Book review: The Torture Report

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy. 

-- 18 USC 2340A

First off I need to make a little disclaimer. Up to now all of the books I've reviewed on this blog were purchased by yours truly. If I thought a book sounded interesting, I'd buy it and, if I found it interesting, I'd write a review.

Today's book, The Torture Report by Larry Siems, is an exception. After a recent review someone from O/R Books sent me an email asking if I'd be interested in reviewing The Torture Report. Not being one to turn down a free book, I said yes.

Larry Siems is the director of PEN American Center's Freedom to Write. He wrote The Torture Room based on over 140,000 declassified government documents that paint a chilling picture of how the Bush Administration decided that international law banning the use of torture didn't apply to the United States. While reading the book I had to resist the temptation to throw the book across the room because what I was reading made me so angry.

The Geneva Convention forbids the use of torture on prisoners of war. US law prohibits the use of torture if the alleged torture takes place in the United States or is committed by a US citizen. But, somehow, John Yoo, President Bush's lackey, came to the conclusion that neither the Geneva Convention nor US law applied if the victims of the torture were "enemy combatants" of the United States' never-ending war on terrorism.

Mr. Yoo decided that slapping someone during an interrogation didn't constitute torture. He decided that making a person stand in a cell naked with his hands cuffed to the ceiling didn't constitute torture. He decided that subjecting a person to days of bright light (or no light) and white noise (or loud music) didn't constitute torture. He decided that putting someone on a liquid diet and making them wear a diaper while depriving them of a toilet didn't constitute torture. He decided that putting a cloth over someone's face and dripping water onto it to simulate drowning didn't constitute torture.

Mr. Yoo, who ignored the oath he took to uphold the Constitution and the laws of the United States, claimed that an enemy combatant wasn't the same as a prisoner of war and that, therefore, the Geneva Convention didn't apply. What? In Mr. Yoo's mind the Geneva Convention was an international treaty that dictated the way nations were to treat prisoners captured from another country's military. So, since the US was fighting an international terrorist organization and not another country, the Geneva Convention didn't apply.

He also relied upon 18 USC 2340's definition of "torture." According to the statute:

 “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control...

To Mr. Yoo's way of thinking, since the purpose of the interrogation methods was to extract information rather than just to inflict several physical or mental pain and suffering, that none of the outlined methods constituted torture.

And W? Well he just ate that shit up. He admitted in his autobiography that he gave the orders to torture suspected al-Qaeda members in secret prisons around the world, to turn them over to regimes that routinely tortured their own citizens and to torture them in US military complexes both here and abroad.

The book contains diaries and log entries that recite the various methods of torture used by US military personnel in violation of the Uniform Code of Military Justice. There are a few people here and there who took a stand in opposition to the White House's illegal interrogation methods - but there are more people who just stood by and either did nothing and personally carried out the orders.

And the Bush Administration aren't the only villains in this story. Congress played a big role in allowing the illegal interrogations to continue. Scared of being painted as soft on terrorism (or whatever the hell the Bush Administration called its critics), senators and representatives fell over themselves in supporting the president.

The detainees were held (and are still being held) for years in a foreign country without any contact with friends or relatives. They were held without being charged. They were subjected to torture. They were denied habeas relief. They were to be tried before military tribunals without being allowed to see the evidence the US intended to use against them and without due process of law.

President Obama had the opportunity to show the world that the US stands for right. But, instead of having President Bush and his co-conspirators defend themselves against charges of torture and conspiracy to commit torture, he took the easy way out and did nothing. Instead of carrying out his duty to see that the laws of the United States are carried out, he turned a blind eye to the actions of a former president who thought he was above the law. Through his inaction, President Obama is every bit as complicit as George Bush in the horrific acts that were carried out in this nation's name.

Freed five days too late

Daniel Chong thought he was free to go when DEA agents told him he could leave after questioning him. What the agent meant was that he would be free to go after being locked in a cell without food or water for five days.

Mr. Chong was picked up in a drug sweep in San Diego on April 21. Federal agents served a warrant on a house and found some 18,000 ecstasy pills along with marijuana, mushrooms, prescription medications and other paraphernalia.

When asked why he was there, Mr. Chong apparently told the agents he went to his friend's house to get high.

Regardless of why he was there, once DEA agents were through questioning Mr. Chong, he should have been released. Instead he was placed in the cell and forgotten. During his ordeal, Mr. Chong lost about 15 pounds, began hallucinating and was close to suffering kidney failure.

When he was found, Mr Chong was incoherent and close to kidney failure, his lawyer said. He was brought to hospital where he spent three days in an intensive care unit. 

Mr Chong broke shards from his glasses and attempted to carve "Sorry Mom" on his arm.

To survive the ordeal, Mr. Chong reportedly drank his own urine.

Yes, these are our agents in the war on drugs. These are the agents we trust to "keep us safe." Well, do you feel safer now?

DEA San Diego acting agent-in-charge William Sherman said on Wednesday that he was "deeply troubled by the incident that occurred here last week". 

"I extend my deepest apologies to the young man and want to express that this event is not indicative of the high standards that I hold my employees to."

This is the incident we know about. We know about it because Mr. Chong was a college student and his family retained an attorney. What other violations of our basic right to be treated with decency have the DEA committed that we don't know about?

Most of the time we never hear about the abuses suffered by those arrested by the police. We don't hear about them because they aren't deemed newsworthy. We don't hear about them because the person who was abused is one of "them." He found himself on the wrong side of law enforcement and got arrested. Of course he's going to claim he was beaten or abused. Why should we believe the word of a punk instead of that of a police officer?

We rarely have photos. We rarely have video. We almost never have the admission of a law enforcement official that his agents mistreated someone.

The conduct on the part of the DEA is inexcusable. Did Mr. Sherman take responsibility because it was the right thing to do or because it was the only thing he could do? I don't know the answer to that question. I would hope it was the former.

Update: Texas blocked from killing inmate

Last evening was the date the State of Texas had chosen to kill Anthony Bartee, who was convicted in 1996 of the murder of David Cook. Last evening the State of Texas was denied its bloodlust when the Fifth Circuit refused to lift a stay of execution from a federal district judge.

Mr. Bartee filed suit against the Bexar County District Attorney's Office under Section 1983, alleging that the District Attorney violated his civil rights by withholding crime scene evidence that could have been tested for DNA. A federal district judge granted the stay based on the lawsuit. The State appealed the stay to the Fifth Circuit Court of Appeals arguing that granting the stay would reward Mr. Bartee for filing a last minute suit in an attempt to put off his execution date.

The Fifth Circuit refused to lift the stay asking for more information regarding the claims made by both parties.

Mr. Bartee filed the civil rights lawsuit after his writ requests for additional DNA testing were denied. Those requests were denied, in part, because Mr. Bartee had already admitted being at the crime scene so any DNA evidence wouldn't exonerate him, it would just show that other people had been at the crime scene at some point in time.

Last night's events are a win for those of us fighting to abolish the death penalty - but it is likely to be but a temporary reprieve.

British to arm apartment complex during Olympics

If this is what the Olympics have come to, I hope the games never come to the Bayou City. There are probably some residents in London thinking the same thing about now.

The British government, in all its infinite wisdom, has decided to look into the placement of surface-to-air missiles on apartment buildings in London. Residents of one East London complex received a leaflet stating that  missiles could be placed on a water tower at the complex during the games. Residents were told that the military would place missiles at the complex for an exercise in which military and police personnel would occupy the complex in early May.

According to the leaflet, the increased military presence would not make it anymore likely that terrorists would attack the complex; not that terrorists had any plans to attack the complex in the first place. The authorities also assured residents that the decision to fire any missiles would come from the highest levels of government - whew, that would certainly make me feel better.

The bigger danger to residents are the threat of terrorists, it's the threat that the government would order the missiles to be fired. Such a decision would, in the words of one resident, "would shower debris across the east end of London."

Of course it's often through the introduction of "temporary" security measures that the government gets its foot in the door and begins to make the measures permanent. And, once the security measure becomes permanent there will be a bureaucracy tied to it and the chances of it ever being terminated get worse and worse every passing year. For an example, just look at TSA.

And the news just keeps getting worse

Life's just not getting any easier for embattled Williamson County District Attorney John Bradley. Not only is he facing what appears to be an uphill fight to hold onto his office, he must also deal with complaints filed with both the State Bar and the Travis County DA's Office that he was negligent in his leadership of the State Forensic Sciences Commission.

Dr. Christopher Nulf, Ph.D., a former analyst with the Southwestern Institute of Forensic Sciences in Dallas, alleges that Mr. Bradley, while chair of the FSC, failed to notify his fellow committee members of any potential conflicts of interest and that he made false statements to the public.

Click here for the ethics complaint filed with the State Bar. 

Click here for the Dr. Nulf's letter to the Travis County DA.

Under Mr. Bradley's stewardship of the FSC, Dr. Nulf filed a complaint about the many problems he observed at the SWIFS facility. The Committee failed to conduct its own investigation into the allegations - choosing, instead, to allow ASCLD/LAB (American Society of Crime Lab Directors), the body that "accredits" crime labs, to conduct a series of telephone interviews with directors of SWIFS. He also allowed committee members who had conducted business with ASCLD or Dallas County (SWIFS), or who had entered into contracts with them, to vote and take part in commission discussions regarding Dr. Nulf's allegations.

More disturbing is the fact that these problems were occurring right under the nose of the organization that provide accreditation to the crime lab. The problems in Dallas, and the recent revelation that there have been problems in the DPS Crime Lab in Houston raise questions about just how thorough an audit ASCLD performs. We won't even mention the fact that the crime labs pay ASCLD for their accreditation audit.

Nope. No problems here.

Cop shoots unarmed teenager

No, the 14-year-old shouldn't have been breaking into a temporary building at a local middle school. He certainly shouldn't have been taking electronic equipment out of the classroom. When the officer told him to stop, he should have stopped.

But he didn't deserve to get shot.

Unfortunately that's what happened in the early morning hours on Tuesday. A young boy is in critical condition with a bullet wound to the chest because a Pasadena school district police officer pulled out his gun and panicked.



You just gotta love how the reporter felt compelled to tell us that the officer was okay after shooting the kid. We certainly mustn't do anything to piss off the powers that be who might be watching our early morning "news" cast.

And just why do we allow school districts to have police departments? There's already an over-proliferation of police in Harris County. We have the Harris County Sheriff's Office, the Harris County Constable's Office, the Houston Police Department, police departments in Pasadena, Baytown, Deer Park and Jacinto City. There are police departments in bedroom communities such as Bellaire, Spring Valley, Southside Place and West University. The two main universities in Houston both have police departments. METRO has its own police department. The Port of Houston and the Medical Center both have departments. And so do most of the school districts in and around the city: Houston, Spring Branch, Cy-Fair, Klein, Spring and Pasadena.

On a weekend run I might see cars from three or four different law enforcement agencies in Spring Branch alone.

The officer who shot the child said that he was in fear for his safety when he pulled the trigger. He also said the child was clutching a backpack when he refused to stop. Now which was it? If the child was clutching a backpack with both hands he didn't have a gun drawn.

There was no reason for the officer to have his gun out of its holster. A police officer is trained in the use of escalating force. The use of deadly force is a last resort and it is not used to prevent a suspect from running. Deadly force is only to be used when the officer has a reasonable belief that his life may be in danger. It's not enough to have a hunch.

This is not to excuse the actions of the teen. But stealing some computer equipment hardly merits a bullet in the chest. I'm certain I'll receive a flood of e-mail telling me how wrong I am to criticize a police officer in his use of deadly force. I'm sure I'll receive anonymous comments telling me that the officer who shot the kid is a really good guy.

So what. He shot an unarmed 14-year-old in the chest. I have absolutely no sympathy for that. He was a trained law enforcement officer with 17 years experience, six with the Pasadena school district. He knew better.

Execution Watch: 5/2/2012

The state that carries out more executions than any other state is ready to kill again...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

ANTHONY BARTEE, 55, convicted in the August 1996 robbery murder of a friend,. He was given a stay before his scheduled execution in February so additional DNA testing could be done. When an execution date of May 2 was announced, Bartee's attorney David Dow sent the court a letter saying the new date should not have been set because DNA testing hadn’t been done. Dow protested that no notice of a hearing for a new execution date was sent to him or Bartee.

For more information on Mr. Adams, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ...Wednesday, May 2, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: www.executionwatch.org > Listen


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

Federalism? What's that?

Last Thursday, the US Senate renewed the Violence Against Women Act with 15 Republicans voting with their Democratic colleagues. The House is scheduled to vote on its version of a renewal next month. GOP congressmen are upset with three provisions of the bill that they claim cater to political interests. Of chief concern are provisions to assist gays and lesbians receive domestic abuse services, to issue special visas for women in the country illegally and to allow Indian tribal courts to handle domestic abuse cases that occur on reservations.

Of course the one issue missing in the debate is the need for such legislation. At last glance, all 50 states have laws on the books making assault a crime. Most states enhance penalties if the assault involved family violence. In Texas, for instance, if you are convicted of a misdemeanor assault and the court makes an affirmative finding of family violence, if it were to happen again you would be facing a felony charge.

Domestic assault is a state matter, not a federal matter. There is no reason that we should be federalizing domestic abuse cases - other than the political gains that can be made for standing on one side of the issue or the other.

As has been written on the blawgosphere many times before, there are far too many federal crimes. Most crimes that are prosecuted in the federal courts could just as easily be prosecuted in state courts. The only crime mentioned in the Constitution is treason.

But that has never stopped Congress from injecting itself into local matters at the drop of a hat. Texas Sen. John Cornyn, who claims to be in favor of limited government, wanted to give the states more money to test rape kits and wanted to impose stiffer sentences for certain domestic violence crimes.

Um, excuse me, Mr. Cornyn, but I believe the crimes you had in mind are already crimes in Texas and most, if not all, the other states. There's no need for a federal anti-stalking statute. Nor is there a glaring need to throw more folks in federal prisons for crimes that have no consequence on the citizens of the nation as a whole.

It is time we took a step back and began reducing the number of federal crimes on the books - particularly those federal crimes that require no mens rea, or guilty mind. Domestic violence is a problem; just not a problem that our friends up in Washington have any business trying to resolve.

Sunday morning roundup

Yeah, Wal-Mart is everyone's favorite target. With all the piling on after the revelations that Wal-Mart bribed some officials in Mexico, Scott Greenfield's is a voice of sanity.

Anders Breivik is claiming he wasn't insane at the time of his attack that led to the deaths of 77 people last year. What does it say about the state of Mr. Breivik's mind when he's claiming sanity after admitting that he's a murderer?

The Houston Police Department seems to have a bit of a problem when it comes to seizing property. I'm sure there's a joke in there somewhere but I can't seem to come up with it right now.

And finally, the towns of Boring, Oregon and Dull, Scotland have decided to become sister cities. A perfect partnership. Is there a Dreary somewhere around?

Droning on and on

Under the Obama Administration, the United States has upped the ante when it comes to unmanned drone attacks. And, along with the increased use of drones, come more innocents who end up dead.

President Obama defends his use of drones by claiming they are used to make targeted strikes at suspected terrorists on the other side of the world. What Mr. Obama, and other proponents of drone attacks, seem to forget is that bombs are not the most precise, discriminating killers. While you might very well be able to program a drone to drop a bomb on a particular building, you can't control who's in the building. You also can't control the collateral damage (read: innocent dead people) that results from an explosion.

The history of warfare can best be analogized as looking to see from how far away you can kill someone. We went from hand-to-hand combat to bows and arrows to guns to bombs to drones. War has become a video game for those who oversee the drone program.

But, for all the government's self-congratulatory backslapping after every death by drone, what would the reaction be if another country entered the United States and murdered one of their enemies of the state? What would the reaction be if another country conducted a "surgical strike" in the US that left innocent folks laying dead in the streets?

But, hey, we don't have to worry about that now, do we? I mean, we're talking about a bunch of brown-skinned people who worship their god in a different way. So what's the problem?

Calling someone an enemy combatant doesn't change the calculus. The US is entering another country for the purpose of killing someone without due process of law. In fact, without any consideration of any other country's laws. As Jeff Gamso is wont to point out, the United States is supposed to follow the rule of law - not the law of rule.

Where's the outrage? If it's okay for los federales to carry out extra-judicial (just love that term) murders overseas, what's to prevent another country from invoking the same principle and carrying them our in our streets? Oh, that's right - if someone were to do that here they would face the mighty wrath of the US military but since no one is willing to stand up to the big bully, the US is able to act with impunity.

Still the fact remains, murder is murder, no matter how much you might try to sugar coat it.

Click here to watch the live stream of the International Drones Conference this weekend.

H/T Democracy Now!

Update: One drug executions

Once again the State of Texas tied an inmate to a gurney and pumped poison into his veins and called a murder an execution. Once again trained medical personnel disregarded the oaths they took to do no harm and aided the government in killing a man. Once again the murder of an inmate failed to bring the people he killed back from the dead.

Beunka Adams is dead. But his death changed nothing. Maybe Rick Perry can brag out killing another person the next time he runs for office.

As it turns out, Thursday was a banner day for news on executions in these United States. In Kentucky, a state circuit judge ruled that the state must consider switching to a one-drug protocol for its executions or continue to face challenges to the three-drug protocol now being used.

Challenges have been made under the Eighth Amendment arguing that the three-drug protocol constitutes cruel and unusual punishment due to concerns that inmates feel excruciating pain during the process but, because of the drug that paralyzes the inmate, it appears that he has fallen into unconsciousness.

The judge said with the increase in the number of states using pentobarbital to conduct one-drug executions, it is time that Kentucky consider changing its protocol in order to moot the pending litigation.

At the same time we have a story out of Arizona that a defense attorney who was present as a witness at his client's execution saw his client shake violently after being administered the single drug. The attorney, Tim Gabrielson, is concerned that his client experienced pain during the execution.

Arizona uses pentobarbital to murder inmates.

Although some may not see the problem with a condemned man suffering pain as he is being executed, the deliberate infliction of pain by the state is of grave concern. While the state has the ultimate power to decide who lives and who dies - the state does not have the authority to subject its citizens to the intentional infliction of physical pain. Such conduct not only violates the Eighth Amendment, it also undermines the moral authority of the government.

H/T Doug Berman (Sentencing Law & Policy)

HCCLA packs METRO board meeting

Yesterday the Harris County Criminal Lawyers Association made its presence felt at the monthly Metropolitan Transit Authority's (METRO) monthly board meeting regarding the use of TSA's VIPR teams on April 13, 2012.

Click here for a link to the video of the board meeting.

Prior to the meeting a letter from METRO CEO George Grenias was circulated that attempted to explain all the confusion about whether or not there were random searches of bags on April 13. According to the letter the initial press release on April 13 and the blog post on April 16 quoted from TSA's national "campaign" literature. Board members stressed that they were unaware of any random bag searches on April 13. Of course some of the board members, namely Burt Ballanfant, said they were unaware of the controversy.

Metro letter 04/26/12

Earl Musick, president of HCCLA, spoke about the duty to uphold the Constitution. He read the text of the Fourth Amendment to the board and presented the board with a copy of the Constitution suitable for framing. Past HCCLA presidents Mark Bennett and Robb Fickman also spoke. Mr. Bennett let the board know that a viper is one of the most dangerous snakes on the planet and that once you let a viper in your house you may never get it out. Mr. Fickman told the board that if METRO police wanted to practice their counter-terrorism moves they should practice them on each other, not the citizens of Harris County. He decried the assault on the civil liberties of the bus-riding public.

Also speaking from HCCLA were Randall Kallinen who reminded the board of their fiduciary duty to protect METRO's assets from plaintiffs' attorneys, Franklin Bynum, who spoke "from the heart" about the respect that was due those who use METRO's services and yours truly who equated the war on terrorism with the war against individual liberty.

Also present and speaking at the meeting were US Congressional Candidate Steve Sussman (in his "Tyranny Response Team" T-shirt and members of the Houston Free Thinkers. One of the Free Thinkers quoted Benjamin Franklin's line "those who would sacrifice freedom for security deserve neither."

According to METRO Chairman Gilbert Garcia, as long as he serves as chairman there will be no random bag searches on METRO buses. He also stated that TSA was here on METRO's request and that METRO set the parameters on the operation. While the purpose of the operation was supposedly to ferret out any terrorists who might be riding the bus, no terrorists were caught. The arrests were for prostitution and drug possession.

We were also informed that TSA agents had been on METRO rail many times in the past but that April 13 was the first time they had gotten involved with the buses. What were TSA agents doing on the trains? METRO serves the Houston metropolitan area. Every point of departure and arrival is within Harris County (with a few exceptions where the city limits stretch into Fort Bend County). There are already a bevy of law enforcement agencies in Harris County - we don't need to add TSA to the mix.

After the meeting, as we had lunch at Zydeco's, I was left with a couple of thoughts to ponder. First, if the board knew as little about the operation as they claimed, who's really running the show down on Main Street? Second, is anyone vetting press releases and social media posts before they get circulated?

See also:

"Metro says it won't do random bag checks," Houston Chronicle (Apr. 27, 2012)
"Metro faces public backlash over counter-terror initiative," KTRK-13 (Apr. 26, 2012)

Execution Watch: 4/26/2012

The state that carries out more executions than any other state is ready to kill again...

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

BEUNKA ADAMS. He and his partner, Richard Cobb, were convicted of abducting and killing a man during the robbery of a convenience store in the East Texas town of Rusk. Cobb remains on death row. Adams was 19 at the time of the offense; Cobb was 18. Three days before the scheduled execution, a federal judge in Texarkana granted Adams a stay of execution. Texas Attorney General Greg Abbott appealed the stay, which was lifted by the Fifth US Circuit Court of Appeals on Wednesday.

For more information on Mr. Adams, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
"Unless a stay is issued, we'll broadcast ...Thursday, April 26, 2012, 6-7 PM CT
KPFT Houston 90.1 FM
Listen online: www.executionwatch.org > Listen


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

Road trip

Today was a road trip Wednesday. I had a client with a commercial driver's license who got a speeding ticket up in Brazos County. Since he had a CDL our only choices were to plead the case or try it. He chose to go to trial.

Now it's one thing to try a case on your own turf - but trying a case on someone else's turf is quite another story. After we finish questioning the jury panel the judge asked us if we were ready to make our strikes. Um, Judge, I've got a few folks I need to challenge for cause. After I announced my challenges I felt right at home as the judge proceeded to do his best to rehabilitate each of the jurors who announced that they were biased against my client in one way or another.

Trying the case was pretty much the same as anywhere else - with the exception that, in Brazos County, police witnesses apparently are allowed to read from their notes when the testify. Oh, silly me. I guess I should have read the local rules in advance.

After testimony was completed we gave our closing arguments. I wasn't aware that it was customary in Brazos County for the prosecutor to take my demonstrative aid and throw it across the courtroom. I think that was Local Rule No. 2. Well, either that or not giving the jury a written or oral charge.

The judge told the jury to go back and decide whether my client was guilty or not. I asked if we could approach and I asked to see the charge. He handed me the verdict form. I asked him where the charge was and he told me I was looking at it. Luckily someone told me that this judge didn't give the jury a charge so I had already taken the time to draft a charge that the judge ended up sending back with the jury.

About 45 minutes later the jury informed the bailiff that they were deadlocked and the judge declared a mistrial and sent us all off on our way.

I ended up at Rudy's BBQ on Jersey. Rudy's is a chain - but still serves some pretty damn good barbecue. I had my usual - brisket and sausage - with a side of creamed corn. The brisket was moist with a health smoke ring. Rudy's smokes their meat with a healthy dose of oak. The jalapeno sausage was cut lengthwise instead of sliced and had a bit of a kick to it. My only complaint was the slightly funky taste of the sweet tea. I know I should probably go back to getting unsweetened tea and using the pick packet of cancer-causing sweetener - but I digress.

All in all, it was some good stuff.

A million dollar flat fee? Why not?

If you're a criminal defense attorney you know by now that the State Bar of Texas is none too happy that you charge your clients a flat up-front fee for your services. It's just so out of touch with the big retainer and hourly fee structure that the white shoe firms think was inscribed on the tablets that Moses brought down from the mountain.

But, as it turns out, the problem might not be the nature of the fee arrangement - the problem may be that you just aren't charging your clients enough up front. The University of Texas has shown, once and for all, that bigger is better and of no concern to any authority.

For, you see, UT is paying a Washington, D.C. white shoe firm the grand sum of $987,000 to defend its use of affirmative action in its admissions process before the U.S. Supreme Court. My first thought was why the firm didn't just charge a cool mil. What's another $13,000 anyway?

Thanks to Ralph Haurwitz over at the Austin American-Statesman, we have a copy of the contract the Board of Regents signed with the firm of Lathan & Watkins, LLP.

Now, without getting into the merits of the arguments in favor of, or opposed to, UT's current admissions rules, is the fee worth it? There are around 50,000 students at UT-Austin, with the amount the board is spending to defend one lawsuit, those students could see their tuition reduced by almost $20,000. That would certainly go a long way to reducing the amount of debt college students are saddled with as they step out into the job market.

But let's say the university and the state are both satisfied with the representation those white shoe boys in Foggy Bottom are providing. Doesn't that make the fee worth it - regardless of how much that fee was?

And, if that's the case, what business does the State Bar have in interfering with the fee agreements we enter into with our clients? Who's in a better position to determine whether a fee is fair or not - the client seeking the services or an organization that represents corporate and insurance defense firms?

Correction:

Okay, okay. My math is obviously a little shaky. Instead of $20,000 per student the actual figure would be $20.

Judge decrees that defendants must waive attorney-client privilege

"My attorney has advised me that this plea will result in the following immigration consequences for me: __________."

This is the new admonishment that Marc Carter, the Presiding Judge of the 228th Judicial District Court has added to the plea papers used in that court.

What could possibly be wrong with the defendant acknowledging he understands the potential immigration consequences of his plea? What court, in the post-Padilla era wouldn't want it on the record that the defendant was aware that his plea could have some serious consequences as to his or her future in the United States? More cynically, what court wouldn't want to cut off those habeas writs alleging the defendant was unaware of the consequences of his plea off at the knees?

But let's think about this for a second. The last time I checked my conversations with my clients were privileged (with very rare exception). Only the client can waive that privilege.

Judge Carter is requiring defendants to waive attorney-client confidentiality. More than that, Judge Carter is requiring defendants who may not understand the privileges and protections they are afforded by law.

When entering a plea, a defendant necessarily waives his right to remain silent. But there is no such requirement that he waive attorney-client confidentiality. Any attorney who presents this paperwork to his client prior to a plea is asking that client to waive a right he or she may not even be aware they have. Any attorney who asks his client to sign this admonishment is knowingly violating a sacred trust.

Are we going to start carving up that privilege depending on the type of crime alleged or the immigration status of the defendant? Is asking a certain class of defendants to waive privilege a violation of the 14th Amendment's Due Process Clause?

And then there's the little bitty problem that a defense attorney cannot tell a client exactly what the potential immigration consequences of plea could be. If the alleged conduct would constitute a felony under federal law, then the client may be subject to deportation. If the alleged conduct is a crime of dishonesty, the client may be deportable. If the client pleads guilty to a drug charge, he may be deportable. But what about immigration bonds and the pleadings los federales must file? What about the client's status and his history? These are all factors that play a role in how any immigration action might end.

And exactly how is this going to work when the defendant who is here without the blessing of our government is offered a reduced charge if he pleads guilty on the initial setting? Is that attorney going to have enough information to explain to his client what the implications of the plea may or may not be? Is that attorney going to know what his client's legal status is and how the court proceedings may affect that status? Will the court question the signing of the admonishment on the initial setting or be satisfied to have something to that effect on the record?

The admonishment is a bad idea for many different reasons. Judge Carter needs to reconsider the entire idea.

Admonishment - 228th JDC

Another assault on privacy

It's just never enough. No matter how much data the US government can collect on citizens, there is always more data just out of reach.

Last week the European Parliament voted to pass a bill allowing the US Department of Homeland Security to have access to the Passenger Name Records of any airline either operating out of the 27 countries of the European Union or any other airline incorporated or "storing data" in the EU.

And, no, you shouldn't need to ask why los federales need such information. It's the latest salvo in the war on the right to be left alone terrorism. Apologists for the overreaching arms of the state will point out that such information allowed the United States to catch various baddies over the years.

And now ordinary folks from across the pond will be giving up some of their personal data to Big Brother for the privilege of coming to America.

Some MEPs say the proposals leave too many unanswered questions, such as how will the US use this information, how long will it keep the data and who will have access to it? 

Dutch Liberal-Democrat MEP Sophie in 't Veld was involved in drafting the proposals but voted against the bill. 

"The results of the vote show clearly that there are very strong reservations against this agreement. However, the US made it very clear that a 'no' vote would be answered by suspending visa-free travel to the US," she said. 

"Many colleagues - understandably - did not want to make this sacrifice. But it is highly regrettable that the fundamental rights of EU citizens have been bargained away under pressure."

And why did the EU prostrate itself before the United States and agree to give up personal data on their citizens? Because of threats by the United States to suspend visa-free travel from Europe. Oh, the things our representatives are willing to cede on our behalf for the convenience of others.

Somewhere along the way in this war on the Bill of Rights terrorism, the government has forgotten one very important proposition. The proposition that we are all innocent unless proven guilty. Slowly, but surely, our basic right to be left alone by the state has eroded - and continues to erode because few people are willing to stand up and do anything about it.

Most folks will stand in that line at the airport and grumble about having to take off their shoes or pass through a full body scanner or have to suffer the humiliation of a scope and grope and just complain. Well, I guess that's just the price we pay for safety, they say.

This isn't about safety. It's about the unencumbered intrusion of the federal government into our private lives. It has to stop or else one day you will wake up and wonder where your right to privacy went.

Did you hear the one about the sheriff...

Arresting over 500 illegal immigrants just for laughs? Damn, that Joe Arpaio is one fucking funny guy.

While being investigated by los federales for his policies that violated the rights of illegal immigrants, Joe Arpaio went on the lecture circuit and told a crowd in Houston that he arrested folks just for the heck of it.

Nice, Sheriff Joe, very nice.

If there was ever any doubt that the federal government needs to deal with Joe Arpaio as they would deal with anyone else suspected of criminal behavior - this is it. Enough of the acting like a scared child when confronting the big bad bully of Maricopa County. He's just a sheriff. If he broke the law, if he violated the civil rights of folks living within his jurisdiction, it's time he had to face the music.

Joe Arpaio has been allowed to flaunt his disregard for civil rights for years because, for some reason, everyone is afraid of the man. Los federales have brought down federal judges, senators, congressmen and governors. Why it's so hard to force a sheriff in Arizona to answer for his actions, I have yet to understand.

In an interview Thursday, Arpaio defended his comments before Texans For Immigration Reform as a collection of humorous off-the-cuff remarks intended merely to show that he wasn't going to back down to critics. 

"These are not official, under-oath speeches," Arpaio said. "It's strictly a speech that when I'm talking to certain groups, they like to hear what I have to say, because they know I'm under the gun."

But as long as everyone stands by too scared to do anything, the little bully in the southwest is allowed to continue his campaign of intimidation. Joe Arpaio isn't bigger than the Constitution. When he was sworn into office he took an oath to uphold the laws of Arizona and the laws of the United States. But he's given a free pass to do whatever the hell he wants to do.

Arresting people just because he can do it? Why not? Who's going to challenge him?

Petty tyrants are allowed to humiliate folks because no one is willing to stand up to them. If this latest episode isn't enough to get the feds involved, I don't know what is. He's on tape telling an audience that he arrested hundreds of people just because he could - not because he had any legal reason to do so.

Now's the time for President Obama and Eric Holder to actually stand up and do something about the flagrant abuses in Maricopa County. Why do I get the feeling that nothing's going to happen?

Sunday morning roundup

Leave it to Bud Selig to fuck everything up. On Friday night the Astros wore their Colt .45 uniforms for the last time this season and handed out replicas to the fans at the ballpark. Only problem is the replicas were missing the revolver thanks to Bud's idiotic directive earlier this year that the Astros couldn't put the gun on their jerseys (historical accuracy be damned). Unfortunately the Astros had to order the replicas months in advance (so they say) and had to have them made sans revolvers.

Congress is looking into just what was going on in Cartagena, Colombia with Secret Service agents, Marines and prostitutes. It's one of those stories that just seems to get worse the more people talk. The lesson, as always, honor your agreement with the escort.

India is, by some accounts, the third largest economy on the planet. Unfortunately the spoils of that economy have not fallen equally to the citizenry. A large portion of the Indian population still lives in abject poverty. So, when the Indian government had the choice of spending $500 million to upgrade its infrastructure, improve education and reduce poverty or to build a rocket capable of carrying a nuclear warhead 3000 miles, what do you think it chose. That's right, screw the people!

Ted Nugent has a bad case of the runs every time he opens his mouth.

Maybe the gunmen were from the Rooster Liberation Front.

And, finally, it sounds like something straight out of Mythbusters - the US Forest Service is finalizing plans to blow up a handful of cows that froze to death in the Colorado mountains.

Grand Prix of Bahrain to run despite crackdown on dissent

Tomorrow morning the Formula One Grand Prix of Bahrain will be run. At the same time the Bahraini security forces will be out trying to quell dissent. All in a day's work for the wealthy jet set class.

Yesterday tens of thousands of protesters marched on a highway into the capital Manama. Security forces responded by firing stun grenades and tear gas into the crowds. This morning a man was found dead with gunshot wounds after overnight clashes with the police.

Last year's race was cancelled after 35 people died in anti-government protests during the Arab Spring.

"I think for those of us who are trying to navigate a way out of this political problem, having the race allows us to build bridges across communities, get people working together." Crown Prince Salman bin Hamad Al Kahlifa

Not that Bernie Ecclestone, the head of the international sanctioning body for Formula One, gives a rat's ass about anything other than the money that will be lining his pockets. He said this year's race will go ahead after assurances from the repressive regime that there will be no security issues during the race weekend.

All the race will do is add an air of legitimacy to an anti-democratic regime that has repressed its citizens mercilessly over the years. The fact that the international racing community has no compunctions about running the race speaks volumes about those involved.

Just remember, this is the same body that continued to race in South Africa long after the rest of the international community had already shunned the apartheid regime.

Enjoy your riches, Bernie, just don't think too much about who died to line your pockets.

San Jacinto Day

On this spot, just east of downtown Houston, Texas gained its independence back on April 21, 1836. This is where I'll be with my wife and girls today. Happy San Jacinto Day!

Too much, the magic bus

If you were thinking about hopping on that Metro bus for any reason, you might want to think again. According to an article in the Houston Chronicle, Metro is planning on subjecting more riders to TSA's brand new counter-terrorism measure.

That's right. Expect to see the police searching bags, asking for identification and running drug dogs around buses and bus stops for the next 60-90 days. They'll even have TSA's own behavioral detection officers who are trained to fuck with people for no good reason figure out who's a terrorist and who isn't.

According to the Metro police chief (that's the head of the bus cops), the Anti-Fourth Amendment brigade will be patrolling certain routes based on "crime data and trends and information" provided by drivers and passengers.

Looking for terrorists? Really?

How many terrorists did y'all pick up last Friday?

That's right - none. Because you know if they had found a terrorist the police would have made a lot of noise about it. But after gloating about the random bag searches, Metro began changing its story. First it morphed into bag were only searched if there was probable cause to search. Then Metro denied any bags were searched.

*   *   *

Law officials performed random bag checks, conducted sweeps with our K-9 drug and bomb-detecting dogs, and assigned both uniformed and plainclothes officers at transit centers and rail platforms to detect and prevent criminal activity.

Metro's in-house blog (4/16/12)

Houston METRO ‏ @METROHouston @

MarkWBennett NO random bag checks were performed during BusSafe exercise. We search only w/ probable cause or consent.

Metro's Twitter feed (4/18/12)

Houston METRO ‏ @METROHouston
@ChuckStanfield @frankbynum There were NO bag searches conducted during this operation..

Metro's Twitter feed (4/18/12)

*   *   *

If these guys can't even keep their stories straight, how can you believe anything that comes out of their mouths?

This assault on the people's right to be left alone isn't about finding terrorists on city buses. It's about finding excuses to arrest folks on nothing more than a hunch. The behavioral detection officers will provide the cover for the unlawful searches by claiming a passenger was acting in a suspicious manner. The uniformed officer will then use that "finding" to violate the rider's Fourth Amendment rights by conducting a search without either a warrant or probable cause. And guess what? No one's going to find any bombs on board - they'll find a little pot, some crack, maybe some powder and other assorted pharmaceuticals.

Law enforcement expects the public to eat up this counter-terrorism bullshit while they conspire to violate the Fourth Amendment rights of everyone who steps into a bus station, onto a platform or who rides the bus or train. We can't allow them to get away with it.

H/T Mark Bennett

Closing the book

Okay, it's time to take a little break for some baseball. Tonight I'll be at the ballpark with my youngest watching the Astros wear their Colt .45 throwbacks for the last time. Since it's a 7:05 start we'll be long gone before the final pitch but I have a feeling we'll enjoy ourselves out there.

The other day Tom Verducci brought up a point that I've made in the past - with all the refinements in the art of pitching, how come so many pitchers end of on the disabled list or on a table under the knife?

When I was growing up starting pitchers would routinely pitch into the eighth inning of games. These beasts would throw well over a hundred pitches on three days rest and would rarely end up missing chunks of the season due to injury. Relief pitchers, for the most part, were former starters who washed out. There were a few monsters out there who would come in when the game was on the line (regardless of what inning it was) and pitch more than an inning in relief on a regular basis.

Just take a look at the stat lines for Goose Gossage, Bruce Sutter and Jeff Reardon to see how much the art of pitching has changed.

Nowadays with year-round training, pitch counts and five-man rotations, pitchers are falling like flies. Even closers are going down at a record clip. And these closers don't even bother coming in until the ninth inning and never have to work their way out of someone else's jam. They are never asked to pitch more than one inning. Managers have all downed the koolaid about having a set-up guy for the set-up guy, a set-up guy and the closer. The save stat is the most worthless stat there is - the save should go to the guy who got out of the jam in the seventh inning - not the guy who walked to the mound to start the ninth.

Managers are motivated by the save statistic, throwing three-out save chances to their closer like bones to a dog. The game universally has embraced this idea that a closer can't come in to a tie game on the road -- better to lose the game with a lesser pitcher than run your closer out there without a save in hand. 

What makes this groupthink so crazy is that the system isn't working. Closers are breaking down or losing effectiveness faster than you can say Joel Zumaya. (Quick, look around baseball: show me the high velocity, high energy closer with the obligatory, goofy closer-hair starter kit who has a long career. The job has a bit of planned obsolescence to it.) 

Clubs can find closers; it's keeping them in the job that is the tough part. Over the previous five seasons, 53 closers saved 25 games at least once. Thirty-three of them, or 62 percent, no longer are closing. Only five pitchers saved 25 games three times in the past five years and are still closing: Jose Valverde, Mariano Rivera, Jonathan Papelbon, Heath Bell and Joe Nathan (with the latter two off to shaky starts). Mostly, closers just come and go, or they break down and virtually disappear (Zumaya, B.J. Ryan, David Aardsma, Brandon Lyon, Kerry Wood, Bobby Jenks, etc.).

I don't know what the problem is. As Mr. Verducci points out, these days there are more problems with the elbow than with the shoulder. Hardly anyone had elbow problems back in the day. There's a reason "Tommy John" surgery is called "Tommy John" surgery - no one had it done until Tommy John had it done in 1974.

Something's seriously wrong when the phenom of all phenoms - Stephen Strasburg - was shut down in his rookie season to have Tommy John surgery. Brian Wilson, the hero for the Giants in their series winning season, is done for 2012 to have his second Tommy John surgery and he's not even thirty. Ditto for Joakim Soria, who just had his second Tommy John surgery.

One thing general managers should take away from this latest wave of broken down pitchers is the folly of spending several million dollars a year on a player who will throw less than 80 innings a year - and then only if the team is winning going into the ninth inning. Relief pitchers are a dime a dozen and baseball types need to get over their wet dreams about fireballing closers.

He just couldn't help himself

Richard Land is the president of the Ethics and Religious Liberty Committee of the Southern Baptist Convention. He is regarded by some as the most powerful person in the Southern Baptist Church. He also can't keep his mouth shut.

Mr. Land has seen fit to criticize so-called "black leaders" for bringing the nation's attention to the killing of Trayvon Martin. In Mr. Land's eyes, President Obama was wrong to address the issue and that the president "poured gasoline on the racialist fires" in order to prop up his floundering campaign.

When asked if regretted his comments, Mr. Land stood by them and then turned around and defended George Zimmerman by stating that Mr. Zimmerman was right to be suspicious of a black youth. He added that black men are "statistically more likely to do harm" than white men.

This from a man who is still trying to remove the stench of slavery and racism from the Southern Baptist Church. He was the architect behind the church's apology for its support of slavery back in 1995.

"Part of racial reconciliation is being able to speak the truth in love without being called a racist and without having to bow down to the god of political correctness." -- Richard Land

We can all feel free to disagree about what happened that February night in Florida and about what the proper remedy is. But for the man behind the curtain to make the case that black men are more likely to be violent than whites is beyond incomprehensible.

Even worse, according to Aaron Weaver, a blogger at Baylor University, Mr. Land's comments weren't even his own. He lifted them, without attribution, from an article by Jeffrey Kuhner in the right wing Washington Times (I guess no one's told Mr. Land that the Times is the mouthpiece for the Moonies).

But Mr. Land has an excuse. It is a live radio show, after all. How can he be expected to tell the listeners that he's reading verbatim from an article written by someone else? And, according to Mr. Weaver, this isn't the first time Mr. Land has done it.

Hey, it's okay, Mr. Land. Hypocrisy and the Baptist church go together like Martin and Lewis, peanut butter and chocolate, and barbecue and beer. I understand that you want the government to get its nose out of the way businesses screw workers and corporations rape the environment. You'd much rather have the government impose your reactionary views on the populace.

It's an alternative fee structure, not a flat fee

According to the Wall Street Journal, partners billing in the top 25% of hourly billers saw their hourly fees rise by 4.9% to an average of $873 an hour while those in the bottom quarter saw an increase of 1.3% to $204 an hour.

Among the heavy hitters was Andrew Goldman, vice chairman of the bankruptcy practice at Wilmer Cutler Pickering Hale and Dorr, LLP. Mr. Goldman's time came in at over $1,000 an hour which would appear quite pricey for someone who is filing for bankruptcy. Maybe those legal fees were just the little bit needed to push the company over the ledge.

It seems that Biglaw firms have found a way to increase their hourly rates through so-called alternative fee structures. You know what those are. For a while it was all the rage in the ABA Journal. It was sometimes referred to as value billing. We're not going to gouge you on the meter - we'll just charge a flat fee instead.

But, wait a minute, isn't that the same thing that the white-shoe boys at the State Bar of Texas are trying to prevent criminal defense lawyers from doing? I guess when the boys in the penthouse are doing it, it's called value billing but when those of us in the trenches do it, we're gouging our clients.

Our clients don't care how much time we spend working on their case. They care about resolving the case in a way that either keeps the incident off their record or in a way that allows them to get back to their normal lives.

Bar associations act in the interests of the biggest firms since they provide most of the members and most of the financing for the organization. Conversely, if you're a solo practitioner, then, to the bar association, you're worth about as much as a bucket of warm spit. And, it means you're an easy target.

No one is going to question a white-shoe firm that charges upward of $800 an hour for legal services because every other firm wants to be able to charge just as much. Likewise, no one is going to audit the billing practices of the big firms because no one else wants to go under the microscope.

So, instead of questioning just what it is that the Biglaw firms do that's worth $1,000 an hour, let's just go and mess with the men and women who do the dirty work and represent the kind of people we won't let into our reception areas. Meanwhile we'll keep billing clients a flat fee, call it value billing, and raise a ruckus over those criminal defense attorneys who ask for their fees upfront.