Saturday, August 20, 2016

Party Liability Problem in Death Penalty Escapes Review

The execution of Jeff Wood next Wednesday, August 24, 2016, has been stopped. The Texas Court of Criminal Appeals (CCA) in a non-published order, granted an application for habeas relief and remanded the case back to the trial court for an evidentiary hearing on issues of junk science and false testimony. The CCA's non-published order, however, did not send the case back to the trial court on the issue media, celebrities and even a conservative Texas legislator have focused on as the reason to not execute Wood: He did not actually kill the victim.

Judge Elsa Alcala cut to the chase of this important issue in her published concurring opinion. Before I get to Judge Alcala's opinion, some knowledge of the law surrounding the death penalty and non-triggermen is required. According to the Supreme Court of the United States (SCOTUS), a defendant is eligible for the death penalty even if they themselves did not kill. Instead the inquiry is whether there is evidence of a sufficient level of culpability in the killing, even if carried out by another.

Defining "sufficient level of culpability" has always been the legal bother.

Two cases from SCOTUS attempt to define this area. First, Edmund v. Florida, which seemed to limit the death penalty to those who it was proved had intent to kill. This bright line seemed to be the standard until SCOTUS decided Tison v. Arizona, which held the death penalty does not violate the 8th Amendment, even if the defendant lacked specific intent to kill, so long as it was proved the defendant acted with reckless indifference to human life and was substantially involved in a violent felony under circumstances likely to result in the loss of innocent human life.

One problems with this Tison standard? In application it has the legal consistency of jello - it can mean almost anything. In death decisions, inconsistency means arbitrary and capricious results.

But I digress.

Judge Alcala's concurring opinion accepts Tison, but raises the question of whether Texas' capital scheme is nevertheless inconsistent with it. The death penalty necessarily requires as a pre-condition conviction of a capital offense. The problem (as Judge Alcala has noted in prior opinions) is there are a literally hundreds of ways a Texas defendant can be convicted of Capital Murder in Texas - supposedly reserved for the worst of the worst. Many of these ways include conviction under the Texas criminal law of parties. A conviction under the law of parties requires less than necessary to be death penalty eligible under Tison. To convict in Texas, it is only required that the non-killing defendant should have anticipated death would have resulted from a conspiracy to commit the underlying crime which their confederate's act of murder aggravated to Capital Murder.

As I have previously blogged, the criminal party liability theory necessary for conviction for Capital Murder (or any other penal offense) does not even have to be unanimous.

This was an issue in Wood's habeas application (minus the unanimity issue) yet will not be remanded for consideration under the unpublished per curium decision. Judge Alcala thought it should, hence her published concurring opinion to grant habeas relief for Wood. She wanted it known that there are systemic problems in the criminal law of parties as it applies to the Texas Capital Punishment scheme:
The guilt-innocence jury instructions permitted the jury to convict [Wood] of capital murder...if he acted with the intent to commit robbery and another person was killed as a result of that robbery under circumstances that showed that applicant should have anticipated that a death would result, even if he had no intent for a death to occur. The jury, therefore, may well have convicted of capital murder even if it believed that his sole intent was to rob the victim and that he should have anticipated, not that he actually did anticipate, the death of the victim by his co-defendant. Because the guilt-phase instructions permitted him to be found guilty of capital murder for a death that he may not have actually anticipated, applicant is correct that these instructions would have failed to comply with the requirement of Tison that the defendant exhibit at least reckless indifference to human life, coupled with major participation in a felony offense. (citation omitted) (emphasis added).
So Jeff Wood's execution is off, and with it the issue of when, if ever, an individual who participated but did not kill should be death penalty eligible has receded back into the shadows. The issue will rise again, like a Phoenix, the next time arises a party head is on the block.

Oh, by the way, Presiding Judge Keller and Judge Meyers dissented from the granting of Wood's Application. No opinion on either dissent.

The next date with the Texas execution chamber belongs to Renaldo Ruiz on Wednesday, August 31, 2016.

Saturday, August 13, 2016

Stats on Marijuana: Same Song, Different Verse

As I wrote yesterday, a Grits for Breakfast post alerted me to the new Office of Court Administration (OCA) judicial case statistics. As I practice primarily in Brazos County, I was (and have been) curious to tease out data rather than rely on anecdotal evidence. The OCA statistics allow for an apples to apples comparisons from counties based not only on population, but also demographics.

The statistics below reflect OCA data on new misdemeanor filings for the 2015 CALENDAR year (CY) for counties with comparable populations to Brazos County. I have taken, ranked by population, Texas counties beginning with number 18 (Lubbock County) through number 23 (Hays County). If you check the misdemeanor filings I used yesterday for FISCAL year 2015 the total filing numbers are higher. I do not have a ready explanation, but used numbers based on the OCA database HERE for purposes of accumulating this table.

One note on the numbers. The population totals DO use the FY population totals. I use them here because these totals are more current, and do not impact the percentages related to the filings within the counties surveyed.

The numbers below reflect for CY 2015, the total number of new misdemeanor filings in the county, of that number how many of the filings were Possession of Marijuana (both Class A and B filings), what the percentage of the total filings were then POM related, and the same number and percentage of total for DWI (first only) filings. For additional context I took statewide totals as well.

Here are the results. Comments after the jump.

County        Population       CY 2015       POM  % of Total          DWI   % of Total          

Lubbock      293,974             4037               587          15%                   659         11%                        

Webb          266,673               2241               239          11%                  247         11%                                                

Jefferson     252,235               4022               551         14%                  476        12%                                                      

McLennan  243,441                4168              575         14%                  544         13%                                                      

Smith          218,842               3227              471           15%                 457        14%                                                

Brazos        209,152                3878              800           21%                525        14%  
                                       

Hays           185,025               3880               616           16%                 573       15%


Statewide    27M                  419,0001        60,875        15%               57,583     14%

Brazos County is filing Possession of Marijuana cases at a rate more than 6 percentage points higher than the statewide average, and more than 5 percentage points higher than the closest comparable county by population - Hays County. Several of these counties are demographically similar to Brazos County. Lubbock, McLennan (Waco), Hays (San Marcos) also are the homes of large university populations. This discrepancy in POM filings is more noticeable given Brazos County's DWI filings are identical to the DWI filing percentage statewide and in line with the compared counties.

Putting it another way, Lubbock County, home to Texas Tech University, has around 85,000 more in population than Brazos County, yet filed 223 fewer POM cases, while still managing to file 159 more total misdemeanor cases.

I use POM cases because of all the misdemeanor crimes currently on the books, this is the category of offense most likely to be decriminalized in the near future. Most counties have either relaxed enforcement or utilized pre-trial diversion programs that reduce their POM filings. This makes fiscal sense for the counties with these programs, while at the same time allowing arrestees with small, personal use amounts to avoid an unnecessary criminal prosecution that could effect them for years.

It would interesting to find out how more, if any, bonds for POM cases are for these counties. In Brazos County someone arrested on a Class B POM (less than 2 oz.) can expect to post a bond of $2000-$3000. I have a feeling that figure is substantially smaller in other counties, but do not have the data to back that up - yet.                                                  

Friday, August 12, 2016

New FY 2015 Texas OCA Statistics - Interesting

Grits for Breakfast alerted me to the new Office of Court Administration (OCA) judicial case statistics for fiscal year 2015. I dug out some of the statistics and did some additional computing based on the numbers provided by the OCA. I concentrated on new misdemeanor filings for the year for counties with comparable populations to Brazos County. Below are ranked, by population, Texas counties beginning with number 18 (Lubbock County) through number 23 (Hays County).

The last column is the one I computed based on the numbers given by the OCA. It breaks the numbers down to make a comparison between these mid-sized counties based on how many FY 2015 new filings there were per 100,000 residents. In other words, I wanted to compare formal charging decisions from the mid sized counties in a way that took into account population differences.

The results are below. A few comments after the jump.

County        Population        New Misd filings FY 2015         Filings Per 100,000 in Population

Lubbock      293,974               4,896                                            1,665/100K (7)

Webb          266,673                3,236                                            1,213/100K  (6)

Jefferson     252,235                4,974                                            1,972/100K (4)

McLennan  243,441                5,353                                             2,199/100K (1)

Smith          218,842                4,010                                            1,832/100K  (5)

Brazos        209,152                4,442                                             2,124/100K (2)

Hays           185,025                3,758                                             2,031/100K (3)


Conclusion? McLennan County (Waco) filed more misdemeanor cases per 100,000 residents (almost 2,200 per 100,000 in population) than any of the 7 mid sized counties in Texas. Brazos County (Bryan) was a close 2nd with 2,100 per 100,000 in population. Brazos County includes Texas A&M University, Lubbock, Texas Tech, Hays (San Marcos), Texas State, and McLennan, Baylor.

It is worth noting Lubbock County is 7th in the per capita calculation, while McLennan, Brazos, and Hays Counties are 1st, 2nd and 3rd in misdemeanor filings per 100,000 in population. The results are interesting, yet the reasons for the numbers are a little harder to come by.

I have other statistical breakdowns coming in a post in the near future concerning the specific case categories in which new filings occurred in misdemeanor cases in 2015. I will attempt to again compare these misdemeanor charging decisions between these same counties.

Tuesday, August 9, 2016

A Goodlatte On Presidential Commutation Power

In the past few weeks, President Obama commuted the federal prison sentences of 214 people. As a result, Obama has now commuted more sentences than his nine predecessors combined. However, his pardon grants have lagged significantly behind. Thus, depending on the political spin, President Obama is doing way too much or way too little in exercising the power explicitly given to his office by the Constitution of the United States.

As reported by the Washington Post and News Virginian, the Chairman of the U.S. House Judiciary Committee, Rep. Bob Goodlatte, is not happy:
'I am deeply concerned that President Obama has continued to use his pardon power for a total of 562 commutations during his presidency,' Goodlatte said. 'Additionally, the fact that the Justice Department’s clemency initiative is focused solely on federal drug offenders continues this administration’s plainly unconstitutional practice of picking and choosing which laws to enforce and which laws to change.'
There is a reason for picking drug offenders for commutations. Moreover, to suggest it is "plainly unconstitutional," is just a wrong statement of Constitutional Law.

However, it was Rep. Goodlatte's next stream of constitutional garbage that piqued my ire:
The congressman further said that the president’s actions were 'not, as the Founders intended, an exercise of the power to provide for ‘exceptions in favour of unfortunate guilt.' Instead, Goodlatte said, Obama is using his power to commute sentences 'to benefit an entire class of offenders who were duly convicted in a court of law — not to mention [his actions are] a blatant usurpation of the lawmaking authority of the legislative branch.'
The linked Washington Post story quoted a favorite blogger of mine, P.S. Ruckman who writes at the blog Pardon Power concerning these statements:
 [Goodlatte] says the Founders intended the clemency power to provide only 'exceptions in favour of unfortunate guilt.' God forbid he would read the rest of the language around that snippet from the Federalist Papers. He might discover [Alexander] Hamilton’s discussion of the political use of pardons, for example, to quell insurrections. He might also discover Hamilton’s observation that criminal codes have an almost natural tendency toward over-severity. Therefore, says Hamilton, there should be 'easy access' to mercy. (emphasis added).
Alexander Hamilton always seems be to there to inform, even after almost 225 years, does he not? Pardon by way of commutation has been greatly underutilized by recent Presidents. President Obama has wielded the commutation sword because he has been the first to fully understand the damage wrought by our failed drug wars. I am hoping in the coming months he will using this power much more.

Thursday, August 4, 2016

UPDATED (with edits) Texas' Intellectual Disability Idiocy - Part I

UPDATED 08/05/2016: This post has been edited. Additional substantive information has been added and grammar corrected. I was in too much of a hurry to post yesterday. Apologies. The subject matter is too important not to be more careful.

This is the first of several posts regarding the next assault on the Texas Death Penalty scheme. The assault is led by way of Moore v. Texas, a case currently set to be decided during the October 2016 term of the United States Supreme Court (SCOTUS).

The legal question presented and accepted by SCOTUS in Moore:
Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed
 The Intellectually Disabled are not eligible for the Death Penalty. If a Capital Murder defendant is claimed to have ID, it is called an Atkins claim. A couple of good primers on what an Atkins claim is, and Texas' outlier approach to defining ID for Death Penalty purposes, can be found here and here.

Texas' outlier approach is based on how intellectually disability (ID) is defined for Death Penalty purposes. The two leading organizations on ID diagnostic criteria are the American Association on Intellectual and Developmental Disabilities (AAIDD) and the American Psychiatric Association (APA). Their respective publications defining clinical criteria for ID are, Intellectual Disability, Definition, Classification, and Systems of Support (11th Ed.) and the Diagnostic and Statistical Manual (5th Ed.). Both publications define with precision "adaptive behaviors," 1 of the 3 diagnostic criteria in making the ID diagnosis.

Texas does not follow the AAIDD and the APA criteria in defining adaptive behaviors, at least not rigidly. Instead, the benchmark used in Texas are 7 factors listed in a case styled Ex parte Briseno. These "Briseno factors" are appended on to the the clinical criteria from the AAIDD and APA. The Briseno factors and their inconsistency with Atkins are detailed in a extremely readable 2016 Texas Law Review Note by Hensleigh Crowell.

Ms. Crowell's Note analyzes how the CCA came to mistakenly square the factors in Briseno with the SCOTUS decision in Atkins:
The CCA’s confusion seems to come from a misreading of a key sentence in Atkins, in which the Court states that '[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.' This sentence, properly read, speaks only to the need for states to develop procedures with which to sort out individuals claiming to be intellectually disabled, but who are in fact not intellectually disabled. The 'range of mentally retarded offenders about whom there is a national consensus' seems plainly to refer to all individuals who meet the professional definition of intellectual disability, which is referenced multiple times in the Court’s decision. However, the CCA misread this sentence as stating that not all individuals who in fact are intellectually disabled are so impaired as to fall within the range for which there is a national consensus. Relying on this misreading, the CCA was able to justify creating a substantive definition of the class of individuals protected by Atkins—a different and narrower definition than the one endorsed by the Supreme Court. The result in Texas has been the continual denial, in contravention of Atkins, of valid claims of intellectual disability in Texas. (footnotes omitted).
If Briseno resulted from a misreading of Atkins, it should be added the grant of cert in Moore came only after the SCOTUS decision in Hall v. Florida. If the CCA had been paying attention, Hall was a shot across the CCA's bow regarding the Briseno factors. Moore was their chance to right the ship after Hall was decided by SCOTUS. However, the CCA seems to have had a tin ear, and as a result, the whole of Atkins claims decided under the Briseno factors in Texas may be subject to re-litigation if the State loses in SCOTUS.

Moore's SCOTUS merits Brief was filed on Thursday, July 28, 2016. The Brief ended this way:
As this Court recently reiterated in Hall, '[t]he death penalty is the gravest sentence our society may impose.' If that sentence is to be imposed on a person claiming intellectual disability, States must assess that claim according to a standard that is informed by the current views of the medical community. Texas, however, refuses to do so. Instead, it deploys its non-clinical Briseno factors to conclude that individuals, like Moore, are not intellectually disabled for Eighth Amendment purposes in Texas, even if they are intellectually disabled under current medical standards (as the state habeas trial court determined here) and would therefore be exempt from execution in other states.
Because nothing in Atkins or Hall authorizes the states to narrow the scope of the substantive Eighth Amendment right afforded by this Court by defining intellectual disability in a way that encompasses only a subset of defendants who are intellectually disabled under current clinical standards, the CCA’s use of its Briseno factors—which conflict with current medical standards—to deny Moore’s Atkins claim provides yet an additional ground for reversal and further reflects and aggravates the constitutional error from the CCA’s rejection of current medical standards.
The merits briefing from the State of Texas is due September 6, 2016. It should be an interesting read. Will the State moor itself to the CCA reasoning outlined above or will it come up with something different? More on this important case once the State of Texas files its briefing.

Oral Arguments have not been scheduled.

Saturday, July 30, 2016

Fear on Trial

In I'm Sorry John Henry, I wrote:
John Henry Faulk was a well educated man. A protege of J. Frank Dobie, a friend of Edward R. Murrow and Louis Nizer. A man who knew the evils of the Jim Crow segregation laws and spoke up against it at a time when there was real danger in doing so. A man who stood up to a world class bully like Roy Cohn when, again, there was real danger, and won. I think back and wonder how he must have felt with the boy I was asking him about things of which he knew so much and about which I knew so little.
Like rotted deadfall, I thought Roy Cohn had faded from the landscape of history. I was wrong. If I asked my teenage sons about Cohn, neither would likely know him, though both are conversant on current events and history. Neither would know who, nor what he was, nor why either inquiry is important.

Cohn's rise to fame started with his public role in the prosecution and execution of Ethel and Julius Rosenberg. The Rosenbergs were executed for passing nuclear secrets to the Soviet Union. As this post is about Cohn, not the issues surrounding the Rosenbergs, it is enough to say they were the only two civilians to be executed for espionage during the Cold War. The Rosenberg's Wikipedia page summarizes Cohn's role in their prosecution:
The Rosenbergs were convicted on March 29, 1951, and on April 5 were sentenced to death by [Federal] Judge Irving Kaufman. [Prosecutor] Roy Cohn, who would play a major role assisting Joseph McCarthy with his hearings as his chief counsel, later claimed that his influence led to both [U.S. Attorney] Saypol and Judge Irving Kaufman being appointed to the case, and that Kaufman imposed the death penalty based on his, Cohn's, personal recommendation. The conviction helped to fuel Senator Joseph McCarthy's investigations into anti-American activities of U.S. citizens. (footnote omitted).
To understand Joseph McCarthy, you must know Cohn. McCarthyism may now be a label of infamy, but without Cohn, there would have been no McCarthy. It is hard now to sort the fiction from the fact concerning those times, but Cohn was there, missionary to the threat of communist conspiracy. John Henry Faulk was fall out of Cohn's zeal. Faulk's book Fear on Trial documents his brush with this history, and Cohn.

Yet as McCarthy's star crashed, Cohn's somehow ascended. Cohn became a "go to" lawyer in New York. He was a social staple at the Hamptons, Manhattan's Upper East Side parties and Studio 54. Cohn was later disbarred for stealing a client's money. Nicholas von Hoffman in his biography Citizen Cohn, published in 1988, describes much worse ethical lapses by Cohn. Cohn used litigation like a club, using lawsuits to intimidate and cajole opposition to heel.

Cohn also vilified what is known now as the LBGT community. This despite his own brutal death at the hands of AIDS. To his death he publicly insisted it was cancer.

The question is how did Cohn not just survive, but thrive? Cohn had the hucksters ability to make people believe in him while simultaneously snaking a hand into their pocket. Cohn did all this while sneering at the institutions and authority he believed to be ruining his America. It was all part of his skill set in selling the art of the deal.

In a story titled The Snarling Death of Roy M. Cohn from the March 1988 edition of LIFE Magazine, von Hoffman documents Cohn's America, and includes a photograph of an unrepentant Cohn months before his death:
But just as his Communist foes hid their secret beliefs, Roy Cohn hid his private life as a homosexual. When AIDS killed him in the bloom of the Reagan years, the public discourse had turned to family values and Americanism. The triumph of patriotic kitsch must have pleased Cohn, for he himself reveled in little flag-waving displays. At his parties he'd haul people to their feet to sing 'God Bless America,' evidently his favorite song, and though he was a lifelong operagoer, Roy's idea of a good time was to sing patriotic ditties at a piano bar in Provincetown, on Cape Cod.  
From the mid 1970's until his death Cohn mentored a person whose talent he must have recognized: a young Donald Trump. The connection between Trump and Cohn, and the lessons young Trump learned from Cohn are detailed by both the New York Times and Politico. In my deepest reaches I believed Cohn's death was proof karma existed. Now, it seems, Roy Cohn is actually laughing at me, and suckers like me, from some celestial, or infernal, perch.

Sunday, July 24, 2016

Special People

Special. The word applies to people, underpaid and under appreciated, that work with those with special needs. Charles Kinsey is one of those people. A behavioral therapist at MacTown Panther Group Home in Miami, he assists the autistic and others with special needs. One of those group home members is Arnaldo Rio-Soto. Here is a photo of Arnaldo.

Most now have heard about what happened. Rio-Soto wandered off from MacTown and Kinsey went after him to try and coax him back to the facility. An unfortunate 911 call was made about a suicidal man with a gun, which in reality was a toy truck. Police responded and Kinsey was shot and wounded.

The president of the Police Benevolent Association in Dade County said Jonathan Aledda, a four-year veteran of the North Miami Police Department, was actually aiming for Rio-Soto because Aledda believed Kinsey was in danger. 

All this has been sifted over in the media at large. Originally, this post was going to be about the larger context of the law surrounding excessive force. I decided instead to write about what Kinsey, and people like him do. It is personal to me.

When a member of your family is special needs, individuals like Charles Kinsey change your life. It is a weary trope to write that unless you have walked in someone else's shoes you cannot know their struggles. The difficulties in being a caregiver to a child who is not likely ever to be self sufficient is hard to communicate. All the things large and small. All the ways it affects your life, and those around you. People like Charles Kinsey are special gifts. Thus, I was paying attention when Kinsey's boss, at MacTown, Clint Bowser, said this of Kinsey:
 This individual he was caring for [Rio-Soto] is a person with significant behavioral issues, and Charles was specifically chosen to work with this individual as his one-on-one staff, because he is that much of a skilled employee...
It is all too easy for me to envision it in my own mind's eye. I see my son in the street instead of Arnaldo, with his own toy. I picture the caregiver who would follow him into that street and stay with him knowing they were both in danger from forces both known and unknown.

That takes a special person.