern over limiting due process protections by classifying the offense as a civil matter, not a criminal matter.

"The administrative system at issue here is created for a violation of a red light ordinance, which typically is considered a moving violation." Missouri v. Belt, No. SC90324 (2010)

The state supreme court (click here for the opinion) found that state law dictates that a judge must hear cases involving municipal code violations - whether that be an associate circuit court judge, a municipal court judge or a county municipal court judge - except for cities with populations of more than 400,000 that are located in more than one county. Therefore, only Kansas City and St. Louis can create a process by which an administrative hearing officer presides over cases involving violations of a municipal code.

While the Transportation Code in Texas does allow such a procedure, I think it is problematic that Texas, like Missouri, has attempted to skirt due process issues by classifying a red light camera ticket as a civil violation rather than a criminal violation. Slighting due process concerns in the name of increasing revenue is just plain wrong.

Missouri seeks to criminalize breath test refusals

Missouri Governor Jay Nixon has decided that the Fourth and Fifth Amendments should not apply to drivers accused of DWI. Gov. Nixon has proposed making it a criminal offense for a motorist to refuse a blood alcohol test. Currently under Missouri law a motorist can have his driver's license suspended for up to a year for refusing a test.

Nevermind that the number of alcohol-related crashes in Missouri fell from 7,780 in 2007 to 7,373 in 2008. Forget that the number of injuries in alcohol-related crashes from from 4,889 in 2007 to 4,511 in 2008. While the number of fatalities in those accidents rose from 243 in 2007 to 262 in 2008, an alcohol-related crash is any crash in which any person involved (drivers or passengers) consumed alcohol.

Criminalizing blood test refusals would make our protection against self-incrimination meaningless once we get behind the wheel of a car. It's also pointless considering there are any number of judges across this country who will blindly sign a blood warrant presented by a police officer - regardless of whether or not the officer can demonstrate probable cause existed for the arrest.

Suspected drunk drivers are treated differently than just about any other person accused of a crime because they are an easy target for politicians whoring themselves out for votes. By allowing lawmakers to make a joke of the Constitution in DWI cases, we are slowly but surely allowing them to narrow our rights in general.