Wednesday, November 22, 2017

Yet another reason why it sucks to be poor

Nowhere in the warning does it say that the government could come and ask you to pay for your appointed lawyer's services.

Kelly Unterburger found that out the hard way. After being arrested in 2011 for possession of a controlled substance, Mr. Unterburger asked the court to appoint him an attorney because he was indigent. By the time his case was resolved in 2014 (he spent the entire time in jail), he was presented with a bill from Johnson County for almost $10,000.

The State of Texas allows counties to recoup the cost of appointed attorneys from defendants, provided they warn defendants that they will be held responsible for the fees.

Prior to September 1, the government had until sentencing to determine whether or not a defendant would be required to pay for his or her appointed attorney. That determination was made on a defendant's financial status up to that point. A new law makes it possible for counties to come back at any time during a defendant's sentence (whether he be in prison, jail or on probation) to re-evaluate the defendant's ability to pay the fees.

Hill County District Attorney Mark Pratt says the bill was designed to protect the interest of law-abiding citizens who are being asked to pay for counsel for indigent defendants.


The real purpose of the law is to coerce more indigent defendants to plead their cases early in the process in order not to run up high attorney fees. The new law serves to punish those who exercise their right to trial by jury in a criminal case.

This is part of a larger war on the poor that has been waged for decades in this country - and in this state. Most defendants are indigent to one degree or another. They spend months, if not years, in jail awaiting the resolution of their cases because of our for-profit bail bond system. Then, once the case is resolved they get hit with a bill for attorney fees.

Meanwhile the wheels of our criminal (in)justice system just keep a-chugging along.

Monday, November 20, 2017

Ohio botches another murder

This past Wednesday, the state of Ohio attempted to murder Alva Campbell, a 69 year-old who's been on death row since 1997. And, once again, they fucked it up.

On a walk-through of the execution conducted on Monday, prison nurses were unable  to find a functioning vein during a walk-through on Monday. And before I go any further let me say that I can't think of too many things that could be more cruel than making an inmate participate in a dry run of his own execution. The very fact they go through this charade should tell you everything you need to know about why state-sanctioned killing should be abolished.

But when it came time to murder Mr. Campbell, suddenly not one nurse could find a vein. They tried in both arms. They tried his leg. But they couldn't find a suitable vein to pump poison into Mr. Campbell's body.

As another aside, each one of the nurses who participated in either the walk-through or the actual execution attempt should be stripped of their licenses. I don't care how much you may want the money, aiding in the murder of another person is a violation of oath you took when you became a nurse.

After 45 minutes of agony the Director of the Ohio Department of Rehabilitation and Correction, Gary Mohr, called off the execution. My only question to Mr. Mohr is how come it took so long to realize you needed to call it off?

And, while I'm waiting for that answer, maybe someone can explain to me what greater purpose is served by executing an elderly man for a crime that took place 20 years ago.

Murdering an inmate is not a function of rehabilitation and it certainly has nothing to do with correcting behavior. Maybe Ohio should add "and Revenge" into the name of the department.

Gov. John Kasich, who had the opportunity to do the right thing, instead rescheduled the execution for June 5, 2019. Maybe he's thinking Mr. Campbell will make life easier for him and die between now and then.

I'm still waiting...

Friday, November 17, 2017

Fuck Troy Nehls and fuck you for voting for him

Yes, it's low-hanging fruit. But I've been under the weather the last couple of days and it's the best I can do.

I'm sure there are some folks down in Fort Bend County (once you cross the Brazos, you're in a whole different world) who are offended by the language. So fucking what.

I'm offended by police brutality, racism, the growing gap between the wealthy and the working class, war, Donald Trump and his band of wingnuts who take the flack for every stupid thing that comes out of his mouth.

Troy Nehls should know better. Should. But he doesn't because he comes out of the police culture which has become more of an us-against-them mentality as the old white guard tries desperately to cling on to power in a changing landscape. This is the man who is supposed to be the point of the spear for law enforcement in Fort Bend County and he doesn't even know the fucking law is. He might want to review the oath he took upon assuming office. When he says "jump" he expects folks to ask "how high?" and not "why?"

The prosecutor he spoke to who said she would be glad to prosecute the owner of the truck might want to spend the weekend boning up on Con Law, particularly First Amendment jurisprudence. Might be the only thing between her and disbarment.

Now, if this is the way Mr. Nehls overreacts to a situation in which someone expresses an unpopular (at least in the land across the Brazos) opinion, what kind of judgment would he show when the stakes get bigger?

But, in a world where "Blue Lives Matter" is code for "I don't give a shit how badly the police mistreat people of color," what else should we expect. It will never cease to amaze me how much the folks who claim they don't want big government are more than happy to have that same government poke its nose into the business of those who say or do something that is unpopular with the great white mass.

Wednesday, November 8, 2017

Execution Watch 11/8/2017

Tonight the killing machine strikes again...

RUBEN CARDENAS, a Mexican national, was convicted of murdering his cousin, a teenage girl from the border town of McAllen. Cardenas' conviction must be tossed, say Mexican authorities and his attorneys, because police violated Article 36(1)(b) of the Vienna Convention on Consular Rights when they failed to notify him of his right to contact the Mexican embassy after his arrest.

To read the Texas Court of Criminal Appeals' opinion, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, November 8, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Monday, November 6, 2017

Just kill him

Today the Supreme Court told the State of Alabama that it's okay to kill Vernon Madison, who was convicted of the 1985 murder of a police officer. While Mr. Madison is aware that he is being executed because he killed a police officer, Mr. Madison has no recollection of the murder due to a series of strokes he has suffered in prison.

Mr. Madison is 67 years old. He is legally blind. He cannot walk. And he is incontinent.

What is the point?

Other than he is black and we're talking about the Old Confederacy.

Justices Ginsburg, Breyer and Sotomayor wrote concurring opinions. Justice Ginsburg wrote that the question of whether a person who cannot remember their crime should be executed is a question that has never been addressed by the court. She also wrote that she thought the question deserved a "full hearing."

Justice Ginsburg, this was your chance. Just because the issue hasn't been raised before the Court before doesn't mean you have to vote with your colleagues to authorize a state to kill an elderly infirm man. You might as well just tell the victims of a mass shooting that your thoughts and prayers are with them and then move on to the next issue.

Justice Breyer pointed out that the execution of elderly prisoners is one that is likely to arise again and again going forward. He said he didn't think it prudent to develop rules for the execution of the elderly. Instead he wrote that we need to question the constitutionality of the death penalty.

Good for you, Justice Breyer. You had a chance to do just that and you passed. If you were serious about your qualms on the constitutionality of the death penalty you would dissent on every case upholding the death penalty and say why - just like Justices Marshall and Blackmun. But you didn't have the courage of your own convictions so you just went along with the majority.

Words are cheap. Especially when spoken by those in a position to act against an injustice. Killing Mr. Madison isn't bringing back a dead police officer. It isn't going to undo the trauma his ex-girlfriend went through. Killing Mr. Madison isn't about justice. It's about revenge. It's about a white power structure doing whatever it can to kill a black man.

And if you support the death penalty, that's what you are really supporting.

Thursday, October 12, 2017

Execution Watch 10/12/2017

Tonight the State of Texas will kill again...

ROBERT PRUETT, 38, has steadfastly claimed that others framed him in the 2002 killing of a corrections officer who was stabbed to death at a prison near Corpus Christi. An execution date in August 2016 was stayed by the Texas Court of Criminal Appeal. The new killing date was set after the appeals panel ruled that DNA testing would not have changed the outcome of his trial. He has been in prison since the age of 15, having been convicted of being an accomplice on a murder committed by his father.

For more information on Mr. Pruett and his case, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Thursday, October 12, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Monday, February 6, 2017

The bankruptcy of ideas

President Trump's nominee to the Supreme Court, Neil Gorsuch is a real throwback. Really a throwback.

He is a self-described "originalist" when it comes to interpreting the Constitution. In other words, in Mr. Gorsuch's reality, the words and phrases in the Constitution mean just what they meant back in the late 18th century.

Let's see. Back in the 1780's slavery was legal in the United States. Women didn't have the right to vote. There were no cars, there were no computers. The United States was a rural agrarian society. There was also a belief back in the early days of the Republic that the Bill of Rights only applied to the federal government - not to the individual states. There was also no such thing as judicial review by the Supreme Court until Chief Justice John Marshall went looking for a justification for his ruling in Marbury v. Madison and created it out of whole cloth.

Does this mean that a Justice Gorsuch would hold any warrantless search to be unconsitutional? Would he find that the NSA's data dumps to be illegal since computers weren't something contemplated by the Founding Fathers? Will warrentless searches of cars go away since there wasn't such a thing back in George Washington's days?

Will we return to the 18th century notion of an arrest instead of looking for any way possible to not call an arrest an arrest in order to keep evidence admissible?

Will the ruling in Citizen's United be cast upon the ash heap of history since the notion of the corporate person did not exist in 1789? And what about this quaint notion that campaign contributions are a form of free speech?

Does Mr. Gorsuch believe that every armed conflict the United States has entered since the end of World War II was illegal since there was no declaration of war from Congress?

Mr. Gorsuch's self-proclaimed judicial philosophy is completely vapid. It is but a fig leaf to cover a naked attempt to turn back constitutional protections of the accused, minorities and women. Now, as much as I disliked Antonin Scalia, he made some rulings in 4th Amendment cases that protected the rights of the accused. Of course those rulings were a small counterpoint to his rulings that favored the rights of the powerful over the rights of the powerless.

This bankrupt philosophy isn't a philosophy at all. It is merely a justification to carry out a libertarian agenda that will seek to unleash capitalism at its worst.

Tuesday, October 4, 2016

Execution Watch: 10/05/2016

Tomorrow night the State of Texas will return to its barbarous ways and fire up the killing machine for the first time in six months...

BARNEY FULLER, from Lovelady, Texas, was sentenced to death after he pleaded guilty to killing a couple who were his neighbors. At the time of the 2003 slayings, Fuller was awaiting trial on charges of making a terroristic threat against them. He was arrested at his home after a nearly nine-hour standoff with police.

For more information on Mr. Fuller and his case, click here.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, October 5, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at: > Listen

Friday, September 23, 2016

Could you be a bit more polite, please?

How come after the murder of an unarmed black man by the police the first thing folks want to do is caution (mostly black) protesters to be calm and non-violent?

Why isn't anyone issuing the came precautions to the police?

Social change isn't an easy process. Sometimes it takes a revolution. It can be very messy.

Change was very slow during the Civil Rights Era. Martin Luther King, Jr. and his followers were arrested, beaten and assaulted throughout the old Confederacy. They maintained their stance of non-violence. And the beatings continued.

Things changed when Malcolm X came onto the scene. Suddenly the white power structure had to deal with the threat of violence. Negotiating with King became a more practical tactic than turning cops and dogs on men, women and children.

Senators and representatives were scared to death that an armed insurrection would break out in the streets. They had to find a solution and they had to find it quickly.

Without Malcolm X it is likely that the Civil Rights Act and Voting Rights Acts would not have passed - or would have been far more watered down than they were.

Attacking police officers makes a bad situation worse, it's stupid and puts everyone at risk.

While Judge Carter's sentiments may be in the right place, the fact is everyone whose skin isn't white is already at risk - regardless of what they do or don't do. (Of course you could read the statement to be an indictment of police officers attacking others; but I doubt that's what was meant. I guess it all depends on what word you choose to put the emphasis.)

Terrence Crutcher's car broke down on the highway. The police came to the scene. Mr. Crutcher had done nothing wrong yet all of sudden, once the police showed up on the scene, he became the suspect. The cops assumed that he was guilty of something and treated him as such. There was no justification for their actions. There was no justification for Officer Betty Shelby to murder him. But there it was.

Keith Lamont Scott was sitting in his car waiting for his son to get off the school bus. Cops were in his housing project to serve a warrant on someone else. Suddenly, just because he was sitting in a car, Mr. Scott became a suspect. The cops assumed he was guilty of something and treated him as such. And I don't give a fuck whether he had a gun or not because he had a permit to carry one. But now he's dead, too.

Now let's contrast these incidents to the standoff in Oregon where Clive Bundy and his armed band of right wing fanatics (and freeloaders) occupied a national park. Despite the fact that Mr. Bundy and his fellow criminals were breaking the law, despite the fact that they were armed and threatening to use their weapons, they walked out of the park alive. The police used extra caution to ensure there was no bloodshed.

That sure as hell wasn't the case in Tulsa, and it wasn't the case in Charlotte. You can draw your own conclusions as to why the standoff in Oregon didn't result in multiple deaths. I've already drawn mine.

And now here we are in 2016, watching as the police continue to murder unarmed black men and those who raise their voices in protest are told to keep it down. Keeping it down hasn't done much good to this point. I'm not going to lecture anyone on how to challenge the system because when the masses say enough is enough, it's over. The existing power structure might want to prepare in case it's the fire next time.

Thursday, September 22, 2016

Tallying up the cost of mass incarceration

Carimah Townes just wrote a very interesting short piece in Think Progress about the true cost of mass incarceration. While we spend $80 billion a year on mass incarceration at the federal, state and local levels, the true cost of mass incarceration is likely closer to $1 trillion.

A study conducted by Washington University looked at all of the hidden costs of mass incarceration. Reformers don't even begin to take into account lost wages and lost long-term earnings. They don't take into account the costs borne by the families of the incarcerated in travel expense, missed work and money sent for commissary accounts.

Then we have social welfare costs for the families left behind. Since modern prisons do a good job of teaching inmates how to commit crime when they get out we have the cost of former inmates getting back in trouble. Finally, a child who has a parent in prison is more likely to find himself following the same path.

“We find that for every dollar in corrections costs, incarceration generates an additional $10 in social costs. More than half of the costs are borne by families, children and community members who have committed no crime.” -- Carrie Pettus-Davis, researcher

We have used mass incarceration as a tool of social control. We have used it as a tool for removing black folks from society. It is time to do away with it.

Hillary Clinton was the head cheerleader when her husband pushed his crime bill that accelerated the process of mass incarceration. That is a legacy she cannot escape from. Donald Trump is a champion of mass incarceration as well.

It is high time we choose a different path. It is time that we decriminalize drug addiction. It is time we stop locking up folks for non-violent crimes. It is time to reform our bail system.

Wednesday, September 21, 2016

The commodification of the law

On Tuesday I spent more time that usual on Twitter. It might have had something to do with it being my birthday and feeling a bit unmotivated to work all afternoon. This is one of the tweets that piqued my interest.

I encourage you to ponder on this from - "You are a media company first. Only after that do you sell legal product." Huge impact

It might be more appropriate for me to say that it disturbed me.

I don't care how cutting edge attorneys want to be. I don't care how much the whiz kids say the practice of law has changed. But if this message is true, then we are nothing but soap salesmen. And that's troubling. Very troubling.

The last time I checked, the basis of our profession is helping those who are unable to help themselves out of a problem. Our duty is to provide advice to our clients to assist them in deciding the best way to resolve their issue. For those of us who practice criminal law, our duty is elevated as we hold not only our client's future in our hands, but the future of his family as well.

Those clients don't give a fuck about your social media presence. They don't give a fuck about the content you pump out through various channels. They only care about one thing - can you get their ass out of the fire.

That's not the same as someone deciding what brand of soap, or soda or paper towels to buy.

If you accept what this ClioCloud conference (or whatever the hell it was) is telling you, then you are turning the practice of law into a commodity. And, if you're turning the practice into a commodity you are selling your clients down the river.

Commodities are fungible goods. They are interchangeable. They are produced for mass consumption.

The practice of law is not for mass consumption. Every client is different. Every case is different. Your duty as a lawyer is to analyze the case, examine the law and advise your client. Your duty isn't to pump out more content. Your duty is not to market the hell out of your firm. Your duty isn't to fluff up your resume and pump up your qualifications to get the next check.

And just what the fuck is legal "product?" Representation is not a product. Representation is a relationship.

Beer is a product. Toilet paper is a product. Adult diapers are a product.

Do you really want to debase yourself, and your profession, to the degree of equating the service you provide with adult diapers?

You are a lawyer first. You must ground yourself in the basics of your craft. If you want to be a trial attorney you need to study motion practice, jury selection, argument and cross-examination. If you want to be good at it you will continue to study as long as you practice (hence the term "practice"). When you get really good you will share your skills and insights with other attorneys in order to raise the bar for everyone.

If you subscribe to the bullshit in that tweet, then why did you waste your money going to law school? You could have save yourself a lot of headache, a lot of hassle and a lot of money by going straight into marketing.

I understand part of what's going on here. For too many years law schools have been pumping out class after class of newbie lawyers despite market saturation. They did it because their income stream was guaranteed by the government. The glut of new attorneys has driven down wages and increased competition for clients (tort reform hasn't helped matters). And into this void have come the marketers selling promises they can't keep.

And if we continue down this path, as my colleague Scott Greenfied would say, soon we'll all be walking down the sidewalk wearing hotpants.

Wednesday, September 14, 2016


Some shit you just can't make up. Here is an e-mail I received on Tuesday afternoon.

Dear Colleague,
The 2016 HBA Judicial Preference Poll was sent out yesterday, and I’m writing you to ask for your support as District Attorney.
Since being first appointed to office and later elected in a landslide, I have focused on increasing the HCDAO’s ability to prosecute new classes of criminals like human traffickers, and money launderers who profit from dangerous industries like drug cartels, prostitution and illegal gambling. I have also grown the office by over 100 new positions and exponentially increased training for staff in all areas of the office ensuring the implementation of new technologies and strategies to stay ahead of criminals. 
While seeking justice, I have been honored to receive the following accolades: the Association of Women Attorneys’ 2014 Premier Women in Law Award, MADD’s 2014 and 2016 Policy Setter Award, Waco ISD Advanced Academic Services’ 2014 Early Leader Award, Crime Stoppers’ 2015 Johnny Klevenhagen Award, and the NAACP 2016 A.L.E.X. Award for outstanding commitment to equal justice and legal excellence.  I was also named by as one of the 2015 Top 30 Influential Women of Houston.
I humbly ask for your support as District Attorney in the 2016 HBA Judicial Preference Poll that should be in your email inbox already.

Thank you,
Devon Anderson

I'm speechless.

Tuesday, September 13, 2016

Prison inmates sue Texas over conditions

I'm sure there are plenty of folks out there who don't give two damns whether or not the state provides air conditioning for its inmates in state prison.

But they should.

Our entire prison system was born of the idea that the best way to "cure" a person of criminal intent was to take them out of the environment that bred that intent and educate them in the honest ways of the world. So we built penitentiaries out in the middle of nowhere.

Then somewhere down the line the idea came about that prisons should be about punishment, not rehabilitation. So we made life harder for inmates and stripped them of their dignity all in the name of that Old Testament trope "an eye for an eye" or some bullshit like that.

Then we decided that society was best served when we just plain eliminated folks from society who had shown a penchant for misbehaving (I know I am painting a very broad stroke). We decided it was better to just lock 'em up and throw away the key since neither of the first two schools of thought seemed to be working.

Not coincidentally, this movement toward removing folks from society sprung up as the courts decided that the Constitution applied equally to black folks as well as white folk. Prisons took their place as one of our preferred modes of oppression. The move over the last two decades toward mass incarceration is nothing but a tool of social control. That is Bill Clinton's true legacy.

And that brings us back to Texas where a group of inmates has filed suit against the state alleging that the conditions in Texas prisons amount to cruel and unusual punishment. Specifically the lawsuit focuses on the lack of air conditioning in Texas prisons.

Now we could debate all day long on sentencing and parole and prison conditions, but I would hope that we could all agree that forcing folks to live in cramped quarters in the Texas heat without air conditioning is beyond cruel.

"All of the people that tend to die are the sickest and the most fragile among the inmates. What makes what's going on reprehensible is that the department knows this. We're asking the court to force the Texas Department of Criminal Justice to reduce the temperatures to a safe and livable amount." -- Jeff Edwards, lead counsel

Sure, there are people around Texas who don't have air conditioning - but that doesn't matter when it comes to how the state treats those entrusted to its care. Food, health care and sanitary conditions in prison are already deplorable around the state. Why don't we remove the potential deadly consequences of heat stroke from the sentences of those behind bars?

Let us not forget that those are people behind bars. They are men and women with families and friends. We can't continue to treat them as nothing but a number.

Saturday, September 10, 2016

Victory at Standing Rock (sort of)

Last weekend the company building the Dakota Access Pipeline tore up sacred land following the filing of court documents by lawyers representing the Standing Rock Sioux people. It was done deliberately in order to destroy the evidence in the ground and it was done knowing it was likely a federal court would issue a restraining order in the case.

When their plan was discovered, instead of backing down and halting the destruction of the sacred lands, the pipeline builders sent security guards with attack dogs into the crowd and assaulted the people who were trying to preserve the land that our government stole from them over and over and over again.

As I am having problems embedding the video, click here for video footage of the attack courtesy of Democracy Now!

But now there is good news, sort of. On Friday, a federal judge continued the American legacy of stealing the land of the Native Americans by refusing to stop construction of the pipeline - though he did halt construction in a small area. But later, the Department of Justice, the Department of the Interior and the Army announced that construction of the pipeline on lands bordering Lake Oahe would be halted immediately. The Army Corps of Engineers also called for consultation with Native Americans on all projects that would go through their lands.

While it is a victory. It is also far too little, far too late. President Obama could have interceded in this matter before the violence of last weekend. But he chose not to do so. After holding his finger in the wind for months he finally shut down the TransCanada XL pipeline project (as symbolic a gesture as it was), but without all the hoopla of the establishment environmental groups, the struggle against the Dakota Access Pipeline went unnoticed by most folks.

This administration, and the administrations before it, are too wedded to the oil industry and its money to clamp down on the destruction of the environment and the destruction of Native American lands. It is only when an army of white surburbanites raise the banner of fighting climate change that Obama looks up. In this instance it was just a bunch of indians who raised a stink. Not worth bothering with, I suppose.

It is beyond shameful what our government has done to the Native Americans over the past 3 centuries. We have stolen their lands again and again. We have massacred them. We have destroyed their hunting grounds. All of this in the name of manifest destiny - the ultimate in white supremecist doctrine.

It's a trifecta!

Harris County DA Devon Anderson may truly be the gift that never stops giving. In addition to the dumpster fire which is Precinct 4, in addition to the state's "expert" witness, Dr. Fessessework Guale, now we have Devon Anderson's Facebook ad for her re-election campaign.

Well I guess, based on the message, that someone informed Devon Anderson that what she did put a judge in a bad position. But why anyone had to point that out to her I don't know because Devon Anderson used to be a judge - up until Barack Obama's election, that is. She should be familiar with the Texas Code of Judicial Conduct which makes this little episode all the more troubling.

I tried to download the video yesterday before it was taken down but I was, apparently, unsuccessful. I am bothered by the fact that Devon Anderson deliberately put a judge in a position that violated the canons of conduct. And I don't care whether or not Devon Anderson is the person who maintains the Facebook page and posts videos and such. The page has her name on it and she is ultimately responsible for the content on the page.

I wish I had made a screen print at the time so I could at least post the photo - but life is full of shoulda, woulda, coulda moments.

Friday, September 9, 2016

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

Thursday, September 8, 2016

Stepping in it

Oh what a mess Harris County DA Devon Anderson has found herself in. As has been reported in local media outlets, over the last nine years some 21,000 pieces of evidence were destroyed in Harris County Precinct 4. All of the evidence was supposedly destroyed by one deputy - Christopher Hess - who has since been fired.

But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.

Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.

Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.

But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.

Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?

There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?

If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.

Ms. Anderson and her minions have shown they cannot be trusted.

Thursday, September 1, 2016

An attack on discretion

In theory, a judge should make his or her decisions on the bench without regard to politics. In theory, a judge should be shielded from politics in order to make the best decision in a given case - not the popular decision.

Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.

We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.

Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.

Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.

Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.

Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.

Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.

There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.

Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.

Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.

A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.

An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.

State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.

Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.

As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.

What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.

Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.

Tuesday, August 30, 2016

A false patriotism

I guess Melissa Jacobs of Sports Illustrated just can't help herself. She is so oblivious to the world around us that she buys into the notion that patriotism conflates with support for the military.

I understand that the world of professional sports (and college to a large degree) spews this trope by parading veterans and soldiers in front of crowds and by dressing athletes in camouflage gear and flag decorations. The message is quite clear - to be patriotic you must go all-in with the military.

I hate to break it to you, Ms. Jacobs, but that message is bullshit.

Patriotism has nothing to do with support for the military. In fact one could make the argument that not supporting the military in its current state is the most patriotic thing one could do. You see every military action since Harry Truman committed two of the worst war crimes in history has been unconstitutional.

The last declaration of war by Congress occurred in December 1941 after the Japanese attack on Pearl Harbor. After that Congress just said fuck it and let the President do whatever the hell he wanted to do with the military.

In the meantime the United States military has become an occupying force in over 100 countries. The United States military has propped up some of the worst right-wing dictatorial governments in history. The United States military has murdered innocent men, women and children all over world - from the Korean peninsula to southeast Asia to the Middle East. Members of the United States military have been sent to advise right-wing forces around the world on how to unseat leftist governments who get in the way of money-hungry U.S. corporate interests.

Take a look at a map of U.S. military interventions since World War II and you will see a path of destruction with people of color as the target. Go to the library and do a little reading of Latin American history and see what good has come out of U.S. militarism.

The United States military is nothing more than the advance arm of American capitalism and it points its weapons at those who oppose the onrush of imperialism.

Besides, Ms. Jacobs, why would anyone support an institution that sends a nation's young people off to die for the benefit of corporate interests and an older generation that rejects peaceful coexistence? It's an incredibly stupid concept if one stops and thinks about it for a second.

But that's exactly why the NFL and other sports leagues glorify the military.

Take off the rose colored glasses, Ms. Jacobs, and wake up to the real world.

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.