Wednesday, December 31, 2014

The Gods Wait to Delight

Tonight amongst the fireworks, champagne and chrouses of Auld Lange Syne, the year 2014 will quietly slip into 2015. There are better read retrospectives to 2014 than this meager effort, but endings should bring reflection and introspection. There ought to be a snapshot of the joy, failure and change the year brought.

Loss is an important event in everyone's life.

Judge Kenneth Keeling died this past October. At the time, Shane Phelps wrote a eulogy remembering Judge Keeling in in his blog, The Atticus Files. The post can be found here. I cannot improve on Shane's moving tribute.

Judge Keeling presided over a Capital Murder case in which I participated as a defense lawyer. The case mis-trialed in January 2013, and remains pending. I cannot (justifiably) write about the case. I can, however, write how I mourn his passing. The trial was an intense few months which changed me.

One thing popular culture can do is remind us of things lost to us, or perhaps just tucked away in our consciousness. Suddenly, there it is in a different sort of context, waiting to be remembered, savored and enjoyed yet again. So, when I saw the movie Interstellar earlier this month and listened to Micheal Caine recite in his distinctive cockney voice Dylan Thomas' Do not go gentle into that good night, the dark theater became for me not a place of movie experience, but a space for homage to Judge Keeling.
Do not go gentle into that good night
Old age should burn and rave at close of day.
Rage, rage against the dying of the light.
Though wise men at their end know dark is right,
Because their words had forked no lightning they
Do not go gentle into that good night. 
 So before we lean far into 2015 and the changes it will inevitably bring, remember how 2014 shaped life. The people met, lost and how they sculpted each of us. Remember experiences both delighting and frustrating. We will never see their like again.

Charles Bukowski (The Laughing Heart) wrote it better than I ever could:
you can't beat death but
you can beat death in life, sometimes.
and the more often you learn to do it,
the more light there will be.
your life is your life.
know it while you have it.
you are marvelous
the gods wait to delight
in you.
Goodbye, Judge Keeling.

A scholarship was established in Judge Keeling's name by his family. The pertinent information is at the end of the story here. Consider giving generously.

And for the rest? A toast:

.May the Gods delight in all of you in 2015. Salud!

Monday, December 29, 2014

A Final Christmas Pardon Humbug from Governor Perry (Except if you are a TAMU Regent in 2003)

The trial was memorable for me on several fronts. I had been doing criminal defense work for a relatively short amount of time. More signifcantly, the felony official misconduct case pitted a powerful former Chairman of the Texas A&M University (TAMU)  Board of Regents, Houston attorney Ross Margraves, Jr., and his respected Houston criminal defense lawyer, David Berg, against Brazos County's elected District Attorney Bill Turner.

I remember thinking Turner showed fortitude in picking a fight with the biggest kid on the block in pursuing Margraves, especially in a town where all things are TAMU-centric. Most thought the case itself, however, a little weak. Texas Monthly had the same assessment in a story done after the trial. The case was moved on change of venue to Lee County (Giddings) which promptly convicted  Margraves in October, 1996.

The case was initially reversed on appeal on a legal insufficiency point by the Fourteenth Court of Appeals in Houston, but a divided Texas Court of Criminal Appeals reversed the Court of Appeals found the Houston COA was wrong, effectively reinstating the jury decision. The State Bar of Texas, never took any disciplinary action against Margraves' law license despite the felony conviction. Yep, the SBOT investigated, it must have, but never took any action against him or his license.

Governor Perry, TAMU grad and long time supporter of TAMU granted a full pardon to Margraves in 2003. Did not hear or read about it? Well, that is because Margraves' pardon was granted at the same time as the pardons for 35 people convicted in the ill fated Tulia drug sting were announced. 2003 was the high water mark for pardons for Governor Perry with 220. 

Do not think for a moment Governor Perry's decision to pardon Margraves with the Tulia defendants was a coincidence. There was hardly as word in media reporting at the time about the Margraves pardon,

I bring the Margraves pardon up because he was one of the (relatively) few to benefit from Governor Perry's use of his prerogative to pardon and grant clemency. Governor Perry's last day is Wednesday. Barring a last minute change of heart, it appears the four pardons he granted in October will be his last. At least, unlike President Obama on the federal side, Governor Perry has not made public pronouncements promising an express line for non-violent offenders to receive clemency or pardon consideration. 

In December, 2010, Scott Henson wrote an story published in the Dallas Morning News about the Christmas ritual of pardons. I am less concerned about the Christmas timing than the comparative statistics Henson cites in the story. Compared to that bastion of mercy, Georgia, Governor Perry's pardon and clemency record was abysmal. I cannot believe it has become better in comparison in the intervening years. 

Pardon is a powerful remedial tool wielded only by the executive branch of government. It allows for expunction of the arrest and prosecution, restoration of civil rights, including voting and jury service. In the event of a pardon of a felony conviction, it would also include the restoration of the right to own and possess weapons, not insignificant here in Texas. It should be wielded more at both the federal and state level. History supports it.

 I am thinking Governor Abbott will be playing the same clemency tune as his predecessor, but we shall see. 

A postscript on where they are now:

Ross Margraves, Jr. was appointed after his pardon by the TAMU Board of Regents to the TAMU-Galveston Board of Vistors,whose mission is to "..advise the CEO of Texas A&M Galveston on all matters pertaining to the organization, welfare, and advancement of Texas A&M University at Galveston." His term expires in 2014. 

David Berg has continued to have a successful law practice centered in Houston. He, however, is still phobic on all things Brazos County. Asked to comment on a $27 million dollar verdict from a Brazos County jury against McDonald's Corporation earlier this year, Berg was quoted by Bloomberg News:
 'The jury turned into a lynch mob...[Clearly] they were very angry. But I don't think the families will be able to hold onto all of that verdict.'
 Bill Turner retired in 2012 after 30 plus years as Brazos County District Attorney.

Thursday, December 25, 2014

The Christmas Humbug of President Obama

Merry Christmas. Well, unless you are one of the many waiting for President Obama to grant a federal clemency or pardon petition. If so, you are likely going to find a lump of coal in your stocking.

This Christmas season President Obama granted eight pardons, the same number as granted during the last holiday season. During his administration, exercise of executive clemency power has been especially flinty.

The graph, courtesy of  P.S. Ruckman, Jr. at the blog Pardon Power, demonstrates the pardon piker our President is compared to his contemporaries. That yellow line at the bottom is President Obama. The green one just above his is President George W. Bush. Embarrassing.

As Ruckman notes, these statistics are of our more recent Presidents. President Franklin Roosevelt and Woodrow Wilson's granted so many pardons the graph as configured would not be able to chart them all. .

There are explanations for the decline in the exercise of Presidential prerogative of pardon and clemency powers. The short version is politics. I attribute it, in part, to a decline in our collective sense of mercy. We call ourselves a country of second chances, but that phrase means everything and nothing at the same time. It is like a self affirming mantra that makes us feel better about ourselves, but too often in practice we minimize and rationalize our decisions not to give those chances.

The folks over at the Department of Justice have decried the inequities involved in mandatory minimums in federal sentencing for non-violent offenses. In April the DoJ announced an initiative to make it easier to seek clemency for non-violent offenders. Despite these public pronouncements, it is more of the parsimonious same this year with our President's exercise of clemency power.

Humbug was made famous in Dickens' A Christmas Carol. The word means language or behavior that is false or meant to deceive people, according to Merriam-Webster. President Obama's public face on disparity, inequity and clemency has been the very definition of humbug.

President Obama is a lame duck President. It is time to start wielding the constitutional authority given to him. Hopefully like Ebeenezer Scrooge, the President will come to realize this power radiates outward to effect more than the life of the individual given the goodwill.

Merry Christmas.

Tuesday, December 23, 2014

Evangelizing to Hard Hearts About the Death Penalty

An old friend of mine is a strong death penalty supporter. He is my "poor man's" focus group on many things, the death penalty among them. Conservative, hard working, married for 25 years, he also hunts with frequency. A plentiful demographic in my corner of the world. As much as my brethren opposed to the death penalty wish it were no so, his view on the death penalty is not isolated to Texas or the South. Two years ago California defeated a initiative that would have abolished the death penalty. Support for the death penalty is also nationwide and stable. This is one reason I thought the information below interesting.

The Death Penalty Information Center recently published data supporting the conclusion a huge gulf has emerged between the states in using the death penalty. Texas, Florida, Oklahoma and Missouri accounted for almost 90% of the executions carried out in 2014. Fewer states may be executing their own, but the states, like my own, that are executing their citizenry are entrenched in its use.

Most states in the pie chart have the death penalty on the books, but have essentially stopped implementing it. One conclusion the data supports is in states that have populations that support the death penalty, there is tolerance for it's non-use.

One of the reasons may be the onslaught of evidence that innocent people have been executed. Conventional anti-death penalty orthodoxy has been to try and convince people an innocent has been executed. There has been meticulously researched, well written long form pieces in the New Yorker and Columbia University Law School that Texas has executed at least two innocent men, Cameron Todd Willingham and Carlos DeLuna, respectively.

The thinking goes that most informed people will be persuaded the death penalty is wrong if it can be proved an innocent has been executed. In Texas, however, many people seem not persuaded. It may not be the intellectually correct position, or even morally right, but there it is. It might work to edge my friend off, but not enough to move to the side of the argument I want him to be on.

How, then, do you soften his hard heart? Can it be done? Is it a waste of time? Can, perhaps, people like him can be softened to a point where their heart allows their head to justify the more rational position that the death penalty makes no public policy or fiscal sense? If my conservative friend can be brought around, anyone can.

But how? How to, if possible, convince, or at least soften, people like my friend on the death penalty? 

I read a book several years ago that started me thinking of a another approach, at least in the court of public opinion in Texas. Written by the late Joe Bageant, the book is a underground classic, Deer Hunting With Jesus: Dispatches from America's Class WarsMother Jones magazine gave a summary in a 2007 review of the disconnect Deer Hunting explores between the people of rural Virginia and conventional liberal thinking:
Bageant uncovers harsh lessons about how liberals failed the people who do society's grunt work, as well as fight our wars, and wind up with nothing to show for it but a broken-down trailer in foreclosure. They're bitter as hell, but they 'vote Republican' because no liberal voice...that speaks the rock-bottom, undeniable truth, ever enters their lives.' 
The wit is merciless and withering. Bageant takes no prisoners. I listen to his ideas because Texas has more in common with Bageant's Shenandoah Valley of Virginia than Southern California. It helps me try and understanding why liberal orthodoxy, and by extension the anti-death penalty message inevitably associated with it fall flat in Texas.

Bageant's listened to people he knew personally to understand why they felt the way they did. He listened not because he agreed with them politically, but he had to know what made them tick, He wanted to know why liberal orthodoxy fell on deaf ears in places that should logically listen. I have tried to hew a path blazed by him.

In other words, I listen to my friend, as difficult as that may be. How can the execution of a almost certainly innocent man be justified? My friend's reply, "That's really a shame, but 'most certainly' we've executed a bunch more who deserved the killin'. Too bad we can't kill 'em the way the killed their victims." 

See that? He justifies the death penalty by the more substantial number who, he believes, not only deserved execution but deserved more of it. My friend is not a brute. He is a voter and goes for jury duty every time summoned. The problem is he has no connection to it, no personal stake. If he stopped and thought about it, which I have tried to make him do, he feels worse about it. It has yet not overridden his abstract thinking that the ultimate punishment should be paid for the ultimate crime. 

I attend church with many people like my friend. I see them at the grocery store. These are not evil people. Thinking of them so is not only wrong headed, it is a dead end. They can be convinced the death penalty is bad public policy, but it is a much easier sell if their heart has been softened. They may always support the death penalty, but perhaps they can tolerate a world without it. 

My conclusions from my small town perch in the reddest part of red Texas?

Death penalty abolitionists must do a better job of acknowledging the suffering of capital murder victims. All of them. According to my one man focus group, we too often have a tin ear when it comes to victims and their families. It is easy to paint us as prioritizing the brutal over their weak. Is he wrong? Prove it. We must embrace ALL the innocents, not just the ones wrongly accused.

We also need to make it more personal to people like my friend. Hold a mirror up to them. They must come to understand they are better people and, yes, citizens if they opposes all death, especially the state sponsored retributive kind, Moreover they can simultaneously embrace the victim of the horrible crime. Help them get to a place where they can accommodate, if not fully support, the idea that they honor the victim by not taking another life, no matter how deserving they believe the death may be.

Let me be even more concrete. Church. Why are we not there? Because we feel alienated by evangelicals? Sorry death penalty abolitionists, that is where most of the voting, jury duty folks are getting their moral fiber in death penalty states like Texas. To my way of thinking, we ought to be evangelizing against the death penalty there.

What some biblical ammunition? Three of the greatest heroes of the inerrant Bible committed murder.

First, Moses. Seeing an Egyptian who was engaged in "beating a Hebrew" Moses "Glanced this way and that" and "[S]eeing no one, he killed [the Egyptian]. When later called on it, Moses fled to Midian so scared, he hid down a well. (Exodus 2:11-15, NIV). Think of what a prosecutor would do with it. Moses acted intentionally, checking for witnesses before the evil deed. He then fled. Guilty knowledge.

Second, King David. He decided to have sex with a married woman, Bathsheba. He was in a position of power over her when he took her. Clouds up consent, eh? Then to rid himself of her husband, Uriah, he intentionally sent him to certain death. "[David wrote] 'Put Uriah at the front line where the fighting is fiercest. Then withdraw from him so he will be struck down and die.'" (2 Samuel 11:1-17, NIV). Aye. Think about that one.

 Finally, the Apostle Paul, the architect of much of the New Testament and its evangelical fervor.. Before converting on the road to Damascus, Saul, as he was then known, was in charge of the brutal stoning death of a spreader of the Word, Stephen. Saul both "approved" the death of this Christian martyr, and  "witnesses laid their clothes at his feet." This is generally accepted to mean Saul was a member of the Sanhedrin, and in charge of the killing. (Acts 7:57-8:1, NIV). In other words, a brutal, sanctioned execution.

I am no scholar, and my purpose is not to preach. Instead, my point is these men killed but were spared from death themselves. They were punished, but shown mercy. More important the mercy shown was repaid.

I am saying convincing people requires going to them on their ground, and using what is important to them. If that ground is in their church, their deer stand (Yes they own weapons. A whole bunch of them. Live with it.) or even over a cold beer, so be it. The tools are there. If they are unfamiliar to you, make yourself familiar to them.

Next, the gift of social media. Write. Blog. Join twitter. Tell and repeat stories that resonate with real people about the death penalty.

Let your friends know about how messed up the death penalty is, especially here in Texas. Talk less about constitutional arguments, more about fairness. Same argument, just framed differently. For starters, why is Texas killing the intellectual disabled even though we are not supposed to be?

There have been plenty of movies and fiction about innocents being executed or those accused crimes they did not commit. What is missing is more of ground plowed by Sister Helen Prejean in the book Dead Man WalkingStories about people guilty of their crimes, and the trauma the death penalty has on all. Themes exploring forgiveness while embracing the horrors of death and what it brings to all. It might not sell to Hollywood, but damn, use the resources of the internet, and the people in your own backyard.

Remember all victims. Make it personal. It may not always work, but one more softened hard heart can lead to another.

Thursday, December 18, 2014

Alvin Ailey, Dorothea Lange and the Brazos River Bottom

 My oldest friend is a gifted storyteller, a raconteur of the first rank. He has his thumb squarely on the pulse of a community near the confluence of the Navasota and Brazos rivers. As those two rivers snake toward their meeting near where my friend calls home, fertile bottom land has been created by the rivers leaving part of themselves behind after millennia of flooding over their cut banks.

Travelling through the sliver of land between the Navasota and Brazos is akin to travelling back in time. The land is still used for it's highest and best purpose, growing cotton. I drive through the bottoms most often on my way back to my office in Bryan from the town of Brenham, Texas. Dodging combines, tractors and trucks, I sometimes stop and gaze at the abandoned yet extant shanties there. I think about the insular world that must have existed before the second World War brought change.

Strangely, insight into that world came from a strange confluence of it's own. New York City, the Library of Congress, and my friend the storyteller.

 First, New York City. I was there several years ago walking south of Columbus Circle when I saw the glass and steel tower housing the Alvin Ailey American Dance Theater at the corner of 9th Avenue and 55th. It seemed a world away from where I sometimes travel in that sliver of land between the Navasota and Brazos. As it turns out, no so much, really.

I knew of Alvin Ailey as I stood near the building that bore his name. I knew, for example, he was a famous dancer and choreographer. A gay man of color. What I did not know was he spent his formative youth - from the age of six to twelve - in Navasota, Texas 30 minutes from where I live, near the river for which it is named and a short drive from where I stop to think about a time of segregation and tenant farmers.

About the time Alvin Ailey was growing up in Navasota, taking from it inspiration for his masterpieces Revelations and Blue Suitethe photographer Dorothea Lange visited the river bottom near where he lived.

 Lange is famous for her photography of migrant workers during the depression. She is best known for the iconic 1936 photograph of Florence Owens Thompson, displayed in the Library of Congress, titled "Migrant Mother":

Lange visited the Brazos River bottom in June of 1938 when Ailey would have been eight years old. It makes my head swim to think of these two world class artist, one at the height of her powers, the other, gathering life experiences, even at his tender age, that would make him famous years later. Each unaware the of other.

Here is one of the photographs Lange took in the bottom. Her remarks accompanying read:

 "Negro sharecropper with twenty acres. He receives eight cents a day for hoeing cotton. Brazos riverbottoms, near Bryan Texas. 'Some of  'em don't get nothin'. They just make these niggers chop that cotton.' Few leave the bottoms. 'They ain't got nothin' to go on.'''      

This is the world Ailey was experiencing. He left Navasota four years later, in 1942, to follow his mother and opportunities the War brought her to Los Angeles. I can only imagine what it must have been like for him at 12 years of age to step off a train in L.A. after spending his known life in and around the environment depicted in by Lange. He must have thought he was on Mars. For better and for worse, the attitudes and influences he brought from the river bottom never really left him.

It is also a long way from Midtown in the City.

Which brings me to my friend the storyteller. He tells of a killing that took place following World War II, after African-Americans had not only sacrificed lives in conflict, but experienced Europe and more egalitarian attitudes there. The old order of the Brazos river bottom near Navasota and Bryan no longer made sense to those who served and returned .

Change in a place of shanties and tenant farmers comes slowly, if at all. This African American tried organizing tenant farmers still living and working in the bottom. He was shot dead for it after a confrontation with a tenant landlord.

Nothing much happened to the white man who shot him, says my storytelling friend.

Ailey and Lange give us, simultaneously, a snapshot into that time and themselves. Layered, nuanced, profound. Always beautiful.

Wednesday, December 17, 2014

A New, More Creative Crop of Marijuana Laws

   Back in the 1970's The Summit was the rock venue of choice in Houston. Bands as diverse as The Who and the Marshall Tucker Band played the place. A constant of those concerts was when the house lights dimmed the ganja was lit up.

    I was too young to catch The Who in 1975, but I was in the second deck when MTB played the place later in the decade. I cannot speak for the folks sitting on the floor near the band, but in the cheap seats there was no need for a suburban kid like me to light up. The second hand smoke from the marijuana being shared around me was enough to make my eyes water and head swim.

   It makes me smile to know the space is now occupied by Lakewood Church with weekly attendance of over 43,000. That any church, much less a mega-church of evangelical bent, is holding weekly services in a building once played by the dissolute like of Aerosmith is evidence that God is both forgiving and has a fine sense of humor. 

  But I digress. This is about marijuana, the law and purposed legislation in the biennial Texas legislative session beginning this spring. Grits for Breakfast posted a story yesterday about HB-507 introduced by Representative Joe Moody applicable to amounts of marijuana under 1 oz. Moody is a former prosecutor from El Paso. Grits details the rollout of the bill, the media coverage and gives some prognostication about passage. This post is really meant to applaud the creative approach used by Rep. Moody and provide some more fodder for thought as we await the beginning of the legislative session. 

   What is creative about the bill is by creating civil penalties instead of criminal, even a Class C, fine offense, the arrest, and consequences associated are largely eliminated. My practice is in a town with a 50,000 college students, most a high achieving, ambitious lot. Many commentators have railed about the waste associated with prosecuting low level amounts of marijuana. I see that waste every day in the trenches of the courthouse. I am sick of it. More importantly, I think the body politic is sick of it too. At least if the jury panels in my conservative county are any barometer of the body politic of Texas.

   As Grits has reported, the lege passed legislation back in 2007 allowing law enforcement to "cite and release" low level POM and Driving With License Invalid (DWLI) cases, but few agencies have taken the legislature up on this option. A conviction to POM carries with it an automatic 6 month suspension of driving privileges in Texas. How this plays out practically everyday in courthouses is illustrated by the chronic user in the societal tax payer wagon who either cannot or will not make bond. This dude is arrested, sits in county for a week to ten days, pleads guilty, is convicted with time served, released and has driving privileges suspended. A few days or months later, same dude is arrested for DWLI and the cycle continues. 

   As significant, are those who cannot make bail, who are factually innocent, but plead to get the heck out out of county.

   Just as profound are those in the community who are, or aspire to be, pulling the societal wagon rather than in the wagon being pulled. I am talking about college students and young professionals who smoke pot just like their parents or grandparents did in the Summit all those years ago. These folks have much to offer to their community. In a digital world, however, a deferred adjudication to a POM case can make the difference in,getting into medical school, graduate school, or sitting for the CPA exam. All over what many times is marijuana of a weight equivalent to the sugar substitute I pour into my ice tea. 

   Deferred adjudication probation under current Texas law is not panacea. Sure, an Order of Public Non-disclosure is available to those who successfully complete, but that is only partial amelioration of the arrest. Another thing: that some counties in Texas have pre-trial diversion programs while other do not makes no sense. Why should dismissal of charges, if otherwise eligible for a pre-trial diversion program, be determined by which side of a random county line (river, or road) they were stopped, searched and arrested on? 

   The Texas Juvenile Justice Code statutorily provides for the option of pre-trial diversion.  A legislative alternative would be to amend the Texas Code of Criminal Procedure with what they have a already recognized as a judicial alternative in the TJJC. If baby steps are needed - and I understand why - restrict applicability to offenses such as POM less than 2 ozs. and DWLI. These two offense alone make up approximately 20 % of the formally charged offenses in my county. 

   What I like about HB-507 is the civil aspect. It does not allow arrest.  The problem IS the arrest. Even if the POM is refused for formal filing by prosecutors the law provides a wait of two years (the statute of limitation period) to expunge the arrest (there are exceptions). Expunction has limitations. It is a good tool, but in a digital world even an expunged arrest can magically appear on a Google search. Just ask, at least in my experience, the (not) so good folks at These folks, who operate out of Belize, will tell you they are beyond the jurisdictional boundaries of Texas, and therefore Texas expunction laws. They will, however, happily let you know that for a "small fee" they can remove arrest records the State of Texas say are a nullity. 

   Collection of the civil penalties is a issue addressed briefly by Grits. I have thoughts to be expanded upon later. My larger point is to applaud the creativity of Rep. Moody. I hope to be heard on it as it winds it's way through the currents and eddies of the the legislative session .

   Good luck.

Monday, December 15, 2014

The King's Speech

   There has never been a better American orator than Martin Luther King, Jr. Not Daniel Webster not even Lincoln.  King may be most famous for his "I have a Dream" speech on the steps of the Lincoln Memorial in August of 1963. His acceptance speech for the Nobel Peace Prize, fifty years ago this month, in December of 1964, is better.

   King begins the speech with obligatory remarks thanking the King of Norway ("Your Majesty, Your Royal Highness"). These remarks give unintended irony to the remarks given King's surname. The use of the word "majesty" is important given it's use in another context later in the speech.

   King turns immediately to acceptance of the prize. He uses the word "accept" unconventionally. King uses it to both mark time and illustrate the struggle he had traveled to represent. He purposefully employs irony using the word "battle" in a speech for a peace prize. The sentence ends in metaphor and abstraction.
 I accept the Nobel Prize for Peace at a moment when 22 million Negroes of the United States of America are engaged in a creative battle to end the long night of racial injustice. 
   King then "accepts" the prize again, but still not in the conventional way. He tells the assembled he is merely a vessel for those engaged the non-violent battle. Notice he uses a form of majesty, "majestic", and ends the sentence with another abstraction, laying out the ultimate goal of those for whom he is accepting the prize.
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.
   Using repetition again, King pivots from abstraction to the concrete. He makes it personal. He wants the assembled audience to know the real suffering and risk undertaken by ordinary people for which he has just told the gathered he has accepted the prize. He uses "our children" in the first repetition, then "my people" in the last repetition illustrating how poverty remains as real a shackle as any iron and chain.
 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.
I am mindful that debilitating and grinding poverty afflicts my people and chains them to the lowest rung of the economic ladder.
   King is speaking here not only to the royalty, peerage and intellectuals in his immediate audience. He is reaching out to establish solidarity with "his people" in Mississippi, Alabama and the rest of the South. .

   King returns to acceptance and it's antithesis, again with repetition returning to the larger themes. He ends with what ordinarily would be negative imagery,using it instead as a platform for hope.
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 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 motor bursts and whining bullets, there is still hope for a brighter tomorrow.
   The remainder of the speech is an expanded riff on these themes. King's speech was muted and understated, without the firebrand that marked many of his other speeches. He knows he is speaking to an international audience. So, for example, later in this speech, King references the struggle against apartheid in South Africa. He was angling for international money and support from the highest of quarters, both financial and intellectual. 

   Classic rhetoric. I could bemoan the lack of eloquence today. I could write about the dumbing down of communication in a digital world in which coarseness seems the norm. Nope. I will just enjoy reading and watching a master at work. 


Sunday, December 14, 2014

The Evil of Magnanimity

   Johnny* was the first guy I knew who owned a Porsche. It was the mid 1980's and Johnny was a lawyer for a plaintiff's law firm I was working for as a "gopher" (as in "go-fer"). It was the zenith of personal injury work in Texas, before tort reform, and the firm was one of the most successful in Houston. Johnny had graduated recently from my law school and was a academic and advocacy program star there. I wanted to be Johnny. And I wanted Johnny's bad ass Porsche.

   A few short years later, Johnny was dead of a self inflicted gun shot wound.

   Johnny was on my mind when I read Steve McVicker's recent story in the Houston Press about Donald Davis, a passionate, respected Houston criminal defense lawyer who took his life in the middle of the trial of a capital murder case he was helping to defend.
[Davis] was different from many other high-profile attorneys who specialize in capital murder cases; he didn't mind getting his hands dirty in the trenches. Unlike attorneys who are rarely seen except when they take center stage for high-profile cases, Davis had a nuts-and-bolts practice that kept him at the courthouse every day. He worked as tirelessly on a simple drug-possession case as he did a headline-generating murder trial.
   The wildly successful podcast Serial  devoted episode ten to Cristina Gutierrez, who defended the young man the subject of the series, Adnan Syed. Gutierrez was disbarred a year after the conclusion of Syed's trial for matters unrelated to him. Three years later she was dead of a heart attack. Her obituary from the Baltimore Sun contained the following paean to her:
Baltimore Circuit Judge Clifton J. Gordy said that when Ms. Gutierrez was practicing, she would have been the first defense lawyer he would have called if he were charged with a serious crime. 'And that's the biggest compliment one lawyer can give another.'
   These trinity of lawyers were different in demise, but common in cause. For all of you who argue Davis and Gutierrez's failures came while enjoying the trappings of success provided at the expense of others, I get it. The complete truth is, like most things in a textured and nuanced life, it is just not that simple. Complex people bring complex plights. Each was magnanimous to a profession that often shows no magnanimity in return. They lost in differing degrees a sense of themselves to the demons each wrestled.

   Many professions offer examples of stars who burned bright, and then out. I fear Davis and Gutierrez will be remembered not for the passion they brought to criminal defense, but, instead, their failures. As a society we exalt the generous, but generosity's dark cousin, pride, can take as easily as it gives.

   Johnny gave back to our law school in many ways. For example, he came back often to help out with mock trial. Once he had to listen to a particularly poor cross examination I did. His advice? "Cross on facts, argue what they mean on close." Trial Lawyer 101. Something they do not teach enough in law school. Advice I still remember and follow 30 some odd years later.

   Thanks, Johnny.

*Not his real name.

Thursday, December 11, 2014

The Two Water Fountains - TBT

   I have walked the hallways of the Brazos County courthouse for many years. The current courthouse is the county's sixth. It was originally built in the mid 1950's and then remodeled in the mid 1980's in sort of slapdash fashion. It is now in the midst of another remodel. Even my untrained eye can see where the old courthouse ends and the mid 1980 edition was engrafted on to it. 

   The design of the old section of the courthouse placed the 85th District Courtroom was at one end of a hallway, the County Courtroom at the other. In between are the two water fountains pictured. I walked by those water fountains for years before I realized they were remnants from the Jim Crow era. They are not functional.

   In  an era of renewed racial tension, I wonder how many jury panelists, waiting to be voir dired,  figure out what those fountains are. Do defendants summoned to the courthouse, many of them persons of color, understand what those fountains represent? 

   Several years ago, I asked John M. Barron, Jr., now deceased, about Jim Crow at the Courthouse. He was very helpful, open and accommodating about my questions. His father had been the 85th District Court judge in the 1960's. I asked him first about the water fountains. "The one on the right had the 'Colored' sign over it" he said.

   I asked about other segregated facilities in the courthouse. "The restrooms on the third floor on the old side of the courthouse had 'White Only' on them", he told me. "My father actually cut the 'White' off the restroom signs sometime in the '60's. They took the 'Colored' and 'White' signs down from above the water fountains about the same time".

    I asked John where the old "Colored" restrooms were in the courthouse. "Basement" was his reply. Access to the basement is behind a locked door off the main lobby with a sign marked "Authorized Personnel Only".  Walled off. Forgotten. Not talked about. Or just ignored in plain sight like the water fountains. 

  Rest in peace John, and thanks. I hope to see you again, God willing. I will be seeing some of rest of you at the Courthouse, somewhere near the two water fountains.


Tuesday, December 9, 2014

The Killing Floor - UPDATED

UPDATE 07/26/2016: The the Fort Worth Stockyards - discussed in the original post below - are being demolished. At least the part of the stockyards encompassing the stock pens and the old Swift slaughter and packing facilities. The Fort Worth Star Telegram Editorial Board gave a generally positive review of the demolition and the efforts to vitalize the area. The old stockyards had been allowed to fall into disrepair for many, many years. Nothing was really done to preserve this truly historic area - once brimming with thousands of workers and livestock. They embodied the essence of what Fort Worth prides itself to be - the earthy, authentic half of the Dallas-Fort Worth Metroplex, a sort of Cowtown Ying to the Yang of Big D glitz. For me, most disturbing is the destruction of the scale house, pictured above, where cattle were weighed after sale. Although the Swift lab building is going to be saved, the real center of the Stockyards was the scale house. Virtually every head of livestock sold would pass through there. It is a real shame it will be razed.

ORIGINAL POST: We came from very different backgrounds. Sam's* father was a union shop steward, mine a physician. We met in Huntsville, Texas where we both went to college. We somehow became friends, and he ended up getting me a job working the Saturday sale at a livestock auction barn in a town about 30 minutes away. In the fall when cow/calf operations were selling off herds to minimize feeding costs for winter, the sale could last throughout the day and most of the night.

   There was a symmetry to it all, a kind of rhythm. We would off load livestock from trailers, tagging the stock as we did, later working in all sorts of capacities: the crowding pen coming into the sale ring, the scale coming out, sorting livestock for the buyers, and finally re-loading the trailers. The same movement every Saturday, both volume and work dependent on the season. I met a cast of characters at that barn that would fill a large notebook. For Sam and me it was beer money, and we ate for free at the barn's cafe if on the clock.

   I was fascinated by the workings of the auction barn, but not so Sam. His father, a union shop steward, had worked at the Fort Worth stockyards for one of the two big meat packers, Swift and Armour during their heyday. To make his point, Sam once packed me up in his old straight six Chevy pickup and carried me to northside Forth Worth and the stockyards. There, as we stood atop the remnants of stock pens, he told me stories his father had told him. Stories about the underground tunnels leading from the stockyards to the packing plants on the hill above. Stories about the men who spent their lives pushing cattle to the killing floors.

    I read a story by Dan Berry in the New York Times this week about a intellectually disabled man named Leon Jones. Leon, you see, has worked in virtual indentured servitude at a Turkey processing plant in South Carolina for 40 years. Leon is from Texas. His experience as told by Berry is in part a cautionary tale about how we treat the least among us. It brought me back to the stories Sam told more than 30 years ago.

   Sam's father worked with and took care of several people that Sam described as "slow". His point at the time was people with limited abilities worked at the meat packing operations and his father, the union steward, protected every man, no matter how limited. It was his job, but it was probably more than that. I think Sam was the first person I ever met who had a family member who was union.Texas is a self styled "right to work"state, and union membership in some quarters was then, and still is, considered tantamount to membership in the communist party.

   I have experienced the intellectually disabled  in my own life over the intervening years. Most profoundly in the criminal justice system. Leon Jones is described as intellectually disabled. He receives disability benefits from Social Security. But he learned a trade, however brutish. He has worked consistently at that brutish trade for more than 40 years.

   If someone like Leon killed and took a dollar from his victim's pocket, that person could be charged with capital murder and potentially subject to the death penalty in Texas. The Supreme Court of the United States says we cannot punish the intellectually disabled with the death penalty. In Texas, however, we do. We do it because the criminal justice system here defines intellectually disability in a different way. A person who can show up for work, who can follow instructions, who can complete repetitive work can, and often is, found to have the functional adaptive behaviors to be defined outside what Texas criminal justice says is intellectually disabled.

   In other words, when you read about Leon and his limited functioning, remember someone like him could possibly be subject to our own kind of killing floor.

   I will have more to write about SCOTUS and Texas and intellectual disability. For now it is nice to read Dan Berry's account about how Leon was reunited with a brother despite the currents of impairment, time and space. I have not talked to Sam in years. We lost track of one another after college, victims of our own kind of impairments, time and space. Life sometimes is like that.

* Not his real name-I have not received permission from him to use it, and because we not talked in years feel like the better practice is not to use it.

Monday, December 8, 2014

The Confederacy Storms the Barricades in D.C.

UPDATE (06/18/2015): The State of Texas wins a close 5-4 decision. Justices Breyer wrote the majority decision, joined by Justices Ginsburg, Sotomayor, Kagan and Thomas. Justice Alito wrote the dissent joined by the remaining justices and the chief justice.

UPDATE (03/24/2015): Oral argument at SCOTUS was yesterday in this case. has a good analysis of OA and a transcript is available here. Most fascinating aspect, for me, was Justice Sotomayor's questions directed at the SCV seeming to try and carve out a middle ground of "hybrid speech" (transcript pg. 37). SCV was not having any of it. Also important was Justice Kennedy's mention that no one goes to parks and climbs on a soapbox as a public forum for political speech anymore. "Why isn't this a new public forum a new era?" he asked the Texas Solicitor General (transcript pg. 9).

 Amongst the lore from my mother's side of the family is an ancestor who provided meritorious service to the Confederacy. It is always noted he was cavalry, which I interpret as meaning social standing in that bloody time depended upon the triviality of being horseback during the carnage rather than on foot. Captured in 1862 by the hated Yankees during the battle of  Perryville, Kentucky, he was interred in a union prison camp for the balance of hostilities.

   Decedents of my ancestor's bothers-in-arms have now taken to the litigation battlefield against, ironically, a state's right to disallow specialty license plates with their emblem, which includes the confederate battle flag. Here's the plate:

   Their offensive has led to a field of battle their ancestors never achieved, Washington D.C. The situs of the fight is the Supreme Court of the United States.Walker v. Texas Division, Sons of Confederate Veterans had petition for certiorari granted on Friday, December 5, 2014. The wonderful SCOTUS blog has a summary of the legal issues involved as well as links to the State's petition and the response of the SCV  here.

   As best as I can communicate, the first issue is whether the specialty plate is a form of government or private speech. The state of Texas says any organization (including SCV) that requests a specialty plate is engaging in private speech. As such the State can decide whether to allow or disallow the private message or symbol sought to be displayed. The SCV argues once the government opens a forum to the public, it cannot discriminate among the message (or symbol) speakers deliver in that forum. The SCV maintain Texas' specialty license plate program is such a forum and the state's denial of it's plate logo is viewpoint discrimination. The SCV view won in the Fifth Circuit Court of Appeals.

   It is hard for me to get worked up over many of these First Amendment cases. I understand it is the FIRST Amendment. Nothing is more basic in a robust republican form of democracy than differing viewpoints of speech and airing those viewpoints in public assembly.

   The specialty plate program is is both popular and profitable in Texas. Hypothetically, if there was a non-profit named the Sons of Black Panther Party which submitted an application for a specialty plate with "The Revolution has Begun" as a motto and a logo similar to that below, would it be supported by the SCV?

   Even though it received much less media attention, one of the other cases SCOTUS granted certiorari Friday has potentially far more profound results in terms of the power of government. It is Brumfield v. Cain, a Louisiana case involving Intellectual Disability (Mental Retardation) and the death penalty. More on it to come later. Both cases will likely be argued in March, 2015.

   Perhaps there will be Civil War reenactors on the steps of SCOTUS when the SCV case is argued. What a spectacle it would be. I am sure my ancestor will be there in spirit. Horseback of course. He is cavalry, after all.

Friday, December 5, 2014

A Trip to Peckerwood Hill

   I went to visit Peckerwood Hill last week. I do almost every time I make the hour drive to Huntsville, most often for court appearances. A stout arm could throw a rock from the Walker County courthouse and hit the the iconic Walls Unit, home of the Texas death house. My destination, however, is a short drive from the Walls, up a hill past the Sam Houston State University's football stadium, my alma mater, and beyond the stop sign at the at the corner of Bowers and Sycamore. It is there the grave markers of the Captain Joe Byrd cemetery, also known by the far less distinguished name Peckerwood Hill, await.

   It is the potters field for indigent inmates who have died in prison. I first knew the place while living in an old pier and beam duplex near it almost 35 years ago. The frame duplex no longer exists, an apartment complex having replaced it. The area I lived was known then as Shephard's hill, but the gentle roll of the hill has been bent by dozer and dump truck to a the level grade of foundation and unwieldy student housing.

   Back in the day, I would ride my bike down Sycamore, turn at Bowers and glide down the hill to the university. I would occasionally stop at the cemetery. I was like that then. Curious. Sam Houston State, to it's credit, gave me access to things I had never experienced, even growing up in a cosmopolitan city like Houston.  I had to go to a small college in a conservative town in East Texas to find the pages of the Village Voice, to discover the Walls Unit and the death house. To learn about the Byrd Cemetery.

   I remember it struck me ironic that the irascible Father of Texas, Sam Houston, was buried in a stately cemetery down the street from the Walls unit and it's death house, while a few turns away are buried the too poor of his progeny's prison system. Unlikely neighbors in perpetuity. I have a hunch the Raven would have approved.

   Last week when I drove past the busy sidewalks, the football stadium, the baseball field and the apartments I wondered if I stopped and asked, how many would know the Byrd cemetery even existed.  I am betting very few. Really not their fault, but still I wonder.

   Allan Turner wrote in a Houston Chronicle story two years ago that the cemetery was near capacity. A visit would reveal the prediction prescient. As I stood at the bottom of the hill on that beautiful fall day, I wondered where the indigent dead would go next. I also thought about the major construction going on a hundred yards away from where I stood. The 22 acres comprising the cemetery have been used since the mid 19th century to bury the dead. The town, and then, later, the university were far away from what was then one of the seven hills around Huntsville. Not now.

   My wonder was if the money was right, if the system would disinter graves and move them because the dirt had become too valuable not too. I hope not. But it does not matter. I will visit anyway.

Thursday, December 4, 2014

My Son, the Cretin

   It most often happens at the grocery store. My youngest son and I have a routine every Sunday afternoon - he goes with me to shop for the staples of our existence, milk and toaster pastries. It has become a safe harbor of sorts and jealously guarded time together. It is a busy time at most stores. Typically after church and Sunday dinner, children often come along for the grocery shopping ride. It is from them, my youngest's peer group, the uninitiated, that I see the stares.

   He is almost eleven, and except for a very limited number of words - "mamma" and "uh-huh" - is non-verbal. Muscle spacticity in his lower body and a recent growth spurt have aggravated gait problems. He has sensory processing difficulties, a catch-all term meaning he does not experience sight, sound and taste sensations in conventional ways. To compensate, he contorts his body into positions a yoga instructor would envy. It is his way of experiencing and coping with sensations I process in much different ways.

   Hence the stares as we navigate down the bread aisle. I am not complaining, my older boys would have stared too. And there are the perks. For example, I have a handicap placard that allows preferred parking near the front of the store. There are several of these, the best or which is my son never has a bad day. Never. A lesson for me there.

   I could rattle off the medical specialists and sub-specialists he has seen, the specialized clinics he has visited, but no soap on the cause and effect issue. The august lineup of professionals includes two geneticist, both M.D. Ph.D's. Neither can yet answer the question of whether his condition is a freak chromosomal anomaly or more sinister: Something that will be passed down generationally. This complicates family planning for his older brothers.

   My sensory perception has changed because of him. My view of the world. My view of the law. Most of all, my view of the fallen, of which I count myself. I wonder about the way generations before me would have viewed him. Words like imbecile, idiot or cretin would have been used, contemporary slurs all. Cretin, however, originates from 18th century french and means, literally, Christian, or one who is human despite deformities. But then who amongst us is not in some measure both divine and  deformed?

We look forward to seeing you somewhere between dairy and produce this coming Sunday.

Tuesday, December 2, 2014

The Eminem Show at SCOTUS

UPDATE (06/25/2015): Elonis was decided on June 1, 2015, and reversed for a new trial. The case was decided on federal statutory grounds, and not constitutional grounds. Chief Justice Roberts wrote the majority opinion essentially holding the jury instructions used at trial would allow non-statutory authorized conviction potentially based on a negligent mental state. This probably buys the  defendant some more time, but at the end of the day it will be hard to argue (though I am sure he will) that his Facebook rant was done negligently and not with intent to threaten his now ex-wife.

 Eminem lyrics were quoted by Chief Justice Roberts during oral arguments at the Supreme Court of the United States on Monday, December 1, 2014. It must have been a sight watching the Chief Justice quote the real Slim Shady. The case has drawn much media attention, but the case is really another example of how SCOTUS fiddles while criminal jurisprudence burns.

  The facts of  Elonis v. United States are not defendant friendly, but then criminal First Amendment cases before SCOTUS rarely are. The defendant, Elonis, essentially used social media as a platform to threaten his ex-wife with, among other things, violent rap lyrics. SCOTUS blog has an excellent summary of both the evidence and the constitutional  issue.

   Elonis' First Amendment claim boils down to his contention he never meant to actually threaten his ex-wife. He maintains he was "venting". The trial court obliged the framing of the legal issue on appeal by agreeing with the government at trial by instructing the jury, basically, that whether a threat was intended should be viewed objectively. Elonis said this was wrong, and the first amendment requires a subjective view: Whether he intended to threaten his wife when posting online. 

   Yeah, I know, one person's trash is another's treasure. Nevertheless, what Elonis was probably doing was simultaneously threaten while trying to be slick about it. Only in Misogynist Wonderland would someone look at Elonis actions and believe he was venting rather than sending a not so subtle online threat to his ex-wife for all the world to see. 

   Interestingly, Texas criminal law was mentioned during oral arguments. The transcript is of oral arguments is  here. Elonis' lawyer points out (at page 10) that Texas law requires the person communicating the words subjectively intend the result - the same standard he advocates is required under by the statute at issue and the First Amendment. In answering a question from Justice Kagan the lawyer makes the observation,
[ELONIS LAWYER] Happily, Texas is one of the many states with a subjective standard so there is a good chance he will be acquitted.
   Wow. How many Texas cases this guy has tried to a jury? Justice Sonia Sotomayor, a veteran of actual criminal trial work, focused on intent with her questions to this lawyer (pages 6-7). The distinction the lawyer tries to make is one appellate specialists and law school professors love but leave many trial lawyers scratching their heads.
JUSTICE SOTOMAYOR:  You can infer what a person's state of mind is from the circumstances of how and what was said in words, correct?
[ELONIS LAWYER]: That is correct.
JUSTICE SOTOMAYOR: So if that's the case, isn't the jury acting like a reasonable person in looking at the words and the circumstances and saying, did he intend this or didn't he? I mean, I don't know what the difference between the standard given and the one the instruction you want.
  I know they had their reasons, but I cannot help but wonder why federal prosecutors did not just give Elonis the instruction he wanted. Instead, the trial judge sided with the government and gave Elonis' appellate lawyers fodder for razor thin constitutional arguments on intent. So much time and resources could have been saved.

So, while these esoteric arguments are made, Texas is prepared to execute a severely mentally ill man. Another example of SCOTUS resources used on law school distinctions and lyrics better left to Eminem.

Monday, December 1, 2014

Why So Late Condemning the Death Penalty Judge Price?

 Justice Harry Blackmun was tired. It was 1993 and he was a few short months from announcing his retirement from the Supreme Court of the United States. Justice Blackmun may always be identified with the abortion decision of Roe v. Wade, but in the winter of his tenure with SCOTUS it was death that was on his mind.  

   Justice Blackmun dissented when the death penalty originally had been declared unconstitutional in 1972, and played a central role in its rise from the ash heap of constitutional history four years later. He had been in the majority then, when a trinity of cases decided that Texas, Georgia and Florida had sufficiently mended the arbitrariness dooming their previous death penalty schemes. By 1993, however, Blackmun had witnessed the failures these schemes had wrought. It was fitting the vehicle he chose was a Texas death penalty case on which SCOTUS denied writ. Blackmun’s dissent in Callins v.Collins began:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor...[Rather] than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

   On Thursday, November 26, 2014 Judge Tom Price of the Texas Court of Criminal Appeals, issued a dissenting opinion in a Motion to Stay Execution in Ex parte: PanettiPanetti is a case study in some of the many wrongs in Texas’ application of the death penalty, but that is not the point here. In dissent, Judge Price, in the absence of a better description,“Pulled a Blackmun”:

Having spent the last forty years as a judge for the State of Texas, of which the last eighteen years have been as a judge on this Court, I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished.

   Judge Price designated his dissent for publication, while both the per curium opinion denying Panetti relief and Judge Elsa Alcala's dissent were non-published. In other words, Judge Price meant for his condemnation of the death penalty to be perpetuated for citation by lawyers attacking it in the future.

   I should feel invigorated. Those of us who rage privately while shouting into the void of the criminal justice system about illusory protections from the death penalty should rejoice at this acknowledgment, right?  Sorry. Instead it is anger I am feeling. Judge Price’s public condemnation of our death penalty scheme comes just a short month before his retirement.

   I am sure there are legitimate reasons for Judge Price’s late public acknowledgement of the failure a scheme dishing out state sponsored death: He is elected. He has a responsibility to the CCA. He has a responsibility as a jurist to follow the law. I get all of it, but having watched up close the machinery of death work its capriciousness, it just angers me. Am I the only one?

   Again, Justice Blackmun in dissent from Callins:

The basic question--does the system accurately and consistently determine which defendants ‘deserve’ to die?--cannot be answered in the affirmative…The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. 

   Harry Blackmun died five years after his words were published to a world that today still believes in the machinery of death. Judge Price can be a public, vocal critic of the death penalty in his retirement. He has had ringside seat both on the trial court and appellate bench for what Justice Blackmun described in Callins as the failure of the "[d]eath penalty experiment." Here’s hoping in the fall and winter of Judge Price's life he shouts into a what I fervently hope will no longer will be a void.

Saturday, November 29, 2014

Killing Scott Panetti is Nuts - Just Ask the Victims' Daughter

          Sonja Alvarado watched Scott Panetti brutally kill her parents. After the killing, Panetti  abducted Sonja and her daughter at gun point before finally releasing them. Panetti is currently scheduled to be executed by the State of Texas on December 3, 2014. 

          Panetti is nuts, and has been for a very long time. His Keystone Kops of a trial has been extensively documented and detailed by traditional media. However, as his appointment with death approaches, I wonder about Sonja Alvarado, the victim who has lost so much. She is hardly mentioned in the tales of Panetti’s cowboy suits and his attempt to subpoenas Jesus Christ to trial. How does Sonja she feel about all this? Does she feel retributive justice will be serviced by the death of the man who killed her parents? Does she feel anything will be accomplished by the State killing the man?  I found the following while searching for an answer. In an August 1999 affidavit filed during Panetti's federal habeas claim, Sonja was straightforward in what she believed should happen to the man who killed her mother and father:

I do not hate Scott. I hate what Scott did. Scott was a good person except when he changed...  I know now that Scott is mentally ill and should not be put to death.

           Victims of unspeakable crimes are rightfully compelling figures. The vicissitudes of time and circumstance lead many to a differing measure of forgiveness. This willingness to sheath the sword of retribution is beyond conventional understanding - at least mine. I wonder about the grace necessary to forgive, in any measure, the killer of a loved one.

            The death penalty in Texas is many things. But Panetti's execution is not about retribution, unless it is believed the body politic of Texas has the right of to take such vengeance. Sonja Alvarado, if her 1999 affidavit still reflects her feelings, does not want Panetti killed. Sonja sees no useful purpose, resource or end served by killing the killer of her parents. Panetti’s appointment with death is about the pridefulness of bureaucracies refusing to acknowledge a systems breakdown. Panetti is nuts. He was nuts at his trial. He was nuts before his trial. He was probably nuts when he brutally took the lives of others. And yes, he is nuts now. Sonja Alaravado knows this. The people in authority who can still stop the killing of this severely mentally ill man - and I am looking at you Governor Perry -  know it too.

           Panetti has become a martyr, while one of his victims, Sonja Alvarado, has been kicked to the curb. That is truly nuts.