Saturday, May 26, 2018

Perverting history

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

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

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

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

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

Friday, May 25, 2018

A false idol?

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

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

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

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

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

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

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

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

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

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

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


Wednesday, May 23, 2018

Texas fights to make it harder to vote

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

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

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

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

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

Tuesday, May 22, 2018

Book review: The Cadaver King and the Country Dentist

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


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

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

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

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

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

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

Saturday, May 19, 2018

Just win, baby

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

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

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

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

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

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

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

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

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

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

Thursday, May 17, 2018

Same as it ever was

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

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

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

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

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

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

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

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

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

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

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




Tuesday, May 15, 2018

Execution Watch: 5/16/2018

On Wednesday night Texas looks to kill again...

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


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

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, May 16, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Monday, May 14, 2018

Turning the tables


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

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

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

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

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

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

Sunday, May 13, 2018

Happy Mother's Day

Leroy Harris will be spending Mother's Day with his mom today for the first time in 29 years.

Last November, Mr. Harris was released from a Connecticut prison after being exonerated of a sexual assault. Unfortunately he was forced to make a Hobson's choice between entering an Alford plea to the accompanying kidnapping and robbery cases or sitting in prison and waiting.

The sexual assault conviction went the way of the dinosaurs when DNA testing revealed exculpatory evidence that ruled him out as the attacker. An investigation by the Innocence Project also turned up evidence of prosecutorial misconduct.

Mr. Harris was given the choice to stand in front of a judge and plead guilty even though everyone - the defense, the prosecution and the judge - knew the plea was a legal fiction. Unfortunately the state still held some of the cards after the DNA test results came back. They had the option to retry the case which meant Mr.. Harris would have to sit behind bars awaiting a new trial - a new trial in which the state would not have some of its critical evidence admitted.
“Given the egregious misconduct that denied Mr. Harris a fair trial combined with the fact that the identification evidence presented against Mr. Harris would be inadmissible at trial today on due process grounds, it is deeply disappointing that he has been put in the untenable position of taking a plea to gain his freedom." -- Vanessa Potkin, Innocence Project
So, Mr. Harris took the deal and entered an Alford plea. Now he would be free and the state would keep its conviction.

But why did prosecutors insist on his pleading guilty before agreeing to his release from prison? He had served almost 30 years. Evidence turned up during post-conviction appeals clearly demonstrated that he was the victim of a wrongful conviction in the sexual assault case. It would stand to reason that if was innocent of the sexual assault that he would also be innocent of the kidnapping and robbery charges.

But prosecutors have a hard time letting cases go - even when they know it's the right thing to do. The often must be dragged kicking and screaming into court when faced with exculpatory evidence that they either failed to turn over or did their best to keep from being admitted into evidence.

Maybe it has something to do with a victim of wrongful conviction having the right to sue the state for compensation for the years and experiences that were taken away from him. But that money is paid out by the state under a statutory scheme, not the county in which he was convicted.

Maybe it has to do with the god complex some prosecutors possess. You know the ones - every conviction is the result of the jury doing the right thing and every acquittal is the result of the jury getting it wrong. These are the same prosecutors who fight every attempt to conduct DNA tests on untested biological material. The same prosecutors who raise their arms to the sky and ask the court when is enough enough?

For all of those who say cases like that of Mr. Harris show how the system works (albeit in a very imperfect manner), I would point out that there are other innocent men and women behind bars who can't turn to DNA testing or examples of prosecutorial misconduct to reverse their wrongful convictions. For every Leroy Harris there is another poor soul who is stuck in his own private hell because a jury just got it wrong.

Here's hoping that Leroy Harris and his mom have the greatest Mother's Day ever.

Friday, May 11, 2018

What goes around keeps going around

In our digital world, nothing really ever goes away. That off-hand comment you made on Twitter or that snarky remark you made on someone's Facebook page will remain there years after the fact - just waiting for someone to stumble across it at a most inopportune time.

Alfred Swinton knows all about the vapor trails in the ether.

You see, Mr. Swinton was the focus of a 2002 episode of Cold Case Files. In 2001, Mr. Swinton was convicted for the 1991 murder of Carla Terry. Her murder was one of 15 similar murders in the Hartford (CT) area in the late 80's and early 90's. Police worked the case for almost a decade before arrested Mr. Swinton with the help of a pair of forensic bite-mark analysts.

A judge tossed the initial indictment in 1991 because prosecutors presented no evidence that a bite mark said to be found on Ms. Terry's body was made at or near the time she was killed. Seven years later the state hooked up with an outfit called Image Content Technologies who claimed they had a software package that could scan old photographs and find previously unseen details. The state also hired forensic bite-mark voodoo salesman Gus Karazulas who took a plaster mold of Mr. Swinton's teeth and "bit" himself and then timed how long it took for the "bitemark" to change color.

Of course the judge let it in (since about the only time a judge exercises his or her power as gatekeeper of scientific evidence is in civil cases) and the jury lapped it up like a thirsty puppy. Mr. Swinton was convicted and sent to prison. In 2017, after spending 18 years behind bars, his conviction was vacated based on DNA testing of biological material that excluded Mr. Swinton as a suspect.

But even though a judge ruled that Mr. Swinton was wrongly convicted of the murder, reruns of the episode still air occasionally on cable television without any notification to viewers that Mr. Swinton was exonerated or that the forensic bite-mark evidence was garbage.

Today there are internet firms that compile mug shot photos of folks who were recently arrested and post them online. The posts remain available to the public even if the case is dismissed or the accused is found to be innocent. The only way to get the company to take down the posts is to pay them an extortion fee. Some prosecutors' offices tweet or post Facebook messages about arrests made - but there is never a post to indicate when the police (and prosecutors) got it wrong.

Shows like Cold Case Files and Forensic Files showcase fields of forensic science that have since been shown to be junk science but never update their shows with a disclaimer that a particular technique or field of inquiry has been shown to be unreliable or fraudulent or that a person featured on their show was later exonerated of the crime.

Still the digital detritus keeps floating in the ether, like the space junk that orbits our planet.

h/t Radley Balko


Wednesday, May 9, 2018

Burning man

Last week the State of Georgia murdered Robert Earl Butts, Jr.

Embed from Getty Images

Mr. Butts had been sentenced to death for his role in the killing of an off-duty prison guard in Milledgeville, Georgia when he was 18. The co-defendant, Marion Wilson, Jr., is still on death row.

Since Georgia can no longer obtain the drugs it needs to murder inmates, it turned to a compounding pharmacy to get the necessary (over)doses of pentobarbital. The drug was injected into Mr. Butts' body at approximately 9:42 pm. Mr. Butts made only one statement before he was pronounced dead at 9:58 pm.

As the drugs were injected into his body, Mr. Butts said "It burns, man."

Pentobarbital shouldn't burn. An overdose should cause a person to lose consciousness. Enough of an overdose would be lethal. The very fact that Mr. Butts felt a burning sensation during the execution means that the drug wasn't compounded properly.

As much as death penalty proponents say it shouldn't matter if the process causes the inmate to feel pain and discomfirt, it does matter. Supposedly the death penalty acts as a deterrent to others who might decide to commit a murder. It's not supposed to be an act of revenge.

A society is measured by the way it treats those who are least capable of taking care of themselves. It's also judged by how it treats those who have violated its laws.

The death penalty isn't on the books because it acts as a deterrent. We've been killing people en masse since the U.S. Supreme Court reversed itself and decided to allow states to go on killing again back in 1976, a mere 4 years after declaring it unconstitutional, and folks are still killing each other. No, the death penalty exists as a tool of social control. It is the epitome of legalized lynching.

Wednesday, April 25, 2018

Shining a light on judicial abuse

There's just something about putting on that black polyester robe that brings out the worst in some people. Broward County (FL) Judge Merrillee Ehrlich is just the latest example of black robe syndrome.



On April 15, 2018, the target of her ire was Sandra Faye Twiggs, a 59 year-old disabled defendant arrested on a misdemeanor charge. During the arraignment, Judge Ehrlich asked Ms. Twiggs some questions about the charge. When Ms. Twiggs tried to answer, Judge Ehrlich cut her off repeatedly and berated her.

When Ms. Twiggs complained about having problems breathing due to her COPD, Judge Ehrlich wasn't having any of it. And why was her attorney on video and not present in the courtroom? How does one exercise her right to counsel when the attorney isn't in the courtroom with her? Does the absence of attorneys have anything to do with the judge's belief that she can unload on defendants at will?

Ms. Twiggs were released from the county jail two days later on April 17. She died the next day.

Judge Ehrlich has since resigned from the bench without giving a reason why.

Just how out of the ordinary is what happened in that Broward County courtroom? How many defendants are yelled at by judges on a daily basis? How many defendants are treated in a callous manner without regard for their health or other issues?

The only reason we know about Judge Ehrlich's conniption fit is because the proceedings were recorded with a video camera. How much of this goes on across the country in courtrooms where recording equipment is banned?

I've seen judges berate defendants. The judges did so with impunity because they knew there was no record of the way in which they treated those accused of breaking the law. They knew that if it ever came to a head that deference would be shown to the person wearing the polyester robe long before it would ever be afforded to the defendant.

Allowing cameras unfettered access to the courtroom might not be the best idea, however. What about those folks sitting in the courtroom - accused of a crime but presumed innocent under the law? They have a right not to be photographed in the courtroom.

Then we have the open courts provisions in the Texas Constitution. A courtroom is supposed to remain open to the public - notwithstanding attempts by judges and bailiffs to remove those who aren't on the docket from the courtroom every morning and afternoon. Should we place a fixed mount camera in every courtroom focused on the bench and those standing before the court?

However we come down on those questions, it is undeniable that light is the great disinfectant. With the exception of "reality" television, the presence of a camera seems to make everyone behave just a little bit better and pay just a little more attention to social mores.

But for a camera, Judge Ehrlich would be free to continue her reign of abuse.

Tuesday, April 24, 2018

Execution Watch 4/25/2018

On Wednesday night the State of Texas will once again exercise its most coercive power...

ERICK DAVILA. Mr. Davila was ordered put to death after being convicted in the 2008 slayings in Fort Worth of a girl and her grandmother who were shot when he opened fire at a rival gang member whose home was the scene of a child's birthday party. Mr. Davila's appeal was heard by the US Supreme Court. His attorneys objected to the trial judge's instructions to the jury and argued that Mr. Davila did not intentionally kill the victims.

Mr. Davila's trial attorney objected to the judge's instruction to the jury regarding intent. The judge instructed the jury they could convict Mr. Davila if the only difference between what happened and what was intended was that a different person was hurt. The judge should have instructed the jury that the state needed to prove Mr. Davila intended to kill more than one person in order for the jury to convict for capital murder.

On direct appeal, Mr. Davila's appellate lawyer failed to raise the issue of the jury instruction. Mr. Davila argued that his appellate attorney was ineffective. The US Supreme Court, in a 5-4 vote, held that since there is no constitutional right to an attorney for post-conviction relief, Mr. Davila's claim of ineffective assistance was not sufficient "excuse a procedural default."

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, April 25, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Friday, April 20, 2018

Drugged driving in Tornado Alley

I saw a tweet on Twitter yesterday about a six-state initiative to cut down on drugged driving. This weekend in Arkansas, Kansas, Iowa, Missouri and Oklahoma, police will be "cracking" down on drugged driving in an initiative cleverly titled Driving High? Kiss Your License Goodbye.

There's just one little problem. While alcohol mixes with the blood in the lungs which allows the use of a breath test to estimate the amount of alcohol in a person's body, drugs don't.

With alcohol we can trace a curve showing the accumulation of alcohol in a person's body and we can calculate (or, as I prefer, guesstimate) the length of time it will take that person to eliminate the alcohol. We can't do that with drugs. Since marijuana is illegal, there has been no testing to determine accumulation or elimination rates.

Furthermore, with alcohol we can pick a concentration that demarcates the line between being intoxicated and not being intoxicated. We can quibble over the number but there is testing data available that shows the effect of higher levels of alcohol over time. No such luck with drugs.

I think I can visualize how this initiative is going to work. The police will conduct a traffic stop on anyone committing a minor traffic (or equipment) violation after hours. If the person has the odor of an alcoholic beverage on their breath it will become a DWI stop, complete with roadside sobriety tests and breath or blood tests at the scene or at the station. If the person doesn't have the odor of an alcoholic beverage on their breath it will become a drugged driving stop since there can't possibly be any other reason a motorist might be speeding, not using a turn signal or driving with a burned out tail light.

Those accused and arrested for drugged driving will have to wait weeks for the results of blood tests to come back. Prosecutors will then argue that the presence of inactive metabolites for any number of drugs are evidence that the motorist was under the influence of drugs at the time of driving. Little thought or consideration will be given to the fact that the inactive metabolites of many drugs find their ways to the body's fatty tissues where they stay, not bothering anyone or anything, for anywhere from three days to a month.

Prosecutors will also argue that the presence of prescription medications indicates the motorist was driving under the influence of drugs, too. Little consideration will be given to the actual concentration of the drug in the body or whether or not that concentration is lesser or greater than a therapeutic dosage. Prosecutors will argue that the presence of alcohol and any prescription medication is a clear sign of intoxication without regard for the actual chemistry of the substances involved.

But, hey, with strong Fourth Amendment protections and judges who take seriously their gatekeeper role when it comes to scientific evidence, there's nothing to worry about this weekend in Tornado Alley, is there?

h/t Marine Glisovic and Shane Ethridge

Thursday, April 19, 2018

Judge sounds off on putting the brakes on the death penalty

Mike Fields, the presiding judge of Harris County's Criminal Court at Law No. 14, is a very complex character.

I've had disagreements with Judge Fields that I have documented in this blog. We've butted heads a couple of times in the courtroom. But we've also had nice little chats in chambers, on the sidewalk of my old neighborhood and at the bench. Hell, Judge Fields performed the marriage ceremony (in his courtroom) for my current wife and me.

For the longest time, Judge Fields was the only black judge in the misdemeanor courts. That changed when Darrell Jordan was elected to County Criminal Court at Law No. 16. If you remember back a little while, I wrote about Judge Fields backing out of the county's lawsuit to retain its unconstitutional and punitive misdemeanor bail schedule.

Now comes an editorial in the Houston Chronicle in which Judge Fields challenges the wisdom of those who want to speed up the death penalty in Texas.

Just for a moment, however, let’s forget about the exorbitant costs associated with killing a fellow human being. The very idea that a person, innocent of a capital crime, could be caused to sit on death row for any amount of time or, worse, wrongfully killed by our government, is offensive to our fundamental notions of liberty and justice. As celebrated English jurist Sir William Blackstone once said, “It is better that 10 guilty persons escape, than one innocent suffer.” Some of our founding fathers agreed. -- Hon. Mike Fields

In this piece, Judge Fields points out the number of times juries have gotten it wrong (that we are aware of) when it comes to death penalty cases. He also points out the role that the defense bar has played in this process. When no one else is standing up to defend the rights of the accused, it makes it so much easier to stick a needle in someone's arm and worry about whether the jury got it right later. Prosecutors have an ethical duty to see that justice is done - yet most district attorneys will fight tooth and nail to prevent an exoneration. In the mind of the prosecutor it is far more important to preserve the illusion that our criminal (in)justice system gets it right than it is to prevent an innocent man from being murdered by the hand of the state.

I've said it before and I will say it again multiple times before I die that our adversarial trial system isn't designed to determine the truth, it's designed to see which of two competing versions of reality a jury is willing to buy. And if we grease the wheels of the death penalty machine any more then we are going all-in on that notion.

Wednesday, April 18, 2018

There once was a lab analyst...

Oh the fun and games over at the Harris County Institute for Forensic Sciences never seem to stop. Last week a lab analyst was fired for not following proper lab procedure when testing a substance to determine if it was marijuana.

A lab analyst is supposed to perform both a chemical analysis as well as a microscopic analysis. Only after both tests have been run can the analyst record a positive result.

The analyst was discovered after the lab manager viewed high-resolution video of the analyst testing the substance.

It doesn't matter that when another analyst performed a microscopic analysis that the substance was found to be marijuana. The fired analyst "dry-labbed" the results which brings into question the results of any test performed by that analyst.

This episode points out (yet again) the difference between science and "forensic science."

Science is interested in answering the questions what? why? and how? A scientist observes a phenomenon and comes up with a hypothesis that answers one of the questions. The scientist then conducts experiments with the goal of disproving the hypothesis. If the experiments don't disprove the hypothesis then we may have a new theory. If the experiments disprove the hypothesis, then it's back to square one.

Science is replete with failures. In fact, it is through failures that we learn. Failures cause us to rethink our theories and to come up with new experiments. It's precisely because the failure rate is so high that scientific successes are celebrated as much as they are.

"Forensic science," on the other hand, isn't interested in discovering anything. The sole interest of the forensic scientist is to produce evidence that can be used by the state (or sometimes the defense) at trial. The junk science fields of dental recognition, tool mark analysis and bullet composition analysis, among others, came about because law enforcement needed ways to develop more evidence to support their arrest decisions.

They were allowed to proliferate because judges, who, for the most part, were not schooled in hard science, were appointed gatekeepers of scientific evidence. As a gatekeeper, the judge's role was to determine whether the offered scientific evidence should be admitted at trial. Unfortunately, most judges decided to let it all in and leave it up to the jury to determine what was junk and what wasn't.

The irony, of course, is that judges in civil matters, where money is at stake, tend to be much more strict in their decisions to allow, or disallow, scientific evidence to be presented than they are in criminal cases where the defendant's life is at stake. The results of this policy are illustrated by the large number of exonerations we have seen over the past decade or so. Juries across this country sent innocent men to prison (sometimes even death row) based on junk science that judges allowed into evidence.

So long as this divide exists between science and forensic science, we will continue to see more shenanigans in crime labs and more junk science presented to jurors.

Friday, April 13, 2018

Throwing away outs

This has been a busy week and I felt like talking about something other than the law today, so here we go. Last Saturday night I took my girls to go see the Astros play the Padres.  It was a defensive duel through nine innings that ended with the Astrols winning on one of the flukiest plays I've ever seen.

But what I wanted to talk about was what happened when the Padres were at bat in the top of the 5th innining in a scoreless game (played with a DH since it was in Houston). The lead-off hitter for the Padres reached second on a ground-rule double. Not bad - man on second, nobody out. The next batter laid down a bunt and moved the runner to third with one out. The runner on third took off toward home and was caught in a rundown when the third baseman fielded a grounder. The batter advanced to second. So, after a sacrifice and a groundout, San Diego was in the same situation they were in before with a man on second - but now there were two outs. Gerritt Cole struck out the next batter and the Astros were out of the inning.

The following day the Texas Longhorns were hosting the Baylor Bears. Going into the top of the 7th, Texas was leading 3-1. Baylor got the first two batters on base with nobody out. The next batter squared to bunt. He bunted up the third base line and the Longhorn third baseman threw out the lead runner at third. The next batter flew out. Baylor now found themselves in a familiar position - men on first and second, only this time there were two outs. After a wild pitch the Longhorns got the third out and escaped unscathed. Texas went on to win the game and sweep the series.

In both games teams made the decision to attempt to bunt a runner to third with nobody out. And in both instances they traded first and second with nobody out for first and second with two outs.

In both instances the manager were wrong.

As Billy Beane pointed out in Moneyball, outs are precious commodities for a baseball team. You only get 27 of them -- and then only three at a time. Throwing one away and getting nothing for it in return is a bad tactic - especially when we're talking about two games in which DH's were used.

I can understand a manager calling for a pitcher to lay down a bunt to advance a runner since the pitcher is extremely unlikely to get a hit, but when the pitchers aren't batting it makes little or no sense to send a batter into the box for the sole purpose of squaring up and laying down a bunt. In both games, it would have made infinitely more sense to send the batter to the plate to swing away.

Wednesday, April 11, 2018

Making it easier to kill

Ever eager to kill more inmates, the State of Texas has informed Attorney General Jeff Sessions that it still wishes to "opt-in" to a program that will tighten deadlines and make it harder for those on death row to contest their convictions.

Gov. Abbott wants Texas to qualify for Chapter 154 certification under the Antiterrorism and Effective Death Penalty Act passed in the aftermath of the bombing of the federal building in Oklahoma City. In order to qualify, the state must show that they have provided lawyers considered "good enough" during the state habeas period. If the state can meet that burden then federal habeas deadlines would be tightened.

Of course, as anyone who practices criminal law in Texas - or who keeps an eye on it - knows, local judges are very reluctant to authorize money for investigators, mental health professionals, mitigation specialists or any other experts when it comes to indigent defendants.

Combine that reluctance to spend money with the tradition of exculpatory evidence being withheld from the defense and you get a deadly combination.

According to Gov. Abbott, his concern is with the victims' families who have to endure years of waiting for the condemned to be murdered at the hand of the state. His lackeys have also said that opting in to Chapter 154 would cause federal judge to show more respect to state court decisions and would speed up the federal appeal process.

Oh yeah, and it would also shorten the time appellate attorneys have to sort out the mess left behind by the trial process. It would give them less time to find exculpatory evidence that wasn't handed over during the discovery process. It would give them less time to challenge the junk science that many of the state's "experts" have testified in favor of over the years.

If Texas were operating under Chapter 154 two innocent men, Anthony Graves and Alfred Dewayne Brown, would be six feet under the ground in cheap pine boxes and the public would never know just how badly the criminal (in)justice system failed.

That's really what this is all about. The shorter the window of challenging a conviction you have, the less likely it is that you're going to find what you're looking for. The shorter the window, the fewer exonerations you get. The shorter the window, the easier it is to spread the illusion that the criminal (in)justice system metes out justice equally. The shorter the window, the easier it is to spread the lie that innocent people don't get put to death.

Friday, April 6, 2018

Two cities. Two men. Two very different outcomes.

Cops aren't racists.
Every situation is different.
If you just follow orders, you won't get shot.
White folks get shot, too.

Wednesday afternoon in Brooklyn, police received three separate 911 calls about a man walking down the street pointing a metal object at people. When police arrived at the scene, they saw Saheed who met the description they were given. The man took what the police called a two-handed shooting stance with a metallic object in his hands.

Four officers fired on Mr. Vassell, striking him a total of ten times. None of the officers were wearing body cameras. He died at the hospital.

According to his father, Mr. Vassell was bi-polar and had been "sick " for some time. Other people who knew Mr. Vassell said he was well-known in the neighborhood and didn't bother anyone. One resident told a reporter that all the police officers in the neighborhood knew Mr. Vassell.

The metallic object in Mr. Vassell's hand was a shower head.

The officers never gave Mr. Vassell the opportunity to comply with their orders. They shot and killed another unarmed black man.

A week ago yesterday, in Louisville (KY), police responded to a domestic violence call. As police approached the door, Oscar Walters picked up an air rifle and pointed it at officers. Then he fired it, shattering the glass in the front door. After fleeing the house, Mr. Walters resisted arrest and refused to obey orders from the police.

Officers eventually tackled Mr. Walters, though one officer suffered a fractured wrist, arrested him and took him to jail.

Need I even point out that Mr. Walters was white?

Saheed Vassell was shot and killed for pointing a pipe at people on the street. The police never attempted to subdue him - and they never attempted to determine what he was holding in his hand. Mr. Walters shot at police, ran from them, resisted arrest - but is still alive.

Stephon Clark was standing in his backyard holding his cellphone when he was shot and killed by multiple bullets fired by police officers. Nikolas Cruz shot and killed 17 students in Parkland (FL) but was taken out alive.

The tangents running through these cases is clear and the longer we try to ignore it, the more killings we condone. It's very telling that NFL owners and wingnuts are more concerned with a man kneeling during the national anthem than they are at the scores of unarmed black men shot down by the police.

For all the pontificating by the right over the sanitized version of Martin Luther King, Jr. we are taught in school, his work was left undone when he was struck down by a sniper's rifle on April 4, 1968. We still live in a divided society with little sign it will change anytime soon.

Wednesday, April 4, 2018

A misconception of justice

One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.

Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.

And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.

If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.

The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.

MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.

Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).

It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.

I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.

Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.

When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.

That's not justice. It's retaliation.