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

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.

Judge finds that City destroyed evidence in jail litigation

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

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

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

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

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

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

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

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

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

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

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

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

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

Former judge sanctioned for jailing a rape victim

On December 8, 2014, Jenny Doe (her real name may be found in court records but I choose not to publish it), was called to testify in the rape trial of Keith Hendricks in the 176th District Court in Harris County. Mr. Hendricks was on trial for raping Jane Doe.

While on the stand testifying at trial, Ms. Doe had a mental breakdown (she had been diagnosed with bipolar disorder). Fearing that his witness wouldn't show up to testify again, the prosecutor, Nicolas Socias, asked the judge, Stacy Bond, to issue an attachment and to order Ms. Doe taken into custody.

The judge set her bond at $10,000. That's right, Jenny hadn't been charged with a crime yet she was being held behind bars because she couldn't post a $10,000 bond.

Ms. Doe was first taken to the hospital to be checked out -- she was then booked into the Harris County Jail. Making matters even worse, someone at the jail fucked up and entered that she was charged with felony sexual assault. Because no one at the jail knew she was being held as a witness, she was placed in the general population. While in jail she got into at least one fight with an inmate. She was later charged with assaulting a guard, though that case was later dismissed.

Jenny was not called back to the stand until January 11, 2015. Let that just sink in for a bit. Here we have the victim of a sexual assault who was taken into custody and held against her will for over a month because she had a mental breakdown on the stand. And even though she testified on the 11th, she was held for an additional three days before being released.

Texas law does permit the court to order a witness taken into custody if the state issuing the subpoena has reason to believe that a witness residing in the county is on the verge of moving out of the county or if an out-of-county witness failed to appear when subpoenaed.

Neither of those conditions were met in this case. Jenny resided outside Harris County and appeared without being subpoenaed. Mr. Socias might have been worried about her not coming back to testify after her breakdown -- but that didn't justify his request to have her attached. It certainly didn't warrant her being held in jail for over a month.

Now Stacy Bond, who is running for the bench in the 185th, has been sanctioned with a public admonition for violating the Code of Judicial Conduct.

Ms. Bond's excuse is she was mistaken in signing a badly worded application for a bench warrant. The application would have been filled out by the prosecutor, Mr. Socias.

You would think that the least the judge could have done was read the application before signing off on it. Actually you would think the judge might have consulted Section 24 of the Texas Code of Criminal Procedure to see whether the action was warranted. At the very least you would have expected a judge to show just the slightest bit of compassion to a witness who was having a very bad day. But, hell, once you decide to treat those accused of crime as garbage, it's not a far walk to treat everyone like that.

Ms. Bond is running as a Republican in the upcoming election. I'm sure that many Republican voters in the suburbs don't give a flying fuck what Ms. Bond did on the bench in the past. The only criterion for their vote is that the candidate have an "R" after their name.

This is the problem with electing judges. No one outside the courthouse knows who the candidates are. No one outside the courthouse has any idea what type of attorney or judge a candidate is. No one outside the courthouse knows what goes on behind the scenes. And this is why we end up with some judges in Texas who aren't capable of walking and chewing gum at the same time.

(Yes, Galveston County, I'm talking about the mindless wingnuts on the mainland who voted straight-ticket Republican and ushered in the strange world of Christopher Dupuy, the single most unqualified person I've ever seen on the bench.)

Of course appointing judges brings about an entirely different set of problems that can be just as bad as electing them.

Ms. Bond doesn't deserve to sit on the bench anymore. I just hope this public reprimand resonates with voters in the 'burbs when they go to cast their ballots in November.

Protecting the kids, Georgia style

This past week the Georgia Supreme Court did itself proud as it declared that being placed on a child abuse registry without notice isn't a punitive measure, that it doesn't deprive anyone of a liberty interest and that due process just doesn't apply when we're doing something to protect the kids.

Georgia maintains a child abuse registry and limits access to government agencies, law enforcement and childcare facilities. The general public does not have access to the database.

One can be placed on the registry if an investigator with the Georgia Department of Human Services, Division of Family and Children Services (DFCS) substantiates an allegation. To substantiate an allegation, the allegation must be confirmed by a preponderance of the evidence. The abuse investigator then files a report and the person's name is added to the registry. The person then receives a notice from the state and has 10 days to appeal the decision before an administrative law judge.

Now I will concede that being placed on the Georgia child abuse registry isn't the same as being placed on a sex offenders' registry since the database isn't available to the general public, but, it's never a good thing to have your name added to any list the government is compiling for allegedly doing something wrong.

And the Georgia Supreme Court showed how out of touch with reality they are when they decided that being placed on such a registry doesn't deprive an individual of a liberty interest. The court wasn't concerned with anyone being defamed by the state nor were they concerned with any possible legal consequences down the road. If you can't show that you have been affected negatively by being added to the registry, then too bad.

But the bigger issue here is the process by which it happens. The state doesn't have to notify an individual that they are being added to the registry - the state just has to provide notice after the fact. The person being added to the list isn't entitled to cross-examine the accuser nor to put on an evidence before being added to the registry. He only has the right to appeal the decision after his name has been added.

Now it's time for you to decide if this notice is sufficient to inform a person of what they are accused of or if it's just a vague piece of mumbo-jumbo.

You were substantiated on as a result of K.S. maltreator exposed the child to inappropriate sexual contact which resulted in the maltreator inappropriately touched and dry humped her in the residence of the legal guardian.

The Georgia Supreme Court found that this constituted sufficient notice. It is grammatically incorrect and the sentence (if you can call it that) borders on incomprehensible.

It's much easier to win a trial as defendant than it is to win on appeal. At trial every presumption is supposed to go to the defendant (of course we know that is often just a fiction we tell ourselves), on appeal every presumption goes to the side that won at trial.

In the case of the Georgia child abuse registry, all it takes to find your name on it is for an investigator to find the alleged victim has moved the ball past the 50-yard line -- without the other side being heard. In addition, in the scenario at hand, we have an investigator (a member of the executive branch) being tasked with making what would appear to be a judicial decision by determining whether or not the allegation was "proven" by a preponderance of the evidence.

But the Georgia Supreme Court wasn't having any of that. They decided that administrative agencies can make quasi-judicial decisions in the course of implementing the law. The court said the use of the term "preponderance of the evidence" didn't make the investigator's job a judicial function because those words just give guidance to the department.

Most troubling, though, was the court's finding that not providing notice before being added to the registry doesn't violate a person's right to due process. The court decided that since there is a procedure in place for a person to appeal the decision that sending a letter with a vague description of what the person was accused of is sufficient to pass muster with the 14th Amendment.

This decision shows just how far a court is willing to go "to protect the kids."

h/t Andrew Fleishman

Shocking, simply shocking

Judge George Gallagher in Fort Worth, Texas must have an affinity for the Middle Ages. Either that or the Spanish Inquisition.

You see, Judge Gallagher thought it was perfectly acceptable to order a defendant to be shocked with 50,000 volts whenever he gave an answer hizzoner didn't like.

Terry Lee Morris was on trial for soliciting sexual performance from a minor in 2014. On the first day of trial Judge Gallagher asked Mr. Morris for his plea. Mr. Morris objected to the shock collar on his ankle. He also informed the judge that he had a pending lawsuit against both the judge and his attorney, Billy Ray, with regard to the shock collar.

After excusing the jury, Judge Gallagher asked Mr. Morris if he was going to behave during trial. Mr. Morris pointed out that he had filed a motion to recuse the judge. Judge Gallagher then ordered the deputy to shock him. Once again the judge asked Mr. Morris if he was going to behave. Mr. Morris told the judge he was an MHMRA patient and the judge once again ordered the deputy to shock him. The judge kept berating Mr. Morris who accused the judge of torturing him. You can guess what happened next.

Mr. Morris left the courtroom and refused to return and his trial was conducted in his absence. As can be imagined, the jury convicted him and he was sentenced to 60 years in prison.

The Eighth Court of Appeals in El Paso reversed and remanded the case on the grounds that Mr. Morris' 6th Amendment right to be present at trial was violated by the judge's continual use of the shock collar.

Now, I think we can all agree that Judge Gallagher's handling of this matter was inappropriate and wrong. We might even agree that it was a violation of the 8th Amendment's ban on cruel and unusual punishment. It certainly resulted in a violation of Mr. Morris' rights under the 6th Amendment.

But that's not the end of the story. You see, there are more folks complicit in this matter than just the judge.

First we have Mr. Billy Ray who didn't object to the installation of the shock collar on his client. He didn't object - or say anything at all on the record - when the judge ordered his client to be zapped with 50,000 volts three times on the first day of trial. He also stood by and failed to object when the judge ordered the trial to proceed without Mr. Morris in the courtroom.

Mr. Ray's excuse was he was scared of his client. Well boo-fucking-hoo. This is the job you signed up for. We don't all get to defend the white collar criminal from the suburbs who drives the Lexus and sips expensive wine after dinner. We sometimes deal with some pretty nasty folks. But then, anyone who decides to do criminal defense work should be well aware of the nature of the clientele.

Mr. Ray's job at trial was to provide a vigorous defense for his client. That means making damn certain that the deck isn't stacked against him by the state or the court. Sure, the facts may be really bad, but the process needs to be fair. Mr. Ray's job was to make certain that Mr. Morris was afforded every right and courtesy possible during the trial. By standing by and allowing the judge to shock his client, Mr. Ray abdicated his role. By refusing to object to the judge's order to continue the trial without his client, Mr. Ray violated his ethical duties.

To be fair, Mr. Ray did file a motion to withdraw after his client filed suit against him. Judge Gallagher denied the request.

The prosecutor, Ms. Andrea Risinger, also deserves to be castigated in this matter. Under our ethics rules, the prosecutor has a duty to see that justice is done. That means the prosecutor has an affirmative duty to make certain that the process is fair to the defendant. Allowing trial to continue without the presence of the defendant makes a mockery of that duty.

Finally, the bailiff isn't escaping without criticism.  Yes, he is supposed to follow the orders of the presiding judge in the courtroom. However, surely the bailiff knew that what he was doing was wrong. He doesn't get to slide by claiming he was just following orders.

Constructing the plea mill

Documents obtained by the Houston Chronicle cast new light on the ways Harris County judges systematically refused to grant personal bonds to defendants for years. Many district judges instructed magistrates not to grant personal bonds to any defendant - regardless of the offense and the ability of the defendant to post bond. This is Step One in created a plea mill.

Today, after US District Judge Lee Rosenthal declared Harris County's misdemeanor bond schedule to be unconstitutional, three-quarters of the county's 8,700 inmates are in jail awaiting trial. Think about that for a second. There are more than 6,000 people behind bars who haven't been convicted of anything.

This process came to light when three Harris County magistrates, Eric Hagsteette, Jill Wallace and Joseph Licata III, during disciplinary hearings before the State Commission on Judicial Conduct. The complaints were filed by State Sen. John Whitmire (D-Houston). During the hearings the magistrates told commissioners that they were instructed by judges not to grant PR bonds.

The following district court (felony) judges instructed magistrates not to grant PR bonds on cases assigned to their courts:

• Devon Anderson, former district judge and DA, 2006-2007
• Mike Anderson, former district judge and DA, 2006-2009
• Jeannine Barr, 182nd District Court, 2006-2017
• Denise Bradley, 262nd District Court, 2012-2017
• Marc Brown, former district judge and current Justice on the 14th Court of Appeals, 2012
• Susan Brown, 185th District Court, 2006-2012
• Katherine Cabaniss, 248th District Court, 2014-2017
• Joan Campbell, former district judge, 2006-2012
• Marc Carter, 228th District Court, 2006-2014
• Caprice Cosper, former district judge, 2006-2007
• Denise Collins, 208th District Court, 2006-2012
• Mark Kent Ellis, former district judge, 2006-2017
• Catherine Evans, 180th District Court, 2014-2017
• George Godwin, former district judge, 2006-2007
• William Harwin, former district judge, current county court judge, 2006
• Belinda Hill, former district judge, 2006-2012
• Joan Huffman, former district judge and current state senator, 1999-2005
• Hazel Jones, 338th District Court, 2009 and 2012
• Jan Krocker, 184th District Court, 2006
• Renee Magee, former district judge, 2014
• Michael McSpadden, 209th District Court, 2006-2017
• Ryan Patrick, former district judge and current US Attorney, 2012 and 2014
• George Powell, 351st District Court, 2017
• Brian Rains, former district judge, 2006-2007
• Herb Ritchie, 337th District Court, 2009-2012
• Debbie Mantooth Stricklin, former district judge, 2006-2009
• Don Stricklin, former district judge, 2006-2007
• Brock Thomas, former district judge, 2006-2007 and 2014
• Vanessa Velasquez, 183rd District Court, 2006-2007
• Jim Wallace, 263rd District Court, 2006-2017
• Michael Wilkinson, former district judge, 2006-2007

Each of these judges systematically deprived defendants of bond. Yes, in some cases, individual decisions to deny PR bonds - or bond in general - was correct given the nature of the allegation and the criminal history of the defendant. But, making it a blanket policy to deny PR bonds without taking into account the individual circumstances of each defendant is wrong - and it is a systematic denial of justice.

"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents. Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you can tell a young black man... They teach contempt for the police, for the whole justice system."

-- Judge Michael McSpadden, 209th District Court

Judge McSpadden even made a point of defending his position by blaming movements like Black Lives Matter for the problem. He hits all of the dog whistle talking points in his statement without taking into account the institutional racism found in law enforcement, police brutality and violence against unarmed black and brown men or the capricious nature in which bond decisions are made in Harris County.

No, Judge McSpadden, the contempt people of color feel for the criminal (in)justice system has more to do with the acts of those in charge of the system and the systemic racism inherent in the way our courts operate. Denying PR bonds to defendants because of the color of their skin or without regard to their ability to post bond breeds contempt for the system.

Losing leverage

The purpose of bail is to ensure that the accused appears in court to answer the charge against him and to ensure the safety of the community.

When courts leave their bail decisions up to a chart without regard to a defendant's ability to pay, the courts are abdicating their responsibility to uphold the law.

Harris County is currently under a court order from US District Judge Lee Rosenthal to release nonviolent misdemeanor defendants regardless of their ability to post a cash bond. Fourteen of the sixteen misdemeanor court judges in Harris County (all Republicans) are waging war against the order because it gums up the works.

On January 31, Dutchess County Judge Maria Rosa ruled that setting bail for defendants without regard to their ability to pay is unconstitutional. The case was brought by the New York Civil Liberties Union on behalf of Christopher Kunkeli who was held for almost three months in the Dutchess County jail because he couldn't afford the $5,000 bail in his case. He eventually pleaded guilty to a misdemeanor with an offer of time served.

According to the NYCLU, 71% of the inmates at the Dutchess County jail had not been convicted of anything. They were behind bars because they couldn't afford to post bail.

Of course the local District Attorney, William Grady, didn't see a problem with holding folks pending trial. It makes his life easier because after a while, most inmates will plead guilty to almost anything in exchange for getting out of jail.

Mr. Grady contends, much like the Harris County judges, that actually following the law is "misguided." What he means, of course, is that having defendants sleeping in their own beds removes the leverage his office had over them when trying to resolve their cases. Now his office might be burdened with the task of proving their guilt beyond a reasonable doubt.

It's a swing and a miss

And it's strike two against Harris County in their efforts to maintain an unconstitutional and discriminatory bail policy in place.

Last June, US District Judge Lee Rosenthal ordered Harris County to change the way in which those arrested for non-violent misdemeanors are treated. Out went the bond schedule that failed to take into account the individual financial circumstances of the accused. In came a system in which folks who couldn't afford bail were released on personal bonds and pretrial release.

Fourteen of the county misdemeanor judges joined together to challenge Judge Rosenthal's order. As noted here, Judge Mike Fields removed himself from the rest of the Republican judges recently.

Now the Fifth US Circuit Court of Appeals has issued its ruling and it affirmed Judge Rosenthal's order. This should be the death blow to the county's attempt to reinstitute the plea mill as no one would ever come to the conclusion that the Fifth Circuit Court is anything other than conservative at heart.

While the Court stopped short of saying that everyone charged with a misdemeanor has the right to pre-trial release, Harris County is required to conduct an individual assessment of each detainee.

The stance of the judges fighting to overturn Judge Rosenthal's order should come as quite jarring when compared to their tame campaign promises to see that justice is done.  The justice these judges have in mind is coercing defendants who can't afford to post bond to plead guilty to criminal acts without having the opportunity to investigate the facts and to hold the state to its burden of proof.

Now the leverage the judges and prosecutors had over many defendants is gone. And that's a very good thing, no matter what the Republican judges tell you between now and November.

Doing the right thing

Well here's an interesting twist in Harris County's fight against bail reform - Michael Fields, the presiding judge in County Criminal Court at Law No. 14 has withdrawn himself from the appeal. He joins Darrell Jordan, presiding judge in County Criminal Court at Law No. 16, on the sidelines.

According to Judge Fields, his view of the case changed after attending a hearing at the Federal Courthouse this past Tuesday where he had a front row view of the high powered legal team the county criminal judges hired to fight US District Judge Lee Rosenthal's ruling that the Harris County bail system was unconstitutional.

Fields initially opposed the lawsuit, and summed up his initial position as: "This is the way we've always done it. It has to be working OK. What are we doing wrong? We're not bad people."

Thus far Harris County has spent some $5 million defending a system of bail that led to an overcrowded jail and defendants pleading guilty just to get out of jail. Many of those cases were plead out, with the help of court-appointed attorneys, without so much as a cursory investigation of the facts. The only issue in most cases was whether the defendant would get out on time served or have to spend a few more nights in jail.

For those of y'all who plan on voting in the Republican primary, keep in mind that every incumbent (with the exception of Judge Fields) has spent taxpayer money to defend a system that denied any semblance of justice to the accused. The judges are upset because non-violent defendants are being released which makes it a hell of a lot easier to fight a case.

The system under which we labored for so long used a predetermined bail schedule to determine how much a person would have to post to get out of jail. That system didn't take into account a defendant's financial circumstances or factors that would determine the likelihood of his appearing in court. Bail was used as a punitive measure that punished the most vulnerable defendants.

The fact that the judges are fighting back against Judge Rosenthal's order should tell you everything you need to know about their attitude towards the citizen accused. These are judges who are more interested in moving their dockets than they are about justice. And they are using our money to fight for a system that was declared unconstitutional. Just think about that for a second.

Judge Fields and I have butted heads in the past - and I'm sure that if he remains on the bench we will butt heads again at some point in the future - but I'm going to commend him for his decision in this matter. It takes courage to stand up and admit that you were wrong, but that's exactly what Judge Fields has done.

Thank you, Judge, for doing the right thing.

Is Harris County deliberately undermining a federal court order?

This past June an order from US District Judge Lee Rosenthal went into effect that drastically altered the way pretrial bonds are handled in Harris County.

In the past if a defendant charged with a misdemeanor couldn't afford to post bond or his family couldn't afford to hire a bondsman, that defendant sat in jail until his case was resolved. This put pressure on defendants to plead their cases even if there was no evidence or even if they were innocent, just to get out of jail.

Judges and prosecutors loved it. It cleared dockets. It meant fewer trials.

In light of Judge Rosenthal's ruling, defendants charged with nonviolent misdemeanors who can't afford to post bond are to be released on personal bonds - that is, on their promise to return to court on a certain date.

Many of these folks were placed on pretrial supervision in which caseworkers do what they can to ensure they return to court when scheduled.

But, according to this article in the Houston Chronicle, many of those who need supervision don't receive it and, subsequently, don't show up for their court dates.

Judges are up in arms because of the number of warrants they have to issue for defendants who miss court. County officials blame Judge Rosenthal for the problem.

Keep in mind that for decades in Harris County the jail was filled to capacity primarily with detainees who hadn't been convicted of anything. The county also fought, tooth and nail, to defend its system that denied the accused their due process rights by confining them absent a showing of guilt and absent a showing that they were a danger to society.

And, in what is most likely a deliberate attempt to undermine Judge Rosenthal's order, Harris County does not place those who most need supervision on pretrial supervision. This policy of neglect almost guarantees that folks are going to fall between the cracks. I suspect the county hopes that this policy will allow them to go back to the old system when they present "evidence" that the public was placed at risk by nonviolent misdemeanor defendants who failed to appear in court.

The judges want to return to the old system so they can move cases off their dockets. Everyone involved in the criminal (in)justice system knows that it's much easier to fight your case when you aren't behind bars. But having folks exercise their constitutional right to a jury trial gums up the works down at the courthouse - especially after Hurricane Harvey.

I know that judicial efficiency is a big deal for those wearing the black robes, but it doesn't - and shouldn't - trump the due process rights of citizens accused of breaking the law.

A common sense decision

Terrence Williams was convicted of murder for killing Amos Norwood in 1984. Mr. Williams said he did it because Mr. Norwood had abused him when he was a child. Nonetheless, the District Attorney, Ronald D. Castille, made the decision to seek the death penalty.

In 2012 a Pennsylvania Post-Conviction Relief Act (PCRA) court stayed the execution and ordered a new sentencing hearing as a result of Brady violations on the part of the prosecutor.

In 2014, the Pennsylvania State Supreme Court reinstated Mr. Williams' death sentence.

Nothing new there. Except that the chief justice was Mr. Ronald D. Castille. The same Ronald D. Castille who signed off on the death sentence almost 30 years before.

Yesterday, in Williams v. Pennsylvania, No. 15-5040 (2016),U.S. Supreme Court Justice Anthony Kennedy was the swing vote in a 5-3 majority that decided a judge must recuse himself from ruling on a capital case in which he had a "significant personal involvement" as a prosecutor.

Makes perfect sense to me.

But the question is why did this have to go to the highest court in the land to make such a basic finding? Mr. Castille, of course, thinks the ruling is ridiculous. But it's Mr. Castille's logic (or lack thereof) that I find ridiculous.

Mr. Castille was an elected district attorney. He made the decision to seek the death penalty against Mr. Williams. He made that decision for any number of reasons. And he thought everything was kosher when the question of whether or not to reinstate the death penalty in the case came before him in his role as Chief Justice of the Pennsylvania State Supreme Court. At what point did this train run off the rails?

Mr. Castille's concern is that a good number of judges come out of the prosecutor's office and that their fingerprints are all over too many cases to keep track of. He's worried that judges will have to recuse themselves by the bucketload as a result of this opinion.

Maybe he's right.

And maybe that's not such a bad thing were it to happen.

Whether Mr. Castille wishes to admit it or not, his vote in the case in 2014 was nothing more than an affirmation of a decision he made in 1984 that someone deserved to die. He wasn't going to second-guess himself. There was no chance he would have voted against reinstating the death penalty because that would be an admission that he was wrong in the first place. I doubt seriously that any of his colleagues on the bench were going to call him out on it, either.

The conflict of interest is clear and Mr. Castille should have recused himself without being asked because of his involvement in the case at the trial court level. His failure to do so, and his insistence that he did nothing wrong or suspect, speaks volumes about his judgment, or lack thereof.

One way to reduce indigent defense bill

So you think it's hard to get a court-appointed attorney in Harris County. There are judges who will tell defendants who have been able to scrape up enough money to post bond that they have to sell everything they own before an attorney will be appointed for them.

Nevermind that in most cases the bond money was put up by family members or friends and not by the actual defendant. In Harris County, if you're not wearing an orange jumpsuit when you ask for an appointed attorney you have a very hard road to hoe.

The judges know there are plenty of attorneys who will take cases on the cheap and plead their clients out on the first or second setting without ever investigating the case. The judges seem to have no idea what it actually costs to hire an attorney in Houston who's actually going to work on your case. The result is a whole lot of folks with convictions on their records who may have stood a good chance of having their cases dismissed or the charges reduced after a little bit of legwork on the part of their attorneys.

But, hey, it clears another case of the docket and that's a good thing. Right?

In McLennan County (that would be Waco for those of y'all not familiar with the lay of the land), they have taken the denial of counsel one step further. If you want to have an attorney appointed to handle your case you have to fill out an application. That application will then be investigated by a sheriff's deputy who's going to come to your house and take a look around to see if you're really as indigent as you say you are.

Now, just a word of warning here. There are those of us who practice criminal law on a regular basis who would be very hard pressed to come up with a retainer fee on a felony case. I know plenty of attorneys who do quite well who would be considered indigent if they were charged with a felony in federal court.

What's really going on up in Waco is the courts are trying to make it harder and harder for those accused of serious crimes to defend themselves. Just because someone was able to borrow money from their parents or their grandparents to post bond doesn't mean they have the money to pay an attorney. Parents and grandparents will often do whatever they can to help out their wayward children and grandchildren - but you can't expect them to pick up all the bills.

In sending out a sheriff's deputy to investigate those seeking appointed counsel, the courts are doing their best to intimidate those who are able to post bond not to ask the county to pick up the tab for their lawyer. To make matters worse, officials like to brag about arresting folks on felony charges of falsifying government documents when they make a questionable statement on their application.

As I said yesterday, if the county is concerned about the amount of money they're spending on appointing lawyers for indigent defendants, then maybe law enforcement officials and prosecutors should think twice before arresting folks or filing charges. A little discretion here and there can go a long way to reducing the county's legal bills.

Now I don't think I'm going out on a limb here but I would imagine that the number of black defendants asking for appointed counsel is probably disproportionate the African-American population in McLennan County which means this investigation program is just another tool for the state to discriminate against blacks.

The worst thing about the article is the way in which the writer is all rah-rah with the police and court officials. Nowhere in his piece does he even raise the question of whether this program serves to deny folks their constitutional right to counsel when the state is attempting to take away their liberty. I guess being a sycophant is much easier than being an actual reporter.

For those of y'all who wish to let the reporter know what a great job she did regurgitating the Sheriff's PR release, her name is Stephanie Butts and her e-mail address is sbutts@wacotrib.com. Here's her LinkedIn profile.

A science experiment gone wrong

“In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world. The greatest power any government has over an individual is to take that person’s life. More than any other power, the exercise of the power to kill must be accompanied by due process and transparency. This evening we saw what happens when we allow the government to act in secret at its most powerful moment and the consequences of trading due process for political posturing. This is not about whether these two men are guilty; that is not in dispute. Rather, it comes down to whether we trust the government enough to allow it to kill its citizens, even guilty ones, in a secret process.” 

-- Ryan Kiessel, Executive Director, ACLU of Oklahoma

The back story to Oklahoma's botched execution of Clayton Lockett gets worse the more one looks at the sequence of events that led to Mr. Lockett's heart attack.

Attorneys for Mr. Lockett and Charles Warner (who was also scheduled to be murdered on Tuesday) filed a lawsuit challenging Oklahoma's secrecy law regarding the acquisition of drugs used for executing prisoners. Oklahoma County District Judge Patricia Parrish issued a stay after finding the law was unconstitutional as it served to limit inmates' access to the courts.

On April 21, the Oklahoma state Supreme Court upheld Judge Parrish's stay until such time as the legal issues regarding the state's secrecy law could be determined. Oklahoma Governor Mary Fallin then issued an executive order stating that the state's Supreme Court lacked jurisdiction over the matter and rescheduled the executions for April 29. On April 23, under pressure from state officials, the Supreme Court reversed itself and ruled that condemned inmates had no right to know from where the state obtained the drugs it intended to use to kill them.

Oklahoma, like Texas, has a bifurcated court system. In both states the Supreme Court hears civil matters while criminal matters are argued before the Court of Criminal Appeals. In this case the CCA said it didn't have the authority to hear the matter because the case was filed as a civil suit so the Supreme Court took up the case under a "rule of necessity."

In the meantime, Republican state Representative Mike Christian threatened to seek impeachment of the judges who voted in favor of staying the execution saying the Supreme Court had overstepped its bounds. It was after this threat that the high court reversed itself and allowed the execution to proceed.

Gov. Fallin has called for an investigation into what happened on Tuesday night. If the investigation is run under the aegis of the state there will always be doubt about its conclusions. The only way to conduct a proper investigation is for it to be independent of state interests. Of course, if the reason for the investigation is to find out how the state can go about killing inmates more efficiently then it really doesn't matter who conducts it.

The official explanation for Mr. Lockett's death is that he suffered a heart attack 43 minutes after the execution began and that the execution was halted when a doctor determined that the vein into which the drugs were being pumped had "exploded."

If we accept that explanation we still don't know if the problem was caused by the incompetence of the staff carrying out the execution, because of a medical condition affecting Mr. Lockett's veins or because the drugs didn't do what they were supposed to do. From media accounts of the execution, Mr. Lockett was still conscious and mumbling when the blinds were drawn.

Since one of the drugs in the lethal cocktail was designed to stop Mr. Lockett's heart, we can assume that it did it's job. We can also assume that Mr. Lockett suffered pain in the aftermath of the state's science experiment gone wrong. Regardless of how state officials wish to characterize what happened on Wednesday, Mr. Lockett was tortured and murdered at the hands of the state.

Here is a round-up of some additional coverage of Oklahoma's botched execution.

"Execution chaos: Witness recounts botched killing that caused Okla. prisoner's fatal heart attack," Democracy Now! (Apr. 30, 2014)

"Oklahoma execution prompts investigation," Here & Now (Apr. 30, 2014)

"Eyewitness account: A minute-by-minute look at what happened during Clayton Lockett's execution," Ziva Branstetter, Tulsa World (Apr. 30, 2014)

"Execution failure in Oklahoma: Clayton Lockett dies of heart attack after vein explodes," Graham Lee Brewer, NewsOK (Apr. 30, 2014)

"Botched Oklahoma execution prompts questions about lethal injection," Scott Neuman, The Two-Way (Apr. 30, 2014)

Death three ways

Yesterday was supposed to be a double-header day in Oklahoma. Clayton Lockett and Charles Warner were both scheduled to be murdered by the state. Only things didn't go the way officials had hoped. As a result, Mr. Warner is still alive while Mr. Lockett is dead.

Mr. Lockett and Mr. Warner had challenged the legality of their scheduled executions by filing suit to force the state to disclose the drugs it planned on using to kill them as well as the source of the drugs and the names of everyone involved in the execution.

The state disclosed the drugs it planned to use but refused to give up any information regarding the source of the drugs, citing a state secrecy law. The Oklahoma Supreme Court wasn't amused and issued stays while it considered the claims of Mr. Lockett and Mr. Warner. Last week the court lifted the stays having found that the state's secrecy law was valid.

But a bigger controversy erupted on Tuesday afternoon when the state botched Mr. Lockett's execution. The first drug in the cocktail was the sedative midazolam. The drug is supposed to leave an inmate in a state of unconsciousness. But, seven minutes after the initial injection, Mr. Lockett was still conscious. Reporters noted that Mr. Lockett was still very much alive after more than 15 minutes, even lifting his head as officials drew the blinds to prevent witnesses from seeing the complete custerfluck taking place in the execution chamber.

The execution continued with the second and third drugs being administered, but Mr. Lockett wouldn't die. It turns out that the vein into which the lethal drugs were being injected burst. Officials immediately called off the second scheduled execution as they tried to deal with the mess on their hands.

Then, 43 minutes after receiving the initial injection, Mr. Lockett suffered a fatal heart attack.

Meanwhile in Ohio. state officials announced that they will be upping the amount of drugs in the state's lethal cocktail to prevent another episode like what happened in January when an inmate remained conscious for at least 15 minutes after the first drug was injected.

Despite claims from witnesses that Dennis McGuire was visibly gasping for air long after he should have been rendered unconscious, state officials continue to insist that Mr. McGuire was unconscious and suffered no pain during the process.

Apparently doctors determined this by asking Mr. McGuire if he had suffered any pain after he was already dead. Hearing no response they naturally assumed the answer was "no."

The state has announced that for the next scheduled execution, to take place in November, they will up the dosage of midazolam from 10 mg to 50 mg and the dosage of hydromorphone from 40 mg to 50 mg. So far there is no word on who is supplying the drugs or who made the determination that upping the dosage would solve the problems encountered during Mr. McGuire's execution.

The fact remains that something went dreadfully wrong in January, otherwise the state would not be making the announcement it made this week. If everything went according to schedule in January, there would be no need to tinker with the lethal cocktail for upcoming executions.

Finally, government officials in Washington are expressing outrage over the mass death sentences handed out by an Egyptian court in a trial in which hundreds of members and supporters of the Muslim Brotherhood were convicted of being complicit in the death of a police officer during a protest back in 2013.

The Egyptian court sentenced 683 defendants to death - only 50 of whom were in custody at the time of trial. The remaining defendants can challenge their death sentences once they've turned themselves in.

The trial only took a matter of hours and the defendants in custody were prevented from presenting a defense to the charges. The death sentences will now be reviewed by the state's highest Islamic authority, the Grand Mufti.

I would like to know exactly what about the death sentences has so outraged American leaders. It certainly can't be that anyone was sentenced to death. I mean we do that all the time here and no one in Washington expresses anything that could be remotely considered to be outrage.

I suppose that some of the outrage could be over the apparent lack of due process at trial. But such feelings ignore the reality that innocent people are convicted of crimes, including capital murder, in the U.S. and are sentenced to death. Anthony Graves was wrongly convicted of murder in Texas thanks in large measure to prosecutorial misconduct. Mr. Graves was sentenced to die and sent to death row. He was, theoretically, provided greater due process than the defendants in Egypt - but the result was the same.

To date there have been 144 men and women on death row who have been exonerated. There has also been at least one innocent man executed in Texas. The numbers belie the truth that our criminal (in)justice system isn't all that better than the criminal (in)justice systems in other countries. We like to pat ourselves on the back and tell juries that they are the true engines of democracy -- but that is largely a myth. Juries get it wrong all the time.

Even worse is the absolute lack of due process that was afforded to four American citizens who were murdered by our government in drone strikes. None of the four was ever charged or indicted. None of the four got to confront the witness against them nor question the evidence presented. None of the four was represented by counsel when senior government officials made the decision to hit the fire button on the drone. And then let us not forget the number of innocent men, women and children who were blown to pieces by missiles fired from the skies during drone attacks.

That leaves only the sheer number of death sentences handed out at once to be the cause of the outrage. But if we support the death penalty here at home, then what difference should it make if some other country wants to hand out death sentences like invitations to a house party?

Murder is murder is murder. It doesn't matter whether it's committed by a masked gunman in a gas station or by the state in an antiseptic execution chamber. If it's wrong for an Egyptian court to sentence hundreds of defendants to death in one fell swoop, then it's also wrong for a jury in Texas to recommend the death sentence in a capital murder case.

Don't get hung up on the numbers because the numbers aren't important. One death sentence is one death sentence too many. One exoneree is one exoneree too many.

Trusting blindly and swallowing whole

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 offense 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.  - Fifth Amendment, US Constitution

Back in September 2011 a US drone flying over Yemen fired a missile at a car in which two American citizens were riding. The blast killed Anwar al-Awlaki, a radical cleric who may or may not have had ties with al-Qaeda and Samir Khan. Two weeks later another drone fired a missile into a crowd at an outdoor cafe killing Mr. al-Awlaki's 16-year-old son, Abdulrahman, who was also an American citizen.

The US government claimed that Mr. al-Awlaki was in a leadership position in al-Qaeda and that his murder was justified in protecting the national security of the United States. The government also claimed that it had no idea that al-Awlaki's son was in the cafe when it was attacked.

The decisions to kill these Americans was made by a small cabal of government officials huddled in the White House. There were no formal charges. There were no indictments. There were no probable cause hearings. There was no discovery. There was no trial. There was nothing but a star chamber who looked over a list of names and decided who would live and who would die.

Mr. al-Awlaki's parents brought suit against the United States government for the murder of their son and grandson. They alleged that the government's actions had amounted to depriving Mr. al-Awlaki and his son life without due process of law.

Last week US District Court Judge Rosemary Collyer of the District of Columbia tossed out the lawsuit. She chose not to believe that the government had deprived both Mr. al-Awlaki and his son of their due process rights. She fell lockstep in with the official line that we live in dangerous times and that we should trust our government to make the right choices.

In her opinion, Judge Collyer ran through a list of government entities that had looked into Mr. al-Awlaki's background and status. She fully accepted the proposition that if a government agency investigates a matter and draws a conclusion that the conclusion must be accepted as valid.

She, of course, never seemed to give a second thought to the idea that sometimes the government gets it wrong. Everyday across this country there are juries who return verdicts of not guilty in criminal cases because they didn't believe the government had proved its case beyond all reasonable doubt. There are cases dismissed in courts across their country every day because prosecutors come to the realization that they just can't prove their case.

But for Judge Collyer you don't even have to go that far. In her mind the allegation alone - if it is repeated by enough people - is sufficient to prove guilt.

The evidence supporting the government's allegations against Anwar al-Awlaki was never tested in the crucible of trial. The government's witnesses were never challenged on the stand. Mr. al-Awlaki was never given the opportunity to respond. In short, the system of laws that we have in place to "protect" those charged with criminal offenses was ignored by a judge who was looking for any reason to dismiss the case.

In this case the US government exercised its most invasive power - the power to determine who should die - against three American citizens without affording them due process of law. And a judge who swore she would uphold the law and the constitution blindly accepted the government's story without so much as a doubt.

The message is quite clear. The government is here to protect you. Such quaint notions as due process only make it harder for the government to do its job. Besides, why would anyone from the government lie?

Cameron Willingham was accused by the State of Texas of setting his house on fire and killing his children. He was indicted. He was tried. He was convicted. He was murdered by the state. And he was innocent. Sure, he was afforded his due process rights - and look how much good it did him.

Michael Morton was accused by the State of Texas of killing his wife. He was indicted. He was tried. He was convicted. He sat in prison for 25 years before he was exonerated when his attorneys discovered the games that Williamson County prosecutors played during the investigation and during trial. He was afforded his due process rights - and he lost 25 years of his life.

Anthony Graves was accused by the State of Texas of murder. He was indicted. He was tried. He was convicted. He was sentenced to death and sat on death row for more than two decades when his attorneys uncovered the illegal and unethical actions taken by the prosecutor. He was afforded his due process rights - and stared death in the face.

But still Judge Gallyon thought it was enough that someone from the government said that Anwar al-Awlaki was a bad guy and deserved to die. And that is a very frighting notion. The fact that it was a judge makes it even worse.

H/T Democracy Now! and Center for Constitutional Rights

Texas ban on same-sex marriage struck down

And now Texas is the latest to fall. On Wednesday, US District Judge Orlando Garcia, issued a ruling declaring Texas' ban on gay marriage to be unconstitutional.

From the decision (courtesy of The Washington Post):

"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote in his decision. "These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."

As I wrote over a year ago, once one state legalized gay marriage the bans in other states would be declared unconstitutional on equal protection grounds. The simple fact is that once one state says it's okay for same sex couples to get married every other state will have to (even if dragged kicking and screaming) recognize those marriages. If a man and woman get married in Texas and move to New Mexico, they are recognized as married in New Mexico. They are also recognized as being married when it comes to federal benefits and taxes.

And once a state recognizes same-sex marriage the same rules must apply. Just think about the absurdity of the argument that Texas will recognize an out-of-state marriage for a heterosexual couple but won't recognize an out-of-state marriage for a same-sex couple. That is discrimination on its face. Now maybe Texas doesn't have to make same-sex marriage legal in the state - but, under Equal Protection jurisprudence, Texas must recognize an out-of-state marriage or else come up with some rational explanation for why the state recognizes some marriages but not others.

Late last year in Utah a federal judge issued a similar ruling, prompting hundreds of gay couples to get married in the waning days of 2013. The US Supreme Court then decided to issue a stay on the court's order which has led to the state putting a halt to recognizing those couples who got married before the stay was issued. Which raises the issue of whether such a move by the state would amount to an ex post facto law.

In order to avoid a similar situation (or because he wanted to have it both ways), Judge Garcia immediately stayed his order pending an appeal by the state.

The ruling puts Texas Taliban gubernatorial candidate Greg Abbot in a potentially awkward situation as he will file an appeal of the ruling and argue to the 5th Circuit Court of Appeals that the state's ban on same-sex marriage doesn't violate anyone's rights under the Constitution. While that argument may very well appeal to certain segments of the Texas population, it's hardly a ringing endorsement for inclusion.

Gov. Rick Perry couldn't resist opening his mouth and sticking his foot in it arguing that since Texas voters overwhelmingly rejected same-sex marriage in a statewide vote that the courts were meddling where they shouldn't be. I guess that the fair-haired one has forgotten, or just doesn't realize, that just because a law is on the books and supported by a majority of folks, doesn't make it constitutional. He might want to review Brown v. Board of Education as a refresher.

Release the hounds

Too often objections to the death penalty are based on the method by which the state murders the inmate. That is the primary argument against the death penalty under our Eighth Amendment jurisprudence. It was because of these challenges that most states have now adopted lethal injection as their means of killing inmates.

As the method has become more "humane," the room to argue that the death penalty should be considered cruel narrows

But that argument misses the point entirely. The death penalty should be abolished, not because of the way in which it is carried out, but because the power to determine who dies is not a power that any government should wield. The death penalty is capricious in the manner in which it is carried out. When the driver of the car gets the needle while the man who pulled the trigger sits in prison for life, something is wrong.

With the number of exonerations over the past decade we should all be wary of the risk of murdering an innocent man. We know it's happened. And that is at least one time too many.

And so we come to the execution of Jang Song Thaek in North Korea. Who is Jang Song Thaek, you might ask. He was the uncle of North Korean dictator Kim Jong Un. If one is to believe press accounts, he groomed Kim Jong Un to take over the leadership of the country. But, somewhere along the line, he and his nephew got crosswise.

The end result was a show trial in which Jang was convicted of attempting to overthrow the state. The sentence was death - and the manner of death is almost unfathomable.

Jang and his associates were stripped naked and thrown into a cage with 120 hunting dogs that hadn't been fed for five days. The dogs ripped the men apart and ate them.

All the while Kim Jong Un sat and watched with party observers as the men were devoured.

But, as brutal and sadistic as the method of death may have been, the death sentence was worse. There was no adversarial proceeding. There were no rules of evidence. The verdict and sentence were determined before the trial ever began. The lives of six men were taken due to the whims of one man's mind.

At least in the United States we have (in theory) due process rights which allow a convicted man to challenge his conviction or sentence. We have a process in place by which an innocent man can bring forward evidence to challenge the basis of the conviction. But those rights are just reminders that our criminal (in)justice system doesn't get it right all the time.

We've built in safeguards because we know we'll get the wrong result from time to time. That is why the death penalty is wrong. We have no way to insure that we get the right result from every trial. Whether it be manufactured evidence, prosecutorial misconduct, bias from a judge, incompetence from the defense attorney or just bad luck, innocent men and women are convicted in this country.

And for that reason alone, the death penalty has no place in our jurisprudence.

Forty years of solitude in Angola

For 40 years, Herman Wallace sat in a tiny cell for 23 hours a day in the Louisiana State Penitentiary in Angola. He spent those years in solitary confinement after he and two other inmates, Robert King and Albert Woodfox, were convicted of killing a prison guard in 1973. It was a crime all three deny committing.

In 1967 Mr. Wallace was convicted of armed robbery and sentenced to 50 years behind bars. While in prison he helped start up the first chapter of the Black Panther Party behind bars. Shortly thereafter a prison guard was murdered and Mr. Wallace, along with Mr. King and Mr. Woodfox, found themselves faciug trial for murder.

The Angola Three, as they are known, were all placed in solitary confinement. Mr. King was released from prison in 2001 while Mr. Woodfox is still in solitary confinement.

Earlier this year Mr. Wallace was diagnosed with liver cancer and it is believed he has but a few days to live. His supporters petitioned the state for compassionate release - but their pleas fell on deaf ears.

Yesterday Federal district judge Brian Jackson overturned Mr. Wallace's 1974 conviction on the grounds that his right to due process was violated when women were excluded from the jury that convicted him. Judge Jackson ordered the State of Louisiana to release Mr. Wallace at once. An ambulance was sent to the prison.

However, showing the bull-headed stubbornness of a prosecutor who refuses to acknowledge that a conviction was unjust, East Baton Rouge District Attorney Hillar Moore challenged the judge's order and the state refused to release Mr. Wallace.

For the State of Louisiana it was a fight to see that Mr.Wallace didn't die as a free man. It wasn't enough that he's was locked up in a tiny cell for over 40 years. It wasn't enough that he was denied meaningful contact with the outside world. It wasn't enough that Mr. Wallace's life is almost over. The State of Louisiana was bound and determined to take not only Mr. Wallace's life, but his dignity as well.

But, despite their efforts to keep see Mr. Wallace die in prison, the state failed. Late last night Herman Wallace was released from the Louisiana State Penitentiary. The litigation surrounding his case will continue after he has taken his final breath.

Herman Wallace will die a free man.



See also:

"Cancer-stricken Anglola 3 prisoner Herman Wallace given just days to live after 42 years in solitary," Democracy Now! (Sept. 30, 2013)

Herman's House: The Film

Why not just reduce the number of federal prosecutions?

Under the sequester, federal agencies were required to cut their budgets across the board. Of course when business travelers felt the inconvenience caused by cuts to the FAA the government quickly found a way around the sequester lest our elected representatives be blamed for the snarls at the airport.

Over the in the courthouse, the sequester has caused federal public defender offices to reduce their budgets. And, since criminal defendants in federal court don't have a particularly sympathetic lobby, no one has stuck their neck out to prevent the unintended consequences of the sequester.

In order to reduce their budgets, local federal defenders' offices have had to lay off staff. As a result of recommended caseloads this means that the federal defenders' offices can't handle as many cases. Someone has to step into the breach - and those someones are private attorneys taking on appointed cases.

Federal defenders' offices are set up to defend a large number of clients at any given time. They share staff. They share investigators. Hell, they even share cars when traveling to visit clients in federal detention centers. Private attorneys don't have the advantage of this shared overhead. A private attorney has to pay his receptionist or assistant. He has to pay his investigator. He doesn't have anyone to carpool with when traveling hours to visit a client. And he's billing the court for his time and his expenses - as is his investigator and any expert witnesses he may retain.

The plain fact of the matter is it costs the taxpayers more money for the courts to appoint private attorneys to handle federal criminal cases than it does to use the federal defenders' office. So the sequester - meant to rein in spending - is actually increasing the costs of providing representation to federal criminal defendants.

Of course we just can't let this practice continue. So, in order to reduce spending, a panel of federal judges decided to reduce the hourly rate paid to private attorneys appointed to represent federal criminal defendants from $125 an hour to $110 an hour. And the courts will have the ability to delay some payments of fees for up to four weeks to keep them off the current fiscal year's spreadsheet.

But that's not addressing the problem. That's just sweeping it under the rug and hoping everyone forgets about it. If the cost of these federal prosecutions is too high, then maybe we should take a nice long look at the types of cases that are being filed.

There is little reason to try a dope case in federal court, for instance. The last time I checked, every state had laws on their books prohibiting certain drugs. Sure, the severity of the offense may vary from state to state and some states have even had the temerity to legalize small amounts of marijuana. But the point remains that there are few drug cases that need to be tried in federal court.

The same goes for most assaults and murder cases. Those activities are outlawed by the states. Sure, there may be some jurisdictional issues when an offense takes place on federal property, but murder is murder and assault is assault. If a person is convicted of the crime, does it really matter whether he serves his time in a state penitentiary or a federal prison?

So my solution to reducing the cost of prosecuting federal criminal cases is to reduce the number of cases prosecuted. If the defendant can be charged in state court, let the state court take care of the matter. The role of the federal courts all along was to take over matters involving actors from across state lines when one state's courts might be friendlier to a in-state party than to an out-of-state party. The only federal crime outlined in the Constitution, after all, is treason.