Execution Watch: 6/27/2018

On Wednesday night the State of Texas will kill again...

DANNY BIBLE. Convicted and sentenced to death in the ice-pick slaying of a Houston woman in 1979. The crime went unsolved for 20 years. Bible’s appellate attorneys argued that Bible’s execution would serve no purpose, since he is no longer a threat to society. He is suffering from Parkinson’s and is confined to a wheelchair. A prison van taking him to death row in 2003 crashed, disabling him, killing a corrections officer and killing the driver of another vehicle. If Bible is granted a stay, the show will be happily canceled.

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EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, June 27, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Some light reading for a Sunday morning

Here are a few non-law related articles I've come across recently that I found quite interesting...

First, you've heard at least one of your relatives, classmates or co-workers comment that all Asian people look alike. If we take a look at how well people can identify folks of different races or ethnic groups, there is more than a little truth in the statement. We know, for instance, that a white witness is less likely to pick the differences out among a lineup of black or Latino males than a bunch of white guys.

In  preparing for their World Cup opener, the South Korean team tried an experiment to see just how well white folk (Swedes, for instance) could tell the difference among Korean soccer players by switching numbers in their World Cup warm-up games.

Back when I was in high school, ESPN was still undergoing birthing pains. If you watched the channel's update in the morning to see what was on during the rest of the day you could feel their pain, too. From tractor pulls to Aussie Rules Football to lumberjack contests and everything in between -- except for live sporting events from the NFL, NBA, MLB or NCAA.

Back in the early 80's I was a big boxing fan. ESPN teamed up with the ever-corrupt Top Rank, Inc. (headed by Bob Arum - who only looked honest when sitting next to his main competitor, Don King). They put together a live weekly boxing show called Top Rank Boxing that featured a bunch of up-and-comers and soup cans. One of the most popular fighters was a New Jersey middleweight names Bobby Czyz. His career didn't quite work out as expected. Here is the story of how boxing chews up and spits out fighters.

I'm no Aggie, but I'll be one of the first to admit that Johnny Football was one hell of a college quarterback. I still remember sitting on my brother's sofa that Saturday afternoon when A&M dealt a beatdown to Alabama in Tuscaloosa. Damn, could that kid ball.

Unfortunately, being coddled all his life because of his talent didn't do Johnny Manziel any favors in the maturity department. His career in the NFL never got off the ground because he couldn't stay out of trouble - and without a silver-haired coach or big money boosters to shield him, his foibles played out on ESPN and TMZ on a regular basis. I think his decision to leave college early was one of the worst decisions he could have made -- he needed some more time to mature before going off on his own.

Johnny Football hit rock bottom and now he's trying to climb out of the hole he dug one step at a time. Here's a look at his most recent comeback. And, just as I wanted Vince Young to return to the big stage, I hope Johnny makes a return one day. Kids with that much talent deserve a shot.

Changing times, changing minds

On Thursday, the US Supreme Court handed down its long-awaited decision in the Wayfair case. In its opinion, the Court held that the physical presence rule instituted under National Bellas Hess in 1967 and affirmed in Quill in 1992 was out of date and was no longer to be used to determine whether a company had sufficient minimum contacts with a state. The ruling will allow states to require online companies with no physical presence in the state to collect and remit sales tax revenue from customers.

But what, you ask, does that have to do with criminal law or anything else discussed on this blog? The answer is the substance of the case has absolutely nothing to do with anything covered in this space. What is interesting, however, is that a fairly long-standing precedent was overturned by a 5-4 vote with two justices voting to overturn the precedent they had previously voted to retain.

I think when we think of the US Supreme Court we envisage nine wise folk wearing black robes and issuing proclamations about the law with all weight of a papal bull. But that's not how it works.

In law school we have the concept of stare decisis pounded into our brains at every turn. The practice of law is really the practice of finding precedent to support your position and fitting the facts into a framework laid out by the court. The court's role is to make its ruling as narrow as possible so as to fit the new ruling into the patchwork of precedent.

What we generally see in a case is a slight shift in the application of the law justified by some little fact that makes this particular case different than the cases that came before it. That way precedent is honored and narrow exceptions are made.

But in Wayfair two judges changed their minds. It wasn't that the fact patterns were different. Unlike many opinions in which the court makes an exception to existing precedent, the opinion didn't get into the game of distinguishing fact patterns and why this one particular fact, or facts, made the difference. Instead the opinion spoke of changed times and changed minds.

Thus the edicts passed down from the Supreme Court aren't infallible and they aren't written in stone. They are subject to change. The minds of the justices are subject to change. And what the law is and isn't might hinge on the shifting sands of one justice's mind.

And if you don't like the rulings a particular justice makes, rest assured, one day he or she will not be sitting up behind the desk wearing a black robe. Someone else, someone with a different opinion, may be sitting up there in his or her stead. The makeup of the court will change as will its reputation.

Maybe there is still some hope out there for the Fourth Amendment.

Protecting the kids, Georgia style

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

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

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

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

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

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

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

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

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

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

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

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

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

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

h/t Andrew Fleishman

The problem with proving the unknown

In an article for The Intercept last week, Jordan Smith hit upon the ultimate problem with prosecutorial misconduct -- proving it is damn near impossible with imperfect information.

Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.

When it was his turn to speak, [Shannon] Edmonds applauded [Stacey] Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.

As Ms. Smith points out in her article, the problem with using an analysis of Court of Criminal Appeals opinions as the basis for your thesis is that most instances of prosectutorial misconduct don't make it up the chain for a variety of reasons.

The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.

While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.

In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.

The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.

Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.

If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?

Harris County Chief Public Defender under fire

Alex Brunin is the Chief Public Defender for Harris County. His clientele consists of those who haven't the money to hire an attorney to defend themselves in criminal court.

He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.

The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.

As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.

His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.

Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.

Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.

Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.

But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.

If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.

After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.

And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.

Removing the mask

For years libertarians have described their philosophy in terms of allowing people to do as they wish so long as they don't infringe upon the rights of others to do the same. The less public face of their movement was to allow businesses to operate with as little government intervention as possible in order to maximize their profits.

So, while the one hand called for the freedom of individuals to have sex with whomever they wanted, to do recreational drugs in their homes and to be left alone by the nosy neighbors, the other hand called for an end to unionization, worker safety, environmental protection and the minimum wage. But, surprisingly enough, no one raised their voice about the price of a product reflecting its true cost.

Let me explain, gasoline is sold fairly cheaply compared to what it really costs society (but believe me, I'm none too happy to see that price edging upward whenever I have to fill up the tank). The price we pay at the pump doesn't take into account the cost of operating military bases in other countries in order to ensure the oil flows from the ground into tankers and into US ports. The price doesn't include the damage to the environment caused by extractive industry.

The libertarians aren't losing any sleep over this failure of the market. They don't care about the environmental damage because "the environment" isn't private property; therefore it's free to pollute to your heart's extent. Think of Adam Smith and the tragedy of the commons. And the libertarians are more than happy to use your tax dollars to fund the military occupation of other countries so long as it means the flow of oil continues uninterrupted.

Libertarians have always puffed their chests out proudly with their veneration and love for "the market." They have long preached the gospel of the unfettered market. Throw anything up against the wall - be it a good, a service, an idea - and the marketplace will sort it out and determine which goods, services and ideas are winners and which are losers. The idea was that the more stuff you put out there, the more options everyone had to choose from.

But now, as racism has become more acceptable with Donald Trump in the White House, the true face of libertarianism is making itself seen. Michelle Ray, who goes by the handle @GaltsGirl (an Ayn Rand reference for those of y'all not familiar with libertarian deities), thinks private businesses should be free to discriminate on the basis of race, sex, sexual orientation, religion or whatever other criteria they wish to use.

Michelle Ray‏Verified account @GaltsGirl

Don't look at me. I think a privately owned business should be able to discriminate for any reason at all. And then to deal with the market reaction to such discrimination.

I don't think I'm going out on a limb when I say that I doubt Ms. Ray spent her formative years in the American South in the 1950's and 60's. I'm also going to guess that Ms. Ray is white - again, not too much of a leap. According to Ms. Ray's philosophy, segregated schools, housing, restaurants, bus lines, trains, water fountains and restrooms are fine. If folks aren't happy with such discrimination, they are free to take their business elsewhere. Does she not understand history? Does she not understand that racial discrimination existed because the majority of (white) people were in favor of it?

So, in conclusion, I'd like to thank Ms. Ray -- and all those folks who liked her post - for speaking up and showing the world what libertarianism is really all about.

Goodbye, Anthony

Reading about the death of Anthony Bourdain yesterday made me sad. I remember when his show No Reservations came out. It was a fascinating mix of food and culture. I could not get enough of it.

Back in December 2008 I wrote a short blog piece about how every little piece of knowledge you acquire makes you realize there is so much more to know. That piece was inspired by a quote from Bourdain's show about his trip up Macchu Pichu.

There are some things that have changed since that piece was published and there are some things I would change if I were to write it again. But, this article is one of the first things I thought about when I heard that he had died.

If you are suffering from depression, please don't be afraid to talk to someone about it. Your friends are your friends regardless. If you know someone who suffers from depression, reach out to them. Let them know you're there. The world is a better place when we look out for each other.

This is for you, Anthony. May we continue to realize how little we know about the universe in which we live...

The More I Know, The Less I Know

The other night I was watching Anthony Bourdain trekking through Peru and he made a comment (I'm sorry but I don't know who said it first) that the more he learned, the less he knew.  

At first it sounded quite paradoxical, but then, as I thought about it, it began to make sense.  When we are born we know nothing, our world is the six inches in front of us; but, as we absorb all that we come into contact with, our world expands.  

As a child we are the center of our own universes.  Everything outside is a mere abstraction.  But the more knowledge we absorb the more we come to understand that we are but a small piece in a much larger mosaic.

The same dynamic continues as we move into adulthood.  Seven years ago my (now)wife and I spent the holidays backpacking through Spain.  In those two-and-a-half weeks I learned a lot about Spain, her traditions and her history, but I also learned a lot about myself, my relationship with my wife and my country.  Things kind of fell into perspective as I sat in a church that was built before the pilgrims landed in the Americas for midnight mass.

As a criminal defense attorney I find the more I learn about DWI law, the breath test machine, police coordination tests, jury selection and closing argument, the less I know.  Every new door I open up reveals another.

Strive to know less.

Let the beatings continue

For those of y'all who live in Donald Trump's fantasy world, this is the reality of why Colin Kaepernick took a knee during the playing of the national anthem.

This is the reason that organizations such as Black Lives Matter exist.

This is the reality that people of color find themselves in in this country.

This is what those promoting the inherently racist line of Blue Lives Matter would like you to forget.



What was this man's crime, you ask? The police were called to an apartment complex in Phoenix on a domestic violence call. The man in the video had nothing to do with the alleged incident. Even though he wasn't involved in the incident, he cooperated with the police. He leaned against a wall. He allowed officers to frisk him. He answered questions. But when he was asked to sit against the far wall and he just squatted, that's when the police had enough and assaulted him.

If you think this same shit doesn't occur all over this country then you are either blind, ignorant or a racist.

So the next time you hear Donald Trump, or some other windbag, throw shade on black athletes who protest peacefully during the playing of the national anthem, just remember this video.

And one other little thing, instead of being arrested and charged with assault, the officers involved are on a paid vacation.

h/t Stefania Okolie

Update: Mob rule

The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.

There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.

In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.

Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?

The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.

One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.

Narrowly missing the point

nar·row

ˈnerō/

adjective

1. 1.

   (especially of something that is considerably longer or higher than it is wide) of small width.

   "he made his way down the narrow road"

   synonyms:

   small, tapered, tapering, narrowing; More
2. 2.

   limited in extent, amount, or scope; restricted.

   "his ability to get good results within narrow constraints of money and manpower"

   synonyms:

   limited, restricted, circumscribed, small, inadequate, insufficient, deficient "a narrow range of products"

Who knew that the word narrowly was so difficult to understand?

On Monday the US Supreme Court issued its ruling in the Masterpiece case -- otherwise known as the dude who refused to make a wedding cake for a gay couple case. In a 7-2 decision, the Court decided to punt the case down the road rather than deciding the case on its merits.

The media reported that the case was "narrowly" decided. Of course those who supported Jack Phillips' decision not to bake a cake for the gay wedding questioned how a 7-2 decision could be considered narrow. I would suspect that John Cornyn and Ted Cruz knew what "narrowly" deciding a case meant while they were sending out tweets in support of the decision claiming a victory for religion.

And, as an aside, if there was any doubt among y'all that the Republican Party stands for bigotry, hatred and discrimination, look no further than the officeholders who tweeted out about the decision and the words they used.

Anyone who paid attention in government class knows that the Supreme Court will always look to craft their opinion in a case as narrowly as possible since it is up to Congress to pass bills and the President to sign them into law. The purpose of judicial review (at least according to John Marshall) is to determine whether the application of a law is constitutional. The only time the Court strikes down a law itself as being unconstitutional is if there is no application of the law that can pass scrutiny.

This is the reason why lawyers will spend hours researching case law to find ways to distinguish the fact pattern in their case from existing precedent. If you can distinguish your case enough from those already decided by the court, you might just get the result you're looking for. And, in the same vein, it's why the lawyers on the other side will look for ways to pigeonhole the fact pattern in the case to an existing decision. As Tony D'Amato told his football team in Any Given Sunday, it's a game of inches.

In Masterpiece, the Court did not strike down the Colorado law Mr. Phillips was challenging. That would have been a broad decision - regardless of which way the Court leaned. In order to avoid having to make that decision, the Court looked at the application of the law in question and decided that the manner in which the hearing was held violated Mr. Phillips' right to freedom of religion (or, as I prefer, his right to use religion as a justification for discriminating against a group of people).

The Court wasn't happy that the commission who decided that Mr. Phillips violated the law seemed to be a bit hostile to his religious beliefs. Now, call me crazy, but if you're going to use religion as your defense to a claim that you discriminated against a couple because they were gay, then I think your religious beliefs are fair game in a hearing.

The funniest part of the right's celebrating the Court's ruling is that what the Court really did was instruct Colorado on the proper way to enforce their anti-discrimination statute. Let's think about this for a minute. The Court didn't declare the statute unconstitutional. The Court didn't say that forcing the baker to bake a cake for the gay couple infringed upon his religious beliefs. What the Court said was that the commission needed to conduct the hearing in a religion-neutral tone.

In other words, the next time the commission has to conduct such a hearing, the commission should let the baker give his reason for refusing to bake the cake. Then, instead of launching off into a speech as to how religion has long been used to justify racism, hatred, discrimination and violence, the commission should just ask him whether or not there was any other reason for him to refuse to bake the cake other than his belief that homosexuality was a sin.

If he were to say no, the commission could then vote and issue a ruling that he violated the statute in refusing to bake the cake. Based on Monday's decision, that would be upheld.

Of course the most amusing part of the opinion was Justice Gorsuch losing the plot and trying to explain what was a wedding cake and what wasn't and why it mattered.

Who wants an independent judiciary anyway?

Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.

The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.

She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.

Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.

U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.

In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.

Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.

Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.

But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.

The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.

Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.

Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.

The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.

“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”

We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.

Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.

The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.

Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.

Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.

The problem with a property-based Fourth Amendment analysis

One fine day Ryan Collins went out riding a distinctive orange and black motorcycle. I'm going to assume that the weather was fine and the traffic was fairly light because he was cruising around at speeds approaching 140 mph.

While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.

Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway.  Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.

Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.

Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.

The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.

The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.

Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.

Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.

While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.

And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"

Bargaining with the devil

Corey Williams is a free man.

He spent 20 years in the Angola prison in Louisiana for a murder he didn't commit. Back in 1998, Mr. Williams was a developmentally challenged 16-year-old when Jarvis Griffin, a pizza delivery man, was shot and killed while delivering a pizza to a home in Shreveport.

Witnesses reported seeing some older men taking money and pizzas from Mr. Griffin. Those same witnesses said that Mr. Williams left the house empty-handed. Fingerprints on the murder weapon belonged to someone else and blood was found on the clothing of another suspect. There was no physical evidence linking Mr. Williams to the crime.

He was found by police hiding under a sheet at his grandmother's house. He denied killing Mr. Griffin but later, after hours of interrogation, changed his story. His confession lacked corroborating details.

Mr. Williams was convicted of the murder and sentenced to die. That death sentence was overturned by a district judge in 2004 because of Mr. Williams' mental disabilities.

Meanwhile, prosecutors had recordings of witness statements in which police indicated they believed that Mr. Williams was being framed for the murder. Dale Cox, the former Caddo Parish district attorney, argued in 2015 that he didn't have to turn over the recordings because defense attorneys hadn't proven that the recordings were exculpatory.

In the end, 44 former prosecutors and Justice Department officials signed a brief in support of Mr. Williams' claims before the US Supreme Court.

The appeal will never be heard because last week Mr. Williams agreed to plead guilty to manslaughter and obstruction of justice. The murder conviction was vacated and he was sentenced to time served.

On the one hand, we should be happy because an innocent man is now free; on the other hand, he shouldn't have had to agree to a plea deal to gain his freedom. Prosecutors played fast and loose with the rules and didn't hand over evidence that should have been disclosed prior to trial. Of course Mr. Williams couldn't prove anything on the recordings was exculpatory because he hadn't been allowed to listen to the recordings.

This is the problem with Brady material. The evidence is in the possession of the folks who are trying to convict the accused. The defense rarely knows what the state has in its possession if prosecutors decline to disclose it. As an aside, in Harris County (and the surrounding counties), prosecutors have open file policies of varying degrees - though it doesn't stop some evidence from being withheld.

Mr. Williams was forced to plead guilty because of the fear that his appeal would be denied. He was forced to plead in order to gain his freedom so that prosecutors could still point to a conviction in his case and so that the state wouldn't have to compensate him for the time he was locked up.

That was wrong. Once the whole story emerged in this case, the District Attorney should have asked a judge to vacate the conviction and order Mr. Williams freed. But even when the facts and law are on the side of the defendant, the state has the power.

Perverting history

As is to be expected in this era of forced patriotism and blind support of the military, NASCAR has forgotten what Memorial Day is supposed to be about. This weekend, NASCAR competitors will run with tires that say "Support Our Troops" instead of "Eagle." However, since this is all about the advertising, they will still say "Goodyear."

Need I remind anyone that the point of Memorial Day is to remember those who have fallen in service to their country (or corporate overlords as the case may be), not to go all RAH! RAH! for the military.

Memorial Day began as Decoration Day in the late-1860's -- a day to remember those who died in the Union cause during the Civil War. It remained a day of remembrance for the Civil War up until the time the US got involved in World War I - a war fought among European colonial powers. It became a federal holiday in 1971.

But, as they say in wrestling, going all pro-military is cheap heat for NASCAR and its reactionary supporters. And to further pervert the original meaning of the day, I guarantee you that there will be confederate flags on poles and t-shirts all around Charlotte Motor Speedway.

Of course, in fairness, Major League Baseball isn't much better in "celebrating" Memorial Day by having teams wear uniforms with camouflage script.

A false idol?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  -- 2nd Amendment

In the wake of the latest school shooting, I must ask, once again, why is the 2nd Amendment considered so sacrosanct?

The 1st Amendment states that "Congress shall make no law... abridging the freedom of speech." Subsequent constitutional jurisprudence extended this prohibition to the states under the 14th Amendment.

Yet we have plenty of laws that restrict the right to free speech. If you threaten to cause bodily harm to another you have committed a criminal act. If you spread a falsehood about another person you have committed a tort. During World War I you could be arrested if you dared to speak out against the war effort.

The 4th Amendment is supposed to protect us from unreasonable search and seizure. That language was interpreted by the courts to mean the police had to have a warrant to search you, your belongings or your property. As I've said many times before, the 4th Amendment has had so many exceptions cut out of it that it resembles a piece of swiss cheese. In almost every one of those decisions, the Supreme Court created an exception so they wouldn't have to overturn a conviction.

The 5th Amendment says you cannot be compelled to be a witness against yourself. In the context of a DWI case, your refusal to consent to field sobriety exercises or to a breath test can be used as evidence of your guilt at trial. Courts have also done their part in narrowly defining what could be considered testimony, saying an arrest isn't an arrest when it suits the police or prosecution and what the magic words are that a suspect has to utter to preserve his right to remain silent.

For most of our history, the 2nd Amendment was viewed in the context of its first clause, the so-called "militia clause." It wasn't until the late 1970's that the NRA (which supported strengthening gun control measures after the Black Panthers started carrying guns), began touting the 2nd Amendment as an individual right. In fact, the first case that struck down a gun control measure was the Heller case in 2008.

Is the abridged version of the 2nd Amendment held up for adulation more than any of the other amendments because it's not protecting a right of the citizen accused? Does that someone make it more worthy than the others?

The notion that one amendment is sacrosanct while the others are all malleable flies in the face of this country's jurisprudence. It even flies in the face of laws currently on the books. It's against the law for a convicted felon to own a firearm. It's against the law for a person convicted of domestic violence to possess a firearm.

Now I'm not going to sit here and say that stricter gun control measures could have prevented any of the recent school shootings. I also agree with the sentiment that making something illegal doesn't make it go away. But we don't repeal murder laws because folks keep killing each other. I do believe that we need to figure out what it is at the core of our national psyche that makes us the killing machines that we are. We are, at our core, a sick group of people and until we find a cure for the illness, the shootings will continue.

But we need to get past this (recent) notion that the 2nd Amendment is somehow more important than the others. Until then the shootings will continue.

Texas fights to make it harder to vote

The State of Texas will do everything it can to make it harder for residents to register to vote. And by now it should be obvious, even to the most dyed-in-the-wool Trumpkin that these efforts are designed to restrict the number of Texans who are able to exercise their right to vote.

The latest salvo is a ruling from US District Judge Orlando Garcia who told the state it had 45 days to create an online system to allow folks to register to vote when renewing their driver's license online. The current system directs people to the Secretary of State's website and instructs them to print out an application and mail it to their local county clerk's office. Judge Garcia said that system is not in compliance with federal law.

It is not known what argument Attorney General Ken Paxton will make in support of the state's current system - other than telling the judge that the only way the GOP will continue to dominate state electoral politics is to keep the blacks and browns from voting as much.

And, when given the opportunity to propose a fix, state officials looked at each other and just shrugged their shoulders.

The demographics of this state are changing rapidly and the old, white power structure knows that the only way for them to maintain their power in this state is to do everything in their power to restrict the right to vote. And that's what this is all about. It has nothing to do with the Republican bogey-man of voter fraud. It's all about manipulating the system in such a way so that the minority exercise more electoral power than the majority.

Book review: The Cadaver King and the Country Dentist

I just finished an excellent book from Radley Balko and Tucker Carrington Sunday night as the storm raged around us. And by excellent I, of course, mean a book that got me so angry I wanted to hurl my phone across the room. The book is The Cadaver King and the The Country Dentist.

While the book focuses on Steven Hayne and Mark West, the book serves as a warning to all those out there who think judges in criminal courts are doing a good job of keeping junk science out of the courtroom. If you represent plaintiffs with claims against insurance companies and large corporations, then the judges act as stern gatekeepers of scientific evidence - doing all they can to exclude any scientific evidence that might cause someone to have to write a big check. But, when the actual lives of people are at stake, judges are only too willing to allow in any junk science sponsored by the State. Any problems with the testing or methodology, of course, goes to the weight of the evidence and not its admissibility.

Mr. Hayne was a forensic pathologist - at least that's what he called himself. Coroners throughout Mississippi were only too happy to farm out autopsies to him since he would do everything in his power to bend his findings to confirm what the police believed. By his own admission he would perform up to five autopsies a day - day after day after day. He gave expert opinions in fields in which he had no formal training or certification. And even after he was discredited, Mississippi prosecutors and the Attorney General still defended his opinions against attack on appeal.

Mr. West was a local dentist who passed himself off, with the help of compliant judges across the state, as an expert in multiple fields including bite mark analysis, tool mark comparison as well as others. Even after being caught on film jamming casts of mouths onto the skin of deceased victims, judges continued to allow him to testify.

Thanks to the testimony of these two, as well as the win-at-all-costs mentality of small town prosecutors, Mr. Hayne and Mr. West were responsible for sending two innocent men to death row -- Levon Brooks and Kennedy Brewer. And then, even after the evidence that convicted the men was discredited, prosecutors fought like hell to keep the two men behind bars.

One point the authors emphasize in the closing chapter of the book is something that we as trial lawyers need to sit down and digest. According to the US Supreme Court's Daubert ruling, scientific evidence can be admitted to court if the court finds the science is generally accepted. But what makes a field of scientific inquiry "generally accepted?" In the legal field we are looking for answers right now, but science isn't concerned with a timeline. Science is concerned with getting it right - regardless of how long the process takes. Just because some piece of scientific evidence is deemed to be generally accepted now, a few years down the road we may learn that the entire inquiry was flawed. What happens to those men and women sitting in prison based upon that evidence? And at what point does a field of inquiry cease to be generally accepted? Is it when the first critical analysis is published? The second? And how are we - and more importantly, our clients, to know?

The other big issue they touch on is the very nature of forensic science. Unlike so-called "pure science," forensic science is developed specifically for use in the legal system. There's no rigor of peer review. Frequently articles are published in magazines aimed at law enforcement or others in that field of inquiry in journals that don't require articles to be peer-reviewed. Is it no wonder, then, that fields of inquiry such as bullet composition, bite mark analysis, blood spatter analysis, tool mark identification and others have been shown to be nothing more than junk science?

Just win, baby

Chris Del Conte, the new athletic director at the University of Texas, has been making the rounds trying to drum up financial support for a renovation of the south end zone area and football offices.

He has talked about the need to improve the "game day atmosphere" at Texas football games in an effort to combat falling attendance. He has proposed closing off San Jacinto Street and turning it into a game day festival. He has suggested having concerts before and after games in the parking lot of the LBJ Library just north of the stadium. He has moved both the band and student sections for the upcoming season.

But here's the dirty little secret, Chris. None of the peripheral stuff matters. A festival in front of the stadium won't help the situation. A concert up the street from the stadium won't matter, either.

When Texas was competing for national championships and conference championships, no one ever said a word about how boring things were outside the stadium and before the games. No one cared. The team was winning - and that made the game day atmosphere special. If you want to improve the game day atmosphere - put a winning product on the field.

Over the last five years UT has been a .500 team. That's pathetic. It's so pathetic that some folks are willing to give their left nut for an 8-win season in 2018.

That's right - for an 8-win season.

I'm a season ticket holder. I drive up to Austin four or five times a season. My kids love going - they don't care about the final score. They like hanging out on campus and stopping at Buc-cee's in Bastrop.

Texas hasn't had a good team since the 2009 squad that lost to Alabama in the title game after Colt McCoy was injured in the first quarter. It gets harder and harder to justify the expense of buying tickets and driving up to Austin after every loss.

I don't care what's going on around the stadium before the game. We're just as likely to go bowling at the Texas Union before the game as we are to go to the Alumni center or wander around campus or up and down the Drag.

Chris and his staff need to remember that it's a lot cheaper to sit on the couch with a cooler full of beer and watch Texas lose than it is to make the trek to Austin. That's the difference between winning and losing.

Same as it ever was

Now that the US Supreme Court has declared the Professional and Amateur Sports Protection Act unconstitutional and paved the way for legalized sports wagering across the country, yet more folks will make money at the expense of college athletes.

I'm not going to rehash the holding of the court because that heavy lifting has already been done. My focus is, instead, on the continued exploitation of college athletes under the guise of amateurism. This quaint notion goes back to 19th century England. The upper class decided their children were too soft from generations of sloth and so they encouraged their children to take up sports. In order to protect their precious snowflakes from the dirty masses, they came up with the idea of amateurism - a concept that allowed those who had the means not to have to work, to compete in athletic competitions with other like-minded souls. This notion extended to the relatively new sport of college football.

Before World War II, college was largely restricted to the children of the wealthy. That began to change after the war with the GI Bill which made college affordable for those who had served in the military. In the 60's - and into the 70's - colleges in the south were finally integrating both their student bodies and their athletic teams. The awarding of athletic scholarships suddenly made a college education for poor and black families.

All of this was well and good while college football remained a regional sport. When I grew up in the 70's and 80's, you were lucky to get three or four college games a Saturday. You would get a nationally televised game on ABC (and mayble a regional one, too). You might get a Notre Dame game and, if you were lucky, a syndicated game of the week. Let's just say the money wasn't exactly rolling into the coffers in those days.

In the 80's many colleges filed suit against the NCAA arguing that its television policies were hurting its members. The schools - and conferences - won the right to negotiate their own television contracts. You also had the birth of ESPN - and ESPN needed programming to fill its schedule.

Suddenly there was an explosion of television money in college sports.We went from a couple of live games a week to somewhere between one and two dozen games every Saturday. Networks paid increasing amounts of money for the rights to broadcast those games and the schools began making money.

Then there was the NCAA Men's Basketball Tournament. It began marketing itself as March Madness. The field expanded from 32 to 48 to 64 to 68 teams. CBS and Turner pay billions of dollars to televise the games.

Coaches were the first to reap the rewards of television money. Network and advertising executives took their cut. Video game makers created games and made millions off of college athletics. Sporting apparel companies made money selling jerseys and shirts. But the players saw none of it.

Now with sports betting legalized, sports books, casinos and racetracks across the country are gearing up to meet the expected demand. They are all ready to get their cut out of legal betting on college football and basketball games. The NCAA is talking about charging firms who take bets on college sports a fee to pay for increased monitoring of the sport.

But no one is talking about the players getting a piece of the pie. Gaming executives will get theirs. State treasuries will get theirs. Networks and ad agencies will get theirs. The NCAA will get theirs.

Yet once again the athletes will serve as nothing more than the vessel for money passing from one hand to another. Life down on the plantation will continue same as it ever was.

Execution Watch: 5/16/2018

On Wednesday night Texas looks to kill again...

JUAN CASTILLO, 37. Sent to death row for his role in a 2003 lovers' lane slaying in San Antonio. A string of death dates were called off in 2017, for everything from Hurricane Harvey to a witness who recanted.

The capital murder case against Mr. Castillo relied upon the testimony of Mr. Castillo's cellmate in the Bexar County Jail, Gerardo Guttierez, who later signed an affidavit admitting that he lied about Mr. Castillo's alleged confession. There was no physical evidence tying Mr. Castillo to the crime.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, May 16, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Turning the tables

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   ACLU‏Verified account @ACLU May 8
   
   Federal hate crimes laws were passed to correct the centuries of inaction and injustice that too often was the response to violence based on immutable traits and identities, including race, gender, religion, sexual orientation, gender identity, and disability.
   44 replies114 retweets289 likes
   
   
   
   
   
   
   
   
   
   ACLU‏Verified account @ACLU May 8
   
   There's no possible interpretation where being a law enforcement officer fits that definition. Congress should vote this down quickly and decisively.
   35 replies98 retweets316 likes
   
   
   
   
   
   

These tweets were posted by the ACLU on May 8, 2018 as a reaction to a Senate bill that would classify violence against police officers as a hate crime. Such a law already exists in Louisiana.

Apparently the irony of the situation was lost on the leadership of the ACLU as this is just the latest logical extension of the push for hate crime legislation over the years. I've written before on why hate crime legislation should be found unconstitutional and how it's just a bad idea.

For every offense that someone wishes to attach the label "hate crime," a criminal act was already committed. If a person yells out a racist epithet and then shoots and kills the target of his ire, he's looking at a murder charge. There is no reason to try to enhance the sentence because of what he said beforehand.

With the right in power, the state's backlash against Black Lives Matter is in full force. There are plenty of dog whistles - from Blue Lives Matter to US flags with a blue stripe to ribbons to support law enforcement - about our everyday lives. The next step is to make it a hate crime to attack a police officer.

Never mind that assaulting a police officer is already a more serious offense that assaulting someone on the street. Never mind that killing a police officer makes you eligible to get the needle. No. We need a law that we can use against folks who have the temerity to stand up against police brutality and racist killings.

And this is how you do it. You give the same people who cower under the table when faced with charging a police officer for killing an unarmed black man yet another charge they can use against a person accused of assaulting a police officer.