Riding in style

This past Saturday night my wife ran off to the grocery store while I got the girls ready for bed. After the nighttime routine was over my wife told me she had rented a movie from one of the red boxes and she was hoping we hadn't watched it already.

She had come home with The Lincoln Lawyer.


I hadn't seen it and knew next to nothing about it. When I first heard the name of the movie I thought it was a movie about Abraham Lincoln. There were some e-mails on the listserv about it, but I never bothered reading any of them. I was quite surprised when I saw an ad on Facebook that mentioned Matthew McConaughey starred in it. That didn't seem like a movie about Lincoln.

As a rule I try to stay away from television shows and movies about lawyers and criminal law. It drives me crazy watching it. I will admit, though, that I do watch Law and Order: UK on occasion and I did like George Clooney's movie Michael Clayton.


My wife kept asking me during the movie if that's how things really are. I told her no. Well, that's not exactly true. Courthouses do have metal detectors.

The movie itself was fairly entertaining. The characters were interesting and it moved at a pretty good pace. But I was very troubled by the way in which Mr. McConaughey's character resolved his little moral and ethical dilemma.

We deal with some rather shady characters and some pretty bad circumstances at times. Let's face it, most of your neighbors probably aren't getting arrested and carted off to jail. But what would you do if you found out that your new client committed the murder for which you encouraged an old client to plea to? What if you found out that your old client really was innocent and was sitting in prison because of what your new client did?

The first thing the attorney should have done was withdraw from the case. There is obviously a conflict. I understand the reluctance to part ways with a six-figure fee, but you can't represent the new client if it puts you in a conflict with your old client.

Eliciting testimony that you know is perjured is also frowned upon - especially when the witness got the story from an agent of yours. It's all well and good that you manufactured a dismissal when you impeached the snitch - but still. Would you really want to go before the disciplinary committee and explain that away?

Finally, setting up your client to be arrested and then beaten down is generally frowned upon in the legal community.

Now I would agree that no one really wants to sit down and see what a day in our lives is really like. It'd probably be more palatable to watch sausage being made. I also understand that Hollywood's protagonist must be on the side of "justice" in order to sell a film in which the man seems so damn seedy. But what you're left with is a lawyer who sold his client down the river and violated every ethics rule in sight (not to mention a few provisions of the penal code).

Staggering dockets won't relieve jail overcrowding

Harris County Sheriff Adrian Garcia has taken it upon himself to try to resolve the county's long-term problem of jail overcrowding. It's too bad that it won't solve a thing.

There are 22 district (felony) criminal courts and 15 county courts-at-law (misdemeanor) in the Harris County Criminal (In)justice Center. There is a "holdover" cell in each courtroom that is supposed to hold no more than 19 inmates. As they would say across the pond, that guideline is honored more in the breach than in the observance.

There is a giant holding cell in the tunnel between the county jail and the courthouse that can hold roughly 250 inmates. Now do the math. Thirty-seven courts with 19 inmates is a bit more than 250. The overflow inmates are lined up in the tunnel where they wait.

What is one to do?

Sheriff Garcia decided to stagger the times he has inmates delivered to courtrooms.This means that an attorney may walk into a courtroom and have no idea when his client might be brought over.

The problem with Sheriff Garcia's plan to alleviate overcrowding is that it doesn't. His plan only treats the symptoms, not the disease.

The way to reduce jail overcrowding in Harris County is to find a way to get those people in jail awaiting trial out of jail. Every person brought into the county jail is innocent unless proven guilty. To force someone to stay behind bars due to the arbitrariness of the county's bail schedule is a crime.

The first blog post I wrote dealt with the need to increase the number of personal bonds issued. Every person without a prior criminal record arrested for a non-violent offense should be released with a personal bond. The only reason to keep them behind bars is to coerce a plea out of them. Just wave that offer of time served in front of their face and they will gladly plead guilty to something they didn't do just to get out of that hellhole.

The other way to reduce the jail population in Harris County is to issue citations and summonses for non-violent misdemeanor drug possession cases. Confiscate the goods, issue the person a ticket along with a summons ordering them to appear in court on a certain day at a certain time under threat of arrest.

We need to do away with this notion that anyone charged with domestic assault must be held without bail until such time as he can see a magistrate so a temporary protective order can be issued. If we can find judges who are more than willing to hang around the courthouse (or by a fax machine) at all hours of the night to sign fill-in-the-blank warrants authorizing forcible blood draws, certainly we can find a judge or two who can sign an emergency protective order on short notice. It's not like they're going to read it or set a hearing to determine whether it's necessary or not.

Sheriff Garcia's plan addresses none of these issues.

Eleven years for what?

Can someone please explain to me exactly what Raj Rajaratnam did to merit a sentence of 11 years in federal prison?

I understand he was convicted of insider trading. I understand that he made an obscene amount of money - some of which may have been due to his having access to information that other folks didn't have.

But why is what he was accused of doing bad? Why is it a crime? Who is the victim?

Mr. Rajaratnam received information from corporate insiders that he used to buy and sell securities for his hedge fund. If he was buying it was a good bet that the price of the security was rising. If the price of the security was rising then anyone else who held shares was making money. If he was selling it was a good bet that the price was headed downward. But his sale of shares didn't harm other shareholders - the price was going down regardless of whether he sold or not.

We're all looking for someone who has access to inside information. Defense attorneys who used to be prosecutors want every potential client know that they used to work on the other side. Why? Because someone might think that attorney has access to certain deals that no one else does.

Looking to get into the stock market? I bet you're going to look for a broker who claims to have knowledge that no one else does. Maybe it's because of the hours he spends poring over earnings reports (doubtful). Maybe it's because of the software he has that analyzes technical trends in the market. Maybe it's because he knows people who know people.

Mr. Rajaratnam didn't manipulate the market. He didn't run a Ponzi scheme. He made trades based on the information he was given. How does that differ from the person researching Company A to see what makes it a better buy that Company B?

No, we don't all have access to the same information. But for those who invested in Mr. Rajaratnam's hedge fund, they had access to it. They made money. He delivered exactly what he promised to them.

Equity markets have never been about everyone having the same information. Prices move up and down because of inefficiencies caused by imperfect information. Someone is always going to know something that you don't. If that weren't the case, share prices would never fluctuate.

Mr. Rajaratnam broke the law. That's what a jury said. But did anyone in that courtroom question why what he did was a crime?

Ten paces at high noon

Republican Florida state representative Brad Drake has an idea on how to resolve the debate about the efficacy of the three drug lethal cocktail used in the state-sponsored killing of inmates. He says to hell with it.

Rep. Drake wants change Florida's method of murdering inmates from lethal injection to firing squad -- and if the condemned man doesn't like it, he can choose the electric chair.

Rep. Drake's proposal would get around states violating federal law by "off label" use of pentobarbital. And, if we're going to continue to allow the states to kill people, let's stop sanitizing it. Let the public see how rapidly we can race to the bottom to see which state can be the most barbaric.

As I have pointed out many times, the death penalty doesn't solve any societal problem - other than the need for politicians and prosecutors to beat their chests about how tough they are on crime. No one has ever been brought back to life as the result of the execution of their killer.

Rep. Drake said he got the idea for his bill after speaking to a constituent at the Waffle House. Now, I don't want to stereotype here, but if I want an intelligent conversation, I'm not so certain I'd be heading over to the local Waffle House. I guess the anecdote shows that Rep. Drake is one of the "people," but his job isn't to be one of the people. His job is to pass legislation necessary for the operation of the state.

Now if you want to do it up right, Mr. Drake, how about a bill that would require executions to be broadcast on television? Let's see this for what it is - bloodsport. Let the public see exactly what goes on. Let's see what the public's comfort level is for the reality of death.

lsxkld-12deathpenalty

Wanted: George W. Bush

Amnesty International has called on the Canadian government either to arrest former US President George W. Bush or to extradite him when he enters the country next week for his role in the torture of prisoners. From 2002-2009, the CIA tortured and humiliated prisoners whom were being held by the CIA.

"Canada is required by its international obligations to arrest and prosecute former President Bush given his responsibility for crimes under international law including torture," Susan Lee, Americas Director at Amnesty International said in a statement. "A failure by Canada to take action during his visit would violate the U.N. Convention against Torture and demonstrate contempt for fundamental human rights."

Mr. Bush later admitted to authorizing the use of waterboarding to coerce prisoners to cooperate with the CIA.  According to the CIA's own investigation, Zayn al Abidin Muhammed Husayn and Khalid Sheikh Mohammed were subjected to waterboarding some 266 times between them in 2002-2003.

Amnesty also points out, in a 1,000 page memorandum, that Mr. Bush presided over the torture of detainees held in military custody in Guantanamo, Afghanistan and Iraq. Mr. Bush cancelled a trip earlier this year to Switzerland when other human rights groups called for his arrest.

I wouldn't expect Canadian authorities to do anything. Why would they want to upset the apple cart and piss off their big brother to the south? Besides, the only time a former head of state ever has to answer for his role in crimes against humanity is if he was on the losing side.

“I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International.”  -- Canadian Minister of Citizenship and Immigration Jason Kenney

Of course it's up for debate whether the US is on the winning side of the mess in the Middle East as the occupation is now ten years old. And what does the government have to show for it? Saddam Hussein is dead - not that Mr. Hussein had anything to do with the 9/11 attacks or al-Qaeda - and now chaos reigns in Iraq where US troops are stuck in a quagmire of political instability. Osama bin-Laden is dead - but TSA is still scoping and groping to its heart's content. Afghanistan is the Asian equivalent of Dodge City and the US shows no sign of figuring out how to get out anytime soon. Syria and Yemen are tinderboxes with governments only holding on because they have shown no problems with turning the army's weapons on their own citizens.

It's so easy to make decisions affecting the lives of others when you don't have to worry about putting your own neck on the line. How's that for personal responsibility, Mr. Bush?

See also:

"Human rights groups ask Canada to arrest President George W. Bush," NPR's The Two Way (Oct. 13, 2011)

"Amnesty International seeks George W. Bush's arrest," Politico (Oct. 13, 2011)

"Bush's Swiss visit off after complaints on torture," Reuters (Feb. 5, 2011)

Trying to quiet the voices of dissent

Hank Williams, Jr. (who can't hold a candle to his father) may have gotten his panties in a wad after ESPN fired him for his comments comparing President Obama to Adolf Hitler, but his loss was only monetary.

Marzieh Vafamehr is an Iranian actress who starred in the Australian film My Tehran for Sale about an actress whose work was banned by the Iranian government. Ms. Vafamehr reportedly is facing a year in prison and 90 lashes for appearing in a movie critical of the Iranian regime.

Mr. Williams wasn't deprived of his First Amendment rights when ESPN decided they didn't want Monday Night Football to be associated with Mr. Williams after he made his comments. ESPN is a business who has a brand to protect (don't get me started on that). Mr. Williams was paid by ESPN to do the intro.

When working for a corporate master, one must be careful what one says lest the words reflect badly on the company. Mr. Williams wasn't careful and he paid the price.

Ms. Vafamehr, on the other hand, is being punished by a government because she had the nerve to appear in a film that cast the government in a bad light. Such an outcome would be anathema to our sensibilities in this country.

Just what is the Iranian government fearful of? Are the leaders worried that someone might see the film and question what the government is doing? Are they afraid that such expressions of protest might cause others to cast a critical eye and ear to what government officials do and say?

Of course if your government claims to be carrying out God's law, dissent might become an issue. You see, faith can't tolerate dissent or critical thinking. You either believe it or you don't. You allow someone to question the tenets of a religion and the walls will begin to crumble.

Governments that continue to crack down on dissent will realize soon enough that just because you criminalize dissent, doesn't mean there is no dissent. In this day and age you can't control the voices coming into the country. The internet, blogs, Twitter, satellites and smart phones have made it impossible to squelch popular dissent.

Dissent is healthy. It's the pressure valve on a pressure cooker. When people feel they have a voice and that someone is listening they are less likely to resort to violence. The Soviet Union thought it had eliminated dissent - but its leaders were sadly mistaken. Hosni Mubarak of Egypt thought he had squelched dissent through his use of violence against his people. Wrong again.

Ms. Vafamehr's sentence is the sign of an illegitimate government. It is symbolic of a regime whose base is crumbling beneath its own feet.

But more than that, her sentence is an attack on those of us who fight for freedom here and abroad. It is a crime against our humanity.

*****

Here's a little Hank Williams for your enjoyment:

County proposes plan to ration health care in case of emergency

If you're unhappy about the way your insurance company likes to question your doctor about the appropriate treatment for whatever ails you, you're going to love the new Harris County plan for dealing with a future flu pandemic.

After two years of drafting, the county is finalizing a plan on how to ration ventilators in the event of a flu outbreak the likes of which haven't been seen since the 1918 Spanish influenza epidemic that afflicted 500 million people and killed 50 million.

County officials have decided who will have access to a ventilator and who will be left to suffocate to death. Estimates are that a pandemic could cause over 10,000 residents to need a ventilator. Unfortunately, there are fewer than 400 unused ventilators in the county.

The Harris County plan notes that many patients with bird flu have required mechanical ventilation within 48 hours of hospitalization. In the event of a severe pandemic event, as many as 10,231 infected Harris County residents would need ventilators, the plan says, a number in addition to those already on ventilators for other conditions. Typically, there are less than 400 unused ventilators in Harris County at a given time.

Under the county's plan, folks needing the use of a ventilator would be placed into one of three categories: (1) patients who are healthy enough to recover without the use of a ventilator, (2) patients who are so sick that a ventilator won't matter and (3) patients who are sick but will recover with the use of a ventilator.

But it won't be the treating physician who will make that call. Nope. Say hello to the hospital review officer. That's right. A mid-level manager will be making those life and death decisions for you should you find yourself in need of a ventilator. After all, we can't possibly leave those kinds of decisions in the hands of medical professionals who have trained for years in the art of diagnosis and treatment - they'd just want everyone to have a ventilator. We need a bureaucrat with a pocket protector to work the calculus to determine who lives and who dies.

Lisa L. Dahm, an adjunct professor at South Texas College of Law, suggested that, in order to avoid lawsuits, county officials should push to suspend laws that require doctors to treat their patients with life-threatening conditions. Way to go, Ms. Dahm. Just brilliant how you took the focus off the ethics of a hospital administrator playing God to focus it on how to reduce the county's liability when someone's grandmother dies because the plan says she doesn't get a ventilator.

"These are difficult conversations none of us like to have. But the reality is, in a severe pandemic, there'll be serious shortages of medical resources and it behooves us to make the best possible ethical and clinical deliberations in advance about who should get them." -- Dr. Herminia Palacio, Director of the Harris County Health Department

In an ideal world we'll never know the public's reaction to the plan because the dreaded flu pandemic will never come. But, the increased use of flu shots will only serve to strengthen the resistance of the virus (much like gonorrhea has overpowered our arsenal of drugs). Oh, that damn law of unintended consequences can be such a bitch sometimes.

The public was invited to participate in the discussions and each participant received $75 per day. Would the fact that these meetings were held during a time when there was no fear of a pandemic affect the discussions? Would the fact that participants received a small stipend have an effect on the outcome of the meetings? William Winslade, an ethicist with the University of Texas Medical Branch thinks so. Hey, it's easy to toss around ideas like that when there's no pandemic in sight. And who would complain when they're getting paid much better than jurors to sit around a table and discuss the issue?

It's interesting that this plan is being drafted by unelected officials instead of the commissioners chosen by the people to govern the county. Is that because Ed Emmett and company don't want to take the heat from residents about rationing health care in case of an emergency? One would think that elected public officials who are paid by our tax dollars would have enough integrity to take a stand.

But, I've learned over the years never to start a sentence with the phrase one would think.

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Ignoring the problem won't make it go away

Let's build more prisons and fill 'em up with our society's undesirables. That ought to make the world a better place, don't you think?

No? You don't think that's the key to happiness and security and sunshine?

You're right. There are some folks on the other side of the pond that feel the same way. One of them is Will Self, and in this piece for the BBC he notes that prisons aren't very good at either rehabilitation or punishment. And, being that those are the twin goals of the penal system, that doesn't speak very well to efficacy of locking people up because they've done something society doesn't like.

It was Dostoevsky who said: "The degree of civilisation in a society is revealed by entering its prisons." But in contemporary Britain you don't even need to do this, you can simply stand on a street corner and wait for the ghosts to come flitting past in order to appreciate its parlous condition.

As the rate of violent crimes has decreased in this country, the rate of people sent to prison for drug crimes, and other nonviolent offenses, has increased. I once represented a man who had previously been sentenced to 10 years in the penitentiary for being in possession of a couple of rocks of crack cocaine. I have yet to hear anyone who can give me a logical explanation for why it makes sense for us to spend our money to house a drug addict in prison when he would be better off in a treatment program.

And it's not like his "jail therapy" worked as he was arrested again (for possessing three rocks) shortly after being paroled. If anyone can tell me why that makes sense, I'm all ears.

When you lock someone away in prison you're not going to rehabilitate him - particularly in this day when the governor and his henchmen are looking for any piece of low-hanging fruit they can find to cut from the budget. And if they're willing to sit by and watch as school districts lay off teachers or leave classroom positions open, what the hell do you think they'll do to funding for rehabilitation programs for inmates?

I mean, the fair-haired one has to have some money to pay the DPS to provide security for him while he tours the country watching his ill-fated presidential campaign slowly go down the toilet. And what about his wife and kids? You don't seriously expect them to go on vacation without a phalanx of state troopers, do you?

Of course, we aren't quite at the levels enjoyed by our closest allies, those prime exponents of the civilising mission the United States, whose extensive gulag now houses, it is estimated, more African American men than were enslaved immediately prior to their Civil War - but we're getting there.

Just let that one stew for a bit.

Sure, there are some folks who need to be locked up because they are unredeemable or because they have committed crimes of such a heinous nature. More and more we are seeing people sent to prison, not because they have committed some heinous crime but, instead, because they have committed enough minor crimes that the state no longer wants to deal with them. When a theft of less than $100 can be enhanced to a felony and the person sent to prison for two years of more - well, the system's not working. 

Contrary to the view of prison as a deterrent and a way of keeping criminals off the streets, almost all enlightened opinion now concurs in the following.

Not only does prison, for the vast majority of those who endure it, not work, either as punishment or as rehabilitation, but there is no escaping the conclusion that it functions as a stimulant to crime, rather than its bromide.

No one's going to argue that it isn't easier just to lock folks away and forget about them. We do that everyday with bills or phone messages we don't want to return. But we're talking about people's lives here. We talking about their lives and the lives of their families. It/s time to re-examine the way we do things in our criminal (in)justice system. It's time we start asking questions. It's time we start asking Why?

We can either fix it or we can sit and watch it collapse under its own weight.

The wisdom of a seven-year-old

Yesterday my oldest daughter was off from school because of Columbus Day. Now, I've never understood why Columbus Day was even a holiday in the first place. Maybe it's because I'm from the South. Or maybe it's because I'm Irish. I don't know. It never seemed holiday material in the first place.

I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.

But I digress...

Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.

I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.

My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.

Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.

We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.

As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.

As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.

My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).

Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.

If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.

Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.

You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.

Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.

Search warrants for dummies

Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:

MoCo Search Warrant

There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.

This is your government at work - against you and your rights.

Update: Houston, occupied

Dear Media and Others; 

The peaceful OccupyHouston demonstrators present at Eleanor Tinsley Park have just been informed by the Houston Police that they must remove their tents and lean-tos that keep them out of the rain and intense heat so that they may continue to peacefully protest and exert their Constitutional rights to assemble and petition their government for redress of grievances and to Freedom of Speech and Expression.  It is possible that the police officer's order alone violates these rights as it has put a chill upon them.  Notice has been sent (see below) to the Mayor and City Council. 

Sincerely,
Randall L. Kallinen

Oh, Mayor Parker, how incredibly short-sighted of you. A group of young people are out exercising their most basic of constitutional rights and you're more concerned about tents in Buffalo Bayou Park. 

I guess if the tents and lean-tos were sponsored by the various oil, energy, financial and law firms downtown it'd be okay. We could just call it the ExxonMobilChevronTexacoReliantCenterpointDynegyWellsFargoJPMorganChaseBakerBottsFulbrightGuiliani Occupation of Houston, charge $5 for admission and $10 for 20 tickets redeemable for turkey legs, funnel cakes or sausage on a stick and we'd be in business.

If you want to draw attention to the protest, Mayor Parker, what better way than to send the stormtroopers police into the park to remove the tents and protesters. Do you really think that would end it? Do you not think that such action might draw out more supporters?

The mayor doesn't seem to care that the Chief of Police is putting one of men responsible for trying to cover up another officer's DWI, in charge of the DWI task force, but, put a tent in a park and she's all over that like white on rice.

*****

To: atlarge1 <atlarge1@houstontx.gov>; atlarge2 <atlarge2@houstontx.gov>; atlarge3 <atlarge3@houstontx.gov>; atlarge4 <atlarge4@houstontx.gov>; atlarge5 <atlarge5@houstontx.gov>; districta <districta@houstontx.gov>; districtb <districtb@houstontx.gov>; districtc <districtc@houstontx.gov>; districtd <districtd@houstontx.gov>; districte <districte@houstontx.gov>; districtf <districtf@houstontx.gov>; districtg <districtg@houstontx.gov>; districth <districth@houstontx.gov>; districti <districti@houstontx.gov>; mayor <mayor@houstontx.gov>; 

Sent: Mon, Oct 10, 2011 2:27 pm  

Subject: URGENT NOTICE Houston Police Plan To Violate First Amendment Now 

Dear Mayor Parker and Councilmembers, The peaceful demonstrators present at Eleanor Tinsley Park have been informed by the Houston Police that they must remove their tents and lean-tos that keep them out of the rain and intense heat so that they may continue to peacefully protest and exert their Constitutional rights to assemble and petition their government for redress of grievances and to Freedom of Speech and Expression.  It is possible that the police officer's order alone violates these rights as it has put a chill upon them.  Please inform your Houston City police employees to inform the peaceful protestors that they do not have remove their structures immediately.  Thank you.    Sincerely,

Randall L. Kallinen

*****
Update:

According to this account from the Houston Chronicle, protesters have taken down the tents.

Occupy Houston protesters at Eleanor Tinsley Park have taken down their tents after being told they violate a city ordinance, an attorney for the group said Monday afternoon.

Police notified participants about 1 p.m. that the tents needed to come down, said Burke Moore. The group did not have the required permits needed to erect the tents, Moore said.

Protesters were allowed the use the tents on Sunday, for protection from the rain, participants said. The weather has since cleared up.

Police this afternoon spoke with Moore about dismantling the tents, he said. The attorney said the group, as a whole, decided to comply. One person did not want to comply, but the group acts by consensus, Moore added.

The sorcerer's apprentice: HPD version

Somewhere deep inside the HPD fortress at 1201 Travis...

Chief: So, we're looking for someone to take the helm of the DWI task force in Houston. What makes you think you're up for the task?

Candidate: I have experience in investigating high-profile DWI incidents. We had to deal with one involving one of my officers earlier this year - and I think we did a bang up job taking care of it.

Chief: I'm intrigued. Do continue.

Candidate: As you may recall, we had a veteran officer get involved in an accident on his way to work one afternoon. The other vehicle was a school bus. My officers jumped onto it right away. They secured the scene. They preserved evidence by covering up the open alcohol containers with blankets and threatening to arrest anyone who took pictures of the bottles.

Chief: (moving to the edge of his seat) Go on.

Candidate: We cited the bus driver for causing the accident - and then we took our officer back to the station to sober up, I mean, to continue our investigation away from the crowds and cameras and the like.

Chief: Tell me about the investigation.

Candidate: The officer admitted to drinking. It's not like he had a choice, because he did have an odor of alcohol on his breath. But, as you know, Chief, it's not against the law in Texas to have a little drink and then drive.

Chief: What else did y'all do?

Candidate: Reluctantly we drew blood. The test result came back showing an alcohol concentration of over .20. I'm pretty sure there were some issues with that blood draw. Maybe the blood wasn't stored properly. Maybe he was still in the absorption phase at the time of the accident. Maybe there was a problem with the testing equipment. I don't know - but I do know we handled that investigation in the most professional manner possible.

Chief: And you realize that I only reprimanded y'all because the public demanded it. If it was up to me, I'd have handed out commendations for the way your officers handled that case. And, hey, it gave some of the guys a day off to take care of errands or to work extra jobs.

Candidate: Yes, sir.

Chief: You've convinced me that you're the right person for the job. I'm putting you in charge of the DWI task force. If you can handle a case like that one as cleanly and professionally as you did, I think you're more than capable of clearing the road of those drunken civilians.

Of course, nothing like that could ever happen, could it?

Houston, occupied

Protesters took to the streets of downtown Houston this morning as they marched from Market Square Park to a rally at the Chase Tower and then on to the steps of City Hall.

The march was part of a national day of action in support of the Occupy Wall Street campaign in New York. Political activists of various stripes, shades and hues gathered and expressed their dissatisfaction at the way the government has been running the economy.

I spent a bit of time talking with a veteran political activist who took me around and showed me the different signs on the grass by the reflecting pond, the chalked messages on the steps of City Hall and some of the folks in the crowd.

Where this movement may go in Houston is anyone's guess. But for a few hours at least there were folks standing on the street corners with signs and drivers honking their horns in approval as they passed by.

The message is one that needs to be heard. Our tax dollars have been handed out to corporate beggars at the same time the government has cut programs geared to the poor. We've bailed out the banks who ran their own ships ashore with their questionable lending practices. We've bailed out the automakers who mismanaged themselves into the ground. But what has Washington done for the millions of homeowners facing foreclosure? What has Washington done for the millions who are without work?

Those on the right are calling this movement class warfare. Yes, it's a nice little soundbite that trivializes the problems millions of Americans are facing - but it is, at its core, a lie. The poor have been the targets of class warfare on the part of the wealthy for years. Ronald Reagan was at the vanguard of the latest class war as he and his minions led an assault on the working poor that was staggering in scale. The purveyors of this war have attacked public education, organized labor and the poor mercilessly. At the same time they have lavished gifts on the corporate profiteers.

There is a class war being waged in this country -- and we're just the collateral damage.

The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Police union targets city official who spoke out against police brutality

It would seem that Houston city councilwoman Jolanda Jones is paying the price for speaking out against the police. Ms. Jones has spoken out repeatedly about the problem of police brutality in Houston. She also raised concerns about the way the department operated its crime lab.

Now the Houston Police Officer's Union is striking back. Union vice president Ray Hunt has sent a letter to Harris County District Attorney Pat Lykos asking her office to look into whether or not Ms. Jones was practicing law without a licence last month.

This isn't the first time Mr. Hunt has been involved in lodging a complaint against Ms. Jones. He is the one who pointed out that Ms. Jones put her city office phone number on her business card. He alleged that she was using city resources to operate her private law firm. Ms. Jones was cleared of those charges when the DA's office announced there wasn't enough evidence to prove any wrongdoing.

The latest allegations stem from two legal documents signed by Ms. Jones after her license to practice law had been suspended for her failure to pay her bar dues and occupational taxes on time.

This fight isn't about Ms. Jones' ethics. This fight is about whether or not the city is going to turn a blind eye to police brutality. Earlier this year I sat with Ms. Jones at a forum on police brutality. She was the only elected city official to appear at the town hall meeting. Her willingness to speak out in such a forum spoke volumes.

Mr. Hunt and his group are involved in the classic misdirection play. Instead of focusing on the issue of police brutality, Mr. Hunt would rather throw mud at Ms. Jones in an attempt to discredit her. If you can't debate the issue on the merits, go for the dirt.

The problem with Mr. Hunt's tactics is that the cat is out of the bag now. We've seen the videos. We know that  the police beat suspects for no reason. They do it because they can and because they think they can get away with it. And for a long time they did. The city turned a blind eye to the problem - as long as it could be made to go away.

Mr. Hunt is playing the public like a little child. We all know the punishment for contempt of cop. I've had clients who have been punched, kicked or tased multiple times. If there was no video camera or eyewitness willing to testify, it was just a perp's word against a police officer. And guess who judges and juries believed.

Maybe Ms. Jones has skirted the rules. Maybe she hasn't acted ethically. Maybe she did practice law without a valid license. Those are issues with which Ms. Jones must deal. But none of that changes the fact that the police beat suspects and Ms. Jones called them out on it.

Don't fall for the misdirection play. Keep your eye on the ball.

Williamson County DA dragged kicking and screaming toward justice

John Bradley did his best to keep Michael Morton locked up behind bars. Even while presiding over the (emasculated) Texas Forensic Science Commission, the Williamson County District Attorney fought efforts by Mr. Morton's attorneys to conduct DNA testing on evidence introduced during in 1987 trial. Mr. Morton was charged with and convicted for the murder of his wife.

But it was all to no avail.

Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.

There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.

Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!

Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.

"You do have my sympathies," Harle said. "We don’t have a perfect system of justice, but we do have the best system in the world."

Unless you're behind bars for over two decades for a crime you didn't commit, I suppose.

Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.

According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.

Williamson County District Attorney John Bradley said that the new developments - which he said were a lightning bolt type of discovery - warranted a reversal of Morton's murder conviction. 

"It is my just, as district attorney, to make sure that justice is done," Bradley said after the court action today.

Well, I guess it's too late to worry about whether justice was served when Cameron Willingham was murdered by the state of Texas for a crime he didn't commit. After all, he was already dead, what good is justice when you're six feet under?

Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?

Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.

Morton Findings

See also:

"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)

"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)

"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)

"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)

Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

It's time to occupy Houston

This comes from the organizers of Occupy Houston

On Thursday, October 6th There will be a dignified and peaceful protest in Houston similar to the one on Wall Street.

The purpose is to awaken our consciousness and the consciousness of our brothers and sisters within the corporate and political institutions that have spun out of control. Centuries of deference to an outside authority is bearing bitter fruit. Our environment, our food and our communications are growing toxic. We have become a country where the truth of compassion has given way to the delusion of competition. Many of our brothers and sisters in business and politics are caught by the blind forces of greed and they are suffering. This is causing great suffering for everyone else. We as “consumers” are also caught by these blind forces. The desire to acquire and the fear of loss create anger and hatred, suspicion and jealousy. These are the forces which feed and nurture an increasingly global economy that is destroying the earth’s capacity to nourish us.

We can save ourselves if we are willing to take a peaceful and compassionate first step. Fear is what got us into this mess, so we should remember that there is nothing in the entire cosmos which is worthy of fear. All of the bogies we torment ourselves with are products of our own perception. All bad actions are rooted in suffering and the only antidote for suffering is compassion. We cannot fight the powers of greed with force. Jesus said it. The Buddha said it. Muhammad said it. Our own life experience has shown it. We must remember this and dispel anger and hatred. Within our heart's refuge we are always free. We enslave ourselves by the notion of possession. We truly own nothing. Our bodies, family members and friends, our “property,” memories – all empirical things are subject to change. Once you think you possess something, the inevitable result is attachment, you are under a psychological yoke to whatever forces which may deprive you of your desire.

Serenity, compassion, fulfillment and cooperation are the vehicles which can lead us out of darkness. This is where we can draw the strength to protest in peace and dignity. We are young and strong and able to lend a hand in waking up our sleepy neighbors to the blind and wonton destruction of our common ancestor. At any rate, it will be a cool experience on a nice fall day and a nice opportunity to get together on something that can benefit us all. Here is a link if you would like to know more:

http://occupyhouston.org/

The protest will commence with an assembly in Market Square Park at 8:30am followed by a march to the JP Morgan Chase Tower at 9am. Following an hour-long rally, there will be a march to Hermann Square (in front of City Hall) at 10am to being the occupation.

Ask not for whom the whistle blows

For the past two decades the breath alcohol testing program in Harris County was run by Lone Star College (formerly North Harris Montgomery College). But no longer.

Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.

Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.

County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.

Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).

The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.

But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.

If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.

When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

Danish fat tax is the biggest loser

This past weekend Denmark became the first country to place a tax on fatty foods. Worried that Danes are getting fatter, the outgoing government imposed a tax on the saturated fat content of food items. Over the past few weeks, Danes have been hoarding butter, bacon and precooked foods.

The stated aim is to reduce the demand for foods with high levels of saturated fats. Or, maybe the aim was to find a new source of revenue for the government.

Either way, the fat tax is a bad solution looking for a problem.

The purpose of a tax is to raise revenue, not to promote social policy.

If the tax is designed to reduce consumption of saturated fats, it won't be the revenue raiser the government hopes. If the tax is designed to increase revenues, it won't make people forgo fatty foods. The goals are mutually exclusive.

To raise revenues the tax must be low enough that it won't discourage Danes from buying fatty foods. If the tax doesn't alter Danish food buying habits then it will have failed its social purpose.

On the other hand, to discourage Danes from eating fatty foods, the tax must be high enough to make folks look for less expensive alternatives. If Danes begin to look at the marginal cost of that pizza or slab of bacon when deciding what to buy, the tax will not bring in the projected revenues.

And then there's Germany and Sweden - both within driving distance of most Danes. Sure, you might have to drive a couple of hours out of your way, but you can still purchase fatty foods without being taxed for it across the border. And that kind of behavior is a double-whammy to Denmark - not only will the tax not reduce the intake of fatty foods, another country will be enjoying the revenue from increased sales of food items.

All in all, an idea that leaves a sour taste in everyone's mouth.

Thinking before speaking

Why would some local criminal defense attorneys be singing the praises of ex-HPD crime lab technical supervisor Amanda Culbertson?

Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.

Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).

Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.

Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.

Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.

They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.

They are no more committed to justice than the rulers of Yemen or Syria.

By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.

Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?

I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.

Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)