Tuesday, December 6, 2016

Ties (And Welds) That Bind

Friendship is a funny thing. For example, mine with a friend named Bill. That it was improbable has not kept it from becoming my longest and closest - now for almost 50 years. Bill never crossed the threshold of a university door. Instead, he used that time to start what has become a successful fabrication and welding business that builds everything from drill stem pipe fencing to parts for Navy submarines.

My son Wes wears his hair down to the middle of his back, and with his scruffy whiskers, he is a ringer for Kirk Cobain - a name some random citizen called him while I was with him over Thanksgiving.

Bill and Wes are like our country in miniature. Different as night is from day. Different in age, temperament, and of course, politics. Bill is about as conservative as they come. Wes? All in for Bernie, of course.

Yet, somehow, Bill has become not just a mentor of sorts, but someone Wes trusts. Bill cares about my son not just because of me, but from a place of genuine desire to see him succeed in life, at whatever that may look like, and in whatever capacity.

Three years ago, Wes was finishing a difficult year in high school when I called Bill and asked if Wes could work for him part of the summer. Wes had an aptitude for working with his hands, enjoyed the creativity in the act of building, and as part of this, wanted to learn to weld - something I could not teach him.

Bill never hesitated. Somehow, this young man/child later decided to take Ag Mechanics his junior year in high school. I was a little skeptical. Vocational Agriculture and with it the mandatory membership in Future Farmers of America (FFA)? My. Grunge. Son?

Turned out to be a great decision.

After that first year, Wes applied and was accepted into Advanced Ag Mechanics, despite his hair (just kidding). As part of the requirements of that class, he and 8 other students built projects that sold at the annual school FFA dinner and live auction to raise money for their program. Wes built an Aggie maroon colored, octagon shaped picnic table with a Texas star on top. The dimensions were good, the welds were clean, and his project sold as the highest net (after cost) item at auction.

Of course I invited my friend Bill. They are pictured above, standing together, next to a project that would never been built but for Bill and his willingness to take a chance on a petulant but talented 15 year old.

Just the fact Wes is in FFA leaves me still shaking my head, but not in the way it once did. These young people are motivated, eager to work, and to create in their chosen medium. It is evidence to my cynical self that all things are possible. They are pictured in the photo to the left, this remarkable group of talented young people, cutting up the evenings festivities while sitting at Wes' picnic table.

Diverse, engaged, hopeful. Something I needed to witness. Something that teaches me that even in this most divisive of times, people who are a different as night is from day can find common interests, and not just live, but thrive together.

And most of all? Thanks, brother Bill.

Saturday, December 3, 2016

Texas' Intellectual Disability Idiocy - Oral Argument Edition

Intellectual disability (ID) is important to anyone with intimate knowledge or responsibility for the intellectually disabled. Life experiences tend to mold how we view the world, and it has mine. My 12 year old son is ID, so I have more insight than most in the sub-set of lawyers who have tried an Atkins claim to both judge and jury. In other words, I have both standing and an understanding of ID and why it matters.

Moore v. Texas, an ID death penalty case was argued before the Supreme Court of the United States on Tuesday, November 29, 2016. CCA Judge Elsa Alcala - who dissented at the CCA in Moore - tweeted she was sitting next to former New York Governor Elliot Spitzer. I may not have been amongst the luminaries in attendance for oral argument, but I was there in spirit. The audio of the argument, with written transcript can be found here.

I came away with three major impressions discussed below as they were fleshed out by questions from the Court. First is Justice Kennedy, the swing vote. He was straight to the point on the Briseno factors central to a decision in the case:
JUSTICE KENNEDY: Are you saying that the Briseno factors capture all individuals with intellectual disability?
KELLER: The Briseno factors -- there could be other circumstances or other facts in the record that would bear on the adaptive deficits prong, and that's why the CCA said these are discretionary. These are different ways of phrasing how you do the conceptual, social, and practical --
JUTICE KENNEDY: But the theme is -- of -- of the -- the Petitioner's brief, that the Briseno factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.
KELLER: And the CCA has never said that the purpose of these factors is to screen out individuals and deny them relief.
KENNEDY: But isn't that the effect? 
KELLER: No. Van Alstyne granted relief by looking at the Briseno factors.The four cases I just mentioned, these are cited at page 422. 
KENNEDY: Well, of course, General, there are going to be cases in which the Briseno factors will show disabled, but that's not the question. The question is can they be an exhaustive list. 
KELLER: The Briseno factors are not an exhaustive list, and the CCA has never treated them like that.
The argument the Briseno factors are discretionary? Just baloney. My evidence? Ask a criminal District Court Judge in Texas. Ask them should they decide the Briseno factors should be excluded as part of their Atkins claim determination, whether they think the CCA would treat them as discretionary in the way Keller represents. Heck, just ask the habeas trial judge in Moore - who the CCA decided was wrong - how that went for him.

Keller just flat out prevaricated on Kennedy's main question - whether Briseno carves out a sub-set of the otherwise ID population in order to make them eligible for the death penalty. The answer is yes, it does. The more fundamental issue is whether this is constitutionally acceptable. This mantle was taken up minutes later by Justice Breyer. The critical exchange started when Justice Ginsberg asked Keller why Texas tracks the current consensus clinical definition for statutory ID classification for public school special services and juvenile offenders but not in death penalty cases.
KELLER: [But] as the DSM-5 itself noted, there is an imperfect fit between a determination of -- a legal determination of culpability for Eighth Amendment purposes and a medical diagnosis. I think that this case does present that issue. And since you have those different purposes, it is valid for a State to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefit.
Keller's answer here draws an intellectually consistent distinction between the legal purposes served by different definitional descriptions of ID. Thus, the definition for ID for educational support at school for my son does not automatically mean the same definition is required to assess ID in a brutally committed capital crime. The real question is whether this is constitutionally defensible. This went to the heart of the legal issue for Justice Breyer:
JUSTICE BREYER: Well, that's the point. That's exactly the point...That the whole point of Briseno is really to answer the question that you said -- probably should say, no, it isn't really there -- it's to help determine which persons suffering borderline cases of mental disability ought to be executed, or should not be because they are less morally culpable...And then the question is, is it what the purpose of Atkins and the other case Hall was, was it to give each State the right to decide in borderline cases whom or whom not to execute in light of their feelings about capital punishment? I thought it had a different purpose -- unusual in the law -- but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. That's a real issue.  But I think that this case does present that issue.
KELLER: And what Atkins and Hall said was there's a critical role for the States.
And while States don't have unfettered discretion, they do have some discretion.
Keller is attempting here to thread the legal needle. He cannot say that Texas basically blows off clinical standards in favor of their own set of non-clinical adaptive behaviors that make it less likely that a capital murderer with borderline ID will avoid the death penalty. What he can, and did, argue is that Texas hews to the constitutional requirements that the death penalty ID exclusion decision be "informed by the medical community's diagnostic framework" - whatever the heck that means.

 As oral arguments illustrated, it is a difficult needle to thread.

Finally, an even more fundamental question was asked by Justice Breyer in  his questions earlier to Clifford Sloan, Moore's lawyer.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases.
SLOAN: Yes, Your Honor. 
JUSTICE BREYER: My suspicion is that there is no such thing, but that's why I asked the question. I want to be sure. [And] if you want my true motive, I don't think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and -- and people who are alike treated differently.
Translation? This whole ID exclusion from the death penalty conundrum illustrates the arbitrariness of the death penalty. A Constitutionally based, categorical exemption of the ID from the death penalty should to be uniform. Why should a hypothetically identical defendant committing the identical capital crime be determined to be ID and therefore constitutionally exempt from the death penalty in California, but not in Texas? Bringing the example closer to home, why exempt this capital defendant if the crime was committed in Clayton, New Mexico but not exempt them if the crime was committed across the Texas state line in Dalhart?

Bobby Moore likely has the votes to win. If so, how far will the majority opinion go? Conventional wisdom seems to look for Justice Kennedy to write a watered down majority opinion. He wrote for the majority in Hall v, Florida, which dealt with similar issues. Perhaps as the swing vote in both Hall, and likely here, Justice Kennedy - along with the rest of the wing of the Supreme Court voting with him - has grown weary of the states like Texas and Florida thumbing their collective noses at SCOTUS death penalty restrictions and will go further. I would love for Justice Kagan, who was very engaged in oral arguments, to write, but this is wishful thinking of my part. I believe Justice Breyer will write separately and riff off his Glossip dissent regarding arbitrariness and the death penalty, except in Moore it will be as a concurrence.

Friday, November 25, 2016

Time to Consider....

Below are figures how Brazos County's split criminal prosecution offices - District Attorney prosecuting felonies, the County Attorney prosecuting misdemeanors - compare to counties with a single prosecution office, typically the District Attorney.

Lubbock County and Hays County have been used for comparison. Both have large public universities present in their community and are comparable in population. The financial figures are from each county's budget for fiscal year (FY) 2017. Also included are figures from the Office of Court Administration on filed cases for the calendar year (CY) 2015. These are included to give some idea about the number of new misdemeanor and felony filings each office was responsible for during an identical period of time. Population estimates for each county are from census estimates from July 1, 2015.
Est. population                                                                              215,037

New felony indictments CY 2015                                                     2,229
New misdemeanor filings  CY 2015                                                 3,878                                           Total new filings CY 2015                                                               6,107                                        

County Attorney Office FY 2017                                              $3,179,875
District Attorney Office FY 2017                                              $3,612,335
TOTAL                                                                                     $6,792,210  

Est. population                                                                               299,453

New felony indictments CY 2015                                                      3,688
New misdemeanor filings CY 2015                                                   4,037
Total new filings CY 2015                                                                  7,725

District Attorney budget FY 2017                                             $6,513,233

Est. population                                                                                194,739

New felony indictments CY 2015                                                           909
New misdemeanor filings CY 2015                                                     3,885
Total new filings CY 2015                                                                    4,794

District Attorney budget FY 2017                                                $3,986,030

Lubbock County has 28% more in population than Brazos County with around 1600 more new criminal filings during 2015, but has budgeted $278,000 less than Brazos County for the office prosecuting the filings there in FY 2017. Hays County has 10% less in population than Brazos County, filed about 1300 fewer criminal cases and budgeted $2.8M less for the single office prosecuting criminal cases there than Brazos County did for the two offices doing the work here in FY 2017.

 What I am saying is this: it may be time to discuss consolidating criminal prosecutions in Brazos County into a single office. Not to do so makes less fiscal sense with every passing year.                                            

Saturday, November 12, 2016

It's Alive! It's Ah-live!!

The title of this post was uttered by the irreplaceable Gene Wilder in the 1974 Mel Brooks classic, Young Frankenstein. It is meant as dark humor on the Death Penalty in the United States. When we awoke on Tuesday November 8, 20016 there was reason to believe the Death Penalty was on it's own death gurney. By midnight, the Death Penalty was not only off that gurney, but ready for a metaphorical marathon run.

To understand why, start with the liberal utopia of California.

California has not executed anyone in more than 10 years. There are 741 people on California's death row, nearly three times the 254 in Texas. Dueling propositions Prop 62 and Prop 66 were on the California ballot on Tuesday, November 8, 2016. Prop 62 proposed to replace the Death Penalty with Life Without Possibility of Parole (LWOP). Prop 66, in opposition to Prop 62, proposed to speed up executions by designating trial courts to hear petitions challenging death row convictions, limiting successive petitions and expanding the pool of lawyers who could take on death penalty appeals

What better chance could there be for abolitionists to underscore their narrative that a growing consensus against the Death Penalty exists in this country? Had not recent polling showed national support for the Death Penalty at the lowest level since the 1970s? What better venue than California to translate these polling numbers to popular referendum that this growing consensus exists to end the Death Penalty? 

Ah, but a funny thing happened on the way to Herr Frankenstein's castle.

  Prop 62 lost badly, mustering a meager 46% of "yes" votes to eliminate the California Death Penalty, while Prop 66% hung on to pass with a 50.9 "yes" vote. Prop 66 will likely wreak chaos on state and federal habeas petitions in that befuddled state. Sorting out the fallout is for later. It is enough to write that Californians have spoken rather decisively: They favor the continued option of the Death Penalty.

Next up, Nebraska. Last year, their unicameral state legislature took the Death Penalty off the books as a punishment. The reason? All the fiscal and moral reasons Death Penalty abolitionists trumpet - costs of prosecution, length of appeal, and error rates among those given the ultimate penal penalty. There was also the added value argument that eliminating the Death Penalty through an elected legislature was democratic evidence of this growing consensus.

Unfortunately, there was such a popular outcry over the legislation that a referendum was placed on the Nebraska ballot to repeal the legislative action. And, alas, Igor, November 8, 2016 was not a good night for the bleeding hearts in the heart-land. Over  61% of Nebraskans voted to re-instate the Death Penalty. That folks is a abolitionist butt kicking.

So much for a popular consensus against the Death Penalty.

Finally, of course, is President-elect Trump. He will soon be nominating a Justice to the Supreme Court of the United States (SCOTUS). That appointment will not tip the current ideological balance on SCOTUS - but Justices Ruth Bader Ginsberg (83 years old) and Anthony Kennedy (80 years old) are the two oldest members of SCOTUS. If President-elect Trump replaces either, or both, SCOTUS will be conservative in ways not seen since before Franklin Roosevelt was President.

This means  the machinery of death will not only continue to engage, but a SCOTUS more focused on federalism and individual State's rights will allow States to operate that machinery with much, much less federal judicial intervention.

For example the Death Penalty case Moore v. Texas currently set for oral argument on November 29, 2016. Moore challenges the way Texas determines if capital defendants have Intellectually Disability (ID) for purposes of existing constitutional exclusion from the Death Penalty. Texas has defined ID in such a way that a capital defendant may be clinically ID, but not too ID for Texas to sentence them to death.

My sense is Texas will be called to heel by SCOTUS in Moore. However, this SCOTUS leash will get much, much longer if President-elect Trump and a GOP Senate replace Ginsburg and/or Kennedy. A state-rights oriented SCOTUS would look at the State legal chicanery at work circumventing ID exclusion from the Death Penalty in Moore and collectively shrug their shoulders.

Translation? A Constitutional right with neither remedy nor enforcement.

And the Rule of Law? A Frankenstein. 

Thursday, November 10, 2016

The Election

This blog is in the main a criminal justice blog, and the 2016 election will impact Texas criminal justice in ways large and small. So, for what it is worth, here are shattershot thoughts from local to national.

My local (Brazos County) races were unremarkable. There were no contested races, so I will comment on the closest races to my home that resonate.

I grew up in Houston, so I watched the Harris County DA and judicial races there with interest. Houston may not have the hipster Texas outlier swag of Austin, but it is more diverse, and in ways just as politcally liberal. It was no surprise then that Kim Ogg, a Democrat beat Devon Anderson, the incumbent Republican in the DA race. This outcome was expected - Anderson had made several political missteps in the last year. Ogg is qualified for the office she will take over in January. Expect expanded pre-trial diversion programs, a decision to either not prosecute - or reduce to misdemeanor level - "trace cases" - cases where only a trace amount of drugs (cocaine, etc) are found, and a scaling back of Capital Murder prosecutions.

There were also heavy losses amongst the Harris County Republican heavy judiciary. Murray Newman wrote about the damage done to the Harris County trial court judiciary as a result. Among the incumbent GOP judges who lost was Judge Stacey Bond. I serve with Judge Bond as a member of the Second Judicial Region Capital Murder Appointment Committee. She is intelligent, engaging, and a committed member of this important committee. I never practiced in front of her, but by all accounts Judge Bond was an excellent judge. She should not have been shown the door by a partisan electorate.

At the State level, Larry Meyers, the incumbent Court of Criminal Appeals (CCA) judge who chose to run as a Democrat in his re-election bid, lost to his Republican opponent, former Harris County District Judge Mary Lou Keel. It wasn't close. Scott Walker beat Betsy Johnson to replace the soon-to-be-sorely-missed Judge Cheryl Johnson on the CCA. Hard as it is to envision, expect an even more government-centric CCA.

Which brings me to the national elections. With President Trump and a Republican Senate, the Supreme Court will now add a 9th justice. That new Justice may or may not be in the mold of former Justice Antonin Scalia. Justice Scalia had a cohesive, predictable and consistent view of the Constitution. Say what you will, liberals, about Justice Scalia, but his view of the Constitution included expanded 6th Amendment confrontation clause protections for citizens. He was the leading intellectual force behind this almost revolutionary, revisionist interpretation of the confrontation clause. There is no guarantee his vision will continue with the new appointment.

Sunday, October 30, 2016


 Defined as an "idea or suggestion wildly unreasonable, illogical, or inappropriate," absurd used in a sentence aptly describes the alternatives to replace Judge Cheryl Johnson on the Texas Court of Criminal Appeals (CCA), Place 5.

A story from Peggy Fikac at the San Antonio Express-News gives the best insight I have read this cycle (thanks for the link, Grits for Breakfast) as it pertains to the CCA. The larger picture painted by the story is the seemingly endless debate on partisan election of judges to the courts of last resort in Texas, and whether the CCA and the Supreme Court of Texas should be merged. Our current situation is placed in stark relief by contrasting Judge Johnson's qualifications against the glimpse Ms. Fikac and The Express-News give into the two candidates vying to replace her.

First, the bio from the CCA website for Judge Johnson:
Judge Cheryl Johnson was elected to the Texas Court of Criminal Appeals on November 3, 1998.
Judge Johnson was born September 30, 1946. She received her high school diploma from Whetstone High School, Columbus, Ohio, in 1964. She earned her B.S. in Chemistry from Ohio State University, Columbus, Ohio, in 1968, her M.S. in Inorganic Crystallography from the University of Illinois, Urbana, Illinois, in 1970 and her J.D. with high distinction from The John Marshall Law School, Chicago, Illinois, in 1983. From 1983 to 1984, she clerked for Judge Sam Johnson of the United States Court of Appeals for the Fifth Circuit. She was in private solo practice in Austin, Texas, from 1984 until 1998.
Judge Johnson is board-certified as a specialist in criminal law and is licensed by the State of Texas, United States Court of Appeals for the Seventh Circuit and the United States District Court for the Western District of Texas.
Judge Johnson is currently a member of the State Bar of Texas and the College of the State Bar of Texas. She was formerly a member of the Texas Criminal Defense Attorneys Association and the Austin Criminal Defense Attorneys Association, where she served on the Board of Directors and as Treasurer from 1994 to 1997. She also served as Director of the Texas Association of Attorneys Board Certified in Criminal Law from 1996 to 1997. She has been actively involved in the community, serving on the Community Justice Council's Committee on Offenders with Mental Impairments, as a volunteer attorney for Volunteer Legal Services of Central Texas, and as a volunteer for Literacy Austin.
Judge Johnson is a member of the Berkeley United Methodist Church. She and her husband, Lt. Greg W. Lasley, Austin Police Department (retired), reside in Austin, Texas. 
Here is information from the Express-News story on the two candidates. First is the GOP primary winner, Scott ("No, I am not the Wisconsin governor") Walker:
Defense lawyer Scott Walker says sharing a name with Wisconsin’s nationally known governor helped his bid for the Texas Court of Criminal Appeals, but it was God’s guidance that pushed him over the line to secure the Republican nomination.
If elected, he will get his first judicial experience as a member of the Texas high court that has power over life and death in criminal cases.
'I believe strongly that God led me to run for this office. He has been behind me. I prayed about the election daily,' Walker said in an interview with the San Antonio Express-News. 'I really feel that I was unbelievably blessed in this election, and God has just done what he planned to do all along.'
Let me quickly say I do not begrudge anyone seeking spiritual guidance. It does cause pause to think about the source of legal decision making if Walker replaces Judge Johnson. So much so that I fervently pray we never have to confront our own Judge Roy Moore, the now suspended Alabama Supreme Court Chief Justice.

Yet Walker is the better alternative to the Democratic standard bearer, Betsy Johnson, whose seemingly sole qualification to replace Judge Cheryl Johnson is that she shares her last name.
[Betsy] Johnson also has no judicial experience — it’s not required for a seat on either of the state’s highest courts — and she was removed more than five years ago from Bexar County’s list of lawyers who can represent indigent defendants in felony cases. 
According to the presiding judge at the time, Johnson didn’t want to represent clients if they wanted to go to trial instead of entering a plea. 
As a result, Walker has reaped general-election endorsements from a number of newspapers. The Dallas Morning News called a vote for Johnson 'reckless' and said it has warmed to Walker’s background and approach.
Then I read in the Express-News story the comments of Judge Sid Harle, who had been by far the most qualified of the original candidates to run for Judge Johnson's post. Absurd was the only word that seemed to apply.
State District Judge Sid Harle of Bexar County — who lost a bid for the GOP nod for the Place 5 seat [to Walker]  — said he met Johnson after she was dropped from the appointment list for indigent defendants facing felony charges in 2011.
He said other criminal court judges pressed for the action. Since he was the presiding judge, she came to his office to dispute it.
'I hear this clomping outside my door and she comes storming into my office in, of course, combat boots,' Harle said.
He said he advised Johnson to work as second chair without pay in a couple of trials to prove to the judges she could try a case, but she refused with an expletive.
Johnson, who’s described as partial to unconventional attire such as the combat boots noted by Harle, couldn’t be reached for this report. 
I could be wrong about absurd being the only applicable word to describe this race. Perhaps another adjective often bandied about in an up ballot race this election year also would apply.


Tuesday, October 11, 2016

The Elephant in Our Echo Chamber

Much of what is written in this blog relates to the criminal justice system I live and work in daily. The other system I live in daily is that of my youngest child, Zane. He is 12 years old, non-verbal with cognitive and physical limitations. One of his legs is significantly shorter than the other, causing gait and fall issues. This is compounded by both seizures and the autistic compulsion to contort himself into awkward positions. He is also symptomatic of scoliosis.

I may be a lawyer, but I also wear the hat of small business owner. I have one full time employee and 2 part time employees. I am the sole source of medical insurance for Zane, my dependents and my full time employee. My medical insurer is Blue Cross Blue Shield of Texas (BCBS) and has been for 18 years.

Since Zane's birth in 2003, BCBS has hiked my insurance premium every year - often the maximum allowable under my plan. I will not bore with why I am effectively tied to BCBS, but I am.

Yet I am lucky. I have health insurance. This does not obscure the larger problem of which I write. This past Sunday the Houston Chronicle ran a story by Jenny Deam (warning: some links may be behind a pay wall). The lede to the story:
As Texas' largest insurer [BCBS] eliminated hundreds of thousands of coverage plans for some of the state's sickest patients and asked for double-digit rate increases last year, its Chicago-based nonprofit parent company rewarded 10 top executives with a combined $48 million in bonuses.
This post is not, necessarily, an attempt to bash executives with the BCBS parent company, Health Care Services Corporation (HCSC). There is more from the story by Ms. Deam that leads to my point further down.
When 2016 arrived, Blue Cross and Blue Shield of Texas, HCSC's second-largest division, raised rates 20 percent and eliminated 367,000 plans, including 88,000 in Houston, that gave in-network access to many of the state's top-tier hospitals and specialists. The company said the benefit had become 'unsustainable.' 
Now, with just weeks to go before enrollment opens for 2017, HCSC's five Blue Cross and Blue Shield companies have asked state regulators for another round of rate increases, some as high as 82 percent, for ACA [Affordable Care Act] individual plans.
HCSC is a non-profit corporation.

We have a health care affordability crisis in the United States. It is the elephant in our societal room. This is a public policy issue that must be argued about on the merits or it, along with other policy issues percolating without discussion or real resolution, will result in our driving ourselves off a societal cliff.

That's right. Affordable health care. In an presidential election year in which personalities are at the fore, the silence of debate - and policy proposals - is deafening. In the 2 presidential debates thus far held, health care has been asked about once with no substantive policy discussions about what can realistically threaten all but the most affluent with possible bankruptcy.

I count my blessings. Others are not as fortunate. From another story by Ms. Deam, dated June, 2016 in the Chronicle:
The boy and his dad sit in the glow of the nursery lamp, their shadows wide as they rock together in the big chair. Bedtime is coming. But first there is the machine. 
A switch is flipped, and the medical contraption roars to life with an insistent whine. It looks like a Shop-Vac whose ribbed hose snaps into a special vest slipped over footie pajamas. The power of the machine makes every inch of 11-month-old Jack Faught shake in the hope of loosening mucus in his airways.
I can relate to these folks and their daily experience.
Since last spring, first-time parents Austin and Kyra Faught have stumbled, fallen and risen again after learning their child has cystic fibrosis, a lifelong disease that damages the lungs and pancreas. Left untreated, it could kill their son. If poorly treated, his life could be shortened. Their vision of parenthood forever changed, they threw themselves into battle against his sickness. 
Here is their problem:
Three weeks ago, a new fight landed at their doorstep, one that came with just as many tears and sleepless nights, waged not with medicine but phone calls and fax machines. It was with their insurance company as they begged to let Jack stay at Texas Children's Hospital, home to Houston's only accredited cystic fibrosis center and the team of specialists who were helping to keep him alive. 
Their story is part of a larger one being played out across Houston and the nation as the insurance industry reacts to its changing landscape by moving customers into narrower plans. At a time when millions of lower-income Americans are enjoying insurance coverage, some for the first time, an untold number of middle-class families are discovering that the kind of health care they want and need is slipping from their grasp. 
On the final day of 2015, tens of thousands of Blue Cross Blue Shield of Texas health insurance customers, including the Faughts, saw previous plans expire. Those with serious illnesses had been fretting for weeks over what such a change would mean, especially as word seeped out that the city's top hospitals would no longer be covered. 
How about those who have special needs children and unable to afford health insurance? Sorry, they are SOL. From a September story in the  Dallas Morning News, with a link to a longer story in the Austin American-Statesman.
Texas can proceed with millions of dollars in cuts toward the state's Medicaid program that provides therapy to disabled children. The Texas Supreme Court announced Friday that it declined to review a lower court ruling that would have allowed the cuts to move forward, the Austin American-Statesman first reported.  
Last year, the [Texas] Legislature approved $350 million in Medicaid cuts, mostly toward therapy providers for disabled children. Opponents of the cuts warned that they would disrupt care for tens of thousands of disabled children, especially in rural areas of Texas.
I am not banging on the Supreme Court of Texas for their decision. That recourse to the courts was sought exposes the problem. The problem is at root one of the state legislature's making. This is a policy issue to be fought at either the state of federal level. That is part of the debate we ought to be having - should health care coverage even be a state level issue.

My father has been a practicing obstetrician in the Houston area from more than 50 years. He sometimes says he has delivered half of Houston's population since 1964 - and he is only half joking. He sees the problems from the health care provider standpoint as it has worsened over those years. I see it from the end user standpoint. He and I disagree remarkably about the policy solution, but we both understand it is crippling regardless of whether it is the consumer or the provider. We must engage.

And thank you Jenny Deam for doggedly persisting in your reporting. Journalists like Ms. Deam and the Chronicle are grappling with reduced resources and the ability to report on important issues such as this. It is another problem we as a community must confront.

Another elephant in our echo chamber.