Monday, January 15, 2018

MLK's Best Speech (Hint: Not "I Have a Dream")

Today, to commemorate the holiday named for him, most will be hearing, or reading, parts of Martin Luther King, Jr.'s "I have a Dream Speech." That speech is indeed inspiring, but it is not his best. That distinction belongs, in my opinion, to the speech he gave in Oslo, Norway to accept the Nobel Peace Prize on December 10, 1964. It is a stunning composition of which I have written before. I have underlined King's use of the rhetorical figures, including repetition, anthesis, and irony. Admire some, or all, of the 12 minute speech and witness how this most gifted of rhetorician uses his talents to make the text that follows become almost a living, breathing thing. 

Your Majesty, Your Royal Highness, Mr. President, Excellencies, Ladies and Gentlemen:
I accept the Nobel Prize for Peace at a moment when 22 million Negroes of the United States are engaged in a creative battle to end the long night of racial injustice. I accept this award on behalf of a civil rights movement which is moving with determination and a majestic scorn for risk and danger to establish a reign of freedom and a rule of justice. I am mindful that only yesterday in Birmingham, Alabama, our children, crying out for brotherhood, were answered with fire hoses, snarling dogs and even death. I am mindful that only yesterday in Philadelphia, Mississippi, young people seeking to secure the right to vote were brutalized and murdered. And only yesterday more than 40 houses of worship in the State of Mississippi alone were bombed or burned because they offered a sanctuary to those who would not accept segregation. I am mindful that debilitating and grinding poverty afflicts my people and chains them to the lowest rung of the economic ladder.
Therefore, I must ask why this prize is awarded to a movement which is beleaguered and committed to unrelenting struggle; to a movement which has not won the very peace and brotherhood which is the essence of the Nobel Prize.
After contemplation, I conclude that this award which I receive on behalf of that movement is a profound recognition that nonviolence is the answer to the crucial political and moral question of our time - the need for man to overcome oppression and violence without resorting to violence and oppression. Civilization and violence are antithetical concepts. Negroes of the United States, following the people of India, have demonstrated that nonviolence is not sterile passivity, but a powerful moral force which makes for social transformation. Sooner or later all the people of the world will have to discover a way to live together in peace, and thereby transform this pending cosmic elegy into a creative psalm of brotherhood. If this is to be achieved, man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.
The tortuous road which has led from Montgomery, Alabama to Oslo bears witness to this truth. This is a road over which millions of Negroes are travelling to find a new sense of dignity. This same road has opened for all Americans a new era of progress and hope. It has led to a new Civil Rights Bill, and it will, I am convinced, be widened and lengthened into a super highway of justice as Negro and white men in increasing numbers create alliances to overcome their common problems.
I accept this award today with an abiding faith in America and an audacious faith in the future of mankind. I refuse to accept despair as the final response to the ambiguities of history. I refuse to accept the idea that the "isness" of man's present nature makes him morally incapable of reaching up for the eternal "oughtness" that forever confronts him. I refuse to accept the idea that man is mere flotsom and jetsom in the river of life, unable to influence the unfolding events which surround him. I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality.
I refuse to accept the cynical notion that nation after nation must spiral down a militaristic stairway into the hell of thermonuclear destruction. I believe that unarmed truth and unconditional love will have the final word in reality. This is why right temporarily defeated is stronger than evil triumphant. I believe that even amid today's mortar bursts and whining bullets, there is still hope for a brighter tomorrow. I believe that wounded justice, lying prostrate on the blood-flowing streets of our nations, can be lifted from this dust of shame to reign supreme among the children of men. I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits. I believe that what self-centered men have torn down men other-centered can build up. I still believe that one day mankind will bow before the altars of God and be crowned triumphant over war and bloodshed, and nonviolent redemptive good will proclaim the rule of the land. "And the lion and the lamb shall lie down together and every man shall sit under his own vine and fig tree and none shall be afraid." I still believe that We Shall overcome!
This faith can give us courage to face the uncertainties of the future. It will give our tired feet new strength as we continue our forward stride toward the city of freedom. When our days become dreary with low-hovering clouds and our nights become darker than a thousand midnights, we will know that we are living in the creative turmoil of a genuine civilization struggling to be born.
Today I come to Oslo as a trustee, inspired and with renewed dedication to humanity. I accept this prize on behalf of all men who love peace and brotherhood. I say I come as a trustee, for in the depths of my heart I am aware that this prize is much more than an honor to me personally.
Every time I take a flight, I am always mindful of the many people who make a successful journey possible - the known pilots and the unknown ground crew.
So you honor the dedicated pilots of our struggle who have sat at the controls as the freedom movement soared into orbit. You honor, once again, Chief Lutuli of South Africa, whose struggles with and for his people, are still met with the most brutal expression of man's inhumanity to man. You honor the ground crew without whose labor and sacrifices the jet flights to freedom could never have left the earth. Most of these people will never make the headline and their names will not appear in Who's Who. Yet when years have rolled past and when the blazing light of truth is focused on this marvelous age in which we live - men and women will know and children will be taught that we have a finer land, a better people, a more noble civilization - because these humble children of God were willing to suffer for righteousness' sake.
I think Alfred Nobel would know what I mean when I say that I accept this award in the spirit of a curator of some precious heirloom which he holds in trust for its true owners - all those to whom beauty is truth and truth beauty - and in whose eyes the beauty of genuine brotherhood and peace is more precious than diamonds or silver or gold.

Sunday, January 14, 2018

When Habeas Can't Get Over The Moon

When the January 10, 2018 hand down list was issued from the Court of Criminal Appeals (CCA), I noted Judge Alcala dissented (in an opinion joined by Judge Walker - more on that later) in a habeas decision styled Ex parte Navarro. When Judge Alcala writes a dissenting opinion, it should be mandatory reading for any criminal defense lawyer, especially for those doing appeals or post-conviction habeas work.

The tragedy begins right after Christmas, 2007. Contemporary news coverage from the Houston Chronicle reported Miguel Angel Navarro, then just 15 years of age, was arrested for stabbing Matthew Haltom, 20, Joe Eodice, 22, and Joe Arnold, 21. Haltom was home from college on winter break, was having "bonfire" party at his parents home near I-10 (Katy Freeway) and Pin Oak Road, very close Katy Mills Mall. For various reasons, I am very familiar with that area.

I have no idea how Navarro ended up at that house that night, but as told in the briefing and the direct appeal, things got sideways when Haltom, with assistance from Eodice and Arnold decided the party had become too crowded and told uninvited guests - Navarro and several friends included - to leave. The stabbings occurred in the melee that followed. Navarro was taken into juvenile custody shortly thereafter.

Navarro was certified to stand trial as an adult after hearing in Fort Bend County Court at Law and subject matter jurisdiction transferred to felony District Court. Navarro was later tried and convicted of the Murder of Haltom and the Aggravated Assault of Eodice. He was acquitted on the Aggravated Assault charge involving the stabbing of Arnold. The jury then assessed a 99 year sentence on the Murder and a 20 year sentence on the Agg Assault - both maximums. The case was affirmed in a memorandum decision by the Houston First Court of Appeals.

Initial state habeas followed alleging ineffective assistance of trial counsel (IAC), specifically by trial counsel failing to preserve error on (i) the district court’s omission multiple assailants self-defense charge, and (ii) the unconstitutionality of the 99-year sentence under the 8th Amendment. Federal habeas followed, alleging the same grounds, but was stayed pending resolution of the subsequent state habeas filing the CCA decided January 10, 2018.

This subsequent habeas relief issue was whether the transferring juvenile court ran afoul of Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), which requires a transferring court to "show it's work" with findings of fact and conclusion of law so as to allow a meaningful legal and factual sufficiency review by an appeals court of the transfer decision. Moon was decided after the Navarro's initial habeas proceeding, so he sought to justify the subsequent habeas under Article 11.07 Section (a)(1) of the Texas Code of Criminal Procedure, which provides:
(a) If a subsequent application for writ of habeas corpus is filed after final
disposition of an initial application challenging the same conviction, a court may
not consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts establishing that:
 (1) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or legal
basis for the claim was unavailable on the date the applicant filed the
previous applications[.]
Got that? No subsequent habeas filings unless the requirement of (a)(1) is met. Navarro's argument was Moon v. State changed the law and as a result, he should get new bite at the habeas apple. The habeas trial court agreed and recommended relief be granted, but the CCA said no. Their reasoning was that although Moon refined the law, it did not change it. Follow the logic here: Kent v. United States, 383 U.S. 541 (1966), requires trial courts specify the reasons for the transfer. Although Moon held mere recitation of the statutory reasons the transferring court were not sufficient to meet this requirement, Navarro could have reasonably formulated his first habeas claim based on Kent.

Foreseeably, Judge Alcala argued in her dissent Moon changed the law:
The significance of this Court’s holding in Moon is not that a transfer order must be
supported by sufficient reasons for the transfer. As the majority opinion observes, that basic principle was in place long before Moon was decided [Kent]. But, Moon announced a new rule governing the nature of the sufficiency analysis in this context—in particular, it required that,to be supported by sufficient evidence, a juvenile court’s transfer order must include case specific facts to support the particularized reasons for the transfer in that case. Moreover, Moon indicated that the absence of such specific facts would likely deprive a defendant of the opportunity for meaningful appellate review of the transfer order.
On State habeas, the merits of a subsequent filing may be reached only if the applicant makes a preliminary showing that the law is not just different, but so different it could not have been anticipated at the time of the original habeas filing. Ex parte Navarro illustrates how dauntingly technical that hurdle can be. Navarro was represented by an experienced criminal defense lawyer at initial State habeas, and now the CCA is basically saying they blew it by failing to make a claim based on the CCA's yet to be made decision in Moon. Layer on top of this fact the majority of State habeas claims are filed pro se because applicants are not entitled to court appointed lawyers at the State habeas stage. Further, on top on that, federal habeas relief is barred when the federal habeas claim was not presented to a State court first. Now you begin to understand how current State and Federal habeas review is systemically flawed.

Here are some of the side stories. Navarro's trial counsel is now the judge of the 400th District Court of Fort Bend County, and, according to KTRK television coverage, the first Latina to serve as a District Court Judge in Fort Bend County history. Navarro was, again, fortunate to have a lawyer represent him in his initial state habeas claim - he was not entitled to have one appointed - and the lawyer is someone I know and respect. But if the trial lawyer can be IAC, this first habeas lawyer cannot be so held - there is no right to effective assistance at the habeas stage. The subsequent habeas briefing for Navarro was done admirably by lawyers from the San Antonio office of the high dollar civil firm Akin, Gump Hauer and Feld LLP.

Three amicus briefs were filed supporting Navarro's position, and were referenced in the CCA opinion. One of the three amici was from a TDCJ offender named Jeff Leggett who is pulling a 99 year sentence from Tom Green County at the Darrington Unit in Rosharon for Aggravated Sexual Assault. Whatever his crimes, he writes a damn fine brief, better than the one filed by the Juvenile Law Center from Pennsylvania, which did not address the habeas bar issue.

Finally, Judge Scott Walker, who joined Judge Alcala's dissent has been a pleasant surprise on the CCA. He has, much more than Judge Mary Lou Keel, been resistant to the more government-centric judges on the CCA. I was a skeptical of Judge Walker before he took the CCA bench, but he has been moderate be any measure.

Wednesday, January 10, 2018

Zen and the Art of Motorcycle Fourth Amendment Maintenance

The Supreme Court of the United States (SCOTUS) heard oral argument (OA) Tuesday, January 9, 2018 in Collins v. Virginia. At issue is another 4th Amendment question related to curtilage to a home and motorized vehicles, in this case a motorcycle. A transcript of the OA is here.

In Collins, the driver of an orange and black Suzuki motorcycle with a "stretched out" back wheel eluded police after a chase. Based on credible information, the police went later to a home where they found a motorcycle matching the description of the Suzuki under a cover in the curtilage of the home. The 4th Amendment issue then is whether law enforcement can, without warrant, search or seize a (covered) vehicle parked within curtilage of a home.

A review of the OA reveals how easy it can be to mix 4th Amendment apples with oranges. Justice Breyer's complicated hypothetical and digression into exigent circumstances during OA is an example. The bright lines and policy issues are really plain: Under existing law, does the automobile exception to the 4th Amendment warrant requirement apply, or because the motorcycle was covered and within the home's curtilage, was the search (raising the cover to identify the motorcycle) a 4th Amendment violation?

The reason this issue is significant is highlighted from correspondent Mark Walsh's coverage of OA. Justice Ginsberg, who seems to be gaining strength with age rather than losing it, asked the Virginia acting Solicitor General (SG) a good series of questions. They concerned whether a favorable decision for the State would essentially result in those people with garages being protected while persons of less financial means without garages or with carports would lose 4th Amendment privacy protections.

The SG's short answer was yes: “I guess what I would say is that the Fourth Amendment protects the same quality of privacy, but maybe not the same quantity of privacy for everyone.”  By this he means, to use  a couple of hypos from Chief Justice Roberts, that Jay Leno's vintage car collection, and that automobile jewel of Cameron's father's eye in "Ferris Bueller's Day Off" are safe. A car parked in an open carport of a family living in a double wide, not so much.

The real bottom line is this: The State's position is the 4th Amendment draws the bright line at the house. Collin's lawyer argued that automobile exception, first "discovered" in 1925 has grown far beyond it own original reason for existence, and is not applicable to a search of a home's curtilage, whether open or closed, and regardless of whether it contains a motorized vehicle or fixed object.

Monday, January 8, 2018

A Party Theory at Twin Peaks

I moved my son to Waco this weekend. As a result I had a chance to read Tommy Witherspoon's reporting in the Waco Tribune-Hearld on the upcoming trial of George Bergman, the next defendant likely to be tried - January 12, 2018 - in the mess that has become the Twin Peaks prosecutions.

There is much to unpack in Witherspoon's story, but my takeaway about Bergman's case is that it may finally illustrate to a public seldom engaged in criminal law minutiae how far can the State of Texas can push the bounds of the criminal responsibility. Specifically, the law of parties to the committing of a criminal offense.

Most reading this blog post know the Twin Peak backstory. If not, on May 17, 2015, a shootout erupted at the Twin Peaks restaurant in Waco. 9 people were killed and 20 injured in what started as a confrontation between rival motorcycle clubs - the Bandidos and the Cossacks.

The first Twin Peak trial involved Jacob Carrizal, the Bandidos Dallas Chapter President. His case ended in a a jury deadlocked on three counts, the most serious a first degree (5-99 years) felony offense of Engaging in Organized Criminal Activity (OCA) case built upon the premise that the Bandidos were (are) a criminal street gang.

Carrizal's case was different from Bergman's - it was not disputed Carrizal both brought and used a weapon. Carrizal's was a self-defense theory, at least for the most part. However, Bergman, like most of the 157 people arrested, is on record saying he thought he was going to a meeting of  motorcycle clubs, not a shootout. Witherspoon's story relates,
After riding to Waco in a caravan of about 20 Bandidos and their support members led by Carrizal, [Bergman] was walking toward Don Carlos Mexican Restaurant to go to the bathroom when the first shots rang out[.]
I have written before about the problems with the law of parties in Texas, here and here. In a conventional prosecution, the State can allege criminal responsibility for another by alleging (although they are not required to formally indict it this way), 1) the defendant aided or assisted in the commission of the offense, or 2) acting with intent to commit one felony, another (worse) felony is committed, even without intent to commit the second offense, if it was in furtherance of the "unlawful purpose" and (the second offense) should have been anticipated.

If there is evidence to support, both theories can be submitted to the jury. The kicker under Texas law is the jury does not need to be unanimous on which of these two very different theories is applicable in order to convict on the criminal offense the defendant is alleged to have been a party.

In an OCA case, party allegation become more problematic for a defendant because the entirety of an OCA case is the idea that members of a criminal street gang are responsible - if acting in furtherance of the purpose of the criminal street gang -  for the criminal acts of other members. Sort of the same conspiracy based legal theory as the latter of the party theory I detailed above.

I do not know enough about Bergman's case to speak to the State's plans. My guess is that, similar to what they did in Carrizal's case, the State is going to run a bunch of so called "gang experts" in front of the jury to establish the Bandidios are a criminal street gang. Bergman was not a member of the Bandidos. Bergman is instead, Witherspoon writes,"a former member of the Desgraciados motorcycle group."

I love the use of the descriptor "motorcycle group," Not "motorcycle club" and certainly not "motorcycle gang." I have a feeling the State will have a different description of the Desgraciados than "group."

So, say the State runs a bunch of experts up saying that the Desgraciados (note the similarity in name, Bandidos/Desgraciados) are nothing more than a Bandido support club. Bergman acknowledges he rode down from Dallas with Carrizal and the Bandidos, and these experts say Carrizal & Company (if not Bergman) knew there was going to be fight with the Cossacks at Twin Peaks and the Desgraciados were expected (if not told) to have the Bandido's back when the fight broke out.

That seems thin - even on an OCA case. This conclusion is supported by the offer the State made to Bergman, a reduction from a first degree felony to a guilty plea on a Class A Misdemeanor Simple Assault with recommended punishment of 12 months deferred adjudication. Bergman said no. Now backed into a corner, the State seems to determined to try the case rather than dismiss. Part of this decision may be the low threshold for criminal responsibility under an OCA and conventional criminal party law.

Clint Broden, Bergman's lawyer is quoted in the Witherspoon story as saying:
 Broden said the state has no evidence against Bergman 'other than he was present at Twin Peaks and was wearing a motorcycle jacket.' ' [Really], I think you could impanel 12 monkeys on this case and they would acquit Mr. Bergman.'

We shall see.

Thursday, January 4, 2018

Bailment & the Fourth Amendment - Welcome to Byrd v. U.S.

Happy New Year.

I am trying to return to blogging regularly, at least in 2018.

First up: There are oral arguments on two cases, Byrd v. United States, and Collins v. Virginia that have real world interest for not just lawyers, but any user of the roadway. The Fourth Amendment has potential application every time you or a loved one is stopped along the highway while driving or an occupant in a vehicle. As such, these cases are not esoteric Anti-Trust or politically charged gerrymandering cases that have little day to day practical impact on your life.

Amy Howe has fine write up on Byrd and  Collins on SCOTUSblog - and I'll have some comments later on the Davis. I am focusing on Byrd today. Byrd was driving his girlfriend's (they have five children) Avis rental car when he was stopped along a Pennsylvania highway on what appears to be a pretty rinky dinky basis. Police claimed Byrd drove too long in the left or passing lane. Because he was driving a rental car that was not leased to him, and police believed he lacked standing, they searched. The kind of cavalier attitude toward the basis of the stop and search are contextualized by the fact the police, I think, were expecting to find a small amount of marijuana, but instead hit the jackpot, with 49 blocks of heroin found in a laundry bag in the trunk.

This is how big Fourth Amendment issues develop, right?

Byrd lost on the Fourth Amendment issue up the Federal Court appeals ladder. His argument is basically threefold: 1) the rental contract is a private one apportioning rights and responsibilities between the renter and Avis, and is not outcome determinative on privacy rights under the Fourth Amendment; 2) he had a right of possession and control of the car, through its "bailment" (yep, Byrd's attorney's are rummaging deep into the legal tool box for a property argument in this case-citing back to Blackstone on Bailment) to him by his girlfriend; and, 3) public policy considerations, such as how an adverse ruling would impact privacy rights in the growing ride-sharing industry such as Lyft, Uber and car2go.

What if I rent a car, and my under-25 year old son, who rental lease contract language forbids from driving (because he is u-25), is allowed by me to operate the car anyway, and then stopped by police? The rental company may have a beef with me, but can the government bootstrap that beef into saying my son has no standing to assert a otherwise valid  Fourth Amendment claim?

What about common law marriage states (Pennsylvania is not one of them)? The rental agreement in Byrd allows the spouse of the renter to operate the rental. Would the standing issue turn into a family-law question of whether an informal marriage exists? There are all sorts of issues in this scenario.

Additionally, because the issue here is standing to assert a Fourth Amendment violation, it cuts across all Fourth Amendment lines. For example, what if a individual is sub-leasing an apartment in which the original rental agreement contractually forbids it?

You get the picture.

I'll be listening to oral arguments on Tuesday, January 9, 2018, as they come available online. This new SCOTUS line-up may be more friendly to Fourth, Fifth and Sixth Amendment issues than previously thought. I am a little worried about the Sixth Amendment and the Confrontation Clause, but that will be subject of a separate post.

Saturday, September 23, 2017

Feed Me! Tech Edition

Yesterday I spoke briefly with Judge Kyle Hawthorne about the progress of the 85th District Court pilot program to go paperless. When Judge Hawthorne says paperless, he means what he says. Absolutely. No. Paper. It is really amazing stuff. I do not want to try and speak for him or his vision, but I think he advocates a cloud based model in which, using a application like Adobe's Sign and Fill, a defendant could, for example, sign off on plea papers on a tablet and have those documents immediately uploaded to the Court or District Attorney's office.

Pretty heady stuff, and it is to Judge Hawthorne's credit he has taken the lead on this endeavor. Many in the legal community (me) need to be taken kicking and screaming into the future. Nevertheless, I am not so old that I can't be taught some new tricks.

Brazos County has a Law Library on the Fourth Floor of the Courthouse, thanks to the good offices of Earl Gray. It has an assortment of digital and hard copy resources, including the Southwestern Reporter Series, 2nd and 3rd editions.

I sometimes like going to the law library when it is empty and sit among the books. Computer based legal research has leveled the playing field for small practitioners, but I miss the books. For example, the old hardbound Southwest Reporter would often add an "In Memoriam" in the front a volume - pictured above is an example - and a complimentary edition was presented to the family of the individual remembered. I read those memorials sometimes, paying some small tribute to an individual I did not know and their contribution to the Leviathan known as The Law.

It is yet another thing lost to the sometimes Little Shop of Horrors called technology. Like Audrey, it always seem to be saying, "Feed me!"

Tuesday, September 5, 2017

A Broken Faith

There is a young person I know, smart, ambitious, and devoted to their family. This person, a friend of my son, is also an undocumented immigrant. They navigated the Deferred Action for Childhood Arrival (DACA) application process, which included not just application, but multiple trips to Houston, fingerprinting and disclosure of an assortment of information that now identifies them for possible deportation from the only real country they have ever known.

They were brought by their parents from another country at 7 years of age, having no say so in the decision. They started public schools, earned good grades, and graduated. In the ensuing years, this person's parents worked in a variety of jobs, doing work others would not do. It has been a life lived in the shadows, a life lived in fear of coming to the attention of any kind of government authority. The family had another child, born about 5 years after arrival in this community, and who is, by birth, an American citizen. Unfortunately this American citizen's older sibling has no pathway to such status, no matter how hard they work, no matter how successful they are.

I thought that might change with DACA. The young person of which I write wanted to legitimately work. They wanted to legitimately hold a drivers license and social security card. They wanted to legitimately hope for some way to earn a pathway to citizenship with the country to which they in every meaningful way belonged.

So I encouraged DACA when they asked. I told them to have faith in this country, a nation built by immigrants. I told them I was descended from people not so different then they. I told them that although DACA provided no pathway to citizenship, once people in authority saw how positive the program was, how it added to our social, economic and cultural fabric, Congress would finally act. Congress, I said, would cement not only the program but to add a pathway. I said partisan bickering would give way to good public policy.


This young person, who has done everything right, now joins 800,000 others living in that State known as Fear. These young men and women who trusted us, trusted me, when I said "Come out of the shadows, it is the right thing to do" have been betrayed. Spare me the Separation of Powers argument. The last bastion of banality is the theoretical. What we have done at the human, practical level is to break faith with young people who want nothing more than to trust in America, and to return that faith by making her great not by word, but by deed.