Monday, August 29, 2016

Taking a stand by sitting down

"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder."

 -- Colin Kaepernick

It would appear that San Francisco 49er quarterback Colin Kaepernick has sent flag-waving pro football fans into a tizzy with the stand he made on Friday night.

If you somehow missed the shitstorm on Twitter, at Friday night's game, Kaepernick remained seated on the bench when the National Anthem was played. When asked he said he would not show pride in a flag for a country that has for centuries oppressed people of color.

Apparently his willingness to take a stand when young black men are being shot dead by police while the officers go on paid leave has left white football fans in the dark. Professional football (along with baseball and auto racing) at times seem nothing more than delivery vehicles for a pro-militaristic, pro-imperialist philosophy that we are all expected to bow down before.

In the eyes of professional sports (and to some extent college sports), true patriotism means supporting military operations overseas - regardless of the reason young men and women are being sent to another country (generally one populated by people of color) to kill, rape and destroy.

On occasion we hear a hue and cry for athletes to take a position on some hot button topic of the day. But that would seem only to apply when the athlete takes the position that the mainstream wants them to take. Pat Tillman is lionized because he walked away from football to join the army in order to invade a sovereign nation. Colin Kaepernick takes a stand against racism and racial violence and he is pilloried by the ignorant masses.

And, speaking of the ignorant masses, you might want to take a gander at this article by The Intercept's Jon Schwartz. It seems that if you listen to more than the first verse of the Star Spangled Banner the symbolism gets a bit complicated and messy.

Francis Scott Key was a slaveowner when he penned the song. For those who don't remember your history, Mr. Key wrote the anthem after the attack on Fort McHenry during the War of 1812 - a war that was fought because the United States decided to invade Canada. During the war the British promised a life of freedom for any black man who enlisted to fight on their side. They also made promises to the Native Americans (who were already learning that the US government was not to be trusted).

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

-- Star Spangled Banner

Of course I could write many more posts about the intellectual dishonesty of the phrase "land of the free" but I'll save them for another day.

Colin Kaepernick may not be the best quarterback in the league - he may not be the best quarterback on his own team - but he is the most courageous. By taking a stand against racism and racial violence in America he is risking his own livelihood. If he is cut by the 49ers he may find he isn't welcome by any other team in this proto-fascist league.

Thank you, Colin, for taking a stand.

Tuesday, August 23, 2016

Round peg, square hole, health care edition

So Aetna is pulling out of Obamacare exchanges because the Department of Justice wouldn't approve of their merger with fellow healthcare provider, Humana.

This is what happens when you construct a system in which for-profit companies control health care delivery. Until someone has the fortitude to fight for a system in which the healthcare companies are taken out of the equation, health care will remain a privilege and not the right it should be.

Monday, August 22, 2016

Just go sit at that other table and wait your turn

A couple of weeks ago I was listening to Democracy Now! and heard a replay of a debate between Pulitizer Prize winning journalist and author, Chris Hedges, and economist and former secretary of labor under Bill Clinton, Robert Reich, about the upcoming election.

The debate first aired a day or two after Bernie Sanders betrayed his supporters and endorsed Hillary Clinton. Right around that time, Dr. Jill Stein, the current nominee of the Green Party offered to drop out of the race for her party's nomination if Sen. Sanders would run as the Green Party candidate. He declined the offer (raising questions of why he even bothered running in the first place).

The question before the panel was what should progressives do in the upcoming election.

While Mr. Hedges urged progressives to support the Green Party instead of the pro-corporate Democratic Party, Mr. Reich raised the alarm and claimed that the only way to save America was to elect Hillary so that Trump would be defeated. He told the listeners that they had to abandon their convictions and vote for Clinton because the alternative was so much worse.

Mr. Reich stated over and over that now was not the time to launch a third party bid for the White House. He said he would work to jump start a progressive movement in time for the 2020 election. Bullshit, I say.

In 2020 Mr. Reich will make the same old tired arguments that now is not the time, that progressives need to be patient and wait... and wait... and wait.

To be fair to Mr. Reich, he's not the only one spouting this garbage. Ben Jealous, former head of the NAACP and now an investment banker, says the same thing.

Mr. Reich and Mr. Jealous are mere mascots for the Democratic Party who are trotted out to convince voters who are sick and tired of the way the party abandoned the working class for Wall Street money. They will continue to tell their flocks of listeners that now is not the time to exercise one's conscience. They will continue to tell them that they have to hold their noses and flip the lever for the Democratic candidate because the alternative is so much worse. They will continue to tell them to wait another four years.

And then they will rinse and repeat.

If you think that you can work within the existing system to reverse three decades worth of economic policy that has hammered the working class and poor, you are deluding yourself. If you think that you can work within the existing system to stop the continuing rape of our environment by oil, gas and coal companies, you are deluding yourself. If you think that you can work within the existing system to make health care a right and not a privilege, you are deluding yourself. If you think that you can work within the existing system to reverse the tide of the corporatist state in which we live, you are deluding yourself.

President Obama is every bit the shill for corporate interests, the oil companies and the warmongers that George W. Bush was. He may talk a big game, but when the chips are on the table he's not willing to shove them in the middle.

Thursday, August 18, 2016

Revealing ignorance

The purpose of investigative journalism is to peel back the layers to a story or an event so that the world can see it for what it is and not what someone spins it to be. Good investigative journalism helps you understand what's going on and why. Bad journalism merely contributes to the increased stupidity of society.

The Center for Investigative Journalism has a podcast entitled Reveal. It's usually pretty interesting and the format allows for incredible depth and breadth of reporting. You will generally walk away having learned something.


But not the latest installment of the podcast.

In "Dropped and dismissed: Child sex abuse lost in the system" reporter Tennessee Watson tells her own story of being sexually abused by a gymnastics coach when she was 7 and her decision to report it to the police when she was in her 30's.

After contacting the police and telling them her story, the coach is then arrested and charged with aggravated sexual battery based on nothing more than her story of what happened a quarter of a century earlier. To make a long story short, on the eve of trial the prosecutor offered the coach a deal - plead guilty to contributing to the delinquency of a minor, go on probation for a year and get the case dismissed. He took it.

And Ms. Watson is upset. She's upset because there was no trial. She's upset because the prosecutor made the decision to plead out the case without consulting with her. She's upset because she didn't get to testify against her former coach in open court. She was more upset because other prosecutors refused to file cases like this with only the word of a supposed victim.

And I was upset because of how stupid Ms. Watson was and how she was making the listening audience just a little bit more stupid with her ignorant views on the law. I was also upset because the Center for Investigative Journalism put this out for public consumption.

Perhaps Ms. Watson needs a lesson in how the Bill of Rights works. Perhaps she needs to be reminded that the right to trial is conferred upon the accused, not the accuser. Perhaps she should think about whether filing felony charges based on nothing more than one person's testimony about an event that happened 27 years earlier is a good idea.

I feel bad about what she says happened to her as a child. It wasn't right. No child should have to go through that. But neither should we deprive the accused of their rights just because we think they did something awful. Don't give me the crap that it's all about the kids. The Bill of Rights is there to protect the accused from the mighty power of the State. A "victim," no matter how sympathetic, is just another witness.

But neither should anyone have to listen to the ignorant drivel of a reporter masquerading as an expert in criminal and constitutional law. The CIJ should have either aired a disclaimer or should have had commentary from someone with a little familiarity of the law.

Tuesday, August 16, 2016

Window dressing

Back in April of this year Harris County received a $2 million grant from the MacArthur Foundation to reform its criminal (in)justice system. According to county officials, the immediate goals were to reduce the population of the Harris County Jail (the state's largest mental health facility) by 20% over the next three years. There was talk of more personal bonds and diversion programs. There have also been a multitude of committees set up to discuss ways to make this happen.

It's all a mirage, however.

Currently 48% of the inmates at the Harris County Jail are black while African-Americans make up only about 19% of the population in Harris County. Those numbers alone tell you a lot about they manner in which "justice" is meted out in Harris County. Throw in the fact that almost 70% of the inmates haven't been convicted of a crime and you get a better picture of the way things work down here.

Our system of mass incarceration has nothing at all to do with reducing crime. It's all about social control. We arrest and lock up folks for drug use instead of providing treatment. Judges set bonds at rates that folks can't pay and so they sit at the jail and wait for their court appearance where an appointed attorney will work out a deal with the prosecutor for them to get out of jail - with a permanent conviction on their record.

So long as the government continues to carry out its mission of marginalizing minorities and the surplus labor pool, ain't nothing going to change on that front.

What does the county propose? Form a committee, and several sub-committees, and hold a series of meetings about making the criminal (in)justice system more efficient. Efficient for whom? Certainly not for those accused of violating the law. Certainly not about decriminalizing drugs or making low-level drug offenses a ticketable Class C offense.

Nope. What the county wants to devise is a system in which cases move quicker through the courts, reducing the courts' dockets and increasing the number of pleas. The diversions Devon Anderson (Harris County DA) talks about are just another way of placing folks under the thumb of the criminal (in)justice system.

Specialty courts such as drug courts, DWI courts, mental health courts, veteran's courts (and whatever flavor of the month court is next up on the list) are little more than an illusion. If we were rally interested in helping these folks out we wouldn't be prosecuting them and holding the threat of jail or prison time over their heads. If we really wanted to help them they would receive the treatment they need without the coercive power of the state standing behind the curtain.

If the county were serious about reducing the number of folks sitting on their hands in the Harris County Jail awaiting the disposition of their cases, we would issue personal bonds for everyone charged with a non-violent misdemeanor or any drug possession offense. If we were serious we would eliminate a bond schedule that serves only to enrich bondsmen and coerce pleas.

If we were serious about this we would stop law enforcement agencies from acting as occupation forces in minority communities and enforcing the law in a disproportionate manner. And we would certainly stop arresting and jailing folks for status crimes. Taking an addict to jail instead of providing treatment does nobody any good. Let's treat drug addiction for what it is - a public health issue (just look what Congress did when it turned out a lot of white folks were being arrested due to opioid addiction).

But this is not what's going to be done. Instead our county officials (and their lackeys and stooges) will stand up on a stage and announce proudly that they've re-arranged the deck chairs on the Titanic.

After all, it's a lot easier to dress up a window than it is to fix a problem.

Friday, August 12, 2016

What's in a number?

Just to let y'all know, there is no constitutional crisis because there are only eight justices sitting on the US Supreme Court.

There is nothing magical about the number 9.

Here is Article III, Section 1 of the US Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

See? There is nothing in the Constitution that says there have to be a certain number of justices on the Supreme Court. And, in fact, there is nothing in the Constitution about the qualifications of the justices, either.

There were only six justices when the Court first sat (and only four of them sat). Over the years Congress increased the number of justices when new federal circuit courts were created. The number peaked at ten in the 1850's. That number was winnowed down to seven when Congress passed a law stating that the next three seats to open through death or retirement would not be filled. The number was then increased back to nine when two new circuits were created.

Franklin Roosevelt caused a stir when he proposed appointing a new justice for each sitting judge who was over the age of 70. That proposal never got off the ground as both Democrats and Republicans in Congress opposed it.

Whether or not the Republican-controlled Senate should hold hearings on President Obama's nominee to fill the seat held by the late Antonio Scalia, is merely a political question, not a constitutional crisis. There is nothing to prevent the remaining eight justices from hearing cases and issuing rulings. A tie just means that the lower court ruling stands.

Thursday, August 11, 2016

Two sides of the same coin

For the past couple of weeks about all we've heard from the presidential campaign are attacks on the personality and temperment of the candidates. There have been few mentions of actual policy differences (with the notable exception of immigration). Why is that?

I would posit that it's because there isn't a dime's worth of difference between Hillary Clinton and Donald Trump. While they speak in generalities about economic, foreign and social policy, neither of them is going to challenge the basic tenets upon which American capitalism rests. Neither one of them is willing (or able) to acknowledge that we must rethink what passes for an energy policy. Drilling more holes in the ground will only make matters worse when it comes to the climate and our sustainability on this planet.

Neither candidate is going to change our petroleum driven foreign policy. Neither one is going to abandon autocrats and and dictators who either do our bidding or from whom we are dependent upon for resources (be they oil fields, minerals or landing rights).

Both candidates are beholden to the corporate ruling class - Clinton because she is dependent upon their campaign dollars and Trump because he is one of them.

Both candidates will sit and watch as our protections under the Fourth, Fifth and Sixth Amendments are watered down even further in the name of keeping the streets safe.

Oh, wait, you say. Now you're talking about the Supreme Court - there's where a difference exists between the candidates. Clinton will appoint judges who are left of center and Trump will appoint judges who are on the right. Those choices will affect jurisprudence for a long time to come.

Or will they?

The change in the composition of the court has done nothing to stop the constant erosion of the Fourth Amendment. The fact remains that bad facts make bad law. Most of the decisions that helped to eviscerate the Fourth Amendment were on cases in which the defendant had either done something really bad or had a lot of bad stuff in his possession. Lower courts (in which judges face the voters) will bend over backwards not to throw out the conviction. And, by the time the matter gets before the Supreme Court, the justices can find almost any justification for further restricting our rights.

And then there is the nagging little fact that what is constitutional or not is determined by the votes of nine men and women who attended Ivy League law schools and have little (or no) experience working in the trenches. What is a constitutional protection today could be gone tomorrow and put back in place a year from now. Let us also not forget that no one party is going to control 2/3 of the Senate. That means anyone who is nominated is going to go through a grueling process (and, by the way, the same holds true for other federal judicial appointments).

Let's not give in to the fear-mongering from both sides. The republic will not collapse upon the election of either Clinton or Trump. The Constitution will remain a document upon which a group of fallible men and women decide what the government can and cannot do.

Don't settle for the candidates being sold to us by the ideologically and morally bankrupt major parties. Go out on election day and vote your conscience. A vote cast for one candidate in order to prevent the other one from winning is a tacit surrender to a corrupt corporate system.

Don't wave the white flag in November.

Wednesday, August 10, 2016

What I've been listening to

I discovered a new podcast a couple of weeks ago that takes a very interesting look at the U.S. Supreme Court. It's called More Perfect and it's a spin-off from Radio Lab. The podcast is available on the NPR ONE app.

So far I've listened to an episode about attempts to abolish the death penalty, Earl Warren's favorite case, the Indian Children's Welfare Act and how plaintiffs get picked for test cases.

I recommend giving it a listen or two.

Friday, August 5, 2016

Taking a stand

The very existence of public defender offices highlights one of the greatest contradictions in our criminal (in)justice system. We like to put up the facade that our system is fair because everyone, not just those who can afford it, has the right to legal counsel if they are charged with a criminal act.

But not everyone can afford to hire an attorney. So some sort of safety net has to be erected so that those folks have the benefit of legal counsel when facing the almighty power of the state. In some places courts contract out with private attorneys to represent indigent defendants in exchange for a paycheck. In some places judges appoint private attorneys to represent indigent defendants. In some places there is a public defender's office who represents those who cannot afford to hire an attorney.

Of course someone has to foot the bill. And that is usually the county or state. In some places, such as Galveston County, if a defendant is convicted or pleads guilty he or she is charged the reduced fee paid to the attorney by the county.

Here's where the inherent problems a public defender system being. In a criminal prosecution, the government initiates the case against the defendant. The judge, however, is also a government employee who, in places like Texas, faces public scrutiny over his or her decisions (well, that, of course, assumes that the people who vote in judicial races know anything more than what party the candidate is a part of). And, for an indigent defendant, his attorney is also a government employee whose office depends on the government for funding.

In Missouri, Gov. Jay Nixon made the decision to cut funding to the public defender's office. He has repeatedly slashed funding for the office - despite reports that the attorneys are overburdened with their case loads.A 2014 study found that the office needed an additional 270 attorneys just to cover the existing case load. The state spends less than half of the national average in per capita public defense spending. The state ranks 49th of 50.

In a time of budget cutbacks, just who is going to stand up and demand more money for the public defender's office? Who's their constituency? What governor would ever listen to those who advocate for indigent criminal defendants when it comes time for allocating government funds?

But Michael Barrett, the director of the state's public defender office, had an idea. Relying on an obscure Missouri law, Mr. Barrett ordered the governor, an attorney, to represent indigent defendants in Missouri. That took some balls.

We'll have to wait to see if Mr. Nixon actually has to get his hands dirty dealing with the public. But, even if he finds a way to wiggle out of his obligation under the law, the symbolism of Mr. Barrett's actions speaks volumes.

Thursday, August 4, 2016

Another one bites the dust

You can now add Delaware to the list of states that have effectively abolished the death penalty. Earlier this week the Delaware Supreme Court ruled that the state's method of deciding who gets murdered by the state was unconstitutional.

Delaware was one of three states (Florida and Alabama are the others) in which the judge, not the jury, decided who got the needle and who got life in capital cases. The Florida law was struck down by the U.S. Supreme Court which held that under the Sixth Amendment, it is the jury who is to make the decision. Florida then passed a new law that allowed the death penalty to be imposed on a 10-2 vote by the jury - that statute is being challenged as well.

With the decision by the Delaware Supreme Court, the death penalty has been abolished in 19 states. Executions in other states have been placed on hold due to an inability of the states to obtain the drugs necessary to kill inmates.

Last year, in an effort to keep their ability to murder inmates, Utah re-imposed the firing squad. As barbaric as it is, at least the use of a firing squad shows the world the brutality involved in killing someone deliberately.

There is one problem, however. In Utah there are five volunteer members of the firing squad. Only four of the shooters have live ammunition in their rifles - the fifth shooter has a blank. The purpose is so that the members of the firing squad can all go home afterward and tell themselves they didn't fire the fatal bullet.

And that's a tacit admission from everyone involved that the death penalty is wrong. If Utah really believed it was right, then they wouldn't give someone a blank - they'd give everyone live ammunition.

Thursday, July 21, 2016

Police shoot unarmed black man (again)

How many more of these police shootings must we witness before it stops? The latest shooting victim, Charles Kinsey, is a caregiver at a group home.

Mr. Kinsey was shot as he lay on the ground with his hands up. He told the police he was a caregiver and that he was trying to take care of an autistic man who walked out of the group home.

Didn't matter. The police shot him anyway.

Why wasn't the officer who shot him arrested for aggravated assault with a deadly weapon? Why wasn't he booked into the county jail? Why didn't he sit in custody until someone posted a bond? Why isn't he going to court to answer to the charges against him?

Here is the bullshit response from the police:

“There is preliminary information that North Miami Police Officers were dispatched to the scene after a 911 call was received of an armed male suspect threatening suicide. Arriving officers attempted to negotiate with two men on the scene, one of whom was later identified as suffering from autism. The other man was later identified as an employee of an assisted living facility. At some point during the on-scene negotiation, one of the responding officers discharged his weapon, striking the employee.”

"Later identified." That's funny. Mr. Kinsey identified himself as a caregiver right before he was shot.

Wednesday, July 20, 2016

The grass is always greener

Here's an interesting piece from Sports Illustrated about Ricky Williams who walked away from the NFL. I went to the University of Texas at the same time Ricky did and remember watching him play ball at DKR. He was a stud running back (who at one point held the NCAA record for career rushing yards) but he marched to the beat of his own drummer (and still does).

Our marijuana laws make no sense. Alcohol is a much more dangerous drug but it's perfectly legal and manufacturers pay plenty in taxes to the government for the privilege of producing it. As you know, I defend people accused of drunk driving and I see the consequences of it every day. Why the federales leave marijuana as a Schedule 1 drug I will never understand - it has been clearly demonstrated that various components of marijuana have legitimate therapeutic uses.

The NFL has a strict anti-marijuana policy but looks the other way when team doctors hand out painkillers like candy so players can be rushed back onto the field quicker. They are more concerned about the league's image then they are for the people the league chews up and spits out on a regular basis.

Instead of legalizing - or at least de-criminalizing - marijuana we choose to enforce laws that make young people criminals and threaten their ability to obtain student loans for college. Yet we'll just slap 'em on the wrist for underage drinking which is a far more serious problem.

It's time we got past Reefer Madness, wouldn't you agree?

Monday, July 18, 2016

Praying for hypocrisy

Last week I was at the Fort Bend County Courthouse in Richmond and noticed a church down the road with a sign announcing a prayer service for the Dallas police officers who were killed the previous week.

I couldn't help but wonder if they held prayer services for Alton Sterling or Philando Castile, too.

Pronouncements such as this are the subtle ways we perpetuate racism and prejudice in this country. Bumper stickers reading Back the Blue and Cops' Lives Matter are ways that folks can express their prejudice without being so blatant. And just what the fuck is Pray for Police supposed to mean? They're the ones killing black men at point blank range. Do they want absolution or something?

This is how we indoctrinate our children to accept blindly what they are told by authority figures. This is how we indoctrinate them to hate and look upon those who are different with disdain or fear. Through religion we attempt to paper over the hypocrisy of murder as a sin and blind support of the military and the permanent war.

Interesting how the Jesus fought for the benefit of the downtrodden and spoke for those without a voice while the modern churches that use his name speak for those in power and those with money.

We'll just have to wait and see for whom prayer services are held the next time a young black man is gunned down by a man wearing a badge.

Friday, July 15, 2016

Black and white and green

I read an interesting article in Slate yesterday about the demographic problems that Donald Trump is facing in the general election this fall. But that's not what I wanted to talk about today. I did read one stat that I think is a good jumping off point for looking at how American capitalism is unique in the world.

Trump has unprecedented pull with working-class whites, especially men. If he can match past Republican performance with college-educated whites and hold his increased share among their counterparts with high school diplomas, he’ll have a smooth path to victory.

Why is it that white working class males are such solid Republicans? Why are they supporting candidates whose policies benefit the corporate class at the expense of the working class?

It has to do with the unique nature of American capitalism. And just what is unique about American capitalism?

The legacy of slavery and institutional racism are foundations upon which the American economic system is built. For generations the corporate elite and their bag men have fomented racism as a means of dividing the working class. And they have succeeded. Today white working class males feel they have more in common with their bosses than they do with their fellow workers.

The white working class has been so permeated with racist ideology that they have become blind to what's in their own self interest. Republicans and toadies of the corporate class realized this during the Civil Rights movement. There's a reason that Martin Luther King, Jr. was assassinated following a speech to sanitation workers in Memphis. In tying the fight for equality with the fight for workers to earn a living wage and with the fight against the war in Vietnam, King became a dangerous figure and had to be eliminated.

Republicans, conservatives and the corporate class have been sowing seeds of discord within the ranks of the working class ever since. They have done this by portraying the struggles of racial and ethnic minorities as attacks on American values instead of a attack against economic and political oppression.

The result has been a fragmented working class that works against its own self-interest. This fragmented working class allows the corporate class to hold down wages and move jobs overseas whenever it becomes profitable for them to do so.

So long as the corporate class is able to use race as a wedge to drive between workers, the working class in this country will continue to be oppressed with low wages, no job security and private health care coverage.

For all of the talk from our political leaders about what happened in Baton Rouge, St. Paul and Dallas last week, we will never eliminate racism because it is so ingrained in our economic system. We can move beyond prejudice but institutional racism will remain because it brings about bigger profits for the corporate class.

Thursday, July 14, 2016

Keeping up with appearances

Earlier this week China lost a dispute over control of parts of the South China Sea. The Philippines filed suit in an international tribunal over violations of the United Nations Convention on the Law of the Sea. Despite being a signatory of the agreement, China balked at its language when it came to parceling out disputed regions of the South China Sea. And (hypocritical) political figures in the U.S. and Britain pontificated on why the Chinese should heed the decision.

But here is the rub. How is this decision to be implemented? If there is no enforcement mechanism then the decision of the tribunal isn't worth the paper it's printed on.

But while the decision is legally binding, there is no mechanism for enforcing it, and China, which refused to participate in the tribunal’s proceedings, reiterated on Tuesday that it would not abide by it.

And that is the problem with international law. Sure, we can set up tribunals to rule on a variety of disputes around the world - but if all the winner gets is a piece of paper, what's the purpose?

Unless every country agrees to be governed by a particular mechanism and agrees to an enforcement protocol, the law doesn't mean a thing. The United Nations is not capable of enforcing the agreement and neither is any government.

In fact, no one wants an international body that's capable of enforcing international "law." What world leader in their right mind would cede national sovereignty over such issues? What world leader would voluntarily subject his own government to the various prohibitions that the U.N. has produced over the years? If such a body existed is there any reason to doubt that George W. Bush would have been charged with violating international law? Is there any reason to doubt that President Obama would soon join him in the dock?

Tuesday, July 12, 2016

Taking away freedom on the cheap

One of our worst nightmares is being wrongly arrested by the police and getting lost in the criminal (in)justice system. Thanks to a cheap drug test kit, many folks around the country have had the pleasure of being arrested, having their cars impounded, losing their jobs and their apartments for no reason at all.

Factor in the pressure some folks have to plead guilty by appointed attorneys in order to get out of jail quicker and you have a situation that should shock the conscience of our nation. Yet it's something we are more than happy to sweep under the rug.

Last week the New York Times Magazine ran an article about the real life aftermath of the cheap roadside test kit focusing on the ordeal faced by one Amy Albritton from Louisiana. Her nightmare occurred right here in my hometown, Houston.

She and a friend were stopped by officers when they were in town for her friend's job interview. One officer claimed to have found a syringe needle in the visor and a (coerced) search of the car then turned up a powder-like substance (that Ms. Albritton said was BC headache powder) and a grain of something on the floorboard.

The officer who broke open the test kit claimed it showed the grain of something was, in fact, a piece of crack cocaine. Ms. Albritton was arrested (her friend disclaimed any knowledge of the substance and, since it was her car, she took the ride downtown) and charged with possession of a controlled substance - a state jail felony punishable by up to two years in prison.

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

The next morning Ms. Albritton met with a gentlemen who told her he was her court-appointed attorney. While she claimed innocence, he told her that the prosecutor would offer her 45 days (under a provision of the Texas Code of Criminal Procedure that allows certain felonies to be punished as misdemeanors) and that she would be in jail for much longer if she actually chose to fight her case. She gave in and pled guilty before Judge Vanessa Velasquez.

A later test of the substances by the Houston Police Department Crime Lab (who apparently tested substances from closed cases on a regular basis but never notified anyone of the results - among other sins that have been documented previously) showed that the substance in question was not crack cocaine. The tests also showed that there was nothing in the needle and that the powdery substance was BC powder.

All of this was a day late and a dollar short for Ms. Albritton who lost her job and was now hamstrung with a felony conviction due to her wrongful arrest.

Now, if we know that these kits are inherently unreliable and that their accuracy is affected by light and temperature and other environmental factors, why do we allow these tests to be the basis of criminal charges that have serious ramifications for the people involved? Why aren't we waiting for the results of actual lab tests before we file charges against someone? Why are we holding folks in jail for non-violent drug offenses simply because they can't afford to post a bond? And why the fuck are attorneys pressuring their "clients" to plead guilty without the benefit of a lab report?

Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.”

Another question, posed by former Houston Police Chief Charles McClelland, is why do we allow the folks who want to arrest someone to run the test that determines if someone gets arrested? Shouldn't that testing be done by someone who is (nominally) not a part of the police department?

Yet another question is why we continue to charge people who possess trace amounts of drugs with felony offenses?

This is reality for a sizable portion of the population yet you will never hear a politician talking about how innocent people get caught up in our criminal (in)justice system. You will never hear then talk about the gross inequities in how different people are treated. Instead you will hear nothing but the common platitudes of those who claim to be tough on crime in order to please white suburbanites whose idea of a colorblind society is an all-white neighborhood.

Saturday, July 9, 2016

Reasonable Doubt 7/7/2016

This past Thursday I had the honor of being back on HCCLA's Reasonable Doubt television show. We talked about the Hillary Clinton e-mail scandal and police shootings.

In case you missed it, here's the show...

Friday, July 8, 2016

Vacation or jail?

After the events of the last few days it's time to end the double-standard in our criminal (in)justice system that we don't talk enough about.

In Dallas last night, five police officers were killed by sniper fire and another six were wounded and taken to the hospital. There was a manhunt. Three suspects were taken into custody and a fourth was found dead - apparently by a self-inflicted gun wound. These men will be placed in the Dallas County Jail. They will be charged with capital murder. Prosecutors will ask that the judge deny them bond - and the judge will acquiesce. They will sit in jail until their cases are disposed of.

In Baton Rouge, Louisiana and just outside St. Paul, Minnesota, police officers murdered black men. In Baton Rouge officers tased and tackled Alton Sterling before shooting him multiple times in the chest and back. In Falcon Heights, Minnesota, Philando Castile was pulled over for having a cracked tail light. After Mr. Castile told the officer he was licensed to carry a gun and was carrying a gun, the officer opened fire and murdered Mr. Castile in front of his girlfriend and his 4-year-old daughter.

Are the police officers in jail? Are they facing charges?


They are all on paid administrative leave.

There is no justice. If you kill a police officer the entire weight of the criminal (in)justice system will come down on you; but, if you are a police officer and you kill a black man, you go on vacation.

And you wonder why this shit continues.

Wednesday, July 6, 2016

More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.

Friday, July 1, 2016

Empty labels

In the early morning hours of June 12, forty-nine people were murdered in a nightclub in Orlando. Forty-nine lives lost, at least forty-nine families shattered.

One of the questions left dangling is whether that deadly massacre was terrorism or a hate crime. The answer is neither.

There is no such thing as terrorism. In the West we use the term terrorism to describe the use of violence to achieve political aims. Interestingly enough, that term is only used to describe those actions by groups in opposition to our government or an allied government. It is a politically charged word used to rally people to a certain political position.

If there were a legitimate definition (outside the realm of politics) for terrorism then the United States would be the world's biggest sponsor of terrorism. The US dropped atomic bombs on two populated cities in Japan in August 1945 in an attempt to persuade the Japanese people to push their leaders to surrendering. The death and devastation caused by the bombings was the act of violence. The goal was to achieve the political aim of forcing Japan to surrender.

During the Cold War the United States supported right-wing dictators and trained right-wing death squads in Guatemala, Honduras, Argentina and Chile (as well as plenty of other places around the world). These dictators and their minions used violence to force compliance with political and economic policies that benefited big business.

Today the United States fires missiles and drops bombs in the Middle East killing scores of innocent people in order to achieve its political aims.

But no one in this country calls it terrorism.

Hate crime legislation in this country is unconstitutional. The First Amendment gives all of us the right to spew forth whatever appalling or objectional speech we wish - so long as we don't incite violence.

We will never know why Omar Mateen did what he did that day because he was killed during the incident. But it doesn't matter why he did it. If he were being tried for murder the only relevant question would be did he shoot those folks intentionally or not. Why he pulled the trigger isn't relevant to determining whether or not he is guilty.

The forty-nine victims are dead. And they will remain dead whether or not Mr. Mateen killed them because he hated them or not.

The purpose of our criminal (in)justice system is not to determine what someone was thinking at the time they committed a certain act, it's to determine whether or not that person had a certain culpable mental state at the time of the act. Did he act intentionally, knowingly, recklessly or negligently? That should be the end of the inquiry.

Punishing someone for murder is one thing, punishing someone because of their constitutionally protected speech is something altogether different.

Thursday, June 30, 2016

The Olympic boondoggle

If you have any delusions that the use of public money to build stadiums or host sporting events provides an economic benefit to a city or country, please take a couple of minutes to read these articles about the burning dumpster fire that is Rio de Janeiro and the Summer Olympics.

"Rio de Janeiro governor declares state of financial emergency ahead of Olympics" The Guardian (6/17/16)

"As the Olympics near. Brazil and Rio let the bad times roll," New York Times (6/25/16)

"Rio visitors greeted with 'Welcome to Hell' banner," Yahoo Sports (6/28/16)

The only folks who claim that hosting these types of events and building fancy new playgrounds for fat cat owners are the owners themselves, the organizers of the games, league officials and every local politician who has his or her hand in the fire.

As I have stated before, if these really were money-making propositions, there would be no shortage of investors willing to pony up the bucks to make them happen. The very fact that state and local governments end up picking up the tab for these expenses tells you all you need to know about whether or not they are economic engines.

Wednesday, June 29, 2016

Update: What's in a name?

In the spirit of throwing good money after bad, South Texas College of Law has decided to double-down and fight the lawsuit filed by UH.

I can't think of a good reason to do so - other than so much time and money has been sunk in this flight of idiocy that no one has the good sense to pull the plug on it.

Anyway, here's South Texas College of Law's response to the lawsuit.

Tuesday, June 28, 2016

What's in a name?

The other day I received a letter from something called the Houston College of Law. The letter stated that Houston College of Law was the new name for South Texas College of Law (the law school I attended). The letter also contained the usual gibberish about strategic plans, mission statements and the like.

Apparently someone along the line decided that the name of the school needed to be changed. Never mind that South Texas has a sterling reputation when it comes to advocacy competitions. Gerald Treece has put together one of the best advocacy programs in the entire country.

But someone with a market research firm decided that didn't matter. And, to top it off, that firm decided that the scales of justice should be white against a red background. Hmmm. Doesn't that color scheme sound familiar?

So we are supposed to forget about 96 years of history and pretend that a law school is just as much a commodity as soda, shoes, cars and phones. Not that law schools are paragons of virtue as they have marketed their schools without a thought to what fate awaits their graduates. Apparently that federally guaranteed student loan money is just too much to ignore.

However, as Lee Corso would say "Wait just a minute!"

On Monday the Board of Regents for the University of Houston filed suit in federal court against South Texas College of Law arguing that the name and color change is a trademark infringement and designed to confuse the public and seeking an injunction to prevent the name change.

I hope UH is successful with its suit. I hope that South Texas has to crawl back downtown with its tail between its legs. Allowing a marketing firm to dictate the name of a school is beyond ridiculous and every member of the board of South Texas the participated in this process and that voted to make the name change violated their fiduciary responsibility to the students, faculty and donors. This exercise in stupidity will result in untold legal fees and expenses that would have been much better used to enhance the education of the law school's students.

The President and Dean of the law school, Donald J. Guter, should do what Roy Hodgson did after England lost to Iceland yesterday - resign.

I should probably go down and buy as much gear as I can with the new name on it because once the court rules against South Texas, all that merchandise could beome collectible - or at least be a conversation starter.

See also:

"University of Houston Law Center files suit against unranked law school," Above the Law (6/27/16)

"UH files suit over Houston law school name change" Houston Chronicle (6/27/16)

Friday, June 24, 2016

Now for something completely different

There is a new podcast I ran across on the NPR One app a couple of weeks ago. It's called Criminal and it deals with, surprisingly enough, criminal matters. But it does so with a level of sophistication. I highly recommend it.

So far I've listened to pieces on grave robbing by medical schools in the 18th and 19th centuries and a clash between the KKK and the Communist Workers' Party in the 1970's.

Wednesday, June 22, 2016

Why is two greater than four?

Why are we so concerned about the possibility that the Second Amendment might be restricted by legislation but we show no concern when the Nine (now Eight) Wearing Robes carve out restrictions to the Fourth, Fifth and Sixth Amendments?

This topic is nothing new to readers of this blog but, given the massacre in Orlando, it's timely once again.

Now the first thing we can do is forget about these ideas floating around that if you are on the government's "No Fly" list you shouldn't be able to buy a gun. There are no concrete criteria for being placed on that list. No one notifies you if you are placed on that list. There is no criteria for removing yourself from that list. Sure, "No fly, no buy" has a nice ring to it - but it's a nonstarter.

Besides, how many of the folks who carried out mass shootings in this country over the last decade were suspected terrorists? Would such a measure have stopped any one of those shootings? Highly doubtful. But it would allow politicians to say they did something in response to Orlando.

As I have said before, what we really need to do is address the gun culture in this country. And we can't do that without addressing racism. As the old white guard have found their numbers decreasing (and their influence over politics receding), the worship of the Second Amendment has become louder.

I suspect the reason such a stink is made over the Second Amendment is because those who held sway for so long because of the color of their skin know that the days of white power in the United States are coming to an end. They have some delusion that by holding onto their guns they can forestall the inevitable. 

They like to trot out the trope that an unarmed populace is at the mercy of its government. Let's look at that for a second. The US government has nuclear weapons, "smart bombs," jets, helicopters, ships and an arsenal of deadly machine guns and other arms at its disposal. Do you really think your shotguns, semi-automatic rifles and .45s stand a chance? Stop being deluded by Red Dawn.

You say you're worried about the slippery slope that gun regulation might bring about? What about the shredding of the Fourth Amendment? Or are you not worried about that because it only protects "them." 

And that's what this is really all about. 

One day you will wake up to find the Fourth Amendment is gone. But then we'll still have the Second Amendment. Some comfort that will be.