Monday, December 28, 2015

UPDATED WITH DASSEY REVERSAL: Making A Murderer on Netflix - A Must Watch (Spoilers)

UPDATE 08/13/2016: I wrote in my original post dated 12/28/2015:
I am, however, going to write about the most tragic figure in a documentary full of them. Stop reading now if you do not want a spoiler. Brendan Dassey was an 16 year old intellectually disabled high school student when he confessed to participating in sexually assaulting, murdering and incinerating the body of the 25 year old Teresa Halbach in the fall of 2005. Once you watch the confession, however, you know what Brendan told the investigators in March 2006 was not true. What you are left with instead is incredulity. Incredulity about how investigators, prosecutors, and the courts believed - and continue to believe - what Brendan "confessed" is true.
On 08/12/2016 a Federal Magistrate, on federal habeas petition in Milwaukee, found Dassey's confession to have been involuntary. My strongest opinions from the series were about Dassey and this confession. I understand facts can be twisted and editing by omission can influence a viewer's opinion. However, anyone watching the actual video of Dassey's inculpatory statement was witness to actual, if unintended, manipulation.

The Washington Post summary about Dassey's court victory gives a good timeline and explanation of the new developments in Dassey's case. The 91 page decision including how Dassey's age and borderline intellectual functioning factored into the decision can be read here. There are other things of significance to the criminal justice system, large and small that this decision implicates, but the decision is the right one.

The State will have 90 days to decide whether to re-try Dassey, release him, or appeal to the 7th Circuit Court of Appeals, in which case the magistrate's decision will be stayed. My bet is Dassey's odyssey is not over and the State go with the last option and appeal.

ORIGINAL POST: I am a dedicated cynic. It is a necessary occupational hazard of criminal defense, and one reason I have stayed away from crime dramas in film, television and podcasts. I did not watch HBO's The Jinx. I did not invest myself in listening to Serial. The cynic in me knows these endeavors come with inevitable baggage, and I spend enough of my time playing devil's advocate.

I do not know why I felt Netflix's Making a Murderer was different, but I took the plunge, watched and came away converted. The 10 episode documentary should be watched by everyone involved in the criminal justice system. It is immersive, intense, and ultimately, tragic. That I now write about it a week after binging through 15 hours of it is evidence of the staying power instilled.

The details, so often absent in documentaries about the system I work within, are present here in spadefuls. Access I find hard to believe existed suddenly unfolds like a bad dream for all to watch and listen. For reasons that become apparent during the film, I think it impossible to be replicated.

With a few notable exceptions, everyone, including at least one criminal defense lawyer, look bad. The prosecutors and law enforcement officers as depicted are nothing like those I know, work with and against. Unfortunately, the institutional forces depicted pressuring defendants and witnesses are universal.

I do not want to spoil the viewing experience. I am, however, going to write about the most tragic figure in a documentary full of them. Stop reading now if you do not want a spoiler. Brendan Dassey was an 16 year old intellectually disabled high school student when he confessed to participating in sexually assaulting, murdering and incinerating the body of the 25 year old Teresa Halbach in the fall of 2005. Once you watch the confession, however, you know what Brendan told the investigators in March 2006 was not true. What you are left with instead is incredulity. Incredulity about how investigators, prosecutors, and the courts believed - and continue to believe - what Brendan "confessed" is true.

Brendan's telephone calls to his mother from jail, one in particular, are heartbreaking.

The documentary takes the viewer inside Brendan's interrogation. Making a Murderer makes the viewer watch extended portions of WHAT Brendan tells the two investigators. We see HOW he comes to incriminate himself. When I tell acquaintances that false confessions happen, even to the worst of crimes, a pall inevitably descends on their faces. "No one could EVER make me confess to something I did not do." is what they say. "Especially something like raping and murdering."

To them I will now say: "Go watch Episode 3 and 4 of Making a Murderer."

Wednesday, December 23, 2015

The 2015 Race for Death

The Death Penalty Information Center (DPIC) has made the press with the release of statistics for death penalty sentences in 2015. Seems there were just two in Texas. A third, from Bexar County, has not resulted in sentencing because of a competency decision to be made in January, 2016.

The news value in this information is the decline in executions and death sentences in Texas. The two Texas death sentences in 2016 pale in comparison to the forty eight handed down by Texas juries in 1999.

A good blog post ought to have a little different take, and mine is a darker one.

DPIC statistics were used at length in Justice Breyer's now famous dissent in Glossip v. Gross arguing the death penalty is arbitrary, amongst other reasons, because it is used only by certain states, and only by certain counties within those states.

Well, 2015 was a banner year for those counties most likely to use the death penalty in Texas, which, in turn, is the state most smitten with its use.

My home, Brazos County, was one of the two counties in Texas sentencing it's own to death,. We condemned Gabriel Hall to death back in early October. I blogged about it here.

I took some ambivalent, dark satisfaction when I read the other Texas county to condemn it's own was Smith County. Their citizen, James Calvert, was sentenced to die a couple of weeks after Hall.

The mantle of Death Penalty Capital, USA has not been, at least from what I read, normed on a per capita basis. In the linked blog post I came to the conclusion that, excepting for a statistical anomaly caused by the city of Amarillo (it sits on the Potter/Randall County line), Brazos County executed more of her citizens, 6.2 persons per 100,000, than any other county in Texas.

Second place (depending on how you count) in the county rouge gallery list I posted? Well, Smith County. Thus my ambivalence that the "only" two Texas death sentences in 2015 came from those same counties.

So, for you death penalty fantasy league geeks, here are the current statistics:

 COUNTY/STATE (County Seat)            2014 POP      EXECUTED     DEATHS PER100K/POP

1. Potter County, Texas  (Amarillo)          126,000            10                             7.9
2. Brazos County, Texas  (Bryan)          211,000           13                             6.2
3. Smith County, Texas (Tyler)              222,393            13                            5.85
4. Jefferson County, Texas (Beaumont)   257,872            15                            5.81


1. Potter County, Texas (Amarillo)              0
2. Brazos County, Texas (Bryan)             5
3. Smith County, Texas (Tyler)                 7
4. Jefferson County, Texas (Beaumont)      1

The Brazos County condemned include Christian Olsen, who had his death sentence reversed on direct appeal and is scheduled for a retrial on punishment only - death or life without possibility of parole in 2016. Another, John Thuesen has a state post conviction writ currently in front of the Texas Court of Criminal Appeals with trial court findings of ineffective assistance of counsel.

The race for death tightens. 2016 should be interesting.

Saturday, December 19, 2015

Federal Judge Walter Smith's Formal Reprimand

In a news story that has been greatly under-reported, Federal Judge Walter S. Smith was reprimanded by the 5th Circuit Court of Appeals last week. From a story by Tommy Witherspoon of the Waco Tribune:
The 5th U.S. Circuit Court of Appeals has formally reprimanded U.S. District Judge Walter S. Smith Jr. after finding he made “inappropriate and unwanted physical and non-physical sexual advances” toward a court employee in his chambers in 1998.
Sounds much like the kind of accusation that got former Federal Judge Sam Kent indicted, and, eventually, cost him his lifetime tenured bench. In Judge Walter's Smith's case, if the physical and non-physical advances were not bad enough, he lied to investigators.
'The Judicial Council also finds that Judge Smith allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation,' the order, signed by 5th Circuit Chief Judge Carl E. Stewart, says.
And the coup de grace:
The order of the Judicial Council also said that Smith 'does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.'
Yet this does not seem to justify an impeachment recommendation according to the 5th Circuit: : 
In spite of finding that Smith’s conduct 'was in contravention of existing standards of behavior for federal judges,' the Judicial Council of the New Orleans-based federal appellate court concluded that his actions do not warrant a recommendation of impeachment.
And the person who stepped up to challenge this judge?
Smith has been under investigation for at least a year by the 5th U.S. Circuit Court of Appeals after former Dallas attorney Ty Clevenger’s complaint that Smith made improper sexual advances toward a former courthouse employee in his chambers in 1998. His complaint included a sworn deposition from the woman detailing the alleged groping encounter and a certified letter she wrote the judge describing the adverse effects the incident had on her. 
Ty has been the object of much wringing of hands and gnashing of teeth. As a muckraker he has no equal. Ty has had his problems, but in this instance he has brought light to conduct worthy of condemnation. A Google search reveals a lack of media coverage of this newsworthy event. Neither The Bryan-College Station Eagle nor the local television station, KBTX, has reported the story, even though jurisdiction of the federal court Judge Walter Smith presides over extends south to Robertson County, well within their coverage area.

Thanks Ty.

Thursday, December 17, 2015

Medals of Honor For Frank and Billy (UPDATED X 2)

UPDATE (03/24/2016): Yesterday, March 23, 2016 the Texas Court of Criminal Appeals (CCA) issued another set of opinions regarding the subject of my original post on Frank Blazek and Billy Carter. The show cause order was dismissed, but that was a forgone conclusion. What was unexpected was Judge Elsa Alcala's concurring opinion which runs 8 pages. Justice Newell also issued a concurring statement, but Judge Alcaca's is the real diamond.

Judge Alcala begins by summarizing the history of the sanctions saga, beginning with the execution of Blazek and Carter's client, Raphael Holiday:
On the day of Holiday’s execution, the trial court halted the scheduled execution. The trial court had found [Frank and Billy’s] motion to withdraw the scheduled execution date meritorious, and the execution was called off. The State responded to the trial court’s order by filing a petition for a writ of mandamus in this Court late in the afternoon on that same day. Holiday’s counsel filed a detailed response to the State’s petition, arguing that there was no binding precedent from this Court that supported overturning the trial court’s order. Within twenty minutes of receiving counsel’s response, this Court’s majority order granted the State’s petition. Thus, all within the span of a single day, Holiday’s scheduled execution date was withdrawn by the trial court and then later reinstated by this Court.
That would be twenty minute consideration and the CCA threw Frank and Billy's response in the ash can. Remember, they were defending a trial judge decision compelling enough to stop an execution scheduled for that very day. It would be hard to get through the procedural history of a misdemeanor in twenty minutes.

Judge Alcala then turned to the CCA show cause hearing:
Several weeks after Holiday’s execution, this Court issued its show-cause order
requiring Holiday’s counsel to appear before this Court to more fully explain their reasons for the late filing. I again filed a dissenting statement, and the same judge who had dissented on the night of the execution filed a concurring statement.
Judge Alcala went on to explain why hauling these two fine lawyers before the highest criminal court Texas was wrong:
I explained that the mere ordering of a show-cause hearing at which counsel is compelled to appear to face questioning by this Court has the likely effect of chilling the behavior of other attorneys who might otherwise be willing to provide free representation for indigent capital-murder defendants facing imminent execution. Thus, the mere issuance of the show-cause order, and not the sanction alone, may result in a chilling effect on the defense bar.
 Judge Alcala's additional concern? The CCA is getting too deep in the (criminal defense) contempt hearing business.
Contempt hearings should be rarely conducted, and I suspect that most judges in Texas have never held one. Yet, in approximately the past year, this Court has held two of these hearings, both of them occurring as a result of late filings in death-penalty cases. Even if this Court eventually decides not to hold attorneys in contempt, as here, I am concerned that this Court’s practice of holding show-cause hearings under these circumstances may itself become a tool of submission against the criminal defense bar. A show-cause hearing and a decision to hold a lawyer in contempt should, at most, be a once or twice in a judge’s career type of event, but it seems to be becoming a once or twice a year type of event in this Court. This is concerning in that there are a dozen or so executions each year, and even one or two show-cause hearings are greatly disproportionate to the number of those cases.
The other contempt hearing to which Judge Alcala refers involved David Dow of the Texas Innocence Network. I wrote about that proceeding here. Frank and Billy's show cause resolved differently, but that was not Judge Alcala's point.

The money shot from her concurrence?  
As to my substantive conclusion in this case, my point is simply that, as the federal courts and other Texas courts clearly understand, a show-cause hearing should be a measure of last resort for those extreme cases of contemptuous behavior. Absent facts that would indicate that such extreme behavior had occurred in a case, this Court’s scarce resources are better spent resolving litigation that might result in the release of an innocent defendant or the final resolution of a victim’s case. (emphasis added).

UPDATE (01/13/2016): Following a show cause hearing this morning,  the CCA announced in open court that Frank and Billy had shown good cause, neither was in contempt nor any sanction issue. It was a very cordial, civil display by the court and the lawyers.

CORRECTION: The Show Cause hearing for Frank and Billy is Wednesday, January 13, 2016 in Austin at the CCA, not January 16, 2016 (a Saturday), as originally posted.

ORIGINAL POST: Raphael Holiday was executed by the State of Texas on November 18, 2015. This post is not a screed against the death penalty. Instead, it is meant as tribute to lawyers I know personally, Frank Blazek and William F. (Billy) Carter, and the ridiculousness of a Show Cause Order issued by the Texas Court of Criminal Appeals (CCA) on December 16, 2015 for their actions in trying to save Holiday's life.

The short version is that Holiday's federally appointed attorneys abandoned him as the execution date approached. Other, better writers, here, from Brandi Grissom at the Dallas Morning News and bloggers (here and here from Mark Bennett's Defending People; here from Scott H. Greenfield's Simple Justice) have detailed the history.

In the end, it is enough to quote from Judge Elsa Alcala's dissent from the Show Cause Order, which, in turn, quotes from the federal filing by Gretchen Sims Sween, who attempted (at Holiday's request) to get the do-nothing lawyers off the case:
[Counsel] aligned themselves against their client before the district court and
now align themselves against their client and join arms with the State while
suggesting that the only attorney authorized to undertake this appeal on Mr.
Holiday’s behalf is somehow a rogue interloper. This Kafkaesque scenario is
what breeds cynicism about the representational rights that Congress enacted
and the procedural safegards that the Supreme Court has developed
specifically for the capital context.
Into this breach stepped Blazek and Carter. They had represented Holiday at trial. Judge Hal Ridley judge of the trial court that had issued the death warrant, granted a motion to stay, and the Madison County District Attorney took a Mandamus appeal to the CCA. Balzek and Carter responded to the Mandamus filing without avail. The requested Mandamus relief was granted, the stay lifted by the CCA and Holiday was executed after a failed last ditch appeal to the Supreme Court of the United States (SCOTUS). This despite an impassioned dissenting statement by Justice Sonia Sotomayor, referenced at length in the Alcala dissent, and which can be read in the second of the links above to the Defending People blog.

All of Alcala's dissent in this case is a useful read. She takes the opportunity to flesh out why the CCA order granting the Mandamus request by the Madison County D.A. was erroneous. Having dealt with the CCA on a Mandamus request in the middle of Capital Murder trial, I cannot help but agree with her reasoning that the requirements for granting extraordinary relief were not present.

Alcala's dissent also quotes at length from her dissent in In re: Dow, involving a CCA Show Cause Order and sanctions against David Dow, the University of Houston Law Professor and head of the Texas Innocence Network. I blogged extensively about Dow and the CCA in a post entitled "David Dow's War."

Blazek's and Carters situation is not much like Dow's but reading that post and Judge Alcala's analysis of it in her dissent in this case fleshes out what I believe is really going on at the CCA.
The rule provides guidance for the legal community, litigants, and public about the expectations of the Court. I discussed its value in a previous case in which this Court sanctioned a pro bono attorney for zealous representation of a client condemned to death. In re Dow, 460 S.W.3d 151, 157 (Tex. Crim. App. 2015) (Alcala, J., dissenting). In In re Dow, I noted that the purpose of the rule was to ensure that a defendant had an opportunity to raise any issues pertinent to the propriety of his impending execution while ensuring that judges have an adequate amount of time in which to consider those pleadings. Id. I also expressed a willingness to sanction an attorney who was shown to 'habitually violate this rule or if he demonstrated a continuing unwillingness to abide by it.' Id. In Dow, this Court banned Dow from practicing before it for one year because he had violated this same rule, but I dissented because I thought that the sanction was disproportionate to his infraction and thus excessive. See id.
In my view this Show Cause Order is a manifestation of the view expressed by Justice Samuel Alito earlier in this year during oral arguments on the death penalty case Glossip v. Gross. At oral arguments, Justice Alito accused death penalty abolitionists of engaging in "guerrilla warfare." My personal view is the CCA is taking Justice Alito's view to heart and Frank and Billy are the targets.

If so, it is just plain wrong.

Contrast this view with the way Judge Alcala ends her dissent:
In the end, the procedures employed by this Court’s majority in deciding the State’s petition for mandamus relief and this Court’s majority’s substantive assessment of the petition were so ingrained with flaws as to make one wonder whether human beings, however educated or well intentioned, are capable of determining that an execution is warranted...Though one might argue that Blazek and Carter could have acted sooner than the morning of the execution, it may be equally reasonable to argue that they deserve a medal of honor for stepping in after Holiday had been abandoned by his attorneys and for pursuing a claim that would likely result in habeas relief...I conclude that this Court should use its discretion to decline to issue this show-cause order and, further, to refuse to sanction Blazek and Carter. With these comments, I respectfully dissent from this Court’s majority order. (emphasis added).
Frank Blazek and Billy Carter DO deserve Medals of Honor, not an Order to Show Cause why they ought not be sanctioned by the CCA.

The hearing is Wednesday, January 13, 2016 at 9:00 A.M. I will be at the CCA that morning to support these two fine attorneys.

I hope you will be too.

Thursday, November 12, 2015

I Apologize, John Henry

In early 1983 I was a 23 years old law school student. My brother, Lee, who was then a sophomore at Sam Houston State University called in January of that year saying he had scored an interview with John Henry Faulk for a political science research paper he was writing.

He asked if I wanted to come along for the interview. Of course I said yes.

Many reading this may not recognize the name John Henry Faulk, but in the mid to late 20th century, he was a sort of legend, particularly among liberals of a certain age and stripe. Hard as it may be to imagine, think along the lines of a southern, liberal, Bill O'Rielly.

I had been negatively editorializing to my brother about Faulk for years. Faulk bothered my conservative, younger self because he would seem to materialize out of thin air on network television. It always seemed to be CBS. When they needed sardonic comment on conservative economic or social policy, Faulk seemed always there to oblige.

Faulk had been blacklisted from, ironically, CBS, in the 1950s, later writing a book about the experience, and his lawsuit for being libeled, titled appropriately, Fear on Trial. The book had been a bestseller in the 1960s, but I thought it strange that someone appearing as a regular on the 1970s parody-of-itself television show Hew Haw would be giving serious commentary to policy matters, especially anything Ronald Reagan. Most of all, I disliked his one foot on a stool, kick back, folksy delivery.

Faulk had decided in early 1983, almost out of nowhere, to run for Congress against Phil Gramm. Gramm, who had run and had been elected to Congress as a Democrat, had been repudiated by the party for his conservative voting record. He resigned his 6th Congressional seat, which before it was gerrymandered out, included Bryan/College Station, to run as a Republican in a special election. .

I was all about Phil Gramm in those days. I admired his free market approach to just about everything. From my myopic white, upper middle class point of view racial and social problems were better dealt with by markets than through government intervention and regulation. Gramm fed into my then world view. I loved that Gramm had a Ph.D. in Economics, yet spoke in a Georgia drawl. At the time I thought he could, and should, someday be President.

Well, John Henry, I was wrong. Real wrong. About Phil Gramm, about you, about most everything.

My brother called Gramm, and been told by some minion's minion that Gramm could not see him, but to my bother's surprise, Faulk said yes. Hence the call to me. I cut class and drove to Bryan for the interview. Ironic that I now have practiced law there for almost 30 years.

My brother took out a bulky tape recorder, pushed record, and we started. We peppered Faulk with  supply side economic questions he deftly parried.  I asked him about Joseph McCarthy (he hated him) and at length whether as a matter of policy he thought the Great Society programs of Lyndon Johnson a failure (he did not).

I would give almost anything for my brother to have kept that cassette.

Faulk thought Gramm an opportunist. Through the haze of time, I think Faulk ran because he knew Gramm would never had resigned and a special election called unless Gramm knew he would most certainly win. I think he knew Gramm had sights much higher than the 6th Congressional. I believe Faulk knew even without his entry in the race the two other Democrats on the ballot, Chet Edwards and Dan Kubiak, would split the Democratic vote. Faulk ran because he wanted to call Gramm out in a way he knew neither Kubiak or Edwards could.

John Henry Faulk was a well educated man. A protege of J. Frank Dobie, a friend of Edward R. Murrow and Louis Nizer. A man who knew the evils of the Jim Crow segregation laws and spoke up against it at a time when there was real danger in doing so. A man who stood up to a world class bully like Roy Cohn when, again, there was real danger, and won. I think back and wonder how he must have felt with the boy I was asking him about things of which he knew so much and about which I knew so little.

John Henry Faulk's New York Times obituary is here. Although it contains much of the information linked above, the respect The Gray Lady shows him is palpable.

After about an hour, we finished and I drove back to Houston convinced I knew it all.

Well, I guess some things do not change.

Sunday, November 8, 2015

30 Years a Lawyer

Today, I have been a licensed attorney in Texas for 30 years. It is hard to get my arms around the fact I have been a lawyer more than half my life.

It has been an unusual journey. Although there are many criminal defense lawyers who never prosecuted - as is the case with me -  it has been a much more circuitous route to the place I now occupy than for most.

When I was licensed on November 8, 1985, Ronald Reagan was President of the United States. Except for those 3 years at the beginning of my licensure, the only President not named either Clinton or Bush currently occupies that office. I am not sure I how I feel about the possibility when I am 40 years a lawyer, the very same statement could be true.

On that date, Warren Burger was Chief Justice of the United States Supreme Court and Justices William Brennan and Thurgood Marshall, all now long passed, were still on the Court. Justice Brennan had been nominated by President Dwight Eisenhower. Writing that sentence makes me feel especially old.

I have lately resolved to refrain from war stories, but there are many because of the different areas of law I practiced before finding a home in criminal defense. Real estate home mortgages, sitting through hundreds of depositions with refinery workers in asbestosis civil litigation, and working for a law firm closing failing Saving and Loan Associations, just to name a few.

All those things before I took on my first criminal client.

In 30 years I have tried civil cases to juries involving disputes as different as who owned a horse to responsibility and damages in multi-party death cases. I have picked juries in places as different as Houston, Texas and Houston County, Texas.

As a criminal defense lawyer, the entire spectrum have been tried to juries - Public Intoxication to Capital Murder - Death.

I have regrets and triumphs. In short, it has been quite an adventure.

Many people have left their imprint in these 30 years. Clients, lawyers, and people who for ill or for good inspired me to try and be a better lawyer.

Thanks to all.

Sunday, November 1, 2015

The End Of The Peremptory Strike?

Oral arguments are tomorrow in Foster v. Chatman, a case involving legal issues of race and the use of peremptory challenges (or "strikes"). When the Supreme Court of the United States (SCOTUS) originally agreed to take the case I was excited. As I have read the briefing on the case, I have now come to the conclusion Foster encapsulates most of racial shortcomings of the American criminal justice system.

Let us start with the race based jury selection basics. In 1986 SCOTUS decided a case, Batson v. Kentucky standing for the proposition that the Federal Constitution (14th Amendment Equal Protection Clause) forbids states from using strikes based on race in criminal jury selection. Batson started a process known a "Batson challenge" when a defendant contends a juror was struck because of race. It is a 3 step process which ends, essentially, with the State having to provide the trial judge a "race neutral" reason for the strike.

This process has led to all sorts of problems in process. They seem to all be present in Foster. Again, knowing relevant facts about the specific case give proper context: The victim was Queen Madge White, a 79-year-old widow and retired elementary school teacher. There is no real dispute she was brutally killed by Foster. Queen Madge White, the victim, was white, Timothy Tyrone Foster, who took her life, African American.

At his Georgia capital murder trial in 1986 - yes this case is 30 years old -  the State used 4 of it's 9 peremptory strikes to eliminate all the African Americans on the jury panel. The jury that was ultimately selected was all white and sentenced Foster to death.

A quarter century later the prosecution notes, unavailable at trial to the defense, revealed African Americans were designated B1-B3, and highlighted in green, There were also notes prioritizing the African Americans on the jury panel in the event the State was forced into having to accept one on the jury. There is more, but you all get the drift.

When called upon at the original trial to give race neutral reasons for the strikes, the State prosecutors gave sufficient reasons for the trial judge to deny the defense Batson challenge. The information above related to the highlighting, designation of African American jury panel members and the priority list only came after a public records request.

In the briefing at SCOTUS, the State has used essentially the same arguments that the Supreme Court of Georgia found persuasive in denying Foster a new trial: The Batson decision itself was only months old when Foster's original trial began, and the State was preparing for what it knew would be a challenge to exclusion of any African Americans from the jury. Their designation of African American jurors was a precautionary measure to ensure they had them identified in light of the challenges they knew would be made by the defense.

Dahlia Lithwick's Slate podcast Amicus has an excellent discussion about the case, featuring Stephen Bright who will argue the case for Foster and Glenn Ivey who, along with a group of former prosecutors, including the author of the acclaimed novel "Presumed Innocent," Scott Turow, filed an amicus brief supporting Foster. The following sentence contained in their Amicus Brief was emphasized in the podcast:
Failing to find purposeful discrimination under these extreme circumstances would strip Batson of its meaning. 
I don't know. After listening, particularly to Ivey, a system like ours will inherently encourage discrimination. In fact, but for the newness of Batson at the time of Foster's original jury selection, it could be jadedly and cynically argued the biggest mistake the Georgia prosecutors made was leaving a paper trial.

After listening to the podcast, and reading the briefing in Foster, I went back and read Justice Thurgood Marshall's concurrence in Batson. It turns out his skepticism of the Batson challenge process (Marshall was the only member of SCOTUS at that time to be a former trial lawyer) was prescient:
The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.
Twenty years later, in 2005, still sitting Justice Stephen Breyer echoed Justice Marshall's skepticism in Miller El v. Dretke:
In [Batson], the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court’s rule would not achieve its goal. The only way to 'end the racial discrimination that peremptories inject into the jury-selection process,' he concluded, was to 'eliminat[e] peremptory challenges entirely.' Today’s case reinforces Justice Marshall’s concerns. (citations omitted).
Lithwick's Amicus podcast listed the many ways prosecutors and defense lawyers haver resisted ending the use of peremptory strikes. I have long counted myself among those so resisting. The podcast also pointed out how trial level judges who deal with prosecutors every day in their courts are reluctant to make the findings required by Batson that not only did those prosecutors engage in purposeful racial discrimination, but then tried to cover it up with a fabricated race neutral reason.

I have made many Batson challenges. A few have been granted, many more denied. It was plain in each the judge was anguished about having to make the finding.

For those who do not really care how the death penalty decision was reached, consider this: It is not just about Timothy Tyrone Foster. Instead, it is about every African American, Hispanic, Jewish and other civic minded ethnic jury panel member who shows up for for jury service and then is denied that right for no other reason than their ethnicity. That is why the best remedy for a Batson violation is not mistrial - it is to replace the last juror selected with the minority panel member improperly struck.

I understand that eliminating peremptory strikes would bring about their own practice and process problems. instead of strikes the battleground would move to disenfranchisement of minority jurors and disqualification of jury eligibility based on criminal record. I have, however, come around to thinking Justices Marshall and Breyer may be right.

I will be listening closely tomorrow.

Monday, October 26, 2015


I began reading Laura Hillendrand's bestseller, Unbroken, at the end of last year. I put the book down after finishing Part VI, which concludes the events of World War II. I just got around to finishing the book this weekend.

Spoiler alert. Stop here if you have not read the book, but intend to.

Unbroken is It is the story of Louis (Louie) Zamperini, a 1936 Berlin Olympic distance runner, who became the bombardier on a B-24 Liberator in the Pacific during World War II. After flying some incredibly dangerous combat missions, Zamperini and crew crashed landed in the Pacific. All but three on the plane perished in the crash. One of the three survivors later died while they floated on a life raft in the open waters of the Pacific.

Zamperini and the plane's pilot, the remaining survivor, were eventually picked up after 46 days at sea by the Japanese Navy. Zamperini thereafter suffered unimaginable torture during the remainder of the war while in various Japanese POW camps. In particular Zamperini suffered at the hands of a Japanese Sergeant nicknamed "the Bird."

After the war, suffering from what we now call PTSD,  Zamperini slid into alcoholism. He became fixated on returning Japan, finding and killing the Bird. This sets up the last section of the book.

As I read a passage from this last part of Hillendrand's book, it struck me she communicated better than anything I could compose about the self-defeating nature of revenge as a goal, and in particular, as a goal of the criminal justice system:
The paradox of vengefulness is that it makes men dependent upon those who have harmed them, believing that their release from pain will come only when they make their tormentors suffer. In seeking the Bird's death to free himself, Louie had chained himself, once again, to this tyrant. During the war, the Bird had been unwilling to let go of Louie; after the war, Louie was unable to let go of the Bird.
I have not suffered like the victims of crime - and the loved ones of those victims. It is impossible for me, therefore, to know the pain they endure, minute after minute, day after day, year after year. I have tried to put myself in their shoes, but it is impossible to so do. What I can say is when Hillenbrand writes how revenge chains victims to their past and their tormentors, it remains as true today as it did for Zamperini.

Louis Zamperini made peace with himself with the help of God and the teaching of Billy Graham. After reading of his physical, emotional and spiritual journey, I can only hope victims can find some measure of the same peace.

Sunday, October 25, 2015


I first saw the school around 1972. The early 1970's was a time of transition for the area, a time in retrospect, that changed it from what it was to, well, what it later became. The area was given the soaring name "Independence Gardens" originally, and the legal descriptions of the platted property still identify the area under that name. It later became known as "Carverdale" after George Washington Carver, and the school bearing his name was the first and only colored school in the Cypress-Fairbanks (Cy-Fair) Independent School District.

When I first laid eyes on the school in 1972 it had been closed for about 3 years. There was overgrown shrubbery and a general unkempt appearance to the place. I got my glimpse because my father purchased 2 acres of land adjacent to the school. I remember thinking to myself that we must be the only white landowners in the area, sort of modern day carpetbaggers. This was, as it turned out, not terribly far from the truth. We were part of the beginning of an end when we bought land my father said was an investment.

I attended a suburban all white junior high school when I first glimpsed the school. I naively had no idea why it was empty, so I asked my father. "It's the old colored school for Cy-Fair" was his straightforward reply. Although aware of the changing world around me, the sight of an abandoned school building, in appearance like the bustling school I attended, was a jarring visual that stayed with me. It was like putting eyes on someone of historical importance. You know beforehand they are significant, but seeing and talking to them makes it resonate.

The school was located on Clara Road, named after Clara Scott, the first teacher at the old colored school, which was originally named the Fairbanks Colored School. The name was changed in the 1950's to mirror the then thriving African American community surrounding it. By 1972, things were changing, with Houston encroaching and younger African Americans moving away.

My father promptly dozed under a dilapidated, abandoned pier and beam home there. The widowed old man across the street, living in his own lopsided shotgun house and being of a certain age and disposition, was not shy about registering his disapproval. His chickens squawked and bellowed at the dozer right along with him. By the time the old man died two decades later, the place next door to him had become a industrial oil and gas company. It turned out the old man had not owned the property, but had squatted there. So be it. The oil and gas operation bought the property, leveling the shotgun house and the chicken coop beside it.

Carverdale was (I guess still is) bounded roughly by Clay Road to the south, Hempstead Road to the north, Campbell Road to the east and Brittmore Road to the west. The Sam Houston Parkway now dissects what is left of the community. In the 1950's and 60's it was home for many people providing domestic help to white families living in nearby Spring Branch, then on the outskirts of Houston. Spring Branch was originally settled by German immigrants who had, in typical staid German fashion, named their streets after themselves: Neuens, Maux, Peer and my favorite, a street with a first and last name, Conrad Sauer.

Carverdale, on the other hand, had exotic street names: Algiers, Bamboo, and Morocco.

These are the things my 12 year old self noticed.

The old colored school was later leased by Cy-Fair ISD to Houston Community College (HCC) as a campus. My sister, brother and I all took classes there. It gave us a sense of satisfaction to know the history of the structure where we were taking college credit courses. HCC stopped using the campus in the late 1990s.

Eventually Cy-Fair ISD sold the land which the once proud Carverdale Cobras called home. It is now a industrial park. Seems a shame. Like much of the segregated past we would just as soon not talk much about, the school and community has for the most part passed into history.

Not long after the sale of the school property, and some 40 years after buying the 2 acres beside it, my family sold our investment property. Before, it had once been a home next to a school, with a man and his wife squatting on land with a chicken coop across the street. By the time it sold, the property had become something much colder and indifferent: Commercial property adjacent to a industrial park.

Saturday, October 24, 2015

Conspiring to Party in Texas (Part II of II)

UPDATE (01/12/2016): Hurst v. Florida, discussed in the original post was decided on 1/12/2016. In a 8-1 decision (Justice Alito, dissenting) SCOTUS reversed finding a Ring v. Arizona violation. The case was remanded to Florida state court for harm analysis. The jury unanimity issue the subject of my original post was not part of the opinion. Lyle Dennison at wrote the following on the unanimity issue:
In taking the case to the Supreme Court, Hurst’s lawyers had also made a challenge to the lack of unanimity in the jury’s recommendation.  The Court’s decision did not deal with that issue at all. Presumably, when the case returns to Florida courts, his lawyers will make the argument that the split verdict on that recommendation supports the argument that the flawed procedure was not harmless.
In other words, SCOTUS may be asked to revisit the case again.

ORIGINAL POST:  If I asked my neighbor, "Do criminal juries have to be unanimous for a criminal conviction in Texas?" he would likely tell me, "Of course!" He would be right, but not to the extent and reasons he believes. According to our Court of Criminal Appeals, the Texas Constitution requires unanimity for a criminal conviction. In reality it is problematic in a number of situations.

Contrary to what my neighbor may think, there is no Federal 6th (and 14th) amendment right to unanimous jury verdict in a state criminal prosecution. The Supreme Court of the United States (SCOTUS) case standing for this legal proposition, decided in 1972, was split on the principles involved. The decision has been criticized for many years both inside and outside SCOTUS. However, despite several opportunities to revisit the issue, SCOTUS has declined to so do.

The bee in my legal bonnet on lack of jury unanimity in Texas is party criminal liability. This was the focus of my first post on the topic last week. In Texas, a trial court may submit three separate theories to a jury of how a defendant committed a single criminal act: As a principal, a party, or as a party conspirator. The jury can splinter on which applies. They can further splinter if they think the defendant was a party, but disagree on HOW the defendant was a party, so long as all 12 get to the same place: Guilty beyond a reasonable doubt on the criminal act.

This term could bring change - or at least set the stage for change - in party liability submissions to Texas juries. It may still be a few years away, but criminal defense lawyers should consider preserving error in these kinds of jury submission based on 6th and 14th Amendment grounds while keeping an eye on SCOTUS.

Hurst v. Florida involves the Florida death penalty scheme. In their scheme, Florida juries play an advisory role at the punishment stage. Flordia has a number of specific aggravating and mitigating factors the jury is told to consider. Their verdict recommending death does not require them to specify the aggravating factors applying, but allows a simple majority (7-5) to recommend death. The scheme, however, does require the split, if any, be disclosed if death is their recommendation.

This is what happened in Hurst. The jury gave the judge a 7-5 general verdict recommendation of death. After separate hearing, the Judge made specific aggravating findings in sentencing Hurst to death. SCOTUS has 2 issues before it: One is whether the jury advisory role violates the 8th (and 14th) Amendment, the second is whether allowing the jury to recommend death by simple majority, while not knowing if their aggravating factors are different than what the judge later relies on to make the death decision violates the 6th (and 14th) Amendment.

It is the later issue that piqued my small Texas town, down in the trenches, trial court interest.

Here is an exert of oral arguments in that case (audio is here). Allen Windsor is the Florida Solicitor General defending the Florida scheme. Appearing at pages 43-44 of the transcript:
JUSTICE SOTOMAYOR: I want to clarify. You think a seven to five recommendation is finding an element of the crime that makes death penalty by a unanimous or functionally equivalent unanimous jury? 
MR. WINSOR: We do, Your Honor.... 
JUSTICE SOTOMAYOR: What do you do with the statement in our case law that says a simple majority is not a unanimous jury? 
MR. WINSOR: Well, we don't say that unanimous jury. Let me step back and say that the seven­ to- ­five vote, by the way, is not necessarily five votes that there was no aggravating circumstance, because, again, there's two things ­­that go on in the jury room. One, they decide whether there were aggravating circumstances. And, two, they do...
                                                                 *    *    *    *
JUSTICE SOTOMAYOR: They [the jury] don't agree with which one [aggravating factor]?
MR. WINSOR: And they don't agree

JUSTICE SOTOMAYOR: We don't know. What does the seven to five tell us the jury found?
MR. WINSOR: The seven to five tells us that at a minimum, a majority of the jury at a minimum, found beyond a reasonable doubt that the State had proven the existence of one or more aggravating circumstances. And getting back to..
JUSTICE SOTOMAYOR: Not the same one?
MR. WINSOR: Not the same one.
Conventional wisdom has SCOTUS finding the Florida scheme is a 8th and 14th amendment violation based on Ring v. Arizona. However, Justices Sotomayor and Ginsburg's questions at oral arguments signal to me that part of the Court may concur in the result based on lack of unanimity on the elements of aggravation. It is important to note though a Court conservative, Justice Alito has never been a fan of the SCOTUS decision on jury unanimity. I could, of course, be wrong but keep an eye out for this decision.

How can this play out for Texas? Let me set it up with a hypothetical:

Two defendants (D1 and D2) engage in the robbery of a drug dealer, commonly called a "drug rip." During the drug rip, the dealer, foreseeably, brings a weapon out and is shot and killed. There is a dispute about whether D1 or D2 is the triggerman. There is also a dispute about which defendant brought the weapon to the drug rip. D1 and D2 are charged with Capital Murder, but the death penalty is waived.

At the close of evidence, at the state requests the trial judge submit to the jury theories that would result in conviction for Capital Murder based on principal (pulled the trigger), party (aided and assisted in commission of Capital Murder) or party conspiracy liability (conspired to commit robbery, and anticipated the capital murder would occur).

If convicted, D1 and D2 automatically are sentenced to life without possibility of parole (LWOP).

See the problem the SCOTUS decision in Hurst may visit upon Texas? A Texas jury returns a general verdict - just like in Florida's jury death recommendation. Like Florida, this results in not knowing how the jury split on the submitted theories. This a constitutional problem because there is no way of assuring there was, at a minimum, the "functional equivalent" of unanimity on any combination of theories resulting in conviction for the single criminal act.

Just as significant is the automatic sentence of LWOP in a Capital Murder prosecution based on a simple majority vote. In virtually every other criminal prosecution, the defendant gets the benefit of a separate sentencing hearing decision by either a jury OR judge (the defendant in Texas decides which). Not in a Capital Murder prosecution where the state has made the decision to waive the death penalty. No hearing, no separate decision on punishment. Potentially, an automatic LWOP on a simple majority vote.

Conceptually party liability is justified under reasoning a defendant who is a party to a crime is just as criminally responsible as a principal. Any reduced culpability of a party is, and should be, taken in account in punishment. This is true in virtually every criminal prosecution in Texas except Capital Murder, if the state waives death.

More fundamentally - in all criminal prosecutions - lack of unanimity diminishes the collective obligation of a criminal jury to deliberate. It becomes more of a consensus building exercise among those jurors seeking to persuade others to convict.

Hurst may signal a change, or at least the beginning of change.

Saturday, October 17, 2015

We Conspire To Party in Texas (Part I of II)

Follow me down this Texas criminal law rabbit hole for a bit.

Ready? Let's go.....

There are two boys - one an 18 years old high school junior, the other a 19 year acquittance. The 18 year old decides to go to the Big Box store to act as a lookout while his older friend shoplifts. After stealing gaming equipment valued at a little over $100, both are confronted by an inventory control clerk (clerk) after they walk past the cashier and out the front door. When confronted, the younger boy yells, "RUN. RUN!" and the older boy obliges.

While fleeing the older boy knocks down a 66 year old Big Box greeter (Greeter) attempting to step in front of the boy and stop him. The Greeter suffers a scrape or two as a result of the collision, but nothing (thank goodness) major.

What can the 18 year old lookout be charged with in Texas?

You say Theft? Sure, but that is the obvious crime. What else? Robbery? Yes, potentially. Anything else? Aggravated Robbery - a first degree felony in Texas?


First, here are the Robbery statutes in the Texas Penal Code.
Sec. 29.01.  DEFINITIONS.  In this chapter:
(1)  "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.
(2)  "Property" means:
(A)  tangible or intangible personal property including anything severed from land;  or
(B)  a document, including money, that represents or embodies anything of value
Sec. 29.02.  ROBBERY.  (a)  A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1)  intentionally, knowingly, or recklessly causes bodily injury to another;  or
(2)  intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b)  An offense under this section is a felony of the second degree.
Sec. 29.03.  AGGRAVATED ROBBERY.  (a)  A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1)  causes serious bodily injury to another;
(2)  uses or exhibits a deadly weapon;  or
(3)  causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A)  65 years of age or older;  or
(B)  a disabled person.
(b)  An offense under this section is a felony of the first degree.
How does this 18 year old lookout travel the statutes of the Texas Penal Code from a theft  to an Aggravated First Degree Felony punishable by up to life in prison?

 By use of party criminal liability.

Here are the two provisions in the Texas  Penal Code used most widely by prosecutors to establish party criminal liability. They do it all the time. Here are the magic provisions:

Sec. 7.02.  CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.  (a)  A person is criminally responsible for an offense committed by the conduct of another if:
                                             *     *     *     *     *
(2)  acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense;  or
                                             *     *     *     *     *
(b)  If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Here's how it would work with our erstwhile 18 year old lookout:

The 18 year old knew he was going in to the Big Box to commit a crime. He participated in making that crime happen. He then encouraged his confederate, the 19 year old, to run after being caught with the ill gotten gain. The older boy caused "bodily injury" (defined in Texas with the very low threshold of "[P]hysical pain, illness, or any impairment of physical condition.") to the Greeter as a result. Now the crime is Robbery, a second degree felony, distinct from the original theft. And because the Greeter is older than 65 years, the crime is aggravated to a first degree felony, Aggravated Robbery.

There is more. 

Let's change it up now and add a large dose of tragedy: After knocking the Greeter down, a Good Samaritan gives chase to the 19 year old. When the older boy reaches the car driven to the store, he secures a weapon laying on the front seat and shoots the Good Samaritan, killing him.

What now potentially for the 18 year old lookout?

If you guess Capital Murder, you are correct. It is one several criminal options on the table for a prosecutor. The older boy intentionally shot and killed the Good Samaritan. That is murder. It happened during the course of a robbery (the underlying crime does not have to be aggravated robbery-think about that a bit) which adds the aggravating factor to the murder necessary for the Texas Capital Murder scheme to apply.

Well you say, the 18 year old lookout did not act with the intent to promote or assist the commission of the Murder committed by the older boy. The younger boy is guilty of some crime, as he intended to thieve from the Big Box. He DID aid and encourage the older boy to run to avoid being caught, BUT the lookout did not intend the Good Samaritan to be shot and killed.

This is where the second conspiracy party liability provision (7.02(b) above) lends a hand to elevate the criminal liability of the 18 year old lookout. It does not matter that the younger boy did not intend the Good Samaritan be shot and killed. It is enough if the Capital Murder occurred during and in furtherance of the attempt to commit another felony (the so called "plus" crime - Robbery) and the murder should have been anticipated as a result of carrying out the conspiracy to commit the Robbery.

In the hypothetical, the gun was in the front seat. This evidences the 18 year old lookout knew it was there on the ride to the store. He knew they were going to thieve. Whether he could or did anticipate the gun would be used (they DID leave it in the car) may be a bone of contention, but you get the drift. The 18 year old could potentially be charged with Capital Murder under principles of conspiracy party liability and face, at a minimum, life without possibility of parole (LWOP) if indicted, tried and convicted.

There is yet still more.

Lets take it up another notch. What about the death penalty?

Under Texas law a non-triggerman (sorry for the gender distinction) is still eligible for the death penalty. If found guilty of Capital Murder under the principles outlined above the same jury is submitted the following question at punishment, along with others related to future dangerousness and the presence of mitigating factors against death.
                                 *    *    *    *
Sec. 2
                                  *    *   *    *
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
                                   *    *   *   * 
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. (emphasis added).
This means in the 18 year old lookout may potentially be sentenced to death though he did not cause or even intend the Good Samaritan be killed. It is enough that there be legally sufficient evidence that a jury could find beyond a reasonable doubt the 18 year old lookout anticipated the Good Samaritan's life (or any human life) would be taken.

This language is consistent with what the Supreme Court of the United States (SCOTUS) requires before a non-triggerman can be sentenced to death.

But hey, at least the jury's decision on this question and the other two questions required to be answered by Texas juries must be answered unanimously for death.


Texas allows non-unanimous criminal verdicts in certain applicable criminal cases, including Capital Murder. Yep. Juries are always told in the applicable factual situation they do not have to agree if the defendant acted as a principal (pulled the trigger) a party (aided, encouraged or assisted in the Capital Murder), or as acted as a party co-conspirator (should have anticipated a murder could occur as a result of the Theft turned Robbery conspiracy).

The jury is told they have only to agree only that one of those three theories of criminal liability applies to convict for Capital Murder. For example, 4 jurors could believe beyond a reasonable doubt a defendant is a principal, 4 other jurors believe the defendant acted as a party, and the remaining 4 jurors believe the defendant a party conspirator. If the jury so splits, they are told, the verdict they must return is Guilty. The punishment will automatically be LWOP if the death penalty is waived.

Only in the death decision is the jury told they must be unanimous that the non-triggerman must have anticipated a human life would be taken.

I understand many say they have no problem with any of this. Even if my hypothetical 18 year old thought he was doing nothing more than helping his older buddy score some free X-Box games, these folks believe the consequences to him are legally defensible, even justified because of what happened. To those of you, I say I get it, but wonder if the 18 year old was your neighbor's son, your nephew, or God forbid your own impulsive 18 year old high school junior, whether your perspective would change.

Never happen, you say? Are you so very sure?

SCOTUS has never held that jury unanimity is required by the Federal Constitution as it applies to state prosecutions. According to our Court of Criminal Appeals, however, both the Texas Constitution and Texas Code of Criminal Procedure guarantee jury unanimity, but only as to the offense charged. Whether the defendant is a principal or some variant of party to the offense matters not for unanimity purposes so long as there is unanimity the defendant committed the offense. The result of their decisions on jury unanimity on both the principal/party issue as well as to the way the offense is alleged but later proven at trial has made for some complex and technical legal applications over the years.

One result of this? In 25 years of active state criminal practice I do not think I have ever seen a defendant charged under the Texas Conspiracy statute, Section 15.02 of the Texas Penal Code. The reason? Why would any prosecutor charge a defendant with conspiracy to commit an offense with a maximum punishment of one grade level below the completed offense when they can allege the same elements of conspiracy and prosecute as a party to the completed offense with a higher punishment range? It renders a stand alone conspiracy charge, a staple of federal criminal prosecutions, irrelevant in Texas state prosecutions.

 My next post will be about SCOTUS decisions on jury unanimity, and how this area of Texas law may be ripe for attack under federal constitutional principles in the coming years. I will also write about some persuasive theories on how both party conspiracy as used in Texas and the lack of unanimity have contributed to our mass incarceration problem. 

Saturday, October 10, 2015

Charles Whitman's Horror - Redux

Charles Whitman came into my life in 1976. I was introduced to him by Kinky Friedman courtesy of a girl I was crushing on at the time.
He was sitting up there for more than an hour
Way up there on the Texas Tower
Shooting from the twenty-seventh floor, yahoo
Kinky's little ditty seemed darkly funny. After all, Kinky himself had lived through the horror Whitman unleashed on August 1, 1966 on the Forty Acres of the University of Texas from it's Tower.
Got up that morning calm and cool
He picked up his guns and walked to school
All the while he smiled so sweetly
And it blew their minds completely
Theyd never seen an Eagle Scout so cruel
Kinky's lyrics remain dark, but now less funny. The older version of my teenaged self has discovered Whitman's horror was a beginning, not an end. He was a homicidal trailblazer, not a homicidal anomaly,
The students looked up from their classes
Had to stop and rub their glasses
Whod believe he'd once been a Marine
Charles Whitman and I have reacquainted ourselves through the decades. In popular culture he is a hipper Lee Harvey Oswald. A Marine whose shooting prowess was used to motivate by Gunnery Sgt. Hartman in Stanley Kubrick's Full Metal Jacket.
Some were dying, some were weeping
Some were studying, some were sleeping
Some were shouting, Texas number one
Some were running, some were falling
Some were screaming, some were bawling
Some thought the revolution had begun
Whitman's second victim was his wife (his first was his mother), a good woman from Needville, Texas. His first kill from the Tower was a pregnant 18 year old. Next, her fiancee. The revolution had begun, not just the one Kinky meant.
There was a rumor about a tumor
Nestled at the base of his brain
He was sitting up there with his .36 Magnum
Laughing wildly as he bagged em
John Connolly, badly wounded less than 3 years before in Dallas during Oswald's reign of terror, convened his own commission to try and discover what brought Charles Whitman to The Tower. At autopsy they found a tumor, just like Kinky said.
Who are we to say the boys in?
Who are we to say the boys in?
Who are we to say the boys insane?
As I read of another shooting on the Texas Southern University campus yesterday, I thought of Charles Whitman yet again. My son is now 18 years of age. The same age as Whitman's first target from the Tower porch. He is a college freshman. Texas will permit open carry on Texas college campuses - effective on the 50th anniversary of Whitman's carnage - August 1, 2016.

Your shots are still finding their mark, Charlie.


Lyrics by Kinky Friedman - The Ballad Of Charles Whitman (Album, Sold American, Vanguard Records (c) 1973)

Full Metal Jacket (c) 1987, Stanley Kubrick

Friday, October 9, 2015

Death Penalty Defense Costs - The Real Culprit

The Bryan College Station Eagle ran a story this morning (10/09/2015) about the costs of getting Gabriel Hall to a death penalty verdict. The story lede:
The Brazos County District Attorney’s Office will spend less than $80,000 on Gabriel Paul Hall’s capital murder trial, a spokesperson said, with Hall’s defense costing more than 10 times more.
The story is accurate but does not really tell the whole story. The take away is the Brazos County District Attorney's office kept their cost reasonable, while the defense went on a budget busting spending spree.

So let us talk about the Hall defense cost. It is the Brazos District Attorney's office which is ultimately responsible for the decisions that required the taxpayer money spent to defend Hall. It is also responsible for the cost of every defendant for which they decide to seek death. They know well the money it takes to defend a death case here in the Death Penalty Capital USA.

In my post A Dispatch from Death Penalty Capital USA, I gave the two questions Texas juries are required to answer in the punishment phase of a death penalty case. It is question 2 that is the focus of virtually all death penalty trials:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.
This is referred to as "The Mitigation Question." It is very broad, is it not?

The Mitigation Question is the reason for the incredibly escalating costs of death penalty trials. It is the question the Texas legislature and Governor has given us for death penalty juries to answer.

The Mitigation Question requires what is called "womb to tomb" investigation. The question and the instructions given to juries (again courtesy of the lege and govn'r) tell them they can consider any single circumstance or circumstances as mitigating against the imposition of death. WHAMOO. A money bleed of biblical proportions ensues because the defense team scours the defendant's past - from womb to tomb - trying to find any kind of mitigation evidence, however small, that might resonate years later with a jury.

The American Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (ABA Guidelines) have very stringent requirements for lawyers defending death penalty cases. Gone are the days when some civil lawyer with no trial experience is appointed to defend a death case.

The ABA Guidelines provide the standard of care for all death penalty defense attorneys. Lawyers not following the Guidelines will have a finding of ineffective assistance of counsel made against them at some point years after verdict. As it should be.

This is another reason Halls' defense cost so much money. Not only were they required to do "womb to tomb" investigation, they have to anticipate "emerging trends" in the law under the ABA Guideline requirements. Remember their homework as it relates to their trial representation of Hall is being graded until the verdict of death is carried out.

Diagnostic testing, forensic psychologists, Intellectual Disability testing. School records, medical records, traveling with the defense "team", at least two lawyers, an investigator and so on to interview people who may be able to supply that single, elusive mitigating fact. In Halls' case that meant traveling to the Philippines. Twice.

The Brazos County District Attorney's office knew when it sought the death penalty for Gabriel Hall the price tag was going to be hundreds upon hundreds of thousands of dollars. So to imply, as The Eagle story running today does, that the Brazos County DA's office was fiscally responsible while the Hall defense bled Brazos County taxpayer red ink all over the world does not tell the complete story. It is, in my view, a little disingenuous.

Christian Olsen, whose death penalty verdict was reversed on appeal, is the next person in the Brazos County D.A.'s office death penalty crosshairs. The cost of re-trying Olsen for death will undoubtedly cost the taxpayers of Brazos County close to the figures run up in Hall. At least in the aggregate of the 2 trials. After Olsen, the DA's office will have to wait and see if John Thessen will have to re-tried based on the IAC findings Judge Travis Bryan made regarding the trial performance of his lawyers. There are two other cases that are in the pipeline that could yet go capital-death, but decisions on those have not been made.

Disclosure: I represent the defendant in one of those two case.

Wednesday, October 7, 2015

A Dispatch from Death Penalty Capital USA (UPDATED)

UPDATED (10/07/2105 8:30 P.M.): After approximately 7 hours of deliberation, the jury returned a verdict which imposes the death penalty on Gabriel Hall.

ORIGINAL POST: Although not a news story outside my home of Brazos County, Gabriel Hall's fate is now with a Brazos County jury. He will soon be sentenced to either death or life without possibility of parole (LWOP). The trial judge, Travis Bryan III, according to The Bryan/College Station Eagle, has told the jury they will be sequestered if unable to reach a verdict today or tonight.

Here is what they must decide. These questions come straight out of Article 37.071 of the Texas Code of Criminal Procedure entitled simply, "Procedure in Capital Case."

 As relevant to this case, there will be two questions:
1. Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; 
2.  Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.
For the death penalty, the question 1 must be answered "Yes" and question 2 "No." Question 2 is worded in awkward fashion and would facially appear to place the burden of proof on the defendant, but that is not how the Supreme Court of the United States has interpreted it.

It is the second question the defense has hammered on. The question asks jurors to consider not just the circumstances of the offense, but Hall's background (amongst other things) in determining whether mitigating circumstances (or circumstance - it could be a single thing) exist to justify LWOP.

The argument for death or LWOP will, as it usually is in Texas, become one about the existence and sufficiency of mitigation evidence against death.

The jury has been told (instructed) by the judge they do not have to agree on what is a mitigating circumstance or circumstances. In other words one juror could decide Hall's upbringing in the Philippines is sufficient to mitigate against death. Another could decided Hall's life in the adoptive household of Karen and Wes Hall is sufficient mitigation, without regard to Hall's life in the  Philippines.

Of course another juror could decide within the totality of the evidence, including what happened to the victims in this case, the mitigation, if it exists, is insufficient. If so, then how the jurors split becomes important.

The jury is instructed by the judge if they answer question 2 "No" (death), they must be unanimous. The jury is also told to answer question 2 "Yes" (LWOP), ten or more of the jurors must agree. This is why the judges instruction on mitigation evidence, noted above, is important.

The jury is NOT told that if they cannot answer question 2 at all, the default imposed by the law is LWOP. No new trial. Therefore, to the defense it does not matter whether question 2 is answered, because even if there is single holdout juror, LWOP will be the court's sentence.

So here we are.

The, literally, $4 million dollar question is what will happen? I use that figure because of what our local television station, KBTX reported yesterday (10/06/2015 [13:07 entry]) on it's blog:
In July 2015, Marc Hamlin, the Brazos County District Clerk, told KBTX that the county is out more than $2 million so far, and that was 'on the conservative side.'
The rule of thumb is cost of trial doubles the pre-trial costs. Using that admittedly non-empirical estimate, the total cost of getting Gabriel Hall to verdict will be $4 million dollars. If death is the sentence, there will be, statistics show, a ten year direct and habeas appeal process. That cost will, in my view, double the figure again to $8 million.

Dispatch end.

Sunday, October 4, 2015

TAMU and a "New" Definition of Consent in Sexual Encounters

I once represented a Texas A&M University (TAMU) student who was accused of "Improper Sexual Contact" under the the TAMU Student Conduct Code. The student did not deny the sexual contact. They maintained the sexual contact was consensual. The student was never arrested, but still faced the possibility of expulsion from TAMU for violating their Code of Conduct.

The student was eventually found not responsible of the allegation by TAMU. Unfortunately, this finding came after a incredibly anxious and stressful few weeks while they faced the prospect of being thrown out of school.

I thought about that student when I read a story in the TAMU newspaper, The Battalion, this past week. It struck me that the story was about more than just TAMU. The story's lede informed the reader:
Too better clarify the meaning of sexual consent, the university recently redefined its definition of consent before the start of the fall semester.
Sentences that begin "Too better clarify..." always scare me. This sentence was no different. According to The Batt:
The Student Conduct Code now defines consent as a 'clear, voluntary, positive verbal or nonverbal communication that all participants have agreed to the sexual activity.'
A university disciplinary proceeding in the absence of a criminal one is not really unusual. It happens many times. The university has it's own set of substantive disciplinary and procedural rules. I may not like the diminished due process, but TAMU can do pretty much what it wants under applicable law. This does not mean they should.

In this situation I can feel the political winds blowing. Campus rape has lately become a cause célèbre. The Batt story goes on to take the measure of both student and faculty about the new definition. First, the student:
Psychology senior and Aggies for Reproductive Justice President Laura Reid said the new Student Conduct Code’s definition is much more holistic than expected from such a conservative campus. 
Reid said while the state of Texas fails to provide a concrete definition of consent, university rules maintain it be ongoing throughout the sexual activity, and that a lack of an explicit 'no' does not constitute a 'yes.'
'People often react to the victims by saying, "You didn’t say, ‘no,' so it was okay,'" Reid said. 'The problem is that while the assault was taking place these victims might have been incapacitated, drunk or feeling threatened and unable to say, "no."'
"Holistic" sounds great in a sentence but depending on context can carry many hues of gray - kind of like consent in a sexual encounter.  I have no idea what Ms. Reid means by her use of the word "holistic" in the context of "conservative campus." Does she mean the new definition provides more protection for the individual making the accusation than would be expected from such a conservative campus? If so, it is almost insulting.

This is a conservative place. I bemoan the conservativeness here all the time, but really?

Ms. Reid's example of protecting the incapacitated victim in a sexual encounter is a red herring. Texas law expressly provides persons incapacitated by, among other things, alcohol or drugs, cannot consent to being sexually assaulted. I am almost positive (because I have dealt with it before) that the TAMU Conduct Code already provided an incapacitated person could not consent to a sexual encounter. As it should.

If the context surrounding the encounter - physical and circumstantial evidence - is present, then a claim of "Well, they didn't say 'no' so I figured they consented'" is just not credible. Seldom is such a claim, standing alone, going to be credible. It is almost always the surrounding context which determines consent.

More disturbing was the faculty member quoted in The Battalion story:
Marian Eide, interim director of the women and gender studies program, said a clearer definition of consent helps to protect those participating in sexual activity from miscommunication. 
'It seems to me that the idea of an affirmative consent increasing instances of false reporting is a red herring,' Eide said. 'An affirmative consent amongst two able partners is positive, and if partners are in agreement and communicative, they are actually guarding themselves from misunderstandings.'
This all starts from Ms. Eide's false premise the new definition is "clearer." A "clearer" definition would provide meaningful notice to the TAMU population of what conduct is or is not required before consent is present. This definition of consent does not accomplish this goal. I would argue it does quite the opposite. The rest of  Ms. Eide's statements to The Batt make my point, well, clear (pun intended) .

What does "'An affirmative consent amongst two able partners'" mean in a sexual encounter? What if the partners have been drinking? What if only the alleged non-consensual partner had been drinking? Does non-communicated affirmation for sexual contact stop after two beers? Ten beers? Are these drinking, as well as sexual partners, "[A]ble partners" within the meaning of her remarks? If not "able," verbal or non-verbal "[A]ffirmative consent" is meaningless, right? What does "affirmative consent" mean? Does it depend on context and circumstance? Well then, EXACTLY.

 If so, why is this definition necessary, except to provide a politically correct expedient?

Ms. Eide's remarks to the Batt then get worse. When Ms. Eide says "[A]nd if the partners are in agreement and communicative they are actually guarding themselves from misunderstandings'" what does she mean? This is another example of saying something that sounds appealing but upon examination means nothing.

Being understood, especially in a sexual encounter, is to be encouraged. However, Ms. Eide's remarks really beg the question. What is non-verbal clear affirmation of consent? How about this TAMU situation: Two students who do not know one another, meet on Northgate, go home to one of their respective homes, with one partner excusing themselves, undressing, then coming back and crawling in next to the other. Has there been a "communicative agreement?" Does it depend on what happens before and after? EXACTLY.

Does experience tell us amongst the demographic at TAMU this kind of sexual encounter happens all the time? This new definition treats TAMU students paternalistically and is potentially dangerous.

Beyond The Battalion there was not any local media coverage of this new definition. I fear criticism of the nuances of hot button topics such as alleged campus rape can lead to ruin. Ask the Duke lacrosse players. Ask members of Phi Kappa Psi at the University of Virginia.  But, hey, those were cleared up with no lasting damage, right? We have a "clearer" definition of consent now. Nothing like that could happen at TAMU. Right?

Saturday, October 3, 2015


Spec draft for:
Real World – SCOTUS
Monkey Slough
October 5, 2015



Three women and a single man sit at one side of a large conference table. Three men are on sit opposite of them. There is an empty chair near the head of the table. A single individual, another man, is seated at the head of the table.

The conference room is large and lined with bookshelves and orderly, similar appearing books line the shelves.

Cameras are set up behind each side of the table on tripods, each manned by a camera person with headphones on.

Younger men and women scurry about with books and paper in their arms attempting to work around the cameras.

An awkward silence fills the room.

One of the doors opens loudly and with a sudden burst.

Nino! Can you be on time for once in your life!?

I'll quote Jackie Gleason to you Ruth, "To the moon, Alice, to the MOON!" Stop naggin' me about it.

Nino. I knew Jackie Gleason. The only thing you have in common with Jackie Gleason is that body.

(Under breath)
You're the only one here old enough to have KNOWN Jackie Gleason.

Stop it. Discuss "The Honeymooners" when you all go hunting with Elena again. Can we get down to business? 
(gesturing at cameras and clearing throat before beginning) 
I 've reconsidered my total media ban, and to lift the veil, as it were, on the public business of the Court. I've been approached and agreed to allow MTV's Real World to film the beginning of each conference. They will not stay for specific case discussion, but will be allowed to video some of the preliminaries.

John, shouldn't you have checked with the REAL leader of your wing before you made that decision?


She's talking about me, John.


 Somebody check and see if Clarence is still with us. Clarence? 


 Quit picking on Clarence, Elena.

(Smiles mischievously)

 We need to discuss some of the things that happened while we were out of session.
(Turning to Justice Scalia)
Nino, you were in Memphis in September, according to news accounts.
(reaching for a piece of paper) 
“Scalia was asked whether he thought the Supreme Court would eventually overturn the death penalty. Scalia answered, "I wouldn't be surprised." Do you really think talking about that was a good idea?

Hell ya! Some damned lib law student asked - so I told her!! The damned lib wing of this Court -
(gestures across table) 
they ALREADY got four votes to end the death penalty. And with Kennedy here
(Points his thumb to the man next to him)
all I used to hear outta him was "Federalism! Federalism!" THEN he throws us under the bus last term.

 Not fair. I still believe in federalism. But federalism shouldn't and can’t be used as a Trojan horse to deny human dignity. Or for that matter used to evade settled constitutional law that the mentally retarded are not eligible for the death penalty.

Anthony! I thought you were a good Catholic.

He said Trojan horse. Sam. Turn up your hearing aid.

Oh! Sorry..

There you go AGAIN with the EVOLVING standards!! What in the SAM HILL does THAT mean?! The Eighth Amendment hasn't changed!!! Evolving standards! Horseradish!! The death penalty was
 in use at the time the Bill of Rights was ratified,

 So was slavery. Using that logic even minor crimes should still be eligible for the death penalty. Floggings too.

Apples and ORANGES! And flogging would STILL be a good idea!! Don't you agree, Clarence!!?


 Guys! Stop making fun of Clarence.
Well, we need to discuss social media platforms as well. "The times they are a changin'"  as Bob Dylan sang...

 Another damned lib!!

John, I have a twitter account.

No one cares if you have a twitter account Stephen. They'd much rather know if
"The Notorious RBG" is on twitter. Aye Gawd what has this Court come to? John, I don't care about social media. I don't DO twitterface or whatever it's called.

Facebook or Twitter. Not both.

(The room becomes instantly silent as all eyes turn toward "The Sphinx.")

Thank you Clarence. Next to discuss is Kim Davis, that clerk from Kentucky....


Tune in next week and watch Justices Kagan, Scalia and Ginsberg go duck hunting on a new episode of The Real World - SCOTUS!