Book review: Up Pohnpei - A quest to reclaim the soul of football by leading the world's ultimate underdogs to glory

I was minding my own business the other day while driving around in the car. I was listening to a BBC show when they began interviewing Paul Watson, an Egnlishman, who had just written a book about going to Micronesia to coach a soccer team. It sounded like a fun story but, darn the luck, I was actually driving and couldn't grab a pen to write anything down.

Once I had the chance I got on my phone and tried to pull the book up on Amazon or Google but I didn't catch the author's name. The name of the island sounded like "Pompey" on the radio. All I could find when I typed in Pompey and football were scores of books about the Portsmouth soccer team in England (type it in yourself and you'll find out why).

On the verge of giving up I happened to type in "Guam" and "Pompey" in the search box. And then I found my mistake. The name of the island was Pohnpei. It was back to Amazon and, a few moments later, On Pohnpei was on my smart phone.

The book is a fun read. Mr. Watson and his friend Matt were huge football fans. Mr. Watson's dream was to play on England's national team. Unfortunately he wasn't good enough. On a lark, he and Matt decided to look for the worst national soccer side they could find to see if they could get on the field. Pohnpei was, by all accounts, the worst national side in the world.

But their dreams of playing for Pohnpei were dashed when they saw the requirements for obtaining citizenship. So, instead of playing on the pitch, the mates decide to coach.

On the one hand, On Pohnpei is the story of a determined man trying to build something from nothing. He organized a football league on the island consisting of five teams. From those five teams he assembled a national team. The book chronicles the challenges he faced in getting his team ready to play competitive football. It's an inspirational story that makes you believe that if you want something bad enough, you can achieve it.

On the other hand, On Pohnpei is a story of imperialism. Both political and cultural. Pohnpei is poor and, with very few prospects, its best and brightest flee for the opportunities offered elsewhere. Mr. Watson is the hero in white who comes to rescue the backward islanders. If the natives will just listen to the interloper, he will deliver them into paradise.

I go back and forth. I enjoyed the book and it was quite refreshing to view the world of football from outside the prism of the European game.

Baseball: A reader writes back

The other day I received an e-mail comment to my post about my lamenting the changes in baseball over the years. The author of the e-mail was a fellow Houston criminal defense attorney, Bill Hawkins. I was just going to post what he wrote to the comment section but the more I thought about it, the more I realized that Bill's comments deserved a blog post of their own.

So here are the words of Bill Hawkins (with a couple of very noticeable exceptions, I have left Bill's words alone)...

The heart of your problem with baseball is actually found in your last paragraph.  You love the tradition of the trip to opening day with your son daughter.  It is timeless.  It is a beautiful part of your life that will linger forever in your memory.  You wish it would go on that way forever and I hate to be the one to tell you, but inherently, I think you know this already, it is like that part of your life, and eventually your sons daughters, that used to believe in Santa Claus.  There is a wonder to that aspect of your life that is all but impossible to duplicate in any other way.

You and your son daughter will always be able to share opening day, but it changes as he she grows older, because what is important to him her and his her perspective on it will change.  Like the game of baseball, the experience is similar, but not the same.  One day it is baseball, or in my case, a Harry Potter board game, and the next day, they are driving off to college.  You cannot capture time and it passes way too quickly.

Now a shrink or some person far older and wiser than the likes of me might tell you that at its core your feelings about opening day and baseball really relate to our desire as humans to live forever and avoid the changes that go with life, and eventually lead to death.  I, on the other hand, would suggest that you are pissed because the changes lessen the impact of baseball on our lives.

I will hop in the way back machine, go back further than you remember, and tell you more about the way it was.  When I was in the sixth grade at Terrell Hills Elementary, life stopped for the World Series.  All the games were played during the day and were televised in black and white on TV.  A TV was set up in the cafeteria and you could watch it while you waited in line with your quarter to get your lunch tray.  You could even sit close while you ate your lunch.  It was so important that the principal allowed the big kids, that would be us sixth graders, to come watch the last few innings of the last game.

I have been a Houston baseball fan since I visited my grandparents and attended Colt 45 games at what became the Astrodome site.  I would sit there in my Larks uniform and swat mosquitos until the sun dropped enough that the gulf breezes chased them away  More often, baseball was enjoyed by sitting on the patio in San Antonio with my parents and listening to Astros games on the radio before baseball televised more than the Game of the Week and the World Series. It was simply wonderful.

The World Series, like baseball in general, is simply not the same now.  Money, not the love of the game, is the driving force and has been for quite some time.  When it is all about money the quality of life, or baseball, has taken a turn for the worse.  Until there are enough of us voting with our wallets to reverse the changes you have described, that is the way it will be.  So I suggest we have the wisdom to simply adapt to what we are unable to change, and focus on the things in baseball that have not changed for the worse. 

I like the fact that I am sitting in an air conditioned ballpark in August instead of sweating my butt off.  I like the variety of the food since I don't need the sodium in three hot dogs anymore.  I am thrilled about going to an afternoon game.  Since I can't afford an exotic sports car, watching a baseball game in the afternoon instead of sitting in an office or classroom is the ultimate way to honor Ferris Bueller in my book.  And lastly, I absolutely love the fact that I can get warm peanuts at the ballpark!  

Now, if they don't keep the warm peanuts, Crane and I will need to have a talk.  Until then, I will revel in the baseball traditions that remain, and honor the ones that are gone. 

Nice work, Bill.

My favorite Astros memory is from back in 1980 when the Astros went out to LA with a three game lead on the final weekend of the season. As fate would have it, they got swept and had to play a one-game playoff on a Monday. We were in middle school at the time. When the game began the principal put the radio broadcast on the school's intercom. We all sat at our desks and listened as the game unwound. I don't remember any of the details - other than that the Astros won - but I will never forget the feelings that afternoon evoked.

Since I don't have a son, I take my daughter's to sporting events. We've been to high school football games, Astros' games and Longhorn games. My mom was an only child and her parents loved sports so she spent her childhood going to the rasslin' matches at the old Coliseum and football and baseball games.

I will never forget the first games I took my girls to go see. One of my fondest memories is taking my oldest up to College Station to watch the Horns beat up on the Aggies. We took the bus back to the mall to get to the car. My daughter fell asleep on the ride. As I carried her out of the bus I could hear a woman behind us telling someone "that's precious."

I remember the games my dad took us to when I was growing up. I probably didn't appreciate it as much back then, but I look back at those days fondly now. I just hope my girls have the same feelings years from now.

Book review: The End of War - how waging peace can save humanity, our planet and our future

Paul K. Chappell's latest book, The End of War, isn't on the newly released list - but I just found out about it a couple of weeks ago. And, although I may be late to the party, the wait was well worth it.

Mr. Chappell was a captain in the US Army so his is a very intriguing look at the causes of war and the ways we can avoid war in the future. As Mr. Chappell sees it, peace activists and soldiers have a lot more in common that you would think - they both want peace and an end to war. Those striking the drums of war aren't the soldiers; they're the politicians and others who have something to gain from sending young men to the deaths in other parts of the world.

War, according to Mr. Chappell, results from fear. Fear tends to provoke one of two reactions: one either runs or one displays warning aggression. Warning aggression is a way for animals, and people, to try to scare off a perceived aggressor. For instance, if you're out in the woods and you see a bear, the worst thing you can do is run. If you run, the bear will chase you down and you'll have a very serious problem on your hands. On the other hand, if you act aggressively toward the bear, the bear will leave because the bear isn't looking for a fight.

Warning aggression is what the nuclear arms race and mutually assured destruction was all about. Neither the US nor the Soviet Union ever intended to use their vast arsenals of nuclear weapons. But the existence of those arsenals prevented the other side from even thinking of launching an attack.

Address the issue of fear and you address the cause of war. If you have any doubts, just look at how politicians and some in the media instill fear in the minds of the American public while beating the drums of war.

For many animals, warning aggression ends any potential conflict. But, if an animal is backed into a corner with no escape, conflict will ensue. And that's the way in which countries get dragged into wars. When a nation has no way of backing down from a conflict - war will come.

Mr. Chappell also posits that there are three universal laws of conflict that sow the seeds of war. The first of these laws is the more complex something is, the more things there are to go wrong. Human society is very complex and our relationships with others are complex. With a multitude of political and religious beliefs, there are many ways these relationships can break down.

The second law is very similar to the concept behind chaos theory - in a complex system, one small problem can create a very big problem. As the saying goes, a butterfly flapping its wings in China can cause a hurricane in the Gulf.

But there is hope still. For, increasing understanding can overcome increasing complexity. The more we understand ourselves and our neighbors the easier it is for us to get past the two laws of complexity. The more you understand someone else, the more you realize that your differences are far smaller than your similarities. We all want three things: food, shelter and clothing. The ways we go about getting those items may differ, but our needs are all the same.

Throughout the book, Mr. Chappell makes reference to Gandhi and Martin Luther King, Jr., and their nonviolent struggles for freedom. He points out that both men taught understanding, patience and tolerance. Their goal was to transform a society, not to rip it apart. We have this perverse notion that the only way to obtain peace is through war, but, as a soldier, Mr. Chappell has seen the incredible devastation that war brings. His mission is to fight for peace without the use of violence. His "weapons" are understanding and unconditional love.

Sure, there are parts of the book that might seem pedantic and simplistic, but, if you sit down and think about what he's saying, you will come away with a greater understanding as to what fuels conflict and what we can do to end it.

GOP math

On Tuesday Republican voters in Mississippi and Alabama went to the polls for their respective state primaries and dealt another blow to presumptive GOP nominee Mitt Romney's run for the White House.

To date Mr. Romney has a comfortable lead in the delegate count - which is the only count that matters. However, voters in the Deep South rejected Mr. Romney's candidacy by a better than two-to-one margin. Mr. Romney only captured 29% of the vote in Alabama and just over 30% in Mississippi. Hence, some 70% of the voters didn't want Mr. Romney to win the nomination.

As he limps toward the convention, Mr. Romney ought to send a thank-you card to Newt Gingrich for staying in the race and taking votes and delegates away from Rick Santorum.

As the wheels of injustice slowly turn

Brian's right. It is sheer madness to even contemplate setting every criminal case for trial.

But why is that?

I can't speak as to how criminal cases proceed outside Texas, but here the system is stacked against the accused who wants to hold the state to its burden. Clients grow weary of returning to the courthouse every three-to-four weeks just to hear their name called and to sign a reset form.

It's a drag. It's inconvenient for anyone who has a job. It puts their lives on hold.

They want their case over with and they want it over with yesterday. But in Harris County, the system is set up to slowly, but surely, grind down those who resist throwing in the towel.

Then there is the trial tax. That perverse device that provides an incentive for an innocent man to plead guilty in order to avoid a harsher sentence. As South Carolina criminal defense attorney Bobby Frederick so eloquently put it:

The reason innocent people plead guilty is that they understand the system is rigged. In as many words, their lawyers explain to them how the system is rigged. You can plead now, and walk away with a light sentence or probation; or you can go to trial and risk spending a significant portion of your life in a prison cell. Some judges, although not all, will punish a defendant for exercising his or her constitutional rights - a probationary or light sentence following a guilty plea becomes maximum and/or consecutive sentences following trial. Defense lawyers advise their clients of this and advise them that the risk is not worth it.

Some judges will do their best to discourage people from exercising their constitutional right to face their accusers by outright threat. I've brought a client to the bench to tell the judge we wanted to go to trial on his case; the judge (now retired) told my client that he was looking at spending the next six months in jail if he went to trial and lost. It wasn't that he was being nice and informing my client of the possible range of punishment in his case - no, he wanted to scare my client into pleading.

If you've ever been in the holdover tank at the Harris County Criminal (In)justice Center, you know that folks are lining up to enter a plea for time served - no matter how weak the case. They'd rather deal with the consequences of a misdemeanor conviction down the road than sit in jail fighting their case.

Judges know this. The prosecutors know this. The cops know this.

They all know that upwards of 90% of criminal cases don't go to trial and that the vast majority of those cases end up in guilty pleas.

And so it continues.

If you know you're not going to have to come to court with any evidence, it makes it easier to harass the citizenry by taking them in on bogus charges. How many times have you seen a person charged with possession of marijuana where the probable cause to stop was not walking on the sidewalk? And what about searching the car because the driver made "furtive gestures?"

We frequently hear commentators lamenting the low voter participation in elections across the nation. We're told the American people are taking their greatest freedom for granted. Some folks will even tell you that you give up your right to bitch if you don't vote.

But where's the concern for the people who aren't exercising their constitutional right to trial by jury? Their right to confront their accusers? Where's the lament as we allow the courts to gut the Fourth Amendment by carving out so many exceptions that the original intent is emasculated?

The greatest tragedy in this county is an innocent person pleading guilty. If we accept things as they are, the machine will never stop.

Economic doublespeak

Newt Gingrich is promising you gas will sell for $2.50 a gallon if you'll just put him in the White House. In the world according to Newt, the rapidly rising price of gas is all President Obama's fault. If we'd just allow the oil companies to drill anywhere and everywhere they want, if we just allow the oil companies to build pipelines over fragile ecosystems, if we just allow the oil companies to sink more wells in the Gulf, then the price of gas would tumble and we could all afford to drive our giant SUV's up and down the block.

Rick Santorum says the answer is fracking shale deposits to get the oil out. Now, nevermind that extracting oil from shale is a very expensive process and that the only reason oil companies are doing it now is because the high price of oil justifies the expense. More expensive methods of production only become profitable when prices increase. There's a reason no one was drilling for shale oil when the price of gas was only $2 a gallon.

Both candidates are trying to sell the American people a bill of goods. Either they are both being very disingenuous in their campaigning, or neither one understands the first thing about economics. I won't hazard a guess, but y'all are more than welcome to.

Mr. Gingrich is under the illusion that the more oil we pump from the United States, the lower the price of gasoline. The problem with Mr. Gingrich's analysis is that the price of oil isn't determined by the Texas Railroad Commission like it was up until the early 1970's. Oil prices are determined on commodity exchanges around the world. Increasing the supply of US-produced oil is not going to bring the prices at the pump down to $2.50 a gallon - unless the government institutes price controls.

With more domestic production, the US may be more "energy independent," but that won't translate to lower prices for gasoline. If the US is less dependent on foreign oil then events around the world may have less of an impact on the supply of oil in the states, but the price of oil will be determined in markets around the world. And so long as their is political instability in the Middle East and increasing demand due to development around the world, the price of oil will remain high.

Just another slap on the wrist

In Brady v. Maryland, 373 US 83, 87 (1963), the US Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

There is no requirement that a judge instruct the prosecutor to turn over the evidence. A simple request by the accused is all it takes to trigger Brady. The accused doesn't even need to know the specifics of any of the evidence - once he requests it, the state is under a continuing duty to provide any evidence that might conceivably be exculpatory.

Of course, unless you know exactly what you're looking for, you'll never know if you received it. You can speculate all you want, but if no one ever mentions the existence of the evidence, there's not a damn thing you can do about it.

When los federales decided to prosecute then-Senator Ted Stevens of Alaska, they made the conscious decision not to turn over evidence that was favorable to the late senator. No one outside the Justice Department knew about the withheld evidence until Attorney General Eric Holder asked that the conviction be set aside in 2009.

Mr. Stevens never knew about how he had been railroaded because he died in a plane crash in 2010, before the results of an investigation ordered by Judge Emmet Sullivan were released. Mr. Stevens' reputation was ruined as a result of the prosecution. The report, authored by attorney Henry Schuelke III outlined the systematic method by which prosecutors denied Mr. Stevens his right to a fair trial.

Despite the evidence of the scope of the misconduct, Mr. Schuelke did not recommend that the prosecutors face criminal charges for their actions because Judge Sullivan hadn't given prosecutors a "clear and unequivocal" order to follow the law.

“Does it concern you that the only reason these prosecutors escaped criminal charges is that the judge in the Stevens case didn’t file an order specifically telling the prosecutors that they should follow the law?” Sen. Kay Bailey Hutchison (R-Texas) asked Holder today.

That's funny, I never knew that our obligation to follow the law depended upon a "clear and unequivocal" court order to do so. Brady is quite clear when it comes to the duty of a prosecutor to hand over exculpatory evidence to the accused. There was no need for a judge to lean over the bench and inform the prosecutors that they needed to follow the law.

This week the Justice Department is set to release an investigative report that details the ways in which the prosecutors handling the case disregarded their ethical duties and knowingly withheld evidence in order to obtain a conviction. The report is expected to call for sanctions against the prosecutors.

But what sanction is appropriate for the people that smeared Mr. Stevens' reputation? The only appropriate sanction is disbarment. Until prosecutors who violate Brady are punished, the practice will only continue. As it stands, the only sanction is that a conviction may be overturned should a court find the violation wasn't just harmless error.

It remains to be seen whether anyone has the backbone to hold the state to its duties under the law.

Maryland court finds DRE to be unreliable

In 1979 two sergeants with the Los Angeles Police Department cooked up the Drug Recognition and Classification Program (DEC). The National Highway Traffic Safety Administration (NHTSA) climbed on board the bus and developed a standardized curriculum. The International Association of Chiefs of Police became the national certifying agency in 1990.

Police officers without formal scientific training sign up for a 72-hour (clock hours, not semester hours) course in which they learn about seven categories of drugs and are taught to administer a 12-step test (how tastefully ironic) to drivers suspected of being under the influence of drugs. Should they pass a test with a score of at least 80% they are certified as drug recognition experts (DRE).

And, in courtrooms across this country, police officers with no more knowledge than that are allowed to give expert opinions about what drug a motorist was under the influence of while driving. Jurors who have been trained since childhood to trust the police then take this testimony back into the deliberation room with them when deciding whether or not the government proved its case beyond all reasonable doubt.

It happens because judges are scared of their role as gatekeeper of what the jury hears and sees. Too many of the men (and women) in black dresses are fearful of their prospects for re-election should they actually enforce the Constitution and the rules of evidence.

Judge Michael Galloway of the Circuit Court for Carroll County, Maryland, wasn't afraid.

He was asked to determine whether such testimony was admissible in a DWI prosecution. He said it was not.

The state presented six expert witnesses who all claimed that the DRE program was valid, only one of whom was a licensed physician.

Dr. Karl Citek, an optometrist, did not attend medical school. He said he was an adjunct faculty member at the Institute of Police Technology and Management where he taught a three-day class on the medical and science background behind the DRE program. By his own word he stated that the officer conducting the DRE is "making a diagnosis of whether the person is impaired by a drug or medical condition." He also testified that the program does not provide for a set number of indicators that a DRE needs to observe to reach an opinion.

Ms. Michelle Spirk, a chemist with the Arizona Department of Public Safety, had been "heavily involved in the DRE program" for many years. She was only qualified to testify as to the possible effects of a drug and could not testify as to its effect on driving.

Mr. William Tower III, a law enforcement liaison with NHTSA, noted that officers entering the DRE program were not required to have had any prior medical training and that by taking the course and passing the test with a score of at least 80%, any officer could become a DRE. He claimed that the DEC program was designed so that officers could conduct a "systematic and standardized" evaluation to determine whether a person was under the influence of a drug. Then he went on to say that the opinion reached by the DRE would still be valid even if he didn't complete all twelve of the steps in the protocol.

Mr. Tower testified that even if no drugs at all are found in the subject's blood, the DRE is "not going to change [their] opinion after you get the blood. Mr. Tower stated that the reason there would be no change in the officer's opinion is that "you are limited on what the lab can test for." - State of Maryland v. Consolidated Cases

Officer William Morrison, coordinator of the Montgomery County Police Department's Chemical Test Unit, testified that the DRE is "specifically making a medical diagnosis during the examination by ruling out medical conditions during the examination." This from an officer with no medical training or background. He went on to say that he wasn't concerned about the individual indicators because he looked at the "totality of everything" in reaching his opinion.

Dr. Zenon Zuk told the court he had last read the DRE manual fifteen years ago - but that didn't prevent him from testifying on behalf of the protocol fifteen times. Interestingly enough, Dr. Zuk also works with the Western Branch of the U.S. Immigration Service sedating deportees with drugs. No one asked if he had a framed portrait of Dr. Joseph Mengele on his desk. His interest in the DRE program began with his fascination with Tharp's Equation. For those not up on their junk science, Tharp's Equation states that you can predict a person's alcohol concentration by subtracting the angle of onset of horizontal gaze nystagmus from 50 degrees. Just try finding that in a medical textbook or journal.

The defense experts were Dr. Fran Gengo, Dr. Neal Adams and Dr. Jeffrey Janofsky. Dr. Gengo is pharmacologist who has published 65 peer-reviewed articles, three of which dealt with drug-impaired driving. Dr. Adams is the chair of Ophthalmology at the Texas Tech Medical School. Dr. Janofsky is a professor of psychiatry at Johns Hopkins University School of Medicine.

Dr. Gengo testified that the DRE protocol uses tools used by the police in a "novel and unreliable way." He also testified that drugs can have a myriad of effects on an individual that aren't addressed in the DRE manual.

"[T]he data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." -- Dr. Fran Gengo

Dr. Adams testified that there was no validity to Tharp's Equation. He also had problems with the DRE matrix because it focused more on the category of drugs rather than the relative weight of the drugs and because police officers don't have the judgment nor experience that doctors have in making medical diagnoses. He listed a series of questions regarding nystagmus that are unaddressed in the DRE protocol.

"Medical judgment is using items that may be in a matrix and placing our own experience, our own understanding of the medical literature, placing the knowledge that we have gained into that matrix, understanding the relative weights of different items in that matrix and coming out with a judgment. So that even if we were using this matrix in its totality without anything else, there is an element of judgment that we as physicians would incorporate to assist us. And that is not present; that is, it is a very important component of the matrix that is not present in this matrix. And that is what I was trying to get at is how we as physicians interpret these." - Dr. Neal Adams

Dr. Janofsky was concerned that the DRE protocol had never been validated in any peer-reviewed scientific journal. He testified that the DRE protocol was neither a diagnostic test nor a standardized protocol because it required clinical medical judgment for someone to come to a valid conclusion. Finally, Dr. Janofsky testified that there is a difference between the presence of a drug and evidence of impairment by that drug.

In its review of case law from other states regarding the DRE, the court found instances in which DRE testimony had been permitted because it wasn't scientific evidence. The state argued that the DRE's opinion was formed on the basis of his knowledge and experience. Judge Galloway didn't bite at that apple.

The state wants to have it both ways. It wants to present the evidence as if it's the result of a scientific process but it doesn't want to have to meet the burden established by Daubert for the admissibility of scientific evidence. Prosecutors know that if they can have a police officer color up a protocol that lacks any scientific validity with some words and phrases that convey it as being valid and accepted, then a jury will eat it up like candy.

In the end, Judge Galloway found that the DRE protocol was a novel technique that was not generally accepted in the scientific community. He also found that, even if the DRE protocol wasn't scientific evidence, that a DRE "is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect."

Unlike many judges who are unwilling to upset the apple cart, Judge Galloway was swayed more by his concern over a defendant's right to due process than judicial efficiency.

DREOrderExcludingDREMarylandMarch52012

No means no, unless it doesn't

"Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes." -- Tennard v. State, 802 SW2d 678, 683 (Tex.Crim.App. 1990)

That pronouncement by the Court of Criminal Appeals seems to put the matter of the admissibility of polygraph examinations to bed. The Court was concerned about the lack of reliability of a "test" that relied entirely upon the interpretation of one person.

William Leonard pled guilty to felony injury to a child and was placed on five years deferred adjudication. In other words, Mr. Leonard entered a guilty plea before the bench and the judge deferred a finding of guilt until a later date. If Mr. Leonard could complete his probation successfully, the case against him would be dismissed.

But, since we're discussing Mr. Leonard's case in this forum, you know it did not end well for him. As part of his conditions of probation, Mr. Leonard was required to attend counseling sessions for sex offenders and to submit to polygraph examinations.

On several occasions the polygraph examiner determined that Mr. Leonard was being deceptive. As a result he was discharged from the counseling sessions. The state then filed a motion to adjudicate Mr. Leonard's guilt. For those of y'all not familiar with the peculiar ways of the Lone Star State, a motion to adjudicate guilt is the way in which a prosecutor seeks to have a judge enter a finding of guilt in the underlying case. At a hearing before the court, the state argued that Mr. Leonard had been "unsuccessfully discharged" from the counseling sessions and that he had failed to make satisfactory progress in his treatment.

At the hearing the state called George Michael Strain, the psychotherapist who booted Mr. Leonard from the program. Mr. Strain testified that he kicked Mr. Leonard out of the program due to his failing five polygraph examinations. Mr. Leonard objected to the admissibility of the tests. The court, overruling Mr. Leonard's objections, granted the state's motion and entered a finding of guilt in the case.

On appeal, the Eastland Court of Appeals, in Leonard v. State, 315 SW3d 578 (Tex.App.-Eastland 2010), reversed the finding of guilt and ordered the case back to the trial court on the grounds that the results of the polygraph tests were inadmissible.

Well, that didn't sit too well with the District Attorney who appealed to the Texas Court of Criminal Appeals.

Judge Lawrence Meyers wrote for the 5-4 majority that in an administrative hearing the results of a polygraph examination are admissible because the judge isn't determining guilt and because there is no jury to be confused by the evidence. The Court held further that the failed test results were admissible as they were the basis of an expert's opinion as to why Mr. Leonard was discharged from the counseling program.

There were a couple of things that struck me as odd in that opinion. First, the Court had made it crystal clear in 1990 that the results of polygraph examinations were inadmissible for "all purposes." Not much wiggle room in that now, is there? Even though Judge Meyers makes a distinction between a trial and an administrative hearing, the Court made no such distinction in 1990. The Court wasn't presented any evidence that the tests were any more reliable in 2010 than they were in 1990.

Second, Judge Meyers was just plain wrong when it came to his rationale for admitting the test results in a hearing on a motion to adjudicate. Yes, it's an administrative hearing. Yes, the state's burden of proof is much lower than at trial. But, and this is a very big but, the entire purpose of the hearing in Mr. Leonard's case was to determine whether or not he was to be adjudicated guilty of the underlying offense. In other words, the judge was determining guilt.

In her concurring opinion, Judge Barbara Hervey acted as a mouthpiece for prosecutors when she said that issues of admissibility of scientific evidence were the purview of the trial courts, not the appellate court. I guess she would just as soon sidestep the entire issue of court precedent.

Apparently she was quite upset that Judge Cathy Cochran dared to write about the dearth of evidence that polygraph exams are reliable. Of course Judge Cochran was just following the principle of stare decisis as the trial court had not conducted a gatekeeper hearing to determine the admissibility of the test results.

Apparently conservative judges can be quite the little activists when it comes to finding ways to affirm convictions.

Indiana crime lab miscues cast doubt on convictions

There's a tempest a-brewing in Indiana following the release of a report by the Indiana Supreme Court stating that the state's crime lab reported incorrect results in 500 cases. A panel headed up by two judges from the Court of Appeals found five tests in which the substance reported by the lab wasn't even in the sample. The panel also found about 500 other instances in which the samples were inadequate for retesting or showed the presence of other chemicals.

The Court did not, however, address whether the test results from those samples would hold up in court.

Up until last summer, the Indiana University School of Medicine was conducting an audit of the state Department of Toxicology's lab. That's when the governor decided to take over the investigation and appointed a panel who neither heard nor saw anything about the lab that gave them reason to be alarmed.

Funny how that works, ain't it? Who can forget Governor Rick Perry's assault on the state's Forensic Sciences Commission once it looked like folks would find out the state killed an innocent man? Gov. Perry's mouthpiece, Williamson County DA, John Bradly (who's looking more and more like he's on the way out courtesy of the voters), ended the panel's investigation of the Cameron Willingham case before expert testimony would be heard casting serious doubts on the junk science used by two "arson investigators" during the investigation of the fire.

Of the 500 cases reviewed, 497 of the defendant pled guilty and 18 are still in jail.

Some people may have pleaded guilty based on bad lab test results, said Larry Landis, executive director of the Indiana Public Defender Council. 

“Public defenders rely on those results,” he said. “You assume they are right.”Landis added that most public defenders and their clients don’t have the time, money or expertise to challenge lab results. 

“And until recently,” he said, “there was no reason to.”

Now while Mr. Landis is correct that most indigent defendants lack the resources to challenge the test results, he is wrong that public defenders lack the resources. It is the job of a defense attorney to defend his client vigorously. And that means not taking any piece of paper offered by the prosecutor as the gospel truth.

That piece of paper from the lab is nothing more than an allegation that something is what the crime lab says it is. It is no more or less credible than any other evidence that may be put on at trial.

Why didn't anyone file a discovery request for lab protocols? Why didn't anyone file a discovery request for the qualifications of the people performing the tests? Why didn't anyone file a discovery request for records of audits of the lab?

Is it because their clients were in custody and couldn't afford to post bail? Was it because it was easier to negotiate time-served-and-a-fine rather than fight the case? Was it because the public defender's office was under budgetary pressure to move cases? Or was it just because someone was too fucking lazy to do anything other than tell their client he needed to plead because of what was written on a piece of paper?

What happened in Indiana happens because we aren't doing our jobs. We aren't holding the state to their burden of proof. We aren't challenging scientific evidence at trial. We aren't getting the records for ourselves.

If we just accept the state's evidence at face value we are doing a disservice not only to our clients, but also to everyone else who might someday find themselves caught up in the criminal (in)justice system.

When the other shoe drops

It's a photo in need of a story.

The other morning I was walking along Congress Avenue alongside the civil courthouse. And there it was. Just sitting there on the sidewalk. One right shoe.

No sign of its partner.

When did it arrive? Who left it? When? More importantly, why?

Somewhere someone was wandering around with but one shoe. Did the person even know the shoe was missing? Or, more precisely, that they were missing the shoe?

The times they are a-changing

Oh I know I'm supposed to change with the times. I need to get out of the past and see the future for what it is. Things will evolve and those elements that get squeezed out really didn't need to be there in the first place.

I can tell you that I don't like it. I don't like it one damn bit.

Baseball has always been a game that reflected the rhythms of our lives. Out of the depths of winter pitchers and catchers grab their gear and head to Florida (or Arizona), followed soon after by everyone else. Just as spring training counts us down to Opening Day - it also counts us down to spring.

Everything comes alive. Everyone is amped and ready to believe that this could be the year. You follow the games in detail. It's fresh and it's exciting. Then spring fades into summer.

Baseball becomes a backdrop. You follow your team for a while and then get caught up in other things only to be drawn back in at a later date. The season's so long you can afford to let it linger in the background for a while.

Then, as summer turns into fall, as the temperatures fall, the heat of the pennant races rises. Every game matters. You can't tear your eyes away from the sports page (or the website) for fear you might miss something.

And then, with one last climax, as folks start to bundle up for the coming winter - it's all over.

But things are different this time. This season is the last year for the Astros in the National League. Starting next year the 'Stros will be playing in the AL West. Goodbye, St. Louis. Goodbye, Chicago. Goodbye, Atlanta.

When I was born the only two teams that survived to play in the post-season were the NL and AL champs in the World Series. In 1969 Major League Baseball split the leagues into divisions and doubled the number of teams in the playoffs. Now the reward for winning the most games wasn't a trip to the Fall Classic - it was home-field advantage in a playoff.

In 1973 some genius decided that there wasn't enough offense in baseball and the American League introduced the worst single change in the history of baseball - the designated hitter. Ever since the days of Abner Doubleday, if you wanted to swing the bat, you had to play in the field. Sure it made things easier when you got to the bottom of the order - but that was part of the game. Now the field was opened up to players who couldn't field to save their lives or who were too out of shape to cover first base.

In the 1990's Bud Selig then did his best to ruin baseball with the wild card and interleague play. The All-Star Game and the World Series were always special because they were the only times you ever saw American League players on the same field with National League players. They played under two different sets of rules. The umpires dressed differently. Then the Milwaukee Brewers left the AL and moved to the NL.

For the first time a team who couldn't even win their own division was given the gift of a trip to the post-season. Now the reward for winning the most games was reduced to getting homefield advantage in two playoff series. Why even bother?

Now, in his very finite wisdom, Mr. Selig has decreed that yet another team not good enough even to win its own division will be rewarded with a trip to the post-season. Prior to 1969, only the top 10% of clubs (2 of 20) made the post-season; in 2012, fully 33% of the clubs (10 of 30) will be rewarded. We've gone from rewarding the elite to rewarding the slightly better than average.

And, you know it's coming. I don't know when. But I do know that at some point in the (not so distant) future, the DH will appear in the National League. It's inevitable. With the Astros moving there will be 15 teams in each league (which reminds me - why isn't Arizona moving? No one goes to their games. No one cares about baseball in Phoenix except when the Yankees and Red Sox come to town), there will always be a pair of teams playing an interleague series. How much longer will baseball allow the two leagues to play with different rules?

Yeah, I'm cranky about it. I acknowledge that technology has made life better over the course of my lifetime - but we're talking about baseball. Baseball always had a timeless quality about it.

Sure, I'll be fired up on April 6 when my oldest and I head out to Minute Maid Park for Opening Day. It's out tradition. We'll get out there early, sit on the grass out front and eat peanuts and chew sunflower seeds. We'll go inside, get a program, a scorecard and a pair of hot dogs and enjoy the magic that unfolds on that first day of the season. After the sixth inning we'll leave our seats and go down to the kiddie area, buy a frozen lemonade and play until the game's over. Then we'll head outside and watch the fireworks from up the block. For one day I'll forget about the changes that are ruining the game I grew up with. For one day I'll lose myself in baseball.

But I'll get over it.

It's still illegal

Ol' Big Jolly is happy as a clam to report that Pat Lyko's DIVERT program is doing precisely what it set out to do - reducing the number of folks who elect time served and a fine when charged with driving while intoxicated.

The idea all along was to force people to accept probation or apply to DIVERT so that the county could keep them under its thumb for a year. Any defense attorney worth his salt will tell his client that time served and a fine is a better deal than probation - the only downside is having to apply for an occupational driver's license.

Why would anyone in their right mind choose to go see a probation officer once a month, swear off alcohol for a year, do community service and pony up money every month to the county? Why when you've already done two days in jail (2-for-1, remember) and you can get out of the courthouse only owing some money?

The Lykos administration convinced 14 (maybe just 13) of the 15 misdemeanor judges to forget that the minimum sentence for a first-time DWI is three days in jail and up that to 30 days. By agreeing not to consider the full range of punishment, these judges coerced defendants into applying for DIVERT or taking probation if they couldn't qualify.

And yes, Big Jolly, DIVERT is illegal. And, as a self-professed conservative, I would think that would mean something to you. But then, it's best not to allow logic or integrity into the political process - it will only cause one's head to explode. The state legislature said no deferred adjudication for driving while intoxicated. None.

And that's exactly what DIVERT is. When a defendant applies for the program and is accepted, that defendant must appear before the judge and enter a plea of guilty. The judge then defers a finding of guilty until such time as the defendant has completed the program.

That's deferred adjudication. And that's not allowed for driving while intoxicated.

Now there's a school of thought that the DPS won't object to any petitions for expunction because no one else will and because they don't want to cause havoc in Harris County. That remains to be seen. And, regardless of whether or not the DPS objects, the program is still illegal and it has tainted the criminal (in)justice system in Harris County.

H/T Grits for Breakfast

The high cost of murder

In 2010 the lethal drug cocktail used by the State of Texas to murder inmates cost all of $86. The cost of the lethal cocktail the state used to kill Keith Thurmond last night was $1,286.66. This according to the BBC.

That's a fifteen-fold increase in just two years.

The reason for the increase is the unavailability of thiopental sodium.  Many states, including Texas, have switched to pentobarbital as the first drug in the lethal cocktail.

It is unclear how long pentobarbital, the current replacement drug, will be available. 

The only company approved by US drug regulators to market the sedative in the US, Danish pharmaceutical giant Lundbeck, has just sold the drug to Illinois company Akorn, which has pledged to restrict distribution of it to prevent it being sent to prisons in capital punishment states. 

Now, purchasers must sign a form affirming they will use the drug, normally used to treat epilepsy and other conditions, on their own patients and not resell it without authorisation

And that's just the cost of the drugs. We're not even talking about the massive amount of money Texas spends every year to prosecute capital cases, the amount paid to defense attorneys representing indigent defendants and the amount spent on direct appeals. The estimated cost of a capital prosecution in Texas, according to Richard Deiter of the Death Penalty Information Center, is $2.3 million.

California has spent almost $4 billion to fund its capital punishment system, despite only carrying out 13 executions since 1978. This in a state that is struggling to pay its own bills and has slashed its education budget. Aren't there better users for our resources?

The state of Washington spent $97,814 (£62,004) to execute Cal Brown in 2010.

Ronnie Lee Gardner's 2010 execution by firing squad cost Utah $165,000 (£105,000). Most of that was staff pay, but $25,000 (£15,800) went on materials used in the execution, including the chair to which he was strapped and the jumpsuit he wore, a corrections spokesman told the Salt Lake Tribune.

The execution of rapist and murderer Robert Coe in 2000 cost Tennessee $11,668 (£7,395), according to a report by the state comptroller. That included medical supplies and personnel and the death drugs.

In 2010, only 23 countries around the world carried out executions. That puts the United States in the same company as China, North Korea, Somalia, Libya, Saudi Arabia, Iran and Yemen. Hardly a Who's Who of representative democracies.

It's well past time we rethought our approach to capital crimes. It's time we took a serious look at with whom we keep company. This is the 21st century, surely we can do better.

Everyone is presumed innocent, except for...

If there was ever any doubt that the Attorney General is just the mouthpiece for the President of the United States, those doubts should be erased after Eric Holder bent over backwards to defend the summary killings of Americans abroad at a speech on Monday at Northwestern.

"The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen." -- US Attorney General Eric Holder

You see, Mr. Holder, we have this thing called the Bill of Rights that's supposed to serve to limit the power of the state to interfere with our lives and the lives of our fellow Americans. We have this concept that an individual, no matter what he's charged with, is innocent unless proven guilty beyond a reasonable doubt in a court of law.

People walk away from courthouses not guilty every day of the week. And, as we all know, in some cases they  got away with it. But that's the price we pay in this country for limiting the power of the government to take away a man's freedom - or his life.

"They are claiming the authority to kill any American citizen whom the president deems to be an enemy of the state and that authority is not reviewable before the fact by any court and it's not reviewed after the fact by any court." - Jameel Jaffer, ACLU

We see the stories on a regular basis of men who have spent decades in prison - some of them on death row - before being exonerated. It's a dirty little secret that the state sometimes gets it wrong - way wrong.

Maybe Anwar al-Awlaki was working with the enemies of the United States. Maybe he was aligned with terrorists. But, even if he was, Mr. al-Awlaki was an American citizen and he enjoyed (at least he thought he enjoyed) the rights afforded us under the Bill of Rights.

He had the right to be presumed innocent. He had the right to be informed of the charges against him. He had the right to confront his accusers. He had the right to have a jury decide his fate.

"Killing persons far from armed conflict zones must follow law enforcement rules to comply with fundamental human rights. The president cannot assert that the U.S. is in a worldwide war or use the interstate right of self-defense to do an end run around law enforcement principles." - Mary Ellen O'Connell, Notre Dame School of Law

But not according to President Obama and his lackey, Eric Holder. They can genuflect all they want but it doesn't change the fact that they violated Mr. al-Awlaki's constitutional rights. He was not afforded due process. There was no indictment. There was no public trial. There was no jury to decide his fate.

Nope. President Obama decided that the Constitution didn't apply to Mr. al-Awlaki because he didn't agree with what Mr. al-Awlaki had to say.

And then the administration wants to have it both ways when it comes to publicizing the death list. When President Obama feels that it helps his poll numbers, we get a speech from someone in the administration about the process; but, if someone sues over the summary killing of an American, it all becomes a state secret.

According to Mr. Holder, the president's authority to order the summary execution of Americans overseas comes courtesy of Congress and their authorization to use "necessary and appropriate force... to protect the nation from any imminent threat of violent attack."

And then he goes on to add that the US is up against a stateless enemy and so he has the authority to order a summary execution of any American anywhere in the world who poses "an imminent threat." So much for limited government. And so much for upholding the oath Mr. Holder took when he was sworn in as an attorney.

Mr. Holder's speech at Northwestern University was supposed to be followed by a question-and-answer session, but after realizing that there was no way to square the program with the Constitution, Mr. Holder cancelled the Q&A lest he make a complete ass of himself trying to justify it.

Yeah, it's a dangerous world out there, but sometimes that's just the price we pay for freedom and liberty.

xxx

Bennett for Court of Criminal Appeals

If there was ever a place that needed a proponent of limited government it is the Texas Court of Criminal Appeals. In no other area is the need to limit the power of the government quite as profound.

The government has the power to take away a man's life - either by force or by time. It is the most frightening power imaginable and it is that power that must be limited. And the most effective way to limit that power is to enforce the right of the people to be left alone by the government.

That right, in turn, is protected by the Fourth, Fifth and Sixth Amendments. The courts have only been too happy to ignore the words in the Constitution and substitute their notion of judicial efficiency and economy in their place. In order to affirm lower court decisions, our appellate courts have looked for every possible way to justify actions of the state that violated the provisions of the Fourth, Fifth and Sixth Amendments.

Into the void must step a person who is willing to stand alone to defend those rights.

Mark Bennett is that person.

Mark can be abrasive. He can be snarky. He can be a tad bit arrogant. But he is also a man of conviction. He is a man who believes that the power of the government must be limited by enforcing our right to be left alone.

Mark Bennett is running for a seat on the Texas Court of Criminal Appeals as a Libertarian.

Now if you're happy with the current state of the criminal (in)justice system in Texas, Mark isn't your man. If you think it's okay for the Chief Judge to shut down the clerk's office to prevent a man's attorneys from filing a last minute pleading, then Mark isn't your guy. If you don't understand that when the state takes away the rights of those people, that they are taking away your rights, then Mark isn't for you.

But if you believe that right must trump expediency, then you need to get out and vote for Mark Bennett.

See also:

"Mark Bennett, Court of Criminal Appeals," Simple Justice (March 5, 2012)

Who really wants limited government?

Mitt Romney, Rick Santorum, Newt Gingrich and every other wingnut and wanna-be wingnut preach that government is too big. That's it's too powerful. That the biggest threat to liberty is government.

The government wants to micromanage. The government wants to intrude into our daily lives.We want limited government!

Really?

If the current batch of Republicans seeking the party's nomination for president really want to limit the size and scope of government, then why the hell are they involving the government in what folks do in their bedrooms?

I understand why Catholic organizations are a bit miffed that they are being required to provide their employees with coverage for birth control. On the other hand, I think the Catholic church did a good job in encourage Catholics around the world to make more Catholics. Now, with some seven billion of us sharing the earth, I think the time for that policy has long since come and gone.

Perhaps someone can help me out on this, but I don't recall a commandment that reads "Thou shalt not use birth control." That was but a proclamation by the head of the church.

We don't need to politicize health care. We are living with the vestiges of a system designed to stave off the Red Menace back in the 40's and 50's. Employers began offering health care coverage to their employees as a way of placating the unions. Now we're stuck with a bunch of for-profit companies making health care decisions based on cost operating under different rules in every state. It also means that people risk losing their coverage if they change jobs and many whom lose their jobs can't afford the astronomical cost of continuing their coverage.

But that's all beside the point.

We all have the right to be left alone by the government. And defending that right is the essence of limited government. It's not the government's business what a couple does in their bedroom. If a church wants to raise a stink about whether folks conduct themselves according to a code of morality - that's fine. We are all free to ignore what the church says.

But we can't just ignore what the government says. Especially when what it's saying relates to our private conduct.

Folks who work for Catholic organizations have just as much right to the same level of health care coverage as someone working for Ford or Google or the government itself. It's not the workers' fault that our health care delivery system is fatally flawed.

But it is the utmost in hypocrisy for presidential candidates to climb up on the soapbox and preach against the evils of government and the need to reign in its powers and then advocate that the government stick its nose into our bedrooms.

Execution Watch: 3/7/2012

And the killing machine just keeps on chugging away...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

KEITH STEVEN THURMOND. The former master mechanic was convicted of shooting and killing his estranged wife and her boyfriend in Magnolia in 2001. He lost his federal appeal when he attorney missed a deadline, essentially waiving the last constitutionally required review before his death sentence could be carried out.

For more information on Mr. Thurmonds, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ..."Wednesday, March 7, 2012, 6-7 PM CT
KPFT Houston 90.1 FM, HD-3
Listen online: www.executionwatch.org > Listen


You can find more information on Execution Watch's Facebook page.

The mayor's plan to rid downtown of the homeless

Well, if you can't figure out a way to resolve the homeless issue in Houston, the least you can do, Mayor Parker, is get those folks out of the way of everyone else. You know, out of sight, out of mind. The last thing you want are folks coming downtown for the various festivals in the spring to see homeless people wandering around. Might give those suburbanites the wrong idea and all.

What? You've already thought of that? You mean to tell me you've cooked up a plan to shut down the churches and charitable organizations that provide meals for the homeless?

As those guys in the Guinness commercial would say, "Brilliant!"

So let's get this straight. We're going to issue citations and hit these do-gooders with $2,000 fines if they don't get your permission before handing out the food?

Probably not to much lose with that plan. I doubt most of the homeless folks vote since you have to have an address to do that sort of thing. You figure that most of your liberal core followers will continue to drink the kool aid because you're a lesbian or because they can't be bothered to look at what you actually do rather then what you say.

There may be some citizens of our fair city who have something to say about that this afternoon at 1:30 at City Hall outside council chambers.

See also:

The proposed regulations (pp. 33-45)

Does this thing work?

Well of course the Montgomery County Sheriff's Department needed a drone. Law enforcement agencies are lined up like lemmings outside an Apple store to get their hands on the last must-have toy.

Nevermind those annoying little questions like, for instance, just what the hell do you need a drone for anyway? The people asking that just don't get it. And what fun is it for a SWAT unit to sit outside a building with their rifles at the ready when someone could be flying a remote controlled aircraft overhead?

Okay, forget for a second that the drone can't look inside the building it's flying over. Unless, that is, someone is  holding hostages on the roof.

Not only are the use of drones a growing threat to our right to be left alone by the government, our safety may also be under attack - by the drones themselves.

It would seem there was a little snafu up in Montgomery County the other day. The sheriff, Tommy Gage, his command team and a SWAT unit were conducting a little demonstration of the effectiveness of their new toy law enforcement tool. It was photo op day and the brass were out in force.

Unfortunately, things didn't end quite the way it had all been drawn up. You see, the drone, flying all of 18 feet off the ground, somehow managed to lose contact with the remote control unit. Oops. The drone, having lost its signal, then shut itself off. But the most delicious part of the exercise?

The drone crashed into the SWAT unit's special "Bearcat" armored vehicle. And the need for a law enforcement agency to have an armored vehicle is another subject for another day.

Thank god the officers were well-protected from their own devices.

Montgomery County Sheriff Tommy Gage could not be reached for comment, nor could his chief deputy in charge of his drone program.

I'm fairly certain that Mr. Gage would have only been too happy to talk to reporters after a "successful" photo op. He gets to look like he's really tough on crime and the public gets to see where their tax money goes. Now he just looks like a bumbling fool who wasted a fistful of dollars on a toy plane that doesn't work.

Listening in

While Harris County is looking to install video conferencing in the jail and promising that the integrity of the attorney-client relationship will not be compromised, the word on the street is that the Galveston County Jail was recording phone calls from the jail between inmates and their attorneys. And, as if that's not bad enough, some of these recordings were forwarded to the Galveston County District Attorney's Office.

Of course Jack Roady, the Galveston County DA, claims that the procedure is being stopped. Excuse me, Jack? "Being stopped?" Really. Either the phone calls are being recorded or they aren't. It's quite easy to stop the procedure.

The very fact that those calls were recorded raises the question of whether or not an agent of the state listened. And what about those cases in which the DA didn't request recordings of jail house phone calls? How many people had their right not to incriminate themselves infringed upon by Galveston County? How many had their right to privileged communication with their attorneys violated?

Now it's time for the DA's Office to come clean and notify defendants and their attorneys on all cases in which these recordings were made and forwarded to the prosecutors. If there is any honor in the office, Mr. Roady should sign off on orders granting writs of habeas corpus in each and every one of those cases.

The actions of Galveston County are reprehensible and call into question the validity of the criminal (in)justice system on the island.

Here's a little Blondie for y'all.

In the spotlight

"There is no doubt (the email) is racist. It wasn't forwarded for that purpose. If anything, it was political." -- US District Judge Richard Cebull

That damn internet thing (again)! Surely that's what Judge Cebull is saying to himself over and over again after being caught red-handed forwarding a racist e-mail implying that President Obama was the offspring of his mother and a dog.

The racist part I get. But I'm not so clear about how it's political.

Cebull says he's written other federal judges in Montana apologizing for his conduct and vows he won't ever again send an email from his office that's not business-related.

Of course what's left unsaid is whether or not he'll send such e-mails from his home computer or his phone or his tablet or whatever other devices he may or may not own.

Now judges are human. They have their own personal prejudices and biases. They have their own political and religious beliefs. But most have the good sense to keep those things under wraps while sitting on the bench. Judge Cebull not only showed incredibly poor judgment in forwarding the email, he also bared his prejudice for all the world to see.

"It was not intended by me in any way to become public," Cebull said.  "I apologize to anybody who is offended by it, and I can obviously understand why people would be offended."

Well, no shit. It doesn't look good for a federal judge to be passing along racist e-mails. And then, or course, we have the non-apology apology. Judge Cebull can't even man up and just apologize for his actions, he has to couch it in terms of whether anyone was offended or not. He should be apologizing to everyone - including his buddies whom he thought would get a kick out of it.

Back in the days before the internet we could all have our own little secrets. A letter to a friend was unlikely to fall into anyone else's hands. What was said in public wasn't broadcast immediately. Hell, what was said out loud probably wasn't even recorded for posterity's sake. There was always time to fix and ill-timed retort.

But with texting and tweeting and e-mail  and blogs and Facebook, what we say is instantly transmitted throughout cyberspace. And once it's out there - it's out there. Too late to take it back. Your name is attached to it and it will go far.

Judge Cebull forwarded an e-mail he received (because for some reason he found it worthy of forwarding) to some friends who, in turn, forwarded it to some more friends. Somewhere along the way someone forwarded it to a friend who was a reporter. And there, in black and white, was Judge Cebull's name.

Had he not been so careless we may never have known what an ignorant bigot Judge Cebull is. But the internet casts a bright light on us all.

Ever hear the one about the cockroach wearing a black robe?

See also:

"Should Congress investigate federal judge who forwarded racially charged e-mail about President Obama?" Sentencing Law and Policy (March 1, 2012)

What could possibly go wrong?

With the state's primary finally be set on May 29, I can only wonder what new problems could befall beleaguered Harris County District Attorney Pat Lykos.

You see that's nearly three months for the remaining wheels to fall off the cart. Or for the mule to break its leg. Or for the axle to snap.

Or for another grand jury to investigate the office. It's certainly enough time for an indictment. Another trip to 1201 Franklin by the Texas Rangers? A disgruntled former employee going to the press with damning information? Ms. Lykos could tempt fate by holding another press conference.

Suggestions?

RIP Miss Edna

Edna Milton Chadwell died last week. Who is Miss Edna, you might ask?

Down in these parts, Miss Edna was a legend. You see she was the last madam at the infamous Chicken Ranch in LaGrange, Texas. Maybe you know it better as the Best Little Whorehouse in Texas.

Here's the Oscar-winning show tune "Sidestep" for your listening and viewing pleasure.

Happy Birthday, Texas!