Tuesday, April 14, 2015

Execution Watch: 4/15/15

On Wednesday night, the State of Texas is planning to kill...

MANUEL GARZA, JR., Convicted in the 2001 slaying of a San Antonio police officer after a foot chase in which the men struggled and Mr. Garza grabbed the officer's gun, then shot him, according to court documents. His trial attorneys said he acted in self defense. Appellate lawyers said his trial attorneys failed to properly question jurors about their opinions on the death penalty, didn't submit enough mitigating evidence and failed to include complaints of excessive use of force that had been filed against the officer.

For more information about Mr. Garza's case, click here.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, April 15, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Tuesday, March 10, 2015

Execution Watch: 3/11/2015

On Wednesday night, the State of Texas is planning to use one of its two remaining doses of its death drug to kill...

MANUEL VASQUEZ, the last of three men arrested in the 1998 slaying of San Antonio drug dealer Juanita Ybarra. Vasquez, now 46, was the only defendant to receive the death penalty. One co-defendant was awarded a seven-year plea deal in exchange for his testimony against Vasquez. The other is serving a 35-year term. Vasquez was originally scheduled to be executed in August, but a paperwork problem led to a delay.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, March 11, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Monday, February 9, 2015

Food for thought

Here are a few items I picked up the last week or so that seemed particularly relevant for one reason or another...

If you represent defendants who are under the age of 25, you might want to listen to this interview Fresh Air's Terry Gross had with Dr. Frances Jensen about her new book The Teenage Brain. Dr. Jensen explains why the judgment of a young adult may be a bit impaired due to both biological and environmental conditions.

Former CIA agent John Kiriakou was released from federal prison last week after serving almost two years for disclosing the truth about the CIA's torture program. Mr. Kiriakou is the only person who has been convicted or sentenced to prison regarding the torture program launched under President George W. Bush. To date, not one person who signed the orders, supervised the torture or penned a memo justifying torture has been punished. Amy Goodman interviewed him on Democracy Now!  this morning.

Here's a piece I wrote just before Mr. Kiriakou reported to prison.

Finally, I'm not much of a college basketball fan. The games are too micro-managed by coaches and the "action" on the court can put you to sleep. This weekend, the legendary North Carolina coach, Dean Smith, died. While he was celebrated in the media for winning championships the "Carolina Way," not much has been said about the amazing things he did off the court. Mr. Smith was responsible for integrating the ACC. He was also an outspoken critic of the death penalty. This piece from The Nation's Dave Zirin gives us a little more insight into the man.

Wednesday, February 4, 2015

Thoughts on the death penalty

I was recently asked by a commenter what I thought was a "fair" sentence for someone convicted of killing another.

The gentleman seemed to believe that the death penalty was appropriate - at least in that particular case. I won't put words in his mouth and assume that he supports the death penalty across the board.

I don't know the answer to his question.

I do know, as I have pointed out before, that killing a murderer doesn't bring any of the victims back to life. Killing him doesn't heal the wounds his actions caused. I also don't think it does anything to bring closure to the family and friends of his victim. The wounds will always be there - they just fade in and out in various degrees as time moves on.

There are three understood purposes of punishment in our criminal (in)justice system. The first is rehabilitation. Our penitentiary system owes much of its existence to religious sects who felt the best way to treat someone convicted of criminal activity was to remove him from the bad influences in his life and teach him another way to live. That's why most of our prisons are far removed from the "evil" influence of our major cities (in much the same way that most of our large land grant colleges are far removed from urban areas).

A second purpose is to deter others from breaking the law. If you see your buddy sent off to prison for breaking the law, maybe the message will hit home that it's best to obey the law. This, of course, only works for those folks who are able to weigh the costs and benefits of particular actions before deciding what to do.

The third purpose was to banish from civil society those who were blatant in their rule-breaking and expressed no remorse for their actions. One way to look at it is the folks we choose to banish from society are those folks that we're scared of.

I think it's a fairly safe bet to assume that our prisons long ago stopped serving any rehabilitative function. They have become warehouses for the mentally ill, drug addicts and folks who refuse to conform with the rules of civil society. We could add that prisons today are used as tools of social control to keep the poor and minorities from exercising any power.

Now our politicians and supporters of the death penalty will hang their hats on deterrence as being the reason we strap inmates to a gurney and murder them in cold blood. The idea is that the public sees what happens when you kill someone (well, kill someone whose life we've determined is more valuable than someone else's) and folks make a conscious decision not to do the same.

The only problem with that logic is that most murders aren't the act of rational actors. How many times is the victim of a murder an acquaintance of the murderer? How many times is the murder the result of an argument that two friends (or two relatives) had over a pool game or a bet or a small loan? How many times do we see someone killing their spouse or lover? Then you've got drug-related killings and "robberies gone bad."

We've been killing inmates for generations and we still  have people killing people. The death penalty never has been, and never will be, a deterrent.

The death penalty is about nothing more than revenge. Always has been and always will be. As such it serves no useful purpose within a criminal justice system.

Furthermore, the death penalty is forever. Once you've killed an inmate, they aren't coming back. It doesn't matter whether they were guilty or innocent. Just think about that for a bit. Over the past decade we have witnessed an incredible number of stories of inmates who spent decades in prison being exonerated when DNA evidence revealed the jury got it wrong.

Our system is run by people. We're fallible. We all get it wrong every now and then. Michael Morton was convicted of killing his wife. The district attorney hid evidence and his successor fought like hell to keep the evidence from being tested because he knew what it would reveal.

Innocent people have been murdered by the state. As long as we continue to strap inmates down and inject poison into their veins we will run the risk of another innocent man being killed. Is that a chance you feel comfortable taking?

I have no use for religion. I think it's nothing but a tool of oppression. But I'm not arrogant enough to say that I know who should live and who should die.

Are you?

Tuesday, February 3, 2015

Execution Watch: 2/4/2015

On Wednesday night, the State of Texas is planning to kill...

DONALD NEWBURY. While serving a 99-year sentence for robbery, Mr. Newbury joined six fellow prisoners in escaping from the John B. Connally Unit near Kenedy, Texas on December 13, 2000. He and the other escapees were convicted of shooting an Irving police officer, Aubry Hawkins, to death as they fled after robbing a store.

For more information on the background of Mr. Ladd's case, click here.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, February 4, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Wednesday, January 28, 2015

Update: White execution stayed

Yesterday the Texas Court of Criminal Appeals stayed tonight's scheduled murder of Garcia Glen White. Mr. White's attorney, Houston's own Pat McCann, refused to give up while the CCA continued to deny his motions to stay the execution and for leave to file writs of habeas corpus and suspension.

Finally, on Tuesday the Court granted Mr. White's fourth application for a writ of habeas corpus. The work of a capital litigator is never finished until the drugs start to flow into his client's veins. Mr. McCann kept fighting - even when it looked its bleakest - and, in the end, he won (at least a temporary) reprieve for his client.

As Bum Phillips would say, Mr. McCann knocked on that door a few times before he kicked the son of a bitch in.

If I were ever in a fight for my life, Paddy McCann is one of people I would want to be fighting with me.

Execution Watch: 1/29/2015

On Thursday night, the State of Texas is planning to kill...

ROBERT LADD. Condemned in the sexual assault and slaying of a Tyler woman during a burglary in 1996. He appealed his conviction and death sentence, saying prosecutors used illegal tactics to exclude minorities from the jury and presented insufficient evidence at trial. Mr. Ladd also challenged the judge's instruction to the jury that they had the option to convict him under the Texas law of parties.

See:

Ladd v. State, 3 SW3d 547 (Tex.Crim.App. 1999)

For more information on the background of Mr. Ladd's case, click here.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, we'll broadcast live:
Thursday, January 29, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Since KPFT is in the middle of fund drive I believe the broadcast will only be available online or via HD radio.

Tuesday, January 27, 2015

Execution Watch: 1/28/2015

On Wednesday night, the State of Texas will kill...

GARCIA WHITE. Sent to death row for the 1989 slayings of 16-year-old twin sisters with whom he had an argument while smoking crack cocaine at their home. Mr. White asserted in appeals that jury selection, jury instructions, his statement to police and the judge's punishment charge were all improper. During Mr. White's trial, Houston Police crime lab analysts testified that DNA from the crime scene matched his. But retest results, made public in 2004 by the prosecutor's office indicated a private lab was unable to duplicate the results.

For more background information on Mr. Whtie's case, click here.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, we'll broadcast live:
Wednesday, January 28, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Since KPFT is in the middle of fund drive I believe the broadcast will only be available online or via HD radio.

Tuesday, January 20, 2015

Execution Watch: 1/21/2015

On Wednesday night, the State of Texas will kill for the first time in 2015...

ARNOLD PRIETO. Convicted in the murder of three people, including his co-defendants' great-aunt and great-uncle, in a 1993 home robbery in San Antonio. Before Mr. Prieto's conviction, prosecutors offered him two 30-year terms in exchange for his testimony against a co-defendant. He declined.

For more background on Mr. Prieto's case, click here.

RADIO SHOW PREVIEW

EXECUTION WATCH
Unless a stay is issued, we'll broadcast live:
Wednesday, January 21, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Since KPFT is in the middle of fund drive I believe the broadcast will only be available online or via HD radio.

Wednesday, December 24, 2014

Trivializing racial injustice

Earlier this month in South Carolina, George Stinney's name was finally cleared. Mr. Stinney was fourteen years old when he was strapped into an electric chair and killed for a crime he didn't commit.

Mr. Stinney was charged with killing two little white girls in Alcolu, South Carolina in 1944. In the span of 83 days he was charged, tried and convicted. His appointed counsel, Charles Plowde, did everything he could to facilitate the legal lynching. Mr. Plowde failed to call Mr. Stinney's sister, an alibi witness, to the stand.

After a two-day hearing, Judge Carmen Mullen said that Mr. Stinney's case was a "truly unfortunate episode in our history."

No, Judge Mullen, a child dropping a fly ball is an unfortunate episode. A skinned knee from falling off a bike is an unfortunate episode. Spilling food on your best clothes is an unfortunate episode.

Murdering a fourteen year old child who had a confession beaten out of him is far more than an "unfortunate episode." Calling it such does nothing but cheapen the significance of what happened in the summer of 1944. What happened to Mr. Stinney is but another example of the ways in which our criminal (in)justice system has been used as a tool of social control and oppression.

A child was murdered at the hands of the state and no one was ever called to account for their actions. A jury of twelve white men considered what evidence was put before them and decided that the government had proven its case beyond all reasonable doubt. And once again we are confronted with the fact that our courts don't serve as a crucible of truth - they serve merely as a legal justification for the continued oppression of significant portions of our population.

Judge Mullen's decision does nothing to heal the damage caused to Mr. Stinney's family and friends. They knew he was innocent all along. It does nothing to change the facts. It also does nothing to erase the indelible image of a state that was so intent to enforcing social order that it would strap a teenager into an electric chair and burn him from the inside out.

And if you are under the illusion that there has been much change over the last 70 years, take a look at the population of most of our jails and prisons. Take a look at the disparity in drug sentencing. Take a look at the disparity in death sentences handed out. Take a look at the number of blacks and Latinos who languish in jail for weeks and months (and years) waiting for their criminal cases to be resolved because they can't afford to post bail.

Our criminal (in)justice system is still used as a tool of social control. The old order is desperately trying to hold onto to power and our courts are their last best tool.

Thursday, December 18, 2014

Killing the frog one degree at a time

The other day I was leaving the Montgomery County Courthouse up in Conroe after court and noticed a state trooper behind me. As I turned onto the main drag the trooper flipped on his lights. I pulled over into a restaurant parking lot wondering why he pulled me over.

Soon I had my answer.

It turns out that the main bulb in the right taillight had burned out. I asked him if the center light was working. He said it was. He took my license and insurance and I dug through the pocket on the driver's side door for a spare bulb.

While I changed the bulb he printed out a warning and went on about his way.

I did appreciate him telling me my taillight was out - since equipment violations are an oft-used excuse to stop suspected drunk drivers. However, I was also a bit irritated since there was no equipment violation in my case. In Texas you are required to have two working taillights. Since all cars come equipped with three (one on each side and one in the middle), one can be malfunctioning and you aren't breaking the law. In other words, he had no legitimate reason to pull me over.

As I drove away my mind kept wandering back to the recent US Supreme Court case in which the Supremes upended precedent and decided that a traffic stop based on the officer's mistake of law is valid. In Heine v. North Carolina, No. 13-604 (2014), Mr. Heien was driving down the street when a law enforcement officer, Sgt. Matt Darisse of the Surrey County Sheriff's Office, stopped his car because he had a broken brake light. Of course Mr. Heien gave his consent when Sgt. Darisse asked to search the car.

Sgt. Darisse thought that Mr. Heien (who was laying down in the backseat) and Maynor Vasquez (the driver) were acting a bit suspicious so he asked to search the car after handing Mr. Vasquez a warning for the brake light. Well you don't have to be a genius to know what happened next. The search turned up a bag of cocaine. Both men were arrested.

At trial, Mr. Heien argued that the drugs should be suppressed because there was no legal basis for the traffic stop. It is (or, at least, was) well-established that a stop based on an officer's mistake of law was not reasonable, and was, therefore, illegal. Surprisingly enough the trial court didn't see it that way because, by golly, there was cocaine in the car and we must keep that shit off the streets.

On appeal the conviction was reversed because it wasn't illegal to drive a car in North Carolina with only one functioning brake light. The State Supreme Court then reversed the appellate court on the grounds that even though Sgt. Darisse was ignorant of the law, the stop was reasonable.

In an 8-1 decision, based more on looking at the outcome rather than on the process, the US Supreme Court held that a stop (or detention) based on an officer's mistake of law was, nonetheless, reasonable. So, even though we've been told for years that ignorance of the law is no defense against a criminal charge, it is, apparently, an excuse to detain someone illegally.

This decision has turned the Fourth Amendment on its side and is yet another example of how our rights are slowly being taken away from us without anyone noticing. We are the frog in the pot of water that doesn't even realize the temperature is being turned up until it's too late.

Wednesday, December 17, 2014

On torture, war crimes and hypocrisy

So Democrats in Congress are up in arms about revelations that our government tortured inmates as part of the War on Everything Terror. It's not like this was new information. We've known about it for years. Books have been published based on government documents. Those senators and representatives on the various intelligence committees and oversight committees knew all about it.

But now that the Senate Intelligence Committee has released a summary of its findings, we must all show a renewed sense of indignation. I'm sure there are a few poor souls out there who had no idea this kind of thing must be going on and who are relying on Fox News to shape their opinions and give them some talking points to defend illegal behavior.

Sen. Diane Feinstein (D-Cal), among others, has railed at the CIA and the Bush Administration for implementing the program. But, where is that same indignation at the innocent bystanders killed by unmanned US drone attacks in the Middle East? Where is that same indignation when a Hellfire missile tears apart the bodies of women and children out in the fields?

For all of her pontificating about the evils of the torture program (and don't misunderstand my point, those who carried out the program are all guilty of war crimes and should be held to account for their actions), Ms. Feinstein has been a champion of killing innocent men, women and children in illegal missile attacks in foreign countries.

And where has President Obama been through this? He stood in front of a microphone and said we needed to look forward instead of placing blame for past sins. Of course this is the standard line uttered by all presidents when confronted with the illegalities of the prior administration. His pledge to look forward only serves to protect those who have committed illegal acts in his administration - for if he isn't looking to prosecute those who did bad before him, whoever next occupies the White House won't throw the book at members of the Obama administration.

And that's how we undermine the idea that our nation operates under the rule of law.

Saturday, December 6, 2014

The end of the season is nigh

Today the college football regular season comes to a close.

The end of the season will also bring us a brand new playoff format to determine football's national champion. But is there any need for a playoff?

For most of the 20th century, college football was regional sport. The rare intersectional game between college football powers was a special treat. Since there was no centralized authority in charge of the game, schools made up their own schedules and no one worried about winning a mythical national title. The goal was always to beat your rival, win your conference and hope you get invited to a bowl game.

Sportswriters were the only folks who followed more than just a local team and they banded together to vote for a national champion. This system (later amended with a coach's poll) worked until 1984 when Brigham Young University (BYU) ran the table and beat a mediocre Michigan team in a pre-New Year's Day bowl game. BYU was named national champion, much to the chagrin of the football powers. Something had to be done to prevent that from ever happening again.

The result was something called the Bowl Alliance in which four major bowls worked out a plan to match the best teams against each other in bowl games regardless of which conference they were from. That system was later replaced by the Bowl Championship Series which set about to match the top two ranked teams first in a bowl game and then in a stand alone championship game.

After years of questionable decisions regarding who got to play for the title (and threats of an anti-trust lawsuit from the non-football factory schools), the BCS was scrapped and replaced by a four-team playoff which debuts this season.

The "clamor" for a playoff came mostly from the networks who broadcast college football games. Since the playoff would involve but four out of 120 teams, most fans had nothing at stake and went about their lives as if nothing happened.

But the system was flawed from the beginning. The five conferences containing the biggest schools formed an alliance and decided to pick four teams to challenge for the championship. Hmm. Five conferences. Four slots. The math didn't add up. If the problem with the polls and the BCS was that the championship wasn't being decided on the field. But, by devising a system that leaves out one conference champion, the decision who plays for the title is being made in a boardroom, not on the field.

From the opening kickoff this season commentators kept saying the Big 12 would be at a disadvantage because the conference didn't have a "true" championship game. It's true there is no conference championship game, but that's because unlike the other four major conferences, every Big 12 team plays every other team during the course of the season. Therefore there was no need for a championship game - in the event two teams ended the season with the same record, the team who won the game between them would be the champion.

Earlier this season, in Waco, Texas, Baylor came back from three touchdowns down in the last ten minutes of the game to beat TCU on a last second field goal. In the event that both Baylor and TCU win today, Baylor would win the conference because they beat the Frogs earlier this season. In fact the conference ran commercials all season long bragging about ten teams, nine games, one "true champion."

That was until the possibility of both Baylor and TCU advancing to the playoff arose. Now the conference has rolled over on cue when the money was waved under its nose. Should both the Bears and Frogs win today, they will be declared co-champions. So much for deciding it on the field.

For the last few weeks a playoff selection committee has been releasing a poll ranking their top 25 teams. Sports talk radio and sports talking heads have been arguing the merits of the top four teams ever since.

But the poll is an idiotic idea. If the job of the committee is to pick the top four teams at the end of the season, the in-season poll serves no purpose other than fueling debate on radio and television.

If we really want to determine a champion (and there is no good reason we have to do so), the only role of the selection committee should be to select the best team from outside the so-called Power Five conferences and then seed the six teams. The committee doesn't need to pick the teams that are participating from the major conferences - just take the champions. If you aren't the best team in your conference, you can't be the best team in the country. Period.

For those bloviators like Colin Cowherd who says that head-to-head doesn't matter (he ranks TCU above Baylor), what would he do if the top-seeded team lost on a fluke last second play to an inferior team in the first round? Would he still vote for the top seed for champion because they passed the "eye ball" test? If you want a single elimination playoff then the conference championship games are the de facto first round. So there.

On a related note, today we will find out whether the safety of a player is more important that winning a football game. Baylor quarterback Bryce Petty suffered a "mild" concussion (sorry, a concussion is a concussion is a concussion). He was taken out of the game - though he said he would be back on the field today against Kansas State.

The medical evidence is overwhelming that once a person suffers a concussion they are more susceptible for future concussions. While Mr. Petty may want to play today, the coaching and medical staff at Baylor should have enough regard for his safety to keep him off the field. I would love to see Baylor win, but if that win comes at the expense of Mr. Petty's health, it is a hollow victory. The coaches and doctors are adults and should be looking out for the health of their charges.

There was a day when Art Briles sat down at the table with Mr. Petty's parents and promised he would take care of their son. It's time to see if that promise was sincere.

Friday, December 5, 2014

Talking heads are missing the point

Daniel Pantaleo killed Eric Garner by putting him in a choke hold on a Staten Island sidewalk. But Mr. Pantaleo faced no legal sanction for his act because he wore a badge.

In yet another example of how prosecutors manipulate the grand jury process, a New York City grand jury followed the lead of District Attorney Daniel Donovan and returned a no bill against Mr. Pantaleo.

According to the DA's Office, the grand jurors deliberated for about two months, interviewed 50 witnesses and viewed four videos. And, at the end of the presentation, I'm pretty certain the prosecutor said something along the lines of "do what y'all think is right." That's the prompt to return a no bill.

In the aftermath of the DA's decision not to pursue an indictment, talking heads have been calling for increased training for police officers. They have called for an end to the use of choke holds. They have talked about working to change the image the police department has in minority communities.

But all of these suggestions miss the larger point. Mr. Garner was murdered because he was selling single cigarettes on the sidewalk. The very fact that a police officer would take a man to the ground and choke him to death for selling cigarettes on the street isn't a problem with training.

Far from it, in fact.

The Garner case is yet another episode that illustrates the simple fact that the police are but tools of social control for the ruling class. Until we come to understand this, the killings of unarmed black and brown men will continue.

Thursday, December 4, 2014

Update: 5th Circuit halts scheduled execution

Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. 
- Judge Tom Price, Texas Court of Criminal Appeals; Ex parte Panetti (No. WR-37,145-04)
Yesterday, just hours before he was scheduled to be murdered at the hands of the State of Texas, the Fifth Circuit Court of Appeals halted Scott Panetti's execution in order to review the legal claims made by his attorneys.

Last week the Texas Court of Criminal Appeals denied Mr. Panetti's writ seeking to halt the scheduled execution. Judge Tom Price, who is retiring from the bench at the end of this term, wrote a dissenting opinion in which he questioned the value of the death penalty. He said it served no penal purpose. He also expressed his reservations on the death penalty in light of the number of exonerations that have taken place over the past few years.

But Judge Price is a little bit late to the dinner table. If his concerns are enough to motivate him to question the legitimacy of the death penalty at the end of his time on the bench, where were those concerns when Mr. Panetti's case came before the Court on direct appeal and on prior writ applications? Where were those concerns when other inmate's lives were on the line?

The one question I can't seem to get out of my head is why on earth the trial judge would allow a diagnosed schizophrenic to fire his appointed counsel and proceed to trial pro se. Even if the initial decision could be justified, once it became apparent that Mr. Panetti hadn't the slightest clue as to what was going on, counsel should have been appointed. We're talking about a man's life here. This isn't about moving a docket along.

If we are going to continue to try to take away people's lives in the courtroom, then we damn well better be sure every procedure is followed and every protective measure is taken with regard to the accused. Anything less just shows us to be a bunch of ignorant rednecks holding a noose in the courtyard square.

Tuesday, December 2, 2014

Execution Watch: 12/3/2014

"[T]his has been like a slow-moving train wreck since 1995."  -- Kathryn Kase, attorney for Scott Panetti
On Wednesday night, the State of Texas will kill again...

SCOTT PANETTI. Convicted in the September 1992 shooting deaths of his in-laws inside their Fredericksburg home, Mr. Panetti told police it was his alter ego, Sarge, who committed the slayings. Mr. Panetti's previous execution date was put off by the Supreme Court, though the justices refused last month to hear his latest appeal, clearing the way for a new execution date to be set. He was diagnosed as schizophrenic and hospitalized multiple times in the 10 years leading up to the slayings. Mr. Panetti was allowed to represent himself at trial. He wore a purple cowboy outfit and called witnesses including John F. Kennedy and Jesus Christ. Mental health professionals who have evaluated Mr. Panetti say he believes the State of Texas wishes to kill him to prevent him from preaching the gospel.

For more information see:

"Can Ron Paul and conservative evangelicals save a Texas death row inmate?" Mother Jones (11/26/14)

"Texas execution of a severely mentally ill man would be an outrage," Los Angeles Times (11/29/14)

"Lawyers try to save 'delusional' death row murderer, 56, who tried to subpoena Jesus Christ and JFK at his trial, from Wednesday execution," Daily Mail (11/29/14)

RADIO SHOW PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast live:
Wednesday, December 3, 2014, 6-7 PM Central Time
KPFT-FM Houston 90.1 Online...

Thursday, November 27, 2014

Something to think about while we gorge ourselves

In 1975, in Cleveland, Ohio, Harold Franks, a money-order salesman, was murdered in a robbery. Ronny Bridgeman, Wiley Bridgeman and Ricky Jackson were all arrested, charged with capital murder, tried and convicted based on the eyewitness testimony of a 12-year-old named Eddie Vernon.

All three men were sentenced to die in Ohio's electric chair. Mr. Jackson received a reprieve due a paperwork error while the Bridgeman brothers were still on death row when Ohio declared the death penalty unconstitutional in 1978.

For almost four decades, Mr. Jackson proclaimed his innocence. And, for almost four decades, few listened and even fewer cared.

In 2011, Mr. Vernon recanted his testimony to his pastor. He said his testimony was coerced by the police who threatened to arrest his parents if he didn't testify the way the police told him. He told the pastor he was on a school bus at that time of the robbery.

Lawyers with the Ohio Innocence Project filed a motion for new trial in March of this year.

As a result of Mr. Vernon's recantation, and the prosecutor's admission that without an eyewitness the case against Mr. Jackson cannot be prosecuted, Cuyahoga County Judge Richard McMonagle, dismissed the charges against Mr. Jackson and ordered him freed from prison.

While Mr. Jackson is no doubt thankful that his 39 year ordeal is over, this exoneration leaves us with more troubling questions.

Once again we have a man sent to prison for decades because a jury thought the government had proven its case beyond a reasonable doubt - when they were wrong. The conviction was based upon the eyewitness testimony of a child. There was no physical evidence connecting any of the men to the murder. Nothing but the word of a child who was coerced by the police.

This is what happens when we allow the government to lower its burden of proof. If you've ever picked a jury in a criminal case you've heard the prosecutor tell the panel what he or she thinks beyond a reasonable doubt isn't. If you're in Harris County you've probably seen the prosecutor put on the PowerPoint display with the puzzle of the gun with a few missing pieces. If you've ever tried a criminal case you've heard the prosecutor tell the jury to "add it up" (or something similar) when discussing the evidence (or lack thereof).

Every new exoneration points out the deficits in our criminal (in)justice system. Every new exoneration points to the fallacy of the infallibility of eyewitness testimony. And every new exoneration points out how low the state's burden of proof in criminal cases has been allowed to fall.

Mr. Jackson's case isn't the triumph of our system of (in)justice. It's an indictment of it. It should give us all pause whenever we step into the courtroom. It should give us all pause when we sit down to decide whether the state has met its burden of proof.

Ricky Jackson lost 39 years of his life for a crime he didn't commit. That's 39 years that can never be replaced. There is no amount of compensation that can make up for the time that was stolen from him. Meanwhile, those who conspired to convict him walk free.

Some system, huh?

Wednesday, November 26, 2014

Passing the buck, Missouri-style

Enough.

The Grand Jury didn't choose not to indict Darren Wilson. The St. Louis County District Attorney made that decision. For the uninitiated, let's take a look at how the grand jury system works.

The first thing to remember is that the system is stacked in the prosecutor's favor. There is no voir dire when a grand jury is selected. Due to time concerns, most of the folks who serve on grand juries are retired or hold jobs that allow them to take chunks of time off without reprisal. In many jurisdictions, grand jury commissioners are appointed and they select the grand jury - little need to worry about the grand jury reflecting the diversity of the population in that scenario, however.

Grand juries originally were envisioned to screen cases so that citizens accused of a crime wouldn't face public shame if there was insufficient evidence to go forward. They still serve a screen purpose today - and that's just what St. Louis County DA Robert McCulloch used the grand jury for in this case.

Prosecutors hate bad publicity. But what they really hate is having to make a controversial decision that's going to piss off folks that might vote for them. In a case in which folks are going to be angered one way or the other, the DA looks for someone else to take the heat. And that "someone else" is the grand jury.

The prosecutor is the only person who puts forward evidence before the grand jury. Yes, the (potential) defendant might testify, but only under certain conditions would an attorney take that tack. The prosecutor calls the witnesses, submits the evidence and pushes the grand jury down the path he wants them to take.

Then, once the grand jury announces its decision, the District Attorney can tell everyone within earshot that it was the grand jury's decision to proceed or not. Of course the general public never hears the prosecutor urge the grand jury to indict ("just think of the message it would send to the community if you didn't") or "do what you think is right."

The entire process in the Ferguson case was a circus from the beginning. Most grand jury presentments last but a few minutes and consist of little more than the prosecutor summarizing an offense report. Whatever evidence is submitted is never disclosed - unless the defense attorney can convince a judge that someone is playing fast and loose with the rules.

Mr. McCulloch dragged out this process and did everything in his power to color the facts and bury the case. The case took almost a month to present. He called 60 witnesses. He released all of the information presented to the grand jury. His press conference consisted of him blaming Michael Brown and the media for everything.

He's the one who decided to announce the decision at 8:00 p.m. He's the one who decided to give the people hours upon hours to stew. He's the one who decided to smear Michael Brown's name before the national media.

But we are to believe that any anger folks are feeling about the no-bill should be directed at twelve citizens who did as they were told?

Tuesday, November 18, 2014

Sending in the stormtroopers to quell dissent

Back on August 9 of this year, Ferguson (MO) police officer Darren Wilson shot and killed Michael Brown, an unarmed black teenager. The killing lit a powder keg of pent-up tensions in the St. Louis suburb. The world witnessed police paramilitary units patrolling the streets of Ferguson in riot gear and firing tear gas cannisters and rubber bullets into crowds.

Now, more than three months later, tensions are once again on the rise in Ferguson as everyone awaits the decision of a St. Louis County grand jury investigating the shooting. The local District Attorney refused to recuse himself and the governor resisted calls for a special prosecutor.

If our history is any guide, the grand jury will choose to no-bill the officer either because the DA made no effort to obtain an indictment or because Mr. Wilson wears a badge. Police officers just don't get indicted unless the evidence is undeniable as to what they did.

In anticipation of a no-bill, Missouri Governor Jay Nixon has declared a state of emergency in St. Louis County. The reason given is the need to preserve law and order and to protect people and property. Of course, if you stop to think about it, sending in the paramilitaries when they are the ones responsible for the unrest in the first place makes absolutely no sense. But that hasn't stopped Gov. Nixon.

Nope. You know the last thing Mr. Nixon and his band of wealthy white supporters want to see is a bunch of black people marching and carrying signs reminding folks that racism and oppression are still alive and well in the Show Me State. His declaration is but an attempt to intimidate people into not exercising their right to seek redress of their grievances. By upping the ante with a bunch of black-clad Stormtroopers carrying the latest gear obtained from the US Defense Department and military contractors, Gov. Nixon has assured us of a confrontation.

Mr. Nixon has done nothing since the night Mr. Brown was murdered to address the concerns of the citizens of Ferguson. He has nothing to address the concerns of African-Americans living elsewhere in the state. He has done nothing to address the issue of police brutality. He has done nothing to address concerns over the militarization of the police.

Police officers are supposed to be members of the community. Their job is to serve and protect those around them. But, when you put riot gear on an officer and give him a helmet and a visor, those he's standing across from become the enemy. It's no longer everyone working together, now it's us against them. These paramilitaries are the last line of defense for the Establishment against those who aren't wealthy and/or white.

Wearing a badge does not give one carte blanche to kill people. Police officers are not above the law, they are subject to the same laws that the rest of us are. Maybe one day we'll realize that.

Tuesday, August 5, 2014

The end of the road?

Six years ago today The Defense Rests made its first appearance in the blawgosphere. Since that first humble post on the need for PR bonds in Harris County - sadly enough it's an issue that still hasn't been resolved - a total of 2,272 posts have appeared on these pages. I would like to think that most of them were worth reading (though I know of a few that probably weren't).

I would like to think that even if you disagreed with my views that my writing made you think. I never set out to try to change anyone's mind. I believe that most of us are pretty set in our ways of thinking after awhile and change is difficult.

I do believe that some of our views evolve over time. Our attitudes toward race have changed greatly over the past 50 years. I think our attitudes toward same-sex marriage have also changed with the times. I know that our views of the death penalty are evolving and I do hope that one day in the near future we see the end of capital punishment in this country.

My life has also evolved. Since the first post appeared on August 5, 2008, I have moved offices twice. My practice is steadily growing and eating up more and more of my available time. I have cut down on the number of posts I write a week as a result of the increased demands on my time. As the days have gotten longer, it's gotten harder to sit down and write at night. Whether it's writer's block or exhaustion doesn't really matter.

And then there's the chaos in my personal life. Dealing, or trying to deal, with the reality of a broken marriage takes priority over this vanity project. I'd like to think I might have some insight as to how to make a marriage work or what causes one to fail - but I don't. I can't even point to the moment things began to go downhill. I just know that once the avalanche began there was no stopping it. I don't know what the future will hold in this regard.

For those reasons I am taking an indefinite break from writing. I hope to be back here again one day, but I make no promises. If I do return to the blawgosphere it will probably be on a more sporadic basis. The grind of writing day after day will wear you out after a while.

I'd like to thank everyone who stopped by over the past six years. Whether you left a a favorable comment or told me what an idiot I was, at least you cared enough to put it in writing. Thanks also to everyone who clicked on one of the opinion buttons at the bottom of each post. Thank you to everyone who sent me story ideas over the years. Thanks also to my fellow blawgers who helped me along with advice or criticism. Very special thank you's go our to Mark Bennett, Scott Greenfield, Jeff Gamso, Scott Henson, Jamison Koehler and Murray Newman.

As I depart I am reminded of a line in an old Billy Joel song - "Life is full of hellos and goodbyes / I'm afraid it's time for goodbye again."



If not goodbye, at least farewell for now.

-30-

Monday, August 4, 2014

Road songs

No deep insights today. Just a few of my favorite road songs...







Friday, August 1, 2014

Taking credit where credit wasn't due

Michael Phillips was arrested for the 1990 rape of a 16-year-old girl. Mr. Phillips, who maintained his innocence, entered into a plea agreement on the advice of his attorney after the white victim identified Mr. Phillips, a black man, in a photo line-up.

Mr. Phillips served 12 years in prison and then had to register as a sex offender after his release. As a result of not complying with the registration requirements he eventually went back to jail for another six months.

Earlier this year the DNA evidence in that rape case was tested - but not at Mr. Phillips' request. The kit was tested at the behest of the Dallas County DA's Office. The results of that test exonerated Mr. Phillips.

But why was the DA's Office testing a rape kit that had set on a shelf for more than two decades? Why were they testing a rape kit when the man convicted of the crime didn't request it?

Dallas County DA Craig Watkins would like you to believe that this was an incident in which his Conviction Integrity Unit was doing its job in making certain that no one was convicted of a crime they didn't commit. But that's not the reason the rape kit was tested.

You see Dallas County has a serious problem with its crime lab. Forensic work in Dallas County is performed by the Southwest Institute of Forensic Sciences. And SWIFS doesn't have a particularly good track record when it comes to DNA testing.

I have linked to a copy of an audit performed by the US Department of Justice in 2009 that paints a very disturbing picture of the crime lab.

Here is an excerpt from the report on the lab's compliance with CODIS protocols in the DNA section:
In our sample of 103 profiles, 2 profiles were inaccurate and 18 profiles were deleted from NDIS because they were unallowable, incomplete, or missing, and because of insufficient record retention, 15 of the Laboratory's files did not have sufficient evidence to determine if the profiles were obtained from a crime scene. The Laboratory deleted these 35 profiles from NDIS. The remaining 68 profiles we reviewed were complete, accurate, and allowable for inclusion in NDIS. However, 58 of the 103 profiles in our sample are not searchable at NDIS because they contain 9 or less core loci rather than the minimum of 10 loci required to be searchable at NDIS.4 Prior to January 2009, the Laboratory only attempted the analysis of 13 loci on forensic samples that did not have a standard for comparison, but in January 2009, the Laboratory began attempting the analysis of 13 core loci. However, 11 (30 percent) of the 37 samples analyzed between January 1, 2009, and May 13, 2009, contained less than 13 loci. The CODlS Administrator explained that it could be a matter of timing if the profile was run prior to January 1, 2009, or 13 loci were not run either because a suspect profile had already been developed for comparison or some of the sample was preserved for later use.
If this is the best that SWIFS can do, then Dallas County is in serious trouble. This, unfortunately, seems to be par for the course for crime labs run by and for law enforcement. These labs aren't meant to be independent. They are meant to generate evidence that the state can use against those accused of criminal acts. This mission encourages sloppiness and it encourages analysts to err on the side of law enforcement when making close calls.

The system is broken and it can't be fixed.

Thursday, July 31, 2014

Vultures holding Argentina hostage

Back in 2001 Argentina defaulted on its debt obligations due to a cratering economy. Over the intervening years the government reached agreements with most creditors on reducing the amount owed on the outstanding bonds. Some creditors accepted discounts of up to 70% on their holdings.

But something else happened in the wake of Argentina's default. So-called vulture capitalists swooped in and bought government bonds at highly discounted prices - for pennies on the dollar. These vultures didn't like the terms of Argentina's agreements with other creditors. Despite the fact they bought the bonds at a steep discount, despite the fact they bought the bonds after Argentina had defaulted on them, despite the fact the effective interest rates on the bonds were astronomical, the vultures wanted to receive face value for their "investment."

They filed suit in New York to stop Argentina from paying off the creditors who accepted discounts at the expense of the creditors who refused to enter into the agreement. The court, not surprisingly, sided with the American-based hedge funds who brought the suit. Argentina appealed up to the US Supreme Court which upheld the lower courts' rulings and put a halt to Argentina's plan to pay off the creditors who accepted the deal.

Now Argentina and its creditors are in negotiations to avoid another default. The original agreement called for Argentina to make a payment to creditors on June 30, 2014. The ongoing litigation prevented those payments from being made. Now, 30 days later, Argentina is on the brink of a second default if an agreement isn't reached by midnight.

I'm not going to beat around the bush on this one. The US courts got it wrong. Investors bought Argentina's bonds because they carried a higher interest rate than comparable bonds in other countries. They carried a higher interest rate because there was a greater chance of default on those bond offerings than in the United States or Western Europe.

When the Argentine economy crashed and country defaulted bondholders knew they weren't getting face value on their bonds. That is the price one pays for receiving a higher interest rate. Institutional investors knew their best bet was to negotiate a discount on their holdings since it's better to get something back rather than nothing. These large investors knew what they were getting themselves into. Wealthy individual investors had access to information and they were well suited to weigh the promised return versus the risk of default.

But the vulture capitalists didn't think the same rules should apply to them. These hedge funds didn't hold Argentine bonds at the time of the original default. They bought them later, at a very steep discount. And why were the bonds sold at such a discount? Could it possibly be because no one expected Argentina to pay the bond's face value at maturity? The vulture capitalists entered into their transactions well aware that they weren't going to get face value for their bonds.

But now a group of greedy capitalists are attempting to hold an entire nation hostage so that they can fatten their wallets.The Era of the Ugly American is live and well.

See also:

"Argentina blames US mediator for debt default," BBC News (July 31, 2014)

Wednesday, July 30, 2014

Just looking for an excuse to affirm

In 2012, Milton Kay was driving in Orange, Texas without wearing his seatbelt and without having a current registration sticker on his windshield. He was pulled over by Officer McDonald of the Orange Police Department.

While conducting the stop, Officer McDonald smelled the odor of an alcoholic beverage on Mr. Kay's breath and noticed that Mr. Kay was slurring his words.

So, of course, what started out as a routine traffic stop turned into a full-blown DWI investigation -- even without any evidence of impairment while driving. As (bad) luck would have it, Mr. Kay had two prior DWI convictions - one in 1989 and one in 2000 - that turned a routine traffic stop into a felony DWI arrest.

Section 724.012 of the Texas Transportation Code states that if a person with two or more prior DWI convictions is arrested for a DWI and refuses to provide a breath or blood sample, a police officer may require the motorist to submit to a blood draw. In case you didn't know it, when you walked away from the DPS office with your driver's license you told the state that it was okay from them to jab a needle in your arm if you declined to cooperate in a DWI investigation.

And you thought that Fourth Amendment thingie applied, didn't you?

Well, of course it didn't apply in Mr. Kay's case because his alcohol concentration was .024 - three times the legal limit.

At trial Mr. Kay argued that the blood draw was illegal because he didn't agree to it and because there was no showing by the state of exigent circumstances per McNeely. The trial court wasn't inclined to ignore a high blood test result so Mr. Kay's objections to the admissibility of the blood test results were denied. Mr. Kay was subsequently sentenced to 19 years in prison which, if I may editorialize, was absurd given the circumstances surrounding the arrest.

The 1st Court of Affirms Appeals in Houston then got there shot at the case. In Kay v. State, No. 01-13-00595-CR (Tex.App.--Houston [1st] 2014) Justice Rebecca Huddle pointed out that Mr. Kay never specifically mentioned that the blood draw violated his Fourth Amendment protection against unreasonable search and seizure, the Court affirmed the conviction and told Mr. Kay to enjoy his time in prison.

Here is the relevant portion from Mr. Kay's motion to suppress the blood test result...
[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused. 
Let's see, Mr. Kay mentioned that the blood draw violated the US Constitution. He mentioned that it violated the Texas Constitution. He mentioned that a warrantless blood draw falls under the purview of the Fourth Amendment. He even cited the Texas Statutory Exclusionary Rule.

Yet, to the First Court of Appeals, that wasn't enough to invoke the protections of the Fourth Amendment and the McNeely case.

Just the other day I praised the legal reasoning of Marc Brown in suppressing some pretty damning evidence because the police violated the accused's Fourth Amendment rights. I wrote that Justice Brown made his decision not on the evidence that was in question, but, instead, on the way in which the evidence was gathered.

Well so much for that type of legal reasoning from Justice Huddle. Instead of looking at whether the evidence was obtained legally, she looked for any reason she could find to justify the trial court's decision to deny Mr. Kay's motion to suppress. What she found makes a mockery of her title of "Justice."

Tuesday, July 29, 2014

Where it's worse to smoke a joint than beat up your wife

Last week Baltimore Ravens running back Ray Rice was suspended for two games without pay for an incident in which he knocked his (now) wife out and dragged her out of an elevator unconscious. He was indicted by an Atlantic County (NJ) grand jury. Mr. Rice was then accepted into a pretrial intervention program in which after he completes a year on probation, the case will be dismissed. 

Justin Blackmon, a receiver for the Jacksonville Jaguars, is currently on an indefinite suspension for his third violation of the NFL's substance abuse policy. The first violation did not result in a suspension. The second violation earned Mr. Blackmon a four-game suspension.

Josh Gordon, a receiver for the woeful Cleveland Browns, was hit with a one-year suspension after he was arrested for driving while intoxicated after already having failed at least one random drug test. Mr. Gordon was stopped for speeding and, after being arrested on suspicion of DWI, blew a .09 on a breath test.

And I guess I would be remiss if I didn't remind y'all that Ben Roethlisberger, the quarterback for the Pittsburgh Steelers, was suspended for six games back in 2010 after he was arrested, but not charged with sexually assaulting a 20-year-old college student in Georgia.

NFL Commissioner Roger Goodell and his lackeys have been making the sports-yak circuit trying to justify a policy that makes little or no sense. One NFL official, Adolpho Birch, appeared on ESPN Radio Monday morning and made a complete ass out of himself trying to justify Mr. Rice's two-game suspension.

What does it say about the NFL - and our society - that the penalty for smoking marijuana is more severe than the penalty for knocking your girlfriend unconscious? The fact that so many folks in authority still seem to buy into the propaganda film Reefer Madness so many years after it was made (and discredited) is one of those things that makes no sense.

And how can we even compare Mr. Gordon's misstep with what Mr. Rice did to his then-girlfriend in that elevator? 

If the point in the NFL's player conduct policy is to protect the corporate image of the league, why is Mr. Goodell more concerned about players smoking marijuana and driving while intoxicated? Shouldn't domestic assault be an area of more serious concern? It never ceases to amaze me how our puritanical views on pleasure and recreation lead us to such absurd results.

Now if you think that Mr. Blackmon and Mr. Gordon received the right punishment for their actions - I will respect that opinion. But, if their suspensions were justified, then Mr. Rice should be joining them on the outside looking in for the 2014 season.