Friday, December 8, 2017

DA asks Governor to grant clemency

Texas, like many other states in the South, has an unhealthy fascination with the Old Testatment's call for an eye for an eye. Well, to an extent. It's long been the case that an eye for an eye applied mainly to black defendants convicted of murder while white defendants convicted of murdering a black man seemed to escape Biblical wrath more often than not.

Texas even went above and beyond when the felony murder statute made any person involved in a felony offense where a person was murdered subject to being killed by the state.

Back in 1996, Jeff Wood got himself caught up in the maelstrom when he was convicted of murder of a convenience store clerk in Kerrville - even though he was sitting outside in the truck while his friend, Daniel Reneau, shot and killed the clerk.

The prosecutor in that case, Lucy Wilke, asked the jury to sentence Mr. Wood to death for his role in the murder. Now Ms. Wilke is the Kerr County District Attorney and has had a change of heart. So to have the police chief of Kerrville, David Knight, and State District Judge Keith Williams. They all signed a letter to Governor Greg Abbot asking him to grant Mr. Wood clemency and change his sentence to life in prison.

In 2016, Mr. Wood was scheduled to be murdered by the State of Texas. As his execution date approached there was an uproar in the state legislature - from both sides of the aisle - about the scheduled execution. There were also calls to change the law of parties to eliminate the provision allowing a jury to sentence a defendant to death if they thought he should have anticipated that a second felony might flow from the first.

Those efforts failed in the most recent legislative session.

While you might argue that any person who participates in a felony should be culpable for any murder that might occur during the commission of the felony, sticking a needle in the arm of someone who didn't pull the trigger is a bit of a reach.

Regardless of what you might think of Mr. Wood, he is not the person who made the decision to kill the clerk. He didn't intentionally or knowingly cause the death of Kriss Keeran.

Strapping Mr. Wood down on a gurney and pumping poison into his veins isn't going to bring anyone back. It's not going to ease anyone's pain. It will not fill the hole in anyone's life.

It would, instead, make everyone involved complicit in a disproportionate response to an unfortunate incident.

I think the reason that Republican members of the state legislature got behind the effort to halt the execution is they felt that killing a person who didn't pull the trigger would only give more ammunition to the those of us who want to see an end to the death penalty.

All eyes are now on Greg Abbot. But don't expect him to grant clemency. Mr. Abbot is a true believer who thinks it makes him look tough to order an execution carried out.

Wednesday, December 6, 2017

Let them eat cake

Yesterday the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about the baker who refused, on religious grounds, to bake a wedding cake for a same sex couple.

Amy Howe over at SCOTUSblog did an excellent analysis of yesterday's questioning from the Supremes. She believes the court will split (again) 5-4 in favor of the baker but wonders just how narrowly they will craft the opinion. She based her analysis on the change in tone of Justice Kennedy's questions from start to finish.

First, I must point out, once again, that religious belief is still the most popular justification for discrimination. Now I could go on and on quoting portions of the Bible in which Jesus preaches a message of equality and love and brotherhood. But I'm not.

Jack Phillips likes to call himself a christian. But he believes that the holy word gives him the right to discriminate against those whom he doesn't like. The latter day charlatans who preach that homosexuality is a sin worse than any other act like they are quoting the word of god when they launch into their hateful spiel. The only problem is the book they are quoting from has been translated countless times from multiple languages. There's no guarantee that the words they are quoting in 2017 are the same words written in the original texts.

But we digress.

The issue is whether a privately run business has the right to decide whom they wish to provide with services. This is different from the argument in the 1960's that private buses, trains, hotels and restaurants were public carriers. Mr. Phillips claims that forcing him to make a cake for a same sex wedding would somehow violate his right to free speech. I'm not really buying that one because food is not speech. Food is food and food is for eating.

Does requiring him to bake the cake violate his right to freedom of religion? As far as I can tell, no one is telling him what to believe or how to do it. However, would requiring him to bake the cake trample upon his right to the free exercise of his religion? That is a much closer question, I think.

What does it mean to exercise one's religion? Baking and selling cakes is a commercial enterprise, not a religious one. Maybe he says he's spreading the word of god by baking cakes - but is that exercising one's religion?

And what if in exercising that religion a person, or entity, intentionally discriminates against another based upon that person's race, sex, ethnicity, national origin or sexual orientation?

And, as an aside, at what point do we finally acknowledge that religion serves more to divide us than to unite us? White protestant churches were very prominent in the fight to preserve Jim Crow segregation in the South. All of the major protestant denominations split in the 19th century over the question of slavery.

Back in college I took a class on sociology and religion and our professor played for us a recording of an Emo Philips routine that I have looked for off and on for years -- and finally found it.

There are some serious issues that need to be addressed in this case. The Court must decide how much discrimination in private commercial enterprises is acceptable. If the Court decides it is acceptable then the Court must decide whether the enterprise wishing to discriminate must give a reason for its choice. If so, the Court must decide where to draw the line for a legally valid rationale for discrimination. Finally, the Court must decide which groups can be discriminated against for which reasons. It remains to be seen whether the Court will develop a balancing test to determine how large a community has to be in order to permit discrimination.

Regardless of the decision, the law of the land will most likely be determined by the vote of one justice - Anthony Kennedy. Not quite what the Founding Fathers had in mind, I daresay.

Monday, December 4, 2017

Ignorance is disgusting

Last week Donald Trump once again displayed his ignorance about how the criminal (in)justice system works in this country when he tweeted out that the verdict in the trial over Kate Steinle's murder was disgraceful. Attorney General Jeff Sessions opened his mouth and displayed his ignorance when he proclaimed that the murder was the result of San Francisco's status as a sanctuary city for immigrants.

Jose Ines Garcia Zarate was acquitted of the charge of murder in a month-long trial in San Francisco, though he was convicted of being a felon in possession of a firearm.

Now, I don't recall Mr. Trump expressing any outrage at jury verdicts in which police officers were acquitted for killing unarmed an unarmed black man. Quite the opposite, he was quite happy. We can all be angry at a jury for the decision they made but, unless you were in the jury, your view of the case can be quite warped.

Mr. Trump seemed upset that the jury was not told that Mr. Garcia Zarate had crossed the border illegally five times. Well, I've got news for you, Mr. President, such a fact is inadmissible in a murder trial. You see Mr. Garcia Zarate was tried for the specific offenses related to the death of Ms. Steinle and, therefore, the only evidence the jury heard was related to those offenses. You see, Mr. President, in this country (as flawed as our criminal (in)justice system is) we try folks on the evidence related to the crime with which they are charged.

Were the jury to have heard evidence regarding Mr. Garcia Zarate's immigration status they may have made a decision based on something other than the evidence regarding Ms. Steinle's death. They may have been asked to convict a man for murder for no other reason than he wasn't born in this country.

Now that would have been a disgusting verdict.

A jury doesn't hear all the evidence because some of it, sometimes a lot of it, isn't relevant to the case at hand. It is not uncommon for a jury to be excused from the courtroom while the attorneys argue over the admissibility of evidence before the judge. Those reading the newspaper or watching the news (or in attendance) are then made privy to information the jury never heard and will never consider.

The jury that heard the case wasn't trying to make any political statements. Their sole duty was to hear the evidence presented and to make a decision as to whether or not the government had proven their case(s) beyond a reasonable doubt. Just because a jury acquits a person doesn't mean they don't think a crime occurred. It means, instead, that they have more than a reasonable doubt, based on the evidence presented, that the government proved its case.

The jury's job isn't to convict someone - and it isn't to acquit someone. You may think a jury got it wrong, but that is how we decide cases the parties cannot work out on their own. And, in a murder case, sometimes the hardest thing to prove is that the actions of the defendant were intentional. And even though motive is not a required element of a murder case, the absence of a motive can raise reasonable doubt in the mind of a juror.

So, Mr. President, the jury's verdict wasn't disgusting. It was what it was. Using your bully pulpit to try to intimidate future jurors is disgusting.

And as for Mr. Sessions, you took an oath to uphold the Constitution and to seek justice. You're not happy with the verdict. Okay, I get that. However, threatening to file federal charges against Mr. Garcia Zarate is not seeking justice. It is called vindictiveness.

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.