Execution Watch: 5/7/2013

The Texas killing machine is back up and running...

TONIGHT, TEXAS PLANS TO EXECUTE:

CARROLL JOE PARR.  Mr. Parr grew up in poverty so extreme, he was often given baked dirt to eat. His sister once tried to kill him. Texas plans to execute Mr. Parr for the shooting death of a man in a drug deal outside a North Waco convenience store in 2003. Mr. Parr and his fall partner, Earl Whiteside, were accused of approaching two men sitting in a car, forcing them to the side of the building and robbing and shooting them. One victim survived. Mr. Whiteside testified against Mr. Parr and received a 15-year sentence on a plea to aggravated robbery. Mr. Parr's would be the 497th Texas execution in the modern death penalty era.

For more information on Mr. Parr, click here.

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Rethinking the docket

The other day Scott Greenfield wondered aloud why defendants in criminal cases are required to appear in court on arbitrarily set court dates unlike defendants in civil cases. While his reference was New York - whose procedural rules are quite different than ours down here - his point was well made.

In Harris County a defendant is brought before the court within 48-72 hours of his arrest - if he isn't able to post bond. Posting bond will delay that first appearance for about a week. At that first appearance the defense lawyer has an opportunity to view the state's file and chat with the prosecutor about the facts of the case. The next step is to step out into the hallway with one's client and discuss how the officer's version of facts differs from the one he have the attorney.

At some point there is usually, but not always, a probable cause determination that rarely ends with anything other than there is probable cause to charge the person standing before the bench.

Then, absent a plea on the first setting, the case is reset. The court coordinator will ask the lawyer what day during a particular week (generally three to four weeks hence) he would like to appear. A reset form is filled out, signed and turned in. The defendant is then free to go.

Then, from that point forward, the defendant must appear in court every third or fourth week (in some courts every other week) until his case is resolved. It doesn't matter if there is anything new. It doesn't matter if the decision has already been made to set the case for trial. Combined with judges' new fascination with forcing defendants on bond to report to the adult probation department for pre-trial release supervision, this scheduling pushes defendants to plead to cases early on to avoid the expense (both time and money) of continuing the fight. After all, who can afford to take a day off every month to sit in court and visit a probation officer and then another day off to drive across town to pee in a cup?

Judge Michael Fields has the right idea. Instead of setting routine courts dates in every case, following the initial appearance, Judge Fields sets the case off a few months for a pretrial conference setting. In the meantime it is up to the lawyer to keep in contact with the prosecutor to discuss any new developments (left unsaid is how to keep up with the ever-changing court rotation of baby prosecutors). The procedure is notably different for defendants who can't post bond of course.

Being that, for many attorneys, an upcoming court date is the catalyst to check to see if something needs to be done on a case, practicing in Judge Fields' court might require a new-found discipline to get things done without monthly reminders in the form of court appearances. While the new docket control system isn't perfect, it does make life easier for those citizens who are innocent unless proven otherwise by the state.

A lawyer goes to a ballgame...

Okay, I'm up in Arlington for a seminar. I spent the evening at the Ballpark (more or less) watching the Rangers lose to the White Sox. More on that later.

First, I want to make a shout out to Marilous Auer for pointing out a huge error I made in post reviewing the book Color Blind. I meant to say that my oldest daughter thought it was stupid that blacks weren't allowed to play in the majors before 1947 - but that's not what I typed. Marilou pointed out the fact I had left out the word "not" in my post.

Without that word the post totally missed the point I was trying to make. Kids don't make the distinction of races that adults do. They just want to play and they don't care about what color someone's skin is. We could learn so much by watching our kids play and interact with one another.

And that brings me to this morning's topic. Last night I went to the Ballpark in Arlington to watch the Texas Rangers play - not because I care one whit about the Rangers but because I thought it would be fun to watch a game as a neutral observer in a strange ballpark.

Before I get into the circumstances surrounding last night's game I do want to say that the Ballpark is a beautiful place to watch a ballgame. The Rangers got it right when they designed their digs. It has an old-timey feel from both the outside and the inside. Of course, since it was all of 43 degrees when the game started, I realized how much I missed Minute Maid Park (for all its faults) because it is enclosed.

I had tickets in the club section but, unlike in Houston, the club section is not enclosed in Arlington. There are a couple of bars that are enclosed (and warm) but the club level is open (and cold). I remember the first time I took my youngest daughter to a ballgame (it was my wife's parent's 65th wedding anniversary). She wasn't quite a year old and cranky as hell. I spent a good deal of time sitting in the back of a bar with her on my chest watching the game and drinking like a fish.

Before I left Houston I went online via MLB's At Bat app to get a ticket but no matter how hard I tried I couldn't get it to work right. I ended up having to buy my ticket on my computer instead (my phone seemed to think I wanted to purchase four tickets in the bleachers instead of one in the club section). I was given the option of having my ticket information sent via text message which I thought would be quite convenient. Unfortunately my cell carrier blocked my receiving or sending text messages to the short numbers.

I called my carrier and had the block lifted and then sent a text to the ticket seller to resend the ticket information. Nothing. Then I sent another request. Again I received nothing.

I called the number on the e-mail and was told there was not a damn thing that could be done about it. So I printed out my ticket before I left the office. But I had paid another $2.50 for the privilege of having a text message sent to my phone with all the necessary information. I asked the customer service rep if I could get my $2.50 back since the company's FAQ pages regarding cell phone tickets were nowhere to be found.

Believe it or not, I was told there was nothing the ticketing agent could do and that I would have to deal with the Rangers' ticket people to get my money back. I wish I could say I was surprised. Maybe that's the price that I pay for using a two-and-a-half year old android phone (no sense in buying a new one if the old one is working).

So there we are. I had a good time in a different ballpark  - thank goodness I finally got into the bar because it was awfully damn cold tonight - but I do have a gripe about the entire ticketing process. I also have a greater appreciation for Minute Maid Park (although it still feels fake).

I'm going to go now so I can listen to the rest of the Astros' game tonight (they're in the 12th inning as I write). Have a great day.

Bill would impose moratorium on driver surcharges in Texas

Anyone who has dealt with the world of low-level traffic offenses knows the consequences of the Texas Driver Responsibility Program. The DRP imposed surcharges on driver license renewals for certain traffic offenses and suspended legal driving privileges for those who didn't make the payments.

Then, when those same drivers picked up new moving violations their licenses were suspended (again) and more surcharges were imposed. The entire program became a downward spiral that left many motorists with no way to ever regain their legal driving privileges.

Now it appears that relief might be on the way in the form of HB104 - a proposed bill that would place a two-year moratorium on the imposition and collection of surcharges under the DRP.

The DRP was created in 2003 partially as a funding mechanism for trauma centers in the state. The promise was that folks who drove without insurance or on suspended licenses would cough up some money that the state would collect and distribute (hmm, sounds like a tax to me). Over the years, however, the program has not generated the funds lawmakers had expected.

Being that most folks ticketed for driving without insurance or on suspended licenses tend to be on the poorer end of the spectrum, the state has only collected about 40% of the surcharges levied on motorists. So, not only did the program not generate the amount of revenue expected - it couldn't even collect half the surcharges levied.

The bill would allow the DPS to begin imposing and collecting surcharges after September 1, 2013 provided the state had not yet found a mechanism to fund trauma centers at the level they are currently funded. Whether this will encourage lawmakers to come up with a new funding mechanism or just sit on the hands has yet to be determined.

For way too long the state legislature (and governor) have resisted devising equitable mechanisms to fund this state. The sales tax is regressive. The lottery is a scam directed at the poor. The DRP is yet another attempt to impose higher taxes on the poor while reducing the tax burden on the wealthy.

Imposing a moratorium on the DRP rather than abolishing the whole thing may be a baby step - but at least it's a step in the right direction.

Book review: Color Blind - The Forgotten Team that Broke Baseball's Color Line

Over the weekend we took the kids to see 42. Now I understand that some of the scenes were apocryphal and others were mixed in from later seasons but I thought the movie did a pretty damn good job of conveying the mood of the time.

I thought it was a sign of how much society has changed that when I told my oldest daughter what the movie was about she said it was stupid that blacks were not allowed to play major league baseball (special thanks to @Mariloutheclerk for pointing out I forgot the "not" in the preceding sentence). She was blown away by what she saw on the screen. While we still have a way to go in race relations in this country, we have made tremendous strides since the late-40's.

But, before Jackie Robinson and the Dodgers, there was the local semi-pro team in Bismarck, North Dakota - what may have very well been the first integrated baseball teams in the country. In Color Blind: The Forgotten Team that Broke Baseball's Color Line, Tom Dunkel takes us back to Depression-era North Dakota and Neil Churchill, the man behind the curtain.

Back in the 20's and 30's baseball was a lot less organized than it is today. There were a handful of minor leagues that served as pipelines to the majors but most baseball teams were independent. Most of them were either factory-sponsored or so-called town teams. There were also the barnstormers such as the House of David who toured the nation. For black ballplayers they were limited to the Negro Leagues and such teams as the Pittsburgh Crawfords, the Homestead Grays, the Chicago American Giants and the Kansas City Monarchs.

Neil Churchill was a town booster who was already involved in the town's basketball squad when he got involved in baseball. He set out to make the Bismarck Nine the best squad in the state. He did it by signing outcasts from the minor leagues and by going after players in the Negro Leagues.

His most notable signing was the mercurial Satchel Paige who spent parts of three seasons pitching for the Crawfords and Bismark. The year after Jackie Robinson's debut in Brooklyn, Satchel Paige helped the Cleveland Indians win the World Series. Bismarck rode Paige's magical right arm to victory in Hap Dumont's 1936 National Invitational Baseball tournament.

Paige's battery teammate was catcher Quincy Troupe who could hurl the ball over the outfield wall from his knees behind home plate. Troupe started off with the Chicago American Giants before Neil Churchill convinced him to head north. After his time in Bismarck, Troupe spent most of the rest of his career playing in Latin America - though he played in the states long enough to lead the Cleveland Buckeyes to the Negro League crown in 1945. He also signed the first white player in the Negro League.

When the Dodgers purchased Robinson's contract from the minor league Montreal Royals, they also tried to pick up Hilton Smith who convinced the Kansas City Monarchs (by then a barnstorming team) to sign Robinson. Smith decided, at the age of 35, that he was too old to play for Branch Rickey and he opted to remain with the Monarchs. Smith became the ace of the Bismarck staff when Paige left for good.

Tom Dunkel's book is a trip back to a time when baseball really was the American pastime. His book is full of ballplayers you won't find in the history books and feats that seem almost magical. It is also a tale of the terrible inequities of racism and segregation and a reminder that some of the best players to ever put on a uniform and step onto a field were never allowed to do so at the highest level of the game.

Happy Birthday, Willie

Yesterday was the red-headed troubadour's 80th birthday. To celebrate here is an interview with Willie that aired on Democracy Now! as well as a couple of my favorite Willie Nelson songs.

There's a reason you have two ears and only one mouth

When people ask my nine-year-old daughter what she wants to do when she grows up, she tells them she wants to be a lawyer like her dad (I've still got plenty of time to discourage that course of action). Then my wife chimes in that she really likes to argue and everyone smiles and nods their heads.

As anyone who has ever practiced law will tell you, very little of a lawyer's time is spent "arguing." In fact, we do a lot more sitting around listening to our clients that we do arguing.

I was reminded of this when I saw Scott Greenfield's post on Saturday about the talkative contractor he was looking to hire to repair his house after Hurricane Sandy.

Before arguing a motion to the judge there are hours of prep time spend reviewing the case file, researching the current state of the law, drafting the motion and anticipating your opponent's arguments. And sometimes the argument is limited to the judge asking what you want and why and then listening to the prosecutor state why the court should deny relief. Now you've got one last chance to impress the court.

Before sitting down to cross-examine the state's main witness you spend hours pouring over offense reports, witness statements, photographs as well as material obtained through discovery and snooping around. And then, invariably, the witness goes down a path you hadn't anticipated and your entire outline gets tossed out the window. If you're going to be effective you better be listening.

Contrary to what many people think, cross-examination isn't about arguing with the witness. It's about you testifying for your client through the person on the witness stand. It's as much about what you don't ask as what you do ask. It's about weaving together disparate threads of a story you can tell to the jury at the end of the day.

And, while we're here, don't even think of arguing during jury selection. As my esteemed colleague Mark Bennett has pointed out countless times in his blog and in his presentations, the secret of jury selection is listening. If you want to know what someone is thinking, ask them and listen to their answer.

So, if you think Junior will make a great lawyer one day because he likes to argue until he's blue in the face - think again. He might be better suited to talk radio or Fox News. If you want to be a good lawyer, you need to shut up and listen. You just might learn something.

High court says no to warrantless blood draws - or does it?

Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.

Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.

Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.

At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.

The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?

Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.

But I digress.

Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.

The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.

Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.

There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.

Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.

Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?

The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.

There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.

Now for something completely different...

What you are about to see (H/T NPR) is three years of the sun's life compressed into three minutes. NASA took two pictures a day of the sun from a satellite for three years and put those shots together in this video. It is wildly hypnotic and it gives you an idea of the violence just beneath the surface of the sun.

It also puts into perspective just how inconsequential we really are. Long before we started walking on our hind feet and making tools the cosmos did its thing and long after we kill ourselves off the cosmos will still be doing its thing.



Then we have this article from the BBC in which scientists estimate that over the next 200 years there will be one catastrophic collision with space debris every five to nine years. The debris we're talking about is all man-made: dead satellites, rocket booster stages and exploded fragments of both.

Apparently there are approximately 20,000 pieces of man-made space debris orbiting the earth that are big enough to be monitored - and somewhere around 500,000 pieces between 1cm and 10cm in length. All of these objects are travelling at speeds of several kilometers an hour.

And just why is there so much junk floating around in space? It's because through the lens of capitalism, since no one "owns" space, it is used both as a "highway" and as a giant trash can. It's the same attitude that has led to the pollution of lakes, oceans and the air we breathe. For, unless there is someone to charge rent for the use of space, there will be no incentive for anyone to clean up after themselves. Instead of viewing the commons as belonging to everyone and acting accordingly, those seeking profit look at the commons as belonging to no one with no consequences for trashing the place.

But, who cares, because by the time the consequences are felt, none of the folks responsible for the mess will still be around.

Update: Another senseless death

"Life is death, death is life. I hope that someday this absurdity that humanity has come to will come to an end," [Richard] Cobb said when asked if he had any last words. "Life is too short. I hope anyone that has negative energy towards me will resolve that. 

"Life is too short to harbor feelings of hatred and anger. That's it, warden."

Another inmate is dead.

But nothing is changed.

Richard Cobb was murdered on Thursday night at the hand of the State of Texas for a murder he committed almost eleven years ago. The other man convicted in the case, Beunka Adams, was murdered by the state a year ago this week.

Kenneth Vandever, the man Mr. Cobb murdered, is still dead. His family still feels the loss. The deaths of Mr. Cobb and Mr. Adams don't change that. There is nothing that will ever take away that sense of loss.

"I think justice was served but it doesn't change anything to speak of," the slain man's father, Don Vandever, said after watching Cobb die. "I do think the justice system needs to be more of a deterrent. 

"All he did was go to sleep. That's it."

Yes, that's all that happened last night. A person with a medical license from the State hooked up an IV so that someone else could press a button to release the poison into Mr. Cobb's vein. But even had Mr. Cobb been electrocuted, hung, shot or drawn and quartered, Mr. Vandever's son wasn't coming back to life.

The death penalty is not a deterrent to murder. It never has been and it never will be. In order for it to be a deterrent, everyone would have to think in abstract terms of benefits and consequences before doing anything. Yes, your chances of being murdered by the state are long indeed, but there are only a select few crimes that the government chooses to exercise its power to kill. Besides, most of the time no one planned on killing anyone.

The death penalty can be a deterrent to trial, however. Given a choice between pleading guilty and taking life in prison versus going to trial and risking the needle, many defendants elect to plead. The ones who go to trial either proclaim their innocence or weren't given the choice to plead.

In the end our society will be judged by how we treated our worst members. We have spent years waging war against the poor and people of color and locking them up behind bars. We have a governor who thinks presiding over the murder of inmates makes him more of a man.

The madness needs to stop. It's time we stopped killing inmates. Violence begets violence and hate begets hate. The death penalty is a cancer that's killing us from within. It is time to excise the cancer and find a better way to deal with the worst of the worst.

Adventures in spelling

Here is a sign from a bail bond place in downtown Houston. I spotted it while walking around with my oldest daughter looking for a place to eat one day when she didn't have school.

Just look, it'll jump out at you like it did for me as soon as we passed by.

It wouldn't be that bad except that they spelled apprehension right at the top of the sign.

An apology

For the last couple of years I have been providing updates on scheduled executions in Texas. The information is provided by Execution Watch. I get the information through their website and from e-mail updates they send out in the days prior to a scheduled execution. The show Execution Watch is broadcast on KPFT at 6pm when there is an execution scheduled.

Unfortunately the information I've received recently from Execution Watch hasn't been accurate. And, if you've tried to listen to the radio show you know it's not always on when it's supposed to be.

Earlier this week I ran an update on Elroy Chester III, who was set to be murdered by the State of Texas last night. However, on April 16 the Court of Criminal Appeals rescheduled the execution to June 12, 2013. That I didn't find out until I noticed the Execution Watch website did not have the information for Mr. Chester on the front page this afternoon.

I apologize for providing y'all with the wrong information. The lesson learned, of course, is to verify the information before posting the update.

Execution Watch: 4/25/2013

The killing machine just keeps on killing...

ON THURSDAY NIGHT, TEXAS PLANS TO EXECUTE:

RICHARD COBB.  One of two men condemned for a 2002 robbery-slaying in the small East Texas town of Ruskin. he and Beunka Adams (murdered by the state on April 26, 2012) were convicted of forcing three convenience store workers into a car, driving them to a field, raping one of the women and shooting all three with a shotgun. One worker, a mentally disabled man, died. The women survived by playing dead.

For more information on Mr. Cobb, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Thursday, April 25, 2013, 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.

Sometimes I feel like a motherless child

Folk singer Richie Havens, who opened Woodstock, died yesterday at the age of 72. His songs were an important part of the tapestry of the 60's and early 70's.

Rest in peace.

Execution Watch: 4/24/2013

Texas is rapidly approaching its 500th execution since the death penalty was reinstated in 1976...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

ELROY CHESTER III.  A jury sentenced Mr. Chester to death after he pled guilty to the 1998 fatal shooting of a Port Arthur firefighter who was slain after arriving at his sister's home during a robbery. Mr. Chester's attorneys argued on appeal that he is ineligible for execution because he is mentally impaired, but a divided federal appeals court upheld the sentence.

For more information on Mr. Chester, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Wednesday, April 24, 2013, 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.

Dropping the other shoe

Michael Morton spent 25 years in prison for a crime he didn't commit. Once evidence surfaced that Mr. Morton might just have been innocent of the murder of his wife, the Williamson County District Attorney, John Bradley, fought tooth and nail to prevent the evidence from being tested.

The DA at the time of Mr. Morton's trial, Ken Anderson, was now a state district court judge in Williamson County and the office was circling the wagons to cover up the sins of one of their own.

Eventually the evidence was tested - and it exonerated Mr. Morton.

Twenty-five years is a long time to sit in prison - especially if you were wrongly convicted. Even worse if that conviction were the result of prosecutorial misconduct. There is nothing that can make up for that time. Mr. Morton will never have the opportunity to see his son grow up. An apology from the court and a check from the state can't cover the debt Mr. Morton is owed.

During the investigation of the murder of Christine Morton, investigators interviewed Mr. Morton's three-year-old son who told police that his father wasn't at home when his mother was killed. There were also police reports about a suspicious van in the area and a man who wandered up behind the Morton's house on more than one occasion.

Prosecutors failed to disclose that information to the defense before or during trial. And, of course, the jury never heard a word about any of it. Making it worse, Judge. Anderson then lied to the judge presiding over Mr. Morton's trial when asked about the evidence.

But now the other shoe has dropped. On Friday, State District Judge Louis Sturns, presiding over a court of inquiry, found that Judge Anderson broke two laws in his handling of the matter and that he committed criminal contempt when he lied to the court. Then Judge Sturns ordered Judge Anderson arrested.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison. 

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Let that sink in for a moment.

First the judge tells a fellow judge that he broke the law while handling the Morton case, then he issues an arrest order for a sitting judge. That just doesn't happen in Texas.

Judge Anderson was taken into custody, posted bond and was released that evening. But the sting of Judge Sturns' words will never be erased. A sitting state district judge broke the law and lied to a judge all in the name of trying to win a case against a man he knew - or should have known - was innocent of the charge.

Judge Anderson challenged the ruling and informed Judge Sturns that he plans to appeal on the grounds that the court of inquiry exceeded the scope of its authority and that the statute of limitations had already run. He also claimed that the evidence didn't support Judge Sturns' findings.

It is more than a little interesting to note that Judge Anderson has never denied hiding the evidence. Neither he nor John Bradley found anything wrong with not disclosing exculpatory evidence to Mr. Morton's attorneys

While the Michael Morton Act expanding the items the state must turn over to the defense prior to trial is a step in the right direction, the actions of Judge Sturns are the equivalent of turning the entire truck around. A ruling that a piece of evidence is inadmissible is one thing - a ruling that a prosecutor's actions constituted a criminal act is something entirely different.

If we want to make certain that no one else has to go through what Michael Morton went through, we have to start holding prosecutors accountable for their actions. This isn't a game we play, what goes in those courtrooms affect people's lives in profound ways. Judge Anderson's actions not only robbed Mr. Morton of 25 years, they also robbed his loved ones of those 25 years.

I just wonder if Judge Anderson has enough honor to step down from the bench he has disgraced.

Were you the same person 32 years ago?

Last weekend lawprof Doug Berman posted an article about how the state of Florida got around to murdering an inmate 32 years after he was sentenced to death. Mr. Berman's use of the word (finally) in the title tells you just about all you need to know about his views on the ultimate act of governmental power.

An interesting twist, however, was Mr. Berman's idea that if an execution isn't carried out within 15 years of the date of sentencing that the sentence should be commuted to life in prison without parole (what my fellow blawger Jeff Gamso refers to as "death in prison"). Mr. Berman's thoughts, of course, are with the family and friends of the victim and their need for closure (which is a fantasy that occurs).

In Mr. Berman's opinion, the fact that it took Florida 32 years to kill Larry Eugene Mann makes a mockery of our criminal (in)justice system. His idea of a mockery being that the savages' desire for bloodlust was delayed so long.

I concur that holding a man on death row for three decades makes a mockery of our system. But not because those seeking revenge had to wait so long but because the passage of 32 years renders the court's determination that Mr. Mann needed killing moot.

In most jurisdictions that murder inmates, before a death sentence can be imposed there must be a finding that the defendant will remain a danger to society in the future. At the time he was sentenced to die, Mr. Mann was 27 years old. At the time of the murder he was younger still.

Due to the nature of the murder I could see how a jury or a judge could make the decision that Mr. Mann would continue to be a danger to society. But that was back in 1981. Ronald Reagan was president. We had no internet. Cell phones were the size of bricks.

Things change over the course of 32 years. People get older. They get more mature. They might even get wiser. People certainly mellow out over time. Our attitudes and beliefs change. Sitting in a small cell with limited contact with the outside world gives a man plenty of time to think and to contemplate his existence.

Larry Eugene Mann wasn't the same person the other night when he was strapped down to a gurney and poisoned to death as he was the day he murdered ten-year-old Eliza Nelson. The time that passed certainly didn't mitigate his guilt. But the passage of 32 years should cast doubts on the finding that Mr. Mann would continue to be a danger to society.

Taking advantage of the publicity regarding the length of time that passed between the sentencing and the murder of Larry Mann, the judiciary committee of the Florida House passed a bill that would set stricter deadlines for post-conviction litigation of death penalty cases. Of course that's to be expected since convicted murderers don't have an effective lobby and have no political muscle.

The irony is that there are 28 inmates on Florida's death row who have been there longer than the 32 years Mr. Mann spent there. That's 28 more "special findings' that have no validity anymore due to the passage of time.

Yes, Mr. Berman, executing a man after spending 32 years on death row does make a mockery of our criminal (in)justice system. Just not for the reason you believe.

Book review - The Lawyer Bubble: A profession in crisis

Too many lawyers. Too few jobs. Too much debt. Too much greed.

That, according to Steven J. Harper, just about sums up the problems in the legal profession these days. There is a glut of attorneys out there who can't find jobs. They are carrying way too much debt to even consider paying back anytime soon. And all the while the American Bar Association hands out accreditation to new law schools left and right.

In his new book, The Lawyer Bubble: A Profession in Crisis, Mr. Harper takes a hard look at the problems in the profession today and details how BigLaw has screwed the pooch, how law schools are scamming students and how prospective lawyers fall over the cliff just like lemmings.

I learned an awful lot about law school and BigLaw culture that I never knew anything about thanks to Mr. Harper. I didn't know I was supposed to pour over the U.S. News & World Report rankings to determine where I went to school. I didn't realize my dream was to work in a mega law firm doing mundane tasks for years on end while making money hand over fist. I had no idea that law schools were so deceptive in their marketing practices.

Ignorance was bliss.

I went to South Texas College of Law's night program for second career lawyers. My choices were South Texas and the University of Houston. My decision was made when I found out that UH's part-time program didn't start until the spring while South Texas kicked things off in the fall. I applied to one law school and was accepted. To this day I couldn't tell you where either South Texas or UH sit in the U.S. News rankings. I don't care. If you've ever spent time practicing down here you know that both schools prepare students for the real world.

Since I went into law school to become a criminal defense lawyer I never knew anything about the wet dreams that students have over working for BigLaw. I never knew anything about the ways in which law schools manipulate employment data to convince students to plunk down large sums of cash to attend their school. To this day I couldn't tell you how many South Texas graduates have long-term jobs requiring legal degrees. I graduated in May, took the bar in July, got my results in November and hung out my shingle in January.

But, back to Mr. Harper's book. In the first part of The Lawyer Bubble, he shows us how BigLaw fouled the waters for everyone and how the greed at the top of the pyramid has created such turmoil for those at the bottom. It started when someone made the decision that BigLaw was more of a business venture than a profession. When the chase for profit became more important that providing service for the client, the world of BigLaw came crashing down. He also shows us how the same mistakes were made again and again and again...

He paints a bleak picture of life as a junior associate. There are fewer openings for equity partners. The partnership track has been extended. The attrition rate in BigLaw approaches 80% after five years. Big firms have spent the past decades increasing their "leverage" - the number of associates per each equity partner. That means more mundane tasks and fewer opportunities to get that corner office.

In the second part of his book, Mr. Harper takes a hard look at the role law schools have played in creating the mess we find ourselves in. There are too many law schools accepting too many new students without enough demand for lawyers out in the real world. The law schools benefit from federally-guaranteed student loans that can't be discharged in bankruptcy. The law schools keep hiking up their tuition knowing there's "free" money out there to pay the bills. Law schools, particularly those affiliated with a university, have become profit centers and are operated as such.

Instead of preparing students for what being a lawyer really means, the law school curriculum is placed in the hands of academics who are more interested in pursuing their research on esoteric topics while being forced to teach a class or two a semester. The end result are new lawyers who don't know how to write a brief nor where to file it. In ringing up debts that run into six figures, prospective lawyers should at least be given a map so they can find the courthouse.

Finally, Mr. Harper tells prospective lawyers to look in the mirror. It's time to see the world as it is, and now how you want it to be. Before you run up a big debt you need to make damn sure this is what you want to do. You need to know what the economic climate is in the legal profession, you need to find out how BigLaw operates (if that's what you want to do) and you need to decide if that's the life you want. Too many students go into law school without the foggiest notion of what the world is going to look like after they cross the stage and pass the bar.

A very clear and important underlying message of The Lawyer Bubble is the need to always remember that ours is a profession dedicated to serving our clients nor a business model to maximize profits.

A few thoughts on the bombing in Boston

Any time bombs are used to target innocent civilians, it is an act of terror. -- President Obama (4/16/2013)

There were a few things that struck me yesterday regarding the bombing of the Boston Marathon. The first has to do with the crowds of fans watching the runners punish their bodies. Road races are one of the last sporting events that folks are able to walk up to and watch. There are no tickets. There are no metal detectors.

Part of the beauty of the Houston Marathon are the crowds gathered along the course. Whether it's the Heights, Montrose, the Village, the Galleria, Tanglewood, Memorial Drive, Allen Parkway or the final stretch, the fans are loud and supportive. If you're paying attention you'll see the same folks three, four or five times along the course. I never get tired of the sight of a runner heading to the side of the road to spend a few moments with family members before continuing on.

How much is that going to change as a result of what happened at the finish line on Monday? I hope it doesn't. This world can be a dangerous place but if you spend your life trying to wrap yourself into a protective cocoon, you're going to miss an epic journey.

Which brings me to my second thought. While driving up to Conroe this afternoon to make the 1:30 p.m. docket, I was listening to Talk of the Nation. The topic, of course, was the bombing. One of the panelists was asked about increasing security measures for runners and he didn't think it would be a big deal to require runners to pass through a metal detector on the way to the start line. Another guest who was associated with Atlanta's Peach Tree race piped in that she didn't think the runners would mind the inconvenience.

And why should runners have to walk through a metal detector on the way to the start line? It wasn't a runner who was carting two bombs along the course. I have never read or heard about any runner carrying a weapon with him on the course and using it during the course of the race. The notion of subjecting runners to unnecessary security measures is not just absurd, it's downright scary. It's scary because there are folks who find nothing wrong with the idea.

These are the same lemmings folks who blindly accept the latest "security" measure at the airport (or wherever) because it's all about being safe. So what if we're trading our privacy and our liberty for the false promise that our government will keep us all safe. One day y'all will wake up and tell your grandchildren stories about the old Fourth Amendment that will sound as quaint as today's tales about rotary dial phones and getting up and changing channels by hand.

And finally it's time to deal with the President's quote. If there is an award for unintended irony, President Obama has already wrapped it up for the year. How he was able to equate the bombing of innocent men, women and children with terrorism and keep a straight face while doing it, I'll never know. Yes, the deaths of three people and the maiming and wounding of more than 180 others was tragic - but it doesn't even compare to the death and destruction wrought by our government on innocent civilians in Iraq, Afghanistan, Panama, Serbia, Vietnam, Laos and Cambodia - just to name a few.

Imagine the terror of sitting down at a cafe and having a bomb explode as it falls from the sky. Imagine the horror of seeing a cluster bomb fall in a market. Imagine the fear induced by the sounds of fighter jets in the sky knowing what they're carrying.

The United States is the world's finest killing machine but no one in our government and very few in the media care about the loss of innocent lives by the hand of American weaponry. They don't look like us. They don't talk like us. They don't practice religious superstition like us. They're just collateral damage in a war they had nothing to do with.

Yes, Mr. President, the use of bombs to kill innocent civilians is terrorism. And you, Bill Clinton and the Bushes should all be standing in the dock at The Hague answering charges of crimes against humanity.

Update: The killing never stops

Yes, it's a broken record. But once again the State of Texas has seen fit to murder an inmate in a futile attempt to go back in time.

Ronnie Threadgill was the latest victim of the Texas killing machine and the 496th since capital punishment was reinstated by the US Supreme Court in 1976. But try as they might, officials with the state were unsuccessful in traveling back in time to April 15, 2001. Mr. Threadgill's victim, Dexter McDonald, is as dead today as he was that night.

According to Thane Rosenbaum the victim of the crime has been made morally whole. And, if they feel like Mr. Rosenbaum says they should feel, they elected to show it by not attending the state-sponsored murder of Mr. Threadgill. Just what does that have to say about the retributive "justice" theory that Mr. Rosenbaum espouses and projects on society as a whole?

The McDonald's lost a son that night. That is a wound that can never be healed. The pain and sorrow may fade and weaken over time - but they will never go away. Killing Mr. Threadgill won't make it go away any more than it will bring Mr. McDonald back to life.

Jeff Gamso wrote a very thought provoking piece the other day about mercy. His thesis is that true mercy is shown when it is bestowed on those who least deserve it. Now, getting away from this fallacy that anyone does or doesn't deserve mercy or whatever travails they've had to deal with, his sentiment is correct.

To whom is it most worthy to bestow grace, to be merciful? To the innocent? To the good? No, there's nothing to that. It should be done, of course, but it's easy. Grace is hard.  It asks a lot of us, of the giver.  It asks that she give freely and openly because she recognizes that, as we were taught as children, it is better to give than to receive.  

And so the best gift, the noblest, and the most honest, clemency in its truest form is for those who least deserve it. Clemency for Steven Smith would be an extraordinary gift precisely because his is such a tough case. And how much better we would be as a state if we were willing to bestow it on him. This is who we are, it would say, we are a decent people who look upon the frog and see the prince, upon the foul and see the fair, upon the ugly and see the beautiful.

It's easy to get behind the movement to block an execution of a man or woman whom we have come to learn is innocent. It's also easy to get behind the movement for an inmate who, due to mental retardation, is unable to comprehend what is happening to him. It's much harder to fight for an end to the death penalty when the inmate has an extensive felony record and was seen firing the shot that ultimately killed Mr. McDonald.

Mr. Threadgill was, by all accounts, a bad man. He had a very rough childhood. I don't know how to quantify it, but the circumstances surrounding his youth played a role in his criminal activity. He grew up with demons and never found a way to get rid of them.

But that's no reason to kill. Next week there will be two more men strapped down to the gurney in Huntsville. And there will continue to be men strapped down in the weeks and months ahead. Their deaths will accomplish nothing either.

It is time we show mercy to the worst among us. It is well past time to commute the death sentences of those on Death Row to life (or, as Jeff would say, death) in prison.

Dreams turn into nightmares

As I write this I'm still in something of a state of shock about what happened in Boston yesterday. I was sitting at my desk when the New York Times app on my phone alerted me to the story. I spent most of the rest of the afternoon with live coverage from a Boston television station on in the background.

As though of y'all who read this blawg on a regular basis know, I'm a runner. I've run 28 marathons and ultras over the past 15 years but I have never qualified (nor gotten reasonably close to qualifying) for the pinnacle of American road racing - the Boston Marathon.

It is a race that every one of us who laces up our shoes and hit the pavement every morning aspire to. It is a dream that very few of us will ever realize and anyone who qualifies for it should savor every minute of the experience. But now, for thousands of runners, their memories of the 2013 Boston Marathon won't be of the  satisfaction of crossing that finish line. Instead, they will always associate their moment in the sun with the tragedy that befell spectators near the finish line. Instead of happiness their memories will be of horror and sorrow.

And, for the thousands of runners still on the course, their dreams of crossing the finish line will remain unfulfilled.

For those of us who run these races for fun our friends and family line the course to cheer us on and to give encouragement when we need it. It was supposed to be a glorious day for them, too. To see their loved ones  finish the Boston Marathon.

Now three people are dead, including an 8-year-old, and well over 100 are wounded. A day that broke with promise ends in unspeakable tragedy.

Execution Watch: 4/16/2013

Texas is rapidly approaching its 500th execution since the death penalty was reinstated in 1976...

ON TUESDAY NIGHT, TEXAS PLANS TO EXECUTE:

RONNIE PAUL THREADGILL, 38. Mr. Threadgill was sentenced to death for a 2001 slaying outside a Navarro County nightclub. He was convicted of firing two shots into a car, hitting a 17-year-old who was in the back seat. The U.S. Supreme Court refused to grant certiorari in 2012. His appeal asserted that his lawyers should have negotiated for a felony murder charge instead of capital murder and should have rebutted an alleged shooting in Freestone County that was brought up during the trial.

For more information on Mr. Threadgill, click here.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast ...Tuesday, April 16, 2013, 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.

We certainly can't let a bit of repression get in the way of a race

Stop me if we've been down this road before but the repressive government in Bahrain has launched raids to detain opposition activists prior to the annual motoring circus known as Formula 1 coming to town.

Last year the army, backed up by Saudi arms and American money, attempted to crush the revolt in the days leading up to the race leading for calls for the FIA to cancel the race. Ah, but the love of the filthy lucre was too much for Bernie Ecclestone and his cronies to pass up on and so they put on their dark sunglasses and looked the other way as much as possible and had a grand ol' time hanging out with the uber-wealthy set.

Once again those in charge of the Formula 1 franchise couldn't care less about a little repression here and there - just so long as it doesn't disrupt their little race. At least former World Champion Damon Hill has given the matter a bit of thought (even though he appears loathe to rock the boat too much).

Of course I would be remiss if I didn't mention that the US Navy's Fifth Fleet is housed in Bahrain and so the US government, despite its claims to be fighting for greater freedom and democracy around the world, has no problem with a bit of repression now and then.

I guess it shouldn't be unexpected given that those involved in the world of motorsport tend to lean toward the right. A good many of the drivers in Formula 1 came from wealthy families who bankrolled their expensive little hobby as they grew up. The team owners were exceedingly wealthy and had to have some serious coin to deal with the massive cost of replacing equipment on a regular basis.

Over the years Formula 1 marketed itself as having the best drivers in the best cars on the world's best racing circuits. And you couldn't possibly have the commoners getting tickets to sit and watch so the bosses jacked the ticket prices to the stratosphere so that only the truly wealthy could afford to tag along with the road show.

Add this all together and you come up with a sport that has much more in common with the repressive regime in Bahrain than it does with the folks out on the streets fighting for a voice. Is it any wonder the powers-that-be don't care about a little bloodletting here and there?

After all, the series ran its races in plenty of other repressive states over the years including Franco's Spain, the generals' Argentina and Brazil just to name a few.

FIA has no problem taking public money to put on its traveling circus around the world. Considering that money could have been used for other purposes that would have benefited more people, race organizers should be a little bit more attuned to what's going on in the streets.

The race only serves to benefit the ruling elite of Bahrain. The Bahraini government (and FIA) want the world to see an antiseptic race course with lots of money being flashed around by pretty people. Having to put up with those annoying folks fighting for democracy would only serve to spoil the show.

Anyway, they've got to get ready for the Chinese Grand Prix coming up later this year.

State Senate passes Michael Morton Act (corrected version)

Yesterday the Texas Senate unanimously passed the Michael Morton Act which will expand the scope of discovery for defendants in criminal cases. In the face of staunch opposition from the defense bar, any provisions requiring the defense to hand over documents were removed from the bill.

Proponents even withstood a last minute attempt by Sen. Joan Huffman (R-Houston) to insert a provision in the bill that would, in effect, place a gag order on defense attorneys regarding the release of any information obtained via discovery. That last statement wasn't true - it was based on an article that ran in Wednesday's Texas Tribune (a story that is no longer on their website) that claimed a last minute compromise had been worked out that would remove the amendment from the bill. The article, however, was light on details. As Grits pointed out in his comment this morning, and as I noted a few paragraphs down, provisions (e) and (f) impose a gag order on defense counsel regarding the information obtained through discovery.

I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.

Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.

The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.

According to the language of the new bill "the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."

So, while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment.

Of course we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement.

While Sen. Huffman's proposed amendment was removed in order to ensure passage of the bill there is a provision which would seem to bars defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense. This would appear to prevent the defense from providing information to the press regarding any issues of misconduct - if that information was obtained through the discovery process.

One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.

On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.

The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.

Who's really to blame for network fiasco?

So now Houston mayor Annise Parker has decided to get herself in the middle of the fray between the Astros and Rockets' regional sports networks and satellite and cable TV providers. According to Mayor Parker, the fact that the network is available to no more than 40% of Houston cable and satellite subscribers is "intolerable." So, to break the impasse she has invited representatives from the sports network, DirecTV, AT&T and Suddenlink to sit down and work it out.

“The proud followers of our Houston teams – many of whom have paid for the venues where the Astros, Dynamo and Rockets compete – have been patient as your negotiations with Comcast SportsNet Houston have unfolded,” Parker wrote. “That said, as the Rockets push toward the NBA playoffs and the Astros and Dynamo seasons get underway, the situation is intolerable.”

Most telling is her comment about who paid for the stadiums in which the teams play. When these multi-million dollar playpens were built, the public was told the bill would be paid by folks who came to town and stayed in hotels and rented cars. Well, that's not entirely correct. Local government officials agreed to finance the stadiums and placed an additional tax on hotel rooms and rental cars. That additional tax was supposed to cover the costs of the stadiums. But, should those tax revenues fall below the level necessary to pay off the bondholders, who do you think is responsible for coughing up the balance?

In her pandering to the owners of the franchises, Mayor Parker seems to have forgotten that both the Astros and the Rockets had existing deals with one of Fox Sports' regional networks to televise their games. The Dynamo had no broadcast outlet for the majority of their games. The Fox network was available on all cable and satellite systems as part of a basic (or expanded basic - whatever the hell that means) subscription.

The ownership of the Astros and Rockets made the decision to go in with NBC Sports to create their own regional sports channel in hopes of making more money than they made with Fox. In order to bring in the revenue, the network has asked cable and satellite providers for a certain amount of money per subscriber. The providers say the asked for price is too expensive for them to make the channel available for basic packages.

Yes, the providers are trying to bid down the price so they can make more money carrying the channel. But the lion share of the blame must rest on the Astros and the Rockets for being greedy. The Astros have spent the last two seasons in the cellar and will likely sit on the basement sofa eating Cheetos come October. The Rockets are in the playoffs for the first time in I don't know how long (truth be told, I couldn't care less about basketball). I guess no one in the front offices realized that teams that aren't doing well on the field (or at the gate) don't have much leverage when it comes to negotiating television deals.

If Mayor Parker were really interested in the plight of Astros and Rockets fans she'd put the blame where it belongs - on the teams themselves. These teams had new stadiums built for them with the public picking up the tab (damn those poor folks who are scamming the government to get our tax dollars so they can sit at home all day and not work). With those kind of subsidies, these teams should be operated as a public trust.

Instead the owners of both teams have shown themselves to be greedy little monsters out to squeeze every dollar from the fans they can.