Friday, March 23, 2018

Oklahoma to change its method of execution

In the never-ending saga of state's trying to find ways to kill inmates, the state of Oklahoma has announced that it will being using inert gas since it's no longer able to obtain the drugs it uses for lethal injection. As a result of their inability to obtain the drugs, Oklahoma has had an execution moratorium in effect since 2015.

According to Joe Allbaugh, the director of the Oklahoma Department of Corrections, his office will spend the next 90 to 120 days preparing the documents for the protocol. It would then be up to the Attorney General, Mike Hunter, to approve the protocol.

Last April the Oklahoma Death Penalty Review Commission issued a report calling for the moratorium to remain in place until such time as the state reformed its death penalty process. The commission also called for the use of a one-drug barbiturate for future executions.

Mr. Hunter is on board with inert gas as the agent of death. Use of inert gas would bypass the need for physicians to prescribe or administer lethal doses of drugs to inmates. The gas would also be easy to obtain. According to Mr. Hunter, a person who is exposed to an excessive amount of inert gas would experience fatigue, dizziness, loss of consciousness and then death. He claims the use of inert gas would be "the safest, best and most effective" way to kill inmates.

However, in its Guidelines for the Euthansia of Animals, the American Veterinary Medical Association says that the use of nitrogen for the killing of turkeys, chickens and pigs is effective but that it's not appropriate for other mammals. According to the AVMA, inert gases "create an anoxic environment that is distressing for some species."

No one from the state has ever conducted any kind of testing to determine how to deliver the lethal dose of nitrogen. Or whether it should be released gradually or all at one.

But that's not going to stop Oklahoma. Despite conducting very little research, the legislature passed a bill authorizing the use of nitrogen in executions. Why? Because it's available and it's cheap.

The problem with changing the method of execution from lethal injection to inert gas is that there's no effective means of testing the method. The other problem is that when methods are changed it's generally to make the death penalty more palatable for the public.

Regardless of how "humane" you want to make the mode of execution, the fact remains we are still talking about killing people in the name of the state. As we continue to see folks  exonerated on the basis of new evidence or prosecutorial misconduct, the notion that there are adequate safeguards in place to prevent an innocent man from being executed is naive.

See also:

Hager, Eli "Why Oklahoma plans to execute people with nitrogen," ABA Journal (March 16, 2018)

Wednesday, March 21, 2018

Captains (not so) courageous

Let me just say it now, politicians, by and large, are not the most courageous folks out there. In fact they are pretty downright cowardly because they are too scared of pissing off small groups of voters.

It's only once a politician decides (or, as you will see later, has it decided for them) to leave public office that they regain the ability to speak what they believe. We've seen it with Republican congressmen who wouldn't criticize Donald Trump until after they announced their retirement from office.

In Harris County right wing political organizations in the northwestern part of the county seem to rule the roost when it comes to primary elections. These groups publish "slates" of candidates for their wingnut readers to vote for. Most of these groups put their endorsement for sale to the highest bidder. Others "sell" their endorsement to the candidate that toes their line.

These newsletter endorsements are important for any budding Republican officeholder in Harris County since very few folks in the electorate have the slightest idea who any of the judicial candidates are - and most don't care so long as they have an R after their name on the ballot.

Jay Karahan has been the judge of Harris County Criminal Court at Law No. 8 since 2003. As a result of this month's primary election, he will no longer be a judge come January 1. Over the past 16 years he has been involved in primary and general electoral politics in Harris County. He knows how the game is played. And not once in the past 16 years has he stood up and complained about the way the Republicans decide who will represent them in the general election.

At least not until now.

In his guest column in Big Jolly Times (a local wingnut blog), Judge Karahan goes off on the backroom politics that determine who gets endorsed and who doesn't. He states in his piece that he wrote it long before he lost his primary election, but it never saw the light of day until after the smoke had cleared.

There is much merit in what he has to say and there is much to criticize about kingmakers who demand that judicial candidates kowtow to their right wing views instead of following the law. But why are we only seeing this after Judge Karahan has been retired by the wealthy whites up in the northwestern suburbs of Houston?

The outrage he feels is real, but it comes across as sour grapes after a defeat.

And now we have the story going around that Gov. Greg Abbott was opposed to the bathroom bill that wingut Republicans were pushing during the last legislative session. Funny how the guv'nor never came out and said he was against the bill. You see, that would have taken courage. That would have required going against the wingnuts and Teabaggers who dominate the Republican party in Texas. So Gov. Abbott apparently decided to keep it on the down low. But then, how would he explain placing the bill on the agenda for the special legislative session that summer. Something just isn't adding up.

If you want to be an agent for change, you have to be willing to stand up and be castigated for what you say. You have to be willing to go down in flames at the polls if that's the price to be paid for being true to yourself. Colin Kaepernick made a decision to protest against police violence and brutality. That decision cost him his career.

His decision to take that knee was courageous. Exposing the dirty underbelly of local politics after losing an election isn't.

Tuesday, March 20, 2018

Let them eat cake

There's a very strange law in Alabama that allows a sheriff to pocket the money not spent from the inmate food account. In other words, if a sheriff can feed the inmates in his jail for less than what he's given to spend, he gets to do whatever he wants to with the rest.

In Etowah County, inmates are lucky to get meat once a month or so. More often than not their meals consist of beans and vegetables.

Meanwhile the sheriff, Todd Entrekin, and his wife own properties worth almost two million dollars, including a $740,000 home in Orange Beach.

The good sheriff says he's just following the law and if people don't like it, they can go ask the legislature to change it.
“As you should be aware, Alabama law is clear as to my personal financial responsibilities in the feeding of inmates. Regardless of one’s opinion of this statute, until the legislature acts otherwise, the sheriff must follow the current law.” -- Todd Entrekin
This is nothing but old fashioned graft with the blessing of the legislature. Taxpayer money funds the inmate food accounts. That taxpayer money then finds its way directly into the pockets of a sheriff with an incentive to provide inmates with the least expensive meals possible. Sheriff Entrekin's claims that he has consulted with a nutritionist about the meals he serves doesn't change the analysis.

The fact that he wants us to believe that he is duty-bound to do what he's doing demonstrates either that Sheriff Entrekin is delusional or that he doesn't give a fuck about what happens to the people in the Etowah County Jail.

Over the past three years Sheriff Entrekin has pocketed more than $750,000 from the inmate food account. This is on top of his annual salary of $93,000. That's right, over the last three years he has made almost three times his salary by cutting inmate meals to the bone. Those figures alone should tell you all you need to know about the way things work down in Alabama.

There is no good reason that the person in charge of the jail should have a personal financial incentive to cut corners when it comes to feeding the inmates. There is no good reason why taxpayer money not spent on meals should end up in the sheriff's bank account.

As a postscript, the person who brought this to light was arrested and is now in the Etowah County Jail.

Monday, March 19, 2018

Did Georgia just murder an innocent man?

On Thursday night the State of Georgia likely executed a man who was innocent of the crime for which he was convicted.

Carlton Gary died after suffering a lethal overdose of compounded pentobarbital at the hands of the state.

In 1986, Mr. Gary was convicted of the 1977 murders and rapes of three elderly white women in Columbus, Georgia. He was suspected of seven murders and rapes during an 8-month period between September 1977 and April 1978. He was dubbed the Stocking Strangler.

One of the witnesses against him was 71 year-old Gertrude Miller who was raped in her house but someone survived the attempted strangling. She testified that Mr. Gary turned on the light in her bedroom while raping her and that allowed her to identify him. It turns out that in Ms. Miller's first account of the rape there was nothing said about the light being turned on. She told police she didn't know if her rapist was white or black. She later identified another man as her rapist before trial.

Even though he was not charged with the rape of Ms. Miller, then District Attorney, Bill Smith, told the jury that the same man had committed all seven rapes. He told the jury that the reason Mr. Gary was charged with only three of the murders is because there were only three houses in which his fingerprints were (supposedly) found. As it turned out, this was a very dubious claim.

However, when, years after his conviction, the sheets from Ms. Miller's bed were tested, the DNA recovered from those sheets was not a match for Mr. Gary. So, if we believe the state's theory of the case, either Carlton Gary wasn't the stocking strangler or the stocking strangler didn't rape Ms. Miller.

But that's okay, said the state. You see, Mr. Gary wasn't on trial for raping Ms. Miller so whether it was his semen on her sheets or not, it didn't prove his innocence.

Oh, but then there was that semen sample taken from the sheets of one of the women whom Mr. Gary was convicted of raping and murdering that had never been tested. But in 2010 it turns out that the lab analyst who was tasked with testing the sample to determine if it was a match to Mr. Gary's DNA did something that can only be described as bizarre. Using his own semen as a "control," he smeared it over the sample to be tested -- and the test equipment.

I don't know. Maybe he got off on forensic science and came all over the lab at the mere thought of testing such an important piece of evidence. Or maybe he didn't want it tested for whatever reason. Now I can think of a lot of ways to get around the sticky situation of having a sample that doesn't match the DNA specimen you want it to, but smearing your own semen over the slide is a new one to me.

Prior to that episode, in 2009, when Mr. Gary was first scheduled to be killed, his attorneys sought a court order to test biological evidence from the original trial only to be told by prosecutors that all such evidence had been destroyed because it was a biohazard. But that didn't exactly turn out to be true.

After the "discovery" of the evidence, the state fought tooth and nail to prevent it from being tested. And why might the state object to the testing of evidence? Maybe because they are more interested in maintaining a conviction that seeing to it that justice is done? Maybe because once that floodgate opens, there would be more convictions that could be questioned with DNA testing? Maybe because the courtroom isn't the crucible of the truth that we are taught in civics class.

I could also mention that footprints found outside the window of one of the victims were too small to be Mr. Gary's and that bite mark evidence found on one of the victims didn't match his teeth.

But none of this matters anymore, because the State of Georgia said fuck it, we're killing him anyway -- and so they did.

There is no greater tragedy in our criminal (in)justice system than executing an innocent man. It's happened before. It will happen again. And it very likely just happened in Georgia.

Saturday, March 17, 2018

An interesting little read for a Saturday morning

Here's a little something interesting to read related to the use of forensic science to determine just how a woman died. If more so-called forensic experts were interested in what the science actually showed rather than trying to help the state make its case, we'd all be better off.

Click here to read about how the death of an elderly woman in an Indiana barn was solved by spots.

h/t Deandra Grant

Friday, March 16, 2018

Consequences, what consequences?

Alfred Brown spent a decade of his life on death row in Texas before he was exonerated by phone records found in a detective's garage in 2013. What makes this tale more chilling is the fact that the prosecutor who sought the death penalty in Mr. Brown's 2005 trial for the murder of Houston Police Officer Charles Clark and store clerk Alfredia Jones was made aware of the phone records prior to trial.

The prosecutor, Dan Rizzo, is now retired.

In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.

After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.

The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.

The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.

Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.

The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.

Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.

Well, let's look at that for a bit, shall we?

According to Section 19.02(b) of the Texas Penal Code, the murder statute:
(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
The death certificate of an executed inmate lists homicide as the manner of death. That is murder.

Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."

According to Section 15.01 of the Texas Penal Code:
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.

As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.

Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...

Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:

   Rizzo-3-12-18 by Paul B. Kennedy on Scribd

Wednesday, March 14, 2018

On schemes, whistles and influence-peddling

Poor Jeffrey Wertkin. He had it tough.

He left his job as an attorney with the Justice Department and took a gig with Akin Gump for a cool $450,000 a year. He didn't feel it was enough.

Even though he'd be making three times what he made at the DOJ dealing with whistle-blower suits, his pay would have been on the low end of what partners were making at the time.

And, you know, he's probably right. Akin Gump wasn't paying him $450,000 a year for his brilliant legal mind or his courtroom skills. They were paying him because having a former fed in the firm is good for business. Akin Gump figured that that alone would be enough to get current clients to fork over more money in monthly retainers and to get some new business on board.

But nevermind that. Let's get back to poor little Jeffrey.

He hatched a plan to put more money in his pocket.

His plan was to steal secret whistle-blower suits and sell them back to the companies named in the suits. There were qui tam suits in which a private citizen files suit, on behalf of the government, alleging that a contractor has defrauded the government. In a qui tam suit, the government litigates the suit and the citizen who brought the suit gets a cut of the recovery. These suits are filed under seal and sent to the DOJ for review. The company only finds out they're the target of the suit once it's made public.

Mr. Wertkins idea was to extort money from the targets of the suit in exchange for the sealed documents. I know you're asking yourself, what could possibly go wrong with this scheme.

What went wrong is the feds figured out what was going on. I suspect one of the targeted companies called up the DOJ to ask them what was going on and then one thing led to another.

In the end, Mr. Wertkins was taken into custody in a hotel room wearing sunglasses and a wig and waiting for his money.

When asked why he did it, Mr. Wertkins told the court that he felt under a tremendous amount of pressure to perform for his new employer at a salary that he just didn't think was adequate for his experience and know how. But, then again, no one put a gun to his head and told him to leave his government job for a position as a partner in an actual law firm.

Mr. Wertkins pleaded guilty and was sentenced to 2 1/2 years in prison. His wife asked the judge if he could avoid prison and just go around to law schools and tell students about his tale of woe. I guess the judge thanked her for her input and just said no.

While the saga of Mr. Wertkins may be amusing to some and might serve as a warning for other less scrupulous attorneys, one thing it highlights is the revolving door in government. White shoe law firms and lobbying firms right over the privilege of hiring attorneys and other government officials when they decide they've had enough of the long hours and low pay that defines government work. These firms then advertise to their existing clients and their potential clients that they have yet another connection to a government agency.

These connections are the lifeblood of these firms and they are the tools by which companies, advocacy groups and others try to influence legislation in ways that help their bottom lines. This is where democracy is undermined.

h/t @CJMcKinney

Monday, March 12, 2018

You're my home

Steven Long was a janitor at CenturyLink Field in Seattle, home of the Seattle Seahawks. As befits many jobs in our society, this one didn't pay Mr. Long enough to afford a place to live. So he lived out of his truck.

In Seattle a car cannot remain parked in the same spot for more than 72 hours (unless I suspect that spot is the driveway of a home). Mr. Long's truck was not in the best of repair and he was unable to move it so it was impounded.

Mr. Long sued the city claiming that because he was living out of his truck, the city could not legally impound his truck. He relied on Washington state's homestead law.

The city argued that the application of the homestead law was improper and that the city was well within its authority to impound the truck. The city denied that impounding the truck amounted to a forced sale of Mr. Long's homestead because there was no constitutional right to housing.

Mr. Long prevailed when the judge ruled that his truck was his home.

This decision comes on the heels of a decision in Clark County, Washington, in which a court held that police officers violated a homeless man's 4th Amendment right to privacy when they lifted up the tarp under which he was sleeping, found a bag of meth and arrested him.

The homeless are being criminalized as a result of gentrification and city's attempts to lure affluent whites from the suburbs to downtown business districts. The homeless are an inconvenience as well as a reminder that our economy hasn't come close to benefiting everyone in society.

First you get cities making it illegal for the homeless to camp under overpasses. Then you make it a crime to provide food to the homeless without a permit.

As a result of conservative lawmakers, funding to mental health providers, homeless shelters and homeless advocacy grounds have been cut to the bone. The minimum wage isn't even enough for a person to live on. We subsidize low-wage employers by proving food stamps, welfare and Medicaid to those who can't afford to live on the wages employers like Wal-Mart, McDonald's and the like pay.

These two court rulings out of Washington are evidence that at least two judges understand the new American economy and the criminalization of the poor.

Friday, March 9, 2018

Shocking, simply shocking

Judge George Gallagher in Fort Worth, Texas must have an affinity for the Middle Ages. Either that or the Spanish Inquisition.

You see, Judge Gallagher thought it was perfectly acceptable to order a defendant to be shocked with 50,000 volts whenever he gave an answer hizzoner didn't like.

Terry Lee Morris was on trial for soliciting sexual performance from a minor in 2014. On the first day of trial Judge Gallagher asked Mr. Morris for his plea. Mr. Morris objected to the shock collar on his ankle. He also informed the judge that he had a pending lawsuit against both the judge and his attorney, Billy Ray, with regard to the shock collar.

After excusing the jury, Judge Gallagher asked Mr. Morris if he was going to behave during trial. Mr. Morris pointed out that he had filed a motion to recuse the judge. Judge Gallagher then ordered the deputy to shock him. Once again the judge asked Mr. Morris if he was going to behave. Mr. Morris told the judge he was an MHMRA patient and the judge once again ordered the deputy to shock him. The judge kept berating Mr. Morris who accused the judge of torturing him. You can guess what happened next.

Mr. Morris left the courtroom and refused to return and his trial was conducted in his absence. As can be imagined, the jury convicted him and he was sentenced to 60 years in prison.

The Eighth Court of Appeals in El Paso reversed and remanded the case on the grounds that Mr. Morris' 6th Amendment right to be present at trial was violated by the judge's continual use of the shock collar.

Now, I think we can all agree that Judge Gallagher's handling of this matter was inappropriate and wrong. We might even agree that it was a violation of the 8th Amendment's ban on cruel and unusual punishment. It certainly resulted in a violation of Mr. Morris' rights under the 6th Amendment.

But that's not the end of the story. You see, there are more folks complicit in this matter than just the judge.

First we have Mr. Billy Ray who didn't object to the installation of the shock collar on his client. He didn't object - or say anything at all on the record - when the judge ordered his client to be zapped with 50,000 volts three times on the first day of trial. He also stood by and failed to object when the judge ordered the trial to proceed without Mr. Morris in the courtroom.

Mr. Ray's excuse was he was scared of his client. Well boo-fucking-hoo. This is the job you signed up for. We don't all get to defend the white collar criminal from the suburbs who drives the Lexus and sips expensive wine after dinner. We sometimes deal with some pretty nasty folks. But then, anyone who decides to do criminal defense work should be well aware of the nature of the clientele.

Mr. Ray's job at trial was to provide a vigorous defense for his client. That means making damn certain that the deck isn't stacked against him by the state or the court. Sure, the facts may be really bad, but the process needs to be fair. Mr. Ray's job was to make certain that Mr. Morris was afforded every right and courtesy possible during the trial. By standing by and allowing the judge to shock his client, Mr. Ray abdicated his role. By refusing to object to the judge's order to continue the trial without his client, Mr. Ray violated his ethical duties.

To be fair, Mr. Ray did file a motion to withdraw after his client filed suit against him. Judge Gallagher denied the request.

The prosecutor, Ms. Andrea Risinger, also deserves to be castigated in this matter. Under our ethics rules, the prosecutor has a duty to see that justice is done. That means the prosecutor has an affirmative duty to make certain that the process is fair to the defendant. Allowing trial to continue without the presence of the defendant makes a mockery of that duty.

Finally, the bailiff isn't escaping without criticism.  Yes, he is supposed to follow the orders of the presiding judge in the courtroom. However, surely the bailiff knew that what he was doing was wrong. He doesn't get to slide by claiming he was just following orders.

Monday, March 5, 2018

Open mouth. Insert foot.

Jimmy Blacklock was appointed by Gov. Greg Abbott to fill the vacant Supreme Court seat of Don Willett who was appointed by President Trump to sit on the 5th U.S. Circuit Court of Appeals. Mr. Blacklock's immediate prior job was as general counsel to Gov. Abbott.

Since Judge Willett's term expired in 2018, Judge Blacklock must stand as a candidate this November. His website is adorned with partisanship and highlights his stance as a wingnut. And now Gov. Abbott is going around telling folks that he knows how Judge Blacklock will rule on abortion-related issues because of his anti-abortion positions.

We like to pretend that our judges sit on the bench and make decisions based upon the law and the facts presented to them without regard for politics. That, of course, is a fiction (in large measure). Gov. Abbott's remarks cast aside that shroud of impartiality and case severe doubt on Judge Blacklock's ability to sit as an impartial arbiter.

You might expect the governor to know better than to tout his appointee's positions on issues that may come before the court given that Mr. Abbott once sat on the State Supreme Court. But, fear not, the governor has a long track record of being a hack who carries the water for insurance companies, the petrochemical industry and large corporations.

And, lest you forget, Gov. Abbott fought tooth and nail to defend the state's voter ID law which imposed some of the most stringent requirements for voting with the intent to restrict the ability of the poor, minorities and the elderly to vote.

Friday, March 2, 2018

Dancing with the stars

Once upon a time there was a strip club on the North Freeway called Fantasy Plaza. Now, believe it or not, drugs were sold at the club and men paid dancers for sexual favors. Shocking, I know.

The city had enough after awhile and began trying to shut the club down. As an aside, the city made an agreement with some other topless clubs to allow them to violate certain rules in exchange for some donations to the city's human trafficking initiative.

Last June, officers were investigating claims that a 16-year-old had run away from home and, thanks to a fake ID, got herself a job as a dancer at Fantasy Plaza. They had to check it out.

On June 9, 2017, undercover officers entered the club and noticed a girl dancing on a side stage who met the description of the missing teen - and who matched photographs provided by her mother. One officer decided it was time to go above and beyond the call of duty to close the case.

He walked around to the other side of the club and plopped $40 on the table for a lap dance from the minor girl. At some point while she was gyrating on his pelvic region he noticed a mole on her shoulder blade which allowed him to make a positive identification.

Just let that sink in for a moment. An adult male police officer sat on a chair and allowed a minor to simulate sexual intercourse with him under the guise of trying to ID her.

Let's see, what other methods could he have used?

He could have asked the girl her name.

He could have told the girl he believed she was a runaway and needed to see some identification.

If she refused to answer he could have taken her to the station to "straighten out" the mess.

Not one of those alternatives, though, offered him the opportunity to have a minor girl grind on his lap.

Wednesday, February 28, 2018

Constructing the plea mill

Documents obtained by the Houston Chronicle cast new light on the ways Harris County judges systematically refused to grant personal bonds to defendants for years. Many district judges instructed magistrates not to grant personal bonds to any defendant - regardless of the offense and the ability of the defendant to post bond. This is Step One in created a plea mill.

Today, after US District Judge Lee Rosenthal declared Harris County's misdemeanor bond schedule to be unconstitutional, three-quarters of the county's 8,700 inmates are in jail awaiting trial. Think about that for a second. There are more than 6,000 people behind bars who haven't been convicted of anything.

This process came to light when three Harris County magistrates, Eric Hagsteette, Jill Wallace and Joseph Licata III, during disciplinary hearings before the State Commission on Judicial Conduct. The complaints were filed by State Sen. John Whitmire (D-Houston). During the hearings the magistrates told commissioners that they were instructed by judges not to grant PR bonds.

The following district court (felony) judges instructed magistrates not to grant PR bonds on cases assigned to their courts:

  • Devon Anderson, former district judge and DA, 2006-2007
  • Mike Anderson, former district judge and DA, 2006-2009
  • Jeannine Barr, 182nd District Court, 2006-2017
  • Denise Bradley, 262nd District Court, 2012-2017
  • Marc Brown, former district judge and current Justice on the 14th Court of Appeals, 2012
  • Susan Brown, 185th District Court, 2006-2012
  • Katherine Cabaniss, 248th District Court, 2014-2017
  • Joan Campbell, former district judge, 2006-2012
  • Marc Carter, 228th District Court, 2006-2014
  • Caprice Cosper, former district judge, 2006-2007
  • Denise Collins, 208th District Court, 2006-2012
  • Mark Kent Ellis, former district judge, 2006-2017
  • Catherine Evans, 180th District Court, 2014-2017
  • George Godwin, former district judge, 2006-2007
  • William Harwin, former district judge, current county court judge, 2006
  • Belinda Hill, former district judge, 2006-2012
  • Joan Huffman, former district judge and current state senator, 1999-2005
  • Hazel Jones, 338th District Court, 2009 and 2012
  • Jan Krocker, 184th District Court, 2006
  • Renee Magee, former district judge, 2014
  • Michael McSpadden, 209th District Court, 2006-2017
  • Ryan Patrick, former district judge and current US Attorney, 2012 and 2014
  • George Powell, 351st District Court, 2017
  • Brian Rains, former district judge, 2006-2007
  • Herb Ritchie, 337th District Court, 2009-2012
  • Debbie Mantooth Stricklin, former district judge, 2006-2009
  • Don Stricklin, former district judge, 2006-2007
  • Brock Thomas, former district judge, 2006-2007 and 2014
  • Vanessa Velasquez, 183rd District Court, 2006-2007
  • Jim Wallace, 263rd District Court, 2006-2017
  • Michael Wilkinson, former district judge, 2006-2007

Each of these judges systematically deprived defendants of bond. Yes, in some cases, individual decisions to deny PR bonds - or bond in general - was correct given the nature of the allegation and the criminal history of the defendant. But, making it a blanket policy to deny PR bonds without taking into account the individual circumstances of each defendant is wrong - and it is a systematic denial of justice.

"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents. Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you can tell a young black man... They teach contempt for the police, for the whole justice system."
-- Judge Michael McSpadden, 209th District Court

Judge McSpadden even made a point of defending his position by blaming movements like Black Lives Matter for the problem. He hits all of the dog whistle talking points in his statement without taking into account the institutional racism found in law enforcement, police brutality and violence against unarmed black and brown men or the capricious nature in which bond decisions are made in Harris County.

No, Judge McSpadden, the contempt people of color feel for the criminal (in)justice system has more to do with the acts of those in charge of the system and the systemic racism inherent in the way our courts operate. Denying PR bonds to defendants because of the color of their skin or without regard to their ability to post bond breeds contempt for the system.

Monday, February 26, 2018

God told me I couldn't bake you a cake

Suffer (bring) the children to me.

Love your neighbor as you love yourself.

Do unto others as you would have them do unto you.

Those are some of the platitudes in the Bible with regard as to how to treat other people. But apparently not from the Bible that Cathy Miller of Bakersfield (CA) or her ilk read.

For you see, Ms. Miller is just the latest person to claim that her religious beliefs allow her to discriminate against those she just doesn't like. Amazing how we keep running into these folks.

Ms. Miller owns Tastrie's Bakery. A same sex couple came to her shop and asked her to make a cake for their wedding. Being more intent on discriminating against the couple than in making money, Ms. Miller refused. She said that her religious beliefs made it impossible for her to bake a cake for a lesbian couple.

The couple then filed suit against Ms. Miller, arguing that her refusal to make them a wedding cake was a violation of the state's civil rights statute. Ms. Miller, on the other hand, argued that making a cake was an artistic expression protected under the First Amendment which meant she could choose the customers for whom she was willing to bake a cake.

Kern County Superior Court Judge David Lampe ruled in Ms. Miller's favor stating that designing a cake was different than baking a cake as it was an act of artistic expression. He did caution Ms. Miller that she could not refuse to sell a wedding cake to a same sex couple.

But here's the problem. Whether a baker designs a cake specifically for someone or just bakes a cake to put in the display case is a distinction without much meaning. Baking a cake is baking a cake. You throw some ingredients into a bowl, you mix them up and you throw it in the oven. When it's done you take it out and ice it. It appears that the only difference would be whether the baker baked the cake before or after the couple ordered it.

What Ms. Miller did is no different that what white business owners did during Jim Crow and what bankers did for years afterward. She is refusing service because she doesn't like a customer because of her sexual orientation. That is no different than refusing service because a person is black or catholic or a woman.

The fact that she relies on her religious beliefs to just discrimination tells you everything you need to know about religion. The fact that a judge ruled that it was okay for her to discriminate so long as she waved a bible in the air tells you all you need to know about the pernicious effect of religion on civil society.

Thursday, February 22, 2018

UPDATE: Governor commutes death sentence

Less than an hour before Thomas Whitaker was scheduled to die, Gov. Greg Abbott commuted his sentence from death to life in prison. This followed the Texas Board of Pardons and Parole voting unanimously to recommend clemency for Mr. Whitaker.

I must admit that I am surprised that Gov. Abbott granted clemency based on his past actions and pronouncements regarding the death penalty.

For whatever reason, or reasons, he chose to spare Mr. Whitaker from death, I commend Gov. Abbott on his decision. Killing one more person won't bring anyone back to life and won't heal any of the wounds caused by Mr. Whitaker's actions.

Boobies are worse than school shootings

On February 21, 2018, students from Marjory Stoneman Douglas High School traveled to the state capitol in Tallahassee, Florida demanding action on guns.

The legislative session began with a prayer for the victims and survivors of the shooting. This should have served as foreshadowing of what was to happen.

Rep. Kionne McGhee, a Democrat, introduced a bill to ban assault weapons and large capacity ammunition magazines. The bill was brought to the floor for debate on Wednesday.

However, by a vote of 71-36, legislators voted not to debate the bill and it wasn't considered. So, even though there was a majority who would vote the bill down, those opposed to the bill didn't want to risk a public debate on the merits of it. And they had the gall to do it when the students who survived the shooting were in attendance.

But, not to despair, the legislature did vote for a bill to declare pornography a public health risk.

That's Florida for you. Where boobies are bad but guns are good. In other words, in Florida, the 2nd Amendment trumps all.

Wednesday, February 21, 2018

Execution Watch 2/22/2018

Tomorrow the State of Texas intends to murder another person...

THOMAS WHITAKER, 38. Mr. Whitaker was sentenced to death for conspiring with a friend in the fatal shootings of his brother and mother. His father, Kent Whitaker, was seriously wounded in the 2003 Houston-area attack. He forgave his son and has since lobbied prosecutors relentlessly to spare his son's life. Thomas Whitaker had undiagnosed mental health issues at the time of the attack, he said, and has proved to be a model prisoner on death row. While in prison, Thomas Whitaker earned a bachelor's degree by mail and was due to receive a master's degree shortly after the scheduled execution.

Thomas Whitaker offered to plead guilty to two counts of murder in exchange for two life sentences, but Fort Bend County prosecutor Fred Felcman decided to go for the death penalty instead.

"I have seen too much killing already,” Kent Whitaker told the American-Statesman. “I don’t want to see him executed right there in front of my eyes. I know Tricia and Kevin would not want him to be executed. I can’t imagine seeing the last living part of my family executed by the state, especially since all the victims didn’t want that to happen in the first place.” 
Whitaker said he, his immediate family and members of Tricia’s family urged Fort Bend County prosecutors to choose a life sentence instead of the death penalty, but to no avail.
This case raises an interesting issue that we see in the courthouse on a regular basis. Prosecutors will listen to victims when they want a harsher sentence. They will cut of plea negotiations with a comment to the effect of the victim won't agree to that deal. However, when the victim asks for leniency or for a case to be dismissed, the prosecutor isn't interested in what they have to say.

Should prosecutors have taken Kent Whitaker's views into account when making the decision to pursue the death penalty against Thomas Whitaker?

On Tuesday, in a surprise move, the Texas Board of Pardons and Parole unanimously recommended that Mr. Whitaker be granted clemency. It will now fall on Gov. Abbott to decide whether to carry forward with the execution or to commute Mr. Whitaker's sentence to life in prison.

Since Abbott calls himself pro-life, my money is on the execution going forward.



Unless a stay is issued, Execution Watch will broadcast live:
Thursday, February 22, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

For more information see:

"His son tried to kill him; now father seeks to halt execution," Austin American-Statesman (1/12/2018)

Tuesday, February 20, 2018

Checking the medicine cabinet

From the Texas Tribune we have an accounting of the stockpile of drugs Texas has on hand for executions. What we don't have, thanks to the reactionary legislators we are infested with, is the name (or names) of the compounding pharmacies that supplied the drugs to the state.

The names of those pharmacies should be released because residents of this state have a right to know if their pharmacist is assisting the state in killing people. Besides, if state sponsored murder is ordained by God as being good and proper, the people behind the scenes from the pharmacists to the doctors to the nurses to the person pushing the plunger should all have their names made public. The very fact that the state shields their identities tells you all you need to know about the ethics of the death penalty.

I have said it before, and I will say it again. Any doctor, nurse or pharmacist that participates in an execution (in any way) on behalf of the state should be stripped of their licenses because they are violating their oaths and their ethical duties as medical professionals.

Texas currently has 12 doses of pentobarbital stashed away in the medicine cabinet. Eight of those does will expire (according to their labels) on July 20. The other four doses will expire on November 9. Interestingly enough, the expiration dates on six of those doses was extended by the state on January 22, 2018.

There is no reason given for the extension and no explanation of what happens to the drug after it reaches the expiration date. Does the drug lose its potency after the expiration date? Does it happen suddenly or gradually? What effect does an expired drug have on an inmate? What's the criteria for extending an expiration date? Are the drugs testes to determine their efficacy or potency?

With four executions scheduled between now and the middle of May, it's a good bet that the drugs that had their lives extended are drugs that will reach their expiration date on July 20.

These are the moral compromises we make as a society when we decide it's right for the government to take the life of another. If you are religious you should be appalled because it's an out and out violation of one of the Ten Commandments. If you consider yourself to be pro-life, you should be appalled because it's the taking of a life. If you believe in limited government you should be appalled because their is nothing more intrusive the state can do then take the life of someone.

We allow the state to kill in our name because we are angry with someone for what they did. It has nothing to do with punishing someone for their crimes -- it's nothing short of revenge. We are (or at least should be) better than that and one day our children or grandchildren will look at us with contempt for what we sanctioned and ask us why.

Monday, February 19, 2018

The Gun Show

WNYC began producing a podcast entitled More Perfect in 2016. It is an exploration into the Supreme Court.

Last October they did an episode called "The Gun Show" about the history of 2nd amendment jurisprudence. I recommend it highly.

You will find that our modern day interpretation of the 2nd amendment is a fairly recent phenomenon.

Afterwards, ask yourself why the 2nd amendment is treated as sacrosanct while the 4th amendment is treated as an inconvenience.

Saturday, February 17, 2018

Losing leverage

The purpose of bail is to ensure that the accused appears in court to answer the charge against him and to ensure the safety of the community.

When courts leave their bail decisions up to a chart without regard to a defendant's ability to pay, the courts are abdicating their responsibility to uphold the law.

Harris County is currently under a court order from US District Judge Lee Rosenthal to release nonviolent misdemeanor defendants regardless of their ability to post a cash bond. Fourteen of the sixteen misdemeanor court judges in Harris County (all Republicans) are waging war against the order because it gums up the works.

On January 31, Dutchess County Judge Maria Rosa ruled that setting bail for defendants without regard to their ability to pay is unconstitutional. The case was brought by the New York Civil Liberties Union on behalf of Christopher Kunkeli who was held for almost three months in the Dutchess County jail because he couldn't afford the $5,000 bail in his case. He eventually pleaded guilty to a misdemeanor with an offer of time served.

According to the NYCLU, 71% of the inmates at the Dutchess County jail had not been convicted of anything. They were behind bars because they couldn't afford to post bail.

Of course the local District Attorney, William Grady, didn't see a problem with holding folks pending trial. It makes his life easier because after a while, most inmates will plead guilty to almost anything in exchange for getting out of jail.

Mr. Grady contends, much like the Harris County judges, that actually following the law is "misguided." What he means, of course, is that having defendants sleeping in their own beds removes the leverage his office had over them when trying to resolve their cases. Now his office might be burdened with the task of proving their guilt beyond a reasonable doubt.

Friday, February 16, 2018

It's a swing and a miss

And it's strike two against Harris County in their efforts to maintain an unconstitutional and discriminatory bail policy in place.

Last June, US District Judge Lee Rosenthal ordered Harris County to change the way in which those arrested for non-violent misdemeanors are treated. Out went the bond schedule that failed to take into account the individual financial circumstances of the accused. In came a system in which folks who couldn't afford bail were released on personal bonds and pretrial release.

Fourteen of the county misdemeanor judges joined together to challenge Judge Rosenthal's order. As noted here, Judge Mike Fields removed himself from the rest of the Republican judges recently.

Now the Fifth US Circuit Court of Appeals has issued its ruling and it affirmed Judge Rosenthal's order. This should be the death blow to the county's attempt to reinstitute the plea mill as no one would ever come to the conclusion that the Fifth Circuit Court is anything other than conservative at heart.

While the Court stopped short of saying that everyone charged with a misdemeanor has the right to pre-trial release, Harris County is required to conduct an individual assessment of each detainee.

The stance of the judges fighting to overturn Judge Rosenthal's order should come as quite jarring when compared to their tame campaign promises to see that justice is done.  The justice these judges have in mind is coercing defendants who can't afford to post bond to plead guilty to criminal acts without having the opportunity to investigate the facts and to hold the state to its burden of proof.

Now the leverage the judges and prosecutors had over many defendants is gone. And that's a very good thing, no matter what the Republican judges tell you between now and November.

Thursday, February 15, 2018

Robb Fickman is mad as hell...

For those of you who aren't aware, the Harris County Criminal Courthouse suffered severe damage as a result of Hurricane Harvey. The building received some water on the ground floor and basement. But the bulk of the damage was caused when chilled water pipes burst when the building lost power. Oh, that and the backed up sewer lines (you can't make this stuff up).

The building has been flawed since the day it opened. During Tropical Storm Allison the basement was flooded and took out all the computers and electronics. Who would have thought that the basement of a building built on the shores of Buffalo Bayou would have flooding issues?

I know real estate is expensive in downtown Houston, but a 20 story criminal courthouse doesn't make any sense - especially when most courts call docket at the same time. The elevators were a mess. Security lines often stretched outside the building as the sensitivity of the metal detectors was cranked up.

When the courthouse was closed after Harvey there were calls for it to be torn down and rebuilt. There were calls by others to turn it into a county office building and to build a new courthouse nearby.

Those ideas were all rejected by the Harris County Commissioner's Court (don't ask - it's the county equivalent of a city counsel) who proclaimed the county didn't have the money to do the right thing. The decision was made to shutter the building for a year (now it's looking like two) to remove the mold and fix the damage.

Now the misdemeanor courts are doubled up in the undersized (and severely outdated) Family Law Center while the felony courts are in an uneasy room sharing arrangement with the civil courts in the Civil Courthouse. Meanwhile defendants' lives are made harder by the staggered dockets and lines to get into the courthouses.

But, lo and behold, when it came time to authorize an expenditure of $105 million to renovate the Astrodome into a convention space, there was money!

Now, don't get me wrong. I love the Dome. I grew up attending baseball, football and soccer matches there. I've been to the rodeo, the supercross and I even watched the first Hearns-Leonard fight there with my dad. The coolest thing, though, was the old Houston Press Dome Run - the race finished on the 50 yard line.

But the building has been closed for almost ten years. It sits abandoned next door to the generic NRG (or whoever the sponsor is today) Stadium as a reminder of the greed of Bud Adams and the other owners of professional sports franchises.

I will leave you with Robb's own words:

I hope the Defense Bar, The DAO and the Judiciary vocally express their outrage at this public stupidity and slap in the face. 
Commissioners Court has shown that they do not care about the extreme hardships created for everyone involved in the criminal justice system. Maybe it’s time Commissioners Court heard more vocal uproar from those they were hired to serve.

Wednesday, February 14, 2018

More fun with forensics

You can change the name of the lab. You can give them fancy new wraps on their SUV's. You can move them to another building in downtown Houston.

But apparently you can't change the culture of the crime lab itself.

Megan Timlin had been with the Houston Forensic Science Center for two years up until she was fired on January 31, 2018 for shredding her original field notes in a homicide case. During a technical review of her report in that case she was asked to return to the scene to correct some "administrative errors" that had been found in her report.

She returned to the scene, took more notes, amended her report and shredded her original field notes.

Oops. That wasn't the crime lab's policy now, was it?

As a result, Ms. Timlin was fired. The forensic analysis in the case will be redone and the lab will report Ms. Timlin's actions to the Texas Forensic Science Commission as suspected professional misconduct.

According to the lab, the only case affected by Ms. Timlin's actions were the homicide case she was working on, but Ms. Timlin's work on about 100 other cases will be audited.

Okay, in the grand scheme of things, this is a fairly minor problem for the crime lab. However, those original notes were discoverable and there is now no way to determine what may have been changed from the first visit to the second visit. That could be ripe material for cross-examination down the road.

What are the odds that this is the first time Ms. Timlin - or any of the other analysts - destroyed their notes? I suppose it's possible that it had never happened before and that she was just unlucky that her transgression was discovered. But it doesn't seem likely.

Rarely is anyone caught doing something the first time they do it. And if seemingly clear lab rules are being violated with regard to retaining copies of a report, what other lab rules are being flaunted?

As we know, a crime lab is nothing more than the arm of the police  that develops evidence to support arrest decisions and supports efforts to prosecute defendants. Errors in their work can send innocent people to prison. And the problem is only exacerbated by Harris County judges who seem to think that errors in testing and administrative procedures go only to the weight of the evidence and not its admissibility.

It's a sad state of affairs when the civil courts are stricter with regard to the admissibility of scientific evidence than the criminal courts are. I guess money is that much more important in Harris County than lives.

Tuesday, February 13, 2018

Of split-second decisions

Whenever an unarmed person is shot and killed by police we hear the same old tropes about officers having to make split-second decisions. Grand jurors get to play around with a simulator in which they have to make a decision whether or not to shoot whenever cases involving police killings of unarmed people are to be heard.

In West Virginia, an officer made a split-second decision NOT to pull the trigger and it cost him his job.

On the evening of May 6, 2016, Officer Stephen Mader of the Weirton (W.Va) Police Department answered a domestic disturbance call. A visibly disturbed man named Ronald Williams was at the scene.  Officer Mader ordered Mr. Williams to show him his hands. Mr. Williams was holding an unloaded handgun.

Officer Mader ordered Mr. Williams to drop the weapon. Mr. Williams said he couldn't and asked Officer Mader to shoot him. As it turned out, the 911 caller was Mr. Williams' girlfriend. She called police and told the dispatcher that Mr. Williams had threatened her with a knife. Before the police arrived he retrieved the unloaded gun from his car and told his girlfriend that he was going to make the police kill him. Suicide by cop as we call it.

Officer Mader made the choice not to shoot Mr. Williams who was shot and killed moments later when he waved his gun at two officers who came to the scene after Officer Mader.

One month later Officer Mader was fired from the Weirton Police Department. The police department maintained that Officer Mader was fired because he failed to meet probationary standards and because he had difficulties in critical incident reasoning. Local officials claimed that the incident involving Mr. Williams had nothing to do with the firing.

Mr. Mader sued the city, alleging that he was fired in retaliation for his decision not to shoot Mr. Williams.

Yesterday, the ACLU announced that the city and Mr. Mader had reached a settlement agreement and that the city would pay Mr. Mader $175,000 in exchange for him dismissing his lawsuit.

And this highlights one of the problems with police culture. Instead of shooting Mr. Williams as the result of a split-second decision, Mr. Mader made the decision not to act rashly. He didn't know the gun was unloaded - that fact wasn't revealed to any of the officers at the scene. He made the decision not to escalate the situation in hopes that it could be resolved peacefully. For that he was called a coward by a fellow officer. For that decision not to escalate, he was fired.

Just think about that for a second.

What does that tell us about other police killings of unarmed black men? If someone had exercised the restraint that Mr. Mader did on that May night in 2016, there would have been fewer killings.

Monday, February 12, 2018


Possibly the dumbest tweet ever...

.: "For the first time in generations Americans have reason to believe that our intelligence and law enforcement agencies gravely misuse the powers we have given them."

What else remains to be said?

Maybe if Tucker Carlson spent time with people other than his circle jerking friends at Fox he might realize that millions of Americans live in apprehension of the police.

Police shootings of unarmed black men.

Disparate sentencing for drug cases.

Racial profiling.

Stop and frisk.

For-profit bail bonding.

The Edward Snowden revelations.

The police were used throughout the South during Jim Crow and the Civil Rights Movement to beat and intimidate those who were fighting for their right to vote and participate in politics.

But now that wealthy white men with ties to Donald Trump are being investigated, well, that's the straw that broke the camel's back. Really?

Friday, February 9, 2018

Tennessee sheriff gets off on killing

Ordinarily, if you tell someone to shoot someone else - and they do - you're going to find yourself in hot water. But Sheriff Oddie Shoupe of White County (you can't make up this stuff), Tennessee is no ordinary person.

You see, Sheriff Shoupe was recorded telling officers to shoot a motorist rather than risk damaging police vehicles to run him off the road. The motorist, Michael Dial, was shot and killed by a deputy after his car ran into a ditch following a chase that rarely topped speeds of 50 mph.

“I love this shit,” Shoupe said, apparently unaware that his comments were being picked up by another deputy’s body-worn camera. “God, I tell you what, I thrive on it. 
“If they don’t think I’ll give the damn order to kill that motherfucker they’re full of shit,” he added, laughing. “Take him out. I’m here on the damn wrong end of the county,” he said.

Now Sheriff Shoupe is on the wrong end of a federal lawsuit alleging that his department violated Mr. Dial's civil rights and that Mr. Dial was the victim of excessive force.

The most shocking thing about this episode isn't that the sheriff said what he said, but that he was dumb enough to say it when his voice was being recorded. And just so there is no misunderstanding, Mr. Dial was pulled over for a traffic violation  - that's it. He was executed for committing a traffic violation.

Now whether you want to argue that Mr. Dial brought this upon himself by driving away from the scene is up to you. The point remains that he was gunned down for a traffic violation because the sheriff didn't want to scratch the paint on a patrol car. You may be a law and order type who doesn't think the Blue Lives Matter movement isn't a polite cover for racism, but there is nothing that Mr. Dial did that deserved the death penalty.

Now the files of every police shooting under Sheriff Shoupe need to be opened up and examined to determine if there is a pattern of this type of behavior in White County. Every officer involved shooting should now be suspect.