The assault on indigent defense down on the island

For the latest assault on indigent defense we go down the road to Galveston County where judges will vote on changes to the county's indigent defense program this month.

According to scuttlebutt, the new policy will include a strong suggestion that three hours is appropriate for a misdemeanor case resulting in a plea. That means three hours to consult with the client, review the state's file, investigate the facts, interview witnesses, consult with the prosecutor and appear in court for the plea.

If the judges intend to question vouchers should an attorney ask for more than three hours compensation for a plea bargain case, they are taking direct aim at the notion that an indigent defendant is as entitled to a vigorous defense as a client who can afford to hire counsel.

If the idea is to cut the amount of money the county spends on appointed counsel in misdemeanor cases, the result will be a much more efficient plea machine on the second floor of the county courthouse. If attorneys are going to have to fight to be compensated for more than three hours on a plea bargain case, the plan creates an incentive for a race to the bottom.

Why spend the time working up a case when you can be paid just as much sitting on your ass doing nothing just waiting for the next court date to plead your client out? Everyone who has practiced for any time in Galveston knows that when the basis of the stop is criminal trespass or not walking on the sidewalk, that something foul is afoot.

I once had a minor dope case in which the reason for the stop was my client walking in the street and not on the sidewalk. After viewing the area of stop on Google Maps and then driving through the neighborhood, imagine my surprise that there wasn't a sidewalk to walk upon. My client's case was dismissed, but, with another attorney and the presumptive three-hour rule, what fate might the young man have faced?

Of course the adequacy of defense that an indigent client receives isn't of much concern to the judges. Indigent defendants don't make up a political bloc that candidates have to attract in order to win the election. The judges are aiming for higher income voters in the suburbs in the northern half of the county - and those voters don't give a damn about poor black or hispanic youth on Galveston Island or just over the causeway.

With the new Republican majority in Galveston County, there is no constituency that will be in arms about the state of indigent defense. And with no one to stand up for the poor, there will be no one to challenge the judges as they push to gut indigent defense.

Since around 90% of criminal cases end in plea bargains, this race to the bottom will only serve to eviscerate further indigent defendants' right to (effective) counsel.

Still alive and kicking after four years

Four years, and 1633 posts, ago yesterday the first words appeared on this blog. The post was about the need for PR bonds in Harris County. Although there are more handed out now than there were back in 2009, there are still way too many folks who are coerced into pleading guilty in exchange for a ticket out of the Harris County Jail.

Despite the fact that bond is not to be used as a punitive measure, too many judges at the Criminal (In)justice Center still use bond and pretrial release as measures to put the screws to defendants. Up in the felony courts I can guarantee you there are plenty of folks who are being held without bond illegally because there is no one to challenge the coercive polices of the Harris County District Attorney's Office or the berobed ones.

Far too few attorneys have read Article 1, Section 11a of the Texas Constitution. Pick it up and read it. It will open your eyes.

Once again I want to thank everyone who has dropped by over the past year and read a post, left a comment or an instant message. I appreciate both your kind words and your criticism.

Over the past year there have been approximately 128,300 pageviews  - that's an increase of more than 40,000 from last year. There were a total of 174 comments posted (yours and mine) - which is also an increase over last year. There were also thousands of spam comments that never made it past the filter.

Here are the top five read articles from the past twelve months:

• Happy Birthday, Guantanamo (Jan. 12, 2012)
• Unarmed, paralyzed and dead (Apr. 18, 2012)
• New members appointed to Texas forensic science panel (Nov. 3, 2011)
• More questions than answers (Oct. 23, 2011)
• Ryan Braun cleared to play ball (Feb. 24, 2012)

I hope y'all continue to find the content here interesting, informative or at least thought-provoking. It's been my pleasure to bring this blawg to y'all and here's looking forward to the next twelve months.

Execution Watch: 8/7/2012

The state that likes to keep on killing is at it again.

ON TUESDAY NIGHT, TEXAS PLANS TO EXECUTE:

MARVIN WILSON. Mr. Wilson was sent to death row after his conviction in the 1992 kidnapping and murder of confidential police information Jerry Williams following a confrontation between the two. A tip from the victim had led to a police search in which drugs were seized and charges lodged against Mr. Wilson. His attorneys argued unsuccessfully on appeal that he is ineligible for execution because he is mentally retarded. 


Mr. Wilson's IQ is estimated to be 61.

For more information on Mr. Wilson, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Tuesday, August 7, 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.


See also:

• "Texas judges doing brain surgery," Simple Justice (8/1/12)
• "Only in Texas: the grave error of using literature rather than scientific methodology to assess mental retardation in a capital sentence case," Danielle Citron, Concurring Opinions (7/31/12)
• Dr. Donald Trahan's report on Marvin Wilson (7/6/04)
• Addendum to Dr. Trahan's report (7/14/04)

You don't need a weatherman to know which way the wind blows

Candidates who switch parties between elections open themselves up to criticism that they are either sell-outs or opportunists. Some manage to overcome the perception and hold on to their office while others fall flat on their faces.

Down on the island, State District Judge Wayne Mallia wasn't so fortunate. Judge Mallia sits on the bench of the 405th Judicial District. He was elected as a Democrat. After seeing the bloodbath in the 2010 elections, the judge decided it was time to switch parties.

Now I've had plenty of matters before Judge Mallia and I've always found him to be a fair, even-handed judge. I might not like all of his decisions but I never felt as if I were starting off at a disadvantage in his courtroom.

The voters in Galveston County weren't so impressed with his last minute conversion, however, as he was forced into a run-off after failing to pick up a majority of votes in the GOP primary in May. Last week he was handed his pink slip as the new conservative majority in the county decided that Michelle Slaughter was a better choice to sit on the bench.

Of course Ms. Slaughter has no experience in criminal law which might not be such a big deal except that the district courts in Galveston County handle both civil and criminal matters. Showing her ignorance of the way the criminal courts operate, Ms. Slaughter has announced that she just won't be giving out probation to repeat felony offenders and that she won't be afraid to revoke someone's probation if they screw up.

Does that mean that she's planning on busting pleas left and right? You see, Ms. Slaughter, it isn't Judge Mallia who's handing out probations like candy - it's the result of plea bargains between the prosecutor and the defense attorney. With rare exception the judge will accept the deal because he wants the case off his docket.

People choose their political party because their daddy voted that way or because the party line reflects their views or because it's the only game in town. Many voters claim that they will vote for the person they think is the best candidate regardless of the party affiliation - at least that's what they say. But voters aren't so understanding when candidates jump from one party to another in the name of political expediency.

Judge Mallia stuck his finger up to see which way the wind was blowing and guessed wrong.

I don't remember church being like this

Okay, so "storming" a church wearing garish clothing, wearing masks and playing a punk song urging the populace to say no to the front-runner in the presidential race might not be the best thing one could do. Although I am not religious, I understand how some folks might get a bit upset if a punk band was playing at the altar.

But threatening to put young people in prison for seven years because they did something the old guard found distasteful is more than a bit too much.



And that's where the young women who make up Russia's most popular punk band, Pussy Riot, find themselves these days. They are sitting in the dock in a Russian courtroom charged with hooliganism. If convicted, they could face up to seven years in prison.

But that's the danger you face if you want to stand up and challenge the established order around the world. Not everyone appreciates the need for free speech as much as we do in the United States.

Denying the holocaust will get you arrested in Germany. Denying the Turks committed genocide against the Armenians can get you in trouble in France.  Making "malicious" remarks on Twitter can get you arrested in England. Speaking out against authoritarian regimes in other parts of the world can get you arrested, disappeared or killed.

The orthodox Christians in Russia are all up in arms because the Christ the Savior Cathedral in Moscow is a sacred place. Really? It's a building in which members of a cult get together a few times a week and chant and sing and listen to a message based on superstition and oppression. In other words, it's just like every other church on any street corner anywhere around the world.

Even the target of their vitriol, Russian President Vladimir Putin, thinks things have gone a mite too far. He doesn't think the three should be treated too harshly if convicted. Of course he has to put out that message to the masses after the ways in which he, and his party, conspired to steal the presidential election. He knows there could be hell to pay if the women are sentenced to long stretches in jail. Such a scenario would bring back the mass protests the sprang up across Moscow after the election.

In this country we have folks who are mad because someone was mean to them on the internet. We have politicians who think that writing vague anti-bullying statutes that penalize those who criticize. We enhance sentences for people who might have had unkind thoughts at the time they committed a crime.

To all those folks I say - grow up.

The right to free speech is an amazing right and it's one that we don't appreciate as much as we should. While I might not like what someone says, I will defend their right to say it, no matter how crude, boorish or hateful it might be. That's the speech that needs defending.

The Founding Fathers were worried about democracy run amok. That's why the Constitution and the Bill of Rights are full of provisions guaranteeing minority rights - such as the right to free speech and the protections of the Fourth, Fifth and Sixty amendments.

Free Pussy Riot!

Sometimes you win by losing

Who would've thought the biggest Olympic scandal to date would be in the field of women's badminton?

Four doubles teams have been sent packing for deliberately losing matches in the group stage of the Olympic tournament. For some unknown reason it was decided to put the teams into groups and have the top teams from each group advance to the elimination rounds.

Much like the World Cup, the quarterfinal match-ups would be set in advance and not on the basis of seeding. So, going into the competition, each team was aware of who their potential foes in the knock-out rounds could be.

Thus there was a perverse incentive to lose in order to avoid being matched up with a certain team. Each of the teams that were found to have tanked their matches ended up with better match-ups in the quarterfinals after losing than they would have had they won.

Of course the Badminton World Federation and the International Olympic Committee could have none of that gamesmanship. This is the Olympics after all and the competition must be sacrosanct (well, except for all the sports that decided to toss out the amateur ideal and let the pros get their games on). The two bodies made it quite clear that tanking a match on purpose just isn't good cricket and decided to put the hammer down without even considering that it was the way they organized the tournament that created the incentive to lose.

Now maybe tanking a match isn't the most sporting thing one can do, but if the name of the game is trying to get your hands around that gold medal, then why should we condemn athletes for making decisions that enhance their chances of standing on the podium and hearing their national anthems blaring over the PA system?

Teams in the NFL who have locked down their seeding in the playoffs are lauded for resting their starters in meaningless games down the stretch. Baseball teams out of the playoff race are encouraged to unload their star players and put out glorified minor league lineups the last month of the season. How does that differ from what happened in London on the badminton courts?

The problem isn't that the teams found a way to game the system. The problem is that the system was set up in such a way as to reward teams for gaming it. Don't blame a competitor for working the angles and increasing his chances of competing for gold; blame the folks who gave them the incentive to lose.

We're the police and we're here to help

He was acting strangely. His hair was wet. His eyes were "big." He told the clerk at the hotel he needed help.  He wouldn't come in and he wouldn't leave.

The clerk was worried. She called 911.

Paramedics from the Houston Fire Department arrived shortly thereafter. He refused their help. Then the police officers arrived. We're told he began to fight.

So one officer decided it was a good idea to pull out his Taser to subdue the man. Nevermind that he wasn't accused of any crime. He clearly needed help. But one man in blue thought the best way to help him was to shoot him with a Taser and send a jolt of electricity through his body.

Nobody refuses an offer of help from a paramedic - and lives to tell the tale.

By now you should have guessed what happened to our protagonist. He was taken to a nearby hospital where he died.

The Taser has been promoted as a way of avoiding the use of deadly force. Instead of pulling out a gun and shooting a person with a live bullet, the officer can incapacitate that person with a strong jolt of electricity. There is, admittedly, the one little complication that strong jolts of electricity and heart conditions don't usually end well. And the corollary that at the time the officer pulls the trigger on the Taser he doesn't know whether the target of his less-than-lethal show of force has a heart condition.

We don't know if the victim had a heart condition before he was tased. What we do know is that he needed some type of help - either medical or psychological. He didn't need to be involved in a confrontation with the police.

The police are taught to fight crime and, if necessary, to subdue suspects. They aren't trained mental health professionals. Their's is a very different tool kit. You see, police officers don't like it when someone tells them no. An officer is used to having people answer "how high?" when asked to jump. Any other response is considered a provocation.

Is it an ego thing? A macho thing? Or is it what happens when you give a man a gun and a badge and turn him loose?

Now a man is dead for no reason.

Making us all just a little bit dumber

Apparently Amy Davis of KPRC-TV in Houston doesn't keep up with the news. If she had, she might not have criticized the Harris County Sheriff's Office for not using its BATmobile. If she kept up with the news she might have learned about the problems the Houston Police Department had with their vans.

Yes, Harris County did waste $80,000 purchasing the van. But they bought one because everyone else had one, too. It was just the latest shiny toy. No one thought about the sensitivity of the breath test machines. No one thought about how the summer heat could cause the circuitry in the machines to go haywire. At least not until HPD's problems became known.

Ms. Davis wants us to believe that motorists are in danger because the BATmobile sits in its cave. She wants you to believe that drunk drivers are cruising up and down our streets because the BATmobile isn't crawling around town.

Ms. Davis seems to be unaware that the police don't need a breath test in order to arrest a motorist on suspicion of driving while intoxicated. She doesn't seem to understand that a motorist suspected of driving while intoxicated is under arrest when the breath test is offered.

Instead of running an "investigative" piece about an unused heap of junk sitting in a garage, she should've looked into why the BATmobile was purchased in the first place. She should've looked at who makes the decisions on what equipment to purchase and why. Maybe she could've looked into the giant slush fund controlled by the DA from criminal seizures and forfeitures. Maybe she should've questioned why that money isn't placed into the general revenue pool for the county.

But such reporting would have required research and legwork. It's much easier to grab the low-hanging fruit. It's even easier not to do a simple internet search for articles about the problems with the BATmobiles.

The company you keep

While there is reason for death penalty opponents in Texas to be happy thanks to the Court of Criminal Appeals' stay of the scheduled execution of Marcus Druery, there is troubling news from around the world.

In Mali, an unmarried couple were buried up to their necks and stoned to death for having sex outside marriage. The death penalty was ordered by Islamists who control large swaths of northern Mali following a coup earlier this year brought about by the army's inability to quell a rebellion in the north of the country.

The stoning was witnessed by some 200 people who watched as rocks were thrown at the couple's exposed heads. The woman fainted after the first few blows while the man shouted once and then fell silent.

Over in Iran four men were sentenced to death for their role in a banking scandal that threatened to bring down Iranian president Mahmoud Ahmadinejad. During the rush to privatize state-owned enterprises an investment bank forged documents in order to obtain loans from various banks. Two other men were sentenced to life in prison and 33 other men were sentenced to at least 25 years behind bars.

It is troubling enough that our government feels the need to satiate the blood lust of the public and kill inmates convicted of murder. The death penalty serves no other function than revenge - and even then it does a poor job. The death penalty brings no closure as the family and friends of the victim are still left with a hole in their lives. The death penalty also eats up precious resources due to the amount of money the state is forced to spend to prosecute a death case as well as to provide an attorney for the accused. Then there is the cost of housing the inmate in solitary confinement in a special unit.

But the state-sponsored murder of someone accused of theft or drug trafficking or having sex without being married is beyond appalling.

The use of murder to enforce religious tenets is the sign of a failed religion. It is also a perversion of the supposed moral underpinnings of religion. Ironically enough it was Jesus who supposedly uttered the famous line "let he who is without sin cast the first stone."

I guess I could get up on my soapbox and write about the ways in which religion is used as a tool by the ruling class to keep the masses subjugated. I could write about how religion is used by the ruling class to keep the masses docile and waiting for their supposed heaven on earth after death rather then fighting for their piece of the pie while they can still eat it. But that's a topic for another day.

Besides, killing a thief or a young couple who slept together violates the tenet most used to justify the death penalty in this country - an eye for an eye. There is no justification for the state-sponsored murder of someone who didn't take another's life (not that there's any justification for it in that circumstance, either). In the case of northern Mali and Iran, the death penalty is being used as a means of keeping the population under control.

And while we don't kill inmates for non-capital crimes in the United States, our continued use of the death penalty puts us in the same category of nations as Mali, China and Iran. Is that really the company we want to be associated with?

High court stays execution of mentally ill inmate

On Friday the Texas Court of Criminal Appeals did what a Brazos County state district judge was unwilling to do. It stayed the scheduled execution of Marcus Druery.

Mr. Druery was convicted of the 2002 murder of Skyyler Browne in Brazos County.

Earlier in the week, Mr. Druery's attorneys asked Judge J.D. Langley to stay the execution on the grounds that Mr. Druery was not competent to be executed due to his suffering from schizophrenia. Judge Langley quietly folded his hands, pinched the top of his nose, looked down at the attorneys, harumphed and said "no can do." (Okay, I made that part up.)

The question raised by Mr. Druery is whether it's cruel and unusual for the state to murder someone who has little understanding, due to a mental illness, that he is being killed.

Those in favor of the execution would argue that the only time a defendant's mental state is an issue is at trial - is he competent to stand trial and/or was he legally insane at the time of the offense. Whether he understands anything that's going on after his trial is not relevant to the plans of the state to murder him.

On the other hand, if the point in killing inmates is to punish the inmate and deter anyone else from acting in the same manner, does killing a man who can't grasp what's going on make any sense? If a person doesn't understand his life is being ended as punishment for killing another, is he really being punished?

We require a defendant to be aware of the reason he was arrested and why he's going on trial. We require that a defendant be capable of assisting his attorney in his defense. We require that a defendant entering a plea understand the legal rights that he is waiving. We require that the state prove the defendant possessed the appropriate mental state associated with the charged offense.

Where is it written that those due process safeguards vanish once a jury files back into the courtroom and pronounces guilt?

This old courthouse: Chicken ranch edition

Back in May my wife and I took a trip out toward the Hill Country. One of our stops was in La Grange - home of the infamous Chicken Ranch. It's also home to the beautifully restored Fayette County Courthouse.

Construction on the courthouse, built in the Romanesque Revival style, was completed in 1891. The building was renovated to its former glory in 2003-2005.

If the interior looks familiar, it's because James Reiley Gordon, the architect that designed it, also designed the beautiful Victoria County Courthouse we looked at a few weeks ago.

And, should you get hungry while you're at the courthouse, head across South Main to Bistro 108 for some unbelievably good food.

Here's a shot of the obelisk out front and the 100 foot tall clock tower.

Here's a closer look at the facade. I love the use of different stones around the arch.

 They don't make courtrooms like this anymore.

 This is a shot of the balcony overlooking the courtroom (not the best picture I've ever taken).

This is a shot of the gallery in the darkened courtroom.

Looking up through the glass roof above the atrium.

And who's that dashing gentleman standing in front of the atrium fountain?

Jumping the gun

After spending days telling everyone who would listen that he thought James Holmes should get the death penalty for the massacre in Aurora, Colorado, lawprof Douglas Berman quoted an article stating that the death penalty is far from a certainty in the Holmes case.

Aside from the fact that most of Mr. Berman's posts are nothing more than the aggregation of articles from various sources regarding sentencing, the takeaway from the article is that there is an entire process that must be undertaken between arrest and sentencing to determine one's fate.

In his haste to be quoted, Mr. Berman seems to have forgotten that before we sentence someone in this country it is usually customary to hold a trial (or enter a plea) before anyone gets a chance to sate their bloodlust (see here and here).

For every shocking crime story that hits the news channel or the internet there seems to be a need for someone to stand up and pronounce sentence before we've even determined whether the alleged baddie is, in fact, the bad guy. It is a race to the microphone (or the keyboard) to proclaim to the world that the suspect de jour should get the needle or a thin mattress and metal bunk.

There's no need to analyze the evidence. No need to determine if the suspect had the proper mens rea for the alleged offense. No need to look at any mitigating factors. Nope. Time is of the essence. We must pronounce sentence now before the next big story knocks this one to the back page.

We are so attuned to the one-hour crime procedurals in which we go from crime to arrest (plus commercials) in just 60 minutes. But that's not how it works in real life. There are arraignments, pointless non-issue settings, motions hearings and pretrial conferences before we even get to trial.

People line up in front of the television cameras and claim they want "justice" now. Justice for what? Justice for whom? Do they really want Mr. Holmes and his attorneys to take advantage of the due process rights guaranteed him by the Bill of Rights? Are they prepared to accept a court's ruling in the event that Mr. Holmes' didn't possess the proper level of mental culpability?

Probably not. They want their friends, relatives and loved ones back. I don't blame them. But nothing that happens from this point forward will ever do what they want. Twelve people are dead and they will remain that way regardless of how this case finally works itself out.

Have you seen this meter?

You gotta hand it to Mayor Annise Parker. She, and her colleagues on City Council, have come up with a brilliant way to raise additional revenue for the city without raising taxes or cutting services. In fact, implementing the plan saves the city money on supplies, as well.

And just what is this new revenue stream you might ask? Not refilling the paper rolls in the electronic parking meters downtown.

 If you see this meter, remain calm. Don't try to apprehend it by yourself. Please call the authorities at once.

Just think about it. Someone puts their money into the machine (no record of that transaction, is there?) or slides their credit or debit card in the slot to pay to park. Then, instead of printing out a receipt with an expiration time on it, the machine just sits there and looks at you like you're a complete freaking moron.

Oh you can try putting a note on your dashboard to the effect that the machine ate your money but there's no guarantee the losers who patrol the streets looking for cars to ticket are going to pay any attention to it. And even if you used plastic to pay to park when you go to the Municipal Courthouse to fight the ticket the functionary sitting behind the desk will look at your bank statement and tell you that it doesn't show what time the charge was made.

The idea would appear to be to force folks to use the city parking app on their phones to pay for parking. The only problem there is that no receipt is generated. The meter maidens must then run your license plate to determine if you've paid to park - and if you have any outstanding tickets that might get your car booted.

Now I'm out $2.50 for parking with nothing to show for it.

Thank you, Mayor Parker.

We'll go far to screw you

Oh the fun of dealing with thieves and crooks. Not at the courthouse, mind you. Nope, once again we're talking about Wells Fargo.

I wrote earlier this month about Wells Fargo cashing a check from my law firm and holding it for their private use for almost two weeks and then charging our personal account NSF fees for their little dirty deed.

Today my wife called me from the bank. She was on the phone with a representative from Visa which offers credit and debit cards through Wells Fargo. It turns out that since Wells Fargo decided to convert my funds to their personal use overdraft fees were being charged to a credit card account tied to the checking account.

The representative from Visa proclaimed that there was nothing she could do to reverse out the charges because we hadn't opted out of overdraft protection earlier in the year.

And isn't that the mantra these days in customer (dis)service - I'm sorry, there's just nothing I can do?

Well there is something that can be done. If Visa can't, or won't, reverse out the charges, then Wells Fargo can eat the overdraft protection fees since they are a direct outcome of Wells Fargo's conversion of our funds. The bank can then apologize to my wife for the hassle she's been through as a result of their chicanery.

Swinging the sledgehammer

In 1987, the NCAA leveled the heaviest sanction against a member institution in its history when it banned SMU from playing football for one year. The program had a history of run-ins with the NCAA over the previous 30 years.

The death blow was dealt when investigators once again uncovered evidence of boosters (including some who had been banned from the program) funneling payments to football players along with free apartments and cars.

SMU has never fully recovered.

In 2002, the University of Alabama was hit with probation, a post-season ban and a reduction in scholarships when it emerged that a Crimson Tide booster was paying a high school coach in Memphis to steer recruits to Tuscaloosa.

In 2010, following a four-year investigation, the NCAA sanctioned the University of Southern California with four years probation, a two year post-season ban, a loss of scholarships and the vacating of the school's 2004 national championship. The offense? Reggie Bush and his family had received improper benefits from boosters (including a house) and the athletic staff looked the other way as agents hung around with players.

What these three incidents have in common is the schools were cheating in order to put better players on the field wearing their gear. By paying players and coaches, the schools were rigging the playing field. They broke NCAA rules.

The other important thing to note is that no university has been hit with the death penalty since SMU - and it's highly unlikely that anyone else will due to effect it had on SMU's football program and due to the amount of money at play in college football.

But then along came Penn State - one of the most storied programs in all the land. Now I must confess - I can't stand Penn State. Their uniforms look more suited for a junior high school than a major college team.

Penn State wasn't accused of doing anything to give their team an unfair advantage out on the playing field.

Jerry Sandusky has already been convicted of raping several young men over a long period of time. He will spend the rest of his life in prison. Joe Paterno looked the other way and did nothing when confronted with Mr. Sandusky's actions - but he was fired and then died.

And there are others who are in the spotlight after it turned out they knew about the allegations and did nothing about it.

Graham Spanier, former President of Penn State, was forced to resign from his post. Former Athletic Director Tim Curley is facing criminal charges for not reporting the abuse to authorities. Former PSU Vice President Gary Schultz is also facing criminal charges for his role in not doing anything to stop the abuse. Tom Corbett, the Governor of Pennsylvania, is under scrutiny for not pushing the investigation while he was out raising campaign contributions from board members of Mr. Sandusky's Second Mile Foundation.

As a result, this past Monday, the NCAA wielded a sledgehammer and swung it at Penn State. The school was fined $60 million dollars, placed on five years probation, banned from the post-season for four years, had 100+ wins vacated, lost multiple scholarships over the next four years and was told their players were free to transfer to any other school without having to sit out a year.

It will be years - at least a decade - before Penn State will even be competitive again. The kids who play for the Nittany Lions did nothing. The students at Penn State did nothing. Athletes in other sports that depend on football revenue did nothing.

More importantly, Penn State did nothing to violate the NCAA's rules. Yes, what happened in State College was disgusting and inexcusable. Placing the welfare of the football program over the rape of young boys is a damning indictment of the way in which big time college athletics, and the money involved in them, have warped our sense of reality.

But we have a court system to deal with these kinds of issues. Mr. Sandusky has been found guilty and will be sanctioned. The other officials will each have their day in court. Victims of Mr. Sandusky will file claims against the university for their failure to act in an appropriate manner.

But still the fact remains that the school did not violate any NCAA rule. The sanctions levied against the program now set a dangerous precedent for the NCAA in the future. Just what type of conduct will warrant a penalty like that levied against Penn State? What crimes are so outrageous that the NCAA will step in?

Mark Emmert, the head of the NCAA, was shocked that a university would do what the administration and football staff at Penn State did. He was appalled that the school had its priorities backwards. Mr. Emmert is a hypocrite.

His organization talks about the student-athletes who compete in NCAA-sanctioned events. He praises the ideal of amateurism and sacrifice for the good of the team. He condemns those who put money ahead of a school's mission to educate.

But, at the same time, he presides over an organization that negotiates multi-billion dollar television contracts for sporting events, puts together the second-biggest gambling event in the United States and sits by idly as football coaches at public schools find themselves the highest paid public employees in the land. And all of this money is being made off the hard work of student-athletes who don't see a dime of it.

See also:

• "Shocker: NCAA does the right thing," Jason Whitlock, Fox Sports (July 24, 2012)
• "NCAA's Mark Emmert overstepped bounds in hammering Penn State," Stewart Mandel, Sports Illustrated (July 23, 2012)
• "Winners, losers and the disappeared," Gamso for the Defense (July 24, 2012)
• "Penn State students bear brunt of NCAA sanctions for Sandusky cover-up as trustees emerge unscathed," Democracy Now! (July 24, 2012)

Out of the mouths of babes

The candidates have spoken and here's the video that proves it.

Houston weather, traffic, news | FOX 26 | MyFoxHouston

Ultimately, however, how the candidates answer any questions won't matter. The winner will be determined by the letter after the candidate's name on the ballot. As things stand currently, I would imagine the GOP will carry Harris County due to the wingnut vote in the suburbs. Should that happen, Mike Anderson will be the new district attorney and the Republicans will sweep the district court benches.

On the other hand, should the economy suddenly pick up and the unemployment rate drop to somewhere in the vicinity of 7%, the Democratic vote within the city might be enough to counter the anti-Obama vote in the 'burbs. Should that happen, Lloyd Oliver might be the new district attorney (I say "might" because the Obama vote inside the city didn't help Clarence Bradford in his unsuccessful run for DA four years ago).

In other words, this race could be between Charles Manson and Madelyn Murray O'Hare and the outcome would be the same. If there are enough folks who feel that what we need is less regulation over commerce and less protection for workers, then whoever runs with an R after their name will win.

H/T Murray Newman

Swearing on the telephone

A few days ago Scott Greenfield over at Simple Justice picked up on a piece written by Walter Olson decrying the use of a judge's gavel in an anti-drunk driving ad. The ad implied that the robed ones were in bed with the state when it came to DWI prosecutions.

Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.

The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.

Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.

The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.

In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.

Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths, TEX. GOV'T CODE ANN. § 312.011(1) (West 2005), we agree with the Smith opinion that it is the act of swearing, the taking of the oath, that is essential to the validity of the affidavit. The purpose of the oath "is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). The affidavit in this case provides, "The undersigned Affiant, being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statement and accusations." It is signed by Ortega as the affiant and includes a signed jurat stating that it was subscribed and sworn to before the magistrate. In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility." Id. 

Therefore, under the facts of this case, a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant. Accordingly, the trial court did not err in denying Clay's motion to suppress.

But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?

This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.

If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.

And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.

A trailblazer passes on

This past weekend, legendary country music performer Kitty Wells died at the age of 92. Now maybe you haven't heard of Ms. Wells before, but you have, no doubt, heard of Loretta Lynn, Patsy Cline, Dolly Parton, Emmylou Harris, the Dixie Chicks, Martina McBride and many other women country singers.

Ms. Wells broke the glass ceiling and led the way for women in Nashville.

Rest in peace, Ms. Kitty.

Indigent defense under attack again

You know the drill.

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...

And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.

Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.

Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.

Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.

The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.

Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.

Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make. 

“It’s sad, because the legislature is putting financial concerns over a defendant’s constitutional right to representation,” sadi Walsh, whose offices are in West Palm Beach. He would have been paid $5 to $10 per hour for his work if he applied the new fees to some of his old cases. The state’s minimum wage is $7.67 per hour. 

The push behind the new law, which lawmakers passed in March and went into effect July 1, was to lower the amount of state money paid to private defense lawyers. State records show the state paid $6.5 million over its original $3 million budget.

No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?

The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.

As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.

When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.

Update: One is the loneliest number

So Rick Perry proved once again that he's man enough to preside over the murder of an inmate. This is the same man who has presided over drastic cuts to state education budgets, mental health budgets and is opposed to anything that might allow the working poor to acquire health insurance coverage. But damn, he certainly is proud of the $25 million the state spent to restore the Governor's mansion and the $10,000 or so a month he received so he could live in a mansion in Austin. And, of course, let's not forget the massive bill he presented to taxpayers to help fund his abortive presidential campaign.

So the state was having a hard time acquiring sodium thiopental because the makers of the drug didn't want bloodthirsty politicians in the States using it to kill people. You know, something about that oath that begins "Do no harm." Then Texas decided to substitute pentobarbital for the first drug of the lethal cocktail pumped into the veins of the condemned man strapped to the gurney.

But then some other problems began popping up and Gov. Perry and his lackeys decided they needed to rethink the lethal cocktail before someone else up and decided that they didn't want their drug known as the killer drug.

Someone over at TDCJ (Texas Department of Criminal Justice) then decided it was time to simplify matters and just use one drug - pentobarbital. Nevermind that no one has conducted tests on the drug to ensure it doesn't have any side effects (besides death). Nope. It's cheaper and we've still got some of it in the medicine cabinet so let's just use the damn stuff.

And so Yokamon Hearn got to be the guinea pig. They strapped him to a gurney and pumped him full of a lethal dose of pentobarbital. He died of a drug overdose. But because the drug is a sedative, we will never know what Mr. Hearn felt as the drug circulated through his body.

Of course most people probably don't care if he experienced any pain or discomfort. He was a bad man, after all. He killed a young man who was minding his own business. A black teenager with developmental issues killed a young, white stockbroker in the Dallas suburbs. His attorneys never even bothered to put on mitigation evidence during the punishment phase of his trial.

Mr. Hearn's actions hurt a lot of people. A family lost one of their members. A friend was lost. There's no denying that what Mr. Hearn did that night had a negative impact on many people.

But the victim isn't all of a sudden back among the living. His family isn't once again whole. His friends don't have him back.

Killing Mr. Hearn didn't undo what happened back in 1998. Killing Mr. Hearn didn't heal the hurt and sorrow. Killing Mr. Hearn only served to satisfy some folks' need for revenge and gives Gov. Perry another notch in his belt.

The great debate of 2012

First came the great debates in ancient Greece among philosophers trying to make sense of the world and the nature of man.

Then came the debates of the Roman Senate.

Don't forget the Lincoln-Douglas debates in 1858.

And what about Kennedy and Nixon in 1960?

Now we may have the most grandiose debate yet. Two heavy hitters will square off in Houston on Sunday morning to debate the issues on the minds of Harris County voters. The debate will play out in three acts on KRIV-26, at 6:10 a.m., 6:40 a.m. and 7:10 a.m. One of the moderates will be HCCLA President Chris Tritico.

Ladies and gentlemen, I give you the candidates for Harris County District Attorney, Mike Anderson and Lloyd Oliver. Mr. Anderson would like to erase the last four years and return to the good ol' boy days of Chuck Rosenthal (you remember how that turned out) and Mr. Oliver who won the Democratic primary by "dumb luck."

Viewers, and other interested folks, may pose questions to the candidates through KRIV-26's Facebook page anytime this week or even during the debate.

Of particular interest to me is how Mr. Anderson proposes to handle the county's largest mental health care provider - the Harris County Jail - and what Mr. Oliver thinks about barratry prosecutions.

Predicting the future

Last week the Houston Chronicle ran a heartwarming story of how the City of Houston Municipal Courts were giving folks a few extra days to take care of their tickets due to the torrential rains last Thursday.

But then there's the incompetent side of the Municipal Court. Last Friday I had a client who was due to traffic court over a speeding ticket. Imagine my surprise when I arrived, looked through the docket sheet and couldn't find his name. I went deep into the bowels of the courthouse to find a computer I could look up his case to see what was going on.

It turns out his case wasn't on the docket for July 13 because he had been charged with failure to appear. Take a look at the Clerk's Certificate of Defendant's Failure to Appear and see if you can spot the problem...

Clerk's Certificate of Defendant's Failure to Appear

So we have a robo-signed affidavit in which a deputy court clerk is perjuring herself when she claims she was present when the matter was called on the docket. She perjures herself when she says my client didn't appear in the courtroom. She perjures herself further when she claims his name was "called in accordance with the law." Finally, she perjures herself when she claims he failed to answer after a reasonable period of time.

Oh, and did I fail to mention that a warrant was processed as well?

Will anyone have to face the music for this monumental screwup at 1400 Lubbock Street? What do you think?

Execution Watch 7/18/12

The state that carries out more executions than any other state is ready to kill again. This time Texas will use a single lethal dose of pentobarbital due to shortages in supplies of sodium thiopental.

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

YOKAMON HEARN, 33. Mr. Hearn was sentenced to die in the 1998 slaying of a North Dallas man who was abducted from a coin-operated car wash, driven to a secluded area and shot to death. The victim's Mustang was found the next day in a shopping center parking lot. Hearn, who was 19 at the time of the crime, has been on death row since New Year's Eve 1998.

For more information on Mr. Hearn, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Wednesday, July 18, 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.


See also:


"Ineffective assistance squared + 5th Circuit = death," Simple Justice (7/16/12)

An innocent man

A man is kidnapped in Somalia. The warlord hands over to an official from another country who then sends the man to a secret prison somewhere near the Middle East. For five years that man is held in solitary confinement. He is stripped of his clothes. He is deprived of sleep. He is subjected to bright lights and loud music for days at a time. He is left in complete darkness for days at a time. He is physically and mentally tortured. And this does on day after day, week after week, month after month, for five long years.

Then, one day he is released. He was never formally charged. He never saw the inside of a courtroom or was allowed to see the evidence against him. One day he's in and the next day, with a piece of paper indicating that he was detained and found innocent, he's out.

The label of suspected terrorist is stuck on his back. He lives in constant fear that he will be scooped up again in the future and subjected to the dehumanizing treatment he suffered for those five long years. He has no recourse against the government that ordered his torture. He is, instead, left to pick up the pieces of his own shattered life.

The man's name is Suleiman Abdallah and he was an innocent victim of the United States' brutal torture regime under both the Bush and Obama administrations. The hell through which he lived was a violation of his human rights and constituted a war crime. Of course since the U.S. pulls the strings in both the U.N. and the International Criminal Court, there is no chance that either George W. Bush or Barack Obama will ever have to answer charges they broke international law.

Writes Clara Gutteridge in The Nation:

Suleiman’s legal options were few. “There is currently no political or judicial avenue available to a person like Suleiman who has been wronged by the United States,” explains attorney and professor Joe Margulies, author of Guantánamo and the Abuse of Presidential Power. “In limited circumstances, like prisoners at Guantánamo, people can seek their release in court, but no one can seek anything more than that.” Under both the Bush and Obama administrations, he notes, “any suggestion that the US should compensate an innocent man for the wrong done to him is a complete nonstarter.” 

In theory, Suleiman could have sued one of the regional states—Djibouti or Kenya—for their complicity in his rendition and torture. But weak, slow-moving and overburdened legal systems make this option unlikely to yield any tangible benefit.

As I believe my colleague, Jeff Gamso, would say, the torture regime carried out by our government is a case in which the Law of Rule supplanted the Rule of Law. The U.S. government tortured foreign nationals because they could. There was no one to stop it. There was no one to storm the gates at Bagram Air Force Base or at Guantanamo Bay.

Some day, maybe sooner than later, we will look back in shame at what our government did in our name. We will realize that the ends don't justify the means and that once you cross the line the way our government did, there's no coming back.

Every soldier who participated in the torture of a foreign national should face charges. Every officer who ordered the torture to continue should face charges. Every commander who presided over the torture of anyone should face charges. Every federal agent who participated should face charges. The Attorneys General and Defense Secretaries who gave the plan the go-ahead should face charges. Presidents Bush and Obama should face charges.

There is no excuse for what happened in those secret prisons. There is no excuse for the treatment the detainees suffered through. There is no justification for the systematic violation of human rights and international law.

But it won't stop.

From Democracy Now!

FBI to review thousands of cases for faulty forensics

Oops.

Now the FBI is reviewing thousands of cases dating back to 1985 to determine if anyone was wrongly convicted as the result of hair and fiber evidence tested by the FBI. The cases being reviewed include cases filed in state courts where the evidence was tested by the FBI.

According to The Washington Post, the FBI was aware of problems in their forensic unit but chose not to divulge that information to the defendants or their attorneys. The review is being conducted with the Innocence Project and the National Association of Criminal Defense Lawyers.

“These recent developments remind us of the profound questions about the validity of many forensic techniques that have been used over the course of many decades and underscore the need for continuing attention at every level to ensuring the scientific validity and accuracy of the forensic science that is used every day in our criminal justice system.” -- Michael Bromwich 

If that name sounds familiar it's because Mr. Bromwich conducted the investigation into the morass known as the HPD Crime Lab a few years back.

The root of the problem is the way so-called crime labs operate. These "labs" are arms of state or local law enforcement agencies - so the people testing the evidence are employees of the same entity that arrested the suspect in the first place.

The set-up creates a glaring conflict of interest that most criminal judges are loathe to do anything about. The analysis is passed off as valid science even though the analyst is employed by law enforcement. The employees of the crime lab see themselves as part of the same team as the police. And this creates a massive problem.

Over in the civil courthouse, such an arrangement would raise more than a few eyebrows. The civil courts are accustomed to arguments regarding the validity of a particular test or conclusion. Courts routinely conduct hearings to determine whether or not a particular expert witness will be allowed to testify. Conclusions, assumptions and observations are scrutinized by both attorneys and judges.

But over in the criminal courthouse, where lives, not dollars, are at stake, judges will rarely prevent an analyst from testifying for the state - even though all of his training was provided through the police department and is based on what another officer taught him. Judges in the criminal courts think nothing of allowing an officer to testify as to the validity of the horizontal gaze nystagmus test despite the fact the officer has no knowledge of how the eye works or why alcohol supposedly causes nystagmus.

Analysts with little or no scientific training are allowed to testify as to the results of forensic tests when they can't even explain why a certain procedure is followed.

Control of crime labs must be taken out of the hands of law enforcement. The labs must be accessible to both the defense and the state. Judges need to take another look at Daubert and Frye and, in Texas, Kelly and Mata to remind themselves what their role as gatekeeper means. Defense attorneys need to learn more about the science behind the testing and need to learn to question the analysts' basic assumptions.