These are the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.
We are now a quarter of the way through the 2013 major league baseball season and the Houston Astros are stinking up the joint even worse than expected. Somewhat unexpected is the number of times that new owner Jim Crane has stepped in it.
First it was his dynamic pricing model. Then he jumped on the fans because they wanted to spend his money on better players. And then, just this past week, he axed the Astros Wives' charity gala.
As an aside, after seeing the Astros blow a 4-2 eighth inning lead in Bad News Bears's style last night, I was struck by manager Bo Porter's decision to put Hector Ambriz on the mound in relief. I mean, what could possibly go wrong when you trot out a relief pitcher who puts on an average of almost two runners an inning?
Through 22 homes dates thus far, the Astros rank 26th in attendance. Minute Maid Park holds around 43,000 people - to date the Astros are averaging 19,445 per game. And that's tickets sold, not fannies in the seats.
That tells me that Crane's dynamic pricing scheme isn't working. The idea (at one point) was that ticket prices in certain sections of the stadium would fluctuate according to demand. Theoretically, when overall attendance is down ticket prices would go down and vice versa.
Under the Crane model prices never go down. As I've written before, the Crane model charges fans based on who the Astros are playing. When the Yankees and Red Sox come to town ticket prices go way up. They go up a little bit when the Rangers come to Houston. But prices never fall below the face value for anybody else. Take a look at those attendance numbers and you can figure out what's wrong with the Crane plan.
So, my advice to everyone who likes baseball is to come out to see Bud Norris and Jose Altuve play because chances are neither will be with the team by the end of the season. Don't say you haven't been warned.
By now it is quite obvious to the most oblivious observer that President Obama has failed miserably in his attempt to close down the prison at Guantanamo Bay. You'll remember that he told everyone who would listen back in 2008 that one of the first things he would do as president was close it down.
Like many of his other promises for progressive reform, his promise to close down GITMO has fallen to the wayside. He has been far too interested in killing innocent men, women and children with remote controlled drones to put any effort into closing Guantanamo. He was more concerned about smoothing over the summary execution of three US citizens than in ending the program of torture on Cuba.
If you follow the mainstream media you probably aren't aware that more than 100 of the detainees at Guantanamo are on hunger strike to protest the conditions in the prison. These are men who have been held without charge for, in some cases, over a decade. History will not judge the US kindly over its treatment of the detainees - the constant hysteria for the war on terror has been used to dull the American people's senses when it comes to concepts such as due process and rule of law.
Now the government is fearful that its power to compel the detainees to do what it wants them to is waning. In order to show the detainees who's boss, prison officials have begun force-feeding 30 of the hunger strikers.
This memo obtained by Al-Jazeera spells out the program of forced compliance. You see, it just wouldn't do for a detainee to drop dead from starvation at GITMO. That might just garner a bit of press attention (though just a bit). That might just pique the American public's interest in what is being done in our name. It might re-ignite a debate on the regime of torture started under Bush and accelerated under Obama.
For those detainees who are subject to being force-fed a liquid diet, they are strapped to a chair while a feeding tube is fed through their nose down to their stomach. A mask is placed over the detainee's face and liquid is fed through the tube for up to two hours. Afterward the detainee is placed in a so-called "dry cell" and observed for 45-60 minutes for any signs of induced vomiting. If the detainee vomits he is placed back in the chair and the process is begun anew.
These forced feedings are nothing more than an extension of the torture regime that detainees around the world have been subject to - ever since the Bush administration decided that torture wasn't torture if you called it something else. If there were justice in this world, George W. Bush would sit in a courtroom in The Hague facing charges of human rights violations at the International Criminal Court. Maybe one day Barack Obama could be his cellmate.
The men who are being held illegally at GITMO are adults who are more than capable of making medical decisions for themselves. They have the right to withhold their consent from being force-fed. They have the right to refuse to eat. They have the right to die with dignity, if they so choose. Sadly it is the only form of protest that is garnering any attention to the ways in which the United States is imposing the law of rule.
The Obama administration and other apologists for GITMO claim that the remaining detainees can't be released because there are no assurances they won't immediately take up arms against the United States. Well, to be quite honest, who the fuck could blame them? If they weren't already inclined to take up arms you can bet they sure as hell are now after the way they have been treated and the myriad ways in which the US government has violated their human rights.
It's time to man up, President. Either the men in Guantanamo have committed crimes against the United States or they haven't. If they haven't, it's time to set them free. If they have committed crimes, set their cases for trial.
If President Obama had any humanity he would put an end to the forced feeding of hunger strikers and he would address the problems at Guantanamo. Unfortunately for the detainees, they don't have an effective lobby and they don't have millions of dollars to funnel to Super PACS. All they have are their lives to give in their cause.
While the State of Texas continued its barbaric ways of strapping down inmates and killing them, there are developments outside the Lone Star State that should give us hope that one day this practice will end.
Jeffrey Williams was murdered at the hands of the state last night. He had been sentenced to die for the murder of Troy Blando, a Houston police officer. Mr. Williams never denied shooting Mr. Blando, but he claimed he thought Mr. Blando (who was in plain clothes the night of his death) was trying to rob him so he shot him in self defense.
Once again, the killing of an inmate did not lead to the resurrection of his victim and did not do anything to erase the loss of a family member or loved one. It only served to demonstrate the the state has the power to take a life.
Maryland is also the sixth state in the last six years to repeal capital punishment. State by state we are reaching a point at which the death penalty will one day be recognized as "unusual." Thus far 18 states have abolished capital punishment and a bill repealing Delaware's death penalty has passed the state senate.
A similar bill, HB 1703, was introduced in Texas by State Rep. Jessica Farrar (D-Houston) and co-authored by Rep. Alma Allen (D-Houston) and Rep. Lon Burnam (D-Fort Worth). The bill would repeal the death penalty in Texas and make life in prison without the possibility of parole (what Jeff Gamso calls "death in prison") the maximum punishment one could receive. The one problem with the bill is it would only repeal the death penalty going forward and would do nothing to stop the murder of those currently on death row in Texas.
In a fiscal analysis of the bill, the Office of Court Administration stated that repealing the death penalty would save money because non-death penalty capital felonies cost far less to prosecute (including fees for appointed counsel, investigators and experts since defendants facing the death penalty are disproportionately poor) than death penalty cases. However, the OCA couldn't state how much would be saved since no one keeps tabs on the money we spend to kill inmates.
The drug has never been tested for its efficacy in killing inmates and could cause permanent damage as well as lead to inhumane executions according to death penalty lawyers in Arkansas.
Between states repealing the death penalty and foreign drug companies refusing to sell drugs used for lethal injections in the United States, the death penalty is slowing being squeezed from both sides. Add the extraordinary numbers of exonerations that have taken place over the last ten years and you have a mix that could spell the end of legalized murder in the United States.
No one likes bad calls, Jeff, but they are a part of the game. But, the very structure of baseball makes it a very poor candidate for instant replay. There are few natural breaks in a baseball game. Football, on the other hand, is tailor-made for instant replay. In college football an extra official sits in the press box and reviews each and every play and notifies the officials on the field if a replay needs a closer look.
Every umpire misses a bang-bang play at a base during the course of a game. It's inevitable. In those instances he almost has to make up his mind before the play is even completed whether he's calling the runner out or safe. It just so happens that sometimes plays don't end up quite the way the man in blue anticipated.
Should replay be utilized to make certain those calls were correct? It's probably not a bad idea. There aren't that many of those plays during the course of a regular game and the disruption to the flow of play shouldn't be too bad.
But where are we going to draw the line? Right now the line is drawn to determining whether a hit was a home run or not. But those, too, are rare controversies. The biggest area of concern is what happens behind the plate. Calling balls and strikes has much more impact on the game than any other call an umpire makes. That umpire crouching behind the catcher has the ability to make the strike zone bigger or smaller from day-to-day. Just how much of the outside corner is he going to give? What about those pitches that come in belt-high? Is the zone going to extend to the top of the knee or the bottom?
Just how would Mr. Passan propose we handle the calling of pitches? Who would make that decision? From what angle would they make it? Would every pitch be subject to review or just those calls the managers didn't like? Who would make the ultimate call - an umpire in the press box, an umpire in New York or the crew on the field?
And just how much more time would this add on to games that are already taking far too long to play. The problem isn't pitchers taking their own sweet time between pitches. It isn't batters stepping out of the batter's box between every pitch. It isn't managers overmanaging their pitching staffs. Nope, the problem is the number of commercials that air between innings and during pitching changes.
In order to justify the ever-escalating cost of airing major league baseball, cable and broadcast networks are trying to put more and more commercials into their telecasts. As a result, games are lasting longer and longer with no end in sight. Expanding the use of instant replay will only make the situation worse.
Mr. Passan points to two incidents that occurred last week as justifications to expand the use of instant replay - a disputed home run and the ignoring of a rule.
The Oakland A's lost a game last week because the umpires ruled a home run to be but a double off the top of the wall. The replay clearly showed that the ball went over the wall and that the game should have been knotted up. However, after blowing the call the first time, the crew watched the replays and proceeded to uphold their decision. So much for instant replay getting it right.
In the second incident, umpires allowed the Houston Astros to make a pitching change before the pitcher on the mound had even faced a batter. Oops. The rules state that a pitcher must pitch to at least one batter before he can be taken out of the game. Ultimately it made no difference because, the Astros being the Astros, Houston lost the game. In that instance there was nothing expanded instant replay could do - the problem was an umpire who didn't know the rules.
I love baseball but it's gotten to the point where it's next to impossible for me to sit down and watch a game on TV because of how much time it takes to watch. I'm much happier sitting in the stands soaking up the atmosphere and eating sunflower seeds.
Expanded instant replay is the last thing baseball needs. We need to be looking at ways to shorten games, not lengthen them. Besides, unless you replace the home plate umpire with a high-speed camera and a computer, you are only addressing superficial issues. There is no way to make replay work in the context of baseball and it's time we stop trying.
There have always been bad calls in baseball and I'm fairly certain there always will be. But, over the course of a game, a series or the season, the bad calls tend to even themselves out. Let's not make baseball even more unwatchable by expanding instant replay.
The rationale is that there are too many folks dying on our roadways every year. The NTSB keeps saying there are more than 30,000 fatalities that are alcohol-related annually. The number is misleading because all it takes is for one person involved in the accident - regardless of whether that person is driving or at fault for the accident - to have alcohol in their system to qualify the accident as alcohol-related.
A study from the Insurance Institute of America projects highway deaths could be reduced by a little over 7,000 a year if the legal limit were reduced to .05. Now let's crunch some numbers. According to the IIA, traffic deaths would be reduced by less than 25% by reducing the legal limit by more than 33%. That, my friends, doesn't compute. What is shows is the diminishing utility of making DWI laws more severe. Their numbers make a poor case for lowering the limit in that you will be punishing far more people for a very modest reduction in lives lost.
If we are going to accept the premise that lowering the permissible alcohol concentration will reduce the number of deaths on the roads, then why not go all the way and institute a zero-tolerance policy? If a .08 concentration is bad then why stop at .05? If we are going to make the assumption that someone is "under the influence" at .05, won't they still be "under the influence" at .02?
Interestingly enough, both MADD and NHTSA have expressed their opposition to the proposed change. It's probably fair to infer that MADD is betting the public would turn against it if the laws were tightened further. Their focus now seems to be getting repeat offenders off the roads.
Are we looking at another push by the federal government to thumb its nose at the 10th Amendment and force the states to lower their per se limits or find their highway funds cut? Or will the states find themselves pressured to create a new offense of driving while impaired (or DWI Lite)?
There are already far too many traps for motorists. We need to be looking at ways to reduce the number of people who filter through the criminal (in)justice system. We don't need more folks under supervision or behind bars. We don't need more folks with convictions on their records.
What will become of the roadside DWI calisthenics? Will NHTSA authorize another pseudo-scientific attempt to "validate" these exercises for alcohol concentrations of below .08?
The problem with a per se limit is that it's a fiction. There are folks out there who lose the normal use of their mental or physical faculties after just one drink. There are others who can drink much more before the debilitating effects of alcohol take hold.
Now make no mistake about this, I want to keep drunk drivers off the roads. But I don't want to see more people cuffed and stuffed into the backs of police cars when they have done nothing wrong. I sure as hell don't want to see more forced blood draws -- though with the current backlogs we are experiencing, any more blood draws would come damn close to flooding the system.
The NTSB idea is a bad one - but that never stopped a legislator from picking up the ball and running with it. Now is the time to nip it in the bud.
I'm opposed to the death penalty. It serves no useful function and is but a reminder of how barbaric we were in the past.
I have been running updates from Execution Watch on this blog because I think it's important that people know what their government is doing under cover of dark. You won't find much in the mainstream media about upcoming executions - only a blurb or a short story reminding us just what a bad fellow the prisoner was after he's dead.
Yet once again Execution Watch has failed to keep its data base updated. Yesterday I posted an update on John Quintanilla who was set to be killed by the state tonight. Yesterday afternoon I searched the web to see if anything had changed.
It had.
Mr. Quintanilla's execution had been rescheduled for July 16, 2013 long before Monday's post ran. Miraculously the Execution Watch website now lists the correct date for the execution.
Once again I apologize for the misinformation. I need to figure out a better way to put out the information in the future.
Tomorrow's scheduled execution of Jeffrey D. Williams is still on.
JEFFERY D. WILLIAMS. Condemned in the 1999 shooting death of a Houston Police officer who was trying to arrest him for driving a stolen Lexus. The officer was alive when backup arrived but died later of his wounds. A delay in the arrival of an ambulance sparked a probe of the Houston Fire Department's dispatching procedures. The contention was that the officer might have survived had he received treatment sooner. Investigators found that the dispatcher initially misdirected the ambulance to a location miles away.
RADIO PROGRAM PREVIEW EXECUTION WATCH Unless a stay is issued, we'll broadcast ...Wednesday, May 15, 2013, 6-7 PM CT KPFT Houston 90.1 FM Listen online:www.executionwatch.org >Listen ** Since KPFT is currently in the middle of their Spring membership drive you might want to try listening through the KPFT website or on Channel HD3 -- after making a donation to keep community radio alive.
Rule number one when beating someone to death is to get rid of all evidence of what happened. And that's exactly what deputies with the Kern County (CA) Sheriff's Department and the California Highway Patrol did after beating David Silva to death last week.
According to the police Mr. Silva was suspected of being intoxicated outside the Kern County Medical Center when officers responded to a call. They said Mr. Silva fought with them so they had to use force. It was far from a fair fight as nine police officers and a dog set upon Mr. Silva.
They beat him with batons and, when they were done, Mr. Silva wasn't breathing. They took him into the medical center where he was pronounced dead.
And, of course, the first thing the police did afterward was confiscate any and all video recordings of the incident. According to this article in the Bakersfield Californian,
John Tello, a criminal law attorney, is representing two witnesses who took video footage and five other witnesses to the incident. He said his clients are still shaken by what they saw.
"When I arrived to the home of one of the witnesses that had video footage, she was with her family sitting down on the couch, surrounded by three deputies," Tello said. Tello said the witness was not allowed to go anywhere with her phone and was being quarantined inside her home.
When Tello tried to talk to the witness in private and with the phone, one of the deputies stopped him and told him he couldn't take the phone anywhere because it was evidence to the investigation, the attorney said.
"This was not a crime scene where the evidence was going to be destroyed," Tello said. "These were concerned citizens who were basically doing a civic duty of preserving the evidence, not destroying it as they (sheriff deputies) tried to make it seem."
The police didn't want the video so they could investigate whether their brethren violated Mr. Silva's civil rights. They didn't want the video to determine whether the officers on the scene murdered Mr. Silva. No. They wanted the video to make sure that no one on the other side of the thin blue line sees anything that might implicate their fellow law enforcement agents.
Now whether that plan involves demonstrating the Mr. Silva misbehaved and that the police had no other option but to beat him to death or that there is no evidence that the police overreacted, I don't know. But you can bet the police will do everything in their power to deflect attention away from the actions of the officers involved.
There is no reason for a man to die simply because a police officer thought he might have been intoxicated. There is certainly no reason for nine police officers to beat the hell out of an unarmed man. More troubling is the notion that not one of the officers involved did anything to de-escalate the situation. No one stood up and told his colleagues to stop.
Groupthink is a very bad thing. Law enforcement and military personnel are indoctrinated with groupthink. It's always us against them. And them is always the enemy. And once the adrenalin starts flowing there is no turning back.
The Texas killing machine is back up and running...
ON TUESDAY NIGHT, TEXAS PLANS TO EXECUTE:
JOHN QUINTANILLA, JR. Arrested in a Victoria, Texas, robbery that turned deadly, Mr. Quintanilla was convicted - along with Jeffrey Bibb - of slipping into an amusement arcade wearing a mask and brandishing a rifle. They demanded cash from a worker and ordered customers to lie down on the floor. The murder victim, a former sheriff's deputy, was shot three times when he stood up and grabbed Mr. Quintanilla's weapon. Mr. Quintanilla and Mr. Bibb were charged with capital murder in the 2002 slaying. Mr. Bibb received a lengthy prison sentence.
For more information on Mr. Quintanilla, click here.
RADIO PROGRAM PREVIEW EXECUTION WATCH Unless a stay is issued, we'll broadcast ...Tuesday, May 14, 2013, 6-7 PM CT KPFT Houston 90.1 FM Listen online:www.executionwatch.org >Listen ** Since KPFT is currently in the middle of their Spring membership drive you might want to try listening through the KPFT website or on Channel HD3 -- after making a donation to keep community radio alive.
Yesterday in Guatemala we saw an example of just what democracy is all about. In a court of law former Guatemalan strongman Efrain Rios Montt was found guilty of genocide for the slaughter of more than 1700 peasants during the country's dirty war. The judge sentenced Rios Montt to 80 years in prison.
The verdict is a vivid demonstration that in a democracy, no one is above the law - even a former military dictator. Could you imagine if a former president stood accused of human rights violations in this country?
It's a sad commentary when a country that has spent most of its history under repressive regimes gives us a lesson in democracy and the rule of law.
President Obama ordered the murder of an American citizen in Yemen. As a result of his orders, two more Americans were killed in Yemen. He has also been complicit in the torture and illegal detention of prisoners of war in Guantanamo.
President Bush (the Younger) committed countless violations of human rights in the torture program his administration cooked up as part of the American arsenal in the war on everything terror. He also ordered air strikes in Iraq that killed hundreds of innocent civilians as part of his cooked up war against Iraq.
President Clinton sent the war planes into Balkan air space and bombed the hell out of men, women and children who had nothing to do with the civil war in the former Yugoslavia.
President Bush (the Elder) was responsible for the deaths of hundreds of innocent Panamanians when he ordered bombing raids on populated areas during his invasion of Panama.
Under each of these presidents, covert operations were launched in countless nations around the world that resulted in the deaths of innocent men, women and children were nothing more than collateral damage in the eyes of our leaders.
And every time a new president is elected he tells the American people that it's time to look ahead and not argue about the past. No president has ever ordered an investigation into the human rights abuses committed by a former occupant of the White House. It's not because he wants to try to bring the country together in a common mission -- it's because it's tacitly understood that if you ignore what the guy before you did, the guy after you will ignore what you did in kind.
I have no faith that we will hold our leaders accountable for their actions. I have no faith that any former president will have to stand and defend himself against charges that he committed gross human rights violations. And, until it finally happens, there will always be those who are above the law.
Texas DPS Standard Operating Guidelines for Technical Supervisors
1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole.
1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested.
1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.
According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.
The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.
Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.
Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:
It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected.
At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.
Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.
But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.
Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.
If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.
The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.
The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.
On Patriots' Day in Boston two bombs exploded near the finish line of the Boston Marathon killing three people and injuring well over 100 others. After the suspected bomber was arrested he was subject to interrogation without the presence of counsel because of a supposed ongoing emergency. In the aftermath the government is ramping up its information harvesting and profiling that it instituted after the 9/11 attacks.
Near the finish line of the BP 150 bike ride the following weekend, there were police snipers atop buildings in downtown Austin. There have been calls for enhanced security measures at races as well. No word on how this was supposed to stop any would-be terrorists from wreaking havoc near the finish (also, no word on why any would-be terrorist would pick a bike race in Texas to make their strike).
Out in West, Texas, a fertilizer plant that was allowed to operate in the city exploded killing 14, injuring hundreds more and damaging scores of houses and buildings. There was a nursing home near the plant as well as two schools. The source of the explosion was ammonium nitrate although no one has determined just how the chemical ignited.
In the aftermath of the explosion Gov. Rick Perry has repeatedly touted loose business regulation as a prime benefit for companies to move their operations to Texas. There have been no calls for more vigorous regulation of fertilizer plants. There have been no calls to restrict the locations of fertilizer plants. And, following the disclosure that the plant only one $1 million in insurance, there has been no outcry from our elected leaders in Austin about the business being underinsured.
Nationwide there are an average of 13 workplace deaths a day. There were just under 4700 workers killed on the job in 2011 - that's more than died in the terrorist attacks on September 11, 2001 and in Boston combined. Not surprisingly, Texas led the nation with 433 workplace deaths in 2011. That makes 2011 the 17th consecutive year that more than 400 people have died as a result of workplace accidents in Texas.
So where is the call for improved safety regulations in the workplace? Where are the calls to determine who is responsible for workplace deaths? Where are the questions about how corporate executives rake in astronomical salaries but little is spent on preventing workplace deaths and injuries?
How many more workers must die on the job before we give a damn?
There wasn't a hue and cry about a wrongful conviction in Mr. Parr's case. Just one dead man and one man on the row. But pumping Mr. Parr full of poison didn't bring anyone back. Now there are two dead men - and for what purpose?
We know our criminal (in)justice system isn't perfect. We know that innocent folks are convicted every year. We know that innocent people have been sent to death row. We know there's a damn good chance that innocent folks have been put to death (Cameron Willingham, anyone?)
Being that we are human and knowing that our institutions are only as good as the people running them, isn't it time we put an end to the death penalty? It isn't worth the risk that an innocent man gets strapped down and murdered. Anyone involved in this business that's honest with himself knows that's the truth.
I can't explain the court's decision. Nothing new happened in the last few weeks. The evidence is as bad as it was when the jury convicted Mr. Manning. The junk science put forward by the FBI is as bad today as it was last month as it was when the jury considered it.
But I'm not going to question it. I'm going to sit back for a few moments and be thankful that one man's life was spared on Tuesday.
The Texas killing machine is back up and running...
TONIGHT, TEXAS PLANS TO EXECUTE:
CARROLL JOE PARR. Mr. Parr grew up in poverty so extreme, he was often given baked dirt to eat. His sister once tried to kill him. Texas plans to execute Mr. Parr for the shooting death of a man in a drug deal outside a North Waco convenience store in 2003. Mr. Parr and his fall partner, Earl Whiteside, were accused of approaching two men sitting in a car, forcing them to the side of the building and robbing and shooting them. One victim survived. Mr. Whiteside testified against Mr. Parr and received a 15-year sentence on a plea to aggravated robbery. Mr. Parr's would be the 497th Texas execution in the modern death penalty era.
RADIO PROGRAM PREVIEW EXECUTION WATCH Unless a stay is issued, we'll broadcast ...Tuesday, May 7, 2013, 6-7 PM CT KPFT Houston 90.1 FM Listen online:www.executionwatch.org >Listen ** Since KPFT is currently in the middle of their Spring membership drive you might want to try listening through the KPFT website or on Channel HD3 -- after making a donation to keep community radio alive.
In Harris County a defendant is brought before the court within 48-72 hours of his arrest - if he isn't able to post bond. Posting bond will delay that first appearance for about a week. At that first appearance the defense lawyer has an opportunity to view the state's file and chat with the prosecutor about the facts of the case. The next step is to step out into the hallway with one's client and discuss how the officer's version of facts differs from the one he have the attorney.
At some point there is usually, but not always, a probable cause determination that rarely ends with anything other than there is probable cause to charge the person standing before the bench.
Then, absent a plea on the first setting, the case is reset. The court coordinator will ask the lawyer what day during a particular week (generally three to four weeks hence) he would like to appear. A reset form is filled out, signed and turned in. The defendant is then free to go.
Then, from that point forward, the defendant must appear in court every third or fourth week (in some courts every other week) until his case is resolved. It doesn't matter if there is anything new. It doesn't matter if the decision has already been made to set the case for trial. Combined with judges' new fascination with forcing defendants on bond to report to the adult probation department for pre-trial release supervision, this scheduling pushes defendants to plead to cases early on to avoid the expense (both time and money) of continuing the fight. After all, who can afford to take a day off every month to sit in court and visit a probation officer and then another day off to drive across town to pee in a cup?
Judge Michael Fields has the right idea. Instead of setting routine courts dates in every case, following the initial appearance, Judge Fields sets the case off a few months for a pretrial conference setting. In the meantime it is up to the lawyer to keep in contact with the prosecutor to discuss any new developments (left unsaid is how to keep up with the ever-changing court rotation of baby prosecutors). The procedure is notably different for defendants who can't post bond of course.
Being that, for many attorneys, an upcoming court date is the catalyst to check to see if something needs to be done on a case, practicing in Judge Fields' court might require a new-found discipline to get things done without monthly reminders in the form of court appearances. While the new docket control system isn't perfect, it does make life easier for those citizens who are innocent unless proven otherwise by the state.
Okay, I'm up in Arlington for a seminar. I spent the evening at the Ballpark (more or less) watching the Rangers lose to the White Sox. More on that later.
First, I want to make a shout out to Marilous Auer for pointing out a huge error I made in post reviewing the book Color Blind. I meant to say that my oldest daughter thought it was stupid that blacks weren't allowed to play in the majors before 1947 - but that's not what I typed. Marilou pointed out the fact I had left out the word "not" in my post.
Without that word the post totally missed the point I was trying to make. Kids don't make the distinction of races that adults do. They just want to play and they don't care about what color someone's skin is. We could learn so much by watching our kids play and interact with one another.
And that brings me to this morning's topic. Last night I went to the Ballpark in Arlington to watch the Texas Rangers play - not because I care one whit about the Rangers but because I thought it would be fun to watch a game as a neutral observer in a strange ballpark.
Before I get into the circumstances surrounding last night's game I do want to say that the Ballpark is a beautiful place to watch a ballgame. The Rangers got it right when they designed their digs. It has an old-timey feel from both the outside and the inside. Of course, since it was all of 43 degrees when the game started, I realized how much I missed Minute Maid Park (for all its faults) because it is enclosed.
I had tickets in the club section but, unlike in Houston, the club section is not enclosed in Arlington. There are a couple of bars that are enclosed (and warm) but the club level is open (and cold). I remember the first time I took my youngest daughter to a ballgame (it was my wife's parent's 65th wedding anniversary). She wasn't quite a year old and cranky as hell. I spent a good deal of time sitting in the back of a bar with her on my chest watching the game and drinking like a fish.
Before I left Houston I went online via MLB's At Bat app to get a ticket but no matter how hard I tried I couldn't get it to work right. I ended up having to buy my ticket on my computer instead (my phone seemed to think I wanted to purchase four tickets in the bleachers instead of one in the club section). I was given the option of having my ticket information sent via text message which I thought would be quite convenient. Unfortunately my cell carrier blocked my receiving or sending text messages to the short numbers.
I called my carrier and had the block lifted and then sent a text to the ticket seller to resend the ticket information. Nothing. Then I sent another request. Again I received nothing.
I called the number on the e-mail and was told there was not a damn thing that could be done about it. So I printed out my ticket before I left the office. But I had paid another $2.50 for the privilege of having a text message sent to my phone with all the necessary information. I asked the customer service rep if I could get my $2.50 back since the company's FAQ pages regarding cell phone tickets were nowhere to be found.
Believe it or not, I was told there was nothing the ticketing agent could do and that I would have to deal with the Rangers' ticket people to get my money back. I wish I could say I was surprised. Maybe that's the price that I pay for using a two-and-a-half year old android phone (no sense in buying a new one if the old one is working).
So there we are. I had a good time in a different ballpark - thank goodness I finally got into the bar because it was awfully damn cold tonight - but I do have a gripe about the entire ticketing process. I also have a greater appreciation for Minute Maid Park (although it still feels fake).
I'm going to go now so I can listen to the rest of the Astros' game tonight (they're in the 12th inning as I write). Have a great day.
Anyone who has dealt with the world of low-level traffic offenses knows the consequences of the Texas Driver Responsibility Program. The DRP imposed surcharges on driver license renewals for certain traffic offenses and suspended legal driving privileges for those who didn't make the payments.
Then, when those same drivers picked up new moving violations their licenses were suspended (again) and more surcharges were imposed. The entire program became a downward spiral that left many motorists with no way to ever regain their legal driving privileges.
Now it appears that relief might be on the way in the form of HB104 - a proposed bill that would place a two-year moratorium on the imposition and collection of surcharges under the DRP.
The DRP was created in 2003 partially as a funding mechanism for trauma centers in the state. The promise was that folks who drove without insurance or on suspended licenses would cough up some money that the state would collect and distribute (hmm, sounds like a tax to me). Over the years, however, the program has not generated the funds lawmakers had expected.
Being that most folks ticketed for driving without insurance or on suspended licenses tend to be on the poorer end of the spectrum, the state has only collected about 40% of the surcharges levied on motorists. So, not only did the program not generate the amount of revenue expected - it couldn't even collect half the surcharges levied.
The bill would allow the DPS to begin imposing and collecting surcharges after September 1, 2013 provided the state had not yet found a mechanism to fund trauma centers at the level they are currently funded. Whether this will encourage lawmakers to come up with a new funding mechanism or just sit on the hands has yet to be determined.
For way too long the state legislature (and governor) have resisted devising equitable mechanisms to fund this state. The sales tax is regressive. The lottery is a scam directed at the poor. The DRP is yet another attempt to impose higher taxes on the poor while reducing the tax burden on the wealthy.
Imposing a moratorium on the DRP rather than abolishing the whole thing may be a baby step - but at least it's a step in the right direction.
Over the weekend we took the kids to see 42. Now I understand that some of the scenes were apocryphal and others were mixed in from later seasons but I thought the movie did a pretty damn good job of conveying the mood of the time.
I thought it was a sign of how much society has changed that when I told my oldest daughter what the movie was about she said it was stupid that blacks were not allowed to play major league baseball (special thanks to @Mariloutheclerk for pointing out I forgot the "not" in the preceding sentence). She was blown away by what she saw on the screen. While we still have a way to go in race relations in this country, we have made tremendous strides since the late-40's.
But, before Jackie Robinson and the Dodgers, there was the local semi-pro team in Bismarck, North Dakota - what may have very well been the first integrated baseball teams in the country. In Color Blind: The Forgotten Team that Broke Baseball's Color Line, Tom Dunkel takes us back to Depression-era North Dakota and Neil Churchill, the man behind the curtain.
Back in the 20's and 30's baseball was a lot less organized than it is today. There were a handful of minor leagues that served as pipelines to the majors but most baseball teams were independent. Most of them were either factory-sponsored or so-called town teams. There were also the barnstormers such as the House of David who toured the nation. For black ballplayers they were limited to the Negro Leagues and such teams as the Pittsburgh Crawfords, the Homestead Grays, the Chicago American Giants and the Kansas City Monarchs.
Neil Churchill was a town booster who was already involved in the town's basketball squad when he got involved in baseball. He set out to make the Bismarck Nine the best squad in the state. He did it by signing outcasts from the minor leagues and by going after players in the Negro Leagues.
His most notable signing was the mercurial Satchel Paige who spent parts of three seasons pitching for the Crawfords and Bismark. The year after Jackie Robinson's debut in Brooklyn, Satchel Paige helped the Cleveland Indians win the World Series. Bismarck rode Paige's magical right arm to victory in Hap Dumont's 1936 National Invitational Baseball tournament.
Paige's battery teammate was catcher Quincy Troupe who could hurl the ball over the outfield wall from his knees behind home plate. Troupe started off with the Chicago American Giants before Neil Churchill convinced him to head north. After his time in Bismarck, Troupe spent most of the rest of his career playing in Latin America - though he played in the states long enough to lead the Cleveland Buckeyes to the Negro League crown in 1945. He also signed the first white player in the Negro League.
When the Dodgers purchased Robinson's contract from the minor league Montreal Royals, they also tried to pick up Hilton Smith who convinced the Kansas City Monarchs (by then a barnstorming team) to sign Robinson. Smith decided, at the age of 35, that he was too old to play for Branch Rickey and he opted to remain with the Monarchs. Smith became the ace of the Bismarck staff when Paige left for good.
Tom Dunkel's book is a trip back to a time when baseball really was the American pastime. His book is full of ballplayers you won't find in the history books and feats that seem almost magical. It is also a tale of the terrible inequities of racism and segregation and a reminder that some of the best players to ever put on a uniform and step onto a field were never allowed to do so at the highest level of the game.
Yesterday was the red-headed troubadour's 80th birthday. To celebrate here is an interview with Willie that aired on Democracy Now! as well as a couple of my favorite Willie Nelson songs.
When people ask my nine-year-old daughter what she wants to do when she grows up, she tells them she wants to be a lawyer like her dad (I've still got plenty of time to discourage that course of action). Then my wife chimes in that she really likes to argue and everyone smiles and nods their heads.
As anyone who has ever practiced law will tell you, very little of a lawyer's time is spent "arguing." In fact, we do a lot more sitting around listening to our clients that we do arguing.
I was reminded of this when I saw Scott Greenfield's post on Saturday about the talkative contractor he was looking to hire to repair his house after Hurricane Sandy.
Before arguing a motion to the judge there are hours of prep time spend reviewing the case file, researching the current state of the law, drafting the motion and anticipating your opponent's arguments. And sometimes the argument is limited to the judge asking what you want and why and then listening to the prosecutor state why the court should deny relief. Now you've got one last chance to impress the court.
Before sitting down to cross-examine the state's main witness you spend hours pouring over offense reports, witness statements, photographs as well as material obtained through discovery and snooping around. And then, invariably, the witness goes down a path you hadn't anticipated and your entire outline gets tossed out the window. If you're going to be effective you better be listening.
Contrary to what many people think, cross-examination isn't about arguing with the witness. It's about you testifying for your client through the person on the witness stand. It's as much about what you don't ask as what you do ask. It's about weaving together disparate threads of a story you can tell to the jury at the end of the day.
And, while we're here, don't even think of arguing during jury selection. As my esteemed colleague Mark Bennett has pointed out countless times in his blog and in his presentations, the secret of jury selection is listening. If you want to know what someone is thinking, ask them and listen to their answer.
So, if you think Junior will make a great lawyer one day because he likes to argue until he's blue in the face - think again. He might be better suited to talk radio or Fox News. If you want to be a good lawyer, you need to shut up and listen. You just might learn something.
Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.
Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.
Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.
At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.
The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?
Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.
But I digress.
Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.
The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.
Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.
There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.
Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.
Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?
The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.
There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.
What you are about to see (H/T NPR) is three years of the sun's life compressed into three minutes. NASA took two pictures a day of the sun from a satellite for three years and put those shots together in this video. It is wildly hypnotic and it gives you an idea of the violence just beneath the surface of the sun.
It also puts into perspective just how inconsequential we really are. Long before we started walking on our hind feet and making tools the cosmos did its thing and long after we kill ourselves off the cosmos will still be doing its thing.
Then we have this article from the BBC in which scientists estimate that over the next 200 years there will be one catastrophic collision with space debris every five to nine years. The debris we're talking about is all man-made: dead satellites, rocket booster stages and exploded fragments of both.
Apparently there are approximately 20,000 pieces of man-made space debris orbiting the earth that are big enough to be monitored - and somewhere around 500,000 pieces between 1cm and 10cm in length. All of these objects are travelling at speeds of several kilometers an hour.
And just why is there so much junk floating around in space? It's because through the lens of capitalism, since no one "owns" space, it is used both as a "highway" and as a giant trash can. It's the same attitude that has led to the pollution of lakes, oceans and the air we breathe. For, unless there is someone to charge rent for the use of space, there will be no incentive for anyone to clean up after themselves. Instead of viewing the commons as belonging to everyone and acting accordingly, those seeking profit look at the commons as belonging to no one with no consequences for trashing the place.
But, who cares, because by the time the consequences are felt, none of the folks responsible for the mess will still be around.
"Life is death, death is life. I hope that someday this absurdity that humanity has come to will come to an end," [Richard] Cobb said when asked if he had any last words. "Life is too short. I hope anyone that has negative energy towards me will resolve that.
"Life is too short to harbor feelings of hatred and anger. That's it, warden."
Another inmate is dead.
But nothing is changed.
Richard Cobb was murdered on Thursday night at the hand of the State of Texas for a murder he committed almost eleven years ago. The other man convicted in the case, Beunka Adams, was murdered by the state a year ago this week.
Kenneth Vandever, the man Mr. Cobb murdered, is still dead. His family still feels the loss. The deaths of Mr. Cobb and Mr. Adams don't change that. There is nothing that will ever take away that sense of loss.
"I think justice was served but it doesn't change anything to speak of," the slain man's father, Don Vandever, said after watching Cobb die. "I do think the justice system needs to be more of a deterrent.
"All he did was go to sleep. That's it."
Yes, that's all that happened last night. A person with a medical license from the State hooked up an IV so that someone else could press a button to release the poison into Mr. Cobb's vein. But even had Mr. Cobb been electrocuted, hung, shot or drawn and quartered, Mr. Vandever's son wasn't coming back to life.
The death penalty is not a deterrent to murder. It never has been and it never will be. In order for it to be a deterrent, everyone would have to think in abstract terms of benefits and consequences before doing anything. Yes, your chances of being murdered by the state are long indeed, but there are only a select few crimes that the government chooses to exercise its power to kill. Besides, most of the time no one planned on killing anyone.
The death penalty can be a deterrent to trial, however. Given a choice between pleading guilty and taking life in prison versus going to trial and risking the needle, many defendants elect to plead. The ones who go to trial either proclaim their innocence or weren't given the choice to plead.
In the end our society will be judged by how we treated our worst members. We have spent years waging war against the poor and people of color and locking them up behind bars. We have a governor who thinks presiding over the murder of inmates makes him more of a man.
The madness needs to stop. It's time we stopped killing inmates. Violence begets violence and hate begets hate. The death penalty is a cancer that's killing us from within. It is time to excise the cancer and find a better way to deal with the worst of the worst.
Here is a sign from a bail bond place in downtown Houston. I spotted it while walking around with my oldest daughter looking for a place to eat one day when she didn't have school.
Just look, it'll jump out at you like it did for me as soon as we passed by.
It wouldn't be that bad except that they spelled apprehension right at the top of the sign.
For the last couple of years I have been providing updates on scheduled executions in Texas. The information is provided by Execution Watch. I get the information through their website and from e-mail updates they send out in the days prior to a scheduled execution. The show Execution Watch is broadcast on KPFT at 6pm when there is an execution scheduled.
Unfortunately the information I've received recently from Execution Watch hasn't been accurate. And, if you've tried to listen to the radio show you know it's not always on when it's supposed to be.
Earlier this week I ran an update on Elroy Chester III, who was set to be murdered by the State of Texas last night. However, on April 16 the Court of Criminal Appeals rescheduled the execution to June 12, 2013. That I didn't find out until I noticed the Execution Watch website did not have the information for Mr. Chester on the front page this afternoon.
I apologize for providing y'all with the wrong information. The lesson learned, of course, is to verify the information before posting the update.
